Karnataka High Court
Sri Bangli Nagappa vs Sri G Venkatakrishna Rao on 29 February, 2012
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
I N THE H EGH C ()U IT OF' ICARNATAICA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 29 DAY OF FEBRUARY, 2012
PRESENT
THE IION'BLE MRJUSTICE DVSHYLENDRA KUMAR
AND
TIIE F-ION'BLE MRJUST1CE BVPINTC)
1832Q7
IOBo.16QQ7
lNRFAJ'OJ8007
BETWEEN:
SRI BANULI NAGAPPA
5/ OBANLGI LINGAPPA
AGED ABOUT 76 YEARS
NGRICULWRIS] ADONI ROAD
SI RAGUPPA, SIRAGUPPA TALUK
BELLARY DISTRICT 583 101
APPITLANT
(BY SRI (1ODLNACARAJA, ADV.)
ANt):
SRI U VEN IKATARRI SHNA RA()
S Di 'H SRI k01'\A
\GED \BOU3 5Q YEARS
AGRICULTURIST
R Al SADASHIVANAGAR
S1RAGUPPA, SIRAGUPPA TALUIK
Bri AN 1)181 RIG I 583 101
RLSPONDLNT
(BY SRI (iANGADI tAR NM. ANt) SRI S.KDLSI IPANDIL ADVS.)
11115 RLGLLAR URS I APPLA! IS INLED US )6 OE CPU
:\(IA1\S I tilL J(D(IMLNT ANI) DECREE DATEI) 2 122006
4
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PASS! I) IS 0.S.NO.65 1997 05 TilE Fli.E 01: THE AD!)!.. (IV!!.
ii i)( ii: sk.l)\.. Bli.l.ARV. 1NSMISSIS(i III! SL TI FOR SPECIFIC
Pi.RFORMANCE OF CONIRACf (IiXECLJTING REGULAR SALE
DEED;. IN SO FAR AS DiRECTING THE APPElLANT TO REFL'ND
II lit IARNESi 'IONFY i: RS.3.3 1.020 -- IO(iET1 IER WITII
IN ILR1tS I VU 8" P.A. FROM ii LE I)ATE OF I IE SUIT TiLl. THE
i)ATE OF REALISATION.
iN RFA.CROB.NO. 16/2007
BETWEEN:
SRI G.VENKATAKRISHNA RAO
S/O.LATE SRI KOTAYYA
AGE!) ABOUT SQ YEARS
AGRICULTURIST
R/AT. SADASHIVANAGAR
SIRAGUPPA, SIRAGUPPA TALUK
BELLARY DISTRICT 583 101
-
CROSS-O1IJEC FOR
(1W SRI : GANGADHAR J.M.. S.K.DESHPANDE. A.I l.NAIK
1LNI.IRISI IA!) Al 1MW). J.PRASI IAN! :Ni) V.R.SAR: liii. ADVS.)
AND:
SRI BANGLI NAGAPPA
S/O.RANLGI LINGAPPA
AGED ABOUT 76 YEARS
AGRICULTURIST, ADONI ROAD
SIRA(IU1'PA, SIRAGUPPA TALUK
BELLARY DISTRiCT 383 101
-
RESPONDENT
(BY SRI (IOi)ENAGARAJA. ADV.)
Fills RFA.CROLI. i:ILiiI) U.ORDER 41 RULE 22 01: CPC
AGAINST 1 HE i)ATED 27.12.2006 PASSED IN O.S.NO.65/1997 ON
1 I IF I lI.F OF TIlE ADI)I.. CiVil. JUD(iE (SR.DNj. BELI.ARY.
PRAYING I() At'CEP 1 fi iF ('ROSS OBJECTIONS. REVERSE FIlE
iINDiNGS OF lIE TRIAl. COURT Ti-1 V1 THE AGREEMENF 01:
1
SALE IN FAVOUR OF THE RESPONDENT WAS VOID AND
1NSTE:D GR.NT : DECREE 01: SPECIFIC PERFORM.NCE
4
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I)IRR' liNti 1 lIE APPl:I.I..NI 'ID EXECL'I'E : SAI.L DELI) IN
FAVOUR OF THE RESPONDFNr.
