IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2017 BEFORE THE HON'BLE MR. S. N. SATYANARAYANA REGULAR SECOND APPEAL NO.293 OF 2006 BETWEEN:
SUBHADRAMMA SINCE DECEASED BY HER LR’S a. SMT. SAROJAMMA W/O. MONEJACHAR, AGED ABOUT YEARS, R/O. VINOBHANAGAR, DAVANAGERE – 577 001.
b. SHRIDHARA S/O. LATE RAMAKRISHNACHARI, AGED ABOUT 35 YEARS, R/O. VEDHAVATHINAGAR, T.B. CIRCLE, HIRIYUR, CHITRADURGA DISTRICT, PIN:572 143.
c. C. SHASHIDHARA, S/O. LATE RAMAKRISHNACHARI, AGED ABOUT 33 YEARS, R/O. VEDHAVATHINAGAR, T.B. CIRCLE, HIRIYUR, CHITRADURGA DISTRICT, PIN:572 143.
d. MAMATHA D/O. LATE RAMAKRISHNACHARI AGED ABOUT 30 YEARS, R/O. VEDHAVATHINAGAR, T.B. CIRCLE, HIRIYUR, CHITRADURGA DISTRICT, PIN:572 143.
e. SUJATHA, S/O. LATE RAMAKRISHNACHARI, AGED ABOUT 30 YEARS, R/O. VEDHAVATHINAGAR, T.B. CIRCLE, HIRIYUR, CHITRADURGA DISTRICT, PIN:572 143.
…APPELLANTS (BY SRI. R.V. JAYAPRAKASH, ADVOCATE) AND:
1. G.T. THIMMAIAH, DEAD BY HIS LR’S.
1(a) RAMAKKA W/O. LATE G.T. THIMMAIAH, AGED ABOUT 60 YEARS, R/AT TURUVANAGATTE, JAGALUR TALUK.
(b) RAJAMMA W/O. PUTTACHAR, C/O. JAGADISH GOWDA, AGED ABOUT 28 YEARS R/AT KODUVAHALLI VILLAGE, THIRTHAHALLI TALUK, (c) AJAY S/O. LATE G.T. THIMMAIAH, AGED ABOUT 24 YEARS, R/AT TURUVANAGATTE, JAGALUR TALUK.
2. B.S. NAWAB S/O. ABDUL SATTAR SAB, MAJOR, R/AT AZADNAGAR, HIRIYUR TOWN – 572 143.
3. G. RAGHURAMACHAR S/O. LATE GOVINDACHAR, AGED ABOUT 40 YEARS, R/AT ‘B’ DIVISION, ASHOKA ROAD, HIRIYUR TOWN.
…RESPONDENTS (BY SRI. SINGH & RAVI ASSOCIATES, ADVOCATES FOR R-3; R1(a) & (b) ARE SERVED THROUGH PAPER PUBLICATION DATED 16.11.2012;R1(c) & R2 ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 26.11.2005 PASSED IN R.A. NO.43/2005 ON THE FILE OF THE ADDL. DISTRICT JUDGE, FAST TRACK COURT, CHITRADURGA PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 22.01.2000 PASSED IN O.S. 222/91 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR. DN.), HIRIYUR. TRIAL COURT DECREED THE SUIT. APPELLATE COURT PARTLY ALLOWED THE APPEAL SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is filed by the plaintiff in O.S.No.222/91 on the file of the Civil Judge(Jr.Dn.), Hiriyur.
