Karnataka High Court
Sri K Mahabala Adiga vs Sri Ramachandra Adiga on 23 May, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2024
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.NO. 1598 OF 2023
BETWEEN:
1. SRI. K. MAHABALA ADIGA
AGED ABOUT 78 YEARS,
2. SRI. ANANTHA ADIGA
AGED ABOUT 76 YEARS,
3. SRI. K. SRINIVASA ADIGA
AGED ABOUT 74 YEARS,
4. SRI. K. SHANKARANARAYANA ADIGA
AGED ABOUT 72 YEARS,
5. SRI. K. LAXMINARAYANA ADIGA
AGED ABOUT 66 YEARS,
APPELLANTS NO. 1 TO 5 ARE THE
CHILDREN OF KOTESHWARA ADIGA
AND ARE RESIDING AT BASAVA GUDI,
POST KOTESHWARA VILLAGE - 576 222,
KUNDAPURA TALUK,
UDUPI DISTRICT.
... APPELLANTS
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND:
1 . SRI RAMACHANDRA ADIGA
2
AGED ABOUT 74 YEARS,
S/O LATE PADMANABHA ADIGA,
NO. 26, KANDAVARA, 2ND CROSS,
AICO BOO NAGAR,
B.T.M. LAYOUT, II STAGE,
BANGALORE - 560 076.
2 . SRI. SATHYANARAYANA ADIGA
AGED ABOUT 71 YEARS,
S/O LATE PADMANABHA ADIGA,
HAMPAKATTE,
POST BALKOOR - 576 211
KUNDAPURA TALUK,
UDUPI DISTRICT.
3 . SRI. SUBRAMANYA ADIGA
AGED ABOUT 70 YEARS,
S/O LATE PADMANABHA ADIGA,
HAMPAKATTE,
POST BALKOOR - 576 211.
KUNDAPURA TALUK,
UDUPI DISTRICT.
4 . SRI. GIRISH ADIGA
AGED ABOUT 66 YEARS,
S/O LATE PADMANABHA ADIGA,
HAMPAKATTE,
POST BALKOOR -576 211,
KUNDAPURA TALUK,
UDUPI DISTRICT.
5 . SRI. KRISHNAMOORTHY ADIGA
AGED ABOUT 59 YEARS,
S/O LATE PADMANABHA ADIGA,
C/O RAMACHANDRA ADIGA,
NO. 206, KANDAVARA,
2ND CROSS, AICO BOO NAGAR,
BTM LAYOUT, 2ND STAGE,
BENGALURU - 560 076.
...RESPONDENTS
3
(BY SRI. S.P. SHANKAR SENIOR COUNSEL FOR
SRI. VARADARAJ RANGANATHA RAO HAVALDAR,
ADVOCATE FOR C/R1 TO R5)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED:13.07.2023 PASSED IN R.A.NO.18/2022 ON
THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED:14.06.2022 PASSED IN O.S.
NO.169/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC, KUNDAPURA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
19.04.2024 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by plaintiffs aggrieved by Judgment and decree dated 14.06.2022 passed in O.S.No.169/2009 by Principal Civil Judge and JMFC, Kundapura (trial Court) which is partly confirmed by the Judgment and order dated 13.07.2023 passed in R.A.No.18/2022 by Senior Civil Judge, Kundapura (First Appellate Court).
2. The above suit is filed by the plaintiffs seeking relief of specific performance of an agreement of sale 4 dated 07.04.1984 against the defendants contending interalia that:
(a) Father of the plaintiffs late Koteshwara Adiga and father of the defendants late Padmanabha Adiga were the brothers and that the plaintiffs and defendants constituted a Joint Hindu Family owning and possessing certain immovable properties.
