Karnataka High Court
Sri K R Sheshappa Gowda vs Sri K C Rayappa Gowda on 11 April, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.529 OF 2006 (INJ)
C/W
REGULAR SECOND APPEAL NO.2440 OF 2011 (SP)
IN RSA NO.529/2006:
BETWEEN:
M.C. PRAMOD HEGDE
S/O CHINNAIAH HEGDE
AGED ABOUT 39 YEARS
R/O SUBRAMANI ESTATE
ANDAVANE, BALEHONNUR POST
KHANDYA HOBLI,
CHIKMAGALUR TALUK.
...APPELLANT
(BY SRI N.R. RAVIKUMAR, ADVOCATE)
AND:
1. K.R. SESHAPPA GOWDA
S/O RAME GOWDA
AGED ABOUT 69 YEARS
SINCE DECEASED BY HIS LRS.,
1(a) SMT. GIRIJAMMA
W/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 80 YEARS
1(b) SRI. SRINIVAS
S/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 59 YEARS
2
1(c) SRI. K.S.YOGENDRA
S/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 57 YEARS
1(d) SMT. ANNAPOORNA
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 52 YEARS
1(e) SRI. K.S.VISHAL
S/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 52 YEARS
1(f) SMT. K.S.VASANTHKUMARI
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 50 YEARS
1(g) SMT. MANJULA
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 49 YEARS
1(h) SMT. PRAMEELA
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 47 YEARS
1(i) K.S.PRABHAMANI
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 43 YEARS
1(j) SRI. K. SANDESH
S/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 42 YEARS
ALL ARE RESIDENTS OF
KARAGANI-HUIGERE VILLAGE,
KHANDYA HOBLI,
CHIKMAGALUR TALUK AND DISTRICT-577101.
2. K.S. SRINIVASAN
S/O. K.R SHESHAPPA GOWDA
AGED ABOUT 46 YEARS
RESIDENT OF KARAGANE VILLAGE,
KHANDYA HOBLI,
3
HUIGERE, KHANDYA HOBLI,
CHIKMAGALUR TALUK.
...RESPONDENTS
(BY SRI. M.S. VARADARAJAN, ADVOCATE FOR
SRI M. RAMAMOHAN, ADVOCATE FOR RESPONDENT NOS.1(a-j)
AND 2;
CAUSE TITLE AMENDED VIDE COURT ORDER DATED
02.12.2009)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 09.12.2005
PASSED IN R.A. NO.103/1998 ON THE FILE OF THE CIVIL
JUDGE (SR.DN), CHIKMAGALUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 13.04.1998
PASSED IN O.S. NO.201/1996 ON THE FILE OF THE I
ADDITIONAL CIVIL JUDGE (JR.DN), CHIKMAGALUR.
IN RSA NO.2440/2011:
BETWEEN:
1. SRI. K.R. SHESHAPPA GOWDA
S/O LATE RAME GOWDA
AGED ABOUT 75 YEARS
SINCE DEAD BY HIS LRS.,
1(a) SMT. GIRIJAMMA
W/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 80 YEARS
1(b) SRI. SRINIVAS
S/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 59 YEARS
(ALREADY ON RECORD AS APPELLANT NO.2)
1(c) SRI. K.S.YOGENDRA
S/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 57 YEARS
1(d) SMT. ANNAPOORNA
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 54 YEARS
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1(e) SRI. K.S.VISHAL
S/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 52 YEARS
1(f) SMT. K.S.VASANTHAKUMARI
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 50 YEARS
1(g) SMT. MANJULA
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 48 YEARS
1(h) SMT. PRAMEELA
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 46 YEARS
1(i) SMT. K.S.PRABHAMANI
D/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 53 YEARS
1(j) SRI. SANDESH
S/O LATE K.R.SHESHAPPAGOWDA
AGED ABOUT 44 YEARS
2. SRI K.S. SRINIVASA
S/O. SRI SHESHAPPA GOWDA
AGED ABOUT 50 YEARS
ALL ARE RESIDING AT:
KARAGANI-HUIGERE VILLAGE,
KHANDYA HOBLI,
CHIKMAGALUR TALUK
CHIKMAGALUR DISTRICT.
...APPELLANTS
(BY SRI. M.S. VARADARAJAN, ADVOCATE FOR SRI
M.RAMAMOHAN, ADVOCTE)
AND:
1. SRI. K.C.RAYAPPA GOWDA
AGED ABOUT 59 YEARS,
S/O LATE CHOWDEGOWDA
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2. SRI. K.C.LAKSHMANA GOWDA
AGED ABOUT 55 YEARS,
S/O LATE CHOWDEGOWDA
3. SRI. K.S.SHANKARAPPA GOWDA
AGED ABOUT 48 YEARS,
S/O LATE CHOWDEGOWDA
4. SRI. K.M. RAVI
S/O LATE K.C.MANJAPPA GOWDA
AGED ABOUT 45 YEARS
RESPONDENTS 1 TO 4 ARE RESIDENTS OF
KARAGANI-HULGERE VILLAGE,
KHADYA HOBLI,
CHIKMAGALUR DISTRICT.
5. SRI. PRAMOD HEGDE
S/O HERUR CHANDRAIAH
AGED ABOUT 49 YEARS
RESIDENT OF ANDAVANE VILLAGE
KHANDYA HOBLI, CHIKMAGALUR TALUK,
CHIKMAGALUR DISTRICT-577112.
...RESPONDENTS
(BY SRI. N.R. RAVIKUMAR, ADVOCATE FOR RESPONDENT NO.5
SRI PRADEEP NAIK, ADVOCATE FOR RESPONDENT NO.4
RESPONDENT NOS.1, 2 AND 3 ARE SERVED
CAUSE TITLE AMENDED VIDE COURT ORDER DATED
02.12.2009)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 15.06.2011
PASSED IN R.A.NO.144/2006 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, CHIKMAGALUR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 12.09.2006 PASSED IN O.S.NO.135/1992 ON THE FILE
OF THE PRL. CIVIL JUDGE (JR.DN) AND JMFC., CHIKMAGALUR.
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THESE APPEALS ARE COMING ON FOR FURTHER
DICTATION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
RSA No.2440/2011 is filed by the plaintiff No.1 (since deceased) and plaintiff No.2 in O.S.No.135/1992, challenging the concurrent finding recorded by the Trial Court and the First Appellate Court dismissing their suit for specific performance of an agreement of sale dated 18.04.1979.
2. RSA No.529/2006 is filed by the defendant No.1 in O.S.No.201/1996, challenging the concurrent finding recorded by the Trial Court and the First Appellate Court decreeing the suit filed by the plaintiffs for perpetual injunction, restraining defendant No.1 and the other defendant from interfering with their possession of the suit schedule property.