2. Admittedly, the said suit is for the relief of specific performance of agreement of sale dated 5.2.1990 under which the plaintiff had agreed to purchase the suit schedule property for valuable consideration of Rs.4,500/-. Admittedly, the entire sale consideration was paid. It is only for the technical reasons the execution of the sale deed was postponed. It is seen that after the agreement of sale was entered into, the sale deed was not executed within the time stipulated. Hence, the suit in O.S.No.222/91 came to be instituted for specific performance on 2.9.1991. Five years thereafter i.e. on 23.9.1996 the first defendant is said to have sold the suit schedule property in favour of defendant No.2 and subsequently, defendant No.2 has sold the same in favour of third defendant on 20.12.1997. When the matter stood thus, the suit on contest by the third defendant alone came to be decreed by judgment dated 22.1.2000. The trial Court which had framed issues regarding execution of agreement dated 5.2.1990 and about the readiness and willingness on the part of the plaintiff answered both the issues in favour of the plaintiff and consequently, answering the third issue which was with reference to his entitlement for relief of specific performance decreed the suit as above.
3. The judgment and decree dated 22.1.2000 in O.S.No.222/91 was subject matter of appeal by the third defendant alone in R.A.No.43/05 on the file of the FTC, Chitradurga(Old No.83/00 on the file of the Senior Civil Judge, Chitradurga and subsequently transferred to FTC, Chitradurga). In the said appeal, after hearing the parties, the lower appellate Court on re-appreciation of the pleadings, oral and documentary evidence and also grounds of appeal was persuaded to frame three points for consideration, first of which is with reference to execution of agreement of sale dated 5.2.1990 and second one being right of the plaintiff to seek specific performance was answered in the affirmative. Insofar as the third point which is with reference to the interference with the judgment of the trial Court, the same was held in the affirmative for the reason that Section 19(1) of the Specific Relief Act as well as Section 20 would come in the aid of the third respondent who is the subsequent purchaser of the suit property from the second defendant. Having opined like that the lower appellate Court modified the judgment and decree passed by the Court below and decreed the suit for refund of the amount paid under the agreement of sale dated 5.2.1990. The plaintiff being aggrieved by the divergent finding rendered by the lower appellate Court on point No.3 in R.A.43/2005 has come up in this second appeal.
4. This matter was admitted on 18.6.2008 to consider the following substantial question of law:-
“(1)Whether the lower appellate Court could have reversed the judgment of the trial Court when the suit property is said to have been purchased during the pendency of the suit?”
Thereafter lower Court records are received and this matter was taken up for final hearing on 26.7.2017 and adjourned to 27.7.2017 for further arguments and again it was adjourned to this day. On all the days, there was no representation on behalf of the contesting third defendant who is respondent No.3 in these proceedings. After hearing the learned counsel for the appellant with reference to the arguments regarding the legal position, which is supported by the judgment rendered by the Apex Court in the matter of Guruswamy Nadar .vs. P. Lakshmi Ammal(dead) through LRs. and others [(2008) 5 Supreme Court Cases 796] as well as the judgment of this Court reported in Mohammed Ali Abdul Chanimonim .vs. Bisahemi Kom Abdulla Saheb Momin and anothers [AIR 1973 MYSORE 131] this Court would answer the substantial question of law as framed above in the negative and in favour of the appellant for the following reasons:-
5. Admittedly, the agreement of sale under which the appellant herein purchased the suit schedule property is dated 5.2.1990. The sale consideration is for Rs.4,500/-. Entire sale consideration was paid at the time of execution of agreement of sale, which is not denied by the first respondent. It is seen that the reasons for putting of conveyance immediately after entering into the agreement of sale is due to technical reasons that the property which was subject-matter of agreement of sale was in the process of being brought into the local limits of Hiriyur Town Municipality from Babbur Grama Panchayath. However, even after the said event having taken place the sale was not completed which led to the plaintiff-appellant herein for filing suit for specific performance on 2.9.1991. In the said suit, the first defendant though duly served did not enter appearance. However, during the pendency of the suit, on 23.9.1996, i.e. exactly five years after the suit was initiated for specific performance, the suit schedule property was sold in favour of the second defendant under registered sale deed of even date. Thereafter, within another one year the second defendant has also sold the suit property in favour of the third defendant. It is he who has entered appearance and filed written statement and contested the suit. In the said suit, he has taken up the defence that the agreement itself is false and there was no such transaction between the plaintiff and the first defendant. Though in the statement of objections, he took up the contention that he was the bonafide purchaser without notice of earlier transactions, there was no evidence to establish the same before the Court below, which has resulted in the crucial issues being answered in affirmative in favour of the plaintiff and the suit being decreed.
