IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF SEPTEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A. No.2821/2010 C/W R.S.A. No.2822/2010 BETWEEN:
SRI MUNIYAPPA AGED 58 YEARS S/O SRI VENKATASHAMAPPA RESIDING AT CHANDENAHALLI VILLAGE VIJAYAPURA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT …COMMON APPELLANT (BY SRI SANATHKUMAR SHETTY AND SRI VIGNESHWARA.U, ADVOCATES) AND :
SRI MUNIYAPPA (SINCE DECEASED) BY HIS LEGAL REPRESENTATIVES 1(a) SMT.MUNITHAYAMMA AGED ABOUT 65 YEARS W/O LATE MUNIYAPPA 1(b) SRI NAGARAJA AGED 52 YEARS S/O LATE MUNIYAPPA 1(c) SRI M.MUNIYAPPA AGED ABOUT 50 YEARS
(BY SRI M.K.SHIVARAM, ADVOCATE FOR R1(a,b,d,e,f and g SRI G.V.SHASHIKUMAR, ADVOCATE FOR R1(c)) R.S.A.NO.2821/2010 IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.08.2010 PASSED IN R.A.NO.49/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.06.2007 PASSED IN O.S.NO.173/2005 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC., DEVANAHALLI.
R.S.A.NO.2822/2010 IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.08.2010 PASSED IN R.A.NO.48/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.06.2007 PASSED IN O.S.NO.237/2004 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC., DEVANAHALLI.
THESE APPPEALS COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two second appeals are filed by Sri Muniyappa, son of Sri Venkatashamappa / Venkataswamappa, the erstwhile owner of land bearing Sy. No.39/1 measuring 27 guntas situate at Chandenahalli village, Vijayapura hobli, Devanahalli Taluk, Bengaluru Rural District, which land is the subject matter of both the suits in O.S. Nos.237/2004 and 173/2005.
2. The appeal in RSA No.2822/2010 arises from the original suit in O.S. No.237/2004 filed by the said Muniyappa (common appellant in these appeals) for the relief of permanent injunction against another person whose name is also Sri Muniyappa (common original respondent in these appeals), son of Sri Ramaiah / Ramayya, the purchaser under the agreement of sale dated 20.06.1996 executed by the plaintiff in respect of the suit schedule property i.e., aforesaid land bearing Sy. No.39/1 measuring 27 guntas, for a valuable consideration of Rs.48,500/-, before the Court of the Principal Civil Judge (Jr. Dn.) and JMFC., Devanahalli. The said suit came to be dismissed by the trial Court vide judgment and decree dated 20.06.2007. As against that, the plaintiff in the suit viz., Muniyappa, son of Venkatashamappa, preferred appeal in R.A. No.48/2007 on the file of the Fast Track Court, Devanahalli.
3. The appeal in RSA No.2821/2010 arises from the original suit in O.S. No.173/2005 filed by Muniyappa, son of Ramaiah, the agreement holder, against Muniyappa, son of Venkatashamappa, for the relief of specific performance of the aforesaid agreement of sale dated 20.06.1996 executed by the defendant agreeing to sell the suit schedule property i.e., aforesaid land bearing Sy. No.39/1 measuring 27 guntas in his favour for a valuable consideration of Rs.48,500/-. The trial Court by its judgment dated 20.06.2007, decreed the said suit for specific performance, which was subject matter of challenge in R.A. No.49/2007 filed by the defendant in the suit – Muniyappa, son of Venkatashamappa, before the Fast Track Court, Devanahalli.
4. It is seen that in effect, Muniyappa, son of Venkatashamappa (plaintiff in O.S. No.237/2004 and defendant in O.S. No.173/2005), having lost the suit in O.S. No.237/2004 filed by him for the relief of permanent injunction and having suffered decree of specific performance against him in another suit in O.S. No.173/2005 filed by Muniyappa, son of Ramaiah, preferred R.A. Nos.48/2007 and 49/2007 respectively, before the Fast Track Court, Devanahalli. The lower appellate Court by its common judgment and decree dated 21.08.2010, dismissed both the appeals with cost. The common appellant in the said appeals – Muniyappa, son of Venkatashamappa, has come up in the present second appeals as stated supra.
