Karnataka High Court
Sri Gurumallappa S/O Late Thimmanna vs Sri Anjaneyaswamy Trust @ Gundusagara on 18 December, 2020
Equivalent citations: AIR 2021 KARNATAKA 35, 2021 (1) AKR 675, AIRONLINE 2020 KAR 2491
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 18th DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.397 OF 2006 (SP)
BETWEEN:
1. SRI GURUMALLAPPA,
S/O LATE THIMMANNA,
AGED ABOUT 60 YEARS.
2. SMT.NANJUNDAMMA,
W/O GURUMALLAPPA,
AGED ABOUT 49 YEARS.
3. SRI SURESHA,
S/O GURUMALLAPPA,
AGED ABOUT 32 YEARS.
ALL ARE R/O GUNDUSAGARA VILLAGE,
NAGARALU POST, SAKHARAYAPATNA HOBLI,
KADUR TALUK,
CHICKMAGALUR DISTRICT - 577 548 ... APPELLANTS
(BY SRI SACHIN B.S., ADVOCATE)
AND:
SRI ANJANEYASWAMY TRUST @ GUNDUSAGARA
SAKHARAYAPATNA HOBLI, KADUR TALUK,
REP. BY ITS PRESIDENT
SRI T.RAJANNA,
SECRETARY
SRI G.C.KUMARASWAMY,
S/O CHANDRAPPA
BOTH ARE MAJORS,
2
R/O GUNDUSAGARA VILLAGE,
SAKHARAYAPATNA HOBLI,
KADUR TALUK - 577 548 ... RESPONDENT
[(BY SRI IRFAZ, ADVOCATE FOR
M/S JAYAKUMAR S.PATIL ASSOCIATES (ABSENT)]
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
CHALLENGING THE JUDGMENT AND DECREE DATED 05.11.2005
PASSED BY THE CIVIL JUDGE (SR.DN.) AND JMFC, KADUR IN
O.S.NO.38/2003.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.Sachin B.S., learned counsel for appellants has appeared through video conferencing.
2. This is an appeal from the Court of Civil Judge (Sr.Dn.) and JMFC at Kadur whereby, learned Judge has decreed the suit for the relief of specific performance.
3. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.
4. In brief the facts of the case are as under:-
Plaintiff is the Registered Trust running under the name 3 and style as "Sri.Anjaneyaswamy Trust (R), "Gundusagara, Sakharayapatna Hobli, Kadur Taluk and it is represented by its President and Secretary. The defendants are the absolute owners of the suit schedule property bearing Sy.No.7 measuring 03 acres 01 guntas situated at Gundusagara Village, Nagaralu Grama Panchayath, Sakharayapatna Hobli, Kadur Taluk. The Katha is also standing in the name of defendant No 1.
Plaintiff-Trust averred that defendants for meeting the expenses of the marriage of their daughter, agreed to sell the suit schedule property for a consideration of Rs.1,50,000/- and accordingly, they executed an agreement for sale on 11.04.2000 and on the very same day, they have received the entire sale consideration and handed over the possession of the suit schedule property before the witnesses. It is averred that defendants also agreed to executed registered sale deed as and when plaintiff- Trust demands.4
It was urged that Plaintiff-Trust was always ready and willing to perform their part of contract. But the defendants evaded to execute the registered sale deed on one or the other pretext. Hence, plaintiff- Trust approached defendants and requested them to execute the registered sale deed as per the terms of the agreement executed by them, but in vain.
Therefore, plaintiff was constrained to issue legal notice on 07.04.2003 calling upon defendants to perform their part of contract by executing registered sale deed. Contending that defendants did not perform their part of the contract and tried to alienate the suit schedule property in favor of third persons, plaintiff sought aid of the Court and sought appropriate reliefs.
After service of summons, defendant No.1 filed written statement and the same was adopted by defendants 2 and 3. They denied the plaint averments.
Defendants in their written statement denied the execution of agreement for sale dated 11.4.2000 and 5 receival of consideration amount of Rs.1,50,000/- and handing over of possession. They contended that they are illiterate, plaintiff - Trust has mis-utilized their innocence and has obtained signature and thumb impression and has created the agreement for sale. It was further contended that at no point of time, they intended / or agreed to sell the property. It was urged that they were constrained to institute action against plaintiff - Trust in O.S.No.38/2003. Accordingly, they sought for the dismissal of the suit.
On the basis of the above said pleadings, the trial Court framed the following issues: -
1. ²æà CAd£ÉÃAiÀÄ zÀwÛ ¸ÀA¸ÉÜAiÀÄÄ £ÉÆÃAzÁ¬ÄvÀ ¸ÀA¸ÉÜAiÉÄAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉÆà ºÉÃUÉ?
2. ªÁ¢ zsÀªÀÄð zÀwÛ ¸ÀA¸ÉÜAiÀÄ£ÀÄß PÀæªÀÄ ¥ÀæPÁgÀ ¥Àæw ¤¢ü¸ÀÄvÁÛgÉÆà ºÉÃUÉ?
