IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL No.761/2014 BETWEEN:
Sri.Muttukrishna Naidu Aged about 82 years, S/o Late P.V.Naidu, R/at No.15, 2nd Cross, Subedar Palya, Yeshwanthapura, Bengaluru – 560 022.
(By Sri.R.Nataraj, Advocate) AND:
1. Abdul Sattar S/o Late Abdul Rahim Aged about 58 years, R/at No.7, AS Building, 3rd Cross, Kogilu Road, Maruthi Nagar, Yelahanka, Bengaluru – 560 064.
…Appellant 2. Smt.Manjula W/o Ramachandra Rao, Aged about 53 years, R/at No.9, 1st Main, Kooralappa Layout, Kogilu Road, Maruthi Nagar, Yelahanka, Bengaluru – 560 064.
3. Sri.P.Krishna Aged about 46 years, R/at No.72, 15th Main, Maruthi Nagar, Yelahanka, Bengaluru – 560 064.
(By Sri.V.Sreenivasa, Advocate for R1; vide order dt. 22.7.16 service of notice to R2 & R3 is held sufficient) …Respondents This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 28.02.2014 passed in R.A. No.364/2012 on the file of II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, dismissing the appeal and confirming the judgment and decree dated 04.06.2012 passed in O.S.No.1738/2006 on the file of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
This Regular Second Appeal coming on for hearing, this day, the Court delivered the following:
J U D G M E N T The appeal is directed against the judgment and decree dated 28.02.2014 in R.A.No.364/2012 passed by the learned II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, wherein appeal came to be dismissed confirming the judgment and decree dated 04.06.2012 passed in O.S.No.1738/2006 by the learned II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
2. Counsel for the respondent No.1 is absent. In so far as respondent No.2 is concerned she is the contesting defendant No.2 before the trial Court and contesting respondent No.2 before the 1st Appellate Court. However, she has choosen to stay away from the proceeding.
3. The suit was originally filed by the appellant- Sri.Muthukrishna Naidu S/o Late P.V.Naidu for declaration of title and permanent injunction in respect of the schedule property stated to be a residential property bearing No.61, III Allotment, 12th Cross (near Penta Coastal Church), Maruthi Badavara Gruha Nirmanakara Seva Sahakara Sangha or Maruthinagar, Yelahanka, Bengaluru – 560 064 measuring East to West : 40 feet, North to South : 60 feet together with watchman shed and bounded by: East : Road, West : Site No.62, North : Site No.58, South : Vacant plot belonging to the Society.
4. In order to avoid confusion and overlapping the parties are referred hereinafter in accordance with their respective ranks and status held by them before the trial Court.
5. Plaintiff claims that he is the owner in possession of the schedule property as the same was allotted to him by Maruthi Badavara Gruha Nirmanakara Seva Sahakara Sangha of Venkatala Group Panchayat. The sale certificate was issued to the plaintiff on 15.09.1978 and it was registered before the jurisdictional Sub Registrar. He claims to be in possession and enjoyment of the schedule property, the moment he became the owner. It is further submitted that when the plaintiff received details regarding the caveat petition filed by the defendant No.1- Abdul Sattar in respect of the schedule property against the plaintiff, it was a shell shock to him as he had received the copy of the caveat petition in respect of the suit schedule property that was under his ownership and possession.
6. There are three defendants. Defendant No.1 is Abdul Sattar who claims interest in the schedule property, defendant No.2 is Smt.Manjula who claims to be owner of the schedule property and contest that she purchased the same from the Society - Maruthi Badavara Gruha Nirmanakara Seva Sahakara Sangha which is claimed by the plaintiff and defendant No.3 is Sri.P.Krishna. However, defendants 1 and 3 were placed exparte. The defendant No.2 was represented by her counsel.
7. The learned trial Judge was accommodated with oral evidence of PW1-Muttukrishna Naidu and DW1-Ramachandra Rao who is the husband of defendant No.2 and the documentary evidence Exs.P1 to P17 on behalf of the plaintiff and Exs.D1 to D9 on behalf of the defendants. On conclusion of the trial, the learned trial Judge dismissed the suit of the plaintiff on several grounds and held that the plaintiff has failed to establish the ownership and possession, further the plaintiff being a allottee of the schedule property, he has not made the alleged authority as a party. Further, the plaintiff has not produced the ownership documents and marketable title of his vendor. Incidentally, the defendant No.2 also claimed right, title and interest from the same Society, against which, appeal is preferred by the appellant before the 1st Appellate Court in R.A.No.364/2012 which came to be dismissed confirming the judgment and decree of the trial Court, which is challenged in this second appeal by the appellant.
8. This Court, on 05.01.2017 framed the substantial questions of law as under:
(1) Whether the trial Court and the First Appellate Court have committed any serious legal error in holding that the plaintiff has not proved his possession and existence of the property when there is no denial by the defendant sofar as the existence and possession of the property as the defendant No.2 also claims the ownership under the same vendor society?
(2) Whether the trial Court and First Appellate Court have committed any serious legal error in not drawing any presumption under the Indian Evidence Act with reference to the sale deed dated 14.02.1972 marked as Ex.P-1 executed by the plaintiff’s vendor against the defendant No.2?
