Karnataka High Court
Sri.Kariyappa, S/O. Basappa Barki ... vs Sri.Fakkirappa Ningappa Kundur on 29 September, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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RSA No. 5812 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO. 5812 OF 2010 (SP)
BETWEEN:
SRI.KARIYAPPA SON OF BASAPPA BARKI,
SINCE DECEASED BY HIS LRS.
1. SMT.MALLAVVA,
W/O.SHEKAPPA BARKI,
AGE: 58 YEARS,
OCC: HOUSE HOLD WORK,
R/AT: KENGAPUR,
TALUKA SHIGGON,
DIST: HAVERI - 581 205.
2. BASAVANNEVVA,
W/O TIRAKOPPA MALAGUNDA,
AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
R/AT: SHIGGON - 581205.
3. BASAPPA KARIYAPPA BARKI,
AGE:54 YEARS, OCC: AGRICULTURE,
R/AT: SHIGGON - 581205.
4. IRAPPA KARIYAPPA BARKI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/AT: SHIGGON - 581205.
5. TIPPANNA KARIYAPPA BARKI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/AT: SHIGGON - 581205.
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RSA No. 5812 of 2010
6. SRI. NARAYANAPPA GANGADHARAPPA BADIGER,
AGE ABOUT 58 YEARS,
OCC: AGRICULTURE,
R/AT: SAUNSAGI, HANGAL.
...APPELLANTS
(BY SRI. VISHWANATH S.BICHAGATTI, ADV. FOR A4 TO A6;
APPEAL AGAINST APPELLANTS NO.1 TO 3 ABATED)
AND:
1. SRI.FAKKIRAPPA NINGAPPA KUNDUR,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/AT: SHIGGAON-581 205.
2. SRI. MANJAPPA KARIYAPPA BARKI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/AT: SHIGGON-581205.
...RESPONDENTS
(BY SRI. RAVI S.HEGDE, ADVOCATE FOR R1;
APPEAL AGAINST R2 DISMISSED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908, AGAINST
THE JUDGMENT AND DECREE DATED 04.06.2010 PASSED IN
R.A.NO.27/2007 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE, HAVERI, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 13.02.2007 AND THE DECREE PASSED IN
O.S.NO.86/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN.),
SHIGGAON, PARTLY DECREEING THE SUIT FILED FOR
SPECIFIC PERFORMANCE.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5812 of 2010
JUDGMENT
Challenging judgment and decree dated 04.06.2010 passed by Additional Senior Civil Judge, Haveri in R.A.no.27/2007 and judgment and decree dated 13.02.2007 passed by Civil Judge (Jr.Dn.), Shiggaon in O.S. no.86/1998, this appeal is filed.
2. Appellants herein are legal representatives of original defendant along with respondent no.2 herein; appellant no.6 was defendant no.2 and respondent no.1 herein was original plaintiff. For sake of convenience, they shall hereinafter be referred to by their rank in original suit.
3. O.S.no.86/1998 was filed seeking for decree of specific performance of agreement of sale dated 08.02.1998 and for injunction restraining defendants from causing obstruction to plaintiff's peaceful possession in respect of -4- RSA No. 5812 of 2010 agricultural land bearing Sy.no.315/1 measuring 3 ½ guntas out of total 25 guntas situated at Shiggaon (hereinafter referred to as 'suit property').
4. It was stated that defendant no.1 was original owner of suit property. Due to acute financial difficulty, he offered same for sale to plaintiff. It was further stated that plaintiff was in permissive possession of suit property. They entered into agreement of sale for purchase of suit property for total sale consideration of Rs.5,250/- and executed agreement of sale by receiving Rs.3,000/- as earnest money. As per agreement, defendant was required to execute sale deed in favour of plaintiff after conversion of old tenure and by receiving balance sale consideration. During lifetime of plaintiff's father, plaintiff approached defendant several times to get conversion of old tenure and to execute sale deed, -5- RSA No. 5812 of 2010 but defendant did not comply with same. Thereafter, plaintiff's father died on 18.05.1993. Thus, plaintiff came in possession of suit property and was using it for storing haystack, manure, fodder, dung pit etc. Subsequently on 31.03.1998, Tahsildar passed order regranting land new tenure. Thereafter plaintiff approached defendant and requested him to receive balance sale consideration and execute sale deed. Upon refusal, plaintiff got issued legal notice through counsel on 18.04.1998. Though notice was served on 21.04.1998, defendants did not come forward. On said cause of action, suit was filed.