3. ¢:11-4-2000 gÀAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ zÁªÁ D¹ÛUÀ¼À£ÀÄß gÀÆB 1 ®PÀëzÀ 50 ¸Á«gÀ gÀÆ¥Á¬ÄUÀ½UÉ ªÀiÁgÁl ªÀiÁqÀĪÀÅzÀPÉÌ M¦à ¥ÀÆgÁ ºÀtªÀ£ÀÄß ¥ÀqÉzÀÄ zÁªÁ PÀgÁgÀ£ÀÄß ªÁ¢AiÀÄ ¥ÀgÀªÁV §gÉzÀÄPÉÆnÖzÀÝgÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉÆà ºÉÃUÉ?
4. zÁªÉAiÀÄ d«ÄãÀÄ ªÁ¢AiÀÄ ¸Áé¢üãÀPÉÌ ªÁ»¹zÁÝgÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉÆà ºÉÃUÉ?6
5. vÁªÀÅ ªÀÄÄUÀÝ ¸Àé¨sÁªÀzÀªÀgÉAzÀÄ vÀªÀÄä£ÀÄß ºÉzÀj¹, ¨ÉzÀj¹ ºÁQ SÁ° PÁUÀzÀPÉÌ ¸À» ¥ÀqÉ¢gÀÄvÁÛgÉAzÀÄ vÀªÀÄä °TvÀ ºÉýPÉAiÀÄ ¥ÁågÁ 10 ªÀÄvÀÄÛ 11 gÀ°è ºÉýzÀAvÉ zÁªÁ PÀgÁgÀ£ÀÄß ªÁ¢AiÀÄÄ ¸ÀȶֹPÉÆArzÁÝgÉAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉÆà ºÉÃUÉ?
6. vÁªÀÅ J¯Áè ¸ÀªÀÄAiÀÄzÀ®Æè PÀgÁj£À ±ÀgÀvÀÄÛUÀ¼À£ÀÄß ¥Á°¸À®Ä ¹zÀÝgÁVzÉÝêÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉÆà ºÉÃUÉ?
7. MªÉÄä PÀæAiÀÄ ¥ÀvÀæzÀ PÀgÁj£ÀAvÉ ¥ÀqÉAiÀÄ®Ä ¸ÁzsÀå DUÀzÉà EzÀÝ°è ªÀÄÄAUÀqÀªÁV PÀÆqÀ ºÀtPÉÌ rQæ ¥ÀqÉAiÀÄ®Ä ªÁ¢AiÀÄÄ CºÀðjzÁÝgÉAiÉÆà ºÉÃUÉ?
8. CYÉÕ CxÀªÁ rQæ K£ÀÄ?
In order to substantiate the claim, one T.Rajanna was examined as PW-1 and four more witnesses were examined as PW-2 to 5 and produced fourteen documents which were marked as Exs.P1 to P14. When the case was posted for defendant's evidence, defendant No.1 was examined as DW-1 and produced seven documents which were marked as Exs.D1 to D7.
On trial of the action, the suit came to be decreed directing defendants 1 to 3 to execute the registered sale deed in favor of plaintiff- Trust on or before 01.12.2005. Hence, defendants are before this Court. 7
5. Sri.B.S.Sachin, learned counsel for appellants submitted that the judgment and decree passed by the trial Court is contrary to law and evidence available on record.
Next, he submitted that the trial Court erroneously appreciated the evidence available on record and has passed the decree without framing proper issues for consideration.
A further submission was made that the agreement for sale which is at Ex P-1 is in violation of the provisions of the Karnataka Land Reforms Act, 1961. The same is unenforceable. He submitted that in fact, defendants have denied the execution of the agreement for sale. Assuming that there is an agreement for sale, the agreement is executed within the non-alienation period and hence, the same is void.
It has been contended that the agreement is illegal and cannot be enforced. Hence, he submitted that plaintiff
- Trust is not entitled for any relief. The trial Court is not 8 justified in decreeing the suit. Therefore, he submitted that the judgment and decree of the trial Court is liable to be set aside and appeal may be allowed.
In support of the contention, learned counsel for appellants relied upon the following decisions
1) 2019 AIAR (Civil) 1031 - SMT.NARAYANAMMA AND ANOTHER vs. GOVINDAPPA AND OTHERS
2) JUDGMENT IN SHRIDHAR GOWDA VS B. SANTHAPPA DEVADIGA DATED 07.11.2016 in RSA NO.372/2014.
3) JUDGMENT IN SATISH KUMAR VS KARAN SINGH AND ANOTHER reported in 2016(4) SCC 352.
6. I have carefully considered the submissions and contentions urged on behalf of appellants and perused the material evidence on record.
The points that would arise for consideration of the Court is :-
9
1) Whether the agreement for sale dated 11.04.2000 is hit by Section 61 of the Karnataka Land Reforms Act, 1961?.
