Karnataka High Court
Maruti S/O. Dattoba Dongare vs Akkatai W/O. Rama Katakar @ Bhui on 4 February, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4th DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
RSA NO.5522/2012 (SP)
BETWEEN:
1. SRI.MARUTI S/O DATTOBA DONGARE,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O MANAKAPUR, TAL: CHIKODI,
DIST: BELGAUM-590001.
2. SRI.ANNA S/O BALU MORE,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O MANAKAPUR, TAL: CHIKODI,
DIST: BELGAUM-590001.
.. APPELLANTS
(BY SRI.SRINAND A.PACHHAPURE & SRI.RAJENDRA R.PATIL,
ADVS.)
AND:
SMT.AKKATAI W/O RAMA KATAKAR @ BHUI
SINCE DECEASED BY HER LRS.
1A. SMT.SHOBHA W/O BABU THOMBARE,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O MANAKAPUR, TAL: CHIKODI,
DIST: BELGAUM-590001.
1B. SMT.BHARATI W/O RANGA THOMBARE,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O SHIVAJI CHOWK, HUPRI,
TAL: HATAKANAGALE, DIST:KOLHAPUR-416203,
MAHARASHTRA STATE.
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SRI.SATAPPA S/O RAMA KATAKAR @ BHUI,
SINCE DECEASED BY LRS.
2A. SMT.REKHA W/O SATAPPA KATAKAR @ BHUI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O MANAKAPUR, TAL: CHIKODI,
DIST: BELGAUM-590001.
2B. KUMAR SURAJ S/O SATAPPA KATAKAR @ BHUI,
AGE: 11 YEARS, OCC: STUDENT,
2C. KUMAR KIRAN S/O SATAPPA KATAKAR @ BHUI,
AGE: 06 YEARS, OCC: STUDENT,
R2B AND R2C ARE MINORS,
REP.BY THEIR NATURAL MOTHER GUARDIAN R2A.
3. SRI.MARUTI S/O KRISHNATH VEER,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O WARD NO.8, SUTAR MALA, DAKE GALLI,
ICHALAKARANJI, TAL: HATAKANAGALE,
DIST: KOLHAPUR-416203, MAHARASTRA STATE.
.. RESPONDENTS
(BY SRI.RAMESH I. ZIRALI AND SRI.SHIVARAJ S.BALLOLI,
ADVS. FOR R2(A & B) AND R3
R1A AND R1B ARE SERVED,
R2B & R2C ARE MINORS REP.BY R2A)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 17.02.2012
PASSED IN R.A.NO.42/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, CHIKODI, ALLOWING THE
APPEAL FILED AGAISNT THE JUDGMENT DATED 19.06.2010
AND THE DECREE PASSED IN O.S.NO.221/2005 ON THE FILE
OF THE PRL. CIVIL JUDGE AND JMFC, CHIKODI, DISMISSING
THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT,
POSSESSION AND ALTERNATIVELY REFUND OF EARNEST
AMOUNT.
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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs being aggrieved by the judgment and decree dated 17.02.2012 passed by the Fast Track Court-I, Chikodi in R.A.No.42/2010 refusing to grant the relief of specific performance has filed this appeal.
2. The facts of the case are that defendant No.1 is the owner of the suit schedule property. The occupancy right in respect of the suit properties was granted by the Land Tribunal in favour of defendant No.1 as per order dated 18.06.1988. The Tahasildar, Chikodi issued form No.10 on 27.06.1988 in favour of defendant No.1 and her name was duly entered as Kabjedar-owner of the suit lands. Defendant No.1 was in need of money and she has agreed to sell the suit property to the plaintiffs for a sum of Rs.42,000/- and she has received earnest money of Rs.30,000/-. The 4 terms and conditions of sale was reduced into writing and defendant No.1 executed an agreement of sale on 18.02.1990 in favour of the plaintiffs. The defendant agreed that sale deed is to be executed after expiry of non-alienation period and non-alienation period expires in the year 2003. After expiry of non- alienation period, the plaintiff got issued a legal notice on 05.05.2005 calling upon the defendant to execute the sale deed by receiving balance consideration amount. Defendant No.1 replied to the said legal notice denying the contents of the legal notice. Hence, the plaintiff constrained to file a suit for specific performance of contract.
3. Defendants appeared and filed written statement denying execution of agreement of sale, receiving consideration amount and further contended that defendant No.1 never agreed to sell the suit property to the plaintiffs and the plaintiffs in collusion 5 with the scribe, attesting witnesses have created the agreement of sale with an intention to grab the suit property. Hence, the suit filed by the plaintiffs is barred by limitation and seeks to dismiss the suit.
4. The trial Court on the basis of the pleadings framed following issues:
i) Whether the plaintiffs prove that, defendant No.1 has executed an agreement of sale in respect of suit properties for sum of Rs.42,000/- by receiving an advance amount of Rs.30,000/-?
ii) Whether the plaintiffs further prove that, it was agreed by the parties that, sale deed is to be executed after completion of restriction period?6
iii) Whether the plaintiffs further prove that, they were/are ready and willing to perform their part of contract?
iv) Whether the plaintiffs further prove that, defendant No.1 has failed to perform his part of contract?
v) Whether the defendants prove that, the suit is barred by time?
vi) Whether the plaintiffs are entitled for the relief of specific performance of contract or alternatively for return of advance amount with interest at 18%?
vii) What order or decree?
