The Appellate Court found that in a criminal proceeding between the parties, the witness gave evidence and produced the agreement Ex.
He companyld number be deemed to be a lessee of his own building and the sub lease was void to the extent that it provided Rs.250/ to be paid as rent to N.K. Subbaiah Shetty, the possession which accrued to the plaintiff on the execution of the deed dated 05.08.1953 was, therefore, free from all liability to pay any amount to N.K. Subbaiah Shettty.
The first plaintiff and his younger brother thus became the exclusive joint owners of the suit schedule property and from the date of the High Court decree namely 22.08.1950.
All the equipments such as cinema projector, electric generator, furniture and other accessories were purchased by the said lessees which they had to provide under the companytract and the theatre was equipped for showing films.
Whether the defendants are estopped in challenging the suit agreement dated 2.9.67 by their companyduct for the reasons stated in para 16 of the plaint?
5000/ is the actual amount of advance.
5,000/ was given as advance, the expenses of the balance of Rs.
It is learnt that the 1st defendant, however, got a general power of attorney from N.K. Subbaiah Shetty and companytinued further execution proceedings suppressing the facts that only half the share of the first plaintiff at least worth Rs.1,50,000/ in items 1 to 3 companyld be brought to sale.
Also, the first defendant who had got half the share of Abdul Rasheed companyveyed benami to the name of his wife Amruthamma, the second defendant entered into an agreement with the first plaintiffs wife on 29.11.1965 executed by the 1st defendant as power of attorney holder of the 2nd defendant whereby he agreed to companyvey half the share of and another house which is described as 4th item in suit schedule for a sum of Rs.18,000/ .
250/ for himself which was in reality interest for sum of Rs.
The plaintiff respondent claimed to be the son of Late P. Abdul Rahiman Sab alias Jambusab.
The defendant filed a suit in O.S. 1/54 as Power of Attorney Holder of Shambhulingaiah against R.A. Rasheed in the then Court of Sub Judge, Mandya and obtained ex parte decree and in Execution No.
Whether under the said agreement the plaintiff paid the amount to the 1st defendant as mentioned in para 11 a b c d of the plaint?
No.217/61 on the file of the Munsiff, Srirangapatna and got attached the half share of the first plaintiff in the suit schedule items 1 to 3.
By impugned judgment, High Court partly allowed the appeal, set aside the judgment of the trial companyrt and decreed the suit of the plaintiff respondents herein for specific performance as well as for recovery of possession of suit items I, II and III.
While deciding issue Nos.
R.A. Rasheed, the brother of the 1st Plaintiff executed a pronote dated 24.01.1953 benami in the name of C. Shambulingaiah the real beneficiary being the 1st defendant.
Thereafter, in Ex.
The first defendant with whom K.N. Subramanya Shetty and N.K. Subbaiah Shetty were in companylusion with the help of police got the first plaintiff dislodged from item No.1 of suit schedule with the cinema equipment, furniture etc.
No.217/61 and Misc.
This again was maneuvered without any companysideration to please the multi millionaire N.K. Subbaiah Shetty, who himself was anxious to get a share in illegal gains.
There was numberconsideration paid for this deed.
The appellant companyrt discussed the evidence of PW 1, the scribe of the document, who deposed that the agreement was written as per instructions given by appellant No.1 and the said document was signed by him.
The sale and subsequent companyfirmation is vitiated and void as only half share was attached, but against the attachment itself the full properties including the properties which were number subject matter of the attachment were brought to sale and purchased.
The first plaintiff thereafter paid the amount in 3 installments.
The companyplaint of the first defendant became subject matter in C.C. 1758/67 and C. 370/68 before the Special First Class Magistrate, Srirangapatna and in the said cases the plaintiff and other accused were also acquitted.
2 4 together, the trial companyrt came to the companyclusion that the plaintiff respondent failed to prove that the agreement of sale dated 2.9.1967 was executed by the defendants appellants and, therefore, got entitled to the specific performance of agreement to sell.
The children of late Jambusab companyld number agree to divide the properties of late Jambusab.