6. However only in the appeal before the lower Appellate Court, the lower appellate Court has taken recourse to Section 19(1) of the Specific Relief Act as well as Section 20 to modify the relief to protect the interest of purchaser of suit property during lis pendence. Admittedly, the transaction between the first defendant and third defendant is hit by the provision of Section 52 of the Transfer of Property Act and therefore, under the circumstances, the third respondent herein seeking the discretionary relief under Section 19(1) and also under Section 20 to modify the decree insofar as it pertains to specific performance to that of refund of value of sale consideration as shown in the agreement of sale does not arise more particularly in the light of the judgment rendered by the Apex Court in the matter of Guruswamy Nadar .vs. P. Lakshmi Ammal(dead) through LRs. and others [(2008) 5 Supreme Court Cases 796] wherein at paragraphs 14 and 15, the Apex Court has observed as under:-
“14. Our attention was invited to a decision of this Court in R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab4 . In this case it was observed that a person who purchased the property should have made necessary effort to find out with regard to that property, whether the title or interest of the person from whom he is making purchase was in actual possession of such property. In this case, the plaintiff filed the suit for specific performance of contract and during the pendency of the suit, rest of the defendants brought subsequent transaction of sale by the defendant in their favour claiming the title to the suit property on the ground that they were the bona fide purchasers for value without notice of prior agreements in favour of the plaintiff and they were also aware that the plaintiff was in possession of the suit property as a tenant for last several years and that they did not make any inquiry if the plaintiff had any further or other interest in the suit property on the date of execution of sale deed in their favour apart from that he was in possession of the property as a tenant. In that context Their Lordships observed that subsequent purchaser cannot be said to be bona fide purchaser of the suit property for value without notice of suit agreement and the plaintiff would be entitled to relief of Section 19 of the Specific Relief Act as well as Section 52 of the Transfer of Property Act held that subsequent purchaser has to be aware before he purchases the suit property.
15. So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under Section 19(b) of the Specific Relief Act his rights could be protected.
7. The Division Bench of this Court also on an earlier occasion in the matter of Mohammed Ali Abdul Chanimonim .vs. Bisahemi Kom Abdulla Saheb Momin and anothers [AIR 1973 MYSORE 131] at Paragraphs 6 and 14 has taken a similar view with reference to Section 19(1) and Section 20 of Specific Performance Act thereby clearly accepting that when once the property under transaction is subject to lis, the concessional order under Section 19(1) or under Section 20 will not arise inasmuch as the transaction is subject to Section 52 of Transfer of Property Act. Therefore, any concession would defeat the very purpose of Section 52 and nullify the decree is the view taken by the Supreme Court as well the Division Bench of this Court.
8. In the light of the aforesaid decision, this Court hold that the judgment rendered by the lower appellate Court in R.A.No.43/05 more particularly with reference to its finding on point No.3 requires interference. Accordingly, it requires to be set aside, consequently, by reviving the judgment and decree passed in O.S.No.222/1991 the decree granted in favour of the plaintiff, is required to be confirmed.
9. In the light of aforesaid discussion, this regular second appeal by the plaintiff in O.S.No.222/1991 is allowed with costs by setting aside the divergent finding rendered in judgment dated 26.11.2005 on the file of Fast Track Court, Chitradurga. Consequently, the judgment and decree dated 22.01.2000 in O.S.No.222/1991 on the file of Civil Judge(Jr.Dn), Hiriyur in decreeing the suit of plaintiffs as prayed for is confirmed.
Sd/- JUDGE *alb/-.