Karnataka High Court
Sri. N Venkataswamy vs Smt. Subbalakshmamma on 27 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:48584
RSA No. 2477 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 2477 OF 2017 (SP)
BETWEEN:
SRI N. VENKATASWAMY,
S/O NARAYANAPPA,
R/AT ATHIGANAHALLI VILLAGE,
JANGAMAKOTE HOBLI,
CHEEMANGALA POST,
SIDLAGHATTA TALUK - 562 102.
...APPELLANT
[BY SRI C. SHANKAR REDDY, ADVOCATE (PH)]
AND:
1. SMT. SUBBALAKSHMAMMA,
W/O Y.NANJUNDAIAH,
R/AT MUTHUR VILLAGE,
MALLUR POST,
JANGAMAKOTE HOBLI,
SIDLAGHATTA TALUK - 562 102.
2. SRI.A.M.CHIKKAVEERAPPA,
Digitally signed S/O K.MUNIYAPPA,
by ANUSHA V R/AT NO.428, SUBBARAYANAPET,
Location: High CHIKKABALLAPURA -562 101.
Court Of
Karnataka
...RESPONDENTS
(BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE FOR R2 (PH);
R1 - SERVED BUT UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER XLII
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
15.9.2017 PASSED IN RA NO.107/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, SIDLAGHATTA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.8.2012
PASSED IN OS NO.185/2007 ON THE FILE OF THE PRL. CIVIL JUDGE
AND JMFC, SIDLAGHATTA.
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NC: 2024:KHC:48584
RSA No. 2477 of 2017
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 15.09.2017 passed by Senior Civil Judge and JMFC., Sidlaghatta, in R.A.no.107/2012 and judgment and decree dated 28.08.2012 passed by Principal Civil Judge & JMFC., Sidlaghatta, in O.S.no.185/2007, this appeal is filed.
2. Brief facts as stated are that, appellant was plaintiff in O.S.no.185/2007 filed for relief of specific performance of agreement of sale in respect of 1 acre of land in Sy.no.82 of Athighanahalli, Jangamakote Hobli, Sidlaghatta ('suit property' for short). In plaint, it was stated defendant no.1, who was its owner, executed agreement of sale on 09.05.1990 agreeing to sell it for total sale consideration of Rs.12,500/- to plaintiff, after receiving entire sale consideration and delivering possession. Thereafter plaintiff was cultivating it. It was stated, due to condition of non-alienation for a period of 15 years, defendant no.1 was to execute sale deed after completion of said period. Subsequently, when plaintiff demanded execution -3- NC: 2024:KHC:48584 RSA No. 2477 of 2017 of sale deed, defendant no.1 kept postponing it on one pretext or other. Thereafter, defendant no.1 executed another agreement of sale on 29.06.2006 in respect of suit property. Inspite of demands, when defendant no.1 failed to execute sale deed, plaintiff got issued legal notice on 04.05.2007 calling her to execute sale deed on 24.05.2007. It was stated, defendant no.1 was trying to alienate suit property in favour of V Krishna son of Veerappa. Hence, plaintiff filed suit.
3. On appearance, defendant no.1 filed written statement denying plaint averments, except her title. She denied execution of agreements of sale on 09.05.1990 and 29.06.2006 and delivery of possession to plaintiff, but admitted that suit property was sold to defendant no.1 on 29.04.2007.
4. Defendant no.2 in separate written statement admitted he purchased suit property under sale deed dated 27.04.2007 and he was in possession of suit property. It was stated that suit was barred by time and sought dismissal of suit.
5. On basis of pleadings, trial Court framed following issues:
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NC: 2024:KHC:48584 RSA No. 2477 of 2017 "1. Whether the plaintiff proves that the 1st defendant executed agreement of sale dated 09.05.1990 and received full sale consideration of Rs.12,500/-
2. Whether the plaintiff proves that the 1st defendant has Novation / rescission the contract on 29.06.2006 as contended in para 4 of plaint?
