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Karnataka High Court · body

2019 DIGILAW 979 (KAR)

Siddram v. Abdul Saleem

2019-04-27

P.G.M.PATIL

body2019
JUDGMENT : P. G. M. Patil, J. The defendant being aggrieved by the judgment and decree dated 04.01.2017 passed in OS.No.221/2013 on the file of III Addl. Senior Civil Judge, Kalaburagi has filed this appeal. 2. The parties are referred to with their ranks before the trial Court. 3. The suit of the plaintiffs before the trial Court in brief is as follows: One Janimiya, the father of the plaintiff No. 1 to 4 was the absolute owner in possession of the suit property namely Survey No. 104/C to an extent of 1 acre 6 guntas, Survey No. 104/E to the extent of 18 guntas and Sy.No.104/1/B measuring to the extent of 16 guntas totally measuring 2 acres 04 guntas situated at Brahmpur, Gulbarga till his death on 30.04.2000 and he left behind the plaintiffs and mother of the plaintiffs namely Rabiya Begum as his heirs and successors. After his death, the suit property were nominally mutated in the name of the mother of the plaintiffs. By taking advantage of her name in the revenue records, the defendant prevailed upon her and obtained a fictitious sale deed executed by her in his favour, no consideration was paid and entire sale between mother of the plaintiffs and defendant was sham and bogus. The mother of the plaintiffs was not competent to sell the property in which the plaintiffs have right. However, on the protest that the signatures of the plaintiff Nos. 1 and 2 was necessary for the parties of litigation pending before the Tahasildar, the defendant obtained signature on some document which subsequently came to the knowledge of the plaintiff Nos. 1 and 2 that it was a sale deed executed by mother of plaintiff Nos. 1 to 4 in favour of defendant. Therefore, plaintiff Nos. 3 and 4 filed a suit for partition before the Prl. Civil Judge, Sr.Dn. Gulbarga in O.S.No.21/2005. The present defendant was defendant No. 4 in the said suit and though he has denied the claim of the plaintiffs, he asserted that he has purchased the suit property for valid consideration. Therefore, the matter was compromised wherein the defendant agreed to pay the balance consideration amount of Rs.8,50,000/- and accordingly the compromise decree was passed. However, the defendant failed to comply the terms and conditions of the compromise and defrayed the plaintiffs. Therefore, the matter was compromised wherein the defendant agreed to pay the balance consideration amount of Rs.8,50,000/- and accordingly the compromise decree was passed. However, the defendant failed to comply the terms and conditions of the compromise and defrayed the plaintiffs. Therefore, the compromise agreement in O.S.No.21/2005 was never acted upon and the title does not pass to the defendant under the sale deed on which he relies. Thereafter, the plaintiffs had filed O.S.No.203/2013 on the file of II Addl. Civil Judge & JMFC, Kalaburagi which was subsequently withdrawn owning to some material defects. Thereafter, the plaintiffs filed the present suit seeking declaration that they are the absolute owners of the suit schedule properties and the sale deed executed by their mother in favour of the defendant is null and void. 4. In pursuance of the summons, defendant appeared before the trial Court through counsel and filed his written statement. The defendant has admitted that one Janimiya was owner of the suit property and after his death his wife Rabiya Begum succeeded to the said property. The said Rabiya Begum after receiving entire sale consideration amount executed a registered sale deed in his favour on 02.11.2004 in respect to the suit property. The plaintiff Nos. 1 and 2 have also signed the sale deed as witnesses Nos. 4 and 5. He has denied that the defendant taking advantage of the name appearing in the revenue records prevailed upon Rabiya Begum and obtained fictitious sale deed in his name. He further contended that in view of the settlement among the plaintiffs their mother and the defendant a compromise decree was passed in O.S.No.21/2005 on the file of Prl. Senior Civil Judge, Kalaburagi way back on 11.08.2005. However, it is a fact that cheque issued by the defendant in favour of mother of the plaintiffs was bounced, but later on the defendant has paid the amount covered under the dishonored cheque to the mother of the plaintiffs. He has denied that in the said compromise, he has admitted that he has not paid the consideration amount and was to pay balance of Rs.8,50,000/-. The plaintiffs in collusion with their mother filed the said suit in order to extract money from the defendant and the said suit was collusive one. He has denied that in the said compromise, he has admitted that he has not paid the