IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1655/2018 BETWEEN:
SMT.PARVATHAMMA W/O LATE S.BASAPPA SINCE DEAD BY HER LR’s 1. SRI S.B.PANCHAKSHARI S/O LATE S.BASAPPA AGED ABOUT 65 YEARS 2. SRI S.B.DURAGESH S/O LATE S.BASAPPA AGED ABOUT 59 YEARS 3. SMT.S.B.VIMALA D/O LATE S.BASAPPA AGED ABOUT 57 YEARS 4. SMT.S.B.JAYAMMA D/O LATE S.BASAPPA AGED ABOUT 55 YEARS 5. SMT.S.B.RENUKA D/O LATE S.BASAPPA AGED ABOUT 53 YEARS 6. SMT.S.B.MUKTHA D/O LATE S.BASAPPA AGED ABOUT 51 YEARS APPELLANT NOS.1 TO 6 ARE R/AT RUKMANI LAKSHMANA NILAYA THYAGARAJA COLONY SHANIVARASANTHE TOWN SOMWARPETE TALUK KODAGU DISTRICT – 571 236 … APPELLANTS (BY SRI VIJAYA KUMAR K., ADVOCATE) AND:
SRI B.SUBRAMANYA SHARMA S/O LATE RAMA SWAMAIAH SINCE DEAD BY HIS LR’s 1. B.S.PRAMEDA W/O LATE B.SUBRAMANYA SHARMA AGED ABOUT 72 YEARS 2. B.S.MANJUNATHA S/O LATE B.SUBRAMANYA SHARMA AGED ABOUT 44 YEARS 3. B.S.MANJULA D/O LATE B.SUBRAMANYA SHARMA AGED ABOUT 42 YEARS R1 TO R3 ARE R/AT DOOR NO.16/B BANAVARA ROAD SHANIVARASANTHE TOWN SOMWARPETE TALUK KODAGU DISTRICT – 571 236 … RESPONDENTS (BY SRI SHIVAKUMAR S.GOGI, ADVOCATE FOR C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 15.06.2018 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE, SOMWARPET IN R.A.NO.1/2017 AND TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.11.2016 PASSED BY COURT OF THE PRINCIPAL CIVIL JUDGE & JMFC, SOMWARAPET IN O.S.NO.92/2011.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This regular second appeal of defendants arises out of judgment and decree dated 15.06.2018 passed by the Senior Civil Judge, Somwarpet in R.A.No.1/2017. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the appellants and confirmed the judgment and decree dated 30.11.2016 passed by the Principal Civil Judge & JMFC, Somwarpet in O.S.No.92/2011. By the said judgment, the trial Court had decreed the suit of the present respondents for specific performance of agreement of sale.
2. Appellants were defendant Nos.1 to 7 in O.S.No.92/2011. That suit was filed by one B.Subramanya Sharma. He died when the matter was pending before the First Appellate Court. Respondents are legal representatives of said Subramanya Sharma. For the purpose of convenience, henceforth the parties will be referred to by their ranks before the trial Court.
3. The subject matter of the suit was land bearing Survey No.36:1(B)(2) which was renumbered as Kula No.180/A, Survey No.62/2(B) of Nagrooru Village, Somwarpet Taluk. The said property was granted to S.Basappa under Ex.P20 under the Karnataka Land Grant Rules, 1969 (‘the Rules’ for short).
4. The case of the plaintiff in brief is as follows:
S.Basappa entered into agreement of sale with the plaintiff on 22.12.1999 agreeing to sell the property for consideration of Rs.3,00,000/-, and executed the agreement. Basappa received Rs.1,50,000/- as advance consideration. Land was granted to Basappa on 25.10.1989. As per the terms of agreement, sale deed was to be executed after expiry of non alienation period stipulated under Ex.P20 the grant order. On 25.11.2000, S.Basappa, received further consideration of Rs.1,50,000/- and executed supplemental agreement of sale as per Ex.P2 and put the plaintiff in possession of the property. On 17.12.2002, S.Basappa went missing.
On 10.04.2003, defendants filed complaint before Shanivarsanthe police which was registered as Crime No.26/2003. On 25.11.2004, prohibitory period of 15 years for alienation expired. S.Basappa was not found till 16.02.2005. Therefore, on 16.02.2005, defendant Nos.1 to 3 executed supplementary agreement as per Ex.P3 assuring that if S.Basappa was not traced within seven years from the date of his missing, they would execute the sale deed. The said period of seven years expired on 18.12.2009. Defendants did not execute the sale deed. Therefore, plaintiff got issued legal notice on 26.07.2011 calling upon the defendants to execute the sale deed. Defendants neither complied with the notice nor replied to the said notice. Thus, they sought specific performance of contract of sale.
