IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.29393/2014 (GM-CPC) BETWEEN SRI PAPANNA S/O LATE ANNAIAH AGED ABOUT 70 YEARS R/AT NO.601, HINKAL-571 017 KASABA HOBLI MYSORE TALUK ... PETITIONER (BY SRI ANANDA K, ADVOCATE) AND 1. SMT. SAROJAMMA W/O MADAIAH AGED ABOUT 59 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK-571 028 2. SMT.SHANTHA W/O MAHDEVU AGED ABOUT 40 YEARS D/O MADAIAH R/AT BILIKERE VILLAGE BILIKERE HOBLI HUNSUR TALUK -571 301 3. SMT.SUREKHA D/O MADAIAH AGED ABOUT 38 YEARS K.R.NAGARA -571 602 MYSORE DISTRICT 4. SMT.VENKATAMMA W/O LATE MOTARAIHNA MADAIAH AGED ABOUT 60 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571 028 5. SRI MAHADEVU (GPA HOLDER) W/O LATE MOTARAIHNA MADAIAH AGED ABOUT 42 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571 028 6. SRI RAJU S/O LATE MOTARAIHNA MADAIAH AGED ABOUT 42 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571 028 7. SMT.SUNANDA W/O SHANTHA AGED ABOUT 39 YEARS D/O LATE MOTARAIHNA MADAIAH R/AT KARIMUDDANAHALLY VILLAGE H.D.KOTE TALUK-571 114 MYSORE DISTRICT 8. SRI SIDDARAJU S/O LATE MOTARAIHNA MADAIAH AGED ABOUT 30 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571 028 9. SMT.MAHADEVI W/O MAHADEVA SETTY D/O LATE MOTARAIHNA MADAIAH AGED ABOUT 26 YEARS R/AT HOSAKOTE NANJANGUDU TALUK MYSORE DISTRICT-571 301 10. SMT.NANJAMMA W/O LATE PUTTAMADAIAH AGED ABOUT 70 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571 028 11. SMT.JAYAMMA W/O LATE MAHADEVU AGED ABOUT 54 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571028 12. SRI KUMARA S/O LATE MAHADEVU AGED ABOUT 36 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571028 13. SMT.NAGAMMA D/O LATE MAHADEVU AGED ABOUT 34 YEARS R/AT CHIKKEGOWDANAHUNDI MYSORE TALUK MYSORE DISTRICT – 570 001 14. SMT.RUKKAMMA D/O LATE MAHADEVU AGED ABOUT 32 YEARS R/AT NANJANAGUDU MYSORE DISTRICT – 571 301 15. SMT.LAKSHMI D/O LATE MAHADEVU AGED ABOUT 30 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571028 16. SMT.PARAVATHI W/O VENKATESH D/O LATE PUTTAMADAIAH AGED ABOUT 44 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571 028 17. SMT.SHANTHA W/O JAVARAPPA D/O LATE PUTTAMADAIAH AGED ABOUT 40 YEARS R/AT SIDDALINGAPURA KASABA HOBLI MYSORE TALUK – 570 001 18. SMT.SAROJAMMA W/O MAHADEVU D/O MADAIAH AGED ABOUT 54 YEARS R/AT HOSABADAVANE BELAGOLA HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT-571 438 19. SMT.VASANTHI W/O SRINIVASA D/O MADAIAH AGED ABOUT 52 YEARS BELAGOLA VILLAGE AND HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT – 571 438 20. SMT.MEENA D/O MADAIAH AGED ABOUT 50 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571028 21. SMT.SHIVAMMA W/O LATE SIDDAIAH AGED ABOUT 69 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571028 22. SRI MAHADEVU (GPA HOLDER) S/O LATE SIDDAIAH AGED ABOUT 44 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571 028 23. SMT.CHAMUNDI D/O LATE SIDDAIAH AGED ABOUT 42 YEARS R/AT NADANAHALLY VILLAGE KASABA HOBLI MYSORE TALUK – 571028 24. SMT.SUDHA W/O RAMU D/O LATE SIDDAIAH AGED ABOUT 40 YEARS KYATHAMARANAHALLI MYSORE CITY-571 017 ... RESPONDENTS (BY SRI G B MANJUNATHA, ADVOCATE FOR R5, R16, R17 & R22 R1, R4, R6 TO R8, R10 TO R13, R15, R21 & R23 ARE SERVED, NOTICE TO THE OTHER RESPONDENTS DISPENSED WITH VIDE ORDER DATED 15.07.2015) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 03.04.2014 PASSED ON I.A.XV IN O.S.No.473/2010 BY THE III ADDITIONAL SENIOR CIVIL JUDGE & CJM, MYSORE, AT ANNEXURE-M AND DISMISS THE APPLICATION FILED BY THE 5TH RESPONDENT AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Defendant No.5 in O.S. No.473/2010 on the