5. The brief facts leading to these two appeals are:-
5.1 The appellant - Muniyappa S/o Venkatashamappa is owner of Survey No.39/1 measuring to an extent of 27 guntas situated at Chandenahalli Village, Vijayapura Hobli, Devanahalli Taluk. On 20.6.1996, he entered into an agreement of sale with Muniyappa S/o Ramaiah for sale of said land for valuable consideration of Rs.48,500/- and on the same day Rs.40,000/- was received by the vendor towards sale consideration and in part performance, the possession of the land was also delivered to the purchaser under the agreement of sale vide Ex.P6. However, as agreed by both the parties, no time was stipulated for completion of the sale transaction under the said agreement of sale. Thereafter, it is stated that Muniyappa S/o Ramaiah made several attempts to get the sale deed of aforesaid property executed in his favour by paying the balance sale consideration of Rs.8,500/-, which was not received by the vendor under the agreement and he did not come forward to execute the sale deed as agreed under the agreement of sale vide Ex.P6. In that background, it is stated that registered legal notice was sent to the vendor on 18.3.2005 calling upon him to execute the sale deed by receiving the balance consideration. The paragraph 3 of the notice would also indicate that on several occasions the purchaser approached the vendor and requested him to execute the sale deed to perform his part of the contract; since the same was not considered by the vendor it is stated that he is sending the legal notice dated 18.3.2005. The postal cover in which it was sent, which is produced and marked as Ex.P4, would indicate that the vendor refused to receive said notice. Thereafter the suit in O.S.No.173/2005 was filed on 31.5.2005 by the purchaser as plaintiff seeking the relief of specific performance of the agreement of sale dated 20.6.1996 against the vendor as defendant and sought for direction to the vendor to execute the sale deed in his favour by receiving balance sale consideration in respect of the suit schedule property.
5.2. In the said suit, on service of summons, the vendor/defendant entered appearance and filed his statement denying the plaint averments and contended that the suit is barred by limitation. Further, it was contended that he has filed a separate suit for permanent injunction against the plaintiff in O.S.No.237/2004. The pleadings in the said suit will be dealt with separately.
5.3. The Court below proceeded to frame the following issues in O.S.No.173/2005.:-
“1 .Whether the plaintiff proves that the defendant executed agreement of sale of the suit property in his favour for a sum of Rs.48,500/- on 20.6.1996?
2. Whether the plaintiff proves that the defendant received a sum of Rs.40,000/- from his towards part sale consideration and put to in possession of the suit property on 20.6.1996?
3. Whether the plaintiff proves that he has always been ready and willing to perform his part of the agreement?
4. Whether the suit is in time?
5. Whether the plaintiff is entitled for specific performance of the agreement dated 20.6.1996?
6. What order or decree?”
Thereafter, the evidence was recorded in the said proceedings. On behalf of the plaintiff/purchaser, who is respondent herein is examined as P.W.1 and the witness to the agreement of sale vide Ex.P6 are examined as P.Ws.2 and 3. In all 11 documents were produced and marked in support of the case of the plaintiff which are in Exs.P1 to P11. On behalf of the defendant, first defendant entered witness box and adduced evidence as DW1. However, he did not produce any documents in support of his defence. The court below on appreciation of the pleadings and the evidence available on record answered all the five issues, which are framed therein in the affirmative i.e. the execution of agreement for sale of suit property in favour of Muniyappa S/o Ramaiah under agreement of sale dated 20.6.1996 for Rs.48,500/- and further receiving advance sale consideration of Rs.40,000/- under the aforesaid agreement of sale and also putting the purchaser under agreement in possession of the suit property and also with reference to the purchaser being ready and willing to perform his part of the agreement as well as the suit which is filed by the purchaser for specific performance in O.S.No.173/05 is within the period of limitation and his entitlement to seek execution of the agreement of sale dated 20.6.1996 were held in his favour and consequently, the suit of Muniyappa S/o Ramaiah is decreed as prayed for.
5.4. In the meanwhile, with reference to the original suit in O.S.No.237/2004 (which is filed by the defendant in O.S.No.173/05 viz., Muniyappa S/o Venkatashamappa) for permanent injunction, it is seen that in the said suit, the defence of defendant-Muniyappa S/o Ramaiah is similar to his pleadings in the plaint in O.S.No.173/05 . Based on that the following issues were framed in the said suit:-
“1.Whether the plaintiff proves that he is in possession of the suit schedule property?