5. The gist of written statement of defendants was as follows:
Execution of agreement of sale by S.Basappa or themselves was denied. All legal heirs of S.Basappa were not made parties to the suit. The suit was bad for non-joinder of necessary parties. Agreements of sale set up by plaintiff were fabricated. Receipt of consideration of Rs.3,00,000/- was denied. Said agreement of sale was hit by Rule 9 of the Rules. Suit was barred by time. Therefore, the suit shall be dismissed.
6. Having regard to the plea of non-joinder of necessary parties, plaintiff impleaded defendant Nos.4 to 7 other heirs of Basappa. Defendant No.7 filed separate written statement adopting the written statement of defendant Nos.1 to 3. Defendant Nos.4 to 6 adopted the written statement of defendant No.7.
7. On the basis of such pleadings, the trial Court framed the following issues and additional issues:
1. Whether the plaintiff proves that the father of the 2nd and 3rd defendant and husband of the 1st defendant by name Basappa has entered into an agreement to sell the suit schedule property on 22.12.1999 for a total sale consideration of Rs.3,00,000/- as contended?
2. Whether the plaintiff further proves that as on the date of Sale agreement the said Basappa has received a sum of Rs.1,50,000/- as part of sale consideration and the defendants herein has acknowledged the same as contended?
3. Whether the plaintiff further proves that on 25.11.2000, he has paid balance sale consideration of Rs.1,50,000/- as full and final sale consideration to Sri Basappa and himself and the defendants have acknowledged the same and the plaintiff was put in to the possession of the suit schedule property same day and a fresh Sale agreement was executed on that day as contended?
4. Whether the plaintiff further proves that as on the Sale agreement dt.25.11.2000, the condition of non-alienation of suit schedule property was not completed, hence, it was agreed between the parties that, Sale Deed will be executed after the fulfillment of the condition of the Saguvali chit as contended?
5. Whether the plaintiff further proves that when he approached said Basappa after the expiry of non-alienation period, he was missing and hence, his sons 2nd and 3rd defendants undertook to execute the Sale Deed by an Agreement dt.16.2.2005, stating that, if said Basappa is not traced within seven years from the date of missing, they would executed the Sale deed as contended?
6. Whether the plaintiff further proves that even after the completion of the said period under the agreement, the defendants have ignored to execute the Sale deed and register the same as contended?
7. Whether the plaintiff further proves that he was always ready and willing to perform his part of the contract?
8. Whether the defendants prove that they plaintiff was inducted as a tenant by this father Sri Basappa on monthly rent in suit schedule property as contended?
9. Whether the plaintiff is entitled for the relief of specific performance?
10. What order or decree?
Addl. Issue:
11. Whether the defendants prove that suit is barred by limitation?
8. Parties adduced evidence. On behalf of plaintiffs, PW.1 to PW.3 were examined and Ex.P1 to Ex.P26 were marked. On behalf of defendants, DW.1 and DW.2 were examined and Ex.D1 death certificate of S.Basappa was marked.
9. The trial Court after hearing the parties decreed the suit of the plaintiff on the following grounds:
(i) Agreement of sale and supplemental agreements Ex.P1 to Ex.P3 were proved by evidence of PW.1 to PW.3;
(ii) Non reply of notice Ex.P4 leads to inference of admission of agreements;
(iii) Readiness and willingness on the part of the plaintiff to perform his part of contract is proved;
(iv) Agreements were not hit by Rule 9 of the Rules; & (v) The suit was in time.
10. Defendants challenged the said judgment and decree before the First Appellate Court. By the impugned judgment and decree, the First Appellate Court concurring with the findings of the trial Court dismissed the first appeal.
11. This being second appeal under Section 100 of the Code of Civil Procedure, 1908, the scope of interference on the question of fact is very limited. This Court can admit the appeal for hearing only if it is shown that case involves substantial question of law. What is substantial question of law is explained by Hon’ble Supreme Court in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] and in Gurnam Singh v. Lehna Singh [2019 SCC Online SC 374] [Civil Appeal No.6567/2014 DD 13.03.2019].
12. In the aforesaid two judgments, it is held that on the question of fact, the First Appellate Court is the last Court. It was further held in both the judgments that High Court can substitute its findings to that of the Courts below, only if it is shown that judgments and decrees of the Courts below are (i) contrary to the mandatory provisions of the applicable law; or, (ii) judicial precedents of the Apex Court; or (iii) based on inadmissible evidence or no evidence.
