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Before: and
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2021 PRESENT
THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON’BLE MR.JUSTICE P.N.DESAI
R.F.A. NO. 4101/2013 C/W R.F.A. Cr. OB. NO. 100013/2014 (DEC)
IN R.F.A. NO. 4101/2013
BETWEEN:
SRI VASANT S/O MANESHWAR SANU, AGE: 42 YRS, OCC.: AGRICULTURE & REAL ESTATE, R/O VIDYANAGAR, EASTERN SIDE, 2ND CROSS, HAVERI-581110. - APPELLANT (BY SRI. K.L. PATIL, ADVOCATE FOR SRI SURESH KINI, ADVOCATE)
AND:
SRI NINGAPPA S/O MAHADEVAPPA MALAGI, AGE: 47 YRS, OCC.: AGRICULTURE & GOVERNMENT SERVANT, R/O DEVAGIRI-YALLAPUR, HAVERI-581110.
SRI SUBHAS S/O MAHADEVAPPA MALAGI, AGE: 42 YRS, OCC.: AGRICULTURE, R/O DEVAGIRI-YALLAPUR, HAVERI-581110.
SRI BASAVRAJ S/O MAHADEVAPPA MALAGI, AGE: 40 YRS, OCC.: AGRICULTURE, R/O DEVAGIRI-YALLAPUR, HAVERI-581110.
: 2 : 4. SMT. SUMA W/O RAJSHEKHAR KUDARIHAL, AGE: 36 YRS, OCC.: HOUSEHOLD, R/O DEVAGIRI-YALLAPUR, HAVERI-581110.
SRI MAHADEVAPPA, S/O KOTEPPA MALAGI, SINCE DEAD BY HIS LRS- RESPONDENTS NO.1 TO 4 MENTIONED ABOVE ALREADY ON RECORD.
- RESPONDENTS (BY SMT.PALLAVI PACHHAPURE, ADVOCATE FOR SRI. F.V. PATIL, ADVOCATE FOR R1 TO R4)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.03.2013 PASSED IN O.S.NO. 87/2011 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, HAVERI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND PERMANENT INJUNCTION & ETC.
IN R.F.A. CR. OB. NO. 100013/2014
BETWEEN:
NINGAPPA S/O MAHADEVAPPA MALAGI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O DEVAGIRI-YALLAPUR, TQ: HAVERI, NOW AT HANAGAL, TQ: HANAGAL, DIST: HAVERI-581 110.
SUBHAS S/O MAHADEVAPPA MALAGI, AGE: 43 YEARS, OCC.: AGRICULTURE, R/O DEVAGIRI-YALLAPUR, TQ: HAVERI, NOW AT HANAGAL, TQ: HANAGAL, DIST: HAVERI-581 110.
BASAVARAJ S/O MAHADEVAPPA MALAGI, AGE: 40 YEARS, OCC.: AGRICULTURE, R/O DEVAGIRI-YALLAPUR, TQ: HAVERI, NOW AT HANAGAL, TQ: HANAGAL,
: 3 : DIST: HAVERI-581 110.
SMT. SUMA W/O RAJASHEKHAR KUDARIHAL, AGE: 37 YEARS, OCC.: HOUSEHOLD WORK, R/O DEVAGIRI-YALLAPUR, TQ: HAVERI, DIST: HAVERI-581 110. - CROSS OBJECTORS (BY SMT.PALLAVI PACHHAPURE, ADVOCATE FOR SRI. F.V. PATIL, ADVOCATE)
AND:
VASANT S/O MANESHWAR SANU, AGE: 43 YEARS, OCC: AGRICULTURE & REAL ESTATE BUSINESS, R/O VIDYANAGAR, EASTERN SIDE, 2ND CROSS, HAVERI, TQ AND DIST: HAVERI-581 110.
MAHADEVAPPA S/O KOTEPPA MALAGI, AGE: 77 YEARS, OCC.: AGRICULTURE, R/O VIDYANAGAR, EASTERN SIDE, 2ND CROSS, HAVERI, TQ AND DIST: HAVERI-581 110. DEAD AND CROSS OBJECTORS 1 TO 4 ARE TREATED AS LRS.
