Dandaiah and Others vs Danda Nayaka

Ravi V. Malimath, J.—The case of the plaintiff is that the suit schedule property originally belonged to one Siddamma, wife of Kali Dandana Dodda Chowda Nayaka and her son Chowdaiah of Udboor Village. Siddamma and Chowdaiah jointly executed an agreement of sale in favour of plaintiff on 18.07.1991 and agreed to sell the suit schedule property for a sum of Rs. 17,000/- and they received an advance amount of Rs. 13,500/- including the mortgage amount of Rs. 3,000/- and Rs. 9,000/- under an unregistered Mortgage deed dated 08.03.1990, 13.12.1990 and agreed to execute and register the sale deed on or before 30.01.1992. They put the plaintiff in possession of the suit schedule property.

Siddamma and Chowdaiah were not inclined to execute and register the sale deed. That behind the back of the plaintiff, Siddamma and Chowdaiah sold 1 acre, 2 Vi guntas of land out of the suit land to the first defendant on 14.10.1991. Therefore, the plaintiff filed a suit in O.S. No. 312/1991 for specific performance of the contract and for cancellation of the sale deed of the defendant. Siddamma and Chowdaiah were arrayed as defendant Nos. 1 and 2 and the present defendant was arrayed as defendant No. 3. The suit was decreed on 20.06.1997 and it was held that the sale deed executed in favour of the defendant herein was not binding on the plaintiff. That defendant Nos. 1 and 2 were directed to execute a registered sale deed within four months from the date of the order. They did not do so.

Execution Petition No. 30/1997 was filed for enforcement of the same. The execution petition was closed and the plaintiff was put in possession. The records were transferred in the name of the plaintiff and he is paying the relevant taxes. That the defendants having no right, title or interest over the suit schedule property, came near the scheduled land and obstructed the plaintiff from carrying on the agricultural activities. They continued to do so, Police interference. Hence, they filed the instant suit.

The defendants entered appearance and contended that the suit schedule property bears survey No. 521/2 and does not bear survey No. 521/5, which has been stated in Schedule ''B''. The description of the property is not correct. That the property originally belonged to Siddamma and Chowdaiah. The agreement to sell in favour of the plaintiff was denied and so also the payment made. They have never handed over the possession of the suit schedule property to the plaintiff.

That an agreement of sell was entered into in favour of the defendant on 14.10.1991. The agreement to sell entered into in favour of the plaintiff on 18.07.1991, was a second agreement. Therefore, fraud has been played on the defendant. Hence, it is pleaded that the appeal be dismissed.

Based on the pleadings, the trial court framed the following issues:

"1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?

Whether the plaintiff proves the alleged interference by the defendants?

Whether the plaintiff is entitled for the reliefs claims in the suit?

What order or decree?"

The plaintiff was examined as PW-1 and another witness was examined as PW-2 and 11 documents were marked. Defendant No. 2 was examined as DW-1 and 13 documents were marked on their behalf.

Issue No. 1 was held partly in affirmative. Issue Nos. 2 and 3 were held in negative and the suit of the plaintiff was dismissed. Aggrieved by the same, the plaintiff preferred an appeal. The appeal was allowed. The judgment and decree of the trial court was set-aside. The suit of the plaintiff was decreed with costs directing the defendants not to interfere with the plaintiff''s possession of the suit schedule property. Aggrieved by the same, the present appeal is filed.

By the order dated 31.08.2012, the appeal was admitted. However, no substantial question of law was framed. I have heard learned counsels on the same. The following substantial question of law arises for consideration:

"Whether the judgment and decree of the Appellate Court is erroneous in misreading the evidence and material on record, in holding that the plaintiff is in possession of the suit schedule property as a consequence of the execution petition being closed?" 10. The learned counsel for the appellant-defendant contends that both the courts below committed an error in misreading the evidence on record. That even though the earlier suit for specific performance was decreed, the possession of the defendant continued. There has been no order wherein the possession of the defendant was taken and handed over to the plaintiff. Hence, he pleads that notwithstanding the decree in O.S. No. 312/1991 and the subsequent closure of execution petition No. 30/1997, the defendant continues to be in possession of the suit schedule property.

On the other hand, the learned counsel for the respondent-plaintiff defends the impugned order. He contends that the suit having been decreed and execution having been taken out, the sale deed was executed in his favour and he was put in possession. The court recordings in the execution petition would justify the same. Hence, the execution petition was closed. If the defendant continued to be in possession in opposition to the decree he had suffered, the execution petition would not have been closed. Hence, he pleads that the appeal be dismissed.

Heard learned counsels and examined the material on record.

The admitted facts are that the plaintiff filed a suit seeking specific performance of contract in O.S. No. 312/1991. Defendant Nos. 1 and 2 were the vendors of defendant No. 3. The present defendant No. 1 was arrayed as defendant No. 3 therein. In view of the fact that the vendor had executed an agreement to sell and a subsequent sale deed in his favour in the course of the decreetal of the suit, the trial court held that the sale deed executed in favour of the defendant herein is not binding on the plaintiff. No appeal was filed against the said order. Even though the finding recorded by the court below was to hold that the sale deed was not binding on the plaintiff, the defendant herein has accepted the said judgment and decree and no appeal has been filed. Consequently, the execution petition was taken up and it was closed in view of the handing over of the possession in favour of the plaintiff. Therefore, his contention that even if the execution petition has been closed, he continued to be in possession of the suit schedule property is not supported by any document on record. Exhibits-P1 and P2 being the certified copy of the judgment and decree and Exhibit-P3 being the copy of the order of execution petition, as well as the submission made that the execution petition has since been closed, it leaves no room for interpretation that the defendant is not in possession of the suit schedule property.

Consequently, the substantial question of law is answered by holding that there is no error committed by the lower appellate court in holding that the plaintiff is in possession of the suit schedule property as a consequence to the closure of execution petition. In view of answering the substantial question of law, the appeal is dismissed.