IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR SECOND APPEAL NO.739 OF 2011 BETWEEN:
MYSORE DISTRICT UNIT OF THE COMMUNIST PARTY OF INDIA (MARXIST) REPRESENTED BY THE SECRETARY L. JAGANATH OPP: TO THE SILVER JUBILEE CLOCK TOWER ASHOKA ROAD, MYSORE-570001.
(BY SRI. T. SUNIL, ADV., FOR SRI. G. PAPI REDDY, ADV.) AND:
L.V. RAMESH S/O LATE K.S. VITTALJI, MAJOR R/AT. No.40/A, 1ST CROSS TANK BUND ROAD, ITTIGEGUD NAZARBAD MOHALLA MYSORE-570001.
(BY SRI. O. SHIVARAMA BHAT, ADV.) - - -
… APPELLANT … RESPONDENT This R.S.A. is filed under Section 100 of CPC., against the Judgment and Decree dated 26.11.2010 passed in R.A.No.347/2006 on the file of the IV Addl. District and Sessions Judge, Mysore, dismissing the appeal and confirming the Judgment and Decree dated 24-02-2000 passed in O.S.No.81/1983 on the file of the Prl. I Civil Judge (Jr.Dn.) Mysore & etc.
This R.S.A. coming on for Admission this day, the Court delivered the following:-
JUDGMENT This second appeal is filed by the appellant – plaintiff assailing the judgment and decree passed by the Prl. I Civil Judge (Jr.Dn.), Mysore in O.S.No.81/1983 dated 24.02.2000 and the same was affirmed by the 4th Addl. District Judge, Mysore in R.A.No.347/2006 dated 26.11.2010.
2. Heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent.
3. The rank of the parties before the Trial Court is retained here for brevity.
4. The case of the plaintiff before the Trial Court is that the plaintiff filed a suit for declaration and injunction to declare that plaintiff is the owner and in possession of the suit schedule property and for injunction against the defendant alleging that the plaintiff is Mysore District Unit of the Communist Party of India (Marxists), having its office in the schedule property from the year 1956 as tenant originally under one Sri.M.V.Sanath Kumar who was the owner of the said premises and the said landlord had filed a petition for eviction of the plaintiff under Section 21(1)(a) and 21(1)(j) of the Karnataka Rent Control Act (hereinafter referred to as ‘HRC Act’) in HRRP No.170/1964 on the file of the Addl. Munsiff, Mysore. The said petition came to be allowed directing the plaintiff to vacate the suit premises. Being aggrieved by the said order, the plaintiff approached the District Court in HRP No.38/1967 which came to be dismissed and thereafter, the plaintiff approached this Court in CRP No.1089/1969 by way of revision, the revision petition also dismissed by this Court. Thereafter, the landlord filed Ex.P.No.140/1972. During the pendency of the execution petition, the landlord Sanath Kumar died and his wife M.S.Prabhavathi came on record and continued to prosecute the matter. It is further case of the plaintiff that during the pendency of the execution petition, there was settlement between the legal heirs of the landlord and the plaintiff and it was decided to purchase the property for `15,000/- by the plaintiff and further contended that Ugrappa said to be the Secretary of plaintiff – party and Belliyappa who were well versed with the trade union activities, supported the agitations of retrenched palace employees of Mysore Palace. They collected an amount of `65,000/- as contribution by those people and out of that amount, `30,000/- was paid to the fund of State unit through Belliyappa and `5,000/- was spent to the expenses incurred in connection with the agitation and the plaintiff – party wanted to purchase the schedule premises out of the remaining amount of `30,000/- and according to the plaintiff, a sum of `30,000/- was deposited in Indian Overseas Bank, Yadavagiri, Mysore vide S.B.Account No.385 in the names of M.N.Ugrappa, B.A.Belliyappa, K.Thimmegowda, Channaboraiah, Chikkaiah, Hanumaiah, Puttaiah and Nelaiah and further alleged that at the instigation of some persons who were inimical towards the plaintiff – party, a prosecution case was launched against Ugrappa, Belliyappa and others alleging that they have committed offence under Sections 420 and 408 of IPC and the said case ended in acquittal. During the pendency of the said case in C.C.No.2409/1974, the concerned police prevented the plaintiff from withdrawing the said amount from the S.B. account and further contended that the Secretary of the plaintiff – party has raised a loan of `15,000/- to pay to Prabhavathi and get the sale deed executed. But the said Belliyappa, without informing the date of execution, got the sale deed executed in his individual name by showing the sale consideration of `15,000/- said to be paid to Prabhavathi, wife of landlord through two pay orders, `10,000/- and `5,000/- respectively. It is further case of the plaintiff that the said Belliyappa purchased the property as he was the purchaser and thereafter, Belliyappa was called upon by the plaintiff to rectify the mistake and execute the proper sale deed with the name of plaintiff – party but the said Belliyappa remained silent. Therefore, Belliyappa, anticipating legal action against him and to create false evidence, instituted a suit in O.S.No.548/1978 before the Prl. I Munisiff, Mysuru against Ugrappa, Thimmegowda and others. The said Belliyappa did not have any title to the suit schedule property under the sale deed dated 05.11.1976 which was vitiated by fraud. According to the plaintiff, the entire money was paid by the plaintiff by raising loans from Nanjegowda, Chikkanna of Siddayanna Kopalu, Mandya District and Honnagiri Gowda. It is further contended that during the pendency of the suit, it is averred in the judgment that the present defendant Ramesh came on record by filing an application under Order XXII Rule 10 of CPC as assignee in place of Belliyappa and taken so many contentions. Hence, the plaintiff contends that for all purposes, the plaintiff is the owner of suit schedule property and to declare the plaintiff – party as the owner of the property.