(b) That the aforesaid Koteshwara Adiga and Padmanabha Adiga and their brothers had partitioned family properties in terms of a registered deed of partition dated 04.06.1958. In terms of which the father of the defendants Sri.Padmanabha Adiga was allotted as his share suit schedule properties namely lands bearing (1)Sy.No.302/12 measuring 0-38 cents, (2)Sy.No.304/11 measuring 0-20 cents, (3)Sy.No.302/15 measuring 0-20 cents, (4)Sy.No.306/7A measuring 0-90 cents, (5)Sy.No.303/11 measuring 0-07 cents all situated at Koteshwara Village, Kundapura, described in the plaint as `A' schedule properties.5
(c) That the said Padmanabha Adiga being in need of money offered to sell suit schedule properties to the father of the plaintiffs Koteshwara Adiga for a consideration of Rs.18,000/-. In furtherance of which an agreement of sale was executed by late Padmanabha Adiga on 07.04.1984. The possession of the suit properties were delivered. Entire sale consideration was paid and acknowledged. That though Padmanabha Adiga was absolute owner of the property, as a matter of abundant caution signatures of some of the defendants being sons of said Padmanabha Adiga who were available at the time of entering into agreement, were obtained on the said agreement.
(d) That at the time of entering into agreement two persons namely Bacchi Devadgthi and Athmaram Kamath had filed applications seeking occupancy rights in respect of item Nos.1 and 4 of the suit schedule properties. As such, the agreement provided that sale deed would be executed within six months after the rights in some of 6 the suit properties were cleared and established. After the sale agreement, father of the plaintiffs was defending the matter before the Land Tribunal. That the father of the plaintiffs along with father of defendants had filed a writ petition before this Court challenging the order passed by the Land Tribunal which was allowed by remanding the matter to the Land Tribunal, Kundapura.
The father of the plaintiffs had subsequently entered into a compromise with said Bacchi Devadgthi and gave her an alternate land and money to construct separate house and got her application dismissed. That the application filed by Athmaram Kamath was still pending enquiry. That even after the order of remand the Land Tribunal had passed another illegal order. By that time father of the plaintiffs had expired and the defendants were not ready to take any action. As such, plaintiffs had approached this Court by filing writ petition in W.P.No.29247/1991 which was allowed on 03.06.1999 setting aside the order of the Land Tribunal and once 7 again remanding the matter back to the Land Tribunal for fresh disposal.
(e) That during all these proceedings, defendants had not raised any objection in plaintiffs conducting the proceedings. They did not also take any action to safe guard the suit properties. This conduct of the defendants established that they had consented for the agreement of sale dated 07.04.1984 and its validity. As such, they are estopped from denying the validity of the sale agreement.
(f) That the sale agreement is in existence for over 20 years to the knowledge of the defendants which is valid and legally enforceable. That defendants had not taken any steps to cancel or challenge the same. That the defendants who have succeeded to the estate of late Padmanabha Adiga are bound by the terms of the agreement and are thus liable to specifically perform the said sale agreement. That the plaintiffs are ready and willing to perform their part of the agreement. However, 8 the defendants are not willing to perform their part of the agreement by executing deed of sale.
(g) That defendants had tried to interfere with the peaceful possession and enjoyment of the plaint schedule properties, as such the plaintiffs filed a suit for permanent injunction in O.S.No.177/1988 before the Civil Judge, Kundapura. Defendants had also filed a suit for partition in O.S.No.304/1988. By a common Judgment and decree dated 27.03.2000 suit in O.S.No.177/1988 was dismissed and suit in O.S.No.304/1988 was decreed. Plaintiffs had filed regular appeals in R.A.Nos.22/2000 and 23/2000. The First Appellate Court by Judgment and decree dated 30.03.2002 allowed the appeals and set aside the Judgment in O.S.No.177/1988 and decreed the said suit and dismissed the suit in O.S.No.304/1988. As against the same, defendant No.4 had filed regular Second appeal in RSA Nos.626/2002 and 627/2002 before this Court.
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(h) That in the meanwhile defendants in collusion had entered into a partition deed in terms of which all the suit schedule properties were allotted to the share of defendant No.4-Girish Adiga with an intention to take up a false defence of he not having agreed for sale of suit schedule properties as he had not signed the sale agreement dated 07.04.1984.
(j) That RSA No.626/2002 was dismissed and grant of permanent injunction was confirmed. RSA No.627/2002 was dismissed as having become infructuous. That validity of the agreement of sale dated 07.04.1984 was left open to be adjudicated in an appropriate proceedings.
(k) That after the disposal of RSA No.626/2002 and RSA No.627/2002, plaintiffs demanded for execution of sale deed which was not complied with. Plaintiffs caused issue of notice dated 02.04.2009 to the defendants. Since there was no favourable response plaintiffs filed suit for specific performance.
