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2023 DIGILAW 908 (KAR)

Suvalal Jain v. K. N. Puneeth

2023-07-21

H.P.SANDESH

body2023
JUDGMENT 1. Heard the learned counsel for the appellants-defendant Nos.1 and 2 and learned counsel for the caveator-respondent No.1 and 2 to 6. 2. The appellants, who are the defendant Nos.1 and 2 have filed this appeal challenging the order dtd. 24/2/2023 passed on I.A.No.1 in O.S.No.4731/2022 on the file of the LXVI Additional City Civil and Sessions Judge, Bengaluru City, (CCH- 67), allowing I.A.No.1 filed under Order 39, Rule 1 and 2 of C.P.C. and restraining them from encumbering or creating third party interest or charge in respect of 50% of developed sites of the schedule property. 3. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of declaration is that Sy.No.206 of Kengeri was owned by late Rangappa. The said entire land was acquired under notification by Karnataka Housing Board during 1998 and concluded on 22/4/2022. The father and grand-father of plaintiffs' family have challenged the acquisition notification before the High Court of Karnataka in W.P.Nos.14063/1993, 17407/2000 and W.A.No.5533/1998 and the matter was also taken before the Hon'ble Supreme Court of India, at that time, defendant Nos.1 and 2 the pawn brokers and local money lenders approached elder persons of the plaintiffs' family with an assurance that they have contacts with advocates and having knowledge about the Court proceedings and assured to prosecute before the Hon'ble Supreme Court. The defendants have collected amounts, litigation expenses and engaged advocate in Hon'ble Supreme Court. Taking advantage of the same, defendant Nos.1 and 2, in the interest of family members of plaintiffs', played fraud and mischief and obtained General Power of Attorney. Before the Hon'ble Supreme Court, an application for withdrawal was filed by defendant Nos.1 and 2 and withdrawn the same by submitting Board Resolution dtd. 31/12/2021 on 50:50 rights. The defendant Nos.1 and 2 have not brought the same to the notice of the family of plaintiffs and the Government has taken decision as per the schedules offered by BDA and KIDB, it is intensive document of scheme to the owners, the plaintiffs' family is entitled to 50% of developed land. In June 2022, the defendant No.24 started to disturb the possession of undivided interest over the suit property. In June 2022, the defendant No.24 started to disturb the possession of undivided interest over the suit property. Thereafter, the plaintiffs approached the Karnataka Housing Board and on enquiry, they came to know the alleged transaction that defendant Nos.1 and 2 by act of fraud against the family members have created the transaction. The defendant Nos.1 and 2 are making claim for allotment of developed 50% share. The family of the plaintiffs is entitled to 50% of share and it is necessary to restrain the defendant Nos.1 and 2 from creating third party interest over the 50% developed sites. 4. This application was resisted by the defendant Nos.1 and 2 by filing objections contending that the suit itself is not maintainable. It is contended that the plaintiffs cannot question the sale deed executed by defendant Nos.3 to 23 in favour of defendant Nos.1 and 2 on 2/3/2005 on the ground of fraud and the executants of the sale deed have not questioned the same. It is also contended that the suit of the plaintiffs is barred by Limitation Act under Article 109. The plaintiffs have no right over the suit schedule property, the frame of the suit is not correct. Defendant Nos.1 and 2 based on sale deed dtd. 2/3/2005 as owners, who are in possession of the property approached Karnataka Housing Board for securing benefit of 50:50 scheme and executed Memorandum of Agreement, the defendant Nos.3 to 23 and plaintiffs have no right over the schedule property and they did not claim any right under the Board Resolution. The sale deed dtd. 2/3/2005 is binding on defendant Nos.3 to 23 as well as plaintiffs. The reason for execution of sale deed for 3 acres and power of attorney for 2 acres, 10 guntas have been explained. The plaintiffs have no locus standi, the defendant Nos.1 and 2, who are entitled to receive compensation even after acquisition of land, the plaintiffs have not approached the Court with clean hands, they have not made out prima facie case. The defendant No.24 also filed the statement of objections reiterating that there was a sale deed dtd. 2/3/2005. 5. The plaintiffs have no locus standi, the defendant Nos.1 and 2, who are entitled to receive compensation even after acquisition of land, the plaintiffs have not approached the Court with clean hands, they have not made out prima facie case. The defendant No.24 also filed the statement of objections reiterating that there was a sale deed dtd. 2/3/2005. 