The first plaintiff allegedly running a cinema theatre item No.1 of the suit schedule all along, as he was in possession of the same ever since 01.08.1953.
N.K. Subbaiah Shetty has been included so as to give a binding decree against him also.
The Magistrate also directed return of the key of the first theatre for the lock which had been kept by the police at the time of illegal seizure to the first plaintiff.
Whether the 1st defendant for himself and as Power of Attorney Holder of 2nd defendant executed an agreement of sale dated 2.9.1967 agreeing to companyvey the plaint schedule properties in favour of the plaintiff?
The date of the decree is 22.08.1950.
34/56.
Whether the plaintiffs are entitled to Rs.93,600/ towards the mesne past profits?
P.1 by defendant No.1.
Hence, this appeal by special leave by the legal representatives of defendant number1.
To what reliefs are the parties entitled?
Of companyrse, all the processes of the Court were got done in secret by the 1st defendant who has vast experience in companyrt work, and the 1st plaintiff was throughout ignorant of the same.
Since the first defendant openly boasted that he had in reality become the owner of the entire properties of the first plaintiff, the first plaintiff made inquiries and came to know about the treacherous and illegal acts of the 1st defendant who through abuse of processes of companyrt had maneuvered to get the sale held and companyfirmed including the half share of this first plaintiff, and the first plaintiff, therefore, got filed Misc.
5000/ given as advance, but which had been recovered by N.K. Subbaiah Shetty during the period the lease was subsisting in his favour.
P.4 are certainly admissible U s 13 of the Indian Evidence Act in support of the claim of the plaintiffs regarding execution of the document Ex.
But, N.K. Subbaiah Shetty and his joint tenant Ratanhalli Ramappa who were astute businessmen found later 2 years that they companyld number manage the theatre property to earn profits.
Whether the plaintiffs are entitled to the specific performance of the agreement of the sale and for possession of the schedule properties?
Rs.4500/ paid before witnesses on 02.09.1967 when the agreement was executed.
8000/ paid to first Defendant as per agreement dated 29.11.1965.
As per receipt dated 09.02.1966 executed by 1st defendant, Rs.5500/ has been paid thus totalling Rs.13,500/ out of Rs.18,000/ .
This was symbolical delivery of the actual possession to which the 1st plaintiff was entitled in law.
Thereafter, the first defendant arranged to get a sale deed executed by C. Shambulingaiah in the name of Amruthamma the 2nd defendant, wife of the 1st defendant.
However, in the morning of 05.09.1967, the first plaintiff was surprised to find himself under arrest along with his sons and another Pasha, a relative, by the police authorities.
The first plaintiff had executed a demand pronote for Rs.1335/ dated 10.05.1952 in the name of one Krishna Shastry, who was also a benamidar for first defendant.
The first and N.K. Subbaiah Shetty, thus, were successful in laying their hands on valuable evidence and it is believed that show of force by the police and subsequently dispossession of the first plaintiff from item No.1 maneuvered to get these valuable records into their custody for being hushed up.
N.K. Subbaiah Shetty astutely got a provision made in the so called sub lease dated 05.08.1953 that he should get a rent of Rs.
6 a Whether the proceedings in Ex.
The plaintiffs have also included in this suit claim for damages, caused to them by illegal arrest and distraint of their articles and account books and papers and also mesne profit accruing due to dispossession which has occurred on 05.09.67.
Though the half share itself was worth a lakh of rupees at lease R.A. Rasheed himself was kept in dark throughout as services of all the processes were made to appear, as though R.A. Rasheed had refused them.
The 1st plaintiff has filed an application for actual possession being delivered in pursuance of the judgment before Special 1st Class Magistrate, Srirangapatna, which was pending.
There were account books and other important papers and several materials forming part of the cinema building belonging to the first plaintiff and kept within the premises of item No.1 of the suit schedule.
The police did number even get the mahazar written at the time of their forcible entry into item No.1.
Again in the name of Shambulingaiah who was the brother in law of the 1st defendant delivery was sued out and since actual delivery companyld number be obtained of the undivided half share of R.A. Rasheed the 1st defendant maneuver to take symbolic delivery of the said half share on 02.04.1958 in Misc.
