Nagosa vs Mahabaleshwar and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs regular second appeal against the judgment and decree dated 15.02.2012 made in R.A. No. 91/10 on the file of the Fast Track Court, Gadag, affirming the judgment and decree dated 01.10.10 made in O.S. No. 224/2006 on the file of the Additional Senior Civil Judge, Gadag, dismissing the suit for declaration and consequential relief of permanent injunction against the defendants.

The plaintiff/appellant had filed suit contending that he is the owner in possession of the suit schedule property and said suit schedule property originally belongs to 2nd defendant who acquired through succession and name of 2nd defendant and her mother was entered in the City Survey Records and out of two numbers one Shettappa Sanganavar purchased the western property in the year 1997 and after such sale, the suit property remained with 2nd defendant for her legal necessity she had sold the suit property to plaintiff on 19.4.2006 for valuable consideration under a registered sale deed. The adjoining owner of the property i.e., Shetteppa, who is tenant of the suit property and hence symbolic possession was delivered to the plaintiff After purchase, the plaintiff came to know that the 1st defendant had entered into agreement to purchase the suit property from the 2nd defendant in the year 1982 and 1st defendant filed O.S. No. 385/93 on the file of the Civil Judge (Jr.Dn) Court, Gadag, for the relief of specific performance of contract which came to be decreed and the appeal filed against the same came to be dismissed. In pursuance of the decree, 1st defendant filed E.P. No. 26/2004 and got executed the sale deed through the Court Commissioner and also obtained delivery of possession of the suit property. The plaintiff came to know this fact recently when the 1st defendant obtained order for delivery of possession of the suit property. Thereafter, the plaintiff verified the records and came to know about all these proceedings and the sale deed. Before purchasing the suit property the plaintiff made enquiry regarding title and possession of the suit property of 2nd defendant. Therefore, he contended that plaintiff is the bonafide purchaser for valuable consideration and 1st defendant never disclosed all these facts and the alleged agreement dated 13.9.1982 is found to be bogus without any sale deed. Therefore, he approached the court for the relief sought for.

Defendants 1 and 2 appeared through their respective Counsel. Defendant No. 2 did not file written statement and only 1st defendant filed written statement and denied the plaint averments and contended that the suit filed by the plaintiff is not maintainable and he admitted the earlier proceedings made in O.S. No. 385/1993 and E.P. No. 26/2004 but he denied that the plaintiff is a bonafide purchaser for valuable consideration. The 1st defendant further contended that 2nd defendant and her mother executed an agreement of sale in his favour on 11.6.1982 and when the 2nd defendant did not come forward to execute sale deed after death of her mother, he was forced to file O.S. No. 385/93 which came to be decreed in his favour on 20.12.97 and the appeal filed also came to be dismissed 15.6.2004. On the basis of the said decree the 1st defendant filed E.P. No. 26/04 and got delivery of possession through Court Commissioner under registered sale deed dated 18.8.2000. The plaintiff in collusion with 2nd defendant filed the present suit in order to harass the 1st defendant and to drag on the proceedings. On these grounds, he sought for dismissal of the suit.

On the basis of pleadings the trial court framed 7 issues and treated issue No. 4 as preliminary issue which reads as under:

"4. Whether the defendant No. 4 proves that the suit is not at all maintainable?"

Considering the entire material on record, the trial court came to the conclusion that the suit filed by the plaintiff is not maintainable in view of the decree made in earlier suit in O.S. No. 385/93 and confirmed in R.A. No. 15/98 on 15.6.2004 and in pursuance of the same the 1st defendant got delivery of possession under registered sale deed dated 18.8.2000 through Court Commissioner in E.P. No. 26/2004 and also recorded a finding that in Ex. P.2 sale deed there is no single recital that the plaintiff has been in possession of the suit property on the date of execution of the sale deed. The plaintiff has filed suit without any pleadings in respect of possession of the suit property and he sought for consequential relief of permanent injunction against the 1st defendant.

Against the said judgment and decree the appellant filed RA.. No. 91/2010 before the Fast Track Court, Gadag, who after hearing both parties by his impugned judgment and decree dated 15.2.2012 dismissed the appeal, concurring with the finding of fact recorded by the trial court.

