Karnataka High Court
V Nagaraja vs Purushothama on 29 September, 2022
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RSA No. 190 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 190 OF 2010 (SP)
BETWEEN:
1. V. NAGARAJA
SON OF VENKATASHETTY
AGED ABOUT 55 YEARS
R/O. KARITHIMMARAYI STREET
FORT, HOLENARASIPURA TOWN
HASSAN DISTRICT - 577 101
2. C.N. MANJEGOWDA
S/O. LATE C. NANJAPPA
AGED 50 YEARS
3. C.N. KRISHNE GOWDA
S/O. LATE C. NANJAPPA
AGED ABOUT 47 YEARS
APPELLANTS 2 & 3 ARE R/AT:
THATTEKERE VILLAGE
KASABA HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT - 577 101.
Digitally signed ...APPELLANTS
by NANDINI B G
Location: High (BY MR: VIJAY KRISHNA BHAT, ADVOCATE)
Court Of
Karnataka
AND:
1. PURUSHOTHAMA
S/O LATE NANJEGOWDA
AGED 45 YEARS
R/O. THATTEKERE VILLAGE
KASABA HOBLI
HOLENARSIPURA TALUK
2. THE SECRETARY
PLD BANK
RIVER BANK ROAD
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RSA No. 190 of 2010
HOLANARASIPURA TOWN
HASSAN DISTRICT - 577 101.
...RESPONDENTS
(BY MR: MAHANTESH S. HOSMATH, ADVOCATE FOR R-1
MR: SURESH SUBBAIAH, ADVOCATE FOR R2.)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 4.11.2009 PASSED IN
R.A.NO.4/2001 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE,
FAST TRACK COURT, HOLENARASIPURA, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
18.11.2000 PASSED IN O.S.NO.36/1997 ON THE FILE OF THE CIVIL
JUDGE (JR.DN) & JMFC., HOLENARASIPURA.
THIS RSA COMING ON FOR FURTHER HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant No.1 before the Trial Court and legal representatives of deceased respondent No.3 before the First Appellate Court have preferred this appeal being aggrieved by the judgment and decree dated 04.11.2009 passed in RA No.4 of 2001 on the file of the learned Additional District Judge at Holenarasipura (hereinafter referred to as 'the First Appellate Court' for brevity), allowing the appeal by setting aside the judgment and decree dated 18.11.2000 passed in OS No.36 of 1997 on the file of the learned Civil Judge (Jr.Dn.) and JMFC, Holenarasipura (hereinafter referred to as 'the Trial Court' for brevity), and thereby decreeing the suit of the plaintiff as prayed for, directing defendant No.1 to execute the sale deed -3- RSA No. 190 of 2010 in pursuance of the agreement of sale dated 19.07.1989 in favour of the plaintiff by receiving the balance consideration amount of Rs.4,500/-.
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the suit OS No.36 of 1997 against defendant Nos.1 and 2 seeking direction to the defendants to execute the registered sale deed in his favour in pursuance of the agreement dated 20.07.1989 in respect of the schedule property by way of mandatory injunction by accepting the balance consideration amount and also to hold that the encumbrance entered at the instance of defendant No.2 in the revenue record is not binding on the plaintiff.
4. It is contended by the plaintiff that defendant No.1 is the owner of the schedule property as the same was granted in his favour as per order dated 27.12.1978. There was a condition for non alienation of the property for a period of 15 years i.e., till 27.12.1993. The schedule appended to the plaint describes the land bearing Sy.No.81, Block No.5, measuring 2 -4- RSA No. 190 of 2010 acres situated at Thattekere, Holenarasipura Taluk with the boundaries mentioned therein.
5. It is contended that defendant No.1 executed an agreement for sale in favour of the plaintiff on 19.07.1989 agreeing the sell the schedule property for a total consideration of Rs.16,500/-. An advance amount of Rs.12,000/- was received on the date of agreement. Defendant No.1 agreed to receive the balance consideration amount at the time of execution of the sale deed. The plaintiff was put in possession of the schedule property and thus, the plaintiff continued to be in possession of the same.
6. The plaintiff contended that even after expiry of the period of restriction, defendant No.1 was not ready and willing to receive the balance consideration amount and to execute the sale deed. Therefore, the plaintiff approached defendant No.1 on 24.01.1997 and demanded to execute the sale deed. Defendant No.1 refused to execute the sale deed and the plaintiff came to know that defendant No.1 with malafide intention got the suit land auctioned to defendant No.2. It is stated that the plaintiff was ready and willing to perform his -5- RSA No. 190 of 2010 part of the contract and issued the legal notice on 27.01.1997 calling upon defendant No.1 to execute the sale deed by accepting the balance consideration amount. Defendant No.1 refused to receive the notice. Hence, the plaintiff filed the suit for mandatory injunction directing defendant No.1 to execute the sale deed as stated above and also to hold that the encumbrance on the schedule property created at the instance of defendant No.2 is not binding on the plaintiff.
