Karnataka High Court
Shankargowda Veeranagowda Totad Since ... vs Hanaumanthappa Billiyannanavar on 10 July, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1 R.S.A.No.1208/2004
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10th DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.S.A. NO.1208/2004 (SP)
BETWEEN:
SHANKARGOWDA VEERANAGOWDA TOTAD
SINCE DEAD BY LRS
1. BASANAGOWDA SHANKARAGOWDA TOTAD
S/O SHANKAR VEERANAGOWDA TOTAD
AGED ABOUT 58 YEARS
IIIRD ADDL CITY CIVIL & SESSIONS JUDGE
CITY CIVIL COURT
BANGALORE.
2. VEERANAGOWDA SHANKARGOWDA TOTAD
S/O SHANKAR VEERANAGOWDA TOTAD
AGED ABOUT 56 YEARS
PRINCIPAL
POLYTECHNIC WOMEN'S COLLEGE
CHICKMANGALUR.
3. RAMANGOWDA SHANKARAGOWDA TOTAD
S/O SHANKAR VEERANAGOWDA TOTAD
AGED ABOUT 54 YEARS
AGRICULTURIST, R/O HEDDIGONDA
BYADAGI TQ
HAVERI DISTRICT.
4. RUDRAGOUDA @ MAHABALESHWARGOWDA
SHANKARAGOUDA TOTAD
S/O. SHANKARAGOWDA VEERANAGOWDA TOTAD,
AGED ABOUT 52 YEARS,
AGRICULTURIST,
2 R.S.A.No.1208/2004
R/O. HEDDIGONDA,
BYADAGI, TQ: HAVERI DIST.
5. GIRIJAMMA
W/O LATE JAGADEESH TOTAD
AGED ABOUT 34 YEARS
R/O HEDDIGONDA, BYADAGI TQ
HAVERI DISTRICT
6. VINAYAK S/O LT JAGADESSH TOTAD
MINOR, R/BY HIS NEXT FRIEND AND
GUARDIAN, THE NATURAL MOTHER GIRIJAMMA
R/O AkUDAPALI, HIREKERUR tq.
HAVERI DISTRICT
7. AKKAWWA
W/O CHANDRASHEKARAPPA MADDI
AGED ABOUT 52 YEARS
R/O BALAMBEDE, HANGAL TQ
HAVERI DISTRICT
8. MALATHI
W/O PRABHUGOWDA MARIGOWDA
AGED ABOUT 48 YEARS
R/O HEDDIGONDA, BYADGI TQ.
HAVERI DISTRICT
9. VANAJAKSHI
W/O SIDDAPPA MALLAPUR
AGED ABOUT 39 YEARS
R/O HEDDIGONDA, BYADGI TQ
HAVERI DISTRICT
10. SHAKUNTALA
W/O ISHWARAGOWDA
AGED ABOUT 37 YEARS
R/O SORATUR, HONNALI TQ
SHIMOGA DISTRICT
THE APPELLANTS 1 AND 2 AND 4 TO 9
ARE REP. BY GPA HOLDER R S TOTAD.
... APPELLANTS
(BY SRI. M SHIVAPPA, SENIOR COUNSEL FOR SRI. S.B.TOTAD,
ADV.,)
3 R.S.A.No.1208/2004
AND
1. HANAUMANTHAPPA BILLIYANNANAVAR
S/O KALLAPPA BILLIYANNANAVAR
AGED ABOUT 50 YEARS
R/O HEDDIGONDA VILLAGE
BYADAGI TQ
HAVERI DIST
2. VEERAPPA BILLIYANNANAVAR
S/O KALLAPPA BILLIYANNANAVAR
AGED ABOUT 42 YEARS
R/O HEDDIGONDA VILLAGE
BYADAGI TQ
HAVERI DIST
3. SHAMBULINGAPPA BILLIYANNANAVAR
S/O KALLAPPA BILLIYANNANAVAR
AGED ABOUT 41 YEARS
R/O KADLEPAR ONI
R/O RANEBUNNUR
HAVERI DIST
4. MALLAPPA BILLIYANNANAVAR
S/O KALLAPPA BILLIYANNANAVAR
MAJOR, R/O KADLEPAR ONI
R/O RANEBUNNUR, HAVERI DIST
5. CHINNAPPA BASAPPA KALAMANI
S/O BASAPPA KALAMANI
SINCE DECEASED BY
HIS LEGAL REPRESENTATIVES
5A. BASAVARAJ S/O. LATE
CHINNAPPA BASAPPA KALAMANI
AGE: 30 YEARS.