5. The Trial Court, having considered the grounds urged in the application and also the statement of objections, taken note of the fact that there was a sale deed and also taken note of the fact that, admittedly, the plaintiffs are not parties to the sale deed dtd. 2/3/2005 and the defendant Nos.3 to 23 are the parties to the said sale deed and they have not filed a suit questioning the sale deed. The very contention of the plaintiffs is that sale deed was obtained by fraud and misrepresentation and the relief sought by the plaintiffs is for partition of allotment of 50% developed sites by holding that the sale deed dtd. 2/3/2005 is not binding and the defendant Nos.1 and 2 are claiming their counter claim and also taken note of the fact that sale deed is subsequent to acquisition and the SLP which was filed before the Hon'ble Supreme Court was withdrawn. It is also observed by the Trial Court that the said sale deed was not brought to the notice of the Hon'ble Supreme Court and the power of attorney is dtd. 4/3/2005, whereas the sale deed is dtd. 2/3/2005 and there is a discrepancy in mentioning the date in the sale deed and power of attorney and the sale deed is in respect of 3 acres, wherein the power of attorney is only in respect of 2 acres, 10 guntas. 6. The Trial Court also taken note of the fact that the very sale deed is questioned by the plaintiffs and the plaintiffs claim their share in the suit schedule property. Whether the sale deed is binding on the plaintiffs, whether the sale deed is for legal necessity are all matters to be decided during trial. Regarding limitation is concerned, as per Article 109 of Limitation Act, 12 years is prescribed from the date of taking possession by the purchaser. In the present case, the alleged sale deed came into existence after acquisition and by that time, the land had vested with the State. Regarding limitation is concerned, as per Article 109 of Limitation Act, 12 years is prescribed from the date of taking possession by the purchaser. In the present case, the alleged sale deed came into existence after acquisition and by that time, the land had vested with the State. Hence, the question of taking possession by the purchaser is doubtful and Article 109 of the Limitation Act has no application to the case on hand. Having made such observation, the Trial Court comes to the conclusion that, when the suit is filed questioning the fraud and misrepresentation by the defendant Nos.1 and 2, it requires trial and prima facie, the plaintiffs have made out a case to grant the relief of injunction and accordingly, the Trial Court granted the relief of temporary injunction restraining the defendant Nos.1 and 2 from creating any third party rights. Hence, the present appeal is filed before this Court. 7. Learned counsel for the appellants-defendant Nos.1 and 2 in his argument would contend that there is no dispute that the property belongs to one Rangappa and the said property was acquired by Karnataka Housing Board. It is also not in dispute that the same has been questioned before this Court and thereafter, the matter was also taken before the Supreme Court and the same was withdrawn. But, the counsel would contend that, in view of the sale deed executed in favour of defendant Nos.1 and 2, the matter was taken before the Karnataka Housing Board and Memorandum of Agreement i.e., 50:50 scheme was entered into between the parties and after 17 years of sale, the present suit is filed questioning the sale deed and Article 109 of the Limitation Act applies and all the documents are standing in the name of the defendant Nos.1 and 2. The counsel also would vehemently contend that Sec. 8 of the Hindu Succession Act attracts and not Sec. 6 and the property is a separate property and not an ancestral property. 8. The learned counsel for the appellants-defendant Nos.1 and 2, in support of his argument, relied upon the judgment of this Court in SRI G. NAGARAJU VS. MR. RAMESH AND OTHERS passed in R.S.A.NO.1837/2017 dtd. 26/5/2023 and brought to notice of this Court Para Nos.29 and 31, wherein this Court has discussed with regard to limitation and doctrine of acquiescence. 9. The learned counsel for the appellants-defendant Nos.1 and 2, in support of his argument, relied upon the judgment of this Court in SRI G. NAGARAJU VS. MR. RAMESH AND OTHERS passed in R.S.A.NO.1837/2017 dtd. 26/5/2023 and brought to notice of this Court Para Nos.29 and 31, wherein this Court has discussed with regard to limitation and doctrine of acquiescence. 9. The counsel also relied upon the judgment of the Apex Court in UTTAM VS. SAUBHAG SINGH AND OTHERS reported in (2016) 4 SCC 68 and brought to notice of this Court Para No.15, wherein the Apex Court has discussed with regard to Sec. 8 of the Hindu Succession Act, 1956 considering the judgment in CWT VS. CHANDER SEN reported in (1986) 3 SCC 567 and also brought to notice of this Court Para Nos.18 and 19 i.e., operative portion of the judgment and contend that the very suit itself is not maintainable. 