T. Narayana vs Kanyakumari Builders Pvt. Ltd. and Others

B.S. Patil, J.—This review petition is filed seeking review of the order dated 24.6.2014 passed in M.F.A. No. 10054/2013. By the said judgment, this court has confirmed the order dated 19.11.2013 passed by the trial Court, thereby dismissing the application filed by the plaintiff/review petitioner seeking temporary injunction to restrain the defendants from interfering with the peaceful possession of the plaintiff over the suit schedule property bearing Sy. No. 14/P7.

In fact, the judgment under review was challenged by the review petitioner before the Apex Court in S.L.P.(Civil) No. 26288/2014. As per the order dated 31.10.2014, the Apex Court while holding that there was no ground to entertain the Special Leave Petition and hence the petition had to be dismissed, has observed that it was open for the petitioner to move the High Court by way of review. Order passed by the Apex Court reads as under:

"Heard learned counsel for the petitioner and perused the relevant material.

We do not find any good ground to entertain this Special Leave Petition. The Special Leave Petition is, therefore, dismissed. However, we leave it open to the petitioner to move the High Court by way of review. We make it clear that we have expressed no opinion in the matter on merits. In the event, it becomes so necessary, the petitioner will be at liberty to approach this court again."

I have heard both the learned Senior Counsel Sri Jayakumar S. Patil, appearing for the petitioner and Sri Ashok Haranahalli appearing for the respondent.

The main contention of the review petitioner is that this Court has committed an apparent error in coming to the conclusion that looking to the Power of Attorney, Sale Deed and the Agreement to Sell, in most places the property given to the defendants was described as 14/P7 and not as 14/P6 and that even as regards the boundaries referred to in the documents, it pertained to property No. 14/P7 and not 14/P6, therefore, the boundary had to prevail, hence, no case had been made out by the plaintiff for grant of an order of temporary injunction''.

Facts involved are that the review petitioner/plaintiff has filed the suit O.S. No. 7765/2008 for permanent injunction to restrain the defendants from interfering with his peaceful possession of the suit schedule property. The suit schedule property is land bearing Sy. No. 14/P7 of Kadubeesanahalli Village, Varthur Hobli, Bangalore East Taluk, measuring 17.08 guntas. Its boundaries are described as:

"East by: lands of T. Venkatesha

West by: road and Kariyammana Agrahara Gadi

North by: lands in Sy. No. 15/IA

South by: H.D.A. Ring road"

According to the plaintiff, his brother T. Krishnappa purchased 1 Acre 15 guntas of land in Sy. No. 14 vide Sale Deed dated 7.9.1994. Later, as per Partition dated 08.06.2000, the property was divided between plaintiff and his brothers. An extent of 10 guntas was acquired by the B.D.A. Out of the remaining extent of 1 Acre, elder brother of plaintiff - T. Krishnappa was allotted 5 guntas, another brother- T. Venkatesha was allotted 17.8 guntas and the plaintiff was allotted 17.8 guntas in Sy. No. 14. Ever since the date of partition, plaintiff claimed to be in possession of the suit schedule property.

Plaintiff further claimed that himself and his brothers got an extent of 1 Acre including the suit schedule land converted for non-agricultural purpose as per order dated 6.10.2005 passed by the Deputy Commissioner, Bengaluru.

Plaintiff also claimed that Sy. No. 14/P6 measuring 15 guntas was purchased by him as per Sale Deed dated 13.12.1996; it is in respect of this property, he along with his wife and children entered into an Agreement for Sale in favour of M.R. Seetharam - defendant No. 3 and also executed a General Power of Attorney dated 31.5.2003 in favour of one Sri V.R. Radhakrishna; the said Radhakrishna executed a Development Agreement dated 10.10.2005 in favour of other defendants; but, the defendants highhandedly trespassed into the suit schedule property bearing Sy. No. 14/P7 with the help of rowdy elements and damaged the structure in the suit schedule property; hence, plaintiff was constrained to approach the court.

The defendants, particularly, the purchaser -defendant No. 2 has asserted in the written statement that it was Sy. No. 14/P7 which has been sold in their favour as per the agreement to sell, the general power of attorney and the registered sale deed and hence, plaintiff had nothing to do with the suit land.

As can be seen from the documents on record, in the partition deed dated 08.06.2000, Sy. No. 14 is mentioned at Item No. 2. An extent of 25 guntas out of this property has fallen to the share of plaintiff - T. Narayana. No sub number was assigned. It is out of this property, 15 guntas was sold as per the agreement to sell executed on 27.11.2002 by T. Narayana - plaintiff, his wife and children in favour of M.R. Seetharam - defendant No. 3. A perusal of the agreement to sell discloses that the vendors T. Narayan, his wife and children have represented to the purchaser that they were the owners in possession and enjoyment of 25 guntas of agricultural land in Sy. No. 14/P7; they offered to sell 15 guntas out of 25 guntas in Sy. No. 14/P7 for a total consideration of Rs. 49,00,500/- at the rate of 300/- per sq. ft.; the vendors also agreed to execute a power of attorney in favour of purchaser or his nominee for the purpose of securing conversion, sanction and approvals from various statutory authorities for sale/joint venture.

In the schedule to the agreement for sale, the property has been clearly described as agricultural land bearing Sy. No. 14/P7 measuring 15 guntas with the following boundaries

"East by: remaining portion of the same survey number belonging to the vendors.

West by: Karimammana Agrahara Village boundary and Road.

North by: Sy. No. 15/1C belonging to Venkatappa and Shankarappa.

