IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 27502 OF 2019 (GM-CPC) BETWEEN:
SMT H K SUSHEELAMMA W/O H.M.SUNDAR RAJ, AGED ABOUT 44 YEARS, R/O MAYASANDRA VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK.
… PETITIONER (BY SRI. M B NARGUND, SENIOR COUNSEL A/W SRI. VIGNESHWARA U, ADVOCATE) AND:
1. GODREJ PROPERTIES LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT GODREJ ONE, 5TH FLOOR, PIROJSHANAGAR, EASTERN EXPRESS HIGHWAY, VIKHROLI (EAST) MUMBAI-400079 MAHARASTRA.
2. SRI.G.KRISHNAPPA AGED ABOUT 70 YEARS, S/O LATE SRI.GURAPPA, R/O HOSAHALLI VILLAGE, JALAHOBLI, BANGALORE NORTH TALUK, 3. SMT.MEENAKSHAMMA AGED ABOUT 40 YEARS, D/O SRI.G.KRISHNAPPA, R/O HOSAHALLI VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK.
4. SRI.SRINVIAS, AGED ABOUT 36 YEARS, S/O SRI.G.KRISHNAPPA R/O HOSAHALLI VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK.
5. SRI.LOKESH AGED ABOUT 34 YEARS, S/O SRI.G.KRISHNAPPA, R/O HOSAHALLI VILLAGE, JALAHOBLI, BANGALORE NORTH TALUK.
6. SAMMYS DREAMLAND COMPANY (P) LIMITED, INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.9, 2ND FLOOR, BELAIR DRIVE, MEKHRI CIRCLE, BELLARY ROAD, BANGALORE-560 032.
… RESPONDENTS (BY SRI. UDAYA HOLLA, SENIOR COUNSEL A/W MISS. MEENAKSHY NAT ADVOCATE FOR C/R1; SRI. A KESHAVA BHAT, ADVOCATE FOR R2 & R3;
SRI. VENUGOPAL NAIDU N, ADVOCATE FOR C/R6; (NOTICE TO RESPONDENT NO. 4 & 5 NOT ORDERED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO M.A.NO.15003/2019 FROM THE FILE OF THE 5TH ADDITIONAL DISTRICT & SESSIONS JUDGE, BANGALORE RURAL DISTRICT AT DEVANAHALLI AND ON PERUSAL OF THE SAME AND ETC., THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner being the plaintiff in a partition suit in O.S.No.73/2019, is knocking at the doors of writ court for assailing the order dated 4.6.2019, a copy whereof is at Annexure-A whereby, the learned V Addl. District Judge, Bangalore Rural District at Devanahalli, having favoured 1st respondent’s appeal in M.A.No.15003/2019 has set aside a temporary injunctive relief granted by the learned Senior Civil Judge, Devanahalli vide order dated 5.4.2019 by allowing petitioner’s application in I.A.No.1 filed under Order XXXIX Rules 1 & 2 of CPC, 1908.
2. After service of notice, the 1st respondent and respondent Nos.2 & 3 have entered appearance through their learned counsel; respondent No.6 has entered caveat; however, notice to respondent Nos.4 & 5 was not ordered since they are not the stakeholders in this Writ Petition.
3. Having heard the learned counsel for the parties at length and having perused the Petition Papers including those filed with Memos, this Court upholds the impugned order but grants an equitable reprieve to the petitioner, for the following reasons:
(a) petitioner had filed O.S.No.23/1998 for declaration & consequential injunction against the 6th respondent herein from whom the 1st respondent has bought the property; this suit was dismissed for non- prosecution by the Civil Judge, Sr. Dn, Bengaluru Rural District on 30.11.2002; her Misc Petition No.39/2003 for restoring the suit to the Board was unconditionally withdrawn on 5.9.2006 by filing a Memo specifically stating that the dispute was settled out of the Court; no liberty logically was reserved for litigating afresh; that being the position, arguably the present suit in O.S.No.73/2019 could be resisted on the ground of maintainability, which aspect is reserved to the domain of trial court; when the maintainability issue prima facie crops up in a suit, it casts shadow on the prima facie case argued by the plaintiff’s side; the defendant Nos.1 & 2 through their Power of Attorney Holder Sri.N.Ramesh sold the suit property to the 5th defendant by executing and registering six sale deeds on 10.8.2001; since the property comprised therein was described with duplicity, later rectification deeds came to be executed and registered on 28.12.2005; in fact, the khata and the revenue records have been changed pursuant to the sale deeds before long in favour of the 5th defendant;
(b) the petitioner-plaintiff and defendant Nos.1 to 4 along with wife of the 1st defendant have executed an affidavit, a copy whereof is at Annexure-Q wherein they acknowledge the receipt of a huge sum of Rs.35,00,000/- [Rupees Thirty Five lakh] only, that too by crossed cheques drawn on UTI Bank, Yelahanka branch, Bangalore, by way of “enhanced sale consideration” for the sale of suit property; this affidavit specifically mentions inter alia about Misc Petition No.39/2003; that is the reason why the petitioner had filed the Memo seeking dismissal of this Miscellaneous Petition specifically stating that the dispute was settled; in fact, this affidavit is produced by the petitioner herself and not even a whisper is made about it’s contents being fake or false; even here too, neither the petitioner nor the 1st defendant denied receipt of the amount stated therein;
(c) the contention of the petitioner-plaintiff and the 1st defendant that regardless of receipt of the amount mentioned in the subject affidavit at Annexure-Q, the title to the property has not been conveyed in the absence of due execution and registration of the conveyance, is bit difficult to countenance; admittedly, there are registered sale deeds; the subject lands are diverted for non- agricultural user; whether the person who purported to be the GPA holder of the erstwhile land owners is a question to be debated before the trial court; the Apex Court vide Prem Singh Vs. Birbal, (2006) 6 SCC 353 at para 27 has observed as under:
“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption….”
