Smt Parvathamma W/O Late Byrappa vs Smt Uma W/O Late Muniraju on 4 November, 2010

[Cites 8, Cited by 5]

Karnataka High Court

Smt Parvathamma W/O Late Byrappa vs Smt Uma W/O Late Muniraju on 4 November, 2010

Equivalent citations: AIR 2011 KARNATAKA 58, 2011 (1) AIR KANT HCR 615, (2011) 4 ICC 360, (2011) 3 KCCR 2345, (2011) 2 KANT LJ 620

Bench: Anand Byrareddy

 

IN THE HIGH COURT OF KARNATAKA AT BANGALORFDA4

DATED Tms TEE oA,3"DAY OF ~mv~«;>e R f_    *

BEFORE:

THE HON' BLE MR. JUSTICE. ANA?aiD 'B.YRAR3§,.DDYV  

REGULAR SECOND ARPE'AE "r~Ig. :502.VQE20d8;  

BETWEEN:

1. Smt. Parvatharﬂrnja _
W/0 Latgﬂyséapipva-;_ ~  _ _
Aged abcgt f.§.5'_yea'1'"~s,.  "

2. Red.:(v1ap?pf§1TA" H V  
S/0 Late By'rappfa.,%4 %  
Aged about 41.=yt:a.ifs, _ " 

_ V3. N;ara'yanaDpa .,  V' 

R,  N_a:ay.answa'my-----~« "
. ' 2 ,S/'0 _La.t§:. Byzfappa,
  _  .abdutD_ 38 years,
- % 'NRak1aidha_na, Doddi.

 ' All are R_c§ir.1i:ig at N0.135,
"   *--R"amanna Layout, Indiubele Road,
'  ._ Athibeki Hobii, AnekaiTa1uk
j EEaRnga1aEre Rural District.  APPELLANTS

J '_ '(B'yVShri. D.R.P. Babu, Advocate)

%



I\)

AND:

1. Stnt. Uma
W/0 Late M uniraju,
Aged about 26 years,

2. Kum. Shwetha
D/0 Late Muniraju,
Aged about 10 years,

3. Kutrt. Divya ' __ 
D/0 Late Munlraju '

Aged about 9V_years,    A

4. Master Ki;f2t1'1f,t.t:.' . A 
S/0 Late«'M!;_ni-rajftt, '   

Aged aD9u:i._8;"3?eafs;    A

Respondents 2 ti)'AvAi*-ivate:'be1ng'm._i_t10r,s

Are represented by ttie'i'r.ri1othe,; and Natural guardiém. Smt. Utna 13' Respondent-..he1v'vein.-._ ' ' ' d @ Aﬁandappa, T_S;'e:'L;;te.Bett';:ppa " ._ Aged«2ibQutj:;38 years, An are""Res'~tdi1ig at ~ _ I'~Ia1Iaiaha't1a. Doddi, * Indiezweadipura Dakhfe, A ' -Ar1e*3:<aI Taluk.

...RESPONDENTS dated £11988 in respect of the suit properties and a sale consideration of Rs.12,000/-- and had agreed _to~execju~te a sale' i deed in respect of the suit properties the"

Karnataka Prevention of Fragment.atio--n_l'and Consolidatibnillof'. Holdings Act, 1966 (Hereinafter to as"'-- thel'lFragmentation Act' for brevity). The Karnataka Act No.4/199] and was Gazette on 05.02.1991. having failed to execute on repeated demands, the plaint_iff'--'ldated 9.10.1995, which was returned unservedv.and.thereatéter, the suit was filed. ,_*""§'1heLidevfendalhts»--...----contested the suit denying the very .l'eXecution"'--olf :,tl1eV"agreement of sale and the receipt of sale considxerationllwghile also contending that in any event, the suit barredby limitation. The suit was dismissed on the ground was barred by limitation. An appeal having been filed 'before the lower appellate court, the same was allowed which is sought to be questioned in the present second appeal. 3 at (2) when the appellant was a willing party illegal contract, could the agreement be set a,side"ii ii at the instance of the appellant?

The learned counsel for<the._Vparti'es these-it substantial questions of law.

