IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.639/2017 (SP) BETWEEN:
SMT.SAKAMMA W/O CHIKKANNA R/AT KUDLUR VILLAGE SOLUR HOBLI, MAGADI TALUK RAMANAGARA DISTRICT – 562 126 SINCE DEAD BY LR’S 1. SRI CHIKKANARASEGOWDA S/O LATE CHIKKANNA AGED ABOUT 57 YEARS 2. SRI GOPALA GOWDA S/O LATE CHIKKANNA AGED ABOUT 51 YEARS 3. SRI DEVARAJU S/O LATE CHIKKANNA AGED ABOUT 48 YEARS 4. SRI NARASIMHA GOWDA S/O LATE CHIKKANNA AGED ABOUT 57 YEARS 5. SMT.RATHNAMMA D/O LATE CHIKKANNA AGED ABOUT 57 YEARS THE APPELLANTS NO.1 TO 5 ARE R/AT KUDLUR VILLAGE SOLUR HOBLI, MAGADI TALUK RAMANAGARA DISTRICT - 562126 ….APPELLANTS (BY SRI PUNDIKAI ISHWAR BHAT, ADV.) AND:
1. SMT.KENCHAMMA W/O LATE MUDDUHANUMAIAH MAJOR IN AGE 2. SRI PUTTANANGAIAH S/O LATE MADDUHANUMAIAH MAJOR IN AGE 3. SRI MALLESHAIAH S/O LATE MUDDUHANUMAIAH MAJOR IN AGE RESPONDENT NO.1 TO 3 ARE ALL R/AT APPAGOUDANA HALLI MANNE POST, TYAMAGONDLU HOBLI NELAMANGALA TALUK RAMANAGARA DISTRICT – 562 126 4. SMT.NAGAMMA W/O VENKARAMANAIAH MAJOR IN AGE R/AT KUDLUR VILLAGE SOLUR HOBLI, MAGADI TALUK RAMANAGAR DISTRICT – 562 126 5. SRI S.V.RATHNAMMA W/O M.H.RANGAIAH MAJOR IN AGE R/AT B.K.ROAD MAGADI TALUK RAMANAGARA DISTRICT – 562 126 …RESPONDENTS (BY SRI N.S.JAYANTH BABU, ADV. FOR C/R5) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:01.03.2017 PASSED IN R.A.NO.250/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., MAGADI, DISMISSING THE APPEAL AND COFIRMING THE JUDGMENT AND DECREE DATED 22.08.2014 PASSED IN O.S.NO.459/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., MAGADI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the plaintiff arises out of the judgment and decree dated 1.3.2017 passed by the Senior Civil Judge & J.M.F.C., Magadi, in R.A.No.250/2014. By the impugned judgment and decree, the first appellate court dismissed the appeal of the plaintiff and confirmed the judgment and decree dated 22.8.2014 in O.S.No.459/2001 passed by the Additional Civil Judge and J.M.F.C., Magadi. By the said judgment and decree, the trial court had dismissed the suit of the plaintiff for specific performance of agreement of sale dated 14.9.2001.
2. Appellants are the legal representatives of the original plaintiff. Respondent Nos.1 to 5 were defendant Nos.1 to 5 before the trial court. For the purpose of convenience. Parties will be referred to henceforth with their ranks before the trial court.
3. The brief facts of the case are as follows:
Defendant Nos.1 to 3 were the owners of the land bearing Sy.No.40/6 measuring 0.21 guntas of Kudlur village, Magadi taluk. They sold the said property to defendant No.4 under Ex.D2 the registered sale deed dated 25.6.1978. In turn, defendant No.4 gifted the said property in favour of her daughter defendant No.5 under Ex.D10 the registered gift deed dated 14.9.2001. On the basis of Ex.D2, the name of defendant No.4 was entered in the revenue records as per Ex.D3 and Patta book was Ex.D12 and the RTC Ex.D4 relating to suit property.
4. Plaintiff filed O.S.No.459/2001 claiming that defendant Nos.1 to 3 executed agreement of sale Ex.P10 dated 20.2.1978 in her favour for a consideration of Rs.2,000/- and put her in possession. She further contended that defendant Nos.1 to 3 despite demand failed to execute the sale deed, contrary to that, they have sold the property to fourth defendant. She contended that though she was ready and willing to perform her part of contract, defendants failed to do that. Thus she sought decree for specific performance.
5. Defendant Nos.1 to 3 appeared before the trial court and filed memo conceding to the claim of the plaintiff and consenting to pass decree in her favour. Whereas, defendant No.4 appeared and contested the suit claiming that the suit is collusive one between plaintiff and defendant Nos.1 to 3. She denied the agreement of sale set up by the plaintiff and contended that having sold the property to her under the registered sale deed on 12.9.1978, to grab the property, a collusive suit is filed. She contended that suit is hopelessly barred by time.
6. On the basis of such pleadings, the parties proceeded for trial. The trial court after hearing the parties dismissed the suit on the ground that suit is barred by time as it is filed after more than 23 years of the alleged agreement of sale.
7. Plaintiff challenged the said judgment and decree before the first appellate court in R.A.No.250/2014. The first appellate court by the impugned judgment and decree dismissed the appeal holding that there was no material in proof of readiness and willingness on the part of the plaintiff to perform the contract and the suit is collusive one. The first appellate court further held that the suit is barred by time.
8. This being a second appeal under Section 100 CPC, can be admitted for hearing only if the appellant makes out a substantial question of law for hearing. On the question of fact, first appellate court is the last court. Indisputably, the suit was filed after more than 23 years of the alleged agreement of sale dated 20.2.1978. That was an unregistered agreement of sale.
9. Defendant Nos.1 to 3 did not enter the witness box and afford an opportunity to the fourth defendant to cross-examine them. The sale deed in favour of defendant No.4 was executed on 25.6.1978 i.e., within four months from the date of the alleged agreement of sale Ex.P10. As already pointed out by virtue of such registered sale deed, the revenue entries were effected in favour of the fourth defendant. As per section 3 of the Transfer of Property Act, conveyance of an immovable property under a registered document amounts to constructive notice of the transfer. The execution of the sale deed on 25.6.1978 itself amounts to the denial to execute the sale deed. Suit was filed after 23 years of such sale deed. Therefore was barred by time.
10. The plaintiff claimed to have issued Ex.P6 the notice calling upon defendant Nos.1 to 3 in the year 2001. They did not produce any material to show that such notice was served on defendant Nos.1 to 3. There was absolutely no evidence to show that from 1978 till 2001, plaintiff made any demand with defendant Nos.1 to 3 to perform their part of alleged contract. In the plaint, plaintiffs did not even plead their readiness and willingness to perform their part of agreement.
11. Further, plaintiffs themselves pleaded that defendant Nos.1 to 3 have sold the property to defendant No.4 under registered sale deed dated 25.6.1978 as per Ex.P8. However, they did not seek any declaration for cancellation of the said sale deed while seeking decree for specific performance. In view of the sale deed Ex.P8 executed by defendant Nos.1 to 3 in favour of defendant No.4, they had no title at all to concede before the trial court to pass decree for specific performance. Therefore, the first appellate court was fully justified in holding that the decree passed against them in that regard was a nullity. Without seeking such declaration regarding sale deed of defendant No.4, plaintiff’s suit was not maintainable.
12. Having regard to the material on record and the aforesaid facts and circumstances, this Court does not find any substantial question of law in the matter. Therefore, the appeal is dismissed with cost.
In view of disposal of the appeal, I.A.Nos.1/2017 and 2/2017 do not survive and disposed of accordingly.
Sd/- JUDGE KNM/-