3. Whether the plaintiff is ready and willing to perform his part of contract?
4. Whether the suit is barred by limitation?
5. Whether the plaintiff proves that he was in possession as per sale agreement dated 09.05.1990?
6. Whether the plaintiff is entitled for the relief of specific performance as prayed for?
7. What order or decree?"
6. In support of his case, plaintiff examined himself and four others as PWs.1 to 5 and got marked Exs.P.1 to P.20. In rebuttal, defendants no.1 and 2 examined themselves as DWs.1 and 2 and got marked Exs.D.1 to D.15.
7. On consideration, trial Court answered issues no.1 to 6 in negative and issue no.7 by dismissing suit.
8. Aggrieved, plaintiff filed R.A.no.107/2012 on various grounds. Based on same, first appellate Court framed following points:
"1. Whether the appellant had established that 1st defendant executed the agreement of sale dated -5- NC: 2024:KHC:48584 RSA No. 2477 of 2017 09.05.1990 and 1st defendant executed the fresh agreement on 29.06.2006 as contended in para 4 of the plaint?
2. Whether the appellant has established that he is always ready and willing to perform his part of the contract and is in possession of the suit property in terms of the agreement dated 09.05.1990 and is entitled for relief of Specific Performance?
3. Whether the suit is barred by Limitation?
4. Whether the I.A.No.2 filed by the appellant under order 26 Rule 9 r/w Sec.151 of CPC., is deserved to be allowed?
5. Whether the appellant has established that the judgment and decree of the Prl.Civil Judge and JMFC., Sidlaghatta passed in O.S.No.185/2007 dated 28.08.2012 is erroneous and requires the interference of this court?
6. What order or decree?"
9. On consideration, first appellate Court answered points no.1 to 5 in negative and point no.6 by dismissing appeal. Aggrieved, this appeal is filed.
10. Sri Shankar Reddy learned counsel for plaintiff submitted, appeal was against concurrent findings. It was submitted suit was filed for specific performance of agreements of sale at Exs.P16 and P17 and defendant no.1 had executed Power of Attorney in favour of plaintiff at Exs.P1 and P2 ('PoA' for short). It was submitted due to non-alienation clause for 15 years in Grant order, defendant no.1 could not execute sale -6- NC: 2024:KHC:48584 RSA No. 2477 of 2017 deed in his favour, even though plaintiff was ever ready and willing. It was submitted after expiry of non-alienation period, plaintiffs got issued Ex.P18 - legal notice. But, defendant no.1 failed to execute sale deed. It was submitted, having paid entire sale consideration, there was no other obligation on plaintiff. Said fact was not appreciated by both Courts while deciding readiness and willingness.
11. Further, fact that plaintiff was in possession even till today ought to have been considered and decreed suit. Further, fact that delay was on account of period of non-alienation in grant order i.e. bar in law and not attributable to plaintiff. Therefore, trial Court erroneously dismissed suit and same was concurred by first appellate Court. It was submitted, both Courts gravely erred in disbelieving Ex.P17 on ground that date of execution was stated as 29.06.2006, whereas, stamp paper was purchased on 30.06.2006, though it was mere typographical error. In light of above, it was prayed to answer following substantial question of law in favour of plaintiff and allow appeal:
"Whether both Courts were erred in holding that plaintiff failed to establish due execution of Ex.P16 and Ex.P17 by ignoring cogent material on record?"-7-
NC: 2024:KHC:48584 RSA No. 2477 of 2017
12. Sri G.Balakrishna Shastry, learned counsel for defendant no.2 opposed appeal. It was submitted suit was filed belatedly hence barred by time. Though plaintiff contended same was due to non-alienation clause, there was no such recital in agreement. It was further submitted, time was essence of contract as there was specific clause stipulating that sale deed was to be executed within six months. Therefore, both Courts were justified in dismissing suit.
13. It was submitted, while Ex.P16 dated 09.05.1990 required sale deed to be executed within six months of agreement of sale, suit filed on 15.05.2007 i.e. 17 years thereafter would be time barred. Insofar as Ex.P17 - agreement of sale date of its execution was mentioned as 29.06.2006 even when stamp paper on which it was drawn was purchased on 30.06.2006 established that it was created and not genuine.