5. On service of suit summons, defendant no.1 entered appearance and filed written statement admitting ownership of suit property and its description, but denying executing any agreement of sale in favour of plaintiff. Agreement of sale was alleged to be concocted and plaintiff -6- RSA No. 5812 of 2010 being in possession of suit property was denied. It was asserted that plaintiff's father was a money lender and defendant had borrowed loan of Rs.1,000/- from his father for treatment of his wife. He further stated that loan was repaid with interest within one year. At that time, he had not taken back signed blank paper given to plaintiff. By utilizing said paper, agreement of sale was concocted. It was further stated that suit property was situated in Shiggaon town and had non- agricultural potentiality and its value had escalated. He further stated that suit property was sold in favour of Narayanappa Gangadharappa Patagar under registered sale deed dated 14.05.1998 and possession was also delivered. Since then purchaser was in possession.
6. Thereafter purchaser got himself impleaded by plaintiff as defendant no.2 and filed written statement. Denying plaintiff's case, he -7- RSA No. 5812 of 2010 claimed to be a bonafide purchaser for value and purchased suit property under registered sale deed dated 14.05.1998 for valuable sale consideration of Rs.5,250/- and was in possession. It was contended that suit property was a service inam land, which was not alienable prior to 31.03.1998. It was converted into new tenure only by order of Tahsildar dated 31.03.1998 and therefore agreement of sale dated 05.02.1988 was un-enforceable and there was no cause of action of filing of suit.
7. Based on pleadings, trial Court framed following issues:
1. Whether plaintiff proves that, defendant no.1 agreed to sell suit property for Rs.5,250/- and executed an agreement on 05.02.1988 in favour of plaintiff?
2. Whether plaintiff proves that he is in possession of suit property?-8- RSA No. 5812 of 2010
3. Whether defendant no.1 proves that alleged agreement of sale is concocted?
4. Whether defendants no.1 and 2 prove that suit property is sold by defendant no.1 in favour of defendant no.2 on 14.05.1998 and that defendant no.2 is in possession of suit property?
5. Whether plaintiff is ready and willing to perform his part of contract?
6. Whether plaintiff is entitled to relief o f specific performance?
7. In alternative, whether plaintiff is entitled to refund of earnest money with interest?
8. What decree or order?
8. Thereafter, plaintiff examined himself and four other witnesses as P.W.1 to 5 and got marked Ex.P.1 to 19. On behalf of defendants, two witnesses were examined and Ex.D.1 and 2 were marked.
9. On consideration, trial Court answered issues no.1 to 3, 5 and 6 in negative, issues no.4 -9- RSA No. 5812 of 2010 and 7 in affirmative and decreed suit directing defendants to repay advance money paid with interest at 4% per annum from date of filing of suit till date of realization.
10. Aggrieved thereby, plaintiff filed R.A.no.27/2007 on several grounds. Based on contentions urged, first appellate Court framed following points for its consideration:
1. Whether appellant/plaintiff proves that defendant no.1 agreed to sell suit property for a sum of Rs.5,250/-
and executed an agreement of sale on 05.02.1988?
2. Whether appellant/plaintiff proves that he is ready, ever ready, always ready and willing to perform his part of contract?
3. Whether appellant/plaintiff proves that plaintiff is entitled for relief of specific performance of contract?
4. Whether judgment and decree of Civil Judge, Shiggaon in O.S.no.86/1998 dated 13.02.2007 against material
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RSA No. 5812 of 2010
available on record and requires
interference by this Court?
5. What order?
11. After hearing counsel for parties, it
answered points no.1 to 4 in affirmative and point no.5 by allowing appeal setting aside judgment and decree passed by trial Court and decreeing suit directing defendants to receive balance sale consideration of Rs.2,250/- from plaintiff and execute registered sale deed in favour of plaintiff within 30 days, in respect of suit property. Against said judgment and decree, this appeal is filed.