5B. MANJULA D/O. LATE
CHINNAPPA BASAPPA KALAMANI
AGE: 28 YEARS.
5C. NINGAVVA
D/O. LATE CHINNAPPA BASAPPA KALAMANI
AGE: 26 YEARS.
4 R.S.A.No.1208/2004
5D. MALLIKARJUN
S/O. LATE
CHINNAPPA BASAPPA KALAMANI
AGE: 20 YEARS.
5E. SANTOSH S/O. LATE
CHINNAPPA BASAPPA KALAMANI
AGE: 18 YEARS.
ALL ARE R/O. HEDDIGONDA
VILLAGE, BYADAGI TALUK,
HAVERI DISTRICT.
...RESPONDENTS
(R1- SERVED, SRI.V.P.KULKARNI, ADV., FOR R2 TO R4,
SMT. PALLAVI F. PATIL, ADV., FOR 5 (A TO E) SRI.VIJAYENDRA
BHIMAKKANAVAR, ADV., FOR R6,)
RSA FILED U/S. 100 OF CPC AGAINST THE JUDGMENT &
DECREE DTD. 16.8.04 PASSED IN R.A.NO.42/99 ON THE FILE
OF THE ADDL. CIVIL JUDGE (SR. DN.), RANEBENNUR, PARTLY
ALLOWING THE APPEAL AND SETTING ASIDE IN SO FAR AS
FINDING ON ADDL. ISSUE NO.2 IS CONCERNED AND THE
JUDGEMENT AND DECREE DTD. 19.6.99 PASSED IN
OS.NO.120/85 ON THE FILE OF THE CIVIL JUDGE (JR. DN.)
& JMFC, BYADGI.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed under Section 100 of the Code of Civil Procedure by the legal representatives of original plaintiff Sri. Shankaragouda Veeranagouda Totad of O.S.No.120/1985 which was pending on the file of the then Court of Munsiff at Ranebennur. 5 R.S.A.No.1208/2004
2. Respondents herein are the defendants in the said suit. Suit filed for the relief of specific performance of the contract has been dismissed after contest. Appeal filed under Section 96 of the Code of Civil Procedure by the plaintiff against the said judgment and decree in RA No.42/1999 has also been dismissed insofar as it relates to the rejection of the relief of specific performance. Hence, concurrent findings are called in question before this Court.
3. During the pendency of the suit Mr. Shankaragouda Veeranagouda Totad died and his legal representatives were brought on record and they prosecuted the suit. Suit had been filed against the legal representatives of deceased Kallappa for the relief of specific performance based on an agreement of sale said to have been executed by Kallappa on 26/11/1974 under which he had agreed to sell the entire suit 6 R.S.A.No.1208/2004 schedule property measuring 4.25 acres in Sy.No.61/1A for a total consideration of Rs.2,000/-.
4. According to the plaintiff, a sum of Rs.1,000/- was paid as earnest money to Kallappa on the same day and remaining Rs.1,000/- was to be paid on or before Ugadi festival in 1975 at the time of executing the regular sale deed before the Sub- Registrar, Byadgi. During the life time of Kallappa, notice was got issued by the plaintiff calling upon him to execute regular sale deed by receiving balance consideration vide notice dated 17/06/1975. In spite of the receipt of the same, Kallappa did not come forward to execute the sale deed and went on postponing to execute the sale deed. The said Kallappa died on 26/02/1977 leaving behind him his wife-Nagavva and sons-Hanumantappa, Veerappa, Shambulingappa and Mallappa, who are defendants 1 to 5.
7 R.S.A.No.1208/2004
5. According to the plaintiff, on 22/07/1977, all the heirs of Kallappa came forward to execute another agreement agreeing to sell the land at Rs.1,301/- per acre and received a sum of Rs.500/- as earnest money and at that time, one of the sons was minor and hence he was represented by his guardian. It is further pleaded that on 18/01/1981, the legal representatives of Kallappa agreed to execute a regular sale deed and received further sum of Rs.800/- as advance. In spite of the same, they did not come forward to execute the sale deed and therefore, a notice was got issued on 17/07/1982.