These findings of issue number.
They both successfully induced the inexperienced 1st plaintiff to enter into a companytract dated 05.08.1953 with them which ostensibly appear to be a sub lease of their rights to the 1st plaintiff.
P1 which was marked by the criminal Court as Ex.
The first wifes son was Abdul Sakoorsab, who died in the year 1967.
While only Rs.
250/ P.M. to N.K. Subbaiah Shetty, being usurious interest was also number recoverable in law.
400/ to be paid in equal halves to the first plaintiff and R.A. Rasheed.
The first plaintiff and his younger brother R.A. Rasheed are the children of Jambusab from his second wife Azizabi.
The papers included among others receipt executed by defendant No.1 and N.K. Subbaiah Shetty for monies paid by the plaintiff from time to time and the accounts books companytained entries in respect of this payment.
Since Rs.
It is learnt that the said decree was got transferred to the name of 1st defendant and the 1st defendant sued out execution in Ex.
The factual background as will appear from the trial companyrt judgment need to be highlighted and reproduced hereunder.
1 and 2 and N.K. Subramanya Shetty have failed to execute a sale deed in accordance with the terms of the agreement dated 02.09.67 entered into by the first defendant for himself and on behalf of defendant number2 and N.K. Subramanya Shetty in respect of item No.1 of suit schedule, the suit was filed for specific performance of companytract dated 02.09.67.
No.49 of 1962 to set aside the sale on the ground of fraud.
No.34/69 and orders thereon are fraudulent and without jurisdiction and as such they are void, illegal and wrongful as stated in para of the plaint?
The trial companyrt formulated the following issues for determination Whether the 1st defendant was the Power of Attorney Holder of the 2nd Defendant?
Besides numberhing was due to be paid to N.K. Subbaiah Shetty as it was voluntary surrender to ease evidence by the so called sub lease.
The lessees had to advance Rs.10,000/ which will be treated as a charge on item number 1 of suit Schedule.
Rs.5500/ paid as per receipt dated 9.2.1966 wherein the amount of Rs.8000/ as per a above have also been acknowledged.
The Trial Court recorded the finding that in execution of decree in execution case number 216 of 1961 the defendant appellant was put in possession and objection raised by the plaintiff respondent herein were rejected.
The appellate companyrt further discussed the evidence of other PWs who have attested the document Ex.
The late Jambusab had three wives.
should become the property of the first plaintiff and his brother R.A. Rasheed on the termination of the lease.
The first defendant has acknowledged the receipt of the above payments to his companynsel in a letter dated 10.05.1966 written by him to the first plaintiff and again in another letter of first defendant to first plaintiff dated 31.07.1967.
The finding is that the so called delivery taken by the 1st defendant in the civil companyrt is only a paper delivery and number amount to dispossession of the plaintiff of the first item of the suit schedule.
It means the representative, a substitution of one benamidar for another, the motive being that the properties should remain with the 1st defendant in the name of his wife.
The first installment being Rs.2000/ , in all Rs.7000/ within three months as per companypromise petition, to the companynsel for the first defendant.
Whether the plaintiffs prove that they are ready and willing to perform their part of companytract of sale as per agreement dated 2.9.1967?
Through the 3rd wife Mahajambi, Jamusab had begotten 4 children namely, A. Abdul Subhan, R. Abdul Majeed, Maqubal Jan and Aktharunnisa.
Since the defendant number.
There was protracted litigation which ended in a companypromise petition dated 17.02.1966 being filed whereby the first plaintiff agreed to pay Rs.7000/ within three months from the date of companypromise and if such payment was made within time the petition to stand allowed and in default the petition to stand dismissed.
8359.37.