file of Prl. Civil Judge (Sr. Dn.), Mysuru, has come up in this writ petition impugning the order dated 03.04.2014 (vide Annexure ‘M’ to the petition) passed on I.A. No.15 in O.S. No.473/2010 on the file of learned III Additional Senior Civil Judge and CJM., Mysore. By the impugned order, the said application filed by plaintiff No.5 (respondent No.5 herein) has been allowed by recalling the earlier order passed by the trial Court dated 07.09.2013. The petitioner has sought for dismissal of the said application in I.A. No.15 (vide Annexure ‘K’ to the petition).
2. Admittedly, the suit in O.S. No.473/2010 is filed by the respondents herein against Madaiah and five others including defendant No.5 (petitioner herein) for the relief of partition and separate possession of their 4/5th share in the suit schedule property, which is agricultural land bearing Sy. No.2/1 measuring 01 Acre 23 guntas situate at Nadanahalli village, Varuna hobli, Mysuru Taluk.
3. It is stated that defendant Nos.1 to 4 in the suit have remained unrepresented. In the said suit, the contesting defendants are defendant Nos.5 and 6. Defendant No.5 (petitioner herein) is the general power of attorney holder of defendant Nos.1 to 4, Puttamadaiah and Siddaiah. Defendant No.6, namely, H.P. Jayaprakash, is the subsequent purchaser of the suit schedule property from defendant No.5.
4. The suit went into trial and when it was posted for further examination-in-chief of DW.1, he wanted to get marked the agreement of sale dated 26.07.1993 and the supplement agreement dated 20.11.1996 in his evidence.
5. The Agreement of Sale dated 26.07.1993 was entered into between defendant Nos.1 to 4, Puttamadaiah and Siddaiah on the one part and A. Papanna (petitioner herein) on the other part, wherein they had sold the suit schedule property for Rs.78,750/- and an advance amount of Rs.75,000/- was paid by the petitioner herein to his vendors. The said document was executed on non-judicial stamp paper of the value of Rs.10/-. The possession of the said property was also delivered to the petitioner under the said agreement of sale. The second part of the document, which is supplement agreement, is dated 20.11.1996, wherein it is stated that the balance sale consideration of Rs.3,750/- was paid by Sri A. Papanna to the aforesaid vendors. The said agreement was executed on non-judicial stamp paper of Rs.10/-.
6. In the proceedings before the trial Court, the defence of the petitioner herein (defendant No.5 in the suit) is that he had entered into an agreement of sale on 26.07.1993 for purchase of the suit schedule property from defendant Nos.1 to 4, Puttamadaiah and Siddaiah. The said agreement of sale was followed by subsequent supplement agreement dated 20.11.1996 wherein receipt of balance of sale consideration of Rs.3,750/- was recorded. Prior to the execution of the said agreement of sale, defendant Nos.1 to 4, Puttamadaiah and Siddaiah had executed general power of attorney dated 29.06.1992 (Annexure ‘D’ to the petition) in favour of defendant No.5 (petitioner herein), wherein liberty was granted to defendant No.5 to sell the suit schedule property to a person/s of his choice. By virtue of the said power of attorney, defendant No.5 (petitioner herein) had sold the suit schedule property in favour of Sri H.P. Jayaprakash (defendant No.6 in the suit) under registered sale deed dated 19.05.2006 (Annexure ‘E’ to the petition). Subsequent to execution of the said general power of attorney and the sale deed, respondents herein had filed the suit in O.S. No.473/2010 for the aforesaid relief.
