Karnataka High Court
Sri.Hanamant vs Smt.Kasawwa on 24 August, 2023
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NC: 2023:KHC-D:9516
RSA No. 5371 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 5371 OF 2010
BETWEEN:
SRI. HANAMANT
S/O GANAPATRAO KANDALKAR
AGED ABOUT 50 YEARS, R/AT: JAMAKHANDI,
DIST: BAGALKOTE-587301.
...APPELLANT
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SMT. KASAWWA
W/O PAWADAYYA PUJARI
AGED ABOUT 68 YEARS,
R/AT: KADAPATTI, TQ: JAMAKHANDI,
DIST: BAGALKOTE-587302.
RAMAYYA PAWADAYYA PUJARI
DEAD BY HIS LRS,
Digitally
signed by
GIRIJA A
GIRIJA A BYAHATTI
BYAHATTI Date: 2. SUVARNA W/O RAMAYYA PUJARI
2023.09.05
10:52:02
+0530
AGED ABOUT 45 YEARS,
R/AT: KADAPATTI, TQ: JAMAKHANDI,
DIST: BAGALKOTE-587302.
BASAYYA PAWADAYYA PUJARI
BY HIS LRS,
3. SMT. DANAWWA W/O BASAYYA PUJARI
AGED ABOUT 40 YEARS,
R/AT: KADAPATTI, TQ: JAMAKHANDI,
DIST: BAGALKOTE-587302.
4. PAWAN S/O BASAYYA PUJARI
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NC: 2023:KHC-D:9516
RSA No. 5371 of 2010
AGED ABOUT 22 YEARS,
R/AT: KADAPATTI, TQ: JAMAKHANDI,
DIST: BAGALKOTE-587302.
5. KUMARI JYOTI D/O BASAYYA PUJARI
AGED ABOUT 20 YEARS,
R/AT: KADAPATTI, TQ: JAMAKHANDI,
DIST: BAGALKOTE-587302.
6. SMT. MANAND @ MAHANANAD
W/O BASAYYA KADAKOL
AGED ABOUT 38 YEARS,
R/AT: KADAPATTI, TQ: JAMAKHANDI,
DIST: BAGALKOTE-587302.
7. APPANNA (SANGAREPPA) DEVARAVAR
AGED ABOUT 45 YEARS,
R/AT: KADAPATTI, TQ: JAMAKHANDI,
DIST: BAGALKOTE-587302.
...RESPONDENTS
(BY SRI. RAJENDRA C DESAI, ADVOCATE FOR R1 TO R3, R6;
SRI. S.B.HEBBALLI AND SRI. PRASHANT HOSAMANI, ADVOCATES
FOR R7;
NOTICE TO R4 AND R5 SERVED)
THIS RSA IS FILED U/S.100 OF CPC., SEEKING TO SET
ASIDE THE JUDGEMENT & DECREE DTD:30-01-2010 PASSED IN
R.A.NO.16/2007 ON THE FILE OF THE FAST TRACK AT
JAMKHANDI, AND THE JUDGMENT DTD:31-01-2007 AND THE
DECREE PASSED IN O.S.NO.113/1997 ON THE FILE OF THE PRIL.
CIVIL JUDGE (JR. DN.) JAMKHANDI, BY ALLOWING THE PRESENT
APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:9516
RSA No. 5371 of 2010
JUDGMENT
The plaintiff who failed to get a decree for specific performance of registered contract dated 21.03.1978, is before this Court seeking specific performance. The plaintiff is assailing the judgment and decree passed in O.S.No.113/1997 on the file of the Principal Civil Judge, Jamkhandi.
2. The suit is filed against the legal representatives of the vendor who admittedly was not the owner of the property. The plaintiff claimed that he was serving under an inamdar, which according the plaintiff is a temple. And plaintiff claims that the property is a Devasthan inam property. The plaintiff claims that prior to this agreement, there was one more agreement on 24.12.1975, where the consideration for the sale of property was fixed at Rs.1,200/-. He further says Rs.200/- was paid on 24.12.1975 as part of the sale consideration amount.
