Karnataka High Court
Manasa Housing Co-Operative Society ... vs Marikellaiah S/O Late B.L. ... on 20 March, 2006
Equivalent citations: AIR 2006 KARNATAKA 273, 2007 (1) ALJ (NOC) 71 (KAR.) = AIR 2006 KARNATAKA 273, 2006 (5) AIR KANT HCR 603, 2006 A I H C 3525, (2007) 3 KANT LJ 472
Author: Subhash B. Adi
Bench: S.R. Bannurmath, Subhash B. Adi
JUDGMENT Subhash B. Adi, J.
1. This is plaintiffs appeal, questioning the judgment and decree passed in O.S.No. 92/97 dated 22.12.01 on the file of the II Addl. Civil Judge(Jr. Dn) & Mysore.
2. The suit is one for grant of decree for specific performance of an agreement for sale deed dated 18.9.93 and 18.10.93, by directing the defendants to receive the balance of sale consideration and execute the registered sale deed conveying the schedule property in favour of the plaintiff and deliver the vacant possession of the suit schedule property.
3. Plaintiff is a registered Housing Co-operative Society, engaged in the business of forming layout and distribution of sites to its members. Plaintiff had entered into an agreement of sale with the defendants-1 and 2 under an agreement dated 18.9.1993 for purchase of suit schedule property on consideration of Rs. 3,30,000/- and advance of Rs. 10,000/- was paid on the said date and further agreed to pay Rs. 40,000/- within 30 days from the said date. The balance of sale consideration was to be paid at the time of registration of sale within six months from the date of the agreement. On 18.10.1993, plaintiff paid further sum of Rs. 40,000/- under separate receipt, and the time for completion of the sale transaction was refixed as nine months from 18.9.1993. It. is the case of the plaintiff that subsequently, plaintiff made several payments to the defendants on different dates to the tune of Rs. 1,89,000/- to the defendants and alleged that the plaintiff was always ready and willing to perform its part of contract.. However, on account of institution of a suit in O.S.No. 50/1994 by the sisters of the defendants and obtaining a temporary injunction restraining the alienation of the suit, properties therein including the suit schedule property the sale transaction could be completed. Plaintiff further alleged that it got impleaded in the said suit and thereafter, the plaintiff also filed another suit in O.S.No. 130/1996 seeking permanent injunction restraining the defendants from alienating the suit schedule properties to third party. It is the case of the plaintiff, that it was always ready and willing to perform its part of contract by paying the balance of sale consideration of Rs. 1,40,000/-. However, on account of the suit being filed by the sisters of the defendants and the injunction being operative against the plaintiff and the defendants, the sale transaction could not be completed in the time stipulated. It is the case of the plaintiff that the time was not the essence of the contract and the delay was at the instance of the defendants and not at the instance of the plaintiff.
4. Both the defendants filed separate written statement. First defendant interalia admitted the agreement dated 18.9.1993, however, alleged that the plaintiff was not ready and willing to perform its part of contract. This defendant admitted the payment of Rs. 10,000/- and also Rs. 40,000/-. However, he denied the subsequent, payments alleged to have been made by the plaintiff and further alleged that the plaintiff was never ready and willing to perform its part, of contract and further alleged that the sale transaction was to be completed in the stipulated time and the plaintiff has failed to perform its part of contract by not paying the balance of sale consideration within the stipulated time. This defendant also denied that they had colluded with the sisters to get the suit, filed in O.S.No. 50/1994 and alleged that the plaintiff has colluded with the sisters and got filed the said suit.
5. The second defendant filed a separate written statement. He also admitted the agreement of sale and also the receipt of Rs. 10,000/- and Rs. 40,000/-, however, he also denied the subsequent payment alleged to have been made by the plaintiff and alleged that these defendants had not colluded with the sisters in filing O.S.No. 50/1994 and it is the plaintiff, who had filed the suit in O.S.No. 130/1996 for permanent injunction with a view to avoid the performance of the contract on the part of the plaintiff.
6. Both the defendants alleged that on account of the failure on the part of the plaintiff to perform its part of contract, plaintiff alone is responsible for the forfeiture of the contract.
7. The trial Court based on these pleadings, framed as many as four issues which are as under:
1. Whether the plaintiff proves that the defendants have agreed to sell the suit schedule property for total consideration of Rs. 3,30,000/- and executed an agreement of sale on 18.9.93?
2. Whether the plaintiff further proves that the defendants received a sum of Rs. 1,89,000/- as part payment towards the sale consideration?
3. Whether the plaintiff further proves that it is always ready and willing to perform his part of the contract?
4. What order or decree?
8. Before the trial Court, the Secretary of the plaintiff - Society got himself examined as PW-1 and got Exs.P1 to P11 marked. However, defendants did not lead any evidence on their part. The trial court based on the evidence, recorded a finding that the plaintiff has proved that the defendants have entered into an agreement of sale of the suit schedule property for the total sale consideration of Rs. 3,30,000/- and also gave a finding that the plaintiff has proved that the defendants have received a sum of Rs. 1,89,000/- as part of the sale consideration. However, the trial court held that the plaintiff has failed to prove that it was always ready and willing to perform its part of contract and dismissed the suit.
9. The plaintiff being aggrieved by the said judgment and decree, has preferred this appeal. Though the trial court has given findings in favour of plaintiff on issue Nos. 1 and 2, the defendants - respondents herein have not filed any cross-objections or cross appeal.
10. We heard Sri. Rajendra Prasad, learned Senior Counsel for the appellant and Sri. N.S. Satish Chandra, learned Counsel for the respondents R2 (a-1).
11. The learned Senior Counsel submitted that the trial Court was not justified in giving a finding that the plaintiff was not ready and willing to perform its part of contract and in support of his contention, he referred to Ex.P2 - a receipt dated 18.10.1993 wherein the plaintiff had paid further sum of Rs. 40,000/- in furtherance of the agreement dated 18.9.1993 and six months' time originally fixed under the agreement dated 18.9.1993 was refixed as nine months. He also submitted that the time was never treated as essence of the contract, as the defendants subsequent to the receipt dated 18.10.1993 have received further sum on different dates and in all the defendants have received Rs. 1,89,000/- and he submitted that, the time was never treated as essence of the contract between the parties.
