Karnataka High Court
M Hanumanthappa S/O Muniyappa vs K S Krishna Murthy S/O Srinivasachar on 9 November, 2012
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 9TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE K.SREEDHAR RAO
R.S.A. No.252 OF 2007 (DEC)
BETWEEN:-
M. Hanumanthappa,
S/o. Muniyappa,
Aged about 75 years,
Occ: Agriculturist,
R/at Kolavanahalli Village,
Nandi Hobli,
Chickballapur Taluk,
Kolar District - 562103.
Appellant
(By Sri S.K. Venkata Reddy, Advocate)
AND:-
K.S. Krishna Murthy,
S/o. Srinivasachar,
Aged about 65 years,
R/at Kolavanahalli village,
Nandi Hobli,
Chickballapur Taluk,
Kolar District - 562103.
Respondent
(By Sri G.S. Bhat and Sri C.Sadashiva, Advocates for
M/s.G.S. Bhat and Assts. for C/R)
This R.S.A. is filed U/s.100 of CPC against the
judgment and decree dated 27.10.2006 passed in
R.A.No.115/2005 on the file of the Addl. Sessions Judge &
Presiding Officer, Fast Track Court No.V, Chickballapur,
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dismissing the appeal and confirming the judgment and
decree dated 08.11.2005 passed in O.S.No.41/1994 on the
file of the Civil Judge (Sr.Dn.) & JMFC, Chickballapur.
This appeal is coming on for final hearing this day, the
Court made the following:
JUDGMENT
The material facts of the case disclose that the appellant has entered into contract with the respondent to purchase the suit land for a sum of Rs.65,000/-. The Written Agreement was executed on 25.3.88. The land was a granted land. There was restriction against alienation for a period of 15 years. The prohibition against alienation was to expire on October, 1992. In the agreement of sale, there was no period for performance fixed. The agreement evidences the fact of payment of Rs.30,000/- on one instance and Rs.15,000/- on the date of agreement. The possession of the land was also delivered to the appellant. The respondent undertook under the agreement to get the land surveyed and boundary stone fixed and also would obtain necessary permission for effecting the transfer in favour of the appellant herein. 3
2. The respondent No.2 filed a suit in O.S.No.41/94 contending that the appellant herein has breached the terms of the contract and therefore, sought for declaration of title and possession. The appellant in the suit had stated that he had received Rs.30,000/- towards part of sale consideration and agreed to repay the same to the appellant herein.
3. The appellant appeared and filed written statement contending that it is the respondent who had committed the breach of terms of the contract and has stated that he reserves the right to file the suit for specific performance. The appellant filed a suit in O.S.No.102/94 for permanent injunction against the respondent not alienate the property. The said suit came to be dismissed as withdrawn on 26.3.02.
4. The appellant later on filed a suit in O.S.No.68/97 on 2.9.97 seeking specific performance of the contract. The said suit came to be dismissed on the ground of limitation. The decree was confirmed in the first appeal and also in RSA No.251/07 on the ground of limitation.
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5. The trial court in the suit of the respondent in O.S.No.41/94 has framed the following issues for consideration;
1. Whether the plaintiff proves that the advance amount of Rs.30,000/- mentioned in the agreement of sale dated 29.4.1987 was inclusive of Rs.10,000/- paid under the earlier agreement of mortgage dated 14.5.1986?
2. Whether the plaintiff proves that the documents dated 25.3.1988 (sale agreement and money bond) were secured from him by the defendant at a Panchayat stating that the earlier document dated 29.4.1987 had been lost?
3. Whether the plaintiff proves that documents dated 29.4.1987 and 25.3.1988 were executed only as security for the amount borrowed in the circumstances pleaded in the plaint and were never intended to be acted upon?
4. Whether the plaintiff proves that the sale transaction could not be completed on account of the failure of the defendant to perform his part of the contract?
5. Whether there is any cause of action for the suit as alleged?
6. Whether the plaintiff is entitled to a declaration as sought?
7. Whether the plaintiff is entitled to recover possession of the suit property? 5
8. Whether the plaintiff is entitled to mesne profits as claimed?
9. To what reliefs are the parties entitled?
The issue Nos.1, 4, 5, 6 and 9 are answered in affirmative and issue Nos.2 and 3 are answered in the negative. Thus the trial court dismissed the suit of the appellant herein and allowed the suit of the respondent. The appellant herein filed an appeal against the judgment and decree in O.S.no.41/94 and OS 68/97.