consideration amount and was to pay balance of Rs.8,50,000/-. The plaintiffs in collusion with their mother filed the said suit in order to extract money from the defendant and the said suit was collusive one. The defendant agreed to pay a sum of Rs.8,50,000/- in addition Rs.2,00,000/- which was already paid towards consideration through the execution of the registered sale deed. Therefore, the defendant is absolute owner and possessor of the suit property by virtue of sale deed in his favour. He has denied that the terms of the compromise have not been complied with in fact plaintiffs filed O.S.No.203/2013 and subsequently withdrew it. No cause of action arose for the plaintiffs to file the present suit after lapse of 7-8 years from the date of decree passed in O.S.No.21/2005. The plaintiffs have no right to seek declaration that the sale deed is void. Therefore, the suit is liable to be dismissed. 5. On the basis of the pleadings of the parties, the trial Court framed the following issues. 1. Whether the plaintiffs prove that they are the lawful owners of the suit property? 2. Whether the plaintiffs prove that the sale deed 03.11.2004 executed by plaintiffs' mother in favour of defendant is null and void and is not binding upon them? 3. Whether the defendant proves that the plaintiffs' mother Rabiya Begum has law full sold the suit property in his favour? 4.Whether the defendant proves that this suit is hit by the Principles of Estoppel? 5. Whether defendant proves that this suit is barred by limitation? 6. Whether the plaintiffs are entitled for the reliefs? 7. What order or decree? 6. In support of their case, the plaintiff No. 2 was examined as PW1 and they got examined three witnesses as PW2 to PW4 and got marked 8 documents as Ex.P1 to Ex.P8. The defendant got examined himself as DW1 and produced 7 documents at Ex.D1 to Ex.D7. The learned Judge of the trial Court after hearing both the parties, answered issue Nos. 1, 2 and 6 in the affirmative and issue Nos. 3 to 5 in the negative and consequently decreed the suit of the plaintiffs against defendant, it is declared that the plaintiff Nos. The learned Judge of the trial Court after hearing both the parties, answered issue Nos. 1, 2 and 6 in the affirmative and issue Nos. 3 to 5 in the negative and consequently decreed the suit of the plaintiffs against defendant, it is declared that the plaintiff Nos. 1 to 4 and their mother Rabiya Begum are the owners of the suit property and defendant is restrained from alienating, encumbering and creating third party interest over the suit schedule property. It is further declared that the sale deed document No. P-1576/04-05 dated 03.11.2004 executed by mother of the plaintiffs in favour of the defendant in respect of the suit schedule property is null and void and not binding on the plaintiffs. 7. The defendant being aggrieved by the said judgment and decree has filed this appeal on the following grounds. (1) The judgment and decree passed by the Court below is against the well settled law and facts of the case there is a miscarriage of justice. (2) The Court below did not properly and judiciously scrutinize the documents filed by the defendant in right prospective and as thus landed itself in error by answering issues against the defendant. (3) The Court below did not properly look into the terms of the compromise decree passed in O.S.No.21/2005 especially at page No. 4 para No. 2 (ii and iii) wherein it is clearly admitted by the plaintiff Khairunnisa Begum that she has received a sum of Rs.75,000/- from the defendant on the date of compromise. Similarly plaintiff No. 3 has admitted that he has received Rs.1,25,000/- and Rabiya Begum received a cheque for Rs.25,000/- and another sum of Rs.1,25,000/- under Ex.D3 and Ex.D4. (4) The Court below failed to look into the fact that another sum of Rs.40,000/- and Rs.50,000/- were paid to plaintiffs No. 1 and 2 through SBH Banker cheque, the counter foils of the receipts were produced at Ex.D5 and Ex.D6. (5) The sale deed executed by the late mother of the plaintiffs at Ex.P1 has merged in the compromise decree Ex.P8 and the compromise decree is not challenged. Under the circumstances, the Court below erred in declaring the sale deed as null and void and not binding upon the plaintiffs. (5) The sale deed executed by the late mother of the plaintiffs at Ex.P1 has merged in the compromise decree Ex.P8 and the compromise decree is not challenged. Under the circumstances, the Court below erred in declaring the sale deed as null and void and not binding upon the plaintiffs. (6) The fact remains that the plaintiffs mother had received Rs.2,00,000/- from the defendant and executed the sale deed, but the plaintiffs have taken a different stand stating that defendant has not paid consideration amount to their mother. 