Karnataka High Court
Sri Kikkeri Gowda S/O Ningajammana ... vs Sri Sannananjegowda S/O Gudle ... on 26 April, 2018
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF APRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR SECOND APPEAL No.798 OF 2006
BETWEEN
Sri. Kikkeri Gowda,
S/o. Ningajammana Javaregowda,
Aged about 56 years,
R/at Hirikalale Village,
Kasaba Hobli,
Krishnarajapet Taluk,
Mandya District-571434.
...Appellant
(By Sri. V.Srinivas, Advocate)
AND
1. Sri. Sannananjegowda
S/o. Gudle Kalegowda
Aged about 58 years,
R/o. Hirikale Village,
Kasaba Hobli,
Krishnarajapet Taluk,
Mandya District-571434.
2
2. Sri. Karigowda,
Since dead by his LRS
a) Smt. Sakamma
W/o. Late. Karigowda,
Since dead by LRS(2b to 2g)
b) Sri. Krishnegowda,
S/o. Late Karigowda,
Aged about 33 years,
c) Sri. Nagaraju
S/o. Late. Karigowda,
Aged about 31 years
d) Sri. Ganesh
S/o. Late. Karigowda,
Aged about 29 years,
All are residence of
Hirikalale Village,
Kasaba Hobli, K.R.Pet Taluk,
Mandya District.
e) Shardamma,
D/o. Karigowda
W/o. Gopalagowda,
Aged about 45 years,
Gangenahalli, K.R.Pet,
Mandya.
f) Pramila
D/o. Late Karigowda,
W/o. Manjegowda,
Aged about 38 years,
Hale Mysore Road,
K.R.Pet Town,
K.R.Pet, Mandya.
3
g) Sujatha
D/o. Late Karigowda,
Dead by her LRS.
1) Sudharshan
S/o. Ankegowda
Aged about 15 years,
Since minor representation and
Guardian father Ankegowda,
Maruvinahalli, K.R.Pet Taluk,
Mandya District.
2) Sri. H.K.Javaregowda,
S/o. Gudle Kalegowda,
Since dead by his LRS.
3. Smt. Kendamma @ Devamma,
W/o. Late Javaregowda,
Aged about 48 years,
R/o. Hirikala Village,
Kasabe Hobli,
Krishnarajapet Taluk,
Mandya District-571434.
4. Sri. Yogesha,
S/o. Late. Javeregowda,
Since dead represented by LRS
Smt. Kendamma @ Devamma,
Respondent No.3.
5. Sri. Chandra,
S/o. Late. Javaregowda,
Aged about 25 years,
R/o. Hirikala Village,
Kasaba Hobli,
Krishnarajapet Taluk,
Mandya District-571434.
4
6. Sri. Eshwara @ Sannamari,
S/o. Late. Javaregowda,
Aged about 23 years,
R/o. Hirikala Village,
Kasaba Hobli,
Krishnarajapet Taluk,
Mandya District-571434.
(Amended as per court
order dated 20.11.2017)
...Respondents
(By Sri. H.K.Ganesh Gowda, R2(d) - Party-in-person-present,
Respondents No.R1,R-2(a-f), R3, R5 & R-6, R2(g) - served,
Respondent 2(b) to R2(g) are LR's of deceased R2(a) vide
order dated 06.09.2017,
Rrespondent No.3 is treated as LR of deceased R-4 vide order
dated 25.07.2008)
This RSA is filed under Section 100 of CPC against the
judgment & decree dated 09.08.2005 passed in
R.A.No.3/2000 on the file of the Prl. Civil Judge (Sr.Dn) and
JMFC, Srirangapatna, partly allowing the appeal and
modifying the judgment and decree dated 30.11.1999 passed
in O.S.No.73/92 on the file of the Civil Judge (Jr.Dn), and
JMFC, K.R.Pet.
This RSA coming on for further arguments this day,
the court delivered the following:
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JUDGMENT
This second appeal is by the plaintiff in O.S.No.73/1992 on the file of Civil Judge, Jr.Dn.