- RESPONDENTS (BY SRI. K.L.PATIL, ADVOCATE FOR SRI SURESH S. KINI, ADVOCATE FOR R1)
THIS REGULAR FIRST APPEAL CROSS OBJECTION IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.03.2013 PASSED IN O.S.NO. 87/2011 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, HAVERI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND PERMANENT INJUNCTION & ETC.
THIS REGULAR FIRST APPEAL ALONG WITH REGULAR FIRST APPEAL CROSS OBJECTION HAVING BEEN HEARD AND COMING ON FOR DICTATING JUDGMENT THIS DAY, SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:
: 4 : JUDGMENT
The first defendant has preferred the appeal challenging the judgment and decree dated 13.03.2013 of the Addl. Sr. Civil Judge, Haveri, granting the decree of declaration of title of the share of the plaintiffs to the extent of 1 acre 22 guntas each in Sy. No. 74/1 of Devagiri-Yellapur village, Haveri Taluk and District (for short ‘suit property’).
The plaintiffs have preferred the cross objection questioning the correctness of declining the relief of permanent injunction.
A brief account of the pleadings is as follows:
Plaintiffs 1 to 3 are the sons and plaintiff No.4 is the daughter of the second defendant. Agricultural land to an extent of 7 acres 30 guntas in Sy. No. 74/1 of Devagiri- Yellapur village, as described in plaint ‘B’ schedule is the ancestral property of the plaintiffs and the second defendant. The plaintiffs alleged that their father started wasting the suit property and its income for his vices and tried to act detrimental to the interest of the joint family.
: 5 : Therefore, on 04.01.2007 plaintiffs 1, 3 and 4 brought a suit for partition, O.S. No. 1/2007 against their father. The second plaintiff was arrayed as second defendant in the said suit. They also made an application for temporary injunction to restrain their father from alienating the suit property pending disposal of the suit. The Court granted an order of temporary injunction as prayed for, and it was in force till 24.03.2011. During pendency of the suit, on 09.03.2009, the second defendant, i.e., the father of the plaintiffs, violated the order of temporary injunction and sold the suit property to the first defendant for a sale consideration of Rs.15,50,000/-. The plaintiffs thereafter made another application under Order 39 Rule 2A of CPC for punishing their father for violating the order of temporary injunction. The Court allowed the application, and when the second defendant was about to be sent to civil prison, he requested his sons and daughter not to take coercive steps against him. Therefore, they did not take further action. On 24.03.2011, the plaintiffs and the second defendant entered into a compromise according to which
: 6 : each of them was allotted 1 acre 22 guntas of land in the suit property, as described in schedule ‘A’ to the plaint. Thus, O.S. No. 1/2007 ended in a compromise. The plaintiffs thereafter applied to the revenue authorities seeking mutation of the revenue records to their individual names in accordance with the compromise but they did not take any action. The first defendant, based on the sale deed executed in his favour by the second defendant got the revenue records of the suit property entered in his name. They made an appeal to the Assistant Commissioner, who in turn remanded the matter to the Tahasildar. When the matter is pending before the Tahasildar, the plaintiffs learnt that the first defendant was attempting to alienate the suit property to somebody and therefore they brought a suit for declaration of their title, and permanent injunction to restrain the first defendant and his men from interfering with the possession of their individual holdings to the extent of 1 acre 22 guntas each.
: 7 : 4. During pendency of the suit, the plaint was amended to state that when the plaintiffs came to know that their father was fraudulently transacting with the first defendant, on 08.08.2008 an agreement between the father and the first defendant came into existence in the presence of plaintiffs 1 to 3, and the first defendant agreed to buy the suit property for a consideration of Rs.10,00,200/- per acre.
In the written statement of the first defendant, it is contended that defendant No.2 being the manager of the joint family consisting of himself and plaintiffs entered into an agreement of sale with him on 08.08.2008 agreeing to sell the suit property for a consideration of Rs.10,00,200/- per acre and received earnest money of Rs.25 lakhs. The plaintiffs 1, 2 and 3 were present during the negotiations and at the time of execution of the agreement. He paid earnest money of Rs. 25 lakhs to defendant no.2 in the presence of plaintiffs 1, 2 and 3. None of them brought to his notice about the pendency of the suit. They also received the balance of sale
: 8 : consideration and thus he totally paid an amount of Rs.77,51,500/-.
