Judgment:
1. These appeals are heard and disposed of together by this common judgment, as all the appeals are by the same appellant.
The appellant was the plaintiff in the civil suit in O.S.No.5293 of 1993, before the City Civil Court, Bangalore and RFA No.139 of 2009 is preferred against the judgment therein.
The appellant was the first defendant in the civil suit in O.S.No.4807 of 1995, before the City Civil Court, Bangalore. The said suit was disposed of by a common judgment along with the suit of the appellant in O.S.No.5293 of 1993 aforesaid. RFA No.445 of 2009 is filed challenging the decree in favour of the respondent therein.
The appeal in RFA No.34 of 2010 is filed challenging the dismissal of the suit by the appellant, against several defendants in the civil suit in O.S.No.1799 of 1995, before the City Civil Court, Bangalore.
2. The facts are said to be as follows:
One N.G. Lakshmamma, wife or one B.C. Ramakrishna, was the plaintiff in the civil suit in O.S.No.5293 of 1993. She was said to be in possession of property bearing No.125/1, Corporation Division No.36, I Cross, Valmikinagar, Bangalore, measuring about 28 X 60 feet. The said property which was more fully described in the schedule to the suit was the subject-matter. The suit was filed against one Sharada Bai, for the recovery of possession and injunctory reliefs.
It was the plaintiff's case that she was the absolute owner of property measuring 1 acre and 30 guntas in land bearing Survey No.24 (old Survey No.1) of Karithimmanahalli, Bangalore Taluk. The same was said to have been purchased from one Girigowda, s/o Thimmegowda under a registered sale deed dated 20-9-1974. Girigowda is said to have purchased the same at a Court auction sale, pursuant to a decree in a civil suit, in O.S.No.622 of 1957. And he was said to have been put in vacant possession of the same after eviction of certain unauthorised occupants, pursuant to directions of the Executing Court in Execution Case No.144 of 1967.
It was stated that after purchase of the property, the plaintiff had formed house sites on the said land and had distributed to her kith and kin, while retaining some of the sites. The suit schedule property was said to be one such site.
The plaintiff is said to have constructed a hut on the suit property. A person was said to have been engaged to reside in the hut to safeguard the property from trespassers. It was alleged that the defendant along with her hired henchmen had, use of force, entered the property and had set fire to the hut after driving away the occupant and simultaneously are said to have started to commence foundation work to commence construction on the property. This event, as on 19-8-1993, was said to be the cause of action. The plaintiff was said to be constrained to file the suit as the jurisdictional police are said to have refused to intervene on the basis of her complaint, as in the opinion of the police, the matter was of a civil nature.
It transpires that the defendant had alienated the suit property, in favour of one Firoz Khan, who was impleaded as the second defendant, claiming as the rightful owner of the property, even during the pendency of the suit. The plaintiff had hence amended the plaint to further plead that the land bearing Survey No.24 of Karithimmanahalli, measuring 1 acre and 30 guntas originally belonged to her husband, B.C. Ramakrishna, who is said to have mortgaged the property to one Puttaswamaiah, who is then said to have filed the suit for recovery of money and enforcement of the mortgage in O.S.No.622 of 1957. During the pendency of the suit, Ramakrishna, the husband of the plaintiff is said to have sold the very suit property in the present case, which formed a portion of the suit property in O.S.No.622 of 1957, to one Munihuchappa, in the year 1961, who in turn is said to have sold the same to one Eshwar Sa, in the year 1962. Sharada Bai, a legal heir of Eshwar Sa, is then said to have alienated the suit property, even during the pendency of the present suit, in favour of the second defendant-Firoz Khan, who was subsequently impleaded.
The plaintiff hence contended that the above transactions having taken place during the pendency of the suit pertaining to the land, in which the suit schedule property was a portion, the same are subject to the decree that was ultimately passed in O.S.No.622 of 1957 and the sale in favour of the plaintiff by the auction purchaser, pursuant to the said decree, would prevail over the aforesaid transactions and hence the defendants could not claim title to the property on the basis of the aforesaid sale deeds.
It was further claimed that even the second defendant had trespassed into the suit property and had put up sheds and had let out the same to third parties.
