IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL NO.3197 OF 2006 (SP) BETWEEN:
1. ASHRAF JHAN ARIFA, W/O.LATE K.ATHULLA, AGED ABOUT 49 YEARS, HOUSEHOLD WORKER.
2. K.A.SHAMIULLA HASHMI, S/O.LATE K.ATHULLA, AGED ABOUT 26 YEARS, BUSINESSMAN.
3. K.A.SIBGATHULLA HASHMI, S/O.LATE K.ATHULLA, AGED ABOUT 24 YEARS, BUSINESSMAN 4. K A ASADULLA HASHMI S/O LATE K ATHULLA AGED ABOUT 22 YEARS, BUSINESSMAN ALL ARE R/O I MAIN, 12TH CROSS H.S.EXTN., HARIHAR-577601. ... APPELLANTS (BY SRI: S V PRAKASH, ADVOCATE) AND:
1. G BASAPPA S/O UJJAPPA SINCE DEAD BY HIS LEGAL HEIRS 1(a) SMT.KAMALAMMA W/O LATE E.M.MAHESHWARAPPA AGED ABOUT 52 YEARS, AGRICULTURE R/O YERCHIKKANAHALLI KULAMBI POST, HONNALI TALUK DAVANAGERE DISTRICT.
1(b) SMT.SULOCHANAMMA W/O G.V. RUDREGOWDA AGED ABOUT 48 YEARS, AGRICULTURE R/O YERCHIKKANAHALLI KULAMBI POST, HONNALI TALUK DAVANAGERE DISTRICT.
1(c) SMT.PREMA W/O D.SHANKARAPPA AGED ABOUT 46 YEARS, AGRICULTURE R/O BASAVAPATNA CHANNAGIRI TALUK DAVANAGERE DISTRICT.
1(d) SMT.MEENAKSHI W/O Y.N.BASAVARAJAPPA TEACHER, R/O 1 MAIN, I CROSS, BASAVESHWARA EXTENSION, MALEBENNUR, HARIHARA TALUK, DAVANAGERE DISTRICT.
( CAUSE TITLE AMENDED VIDE COURT ORDER DATED 26.10.2010) 2. G SHIVANA GOWDA S/O G BASAPPA AGED ABOUT 50 YEARS 3RD MAIN, 5TH CROSS, VIDYANAGAR GOWDARA UJJAPPA KHANA, HARIHAR TOWN DIST: DAVANAGERE-577 601 3. G NAGARAJ S/O G BASAPPA AGED ABOUT 47 YEARS R/O 3RD MAIN, 5TH CROSS, VIDYANAGAR GOWDARA UJJAPPA KHANA, HARIHAR TOWN DIST: DAVANAGERE - 577 601 4. K A ZAFRULLA S/O LATE K. ATHULLA AGED ABOUT 31 YEARS, BUSINESSMAN C/O SHAFIULLA SAB NEAR HAMSAGAR COMPOUND VIDYANAGARA EXTN., HARIHAR TOWN DIST: DAVANAGERE-577 601 5. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF REVENUE M.S.BUILDING BANGALORE – 560 001 ... RESPONDENTS (BY SRI: R GOPAL, ADVOCATE FOR R1(A-D), R2 & R3 R4 - SERVED AND UNREPRESESNTED SRI T.S.MAHANTESH, AGA FOR R5) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED: 19.8.2006 PASSED IN R.A.NO. 39/2005 ON THE FILE OF THE DISTRICT JUDGE, DAVANGERE, PARTLY ALLOWING THE APPEAL AND PARTLY MODIFYING THE JUDGEMENT AND DECREE DATED: 30.6.2005 PASSED IN OS.NO. 162/2000 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.), DAVANGERE.
THIS RSA COMING ON FOR REPORTING SETTLEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The legal representatives of original plaintiff in O.S.No.162/2000 on the file of the Principal Civil Judge (Sr.Dn.), Davangere, have come up in this second appeal, impugning the concurrent finding of both the courts below in dismissing the suit of the plaintiff for the relief of specific performance.
2. When this matter was at the stage of final hearing, it was stated that the parties herein are willing to settle the dispute between themselves. Hence, sufficient time was granted. Since the settlement did not come through, this Court after hearing the learned counsel for the parties dictated the judgment in open court on 14.12.2018. However, after the dictation got concluded, the learned counsel for respondents/defendants in the court below stated that even now the parties are ready to settle the matter provided both the parties sit for negotiation. In this background, both counsel submitted that signing of the autograph may be deferred. Accordingly, the matter was ordered to be posted before the Court on 1.12.2019 to ascertain the outcome of negotiation between the parties, as to whether this Court should proceed with signing of the judgment or should keep it in abeyance. At that time, learned counsel for the parties stated that dispute between the parties is settled amicably and that they would be filing the compromise petition in this matter. Accordingly, this matter is ordered to be listed this day.
3. This day the 2nd appellant - K.A.Samiulla Hashmi is present before the Court as power of attorney holder of his mother - appellant No.1 and his two younger brothers, who are appellants 3 and 4 in this appeal. So far as respondents are concerned, the 1st respondent – G.Basappa has died during the pendency of this proceedings and in his place his widow and three children have come on record as respondents 1(a) to 1(d). They are represented by 3rd respondent – G.Nagaraj. So far as 2nd respondent is concerned, he is present before the Court. 4th respondent - K.A.Zafrulla is also present before the Court. He is one of the sons of original plaintiff – K.Athaulla and on his death appellants 1 to 4 herein have come on record and 4th respondent having chosen not to participate in the proceedings has been arrayed as respondent throughout.