2.Whether the plaintiff proves the alleged interference by the defendant?
3.Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
4.What order or decree?”
In the said proceedings, appellant herein who is the original owner of the said property examined himself as P.W.1 and he produced and got marked in all five documents in Exs.P1 to P5. In the said proceedings on behalf of the defendant in the said suit, who is respondent herein three witnesses were examined. The defendant Muniyappa S/o Ramaiah got himself examined as D.W.1 and two witnesses as DWs.2 and 3 and got marked eight documents as Exs.D1 to D8. The agreement of sale, which is Ex.P6 in the other suit was got marked as Ex.D3.
5.5. The Court below on appreciation of the pleadings and the evidence available on record proceeded to answer all the issues framed in the said suit in the negative against the plaintiff in the said suit holding that he has failed to prove that he is in possession of the suit schedule property; he has failed to show the alleged interference by the defendant in the said suit and that he is not entitled to the relief of permanent injunction and consequently, dismissed the said suit.
5.6. As stated supra, two appeals were filed by the Muniyappa S/o Venkatashamappa, against the aforesaid two judgments of the Courts below in R.A.Nos.48 and 49/2007. The lower appellate Court clubbed both the appeals together and after considering the pleadings in the appeal memos and also the judgments of the Courts below proceeded to frame in all three points, one in R.A.No.48/07 and two in R.A.No.49/07 for consideration, as under:-
In R.A.No.48/2007:
“1.Whether the appellant has established that he has been in possession of the suit property on the date of suit and produced all cogent materials before the trial Court but it has failed to consider it in the right prospective which resulted in miscarriage of justice?
2.What order?”
IN R.A.No.49/2007:
“1.Whether the appellant has established that the trial Court has erred in accepting the case of the plaintiff that, defendant/appellant has executed an agreement of sale in favour of the plaintiff agreeing to sell the suit property for a consideration of Rs.48,500 and received an amount of Rs.40,000 as advance money and put the plaintiff in possession of the suit property?
2.Whether the appellant proved that the suit of the plaintiff was barred by limitation and the trial Court has erred in decreeing: time barred suit of the plaintiff without proper application of oral and documentary evidence and appreciating the legal principles which resulted in miscarriage of justice?
3.What order?”
5.7 After hearing the appellant in both the appeals, proceeded to consider the only point for consideration in R.A.No.48/07, which is arising out of judgment in O.S.No.237/04 and answered the same in the negative holding that the appellant has failed to establish that he was in possession of the suit schedule property on the date of the suit and failed to produce cogent materials before the trial Court in support of his possession, consequently on re- appreciation of the material available on record of the trial Court, which resulted in judgment and decree against the appellant is held to be correct by answering the point for consideration in the negative.
5.8. While coming to R.A.No.49/07, the lower appellate Court has answered both the points framed therein in the negative i.e., the appellant in the Court below has failed to establish that the trial Court erred in accepting the case of the plaintiff in O.S.No.173/2005 in the said proceedings regarding execution of the agreement of sale agreeing to sell the property for consideration of Rs.48,000/- and also receiving advance of Rs.40,000/- is held to be correct and the grounds urged that such a finding is erroneous is held in the negative. Further, regarding the second point for consideration, which was raised regarding the suit being barred by limitation and the trial Court erred in decreeing the suit is also rejected by answering the said point framed for consideration in the negative. Consequently, both the appeals filed by Muniyappa S/o Munishamappa who is plaintiff in O.S.No.237/04 and defendant in O.S.No.173/2005 are rejected. As against the concurrent findings rendered in the appeals before the lower appellate court, these two second appeals are filed.
6. Heard the learned counsel for the appellant as well as the contesting respondent. Perused the judgments of both the Courts below with reference to the pleadings and the evidence available on record.