2) Whether plaintiff is entitled for specific performance?
The facts have been sufficiently stated. The dispute relates to in respect of the land bearing survey No.7 measuring 03 acres, 01 guntas situated at Gundasagar village, Sakharayapatna Hobli, Kadur Taluk. It is admitted that defendant No.1 (Gurumallppa) had filed form No. 7 for grant of occupancy rights in respect of the said land. The Land Tribunal granted occupancy rights in favor of defendant No.1 on 19.06.1992. (Ex.D -1).
Plaintiff filed suit for specific performance of the contract to enforce the agreement for sale dated 11.04.2000. Plaintiff urged that he was put in possession of the suit property by virtue of agreement for sale (Ex P-1). Though defendants denied the execution of the agreement for sale, but the trial Court held that plaintiff 10 has proved the agreement for sale and accordingly, decreed the suit.
It is relevant to note that learned Judge in extenso referred to the oral and documentary evidence on record and held that plaintiff has proved the agreement for sale and accordingly, decreed the suit for specific performance.
While arguing the case, learned counsel Sri.B. S. Sachin, vehemently urged that the agreement for sale is hit by Section 61 of the Karnataka Land Reforms Act, 1961. Hence, the agreement is void and the same cannot be enforced.
In the background of the specific contention, it would be necessary to refer to Section 61 of the Karnataka Land Reforms Act, 1961 which reads as under:
"61. Restriction of transfer of land of which tenant has become occupant - (1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this chapter shall within fifteen years from the date of the final order, passed by the Tribunal under sub-section 11 (4) or sub-section (5) or sub-section (5-A) of section 48-A be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder's joint family.
(2) Notwithstanding anything contained in sub-section (1) , it shall be lawful for the occupant registered as such or his successor-
in-title to take a loan and mortgage or create a charge on his interest in the land in favor of the State Government (a financial institution, a co- operative land development bank, a co- operative society) or a company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty one per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or by both for development of land or improvement of agricultural practices; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilized in the payment of such loan.
(3) Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77."
12
A bare perusal of the provision makes it clear that it creates an embargo on transfer of land within 15 years from the date of the order of Land Tribunal.
The language used in Section 61 of the Act would also disclose that the legislature has imposed a restriction on transfer of land. Erstwhile tenant, who has become occupant of land, is prohibited from selling land within 15 years from the date of final order passed by the Tribunal. Sale made in contravention of prohibition being invalid, would invite the State Government to resume the land free from all encumbrances, for granting same to other landless persons eligible for occupancy.
It is perhaps well to observe that the law on the subject has been recently stated by Justice B.R. Gavai in NARAYANAMMA AND ANOTHER VS. GOVINDAPPA AND OTHERS referred to supra.
The Apex Court at paragraph 23 has held that the transaction i.e., agreement for sale is nothing short of a 13 transfer of property. Under Section 61 of the Karnataka Land Reforms Act, 1961, there is a complete prohibition of transfer of land for a period of 15 years from the date of grant. I respectfully agree with the statement of law laid down by the Hon'ble Supreme Court.
The decision of the Apex Court and the law laid down is applicable to the facts and circumstances of the present case.
In the backdrop of this principle, let me consider what facts I have here. In the present case, defendant No. 1 had filed an application for grant of occupancy rights. The Land Tribunal granted occupancy rights in favor of defendant No.1 on 19.06.1992 and he has entered into an agreement for sale on 11.04.2000.
I have carefully perused the original records. As could be seen from the records, the agreement for sale is at Exhibit P-1 and the order of the Land Tribunal is at Ex D-1. As already noted above, the Land Tribunal granted occupancy rights in favor of defendant No.1 on 19.06.1992 14 and the agreement for the sale of the property was entered on 11.04.2000.
It follows therefore, that the contract is entered within the prohibited period of 15 years and is in violation of Section 61 of the Karnataka Land Reforms Act, 1961.
Even according to plaintiff, the agreement for sale was in the year 2000. As such, the transfer in question in the year 2000 is beyond any doubt is within the prohibited period of 15 years. This Court is of the view that the agreement for sale (Ex.P-1) is in violation of the provisions of the Karnataka Land Reforms Act, 1961 and hence, the same would result in transgression of Section 61 of the Karnataka Land Reforms Act, 1961.
This Court, come therefore, to the conclusion that the agreement for sale is hit by Section 61 of the Karnataka Land Reforms Act, 1961. Hence, the contract is void and is not enforceable. Plaintiff therefore, cannot enforce the contract and thus, he is not entitled for the 15 relief of specific performance. Accordingly, the points are answered. Therefore, I pass the following:-
ORDER
i) The appeal is accordingly allowed.
ii) The judgment and decree dated 05.11.2005 passed by the Civil Judge and JMFC, Kadur in O.S. No.38/2003 is hereby set aside.
iii) Parties to bear their own costs.
Sd/-
JUDGE VMB