Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 183 (KAR)

Nanjundappa v. John Joseph

2023-02-01

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. These two appeals are listed for admission. Heard the learned counsel appearing for the appellant in both the appeals. 2. These appeals are filed challenging the judgment and decree dtd. 25/10/2018 passed in R.A.No.133/2014 and R.A.No.134/2014, respectively on the file of the I Additional District Judge at Kolar. 3. The appellant is the defendant in O.S.No.180/2011, wherein, the plaintiff is one John Joseph, contended that he has purchased the suit property from M. Jayakumari, Radhika and Malathi for a sale consideration of Rs.90, 000.00 on 10/1/2007. Since from the date of purchase he is in possession of the property and the revenue records also mutated in his favour. The defendant is very powerful in the locality who has not cared the advise of the elders and causing interference. Hence, filed a suit for declaration and permanent injunction. 4. In pursuance of the suit summons, the defendant appeared and filed the written statement by denying the entire averments made in the plaint. It is contended that the alleged vendors of the plaintiff have no right to sell the suit schedule property. Hence, the plaintiff has not acquired any title over the suit schedule property. It is contended that the mutation bearing M.R.No.41/06-07 has been cancelled by the Tahasildar against which an appeal was filed in RA.No.332/11-12 before the Assistant Commissioner, Kolar, which is pending. It is contended that the property bearing Sy.No.105 totally measures 6 acres which originally belongs to Ramachandrachari. He has sold the said land to him by executing a sale agreement and handed over the possession. Since Ramachandrachari has not executed the sale deed, he has filed a suit in O.S.No.23/2009 against Ramachandrachari, the same came to be decreed. Then he has filed Ex.Pet.No.9/2009 and obtained the sale deed through the Court and he has been enjoying the property. It is also contended that another suit filed by one Rayappa in O.S.No.179/2011, which is in respect of remaining 3 acres of land. The plaintiff has no manner of right over the suit schedule property and was never in possession of the property. Hence, the Trial Court by considering the pleadings of both the cases framed issue Nos.1 to 4. 5. The plaintiff in order to substantiate his contention examined himself of P.W.1 and also examined one witness as P.W.2 and got marked the documents as Exs.P1 to P5. Hence, the Trial Court by considering the pleadings of both the cases framed issue Nos.1 to 4. 5. The plaintiff in order to substantiate his contention examined himself of P.W.1 and also examined one witness as P.W.2 and got marked the documents as Exs.P1 to P5. On the other hand, the defendant examined himself as D.W.1 and also examined two witnesses as D.W.2 and D.W.3 and got marked the documents as Exs.D1 to D13. 6. The Trial Court after considering the material available on record answered issue Nos.1 and 2 as 'affirmative' and issue No.3 as 'negative' with regard to his claim of decree obtained in O.S.No.23/2009 and came to the conclusion that the said decree is obtained with collusiveness of the plaintiff suppressing the material. The Trial Court after considering both oral and documentary evidence placed on record has decreed the suit and passed an order of permanent injunction. Hence, an appeal is filed by the appellant/defendant in RA No.133/2014 before the First Appellate Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the present second appeal in R.S.A.No.149/2019 is filed before this Court. 7. The appellant is the defendant in O.S.No.179/2011, wherein, the plaintiff is one Rayappa, contended that he has purchased the suit property from M. Jayakumari, Radhika and Malathi for a sale consideration of Rs.90, 000.00 on 10/1/2007. Since from the date of purchase he is in possession of the property and the revenue records also mutated in his favour. The defendant is very powerful in the locality who has not cared the advise of the elders and causing interference. Hence, filed a suit for declaration and permanent injunction. 8. In pursuance of the suit summons, the defendant appeared and filed the written statement by denying the entire averments made in the plaint. It is contended that the alleged vendors of the plaintiff have no right to sell the suit schedule property. Hence, the plaintiff has not acquired any title over the suit schedule property. It is contended that the mutation bearing M.R.No.40/06-07 has been cancelled by the Tahasildar against which an appeal was filed in RA.No.333/11-12 before the Assistant Commissioner, Kolar, which is pending. It is contended that the property bearing Sy.No.105 totally measures 6 acres which originally belongs to Ramachandrachari. Hence, the plaintiff has not acquired any title over the suit schedule property. It is contended that the mutation bearing