7. Defendant No.1 filed his written statement denying the contention taken by the plaintiff. It is admitted that the schedule property was granted in his favour and there was non alienation clause in the grant certificate. It is stated that defendant No.1 never approached the plaintiff with a desire to sell the property. Defendant No.1 specifically denied execution of any agreement dated 19.07.1989 and that the plaintiff has paid advance amount of Rs.12,000/-. Issuance of legal notice was admitted. It is contended that the plaintiff has not deposited the balance consideration amount nor he was ready and willing to perform his part of the contract. It is also contended that the suit of the plaintiff is barred by limitation. Therefore, defendant No.1 prayed for dismissal of the suit. -6- RSA No. 190 of 2010
8. Defendant No.2 has not contested the matter.
9. On the basis of these pleadings, the Trial Court framed the following issues for consideration:
"1) Whether the plaintiff proves that the defendant No:1 executed an agreement of sale on 19.07.1989 in his favour?
2) Whether the plaintiff is ready and willing to perform his part of contract?
3) Whether the plaintiff is entitled for a
decree as prayed for?
4) What order or decree?"
10. The plaintiff examined himself as PW1 and
examined PW2 and got marked Exs.P1 to P5 in support of his contention. Defendant No.1 examined himself as DW1 and got marked Exs.D1 and D2. The Trial Court after taking into consideration all these materials on record answered issue Nos.1 and 2 in the Affirmative and issue No.3 in the Negative.
Accordingly, the suit of the plaintiff came to be dismissed.
11. Being aggrieved by the dismissal of the suit, the plaintiff preferred RA No.4 of 2001. The First Appellate Court -7- RSA No. 190 of 2010 on re-appreciation of the materials on record came to the conclusion that the plaintiff has proved his contention and he is entitled for a decree directing defendant No.1 to execute the sale deed pursuant to the agreement dated 19.07.1989 by receiving balance consideration amount of Rs.4,500/-. Accordingly, the appeal was allowed vide judgment and decree dated 04.11.2009 by setting aside the impugned judgment and decree passed by the Trial Court and decreed the suit of the plaintiff. Being aggrieved by the same, defendant No.1 and two others have preferred this appeal.
12. Heard Sri Vijay Krishna Bhat, learned counsel for the appellants and Sri Mahantesh S Hosmath, learned counsel for respondent No.1 and Sri Suresh Subbaiah, learned counsel for respondent No.2. Perused the materials on record including the Trial Court records.
13. Learned counsel for the appellants submitted that execution of the agreement as per Ex.P1 is categorically denied by DW1. The plaintiff has not proved his contentions. Admittedly, the land in question was the granted land as per Ex.D1 dated 27.12.1978. There was a restriction on alienation -8- RSA No. 190 of 2010 for a period of 15 years. Under such circumstances, the contention of the plaintiff that Ex.P1 was executed on 19.07.1989 cannot be believed. It is hit by the restriction of alienation contained in Ex.D1.
14. Learned counsel further submitted that 15 years of restriction on alienation expired on 27.12.1993. The plaintiff has never made any effort to demand specific performance of the contract. The suit came to be filed on 01.03.1997 i.e., after the period of limitation. On that count also, the plaintiff is not entitled for any relief. The Trial Court on proper appreciation of the materials on record has rightly dismissed the suit. The First Appellate Court without proper appreciation of the materials on record came to an erroneous conclusion that the agreement is not hit by the restriction contained for alienation, the suit is not barred by limitation and that the plaintiff was ready and willing to perform his part of the contract. The impugned judgment and decree passed by the First Appellate Court is perverse and the same is liable to be set aside. He has placed reliance on the decision in the case of Smt.Narayanamma and another Vs Govindappa and -9- RSA No. 190 of 2010 others1 in support of his contention. Accordingly, he prays for allowing the appeal and to restore the impugned judgment and decree passed by the Trial Court.