8. On these grounds, the appellant, defendant has prayed for setting aside the impugned judgment and decree and for dismissal of the suit of the plaintiffs. 9. Notice on the respondents are served, they are un represented. 10. Heard the learned counsel for the appellant, the following points arise for consideration for the disposal of the above appeal. (1) Whether the plaintiffs have proved that the sale deed dated 03.11.2004 executed by their mother in favour of defendant is null and void and not binding on them? (2) Whether the impugned judgment and decree is perverse, illegal against the material on record and law and as such is liable to be set aside? (3) What order? 11. Point Nos. 1 and 2: The learned counsel for the appellant defendant vehemently submitted that there is no dispute that the father of the plaintiffs one Janimiya was the owner of the suit property, after his death his wife Rabiya bee succeeded to the suit property and that the said Rabiya bee has executed a registered sale deed dated 03.11.2004 in favour of the defendant for a consideration of Rs. 2,00,000/- and that plaintiff Nos. 1 and 2 have also attested the sale deed as witnesses. Therefore, the contention of the plaintiffs before the trial Court that no sale consideration was paid in respect of the sale deed and therefore, the sale deed is sham and without consideration cannot be accepted. The learned counsel further submitted that in view of the suit filed by the plaintiffs in O.S.No.21/2005, the defendant in order to settle the dispute agreed to the terms and conditions of the compromise and accordingly compromise decree as per Ex.P8 came to be passed. However, the plaintiffs raised objections for the mutation of the name of the defendant in respect of the suit property. However, the plaintiffs raised objections for the mutation of the name of the defendant in respect of the suit property. Therefore, the defendant was not liable to pay the amount agreed under the compromise decree since the plaintiffs themselves violated condition No. 3 in the compromise decree. The learned counsel for the appellant further submitted that the trial Court failed to consider the terms and conditions of the compromise decree in proper perspective and thereby has erroneously decreed the suit of the plaintiffs. It was further contended that on execution of the registered sale deed by the mother of the plaintiffs in favour of the defendant the agreed consideration amount was duly paid to her and therefore, the transaction of sale was complete and as such the defendant has become absolute owner of the suit schedule property. However, the defendant agreed to pay additional amount under the compromise decree only in order to settle the dispute with the plaintiffs and on that ground the sale deed which was duly executed and registered cannot be held as null and void. It is also contended that what was agreed to be paid under the compromise decree is not towards sale consideration, but an additional amount only to settle the dispute. Therefore, the impugned judgment and decree is liable to be set aside. 12. For the reasons best known to the respondents, they have remained un represented. 13. It is not disputed that father of the plaintiff Nos. 1 to 4 Janimiya was absolute owner of the suit schedule property and after his death, the name of his wife Rabiya Begum was mutated as heir and successor. Subsequently the said Rabiya Begum executed the registered sale deed in favour of the defendant on 03.11.2004 by receiving consideration of Rs.2,00,000/- and admittedly plaintiff Nos. 1 and 2 have attested the said sale deed as witnesse Nos. 4 and 5. Therefore, once registered sale deed was executed, the title to the property passes to the purchaser. It appears plaintiff Nos. 3 and 4 who have not attested the sale deed as witnesses were set up by plaintiff Nos. 1 and 2 and their mother to file O.S.No.21/2005 for partition and separate possession of their share and the present defendant who had purchased the suit property was arrayed as defendant No. 4 in the said suit. It appears plaintiff Nos. 3 and 4 who have not attested the sale deed as witnesses were set up by plaintiff Nos. 1 and 2 and their mother to file O.S.No.21/2005 for partition and separate possession of their share and the present defendant who had purchased the suit property was arrayed as defendant No. 4 in the said suit. Ultimately the said suit came to be compromised between the plaintiffs and the defendant herein and consequently the compromise decree as per Ex.P8 was passed. The trial Court ought to have considered the terms and conditions under compromise decree in order to decide as to whether the plaintiffs are still owners of the suit schedule property and whether the sale deed