Karnataka High Court
Sri Abdul Rashid S/O Mohammed Hashan ... vs Smt. Suganda Kamalakar Kudtarkar on 13 October, 2006
Equivalent citations: 2007(1)KARLJ437, 2007 (2) ABR (NOC) 308 (KAR.) = 2007 (1) AIR KAR R 167, 2007 A I H C 507, 2007 (1) AIR KAR R 167, (2007) 1 KANT LJ 437, (2007) 3 ICC 197, (2007) 52 ALLINDCAS 828 (KAR)
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
1. This Regular First Appeal is by the plaintiff in OS No. 29 of 1997, on the file of the Civil Judge (Sr Dn), Sirsi, dismissing the suit of the plaintiff for recovery of possession of the suit schedule property and for mesne profits.
2. The plaintiff had sought for recovery of the possession of the suit schedule property and for damages for the use and occupation by the defendant on the premise that though there was an agreement dated 1-5-1989 [ExP1] between the parties, by which the plaintiff agreed to sell the suit schedule property to the defendant for a consideration of Rs. 69,000/-, the plaintiff had repudiated the contract with the defendant for not performing his part of the obligations under the contract and therefore the plaintiff was not only entitled for possession but also for the mesne profits from the date of repudiation of the contract till the date of recovery of possession of the suit schedule property.
3. Learned trial judge, taking the view that the plaintiff had not made good his case that the defendant was the cause for the agreement not coining through and further the plaintiff having failed to make home his case that the defendant had failed to perform his part of the contract, dismissed the suit. Aggrieved by the said judgment and decree, the present appeal.
4. The basic fact is that the property was one which had been constructed by the plaintiff on a land leased in his favour by the Dandeli City Municipal Council. In fact, the plaintiff being the legal heir of one late Mohammed Hashan Soudagar and Smt. Razbi Mohammed Hasham Sudhaakar, and the land on which the building had been constructed was leased in favour of the mother of the plaintiff and on the demise of parents of the plaintiff, the plaintiff had succeeded to the property etc. This property was agreed to be conveyed in favour of the defendant in terms of the agreement dated 1-5-1989 [ExP1].
5. It is not in dispute that pursuant to the agreement, the defendant was put in possession of the property on 24-8-1989 and by this time the plaintiff had received a sum of Rs. 35,000/- in all, paid in cash, cheque and demand draft, as detailed below:
1-5-1989 (cash) Rs. 3,000/-
5-5-1989 (cheque) Rs. 17,000/-
24-8-1989 (cash) Rs. 500/-
24-8-1989 (DD) Rs. 14,500/-
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Total Rs. 35,000/-
It is also the common case of the parties that the balance was to be paid at the time of registration and that the plaintiff was required to take necessary steps to ensure the registration by or before the expiry of 37 days from the date of agreement by paying full consideration by then, as pleaded by the plaintiff and indicated in the legal notice dated 4-10-1989 (ExP4); that the defendant had failed to pay the amount and keep up the promise and therefore the plaintiff was constrained to cause the legal notice dated 4-10-1989 repudiating the contract and calling upon the defendant to pay a sum of Rs. 27,500/- by way of damages and for the use and occupation of the suit schedule property till the date when the contract being repudiated as the defendant had not performed his part of the obligations under the contract even after the expiry of three months from the date of agreement.
6. It is thereafter, the plaintiff filed the suit for recovery of possession and for damages on 5-7-1995 when it was so filed. The plaintiff had pleaded that the agreement having been repudiated and notwithstanding the defendant having continued in possession of the suit schedule property, the plaintiff was not only entitled for recovery of possession, as on and after the repudiation of the contract, the possession of the defendant became unauthorized but also for compensation for the occupation and for mesne profit.
7. On issue of notice, the defendant entered appearance and filed written statement It was contended in the written statement that the suit is not maintainable; that the plaint averments are denied. But, the agreement as such was admitted and the contents thereof also. What was put forth on behalf of the defendant was that the defendant had performed his part of the obligations of the contract; that it was the failure on the part of the plaintiff to get the khata transferred to his name, which in turn could have been transferred to the defendant on the execution of the registered sale deed, by which time the defendant was required to pay the balance sale consideration; that in fact this was the reason as to why the defendant had instructed his banker to stop payment of cheque for Rs. 15,000/-, which had been issued in favour of the plaintiff on 21 -9-1989 and it is how the plaintiff was given a banker's memorandum [ExP3] indicating the reason for return of the cheque as "payment stopped by the drawer". It was also pleaded by the defendant that the plaintiff is not entitled to seek for possession of the suit schedule property as the defendant had been put: in possession in furtherance of the agreement; that the plaintiff had also received a sum of Rs. 35,000/- from the defendant; that the defendant was all along ready and willing to perform his part of the contract by paying the balance sale consideration all along, but the plaintiff did not prepare the grounds for the completion of the sale transaction and that was the reason as to why the situation had reached the stage of stalemate and further pleaded that the defendant being in possession in his own right as a person who had been put in legal possession by the plaintiff himself and in pursuance of the agreement and as part performance of the agreement, the defendant was not liable to pay any amount by way of damages.