12. Nextly, he referred to Ex.P3 - a letter dated 10.6.1994 written by an Advocate on behalf of the plaintiff interalia requesting the defendants to meet him for discussion in connection with the sale transaction. By refining to this document, he submitted that, the plaintiff had always shown its ready and willingness to perform its part of contract and it had also called upon the defendants much before the expiry of the time stipulated in receipt dated 18.10.1993. However, the defendants did not perform their part of contract and in turn, they went on receiving the amount from the balance of sale consideration. In this connection, he also referred to Exs.P7 and P8 to prove that, defendants-1 and 2 have received the balance of sale consideration by signing the vouchers. Based on these documents, learned Senior Counsel submitted that in the light of Exs. P 2, 3, 4, 7 and 8, it is clear that not only the time is not essence of the contract, but the defendants themselves had postponed the execution of the sale by receiving the balance of sale consideration from time to time without coming forward to execute the regular sale deed.
13. Learned Senior Counsel further submitted that there is no dispute of execution of agreement of sale and there is also no dispute of the sale consideration fixed under the agreement of sale. The defendants have also not disputed the receipt, of Rs. 10,000/- and Rs. 40,000/-on two different dates. In the light of the admission and also in the light of the findings of the court based on the evidence of the plaintiff, that the plaintiff has already paid Rs. 1,89,000/- as against Rs. 3,30,000/-, learned Senior Counsel submitted that the findings arrived at by the trial court that the plaintiff is not ready and willing to perform its part of contract is one contrary to the evidence on record. He also further submitted, that to the contrary, the defendants have not lead any evidence. In view of this, learned Senior Counsel submitted that the finding of the trial court on issue No. 3 is not tenable and runs contrary to the evidence.
14. Nextly, he contended that the sisters of defendants had filed O.S.No. 50/ 1994 wherein temporary injunction was operating against the defendants restraining the alienation of the suit properties therein inclusive of the suit schedule property and in which, this plaintiff got impleaded and this fact is not denied by the defendants, in turn he relied on paragraph-11 of the written statement filed by the defendant No. 2, which reads as under:
Therefore without prejudice to the efforts of the defendants readiness and terms of the contract, the non-performance of the terms of the agreement is due to legal bar and not that of any other physical or mistake of this defendant.
He submitted that the default in not performing the contract is attributable to the defendants and not to the plaintiff. Learned Senior Counsel also submitted that in view of the substantial amount having been paid towards the sale consideration and also in view of the suit having been filed by the sisters of the defendants and also in view of the fact that the defendants had received the payment subsequent to the time mentioned in the Ex.P2, the trial court was not justified in holding that the plaintiff has not proved its ready and willingness to perform its part of contract. Based on these evidence and also in the light of the defendants not leading any evidence, the learned Senior Counsel submitted that the findings arrived at by the trial court that the plaintiff is not ready and willing to perform its part of contract, is not sustainable in law. He also further submitted that normal rule in specific performance suit is to grant decree for specific performance contract and exception is only on the equitable ground and in this case no equity lies with the defendants. He further submitted that no hardship or injury would be caused to the defendants it the sale is executed. He also submitted that in the contract relating to immovable property, time will not be the essence of contract unless the parties have specifically fixed and made the time as the essence of the contract. He submitted that in this case, in the light of the evidence lead by the plaintiff, time is not the essence of the contract nor there is any evidence to show that the time was made as essence of the contract. He further submitted that the judgment and decree of the trial court is required to be set aside and further submitted that suit be decreed as prayed for.
15. Sri N.S. Satish Chandra, learned Counsel appealing for the respondents in this appeal submitted that the trial Court was justified in dismissing the suit by holding that, the plaintiff was not ready and willing to perform its part of the contract. In this connection, he firstly submitted that the appellant, in order to seek the discretionary relief of grant of specific performance of the contract, had to come with clean hands and in this context he relied on Exs. D-1, D-2 and D-3 to point out that there is variance in the pleading and the proof.
16. He pointed out from Exs. D-1, D-2 and D-3, to show that the plaintiff had addressed a letter to the first defendant on 01.07.1999 inter alia stating therein that the society had entered into an agreement with the defendants in respect of land bearing Survey No. 305/1 measuring 6 acres situated at Mandakalli village, Kasaba Hobli and pointed out that the plaintiff has agreed to pay Rs. 3,50,000/- extra. He also pointed out from identical letter addressed to the second defendant. He also referred to Ex.D-3, a notice issued by the plaintiff dated 09.04.1996 to the first defendant to show that Rs. 1,05,000/- is alleged to have been paid to the first defendant and the balance of Rs. 60,000/- is to be paid and further stated therein that, Rs. 25,000/- is paid for the discharge of the mortgage in favour of one Puttayallakkaiah. He also referred to Ex.D-4, a notice addressed to second defendant to show that he has received Rs. 81,500/- and the society is due to pay balance amount of Rs. 83,500/-. On these documents, the learned Counsel for the respondents submitted that there is clear variation from the original contract as per Ex.P-1 and pointed out that under the agreement of sale, the sale consideration was agreed at Rs. 3,30,000/- whereas Ex.D-1 and D-2 shows entirely different figure and makes an entirely new contract. But to the contrary plaintiff in its pleading has stated that the sale consideration is at Rs. 3,50,000/- as alleged in Ex.P-1. In support of this contention, the learned Counsel relied on a decision in the case of Ganesh v. Dr. C.S.G.K. Shetty and Ors. and submitted that the relief of specific performance is a discretionary relief and is not given merely because it is lawful, but it is governed by sound judicial principles and further submitted that the soundness of law must be absolute, clear and certain. He also submitted that once the defendant denies a contract, the plaintiff must prove the contract in question by adducing the evidence and if the evidence is contrary to the pleadings and documents then the Court should not exercise the discretion for grant of decree for specific performance.
17. He also contended that the payments made as per Exs.P-7 and 8 are not admitted and in this connection he relied on the cross-examination of P.W-1 to show that the relevant documents and the materials in possession of the plaintiff are not produced and submitted that an adverse inference is required to be drawn against the plaintiff. In this connection, he referred to the cross-examination of P.W-1 and pointed out that a specific suggestion is made to P.W-1 regarding the accounts maintained by the plaintiff and in this connection P.W-1 has admitted that "the day to day transactions are entered in the day book and the account books are audited every year and the last, time was during the year 1997-98 and all the payments made to the defendants have been noted in the day book and those day books are in the custody of the plaintiff and there is no impediment for producing the said books before the Court", Relying on this statement of P.W-1 in the cross-examination, he submitted that, though they have the material evidence to prove the alleged payment made to the defendants, same is not produced, despite same being in the custody of the plaintiff. In this connection, he also relied on a judgment in the case of Gopal Krjshnaji Ketkar v. Mohamed Haji Latif and Ors. and submitted that adverse inference is required to be drawn against the plaintiff for non production of the relevant document and material for the proper adjudication of the issues involved in this case. He relied on paragraphs 5 and 6 of the said decision.