12. Sri Vishwanath S. Bichagatti, learned counsel for appellants submitted that impugned judgment and decree passed by both courts were unsustainable and contrary to law. It was submitted that agreement of sale at Ex.P.1 was violative of Section 5(3) of Karnataka Village Offices Abolition Act, 1961 (for short, 'KVOA Act'),
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RSA No. 5812 of 2010 however, first appellate Court erroneously held that there was no such violation. It erred in holding that plaintiff was in possession of suit property and despite failure of plaintiff to establish due execution of agreement of sale, it held Ex.P.1 as proved. Learned counsel further submitted that appeal was admitted on 24.10.2016 to consider substantial question of law:
"Whether judgment and decree of both courts were perverse notwithstanding fact that agreement of sale with possession was compulsorily registerable but was unregistered and unstamped."
13. Learned counsel sought for allowing appeal by answering substantial question of law in favour of appellants. Learned counsel further submitted that three Judges Bench of Hon'ble Supreme Court in Narayanamma and Others vs. Govindappa and Others , reported in (2019) 19 SCC 42 , held that an agreement of sale in violation
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RSA No. 5812 of 2010 of Section 61 of Karnataka Land Reforms Act, 1961 (for short, 'KLR Act') would be illegal and unenforceable. The contrary view taken by first appellate Court was therefore in violation of ratio laid down by Hon'ble Supreme Court. He also relied upon decision of coordinate Bench of this Court in RSA.No.2221/2005 (DEC/INJ) disposed of on 12.03.2020 for proposition that even where possession was handed over in part performance of agreement of sale, ratio of decision in Narayanamma's case (supra) would prevail.
14. On other hand, Sri Ravi S. Hegde, learned counsel for respondent no.1 submitted that Ex.P.1 agreement of sale though was initially unstamped, in pursuance of order passed by trial Court on 19.03.1999; plaintiff had paid deficit stamp duty and penalty, which was endorsed on Ex.P.1. Therefore, Ex.P.1 cannot be termed as unstamped. Insofar as requirement of registration,
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RSA No. 5812 of 2010 he submitted that agreement of sale was dated 05.02.1988, whereas, amendment to Section 53(A) of Transfer of Property Act, 1982 by Act no.48/2001 was with effect from 24.09.2001 and since agreement of sale was prior to said date, it was not compulsorily registerable and thus saved. He would further submit that agreement specifically provided for sale deed to be executed after completion of tenure and also acknowledged fact that plaintiff was in possession of suit property prior to its execution. He would further add that after trial Court decreed suit insofar as refund of earnest money. Only plaintiff questioned same. No appeal or cross objections were filed by defendants. Referring to decision of Hon'ble Supreme Court in G.T.Girish vs. Y.Subba Raju (D) by Lrs and Another , reported in 2022 SCC OnLine SC 60 learned counsel submitted that, Hon'ble Supreme Court after taking note of decision in
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RSA No. 5812 of 2010 Narayanamma's case had observed that even in case where agreement of sale was in violation of any statutory provision, circumstances required to be considered were unless granting specific performance would be patently illegal and contrary to statutory provision, equities could be balanced.
15. From above submissions, it is not in dispute that defendant no.1 was absolute owner of suit property. While plaintiff contends that his father was in permissive possession of suit property and after his death he continued and in meanwhile, defendant no.1 executed Ex.P.1- agreement of sale with plaintiff's father agreeing to sell suit property for total sale consideration of Rs.5,250/- and Rs.3,000/- as earnest money and had agreed to execute sale deed in favour of plaintiff by receiving balance sale consideration after expiry of tenure. It is case of defendants that though defendant no.1 was absolute owner of suit
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RSA No. 5812 of 2010 property, agreement of sale was not executed by him as per Ex.P.1. Plaintiff's claim of being in permissive possession of suit property was also denied. It was claimed that due to family necessity defendant no.1 had sold suit property in favour of defendant no.2 and as agreement of sale was in violation of Section 61 of KLR Act it was unenforceable.