3. The appeal in RFA No.139 of 2009, is field by Lakshmamma against the judgment in the suit in O.S.No.4807 of 1995, before the Court of the City Civil Judge, Bangalore, which was filed by Firoz Khan-the second defendant, in the suit filed by Lakshmamma “aforesaid, seeking a permanent injunction against Lakshmamma and her son, Srinath, from interfering with the same suit property. Hence the suit in OS No.5293 and the suit in OS No.4807 of 1995 were disposed of by a common judgment by the Trial Court, wherein the suit by Lakshmamma was dismissed and the suit by Firoz Khan was decreed.
4. The appeal in RFA No.34 of 2010 is filed by N.G. Lakshmamma against the dismissal of her suit, filed against several defendants, on the following assertions. That she was the owner of a site, formed in land bearing Survey No.24 of Karithimmanahalli. It was claimed that the plaintiff had purchased a total extent of 1 acre and 30 guntas of land in the said survey number, from one Girigowda, who is said to have purchased the same at a Court auction pursuant to the decree in the civil suit in OS No.622 of 1957, as already stated hereinabove, under a registered sale deed dated 20-9-1974.
The suit was originally filed against the first defendant, also called Lakshmamma, wife of S.R. Govindaswamy, who is said to have filed her written statement as on 1-4-2003, to state that she had sold the said property to defendants 2 to 5, therefore the plaint was amended and the said defendants 2 to 5 had been impleaded. The appellant had then sought amendment of the plaint to seek declaration of title to the suit property which was allowed.
The plaintiff had then urged the same ground, namely, that any sale transaction traceable to the initial sale by Ramakrishna, who was the judgment-debtor in O.S.No.622 of 1957 was not binding on the decree-holder or the auction purchaser, insofar as the land which was the subject-matter of the said suit, was concerned.
5. The learned Counsel for the appellant has, in the above background, taken this Court through the record in RFA No.34 of 2010, in particular, as the said appeal arises out of a comprehensive suit pertaining to the title of the appellant.
It is reiterated that the plaintiff claims title through one Girigowda, having purchased a total extent of 1 acre and 30 guntas of land in land bearing Survey No.24 of Karithimmanahalli, now known as Valmikinagar, Bangalore. Girigowda is shown to have obtained an assignment of a decree in O.S.No.622 of 1957. The original decree-holder, C. Puttaswamaiah, is said to have filed the suit therein, for enforcement of a mortgage and recovery of money. In the course of final decree proceedings, the entire extent of land measuring 1 acre and 30 guntas is said to have been issued in favour of Girigowda. Girigowda in turn, having sold the same property to the plaintiff-appellant under a sale deed dated 28-9-1974, she was claiming as the absolute owner thereof. The suit properties were portions of the said land formed into house sites.
The defendants on the other hand were claiming their title through B.C. Ramakrishna, who was the defendant in O.S.No.622 of 1957. Inspite of Ramakrishna having suffered a decree, as on 30-1-1959, and even during the pendency of the execution proceedings had executed a sale deed with respect to one of the suit properties as on 4-3-1963. Subsequently, defendant 1, in the suit in O.S.No.1799 of 1995, having sold the property to defendant 5 therein, under a sale deed dated 8-2-1994, the transaction was hit by the doctrine of lis pendens.
It is urged by the learned Counsel for the appellant that the Trial Court had failed to consider the primary aspect that the appellant was claiming title through the decree-holder, at whose instance the Court had brought the land belonging to the defendant to sale by auction, for the recovery of money. The assignee of the decree then having sold the property in favour of the appellant, has not been appreciated.
It is contended that the Trial Court had completely ignored the fact that the doctrine of lis pendens could not have affected the title of the plaintiff as the only exception to the said doctrine would have been a circumstance where there was collusion between the judgment-debtor and the purchaser to defeat the rights of the decree-holder. As the appellant was claiming through the decree-holder there was no question of the doctrine operating- with regard to the transaction of the plaintiff. On the other hand, it is contended, the doctrine would squarely apply to the transaction of the defendant as the sale transaction claimed by the defendant was clearly during the interval between the date of decree, 30-1-1959 and the issuance of the sale certificate, 25-7-1972.