Krishnarajapet. He has challenged the judgment and decree, dated 9th August, 2005 of the Prl. Civil Judge, Sr.Dn, Srirangapatna reversing the judgment of the trial court in a suit for specific performance instituted by him.
2. The plaintiff/appellant's case is that the defendants executed an agreement of sale in his favour for selling 18 guntas of land in Sy.No.106/7 of Harikalale village, Kasaba Hobli, Krishnarajpet, Mandya District for a total sale consideration of Rs.12,150/-, and by receiving an amount of Rs. 8,150/-, the defendants put him in possession of the said property (referred to as suit property hereafter). The defendants undertook to obtain Khata in their names as early as possible and execute the sale deed. But they did not execute the sale deed. The plaintiff therefore caused a legal notice issued to the defendants on 25.09.1991 and demanded execution of the sale deed by receiving the 6 balance sale consideration. Since the defendants did not execute the sale deed, and rather issued an evasive reply, the plaintiff brought the suit for specific performance. He pleaded his readiness and willingness to perform his part of the contract.
3. The 2nd defendant filed written statement denying the execution of the sale agreement and receipt of advance amount of Rs.8,150/- and also putting the plaintiff in possession of the suit property. He denied that defendants were under an obligation to execute the sale deed. They specifically contended that the agreement provided for refund of advance amount along with another Rs.8,000/- in case they failed to execute the registered sale deed and because of this clause, the plaintiffs could not have instituted a suit for specific performance.
4. The trial court, upon appreciation of oral and documentary evidence, came to the conclusion that the plaintiff was able to prove the execution of the agreement as also his readiness and willingness to perform his part of the 7 contract. With regard to the additional issue raised on the specific plea of the defendants that they were only liable to pay double the amount of the advance money received by them, the trial court came to conclusion that the penalty clause found in Ex.P.1, the agreement of sale to receive double the earnest money towards damages would not come in the way of granting decree for specific performance in view of the language of Section 20 of the Specific Relief Act which conferred discretionary power on the Court. The learned Judge referred to the judgments of the Supreme Court in the case of Atramram Mittal vs. Eshwar Singh Punia (AIR 1988 SC 2031) and also M.L.Devendra Singh Vs. Syed Khaja (AIR 1973 SC 2457) to come to conclusion that relief of specific performance could be granted. The trial court, for exercising discretion noticed that the possession of the suit property was handed over to the plaintiff pursuant to the execution of the agreement, that the plaintiff, having taken over possession, invested huge amount for developing it; that the plaintiff approached the defendants with a request to 8 execute the sale deed and that the defendants failed to execute the sale deed even though requested by the plaintiff.
5. The first appellate court concurred with the findings of the trial court on all the issues, but took a different view to hold that the plaintiff was only entitled to refund of the advance amount with interest. According to first appellate court, the Khata of the suit property stood in the name of the father of the defendants. Unless the defendants would get the Khata transferred to their names, they could not execute the sale deed. Because of many legal heirs left behind by the father of the defendants, there was some complication in transfer of Khata and therefore in these circumstances the refund of the earnest money or advance money paid by the plaintiff would serve the purpose. It opined that the plaintiff could not have instituted a suit for specific performance until the defendants would get the Khata transferred to their names; the suit was premature. With these findings the first appellate court ordered for refund of earnest money with interest at the rate of 24% p.a. 9
5. At the time of admission, the following substantial question of law was framed:
"Whether the First Appellate Court was justified in holding that the appellant had no cause of action and suit was premature?".
6. The learned counsel for the appellant argued that the first appellate court's conclusion that the suit was premature was incorrect. He submitted that production of Khata certificate for registration of a sale deed was not necessary; the registering authority cannot insist on production of khata for the purpose of registration of a document. He referred to Rules 40 and 41 of the Karnataka Registration Rules and submitted that it was enough if only the document was presented before the registering authority. He cannot also scrutinize the title of the executants. This being the position of law, the first appellate court should not have denied the relief of specific performance. The plaintiff is in possession of the suit property, it was handed over to him pursuant to agreement and he has developed the land 10 investing huge amount. The first appellate court is not justified in reversing the judgment of the trial court.