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(l) That since the agreement of sale provides that the defendants shall execute deed of sale after their rights are finalized and settled by disposal of the case pending before the Land Tribunal, which is still pending, the suit is not barred by limitation.
3. Defendant No.4 filed his written statement denying the plaint averments and contended that suit schedule properties are the ancestral joint family properties. He also denied the plaint averments that his father being in need of money for the marriage of defendant No.2 and other family necessities had offered to sell the suit properties to the father of the plaintiffs and also denied the execution of agreement of sale dated 07.04.1984 for consideration of Rs.18,000/-. He also denied the right and authority of the father of the defendants to execute the agreement of sale. He also denied the signatures of the defendants. It is contended that Padmanabha Adiga was entitled for 1/6th share of the property as such, he could not have entered into 11 such an agreement receiving the entire sale consideration as alleged. That no sale consideration has been received by the defendants as alleged. That the suit filed in the year 2009 in respect of agreement dated 07.04.1984 is barred by limitation. As such, liable to be dismissed. That the suit properties are in possession of defendant No.4. Revenue records are standing in his name. That the claims made by Bacchi Devadigthi and Atmaram Kamath do not pertain to suit schedule property. That the claim made by Bacchi Devadigthi was in respect of land in Sy.No.302/12 which was in possession of the mother of the defendants and the said claim was rejected by the Land Tribunal on 28.01.1987. As such the claim made by the plaintiffs is false. That if at all the plaintiffs were entitled they ought to have filed the suit immediately after the order dated 28.01.1987 passed by the Land Tribunal. As such, the suit is barred by limitation. Hence, sought for dismissal of the suit. 12
4. Based on the pleadings, trial Court framed the following issues:
1. Whether the plaintiffs prove that the suit schedule properties were acquired by one Padmanabha Adiga under partition deed dated 04.06.1958 and as such, are his absolute property?
2. Whether the plaintiffs prove that Padmanabha Adiga was Kartha of the joint family of himself and his sons and he has sold the schedule properties under the sale agreement dated 07.04.1984 for family necessity?
3. Whether the plaintiffs prove that their father and plaintiffs put up construction on the suit schedule properties?
4. Whether the plaintiffs prove that they are ready and willing to perform their part of contract?
5. Whether the defendants prove that suit schedule properties are the joint family properties?
6. Whether the defendants prove that suit is barred by limitation?
7. Whether the plaintiff is entitled for the relief sought as prayed in the plaint?
8. What order or decree?
5. Plaintiff No.1 examined himself as PW-1 and exhibited 24 documents as Ex.P1 to P24. Defendant No.4 examined himself as DW-1 and exhibited 55 documents as Ex.D1 to D55. On appreciation of 13 evidence, trial Court answered issue Nos.1, 2, 4 and 7 in the negative and issue Nos.3, 5 and 6 in the affirmative and consequently dismissed the suit. Aggrieved by the same, plaintiffs preferred regular appeal in R.A.No.18/2022. The First Appellate Court framed the following points for its consideration:
1. Whether the plaintiffs able to prove the execution of agreement of sale dated 07.04.1984 and the seller had been delivered to physical possession under the said document as part performance?
2. Whether the plaintiffs are then and now ready and willingness to perform their part of contract?
3. Whether the suit of the plaintiffs is barred by the time?
4. Whether the trial Court has committed error in dismissing the suit and thus the impugned judgment and decree of trial Court calls for any interference by this Court?
5. If so what order?
6. On reappreciation of evidence, First Appellate Court answered point Nos.1 and 3 in the affirmative and Point No.2 partly in the negative and point No.4 in the negative and consequently dismissed the appeal 14 confirming the Judgment and decree passed by the trial Court. Being aggrieved by the same, plaintiffs are before this Court.
7. This Court by order dated 19.02.2024 admitted the appeal for consideration of following substantial questions of law:
"1. Whether the trial Court and the First Appellate Court are justified in dismissing the suit on the ground of limitation without adverting to the plea and evidence of the plaintiffs, that the property in item No.4 of agreement of sale at Ex.P6 was subject matter of the petition before the Land Tribunal and the said petition was disposed of only on 10.03.2017 and that one of the terms of Ex.P6 is that the agreement of sale would be performed after determination of rights of the parties in respect of item Nos.1 and 4 thereof?