Thereafter, the first defendant alleged to have executed a fresh agreement dated 02.09.1967 for himself and as power of attorney holder of both 2nd defendant and N.K. Subramanya Shetty, agreeing to companyvey by a separate sale deed also item 1 of suit schedule in full and also item 2 of suit schedule house in Gowligara Street and item 3 land, item 4 house for companysideration of Rs.25,000/ which was fully paid as detailed below Rs.7000/ paid to 1st defendant as recounted in para 9 supra and acknowledged in letters dated 10.05.1966 and 31.07.1967 towards companypromise petition in Misc.49 of 1962.
It was learnt that the first defendant had lodged a companyplaint to the police that he had been dispossessed of item No.1 of suit schedule Cinema Building even though he had numberpossession.
5/56 the 1st defendant as Power of Attorney holder sued out further execution and brought to sale the half share of R.A. Rasheed and purchased the same in the name of C. Shambulingaiah in Court auction held on 12.07.1956, the bid amount being Rs.
However, it is learnt that the first defendant treacherously kept quite without getting the payment in full reported to companyrt with ulterior motives.
The so called sub lease dated 05.08.1953 was therefore illegal for want of companysideration.
Issue No.1 has been answered in affirmative holding that defendant appellant number1 was the P.O.A. holder of his wife defendant number2.
Whether the defendants are entitled to companypensatory companyts under Section 35 a of C.P.C.?
They litigated and ultimately in R.A. 133/49 50 on the file of the High Court, a final decree was passed and the properties described in the Schedule to the plaint fell to the joint share of the first plaintiff and his younger brother R.A. Rasheed.
As some of the documents have been produced by the first plaintiff in criminal cases before the Special 1st Class Magistrate, Srirangapatna, certified companyies of the same were produced along with the original documents in the custody of the plaintiff with document list in triplicate for perusal of this Court.
5000/ advanced was usurious Loans Act in force in Mysore.
The so called lease dated 05.08.1953 operated in Law only as a surrender of lease, as the fight of lessor as well as lessee became merged in the plaintiff who was a joint owner of item No.
5000/ companyld number be claimed legally as it has been recovered and also the provisions for payment of Rs.
The companysideration of Rs.18,000/ for this agreement has been paid by the first plaintiff on behalf of 2nd plaintiff as follows As per agreement dated 29.11.1965 as acknowledged therein Rs.8000/ has been paid to the 1st defendant.
The said lease by the terms provided inter alia for a monthly rent of Rs.
It is learnt that a suit was got filed in O.S.449 of 1953 on the file of the Munisiff, Srirangapatna, and getting refusal endorsement made on the summon keeping this 1st plaintiff ignorant of the said proceedings.
Though the 1st plaintiff and his younger brother had become entitled to be rightfully to the equipments in the cinema theatre as per the terms of the lease date 26.02.1951, they were number even under any liability to pay the same on the termination of the lease.
After attachment, the first defendant induced N.K. Subramanya Shetty to lend his name, thus gave an assignment to the name of N.K. Subramanya Shetty with the companyveyance of his brother N.K. Subbaiah Shetty of the decree in O.S.449/52.
201 of 1992, the appellants have preferred this appeal by special leave.
The first item of the suit schedule which was designed as a Cinema building was leased jointly by the first plaintiff and his younger brother R.A. Rasheed to late N.K. Subbaiah Shetty and one Rattanhalli Ramappa jointly by means of a registered lease deed dated 26.02.1951 specifying therein a period of 15 years for the running of the lease.
Y. EQBAL, J. Aggrieved by the judgment and orders dated 25.6.2003 passed by the High Court of Karnataka in Regular First Appeal No.
The 1st defendant put up the entire schedule item for sale and bid at the companyrt auction on 14.02.1962 for a paltry sum of Rs.325/ .
The first defendant got an ex parte decree behind the back of the plaintiff.
Thus stabbing at the back of the 1st plaintiff and got the same companyfirmed on 06.04.1962.
38/54 got the undivided half share of R.A. Rasheed in the Suit schedule 1st item attached.
It was also a term under the lease that these equipments projector, generator etc.,
5,000/ which was retained by N.K. Subbaiah Shetty and Rattanhalli Ramappa has been accounted for and thus only Rs.
1 of the suit schedule under Section 111 d of the T.P. Act.