8. In the light of these rival pleadings, the trial court had framed as many as nine issues, as under:
1. Whether plaintiff proves that the time was the essence of contract of sale of the suit property?
2. Whether the plaintiff proves that by the notice dated 4-10-1989 he has repudiated the contract and thereby rescinded the contract and as such contract came to be cancelled?
3. Whether the plaintiff proves that by virtue of contract becoming nullity and unenforceable he is entitled for possession of the suit property.
4. Whether the plaintiff proves that he is entitled for damages against the defendants towards the unlawful enjoyment and unjust enrichment of the suit property?
5. Whether the defendant proves that it was one of the condition [sic] on the part of the plaintiff to get the suit property transferred in his name before getting the cheque for Rs. 34,000/- encashed?
6. Whether the defendant proves that she is ever ready or willing to perform her part of the contract to get the sale deed executed?
7. Whether the defendant proves that the suit is not maintainable without the relief of declaration?
8. To what relief the plaintiff is entitled for?
9. What decree order?
9. Parties went to trial on these issues. While the plaintiff got himself examined as PW1 and got marked ExP1 to 5, the defendant examined herself as DW1 and got marked ExD1 to 16.
10. The trial judge, after evaluation of the evidence led on behalf of the parties in respect of their respective cases, while answered the issues 1 to 4 and 7 in the negative, answered issues 5 and 6 in the affirmative and dismissed the suit.
11. I have heard Sri. Vighneshwar S. Shastri, learned Counsel for the appellant and Sri. M.H. Sawkar, learned Counsel for the respondent.
12. What is urged by Sri. Vighneshwar S. Shastry, learned Counsel for the appellant is that the learned trial judge committed an error in coining to the conclusion that the plaintiff had not made good his case that the defendant failed to perform his part of the contract; that in fact it was only the defendant who ought to have done something under the contract as the defendant was required to pay the balance sale consideration only after the khata of the suit schedule property was transferred in the name of the plaintiff.
13. It is the submission of the learned Counsel that the defendant never offered the amount in time, neither within 37 days from the date of agreement nor thereafter; that the defendant having not offered this amount even till today, it can never be said that the defendant was ready and willing to perform his part of the contract and therefore the finding on this aspect by the trial court is clearly wrong.
14. It is also urged on behalf of the plaintiff-appellant that the plaintiff had rightly repudiated the contract and at any rate the contract having been repudiated even in the year 1989, it is inevitable that the possession of the defendant thereafter is not legal, not permissive and therefore the learned trial judge ought to have decreed the suit for mesne profits.
15. Submission of Sri Vigneswar S. Shastry is that when once the contract is repudiated, possession becomes not supported by any legal provisions and it is inevitable that the defendant has to yield possession in favour of the plaintiff and that the suit both for possession and mesne profit should have been decreed.
16. Countering the submission made by learned Counsel for the appellant, Sri. M.H. Sawkar, learned Counsel for the respondent-defendant has supported the judgment and decree passed by the trial court. It is firstly contended that the very suit itself was not maintainable, inasmuch as the plaintiff had not even sought for a declaration that the agreement between the parties has been voided or become unenforceable. Learned Counsel submits that learned trial judge framed an issue on this and wrongly answered by holding that the defendant was not able to make good as to how the suit was not maintainable and therefore the issue was to be answered in favour of the plaintiff. In this regard, it is submitted by the learned Counsel for the respondent-defendant, by drawing attention to the provisions of Section 53A of the Transfer of Property Act, 1882 [for short the Act], that the defendant being in possession of the suit schedule property and that the possession being as part performance of the agreement between the parties, the defendant was entitled to retain his possession so long as the relationship under the agreement was not declared to be terminated by any process known to law.
