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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Huluvadi G. Ramesh, J.
Kavita Ganashamdas, W/o. Late Ganashamdas —Appellant
Vs.
Sri Sudarshan Murthy, S/o. A. Muniyappa, Rathnavathi, W/o. U.M. Ramdas Ballal and Sri Sanjay L. Carlo, S/o. Lachmadas —Respondent
Regular First Appeals 1092 of 2009
Decided on : 08-09-2011
Specific Performance - Property Dispute - Stamp Duty - [Specific Performance] - [Property Dispute] - [Section 20 of the Specific Relief Act, 1963, Article 54 of the Limitation Act, Order 2 Rule 2 of the Code of Civil Procedure] - The court allowed the appeals, set aside the impugned judgment and decree, and permanently injuncted the defendants from interfering with the plaintiff's possession and enjoyment of the property. The sale deed executed by the defendant in favor of a third party was declared void and not binding on the plaintiff, and the sub-registrar was directed to cancel the sale deed. The defendants were ordered to execute the sale deed in favor of the plaintiff, with the plaintiff required to deposit the necessary amount and bear the registration expenses. If the defendants failed to comply, the trial court was directed to make arrangements for the sale deed's execution through the court. The plaintiff was also instructed to pay the stamp duty on the agreement in accordance with the law.
Fact of the Case:
The plaintiff filed two suits against the defendants, one for permanent injunction and the other for specific performance of a property sale agreement. The plaintiff claimed to have paid the full sale consideration and to have been put in possession of the property, but the defendants disputed these claims. The trial court dismissed both suits, leading to the present appeals.
Finding of the Court:
The court found in favor of the plaintiff, allowing the appeals and granting the relief sought. The court held that the plaintiff had performed her part of the contract, paid the full sale consideration, and was entitled to specific performance. The sale deed executed by the defendant in favor of a third party was declared void and not binding on the plaintiff.
Issues: The court addressed various issues, including the plaintiff's possession of the property, the alleged obstruction by the defendants, the entitlement to relief, the bar of limitation, and the maintainability of the suit under Order 2 Rule 2 of the Code of Civil Procedure.
Ratio Decidendi: The court held that the plaintiff had performed her part of the contract, paid the full sale consideration, and was entitled to specific performance. The court also found that the sale deed executed by the defendant in favor of a third party was void and not binding on the plaintiff.
Final Decision: The court allowed the appeals, set aside the impugned judgment and decree, and permanently injuncted the defendants from interfering with the plaintiff's possession and enjoyment of the property. The sale deed executed by the defendant in favor of a third party was declared void and not binding on the plaintiff, and the sub-registrar was directed to cancel the sale deed. The defendants were ordered to execute the sale deed in favor of the plaintiff, with the plaintiff required to deposit the necessary amount and bear the registration expenses. If the defendants failed to comply, the trial court was directed to make arrangements for the sale deed's execution through the court. The plaintiff was also instructed to pay the stamp duty on the agreement in accordance with the law.
Huluvadi G. Ramesh, J.— These two appeals have been filed against the order passed by the 11th Addl. City Civil Judge, Bangalore City in OS 223/2000 and 2334/2000 on 25.8.2009.
2. Plaintiff is common in both the suits - one filed for permanent injunction and another for specific performance, According to the Plaintiff, the first suit is filed against Defendants 1 to 3 for the relief of permanent injunction to restrain them from interfering with the Plaintiffs possession and enjoyment of the suit schedule property. The second suit is for specific performance of the contract and for permanent injunction and from dispossessing. Subsequently the suit against the 2nd Defendant in OS 2334/2000 viz., Sanjay Carlo was got dismissed by the Plaintiff. Further, the suit in OS 223/2000 was not proceeded against Sanjay M Karlo who was the 3rd Defendant.
3. It is stated in OS 223/2000, 2nd Defendant is the owner of the suit schedule property and offered to sell the same for her family necessities. Plaintiff having accepted to purchase for a total consideration of Rs.3,50,000/-, paid a sum of Rs.50,000/- as advance at the time of execution of the agreement. Plaintiff is said to have paid the remaining balance consideration to the 2nd Defendant well in time as such, she was not due in any amount to the 2nd Defendant towards sale consideration. The documents are at annexures A to D. It is also stated, on the date of agreement of sale, 2nd Defendant has delivered the vacant possession of the suit property and also the Plaintiff has been paying the electrical/water charges and taxes. It is also averred that Plaintiff had been requesting the 2nd Defendant to execute the registered sale deed however, the same has been postponed on one or the other pretext. If is also slated, the Ist and 2nd Defendants are making hectic efforts to sell away the property to third person at a higher price and efforts were also made to dispossess the Plaintiff from the suit property on 2nd January, 2000 and, in this regard, complaint also came to be filed by the Plaintiff. Also according to the Plaintiff, Defendants being localities having derived support from antisocial elements, posed a serious threat to the Plaintiff to dispossess and to knock of the property. Stating that cause of action arose during 1st and 2nd week of January. 2000, Plaintiff filed a suit for permanent injunction and also reserved her right to take necessary action against the 2nd Defendant for specific performance of the contract. It is also stated, she has spent money for renovation of the property to the tune of Rs.7.5 lakhs.
4. The suit was resisted by Defendants 1 and 2. While admitting the ownership of 2nd Defendant and also entering into an agreement to sell with the Plaintiff for a consideration of Rs.3,50,000/- and receiving advance payment of Rs.50,000/- under the agreement dated 15.2.89, the 2nd Defendant denied the receipt of balance payment. It is stated, since the Plaintiff has not paid the balance consideration within the stipulated time, she cancelled the sale agreement by issuing a legal notice and later sold the property in favour of the 1st Defendant under a registered sale deed dated 9.2.1998. Since then, the 1st Defendant is in possession as a bonafide purchaser and denied the possession of the Plaintiff. Based on the pleadings in OS 223/2000, following issues have been filed:
1. Whether the Plaintiff proves that she was in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the Plaintiff proves the alleged obstruction caused by the Defendants for her peaceful possession and enjoyment of the suit schedule property?
3. Is Plaintiff entitled to the relief sought for?
4. To what order or decree.
5. In OS 2334/2000 filed for specific performance, it is stated the Ist Defendant (2nd Defendant in the other suit) is the owner of the suit property and during 1989, she offered to sell the suit property for a consideration of Rs.3,50,000/- and the Pl
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