Karnataka High Court
Sri S Prabhakar Rao vs Sri Nanjunda Reddy on 25 April, 2024
1 RSA No.140 OF 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
R.S.A.NO.140 OF 2009
BETWEEN:
1. SRI S PRABHAKAR RAO
SINCE DEAD BY HIS LRS
a) SMT. LALITHA
W/O LATE S PRABHAKAR RAO
AGED ABOUT 53 YEARS
b) TEJOVATHI
D/O LATE S PRABHAKAR RAO
AGED ABOUT 30 YEARS
c) VIDYAVATHI
D/O LATE S PRABHAKAR RAO
AGED ABOUT 28 YEARS
LRS ARE RESIDING AT HULIMAVU,
BEGUR HOBLI, BANGALORE SOUTH TALUK,
BANGALORE DISTRICT
...APPELLANTS
(BY SRI. JAGADISH D HIREMATH, ADVOCATE )
AND:
SRI NANJUNDA REDDY
S/O MUNI REDDY
AGED ABOUT 56 YEARS
RESIDING AT ADIGONDANAHALLI VILLAGE,
ATTIBELE HOBLI, ANEKAL TALUK - 562 106
BENGALURU DISTRICT
RESPONDENT
(BY SRI. M.S.VARADARAJA, ADVOCATE)
2 RSA No.140 OF 2009
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC
PRAYING TO ALLOW THE APPEAL WITH COSTS SETTING
ASIDE JUDGMENT AND DECREE THE JUDGMENT AND DECREE
OF THE FIRST APPELLATE COURT PASSED IN
R.A.NO.133/2003 ON THE FILE OF THE DISTRICT AND
SESSIONS JUDGE, FAST TRACK-V, BANGALORE RURAL
DISTRICT, BENGALURU DATED 11.11.2008 BY CONFIRMING
THE JUDGMENT AND DECREE IN O.S.NO.193/1996 DATED
06.03.2003 ON THE FILE OF THE PRL. CIVIL JUDGE (JR. DN.)
& JMFC, ANEKAL IN THE INTEREST OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
15.03.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by the defendant challenging the impugned judgment and order passed by the First Appellate Court allowing the appeal filed by the plaintiff by reversing the dismissal of suit for specific performance.
2. For the sake of convenience the parties are referred to by their rank before the trial Court.
3. Plaintiff filed the suit for specific performance, to direct the defendant to execute sale deed as per the sale agreement dated 12.04.1983, contending that 3 RSA No.140 OF 2009 defendant being the owner of suit schedule property agreed to sell the same for Rs.6,255/- and received advance of Rs.5,000/- and put the plaintiff in possession. He agreed to receive the balance at registration. In the light of restriction under the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 (hereinafter referred to as 'the Act'), he agreed to execute sale deed at appropriate time. On 09.10.1983, for his urgent requirement, defendant received balance consideration of Rs.1,255/- and made endorsement in the sale agreement in the presence of witnesses. After repeal of the Act, when plaintiff approached the defendant to execute the sale deed, he went on postponing and now trying to alienate the suit schedule property to third party in view of escalation of prizes of immovable properties. Plaintiff got issued a legal notice dated 22.01.1996, but defendant has not come forward to execute the sale deed and hence the suit.
4. The defendant has filed written statement admitting that he is the owner of suit schedule property, 4 RSA No.140 OF 2009 but denied that he has executed sale agreement dated 12.04.1983 and received advance of Rs.5,000/-. He has also denied of having received balance consideration of Rs.1,255/- on 09.10.1983. He has also denied that after repeal of the Act, complainant approached him with a request to execute sale deed and he went on postponing and ultimately refused to execute the sale deed. With an ulterior motive to knock off valuable suit schedule property, plaintiff has filed unrighteous suit and sought for dismissal of the same.
5. Based on the pleadings, the trial Court framed issues.
6. Plaintiff got examined himself as PW-1, one witness as PW-2 and got marked Ex.P1 to 6.
7. Defendant examined himself as DW-1 and relied upon Ex.D1 to 12.
8. After closure of evidence, at the instance of the plaintiff, the trial Court appointed handwriting expert as Court Commissioner to examine the disputed 5 RSA No.140 OF 2009 signature of defendant in the sale agreement at Ex.P1 with that of his admitted signatures in Ex.P5 and P6 and submit report.