5. The learned Counsel' foiappe.llairI,ts'i"would argue that the lower appellate' has inislconsstrued"tl'ie scope of Article 54 of the Lirriitatiopn lowerifappellate court has applied the second part in Column 3 of the Schedule in relation to lflkrticlle 54* w1iic»hV provides for the time from which the _ V period l1mitatio'n"b.eg_insAto run. Article 54 provides for a period Woflii'n.itationAof.,three years for a suit for specific performance of a cont-ractlland time from which the period begins to run is the ' date fixed. for the performance or, if no such date i.s fixed, when .:_the plaintiff has notice that performance is refused. In the instant it is contended that the agreement was a contingent contract had prescribed the time for performance as the date of repeal % the plaintiff who claimed to be in possession of theAv..suit.;n1'so'peit.y was in the face of revenue entries standing in" 4oflt'he,V respondents upto the year 2005 and is thjeieafter-..'that..,th.e plaintiffs have managed to hay-3_<_the entries theirl. favour.

The counsel for reliance on the following authorities; A i it

a) Mannalal Natl: K/tetan and 01'/1ers, _( it it it it 19 1 Narartzj = Navrang Studios, AIR 1981 SC 537, Ntrfcfil Kramer ct1ia'~-(H-!ter.s vs. II Addzriortal Distrz'ct Judge, 9 was asar1,as.1. AIR 1994 ALL 298, ~ to 'address. .ithie'substantial questions of law and would submit tlrat the atﬁpeals be allowed.

The learned counsel for the fifth respondent, on the other i V it would contend that the Fragmentation Act would not apply /3 by way of post, was returned as refused, the defen(xiaﬁ:t_se:4",we:e deemed to have been served and the refusain__ﬁo'~..,pe:5fofm "the. contract is, therefore, deemed and the oa_L1se;of zietion'~arose.,,,.ot1 such refusal. He would pIace_rreliance._o'I1 a Iafgee .11um§§erVdofV"e. decisions which are as foI1ows:~ V V (1:1) 11.11/1. Knfsxma Reddjrziiﬁs. Raddy, AIR 2001 KARNATAKA 442 : H

(b) Pra.s/aanr/1._l#7.:'v',1,:' and others, (6) Gun14:*a11rE)bc1V:; "land Others Vs. Anton Ellis Fare! and 01?1';.e;;§, 20f0514,tR sew 1377 DaA§1iz11a'e:;' Naik and Others. Vs. Appasaheb V.VDoI511ifaya'~v.éi;2 ;12a1{, A112 2008 scw 1183

(e) .'G;111dapari'1'l:{1qz1'hav Sawcmt (D) by LRS. Vs. Dattur Madhav sawanz, 2005 AIR sow I189 "'./f)'V'-.,S;.'3Io11'/aniariand and Others Vs. KR. Mu:/mgopal (D) and Erithe-15.5', AIR 2006 so 40 5,!) State o}fM. P. Vs. Scmgram and others, AIR 2006 SC 48 3» .1} (F2) Syed Zalzeer and Others Vs. CV. Sicidveerappczl' KAR 765 (1') 193.5. Rajcm Vs. R. Mohan, [LR 1995§"k'AR 4,92«% * % A 'k

(j) K. Sambasiva Ran, vs. P. Bc;;;ga:*u Rqjzg; A1RT,»i'Q9354Mg;Nij>HR[1ifv PRADESH 393

(k) R. K. Parvatharaj Ga;p%:4jvs.'%V%1<. Ready, (2006) 2 SCC 428 V V (I) Puran arm!' aridabad, (2006) 2 SCC433 %%%% '

(m) Gmﬁrqo 992 KAR 429

(n) Y()gan2bi/ea-.\_V7s;. N;1rf9fii.gh;'...iLR J 992 KAR 717 .»-(Q) "VT/Is';v~----Smr. Jayamma and Others, AIR 1980 :rjAKA = (

