R.Nagaraja vs Chikka Venkatamma on 22 July, 2013

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Karnataka High Court

R.Nagaraja vs Chikka Venkatamma on 22 July, 2013

Bench: Ram Mohan Reddy

                           1
                                                 R.P.82/13




IN THE HIGH COURT OF KARNATAKA, BANGALORE

       DATED THIS THE 22ND DAY OF JULY, 2013

                       BEFORE

  THE HON'BLE MR.JUSTICE RAM MOHAN REDDY

            REVIEW PETITION NO.   82 OF 2013
                          IN
      REGULAR SECOND APPEAL NO. 1244 OF 2004

BETWEEN

R.NAGARAJA
S/O RAMAIAH
AGED ABOUT 56 YEARS
R/O DODDA BHAJANE
MANE ROAD
CHICKBALLAPUR TOWN
PIN CODE-562101.
                                           ... PETITIONER

(By Sri. S. N. ASWATHANARAYAN, ADVOCATE)

AND

CHIKKA VENKATAMMA
W/O VENKATAKRISHNAIAH
SINCE DEAD BY LRS

  1. THIMMAIAH
     S/O VENKATAKRISHNAIAH
     MAJOR
     R/A GEREHALLI, KASABA HOBLI
     CHICKBALLAPUR TALUK AND DISTRICT
     PIN CODE-562101
                            2
                                                 R.P.82/13



  2. VENKATAPATHI
     S/O VENKATAKRISHNAIAH
     MAJOR
     R/A GEREHALLI, KASABA HOBLI
     CHICKBALLAPUR TALUK & DISTRIT
     PIN CODE-562101

  3. G V VARALAXMI
     W/O PUTTAPPA, MAJOR
     R/A KUDUVATHI
     NANDI HOBLI
     CHICKBALLAPUR TALUK AND DISTRICT
     PIN CODE-562101

  4. KRISHNAMMA
     D/O VENKATARAMANAPPA
     AGED ABOUT MAJOR
     R/O GEREHALLI
     KASABA HOBLI
     CHICKBALLAPUR TALUK AND DISTRIT
     PIN CODE-562101
                                        ... RESPONDENTS

(By Sri. K V NARASIMHAN, ADVOCATE FOR R1 TO R3
       NOTICE TO R4 IS DISPENSED WITH V/O.
       DATED 9.4.2013)

     REVIEW PETITION FILED UNDER ORDER 47 RULE 1
R/W SEC.151 OF CPC, PRAYING FOR REVIEW THE ORDER
DATED 23-09-2010 PASSED IN RSA NO.1244/2004, ON
THE FILE OF THE HON'BLE HIGH COURT OF KARNATAKA,
BANGALORE; AND ETC.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
                                 3
                                                         R.P.82/13




                              ORDER

This petition is filed by the first respondent in R.S.A. No.1244/2004 for review of the order dated 23.09.2010 allowing the appeal.

2. The review petitioner instituted O.S. No.452/1992 for specific performance of an agreement of sale of a certain immovable property, being agricultural lands, of which, occupancy right was conferred on the defendants. That suit was opposed by filing written statement inter alia contending that the claim for specific performance is unavailable since the occupancy rights conferred on the defendants was laced with a condition of non-alienation for a period of 15 years and that the alleged agreement of sale was entered into within the non-alienation period, amongst other grounds.

R.P.82/13

3. The trial Court dismissed the suit on accepting the said contention, whereafterwards, the plaintiff preferred R.A. No.15/1999, whence the appeal was allowed, the judgement and decree of the trial Court set aside and the suit decreed. That judgment and decree was called in question in RSA No.1244/2004 by respondents 1 to 3 - defendants, whence the appeal was allowed following the decision of this Court in K.Abdul Hameed and Others Vs. State of Karnataka1 observing that when there is a statutory prohibition for the sale within the period of non-alienation, it cannot be circumvented and land cannot be parted for valuable consideration, by device of `agreement of sale`.

4. Learned Counsel for the review petitioner is correct in his submission that a Division Bench of this 1 1998(1) KLJ 502 5 R.P.82/13 Court in Mrs. Sushila A. Dass Vs. Mrs. Mary Bolger2 following the earlier decisions of this Court observed that: it is for the authorities conferred with the powers under the Karnataka Land Reforms Act, to examine the legality of the transactions and not for the Civil Court and that there is no bar for the Civil Court to grant the specific performance of contract of sale of agricultural land notwithstanding the provisions of Section 80(b) of the said Act.

5. This aspect of the matter, when not considered by the learned Judge while allowing R.S.A. No.1244/2004, I am of the considered opinion that the petitioner has made out case for review of the judgment and decree.

In the result, this review petition is allowed for the aforesaid reason and not on the premise that the review 2 ILR 1988 KAR 1413 6 R.P.82/13 petitioner was not extended an opportunity of hearing before the learned Judge. The judgment and decree dated 23.09.2010 in RSA No.1244/2004 is set aside and RSA No.1244/2004 is restored to file.

List for hearing after 05.08.2013.

Sd/-

JUDGE sma

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