Karnataka High Court
B P Muddaiah vs K C Kariappa on 21 September, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 21ST DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR SECOND APPEAL NO. 2429 OF 2006
BETWEEN:
B.P.Muddaiah
S/o B.C.Ponnappa,
Aged about 50 years,
Eralevalamudi Village,
Swomarpet Taluk, Kodagu Dist.
Pin : 571236.
...Appellant
(By: Sri. A.S.Ponnappa, Adv.)
AND:
1. K.C.Kariappa,
S/o Chinnappa,
Aged about 66 years,
Eralevalamudi Village,
Swomarpet Taluk, Kodagu Dist.
Pin-571236
2. K.K.Madappa
S/o Kariappa,
Aged about 37 years,
Eralevalamudi Village,
Swomarpet Taluk, Kodagu Dist.
Pin-571236
3. B.P.Achaiah
S/o Late Ponnappa
Aged about 64 years,
2
Eralevalamudi Village,
Chettalli Post, Kodagu Dist.
Pin-571236
...Respondents
(By Shri M.A.Humayun, Adv. for R1 & R2)
This Regular Second Appeal filed Under Section 100 of CPC
against the Judgement and Decree Dt.05-08-2006 passed in
R.A.No.54/2001 on the file of the Presiding Officer, Fast Track
Court, Kodagu, Madikeri, partly allowing the appeal and
modifying the Judgement and Decree Dt.01-10-2001 passed in
O.S.No.37/1997 on the file of the Addl. Civil Judge (Jr.Dn.)
Madikeri.
This Regular Second Appeal coming on for Hearing, this
day, the Court made the following:
JUDGEMENT
The plaintiff is the appellant and the Order dated 5th August 2006 passed in Regular Appeal No.54 of 2001 by the Presiding Officer, Fast Track Court, Madikeri, is under challenge in this appeal.
The facts leading to the suit and appeal are:
that the appellant-plaintiff filed a suit for specific performance of agreement dated 10th August 1987 as per Exhibit-P1. The suit schedule property is measuring 41 cents 3 and the sale consideration is for Rs.1,200/-. In the agreement, the defendants, who are the vendors, have agreed to execute the sale deed after the government withdraws the ban on registration of sale deeds of jamma lands. The suit schedule land is a jamma land. The government Notification to that effect was quashed by this Court vide judgement passed in the case of CHEEKERE KARIYAPPA POOVAIAH v. STATE OF KARNATAKA reported in ILR 1993 KAR. 2959. In view of the said judgment, a legal notice, requesting the defendants to execute the sale deed, came to be issued to the vendors and since vendors failed to effect the registration, the suit was filed.
The Trial Court, by its order dated 1st October 2001 decreed the suit, against which the defendant preferred Regular Appeal No.54 of 2001 and by order dated 5th August 2006 the Regular Appeal came to be partly allowed.
The learned counsel for the appellant urged the following grounds. He submits that when both the Courts, in concurrent manner, have answered the issues framed to that effect, the First Appellate Court, invoking Section 20 of the Specific Relief 4 Act, 1963 (hereinafter referred to as "the Act" for short) for the purpose of exercising discretionary power, has directed the defendants to pay back the sale consideration of Rs.1,200/-, is an error. He submits that Section 20 of the Act could not have been invoked by the First Appellate Court, since the ingredient of the said provision, more particularly, Clause (b) of Sub-Section (2) of the said Section is available for the plaintiff since he is put to hardship. As per Exhibit-P1-the agreement, the defendants themselves have stated that the plaintiff is in possession of the property from time immemorial and are cultivating the same.
Hence, it was decided to sell the same to the plaintiff for Rs.1,200/-. As per the agreement, though the entire sale consideration was paid, the registration of the land could not take place since the Government banned the registration of jamma lands for which the defendants have also agreed that they would execute the sale after the government lifting the ban on registration of sale deeds of jamma lands. In Exhibit-P1 it is also disclosed that the plaintiff and the adjoining land owners are in possession of the lands from time immemorial, that is to say, 5 though not for more than more than many decades, atleast for more than two decades, as on today.