FACTS LEADING TO RSA NO.2440/2011
3. The suit in O.S.No.135/1992 was filed for specific performance of an agreement of sale dated 7 18.04.1979, contending that the suit schedule property was granted temporarily to late Sri Chowde Gowda, the father of defendant Nos.1 to 3, for cultivation of coffee, in terms of a saguvali chit No.91/1962-63. It was alleged that since Sri Chowde Gowda could not cultivate the suit property, he offered to sell it to the plaintiffs for a sum of Rs.30,000/- which was accepted and an agreement of sale was executed on 18.04.1979. This agreement was executed by Sri Chowde Gowda and his four sons, namely, defendants Nos.1 to 3 and Sri K.C. Manjappa Gowda, the father of defendant No.4. The plaintiffs claimed that they paid a sum of Rs.10,000/- as part of the sale consideration and were placed in possession of the suit property. The plaintiffs claimed that they invested substantially on the suit property to bring it under cultivation for coffee. They claimed that they paid further consideration of Rs.18,650/- on various dates to Sri Chowde Gowda, who passed on three receipts dated 20.04.1980, 12.04.1981, 28.04.1981 for Rs.6,000/-, Rs.4,650/- and Rs.8,000/- respectively. The defendant Nos.1 to 3 and their father and the father of 8 defendant No.4 had allegedly executed a General Power Of Attorney dated 18.04.1979 authorizing the plaintiff No.1 to do all that was required for conclusion of the transaction. It was claimed that Sri Chowde Gowda had agreed to obtain Coffee Registration Certificate and a permanent saguvali chit before concluding the sale transaction. The plaintiffs claimed that Sri Chowde Gowda had agreed to meet the cost of registration of Rs.1,500/- and had permitted the plaintiffs to withhold Rs.1,500/- from the balance sale consideration payable. The plaintiffs claimed that since they had paid Rs.28,650/-, they withheld Rs.1,350/- towards the cost of registration. The plaintiffs claimed that ever since 18.04.1979, they were ready and willing to perform their part of the contract. Since time for performance of the contract was not fixed, the plaintiffs allegedly contacted the defendant Nos.1 to 4 in 1991 but they evasively replied to the demand of the plaintiffs. The plaintiffs allegedly came to know that the defendant Nos.1 to 4 were trying to dispose off the suit property to defendant No.5, which prompted the plaintiffs to issue a 9 notice dated 07.05.1991 demanding the defendants to conclude the transaction. In response, the defendant No.5 replied denying the agreement of sale and general power of attorney dated 18.04.1979 and claimed that the defendant No.4 had agreed to sell the suit property to him under an agreement of sale dated 12.04.1991. The plaintiffs, therefore, sought for specific performance of the agreement of sale dated 18.04.1979 contending that the 15 year period of non-alienation of the suit property imposed under the permanent saguvali chit expired in 2001 and therefore, the suit was in time.
4. The suit was contested by the defendant No.4 who filed his written statement denying the averments of the plaint and contended that after his father died, a partition was effected between him and defendant Nos.1 to 3 and at such partition, the suit property fell to his share. He claimed that he was in possession and enjoyment of the suit property and that the revenue records stood in his name. He denied the execution of the agreement of sale 10 and general power of attorney dated 18.04.1979. He claimed that he being the eldest member of his family, comprising of three brothers and two sisters, offered to sell the suit property to the defendant No.5 for Rs.1,50,000/- and received advance sale consideration of Rs.25,000/- in terms of the agreement of sale dated 12.04.1991. He claimed that defendant No.5 had agreed to clear a loan of Rs.58,250/- that was raised from Karnataka Bank Ltd., Balehonnur, on the security of the suit property. He claimed that defendant No.5 was placed in possession of the suit property and that defendant No.5 had invested substantially for developing it for cultivation of coffee. He claimed that since the suit property fell to his share, the defendant Nos.1 to 3 had no right, title or interest therein and thus prayed that the suit be dismissed.
5. The defendants No.1 to 3 and 5 adopted the written statement filed by the defendant No.4.
6. Based on these pleadings, the Trial Court framed the following issues:-
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"1.Whether plaintiff proves that the defendants have agreed to sell the suit schedule property for Rs.30,000/- and executed an agreement dated 18-4-1979?
2. Whether plaintiff further proves that the defendants have received Rs.10,000/- as a part consideration on the said date and put him in possession of the schedule property?
3. Whether plaintiff further proves that he is always ready and willing to perform his part of contract?
4. What order ?"
7. The plaintiff No.1 was examined as PW.1 and a witness was examined as PW.2 and they marked documents as Exs.P1 to P11. The defendant No.4 was examined as DW.1, who marked documents as Exs.D1 to D5 and examined a witness as DW.2.
8. Based on the oral and documentary evidence, the Trial Court held that the plaintiffs had proved the execution of the agreement of sale dated 18.04.1979 and that they had paid a sum of Rs.10,000/- on the date of the agreement and were placed in possession of the suit 12 property. However, the Trial Court held that the plaintiffs had failed to prove the payment of the remaining sale consideration under the receipts at Exs.P2(a), P2(b) and P2(c). The Trial Court opined that the plaintiffs were ready and willing to perform their part of the contract. Accordingly, the Trial Court in terms of the Judgment and Decree dated 27.03.1995, decreed the suit of the plaintiffs by directing the defendant Nos.1 to 4 to execute registered sale deed in favour of the plaintiffs in pursuance of the agreement dated 18.04.1979 after receipt of the balance consideration amount within the time stipulated in the said Judgment.
9. Feeling aggrieved by the said Judgment and Decree, the defendant No.4 filed R.A.No.58/1995 before the First Appellate Court (Court of Civil Judge (Sr. Dn.), Chikmagalur), who after hearing the learned counsel representing the parties, framed the following points for consideration:
"1. Whether respondents/plaintiffs prove the execution of agreement dated:18-4-1979 by 13 late Chowdegowda and his sons agreeing to sell the suit land for Rs.30,000-00?
2. Whether respondents/plaintiffs further establish that the defendants/appellant have received part consideration amount and also handed over the possession of the property?
3. Whether respondents further prove that they are always ready and wiling to perform their part of the contract?
4. Whether the judgment and decree passed by the learned trial judge is perverse, capricious and liable to be interfered with?
5. What order?"
10. The First Appellate Court by its Judgment and Decree dated 21.12.2002, dismissed the appeal with costs and confirmed the Judgment and Decree passed by the Trial Court. This was again challenged before this Court in R.S.A No.341/2003 which was initially dismissed for non- prosecution on 06.02.2004 and later C.P. No.793/2004 was filed to recall the Order dated 06.02.2004. This Court in terms of the Order dated 27.05.2004, recalled the said Order and restored R.S.A No.341/2003 to file and later, in 14 terms of the Judgment dated 08.07.2005, allowed the appeal and set aside the Judgment and Decree dated 21.12.2002 passed by the First Appellate Court in R.A. No.58/1995 and remitted the case back to the First Appellate Court for fresh disposal in the light of the observations made in the body of the said Judgment, as this Court held that the issue regarding limitation and the readiness and willingness on the part of the plaintiffs to conclude the transaction, was not considered properly by the First Appellate Court. After such remand, the First Appellate Court held proceedings and in terms of the Judgment and Decree dated 12.12.2005, allowed the appeal by setting aside the Judgment and Decree passed by the Trial Court in O.S. No.135/1992 and remitted the case back to the Trial Court for fresh disposal according to law with a direction to the Trial Court to frame additional issues as proposed in the body of the said Judgment. Later, the Trial Court framed additional issues which are as follows:
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"1. Whether the defendants prove that the suit is barred by limitation?