6. In the mean time, defendants 1 to 5 sold the schedule land in favour of defendant No.6 through a registered sale deed on 26/07/1982 and as such, the plaintiff chose to file the suit on 05/01/1984 seeking the relief of specific performance with an alternative relief of refund of earnest money. Summons had been 8 R.S.A.No.1208/2004 issued to all the defendant No.1 by the trial Court and defendants had filed a detailed written statement which came to be adopted by defendants 2 to 5. Defendant No.6, who is a subsequent purchaser, has filed a separate written statement. All the defendants have specifically denied the execution of agreement of sale dated 2, 22/07/1977 and the endorsement dated 16/01/1987 and the receipt of advance of Rs.1,500/-, Rs.800 on 26/11/1974, 22/07/1975 and 18/01/1976 respectively.
7. They had called upon the plaintiffs to strictly prove the contents of the same. The averment of the plaintiffs that the possession was handed over by deceased Kallappa from the date of an agreement of sale has also been specifically denied. It is pleaded that defendant Nos.1 to 5 were in lawful possession of the suit property and to chose deliver the possession to 6th defendant on the basis of the sale deed. Readiness and 9 R.S.A.No.1208/2004 willingness, as pleaded by the plaintiff, is specifically denied and plaintiff is called upon to strictly prove the readiness and willingness. According to the 6th defendant, he is a bonafide purchase for value without notice and therefore, suit is not at all maintainable for the relief of specific performance against him. With these pleadings, defendants chose to request the Court to dismiss the Suit.
8. On the basis of the pleadings, following issues came to be framed by the Trial Court for its consideration.
ISSUES
1. Whether the defts 1 to 5 prove that deceased Kallappa executed the alleged deed of 1974 by way of security to the loan amount?
2. Whether defts 1 to 5 prove that legal heirs of deceased Kallappa has signed on the document of 10 R.S.A.No.1208/2004 1977 as he (Kallapa) returned the loan amount and not for sale of the land?
3. Whether defts 1 to 5 prove that they have returned the loan amount of Rs.1000/- to the plff which was loan made by the deceased Kallappa?
4. Whether defts 1 to 5 prove that signatures of defts 1 to 5 and deceased Kallappa on all the documents produced by plff are false created and forgery?
5. Whether defts 1 to 5 prove that they will come under the weaker section of the society and also they are the small farmers under the KDR Act? If so whether they are not liable to pay the same loan amount to the plff?
6. Whether defts 1 to 5 prove that they were in lawful possession and enjoyment over the suit lands as owners?
11 R.S.A.No.1208/2004
7. Whether plff proves that deceased Kallappa had agreed to sell the suit lands for Rs.2000/- to plff and said Kallappa received a sum of Rs.1,000/- as earnest money and executed an agreement of sale (deed) on 26.11.1974 in favour of plff?
8. Whether plff further proves that deft 1 to 5 received a sum of Rs.500/- and executed a new agreement, deed for sale on 22.7.77 stating that they (deft) have received totally sum of Rs.1500/-?
9. Whether plff prove that on 16.1.1981 deft received a sum of Rs.800/- from plff and wrot a share on agreement deed of 1974?
10. Whether defts 1 to 5 prove that the suit of the plff is false and vexatious and he is entitled for damages under Section 35 A of the CPC?
11. Whether deft to prove that he is a bonafide purchaser from defts 1 to 5 for value without notice? 12 R.S.A.No.1208/2004
12. Whether deft 6 proves that he is in lawful possession and enjoyment over the suit land in persuance of the said sale deed executed by defts 1 to 5?
13. To what reliefs the plff is entitled to?
14. What order or decree?
ADDITIONAL ISSUE
1. Whether the suit land was tenanted land at the time of alleged transactions on 22.11.1974. Whether this issue has to be referred to Land Tribunal?
2. Whether the suit is barred by limitation?
Original plaintiff himself is examined as PW.1 and 4 more witnesses have been examined on his behalf. On behalf of the defendants Shambulingappa, the 3rd defendants is examined as DW.1 and 6th defendant is examined as DW.3. On their behalf in all, 5 witnesses have been examined. 12 exhibits have been got marked 13 R.S.A.No.1208/2004 on behalf of plaintiff. As many as 54 exhibits have been got marked on behalf of defendants.