6. On the other hand the learned Senior Advocate, Sri Udaya Holla, appearing for the Counsel for the respondents would contend that the apparent fraud which has been noticed by the Trial Court would fully justify the impugned judgments. He would highlight the fact that Ramakrishna, the defendant in the suit in OS No.622 of 1957, is none other than the husband of the appellant. It was also on record that he had alienated the very suit property during the pendency of the proceedings against him. The appellant was a signatory to the sale transactions. Therefore, when she was privy to the information of the pending proceedings in respect of the larger extent of land in Survey No.24 of Karithimannahalli, the formation of house sites and the sale of the same by her husband Ramakrishna having been seconded by her, would hardly enable her to purchase the very sites from the auction purchaser in the suit against her husband. It is urged that the assignment of the decree by Puttaswamaiah, the original plaintiff in favour of Girigowda, the vendor, in favour of the appellant for a nominal amount and the subsequent sale of the entire extent of 1 acre and 30 guntas of prima land in favour of the appellant, who was none other than the wife of the defendant in the suit, again for a paltry amount, was clearly indicative of collusion by all concerned. It is contended that it would be rather na ve to accept that the appellant had acted in good faith in purchasing the property notwithstanding her knowledge that the very same property was subject-matter of pending litigation, involving her husband and the fact that she was party to sale transactions pertaining to portions of land involved therein.
7. By way of reply, the learned Counsel for the appellant would contend that there are neither pleadings nor proof as regards the alleged fraud and collusion and hence such contentions cannot be countenanced.
8. In this regard, the learned Senior Advocate has drawn attention to authorities to contend that when fraud and collusion is apparent from the material on record, the insistence on compliance with form, would not be justified and that the Court would be duty bound to address the glaring circumstances, in either accepting the case put forth or negating the same.
9. In the light of the above contentions and on a perusal of the record, it is seen that the Trial Court had on the basis of the title set up by the appellant in the suit in O.S.No.1799 of 1995 had framed the following issues:
1. Does plaintiff prove that she became owner of the plaint schedule site under registered sale deed dated 20-9-1974 executed by Girigowda referred in para 4 of plaint?
2. Did defendants attempt to dig trenches in schedule property on 12-3-1995 to lay foundation illegally?
3. Are the alienations made by B.C. Ramakrishna in favour of Govindaswamy and the alienations made by first defendant in favour of defendants 2 to 5, valid and binding on plaintiff?
4. Did 6th defendant illegally occupy western portion of suit property to the extent of 20x 40as alleged in para 18 of plaint?
5. Did defendants 1 to 5 illegally fence the eastern portion of suit property as alleged in para 18 of plaint?
6. Is plaintiff entitled for restoration of possession?
7. Is the plaintiff entitled for the relief of mandatory injunction?
8. Is plaintiff entitled to be declared as owner of suit property? ?
The Trial Court had answered Issues 1, 2 and 4 to 8 in the negative and Issue 3 in the affirmative and dismissed the suit of the plaintiff.
It is seen that the Trial Court has refused to grant any relief to the appellant on findings that the bona fides of the appellant are found wanting. In that, Ramakrishna, was admittedly the husband of the appellant. He was the defendant in the suit in which the entire extent of 1 acre and 30 guntas was involved. Even during the pendency of the suit Ramakrishna had formed house sites on the land and sold the same to third parties, to which the appellant was a party.
When the very same property was brought to sale in the suit against Ramakrishna, it was evident that there were 10 houses, a shop and a reeling factory existing on the land. No measures were taken to evict the occupants in the land being transferred. It was only symbolic possession that was granted in favour of the auction purchaser, at the Court auction in favour of the assignee of the decree. The Trial Court has noticed that the sale price was a mere Rs.5,000/- and the re-sale by the auction purchaser to the appellant was again at the same price of Rs.5,000/-. And the appellant being fully aware that the very same property had been converted into sites and had been sold in favour of third parties who were in possession of the same, has proceeded to purchase the same. The Trial Court had thus concluded that there was indeed an elaborate scheme under which the appellant and her husband with the active connivance of the decree-holder, his assignee, Girigowda had proceeded.