2. Whether the defendant No.4 proves that sale agreement dt: 18-4-1979 is null and void?
3. Whether the plaintiffs are entitled for relief of specific performance?"
11. The Trial Court recorded fresh evidence of PW.1, who marked documents as Ex.P12 to P25. DW.1 was also examined further and documents as per Exs.D6 and D7 were marked.
12. Based on the oral and documentary evidence, the Trial Court in terms of the Judgment and Decree dated 12.09.2006, held that the plaintiffs had proved the execution of the agreement of sale dated 18.04.1979 and that they had paid a sum of Rs.10,000/- as part of the sale consideration. It held that the plaintiffs had failed to prove the payment of the balance consideration allegedly evidenced by Exs.P2(a), P2(b) and P2(c) and that they failed to prove that they were placed in possession of the suit property. It held that the suit was barred by limitation 16 as the plaintiffs failed to file the suit within three years from the date permanent saguvali chit was granted to them. Though permanent saguvali chit had been granted to Sri Chowde Gowda in the year 1984-85, the plaintiffs filed the suit belatedly in the year 1992. The Trial Court further held that the agreement - Ex.P1 was executed by Sri Chowde Gowda and his sons in favour of the plaintiffs based on a provisional saguvali chit, which did not create any right over the suit property and also, the said agreement was executed during the period of non- alienation and hence, the said agreement was void ab initio and not enforceable. It further held that the plaintiffs did not prove that they were ready and willing to perform their part of the contract and hence, dismissed the suit.
13. Being aggrieved by the above Judgment and Decree, the plaintiffs filed R.A. No.144/2006 before the First Appellate Court (Fast Track Court, Chikmagalur), who after hearing the learned counsel for the parties, framed the following points for consideration: 17
"1. Whether the plaintiffs/appellants have proved that the defendants have agreed to sell the suit schedule property for Rs.30,000/- and executed an agreement dated 18.4.1979?
2. Whether the plaintiffs/appellants have proved that the defendants/respondents, after receiving the part consideration of Rs.10,000/- put the plaintiffs in possession of the suit property?
3. Whether the plaintiffs/appellants have proved that they were always ready and willing to perform their part of the contract?
4. Whether the defendants/respondents prove that the suit is barred by limitation?
5. Whether the defendant No.4/respondent No.4 proves that the sale agreement dated 18.4.1979 is null and void?
6. Whether the plaintiffs/appellants are entitled for the relief of specific performance of the contract?
7. Whether the judgment and decree of the trial Court require any interference at the hands of this Court?
8. What order?"
14. The First Appellate Court in terms of its Judgment and Decree dated 15.06.2011, held that the 18 plaintiffs had proved the lawful execution of the agreement of sale dated 18.04.1979 and that they paid a sum of Rs.10,000/- on the date of agreement and that they were placed in possession of the suit property. It, however, held that the plaintiffs failed to prove the payments under Exs.P2(a), P2(b) and P2(c) and that they were ready and willing to perform their part of the contract. It further held that the agreement was enforceable since on the date of execution of the agreement - Ex.P1, Sri Chowde Gowda was conferred with interest over the suit property awaiting only the issuance of permanent saguvali chit and in the light of the provisions of Section 23 of the Indian Contract Act, 1872, the execution of the agreement - Ex.P1 could not be said to be void as the clause prohibiting alienation for 15 years, prohibited the execution of the sale deed, and not an agreement of sale. It also held that the suit was filed beyond the period of limitation fixed under Article 54 of the Limitation Act, 1963 and hence dismissed the appeal.
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15. Being aggrieved by the above, the plaintiff No.1 (since deceased) and plaintiff No.2 filed this Regular Second Appeal which was admitted on 14.02.2022 to consider the following substantial question of law:
"Whether the facts and circumstances of the case, the Trial Court and the First Appellate Court were justified in dismissing the suit of the plaintiff for specific performance, despite upholding the validity or otherwise of the agreement of sale dated 18.04.1979 on the grounds of limitation, delay and laches on the part of the plaintiff?"
FACTS LEADING TO RSA NO.529/2006
16. The plaintiffs in O.S.No.201/1996, who were also plaintiffs in O.S. No.135/1992, sought perpetual injunction restraining the defendants, who were defendant Nos.5 and 4 respectively in O.S. No.135/1992, from interfering with the possession of the plaintiffs in the suit property. They contended that they were placed in possession of the suit property under an agreement of sale dated 18.04.1979 and that the defendant No.1 being a 20 purchaser from defendant No.2 was interfering with their possession.
17. The suit was contested by defendant No.1, who filed his written statement and denied the averments of the plaint and contended that the plaintiffs were never in possession of the suit property. He claimed that defendant No.2 had executed an agreement dated 12.04.1991 agreeing to sell the suit property in his favour and that he had filed a suit for specific performance which was compromised. He claimed that he was in possession of the suit property and that he had spent enormously for developing the suit property. He, therefore, prayed that the suit be dismissed. Defendant No.2 did not file any written statement.
18. Based on these pleadings, the Trial Court framed the following issues:
"1. vÁ£ÀÄ zÁªÁ ¢£ÁAPÀzÀAzÀÄ zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°èzÉÝ£ÀÄ JA§ÄzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀªÀgÉÃ?21
2. ¥ÀæwªÁ¢AiÀÄjAzÀ D¬ÄvÀÄ JAzÀÄ ºÉüÀ¯ÁzÀ CrØ DvÀAPÀªÀ£ÀÄß ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀªÀgÉÃ?
3. ªÁ¢AiÀÄgÀÄ ±Á±ÀévÀ ¥Àæw§AzsÀPÁeÉÕ ¥ÀjºÁgÀªÀ£ÀÄß ºÉÆAzÀ®Ä CºÀðgÁVgÀÄvÁÀÛgÉAiÉÄÃ?
4. ªÀiÁqÀĪÀ DzÉñÀ CxÀªÁ rQæ K£ÀÄ?"
19. The plaintiff No.1 was examined as PW.1 and he marked documents as Exs.P1 to P13. The defendant No.1 was examined as DW.1 and he marked documents as Exs.D1 to D5.
20. Based on the oral and documentary evidence, the Trial Court decreed the suit. An appeal in R.A.No.103/1998 preferred by the defendant No.1 before the First Appellate Court (Court of the Civil Judge (Sr. Dn.), Chikmagalur) was dismissed in terms of the Judgment and Decree dated 09.12.2005.
21. The defendant No.1 being aggrieved by the above, has filed RSA No.529/2006, which was admitted on 10.07.2009 to consider the following substantial question of law:
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"Whether the courts below are justified in decreeing suit of the plaintiff for permanent injunction against the defendant contrary to the admission made by respondent / plaintiff during the evidence as to the possession of the property?"