5. In pursuance to the notice, defendant No.1 Belliyappa appeared and filed written statement by denying the entire contention of the plaintiff made in the plaint in respect of the settlement of the property by the plaintiff – party with the owner of the property as false and contended that the suit schedule property has been purchased by him for valuable consideration by sale deed dated 05.11.1976 and thereafter, the suit schedule property has been sold to Ramesh, the present defendant and prayed for dismissing the suit against him. Later, Ramesh impleaded himself as additional defendant, who filed written statement and also denied the averments made in the plaint by the plaintiff, as false. He further contended that the suit schedule property has been purchased by Belliyappa from the owner and thereafter, he had purchased the suit schedule property from Belliyappa and is in possession and enjoyment of the suit schedule property. The claim of the plaintiff that they purchased the suit schedule property in the name of the plaintiff which attracts the provisions of Benami Transaction Provisions Act, 1988 and also denied the sale deed being vitiated by fraud and prayed for dismissal of the suit. Thus, upon the rival pleadings, the Trial Court framed the following issues:
1) Whether the plaintiff proves that defendant has not acquired any right or title over the suit property under the sale deed Dt.5- 11-1976?
2) Whether the plaintiff proves its title over the Suit property?
3) Whether the defendant proves that this court has no jurisdiction to try this suit?
4) Whether the court fee paid is sufficient?
5) Whether the plaintiff is entitled for the relief of declaration and injunction?
6) Whether the suit is barred by time?
7) What decree or order?
Further, the Trial Court framed the following additional issues:
1) Whether Sri. M.N. Ugrappa has no right to represent the plaintiff and file suit?
2) Whether the suit is bad for non-joinder of necessary parties?
3) Whether the suit is barred u/s 4 of the Benami Transaction Prohibition Act, 1938?
4) Whether the 2nd defendant has acquired title in the Suit Scheduled Property as purchaser for value?
5) Whether plaintiff proves that the lease and sale referred to at para 11(a) of the plaint are hit by doctrine of lis pendens and as such not binding on him?
6. To substantiate the contention of the plaintiff, the plaintiff got examined one Ugrappa as PW-1 and also two more witnesses as PWs-2 and 3 and got marked 27 documents. Defendant got himself examined as DW-1 and got marked 3 documents. After considering the evidence on record, the Trial Court answered issue No.3 in the negative against the plaintiff, issue No.4 in the affirmative, issue No.6 in the affirmative, additional issue No.1 in the affirmative, additional issue No.2 in the negative, additional issue No.3 in the negative, additional issue No.4 in the affirmative and additional issue No.5 in the negative. Accordingly, suit of the plaintiff came to be dismissed by judgment dated 24.02.2000.
7. Assailing the judgment of the Trial Court dismissing the suit of the plaintiff, the plaintiff approached the IV Addl. District Judge, Mysore by filing appeal in R.A.No.347/2006 and the 1st Appellate Court, after hearing the arguments, formulated four points for consideration as under:
1. Whether the plaintiff proves its title over the suit property?
2. Whether the plaintiff proves that, the plaintiff party was in peaceful possession of the suit property on the date of suit?
3. Whether the suit of the plaintiff is barred by time?
4. Whether there are just and reasonable grounds to interfere in the judgment and decree of the Trial Court?
8. The 1st Appellate Court answered all the points in the negative against the plaintiff and dismissed the appeal by judgment dated 26.11.2010 by confirming the judgment and decree passed by the Trial Court. Assailing the judgments of both the Courts below and concurrent findings, the plaintiff – appellant is before this Court by way of second appeal.