7. On going through the same, this Court find that the common respondent in both the appeals who is the plaintiff in O.S.No.173/05 had indeed established before the Court below that he had entered into an agreement of sale with the defendant therein for purchase of the suit schedule property which is land bearing Survey No.39/1 measuring to an extent of 27 guntas situated at Chandenahalli Village, Vijayapura Hobli, Devanahalli Taluk. He is also able to establish by adducing evidence not only by himself but also examining the witnesses to the said agreement of sale at Ex.P6 in O.S.No.173/05 and Ex.D3 in O.S.No.237/04. It is seen that after executing the agreement of sale in favour of the plaintiff-respondent in both the appeals herein, the appellant-defendant has put him in possession of the property. As could be seen from the findings of both the Courts below as on the date of the filing of the suit in O.S.No.237/04, defendant in the said suit was in possession of the property and there was no disturbance. The material on record as well as the oral evidence clearly establish that the respondent in both these appeals was put in possession of the property as on the date of agreement of sale dated 20.6.1996. Though the appellant herein has denied that there was request for receiving the balance of Rs.8,500/- and executing the sale deed, he had declined to accept the same. However, the trial Court has rightly appreciated that aspect in considering that the notice which was sent by the respondent herein calling upon the appellant herein to execute the sale deed of the suit schedule property by notice dated 18.3.2005, had come back with an endorsement that the party refused to receive the said document as could be seen in Ex.P4 in O.S.No.173/2005, which is the cover which is returned by the postal authority endorsing the refusal of the appellant herein. The content of the notice at Ex.P3 would clearly indicate the recital by the respondent herein in calling upon the appellant herein to receive the balance sale consideration and to execute the sale deed on several times before sending the notice and the same not being heeded to by the appellant herein is rightly appreciated by the Courts below. However, the attention of the Court to the cross-examination of the appellant in O.S.No.173/2005 is drawn to demonstrate that there was refusal on the part of the appellant herein in the year 2005 i.e. within four months’ after the execution of the sale. When that portion of the cross-examination of DW.1-Muniyappa S/o Venkatashamappa in O.S.No.173/2005 is looked into, it is clear that was the beginning of the request to appellant herein to come forward and execute the sale deed within four months’ from the date of entering into the agreement on 20.6.1996. However, his answer to that question is not that he is refusing to execute the sale deed, on the contrary, he has stated that he would persuade his children to join him to execute the sale deed in favour of the respondent herein, which by any stretch of imagination cannot be taken as refusal. Therefore, the reliance placed on the said cross- examination as the first point of refusal and the suit not being filed within three years of time is rightly answered by the trial Court while answering issue No.4 wherein it is observed that there is no time stipulated in the agreement of sale to execute the sale deed and as per Article 54 of the Indian Limitation Act, when the time is not fixed, the limitation period begins to run when the plaintiff has noticed that the performance is refused. In the instant case i.e. considering the refusal to receive the notice sent on 18.3.2005 which is at Ex.P2 in O.S.No.173/2005 should be taken as the starting point of limitation under Section 54 of the Limitation Act is rightly considered by the trial Court, which is affirmed by the lower appellate Court. Therefore, the argument which is submitted in that behalf by the learned counsel Sri. Sanathkumar Shetty in stating that there is nine years delay in making the demand is without basis and particularly when the contents of Ex.P2 and paragraph 3 of the cross-examination of D.W.1 in O.S.No.173/2005 is looked into, it is clear that the demand was started for the first time within four months’ from the date of entering into the agreement of sale and it is considered as refusal only when he refused to receive the notice which was issued to him.
8. In the entire proceedings, though there was continuous denial by the appellant herein with reference to the execution of agreement of sale, the original respondent herein – Muniyappa S/o Ramaiah, had got marked the certified copy of the complaint lodged by the appellant herein – Muniyappa, S/o Venkatashamappa with Vijayapura Police Station as per Ex.P9 in O.S. No.173/2005. That complaint by the appellant herein is lodged with Vijayapura Police station, Devanahalli circle, Bengaluru Rural District, on 16.06.2004, accusing that the respondent herein refused to hand over possession of the land, which was given to him under the agreement of sale (dated 20.06.1996) by taking back Rs.40,000/- paid by him and calling upon the Police to take action against him. The contents of the said complaint successfully establishes the transaction between the parties.
