IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR *FIRST APPEAL NO.443/2006 (SP) BETWEEN 1. K.H. ESWARSA S/O LATE KABADI HANUMANTHASA R/AT NO. 32(2), SANTHUSAPET, BANGALORE 560 053.
2. K.H. NARAYANSA S/O LATE KABADI HANUMANTHASA R/AT NO. 32(2), SANTHUSAPET, BANGALORE 560 053.
...APPELLANTS (BY SRI SHRINIWAS M. KULKARNI, ADVOCATE) AND M. NARAYANASWAMY S/O LATE MUNIYAPPA SINCE DEAD BY HIS LRS.
1. SMT. MUNINANJAMMA, W/O. LATE NARAYASWAMY, AGED ABOUT 65 YEARS * Corrected vide Chamber order dated 21.01.2020.
2. SMT. GOWRAMMA, D/O. LATE NARAYANASWAMY AGED ABOUT 45 YEARS 3. SRI RAMKRISHNA S/O. LATE NARAYANASWAMY AGED ABOUT 40 YEARS 4. SMT. GIRIJA S/O. LATE NARAYANASWAMY AGED ABOUT 38 YEARS 5. SMT. YASHODHAMMA, S/O. LATE NARAYANASWAMY AGED ABOUT 28 YEARS 6. SRI MANJUNATH, S/O. LATE NARAYANASWAMY AGED ABOUT 26 YEARS ALL ARE R/AT:
SMS CYCLE SHOP, KRISHNAIAHNAPALYA, BEHIND NGEF, INDIRANAGAR POST, BANGALORE-560 035.
…RESPONDENTS (BY SRI SHISHIR, ADVOCATE FOR SRI M.S. NARAYAN, ADVOCATE FOR R1, R3 & R6; R2, R4 & R5 – NOTICE HELD SUFFICIENT V/O. DTD. 24.02.2012) THIS REGULAR FIRST APPEAL IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DTD.24.11.2005 PASSED IN O.S. NO.9558/1998 ON THE FILE OF THE V ADDL. CITY CIVIL JUDGE, BANGALORE DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the judgment and decree passed in O.S. No.9558/1998 dated 24.11.2005, wherein the suit of the plaintiffs for specific performance was dismissed, however, the defendant was directed to return to the plaintiffs an amount of Rs.12,750/- with interest at the rate of 6% per annum from the date of agreement till the date of repayment.
2. In order to avoid confusion and overlapping, the parties are addressed with reference to their rankings and status held by them before the trial Court.
3. Originally a suit for specific performance was filed by the plaintiffs/appellants in O.S. No.9558/1998 claiming that on 23.07.1983 the defendant executed an agreement in favour of the plaintiffs to sell the schedule property, for a sale consideration of Rs.12,750/- and the defendant received Rs.6601/- as part consideration amount and sworn to an affidavit in terms of the Sale Agreement. On 06.09.1983, the defendant received another sum of Rs.3,400/- from the plaintiffs by swearing to an affidavit and executed a Supplementary Agreement. Again on 18.11.1985, the plaintiffs paid amount of Rs.1,999/- to the defendant towards sale consideration and further the plaintiffs paid an amount of Rs.750/- to the defendant on 07.03.1986. Thus, the plaintiffs are paid the entire sale consideration of Rs.12,750/- to the defendant.
4. It is stated that the plaintiffs are ready and willing to perform their part of the contract, but the defendant did not execute the Sale Deed in spite of several requests. On 24.08.1998 the plaintiffs got issued a legal notice to the defendant and the defendant replied the same taking untenable stand. Once again on 19.09.1998 the plaintiffs got issued a rejoinder notice to the defendant.
5. It is the case of the defendant that the schedule property is his ancestral property.
6. The defendant – Narayanaswamy was in the original side before trial Court and by virtue of his death his wife – Muninanjamma and his children have come on record in the present appeal.
7. The trial Court considered the matter on execution of Sale Agreement, advance sale consideration and subsequent payment, for specific performance and non- maintainability of the suit on the ground of non-joinder and the Court Fee.
8. The learned trial Judge was accommodated with the oral and documentary evidence as follows:
List of witnesses on behalf of plaintiffs.
PW1 - H. Eswara Sa PW2. - T. Honnappa List of documents on behalf of plaintiffs:
Ex.P1 - Agreement of Sale Ex.P2 - Affidavit Ex.P3 - Affidavit Ex.P4 - Supplementary Agreement Ex.P5 - Affidavit Ex.P6 - General Power of Attorney Ex.P7 - Copy of legal notice Ex.P8 - Reply notice Ex.P9 - Rejoinder notice Ex.P10 - Postal Acknowledgment List of witness on behalf of defendants DW1 - M. Narayanaswamy List of documents on behalf of defendants Ex.D1 - Certified copy of the Partition Deed Ex.D2 - Encumbrance Certificate Ex.D3 - Paper Publication “E Sanje” Ex.D4 - Relevant portion marked 9. The suit of the plaintiffs came to be dismissed by the trial Court. Against which, this regular first appeal is preferred by the plaintiffs.
10. Learned counsel Sri Shriniwas M. Kulkarni for appellants would submit that the Agreement was entered into between the parties. The execution is not disputed. The defendants are in receipt of entire sale consideration amount as stated in the plaint. Insofar as the defendants are concerned, it is the question of an agreement. However, on perusal of the document which was not seriously disputed and even the trial Court has not rejected the relief of the plaintiffs at outright. However, specific performance is rejected and directed the defendant to refund of the amount of Rs.12,750/- together with interest.
11. The learned counsel for the defendants Sri Shishir for Sri M.S. Narayan, appearing for the defendants, would submit that the plaintiffs have not been ready and willing to get the Sale Agreement executed. The very document itself is void abi-nitio and the plaintiffs cannot claim under the same whether in the matter of specific performance of the Agreement dated 23.07.1983 or for refund. Thus he submits to reject the prayer of the plaintiffs.
12. In the overall context of the circumstances of the matter, the Agreement of Sale is dated 23.07.1983 and literally, the term of the Sale Agreement includes that the specific time was not mentioned. However, by virtue of the ban on registration of revenue sites, it appears, the parties have to register the same after getting permission from the Urban Land Ceiling Authorities. However, before the trial Court, the ban on registration is not a claim. In the process, the learned counsel for the plaintiffs Sri Shrinivas Kulkarni, would submit that there was a ban of registration, it was by virtue of Karnataka Fragmentation and Consolidation of Holdings Act, 1966 as amended 1983. Thus, between 1983 and 5th February, 1991 there was ban of transfer of agricultural land which is non-violation of the Act being fragment.
13. In the overall context and circumstances of the case, the plaintiffs claim that they were ready and willing to get the registered Sale Deed. As a matter of fact the duty that was left over on the plaintiffs was to get the registered Sale Deed. The suit was filed on 14.12.1998. This very fact of filing of the suit shows that the plaintiffs were not entitled to get the registered Sale Deed by virtue of the expiry of the period of limitation prescribed for seeking the relief of specific performance. Further, by virtue of the provisions of Fragmentation Act and non-readiness of the plaintiffs, even on admitted circumstances, I find that the plaintiffs are not entitled for the specific performance. Thus, I do not find any infirmity or illegality or lapse in the judgment and decree passed by the learned trial Judge and there is no question of interference. Hence, the appeal is dismissed accordingly.
Sd/- JUDGE Sbs*