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2023 DIGILAW 1303 (KAR)

Bhagyamma v. N. G. E. F. Employees And Ex-Employees House Building Co-Operative Society Ltd.

2023-11-10

S.R.KRISHNA KUMAR

body2023
JUDGMENT S.R. Krishna Kumar, J. This appeal by the unsuccessful plaintiff in O.S.No.10464/2015 is directed against the impugned judgment and decree dated 01.07.2016, passed by the XXII Addl. City Civil & Sessions Judge, Bengaluru, whereby, the said suit filed by the appellant-plaintiff against the respondent-defendant for permanent injunction and other reliefs in relation to the suit schedule immovable property was dismissed by the trial Court. 2. Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record. 3. Perusal of the material on record including the impugned judgment would indicate that the appellantplaintiff instituted the aforesaid suit, inter alia, contending that the suit schedule property originally belonged to her vendor C.Krishnappa, who acquired the same vide registered sale deed dated 12.05.2014 executed by the respondent-society in favour of Krishnappa, which was executed by the respondent-defendant in favour of the said Krishnappa. It was also contended that the respondent-society had issued allotment letter dated 20.10.2014 and possession certificate also dated 20.10.2014 in favour of the said Krishnappa and put him in actual and physical possession and enjoyment of the suit schedule property. The plaintiff contended that vide registered sale deed dated 14.11.2014, the aforesaid Krishnappa sold, transferred and conveyed the suit schedule property absolutely in favour of the appellantplaintiff and put her in lawful and peaceful possession and enjoyment of the suit schedule property, pursuant to which, the appellant became the absolute owner in possession and enjoyment of the suit schedule property. It was also contended that the revenue records in relation to the suit schedule property have been made out in the name of the appellant-plaintiff and the Bangalore Development Authority ("BDA") has also issued site allotment letter, site release certificate and correct dimension report as well as an endorsement, all of which clearly establish that the appellant was in lawful and peaceful possession and enjoyment of the suit schedule property and since the respondent and its officials are attempting to interfere with the appellant's peaceful possession and enjoyment of the suit schedule property, the appellant was constrained to institute the instant suit for permanent injunction and other reliefs. 4. The material on record reveals that the respondent-defendant having entered appearance before the trial Court did not file its written statement nor contested the suit. 5. 4. The material on record reveals that the respondent-defendant having entered appearance before the trial Court did not file its written statement nor contested the suit. 5. The plaintiff examined herself as PW.1 and the documentary evidence at Exs.P-1 to P-18 were marked on her behalf. Respondent-defendant did not cross-examine PW.1 nor adduce any oral and documentary evidence on his behalf and did not even argue the matter on merits. Despite the aforesaid facts and circumstances and the complete non-contesting of the suit by the respondent- judgment and decree dismissing the suit filed by the appellant-plaintiff who is before this Court by way of the present appeal. 6. During the pendency of the present appeal, the appellant has filed an application under Order XLI Rule 27 of the Code of Civil Procedure Code, 1908 along with copy of the no objection and no due certificate issued by the respondent-society in favour of the plaintiff's vendor C.Krishnappa. The appellant has also produced copy of the bye-laws of the respondent-society. It is contended that the said bye-laws of the society permit the allottee to sell the suit schedule property in favour of third parties after obtaining necessary no objection certificate from the society and the procedure in this regard has been followed by the plaintiff's vendor C.Krishnappa who obtained the same from the respondent-society and executed the sale deed in favour of the appellant. It is, therefore, submitted that the said documents are relevant and necessary for the purpose of adjudication of the present appeal. The respondent-society has not filed its statement of objections to the said application. 7. After having heard both sides, the following points arise for consideration in the present appeal: (i) Whether the appellant has made out sufficient grounds to allow I.A.No.1/2016 filed under Order XLI Rule 27 CPC? (ii) Whether the impugned judgment and decree passed by the trial Court warrants interference by this Court in the present appeal? 8. 7. After having heard both sides, the following points arise for consideration in the present appeal: (i) Whether the appellant has made out sufficient grounds to allow I.A.No.1/2016 filed under Order XLI Rule 27 CPC? (ii) Whether the impugned judgment and decree passed by the trial Court warrants interference by this Court in the present appeal? 8. Point No.l: Perusal of the impugned judgment and decree will indicate that the main ground on which the trial Court has dismissed the suit for permanent injunction filed by the appellant-plaintiff is by coming to the conclusion that the sale deed executed by the plaintiff's vendor, C.Krishnappa was within the non-alienation period of five years as stipulated in the allotment letter dated 20.10.2014 (Ex.P- prohibit the said Krishnappa from selling the suit schedule property in favour of third parties during the subsistence of the non-alienation period. However, in order to establish that Krishnappa was entitled to execute the sale deed in her favour, the appellant-plaintiff has filed I.A.No.1/2016 along with the copy of the no objection certificate and the bye-laws of the respondent-society, in particular, bye-law No.57(14) which permits the allottee to sell the suit schedule property after obtaining necessary no objection certificate from the society, which has been issued in favour of the said Krishnappa as can be seen from document No.1 produced by the appellant. Under the circumstances, I am of the considered opinion that the documents produced by the appellant comprising of the no objection certificate and no due certificate as well as the bye-laws of the society are relevant and the material for the purpose of adjudication of the issues in controversy between the parties, particularly, in light of the finding recorded by the trial Court that the sale in favour of the plaintiff was within the non-alienation period. Consequently, I.A.No.1/2016 is allowed and the documents produced along with the same are received on record. 9. Point No.2: The next question that arises for consideration is, as to whether production of the additional documents by the appellant-plaintiff which has been permitted by this Court while answering point No.1 would require the appeal to be remitted back to the trial Court. 9. Point No.2: The next question that arises for consideration is, as to whether production of the additional documents by the appellant-plaintiff which has been permitted by this Court while answering point No.1 would require the appeal to be remitted back to the trial Court. In this context, it is relevant to state that, apart from the fact that the respondent-society has not filed any objection to I.A.No.1/2016 with regard to legality, validity and genuineness of the additional documents, the documents to be produced by the appellant along with I.A.No.1/2016 has not been disputed by the respondent-society and as such, in my considered opinion, remanding the matter back to the trial Court for the purpose of considering the circumstances of the case. 10. As stated supra, the main ground on which the trial Court dismissed the suit is by coming to the conclusion that the sale deed executed by C.Krishnappa in favour of the plaintiff was within the non-alienation period. However, in light of the additional documents produced by the appellant, which clearly establish that the no objection certificate was issued in favour of the said Krishnappa on 12.11.2014 prior to execution of the sale deed at Ex.P-1 dated 14.11.2014 in favour of the appellant-plaintiff, I am of the considered opinion that the trial Court committed an error in dismissing the suit for permanent injunction filed by the appellant, particularly, when the unimpeached pleadings and evidence of the plaintiff (PW.1) and the documentary evidence at Exs.P-1 to P-18 conclusively establish that the plaintiff was in lawful and peaceful possession and enjoyment of the suit schedule property. In the circumstances, the impugned judgment and decree the material on record, the same deserves to be set aside and the suit of the plaintiff deserves to be decreed. Accordingly, point No.2 is also answered in favour of the appellant-plaintiff. 11. In the result, I pass the following: ORDER (i) The appeal is hereby allowed. (ii) The impugned judgment and decree dated 01.07.2016, passed in O.S.No.10464/2015 is hereby set aside. (iii) The suit of the plaintiff is decreed as prayed for.