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NC: 2023:KHC-D:9516 RSA No. 5371 of 2010
3. The property measured 55 feet x 100 feet in Sy.No.50/1A, measuring 3 acres 20 guntas. The plaintiff would further contend that he was in possession of the property prior to 24.12.1975 and in recognition of his long standing possession, the vendor agreed to sell the property. According to the plaintiff the vendor was required to obtain permission from the charity commissioner before selling the property and was also required to convert the land into non-agricultural use.
4. The defendants, the legal representatives resisted the suit. The vendor died on 31.03.1983. The defendants disputed execution of agreement dated 24.12.1975 and 21.03.1978. The defendants also contended that the vendor did not have the right to alienate the property. It is their case that Form No.1 was filed by their father and occupancy was granted by the Land Tribunal in the year 1984, as such the agreement is void and unenforceable.
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NC: 2023:KHC-D:9516 RSA No. 5371 of 2010
5. It is also relevant to note that the property was sold under registered sale deed in favour of defendant No.5 by defendants No.1 to 4 under registered sale deed dated 31.01.1992. The trial Court found that the agreement is void and dismissed the suit. The plaintiff's first appeal also met with the same fate. Hence, the present second appeal.
6. This appeal was admitted on 19.09.2013 to answer the following substantial questions of law:
"1. Whether both the Courts below were justified in disbelieving the registered document Ex.P-2 which speaks of possession being delivered to the plaintiff with an undertaking to execute the sale deed after receiving balance consideration?
2. Whether both the Courts below were justified in ignoring the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act and provisions of Karnataka Certain Inam Abolition -6- NC: 2023:KHC-D:9516 RSA No. 5371 of 2010 Act, 1977, so far as non completion of sale transaction pursuant to Ex.P-2?"
7. After hearing the learned counsel, Sri.Mrutyunjaya Tata Bangi for the appellant, Sri.S.B.Hebballi, the learned counsel for respondent No.7, this Court is of the view that one more substantial question of law is required to be framed. Accordingly, the following substantial question of law is framed:
"Whether the agreement dated 21.03.1978 is void and unenforceable."
8. After framing the substantial question of law, both the counsel are heard.
9. Learned counsel for the apellant, Sri.Mrutyunjaya Tata Bangi does not dispute application of this Act to the land in question so also Sri.S.B.Hebballi, the learned counsel for respondent No.7. -7-
NC: 2023:KHC-D:9516 RSA No. 5371 of 2010
10. Suit land a Devasthan Inam. This fact is admitted. The land is situated in Jamkhandi village. The Mysore (Religious and Charitable) Inams Abolition Act, 1955 (for short, 'Act of 1955') came into force with effect from 01.09.1955. The Act of 1955 is introduced to abolish the religious and charitable inams in Karnataka except Ballari District.
11. The word 'Inamdar' is defined under Section 2(6) of the Act of 1955 and it means a Religious or Charitable institution owning an inam. Section 3 of the Act of 1955 provides for vesting of inam lands in the State and its consequences. Section 3 also provides for the consequences, of abolition if Inams after the publication in official gazette.
12. As per the definition of inamdar found in Section 2(6) of the Act of 1955, inamdar means a religious or charitable institution owning an inam. It is submitted by both the counsel that the property is a Devasthan inam thereby meaning that the Religious institution is the -8- NC: 2023:KHC-D:9516 RSA No. 5371 of 2010 inamadar. The agreement in question i.e. agreement dated 24.12.1975 and agreement dated 21.03.1978 are not executed by the inamdar or the Religious institution which was the inamdar of the land. The agreement is allegedly executed by the father of defendants No.1 to 4 who according to the plaintiff was in service under inamdar.
13. This being the position, the Court has to consider whether the agreement dated 21.03.1978 executed by the father of defendants No.1 to 4, who was said to be the person in service under the Religious institution is valid or not. Section 3 of Act of 1955 provides that once the Act comes into force, all the inam properties for which the Act applies stand vested in the State Government. The expression "notwithstanding anything contained in any contract, grant or other instrument or any other law for the time being in force, with effect on and from the date of vesting, and save as otherwise expressly provided in this Act, the following consequences -9- NC: 2023:KHC-D:9516 RSA No. 5371 of 2010 shall ensure" found in Section 3 of the Act of 1955 makes it very clear that vesting has got far reaching consequences.
