Karnataka High Court
Sri Ballappa vs K Raghupathi on 5 November, 2012
Author: K.L.Manjunath
Bench: K.L.Manjunath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5th DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
R.S.A.NO.696/2011(SP)
BETWEEN
1 SRI BALLAPPA
S/O LATE PEDDA MUNEPPA
AGED ABOUT 79 YEARS,
R/O PUTHESONNENAHALLI VILLAGE,
BUDIKOTE HOBLI,
BANGARPET TALUK
KOLAR DISTRICT-563 101 ... APPELLANT
(By Sri : B VEERAPPA ASSOCIATES, ADV. FOR
APPELLANT )
AND :
1 K RAGHUPATHI
S/O LATE M KRISHNAPPA
AGED ABOUT 56 YEARS
R/A 6TH CROSS ROAD,
ROBERTSONPET, K.G.F
KOLAR DISTRICT
2 SHAKUNTHALAMMA
D/O LATE M KRISHNAPPA
AGED ABOUT 66 YEARS,
R/A PUTHRESONNENAHALLI VILLAGE,
BUDIKOTE HOBLI, BANGARPET TALUK
KOLAR DISTRICT-563 101
3 BASAPPA H/O ASWATHAMMA
AGED ABOUT 59 YEARS,
2
R/A 6TH CROSS ROAD,
ROBERTSONPET,
K.G.F, KOLAR DISTRICT
4 MANJUNATHA S/O LATE ASWATHAMMA
AGED ABOUT 24 YEARS,
R/A 6TH CROSS ROAD,
ROBERTSONPET,
K.G.F, KOLAR DISTRICT
5 SMT SUSHEELAMMA
D/O LATE M KRISHNAPPA
AGED ABOUT 54 YEARS,
R/A PUTHRESONNENAHALLI VILLAGE,
BUDIKOTE HOBLI, BANGARPET TALUK
KOLAR DISTRICT-563 101
6 RAMACHANDRAPPA
S/O LATE M KRISHNAPPA
AGED ABOUT 52 YEARS,
R/A PUTHRESONNENAHALLI VILLAGE,
BUDIKOTE HOBLI, BANGARPET TALUK
KOLAR DISTRICT-563 101
7 OM PRAKASH
S/O LATE M KRISHNAPPA
AGED ABOUT 51 YEARS,
R/A PUTHRESONNENAHALLI VILLAGE,
BUDIKOTE HOBLI, BANGARPET TALUK
KOLAR DISTRICT-563 101
8 MURALIDHARA
S/O LATE M KRISHNAPPA
AGED ABOUT 46 YEARS,
R/A PUTHRESONNENAHALLI VILLAGE,
BUDIKOTE HOBLI, BANGARPET TALUK
KOLAR DISTRICT-563 101
9 ARATHI
D/O LATE M KRISHNAPPA
AGED ABOUT 41 YEARS,
3
R/A PUTHRESONNENAHALLI VILLAGE,
BUDIKOTE HOBLI, BANGARPET TALUK
KOLAR DISTRICT-563 101
... RESPONDENTS
(By Sri : N.HARIPRASAD, K.SEENAPPA FOR
A GOPALAIAH ASSOCIATES, ADVOCATES FOR C/R1)
THIS RSA FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
13.12.2010 PASSED IN R.A.NO.7/2007 ON THE FILE
OF THE ADDL. SENIOR CIVIL JUDGE & JMFC., K.G.F.,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED: 19.12.2006 PASSED
IN O.S.NO.390/2004 ON THE FILE OF THE CIVIL
JUDGE (JR.DN) & JMFC., BANGARPET.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The concurrent findings of the courts below are called in question by the unsuccessful plaintiff.