16. While passing impugned judgment and decree, trial Court referred to evidence led by parties. From depositions of P.Ws.2 and 3 as attesting witnesses to agreement of sale and considering documentary evidence, it held that suit property was an inam land, which was unalienable as per Section 5(3) of KVOA Act which would come in way of plaintiff seeking relief of specific performance. On said ground, it answered issues no.1 to 3 by holding that Ex.P.1-agreement of sale was unenforceable and refused relief of specific
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RSA No. 5812 of 2010 performance. Since defendants had admitted that Ex.P.1 as security for loan transaction, it decreed suit in part directing defendants to refund earnest money received along with interest.
17. First appellate Court by taking note of specific condition in agreement of sale that sale deed was required to be registered after conversion of tenure and referring to depositions of plaintiff witnesses as well as defendants especially D.W.2 arrived at conclusion that plaintiff had established that he was in actual possession as on date of suit. It noted that defendants failed to establish their main contention about loan transaction between defendants and plaintiff. It therefore concluded that plaintiff had proved to be in actual possession of suit property and agreement would not be in violation of Section 5(3) of KVOA Act.
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RSA No. 5812 of 2010
18. From contentions urged in this appeal, in addition to substantial question of law framed while admitting appeal, another substantial question of would arise for consideration:
"Whether Ex.P.1 would be in violation of Section 5(3) of KVOA Act and hence unenforceable?'
19. Insofar as substantial question of law no.1, a bare perusal of Ex.P.1 would reveal that trial Court has endorsed on Ex.P.1 about payment of requisite stamp duty and penalty. Further, by amending Act no.10/2001, there is amendment to Section 53(A) of KVOA Act with effect from 24.09.2001 omitting words "contract though required to be registered has not been registered"
would indicate that an agreement of sale with possession would be compulsorily registerable after 24.09.2001. Admittedly, Ex.P.1 is dated 05.02.1988. Therefore, substantial question of law
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no.1 has to be answered in negative and against appellants.
20. Insofar as other substantial question of law, specific condition in agreement of sale is as follows :
"C«¨Ádå ºÉƸÀ ±ÀvÀð ¥ÀÆtðUÉÆAqÀÄ £ÀAvÀgÀ F d«Ä£À£ÀÄß £Á£ÀÄ ¤ªÀÄUÉ ¸ÀAZÀPÁgÀ vÀjÃR CAvÁ gÀÆ, 3000/- UÀ¼À£ÀÄß gÉÆÃR ¥ÀqÉzÀÄPÉÆAqÀÄ ¤ªÀÄUÉ Rjâ ¸ÀAZÀPÁgÀ §gÉzÀÄPÉÆnÖgÀÄvÉÛãÉ."
21. Which would clearly mean that sale deed was to be executed after completion of tenure, at which point of time, statutory bar would not be in force. Further, averments in para no.5 of written statement of defendant no.2 are as follows:
"5. It may please be noted that suit property is service Inam land and it was not transferable or alienable earlier to 31.03.1998. The suit land was got converted into old tenure, vide order of Tahsildar passed in WPA.SR.53/97-98 dated 31.03.1998 and it is so mutated in
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record of rights at M.E.No.8633 dated 11/04.1998. Suit land becomes transferable and alienable on and after 11.04.1998."
22. Suit was filed on 13.05.1998 would be after expiry of period of non-alienation. Though, Hon'ble Supreme Court in N arayanamma's case has held that an agreement of sale in violation of statutory provision would be illegal and unenforceable, but agreement in instant case would be distinguishable. The specific condition mentioned in agreement of sale itself indicated that sale deed was to be executed after expiry of period of non alienation. Besides, during pendency of this appeal and since there was no interim order, impugned judgment and decree has been executed on 14.11.2013 in Execution Petition no.6/2010. In view of order passed in Execution Petition no.6/2010 and as first appellate Court on examination of evidence on record has arrived at
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RSA No. 5812 of 2010 specific finding that plaintiff was in possession of suit property as on date of filing of suit and taking into account observations of Hon'ble Supreme Court in G.T.Girish's case (supra), I hold that violation in instant case would not go to root of matter and therefore would fall within folds of observations in Immani Appa Rao and Others v. Gollapalli Ramalingamurthi and Others , reported in AIR 1962 SC 370 [ referred to in Narayanamma's case (supra)]. Thus, substantial question of law no.2 is also answered in negative and against appellants.
23. In view of above, I pass following :
ORDER Appeal is dismissed with costs.
SD JUDGE CLK/CKK