These observations silence the voice of petitioner-plaintiff and the 1st defendant;
(d) the contention of the 1st defendant that despite these sale deeds and notwithstanding the receipt of the amount through bank cheques as mentioned in the affidavit at Annexure-Q, the title is not conveyed as yet, appears to be too farfetched a stand; his reliance at para 12 of the Apex Court decision in Suraj Lamp and Industries Pvt Ltd Vs. State of Haryana, AIR 2012 SC 206 is misconceived to say the least; the Apex Court in the said paragraph has considered the scope of sections 53A, 54 & 55 of the Transfer of Property Act and has held that without registered instrument of sale transaction, no title is conveyed in an immovable property; the facts of this decision are miles away from the case emerging from the records of this Writ Petition; there is no quarrel as to the ratio laid down therein but what is lost sight of by this defendant is its uninvocability in the fact matrix of the present suit;
(e) the 1st defendant who had entered appearance in the suit through his counsel in the trial court on 2.4.2019 had not even whispered before the First Appellate Court despite service of notice, this way or that way; he had not even filed his Written Statement cum Counter Claim till after the impugned order was made on 4.6.2019; his contention that the proceedings moved in the trial court and in the Lower Appellate court faster than usual and thus, he did not have opportunity of participation, appears to be a militant lie; as already mentioned above, he too has not disputed the huge money received through bank cheques; the contentions urged before this Court were not pressed into service in the court below; his conduct thus disentitles him to a larger say in this matter, especially when he has not chosen to lay a challenge to the impugned order nor has he sought for his transposition as a petitioner;
(f) the learned trial Judge had granted a temporary injunctive relief to the petitioner is true; this is rescinded by the learned Appellate Judge by a well reasoned decision; ordinarily, the views of Appellate Judge in the matter of temporary protective orders need to be sustained unless there is an error of great magnitude either of law or of facts apparent on the face of the record, which is wanting in this case that was argued vociferously for quite sometime; after all, it is undeniable that the order of the kind impugned herein is a product of exercise of discretion with the accumulated wisdom of the court immediately below; such orders ordinarily do not merit deeper scrutiny in a limited supervisory jurisdiction like the one u/a 227 of the Constitution of India vide Sadhana Lodh Vs. National Insurance Company, 2003 (3) SCC 524; and (f) having said all the above, still this court is of the considered opinion that some provision by way of security or otherwise needs to be made for protecting the arguable interest of the petitioner and the 1st defendant who has lately filed his Written Statement cum Counter Claim; this can be achieved by directing the 1st respondent-Godrej Properties Ltd to furnish a bank guarantee for a sum of Rs.2,00,00,000/- [Rupees Two Crore] only in favour of the Registry of the Court below; this would be an equitable relief granted to the aggrieved parties to the Writ Petition; justice also requires soliciting early disposal of the suit as well.
4. In the above circumstances, this Writ Petition substantially fails and the impugned order is sustained; however, a direction issues to the 1st respondent-Godrej Properties Ltd to furnish a bank guarantee in favour of the Registry of the trial Court for a sum of Rs.2,00,00,000/- [Rupees Two Crore] only within a period of six weeks for securing the arguable interest of the petitioner-plaintiff in the subject suit, which the learned trial Judge shall get periodically renewed.
If the 1st respondent fails to furnish the aforesaid guarantee within the prescribed period, the impugned order thenceforth shall be treated as having been set aside and the order of the learned trial Judge eventually being restored.
The learned trial Judge is requested to make all endeavors to try and dispose of the suit as expeditiously as possible and without being influenced by the observations herein above made since they are confined to disposal of the Writ Petition.
No costs.
Sd/- JUDGE Snb/