Against the said judgment and decree, the present appeal is filed.

I have heard the learned Counsel for the appellant.

Sri. S.S. Beturmath, learned Counsel for the appellant has contended that the impugned judgment and decree passed by the courts below dismissing the suit on the ground of maintainability is without any basis and both the courts below failed to take note of the fact that the plaintiff is a bonafide purchaser for valuable consideration. Therefore, he sought to set aside the judgment and decree of the courts below.

I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and perused the entire material on record.

The admitted facts in the present case are: that it is not in dispute that 2nd defendant who was the owner of the suit schedule property was in possession and he has executed agreement of sale in favour of the 1st defendant on 11.06.1982 in respect of the suit schedule property and it transpires that on refusal of the execution of the sale deed by 2nd defendant in pursuance of the agreement, the 1st defendant filed O.S. No. 385/93. After contest, the said suit came to be decreed on 20.12.1997. It was challenged in R.A. No. 15/1998 before the before the Civil Judge (Sr.Dn) Court at Gadag and the lower appellate court confirmed the judgment and decree of the trial court on 15.6.2004 and held that the 1st defendant was entitled to relief sought for and thereafter, the 1st defendant filed Ex. P.26/2004 and got registered the sale deed in pursuance of registered sale deed dated 18.8.2000 executed by the Court Commissioner. When the things stood thus, the 2nd defendant has suppressed all these material facts and alienated the suit schedule property in favour of plaintiff on 19.4.2006 under a registered sale deed for valuable consideration. On the basis of the said sale deed, the plaintiff filed present suit for declaration that the decree made in O.S. No. 385/93 is not binding on him and he has become owner by virtue of the registered sale deed 19.4.2006. It is also not in dispute that as on the date of registration of sale deed 2nd defendant was not the owner in pursuance of the agreement as stated above, the 1st defendant got the sale deed executed through Court Commissioner in E.P. No. 26/04 on 18.8.2000, itself that is final and conclusive.

Admittedly, the said registered sale deed is not questioned and the earlier judgment and decree passed by the Trial Court made in O.S.385/93 and confirmed in R.A. No. 15/98 on 15.6.2004 reached a finality and the said decree has been implemented on 18.8.2000. Therefore, the trial court answered issue framed in the affirmative and held that the suit filed by the present plaintiff is not maintainable. Accordingly, the trial court dismissed the suit. On re-appreciation of entire material on record, the lower appellate court confirmed the judgment and decree of the trial Court and recorded a finding that 2nd defendant who is claiming ownership of suit schedule property has not filed written statement and not subjected into box. The decree made in O.S. No. 385/93 is not in dispute and the present plaintiff who is alleged to have purchased the property on 19.4.2006 was not a party to the earlier proceedings. He is not a bonafide purchaser in view of the registered sale deed dated 18.8.2000 got executed by the Court Commissioner in favour of the 1st defendant in terms of the order in Ex. P. No. 26/2004. Therefore, the appellate court held that the suit is not maintainable and confirmed the judgment and decree of the trial court and both the courts below have concurrently held that the suit is not maintainable in view of the earlier decree which was reached finality and the decree has been implemented.

The contention of the appellant that he is bonafide purchaser cannot be accepted in view of the fact that the earlier suit has reached finality as long back as on 18.8.2000. Without verifying the true and material facts the plaintiff has purchased the suit schedule property on 19.4.2006. The said sale deed is invalid though the vendor of the plaintiff 2nd defendant was aware of these proceedings and he has contested the suit and failed to succeed in the earlier proceedings and it was reached a finality in R.A. No. 15/98. Inspite of that, he has alienated in favour of plaintiff which is nothing but cheating the present plaintiff In view of the same it is always open for the plaintiff to take appropriate action against his vendor- 2nd defendant in accordance with law.

Both the courts below have concurrently held that the suit is not maintainable, based on the legal evidence on record. The plaintiff has not made out any prima facie case to interfere under the provisions of Section 100 of the Code of Civil Procedure. No substantial question of law is involved in the present appeal.

Accordingly, RSA is dismissed at the stage of admission without reference to the respondents.