9. The Court Commissioner has submitted report. The report is favouring plaintiff. However, defendant has not filed objections to the Court Commissioner's report. He has also not requested the trial Court to summon the Court Commissioner for cross- examination.
10. Though the trial Court upheld the contention of the plaintiff by answering issue Nos.1 and 2 in the Affirmative, it has dismissed the suit as barred by limitation.
11. Aggrieved by the same, plaintiff filed R.A.No.140/2009 before the Sessions Court and vide the impugned judgment and decree dated 11.11.2008, the First Appellate Court allowed the appeal, decreed the suit and directed the defendant to execute the sale deed. 6 RSA No.140 OF 2009
12. Aggrieved by the same, defendant is before this Court contending that the impugned judgment and decree is opposed to law, facts, probabilities of the case on hand and liable to be set aside. The First Appellate Court failed to appreciate the fact that the Act was repealed on 05.02.1991 and in the light of the admission in the plaint that immediately after the said repeal, plaintiff approached the defendant to execute the sale deed, the suit filed on 19.04.1996 is clearly barred by limitation and therefore impugned judgment and decree is not sustainable. The plaintiff has failed to prove that legal notice is duly served on the defendant. After appreciating the oral and documentary evidence in right perspective, the trial Court had dismissed the suit and the First Appellate Court erred in reversing well reasoned judgment and order and prayed to allow the appeal, set aside the impugned judgment and decree of the First Appellate Court and restore that of the trial Court.
13. In support of his arguments, learned counsel for defendant has relied upon the following decision: 7 RSA No.140 OF 2009
(i) Smt.Pravathamma and Ors. Vs. Uma and Ors. (Parvathamma)1
14. On the other hand learned counsel for plaintiff supported the impugned judgment and decree and sought for dismissal of the appeal.
15. In support of his argument, learned counsel for plaintiff has relied upon the following decisions:
(i) H.M.Krishna Reddy Vs. H.C.Narayana Reddy (H.M.Krishna Reddy)2
(ii) Munishamappa Vs. M.Rama Reddy & Ors.
(Munishamappa)3
(iii) Shrikrishna Keshav Kulkarni and Ors. Vs. Balaji Ganesh Kulkarni and Ors.
(Shrikrishna)4
16. Vide order dated 01.12.2010, this Court has framed the following substantial question of law:
"(1) Whether the transaction between the appellant and respondent was barred, having regard to the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1956?"1
2011(3) KCCR 2345 2 LAWS (KAR) 2001-4-43 3 Civil Appeal No.10327/2011 [2023 SCC Online 1701] 4 AIR 1976 BOMBAY 342 8 RSA No.140 OF 2009
17. Vide order dated 19.02.2024, the following two additional substantial questions of law are framed:
"(i) Whether the First Appellant Court is justified in coming to a conclusion that the contract is uncertain and therefore, the first clause of Article 54 of the Indian Limitation Act is not applicable?
(ii) Whether the First Appellate Court is justified in coming to a conclusion that the trial Judge was wrong in holding that the suit is barred by limitation?"
18. Heard elaborate arguments of both the sides and perused the record.
19. Having regard to the fact that since this is the second appeal and only substantial question of law is required to be decided, the findings of the trial Court as approved or modified by the First Appellate Court have become final. Therefore, only the substantial question of law and additional substantial questions of law are required to be answered.
20. The substantial question of law framed on 01.12.2010 is to the effect whether having regard to the 9 RSA No.140 OF 2009 provisions of the Act 1956, the transaction between the plaintiff and defendant is barred?
21. This issue is settled by the Hon'ble Supreme Court in the matter of Munishamappa. It was an appeal arising out of the judgment and decree of this Court in RSA.No.1082/2008 dated 10.11.2010. It was a suit filed by plaintiff for specific performance of contract dated 28.05.1990, contending that due to pendency of the Act, registration could not be effected. Defendant filed written statement, denying execution of the sale agreement, etc. The trial Court dismissed the suit on 28.09.2004 on merits as well as barred by limitation. The Regular Appeal filed against it by the plaintiff came to be allowed and the suit was decreed.