5. The plaintiffs in order to prove the case, plaintiff No.1 examined as P.W.1 and two witnesses as P.Ws.2 and 3 and got marked Exs.P1 to P18. On 7 behalf of the defendants, defendant No.1 examined as D.W.1 and got marked Exs.D1 to D8.
6. The trial Court on the basis of the pleadings, oral and documentary evidence held that plaintiffs have failed to prove that defendant No.1 executed an agreement of sale in respect of the suit properties for a sum of Rs.42,000/- by receiving advance amount of Rs.30,000/-, further held that the plaintiffs have failed to prove that sale deed is to be executed after completion of restriction period, further held that plaintiffs were not ready and willing to perform their part of contract, further held that plaintiffs have failed to prove that defendant No.1 has failed to perform his part of contract, further held that defendant has failed to prove that suit is barred by time and consequently, dismissed the suit of the plaintiff.
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7. The plaintiffs being aggrieved by the judgment and decree passed by the trial Court filed R.A.No.42/2010 before the FTC-I, Chikodi. The first appellate Court framed the following point.
i) Whether the impugned judgment and decree requires the interference of this court and that the appeal is fit to be allowed?
8. The first appellate Court after re- appreciating the evidence, held that the judgment and decree passed by the trial Court requires to be interfered and accordingly, allowed the appeal in part and the suit of the plaintiffs is decreed in part for refund of advance amount of Rs.30,000/- with interest at 6% p.a. from the date of suit till realization against the defendants. However, the dismissal of the suit 9 with respect to specific performance of contract is confirmed.
9. The appellants being aggrieved by the judgment and decree passed in O.S.No.221/2005 dated 19.06.2010 refused to grant the relief of specific performance of contract which is confirmed in R.A.No.42/2010 dated 17.02.2012 filed this appeal.
10. Heard the learned counsel for the appellants.
11. Learned counsel for the appellants submits that when the first appellate Court has held that the defendant No.1 has executed agreement of sale in favour of the plaintiffs, the first appellate Court was not correct in refusing to grant the relief of specific performance. On the contrary, the first appellate Court committed an error in confirming the decree 10 passed by the trial Court rejecting the relief of specific performance.
12. Perused the judgment and decree passed by the Courts below. It is not in dispute that occupancy right of the suit land was granted in favour of defendant No.1 on 18.06.1988 and form No.10 was issued on 27.06.1988. As per the terms and conditions of the occupancy right, there is restriction to transfer the suit land within a period of 15 years. Defendant No.1 has executed an agreement of sale on 18.02.1990, i.e., within the prohibitory period of 15 years. Section 61(3) of the Karnataka Land Reforms Act, 1961 reads as under:
"61(3): Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77." 11
13. In the present case, defendant No.1 executed an agreement of sale on 18.02.1990. The first appellate Court has held that defendant No.1 has executed an agreement of sale in favour of the plaintiffs but refused to grant the relief of specific performance by exercising the discretion under Section 20 of the Specific Relief Act. The defendant has not challenged the findings given by the first appellate Court.
14. That the agreement entered in between the plaintiffs and defendant No.1 is hit by Section 61 of the Karnataka Land Reforms Act. The Hon'ble Apex Court in the case of Smt.Narayanamma and another Etc. Vs Govindappa and others Etc. reported in AIR 2019 Supreme Court 4654, wherein it is held that, agreement executed during non-alienation period of 15 years is illegal as hit by Section 61 of the Act. The defendants and plaintiffs 12 are equally responsible for illegal agreement and suit for specific performance, not maintainable.
15. The learned counsel for the appellants submits that, Narayanamma's case is not applicable to the present case on the ground that, in Narayanamma's case, there was mortgage deed and subsequently possession was delivered. The Hon'ble Apex Court in paragraph 11 has clearly framed point for consideration, "whether the agreement for sale dated 15.05.1990 executed by Bale Venkataramanappa in favour of the plaintiff would be enforceable in law or not". The said point for consideration was pursuant to only agreement of sale and the suit was filed based on the agreement of sale. Even in the present case also, suit for specific performance was filed based on agreement of sale. Hence, the submission of the learned counsel for the 13 appellants that Narayanamma's case is not applicable, is negated.
16. In the aforesaid judgment, similar facts are involved, i.e., "That the agreement to sell was executed on 15.05.1990, the suit property was granted in favour of the defendant and as per the grant certificate, there was a 15 years bar on alienation of the suit property. The period of the said bar was to expire on 13.10.1988 and the said agreement was executed during the non-alienation period of 15 years. The plaintiff has filed a suit for specific performance of contract in the aforesaid judgment. The trial Court held that, since the agreement was contrary to the statutory bar, it was void in law and as such the suit for specific performance of the contract was not maintainable". The judgment passed by the trial Court was confirmed by the Hon'ble Apex Court in the aforesaid judgment. 14
17. In the present case also, it is admitted that occupancy right was granted on 18.06.1988 and form No.10 was issued on 27.06.1988 and the agreement was executed on 18.02.1990. The said agreement was executed during the non-alienation period of 15 years. The facts involved in the aforesaid judgment and the facts involved in the present case are similar. The Narayanamma' case (supra) is aptly applicable to the case on hand.
18. The agreement of sale executed by defendant No.1 in favour of the plaintiffs is within the prohibitory period of 15 years. As per Section 61(3) of the Karnataka Land Reforms Act, the agreement said to be invalid. Considering the aforesaid judgment of the Hon'ble Apex Court, the suit filed by the plaintiffs is not maintainable.
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Accordingly, the appeal filed by the appellants/plaintiffs is dismissed.
Sd/-
JUDGE MBS/-