6. The first appellate Court has framed the following points for consideration:
1. Whether suit brought by appellant in O.S.68/97 was barred by time?
2. Whether appellant proves that there was intention on the part of the parties to enter into an agreement of sale?
3. What order?
7. The suit in O.S.No.41/94 and the suit of the appellant in O.S.No.68/97 was clubbed together and common evidence was recorded by common judgment.
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8. The appellate court has given finding that the appellant herein was not ready and willing to perform his part of contract and thus holds that agreement of sale is not really intended one for execution of sale and it is only a security for the money lent. The appellate Court dismissed both the appeals.
9. The Regular Second Appeal was filed in respect of the judgment and decree in both the suits. The Regular Appeal filed against judgment and decree in O.S.No.68/97 was dismissed in limine on the ground of limitation. The O.S.No.41/94 is admitted for consideration.
10. The following is the substantial questions of law framed for consideration in the second appeal:
Whether the judgments of both the courts below are contrary to Section 53A of the Transfer of Property Act, 1882?
11. In the second appeal, it is contended that the appellant is entitled to undisturbed possession by virtue of part performance U/s.53-A of TP Act and further relied upon 7 the judgment of full bench of this Court in the case of Narasimhasetty Vs. Padmasetty reported in ILR 1998 KAR 3230, in paras 41 and 42 of the judgment, the following observations are made:-
"41. It is also of importance to notice here that the conditions necessary for making out a defence for possession contemplated under Section 53A of the Act in a suit for ejectment by the owner have been clearly spelt out by the Supreme Court in the case of NATHULAL vs PHOOLCHAND which are the following (para 9):-
"(1) that the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty:
(2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract."
42. In the above case, it has also been held that:-
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"If these conditions are fulfilled then notwithstanding that 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 the time being in force, the transferor or any person claiming under him in debarred from enforcing against the transferee 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."
12. In the first place, the plea of part performance of contract U/s.53-A of the TP Act is not pleaded in the written statement and no issue is framed to that effect. That apart, there is concurrent finding by the Courts below that appellant herein was not ready and willing to perform his part of contract. The facts obviously disclose that the appellant herein still had to pay balance of Rs.20,000/-. The learned counsel for the appellant herein strenuously contended under the agreement, the appellant had to pay Rs.15,000/- after the survey and fixation of boundary stone and balance of Rs.5000/- at the time of registration. The respondent herein had undertaken to get the said work done at his instance and costs. Since the respondent did not 9 complete the survey and fixation of boundary, the balance amount as per the agreement was not paid. Therefore, there is no breach of the terms of contract on the part of the appellant herein.
13. Upon stern consideration of the facts and evidence, it is evident that the land was granted land and there was prohibition against alienation. The prohibition against alienation was to expire on October, 1992. The agreement was entered in the year 1988. The appellant herein was aware of the said fact. The question of survey and fixation of boundary stone are only incidental and consequential acts which could have been got done as one of the ancillary reliefs in a suit for specific performance. Nothing had prevented the defendant to offer balance of Rs.20,000/- and request the respondent to execute the sale deed as per the terms of the contract.
14. The submission of learned counsel for the appellant herein that he has offered balance of consideration orally appears to be fragile and self-serving version. The appellant 10 had come to know about the refusal and had filed a suit for permanent injunction. In the suit for permanent injunction in O.S.No.102/94 wherein in the written statement, the respondent herein refused to execute the contract and denied the execution of the contract agreement. The plaintiff in O.S.No.41/94 had categorically denied the agreement and alleges breach of contract and thus seek possession of the property. It is a fact that there was balance of consideration to be payable on the part of the appellant and the appellant did not take proper steps to file the suit for specific performance within time. In the context of the facts, there is concurrent findings of the courts below that the appellant was not ready and willing to perform the contract. This would clearly shows that fourth condition laid down by the Supreme Court, is not complied with and fulfilled by the appellant. In that view of the matter, the question of law is answered in negative. The appeal is dismissed.
15. It is to be noted that in the agreement, there is clear payment of Rs.45,000/-. Therefore, the findings of the Courts below that the appellant had paid Rs.40,000/- is 11 contrary to the document. Therefore, it is directed that the respondent shall refund Rs.45,000/- with 8% interest from the date of suit till the date of payment. The decree for mesne profits would not arise because the possession does not constitute unlawful possession.
Sd/-
JUDGE NM*