2. Whether the finding given by the trial Court at paragraph 35 adverting to Ex.D3 (which is the same as of Ex.P18) pertains to property different from the one which is item No.4 of Ex.P6?"
8. Sri. K.Chandrakanth Ariga, Learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that:
15
(a) In terms of agreement dated 07.04.1984 as per Ex.P6 possession of item Nos.2, 3 and 5 were handed over to the father of the plaintiffs while item Nos.1 and 4 were subject matter of claim made by two persons namely Bacchi Devadgthi and Atmaram Kamath.
(b) He referred to terms of agreement of sale at Ex.P6 and submitted that the parties had agreed that the sale deed would be executed within six months from the date of establishment of rights in respect of properties in item Nos.1 and 4.
(c) That the dispute with regard to item No.1 of the suit schedule property was settled in the year 1987, while the dispute with regard to item No.4 of the suit schedule property being land in Sy.No.306/7 attained finality by the Order of the Land Tribunal dated 10.03.2017 as per Ex.P18 and that the suit was thus filed on 21.07.2009 which was well within limitation.16
(d) That the finding of the Trial Court to the effect that, the property bearing Sy.No.306/7 that was agreed to be sold actually belonged to Koteshwara Adiga-the purchaser himself, is perverse as the same is without adverting to the pleading and evidence of the plaintiffs.
That the confirmation of said finding of the Trial Court by the First Appellate Court is also illegal and contrary to the material evidence placed on record.
(e) In furtherance to the above contention learned counsel submitted that total extent of land in Sy.No.306/7 is 2.81 acres out of which 1.91 acres was allotted to the share of Koteshwara Adiga and 0.90 acres was allotted to the share of Padmanabha Adiga under the deed of partition as per Ex.P16. That the said 0.90 acres of land is item No.4 of the suit schedule property. That one Ganapathi Kamath had claimed occupancy rights by filing Form No.7 as per Ex.D2 in which he had claimed 1.40 acres in Sy.No.306/7. That the Land Tribunal had granted occupancy rights to an extent of 0.70 acres in 17 Sy.No.306/7(P-1) as per Ex.D3. That a sketch had been drawn showing the land granted making it clear that the land that was claimed in Form No.7 and granted by the Land Tribunal is the land belonging to Padmanabha Adiga.
(f) That Ex.P20 is FMB Sketch of Sy.No.306/7A and 306/7B. That Sy.No.306/7A is smaller in extent and Sy.No.306/7B is larger in extent. Thus there is clear indication that the land in Sy.No.306/7A measures 0.90 acres which was allotted to the share of Padmanabha Adiga and the land in Sy.No.306/7B which is 1.91 acres allotted to the share of Koteshwara Adiga. Thus, learned counsel submitted that the trial Court and the First Appellate Court lost sight of this factual aspect of the matter resulting in perversity in their finding and conclusion.
(f) That the plaintiffs being the purchasers in order to protect their rights had filed Writ Petition in W.P.No.29247/1991 as per Ex.P15 which was allowed by 18 remanding the matter back to the Land Tribunal and the Land Tribunal had rejected the claim of the said Ganapathi Vasudeva Kamath by its order dated 10.03.2017 as per Ex.P18 and the suit filed by the plaintiffs in the year 2009 is therefore within the limitation.
(g) As regards the findings of the First Appellate Court at paragraph Nos.28, 29 and 30 of its judgment on the issue of limitation learned counsel submitted that the suit in O.S.No.177/1988 filed by the plaintiffs for permanent injunction and the suit in O.S.No.304/1988 filed by the defendants were disposed of on 27.03.2000. That the regular appeals filed against the said judgment and decree were allowed and regular second appeals filed by the defendants against the same in R.S.A. No. 626/2002 and R.S.A. No.627/2002 were disposed on 25.06.2008, with the observation that the validity of agreement be adjudicated in appropriate proceedings. As such, the present suit filed on 21.07.2009 is well within the time. 19
(h) He also referred to the judgment dated 16.02.2021 passed by this Court as per Ex.P24 in R.S.A.Nos.626 and 627/2002 (which was passed subsequent to the order of remand by the Apex Court passed in Civil Appeal Nos. 7252/2011-7254/2011) wherein this Court had granted relief of permanent injunction in favour of the plaintiffs holding that they are entitled to be in possession till they are dispossessed in accordance with law and submitted that the said finding has attained finality which aspect has been lost sight of by the Trial Court and the First Appellate Court. Learned counsel for the appellants relied upon following judgments in support of his contentions:
(1) 1979(4) SCC 393 - Prakash Chandra Vs Angadlal and others (2) 1975(1) SCC 770 - Pasupuleti Venkateshwaralu Vs The Motor & General Traders (3) 1950 SCC 51 - Gorakhram Sadhuram Vs LaxmiBai (4) 1975(4) SCC 628 - RoshanLal Kuthalia and others Vs R.B.Mohan Singh Oberoi (5) (1993) 1 SCC 519 - Chand Rani (SMT) (Dead) by LRs Vs Kamal Rani (SMT) (dead) by Lrs 20
6. 1948 SCC Online Madras 77 - Arjuna Mudaliar Vs Lakshmi Ammal and others.