18. It is his further contention that though the respondents-defendants have not filed appeal against the findings on the issues 1 and 2, still the respondents-defendants are entitled to address their arguments, to show that the findings on issue Nos. 1 and 2 are required to be interfered in this appeal. In this connection, he relied on a judgment in the case of Nirmala Bala Ghose and Anr. v. Balai Chand Ghose and Ors. and submitted that if the appellate Court comes to the conclusion that the findings reached by the trial Court is inconsistent with that of the trial Court in adjudication of the rights claimed by the appellant and if it. is found necessary, it can grant a relief to a person who has not appealed. Another judgment in in the case of Ravinder Kumar v. State of Assam and Ors. stating that the respondent can question the adverse findings without filing cross-objections and further relied on judgment reported in 1971 (2) Mys. L J 168 in the case of Hanuman Transport Co. (P) Ltd., UDUPI v. UDUPI Municipality.
19. The third ground that the learned Counsel for the respondent, urged is that the plaintiff society is a registered cooperative society engaged in formation of layout and using the land for non-agricultural purpose, it cannot hold an agricultural land in view of the provisions of Sections 79B and 80 of the Karnataka Land Reforms Act (in short referred to as 'Act') and submitted that there is a clear legal bar to hold the agricultural land by a person who is not an agriculturist and further submitted that the plaintiff being a society and not engaged in agricultural activity is not entitled to hold agricultural land. It is further submitted that, what is agreed to be sold is an agricultural land and is not liable to be transferred in favour of the plaintiff as the plaintiff is barred to hold land in view of the provisions of Sections 79B and 80 of the Act. In this connection, he relied on the judgment reported in AIR 2001 GUJARAT 90 in the case of Ashwinkumar Manilal Shah and Ors. v. Chhotabhai Jethabhai Patel and Ors. and submitted that the agreement becomes invalid in view of the provisions of Sections 79B and 80 of the Act. Similarly, he relied on the judgment in the case of V. Gunda Reddy v. The Secretary Department Of Revenue and Ors. and submitted that Sections 79B and 109 bar the holding of the agricultural lands by the society.
20. He also relied on the judgment reported in 2001(6) SCALE 226 in the case of Maneklal Mansukhbhai Cooperative Housing Society Ltd. v. Rajendra Kumar Maneklal Shah and Anr. and submitted that society is incompetent to hold an agricultural land. Relying on the provisions of Sections 79B and 80 of the Karnataka Land Reforms Act, 1961 the learned Counsel for respondent stated that plaintiff is not entitled for decree for specific performance.
21. The main contention of the learned Counsel for the respondents is that, there is a variance in the pleading and proof, that the plain tiff was never ready and willing to perform his part, of the contract and that due to the non-production of material documents and evidence before the Court, an adverse inference is required to be drawn against the plaintiff and that the suit for specific performance is not. maintainable as the plaintiff being a society not engaged in agricultural activity is not entitled to hold an agricultural land in view of the bar under Sections 79B and 80 of the Act.
22. The other contention of the learned Counsel for the respondent is that there is a steep hike in the price of the lands and if the decree for specific performance is granted, defendants would be put to great hardship. Based on these contentions, he submitted that the decree for specific performance being a discretionary relief, the Courts, as a matter of course, should not grant the decree even if the contract is valid.
23. By way of reply, learned senior counsel Mr. Rajendra Prasad, submitted that there is no variance in the pleading and proof and he specifically pointed out that what is agreed, is mentioned in Ex.P-1 and in furtherance of Ex.P-1, Exs.P-2, 7 and 8, came in existence, and the receipt of the amount, is also proved. The defendants have not led any evidence to show that there is any discrepancy in the pleading and proof. He relied on the admissions made by the defendants 1 find 2 in the written statement to the effect that there is only one contract between the plaintiff and defendants i.e., dated 18.09.1993 and in this regard he pointed out from the averments made in the written statement by the defendants 1 and 2, and pointed out that they have not disputed the agreement between the plaintiff and the defendants dated 18.09.1993. As regards Exs.D-1 and D-2, the learned senior counsel submitted that as a gesture of good will, the plaintiff had agreed to pay additional amount, but, that by itself will not change the nature of contract, nor there is any separate agreement except the one in question. Any additional payments, if at all agreed too, same does not violate the original agreement, and does it not amount to an alteration of the agreement nor amounts variance in the pleading or the proof. The plaintiff submitted that, in furtherance of the pleading, evidence has been led by the plaintiff and submitted that there is no variance as far as pleadings and proof is concerned and further submitted that the judgment relied by the learned Counsel for the respondent in the case of Ganesh Shet v. Dr. C.S.G.K. Setty and Ors. is not applicable to the facts and circumstances of this case, as this is not the case of alteration of contract. In fact, both the parties have admitted the contract and it is clear from the pleadings that it is the only contract which is in issue and accordingly, the evidence is also led in respect of the said contract. As against the contention of the respondent regarding non-production of the books of accounts by the plaintiffs. The learned senior counsel submitted that the plaintiff has produced the relevant vouchers Exs.P-7 and P-8 and the signature of Exs.P-7 and P-8 are proved. The amount mentioned therein is also not in dispute and further if the vouchers are not disputed then, there is no reason for production of accounts book. If the execution of the vouchers is not seriously disputed, the question of production of other documents does not arise and does not call for drawing of adverse inference against the plaintiff, as plaintiff has proved his case by producing the relevant documentary evidence which are direct in nature.