21.1 The Regular Second Appeal filed by the defendant was allowed by holding that in view of the pendency of the Act, the sale agreement in question was barred. Allowing the appeal and setting aside the judgment and decree of this Court, the Hon'ble Supreme Court held that defendant never pleaded that the 10 RSA No.140 OF 2009 agreement was in violation of the Act and therefore no issue was framed to that effect. Consequently, the High Court was in error in holding that the agreement to sell was in violation of Section 5 of the Act. It further held that agreement to sell is not a conveyance; it does not transfer ownership rights or any title. What is prohibited or barred under the Act was lease/Sale/Conveyance or transfer of rights. Therefore, the agreement to sell cannot be said to be barred under the Act.
22. This decision is applicable to the case on hand, wherein also defendant has not pleaded that the sale agreement is in violation of the Act and thereby it is barred. Therefore, in the light of the decision of the Hon'ble Supreme Court in Munishamappa, substantial question number one would not survive for consideration, and it is answered in the Negative.
23. Now, coming to the additional substantial questions of law. These issues are settled by the Co- ordinate Bench of this Court in H.M.Krishna Reddy (RSA.241/1997). It was a suit filed by the plaintiff for 11 RSA No.140 OF 2009 specific performance of contract by contending that defendant being the absolute owner executed sale agreement dated 31.10.1975, for Rs.23,000/-. The entire sale consideration was paid and plaintiff was put into possession. The sale deed was to be executed after repeal of the Act, alleging that after the repeal of the Act, despite repeated request and issue of legal notice, defendant has failed to execute the sale deed and hence, plaintiff filed the suit. Defendant disputed execution of the sale agreement and parting with possession. He also claimed that suit is barred by limitation. The trial Court decreed the suit. The First Appellate Court concurred with the said findings and dismissed the appeal filed by the Defendant.
23.1 The Co-ordinate Bench of this Court dismissed the second appeal by holding that when no definite date is fixed within which the specific performance is to be made and it is stated that Sale deed is to be executed after repeal of the Act, which is an uncertain event, then the second part of Article 54 is 12 RSA No.140 OF 2009 applicable i.e, limitation would begin to run when the plaintiff has notice that performance is refused. Even though the agreement state that the Sale deed is to be executed after the repeal of the Act, since it is an uncertain event and the party is not in a position to know of the occurrence of the uncertain event, then later part of Article 54 is applicable and limitation begins to run when the plaintiff had the knowledge of refusal by the defendant to perform his part of contract. In the present case also, on facts it is held that the plaintiff came to know about the refusal of defendant to perform his part of contract when the notice sent to him is returned unserved. Having regard to the fact that the contract is uncertain and therefore the first clause of Article 54 of the Indian limitation Act is not applicable.
24. In Shrikrishna also the co-ordinate Bench of Bombay High Court held that in the absence of any indication when the attachment would be raised, it had to be treated as a case in which no date was fixed for performance of the contract. To such a case, the starting 13 RSA No.140 OF 2009 point of limitation was when the plaintiff had notice that performance was refused. In this case that date was when one of the defendants sold one house under a registered sale deed. On that day the plaintiff could be said to have been posted with the knowledge that the defendants were refusing performance of the contract and the suit having been brought within three years from that date was within time.
25. In Parvathamma, relied upon by the learned counsel for defendant also, the Co-ordinate Bench of this Court held that the sale agreement in question was expressly prohibited by the Act and therefore, it was void ab initio and could not be enforced. However, in the light of the decision of Hon'ble Supreme Court in Munishammappa, the findings in Parvathamma, is no longer a good law and therefore, no reliance could be placed on it.
26. In the above facts and circumstances, the limitation begin to run after the refusal by the defendant to perform his part of contract and therefore the suit filed 14 RSA No.140 OF 2009 was within limitation. Consequently, the trial Court erred in holding that the suit is barred by limitation and accordingly, additional substantial questions of law No.1 and 2 are answered in the Affirmative.
27. In the light of findings on the substantial question of law and additional substantial questions of law, this appeal also fails and accordingly the following:
ORDER
(i) The Regular Second Appeal filed by defendant is dismissed.
(ii) Consequently, the impugned judgment and order of the First Appellate Court is hereby confirmed.
(iii) The Registry is directed to send back the trial Court and First Appellate Court records along with copy of this judgment forthwith.
Sd/-
JUDGE RR