IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL No.2932/2006 (SP) BETWEEN:
SRI D T PUNDALIKA RAO S/O D N TIMMAJAPA SINCE DEAD BY HIS LRs 1(a) SMT. D.P. PUSHPA BAI W/O LATE D.T. PUNDALIKA RAO AGED ABOUT 80 YEARS R/AT ‘ASHIRWAD’ 3RD CROSS, NEAR CHURCH SHARAVATHINAGAR SHIVAMOGGA-577201.
1(b) D.P. SATHYANAND S/O LATE D.T. PUNDALIKA RAO AGED ABOUT 61 YEARS R/AT ‘KOUNTEYA’ RAJENDRANAGAR MAIN ROAD OPP. SRIDHAR NURSING HOME RAJENDRANAGAR SHIVAMOGGA-577204.
1(c) D.P. DAYANAND S/O LATE D.T. PUNDALIKA RAO AGED ABOUT 59 YEARS R/AT ‘NISARGA’, RAJATAGIRI DHARWAD-580 004.
1(d) D.P. VISHWANATH S/O LATE D.T. PUNDALIKA RAO AGED ABOUT 56 YEARS R/AT ‘PUSHPA KUNJ’ OPP. ST. MARY’S CHURCH JAT-PAT NAGAR, VINOBANAGAR SHIVAMOGGA -577204.
1(e) D.P. HARISH S/O LATE D.T. PUNDALIKA RAO AGED ABOUT 54 YEARS R/AT ‘JANANI’ 12TH CROSS, 60 FEET ROAD VINOBANAAR SHIVAMOGGA-577 204.
1(f) D.P. JAGADEESHA S/O LATE D.T. PUNDALIKA RAO AGED ABOUT 53 YEARS R/AT ‘ASHIRWAD’ 3RD CROSS, NEAR CHURCH SHARAVATHINAGAR SHIVAMOGGA-577 201.
(BY SRI. S V PRAKASH, ADV.) AND:
1. SRI G SATYANARAYANA AGED ABOUT 55 YEARS S/O LATE N GOPALAPPA R/AT NAGAPPANAKERI GANDHI BAZAR SHIMOGA -577 201.
2. SRI G MURALI AGED ABOUT 40 YEARS S/O LATE N GOPALAPPA R/AT NAGAPPANAKERI GANDHI BAZAR SHIMOGA -577 201.
3. SMT. HONNAMMA SINCE DECEASED ... APPELLANTS R1 AND R2 ARE TREATED AS LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.3 AS PER ORDER DATED 14.12.2011) 4. SMT. NAGAMMA AGED ABOUT 55 YEARS W/O LATE K NANJUNDAPPA R/AT LAXMI RANGANATHA NILAYA 3RD CROSS FROM SHANESHWARA TEMPLE HOSAMANE EXTENSION SHIMOGA-577 201.
5. SRI GIRISH AGED ABOUT 34 YEARS S/O LATE NANJUNDAPPA R/AT NEAR SATYANARAYANA FLOUR MILL, 2ND CROSS HOSAMANE EXTENSION SHIMOGA-577 201.
... RESPONDENTS ( R-1, R-2, R-4 AND R-5 ARE SERVED – UNREPRESENTED R-1 AND R-2 ARE LEGAL REPRESENTATIVES OF DECEASED R- 3 V/O DATED 14.12.2011) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.06.2006 PASSED IN R.A.NO.15/2002 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) & CJM, SHIMOGA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 07.08.2001 PASSED IN OS.NO.375/1994 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.), SHIMOGA.
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the plaintiff is directed against the judgment and decree dated 05.06.2006 passed in R.A.No.15/2002 on the file of Principal Civil Judge (Senior Division) and CJM, Shimoga, wherein the appeal came to be allowed in part and judgment and decree dated 07.08.2001 passed in O.S.No.375/1994 by the Principal Civil Judge (Junior Division), Shimoga, came to be modified and consequently, the suit came to be decreed in part and that the plaintiff was held entitled for refund of the sale consideration amount of Rs.3,800/- together with interest at 6% p.a. from the date of agreement of sale till actual payment.