Thus, he submits that the substantial questions of law be answered in favour of the appellants and to allow the appeal.
9. Sri. S.P.Shankar, learned Senior counsel appearing for Sri.Varadharaj R.Havaldar, learned counsel for the respondents justifying the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court submitted that:
(a) The plaintiffs filed their suit in O.S.No.177/1988 against the defendants for permanent injunction based on the aforesaid agreement of sale dated 07.04.1984 claiming that the cause of action to the said suit had arose on 02.04.1988. He referred to paragraph No.2 of the written statement filed by the defendants denying the execution of the agreement of sale and submitted that the cause of action for relief of specific performance 21 had arose on the very denial of the execution of agreement by the defendants.
(b) That as per section 9 of the Limitation Act once the cause of action commences same would not stop by any subsequent events. That since the plaintiffs had not initiated the proceedings seeking specific performance of the contract within the period of limitation, their right stood extinguished in the year 1991 in terms of provision of Section 27 of the Limitation Act. As such, the present suit filed in the year 2009 is hopelessly barred by limitation.
(c) That item No.4 of the suit schedule properties was never the subject matter of the proceedings before the Land Tribunal. That as per the partition deed dated 04.06.1958 at Ex.P16, 1.91 acres in Sy.No.306/7 was allotted to the share of Koteshwara Adiga and 0.90 acres was allotted to the share of Padmanabha Adiga. That in the Form No.7 at Ex.D2 claim made by one Ganapathi Vasudeva Kamath, the name of the landlord is shown as 22 Rama Adiga and not Padmanabha Adiga. That as per Ex.D3 order of the Land Tribunal dated 06.10.1980, one Atmaram Kamath has been registered as occupant in respect of land measuring 0.70 acres of land in Sy.No.306/7. That even in the order dated 10.03.2017 passed by the Tribunal as per Ex.P18 rejecting the claim of Atmaram Kamath, S/o Ganapathi Vasudeva Kamath, the cause title would not refer to the name of the father of the defendants as party to the proceeding.
(d) That even if there was pendency of the matter before the Land Tribunal, there was no inhibition, restriction and prohibition under law for the plaintiffs to purchase the property or to initiate the proceedings for specific performance. Thus, he submits the substantial questions of law needs to be answered in favour of the defendants rejecting the appeal. He relied upon the following Judgments:
1. AIR 2023 SC 4375 - A.Valliammal Vs K.P.Murali and others 23
2. 2009 (4) KAR.LJ 561 (SC) -AhmmadSahab Abdul Mulla (Deceased) by Lrs Vs Bibijan and others
3. (2013) 1 SCC 625 - Virgo Industries (Eng) Private Ltd. Vs Venturetech Solutions Private Ltd.
4. 2015(3) AKR 350 SC - Fatehji & Company and anr Vs L.M.Nagpal and others
5. AIR 2019 Kar 122 - V.Venkataravanappa Vs D.K.Gopal and anr
6. AIR 2020 SC 395 - Vurimi Pullarao S/o Satyanarayana Vs Vemari Vyankata Radharani Dhankoteshwar Rao and anr.
10. Heard and perused the records.
11. The trial Court in the impugned Judgment has held that the suit schedule properties are the joint family properties and not the absolute properties of Padmanabha Adiga, the father of the defendants. Further the trial Court has held that since the father of the plaintiffs and father of the defendants are no more and since defendants have denied the execution of the agreement of sale, mere marking of the said agreement by the plaintiffs was not sufficient to prove its contents and that it was necessary for the plaintiffs to have 24 proved the said agreement and its contents by examining attesting witnesses. That since the plaintiffs have not examined the attesting witnesses the agreement was not proved.