22. Since both the appeals involve common questions of fact and law, both are taken up for disposal by this common Judgment. The plaintiff No.1 since deceased and represented by his legal representatives and plaintiff No.2 in both the suits i.e., O.S. No.135/1992 and O.S. No.201/1996 shall henceforth be referred as "agreement holders" while the defendant Nos.1, 2 and defendant No.3 stated to be a minor as on the date of the agreement and was represented by his father, and the father of the defendant No.4 in O.S. No.135/1992 shall henceforth be referred to as the "vendors" and defendant No.5 in O.S. No.135/1992, who is defendant No.1 in O.S. No.201/1996, shall henceforth be referred to as the "subsequent purchaser".
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23. The learned counsel for the agreement holders submitted the following arguments:
(i) That the Trial Court and the First Appellate Court have held that the agreement dated 18.04.1979 was lawfully executed by Sri Chowde Gowda and vendors in favour of the agreement holders and a sum of Rs.10,000/-
was paid on the said date and that the possession of the suit property was delivered to them.
(ii) That the finding of the Trial Court that the plaintiffs did not prove the payment of balance consideration as per Exs.P2(a), P2(b) and P2(c) is wrong since defendant No.4 pleaded in the written statement that Exs.P2(a), P2(b) and P2(c) were executed for a different purpose and therefore, execution of these documents were admitted. That DW.1 failed to prove as to what were the other 24 purposes / transactions that necessitated execution of Exs.P2(a), P2(b) and P2(c). That a reading of these documents proved it beyond doubt that they were executed to evidence the payment of the balance sale consideration. Therefore, the agreement holders had paid the entire sale consideration to Sri Chowde Gowda and vendors and hence the agreement holders had proved that they were ready to conclude the transaction.
(iii) As far as willingness on the part of the agreement holders is concerned, the agreement specified that Sri Chowde Gowda and vendors were bound to obtain Coffee Registration Certificate as well as the permanent saguvali chit before concluding the transaction. Since the vendors obtained the permanent saguvali chit in the year 1984-85, the plaintiffs caused a notice on 07.05.1991 demanding the conclusion of the transaction 25 and hence, the agreement holders had proved their willingness to perform the contract.
(iv) That the finding of the Trial Court and the First Appellate Court that the agreement was barred by the law of limitation is thoroughly improper as Sri Chowde Gowda and vendors could not have sold the suit property based on a temporary saguvali chit and admittedly, they had obtained the permanent saguvali chit in the year 1984-85 and therefore, the time for compliance arose only after the expiry of the period of non- alienation i.e., in the year 2000. However, since the vendors claimed that the suit property was sold to the subsequent purchaser, the suit was filed immediately on coming to know about the colourable transaction. Hence the suit was filed within time.
26
24. In support of his above contentions, the learned counsel relied on the following Judgments:
1) N.Hanumantharaya v. Mariyamma - Laws (Kar)-2007-10-47;
2) Chhandsi Abrol v. M T Rangaswamy - Laws (Kar)-2017-8-37;
3) K. Prakash v. B.R. Sampath Kumar - 2014 AIR SCW 5795; and
4) Chikka Venkatamma v. R. Nagaraja - Laws (Kar)-2017-3-31.
25. The learned counsel for agreement holders further contended that possession of the suit property was delivered to them under the agreement of sale dated 18.04.1979 and there was no proceeding initiated to recover back the possession of the suit property. Therefore the Judgment and Decree of perpetual injunction granted is just and proper, in view of the finding recorded by both the Courts that the agreement of sale was lawfully entered into between the parties. That the defendant No.4 in O.S. No.135/1992 who sold the suit property to the subsequent 27 purchaser was bound by the agreement dated 18.04.1979 as his father was also a signatory to it.
26. Per Contra, the learned counsel for the vendors submitted the following arguments:
(i) That the agreement holders did not prove Exs.P2(a), P2(b) and P2(c) by examining competent witnesses. DW.1 was not a signatory to Exs.P2(a), P2(b) and P2(c) and therefore, his pleading in the written statement that they were executed for a different purpose cannot be construed as an admission.
(ii) That Sri Chowde Gowda and the vendors had admittedly executed a General Power of Attorney (GPA) on 18.04.1979 authorizing one of the agreement holders, namely, Sri K.R. Seshappa Gowda, to do everything needed for conclusion of the sale, which included obtaining the Coffee Registration Certificate and the permanent 28 saguvali chit. But the agreement holders did nothing to obtain them. On the contrary, they waited for the vendors to obtain the permanent saguvali chit and after the suit property fell to the share of DW.1 at a partition and same was sold by him to the subsequent purchaser and thereafter, the agreement holders filed the suit for specific performance.
Therefore, the agreement holders were never ready and willing to perform their part of the contract.
(iii) The suit for specific performance is highly belated inasmuch as the agreement of sale was executed on 18.04.1979 and the permanent saguvali chit was obtained in 1984-
85. Hence, the suit must have been filed within three years from the date of permanent saguvali chit but it was filed in the year 1992 on an imaginary cause of action.
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(iv) That the agreement holders own adjacent land and were aware about the developments in respect of the suit property. Therefore they cannot contend that they were not aware of the permanent saguvali chit obtained in the year 1984-85.
(v) That the agreement - Ex.P1 was not enforceable as the period of non-alienation was in force up to the year 2000-01.
(vi) That the agreement holders were not in possession of the suit property, but it was DW.1 who was in possession as he had raised a loan from the Karnataka Bank Ltd., and that PW.1 in O.S. No.201/1996 admitted in his evidence that the bank would sanction loan only after a spot inspection of the suit property. That the possession allegedly delivered under the agreement of sale dated 18.04.1979 was only symbolic and not actual. 30
27. The learned counsel for the subsequent purchaser submitted the following arguments:
(i) That the agreement holders did nothing from 1979 till the year 1992 to establish or seek enforcement of their right over the suit property.
(ii) That the sale agreement dated 12.04.1991 in favour of the subsequent purchaser was bona fide and without notice of the earlier agreement in favour of the agreement holders. Therefore they were not entitled to any reliefs.
(iii) That the subsequent purchaser was in possession of the suit property which is evident from the sale deed dated 19.04.1995 in his favour (Ex.D1 in O.S.No.201/1996).
(iv) Since the agreement holders were not in actual possession, they were not entitled to the relief of perpetual injunction. 31
28. I have bestowed my anxious consideration to the arguments canvassed by the learned counsel for the parties and I have perused the records of the Trial Court, First Appellate Court, their respective Judgment/s and Decree/s as well as the grounds urged in the memorandum of appeals.
