IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A. NO.9196 OF 2018 (CPC) Between:
H.S.Muhibulla S/o Abdul Hameed Sab, Aged about 46 years, R/o Durgigudi, Honnali Town-577217, Davanagere. …Petitioner (By Sri P.N.Harish, Advocate) And:
1. Basappa Reddy S/o Hanumantha Reddy, Aged about 66 years, R/o 3rd Cross, Leftside, Shanthinagara, Shivamogga-577201.
2. Suneel Guruputra Badde S/o Guruputra, Aged about 44 years, R/o 5th Cross, Vivekanandanagara, Gokak Town and Taluk, Belagavi District-591307.
Additional Address, C/o Paramjyothinilaya, Opp. Chowdeshwary Temple, Sheshadripura, Shivamogga-577201. ... Respondents (By Sri S.Nagaraja, Advocate for R1, R2-Notice dispensed) This MFA filed under Order 43 Rule 1(R) of CPC, against the order dated 30.08.2018 passed on I.A.No.1 in O.S.No.27/2017 on the file of the 2nd Additional Senior Civil Judge, Shivamogga, allowing I.A.No.1 filed under Order 39 Rule 1 and 2 of CPC.
This MFA coming on for hearing on I.A. this day, the court delivered the following:
JUDGMENT Heard learned counsel for the appellant and learned counsel for the respondents.
I.A.No.1/2018 is filed under Order 41 Rule 5 R/w Section 151 of CPC for stay of operation of the impugned order dated 30.08.2018 on I.A.No.1 passed in O.S.No.27/2017.
2. During the course of arguments, learned counsel for the appellant submitted that the appellant being the purchaser has to develop the said property. The said right has been curtailed and the trial Court has committed an error in granting interim order restraining the appellant from alienating and developing or altering the revenue documents.
3. It is an admitted fact that the appellant is the purchaser of the property and there are no specific allegations in the plaint as to how fraud was committed. The only grievance of the plaintiff is that the sale consideration amount was less and appellant has not paid the actual sale consideration as agreed upon by the parties.
4. The Hon’ble Apex Court in the case of Kaliaperumal Vs Rajagopal reported in AIR 2009 SC 2122 has held as under :
“8. Sale is defined as being a transfer of ownership for a price. In a sale there is an absolute transfer of all rights in the properties sold. No rights are left in the transferor. The price is fixed by the contract antecedent to the conveyance. Price is the essence of a contract of sale. There is only one mode of transfer by sale in regard to immovable property of the value of Rs.100/- or more and that is by a registered instrument. It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title, as Section 54 of Transfer of Property Act, 1882 (`Act' for short) defines `sale' as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of non- payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of Evidence Act.”
5. In the present case, the learned counsel for the respondents would contend that the appellant has committed fraud and not complied with the conditions stated in the agreement, but the impugned order on I.A., clearly goes to show that the respondents have sold the suit schedule property for a sale consideration stated in the sale deed and they have even handed over the possession of the property. In these circumstances, there are no other valid grounds to hold that the appellant has committed fraud on defendants. Since main contention of the respondents is that they have not received the entire sale consideration and three developed sites as promised by the respondents. If such an agreement was entered into between the parties, such intention is primarily to be gathered and determined either from the recitals of the sale deed or agreement. When the recitals are insufficient or ambiguous, the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention.
6. In the facts and circumstances of the case, this Court is of the view that the appellant being the purchaser of the property is entitled to develop the land as such he cannot be restrained from taking steps for development of the suit schedule property. In order to safeguard the interest of parties. It is necessary to restrain the appellant from alienating or creating encumbrances over the suit schedule property till disposal.
7. For the foregoing reasons, the appeal is allowed. The impugned order dated 30.08.2018 on I.A. passed in O.S.No.27/2017 is set aside and the same is modified as under:
The appellant-defendant No.1 is restrained from alienating or creating encumbrances on the suit schedule property, till disposal of the suit, but the defendants are entitled to develop the property.
I.A.No.1/2018 for stay does not survive for consideration, same is accordingly disposed of.
Sd/- JUDGE rv