Channakrishnappa vs M. Jayaram

H.P. Sandesh, J

Heard the Petitioner’s counsel.

This matter is listed for admission. The order impugned in this revision petition is rejection of an application filed under Order VII Rule 11 (a and d) r/w Section 151 of CPC.

The main contention urged in the application before the trial Court by this defendant who is the defendant No.21 that, he had purchased the property from defendant No.20 who is the power of attorney holder of defendant Nos.1 to 19 and also it is his contention that defendant Nos.1 to 19 have also executed consent deed in respect of the sale deed and he had purchased the same for valuable sale consideration and the very suit filed against him for the relief of specific performance by the plaintiff has to be rejected against the defendant No.21 and the same is barred by law and also no cause of action. It is also contended that plaintiff and 20th defendant have colluded and created the agreement filed before the Court only with an intention to knock off the compensation amount and property and also contend that plaintiff has already executed a consent agreement holder and received the huge amount and also in view of amendment of LAO Act, the agreement holder/GPA holder shall not entitled to receive the amount from Land Acquisition Authority and hence he is not entitled for any relief.

This application is resisted by filing statement of objections by the plaintiff contending that there was an agreement of sale executed on 21.11.2007 and the very averment that plaintiff has given consent and has received the amount to avoid the legal complication as per the terms and conditions of the agreement has paid balance amount to the family of the 1st defendant and 3rd defendant has executed registered sale deed in his favour on 1.1.2016 is denied. It is also contended that when the very 20th defendant had executed agreement of sale, who is a power of attorney holder of defendant Nos.1 to 19 and subsequent document in favour of defendant No.21 not creates any right and matter requires to be tried and hence prayed the Court to dismiss the same.

The Trial Court having heard the respective counsels and also contentions of the application and objections statement formulated the point whether the defendant No.1 has made out a ground and having considered the same in paragraph No.8 comes to the conclusion that, very defendant No.21 himself admitted that defendant Nos.1 to 19 are the owners of the schedule property and they have executed the registered power of attorney in favour of defendant No.20. On the basis of the said document defendant No.20 executed an agreement of sale in favour of the plaintiff with respect to suit schedule property. Upon going through the dates of documents/instruments stated supra, that there was an agreement of sale dated 21.11.2007 and subsequent document are of year 2014 and confirmation deed also 2016 and 2017, and agreement of sale also dated 21.11.2007, that is executed by defendant No.20 in favour of both as power of attorney holder and hence, defendant No.21 has not made out any ground to reject the application and comes to the conclusion that plaintiff has denied the contents of the application and reproduced the plaint averments. When such being the case, it requires trial.

The counsel appearing for the petitioner would vehemently contend that this is a collusive suit filed by the plaintiff and defendant No.20 and also there was a sale deed in favour of defendant No.21 and the same is also confirmed by defendant Nos.1 to 19 by executing the consent deed. When such being the case, the very suit against the present defendant is not maintainable and the same does not disclose any cause of action, the counsel also would submit that suit is also filed belatedly and the same is also barred by limitation.

Having heard the petitioner’s counsel and also on perusal of the averments made in the application and objection statement and also the reasons assigned in the order of the trial Court and trial Court in paragraph No.8 discussed with regard to the very contention of the plaintiff that he claims that there was an agreement of sale and the same was also executed in the year 2007 and that is also executed by defendant No.20 and present petitioner also claims the title based on the sale deed executed by defendant No.20 and the same is confirmed by defendant Nos.1 to 19. When factual aspects has been pleaded and when the plaintiff also pleaded in the plaint with regard to an agreement of sale dated 17.05.2007 and the same is mentioned in paragraph 3.2 and also in paragraph 3.3 for having made the payment also stated in the plaint and in paragraph 3.4 also categorically contended that in compliance of the said sale agreement not come forward to execute the sale deed and also stated with regard to the conversion of the schedule property from the existing agriculture to non-agriculture purpose and also specifically pleaded in paragraph 3.6 that defendant fail to execute the sale deed in favour of the plaintiff in respect of sale agreement, in paragraph 3.7 also pleaded that he was ever ready to have the sale deed and cause of action also stated in paragraph 4 i.e. on 21.11.2007 when the defendants executed the agreement of sale and on 9.4.2016 date on which plaintiff caused legal notice to the defendants and on 18.4.2016 the date on which the reply notice was issued and on receipt of the certified copy of the sale deed, consent deed and other revenue records on 28.1.2017 and also stated with regard to the very execution of document, he came to know that the document is also of the year 2016 and suit is filed within one year i.e. in 2017 and hence the disputed facts cannot be decided in an application filed under Order VII Rule 11. It is settled law also that Court has to look into the only averments of the plaint and not the defence and defence is immaterial when considering an application under Order 7 Rule 11. Whether suit is barred by limitation or not, the same is also a mixed question of fact and law and plaintiff also pleaded in the plaint that there was an agreement of sale of the year 2007 and the same is also executed by defendant No.20 and validity of the sale deed and also the sale agreement is also a question of fact and the same has to be decided only in a full fledged trial. Hence, I do not find any merit in the revision petition to set aside the order of the trial Court.

In view of the discussions made above, I pass the following

ORDER

Revision petition is dismissed.

The trial Court is directed to dispose of the matter expeditiously.