The plaintiffs and defendant No.2 colluded with each other and entered into a compromise in the suit, O.S. No. 1/2007. This compromise is nothing but a fraud and does not bind him. In the sale deed, an amount of Rs.15,50,000/- was shown as the total sale consideration because of the request made by defendant No.2 as he wanted to save income tax. The truth is that he paid balance of Rs.52,51,550/- to first defendant in the presence of plaintiffs 1 to 3 and the attesting witnesses to the registered sale deed. The first defendant took over possession of the suit property pursuant to the sale deed and developed it by investing huge amount. The plaintiffs have not approached the Court with clean hands. Their suit is liable to be dismissed.
Though the trial Court framed eight issues and one additional issue, the suit is mainly dependent on issue Nos.1, 2, 3 and the additional issue, which are extracted as below.
: 9 : 1. Whether plaintiffs proves that they are the owner and possessor of suit property as per their portions shown in schedule “A”? 2. Whether plaintiffs proves that, the defendant No.2 was addicted with bad habits and wasted the family properties? 3. Whether plaintiffs proves that, the defendant No.1 was admitted their right and agreed to purchase suit schedule, “B’ property for 10,00,000/- per acre? Additional issue: Whether plaintiff proves, that the sale deed dated 9.3.2009 is hit by the doctrine of lispendense U/s of T.P. Act? - - - The above issues may be correctly stated as below: 1. Whether the plaintiffs prove that each of them is owner of a portion of suit property as shown in schedule ‘A’? 2. Whether the plaintiffs prove that defendant No.2 was addicted to bad habits and wasting the family properties? 3. Whether the plaintiffs prove that defendant No.1 admitted their right and agreed to purchase the suit property (schedule ’B’ property) for consideration of Rs.10,00,200/- per acre?
: 10 : Additional issue : Whether the plaintiffs prove that the sale deed dated 09.03.2009 is hit by Doctrine of lis- pendense? - - - 7. We have heard the arguments of Sri K.L.Patil, learned counsel for the appellant and Smt.Pallavi Pachhapure, learned counsel for respondents 1 to 4. The points that they raised during the arguments will be dealt with in the course of discussion, however their arguments give rise to the following points for discussion. 1. Has the trial Court correctly held that Sec. 52 of the Transfer of Property Act hits the agreement of sale dated 08.08.2008 and the sale deed dated 09.03.2009? 2. Is the sale as per Ex.D2, void and nullity as defendant No.2 executed it violating the order of temporary injunction? 3. Has the trial Court correctly held that the sale deed as per Ex.D.2 is tainted with fraud and mischief as defendant No.1 might not have paid the balance sale consideration? 4. Is the finding of the trial court that there is no evidence with regard to interference caused by the first defendant with the possession of the plaintiff’s correct?
: 11 : 8. The trial Court has recorded the findings that the sale deed-Ex.D.2 is hit by Sec. 52 of the T.P. Act and therefore the first defendant does not derive any title in respect of the property that actually belongs to the plaintiffs, and at best the first defendant may derive title only in respect of portion of the property that fell to the share of defendant No.2 in the compromise. In this regard it is observed by the trial Court that the suit O.S. No. 1/2007 was filed on 05.01.2007 and on that day, there were no transactions between the first defendant and the second defendant. Ex.D.1 came into existence on 08.08.2008 and that the sale deed as per Ex.D.2 was executed on 09.03.2009. Therefore, these two dates clearly indicate that the transactions took place during the pendency of the suit. Hence, Sec. 52 of T.P. Act would be applicable.
