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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N.K. Sudhindrarao, J.
Sri S V Seetharamappa S/O Late Venkatagiriyappa And Ors. - Appellants
Versus
Smt. Venkatamma W/O Late Kaiwara Narayanappa And Ors. – Respondents
R.S.A.No.2381 OF 2008
Decided On : 04-04-2019
Transfer of Property Act - Section 53A - Immovable property - Relief of mandatory injunction - Possession of schedule property - Whether first Appellate Judge was right in deciding case on an unregistered sale deed marked as Ex.P4 - Whether there could be a title on immovable property sans registered sale deed - Whether Section 53A of Transfer of Property Act is open against persons other than sellers - Whether sale agreement be subjected to payment of duty and penalty to cure defect of Stamp Duty and Registration - In order to avoid confusion and overlapping parties are addressed with reference to their status and ranking before trial court - Originally suit was filed by one seeking declaration of title over suit property consequential relief of mandatory injunction and for recovery of possession before trial Court claiming that she is absolute owner in possession of schedule property which is a vacant site situate at Village measuring East to West yards and North to South by yards as her husband purchased schedule property through an agreement from its vendor and his vendor has delivered possession of scheduled property to her husband and thus it is self acquired property of her husband who died forty years ago – Held, It is needless to say that ingredients of Sale are set out in Section 54 of Transfer of Property Act, which also states procedures of sale in respect of sale transaction worth or more than of a immovable property had to effected by means of written document by paying notional stamp duty and also to be registered within meaning of Indian Registration Act - Now it is a first hitch to plaintiff herself as she claims under sale agreement of schedule property said to have been executed in favor of her husband who is stated to have died forty years earlier from date of filing of suit - Insofar as possession is concerned plaintiff claim possession of property having succeeded from her husband and sale agreement was executed by son - Relief under Section 53A of Transfer of Property Act is available against seller and not against third parties - It is whenever a contract which is written and signed purchaser is put in possession or if he is already in possession he has knowledge of possession being transferred under said agreement has done acts in furtherance of contract and ready and willing to perform his part of duty is bestowed with protection of his possession and makes sold out of bounds in respect of claiming schedule property because of non adhering to legal stamp duty - There is also dispute in respect of identity of property - In a suit be it for specific performance or declaration of title and other suits whenever identity of property is disputed it would be onus of person asserting it to prove - In overall circumstance of case suit is silent as to in what capacity plaintiff’s husband entered into agreement and why it was not registered – Moreover document does not contain any feature of a sale deed - Regard being had to fact that subject matter is immoveable property and value stated therein - Learned trial Judge has dismissed suit by assigning sound reasons and learned first appellate Judge has forgotten basic principles and has allowed appeal and decreed suit by setting aside judgment and decree passed by trial Judge which is liable to be set aside - Appeal is allowed
JUDGMENT :
The appeal is directed against the judgment and decree dated 03.11.2008 passed by learned I Additional Civil Judge (Sr.Dn) at Kolar in R.A.No.335/2007 wherein, the judgment and decree passed by learned Principal Civil Judge (Jr.Dn) at Kolar, in O.S.No.413/2005 dated 24.11.2007 came to be set aside and in the result, the suit of the plaintiff came to be decreed with costs. Defendants are directed to deliver possession of the schedule property to the plaintiff within three months and in default plaintiff is directed to evict the defendants through due process of law. Against which, this appeal is preferred by the defendants 2, 3 and 4.
2. In order to avoid confusion and overlapping, the parties are addressed with reference to their status and ranking before the trial court.
3. Originally, suit was filed by one Venkatamma, seeking declaration of title over the suit property, consequential relief of mandatory injunction, and for recovery of possession before the trial Court in O.S.No.413/2005, claiming that she is the absolute owner in possession of the schedule property which is a vacant site situate at Shetty Madamangala Village, Sugatur Hobli, Kolar Taluk, bearing katha No.18, Khaneshumari No.139 measuring East to West 15 yards and North to South by 15 yards(45 ft. x 45 ft.) as her husband K.Narayanappa purchased the schedule property through an agreement dated 03.03.1961 from its vendor Sali Krishnappa and his vendor has delivered the possession of the scheduled property to her husband and thus, it is the self acquired property of her husband who died 40 years ago.
4. Further, plaintiff claims that she has made improvement on the schedule property heavy constructed stone roofed house in an area of 45 ft x 10 ft. She also has put up shop measuring East-West 15 feet and North-South 11 feet. Plaintiff claim that her title was denied on 20.9.2005. She was also dispossessed.
5. The defendants appeared through their counsel, 4th defendant filed written statement denying the material allegations made in the plaint. According to him, the suit property belong to defendants 2 to 4 and it is their ancestral property and they are residing in the same.
6. The learned trial Judge was accommodated with the oral evidence of PWs 1 and 2, DWs 1 to 3 and documentary evidence of Ex.P1 to P5 and Ex.D1 to D30. The suit came to be dismissed holding that plaintiff has failed to establish that she is the absolute owner in possession of the suit property and she was dispossessed by the defendants and that her claim for title over the schedule property on the basis of agreement that was said to be executed in favour of her husband was not tenable and she did not satisfy the requirement in order to establish the title over the immoveable property to get an order of injunction.
7. Later an appeal in R.A.No.335/2007 preferred by the plaintiff before the I Additional Civil Judge (Sr.Dn), Kolar, in R.A.No.335/2007 came to be allowed and suit was decreed in favour of the plaintiff as stated above. Against which, the present appeal came to be filed by the defendants 2, 3 and 4 before this court.
8. Learned Senior counsel Sri.Y.R.Sadasiva Reddy, for Sri.Lokanatha T.V. for appellants/defendants 2, 3 and 4 would submit that the parameters or the principles adopted by the learned first appellate Judge to decree the suit in favour of the plaintiff who is the respondent No.1 herein has no justification as the title is not confirmed on the basis of the sale agreement, Ex.P4. On perusal of Ex.P4 which is a sale agreement written in Kannada dated 03.03.1961, it is clear that schedule property is sold by Sali Krishnappa, son of Venkatappa for a cash consideration of Rs.200/- and received the total consideration under the agreement. The property was sold to one K.Narayanappa, son of Muniyappa aged 63 years. The plaintiff claims that she is the wife of said K.Narayanappa and inherited the property through him.
9. Learned counsel further submits that the schedule propert
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