Secondly, the learned counsel submits that when such discretion is not exercised by the Trial Court, it is not open for the First Appellate Court to exercise such power. Thirdly, it is submitted that while exercising the discretion, the Court should keep in mind that the discretionary power shall not be arbitrary, but should be sound and reasonable and be guided by judicial principles. In the instant case, all these ingredients which are mandatory in nature, are not reflected in the order. Hence, the order of the First Appellate Court is bad in law, is his submission.
The defendants-respondent herein, have filed their written statement and have examined themselves as Dw.1 and Dw.2 and got marked documents Exhibit D1, D2 and D.2(a). They contended that they are poor agriculturists and illiterates and they did not know about the contents of the agreement. It is also contended that the sale consideration has increased manifold. Hence they have declined to execute the sale deed. 6
The learned counsel appearing for the respondent-plaintiff submitted that the plaintiff's father, is the original purchaser and when the family of the purchaser partitioned, some of the family property and the suit schedule property fell to the share of the plaintiff and hence he filed the suit. He submits that the order of the First Appellate Court is in error and the same has to set aside and the order of the Trial Court is to be confirmed.
The Trial Court, during the course of its judgment, has framed the following issues for consideration:
1. Whether the plaintiff proves that the defendants have sold the suit land to his father by putting his father in possession under Agreement dated 10.08.1987?
2. Whether the plaintiff proves that, after his father's death, suit land has devolved to his share and he is in possession and enjoyment of the same?
3. Whether the plaintiff proves that the defendants have failed to perform their part of the contract?
4. Whether the plaintiff proves that the defendants have tried to interfere with the peaceful 7 possession and enjoyment of the suit land, illegally as averred?
5. Whether the plaintiff proves that he is entitled for the reliefs claimed?
6. What order and decree?
The Trial Court answered issues No.1 to 5 in the affirmative and issue No.6 as per the final order.
When the said judgment was carried in appeal, the First Appellate Court has framed following points for its consideration:
1. Whether the plaintiff had proved that on 10.08.1987 defendants No.1 and 2 had executed an agreement of sale agreeing to sell the suit land in favour of his father for consideration of Rs.1,200/- and in part performance of contract after receiving sale consideration amount of Rs.1,200/- from his father, defendants No.1 and 2 had delivered the possession of suit land to him (to his father)?
2. Whether plaintiff had proved that on the date of suit he was in lawful possession and enjoyment of suit land?8
3. Whether plaintiff had proved that defendants No.1 and 2 are illegally interfering into his peaceful possession and enjoyment over the suit land?
4. Whether plaintiff had proved that he was always ready and willing to perform his part of the contract?
5. Whether the suit of the plaintiff is in time?
6. Whether plaintiff is entitled to the relief of specific performance of contract?, if not,
7. To what reliefs plaintiff is entitled to?
8. Whether judgment and decree under appeal passed by the trial court are liable to be set aside or modified?
The First Appellate Court answered points 1 to 5 and 8 in the affirmative and point No.6, viz. Whether plaintiff is entitled to the relief of specific performance of contract? was answered in the negative and to point No.7, the First Appellate Court held that the plaintiff is entitled to the relief of refund of sale consideration amount and the qualified relief of injunction; and answered point No.9 as per final order.
9
In this appeal, this Court, by its order dated 5th December 2006, framed the following substantial questions of law for consideration:
1. Whether the First Appellate Court was justified in interfering with the discretion exercised byu the Trial Court in decreeing the suit for specific performance under Section 20 of the Specific Relief Act, 1963?
2. Whether the First Appellate Court was justified in holding that as the agreement of sale entered into between the parties was contrary to the Government order banning registration of sale deed and therefore, cannot be enforced?