executed in favour of defendant is null and void. 14. The compromise decree passed in O.S.No.21/2005 is produced at Ex.P8. The terms and conditions in this compromise decree are very much material in deciding rights of the parties. The term No. 1 in the compromise decree provides that the parties to the suit admit that the plaintiffs and defendant Nos. 2 and 3 are sons and daughters of defendant No. 1 Rabiya Begum and defendant No. 4 is the purchaser of the suit land. The defendant No. 4 in the said suit is none other than the present defendant Siddaram. Therefore, the plaintiffs in the said suit have admitted that the present defendant is the purchaser of the suit lands. Term No. 2 provides that defendant No. 4 admits to pay consideration amount of Rs.8,50,000/- towards the share of the plaintiffs and defendant Nos. 1 to 3. In this regard, in term No. 2 sub-clauses (i) to (iii) have been mentioned separately. Under sub clause (i) the defendant herein paid Rs.75,000/- in cash to plaintiff No. 1 Khairunnisa Begum and she acknowledged the same under the said compromise decree. Under class defendant herein has paid Rs.1,25,000/- to plaintiff No.2 Raziya bee towards her share and she has acknowledged the same. Further, the defendant issued a post dated cheque for Rs.25,000/- and Rs.1,00,000/- in favour of plaintiff No. 2 which also she has acknowledged. Under class defendant herein has paid Rs.1,25,000/- to plaintiff No.2 Raziya bee towards her share and she has acknowledged the same. Further, the defendant issued a post dated cheque for Rs.25,000/- and Rs.1,00,000/- in favour of plaintiff No. 2 which also she has acknowledged. Sub-clause (iii) is also material under this clause, it is stated that the defendant herein has agreed to pay sum of Rs.1,50,000/- to the defendant No. 1 in that suit Rabiya Begum and Rs.2,50,000/- to defendant No. 2 Abdul Saleem and another sum of Rs.2,50,000/- to defendant No. 3 Abdul Nayeem under receipt soon after mutation of the suit land in his name namely in the name of defendant. Therefore, under sub clause (iii) the defendant herein was under an obligation to pay Rs.1,50,000/- and Rs.2,50,000/- and another Rs.2,50,000/- to defendant Nos. 1 to 3 respectively in the said suit only after mutation of the name of the defendant in respect of the suit land. However, defendant has proved before the trial Court that the plaintiffs raised objections for mutation of his name in the record of rights of the suit land and therefore, the mutation was not effected in the name of the defendant. This aspect of matter was not at all considered by the trial Court properly. 15. The contention of the plaintiffs before the trial Court that the compromise decree was not at all acted upon and that the cheque issued by the defendant were dishonored cannot be accepted. It is true that the cheques issued by the defendant in favour of plaintiff No. 2 were dishonored and there were proceedings under Section 138 of the N.I.Act and subsequently the defendant had paid the cheque amount under Ex.D3 and Ex.D4. The defendant has also produced the objections filed by the plaintiffs before the Assistant Commissioner, Kalaburagi for mutation of the name of the defendant at Ex.D7. Therefore, it is crystal clear that plaintiffs themselves raised objection for effecting mutation of the name of the defendant in the revenue records of the suit land which is against the sub-clause term No. 2 in the compromise decree Ex.P8. The defendant was required to pay the agreed amount to defendant Nos. 1 to 3 in the said suit only after the mutation of his name in the revenue records of the suit land. The defendant was required to pay the agreed amount to defendant Nos. 1 to 3 in the said suit only after the mutation of his name in the revenue records of the suit land. Therefore, absolutely there is no breach of the terms and conditions of the compromise decree by the defendant. On the other hand, the breach was committed by plaintiffs by raising objections before the Assistant Commissioner, Kalaburagi for effecting the mutation in the name of the defendant. Therefore, the document produced by the defendant in this regard were not properly considered by the Court below. 