THESE RFA AND RFA.CROB. HAVING BENN HEARD
AND RESERVED FOR JUDGMENT ON 16.02.2012 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, B.V.PINTO, J., DELIVERED THE FOLLOWING:
JUDGMENT
This regular first appeal is filed by the defendant against the order dated 22.12.2006 passed in OS No.65/ 97 by the Additional Civil Judge (Sr.Dn.) Bellary, (herein after called the trial Court), in which the learned Civil Judge has dismissed the suit for specific performance of the agreement of sale executed by the defendant in favour of the plaintiff but directed the defendant to refund the earnest money of t3,31 .020/- together with the interest at 8% p.a. from the date of suit till the date of realisation.
2. The parties are referred according to their rank in the trial court.
3. The plaintiff has filed suit before the trial Court on the ground that the plaintiff hails from the family of agriculturist from Krishna District of And hra Pradesh and defendant was in occupation of lands -4- bearin" sun e Nos. I 75A and 1758 of Boggur village, Sin.; '.i:'pa taluk to an extent of 23.17 acres and that the driendant had entered into an agreement on .31 .u7. "To. undertaking to sell the property to the 'flhl. ft and that the defendant has received a sum of I t2.UJ,.727/ till the end of June 1987 and that the defendant has further received a sum of .34.293/ after : 8.' •. 1987 and despite calling upon the defendant to nxerutt' the sale deed. the defendant has been avoiding to r'.rcute the sale deed and therefore, the plaintiff has pray ed for a judgment and decree directing the delL'; 'dant to execute a regular conveyance deed in L.vo .z rif the plaintiff in respect of the aforesaid properties
4. The defendant appeared before the trial Cu.C .:id filed his written statement denying the plaint alle atons and has categorically denied the execution of 11w ..tgi ermeni. dated 31.07.19Th and has further denied inc cxccution of arious receipts in respect of the receipt of mone from the plaintiff. The defendant has also contenued without prejudice that the alleged agreement a 0 of : 'aid and unenforceable and that defendant had no right to alienate the property as on 18.06.1987. He Ins I irther contended that he is in occupation of the said .c ncls since a long time and is cultivating the same and that the plaintiff has trespassed into the schedule lands 'md has set fire to the hut put in the scheduled lands ft t hich he has lodged a police complaint.
5. Fhe trial Court on the basis of the aforesaid pleaciius has framed the following issues:
1. Whether the plaintiff proves that the defendant has agreed to convey the schedule land to him for a consideration of Rs.3,31,020/?
2. If so, whether the plaintiff proves that on 18.06.1987, the defendant has executed an agreement of conveyance and received a sum of 2. 96,727/ over and above the amount dated he was entitled to draw under the agreement dated 31.07.1976?
3. Whether the plaintiff was and is always ready and willing to perform his pan oj contract?
4. LI hether the suit is hored hy limitation?
5. Whether the alleged agreement of sale deed. 18.06.1987 is void and unenforceable in view of the provisions of Karnataka Certain Inam abolition Act?
6. Whether the plaintiff is entitled to the relief of specific performance of the contract?
b
7. Whether the defendant is entitled for exemplary costs of 3,OOO ?
8. What decree or order?
['he plaintiff has thereafter, examined himself as PW. 1 and also examined PWs.2 to 6 in support of his cast an I produced Exs.P. 1 to P.87. Thereafter. the defendant examined himself as DW. I and also examinea one Lakshmi Nararaa, as DW.2 and got markec Exs.D.1 to D.21.