15. Per contra, learned counsel for the respondents opposing the appeal submitted that the plaintiff has proved the execution of agreement to sell which is as per Ex.P1. Even though there was restriction on alienating the property, such restriction would not hit the agreement to sell as there is no out-right sale or transfer of the property. The non alienation period ended with effect from 27.12.1993 and thereafter the plaintiff approached defendant No.1 requesting to execute the sale deed. He even issued the legal notice as per Ex.P2. But defendant No.1 was not ready and willing to execute the sale deed and therefore, the present suit was filed. Execution of the agreement, receipt of advance amount and handing over the possession of the property were proved by the plaintiff by examining PWs.1 and 2 and producing the relevant documents. In spite of that, the Trial Court committed an error in dismissing the suit without valid reasons. The First Appellate Court on proper appreciation of the materials on record decreed 1 AIR 2019 SC 4654
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RSA No. 190 of 2010the suit. There are no perversity or illegality in the impugned judgment and decree passed by the First Appellate Court. The same do not call for any interference by this Court. Hence, he prays for dismissal of the appeal.
16. Learned counsel placed reliance on the decisions in Parvatagouda Ninganagouda Patil and others Vs Guddappa and another2 and Syed Zaheer Vs C V Siddveerappa3 and contended that the Division Bench of this Court in both these judgments categorically held that execution of the agreement of sale within the period of restriction contained under Section 61 of Karnataka Land Reforms Act, would not invalidate the document. It is interpreted that what is barred under Section 61 of Karnataka Land Reforms Act, is only the transfer of land either by way of sale, gift, exchange, mortgage, lease or assignment. Ex.P1 does not fall under any of these categories. The sale deed is not executed by the defendants. Under such circumstances, the finding of the First Appellate Court is just and proper and prays for dismissal of the appeal as devoid of merits.
2 (2009) 1 Kant LJ 547 (DB) 3 LAWS(KAR)-2009-12-44
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RSA No. 190 of 2010
17. The appeal was admitted vide order dated 27.03.2012 to consider the following substantial question of law for consideration:
"Whether the lower Appellate Court was justified in reversing the finding and conclusion of the trial court to decree the suit in exercise of discretion under Section 20 of the Specific Relief act, 1963 though the agreement dt. 20.7.1989 Ex.P1 fixed 27.12.1993 as the time for execution of the sale deed of the suit schedule property and the Suit for specific performance was instituted on 1.3.1997?"
18. It is the contention of the plaintiff that defendant No.1 had executed the agreement for sale in respect of the schedule property on 19.07.1989 and on the same day an advance of Rs.12,000/- was received and the plaintiff was put in possession of the property. To prove this contention, the plaintiff examined himself as PW1. PW2 is examined to prove the possession of the property by the plaintiff. This witness was never cross examined by the learned counsel for defendant No.1. Nothing has been elicited from PW1 to disbelieve his version. Ex.P1 is the document referred to by the plaintiff as
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RSA No. 190 of 2010agreement which is in the form of an affidavit sworn to before the Notary public. The description of the property mentioned therein refers to the schedule property. Ex.P2 is the copy of legal notice dated 27.01.1997 which was admittedly served on defendant No.1. It is also admitted that defendant No.1 has never chosen to give any reply denying the contention taken by the plaintiff at the initial stage.
19. Defendant No.1 is examined as DW1. Interestingly, even in the chief examination, he never specifically denied execution of Ex.P1. Ex.D1 is the original grant certificate dated 27.12.1978 in respect of Sy.No.81, Block No.5 measuring 2 acres. There is non alienation clause restricting transfer of the property within 15 days from the date of the grant.
20. Ex.P1 is the affidavit sworn to by the defendant before the Notary public. Nothing has been elicited from PW1 to disbelieve his version. The possession of the property by the plaintiff is also not denied nor PW2 was cross examined by defendant No.1. Under such circumstances, it can safely be concluded that the plaintiff has proved his contention regarding
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RSA No. 190 of 2010execution of Ex.P1, acceptance of advance amount and handing over possession of the property in favour of the plaintiff.
21. Ex.D1 is dated 27.12 1978. 15 years of prohibition from alienation would expire on 26.12.1993. The plaintiff could have filed the suit seeking specific performance of the contract immediately thereafter. However, a legal notice was issued calling upon defendant No.1 to execute the sale deed. In spite of service of notice, defendant No.1 has not replied to the notice nor complied with the demands made therein. Therefore, the suit came to be filed on 01.03.1997. No specific defence was raised regarding bar of limitation in filing the suit. No specific issue was raised by the Trial Court. Even otherwise, no period is fixed under Ex.P1 for performance of the contract. It is not the contention of the parties that the time was the essence of contract. Under such circumstances, at this stage, learned counsel for defendant No.1 cannot contend that the suit of the plaintiff was barred by limitation.