13. Now, this Court has to see whether the judgments and decrees of the Courts below are contrary to the applicable law, law pronounced by Apex Court or based on inadmissible evidence or no evidence.
14. Sri K.Vijaya Kumar, learned Counsel for the appellants seeks to assail the impugned judgments and decrees of the Courts below on the following grounds:
(i) The agreements of sale were not proved;
(ii) Agreements of sale were hit by Rule 9 of the Rules;
(iii) The suit was barred by time;
(iv) Agreements were conferring unfair advantage to the plaintiff; & (v) Agreements do not contain the dimensions of the property. Therefore, granting specific performance is un-equitable. According to the learned Counsel for appellants these are all the substantial questions of law.
15. In support of his contention, he relies on the following judgments:
1. Pemmada Prabhakar v. Youngmen’s Vysya Assn. [(2015) 5 SCC 355] 2. Shamsher Singh v. Rajinder Kumar [(2015) 5 SCC 531] 3. Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates (P) Ltd. [(2011) 9 SCC 147] 4. Satish Kumar v. Karan Singh [(2016) 4 SCC 352] 5. N.Padmamma v. S.Ramakrishna Reddy [(2015) 1 SCC 417] 6. K.V.Sudharshan v. A.Ramakrishnappa [(2008) 9 SCC 607] 16. Per contra, Sri Shivakumar S.Gogi, learned Counsel for respondents opposes admission on the following grounds:
(i) There are sustainable concurrent findings of the Courts below with regard to agreement of sales Ex.P1 to Ex.P3 and there is no scope for interference in the findings of the Courts below.
(ii) As per supplemental agreement Ex.P3 dated 16.02.2005, time fixed for execution of agreement was seven years from the date of missing of S.Basappa, which expired on 18.12.2009 and suit was filed within three years thereafter;
(iii) Rule 9 of the Rules bars the transfer of property and not an agreement of sale. Therefore, that contention was rightly rejected by the Courts below; & (iv) Case does not involve any substantial questions of law.
17. In support of his contention, he relies on the following judgments:
1. Aftaruddin v. Ramkrishan Datta [(2018) 11 SCC 77] 2. Smt.Indira Kaur and others v. Shri Sheo Lal Kapoor [AIR 1988 SC 1074] 3. Ajaib Singh v. Gurbax Singh [(1988) 1 SCC 143] 4. Motilal Jain v. Ramdasi Devi [(2000) 6 SCC 420] 5. Prakash Chandra v. Narayan [(2012) 5 SCC 403] 6. K.Venkoji Rao v. M.Abdul Khuddur Kureshi 1990 SCC OnLine Kar 411 :
[(1991) 1 Kant LJ 1] 7. P.S.Ranakrishna Reddy v. M.K.Bhagyalakshmi and another [(2007) 10 SCC 231] 8. Chikka Venkatamma and others v.
R.Nagaraja and another [2017 LawSuit(kar) 433] 9. Yogambika v. Narsingh [ILR 1992 Kar 717] 18. Parties made available the copies of pleadings, exhibits and deposition for perusal of the Court.
Reg. Execution of agreements of sale:
19. To prove agreements of sale, plaintiff got examined himself as PW.1. Attestors of Ex.P1 to Ex.P3 as PW.2 and PW.3. Nothing was elicited to impeach their evidence regarding execution of Ex.P1 to Ex.P3. Further Ex.P4 to Ex.P12 show that plaintiff got issued notice on 26.07.2011 to defendant Nos.1 to 3 demanding execution of sale deed. That was served on them. Defendants did not issue any reply denying execution of earlier agreements and receipt of sale consideration. Taking into consideration these aspects, Courts below held that execution of agreements of sale is proved. This Court does not find any perversity in such findings.
Reg. Identity of property:
20. Relying on the judgment in Satish Kumar v.
Karan Singh [(2016) 4 SCC 352], learned Counsel for appellants submits that in agreements of sale Ex.P1 to Ex.P3, dimensions of the property is not mentioned. In the absence of identity of the property, Courts below were not justified in granting decree and that becomes substantial question of law.
21. Substantial question of law arises on the basis of pleadings of the parties and issue raised on that. Defence of the defendants was total denial of the agreements of sale and they did not dispute identity of the property. At the cost of repetition, it has to be stated that when notice was issued to the defendants calling upon them to execute the agreements of sale, they did not issue any reply to the said notice denying the identity of the property. Therefore, identity of the property does not become substantial question of law.
Regarding defendant Nos.4 to 7 not being parties to the agreements of sale.