With regard to payment of entire sale consideration, the trial Court has held that the evidence is not consistent. According to the agreement-Ex.D.1, the sale consideration is shown as Rs.10,00,200/- per acre and the
: 12 : first defendant paid an amount of Rs.25,00,000/- to defendant No.2 at the time of agreement. With regard to payment of balance, the first defendant, i.e., D.W.1, stated in the cross-examination that he paid Rs.47,51,500/- a day before sale deed was executed and registered. But, DW2 admitted in the cross-examination that Rs.50,00,000/- was paid at the time of execution of sale deed. Actually the balance was Rs.52,51,500/-. No witness has given evidence that the entire balance of Rs.52,51,500/- was paid. In the sale deed the total sale consideration is shown as Rs.15,50,000/-. Even assuming that the first defendant made payment of the balance amount, his evidence is not believable for the reason that he did not think of obtaining any document from the second defendant for having made payment. No prudent man will make payment in lakhs without obtaining document. Therefore, there is no proof for payment of balance sale consideration. According to the trial court, the transactions are tainted with fraud or mischief. The trial Court has also held that the first defendant is liable to pay the balance sale consideration.
: 13 : 10. With regard to possession, the trial Court has given a finding that the suit property was in the possession of the plaintiffs and defendant No.2 in accordance with respective shares allotted to them in the compromise. However, there is no evidence that defendant No.1 interfered with their possession. For these reasons, the trial Court declared the title of the plaintiffs and dismissed the suit of the respective relief of permanent injunction.
Now the evidence needs to be reassessed. PW1 is the plaintiff himself. It is not necessary to reiterate whatever he has stated in the affidavit filed in lieu of examination in chief as it is nothing but replica of the plaint. But one thing that may be referred to here is that he gave evidence not only on his behalf but also on behalf of the other plaintiffs. Therefore his answers bind the other plaintiffs also. In the cross examination he clearly admitted that he put his signature to Ex.D1 which is the agreement of sale after reading and understanding its contents. His further answer is that entire 7 acre 30
: 14 : guntas of the land was the subject matter of Ex.D1 and that his father was not the only owner of the entire land. He has admitted that till 24.03.2011, they did not inform to the Court about the transactions of agreement of sale and the sale deed. His explanation in this regard is that he was under the impression that his father executed the agreement of sale only in respect of his share. His another answer is that after the compromise, it was not brought to the notice of the revenue authorities for effecting mutation of revenue records to their names and he gives an explanation that he and other plaintiffs thought that they did not want change in the revenue records so long as his father was alive. In the plaint it is alleged that the father was victim of vices, but in the cross examination his clear admission is that his father did not have bad habits.
DW1 is the first defendant. The answers extracted from him in the cross examination indicate that it was PW1, i.e., third plaintiff who brought the offer of sale of the suit property to him by coming over to his house and
: 15 : showing him a revenue extract of the suit land. He asserts to have paid Rs.47,51,550/- to the second defendant a day before execution of the sale deed and taken over possession of the suit property after registration of the sale deed. According to him he developed the land and cultivated it; there was cotton crop in the land.
DW2 is the second defendant. He was summoned by the first defendant. As he did not support him, he was treated hostile and cross-examined by the second defendant’s counsel. The answers that he gave during the cross-examination very clearly indicate that he has not supported the cause of the first defendant; rather when examined by the plaintiff’s counsel, he admitted every suggestion favourable to plaintiffs. When questioned whether he had gone to the office of Sub-Registrar for the purpose of registration, his answer is that he was not mentally sound at that time and that his signatures were taken by playing fraud, and inebriating him. He has also answered that he was taking treatment for the mental
: 16 : illness at Dharmasthala Hospital. When questioned further whether the entire sale consideration was paid to him, and whether he invested money in banks and purchased some vehicles, his answers are that the deposits that he made and the vehicles that he purchased were from his own money.
DW3 is an attesting witness to Ex.D.1 and Ex.D.2. It is his evidence that the third plaintiff (PW1) and he went to the house of first defendant and gave him extract of the suit property. Then in the month of August, 2008, further talks were held in the house of the second defendant with regard to sale of suit property. Resultantly agreement of sale came into existence and that the first defendant agreed to purchase the property for a consideration of Rs.10,00,200/- per acre and that the first defendant paid the entire sale consideration of Rs.50,00,000/- to the second defendant before registration of the sale deed. Then he further answered that at the request of the second defendant, the consideration amount was shown as Rs.15,50,000/- and
: 17 : that the second defendant handed over possession to the first defendant soon after execution of the sale deed.