24. As against the ready and willingness, the learned senior counsel submitted that he has already made submission and in addition to that he submitted that when the defendant No. 2 in his written statement admits that there was a legal bar for execution of the sale deeds, now defendants cannot be allowed to urge that the plaintiff is not ready and willing to perform his part of the contract. As against the contention raised by the learned Counsel for the respondent, that the contract is violative of Section 79B and 80 of the Act, learned senior counsel referred to Sections 79B and 80 of the Act and further he referred to Section 132 of the Act and pointed out that the civil Court has no jurisdiction to go into the question as to whether transaction under the agreement of sale is in violation of Sections 79B and 80 of the Act. It is the exclusive domain of the statutory authority under the Karnataka Land Reforms Act and he further submitted that this issue cannot be agitated in this appeal or in the suit and further he pointed out that there is no Pleading or issue raised before the trial Court. He referred to Section 32, which reads thus:
No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by, the Deputy Commissioner, an authority under Sub clause (1) of Section 77, Assistant Commissioner, prescribed authority under Section 83, the Tribunal, the Tahsildar, Karnataka Appellate Tribunal or the State Government in exercise of their power of control
25. He submitted that any dispute relating to violation of Sections 79B and 80, which is required to be adjudicated under Section 83 are required to be dealt with only by the statutory authorities under the Karnataka Land Reforms Act and not by the Civil Court. In this connection, he relied on the judgment reported in ILR 1973 KAR 211 in the case of Rangarao v. Raghavendracarya and pointed out that the question whether the transaction is contrary to any of the provisions of the Act (Mysore Land Reforms Act) has to be decided by the prescribed authority under Section 83 and not by any other authority. The Civil Court cannot decide whether the transaction is void or not. He further submitted that in view of the exclusive power having been conferred on the statutory authority, it is the said authority alone which can exercise that power and not he Civil Court. Civil Court can only decide whether the plaintiff is entitled for a decree for specific performance or not. He also relied on another judgment of this Court in the case of Kanvihalu Cmnnappa v. Tiqari Shivappa and Ors. a case arising under the provisions of Sections 79B and 80 of the Act and submitted that the question whether the sale is in contravention of Sections 79B and 80 would arise only when the sale is completed and not before. The provisions of Sections 79B and 80 of the Act would be attracted only after the execution of the sale deed and not before the same. He also submitted that the violation arises when there is a transfer of the agricultural land by registered sale deed and not before the actual transfer of the same. Learned senior counsel also relied on the another judgment reported in 1987(1) KLJ 16 in the case of Jose v. Anantha Bhat and submitted that the Civil Court is not competent to decide the issues covered under Section 132 of the Act. The question as to the legality or illegality of such transaction cannot by itself create bar to enforce the contract on plausible result of such enquiry under Section 83 of the Act and further submitted that such a contention is not taken either in this appeal or in the suit. He also pointed out that the grant of decree for specific performance of contract does not attract the provisions of Section 79B or Section 80 of the Act. In this regard, he also referred to another decision in the case of Yogambika v. Narsingh and pointed out that even in case where there is a bar of transfer of land for a period of 10 years, this Court has held that such non-alienation clause of 10 years would not bar for granting decree of specific performance of the contract. He also relied on another judgment mentioned supra and referred to paragraph-4 to 6:
the Phrase "holder" of the land in Section 79-B must be construed from that perspective. The contra-contention violates the scheme and defeats the purpose of the Act. It is to be remembered that in respect of the matters covered under the Act, the jurisdiction of the Civil Court; has been ousted and conferred on the Tribunals under the Act. There is no forum created under the Act to decide the rights of the landowner and the erstwhile tenant.
that once the power is specifically conferred on the authorities mentioned in the Act same cannot be exercised by the Civil Court. A forum is created under the Act to decide all such rights which are required to be adjudicated under the Act. In this case, the Civil Court cannot, be called upon to decide the question which are required to be decided by a special forum. He also submitted that the respondents are not entitled to challenge the findings of the trial Court on issues 1 and 2 as the respondents who were defendants in trial Court having not. chosen to enter witness box and contest the suit. They are not entitled to invoke the provisions of Order 41 Rule 33 and call upon this Court to set aside the findings on issues 1 and 2. He also pointed out that no cross objection or appeal has been filed by challenging the same. On these contentions, learned senior counsel submitted that the plaintiff having proved the agreement of sale and also having proved his readiness and willingness to perform his part of the contract, the trial Court was absolutely not justified in dismissing the suit.
26. In the light of the rival contentions in this appeal, the following points arise for consideration:
1. Whether under Order 41 Rules 22 and 33, the defendants/respondents without filing an appeal or cross-objection can challenge the findings adverse to them?
2. Whether the evidence and the pleadings could alter the original contract and disentitle the plaintiff from seeking the decree for specific performance of the contract?
3. Whether the trial court is justified in dismissing the suit by holding that the plaintiff - appellant has not proved its readiness and willingness to perform its part of contract?
4. Whether Sections 79B and 80 of the Karnataka Land Reforms Act create a bar in granting decree for specific performance of contract in respect of agricultural lands?
27. Regarding point No. 1:
As regards to this point, it is useful to refer Order 41 Rule 22 and Rule 33, which reads as under:
22(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation: A respondent, aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
Form of objection and provision application thereto.- Such cross objection shall be in the form of a memorandum, and the provisions of Rule 1 so far as they relate to the form and contents of the memorandum of appeal, shall apply there.
xxx xxxx xxxx The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate court shall not make any order under Section 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
From the reading of these provisions, it is clear that the Appellate Court has power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. This provision makes it abundantly clear that the defendants, who have not filed appeal or cross-objection against the findings on issue Nos. 1 and 2 can challenge those findings while supporting the judgment and decree in their favour. This is also the view of this Court in the case of Sikka-N-Sikka Engineering Private Limited v. Cargo Transports wherein a Division Bench of this Court has observed as under:
A close reading of the provision reveals that it is open to the respondent in the appeal to support the decree passed by the trial Court without filing a cross-objection or appeal challenging the finding recorded against him but it is not possible to hold that it would be permission for the respondent to have that portion of the decree reversed which has denied the relief claimed by the plaintiff in the suit without preferring cross-objection or appeal. Of course, out of the several issues framed in the suit relating to the same relief, if some are answered in favour of the plaintiff and some are answered against him and the decree is passed in favour of the plaintiff on the basis of the findings recorded on the issues in favour of the plaintiff, it would be open to the plaintiff in the appeal preferred by the defendant to challenge the correctness of the findings recorded against him on such of those issues which relate to the same relief in order to support the decree passed in his favour.
Similar is the view of the Apex Court in the case of Ravinder Kumar Sharma v. State Of Assam and Ors. wherein the Hon'ble Supreme Court has held as under:
respondent, defendant in an appeal can without filing cross objection can attack the adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the decree to the extent the lower court had dismissed the suit against the defendants respondents. The tiling of cross objection after 1976 Amendment is purely optional and not mandatory.
28. In the light of the provisions of Order 41 Rule 22 and 33 and also in the light of the decisions of the Apex Court and this Court, we find that, the defendants -respondents, though have not filed any cross-objection or appeal against the findings on issue Nos. 1 and 2, can still challenge those findings while supporting the judgment and decree in their favour. Accordingly, we answer point No. 1 in affirmative.