7. Heard the learned counsel for the petitioner and learned counsel for respondent Nos.5, 16, 17 and 22. Perused the material on record.
8. Admittedly, the said suit is filed about 17 years after the date (26.07.1993) of execution of agreement of sale and about four years after execution of registered sale deed dated 19.05.2006.
9. In the proceedings before the trial Court, the agreement of sale dated 26.07.1993, which was sought to be marked as Ex.D series, was under consideration for impounding for the reason that it was not duly stamped and was inadmissible in evidence and though possession was delivered to defendant No.5 (petitioner herein) under the said agreement of sale, it was not supported by payment of proper stamp duty.
10. The records would indicate that the trial Court by its order dated 06.07.2013, held that the said agreement of sale dated 26.07.1993 was inadmissible in evidence as it was not duly stamped and deficit stamp duty and penalty payable on the said document was in a sum of Rs.7,675/ and Rs.76,750/- respectively. Defendant No.5 made an application in I.A. No.14 under Section 114 of the CPC., read with Section 151 of the CPC., seeking for review of the said order. The trial Court allowed the said application by modifying the order dated 06.07.2013 to the effect that deficit stamp duty and penalty payable on the said agreement of sale was Rs.7,675/- and Rs.15,350/- respectively and the said document would be admissible only if the said deficit duty and penalty were paid by defendant No.5 (petitioner herein).
11. Perusal of the order sheet maintained in the suit, O.S. No.473/2010, discloses that pursuant to the order dated 07.09.2013, stamp duty of Rs.7,675/- and penalty of Rs.15,350/- vide receipt - GQR No.48254 was paid on 19.09.1993.
12. Subsequently, plaintiff No.5 – respondent No.5 herein filed an application in I.A. No.15 under Section 114 read with Section 151 of the CPC., seeking to review the order dated 07.09.2013 passed by the trial Court. Defendant No.5 filed objections to the said application. The trial Court by the impugned order, allowed the application in I.A. No.15 filed by plaintiff No.5 by recalling its order dated 07.09.2013. Further, defendant No.5 (petitioner herein) was directed to pay 10 times duty and penalty on the agreement of sale while directing the office to calculate duty and penalty by 17.04.2014.
13. On going through the order impugned, it is clearly seen that the agreement of sale is dated 26.07.1993 whereas the amendment to the Karnataka Stamp Act 1957 and to the schedule therein which obligates the purchaser under the agreement of sale whereunder possession of the property is delivered to him to pay 10 times duty and penalty as conveyance, is in force with effect from 01.04.1995 i.e., much later than the date on which the agreement was entered into. Therefore, in the fact situation, the order impugned is without any basis and is liable to be set aside.
14. Accordingly, the Writ Petition is allowed. The order dated 03.04.2014 passed by the learned III Additional Senior Civil Judge and CJM., Mysuru, on I.A. No.15 in O.S. No.473/2010 is hereby set aside. It is further observed that the petitioner herein (defendant No.5 in the suit) is at liberty to get the said agreement of sale dated 26.07.1993 and supplement agreement dated 20.11.1996 marked in his evidence. Thereafter, the trial Court shall decide the suit on its merits.
15. In view of the writ petition being disposed of, applications in I.A. Nos.1 and 2 of 2018 do not survive for consideration and the same stand disposed of.
Sd/- JUDGE sma