Karnataka High Court
Sri D Ganappa Shetty vs Smt Monica D Souza on 13 September, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
'Lg: V'
IN THE HIGH COURT OF IEAT?NATAI{A AT BANGALORE
DATED TH1S THE 13TH DAY OF SEPTEMBER 2010
BEFORE
THE HON'BLE MRJUSTICE JAWAD T' %
R.S.A.No.963/2009 (s.P1EEE.AAMA':E.%T%AAA1f_1:A %
BETWEEN: A A
SRI.D.GANA1?§X SHETTY
S/O DOOMANNA sHE'3:*I*Y,~
AGED ABOUT 58 YEARS, ' E --
RESIDENT OF DABLI..BAKEIvL%RU;"-»
HAREKALAVILLAGE, A
MANGALORE-583257.
...APPELLANT
[BY ,)
A A A A'
1. _. A SMT'.MON§*CA- USOUZA
A W/O LATE_ALEX D'SOUZA,
.MAJOR.
* ..[i$1j1~ém{iA D'SOUZA
D [Q LATE ALEX D'SOUZA,
MAJOR.
_ 3. A 'AGNES D'SOUZA
D / O LATE ALEX D'SOUZA,
AGE MAJOR.
rig"
/
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4. SEVERENE D'SOUZA
S/O LATE ALEX D'SOUZA.
AGE MAJOR.
5. JACINTHA D'SOUZA
D / O LATE ALEX D'SOUZA.
AGE MAJOR.
ALL ARE RESIDENTS OE
BALIPALACHIL, HAREKALA 1
VILLAGE, MANGALORE--5:?33'2._87.
[BY SRLPUNDIKAI ISWARAEHIAT, ADM)
TI-{IS RSA Is FfLE_D U)S_ f1*I:.Q .("jI+"..cPc,V'AGAINST THE
JUDGMENT AND DE'('3R'.1i".'E--' IDvAfiEI§SI'I4*__»Q3.--:;o09 PASSED IN
R.A.No.69/2003 QN FEE'QI?_THE..:iI"~'ADDi'I'IONAL CIVIL
JUDGE [5R,'DJfi?)"' DISMISSING THE
APpEAL1AND'.;cQNIfIRIV;ING_THE JUDGMENT AND DECREE
DATED e..o'1.2VQoS,_PA.SS.ED IN O.S.N0.476/1999 ON THE
FILE 0"E_i'I'IIE,I*.ADDIT10NAL CIVIL JUDGE (JRDN),
M€\NAGAL0RE.IV" A
R.S.A"--€0E\/IING ON FOR ADMISSION THIS DAY,
» ;'JAv~*AD.RA'HI_M J, DELIVERED THE FOLLOWING:--
JUDGMENT
. unsuccessful plaintiff is in regular Second A appevéii aggrieved against the judgment and decree in A0"
. . , R,A.No.69/2003 dated --?ifO3.2009, whereby the dismissal of the suit in O.S.No.4'76/1999 by the judgment dated 6.01.2003 on the file of 1 Additional Civil Judge (Jr.Dn), Mangalore, has been .
2. The appeal is posted f0rpAadrnis_s'i0n:.i:
of both sides the appeal is admittedi' ll final disposal.
3. Heard. From the ea_se-.papVers,.'the:vfact?ual matrix manifesting reveals ;pla.i:ntiff/'appellant herein filed"Vallllsnitfvjn seeking as a principal relief ibr*~pfe'rformance of the sale agreement bet/4,*.reen of the defendant and himself . V. Adated"?l2',l97l(3lin respect of the property described in tlleglis-ehe'ddle;*' It is urged, the sale consideration was ii':~:ied,._at -§§ls;825/-- out of which he paid RS335/-- on the .. date agreement and subsequently, the balance ieettleeneideration of RS490/-- on 20.01.1977, thereby "discharging his obligation under the sale agreement. It we -4- is further averred that the sale transaction could not be completed and deed of sale could not be executed as the same was impermissible as a property granteddfby'-,the Government. The proceeding bearing': 'N pp 2'7/72-73 (3) s2(46) dated 6.os3;ia--74 hacdi_ddustipmatéa the ; 2 minimum period of restraint a'on"-.aiienatiyon., as"--;fi~fte'en years and in pursuance said grant;
has issued a 'D' notice onowA18.'1dVi,1:. 5 to dA1'ex'i3'souza as an allottee of the property was inafienab1e3~fcdr:.a' -perA,i_.od__. as per the terms of the thedhyendee, the Vendor [Alex D'souza}'-deliveredpossession to him and since then, he is in possession of suit schedule property, in part " r Vp'erfor1'na'11ce.
further urged that after the inaiienable peri.od:_ of fifteen years was over, the vendor had to x_co'mp1ete the transaction but by then during the inalienable period Alex D'souza had died. After the -5- period of fifteen years was over, the respondents who were the successors--in--tit1e were called upon to egcecute the sale deed, which was not complied with and' was also sent to the legal notice sent in the The plaintiff filed the suit.