M.R.No.40/06-07 has been cancelled by the Tahasildar against which an appeal was filed in RA.No.333/11-12 before the Assistant Commissioner, Kolar, which is pending. It is contended that the property bearing Sy.No.105 totally measures 6 acres which originally belongs to Ramachandrachari. He has sold the said land to him by executing a sale agreement and handed over the possession. Since Ramachandrachari has not executed the sale deed, he has filed a suit in O.S.No.23/2009 against Ramachandrachari, the same came to be decreed. Then he has filed Ex.Pet.No.9/2009 and obtained the sale deed through the Court and he has been enjoying the property. It is also contended that another suit filed by one Joseph in O.S.No.180/2011 is in respect of remaining 3 acres of land. The plaintiff has no manner of right over the suit schedule property and was never in possession of the property. Hence, the Trial Court by considering the pleadings of both the cases framed issue Nos.1 to 4. 9. The plaintiff in order to substantiate his contention examined himself of P.W.1 and also examined one witness as P.W.2 and got marked the documents as Exs.P1 to P4. On the other hand, the defendant examined himself as D.W.1 and also examined two witnesses as D.W.2 and D.W.3 and got marked the documents as Exs.D1 to D13. 10. The Trial Court after considering the material available on record answered issue Nos.1 and 2 as 'affirmative' and issue No.3 as 'negative' with regard to his claim of decree obtained in O.S.No.23/2009 and came to the conclusion that the said decree is obtained with collusiveness of the plaintiff suppressing the material. The Trial Court after considering both oral and documentary evidence placed on record has decreed the suit and passed an order of permanent injunction. Hence, an appeal is filed by the appellant/defendant in RA No.134/2014 before the First Appellate Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the present second appeal in R.S.A.No.148/2019 is filed before this Court. 11. Hence, an appeal is filed by the appellant/defendant in RA No.134/2014 before the First Appellate Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the present second appeal in R.S.A.No.148/2019 is filed before this Court. 11. The main contention of the learned counsel appearing for the appellant is that both the Courts have committed an error in accepting the case of the plaintiffs and already there was a decree in favour of the defendant in O.S.No.23/2009 and Sale Deed also executed by the Court in Ex.No.9/2009. The learned counsel would vehemently contend that the substantial question of law is with regard to both the Courts are not justified in properly appreciating Exs.D12 and D13, which are the suits filed by the respondents viz., Rayappa and John Joseph for permanent injunction, which came to be dismissed and attained its finality. By ignoring the same, the decree has been passed by both the Trial Court as well as the First Appellate Court and confirmed the same. Both the Courts have ignored Exs.D9 to D11, which reveals that the revenue entries made in favour of respondents is being stayed and over looking the same, the judgment and decree had been granted and the same requires interference. 12. In a similar set of facts in O.S.No.180/2011, the plaintiff - John Joseph has claimed that he had purchased the property from the legal heirs of Mani vide sale deed dtd. 10/1/2007 and he has been put in possession and the defendant is claiming rights. Hence, without having any other alternative remedy, sought for an order of declaration. Similar defense was also taken by the appellant/defendant in the said suit. The Trial Court after considering both oral and documentary evidence placed on record has decreed the suit and passed an order of permanent injunction. 13. Similar grounds are also urged in the second appeal that the Trial Court as well as the First Appellate Court have committed an error in not considering the documents - Exs.D12 and D13, wherein, the Courts are rejected the prayer of permanent injunction sought by the plaintiffs and also failed to take note of Exs.D1, D3, D4 and D6 to D8. Hence, this Court has to admit both the appeals and framed the substantial question of law. 14. Hence, this Court has to admit both the appeals and framed the substantial question of law. 14. Having heard the learned counsel appearing for the appellant and also on perusal of the material available on record in both the suits in O.S.No.179/2011 and O.S.No.180/2011, wherein, both the respective plaintiffs have claimed that they have purchased the property from the legal heirs of Mani for a sale consideration on 10/1/2007 and thereafter the documents are transferred in their name and they are in possession of the property. In both the suits defendant is the same and took the defense that he had obtained the decree in O.S.No.23/2009 and by virtue of execution proceedings in Ex.No.9/2009, the defendant has perfected the title and possession