10. Per contra, learned counsel for the caveator- respondent No.1 and 2 to 6 would vehemently contend that the sale deed is of the year 2005 and no dispute with regard to the fact that already acquisition proceedings was initiated in the year 1998 by issuing 4(1) and 6(1) notification on 12/10/1990 and the alleged sale deed is dtd. 2/3/2005 and power of attorney is dtd. 4/3/2005. The counsel also would vehemently contend that, it is not in dispute that very acquisition was questioned before this Court and matter was pending before the Hon'ble Supreme Court and the same was withdrawn. The counsel would vehemently contend that the Trial Court also while allowing the application given the reason that plaintiffs are not the parties to the sale deed and allegation is also made that said sale deed came into existence by playing fraud and misrepresentation and whether the property is a joint family property or not has to be decided only during trial and the very contention that Sec. 8 of the Hindu Succession Act, 1956 attracts and not Sec. 6 cannot be decided in an application filed under Order 39, Rule 1 and 2 of C.P.C. and the Court has to see whether there is a prima facie case or not. It is also contended that the Trial Court appreciated the facts and granted the relief and the citations which have been relied upon by the learned counsel for the appellants is on merits and not on interlocutory application and in the appeal in R.S.A.No.1837/2017 also, the evidence on record was appreciated and the other judgment of the Apex Court is with regard to merits of the case and the Court has to see whether there is a prima facie case and balance of convenience in favour of the defendants. 11. In reply to the arguments of the learned counsel for the caveator-respondent No.1 and 2 to 6, learned counsel for the appellants would vehemently contend that the very finding of the Trial Court that property vested with the State is not correct. No doubt, the acquisition proceedings was questioned, the very SLP filed before the Hon'ble Supreme Court was withdrawn, in view of the resolution passed by the Karnataka Housing Board. The counsel would vehemently contend that Article 109 of the Limitation Act squarely applies and the order passed in the writ petition will not come to the aid of the respondents herein. 12. Having heard the respective counsel and also considering grounds urged and the principles laid down in the judgment (supra) relied upon by the learned counsel for the appellants, the points that would arise for consideration of this Court are: (1) Whether the Trial Court has committed an error in granting an order of injunction allowing I.A.No.1 filed under Order 39, Rule 1 and 2 of C.P.C. and whether it requires interference of this Court? (2) What order? Point No.(1) 13. Having heard the respective counsel, it is not in dispute that property bearing Sy.No.206 of Kengeri was owned by late Rangappa. It is also not in dispute that the said entire land was acquired under notification by Karnataka Housing Board in the year 1998 and concluded on 22/4/2022, in view of settlement arrived between the Karnataka Housing Board and the original owners. It is also not in dispute that the said entire land was acquired under notification by Karnataka Housing Board in the year 1998 and concluded on 22/4/2022, in view of settlement arrived between the Karnataka Housing Board and the original owners. It is also not in dispute that earlier in the writ petition, the very acquisition was set aside by the learned Single Judge and in writ appeal, the order of the Single Judge was set aside and the same was questioned before the Hon'ble Supreme Court and during the pendency of SLP, an arrangement was made between the parties under 50:50 scheme with regard to the property and withdrew the SLP. It is also the claim of the plaintiffs that they are not the parties to the said sale deed and the same is not disputed by defendant Nos.1 and 2 and the sale deed is executed by defendant Nos.3 to 23 in favour of defendant Nos.1 and 2. 14. It is the claim of the plaintiffs that they are also entitled for a share and the relief sought in the plaint is also for declaration to declare that the sale deed is not binding and the same is obtained by defendant Nos.1 and 2 by playing fraud and misrepresentation. In the plaint, it is also sought to pass the judgment and decree against defendant No.24-Karnataka Housing Board to apportion and allot 50% of the developed property in land bearing Sy.No.206 and to pass permanent injunction against defendant Nos.1 and 2 not to interfere or to cause any act of interference with plaintiffs' undivided interest and possession in the plaint schedule property. 15. Having perused the plaint, in Para No.3 it is specifically pleaded that suit is for comprehensive relief of declaration and partition and it is also pleaded with regard to the fact that property originally belongs to Rangappa and he is no more and his legal heirs are entitled for share. However, defendant Nos.1 and 2 claim that defendant Nos.3 to 23 have executed power of attorney in 2005 and the sale deed came into existence subsequent to acquisition of the property. However, defendant Nos.1 and 2 claim that defendant Nos.3 to 23 have executed power of attorney in 2005 and the sale deed came into existence subsequent to acquisition of the property. It is also important to note that, in the plaint, it is also pleaded with regard to limitation with regard to the date of knowledge i.e., date of knowledge is June 2022 and hence, the suit presented for adjudication that the sale deed obtained by fraudulent method and perpetuated fraud is well within the period of limitation and the same is pleaded in the plaint. 