5. The defendant,s__ put'-in appearance-E contended among other groV1ind_s, the 'suit is not maintainable and 'i.s"':p«--hope1esvs1y_'loarred limitation. The learned trial Judge._f1¢aIned issuvespvregarding proof of executionlevf of "property and proof of part;Aperforinancei said agreement, casting the burdenlhijlftthel' establish the same. it The led -evidence in respect of their ' and the plaintiff examined himself and also " .eXa1n1'ne'd two witnesses namely Sri.K.Jayarama Konde and. V1E':ri;V15.Padmanabha Hegde. The trial Court after Vclonsidering the evidence on record and noticing the terms of agreement was satisfied that time was not the 0""
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essence of the contract and held it was enforceable only after lapse of period of 15 years, as during that_..period, there was restrain against the sale. Ho'aVre'ver.,."'v».on noticing that the plaintiff had not pursuing the legal remedy openbltot hilTI1 ti' entitled to any relief. The issue asV_l.regarr_ds' L possession in favour of th~ej"plaintiff_l_'bgzhthleglldeeeased vendor was also t'tlfg<3llp.'p.laintiff§l The appeal preferred by the plaintiff by the said judgment andfflecree also met with the aupvpellate Court affirming the judgrnent of the in toto.
leari:e'd__I(:ounsel for the appellant would contend that "the___tria1 Court has seriously erred in not ' as far as the plaintiff is concerned, he had llperforrneld his part of obligation under the agreement and paid the entire sale consideration as early as in the Q1' 19?"? itself. Therefore € was no other obligation ..7..
cast on him to be performed in pursuance of the agreement with vendor-- Alex D'souza and after his demise, the respondents were required to.V~«eXec'ute,_the deed of sale immediately after the Since there was a statutory bar res.trainirig.'alienation of l' the property for a period-.___of defendants having failed transaction, notice was issued to perform their part of the riot complied. He submits agreement physical lhiifaslzdelivered to the plaintiff, He submits that time was not ., the kessence "of '":tI'1e contract. Hence, plaintiff
- < pg-pprotached thelfllourt on refusal by the respondents to part of the agreement. He submits that the p_i'aintiff had become aware of the refusal to comply .. v\{ithl'the obligation under the agreement only upon his l issuance of notice and therefore, the three years period has to be reckoned from the date of issuance of or gflv _8_ service of notice upon the defendant which is somewhere in the year 1999. He submits that_wi.thin three years from the date of demand and suit has been filed before the trial Court.
8. I am unable to agree W_ft.hthe e'onten_'tions'_'Lirged' . 1 by learned counsel for the afipelianlt reasons. it 9 9 9 if if
9. Admittedlynthe agreVe.r_n.ei1t'.in.'questioh is dated 7.12.1976 and if Ilt3erig5dflof»l.:ynon--a1ienation is reckoned this in the year 1999';._ the plaintiff had three years time tofseek for exfectrtion of the agreement of the sale t.1fa*ns_acti,on. Of---«Course. the covenants in the said 9 not indicate any period of time and no 'time \V2cra'xs'3-__i'13<ed but the fact remains that on the facts adrrhitted to by both the sides, the contract of sale had '~to:be enforced soon after the period of 15 years is over. __§That means. the agreement had become enforceable jkll/' ..9..
somewhere in the year 1990 and right accrued to the plaintiff in the year 1990 to demand execution-'-of the sale deed. Article 54 of the Limitation Act, with time limit for the specific performance.. contract states that the timeVthree~._year.s_" 7 run from the date fixed for the.'performance"or3--. such date is fixed when the:"pl_aintiff.has-3 noticed that performance is refused. Saince; n_o:'s-pecific'date is fixed for the performance of sale in the present caslefiihe eizecutionl' deed ought to have_'VbeVen' thleuplaintiff and complied with by of.jthe"~..d'eceased vendor immediately on expiryuof period non--a.lienation of 15 years. The the respondents herein did not perform their .,.".of._:Vthiemagreement would render the contract eriforceablef in the year 1990 itself. The refusal by the r.1ie_.spo'ndents to perform their part of the agreement after 9 thejyear 1990 has to be construed as notice of refusal of "fperforrnance by the respondents herein. Therefore, the fliilv wlgw year 1990 has to be reckoned from which the period of limitation begins to run. The present suit filed"-ion the year 1999 nearly nine years after the sale become enforceable is certainly barred
10. Therefore. I find no :i'n«;any'iof T. raised in the appeal. As Vsxgch V4tA}l(i.'TEi.,<_§1'€(3lV'i'i§€iV'1.'vVE:'.f1El9; immimnedbyAnmmEmfififimihfimfinnaE'nm§ would be no gain the plaintiff after a lapse of the appgag is dismissed" <:}ieV_oid4"0f1zneritsA._ it .....
Judge PB~R