29. It is now well settled that while handling a suit for specific performance, the Court is bound to position itself into the armchair of the parties and restitute them as far as possible based on the covenants contracted by them. The enforceability of the agreement should be on the anvil of the conditions incorporated therein and Courts cannot usurp to itself, the power to decide the validity of such conditions, unless they are unconscionable or illegal or gives an unfair advantage to one of the parties. The discretion to grant specific performance cannot be arbitrary and need not be granted on the mere ground that it is lawful to do so. The exercise of discretion should be sound and intelligible and not based on extraneous 32 consideration. Keeping in mind the above settled position of law, let me deal with the facts of the case.
30. Adverting to the documentary evidence on record in O.S. No.135/1992, Ex.P1 is the agreement of sale dated 18.04.1979 which discloses that the suit property was earlier granted to Sri Chowde Gowda in terms of a temporary saguvali chit for the purpose of cultivation of coffee. It discloses that the said Sri Chowde Gowda found it difficult to cultivate the said land and therefore, desired to sell the said land and purchase some other beneficial land. Therefore, he offered to sell the suit property to the agreement holders for a total sale consideration of Rs.30,000/- and received a sum of Rs.10,000/- as earnest sale consideration and placed the agreement holders in possession of the suit property. It was specifically agreed between the parties that a proper deed of conveyance would be executed after obtaining a Coffee Registration Certificate and a permanent saguvali chit. It was also agreed that a sum of Rs.1,500/- would be retained by the agreement holders for the purpose of 33 meeting the stamp duty and registration expenses. It also envisaged that Sri Chowde Gowda and the vendors would execute all such forms and applications prescribed for the purpose of obtaining the permanent saguvali chit and the Coffee Registration Certificate and that for the aforesaid purpose, a power of attorney was executed in favour of one of the agreement holders i.e., plaintiff No.1 on 18.04.1979. The suit property comprised of two portions measuring 05 acres each in Sy. No.38 (new Sy. No.263) and was cultivated for coffee and that it lay adjacent to the property of the agreement holders on the southern side. Ex.P2(a) is a receipt dated 20.04.1980 stated to have been executed by Sri Chowde Gowda in favour of the agreement holders and it related to "S. No.38, PÁ¦ PÁr£À ¨Á§ÄÛ CVæªÉÄAmï ¢: 18.04.1979" and a sum of Rs.6,000/- was paid on the said day. Ex.P2(b) is another receipt dated 12.04.1981 which evidenced the payment of a sum of Rs.4,650/- towards "PÁ¦ PÁr£À ¨Á§ÄÛ CVæªÉÄAmï£À" Ex.P2(c) is another receipt dated 28.04.1981 issued to evidence the receipt of 34 a sum of Rs.8,000/- by Sri Chowde Gowda towards "S. No. 38 PÁ¦ PÁr£À ¨Á§ÄÛ H.M.§¸À¥Àà UËqÀæ UÀzÉÝ vÉUÉzÀÄPÉƼÀî®Ä PÁr£À CVæªÉÄAmï." Ex.P3 is a reply dated 14.05.1991 issued on behalf of the subsequent purchaser to the notice dated 07.05.1991 addressed by the agreement holders calling upon the vendors and the subsequent purchaser to conclude the sale transaction. Ex.P4 is the notice dated 07.05.1991 issued at the behest of the agreement holders calling upon the vendors and the subsequent purchaser not to create any encumbrance over the suit property. Ex.P5 is the RTC in respect of the land in Sy. No.38 (new Sy. No.263) for the period from 1988-89 to 1990-91 which shows that Sri Chowde Gowda and defendant No.4 in O.S. No.135/1992 are the owners of the suit property and that the defendant No.4 had got his name entered in the revenue records pursuant to M.R. No.10/85-86. Ex.P6 is certified copy of the power of attorney executed by Sri Chowde Gowda and the vendors in favour of one of the agreement holders. By this document, the following power 35 was given to one of the agreement holders i.e., plaintiff No.1:
"±ÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼ÀÄ £ÀªÀÄä ¥ÉÊQ MAzÀ£Éà ZËqÉÃUËqÀjUÉ ¸ÀPÁðgÀ¢AzÀ zÀgÀSÁ¸ÀÄÛ ªÀÄÆ®PÀªÁV ªÀÄAdÆgÁV §AzÀÄ CªÀgÀ SÁvÉ ªÀUÀð ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°ègÀÄvÉÛ. ±ÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼À ¨Á§ÄÛ £ÁªÀÅUÀ¼ÀÄ ¸ÀévÀB PÉ®¸ÀPÁgÀåUÀ¼À£ÀÄß ªÀiÁqÀ®Ä ¸ÁzsÀåªÁUÀzÀÝjAzÀ ¤ªÀÄUÉ F ¨Á§ÄÛ ¥ÀÆtð C¢üPÁgÀªÀ£ÀÄß PÉÆqÀĪÀÅzÀÄ ¸ÀÆPÀÛªÉAzÀÄ ªÀÄ£ÀUÀAqÀÄ ºÁUÀÆ ¸ÀévÀÄÛUÀ¼À ¨Á§ÄÛ ªÀiÁå£ÉÃdÄ ªÀiÁqÀ®Ä PÁ¦üà jf¸ÉÖçñÀ£ï ¸Ànð¦üPÉÃlÄUÀ¼À£ÀÄß ¥ÀqÀPÉƼÀî®Ä ºÁUÀÆ ¸ÀPÁðgÀ¢AzÀ SÁAiÀÄA ¸ÁUÀĪÀ½ aÃnUÀ¼À£ÀÄß ¥ÀqÀPÉƼÀî®Ä ¥ÀÆtð C¢üPÁgÀ PÉÆnÖgÀÄvÉÛÃªÉ ºÁUÀÆ F ¥ÀvÀæzÀ §®zÀ ªÉÄÃ¯É ¤ÃªÀÅ ºÁUÀÆ ¤«ÄäAzÀ £ÉêÀÄPÀ ªÀiÁqÀ®àqÀĪÀ EvÀgÉ KdAlgÀÄUÀ¼À ªÀÄÆ®PÀªÁV ªÀiÁqÀ®àqÀĪÀ AiÀiÁªÀÅzÉà PÉ®¸ÀPÁgÀåUÀ¼À£ÀÄß ¸ÀºÁ £ÁªÉà ¸ÀévÀB ªÀiÁrzÀgÉ ºÁåUÉÆà ºÁUÉAzÀÄ £ÁªÀÅUÀ¼ÀÄ ¸ÀzÁPÁ®PÀÆÌ zsÀÈqÀ¥Àr¸ÀÄvÉÛÃªÉ ºÁUÀÆ ±ÀÈvÀ¥Àr¸ÀÄvÉÛêÉ."