12. The trial Court while answering issue Nos.4 and 6 on the aspect of readiness and willingness and on limitation, has held that issue with regard to item No.1 of the suit schedule property was resolved in the year 1987. As regards item No.4 of the suit schedule property, the trial Court held that the subject matter of the agreement is different from the property which was being claimed before the Land Tribunal and as such, concluded that item No.4 of the suit property was not subject matter of the dispute before the Land Tribunal and since the dispute with regard to item No.1 was resolved by order dated 28.01.1987, the period of limitation started from 28.01.1987 and suit ought to have been filed within three years thereof. The trial Court also found that since the plaintiffs had filed suit in O.S.No.177/1988 for 25 permanent injunction as such the cause of action had arose from the date of filing the said suit and even on the said count the present suit was barred by limitation. Accordingly dismissed the suit.
13. The First Appellate Court on reappreciation of the evidence particularly the Judgment and decree passed in O.S.No.177/1988 and O.S.No.304/1988 and RSA No.626/2002 and RSA No.627/2002 has come to the conclusion that plaintiffs have indeed proved the execution of agreement of sale at Ex.P6. However the First Appellate Court concurred and confirmed the findings of the trial Court on the other aspects of the matter namely item No.4 of schedule `A' property and on the issue of limitation.
14. From the records and even as admitted by the defendants item No.1 of the suit schedule property was subject matter of the claim made by one Bacchi Devadgthi and the said dispute was admittedly resolved by the order of the Land Tribunal dated 28.01.1987. 26 Plaintiffs thereafter has filed a suit in O.S.No.177/1988 for relief of permanent injunction against the defendants. In the said suit the plaintiffs have specifically pleaded about the facts and circumstances leading upto entering into agreement of sale dated 07.04.1984. It was specifically contended in the said suit at paragraph 5 that Bacchi Devadgthi had filed an application under Section 48A of the Karnataka Land Reforms Act and the same was rejected by an order dated 28.01.1987 in TRI No.9639/78-79 passed by the Land Tribunal, Kundapura and that order of the Land Tribunal passed in TRI No.9670-71/78-79 granting occupancy rights in favour of Atmaram Kamath was pending disposal before the Land Reforms Appellate Tribunal in LRA No.TT 1985-86, as such the registered deed of sale in respect of the suit property could not be executed. It is further contended in the said plaint that on 02.04.1988 defendants 2 and 4 along with some antisocial elements had tried to fell the tree grown in item No.4 of the suit properties giving rise 27 to cause of action to file the suit for permanent injunction.
15. Defendant No.4 filed written statement in the said suit denying the plaint averments specifically disputing the claim of the plaintiffs regarding the agreement of sale dated 07.04.1984 having been entered into between Koteshwara Adiga and Padmanabha Adiga.
16. Thus, from the aforesaid material evidence available on record the question that requires to be considered is whether the plaintiffs can rely upon the term of the agreement at Ex.P6 to contend that since the parties had agreed that the sale deed would be executed within six months after determination of rights with reference to item No.1 and 4 of the suit properties or the plaintiffs could have filed the suit immediately on the denial of execution of agreement of sale by the defendants in the written statement filed in the said suit in O.S.No.177/1988.