9. Ultimately, suit came to be dismissed answering issues Nos.1, 2, 3, 5, 9 and 10 in the Negative and issue No.4 in the affirmative. Insofar as endorsement found on Ex.P1 and Issue Nos.6, 7, 8, 11 and 12 in the affirmative. It is stated that additional Issue No.1 does not arise for consideration. Additional issue No.2 has been held in the affirmative stating that suit is barred by time. Against the said judgment and decree, plaintiff chose to file an appeal under Section 96 r/w order 41 Rule 1 of C.P.C. before the Court of Senior Civil Judge at Ranebennur, in R.A. No.42/1999. Several grounds have been urged in the said appeal memo. The said Regular Appeal has been allowed in part directing the defendant Nos.1 to 5 to return the earnest money. After perusing the records and heard the learned Counsel appearing for the parties, learned 14 R.S.A.No.1208/2004 Judge of the First Appellate Court has disposed of the appeal by framing following points for consideration as found in paragraph No.18 of its judgment.
POINTS
1. Whether the lower court has committed error in answering issue No.4 in the affirmative, as far as endorsement is concerned and answering issue NO.9 in the negative?
2. Whether the lower court committed error in holding that the plaintiff has not come in actual possession of the suit property on the basis of agreement?
3. Whether the lower court committed error in holding issues No.11 and 12 in the affirmative?
4. Whether the lower court committed error in holding that the suit is barred by limitation? 15 R.S.A.No.1208/2004
5. Whether judgment and decree passed by the lower court is illegal and not sustainable under law?
6. What order?
10. Point Nos.1 to 3 have been held in the negative and point No.4 has been held in the affirmative and point No.5 has been held partly in the affirmative. Being aggrieved by the rejection of the relief of specific performance, plaintiff has approached this Court by filing an appeal under Section 100 of C.P.C. Several grounds have been urged in the appeal memo.
11. During the pendency of the first appeal filed before this Court, the original plaintiff died and his legal representative have been brought on record. On hearing the learned Counsel appearing for the appellants, following substantial questions of law have been framed:
16 R.S.A.No.1208/2004
1. Whether the Courts below are justified in holding that the defendant NO.6 is a bonafide purchaser for value without notice and admittedly, he is holding the land adjacent to the suit schedule property?
2. Whether the Courts below are justified in holding that the appellant/plaintiff was not ready and willing to perform his part of contract, contrary to evidence on record?
12. Learned Senior Counsel Sri.M.Shivappa has submitted his arguments at length on behalf of appellants. Learned counsel Sri.V.P.Kulkarni has supported the judgments on behalf of the legal representatives of Kallappa. Sri.Vijeyendra Bhimakkanavar, learned counsel for 6th defendant- purchaser has supported the judgment of the Trial Court as well as the First Appellate Court. Learned 17 R.S.A.No.1208/2004 counsel appearing for the appellants has relied upon several decisions on various aspects.
Substantial Question of law No.1
13. The 6th defendant is the purchaser of the suit property from defendant Nos.1 to 5 through a registered sale deed dated 27.06.1982. The 6th defendant's case is that he is a bonafide purchaser for value without notice. Deceased plaintiff as well as the 6th defendant are the residents of Hediggonda village of Bydagi taluk in which the schedule property is situated. Learned Senior counsel appearing for the plaintiff has vehemently argued that Ex.P1 the agreement of sale executed by deceased Kallappa clearly mentions about the possession of the suit schedule property being handed over to the deceased plaintiff on 26.11.1974 and that the same is acknowledged by his legal representative, while executing fresh agreement of sale on 22.07.1977. Ex.P1 is the original agreement dated 18 R.S.A.No.1208/2004 26.11.1974. Ex.P2 is the agreement of sale dated 22.07.1977 stated to have been executed by defendant Nos.1 to 5 not only ratifying the earlier agreement of sale executed by his father but also agreeing to receive higher consideration and to execute a registered sale deed. The case of the plaintiff is that on 16.01.1981 defendants No.1 to 5 came forward and received a sum of Rs.800/- and further advance and agreement to regular sale deed at the earliest. Therefore, the learned Counsel has argued that the suit so filed on 05.01.1984 for the relief of specific performance in time that has been upheld in the First Appellate Court by framing necessary points to that effect. That will be dealt with while answering substantial question of law No.2 under the head proof of readiness and willingness.