Therefore, the above recital discloses that as on the date of the agreement itself, the vendors had executed a power of attorney in favour of one of the agreement holders authorizing him to do all those things that were required for conclusion of the sale transaction including obtaining the Coffee Registration Certificate and the permanent 36 saguvali chit. Ex.P7 are certified copies of the land revenue receipts in respect of the suit schedule property. Ex.P8 is certified copy of yet another land revenue receipt. Exs.P9, P10 and P11 are copies of the postal acknowledgments. Ex.P12 is certified copy of the plaint in O.S. No.40/1994 filed by the subsequent purchaser for specific performance of an agreement of sale dated 12.04.1991 executed in his favour by defendant No.4 in O.S.No.135/1992 in respect of the suit schedule property. Ex.P13 is certified copy of the order sheet in O.S. No.40/1994. Ex.P14 is certified copy of a memo filed by the plaintiff in O.S. No.40/1994 stating that defendants in the said suit executed a sale deed in favour of the subsequent purchaser. Ex.P15 is certified copy of the sale deed dated 19.04.1995 executed in favour of the subsequent purchaser in respect of 10 acres of land in Sy. No.263. Ex.P16 is certified copy of a petition filed in Ex. Case No.172/1995 to execute the earlier Judgment and Decree passed in O.S. No.135/1992 dated 27.03.1995. Ex.P17 is certified copy of the order sheet in Ex. Case No.172/1995. Ex.P18 is certified copy of the application 37 filed in Ex. Case No.172/1995 for appointment of a Commissioner to execute a sale deed. Ex.P19 is the mutation register extract in M.R No.17/2003-2004 in terms of which the revenue records in respect of the suit property were transferred to the name of the agreement holders. Ex.P20 is certified copy of the Judgment dated 13.04.1998 passed in O.S. No.201/1996 which was filed for perpetual injunction against the subsequent purchaser and his vendor. Ex.P21 is the certified copy of the decree passed in O.S. No.201/1996. Ex.P22 is certified copy of the Judgment passed in R.A. No.103/1998 challenging the Judgment and Decree passed in O.S. No.201/1996. Ex.P23 is copy of the decree passed in R.A. No.103/1998. Ex.P24 is the sale deed dated 17.04.2003 executed in favour of the agreement holders subsequent to the Judgment and Decree dated 27.03.1995 passed in O.S. No.135/1992. Ex.P25 is RTC in respect of the suit land for the year 2005-06.
38
31. As regards the documentary evidence marked by DW.1 in O.S. No.135/1992, Ex.D1 is a Certificate of Registration dated 16.10.1989 issued by Tahasildar, Chikmagalur Taluk, in favour of defendant No.4. Ex.D2 is grant certificate dated 10.01.1985 issued in favour of Sri Chowde Gowda. Ex.D3 is not found in the records. Ex.D4 is the RTC in respect of the land in Sy. No.263 (old Sy. No.38), wherein names of Sri Chowde Gowda and defendant No.4 are shown as owners. Ex.D5 is simple deed of mortgage dated 01.08.1988 executed by defendant No.4 and his brothers in favour of Karnataka Bank Limited, Balehonnur. Ex.D6 is the notice dated 02.12.2005 issued by Chikmagaluru Taluk Primary Agriculture and Rural Development Bank Ltd., Chikmagalur, to defendant No.4. Ex.D7 is the statement of the loan account issued to defendant No.4.
32. The above documents categorically indicate that an agreement was executed by Sri Chowde Gowda and the vendors in favour of the agreement holders 39 agreeing to sell the suit property for a total sale consideration of Rs.30,000/-. Neither the vendors nor the subsequent purchaser assailed the finding recorded by the Trial Court and First Appellate Court about the execution of the sale agreement dated 18.04.1979. The sale proceedings were to be concluded by execution of a sale deed only after obtaining the Coffee Registration Certificate as well as a permanent saguvali chit. The agreement holders had taken this responsibility of getting these documents by obtaining a power of attorney as per Ex.P6 from Sri Chowde Gowda and the vendors. Though the agreement holders claim that the balance sale consideration was paid which was evidenced by vouchers, namely, Exs.P2(a), P2(b) and P2(c), the same were denied by the vendors. However, in the written statement filed by defendant No.4, which was adopted by defendant Nos.1, 3 and 5, they claimed as follows:
"The deceased Chowde Gowda who is no other than the grand father of this defendant, might have been executed the said vouchers in 40 some other transaction. But it is no way connected to the above said transaction".
The vendors did not produce any material to demonstrate that there were other transactions between them and the agreement holders. Therefore, it is probable that these receipts were passed on to evidence payment of portion of the balance sale consideration.
33. Now turning to the oral evidence of the parties, PW.1 was the plaintiff No.1 in O.S. No.135/1992, who deposed about the execution of the agreement of sale (Ex.P1). He claimed that the deceased Sri Chowde Gowda was his maternal uncle. It is elicited in the cross- examination of PW.1 as under:
"ºÀAUÁ«Ä ¸ÁUÀĪÀ½ aÃn¬ÄAzÀ SÁAiÀÄA ¸ÁUÀĪÀ½ aÃn ªÀiÁrPÉƼÀÄîªÀ ¸ÀA§AzsÀ ZËqÉÃUËqÀjAzÀ £Á£ÀÄ d£ÀgÀ¯ï ¥ÀªÀgï D¥sï CmÁ¤ð §gɹPÉÆArzÉÝ JAzÀgÉ ¤d."
A perusal of Ex.P1 discloses that there was a cross- reference to the execution of the power of attorney by Sri Chowde Gowda in favour of the plaintiff No.1. This therefore indicates that the parties were aware of the 41 execution of the sale agreement by the aforesaid Sri Chowde Gowda, defendant Nos.1 and 2 and defendant No.3, who was then a minor represented by Sri Chowde Gowda, as well as the father of the defendant No.4.
34. PW.2, a resident of the same village was one of the witnesses who attested the agreement of sale (Ex.P1) and he stood the test of cross-examination. The defendants could not discredit the veracity of the statement of this witness.
35. The defendant No.4, who was examined as DW.1, did not indicate as to which were those transactions in respect of which the vouchers, Exs.P2(a), P2(b) and P2(c), were passed on by Sri Chowde Gowda, his grandfather.
36. Though the written statement filed by the defendant No.4 was adopted by defendant Nos.1, 3 and 5, the defendant Nos.1 and 2, who were signatories to the agreement of sale, did not enter the witness box to deny their signatures on the agreement of sale. The only person 42 amongst the defendants who entered the witness box in O.S. No.135/1992 was the defendant No.4. Therefore, an adverse inference had to be drawn against the defendant Nos.1 and 2.
37. The defendant No.4 was examined as DW.1 and he deposed that he was born in the year 1965 and therefore, was a 14 year old boy when the sale agreement, Ex.P1, was executed in the year 1979. He was therefore not a competent witness to speak about the execution of the agreement of sale. He initially failed to recognize the signature of his father on the sale agreement at Ex.P1 and deposed as follows:
"£À£Àß vÀAzÉ PÉ.¹.ªÀÄAd¥ÀàUËqÀ JAzÀÄ gÀÄdÄ ªÀiÁqÀÄwÛzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj. £À£Àß vÀAzÉAiÀÄ gÀÄdÄ £À£ÀUÉ UÀÄgÀÄw¸ÀĪÀÅzÀPÉÌ DUÀĪÀÅ¢®è. £À£Àß vÀAzÉAiÀĪÀgÀ gÀÄdĪÀ£ÀÄß ªÀiÁqÀĪÀÅzÀ£ÀÄß £Á£ÀÄ £ÉÆÃrzÉÝãÉ. ¤¦-1 gÀ°è EgÀĪÀ gÀÄdÄ £À£Àß vÀAzÉAiÀÄzÀÄ ºËzÉÆ C®èªÉÇ JAzÀÄ £À£ÀUÉ UÀÄgÀÄw¸À®Ä DUÀĪÀÅ¢®è."