9. Learned counsel for the appellant Sri.T.Sunil appearing for Sri.Papireddy has contended that both the Courts below committed error and illegality by dismissing the suit of the plaintiff. The Trial Court has not appreciated the evidence of PW-1 to PW-3 and the 1st Appellate Court did not properly re-appreciate the evidence of the plaintiff and documents produced therein and has wrongly held that there is no power in favour of PW-1 for filing the suit. Even though the evidence on record shows that PW-1 was contesting the petition before the Rent Control Court in the earlier proceedings as Secretary of plaintiff – party, both the Courts below ignored the position of Ugrappa. It is further contended that the present defendant Ramesh who is a subsequent purchaser came on record by filing an application under Order XXII Rule 10 of CPC and Belliyappa has not chosen to examine himself but has examined assignee Ramesh and his evidence was accepted by the Court below. The Court below ought not have entertained the evidence of DW-1. Therefore, both the Courts below have committed error in holding that Belliyappa derived the title over the property even though he did not derive any title under the sale deed. Therefore, the learned counsel contended that there is substantial question of law involved in this appeal.
10. Per contra, learned counsel for the respondent contended that though the defendant came on record as additional defendant, but subsequently the plaintiff themselves deleted the name of Belliyappa and showed Ramesh as sole defendant and he was allowed to participate in the proceedings and has filed written statement, who has purchased the suit schedule property from Belliyappa by sale deed dated 27.03.1991. Belliyappa had purchased the suit schedule property on 05.11.1976 from the owner Prabhavathi by paying the valuable consideration of `15,000/- and the plaintiff nowhere proved that they have paid the consideration amount to Belliyappa for purchase of the said property and there is no power given to Ugrappa for filing the suit. Therefore, considering these aspects, both the Courts below rightly rejected the claim of the plaintiff and dismissed the suit. Further, learned counsel also contended that after purchase of the suit schedule property, from Belliyappa, the present respondent had filed a suit in O.S.No.772/2002 which came to be decreed by the 3rd Addl. Civil Judge, Mysuru on 04.07.2008. After passing of the judgment, he has filed execution petition and obtained the possession of the suit schedule property and thereafter, the plaintiff filed a miscellaneous petition under Order IX Rule 13 of CPC for setting aside the judgment and order in O.S.No.772/2002. It was allowed by the Trial Court on 04.04.2018 and the suit was restored to file against which, the defendant filed a writ petition before this Court in W.P.No.19141/2018 wherein he has obtained stay on the order passed by the Trial Court in Misc.P.No.13/2009 which is still pending for consideration. He further contended that the contention of the plaintiff is against the provision of Section 4 of Benami Transaction Provision Act as the party cannot purchase the property in somebody’s name. Therefore, the learned counsel contended that there is no substantial question of law involved in this appeal to admit the appeal and prays for dismissal.
11. Upon hearing the arguments of the learned counsel for the parties and perused the record. It is not in dispute that the plaintiff is Mysore District Unit of the Communist Party of India (Marxist) who was the tenant under one Sanath Kumar and the landlord filed eviction petition to evict the plaintiff from the suit schedule property in HRC No.170/1964 and obtained an eviction order against the plaintiff. In the revision, the plaintiff suffered the decree against it and thereafter, CRP has been filed by the plaintiff before High Court in CRP No.1089/1969. The said revision also came to be dismissed. Thereafter, the landlord filed Ex.P.No.140/1972 and it is seen from the record that while dismissal of the CRP by this Court, six months’ time was granted to deliver the possession. Thereafter, possession was not delivered by the plaintiff. Therefore, execution petition has been filed and the execution petition filed by the landlord was also allowed. Against the said order, execution second appeal was also filed by the plaintiff in execution second appeal No.92/1973 which came to be dismissed on 28.06.1974 which clearly shows that the plaintiff lost the legal battle against the landlord. The specific case of the plaintiff before the Trial Court is that during the pendency of the execution proceedings, there was a settlement arrived between the plaintiff and the legal heirs of the landlord i.e. Prabhavathi and it was decided by the plaintiff to purchase the suit schedule property from the landlord and thereafter, the accumulated fund from the contribution of retrenched palace employees of Mysore Palace of about `65,000/- and has been deposited in Indian Overseas Bank. Out of the said amount, an amount of `30,000/- was paid to Belliyappa who is also well versed with the trade union activities of the plaintiff but the said Belliyappa by misusing the situation without the knowledge of the plaintiff – party had purchased the suit schedule property in his name. But in order to prove the amount of `65,000/- collected by them as contribution and said to be deposited in Indian Overseas Bank in the name of Belliyappa and