DW4 is the in-charge Sub-Registrar. Probably the first defendant examined him to further establish the execution of sale deed-Ex.D.2. DW4 speaks about registration of sale deed and has stated that before registration, he read over contents of the sale deed to the parties and then obtained their signatures.
Ex.P.1 produced by the plaintiff is the ROR of the suit property. This document shows name of the second defendant both in columns 9 and 12. Ex.P.2 is the certified copy of the plaint in O.S. No. 1/2007. Ex.P.3 is the certified copy of I.A. No. 1 in O.S. No. 1/2007. Ex.P.4 is the certified copy of the order sheet in the suit, Ex.P.5 is the certified copy of the written statement, Ex.P.6 is the certified copy of the order passed on I.A. No. 5 and Ex.P.7 is the certified copy of the final decree. Ex.P.8 is the certified copy of the sale deed, Ex.P.9 is the certified copy of the order passed by the Assistant Commissioner, Haveri, Ex.P10 is the copy of the application.
: 18 : 17. Ex.D1 is the agreement of sale and Ex.D2 is the original sale deed. Ex.P8 and Ex.D2 are the same documents.
Some dates are to be noted here. The plaintiffs filed suit O.S. No. 1/2007 on 05.01.2007. The date of agreement is 08.08.2008. Sale deed came into existence on 09.03.2009. There was a compromise between the plaintiffs and their father, i.e., second defendant, in O.S. No. 1/2007 on 24.03.2011. Ex.D1 and Ex.D2 came into existence during pendency of the suit, i.e., before the suit ended in a compromise between the parties. It is not disputed that the plaintiffs made an application under Order 39 Rule 2A CPC against their father on 22.06.2010 and that the said application came to be allowed.
Learned counsel for the appellant Sri K.L. Patil argued that the plaintiffs were very much aware of the sale deed executed by their father in favour of the first defendant, answers that PW1 has given in the cross examination clearly indicate that he and other plaintiffs were present not only at the time when the agreement
: 19 : came into existence but also when the sale deed was executed and registered. The plaintiffs did not bring it to the notice of the Court about the agreement of sale; suppressing these two transactions they reported compromise in the suit O.S. No. 1/2007. The compromise was the outcome of collusion between father and children; it was intended to defraud the first defendant. Section 52 of Transfer of Property Act is not applicable in the case of fraud; the plaintiffs being the witnesses to agreement cannot say that sale is bad.
Smt.Pallavi Pachhapure submitted that O.S. No. 1/2007 was a suit for partition. When the transactions took place during pendency of the suit and when the second defendant executed sale deed in favour of first defendant violating the order of temporary injunction, the entire transaction would stand vitiated. The first defendant did not derive any title or interest in respect of the suit property. The plaintiffs were not parties to the sale deed-Ex.D2, it may be a fact that they were witnesses to Ex.D1, but they were not executants of the
: 20 : agreement and therefore these two transactions do not bind their interest. In support of her arguments she has placed reliance on the judgment of the Supreme Court in the case of (1) Surjit and Ors. Vs. Harbans Singh and Ors (AIR 1996 SC 135); (2) Vidur Impex and Traders Pvt. Ltd. And Ors. Vs. Tosh Apartments Pvt. Ltd. And Ors. (AIR 2012 SC 2925) and (3) Jehal Tanti and Ors. V. Nageshwar Singh (Dead) through L.Rs. (AIR 2013 SC 2235).
If the evidence of PW1 is assessed, it is possible to draw inferences that though he has stated that he was under the impression that the father was executing the sale agreement only in respect of the property that was allotted to him in the compromise, the said answer is not possible to be accepted for the reason that his clear another answer is that he read over the entire document- Ex.D.1 and then put his signature on it. He has also given an answer that he came to know that the entire 7 acres 30 guntas of land was comprised under the agreement. PW1 admits his signatures and also signatures of other
: 21 : plaintiffs on the agreement. It is possible to say that though all the plaintiffs put their signatures as witnesses, being aware of the entire transaction, they consented for the agreement of sale to come into existence.