of 6 acres including the suit schedule property in both the suits. The Trial Court having considered the material available on record came to the conclusion that the property originally belongs to Ramachandrachari and in turn he has sold the property in favour of Mani and also it is the claim of the said Ramachandrachari that after selling the property in favour of Mani once again he had entered into a sale agreement dtd. 29/4/1991 and he also filed a suit for specific performance in O.S.No.398/2007. Both First Appellate Court and Trial Court have taken note of the fact that this appellant/defendant has obtained the compromise decree on 5/2/2009 and the suit was filed on 23/1/2009 i.e., within 15 days of filing of the suit. 15. It is also observed by both the Courts that when the suit was filed by Ramachandrachari in O.S.No.398/2007 and during the pendency of the said suit and also the suit filed by the plaintiffs in O.S.No.214/2007 and O.S.No.215/2007 against the said Ramachandrachari and he had suppressed the same and entered into a compromise with the defendant in O.S.No.23/2009 and also taken note of the fact that once the property was already sold in favour of vendors of the plaintiffs herein based on the alleged agreement of sale, he cannot convey any title in favour of this defendant. The Trial Court also taken note of the documents, which are standing in the name of the plaintiffs subsequent to purchasing of the property i.e., sale deed - Ex.P1 in both the suits and mutation register extract and RTC extract and also Ex.P4, certified copy of the judgment and decree which was dismissed, the same was filed by the said Ramachandrachari and came to the conclusion that the vendors of the plaintiffs have conveyed the title in favour of the plaintiffs and the judgment and decree obtained in O.S.No.23/2009 is a collusive decree and no doubt, Sale Deed was executed based on the said collusive decree in Ex.No.9/2009, the same is also filed against the said Ramachandrachari. Both the Courts came to the conclusion that it will not create any title over the suit schedule property since the said Ramachandrachari has already transferred his title to R. Mani by executing a Sale Deed. The vendors are the legal representatives of the said R. Mani, who have sold the property in favour of the plaintiffs in the year 2007 itself and taking into material on record both the Trial Court as well as the First Appellate Court came to the conclusion that the right which has been claimed by the defendant under the decree in O.S.No.23/2009 is a collusive decree and the concurrent finding is given by both the Courts and the fact that the compromise was also entered during the pendency of other three suits is also not in dispute. Before that already there was a sale in favour of the plaintiffs herein that too by the legal heirs of the said Mani. Once the property was already sold by Ramachandrachari in favour of the vendor's father and he was not having any title and instead of they have entered into a compromise with this defendant even though he was not having any right in respect of the suit schedule property. Admittedly, both plaintiffs have purchased 3 acres of land each, which is in respect of Sy.No.102. When such being the material available on record, I do not find any error committed by the Trial Court and also the First Appellate Court in appreciating both oral and documentary evidence placed on record. 16. The main contention of the learned counsel appearing for the appellant that Exs.D12 and D13 are not considered by the Trial Court and the First Appellate Court. 16. The main contention of the learned counsel appearing for the appellant that Exs.D12 and D13 are not considered by the Trial Court and the First Appellate Court. No doubt, those suits are filed for the relief of permanent injunction. But in these suits sought for comprehensive decree of declaration and injunction based on the title, which they have bought. Hence, I do not find any error committed by the Trial Court as well as the First Appellate Court in both the suits in declaring the respective plaintiffs are the absolute owners of the suit schedule property and granted the relief of permanent injunction. The claim of the appellant in both the appeals is that he is in possession of the property based on the decree which he has obtained from the Court. When both the Courts have given the finding that the very decree itself is collusive decree and not conveyed any title and taken note of the better title of the respondent herein. Hence, I do not find any force in the contention of the learned counsel appearing for the appellant and no merit in the appeals to admit and to frame any substantial question of law. 17. In view of the discussions made above, I pass the following: ORDER Both the appeals are dismissed. In view of dismissal of the appeals, I.A.No.1/2019 for stay in both the appeals does not survive for consideration, the same stands disposed of.