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2019 Supreme(Kar) 536
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SREENIVAS HARISH KUMAR, J.
Venkatamma and Ors - Appellant
Versus
B.S. Suryaprakash and Ors - Respondent
Regular First Appeal Nos. 1056 and 1028 of 2012
Decided On : 08-02-2019
For the Appellant :H.S. Dwarakanath, Advocate for G. Vikram, G. Papi Reddy and N.J. Ramesh, Advocates
For the Respondent:N.J. Ramesh, K.H. Jagadish, M.N. Munireddy, A. Lokanath and G. Papi Reddy, Advocates
Headnote:
Specific Relief Act - Section 20 - Indian Evidence Act - Section 155 - Power of attorney - Payment of duty - Claim indirectly relief of declaration and injunction is apparently barred - Whether the agreement of sale is worth rejection and cannot be acted upon as it is insufficiently stamped - Has trial court erred in upholding execution by defendant in favour of plaintiff being power of attorney holder of Muniyappa - Has trial court correctly that suit for specific performance is hit by in view of earlier suit for injunction filed by plaintiff - Whether the finding of the trial court that plaintiff was in possession of the schedule property on suit is correct -Whether interference with impugned judgment and decree is required –Held, Plaintiff who later on constructed a shed by spending a sum original documents of property were also delivered to plaintiff evidence corroborates testimony regards delivery of possession - Referring to sale deed executed by BDA in favour of first defendant it by trial court that there is absolutely no material on record show that defendants were put in possession of property and therefore even after cancellation of sale deed in favour defendant admission furnishes best evidence - Examined whether a sentence found amounts to an admission or not has to be stated that though defendants had been called upon in the said notice to handover possession of schedule property to plaintiff by executing a sale deed same does not amount to admission plaintiff is taking undue advantage of a situation - They have not pleaded about hardship also - Rather what is forth coming is their dishonesty - Their conduct in repudiating contract despite having clear knowledge about it demonstrates their dishonesty and a clear eye on present market value of property which has seen manifold increase over years - Judicial notice can be taken in this regard in background of location of schedule property - Hence a clear conclusion can be drawn that judgment of trial court can be set aside to extent of dismissing suit for specific performance - Court has decreed the suit for permanent injunction restraining defendants from dispossessing plaintiff from the suit property without taking recourse to due process of law - Probably trial court has granted this relief keeping in mind that according to it decree for specific performance could not be granted
JUDGMENT :
SREENIVAS HARISH KUMAR, J.
1. The judgment and decree dated 08.6.2012 in O.S. No. 10936/1997 on the file of XI Addl. City Civil Judge, Bengaluru has given rise to these two appeals. Plaintiff is the appellant in RFA. No. 1028/2012 and the defendants 1 to 4, 6 and 7 and the legal representatives of defendant No. 5 are the appellants in RFA. No. 1056/2012. The parties are referred to with respect to rank of each of them in the suit for the purpose of narration of pleadings briefly and discussion on points arising for consideration.
2. The suit is for specific performance, declaration and permanent injunction. The plaintiff founded the reliefs on an agreement of sale date 15.02.1996 executed by one P. Muniyappa, the husband of the first defendant and father of defendants 2 to 7. The subject matter of the suit is a vacant site with a small shed bearing BDA. No. 28, 2nd Stage, 1st Phase, B.T.M. Layout, Bengaluru, measuring East to West 15.24 meters and North to South 23.48 meters (referred to as suit property hereafter). The plaintiff pleaded that the Bangalore Development Authority ('BDA' for short) i.e., the 9th defendant allotted the suit property to P. Muniyappa, who was a former member of Legislative Assembly. The allotment letter was issued on 26.6.1984; P. Muniyappa was to pay Rs. 41,614/- to the BDA in connection with that allotment. As he was not in a position to mobilize funds for making payment to the BDA, he executed an irrevocable power of attorney in favour of 8th defendant on 19.07.1984 and authorized him to do all the acts that were necessary to deal with the suit property. On the strength of this power of attorney, the 8th defendant made initial payment of Rs. 5,000/- to the BDA, and also paid the balance of site value to the BDA on a subsequent date. The BDA thereafter executed a lease cum sale agreement on 1.1.1985 in respect of suit property and issued the possession certificate to the 8th defendant who represented P. Muniyappa. It is stated that on 08.04.1985, P. Muniyappa swore to an affidavit and that on the same day, the second and the third defendants along with P. Muniyappa also executed a declaration deed in favour of 8th defendant reaffirming the absolute authority given to him to deal with suit property. As the things stood thus, P. Muniyappa and the 8th defendant had to face some financial constraints; they decided to sell the suit property and therefore, on 15.2.1996, the 8th defendant, with the consent of P. Muniyappa, entered into an agreement of sale with the plaintiff for total sale consideration of Rs. 10,50,000/-. Having received Rs. 10,00,000/- from the plaintiff and in part performance of the agreement, the 8th defendant put him in possession of the suit property besides handing over to him all the documents of the suit property and giving an undertaking that he would execute the sale deed as and when the plaintiff would make a demand. The plaintiff, having taken over possession of the suit property constructed a small shed there.
3. P. Muniyappa died on 30.4.1996. The plaintiff subsequently came to know that the BDA executed an absolute sale deed in respect of suit property in favour of the 8th defendant and that it was also cancelled at the instance of defendants 1 to 7. He also came to know that the BDA thereafter executed another sale deed in respect of suit property on 6.5.1997 in favour of 1st defendant. From these developments the plaintiff learnt that the defendants would not execute a sale deed in his favour and therefore, he got issued a legal notice to the defendants 1 to 8 on 28.2.1997 demanding of them execution of sale deed. It is stated that in the month of July 1997, the plaintiff met 8th defendant to request him to execute the sale deed and at that time, the 8th defendant demanded of the plaintiff payment of additional sum of Rs. 1,00,000/- in relation to the penalty amount of Rs. 50,000/- paid by him to the BDA and other expenses incurred by him in obtaining the sale d