14. Section 3(b) of Act of 1955 further reveals that all the rights in the inam land including the rights of the inamdar shall seize and be vested absolutely in the State of Karnataka free from all encumbrances.
15. This being the position, there is no difficulty in holding that the agreement dated 21.03.1978 alleged to have been executed by the father of defendants No.1 to 4 is void under law.
16. Assuming that Section 1(4) of the Act of 1955 is not applicable to the land in question or Section 3 notification is not published as on 21.03.1978 i.e the date of agreement, then also the agreement has no sanctity in the eye of law for the simple reason that the agreement is not executed by the inamdar who is recognized inam holder under Section 2(6) of the Act of 1955. Thus, even if
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NC: 2023:KHC-D:9516 RSA No. 5371 of 2010 the Inam abolition Act is not force as on the date of the agreement, then also the agreement is void as the executant had no right to transfer.
17. Though both the trial Court as well as the First Appellate Court have held that the agreement is void, no reference is made to any of the provisions of the Act of 1955. Both the Courts proceeded to assume that the vendor did not have any right over the property as such the agreement is void. The provisions of the Act of 1955 namely Sections 1(4) and 3 would make it abundantly clear that the alleged vendor of the agreement dated 21.03.1978 had no right over the properties when the agreement was executed.
18. Sri.Mrutyunjaya Tata Bangi, the learned counsel for the appellant would submit that even assuming that the agreement is invalid, the agreement does not become void and given the fact that there is a valid re grant in favour of the vendor the plaintiff is entitled to enforce the agreement dated 21.03.1978. He would also further
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NC: 2023:KHC-D:9516 RSA No. 5371 of 2010 contend that the plaintiff was in possession of the property even prior to the execution of the agreement dated 21.03.1978 and there is a reference to the agreement dated 24.12.1975 and the registered agreement dated 21.03.1978 and the documents placed before the Court would also reveal that the plaintiff is very much in possession of the property.
19. Referring to re grant it is urged that the vendor ultimately acquired title over the property, by doctrine of feeding the grant by estoppel, suit for specific performance is maintainable and both the Courts have erred in rejecting the claim of the plaintiff.
20. Sri.S.B.Hebballi, the learned counsel for respondent No.7 would submit that once the agreement is found to be void, in view of application of Sections 1(4) and 3 of the Act of 1955 the void agreement does not revive on account of the subsequent regrant in favour of the vendor.
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NC: 2023:KHC-D:9516 RSA No. 5371 of 2010
21. It is his further contention that the possession of the plaintiff cannot be upheld by referring to the void agreement and there is a valid transfer of the property in favour of defendant No.5 in terms of registered sale deed after regrant order in favour of defendants No.1 to 4.
22. This Court has considered the contentions raised in this regard. It is to be noticed that there is an order of occupancy by the Land Tribunal in the year 1984. The jurisdictional Land Tribunal granted occupancy right in favour of the father of defendants No.1 to 4. This is an order passed by the competent authority. Under the provisions of the Karnataka Land Reforms Act, the occupancy right can be granted in favour of a person who is in possession of the property as on the date of making an application for re grant. The order also would imply that the person who has applied for occupancy is in possession of the property. This order is not called in question.
23. Though Sri.Mrutyunjaya Tata Bangi tried to urge that the registered document would establish that the
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NC: 2023:KHC-D:9516 RSA No. 5371 of 2010 plaintiff is in possession, it is to be noticed that the agreement itself is void and claim for possession over the property is based on the void agreement. Once the agreement is held to be void, it is void for all purposes and it cannot be recognized to trace the possession of the person who claims to be in possession of the property under the void agreement.
24. This being the position, this Court finds that the agreement dated 21.03.1978 is unenforceable and the relief of injunction which is sought by the plaintiff also cannot be granted because the possession of the plaintiff cannot be traced with reference to the agreement which is void.
25. For the aforementioned reasons, this Court is of the view that the additional substantial question of law framed above has to be answered in favour of the respondents and against the appellant.
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NC: 2023:KHC-D:9516 RSA No. 5371 of 2010
26. The remaining two substantial questions of law framed on 19.09.2013 do not survive for consideration and accordingly there is no need to answer the said substantial questions of law.
27. Accordingly, the appeal stands dismissed.
Sd/-
JUDGE SH List No.: 2 Sl No.: 4 ..