29. From the above ratio laid down by the Apex Court it is clear that, to support the judgment of the trial Court the respondent without filing an appeal, they can still question the findings adverse to him. This view is also supported by the decision in the case of Nirmala Bala Ghose and Anr. v. Balaji Chand Ghose and Ors. whereby the Apex Court held as under:
If the Appellate Court, reaches a conclusion which is inconsistent with that of the Court appealed from and in adjusting the right claimed by the appellant, it is found necessary to grant relief to a person who has not appealed, the power under Order 41 Rule 33 may properly be invoked. No unrestricted right, however, is conferred by the rule to reopen the decrees which have become final merely because the appellate Court does not agree with the opinion of the court appealed from.
30. This is also the view of the earlier judgment of the Apex Court which is reiterated in the case of panna Lal, v. State of Bombay and Ors. , The Apex Court while interpreting both the provisions of Order 41 Rules 22 and 33 has observed that.
The wide wording of Order 41 Rule 33 was intended to empower the Appellate Court to make whatever order it thinks fit, not only as between the appellant and respondent but also as between a respondent and a respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as the case may require.
31. In view of our finding on point No. 1, we consider the case of the respondents as to whether the findings on issue Nos. 1 and 2 are sustainable or not? In this connection, it is necessary to refer the pleadings and the evidence of the parties. It is the case of the plaintiff that it had entered into an agreement with respondents -defendants on 18.9.1993 and further they paid further advance amount on 18.10.1993. The agreement is produced at Ex.P1 and the receipt is produced at Ex.P2. First respondent - defendant No. 1 in his written statement has not disputed the execution of Exs.P1 and P2 and in turn, has asserted that in pursuance of the Exs.P1 and P2, the sale deed was required to be completed within six months. However, the first defendant had denied that the time to complete the sale transaction was extended and in turn, it claimed that the time fixed was only six months and not nine months. Second defendant - respondent No. 2 has also filed a separate written statement and in his written statement, he categorically admit "it is true that this defendant along with the 1st defendant had entered into an agreement of sale of the property described in the plaint schedule as averred in paragraph 3 of the plaint and further it is also hue that in the said sale agreement the defendant had agreed to convey the schedule property for total consideration of Rs. 3,30,000/- as on the date of execution of agreement of sale. The plaintiff has paid Rs. 10,000/- as advance and receipt of which has been acknowledged by both the defendants. Further it is also true as averred in paragraph 3 of the plaint that within thirty days from the date of the agreement, the plaintiff should pay Rs. 40,000/- to the defendants and the balance of sale consideration of Rs. 2,80,000/ - was agreed to be paid at. the time of registration of sale deed before the Sub-Registrar and further it is hue that the sale transaction should be completed within six months i.e., within 19.3.1994".
32. The 2nd defendant has categorically admitted the execution of the agreement by defendants-1 has also categorically admitted that they had received advance amount of Rs. 10,000/- and Rs. 40,000/-. In the light of the pleadings of the respondents-1 and 2 in their written statement, and also in the light of the plaintiffs evidence, it is clear that the execution of the agreement by respondents-1 and 2 in favour of the plaintiff - appellant is not in dispute. The said agreement and the receipts are produced at Exs.P 1 and P2. Hence, we find that there is no justification to interfere with the findings on issue No. 1.
33. As regard to the findings on issue No. 2, the receipt of Rs. 1,89,000/- by the defendants, defendants-1 and 2 in their written statement have admitted the receipt of Rs. 50,000/- by virtue of Exs.P1 and P2. Plaintiff-appellant has stated that it has paid Rs. 1,89,000/-. In this regard, the Secretary of the appellant, is examined as PW-1 and he in his evidence has categorically stated that the payments are made on different dates and to evidence this, he has produced Exs.P7 and P8, the endorsements signed by defendants-1 and 2 for having received amount on several dates. PW-1 has also stated in his evidence that Rs. 25,000/- was paid to the respondents -defendants towards the charge of mortgage and in the evidence of PW-1, he has; stated that in all Rs. 1,89,000/-has been paid. As against this evidence, defendants have not chosen to adduce any evidence in support of their case nor the defendants have entered the witness box. It is the contention of the Counsel for the respondents that the plaintiff has not produced books of accounts even though he has admitted in his evidence that books of accounts are maintained and they are audited. It is the submission of the Counsel for the respondents that an adverse inference ought to have been drawn by the trial court against the appellant-plaintiff for not producing the relevant material documents. In this case, the plaintiff in proof of the payment of Rs. 1,89,000/- has produced Exs.P7 and P8, which are the endorsements for having made the payments on different dates in favour of defendants-1 and 2 and both the defendants have put their signature. When the existence of the signed vouchers is produced by the plaintiff-appellant in proof of the payment, not producing the books of accounts would not dispute the payments made under Exs.P7 and P8. When the evidence is produced to prove the payments, there was no need for the plaintiff to produce any other document unless the defendants prove that they had not put their signature on Exs.P7 and P8. The trial court has taken note of Exs.P7, P8 and the evidence of PW-1 and also has taken note of the defendants not leading any evidence and not entering the witness box. As such, in the light of the evidence already on record, the findings arrived by the trial court on issue No. 2 does not call for interference.
34. Regarding point No. 2:
Learned Counsel for the respondents has vehemently contended that the pleadings and the evidence have altered the contract and as such the plaintiff is not entitled for enforcement of the contract and has submitted that this Court, under the provisions of Section 20 of the Specific Relief Act should dismiss the suit on account of alteration of contract.
35. In the light of the contentions of the respondents it is necessary to find out, as to whether there is variance in the pleadings and the evidence and as to whether it alters the contract? In the pleadings, the plaintiff has categorically stated that the agreement is executed on 18.9.1993 and further he has categorically stated that on 18.10.1993 the respondents have executed a receipt for having received the further advance amount of Rs. 40,000/-. In the agreement the plaintiffs were required to get the sale deed registered in its favour within six months from the date of the agreement. Further in the acknowledgement for receipt of further advance of Rs. 40,000/- the time to complete the sale transaction was fixed as nine months instead of six months. Further in Ex. D 1 the letter addressed by the plaintiff to Defendant 1 dated 1.7.1999 the plaintiff had agreed to pay extra amount of Rs. 3,50,000/- if the defendants are agreeable to execute the sale deed immediately. Similar letter was also addressed to Defendant 2 as per Ex. D 2. Based on these two letters and the admission made by PW 1 that they had agreed to pay Rs. 7 lakhs, the learned Counsel for the respondents submitted that there is variance in the pleadings and evidence and it alters the contract.