7. The respondent No.1 appeared in person and submitted that he and his brother have not yet obtained khata of the suit property to their names after the demise of their father and therefore they cannot execute the sale deed. He also submitted that suit property belonged to his grandfather; his father had no khata and therefore suit property cannot be sold. His last submission was that in view of specific clause in the agreement for payment of double the amount of earnest money towards damages in case of failure to execute the sale deed, he and his brothers are under no obligation to execute the sale deed. He argued for dismissal of the appeal.
8. After hearing both sides, it has to be stated that the first appellate court has considered an aspect that has not been pleaded by the defendants. They have not pleaded that they are not able to execute the sale deed as they do not have khata of the suit property in their names. The only 11 specific defence taken by them is that they are not under an obligation to execute the sale deed as the agreement contains a clause with regard to paying the damages equal to double the amount of earnest money. This condition does not take away the right of the plaintiff to enforce specific performance of the contract; nor does it preclude the court from granting the relief of specific performance if plaintiff is entitled to that relief in the given set of facts and circumstances.
9. The first appellate court has taken an extraneous reason for denying the relief of specific performance. It concurs with findings of the trial court with regard to execution of the agreement and plaintiff's readiness and willingness. But its conclusion that suit was premature in as much as the khata is not transferred to defendants' names is not only incorrect but also legally unsustainable. Khata is not an essential requisite for execution of a sale deed or other conveyance.
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10. The Sub-Registrar cannot insist on production of khata for admitting a document for registration; he cannot also refuse registration if the khata does not stand in the name of executor. Khata is more of fiscal in nature for the purpose of tax collection. The registration can be denied for any of the reasons mentioned in Section 35(3) of the Registration Act. Rule 40 of the Karnataka Registration Rules contemplates presentation of document only for the purpose of registration. Rule 40(i-a) requires production of two recent passport size photographs and Rule 40(i-b) enables the registering authority to obtain digital photographs. No other document is required to be produced along with document to be registered. Therefore it is clear that khata in the name of executant is not a must. It is for the purchaser to ascertain about the title of his sellor. The Sub-Registrar cannot verify the title of the sellor.
11. Now in the instant case, in Ex.P.1, the agreement of sale, it is clearly recited that the suit property was the self acquisition of the defendants' father and that the said property was allotted to them in a palparikhat dated 13 10.01.1980. If these are the recitals in the agreement, it is not known why they did not apply for effecting mutation to their names after demise of their father. Ex.P.1 was executed on 17.05.1989, there is no evidence that they did apply for mutation. It is not their case that their application for mutation was rejected by the Tahasildar. It appears that the defendants have kept quite without making application for effecting mutation after partition. If the property belonged to his father, the defendants succeed to the suit property, or even if the argument of the respondent No.1 that the suit property belonged to his grand father can be considered to be true, all the defendants inherited the suit property and in any event, Section 128 of the Land Revenue Act is applicable for transferring Khata to the names of the defendants. They cannot deny execution of sale deed merely because the khata is not transferred to their names. What is important is right to succeed to or inherit a property, not khata. Therefore the first appellate court should not have simply upheld a point of argument canvassed before him about khata, which aspect is even not pleaded at all for 14 denying the relief of specific performance to the plaintiff. It should not have held that suit was premature and there was no cause of action for the suit. Thus the first appellate court is found to have committed an error in law for reversing the judgment of trial court, which appears to have exercised jurisdiction properly to grant the relief of specific performance. Therefore the appeal stands allowed, the judgment of the first appellate court is set aside and the judgment of trial court is restored. The appellant is entitled to cost of this appeal.
Sd/-
JUDGE sd