2. For the sake of convenience the parties are referred with reference to their ranks held by them before the trial Court.
3. Learned counsel for the appellant is present.
Learned counsel for the respondents are served but unrepresented.
4. This appeal is preferred by the plaintiff, who claims to be the holder of the agreement dated 22.08.1983 in respect of two sites totally measuring 50 feet x 50 feet at Kashipur Village, Shimoga Taluk. The learned trial Judge decreed the suit and granted decree for specific performance against the defendants. But in the regular appeal, by the defendants the judgment and decree came to be modified as the learned First Appellate Judge ordered for refund of advance amount to the plaintiff. Being aggrieved by the modified judgment and decree by the First Appellate Court, the plaintiff has come up before this Court seeking a decree of specific performance in principal.
5. The initial claim of the plaintiff is that the defendants entered into a sale agreement to sell two residential sites totally measuring 50 x 50 feet of Kashipura Village within the taluk limitation of Shimoga for a cash consideration of Rs.3,000/- and received an advance amount of Rs.2,000/-. The balance being payable on or before the registration of sale deed. The parties entered into a fresh sale agreement wherein the sale consideration amount was increased from Rs.3,000/- to Rs.3,800/- and the balance amount was paid.
6. As on 13.05.1985 the defendants were in receipt of the entire sale consideration of Rs.3,800/- and they were under the obligation to execute the registered sale deed. Upon failure, notice came to be issued on 20.06.1994 and the suit followed by the plaintiff. The learned trial Judge was accommodated with the oral evidence of PWs.1 to 4 and documentary evidence of Exs.P1 to 27 on behalf of plaintiff. On behalf of defendants, DW.1 was examined and Ex.D1 came to be marked as Documentary evidence.
7. The learned trial Judge after considering the issues on the execution of sale agreement, passing of consideration, readiness and willingness and court fees paid, decreed the suit in favour of the plaintiff. Against which defendants 4 and 6 preferred regular appeal in RA No.15/2002, which came to be allowed in part as stated above. Being aggrieved by the same, Plaintiff has preferred this second appeal.
8. Sri S.V. Prakash, learned counsel would submit that the plaintiff complied with all the requirements necessary in establishing before the Court, in a suit for specific performance. The agreement was in writing, consideration was fixed and paid, more particularly, enhancement from Rs.3,000/- to Rs.3,800/-. He was ready and willing to perform his remaining part of contract i.e., to get the registered sale deed executed from the defendants.
9. The learned counsel Sri. S.V. Prakash would submit that the first Appellate Court committed grave error in holding that the plaintiff was not entitled for the relief of specific performance of agreement dated 22.08.1983 in tandem, and there is an order for refund of advance amount together with interest.
10. In this connection, it is necessary to cull out the operative portion of the judgment of the trial Court and that of the First Appellate Court, which read as under :-
IN ORIGINAL SUIT No. 375/94 “ORDER The suit of the plaintiff is hereby decreed as under :-
The defendants are hereby directed to execute the registered sale deed in favour of plaintiff with respect of suit sites within 3 months from the date of this order, at the cost of plaintiff.
Further, the defendants, their men, servants, supporters, representatives, etc., are permanently restrained from alienating, transferring or encumbering the suit schedule property in any manner.
Under peculiar circumstances of the case, parties to bear their own costs.
IN REGULAR APPEAL : RA No. 15/2002 ORDER 1. The Regular Appeal filed by the appellants u/o 41 Rule 1 of CPC is hereby allowed in part.
2. The judgment and decree passed by the trial court in O.S.NO.375/1994, dated 07.08.2011 is hereby modified as under :
The suit of the plaintiff is partly decreed.
The plaintiff is entitled for refund of an advance amount of Rs.3,800/- with interest at the rate of 6% p.a. from the date of Ex.P2 agreement till actual payment.