22. It is also pertinent to note that the Trial Court answered issue Nos.1 and 2 in the Affirmative. However, by answering issue No.3 in the Negative dismissed the suit of the
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RSA No. 190 of 2010plaintiff. Defendant No.1 has not challenged the finding on issue Nos.1 and 2 before the First Appellate Court. Meaning thereby, defendant No.1 accepted the finding of the Trial Court regarding proof of Ex.P1 and ready and willingness of the plaintiff to perform the contract. Those findings of the Trial Court reached finality.
23. When the plaintiff is successful in proving the agreement - Ex.P1 and when he proves that he was ready and willing to perform his part of the contract, there are absolutely no reason as to why the relief is to be denied to the plaintiff. The only reason assigned by the Trial Court for answering issue No.3 in the Negative is that, it held that the plaintiff is not entitled for the relief claimed, as Ex.P1 was entered into within the period of 15 years and no previous permission was obtained from the Deputy Commissioner to enter into such an agreement. Therefore, it was held that the agreement - Ex.P1 is opposed to public policy within the meaning of Section 23 of the Contract Act and therefore, it is void.
24. The finding recorded by the Trial Court makes out a new ground as defendant No.1 has never raised such a
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RSA No. 190 of 2010contention. Moreover, the restriction contained in Ex.D1 is for transfer or alienation of the property but not for entering into an agreement to sell.
25. Even though learned counsel for the appellants placed reliance on Smt.Narayanamma (supra), the facts and circumstances of the said case is entirely different from the present one. As per facts narrated in the said case, initially a mortgage deed was executed in favour of the plaintiff within the period of restriction for alienation and thereafter within a month, the plaintiff and the defendants have entered into agreement for sale. Under such circumstances, the Trial Court held that the transaction is hit by Section 61 of the Land Reforms Act, which was upheld by the Hon'ble Apex Court.
26. Learned counsel for the respondents placed reliance on the decision in Parvatagouda (supra), wherein, the Division Bench of this Court discussed at length on the question as to whether the bar under Section 61 of the Karnataka Land Reforms Act, would come in the way even in respect of an agreement for sale and held in para 29 as under:
"29. Now the question is as to whether the bar under Section 61 would come into play even
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in respect of agreement of sale. We see no substance in the contention of the learned
counsel for the defendants that the defendants in the light of prohibition under Section 61 could not have entered into agreement of sale. The prohibition provided under Section 61 of the Karnataka Land Reforms Act, is from transferring the property by way of sale, gift, exchange, mortgage, lease or assignment. The prohibition under Section 61 does not apply to agreement of sale. Therefore, Section 61 does not prohibit the tenants to whom occupancy rights have been granted from entering into an agreement of sale. The agreement of sale does not amount to transfer of interest or right in the property. It merely creates a right to seek enforcement of contract. Under the agreement no interest or right in the property is transferred in favour of the prospective buyer. Therefore, Section 61 does not come in the way of tenant entering into an agreement to sell the property. It is for that reason only under the agreement the defendants agreed to execute the sale deed after the expiry of 15 years from 1983. Under these circumstances, there is no substance in this contention also."
(Emphasis supplied)
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RSA No. 190 of 2010
27. Ex.D1 is the grant certificate issued by the Tahsildar, Holenarasipura Taluk in favour of defendant No.1. Therefore, it is a grant under Karnataka Land Revenue Act, 1964. As per clause-7 of the grant certificate, there is bar for alienation of the property for a period of 15 years from the date of grant certificate i.e., from 27.12.1978. The law laid down by the Division Bench of this Court in Parvatagouda (supra), the agreement to sell does not amount to transfer of interest or right in the property and entering into an agreement for sale will not amount to alienation. Thus, there is no violation of any of the conditions contained in Ex.D1. Therefore, I am of the opinion that the said finding of the Trial Court on issue No.3 is not just and proper and it is perverse and not based on any materials. The First Appellate Court on proper appreciation of the materials on record, decreed the suit of the plaintiff. I do not find any reason to interfere with the impugned judgment and decree passed by the First Appellate Court. Hence, the substantial question of law is to be answered in favour of the plaintiff and against the defendants.
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RSA No. 190 of 2010
28. In the result, I proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 04.11.2009 passed in RA No.4 of 2001 on the file of the learned Additional District Judge at Holenarasipura, is hereby confirmed.
(iii) The judgment and decree dated 18.11.2000 passed in OS No.36 of 1997 on the file of the learned Civil Judge (Jr.Dn.) and JMFC, Holenarasipura, is hereby set aside.
Consequently, the suit of the plaintiff is decreed as prayed for.
Registry is directed to send back the Trial Court records along with the copy of this judgment.
Sd/-
JUDGE *bgn/-