36. In support of his contention he has relied upon the judgment in the matter of Ganesh Shet v. Dr. C.S.G.K. Setty and Ors. It is true that the evidence and proof of agreement must he absolute, clear and certain. It is also true that the terms of the agreement must be clear, definite and precise and further must be ascertainable, in this case as far as the pleadings are concerned they are clear and certain. It is the defendants' case that the plaintiff had entered into an agreement on 18.9.1993 and time to complete the sale transaction was fixed at six months. However the time was extended by another three months when further advance was paid. We are of the view that this extension of time would not in any way alter the contract or amounts to variation in the pleadings or the proof of the contract. As far as Ex.Ps D 1 and 2 are concerned the plaintiffs have neither alter the contract nor changed the nature of the contract nor there is any alteration in the pleadings or the evidence. It is out of gesture and goodwill, the plaintiff, who expressed that they would pay another sum of Rsd. 3,50,000/- if the defendants executed the sale deed immediately. This by itself will not amounts to variance in the pleadings or the evidence nor amounts to alteration of contract. The judgment relied upon by the learned Counsel for the respondents is not applicable to the facts and circumstances of the case, particularly when both the parties have understood the terms of the contract and the defendants have not disputed the agreement, and receipt of Rs. 40,000/- under Ex.P2 and extension of time. In fact the offer of payment of additional sum of Rs. 3,50,000/- or extension of time by three months does not. in any way has prejudiced the defendants. As such in our opinion the evidence on record clearly shows that the terms of the agreement are clear, understandable, and there is no uncertainty in the same. Further in the evidence led by the plaintiff we do not find any variance as against the pleadings. Apart, from this, it is to be noticed that the defendants have not stepped into the witness box to deny the said allegation. In the light of this, we find there is no merit in the contentions of the learned Counsel for the respondents that there is variance in the pleadings and evidence and it alters the contract.
37. Regarding point No. 3:
Section 16(c) of the Specific Relief Act, 1963 requires the party seeking the Specific performance of the Act to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms, the performance of which has been prevented by the defendant. From the provisions of Section 16(c) of the Specific Relief Act, it is clear that the plaintiff is required not only to plead, but he is also required to prove that he is always ready and willing to perform his part of the contract. It is also necessary that the plaintiff not only he makes hallow pleading but also essentially he is required to prove by leading evidence. The readiness under Section 16(c) means the financial capacity of the plaintiff to perform his part of the contract to pay the sale consideration amount. The willingness under Section 16(c) is that his mental attitude, that he is always ready and prepared to perform his pail of the contract.
38. In the light of these requirements, it is necessary to see whether the plaintiff in this case has shown his readiness and willingness to perform his part of the contract. Plaintiff, in his pleading has averred in paragraph-8 that:
ever since the date of agreement, the plaintiff has been and always ready and willing to perform the agreement on its part of which the defendants have had notice. In fact, there has been exchange of notices between the parties in this connection which clearly spell out that the plaintiff has specifically applied to the defendants to perform the agreement on their part: but the defendants have not done so. The plaintiff is still ready and willing to pay the balance of purchase money of Rs. 1,41,000/- to the defendants. The defendants have not executed any instrument of transfer so far.
From the averments in paragraph-8, it shows that the plaintiff has pleaded that he is ready and willing to perform his part of the contract from the date of agreement and he was also ready as on the date of filing of the suit. In support of this, the Secretary of the plaintiff Society has deposed before the trial Court, interalia stating that the plaintiff is ready to get the sale deed registered in its favour by paying balance of sale consideration of Rs. 1,41,000/- and has stated that the plaintiff is always ready and willing to perform his part of the contract. The respondent-defendants in the written statement of defendants in paragraph-10, except bare denial, have not mentioned anything. Similarly in paragraph-11 of the written statement, the defendant No. 2 has only denied the allegation of the plaintiff as regards to the readiness and willingness. In this case, the agreement is dated 18.09.1993 as per Ex.P-1. Under Ex.P-1, six months time was fixed for completion of the contract. However, they got extended the time by another three months that is as per Ex.P-2, they fixed the time for completion of contract as nine months. The plaintiff herein by Ex.P-3 dated 10.06.1994 had called upon the respondents herein to contact the Secretary of the plaintiff society immediately in connection with the negotiations relating to the agreement of sale. It is relevant to notice that the time was stipulated as six months in Ex.P-1 and nine months as per Ex.P-2 and respondents herein went on receiving the further advance amount under Exs.P-7 and P-8 till February 1996.
39. Though under Ex.P-1, the time for completion of the sale transaction was fixed at 6 months, however, as per Ex.P-2 dated 18.10.1993, an acknowledgement of receipt of Rs. 40,000/-, the time was extended to 9 months. Even taking the 9 months period from the date of original agreement that is from 18.09.1993, the same would expire on 17.06.1994. However, the appellant on 10.06.1994 as per Ex.P-3 called upon both the defendants to come to negotiations in connection with agreement dated 18.09.1993 and 18.10.1993. It is clear from the agreement, that the parties never treated time as the essence of the contract It is clear from Exs.P-7 and 8, wherein that the respondents had received part of sale consideration on different dates right up to February 1996. This clearly indicates that parties did not treat the time as essence of the contract but continued the contract beyond the stipulated time mentioned in Exs.P-1 and P2.
40. Although the respondents disputed in their reply to the legal notice issued by the appellant as per Ex.P-4, that the time fixed under the agreement dated 18.10.1993 has expired and called upon the plaintiff to have fresh agreement. The intention of the parties was not to rescind the contract, but to have more consideration on the sale transaction which is clear from the suggestion made by the respondents to P.W-1. It is suggested to P.W-1 that in case the appellant pays Rs. 7,00,000/-, the defendants are ready to execute the sale deed. This suggestion was made on 05.07.2000 which reads thus:
It is not correct to say that the defendants were ready to receive sum of Rs. 7,00,000/-from us when the notice as per Exs.D-1 and D-2 were issued and that they were ready to execute the registered sale deed. It is not correct to say that even now the defendants are ready and willing to execute a registered sale deed, if Rs. 7,00,000/- is paid to them.
From this suggestion made to P.W-1 by the respondents, it is clear that the respondents were interested in executing the sale deed, provided, the defendants pay Rs. 7,00,000/-. Exs.P-7 and 8 coupled with the suggestion made by the respondents to the P.W-1, it is clear that the respondents were interested in more sale consideration than what, is fixed under the agreement.