It is true that the plaintiffs are not the executants of the sale deed, Ex.D2 nor were they witnesses to it. It is of no consequence, because the plaintiffs having given their consent by putting their signatures as witnesses in the circumstances narrated above, they were very much aware of the coming into being of the sale deed. From the evidence of DW3, it is possible to draw an inference that PW1 was also present at the time when the sale deed was registered. Therefore the fact remains that all the plaintiffs were very much aware of the transactions as per Ex.D1 and Ex.D2, although plaintiff No.4 was not a signatory as a witness to Ex.D1. The facts clearly show that the plaintiffs were as much responsible as defendant No.2 for coming into being of Ex.D1 and Ex.D2. A question therefore arises whether they can complain of violation of
: 22 : injunction order and contend about applicability of Section 52 of Transfer of Property Act.
The plaintiffs might have stated that the sale deed is bad as it came into existence during pendency of the suit. It is true, but the facts disclose that they too were very much aware of the entire transaction and they did not bring it to the notice of the Court. Suppressing the entire transaction, if the plaintiffs and the second defendant entered into compromise between themselves, it is nothing but a fraud played on the Court. Collusion between them is very much apparent.
The plaintiffs made an application under Order 39 Rule 2A for punishing defendant No.2 for violating the order of temporary injunction that was operating against him. Certainly when an order of temporary injunction is violated, contemnor or the violator needs to be punished, the order of the court should not be allowed to be dishonoured by the parties to the suit; else, the order will loose its sanctity. Smt.Pallavi Pachhapure has argued that not only the violator should be punished, but the
: 23 : transaction that takes place in violation of the order of temporary injunction should be declared to be void. If the decisions she has cited are referred to, in Surjit and others (Supra), it is held:
“In defiance of the restraint order, the alienation/assignment was made. If we were to let it go a such, it would defeat the ends of justice and the relevant public policy, When the court intends a particular state of affairs to exist while it is in seizing of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the rights, to treat the alienation/assignment as having not taken place at all for its purpose.”
In Vidur Impex and Traders Pvt. Ltd., and others (supra), the Supreme Court has held that an agreement of sale that came into existence in clear violation of an order of temporary injunction did not confer any right upon appellants (i.e., the purchasers). In the case of Jehal Tanti and others (supra), what is held is that the sale deed that comes into existence during currency of order of
: 24 : injunction order does not have any legal sanctity and is hit by doctrine of lis pendense.
But in the case of Thomson Press (India) Ltd. V. Nanak Builders and Investors P. Ltd. And Ors. (AIR 2013 SC 2389), the Supreme Court has held:
“52, There is, therefore, little room for any doubt that the transfer of the suit property pendent elite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above discussions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubt less incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any issue in the suit against the vendor.”
(emphasis supplied)
: 25 : 27. It is the argument of Smt.Pallavi Pachhapure that the principle laid down by the Hon’ble Supreme Court in Thomson Press only saves the transaction between the first and the second defendant insofar as it relates to the latter’s share only and the sale does not affect the plaintiffs’ interest.
We are unable to accept her arguments because as discussed above, though the plaintiffs were not parties to the sale deed, the circumstances clearly indicate that they were very much aware of the transactions made by their father, and particularly, the plaintiffs 1 to 3 were witnesses to the agreement of sale. Though the plaintiffs have signed as witnesses, the circumstances indicate that they were consenting witnesses. Section 52 of the Transfer of Property Act cannot be applied in a collusive suit.
Moreover the plaintiffs being aware of the transaction cannot try to save the sale made by the second defendant under the garb of Section 52 of Transfer of Property Act. The trial court might have allowed the application filed under Order 39 Rule 2A of CPC finding
: 26 : that second defendant violated the order of temporary injunction, but as has been held by the Supreme Court, in the case of Thomson Press, the sale in favour of the first defendant cannot be rendered to be invalid. Need to restore the status quo ante of the property is subject to the final result in the suit.