14. What is argued before this Court by the learned Counsel for the appellant is that plaintiff was put into possession on 26.11.1974 and therefore, he 19 R.S.A.No.1208/2004 has been in lawful possession of the same. It is argued that there was cordiality between the deceased plaintiff and the 6th defendant and therefore, he knew very well that the plaintiff was put into possession of the schedule property, more so, the 6th defendant being a resident of the same Hediggonda village. It is in this regard, the learned Counsel for the appellants has relied upon a decision reported in AIR 2013 KAR 10 in the case of Siddappa and Anr. V. Mudakappa and Ors.
15. The decision is also in respect of the suit filed for specific performance. In paragraph No.19 of the said judgment, it is observed that defendant No.4 was also a resident of Shirur village and therefore, it necessarily speaks about the fact of deemed knowledge of defendant No.4 about the transaction of plaintiff and other defendants. If the 6th defendant was really in good terms with the plaintiff and knew about the agreement of sale executed by Kallappa in his favour and 20 R.S.A.No.1208/2004 subsequently, being ratified his sons, 6th defendant would not have ventured to purchase the same. Apart from this, the evidence placed on record discloses that there was a serious tenancy dispute between the deceased Kallappa and one person by name Eshwarappa, Channaveerappa, Shirasappa. What is argued by the learned senior Counsel is that the said tenancy dispute was a collusive dispute between the deceased Kallappa, Channaveerappa and Eshwarappa.
16. This Court is unable to accept the same as the tenancy dispute was prosecuted by the so called tenant before the land Tribunal with all seriousness. It took several years for the Tribunal to conclude the proceedings and to give a finding. It is to be seen that the tenant chose to file an application in Form No.7 seeking occupancy right in his favour on 02.05.1977 and 29.06.1977. The case was registered in the land Tribunal at Bydagi vide No.TENSQ 23+21+25 of 77. The 21 R.S.A.No.1208/2004 evidence of the tenant as well as the owner and other witnesses were recorded by the land Tribunal. Ultimately, tenancy application filed by the Channaveerappa was dismissed on 03.10.1981 by the land Tribunal. Ex.D4 is the certified copy of the final order passed by the land Tribunal. Apart from this, voluminous documentary evidence has been placed on record to prove that at no point of time the name of intending purchaser i.e. deceased plaintiff was entered in column No.12(2) in the RTC extract. If really the intending purchaser had been put into possession on the date of executing of agreement of sale on 26.11.1974 his name would have definitely found a place in column No.12(2). If really the plaintiff was put into possession, he would naturally paid the land revenue to the Government. On the other hand, name of Eshwarappa finds a place in column No.12(2) of the RTCs marked as Exs.D17 to D21. As per Section 133 of the Karnataka Land Revenue Act, presumption will have 22 R.S.A.No.1208/2004 to be attached in respect of the person whose name finds a place in the land revenue records, more particularly, when the revenue record of R.S. No.61/1A issued for the year 1972-73 finds the name of Eshwarappa, Channaveerappa in column No.12 and name of Kallappa finds a place in column No.9. Similarly, in subsequent RTC Ex.D18 the name of Channaveerappa is found. Of course, the Land Tribunal which is the competent authority to decide that aspect of tenancy has specifically held that the land in question is not tenanted land. Suffice to state that the assertion that he was put into possession by suit property by Kallappa on 26.11.1974 and he continued to be in possession is not probabilised in any manner.
17. On the other hand, the defence raised by the defendant Nos.1 to 5 appears to more probable. In fact, PW.4 the witness examined on behalf of plaintiff himself has admitted in his cross examination that the 6th 23 R.S.A.No.1208/2004 defendant has been in possession of the suit property from 1982, the year in which he purchased the property. What is argued before this Court by the learned senior counsel is that possession of the suit property held by the plaintiff was a notice to the 6th defendant. Has the plaintiff been able to probabilise the aspect of possession? This does not assume any importance at all. The only embargo cast upon the subsequent purchaser is to see the relevant records before purchasing the land in question. He did not find any evidence of plaintiff being in possession. On the other hand, tenancy dispute was known to all the villagers and it concludes in 1981. Hence, on appreciating the entire oral evidence in right perspective, the Trial Court as well as the First Appellate Court have given concurrent findings holding that plaintiff has failed to prove the aspect of being put into possession. In this view of the matter, the finding given by the Trial Court which is affirmed by the First 24 R.S.A.No.1208/2004 Appellate Court to the effect that the 6th defendant is a bonafied purchaser for value without notice does not call for any interference.