41. As far as ready and willingness of the appellant is concerned, the appellant had agreed to pay the sale consideration and has averred in his pleadings that he is always ready and willingness to perform his part of the contract and in this context he has led the evidence also. Apart from this, he has shown his willingness to perform his part of the contract by making the payments from time to time to the respondents. In addition to this, as per' Exs.D-1 and D-2 which were relied by the respondents, appellants shows that plaintiff is not. only ready to pay sale consideration as fixed in Ex.P-1, but he has also shown his readiness to pay more money that is double of the sale consideration if the respondents were to execute the sale deed immediately. This aspect of the matter is clear from Exs.D-1 and D-2 wherein the appellant: on 01.07.1999 has informed the respondents that the society will pay extra amount of Rs. 3,50,000/- immediately if the defendants are agreeable. What emerges from Exs.D1 and D2 is that the appellant had sufficient, financial resources and were in a position to pay not only the sale consideration but much more than the sale consideration.
42. Appellants in his pleading in paragraph-9 of the plaint has stated that the sister of the respondent Smt. Puttamma and another sister had filed suit in O.S.No. 50/94 in which they had obtained temporary injunction restraining the respondent from alienating the suit schedule property and on account of this suit, the appellant has stated that it could not get the sale deed registered during the pendency of the said suit. This aspect of the matter is admitted by respondent No. 2 in his written statement in paragraph-11 herein the second respondent has stated that the respondents were ready and willing to perform their part, of contract, however the non-performance of the contract was due to the legal bar and not due to either physically or due to the mistake on the part of the respondents. This statement fortifies the stand taken by the appellant in paragraph-11 of plaint that there was a legal impediment to complete the contract on account of the pendency of the suit in O.S.No. 50/1994.
43. It is necessary to notice that as per the pleadings of the parties and the evidence, the appellant had paid substantial amount of Rs. 1,89,000/- as against Rs. 3,50,000/- fixed. Further, it is also clear that the respondents were insisting for payment of double of the sale consideration and the same was made clear by suggesting the same to P.W-1, the respondents were ready to execute the sale deed provided the appellant pays Rs. 7,00,000/- as against Rs. 3,50,000/-. Apart from this, it is also clear from the evidence of P.W-1 and the Exs. D1 and D2 that the appellant being a society registered under the Cooperative Societies' Act had sufficient financial resources and was ready to perform its part of the contract. But for the intervention of the suit filed by the sisters of the respondents, the sale transaction could not be completed. This aspect was not seriously disputed by the second respondent. The trial Court without appreciating evidence on record has errored in holding that the plaintiff has not proved the ready and willingness to perform its part of contract. Further the trial Court has also failed to appreciate the fact that O.S.No. 50/94 was filed by the sisters of the respondents wherein the schedule property was subject matter of the said suit, and wherein there was a temporary injunction. The trial Court also failed to appreciate that as per Exs.D1 and D2, the appellants had offered to pay double of the sale consideration amount if the respondents agreed to execute the sale deed. In addition to this, the suggestion made by the respondents in the cross-examination of P.W-1 that the respondents were demanding higher price than the one fixed under the agreement. Cumulative effect of oral and documentary evidence, clearly establishes that the appellant was ready and willing to perform its part of the contract right from the date of the agreement. However, the trial Court, without appreciating the documentary and oral evidence has held that the appellant failed to prove its readiness and willingness to perform its part of the contract. This finding, in our view, is not supported by any evidence and is contrary to the evidence on record. Hence, we find that the findings arrived by the trial Court on issue No. 3 requires to be set aside.
44. Regarding point No. 4:
The next contention that is urged by the counsel for the respondent is that in view of the provisions of Sections 79B and 80 of the Act, there is a clear bar for holding an agricultural land by a non-agricultural labourer. It is useful to refer to the provisions of Sections 79B and 80 of the Act which reads thus:
79B. Prohibition of holding agricultural land by certain persons: (1) With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act,-
no person other than a person cultivating land personally shall be entitled to hold land; and it shall not be lawful for, an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in Sub-section (7) of Section 63, capable of holding property;
(ii) a company;
(iii) an association or other body of individuals not being a joint family, whether incorporated or not; or
(iv) a cooperative society other than a cooperative farm to hold any land.
(2) Every such institution, society, trust, company, association, body or cooperative society, -
(a) Which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under subsection (1), shall, within ninety days from the said date furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may be prescribed; and
(b) Which acquires such land alter the said date shall and also furnish a similar declaration within the prescribed period.
(3) The Tahsildar shall, on receipt of the declaration under Sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner.
(4) In respect, of the land vesting in the State Government under this Section an amount as specified in Section 72 shall be paid.
80. Transfers to non-agriculturists barred.
(1)(a) No sale (including sales in execution of a decree of a civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift or exchange or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee shall be (lawful) in favour of a person-
(i) who is not an agriculturists; or
(ii) who being an agriculturist holds as owner or tenant or partly as owner and partly as tenant land which exceeds the limits specified in Sections 63 or 64; or
(iii) who is not an agricultural labourer; or who is disentitled under Section 79A or Section 79B to acquire or hold any land Provided that the Assistant Commissioner having jurisdiction over the area or any officer not below the rank of an Assistant Commissioner authorised by the State Government in this behalf in respect of any area may grant permission for such sale, gift or exchange, (to enable a person other than a person disentitled to acquired or hold land under Section 79A or Section 79B) who bonafide intend taking up agriculture to acquire land on such conditions as may be prescribed in addition to the following conditions, namely: -
(i) that the transferee takes up agricultural within one year from the date of acquisition of land, and
(ii) that if the transferee gives up agricultural within five years, the land shall vest in the State Government.
45. No doubt Section 79B bars for holding an agricultural land by a person who is not an agriculturist personally cultivating the land. Similarly, Section 80 also bars transfer of agricultural land in favour of a person who is not an agriculturist or agricultural labourer or for non-agricultural purpose. However, the Assistant Commissioner having jurisdiction over the area or any officer not below the rank of an Assistant Commissioner is authorised by the State Government in this behalf in respect, of any area may grant permission for such sale, gift or exchange, (to enable a person other than a person disentitled to acquire or hold the land under Section 79A or Section 79(B) who bona-fide intend of taking up agriculture to acquire land on such conditions enumerated therein. It is true that Section 80 bars the sale, gift or exchange or lease of any land to a person who is not an agriculturist and it. also bars for transfer of such lands for non-agricultural purpose. What is contemplated under Section 80 is a prohibition of sale, gift, exchange or lease or interest therein on the agricultural land in favour of non-agriculturist. Admittedly, the suit is one for specific performance of the contract. There is no concluded contract between the parties nor is there any transfer of agricultural land either by sale, gift, exchange or lease or there is any transfer of interest therein. The violation contemplated under Section 80 of the Act arises only when the actual transfer takes place and not otherwise. By mere filing of suit for specific performance of the contract or the decree by itself does not amount to violation of Section 80 of the Act. Apart from this, Section 83 contemplates an enquiry regarding illegal transaction which reads as under:
83. Inquiry regarding illegal transactions.
The prescribed authority shall, after a summary inquiry, determine whether the transaction reported to it under Section 82 or coming to its notice in any other manner is in contravention of (or is unlawful or invalid under) the provisions of this Act, (as they stood before or as they stand after the date of commencement of the Amendment Act) and make a declaration accordingly. Any transaction so declared to be in contravention of (or is unlawful or invalid under) any of the provisions of this Act (as they stood before or as they stand after the date of commencement of the Amendment Act) shall be null and void. (The land in respect of which such transaction has taken place shall, as penalty, be forfeited to and vest in the State Government, (free from all encumbrances). No amount is payable therefor.