The substantial questions of law are answered in favour of the plaintiff for the following reasons:
When both the Courts have concurrently held in favour of the plaintiff insofar as executing the agreement and possession in favour of the plaintiff even before the agreement and the 10 defendants have accepted the sale consideration, when all these points are issues have been answered in favour of the plaintiff, the question would be, is it open to the First Appellate Court to exercise the jurisdiction. When the discretionary power available for the trial Court under the Act, if it is not entertained and refused, then normally the same would not be available for the First Appellate Court to exercise the same. But in the instant case, the Trial Court has not discussed anything about the discretionary power since the suit itself has been decreed in favour of the plaintiff. The First Appellate Court has exercised the discretionary power only assigning the limited reasons, viz. The sale consideration has increased manifold and the Government has lifted ban of registration of Jamma lands. The fluctuation of price in respect of the property is not a ground to exercise the discretionary power. The word 'discretionary' cannot be read as absolute discretion and while exercising discretion, the Court should have kept the rider, viz. "the arbitrariness, sound and reasonableness" in mind. The word "not arbitrary" is applicable to both the parties. While comparing the same in terms of hardship or without assigning any of these 11 conditions, the exercising of power itself is arbitrariness and violates the principle "sound and reasonable", which concepts are available for both the parties. While balancing these aspects, the balance of convenience, if tilts in favour of either of the parties, then discretionary power has to be exercised. The judicial principles are to be kept in mind with regard to clause
(b) of sub-Section (2) of Section 20 of the Act, which contemplates that the performance of contract would involve some hardship on the defendants which they did not foresee, then the case of the defendants should be considered. Merely assigning the reason that the price has been increased manifold cannot be a reason available for exercising discretionary power.
Various aspects are responsible for fluctuating the price. If that is considered for the purpose of exercising discretionary power, it would lead to arbitrariness opposed to sound and reasonable principles. That apart in Exhibit-P1-agreement, in paragraph 3 the defendants have themselves stated that "suit schedule property is in possession of the purchaser (plaintiff) and he is cultivating the same from time immemorial. It is also stated that the suit schedule property is adjacent to the property of the 12 purchaser, the defendants have decided to sell the same to the purchaser". This discloses that even before the agreement, the plaintiff's father was in possession of the land. Even if the date of agreement is considered, it comes to more than 25 years as on today, which is a long possession, i.e. for more than two decades. If the same is not considered, then it is an arbitrary power. The principles of sound and reasonableness tilt in favour of the plaintiff for his long and undisputed possession. In the agreement itself the defendants have agreed at paragraph 3 that they would execute the sale deed whenever the government withdraws the ban on registration of sale deeds of jamma lands. This only discloses that the sale agreement amounts to a sale- deed in its letter and spirit, since the entire sale consideration has been accepted and the execution of sale deed was postponed since there a ban from the government for registration of sale deeds of jamma lands.
In view of the facts and circumstances, I am strongly of the opinion that the First Appellate Court has not applied its mind in the principles enshrined under Section 20 of the Act. 13 When the suit is decreed and all the points raised by the First Appellate Court have been answered in favour of the plaintiff, the answer on point No.6 directing to pay back the sale consideration, is an error. Invoking Section 20 of the Act always should be ancillary to the issues and points and discretionary power always has to be exercised only on the judicial principles, viz. "not arbitrary, sound and reasonable principles". I find a total absence of these ingredients in the order of the First Appellate Court. The two substantial questions of law are with regard to whether the parties could enter into an agreement contrary to the government order banning the registration of sale deed. The second substantial question of law, which is not contrary to the government order banning registration. The order banning the registration of jamma lands came into force in 1986 and as per the contents of Exhibit P1, that the plaintiff is in possession of the land from time immemorial and the registration was not taken place since the Government has banned the registration of sale deeds of jamma lands and since the said Government order has been quashed by this Court in judgment in the case of CHEEKERE KJARIYAPPA POOVAIAH 14 (supra), the entering upon into agreement to executing the sale deed is after the lifting of the ban of registration of sale deeds of jamma lands by the Government, is not contrary to the provisions. Hence, the same is answered accordingly.
In the light of the discussions made above, the appeal is allowed. The order of the First Appellate Court, insofar as the exercising of the discretionary power is quashed. The decree is confirmed.
Sd/-
JUDGE lnn