38. However, when he was further cross-examined on 13.07.2006, he retracted from the above and deposed as follows:
43
"¤¦1gÀ ªÉÄÃ¯É EgÀĪÀ gÀÄdÄ £ÀªÀÄä vÀAzÉAiÀÄ gÀÄdÄ JAzÀgÉ ¤dªÀ®è."
39. In his further chief-examination dated 06.07.2006, he stated as follows:
"§ºÀıÀB ªÁ¢ £ÀªÀÄä CdÓ¤UÉ ªÉÆøÀ ªÀiÁr CªÀjAzÀ gÀÄdÄUÀ¼À£ÀÄß vÉUÉzÀÄPÉÆArgÀ§ºÀÄzÀÄ."
It was elicited in his cross-examination on 13.07.2006 as follows:
"gÁAiÀÄ¥Àà UËqÀ ºÁUÀÆ ®PÀëöät UËqÀ FUÀ®Æ EgÀÄvÁÛgÉ JAzÀgÉ ¤d. CªÀgÀÄ £ÁåAiÀiÁ®AiÀÄPÉÌ §AzÀÄ ¸ÁQë ºÉüÀĪÀ ¹ÜwAiÀÄ°ègÀÄvÁÛgÉ JAzÀgÉ ¤d.
£À£Àß CdÓ ZËqÉÃUËqÀ ºÉ¨ÉânÖ£À UÀÄgÀÄvÀ£ÀÄß ºÁPÀÄwÛzÀÝgÀÄ JAzÀgÉ ¤d."
40. DW.2 deposed that defendant No.4 was in possession of the suit property and that he had raised coffee plantation therein. His evidence does not in any way help or aid in determining the question of the execution of the sale agreement.
44
41. A combined reading of the above coupled with the defendant Nos.1 and 2 not entering the witness box to deny the execution of the agreement, leaves no doubt that Ex.P1 was executed by Sri Chowde Gowda and the vendors. In addition, neither the defendant No.4 nor the subsequent purchaser attempted to upset the finding recorded by both the Courts that the sale agreement was executed by the vendors in favour of the agreement holders. In that view of the matter, both the Courts were justified in holding that the agreement holders had proved the lawful execution of the agreement of sale.
42. Now, turning to the question whether the agreement holders had pleaded and proved their readiness and willingness to conclude the transaction, a perusal of the plaint discloses that the agreement holders had pleaded that they had paid a sum of Rs.28,650/- out of the sale consideration of Rs.30,000/- under the agreement of sale - Ex.P1 and had withheld a sum of Rs.1,350/- as against Rs.1,500/- that was agreed to be withheld to meet 45 the cost of conveyance. Thus, the agreement holders pleaded about their readiness to conclude the transaction. They also pleaded that they had approached the defendants in the year 1991 for conclusion of the transaction, but the defendants evaded them. Following this, the agreement holders got a notice issued calling upon the defendants to conclude their part of the contract and not to interfere with their possession and cultivation of the suit property. The subsequent purchaser alone replied to the notice denying the agreement of sale - Ex.P1, but claimed that defendant No.4 had agreed to sell the said property in his favour under an agreement of sale dated 12.04.1991 and had received an advance amount from him and had placed him in possession of the said property. Thereafter, the present suit is filed. What needs to be considered is that under the agreement of sale - Ex.P1, the sale was to be concluded only after obtaining a Coffee Registration Certificate and after obtaining a permanent saguvali chit. These conditions cannot be termed as unconscionable or illegal as the vendors could get absolute 46 right to convey the suit property only after permanent saguvali chit was issued. Therefore, the parties had incorporated such a condition in the agreement - Ex.P1. In order to help the easy and early compliance of this condition, Sri Chowde Gowda and the vendors had executed a power of attorney in favour of one of the agreement holders i.e., plaintiff No.1. Though PW.1 was able to prove the payment of balance consideration as per Exs.P2(a), P2(b) and P2(c), but yet was not able to prove the steps taken by him to obtain the Coffee Registration Certificate and the permanent saguvali chit. It is relevant to note that both the agreement of sale and the power of attorney (Ex.P6) were executed on 18.04.1979 and hence, it indicates that the sale consideration agreed upon was subject to the agreement holders' expending or obtaining the Coffee Registration Certificate and the permanent saguvali chit. In this regard, it is relevant to note the evidence of PW.1, who deposed in his chief-examination as follows:
"SÁAiÀÄA ¸ÁUÀĪÀ½ aÃn vÉUÉzÀÄPÉÆAqÀzÀÄÝ £Á£É"47
However, the agreement holders were not in possession of the saguvali chit and the Coffee Registration Certificate. They also did not place on record any material to establish that they had taken any steps in that direction. The permanent saguvali chit was obtained by the defendant No.4 on 10.01.1985 and the Coffee Registration Certificate was obtained on 16.10.1989 as per Exs.D2 and D1 respectively. The agreement holders have definitely slept over their obligations in obtaining the saguvali chit as well as the Coffee Registration Certificate. Therefore, it can easily be concluded that the agreement holders were not willing to complete their part of the contract. Even otherwise, the suit was filed in the year 1992 though the permanent saguvali chit was received in the year 1985. Though a condition was attached that the property cannot be alienated for a period of 15 years, the agreement holders did nothing for relaxation of this condition by paying the prescribed fine etc. Even otherwise, the agreement, Ex.P1, was unenforceable till the year 2000 when the clog on title was in force.
48
43. In view of the above, both the Courts were justified in holding that the agreement holders were not ready and willing to perform their part of the contract.
44. In so far as the question as to whether the suit was barred by the law of limitation, it is relevant to note that the parties had agreed that the sale transaction would be concluded after obtaining the permanent saguvali chit and the Coffee Registration Certificate.
45. The agreement, Ex.P1, was to be in force till it was concluded on the following lines:
"F PÀgÁgÀÄ ¥ÀæPÁgÀªÁV ±ÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼À£ÀÄß ¤ªÀÄUÉ ºÁUÀÆ ¤ªÀÄä £Á«Ä¤UÀ½UÉ ±ÀÄzÀÞ PÀæAiÀÄ¥ÀvÀæ §gÉzÀÄ jf¸ÀÖgï ªÀiÁr¹ PÉÆqÀĪÀªÀgÉUÀÆ ¸ÀºÀ eÁjAiÀÄ°ègÀÄvÉÛ; AiÀiÁªÀÅzÉà PÁ®zÀ®Æè EzÀ£ÀÄß gÀzÀÄÝ ¥Àr¸À®Ä £ÀªÀÄUÉ ºÀPÀÄÌ EgÀĪÀÅ¢®è."