3. In the circumstances of the case, parties are directed to bear their own costs in the appeal.
4. Send the copy of this judgment to the trial Court along with the Learned counsel for the respondent forthwith.”
11. The respondents though served with notice have chosen to remain absent for the proceedings.
12. The prayer of the plaintiff is for specific performance of the agreement dated 22.08.1983 or in the alternative to return the advance amount of Rs.3,800/- together with interest.
13. It is necessary to state that both the parties realized that there was no registration of sale deed of revenue sites, by virtue of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. It was agreed by them that under Ex.P.2 that the registration of the sale deed was to be executed by the defendant in favour of the plaintiff subsequent to lifting of the ban on registration. It is in this connection the learned Appellate Judge refused to grant relief of specific performance in respect of the execution of the registered sale deed of schedule property in favour of the plaintiff. However, the alternative relief for refund of advance amount is considered. The nature of ban for the registration of the sale deed has not specifically mentioned in the agreement. However, it might have failed for a different concept. However, the learned first Appellate Judge has considered the impediment for registration of the landed property under the provisions of Prevention of Fragmentation and Consolidation of Holdings Act, 1966 and provisions of Section 79 A and B of the Land Reforms Act.
14. Thus the learned Appellate Judge held that the sale deed cannot be executed in respect of the fragment of land in question. At this juncture, it is necessary to mention that Section 79 A and B deal with the restriction and disentitlement to acquire fragment of agricultural land and on the said basis refused the relief of specific performance.
15. While admitting the appeal, the substantial questions of law are framed on 05.09.2012 as under:
i) Whether the First Appellate Court is justified in law in modifying the judgment and decree passed by the Trial Court on the ground that the agreement of sale dated 22.08.1983 entered into between the appellant and the defendants is hit by the Karnataka Prevention of Fragmentation of Holdings Act, ignoring the fact that the said agreement of sale is a contingent agreement and as on the date of the suit, the said Act had been repealed?
ii) Whether the First Appellate Court is justified in law in holding that the agreement of sale is void on account of bar contained in the Karnataka Prevention of Fragmentation of Holdings Act ignoring the fact that no time was prescribed for the due performance of the contract and the parties had agreed to have the sale made once the right to register the sale deed accrued to the parties?
16. The additional substantial questions of law framed at the time of dictating judgment are as under:
1. Whether the Sale Agreement in respect of schedule properly is hit by Karnataka Prevention of Fragmentation of Holdings Act and the Karnataka Land Reforms Act. The defendants do not deny execution of the document. On the other hand, contends that the signature was obtained by the plaintiff on the ground that they were required for conversion proceedings of the schedule property. In total, the line of the cross-examination indicates the ignorance of DW1 does not appear to be that much of signing blank paper without understanding the context. More over, the sale consideration in the first instance was paid through a Cheque.
2. The total number of defendants as could be seen from the cause-title are seven and it is the case of defendant No.5 that defendant No.5 – Mahesh, defendant No.6 – Girish and defendant No.7 – Harish were minors at the time of Sale Agreement and even if they entered into an agreement it becomes non-
enforceable and void ab-initio between the period 1983 and 1986?
17. The learned first appellate Judge has found that the oral evidence of PWs.1 to 3 and the documentary evidence including the Sale Agreements at Exs.P1 and P2 in favour of the plaintiff and even passing of the consideration is proved. But the question that requires serious consideration is that, it is the specific case of the defendants in the written statement that agreement itself is void on 2 grounds, i.e., as on the date of agreement of sale deed, acquisition proceedings were initiated and possession was taken and agreement is void due to bar under the Karnataka Prevention of Fragmentation of Holdings Act, the agreement is void. Even though in the written statement, the defendants have specifically taken these contentions, the trial Court has not framed issues on this legal point. Now, the question whether the agreement in question is enforceable is to be considered. On this point, the learned Advocate for appellant relied on the decision reported in 2004(1) KCCR at Page 148 in the case of Smt. Khamarunnisa vs. Mudalappa and Section 39 of the Karnataka Prevention of Fragmentation of Holdings Act.