16. The main contention of the learned counsel for the appellants-defendant Nos.1 and 2 is that suit is barred by limitation since, suit is filed after 17 years and Article 109 of the Limitation Act applies and the same is a mixed question of fact and law and whether the sale deed is obtained by playing fraud and misrepresentation also to be considered by the Trial Court. Admittedly, the plaintiffs are not parties to the sale deed and property belongs to one Rangappa is also not in dispute. Learned counsel appearing for the appellants would vehemently contend that the plaintiffs are not entitled for share since, Sec. 8 of the Hindu Succession Act, 1956 applies and not Sec. 6 and the same is also a mixed question of fact and law and the nature of property also to be decided after trial and in an application filed under Order 39, Rule 1 and 2 of C.P.C., whether the plaintiffs are entitled to a share cannot be determined but, the fact that property belongs to one Rangappa is not in dispute. The Trial Court also, while considering the application, taken note of the fact that the plaintiffs are not the parties to the sale deed and when the plaintiffs have pleaded with regard to fraud and misrepresentation, the same is also a disputed fact which be considered by the Trial Court while considering the matter on merits. 17. The Trial Court also taken note of the fact that before the Hon'ble Supreme Court, the defendant Nos.1 and 2 have not stated anything about the sale deed dtd. 17. The Trial Court also taken note of the fact that before the Hon'ble Supreme Court, the defendant Nos.1 and 2 have not stated anything about the sale deed dtd. 2/3/2005 executed in favour of defendant Nos.1 and 2 by defendant Nos.3 to 23 and whether the sale deed is binding on the plaintiffs or not is also a matter of trial and whether the sale is for legal necessity or not are all matters to be considered by the Trial Court during trial. Admittedly, the writ appeal was allowed and the order of the learned Single Judge was set aside and the notification of the Karnataka Housing Board was upheld and the same was questioned before the Hon'ble Supreme Court. Hence, the Trial Court comes to the conclusion that Article 109 of the Limitation Act has no application and the same is also a mixed question of fact and law and the same requires trial and possession also to be ascertained when possession was delivered. 18. Having considered the material on record, the Trial Court comes to the conclusion that when the plaintiffs have sought for the relief of declaration and partition, whether plaintiffs are entitled to a share or not once again is a matter of trial and hence, held that the plaintiffs have made out a prima facie case since, defendant Nos.1 and 2 have not disputed the fact that property originally belongs to the propositus of the family one late Rangappa. When such being the case, I do not find any error committed by the Trial Court in granting the relief of temporary injunction restraining the defendant Nos.1 and 2 not to create any third party right in respect of the property during the pendency of the suit. In other words, if the order of temporary injunction is not granted and if any third party rights are created, it would lead to multiplicity of proceedings, creating right in favour of prospective purchasers. The Trial Court also taken note of the fact that during the pendency of the suit, defendant No.24 has executed the sale deed in respect of some of the developed sites in favour of defendant Nos.1 and 2 and the same is continued, it leads to multiplicity of proceedings. 19. The Trial Court also taken note of the fact that during the pendency of the suit, defendant No.24 has executed the sale deed in respect of some of the developed sites in favour of defendant Nos.1 and 2 and the same is continued, it leads to multiplicity of proceedings. 19. No doubt, the learned counsel appearing for the appellants-defendant Nos.1 and 2 relied upon the judgment of the Apex Court with regard to whether Sec. 8 of the Hindu Succession Act, 1956 attracts or Sec. 6 attracts, I have already pointed out that the same is also to be considered during the course of trial as to whether any right accrues in favour of the plaintiffs and they are entitled to a share in the property has to be decided only after considering the matter on merits by the Trial Court analyzing the nature of the properties. No doubt, this Court also in the judgment in R.S.A.No.1837/2017 held with regard to law of limitation and doctrine of acquiescence, the same is also a mixed question of fact and law and the same has to be considered after trial and the judgments relied upon by the learned counsel for the appellants are on merits and not with regard to considering interlocutory application. Hence, the very contention of the learned counsel for the appellants that suit is barred by law cannot be decided at this stage. Therefore, I do not find any error committed by the Trial Court in allowing the application in I.A.No.1 and there is no merit in the appeal. Accordingly, I answer point No.(1) as 'negative'. Point No.(2) 20. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.