4. All the parties who are present before the Court would admit that the dispute between the plaintiffs and defendants in the court below is settled amicably and in terms of the settlement, compromise petition is drafted and filed under Order 23 Rule 3 of CPC. Along with the compromise petition, Xerox copy of the power of attorney which is executed by appellants 1, 3 and 4 in favour of 2nd appellant and the power of attorney which is executed by respondents 1(a) to 1(d) in favour of 3rd respondent are also produced. In addition to these two documents one more document is produced which is a survey sketch prepared by the Certified Surveyor, wherein with reference to the adjacent lands and as well as the national highway which is cutting across the then suit schedule land which is got divided in to two portions, one on northern side of the national highway i.e., Bengaluru – Puna National Highway (NH-4) and another portion on the southern side is clearly shown. The northern portion is identified by dark green colour and the same is shown in Roman letter –I and the southern portion of land is shown in yellow colour and it is shown in Roman letter – II.
5. In terms of the compromise petition the contesting respondents herein agree to convey to appellants 1 to 4 and 4th respondent, who are the legal heirs of original plaintiff an extent of 2 acres and that 2 acres is the land which is identified in Roman Letter – I and painted with green colour and situated on northern side of NH-4 cutting across the original extent of the said land. The remaining portion of land on the southern side which was also part of the original extent of the suit schedule land is concerned, the legal representatives of the original plaintiff have given up their right to seek specific performance of that portion pursuant to the agreement of sale dated 7.1.1992. Both the parties agree that the sale consideration which was paid under the agreement of sale is treated as total sale consideration for sale of 2 acres of land on the northern side of NH-4. Respondents 1(a) to 1(d), 2 and 3 together have agreed to convey the said extent of 2 acres, referred to supra to appellants 1 to 4 and respondent No.4 herein within an upper limit of 60 days.
6. At this juncture, learned counsel appearing for both the parties would submit that admittedly litigation between the parties has started in the year 1992 when the entire sale consideration is already paid; that the dispute between the parties is pending in the Court for long time; that the property in question is agricultural property, where the vendor as well as purchasers have transacted in respect of the agricultural land for sale and purchase of the same. Further, it is contended that if the sale deed which is executed for and on behalf of the vendor either himself personally or through Court and presented for registration, the registering authorities would be demanding payment of stamp duty on the present market value when admittedly, the transaction is of the year 1992. In this regard, to save the interest of the agriculturists who are purchasers of agricultural lands from paying of stamp duty on the present market value of the property which would be much more than the consideration paid at the time of purchase of the property, there shall be a direction to the registering authorities to receive stamp duty on the consideration shown in the agreement of sale or as shown in the litigation which was pending between the parties and to complete the registration.
7. Accordingly, this Court enquired with the learned Additional Government Advocate who is present before the Court, whether such a thing is permissible though the State is not a party in this proceedings. The learned Additional Government who is representing the interest of the State in the matters of Land Reforms and Land Revenue would state that the intention of the State while legislating the relevant provision of law, namely under Section 45A of the Karnataka Stamp Act, 1957, is basically to prevent unscrupulous transactions in creating previous date documents, then escape from payment of stamp duty on the present market value as and by way of an escape route from payment of stamp duty. However, in the present set of facts since it is a litigation which was pending before the Court for long time, being settled in the presence of this Court, the Court may consider in its discretion to impose the stamp duty on the value shown in the previous document i.e., agreement of sale in this matter and other similarly situated matters, under exceptional circumstances where particularly the interest of poorly situate agriculturists is involved, that their financial interest is also required to be protected.
8. Accepting the said submission of the learned Additional Government Advocate and also for the reason that the interest of agriculturists is involved in this litigation, this Court would like to consider it in favour of the parties as prayed at the time of filing of the joint petition for compromise. Hence, it is made clear that as and when sale deed of property in question which is now agreed to be sold in favour of the legal representatives of original plaintiff in the court below is presented before the registering authorities for the purpose of registration, the same shall be accepted and stamp duty shall be received on the value shown in the document. However, this shall not be a ‘Thumb Rule’ for the registering authorities in all cases where the parties who are dealing with sale and purchase of agricultural land approach the authorities with request to accept the same as market value for registration.
9. With the aforesaid observations, this appeal is allowed in terms of the compromise arrived at between the parties and the registry is directed to draw up the decree in favour of the legal representatives of original plaintiff in terms of the compromise petition. For the purpose of registration, the sketch which is appended to the compromise petition should be used as Annexure-A to the Sale Deed. Since the portion which is apportioned between the parties in terms of the compromise is identified in two different colours, learned counsel for the parties shall furnish the colour Xerox to the Registry of this Court which shall be included in the copy of decree as the copy of sketch furnished to them as certified copy of the sketch appended to decree drawn in this proceedings.
10. The appellants and respondents herein shall affix their signatures to the order sheet in this appeal which shall be identified by their respective counsel. The learned Additional Government to file memo of appearance within two weeks.
nd/-
Sd/- JUDGE