18. The age is not mentioned for defendant Nos.5, 6 and 7. Defendant No.4 has not entered witness box to challenge the testimony. As stated above, the consideration for Sale Agreement is stated to have been given through cash. The one of the substantial question is to the effect that when the agreement was entered into on 22.08.1983, whether the Sale Agreement was hit by the fragmentation and hence it could not have been entered into because of the blanket bar provided under Section 23 of the Indian Contract Act 1872. In this connection, it is necessary to indicate that the animus of the parties was to get the land converted for non-
agricultural purpose and the schedule description of the property is 50 x 50 feet = Rs.2,500/- sq.ft.. It is in this connection, though the parties entitled to get the schedule property as site the nature of the land continues to be revenue and agricultural. It is in this background conversion was of one of precedent.
19. The fact is that the land remains as revenue/agricultural land. The value of the schedule property as per the 1st Sale Agreement is Rs.3,000/-. However, it came to be increased to Rs.3,800/- in the second agreement. Insofar as applicability of provisions of Karnataka Fragmentation and Consolidation of Holdings Act, the Sale Agreement was entered into during the year 1983, which is the period during which the transfer of fragmented lands were prohibited. No doubt, that came to be lifted by the notification by the Karnataka Government on 05.02.1991. The original suit was filed on 28.07.1994. The original agreement was entered into on 22.08.1983 where the parties agreed for the sale to be executed for a consideration of Rs.3,000/- and it was in the subsequent agreement which is dated 13.05.1985, sale consideration was increased to Rs.3800/-.
20. As per the contents of the Sale Agreement, the reasons mentioned for non effecting the Sale Deed is that the schedule property is still being not converted and though the time is not mentioned for the Sale Agreement, the concept of admission and refusal may come into force. Under these circumstances, the date of Sale Agreement – Ex.P1 is 22.08.1983, the second agreement in the form of new agreement is dated 13.05.1985. This Court also has framed a point of law regarding Karnataka Fragmentation and Consolidation of Holdings Act. In this connection if the lands were to be treated as agricultural as still it is stated to be not converted for residential purpose, the lifting of the ban was effected on 05.02.1991, which become the date of reckoning for determination the cause of action and incidentally the suit is not filed within three years from the date as on the filing of the suit on 28.07.1994. In the overall contest of circumstances, the ban under Fragmentation and Consolidation of Holdings Act is applicable to the case on hand more particularly in the light of Section 23 of the Indian Contract Act, 1872. The question of consideration of Section 79A and B of the Land Reforms Act does arise for consideration in the nature and circumstance of the case. I find that the learned Appellate Judge was right in coming to the conclusion that execution of the Sale Agreement passing consideration was proved. Insofar as amount paid by way of Sale Consideration of Rs.3,800/- is concerned, the learned Appellate Judge refused the relief of specific performance for execution of the Sale Deed. However, has ordered for refund of the advance amount of Rs.3,800/- with interest at the rate of 6% from the date of Ex.P2 till its actual payment. I find the reasoning and findings of the first Appellate Court is sound and reasonable. However, interest rate is increased to 9% from the date of entering into the first agreement. Insofar as the judgment and the decree of the trial Court is concerned, it had decreed the suit filed for specific performance as sought for. The learned first Appellate Judge was right in modifying the said judgment. I do not find any infirmity or irregularity in the judgment and decree passed by the learned first Appellate Judge except regarding the rate of interest as stated above. The substantial questions of law are answered accordingly as per the final order.
The appeal is partly allowed. The rate of interest granted at 6% per annum is increased to 9% from the date of entering in to the first agreement. To that extent the judgment and decree dated 05.06.2006 passed in R.A. No.15/2002 on the file of Prl Civil Judge (Sr.Dn.), & CJM, Shimoga is modified.
Sd/- JUDGE NG/Sbs*