46. It is therefore, evident that the parties had not agreed that time would be the essence of the contract but the vendors were under a continued obligation to execute a sale deed in favour of the agreement holders. 49
47. Article 54 of the Limitation Act, 1963 (for short, 'the Act of 1963') which governs the limitation for enforcing an agreement of sale, is extracted below:
Description of suit Period of Time from which Limitation period beings to run For specific Three The date fixed for performance of a years the performance, contract. or, if no such date is fixed, when the plaintiff has notice that performance is refused
48. The covenant contained in the agreement, Ex.P1, which is extracted above, makes it clear that the parties had not agreed that time shall be the essence of the contract. However, the parties had agreed that the agreement would be in force until conclusion of the transaction by executing a registered deed of conveyance. The agreement holders had caused a notice in the year 1991 (Ex.P4) by which, they expressed apprehension that the vendors were attempting to convey the suit property to the subsequent purchaser. In response to this notice, the subsequent purchaser had alone replied to the notice 50 denying the execution of the agreement of sale in favour of the agreement holders. Therefore, the suit filed in the year 1992 cannot be termed to be barred by the law of limitation as the second part of Article 54 of the Act of 1963 was applicable to the facts and circumstances of this case and the Judgment and Decree of the First Appellate Court holding that the suit was barred by the law of limitation as the agreement holders ought to have filed the suit within three years from the date of obtaining the permanent saguvali chit, is a manifest error and deserves to be corrected.
49. In that view of the matter, though the agreement holders had proved lawful execution of the agreement of sale, Ex.P1, and the payment of Rs.28,650/- and though the suit was not barred by the law of limitation, but yet the agreement holders had failed to prove their readiness and willingness to perform their part of the contract and hence, the agreement holders were not entitled to the relief of specific performance. The 51 Judgment/s and Decree/s passed by the Trial Court and the First Appellate Court refusing to grant the relief of specific performance does not call for any interference by this Court. Though the agreement holders have not specifically sought refund of the sale consideration paid, yet this Court considers it appropriate to grant the said relief as the parties had agreed that the agreement of sale dated 18.04.1979 shall be in force until a deed of sale was executed. The vendors who were signatories to the agreement of sale did not dispute the receipt of Rs.28,650/-. Even if the permanent saguvali chit was issued in the year 1985, the non-alienation clause prohibited the sale for 15 years. Therefore, the vendors were bound to refund the consideration received by them. Thus, the agreement holders/plaintiffs are entitled for refund of Rs.28,650/- along with interest at 6% per annum from the date of the suit till repayment from the defendant Nos.1 to 4.
52
50. In so far as the relief of perpetual injunction is concerned, this Court has already held that Sri Chowde Gowda and vendors had executed an agreement of sale (Ex.P1) in favour of the agreement holders and had placed them in possession of the suit schedule property. The recital of the agreement which indicates that the plaintiff was placed in possession of the suit property is extracted below:
"±ÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß F ¢£ÀªÉà ¸ÀªÀĸÀÛ ºÀPÀÄÌ ¨sÁzsÀåvÉUÀ¼À ¸ÀªÉÄÃvÀªÁV ¤ªÀÄä ¸Áé¢Ã£À ¥Àr¹gÀÄvÉÛêÉ. E£ÀÄß ªÀÄÄAzÉ ±ÉqÀÆå¯ï ¸ÀéwÛ£À ªÉÄÃ¯É £ÀªÀÄUÀÆ £ÀªÀÄä ªÁgÀ¸ÀÄzÁgÀgÀÄUÀ½UÀÆ ¸ÀºÁ AiÀiÁªÀÅzÉà ºÀPÀĄ̈Ás zsÀåvÉUÀ¼ÀÄ EgÀĪÀÅ¢®è: ¤ÃªÀÅ E£ÀÄß ªÀÄÄAzÉ ¸ÀéwÛ£À ªÀiÁ°ÃPÀgÁVzÀÄÝ, ¸ÀéwÛ£À ¨Á§ÄÛ ±ÀÄzÀÞ PÀæAiÀÄ ¥ÀvÀæzÀ £ÀAvÀgÀzÀ°è ¸ÀéwÛ£À SÁvÉAiÀÄ£ÀÄß ¤ªÀÄä ºÉ¸ÀjUÉ ªÀUÁð¬Ä¹PÉÆAqÀÄ ¤ªÀÄä ªÁgÀ¸ÀÄzÁgÀgÀÄUÀ¼ÉÆA¢UÉ ¤ªÀÄä EZÁÑ£ÀĸÁgÀ ¸ÀÄR¸ÀAvÉÆõÀUÀ½AzÀ®Æ C£ÀĨsÀ«¹PÉÆAqÀÄ §gÀĪÀÅzÀÄ:"
51. Though PW.1 was challenged in his cross- examination that the defendant No.4 was in possession of the suit property, he denied it. The only evidence on record on behalf of the defendant No.4 to claim that he was in possession of the suit property is Ex.D5, which is a 53 deed of simple mortgage executed by the defendant No.4 and his brothers in favour of the Karnataka Bank Limited to raise a loan. PW.1 in O.S.No.201/1996 in the course of cross-examination admitted that the Bank would not sanction a loan without spot inspection of the property. The defendant No.4 who purportedly had executed an agreement of sale in favour of the subsequent purchaser and later compromised a suit filed by the subsequent purchaser against him for specific performance in O.S.No.40/1994 and executed a sale deed in favour of the subsequent purchaser. However, none of them placed any material on record to establish that the agreement holders were ousted from possession of the suit property and / or that they had recovered possession back from the agreement holders. The subsequent purchaser did not take steps to recover possession of the suit property in Ex. Case No.172/1995 filed to execute the Decree in O.S.No.40/1994. In that view of the matter, the agreement holders were entitled to protect their possession under the agreement of sale dated 18.04.1979. Hence, the Trial Court and the First Appellate Court were 54 justified in decreeing the suit for perpetual injunction. It is needless to mention that the agreement holders are not entitled to claim the benefit under Section 53A of the Transfer of Property Act, 1882 as they failed to prove that they were ready and willing to perform their part of the contract, but their possession has to be protected until the subsequent purchaser recovers back possession through the due process of law.
52. In that view of the matter, the respective substantial questions of law framed by this Court in these appeals are answered accordingly and the appeal in R.S.A. No.2440/2011 filed by the agreement holders challenging the Judgment and Decree of both the Courts refusing specific performance of the agreement of sale dated 18.04.1979 is dismissed. However, the agreement holders/plaintiffs are entitled for refund of Rs.28,650/- along with interest at 6% per annum from the date of the suit till repayment from the defendant Nos.1 to 4. Likewise, the appeal in R.S.A. No.529/2006 filed by the subsequent purchaser challenging the Judgment and 55 Decree of both the Courts granting perpetual injunction in favour of the agreement holders is dismissed.
No order as to costs.
Sd/-
JUDGE sma