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17. In the instant case, the term of the aforesaid agreement read as under:
"PɼÀUÉ PÁt¹zÀ D¹ÛUÀ¼À ¥ÉÊQ dAeÁæ 2-3-5£Éà ¸ÀܼÀUÀ¼À£ÀÄß 1£Éà AiÀĪÀgÀ ¸Áé¢üãÀvÉUÉ ©lÄÖPÆ É qÀ vÀPÌÀ zÉAvÀ®Æ «ÄPÀÌ ¸ÀܼÀUÀ¼À ºÀPÀÄÌ ¹ÜgÀªÁzÀ vÁjÃT¤AzÀ 6 wAUÀ¼À M¼ÀUÉ PɼÀUÉ PÁt¹zÀ D¹ÛUÀ¼À PÀÄjvÀÄ PÀæAiÀÄzÀ¸ÁÛªÉÃd£ÀÄß 2 jAzÀ 7£Éà ªÀgÉV£À 1£Éà AiÀĪÀgÀ ºÉ¸ÀjUÉ jf¹Öç ªÀiÁrPÉÆqÀvÀPÌÀ zÉAvÀ®Æ ¸ÀºÀ ªÀiÁrPÉÆAqÀÄ D ªÉÄÃgÉUÉ £ÁªÀÅ F JVæªÉÄAlÄ ªÀiÁrPÉÆArgÀÄvÉÛêÉ"
18. From the perusal of the aforesaid term of the agreement it is clear that possession of properties in item Nos.2, 3 and 5 was apparently handed over to the father of the plaintiffs. It was further agreed that deed of sale would be executed in the name of the father of the plaintiffs within six months after determination of rights in respect of other items of the properties, apparently referring to item No.1 and 4 of the suit properties. Admittedly claim in respect of item No.1 of the suit property made by one Smt.Bacchi Devadgthi against Padmanabha Adiga was resolved by the order of Land Tribunal dated 28.01.1987 whereby the application filed in Form No.7 by said Smt.Bacchi Devadgthi was rejected. 29
19. As regards the claim in respect of item No.4 namely land measuring 0.90 acres in Sy.No.306/7 though the trial Court has found that item No.4 of the property is different from the land subject matter of the claim made by Ganapathi Vasudeva Kamath and thereafter his son Athmaram Kamath, learned counsel for the appellants emphatically submitted that the said property indeed belonged to Padmanabha Adiga and that since claim made by said Ganapathi Vasudeva Kamath and thereafter his son Athmaram Kamath was pending consideration and was disposed of by the order of the Tribunal on 10.03.2017, the plaintiffs could not file the suit earlier.
20. Perusal of records would indicate that in Form No.7 as per Ex.D2 filed by Ganapathi Vasudeva Kamath the extent of land in respect of which occupancy rights are claimed is shown as 1 acre 40 cents forming part of Sy.No.306/7. The name of the owner of the said land in the said application is shown as one Rama Adiga, S/o 30 Sheshappa Adiga. The said application has been disposed of by Land Tribunal by its order dated 06.10.1980 as per Ex.D3 granting 70 cents in Sy.No.306/7. Even in the said order there is no reference to the name of the father of the defendants. There is however a reference to the names of one Kuppaiah yane Koteshwara and Rama Adiga.
21. The aforesaid order dated 06.10.1980 had been originally challenged by Koteshwara Adiga and Padmanabha Adiga by filing W.P.Nos.17986-16987/1983 which was later on renumbered as W.P.No.29247/1991 and disposed of by this Court by remanding the matter for fresh consideration. From the contents of the order dated 03.06.1999 passed in the said writ petition produced at Ex.P15, it is seen that the appellants herein who were the petitioners in the said writ petition have contended that land measuring 1.40 acres in Sy.No.306/7 of Koteshwara Village belonged to them in terms of the registered partition deed dated 04.06.1958 31 and the revenue records had been changed in their name. Thus as rightly contended by learned counsel for the respondents neither in the application in Form No.7 filed by Ganapathi Vasudeva Kamath nor in the order of the Tribunal or in the order of this Court passed in said writ petition is there any clear and categoric reference of Padmanabha Adiga being the landlord of land in item No.4, even while one Rama Adiga has been shown as the landlord.
22. Further perusal of order dated 10.03.2017 at Ex.P18 passed by the Land Tribunal dismissing the claim of the Ganapathi Vasudeva Kamath/Athmaram Kamath would also not indicate any reference to item No.4 of the schedule `A' property belonging to Padmanabha Adiga. On the other hand appellants herein are shown as the respondents even in the said order.
23. The trial Court at paragraph 35 of the impugned Judgment has referred to revenue documents namely RTC extracts. While referring to Ex.D4 it has 32 found that extent of 1.40 acres in Sy.No.306/7B has been rounded off and re-entered as 0.70 acres standing in the name of Koteshwara Adiga for the years 1996- 2001. Ex.D5 is the RTC in respect of land in Sy.No.306/7B wherein an extent of 1.40 acres has been rounded off and re-entered as 0.70 acres in the name of Athmaram Kamath for the year 2000-2001. Based on this material and the admission made by PW-1 in the cross examination, the trial Court has come to the conclusion that the dispute which was pending consideration before the Land Tribunal, Kundapura was not pertaining to item No.4 of the suit `A' schedule property and that land measuring 0.90 acres in Sy.No.306/7A and land measuring 0.70 acres in Sy.No.306/7B are entirely different.
