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2025 Supreme(Kar) 2821
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Ashok S. Kinagi, J.
Benedicta D Souza - Appellant
Versus
P M Hussain – Respondent
Regular Second Appeal No. 1892 of 2011 (SP), Regular Second Appeal No. 1893 of 2011
Decided On : 03-11-2025
For the Appellant :Sri. K Chandranath Ariga & Sri. M.K. Vijayakumar, Advocate
For the Respondent: Sri. Sampath And Vatsala Law Associates
An appellate court is required to frame proper points for determination and re-appraise evidence thoroughly to ensure compliance with procedural rules.
Headnote:(A) Code of Civil Procedure, 1908 - Order XLI Rule 31 - Appeals - Compliance with procedural requirements by appellate court is essential - First Appellate Court failed to properly frame points for determination and to re-appreciate the entire evidence, resulting in an arbitrary and erroneous judgment. (Paras 25-26)
(B) Injunction and Specific Performance - Absolute ownership and rights over suit property - The case involved issues of ownership and rights of possession between parties with conflicting claims to a property. (Paras 2-6)
Facts of the case:
Appellant contended ownership of property via valid sale deed while respondent asserted rights through prior tenancy and a sale agreement with proper performance. (Paras 4-6)
Findings of Court:
The first Appellate Court's failure to properly frame points of adjudication and appreciation of evidence is contrary to established legal principles. (Paras 23-24)
Issues: The main questions involved the adequacy of the appellate court's adherence to procedural rules and the efficacy of its findings on ownership and possession.
Ratio Decidendi: The appellate court's duty includes thorough examination and separate determinations of all issues framed by the trial court; neglecting these aspects renders its judgment susceptible to being set aside. (Paras 24-25)
Result: The Regular Second Appeals are allowed, setting aside the first Appellate Court's judgment and restoring the appeals for fresh considerations.
JUDGMENT :
ASHOK S.KINAGI, J.
1. The appellant aggrieved by the common judgment passed in R.A.Nos.119 of 2006 and 139 of 2006 dated 23.04.2011 passed by the learned Presiding Officer, Fast Track Court, Karkala, and the common judgment dated 10.08.2006 in O.S.Nos.70/2005 and 77/2005, passed by the Civil Judge (Jr.Dn.) and JMFC, Moodabidri, filed these appeals.
2. For convenience, the parties are referred by their names one Benedicta D' Souza filed a suit in O.S.No.70 of 2005 for the relief of perpetual injunction, and possession and P.M.Hussain filed a suit for specific performance of contract and perpetual injunction in O.S.No.77 of 2005 against Krishnappa Shettigar and Benedicta D'Souza.
3. Brief facts leading rise to the filing of the suit in O.S.No.70 of 2005 are as follows:
4. It is the case of Benedicta D'Souza that she is the absolute owner of the suit schedule premises and purchased the suit premises from one Krishnappa under a registered sale deed dated 09.12.1993 for valid consideration. After purchase, the revenue records were changed in the name of Benedicta D'Souza. P.M.Hussain is in occupation of the suit schedule property as a licencee. After the purchase of said property, Benedicta D'Souza requested P.M.Hussain to vacate and hand over the possession of the suit schedule property to her. P.M.Hussain, having got colluding with Krishnappa, got created documents and making hectic preparations to demolish the existing building premises and to carry out structural changes of substantial nature without the consent of Benedicta D'Souza. P.M.Hussain and Krishnappa had no right, title or interest over the suit schedule property. Hence, a cause of action arose for Benedicta D'Souza to file a suit in O.S.No.70 of 2005 for the relief of permanent injunction, in alternative and possession.
5. P.M.Hussain filed a suit in O.S.No.77 of 2005 for specific performance and permanent injunction, contending that in 1982, he obtained the premises bearing Door Nos. 3-53 and 3-54, consisting of two rooms situated in survey No. 113/4 and partly in survey No. 116/1 of Kemral village of Mangalore taluk from Krishnappa on a monthly rental of Rs.100/- and he was running a general store. During the subsistence of tenancy, he entered into an agreement of sale with his landlord Krishnappa on 25.12.1985 for consideration of Rs.22,000/-. It was agreed that Krishnappa should execute a register sale deed in favour of P.M. Hussain on 30.01.1996. It is contended that before the execution of the said sale agreement, Hussain paid Rs.8,500/- to Krishnappa towards the advance sale consideration amount and on the date of agreement of sale he had paid Rs. 4,000/- to him. In view of the sale agreement he has paid a sum of Rs. 7,500/- to Krishnappa, and balance to be paid at the time of execution of a sale deed and in part performance of a contract, Krishnappa delivered the possession of the suit schedule property in favour of PM Hussain. It is contended that Krishnappa executed a general power of attorney in favour of PM Hussein and the said power of attorney was in force for 10 years. It is contended that PM Hussein was always ready and willing to perform his part of contract. Meanwhile, Krishnappa sold portion of his property including the property mentioned in the sale agreement, in favour of Benedicta D'Souza. The sale deed executed by Krishnapa in favour of Benedicta D'Souza is not binding on PM Hussein and it is contended that Benedicta D'Souza is not the bonafide purchaser for value without knowledge and no consideration was passed under the alleged registered sale deed executed between Krishnappa and Benedicta D'Souza. It is contended that P.M.Hussain to prove that he was always ready and willing to perform his part of contract issued a legal notice dated 25.12.1998 to Krishnappa and Benedicta D'Souza, calling upon them to receive the balance sale consideration amount, and execute a registered sale deed. They received the notice but failed to comply.