46. Under this provision the prescribed authority shall hold summary enquiry and determine as to whether the transactions reported to it under Section 82 or coming to its notice in any other manner is in contravention of the provisions of the Act, such an authority has been conferred with a power to make a declaration accordingly declaring that the transaction is null and void.
47. It is useful to refer Section 132 of the Act which confers bar on the Civil Court to decide any issue which is required to be decided under the Act. Section 132 reads thus:
132. Bar of jurisdiction.- (1) No civil courts shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Deputy Commissioner, (an officer authorised under Sub section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83) (the Tribunal), the (Tahsildar), the Karnataka Appellate Tribunal or the State Government in exercise of their powers of control.
(2) No order of, the Deputy Commissioner (an officer authorised under Sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83), (the Tribunal) (the Tahsildar), the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
By reading of the provisions of Section 132, it makes it clear that it is not for the Civil Court to decide as to whether there is a contravention of the provisions of Sections 79B or 80 of the Act, when such a power is conferred exclusively on the authority prescribed under Section 83. In this regard it is useful to refer to the decision in the matter of State Of Karnataka v. Krjshnaji Srintvas Kulkarni and Ors. , wherein it. is held that the questions which are required to be decided by the authorities under the Act, the Civil Court, is not conferred with the jurisdiction to decide the same. In this case undisputedly, the question raised by the learned Counsel for the respondents requires to be decided only by the authority prescribed under Section 83 of the Act. In the similar circumstances, the Apex Court in a judgment reported in AIR 1986 SC 1912 in the case of Rojasara Ramjibhai Dahyabhai v. Jani Narottamdas Lallubhai, (Dead By Lr has held that the decree for specific performance of the contract cannot be denied on the ground of the non-fulfilment of the conditions of procuring necessary sanction from the Collector and it also held that there is no legal impediment in the way of executing the sale deed. This aspect of the matter is also further fortified by a judgment in Kanvihalli Chinnappa v. Tigari Shivappa and Ors. wherein this Court interpreting the provisions of Sections 79B and 80 of the Act has held:
The Executing Court cannot examine the question whether the sale is in contravention of Sections 79-A and 80 of the Karnataka Land Reforms Act. The executing Court without going into the question confirmed the sale.
Even before the amended Karnataka Land Reforms Act. came into force, this Court in identical circumstances in a decision in Rangarao v. Raghavendracharya reported in ILR 1973 KAR 211 has held:
Mysore Land Reforms Act. - Section 83 -whether a transaction is contrary to any provisions of the Act - only prescribed authority is competent to decide.
In this judgment, it is observed by this Court that, the question whether the transaction is contrary to any of the provisions of the Act has to be decided by the prescribed authority under Section 83 of the Act and not by any other authority. It follows that the Civil Court cannot decide whether the transaction is void or not. From this judgment, it clearly follows that the Civil Court while granting decree for specific performance, is not. vested with the jurisdiction to decide whether the transaction is in violation of the provisions of the Karnataka Land Reforms Act or not. This court, in an identical case in Jose v. Anantha Bhat reported in 1987(1) KLJ 16 while interpreting the provisions of Section 79A(1) and (3), 82 and 83 has held:
The Civil Court which is not competent to determine in terms of Section 132 of the Land Reforms Act that question as to the illegality or legality of such a transaction cannot create a bar to itself to enforce the Contract on plausible result on such enquiry under Section 83 of the Land Reforms Act.
This Court in the matter of granting specific performance of the contract has interpreted the provisions of Sections 79A, 82, 83 and 132 of the Act and held that the Civil Court is not competent to go into the question of illegality or legality of the transactions as there is a bar under Section 132 of the Act and a specific authority is conferred with the power to enquire as to whether the transaction is illegal or legal under Section 83 of the Act.
48. Thus from the provisions of Sections 79B, 82, 83 and 132, it clearly emerges that the enquiry, in respect of any allegations of illegality or legality of the transactions has to be done by the specific statutory authority prescribed under the Act and such an enquiry cannot be held by the Civil Court. Much less, before the contract is concluded by execution of the sale deed. The counsel appealing for the appellant submitted that the plaintiff-appellant has made an application before the competent authority seeking necessary permission for holding the agricultural land. However, we do not propose to go into the question as to whether permission could be granted or not. For the purpose of this case, it is suffice to say that the civil Court while granting decree for specific performance of the contract need not go into the question of legality or illegality of the transactions. In the light of the above discussion, we hold that Sections 79B, 82 and 83 will not create any bar on the civil Court to decide as to whether the plaintiff is entitled for decree for specific performance or not.
49. As regards to, whether any hardship would be caused to the respondents, we find that no evidence is led by the respondents in this connection. However, inadequacy of the price or rise in the price, itself is not a ground, unless the respondents plead and prove that they would suffer greater hardship in case the decree for specific performance is granted. In this case, the respondents who were the defendants in the trial Court have not led any evidence in this regard. Even otherwise also, appellant made an offer before us, for payment of additional amount but same was not accepted by the respondents. In view of this, we do not find any reason to refuse the grant of decree for specific performance when the appellant has proved the agreement and has also proved his readiness and willingness to perform his part of the contract and no evidence is produced by the respondents that they would be put hardship. Accordingly, we set aside the findings on Issue No. 3. In the light of the above findings, we hold that this appeal deserves to be allowed.
Accordingly, we allow this appeal, setting aside the judgment and decree dated 22.12.2001 passed in O.S.No. 92/1997 by the II Additional Civil Judge (Sr. Dvn.), Mysore. The suit of the plaintiff is decreed, directing the defendants to receive the balance of sale consideration and execute a registered sale deed conveying the schedule property in favour of plaintiff in pursuance of agreement of sale dated 18.9.1993 and 18.10.1993, deliver vacant possession of the schedule property and that on failure on the part of the defendants to execute the sale deed, the Court shall execute the registered sale deed on behalf of the defendants.
However, no order as to cost