16. The learned Judge of the trial Court proceeded to hold that the sale deed executed by the mother of the plaintiffs in favour of defendant is without consideration and that the defendant has committed breach of the terms and conditions of the compromise decree, this is against the material on record. The plaintiffs themselves have admitted in clear terms under compromise decree under Ex.P8 in the first term itself that the defendant is the purchaser of the suit land i.e. Survey No. 104/C to an extent of 1 acre 6 guntas, Survey No. 104/E measuring 18 guntas and Sy.No.104/1Ae measuring 16 guntas of Brahmpur village, Jewargi Road, Gulbarga. Therefore, absolutely there was no dispute that the defendant herein is the purchaser of the suit land and a registered sale deed was executed in favour of the defendant by the mother of the plaintiffs as per Ex.P1. Once the sale deed was duly registered and the vendor has admitted the receipt of the consideration mentioned in the sale deed, the title over the property in respect of the sale deed passes to the purchaser and therefore, the said sale deed cannot be declared as null and void. The entire suit of the plaintiffs was based on the compromise decree Ex.P8 and case of the plaintiffs is that the defendant has failed to comply the terms and conditions of the compromise decree, this contention cannot be accepted. Under the compromise decree itself plaintiff No. 1 has acknowledged the receipt of Rs.75,000/- from the defendant towards her share and plaintiff No. 2 Rabiya Begum has acknowledged the receipt of Rs.1,25,000/- from the defendant towards her share in addition to the cheque issued by the defendant which were subsequently paid. Under the compromise decree itself plaintiff No. 1 has acknowledged the receipt of Rs.75,000/- from the defendant towards her share and plaintiff No. 2 Rabiya Begum has acknowledged the receipt of Rs.1,25,000/- from the defendant towards her share in addition to the cheque issued by the defendant which were subsequently paid. Therefore, the only clause (iii) remained in the compromise decree under which the defendant herein was obliged to pay sum of Rs.1,50,000/-, Rs.2,50,000/- and another Rs.2,50,000/- to defendant Nos. 1 to 3 in the said suit only after mutation of his name in the records of the suit schedule land. Further under the term No. 3, the plaintiffs have clearly admitted that "the defendant No. 4 Siddaram s/o Hanmanth Rao Gangani is the absolute owner and possessor of the said suit lands. That, in pursuance with this compromise, the defendant No. 4 is entitled to get his name mutated in the revenue and other concerned City Corporation and City Survey records at his costs for which the defendants 1 to 3 have no objection". Therefore, in spite of this term, the plaintiffs themselves objected for mutation of the name of the defendant in the concerned revenue records, thereby there is a breach of term No. 3 under the compromise decree by the plaintiffs and absolutely there is no fault on the part of the defendant. The plaintiffs having admitted that the present defendant is the absolute owner and possessor of the suit land, now they cannot turn round and contend that they are the absolute owners of the suit land. Under these circumstances, I hold that the plaintiffs have failed to prove that the sale deed dated 03.11.2004 executed by their mother in favour of defendant is null and void and not binding on them. Therefore, point No. 1 is answered in the negative. 17. In view of my finding on point No. 1, the impugned judgment and decree has to be held as perverse, illegal, against material on record and law and as such the same is liable to be set aside. The trial Court has misinterpreted clauses in the compromise decree Ex.P8 and has erroneously held that the sale deed executed by the mother of the plaintiffs is null and void ignoring the provisions of the Indian Registration Act. The trial Court has misinterpreted clauses in the compromise decree Ex.P8 and has erroneously held that the sale deed executed by the mother of the plaintiffs is null and void ignoring the provisions of the Indian Registration Act. Even, the plaintiffs have admitted that the defendant is the purchaser and absolute owner of the suit land as per the terms of the compromise decree Ex.P8. The finding recorded by the trial Court that no consideration was passed to the plaintiffs as per the terms of the compromise decree is perverse. The sale consideration had already passed when the sale deed was duly executed and registered, what was agreed to be paid under the compromise decree is only an additional amount towards share of the plaintiffs only in order to settle the dispute. Therefore, the impugned judgment and decree is held as perverse, illegal and against the material on record and as such the same is liable to be set aside. Accordingly, point No. 2 is answered in the affirmative. 18. Point No. 3. In view of my findings on point No. 1 and 2 and also for the aforesaid reasons, the appeal succeeds. Accordingly, I proceed to pass the following:- ORDER Regular First Appeal filed under Order 41, Rule 1, CPC R/w Section 96 of CPC is hereby allowed with costs. The judgment and decree dated 04.01.2017 passed in OS.No.221/2013 by the III Addl. Senior Civil Judge, Kalaburagi is hereby set aside. The suit of the plaintiffs is dismissed with costs.