7. The trial Court after hearing the parties has dismissed the suit, filed by the plaintiff seeking for siwnii performance of the contract executed by the defendant but directed the defendant to refund the can %.S money of t3,3 1,020/ together tith interest at S . -. from the date of the suit till the date of realisaion.
S Being aggrieved by the said judgment and decrce the defendant has filed this appeal. The plaintiff has iilcd cross-objections in the said appeal.
Heard Sri Godenagaraja. learned Counsel for the appellant and Sri Gangadhar J.M. and Sri SiK. Dcshpande. learned Counsel for the respondent.
The point for consideration in these appeal d TussUbjectiofls are:
a. \Vhether the trial Court is justified in dismissing the suit for specific performance filed by the plaiu ti ii?
b. \Vhether the trial Court is ustihecl
in directing the defendant to
refund the earnest money of
.3.3l.O2O/ \xith interest to the
pltift2
What order?
I I. Our anser to the above points are as
a. In the affirmative.
b. In the negatixe.
c. The appeal of the defendant is allowed and the direction to the defendant to refund the earnest money of Rs.3,3l .020/ to the plaintiff with interest is set aside. The cross objection of the plaintiff is dismissed for the following:-8-
REASONS:
12. It is the case of the plaintiff that he hails from Krishna district of Andhra Pradesh and that he has studied up to PUC and he has the necessary know-
how for undertaking the intensive cultivation of paddy, sugarcane, cotton, other millets and commercial crops and that on account of his capacity to study literature on agriculture, patterning of crops from time to time, user of needed pesticides and fertilizers from time to time, he has established himself as a progressive agriculturist in Boggur village and other areas of Sirguppa Taluk. It is his further case that the plaintiff came into contact with the defendant who was in occupation of 23.17 acres of land in survey Nos. I 75A and I TSB of Boggur village and that the defendant has applied for grant of occupancy rights in respect of said lands in form No.7 under the Karnataka Land Reforms Act and since the lands were Inam lands, he sought for jurisdictional form under the Kamataka Certain Inams Abolition Act by instituting proceedings. It is stated that the Land Reforms Tribunal granted occupancy rn -9- rights in favour of the defendant in respect of the said lands. It is further the case of the plaintiff that an agreement was entered into between the plaintiff and the defendant, on the defendant requesting the plaintiff to undertake the agricultural operations in the schedule property by constituting the plaintiff as the agent of the defendant in accordance with the said agreement dated 31.7.1976. The plaintiff undertook the improvement, management and cultivation of the schedule property and also paid certain amounts at various dates to the dekndant. right from the date of the agreement. It is further stated by the plaintiff that the defendant had agreed to transfer the said lands in favour of the plaintiff and hence. he went on making payments over and above incurring cost of improvement of the land. ft is also stated in the plaint that the plaintiff had given money to the defendant for his house building which he had undertaken during the said period. The plaintiff has furnished a list of such payments with dates made by the plaintiff to the defendant which amounted to t2,96,727/- as on 30.04.1987 and t3,77,450.58/- till C) I U. J2 as per schedule B to the plaint.
Schedule 'B' (Part 1) 11 paid 6 (ZilloalitS y plaintiff to Sri Bang/i qpp the ae/endatt with the dates of !k1b1nt1lt towards part payment oJ the cunsideration Jbr sale of the suit lands.
. \u. Date z!1LOimt
payment paid IRs.)