There is no dispute that the second defendant was the manager of the joint family. In fact, in paragraph No.5 of the plaint itself it is clearly stated that the second defendant was the manager. According to the first defendant, the legal necessity was that the second defendant had borrowed money from two banks. DW2 admits to have borrowed money from the banks. Though in the plaint it is stated that the second defendant was addicted to bad habits and was wasting the suit property, PW1 in the cross examination has clearly admitted that his father did not have bad habits. This shows very clearly that false averments have been made in the plaint to deprive the first defendant of the property he purchased.
: 27 : 30. Smt.Pallavi Pachhapure argued that the first defendant being the purchaser has not proved the necessity of the family for alienating the suit property. In support of her arguments she placed reliance on the judgment of the supreme Court in Rani and Ors. V. Santa Bala Debanth and Ors. ([1970] 3 SCC 722. What is held in this judgment is that the alienee must establish legal necessity and the recitals in the deed do not by themselves prove legal necessity. This has been well established principle. The decision in this regard is to be taken on the proved facts. DW2, i.e., the second defendant, in the cross examination has very much admitted that he had incurred debts from two banks. But in our opinion, the question of legal necessity does not arise here. The reason is that the plaintiffs were very much aware of the entire transactions between the first defendant and second defendant. Inference can be drawn on the basis of proved facts that the plaintiffs were parties to the sale deed impliedly. The matter would have been totally different had the second defendant entered
: 28 : into transaction with first defendant ignoring his children. Therefore, the argument of Smt.Pallavi Pachhapure fails.
The trial Court has made another observation that there is no consistent evidence with regard to payment of sale consideration. It is true that if DW1 has answered that he made payment of Rs.47,51,500/-, DW3 has given an answer that DW1 made payment of Rs.50,50,000/- whereas actual balance was Rs.52,51,550/-. We too find inconsistency in the evidence in this regard. The trial Court has gone to the extent of holding that the second defendant can recover the balance amount if it is not paid and this is also one of the reasons for not believing the sale made by the second defendant. The principle is that whenever a registered sale deed comes into existence, merely because entire sale consideration is not paid the transaction cannot be invalidated. Sellers can recover the amount from purchasers by filing a suit for recovery of money. The trial Court’s finding, therefore, cannot be accepted.
: 29 : 32. As regards the possession, the trial Court is of the opinion that the plaintiffs were in possession. The first defendant asserts to have taken over possession of the suit property pursuant to the sale deed. In fact, DW3 also says that the second defendant handed over possession to the first defendant. The trial Court’s finding is that according to the evidence of DW3, the plaintiffs are in possession. We do not find any such admission by DW3. Sri K.L. Patil, argued that Ex.P9 itself indicates that possession was handed over to the first defendant. On perusal of Ex.P9 what we understand is that probably after Ex.D2 came into existence, the first defendant applied for effecting mutation of the revenue records to his name and the same was challenged by the plaintiffs by filing an appeal to the Assistant Commissioner. The order of the Tahasildar came to be stayed and therefore the revenue records as they stood before the execution of the sale deed continued. It is pertinent to note that the ROR- Ex.P.1 still continues in the name of the second defendant. Of course there is a recital in the sale deed that possession was handed over, but this recital alone
: 30 : cannot be considered for holding possession of the suit property to be with the first defendant.
Nothing prevented the first defendant from producing documents in connection with drilling a bore well and obtaining power supply if really he had taken over possession and developed the land.
The trial Court has denied the relief of permanent injunction because the plaintiffs failed to provide any evidence with regard to interference said to have been caused by the first defendant. Our assessment of evidence shows that there is no evidence to show that the first defendant in fact interfered with the possession of the plaintiffs. The trial Court’s conclusion in this regard is correct
In the result, we come to the conclusion that the appeal deserves to be allowed and the cross objection, dismissed. Accordingly, we pass the following order. ORDER
R.F.A. No. 4101/2013 filed by the appellant-first defendant is allowed. Consequently, judgment of the trial
: 31 : Court decreeing the suit partly declaring title of the plaintiffs in respect of the suit property, is set aside. Suit is dismissed with regard to declaration of title.
Cross objection of the plaintiffs is dismissed. There is no order as to costs.
SD/- JUDGE
SD/- JUDGE bvv