9. Sri.R.Nataraj, learned counsel appearing for plaintiff would submit that both the trial Court and 1st Appellate Court focus the attention on the aspect that is not in domain of the suit or law relating to proof or evidence. The learned counsel submits that the plaintff is aged 85 years and is an ex-service man. The schedule property was purchased with his hard earned money and the plaintiff has been victimised by the defendants and their supporters. In so far as the title is concerned, the plaintiff claims that the schedule property was granted to him by Maruthi Badavara Gruha Nirmanakara Seva Sahakara Sangha of Venkatala Group Panchayat for a consideration of Rs.1,400/- and sale certificate was issued on 14.02.1972. Afterwards, another sale certificate was issued on 15.09.1978 registered before the jurisidictional Sub Registrar. The learned trial Judge also observed that earlier one Ramaswamy had filed suit against the plaintiff in O.S.No.359/1999 regard being had to the fact that the said suit was dismissed for non-prosecution. It is also part of the record that the defendant No.2 earlier had filed the suit for permanent injunction against V.Lakshminarayana, Y.H.Chandrashekar, Chandra Raj and Obala Reddy and the suit came to be decreed. In the context and circumstances, it is necessary in so far as the possession of vacant site or land is concerned, it follows the ownership. Now the data available before the Court is that plaintiff claims that he purchased the schedule property from Maruthi Badavara Gruha Nirmanakara Seva Sahakara Sangha of Venkatala Group Panchayat.
10. The said Society issued the sale certificate on 14.02.1972 marked as Ex.P1 and another sale certificate dated 15.09.1978 marked as Ex.P3.
11. The identification of the property as stated in the sale certificate is Site No.61 measuring EW : 40 feet, NS : 60 feet valued at Rs.1,400/-. Ex.P3 is another sale certificate dated 15.09.1978 in respect of same site number issued in favour of the plaintiff.
12. In the further circumstances of the case, defendant No.2 also claims title over the schedule property from the Society- Maruthi Badavara Gruha Nirmanakara Seva Sahakara Sangha. She denies the averments made by the plaintiff. Further, she claims that property bearing No.61, Town Municipal Assessment No.61, Maruthinagar Extension, III Allotment, 2nd Division Yelahanka, Bengaluru North Taluk measuring EW : 40 feet, NS : 60 feet registered as document No.1460/1989-90 before the jurisdictional Sub Registrar.
13. According to defendant No.2 she is the purchaser of the schedule property from the same society having got registered the sale certificate in her favour by the same society and she is possession and enjoyment of the schedule property. The trial Court’s observation that the claim made by the plaintfiff is suspicious. In so far as susbtantial questions of law are concerned, the present question is based under Section 48 of Transfer of Property Act regarding priority interest.
14. Sri.R.Nataraj, learned counsel for the appellant would submit that even on the basis of the events, the plaintiff got property allotted to him in the form of sale and the necessary documents in this connection is the sale certificates dated 14.02.1972 and 15.09.1978 marked as Exs.P1 and P3. It is also stated that the plaintiff has purchased the property for a cash consideration of Rs.1,400/-. On the other hand, the person who is examined as DW1 is the power of attorney holder of defendant No.2, who is the husband of defendant No.2. The learned counsel would submit that over smartness of the defendant No.2 is that she fles a suit against her men and supporters only with an object of paving way for proceeding and to misuse the same for advantage.
15. Another significant feature of the suit is that plaintiff and defendant No.2 are claiming the possession and ownership under the said housing society and incidentally, the learned trial Judge goes on posing the questions regarding the proof of the sale deed and non examination of the office bearers of the society has rejected the claim of the plaintiff. Regard having been to the fact that the Society is claiming to be a source of title (vendor) to the defendant No.2. Thus the trial Court and 1st Appellate Court have not treated the areas to stand in same footing between the plaintiff and the defendants.
16. The learned trial Judge finds that there are details regarding the acquisition of the schedule property by the society, further, forgets that defendant No.2 also claims under the same society.
17. It could be seen that first sale deed of the appellant- plaintiff is 14.02.1972.
18. The sale certificate is in respect of Site No.61.
Incidentally, another sale certificate is also issued i.e., on 15.09.1978. It is seen that sale deed dated 23.12.1989 in favour of the defendant No.2, the sellor is the same Society -
Maruthi Badavara Gruha Nirmanakara Seva Sahakara Sangha of Venkatala Group Panchayat represented by its President Sri.T.Tanjappa and Secretary Sri.V.Lakshminarayan registered as document No.1460/1989-90 in Book 1, Volume 31, Pages 164-167.
19. There is no whisper regarding the membership or the allotment date of the schedule property. Regard being had to the fact that the Ex.P3 reveals about the boundaries of the schedule property, his application dated 10.02.1972 and issuance of sale certificate and also same being registered. Ex.P3 shows that the plaintiff is the earlier purchaser as supported by Section 48 of Transfer of Property Act and it is worth mentioning. The sale deed in favour of the plaintiff does not appear to be an issue, on the other hand authenticity of the society and genuineness of the acquistion of the schedule property by the society is doubted by the Court.
20. Considering the effect of said provision of law and on hearing the submission of the learned counsel, perusing the documents available, I find that both the trial Court as well as 1st Appellate Court erred in not assessing the evidentiary value of Ex.P1 and Ex.P3 with reference to the sale deed of the plaintiff. Further status of the earlier purchaser is neither applied nor discloses while assigning the reason. I find that the judgment and decree of both the Courts below are liable to be set aside. Hence, the following:
ORDER 1. Appeal is allowed.
2. Judgment and decree dated 28.02.2014 passed in R.A.No.364/2012 by the learned II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru and the judgment and decree dated 04.06.2012 passed in O.S.No.1738/2006 by the learned II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru are hereby set aside. Consequently, the suit is decreed.
Sd/- JUDGE UN