24. As already noted above even the documents, namely, the application in Form No.7 filed by Ganapathi Vasudeva Kamath, order dated 06.10.1980 passed by the Land Tribunal and order dated 03.06.1999 passed in 33 W.P.No.29247/1991 and the order dated 10.03.2017 do not indicate that the claim made by Ganapathi Vasudeva Kamath was in respect of land belonging to Padmanabha Adiga. The contention of the appellants contrary to the above documentary evidence cannot be countenanced. The reliance placed by learned counsel for appellants to the sketch at Ex.P20 is of no avail.
25. Be that as it is. The fact remains that in response to the suit for bare injunction filed by the plaintiffs in O.S.No.177/1988, the defendants in their written statement had specifically and categorically denied the very execution of the agreement of sale dated 07.04.1984. The plaintiffs in the said suit though had claimed that the cause of action to the suit had arose on 02.04.1988, there is nothing on record to show that the plaintiffs had reserved their right to seek comprehensive relief by filing necessary application as required under Order 2 Rule 2(3) of CPC. In the absence of plaintiffs reserving their right to seek appropriate relief, they 34 cannot seek to enforce their right after expiry of period of limitation as sought to be done in the instant case.
26. Order 2 Rule 1 CPC requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, plaintiff has an option to relinquish any part of his claim if he chooses to do so. If the plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs he is required to seek leave of the Court as contemplated under Order 2 Rule 2(3) in the absence of which plaintiff is precluded from bringing subsequent suit to claim the relief earlier omitted except where the leave of the Court has been obtained. (Virgo Industries (Eng.) Private Limited Vs Venturetech Solutions Private Limited reported in (2013) 1 SCC 625).
35
27. Relevant also to refer to Article 54 of the Limitation Act:
54. For specific performance of a contract. Three years. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused
28. The Apex Court in the case of A.Valliammal Vs K.P.Murali and others reported in AIR 2023 SC 4375 dealing with identical situation involving issue with regard to Article 54 of Part II of Schedule to the Limitation Act, 1963 has held that since the plaintiffs had the notice of refusal of performance of the agreement by the defendants, the period of three years would commence from the date of such refusal and accordingly declined to grant the relief of specific performance.
29. Pertinent to note that even when the plaintiffs filed the present suit on 21.07.2009 the claim made by Ganapathi Vasudeva Kamath in respect of item No.4 was still pending consideration. Even according to the 36 plaintiffs the said claim came to be rejected only on 10.03.2017 as per Ex.P18. It is the submission of the learned counsel for the appellants that the suit was filed in the year 2009 after disposal of RSA No.626/2002 and RSA No.627/2002 on 25.06.2008. Thus it is clear that the plaintiffs thought it appropriate not to wait till the outcome of the claim made by Ganapathi Vasudeva Kamath and subsequently by his son Atmaram Kamath in respect of item No.4 of the suit schedule properties and accordingly filed the suit in the year 2009 itself. Therefore the vehement submissions made by learned counsel for appellants that in terms of the agreement of sale, the plaintiffs could file the suit only after determination of the rights in respect of item Nos.1 and 4 of the suit property and therefore they could not file the suit earlier cannot be countenanced.
30. Further as rightly contended by learned Senior counsel for the respondents there was no inhibition, restriction or prohibition under law for purchasing the 37 property even if item No.4 of the suit schedule property was subject matter of claim before the Land Tribunal.
31. Reliance placed on by the learned counsel for the appellants on the citations referred to above are of no avail under the fact situation of the matter.
32. The trial Court and First Appellate Court on appreciation of evidence, in the considered view of this Court, have rightly declined to grant the relief of specific performance as the same having barred by limitation and have also rightly come to the conclusion that item No.4 of the suit property was not subject matter of proceedings before the Land Tribunal.
33. The substantial questions of law are answered accordingly.
Appeal is dismissed.
Sd/-
JUDGE SBN/RL