31 07 1976 1,500 00
) 08-01 1977 800-00
21 10 1977 7,000 00
4 22-08 19/8 1,200 00
19-10-1978 6,000-00
12 12-1978 10000
30051979 8,260 00
13-06-1979 2,436-00
03-06-1979 1,360-00
03 10-1979 100-00
0201 1q50 2,o80 40
20 01-1980 1,300 00
13 7902-1980 500 00
06-05 7980 200-00
04051980 70000
75 i) 795() 3u0-00
30-01-1980 200 00
1204-7980 5730-00
28 05 7 980 962-00
2805-1980 3,279 00
25-05 1979 6,500 00
30-12-1980 8,208-00
23 30-72 7980 9,408 00
30 72 1980 2,500-00
22 12-1980 2,820-00
7 9-03- 1 980 200-00
28-04-1 980 100-00
1•
11
29 16 12 1979 1.690 00
2') 08 12-1980 200-00
'C) 30-12 1980 1,500-00
24 02 1981 1,000-00
4-,- 01-04-1981 1368
4. 01 06 1981 1,80000
"4 10-06-1981 6.500-00
'5 24 07-1981
29071981 2.000-00
"S 30-01-1982 5.000-00
"S
2703 1982 1,000-00
15-05-1982 3.52 1-80
29-al 1982 6,00000
a 0702 1982 7,02000
--I
26-08 1982 380-00
a,
--'I 02-01-1983 10000
44 0901-1983 3,158-75
04-04 1983 1.300-00
30-05 1983 500-00
02-06-1983 5.222-35
• C,
'0 30-06-1983 6,000-00
'a 02-12-1 982 5,920-00
C. 14 12-1983 3.000-00
3112 1984 3,000-00
03011984 2.000-00
53 17-12 1983 6, Ouo-00
.1 10-04 1984 5,02300
15-04-1984 1,100-vu
27-04 1984 1 .000-00
2406 1984 3.000-00
'S 14-0 7-1 984 500-00
59 25-07-1984 500-00
'fl 17 10-1984 300-Ov
22-12-1984 4,788-00
(2 12 05-1984 100-00
03-00 1984 6.622-00
"4 28051985 82,000-00
23-06-1985 600-00
- 0801-1986 • 20,000-00
'I 10051986 18.130-00
-- --
ía 2805 1987 323730
03-06-1987 73,597-50
70 30-04-7987 500-00
T024L 29672700
NOTE: -
45 01130-04- 1 987 prior to the
Dale of the suit agreement Sn Bang/i A gappa was paid Rs.2, 96, 72 7-00 5caedule 'B' PART!! 2 we Nos. 71 and onwards oman nts paid so bsecju eat to the date of agreement aggregating the amounts paid to Rs,3, 77,450-50.
7; 28-12-7987 2,520-00
72 06-01-1988 14.280-00
73 75-02-1989 15,225-00
02-02-1989 1 568-00
75 07-01-1990 12,405-00
01 06 7997 18 37500
77 01-06-1 991 5,250-00
75 10-02-7 991 2 000-00
72 5, 100-00
( 4.000-00
10] IL 377450-58
13. Ii is stated that the amounts are paid by the plaintiff to the defendant and the defendant is due to the ;Dia:nrlff. the saId amount.
3. The defendant has filed the written statement denying the entire allegations of the plaintiff
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except that the defendant was in possession and occupation of land in question and that the defendant himself is responsible for improving the land and that the defendant is a tenant under the Land Reforms Act and also under the Karnataka Certain lnams (Abolition) Act, and that the Land Reforms Tribunal has granted occupancy rights in his favour. However, he has stated that the said order of the Land Reforms Tribunal, Siruguppa is challenged before the High Court in writ petition No.7063/1991 and therefore, the order of the Tribunal has not reached finality and hence, he has no alienable right over the property. He has specifically denied the agreement dated 31.07.1976 and the further agreement dated 18.6.1987 and the allegation that he has received ?.2.90.727/- as per the agreement dated 18.06.1987 and further the receipt of ?.34,293/- from the plaintiff.