9. While seeking admission of these appeals, learned counsel for the appellant, Sri Sanath Kumar Shetty, would rely upon the judgment of the Hon`ble Supreme Court rendered in the matter of K. Nanjappa (dead) by legal representatives vs. R.A. Hameed alias Ameersab (dead) by legal representatives and another reported in ((2016) 1 Supreme Court Cases 762), and more particularly the observations made in para No.31 as follows:
“31. Indisputably, various documents including order-sheets in the earlier proceedings including an execution case were filed to nullify the claim of the plaintiff regarding possession of the suit property but these documents have not been considered by the High Court. In our considered opinion the evidence and the finding recorded by the criminal courts in a criminal proceeding cannot be the conclusive proof of existence of any fact, particularly, the existence of agreement to grant a decree for specific performance without independent finding recorded by the civil court.”
10. It is clear from perusal of the material on record that there is no finding given on Ex.P9, which is complaint given by the appellant herein – Muniyappa to Vijayapura Police to launch criminal proceedings. This Court find that the aforesaid judgment of the Apex Court does not have any bearing on the facts of this case. What is relied upon by the Court below is a complaint, which is filed by the appellant herein – Muniyappa against the original respondent herein – Muniyappa in complaining that he was not willing to surrender possession of the property given to him under the agreement of sale dated 20.06.1996 by taking back amount of Rs.40,000/- paid by him. This by itself cannot be taken as a finding rendered in a criminal proceeding filed by the appellant herein - Muniyappa. For that matter, no criminal proceeding is launched based on the said complaint as fairly submitted by learned counsel, Sri Sanath Kumar Shetty himself. Learned counsel further submits that the complaint given by the appellant herein was investigated by Police and ‘B’ report was filed, which is not challenged by the parties. Therefore, contents of the said complaint cannot be equated to finding rendered in criminal proceedings.
11. In that view of the matter, this Court find that the aforesaid judgment would not support the case of the appellant in trying to seek admission of these two appeals as if serious error is committed by both the Courts below in reading Ex.P6 in O.S. No.173/2005 and Ex.D3 in O.S. No.237/2004, which is the common document i.e., agreement of sale dated 20.06.1996, Ex.P2 in O.S. No.173/2005, which is legal notice dated 18.03.2005 as well as Ex.P9 in the said suit, which is certified copy of the police complaint given by the appellant herein and which would abundantly prove that the agreement of sale was indeed entered into between the appellant herein as vendor and original respondent herein as purchaser under the agreement of sale dated 20.06.1996 and in pursuance of the said agreement, the appellant herein had received Rs.40,000/- and original respondent herein was put in possession of the suit schedule property on the date of execution of agreement of sale and after the death of original respondent – Muniyappa, son of Ramaiah, his legal representatives are stated to be in possession of the suit schedule property.
12. When these matters were heard for admission, learned counsel for one of the legal representatives of the original respondent herein, namely R1(c), would bring to the notice of this Court that in execution proceedings initiated in Execution No.15/2007 on the file of Civil Judge (Jr. Dn.), Devanahalli, he had secured necessary orders from the Court for execution of the sale deed in favour of the original respondent herein – Muniyappa, the agreement holder for purchase of the suit property, which is duly complied with and the execution of sale deed was completed on 08.06.2009. Therefore, the original respondent herein – Muniyappa, son of Ramaiah, was in possession of the suit schedule property as registered owner of the same and after his death, his legal representatives continue to be in possession of the same.
13. In this background, this Court feel that both the suits i.e., O.S. No.237/2004 filed by the appellant herein – Muniyappa for the relief of permanent injunction and O.S. No.173/2005 filed by the original respondent herein - Muniyappa for the relief of specific performance of agreement of sale, are rightly decided by the trial Court in dismissing the suit in O.S. No.237/2004 filed by the appellant herein – Muniyappa, son of Venkatashamappa, and decreeing the suit in O.S. No.173/2005 filed by the original respondent herein – Muniyappa, son of Ramaiah, and the same has been rightly confirmed by the first appellate Court. Therefore, as against the concurrent finding rendered by both the Courts below, this Court find that no grounds are made out for interference by this Court by admitting these second appeals. In the facts of the case and on the basis of grounds urged, no substantial question of law arises for consideration in these two appeals.
Accordingly, both the appeals are dismissed.
Sd/- JUDGE ALB/sma