18. What is argued before this Court by the learned Senior Counsel is that even if the 6th defendant is in possession of the property, it cannot be considered as a lawful possession because he has taken possession unlawfully by entering into premises. It is further argued that the land in question was in the possession of the plaintiff for some time and immediately case was registered between the deceased plaintiff and defendant No.6 and in this regard he chose to take unlawful possession of the property and therefore, it does not assume much importance. But the documentary evidence placed on record would indicate that the plaintiff was not at all in possession of the property either in the year 1974 or in the year 1977 because the land revenue records speak otherwise. It is to be seen, 25 R.S.A.No.1208/2004 if the 6th defendant was not a bonafide purchaser, he would have purchased the property in question long back. It is to be seen that the dispute regarding tenancy in a village will be known to whole villagers. He chose to purchase the property after the tenancy proceedings concluded. As already discussed the tenancy proceedings came to an end on 03.10.1981 and 6th defendant chose to purchase the property only on 27.06.1982 i.e. 8 months after the conclusion of the tenancy proceedings. Hence, substantial question of law No.1 is held in the affirmative.
Substantial Question of law No.2:
19. This substantial question of law deals about the important aspect of readiness and willingness as per the mandate of Section 16 (c) of the Specific Relief Act.
Learned Senior counsel has argued that time is not essence on contract in respect of immovable property and therefore, suit filed in the year 1984 i.e., after the expiry of 7 years cannot be considered as serious 26 R.S.A.No.1208/2004 latches. It is argued that in the light of the First Appellate Court having held that the suit is in time, the question of delay does not assume much importance. Reliance is placed upon the decision reported in AIR 2001 SC page 1392 in the case of Tek Chand and others V. Deep Chand and others. As per the facts of the said case, agreements of sale were held to be true and genuine and the purchaser had received the advance. Further, there was a collusive decree between the vendor and his sons and therefore, the sale deed executed in favour of other persons was considered to be one to defeat the right of original purchaser.
20. In the present case, the facts are totally distinguishable. It is true that the agreement of sale marked as Exs.P1 and P2 have been affirmed. What is argued before this Court is that when the agreements have been held to be true and genuine the contents have been deemed to have been admitted by the 27 R.S.A.No.1208/2004 defendants. But the parties have entered into the witness box and they have been cross examined at length and voluminous documentary evidence have been placed on record to show that plaintiff was not actually put into possession as on the date of execution. Hence, this decision does not support on facts.
21. Another decision in AIR 2005 SC 1420 in the case of Sargunam (Dead) by L.R., v.
Chidambaram and another has been relied upon to contend that defendant No.6 has failed to prove that he was bonafide purchaser of suit schedule land for value without notice. As per the facts of the said case, subsequent agreement enforced into with defendant No.2 - the purchaser was only a concocted document and plea that family of defendant No.2 was in possession of the suit property for past several years and therefore, they had executed agreement of sale was not held to be proved. In the present case, the plaintiff 28 R.S.A.No.1208/2004 has failed to prove that he was put into possession vide Ex.P1. On the other hand, evidence placed on record demonstrates that there was tenancy dispute in respect of the land in question and it went on for several years and was concluded only on 03.10.1981. Name of the plaintiff does not find a place in any of the revenue records. Hence, this decision is not of any help to the case of the plaintiff.
22. What is argued before this Court by the learned counsel for the plaintiff/appellants is that there is a specific plea of readiness and willingness in the plaint and that has been proved. There is a specific plea in the plaint regarding the readiness and willingness. Mere plea of readiness and willingness would be insufficient. It has to be demonstrated by placing substantial and acceptable evidence. Decision reported in AIR 2005 SC page 3503 in the case of Aniglase Yohamman V. Ramlatha and others is relied upon to 29 R.S.A.No.1208/2004 contend that aspect of readiness and willingness has been pleaded and proved. It is useful to look into the evidence placed on record.