22. Relying on the judgment in Shamsher Singh v. Rajinder Kumar [(2015) 5 SCC 531] and Pemmada Prabhakar v. Youngmen’s Vysya Assn. [(2015) 5 SCC 355], learned Counsel for appellants contends that defendant Nos.4 to 7 were not parties to Ex.P1 to Ex.P3. Therefore, agreement was unenforceable against them. Defendants did not dispute that land was granted to S.Basappa under Ex.P20.
23. A perusal of Ex.P20 shows that land was granted as per Rule 29 of the Rules. Ex.P20 shows that land was not granted recognizing any of the rights of lineal ascendants of S.Basappa. Defendant Nos.4 to 7 did not adduce any evidence to show that property had devolved on S.Basappa from his ancestors or they had any interest in the property. Whereas in Pemmada Prabhakar’s case referred to supra, it was proved that other co-sharers i.e. defendant Nos.1 and 2 were not parties to the agreement. Therefore, the judgment in Pemmada Prabhakar’s case is not applicable to the facts of the case.
Reg. Unfair advantage and Section 20 of the Specific Relief Act, 1963:
24. Relying upon the judgment in Shamsher Singh’s case referred to supra, it was contended that grant of specific performance has conferred unfair advantage on the plaintiff and that was not considered by the Courts below.
25. First of all, defendants had not taken the contention that agreement of sale in question confers unfair advantage on the plaintiff. That contention was of total denial of the agreement. No evidence was adduced regarding unfair advantage. The said contention does not become substantial question of law. The judgment relied is not applicable to the facts of the case.
26. Relying on the judgment in K.V.Sudharshan v. A.Ramakrishnappa [(2008) 9 SCC 607] and Rule 9 of the Rules, it was contended that agreements were hit by Rules 9(1)(ii) and 9(3)(iii) of the Rules and alienation within 15 years is contrary to Rule 9 of the said Rules. What is barred under Rule 9(1) of the Rules is alienation of land and not agreement of sale or transfer of property.
27. Section 54 of the Transfer of Property Act, 1882 deals with ‘Sale’. It clearly states that contract for the sale of immovable property itself does not create any interest or charge in the property. Therefore, agreement of sale does not amount to alienation. Thus Rule 9 of the Rules relied upon by learned Counsel for the appellants is not applicable to the facts and circumstances of the case and that does not become substantial question of law.
Reg. Limitation:
28. Learned Counsel for the appellants relies on the judgment in Citadel Fine Pharmaceuticals v.
Ramaniyam Real Estates (P) Ltd. [(2011) 9 SCC 147] and contends that agreements contain clause that sale deed has to be executed within 15 years from the date of grant, that expired in 2004. But the suit was filed in 2011. Therefore, suit was barred by time.
29. This Court upheld the findings of the Courts below that execution of Ex.P1 to Ex.P3 agreements of sale and supplemental agreements was proved. In Ex.P3 the last agreement (supplemental agreement), it is stated that defendant Nos.1 to 3 will execute agreement of sale soon after S.Basappa returns home and in case he did not return, within seven years from the date of his missing. Learned Counsel for appellants submits that Ex.D1 death certificate shows that S.Basappa died on 31.07.2006, therefore, suit ought to have been filed within three years from the date of death of S.Basappa.
30. Per contra, learned Counsel for respondents submits that Ex.D1 was produced for the first time before the Court in 2013, plaintiff got the knowledge of death of S.Basappa in 2013 when Ex.D1 was produced before the Court. Whereas the suit was filed in 2011 itself. No evidence was adduced to show that the alleged death of S.Basappa was within the knowledge of the plaintiff. It was contended that PW.1 has admitted in his cross-examination about death of S.Basappa. Perusal of the said deposition shows that PW.1 has denied the suggestion that he was aware of death of S.Basappa in 2006.
31. Seven years period fixed under Ex.P3 expired on 18.12.2009. Thereafter, Ex.P4 notice was served on defendants, but they did not issue any reply to the said notice intimating about the death of S.Basappa to plaintiff. As per Article 54 of the Limitation Act, 1963, time started to run with effect from 18.12.2009. Suit was filed on 29.09.2011. Therefore, suit was in time.
32. Considering all these facts and circumstances, the trial Court decreed the suit and the First Appellate Court on re-appreciating the evidence dismissed the appeal. Therefore, the matter does not fall into any of the norms laid down by the Hon’ble Supreme Court in Gurnam Singh’s case or Santosh Hazari’s case referred to supra. This Court does not find any substantial question of law in this case. The appeal is dismissed with costs.
In view of disposal of the appeal, pending I.A. stood disposed of.
Sd/- JUDGE KSR