15. The plaintiff examined himself as PW. I before the Court and he has reiterated his case before the Court. In the cross-examination, he has denied the S p
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case of the defendant in respect of the management of the property by the plaintiff, the agreements and the payments made by the plaintiff. PW.2 K.Veerabhadra is the typist who has stated that he is working as a typist in the office of the advocate Sri A.S.Malebennur, who had dictated the Ex.P2 -- agreement, for more than 26 years. He has identified Ex.P.2 as the document typed by him. Ex.P.2(d) is his signature. The said document is typed in the office of the aforesaid advocate. PW.3 Venkataraghavan has been examined to show that the defendant and plaintiff had come to his shop, where the defendant has signed Ex.P.3 in his presence, in his office. Signature of the defendant as well as PW.3 is identified by PW.3. PW.4 Abdul Rauf is examined to prove Ex.P.3. However, he has been treated hostile by the plaintiff. PW.5 Surappa who has stated that he has identified Ex.P.3, which is written by him as a document writer in the office of the Sub-Registrar. However, he has not identified the plaintiff or the defendant. PW.6 K.Prakash is an advocate has identified Ex.P.87, which is the sale deed. 4 e -15-
16. The defendant has examined himself as DW. 1 and has denied the plaintiff's case in toto. He has stated that he has not executed any agreement nor any authority or power of attorney in respect of plaint schedule properties. He has also denied the signatures in the documents produced by the plaintiff. However, he has admitted the contents of Ex.P.6, which was entered into between himself and plaintiff on 25.8.1987 intending to compromise the cases before the Court. He has admitted his signatures on Ex.P.84, which is the order sheet in C.C.No.700/97. However, he has denied the signature in Ex.P.85 and Ex.P.85A, which are in English. However, he has admitted the signature in Ex.P.86, which is the document in OS No.35/83. DW.2 Laksh ml Narayana is the Assistant Director of Forensic Science Laboratory, Bangalore, who has stated that the signatures found on Ex.P. 1, Ex.P.2 and Ex.P.86 belong to the same person. The defendant has produced documents Exs.D.l to D.21, in his defence. Exs.D.1 and D.2 are record of rights in respect of the schedule
- lb property in which the name of the defendant is found in column No.9. Ex.D.3 is the certified copy of the rent bond, Exs.D.4 and D.5 are the tax receipts, Exs.D.6 to D. 1 5 arc the R.O.Rs in respect of the suit schedule TDropru. Ex. D. 16 is the FIR. Ex. I). 1$ is the appeal memo before the LRAT. Bellarv. Ex.D. 19 is the order shem in C.P,7063/1991 of the High Court of Karnataka, Ex.D20 is the order of the Land Reforms Tribunal, Sirugpp; Ex.D.21 is form No.10 of the schedule prolmru, issued in favour of the defendant.
On a careful consideration of the entire mmLrjoi on record, it is seen that Ex.P. 1 is the oulijortedi agreement entered into by and between the plaintiff and the defendant, which is titled as Agreen mnt of Management of Agricultural Establishment" dated as 31.07.1976, it runs into 9 full pa•es uncl the contents indicate that the plaintiff was appointed as the agent of the defendant for cultivating the lands. However, the document does not contain all the ngrechents required to construe the same as an
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agency agreement. There is no material on record to show that the plaintiff has acted as the agent of the defendant regarding the suit property. There is no material on record to show that the plaintiff has given periodical accounts of the agricultural operations and improvements carried on by the plaintiff on behalf of the defendant, nor any report regarding the income and expenditure has been given by the plaintiff to the defendant. Therefore, the plaintiff cannot take advantage of the document Ex.P. 1 to hold that he was acting as an agent of the defendant nor it could be construed as an agreement to sell the property. Ex.P.2 is dated 18.6.1987, which indicates that the defendant has received a sum of t2,96,727/- and the plaintiff undertakes to pay the balance of t34,293/- by 17.06.1996 on executing a regular sale deed. Ex.P.3 is a receipt dated 12.02.1991 executed by the defendant in which he has admitted receipt in all t3,31 ,020/- from the plaintiff, Ex.P.4 is the legal notice, all these documents are denied by the defendant. However, in para No.6 of the reply notice, the defendant has a-
'S -18- admitted that the plaintiff was appointed as a supervisor to supervise the agricultural operations and a remuneration of ?. 1,000/- per month was paid to the plaintiff whenever he did supervisory work. The defendant has given a go-bye to this version both in his oral evidence and in the written statement. Hence, it is seen that the defendant has not spoken the truth before the Court. However, though the defendant has denied his signatures in Exs.P. I to P.3, the handwriting expert has compared the signatures of the defendant in Exs. P.1 and P.2 to the signatures found in Ex.P.86, which is the evidence given by the defendant in O.S.No.35/83 and has stated that the person who has signed in Exs.P. 1 and P.2 and Ex.P.86 is the same person. Hence, it is established that the defendant has not come out with complete truth before the Court.