2. Heard the counsel for the parties.
3. The facts leading to this appeal are as hereunder:
According to the plaint averments late Krishnappa who was the father of the defendants was the full and absolute owner of 28 guntas of land situated in Sy.No.7/3 of Puthresonnenahalli Village in Bangarpet Taluk. The father of the defendants 4 entered into an agreement to sell the suit property under an agreement dt.9.11.1987 for a sale consideration of Rs.1,500/-, on which date the entire sale consideration was paid and that the plaintiff- appellant was put in possession of the property under the part performance of the agreement. Though the plaintiff was willing to take the sale deed at his cost, the father of the defendants could not execute the sale deed on account of bar under the provisions of the Fragmentation Act. In the meanwhile the father of the defendants died on 8.11.1988 and therefore he filed the suit for specific performance of the contract to enforce the agreement dt.9.11.1987 by filing the suit on 16.10.1995.
4. The defendants contested the suit. According to them, their father did not entered into an agreement of sale. No consideration was received by their father. The land in question was not a fragmented land and the suit filed by the plaintiff is not maintainable as the Fragmentation Act was 5 repealed in the year 1981 and the suit is filed beyond 3 years from the date of repealing the Act.
5. Based on the above pleadings, the following issues were framed by the court below:
1) Whether plaintiff proves that the father of defendant namely Krishnappa has executed an agreement of sale in his favour on 9.11.1987 agreeing to sell the suit schedule property for Rs.1500/- and has received entire consideration?
2) Whether plaintiff proves that said Krishnappa could not execute the Registered sale deed due to prohibition under the Fragmentation Act?
3) Whether plaintiff proves that he was and is always ready and willing to perform his part of contract?
4) Whether plaintiff proves that defendant and his father failed to perform their part of contract?
5) Whether suit of the plaintiff is in time?
6) Whether plaintiff is entitle for the relief of specific performance of contract as prayed?
7) What decree or order?
6. In order to prove their respective contentions, the appellant - Ballappa was examined as PW1 and he relied upon the evidence of one Ramareddy and also relied upon Ex.P1 to P2. The 1st defendant was 6 examined as DW1 and he relied upon Ex.D1 to D11. The Trial Court after appreciating the pleadings, evidence and documents relied upon by the parties held issue No.1 in affirmative and issue Nos.2 to 6 in negative and ultimately suit came to be dismissed.
7. Challenging the legality and correctness of the order of the Civil Judge, (Sr.Dn.), Bangarpet, the appellant filed an appeal before the Civil Judge, (Sr.Dn.) K.G.F. in R.A.No.7/2007.
8. The lower Appellate Court after hearing the parties, formulated the following points for its consideration:
1. Whether the appellants proves that the trial court is erred in considering the materials produced by the appellants and arrived at wrong conclusion?
2. Whether the judgment and decree passed by the lower court is perverse, capricious and it requires any interference by this court?
3. What order?
On considering the entire facts and arguments, the Lower Appellate Court held points-1 and 2 in negative and dismissed the appeal on merits. 7
9. Therefore, the present appeal is filed challenging the legality and correctness of the concurrent findings.
10. Having heard the counsel for the parties, this court does not see any substantial question of law arises in this appeal for the following reasons:
Admittedly, the Fragmentation Act was repealed in the year 1981. Even if the court accept all the contentions of the plaintiff that though he was ready and willing to perform his part of the contract, he could not secure the sale deed in his favour on account of the Fragmentation Act. The court is unable to grant any relief to the plaintiff because he did not approach the court within a period of three years from the date of deleting the Fragmentation Act. The cause of action arises for the plaintiff to file the suit, the moment Act has been deleted. In such circumstances, within a period of 3 years he was supposed to file the suit. In the instant case, the plaintiff has not even issued a legal notice before filing the suit. Therefore, 8 I am of the view that the plaintiff has not assigned any reasons for not approaching the court within a reasonable time. Therefore, the question of granting specific performance does not arise at all. Both the courts have concurrently held that the plaintiff has proved the execution of the agreement of sale by the defendants father. The plaintiff had paid a sum of Rs.1500/- towards the sale consideration. Even if the plaintiff is not entitled for the relief of specific performance he is entitled for an alternate relief of refund of advance sale consideration paid by him.
11. In the circumstances, the appeal is allowed-in-part directing the defendants to refund Rs.1,500/- which was paid by the plaintiff to their father late Krishnappa with interest at 6% p.a. to be calculated from the date of institution of the suit till the date of payment. Parties to bear their cost.
Sd/-
JUDGE Ak