23. Ex.P1 is dated 26.11.1974. There is a time limit for executing a regular sale deed. Deceased defendant was expected to execute a regular sale deed before the next Ugadi in the year 1975. Notice was got issued on 27.6.1975 vide Ex.P6 calling upon this Kallappa to execute a regular sale deed. This notice was got issued after the Ugadi festival was over in the year 1975. Deceased plaintiff kept quiet and did not take any steps. On the other hand, defendants No.1 to 5 approached the plaintiff and executed a fresh agreement dated 22.07.1977, to execute a regular sale deed @ 1,301/- per acre. Therefore, the said agreement marked as Ex.P2 dated 22.07.1977 is a fresh agreement, though there is reference about their father having executed of agreement 26.11.1974.
30 R.S.A.No.1208/2004
24. Ex.P3 is nothing but a novation. Therefore, for all practical purpose, the suit filed for the relief of specific performance is based on Ex.P2 dated 22.07.1977. One of the sons of Kallappa was a minor and therefore, he was represented by defendant No.1. There is no time limit in Ex.P3 within which a regular sale deed was expected to be executed. What is mentioned in Ex.P3 is that, they would receive the balance of consideration at the time of executing a regular sale deed.
25. What is argued before this Court by the learned senior counsel is that, time is not the essence of contract in respect of a immovable property and in this regard, a decision reported in ILR 2008 KAR 857 in the case of Dr.N.Kasinath Vs. Sri Arun R. Rawell and Others has been relied upon. What is reiterated by this Court in the said decision is that, a contract may be enforced not only against any party to it but also against any person claiming under him by a title arising 31 R.S.A.No.1208/2004 subsequently to the contract, except a transferee for value, who has paid consideration in good faith and without notice of the original contract as provided in Section 19(b) of the Act. Decision reported in ILR 1995 KAR 492 in the case of E.S.Rajan Vs R.Mohan (DB) is relied upon to contend that, time is not the essence of contract in respect of a immovable property. In the said decision, it is reiterated that time should not be treated as one of the terms where certain acts to be performed by one of the parties and hence non-completion thereof within time fixed due to involvement of third parties, would not make the time essence.
26. In the present case, there was nothing to be done by the defendants. According to the plaintiff, if there was any mention in the agreement of sale marked as Ex.P1 or P3, that sale deed would be executed after the conclusion of the tenancy dispute, time would not have been an essence in the present contract. In the 32 R.S.A.No.1208/2004 present case, there is no reference about the pending tenancy dispute at all. The tenancy proceedings were initiated few months prior to the execution of Ex.P3, the agreement of sale by defendant Nos.1 to 5. The aspect of future payment of Rs.800/- on 16.01.1987 for which an endorsement is stated to have been made on Ex.P3, is not at all proved. Suffice to state that there is no such endorsement at all in the light of clear finding given by the trial Court, which is affirmed by the first appellate Court.
27. Plaintiff has relied upon a notice stated to have been issued to the defendants on 17.07.1982. A copy of the same is marked as Ex.P10. But defendants have denied the same. No documentary evidence is placed on record to show that the same was sent to the defendants and was received by defendant Nos.1 to 10. Therefore, no credence could be attached to Ex.P10, which is termed as a notice.
33 R.S.A.No.1208/2004
28. Suit came to be filed on 05.01.1984, i.e., almost 1½ years after the purchase was made by defendant No.6. The time gap in between the execution of Ex.P3 and the date of filing of the suit is almost 6½ years. There is no explanation whatsoever and in fact nothing inhibited the plaintiff from exercising his right based on the agreement of sale. One cannot forget that the relief of specific performance is an equitable relief. Whoever wants the Court to grant such a relief in his or her favour, he must come with clean hands and such exercise must be done within a reasonable time.
29. It is in this regard, the decision relied upon by the learned counsel for the respondents is relevant. It is reported in (1997) 3 SCC 1 in the case of K.S.Vidyanadam and Others Vs Vairavan. Dwelling upon part-1 and part-2 of Article 54 of the Limitation Act, the Hon'ble Apex Court held that, even though time not of the essence of contract of sale of immovable 34 R.S.A.No.1208/2004 property, suit has to be filed within a period of 3 years provided under Article 54 of the Limitation Act, but it should be performed within a reasonable time having regard to the terms of the contract prescribing a time limit and nature of the property."