(p) [\'§;"llan;1(g3'()f,e'i';ra'(; Somanagouda Patil Vs. Rudragouda and o mer.s, AfR_:l'3978 KARNA TAKA 61 "-(§]')v'._l€c:mTc.%kka Vs. K.Mum'yappa, (2006) 2 SCC 428 8 26 The said decision was referred with approval by the Court in the case of Ramzcm 125. Hussaini, AIR 1990 _ is on that reasoning that this court he.ld__thatthey--:pveriod'_'~.Qf.,V limitation would run from the date of"«yrefusal contract and therefore, the suit be.i"ne_].(i' by limitation. ' V ' V i i In Gtmwantbhai Mttlcfztziat us. Farel, supra which was an appeal the suit for specific wiars 2.9 years after the agreementiof for performance of the agreementuais beiiigib-aired--buy'«limitation, which was decided as a preli1r{1n'arry issue,__i"Thei'apex court held that the question of 3l.imitat_ior.__. hayingregard to the facts and circumstances could not haye. Been ideic_'i_vd_edi,' a preliminary issue and that it warranted a trial and allowedithe appeal.

2% In Syed Zaheer and others vs. C.V.Siddveerappa, supra, a division bench of this court has held while dealing with appeal, arising out of a suit for declaration that an ag;-=een§eﬁt * the year 1991 was enforceable as the-y""'arep possession of the suit schedule properties-..__ appellants were the plaintiffs contended that 'vwereh 'in.:deb_iI:

advantage of their dire. "the first respondent had exploited the and a deed of agreement of sale: was under that agreement possession. It was further a non--alienation clause which prohibited the's_a}.e_of'thesuliitjproperty for 1.5 years when the property 5-was'granted'---€0...l.h9» holder and that the agreement which was eXesute.d"~idu..ri'11g the said period was in violation of the term i i' and therefore', reement was unenforceable. It was 0 ined b . \ . V. g P Y division bench of this court that notwithstanding the non- il clause under which the grant was made to the original iffholdelr to enforce the contra% all that was necessary for 33 agreement, no such fragment shall be leased to any_"' person other than a person cultivating any land, wlj:i'cn . if is contiguous to the fragment.

(3) No such fragment shall he""'sub,~dii/ideidl partitioned." = 7 ' " ' In the absence of any pleading or evidence that the:"par'iiels"'were contiguous owners and the sale w'alsl_per1nis's._ipble --fthe're was a clear bar under the above proy_iVsVi'o.n. A The QpiRl'On:"3ﬁ.PreS£5¢d~ in Ningegowda 's case supra, with refererifc.eiV.to'iSection 6 -of the Act, to the effect that what was prohibited is_af'transfer or partition or a subdivision so to f:1ii;ateli'a Vfragrnent,___bat if the land was already a fragment fS.ect«io"n~.o'=.ean,not" -be a bar, is hence inexplicable. Section 5 certainlji is .a*:b_af in respect of a sale, lease, subdivision or f"~=._pa.rtition "ofT~a fragment ~ except as provided therein. It is not ,nie,rely_lf.--'the creation of a fragment by the transfer, partition or ':"snb=<:diVision, that is prohibited under the Act. Therefore, a if " "transfer of a fragment being expressly prohibited, the contract is % void ab initio and cannot be enforced at all. It is infeie.\'fant.."

whether the parties intended that the contract could V' at a later point of time «~» which was again ini'C'onteymp1a.ti'oé_i_ of '--ti'ie."; repeal of the Act, an uncertain event. Reliance "in'=,the 'V above decision. on a Division Bench' as the Division Bench was 7,8 ehe"i9 of the Bombay Preventionpsof '&'a_ncl':-.Consolidation of Holdings ACZL-V were held not applicable to-'the"fa.Ct;s*1Q_f.t'tiat' ease'. . t In sollfarl as the'"whether the appellant being a __willing_{plait.y to tlieV_l_Villlegail agreement of sale, could negate the AVs_anie«.and aid of the court in questioning the impugned judgtnent, Vthe"_q.ue_stion may not be relevant as the appellant or the é concernecl Viespondent cannot rely upon the same as it was void ab 5 35 The substantial questions of law framed are answVe1'e_dFfa.s above. In the resuit, the appeal is aiiowed, the decree of the first appellate court is set a1:1d'A~tEe 'sui:._i's:us_' dismissecl.

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