14. It was further submitted, suit was filed after sale of property by defendant no.1 in favour of defendant no.2, who was bonafide purchaser. Therefore, both Courts rightly dismissed suit. No substantial question of law arose for consideration and sought dismissal of appeal. -8-
NC: 2024:KHC:48584 RSA No. 2477 of 2017
15. Heard learned counsel, perused impugned judgment and decree and record.
16. From above, it is seen, this is plaintiff's appeal against concurrent findings in suit for specific performance. Admittedly, suit property belonged to defendant no.1. As per plaintiff, on 09.05.1990, defendant no.1 executed Ex.P16- agreement of sale by receiving entire sale consideration of Rs.12,500/- and delivered possession. But, in view of bar against alienation within 15 years of grant, sale deed was not executed. And after lapse of period of prohibition, defendant no.1 executed one more agreement of sale on 29.06.2006, acknowledging receipt of sale consideration under earlier agreement. Therefore, plaintiff was entitled for specific performance of agreements of sale.
17. While passing impugned judgment, trial Court referred to deposition of plaintiff as PW.1 and Ex.P16 - agreement of sale dated 09.05.1990. It observed, plaintiff had examined attester as PW.5. It noted that Ex.P16 bear four thumb impressions allegedly of defendant no.1, even though agreement was drawn on a single sheet paper. It also found, -9- NC: 2024:KHC:48584 RSA No. 2477 of 2017 thumb impressions were in two kinds of ink, which was without any explanation. It observed, while PW.5 stated that Munisonnappa, attester had affixed thumb impression, Ex.P16 bear his signature.
18. Likewise, PW.1 deposed that scribe of agreement was PN Nanjundaiah, who had also signed on it, but, no such signature was found. It also noted, PW.2 deposed that while executing Exs.P1 and P2 - PoA, defendant no.1 had stated to have received amount of Rs.12,000/-, but, same was not in his presence. It found no consideration was mentioned in Ex.P2. It further observed, even though Exs.P1 and P2 were stated to have been executed subsequent to Ex.P16 - agreement of sale, neither referred to agreement of sale. Even in Exs.P9 and P10 - statements of defendant no.1 and plaintiff respectively before Land Tribunal, there was no reference to agreement of sale. It observed, since possession was stated as delivered, for want of registration, Ex.P16 could not be looked into. Trial Court further observed, defendant no.1 was illiterate and there was no material to indicate that documents were read over to him for establishing due execution.
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NC: 2024:KHC:48584 RSA No. 2477 of 2017
19. On issue no.3 regarding readiness and willingness, it noted stipulation of six months for execution of sale deed in Ex.P16 dated 09.05.1990, which would expire on 10.11.1990. But, Ex.P18 - legal notice was got issued in year 2007. Same would indicate lack of readiness and willingness by plaintiff. Insofar as suit barred by limitation, it noted as per Article 54 of Limitation Act, 1963, period of limitation for filing suit for specific performance was three years which would expire on 10.11.1993. Since suit was filed on 15.05.2007, it was barred by limitation. On above grounds, it dismissed suit.
20. First appellate Court on re-appreciation concurred with trial Court.
21. Though, it is sought to be contended that suit for specific performance on an agreement of sale, wherein entire sale consideration is paid, there would be no occasion for denying or disputing readiness and willingness of plaintiff. Fact that suit was filed 17 years after date of execution of Ex.P16 on ground that same was to tide over period of non-alienation, both Courts have concurrently held, there was no recital about period of non-alienation in agreement of sale - Ex.P16. Further, mutation sought to be established by reliance on Ex.P17 -
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NC: 2024:KHC:48584 RSA No. 2477 of 2017 agreement of sale was held unacceptable due to various discrepancies including fact that date of agreement was stated to be 29.06.2006, whereas stamp paper was purchased on 30.06.2006. Though, same was sought to be explained as typographical error, same was not pleaded in plaint. On contrary, there is specific reference to agreement of sale dated 29.06.2006. Further, condition in agreement of sale that sale deed was to be executed within six months reserving liberty to plaintiff to seek for its execution in case of default would establish that there was conscious application of mind. Hence, time was essence of contract.
22. As suit was filed after lapse of more than 17 years of agreement of sale, both Courts have rightly held suit was barred by limitation. As such, no substantial question of law arises for consideration, much less one proposed herein.
23. Consequently, appeal is dismissed.
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(RAVI V HOSMANI) JUDGE Psg*/AV/GRD List No.: 1 Sl No.: 43