18. The defendant has contended that the suit schedule properties are agricultural properties covered under Land Reforms Act and under the Karnataka Certain Inams (Abolition) Act and therefore, since the 4 %1 -19- order of the Land Tribunal is the subject matter of civil petition No.7063/01 on the file of the High Court of Karnataka, the plaintiff has no alienable rights in respect of the suit schedule properties. The order of the land tribunal has not yet reached the finality and hence, the defendant could not have alienated the suit schedule property and therefore. the suit agreement dated 38.6.1987 is void and unenforceable, in view of Section 61 of the Karnataka Land Reforms Act.
19. In view of the above discussion, the learned Judge of the trial Court has held that the plaintiff is not entitled for a decree for specific performance.
20. So far as the direction to the defendant to repay the amount of t3.31 ,020/- towards earnest amount together with interest to the plaintiff is concerned, the trial Court has found that the defendan t has not cofne up with a true story and also of the fact that the signature in Ex.P. I and Ex.P.2, are found to be that of the defendant in spite of denial by the defendant. The trial Court has however, held that the defendant is 4 -20- liable to refund the amount received by him to the plaintiff.
21. However, on a careful consideration of Ex. P.2. which is the basis for directing the defendant to refund the amount to the plaintiff, it is seen that the said document appears to have been a doc ument, which is created after obtaining the signature of the defendant.
It is seen that the document does not contain any space either on the top or on both sides indicat ing margin and is typewritten without leaving any space in between two lines while the document Ex.P. I indicates that it was brought into existence on the basis of the draft given by Sri A.S.Malebennur, advocate, Bellary whi ch runs into 9 pages. In Ex.P.2 lot of materials have been stuf fed in one page and the typed note at the bot tom indicates that the same is typed as per the direction of Sri A.S.Malenbennur, advocate Bellarv. The said document also contains the signature of Sri K.V eerabhadrappa, who is the typist of the said document.
It is further seen that the signature of the plaintif f in the said a S
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document is put below the word 'vende& which indicates that the signature is put before the word 'vendee' is typed. The defendant has stated that his signature had been obtained by the plaintiff on many blank stamp papers and the plaintiff has misused his signatures. A careful scrutiny of Ex.P.2 on which the claim of the plaintiff for t3,31,020/- is placed, clearly establishes that the same is a got up document and does not inspire confidence in the mind of this court. to hold that the defendant has in fact received a sum of t3,3 1.020/- from the plaintiff. Under the circumstances, it is not safe to rely on Ex.P. I to direct the delèndant to refund the amount as claimed by the plaintiff.
22. On the careful consideration of the entire material on record and after going through the reasoning given in the judgment by the trial Court, we do not find any error or illegality in the judgment of the trial Court in refusing to grant a decree for specific performance. On the other hand, the order of the trial ) ) Court insofar as refund of the earnest money with interest to the plaintiff is concerned the same is not brised on clear and cogent evidence on record and therefore, the said order of the trial Court deserves to be set aside.
23. in the result, the appeal filed by the defendant is allowed and the direction to refun d earnest manna of .3.3I O2O/ with interest at 8 p.a. to the plaiitf is hereby set aside. The crossobjections filed ha tin: alaintiff is dismissed. Parties are directed to bear their own costs.
Sd/ JUDGE Sd/ JUDGE dlvi