South by: Ring road and remaining portion of Sy. No. 14/P6 of Muniyamma."

It is thus evident that there is absolutely no confusion with regard to the fact that 15 guntas of land comprised in Sy. No. 14/P7 was agreed to be sold as per the agreement to sell dated 27.11.2002 entered into by the plaintiff, his wife and children in favour of M.R. Seetharam. Vendors executed a general power of attorney on 31.05.2003 in favour of V.R. Radhakrishna as provided for and agreed to in the agreement to sell and in the said general power of attorney, there is reference to the agreement for sale but while mentioning the survey number in the schedule, instead of mentioning agricultural land bearing No. 14/P7 reference is made to Sy. No. 14/P6. If one reads paragraph No. 2 of the general power of attorney, it becomes very clear that they had already entered into an agreement of sale in respect of schedule land in favour of M.R. Seetharam. Boundaries mentioned in the schedule to the general power of attorney tallies with the boundaries mentioned in the agreement to sell.

Now the sale deed on which the plaintiff has placed reliance to trace his title has to be perused, particularly, with reference to the boundaries to see whether the plaintiff has made out a case that he was the absolute owner in possession of 15 guntas of land comprised in Sy. No. 14/P7 and what was sold was Sy. No. 14/P6.

The said sale deed dated 13.12.1996 has been executed by Muniamma W/o Yallappa along with Yallappa in favour of plaintiff. The property which is sold in favour of plaintiff has been shown as 15 guntas of land in Sy. No. 14 having the following boundaries:

"East by: Canal

West by: remaining land of ours (Muniamma and Yellappa) in the same Sy. No.

North by: Our item land, Thammaiah and Aswatharaju''s land

South by: Your item land, T. Venkatesha''s land."

If one juxtaposes the boundaries found in this sale deed with the agreement for sale, the general power of attorney and the registered sale deed executed in favour of defendant No. 2, it would be very clear that the property which is the subject matter of sale deed dated 13.12.1996 is different from the one which is the subject matter of agreement to sell, the general power of attorney and the sale deed dated 26.07.2007.

On the basis of the general power of attorney executed by the plaintiff - T. Narayan, his wife Manjula and his two children, the general power of attorney holder Sri V.R. Radhakrishna has executed registered sale deed dated 26.07.2007 in favour of defendant - M/s. M.S. Ramaiah Developers and Builders Pvt. Ltd., conveying all the right, title and interest over the property to the purchaser. A perusal of this sale deed makes it clear that suit Sy. No. 14/P7 measuring 25 guntas was allotted to the plaintiff in the registered partition that took place on 08.06.2000; he was put in possession of the same; plaintiff in order to meet his domestic needs and to improve other properties decided to sell an extent of 15 guntas out of the total extent held by him in Sy. No. 14/P7; an agreement to sell was entered into in that regard on 27.11.2002; the absolute sale deed was executed for Rs. 49,00,500/-.

The sale consideration of Rs. 49,00,500/- has been shown to have been paid as under:

"a) Rs. 13,00,000/- by cheque bearing No. 691730 dated 27.11.2002.

b) Rs. 2,00,000/- by cheque No. 721877 dated 29.05.2003.

c) Rs. 24,00,000/- on 16.01.2003 by cash

d) Rs. 14,00,500/- on 29.05.2003 by cash"

These recitals are found in the registered sale deed. The schedule mentioned in the registered sale deed describes the property as old Sy. No. 14/P6 (New No. 14/P7 of Kadubisanahalli Village, Varthur Hobli, Bangalore East Taluk, bounded as under:

"East: By remaining land in same survey number.

West: By Kariammana Agrahara Village Road.

North: By land bearing Sy. No. 15/1C

South: By Muniyamma''s land and Ring road."

It is thus clear that if the agreement of sale, the general power of attorney and the sale deed are carefully scrutinized, the property purchased by the defendant is Sy. No. 14/P7 and not Sy. No. 14/P6. The boundaries mentioned in these documents clearly show that defendant purchased 15 guntas of land in Sy. No. 14/P7. The agreement to sell executed by the plaintiff followed by the registered sale deed clearly state that 25 guntas of land in Sy. No. 14/P7 was owned by the plaintiff. There is clear recital in the sale deed that 15 guntas in Sy. No. 14/P7 was conveyed to the defendant. The sale consideration, the boundaries and the description of the land completely matches. Mere reference to the property stating its old number as 14/P6 and new No. 14/P7 will not change the property sold, particularly when the boundaries are clear and unambiguous.

Plaintiff intends to take advantage of the mistake committed in incorrectly mentioning the land as Sy. No. 14/P6 in the general power of attorney executed after the agreement of sale. Instead of mentioning the survey number as 14/P7 it has been mentioned as Sy. No. 14/P6, but the boundaries mentioned are that of Sy. No. 14/P7. In the general power of attorney reference has been made to the agreement of sale executed to enable the general power of attorney holder to get the land converted and then to execute the sale deed. In such circumstances, plaintiff cannot be permitted to contend that what was agreed to be sold and was indeed sold was not Sy. No. 14/P7 but 14/P6. The boundaries of Sy. No. 14/P6 (the suit schedule land) do not tally with the boundaries mentioned in the agreement to sell, the general power of attorney and the registered sale deed. Whereas it matches with the boundaries of Sy. No. 14/P7. Such mistakes committed in mentioning the survey number cannot defeat the truth which is otherwise apparent. Hence, I do not find any apparent illegality or error in the order under review. The review petition being wholly misconceived is therefore dismissed.

Observations made in this order are confined to the disposal of the interlocutory application filed for temporary injunction.