It is seen that the plaintiff had not chosen to enter the witness-box and it was her son who had tendered evidence in support of the case. It was evident that having regard to the age of the said witness, he was not competent to speak of past events, especially as regards the fact of Ramakrishna having sold sites formed in the land in question, as the witness would have been about ten years old at the relevant point of time. The Trial Court has thus concluded, that the witness was only speaking from information gathered by him and which could only be termed as hearsay.
Further, it was also elicited from the witness, that Puttaswamaiah, the decree-holder in O.S.No.622 of 1957, is said to have filed a suit against his father and two brothers in O.S.No.5657 of 1987, and that the brothers who were minors had been represented by their mother, the plaintiff herein and this would indicate that she was aware of the land in question being in dispute, but inspite of which her husband had, to her knowledge formed sites and sold the same to third parties.
It is also evident that the plaintiff had chosen to describe herself as the daughter of N.C. Gangappa, in the cause title to the plaint, apparently to conceal the fact that Ramakrishna her husband, had played fraud in alienating the sites formed in the land even during the pendency of the suit against him, as aforesaid.
Insofar as the primary contention of the appellant that the defendants seeking to claim title under sale deeds that could be traced to the conveyance by Ramakrishna as being subservient to the sale in favour of the auction purchaser and the subsequent sale in favour of the appellant is concerned, it is evident that the appellant had colluded with her husband in alienating the sites formed on the land in question and again had proceeded to purchase the same property from the auction purchaser, which did not render her conduct as being above board. The benefit of Section 52-A of the Transfer of Property Act, 1882, could not hence be claimed by her.
It is also contended that the respondents had not pleaded and proved fraud and collusion and hence to negate the case of the appellant on the ground of fraud and collusion is not available. However, it is pointed out by Shri Holla, that there are averments in that regard in the written statement of the defendants. Even assuming that there were no pleadings, as laid down in the case of Lachhman Dass v Jagat Ram ((2007) 10 SCC 448), even if in a given case fraud and collusion was not specifically pleaded, but if such mischief is apparent on the face of the record, a Court of law is required to act on it. That case involved the following facts:
D, owner of the suit property, transferred the suit land in favour of J and G, wife of J (respondent-defendants 1 and 2, respectively), J and G, in turn, by a registered deed of sale dated 11-10-1982 transferred their right and interest therein in favour of the appellant, who was the tenant of the suit property under D.
C, daughter of D, claiming a right of pre-emption in terms of the Punjab Pre-emption Act, 1913 (the Act) file a suit for pre-emption impleading only J and G therein. A compromise was entered into between the parties in the said proceedings. A consent decree was passed in favour of C, wherein it was recorded inter alia that J and G conceded that C had a superior right of pre-emption. C admitted that the suit land was actually sold for Rs.30,000 by the vendors, J and G. The Counsel for the C paid Rs.24,000 to J and G in Court and the remaining Rs.6000 had already been deposited in the Court as 1/5th of the pre-emption amount. Thereafter C was put in possession of the said land in purported execution of the said decree of pre-emption.
A deed of gift was executed by J on 24-1-1984 in favour of his sons and daughters. They applied for mutation of their names, which was granted in their favour by an order dated 28-1-1985. Assailing the said order of mutation as also the abovesaid consent decree, a suit was filed by the appellant-tenant. The said suit was dismissed. First appeal as also a second appeal preferred there against were also dismissed. The appellant was before the Supreme Court there against by special leave.
The Apex Court, inter alia, held that the fact that the appellant-tenant had purchased the suit premises was known to C. The manner in which the purported consent decree was entered into between C on the one hand and J and G is telltale. J and G having transferred their right and interest, could not have conveyed any right in the property to C. No such right existed in them. The purported consent decree was void ab initio. The parties to the said suit and, in particular, J and G, therefore, by suppression of material facts committed a fraud on the Court in obtaining the said decree. It may be true that collusion between C and J and G was required to be specifically pleaded, but in this case collusion between them is apparent on the face of the record. The circumstances obtaining in the case lead to only one conclusion that the parties were in collusion with each other for the purpose of obtaining the said decree ?.
Hence in the facts and circumstances of the case, there is no merit in these appeals and the same are dismissed.