30. It is further held that, if property is a house located in an urban area, continuing steep rise in price thereof would be a relevant factor for the court to decide whether the delay or laches on the part of the plaintiff to perform his part of the contract would disentitle him the relief of specific performance. As per the facts of the said case, 6 months was the time specified in the agreement of sale within which the plaintiff had to purchase the stamp papers, tender the balance amount of consideration and require the defendants to execute the sale deed. There was total inaction for 1½ years after initial payment of a small amount as earnest money by the plaintiff would be a circumstance, which 35 R.S.A.No.1208/2004 would weigh against the plaintiff, insofar as exercise of discretion for grant of specific performance is concerned. In the present case also there is total inaction on the part of the plaintiff to exercise right within a reasonable time after execution of Ex.P3 dated 22.07.1977. The right based on the agreement of sale was not exercised within a reasonable time even when the deceased Kallappa was alive. Though the notice was got issued vide Ex.P6 in the month of June 1975, no steps were taken and subsequently Kallappa died in the year 1977 i.e., almost 1½ years after receipt of Ex.P6.
31. Though the learned Judge of the first appellate Court has held that suit of the plaintiff is within time and the said finding stares at the respondents, still the respondent could support the judgment, as contemplated under Order 41 Rule 33 of CPC.
36 R.S.A.No.1208/2004
32. It is in this regard, a decision of the Bench consisting of three Hon'ble Judges of the Supreme Court in the case of Ahmadsahab Abdul Mulla Vs. Bibijan' case reported in (2009) 5 SCC 462, is relevant. Discussing the provisions of part-1 and part-2 of Article 54 of the Limitation Act, it is held that, "date fixed for performance" is a crystallized notion and this is clear from the fact that the second part (time from which period has begin to run) refers to a case where no such date is fixed. It is made clear that when the date is fixed, it means that there is a definite date fixed for doing a particular act. Even in the second part, according to the Hon'ble Apex Court in Bibijan's case is that, "plaintiff has noticed that performance is refused". Plaintiff knew very well that deceased Kallappa did not come forward to execute a regular sale deed even after the receipt of Ex.P6, the notice dated 30.06.1975 and plaintiff did not take any steps till his death, which occurred after almost 1½ years. Even after executing 37 R.S.A.No.1208/2004 the agreement vide Ex.P3 in the year 1977, plaintiff did not take any steps to call upon to execute a regular sale deed within a reasonable time either by issuing notice or by paying entire consideration. In the present case, the advance amount stated to have been received by the defendants is in all Rs.2,000/- as against the total consideration of Rs.6,000/- calculated at the rate of Rs.1,300/- per acre. In this view of the matter, this Court is of the opinion that the trial Court as well as the first appellate Court have properly analyzed the oral and documentary evidence in regard to the important aspect of readiness and willingness as contemplated under Section 16(c) of the Specific Performance Act.
33. The concurrent finding in regard to the inability of the plaintiff to prove the important aspect of readiness and willingness and the malafides of defendant No.6, the dismissal of the suit and the affirmation of the same by the first appellate Court is 38 R.S.A.No.1208/2004 justified. Hence, the substantial question of law No.2 is to be answered in the affirmative.
34. The learned senior counsel has vehemently argued that notwithstanding the framing of two substantial questions of law, second appellate Court can still frame some more substantial questions of law, as there is no embargo on the High Court in this regard. A decision reported in (2014) 4 SCC 693 between Rajasthan State Road Transport Corporation and Another Vs. Bajrang Lal is relied upon to contend that, in exceptional circumstances, Court can frame additional substantial questions of law where factual findings are found to be perverse. In the present case, the trial Court as well as the first appellate Court have assessed the oral and documentary evidence on the touchstone of intrinsic probabilities. Both the Courts have taken into consideration overall circumstances of the case and have assessed the same on the broad 39 R.S.A.No.1208/2004 preponderance of probabilities. Both the Courts have adopted right approach to the real state of affairs and no illegality or infirmity is committed either by the trial Court or by the first appellate Court in regard to the factual finding. Hence, no other substantial question of law arises for consideration before this Court. Consequently, the appeal is liable to be dismissed.
ORDER
Appeal filed under Section 100 of CPC is
dismissed by upholding the judgments of both the Courts.
There is no order as to costs.
SD/-
JUDGE Kmv/BS/MBS/-