17. Section 53-A of the Act reads as under:
53-A. Part performance - Where any person contracts to transfer for consideration any immovable property by writing signed by him or on the behalf from which the terms necessarily to constitute the transfer can be ascertained with reasonable certainty:
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof or the transferee busing already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract.
and the transferee has performed or is witting to perform his part of the contract then, notwithstanding the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer that the transfer has not been completed in the manner prescribed therefor by the law for he time in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.
Provided that nothing in this section shall affect the rights of the transferee for consideration who has no notice of the contract or of the part performance thereof.
18. Section 53-A of the Act is popularly and reputedly known as a shield available to a person in possession of an immovable property pursuant to the agreement of sale and indicates that notwithstanding an agreement having not culminated into a sale transaction, the person in possession is entitled to defend his possession and debars the transferor any right in respect of that property parted in favour of the transferee, unless it has been so provided for under the contract itself.
19. The agreement under ExP1 does not expressly provide for any such contingency or a situation and accordingly the right that accrues to the transferee under Section 53A of the Act sustains the possession of the transferee and there is no other way for the court but to dismiss the suit for possession filed by the transferor, if the suit is only on the premise that the agreement has not been completed.
20. In a situation of this nature, the only option that was open to the plaintiff was to seek for a declaration to relieve the parties of the obligations under the agreement and whereupon as a consequence perhaps the plaintiff could have sought for recovery of possession as a sequel to this declaration and the consequential legal position. Unfortunately, for the plaintiff, no such declaration having teen sought for, this issue is to be necessarily answered in favour of the defendant and the learned judge of the trial court was wrong in answering this issue in the negative and in favour of the plaintiff.
21. Though Sri Vighneshwar S. Shastri, learned Counsel for the appellant has contended that the defendant having not; come in appeal and not having questioned this finding, he cannot seek for such relief or in this appeal. As the defendant is entitled to defend this decree not merely for the reasons given by the trial court but for other reasons also and on such premise when the defendant is entitled to support the decree and in support of the defence of the decree with the arguments as put forth, I cannot accept the same, having regard to the provisions of Order XLI Rule 22 of Code of Civil Procedure, which reads as under:
22. Upon hearing respondent may object to decree as if he had preferred a separate appeal - (1) Any respondent, though he may not have appealed, from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objections in the appellate court within one moth from the date of service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the appellate court may see fit to allow.
Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent.
(2) Power of objection and provisions applicable thereto - Such cross-objection shall be in the form of a memorandum and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Omitted (4) Where, in any case in which any respondent has under this rule filed a memorandum or objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit.
(5) The provisions relating to appeal by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.
The provisions of Order XLI Rule 22 read with the provisions of Order XLI Rule 33, which reads as under:
33. Power of Court of Appeal: The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may. where there have been decree decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under Section 53A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
undoubtedly confers the power on the appellate court not only to entertain the submission of the nature made by the learned Counsel for the respondent/defendant but also empowers the appellate court to record a proper finding on any issue notwithstanding the respondent not having preferred any appeal or cross-appeal. Accordingly, this issue is answered in favour of the defendant that the suit itself was not maintainable.
22. This apart, I am of the view that the trial court has also on facts has rightly answered the issues relating to the time being the essence of the contract and the contract having come to an end by issue of legal notice dated 4-10-1989 also being answered against the plaintiff that it was not so and when the contract had become nullity the plaintiff was entitled to recovery of possession also being answered against the plaintiff.
23. The possession of the defendant being never without unauthorized or illegal, the trial court has rightly answered the issue relating to award of damages against the plaintiff in favour of the defendant.
24. Even in fact with regard to the failures on the part of the plaintiff to perform his part of the contract, there is clear admission on the part of the plaintiff in the witness box indicating that the plaintiff was not in a position to get the khata of the property in question transferred to his name till the year 1990 and which was admitted to be a condition precedent for the completion of the agreement In the light of such admission, the notice issued even during the year 1989 repudiating the contract will only amount to plaintiff trying take advantage of his own inaction or non-performance and therefore the repudiation is not valid or justified and accordingly the agreement never got terminated, as contended, and the issue has been rightly answered by the trial court.
25. When such is the factual and legal position, the trial court had been left with no other option but to dismiss the suit of the plaintiff-appellant. I am of the view that the trial court has rightly dismissed the suit, both for recovery of possession and for claim of damages and mesne profits. In fact, in the course of this judgment, I find one another issue answered in favour of the defendant regarding the maintainability of the suit and accordingly it is held that the suit itself was not maintainable without the prayer for declaration.
26. The appeal inevitably fails and is accordingly dismissed. Parties to bear their respective costs.