others, absolutely no document is produced to show that the amount of `30,000/- was paid by the plaintiff to Belliyappa for purchase of suit schedule property for the plaintiff – party, no document is produced. Ex.P1 relied on by the plaintiff is said to be minutes of meeting of the party wherein it nowhere reveals purchasing of the property of the plaintiff and also giving any power to Ugrappa for filing of the suit as against Belliyappa. Ex.P2 is the letter written by the Communist Party of India to Ugrappa PW-1 and Ex.P3 is another letter of the Karnataka State Committee of the plaintiff party to PW- 1 on 25.08.1978 and Ex.P4 is another letter written by plaintiff – party on 07.09.1978 wherein it was stated that the Secretary of the Committee decided to expel Belliyappa from the party. Except these documents, no other document produced by the plaintiff in order to prove that an amount of `30,000/- or any other amount was paid to Belliyappa for purchasing the property. PW-
1 Ugrappa said to be calling himself as Secretary of plaintiff – party, even though has produced Exs.P2 to P4, the letters written to him by the party, it nowhere reveals that he is the Secretary of Communist Party of India. However, in the earlier proceedings in HRC and CRP, though it reveals that Ugrappa represented the plaintiff – party, in those proceeds, but, those documents does not reveal that he was the Secretary of the plaintiff – party. However, the proceedings in HRC petition has ended in finality. While filing the execution proceedings before the HRC Court, absolutely, there is no document produced by PW-1 in order to show that the communist party of India which is a national party has authorized him to file a suit against Belliyappa for the purpose of declaration. That apart except seeking declaration to declare the plaintiff is the owner of the property, the plaintiff has not chosen to seek relief of declaration to set aside the name of Belliyappa referred in the sale deed. When the plaintiff themselves failed to prove the case by producing any document to show that they have paid the amount of `30,000/- to Belliyappa to purchase the property and no other document is produced to show that the plaintiff – party authorized PW-2 to file suit against the defendant, therefore, the Trial Court and 1st Appellate Court, after considering the evidence on record, by giving findings, categorically held that PW-1 has no locus standi to file suit without any authorization from CPI(M) and also failed to produce or mark any document to show that the plaintiff has paid sale consideration to the vendors. When PW-1 himself was contesting the case in HRC proceedings and also execution petition, the PW-1 could have purchased the property in its name or the name of Secretary of plaintiff – party. But, nowhere has produced any document to show that there was a settlement between the plaintiff – party as well as owner – landlady Prabhavathi during the execution proceedings. In the absence and any document, the Trial Court has rightly held against the plaintiff. The plaintiff failed to prove that the plaintiff was the owner and in possession of property but not Belliyappa. Apart from that, perused the cause title of the suit in O.S.No.81/9183. Though the name of Belliyappa was shown as 1st defendant and 2nd defendant came as additional defendant on record by filing application under Order XXII Rule 10 of CPC, but the cause title of the plaint was amended, name of Belliyappa was deleted and name of the present respondent Ramesh was shown as sole defendant. The said amendment was carried out on 19.11.1998. The judgment was also delivered against the sole defendant Ramesh. Therefore, the contention of the learned counsel for the appellant cannot be acceptable that the plaintiff proved the case before the Trial Court. On the other hand, the contention of the defendant who is examined as DW-1 before the Court whereas he states that he is made as party and arraigned as sole defendant in the cause title of the plaint, the question for consideration whether he came as additional party by filing application under Order 22 Rule 10 of CPC or otherwise does not arise. From the evidence it is clear that the sale deed was executed in favour of Belliyappa on 05.11.1976 and subsequently during the pendency of the suit, said Belliyappa sold the property to present respondent Ramesh on 27.03.1991 and he also obtained a decree in O.S.No.772/2002 which is pending for consideration before the Court in W.P.No.19141/1981. Be that as it may, the plaintiff failed to prove its case with cogent evidence. Even otherwise, after impleading the 2nd defendant as party when the plaintiff chose to amend the plaint at para 9, showing 2nd defendant as respondent but not chosen to seek any relief for declaring the sale deed of the present respondent and also sale deed of Belliyappa to cancel as null and void. Therefore, without seeking any relief, the plaintiff cannot seek the only relief of declaring the plaintiff as owner of the property when the plaintiff failed to prove the payment of sale consideration to the vendor. The question of considering the purchase in the name of Belliyappa which attracts Benami Transaction, is not acceptable. Considering the findings of the Trial Court and First Appellate Court, I do not find any substantial question of law involved in this second appeal filed by the plaintiff.
The appeal is devoid of merits and is accordingly dismissed.
Sd/- JUDGE RV