IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.2323/2012(SP) BETWEEN:
Sri.P.C.Puttarudrappa, 77 years, S/o Channaveerbhadrappa, No.117, Basaveshwara Nilaya, Nagarthpet, 3rd Ward, Doddaballapur Town, Bengaluru District – 561203.
... Appellant (By Sri.Vijaya Raghavan.M.R, Advocate) AND:
1. Muniyamma, 68 years, W/o Doddathimmappa, R/at Thippapura, Veerapura Post, Kasaba Hobli, Doddaballapur – 561203.
2. Smt.Rangamma, 75 years, W/o late Hanumanthappa.
3. Sri.Ramaiah, 60 years, S/o late Hanumanthappa, Respondents 2 and 3 r/at, Thippapura, Veerapura Post, Kasaba Hobli, Doddaballapur – 561203.
4. Sri.Anjinappa, 62 years, S/o late Hanumanthappa, R/at behind K.M.Hanumantharayappa’s House, Devaraja Nagar, 2nd Ward, Doddaballapur Town – 561203.
... Respondents (By Smt.S.K.Nagarathna, Advocate for C/R1 in CP 796/12 R2, R3, R4 - served) This Regular Second Appeal is filed under Section 100 Of CPC., against the judgment and decree dated 10.9.2012 passed in R.A.No.2/2008 on the file of Presiding Officer, Fast Track Court, Doddaballapura, allowing the appeal and setting aside the judgment and decree dated 12.11.2007 passed in O.S.No.263/2002 on the file of Principal Civil Judge (Jr.Dn.) and JMFC, Doddaballapur.
This Regular Second Appeal coming on for ‘Admission’, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the appellant being aggrieved by the judgment and decree passed by the Fast Track Court at Doddaballapur in R.A.No.02/2008 dated 10.09.2012 wherein the First Appellate Court allowed the appeal of the respondent No.1, by dismissing the suit and decreeing the suit for specific performance.
2. Heard the arguments of the learned counsel for the appellant as well as respondent No.1.
3. Ranks of the parties before the trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the trial Court in brief is that the plaintiff filed the suit for relief of specific performance of contract allowing that the defendants are the absolute owners of the suit schedule property measuring 18 guntas in Sy.No.125/3 and the plaintiff and defendant entered into the agreement of sale. The plaintiff agreed to purchase the suit schedule property from the defendants on consideration of Rs.4,000/- and entered into an agreement dated 17.11.1986. The defendants agreed to execute the Sale Deed of the suit schedule property after changing the katha into their names. Further, the defendants have sold the land in Sy.No.125/5 measuring 20 guntas as per the agreement of sale dated 17.11.1986. The plaintiff also stated that katha was changed in the name of the plaintiff during the year 1986 itself. The revenue records have been affected in the names of the plaintiff in Sy.No.125/5. The defendants were aware of the katha standing in the name of the plaintiff in respect of the suit schedule property but postponed the execution of the Sale Deed and tried to sell the same in favour of 3rd parties and also filed the appeal before the Assistant Commissioner challenging the mutation entered in the name of the plaintiff. Hence, the plaintiff got issued a legal notice to the defendants on 31.07.2002 but the defendants issued untenable reply that they have not executed any Sale Deed. Hence, the suit.
5. In pursuance to the notice issued by the trial Court, the defendants appeared through their counsel and filed written statement by denying the execution of the sale agreement and also denied passing of the sale consideration. However, they admitted the sale of the land to an extent of 20 guntas in favour of the plaintiff in Sy.No.125/5 and agreement of sale dated 17.02.1986 and further, stated that the katha have been effected in the name of the plaintiff in respect of the suit schedule property on the basis of the alleged agreement of sale, which is not permissible and further, denied the averments. The defendants are making attempt to sell the property to others but admitted filing of the appeal before the Assistant Commissioner for changing the entries in respect of the suit schedule property and also taken the contention that the plaintiff has forged the signature of the defendants and also filed false case for specific performance and the suit is barred by limitation and sought to dismiss the suit.
6. Based upon the rival pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that defendants executed an agreement of sale dated 17/11/1986, agreeing to sell the suit schedule property in her favour?
2. Whether the plaintiff proves that she has paid a consideration of Rs.4,000/- to the defendants?
3. Whether the plaintiff proves that time is not the essence of the contract?
4. Whether the plaintiff proves that , she is always ready and willing to perform her part of the contract?
5. Whether the plaintiff proves that, she was put in possession of the suit schedule property by the defendants in part performance of contract?
6. Whether the suit is not maintainable?
7. Whether the suit is barred by limitation?
8. Whether the plaintiff is entitled for the suit relief?
9. What order and decree?
7. To substantiate the contention of the plaintiff, plaintiff’s power of attorney holder is examined as PW-1 and got examined 3 more witnesses as PW-2 to PW-4 and also marked 24 documents as Exs.P1 to P24 and defendant No.3 is examined as DW.1 and also examined 2 more witnesses as DW-2 and DW-3 and they also got marked 8 documents as Exs.D1 to D8.
8. After considering evidence on record and hearing the arguments, the trial Court has given a finding on issue Nos.1 to 6 in the negative as against the plaintiff and issue No.7 in the affirmative in respect of the limitation and issue No.8 in negative. Ultimately, dismissed the suit of the plaintiff.
9. Being aggrieved by the said judgment and dismissal of the suit, plaintiff filed an appeal before the Fast Track Court , Doddaballapur in R.A.No.02/2008. The First Appellate Court after hearing the arguments allowed the appeal and set aside the dismissal of the suit and decreed with cost throughout and directed the defendants to execute the Sale Deed in favour of the plaintiff/appellant within 60 days. During the pendency of the appeal before the First Appellate Court, it is noted that the defendants have sold the suit schedule property to the present appellant on 24.06.2010. Thereafter, the purchaser Puttarudrappa filed application before the First Appellate Court and got impleaded himself as respondent No.4. The defendant Nos.1 to 3 has not filed any appeal as they have already sold the property to the appellant herein. The appellant is before this Court in second appeal.
10. The learned counsel for the appellant has contended that First Appellate Court committed error in allowing the appeal of the plaintiff even though the alleged agreement was executed on 17.11.1986 and sale consideration is said to be passed. Both the execution of the agreement of sale and payment of earnest money has been denied by the defendants. The trial Court after appreciating the evidence has rightly rejected the suit of the plaintiff and also contended that agreement was entered into between the parties on 17.11.1986. Though the time is not the essence of contract, but, the plaintiff filed the suit within reasonable time of execution of Sale Deed. But the notice was issued only on 31.07.2002. The suit was filed on 23.08.2002, almost after 15 years of the execution of the agreement, seeking relief of specific performance of contract. The plaintiff required to file the suit within 3 years and apart from that, the First Appellate Court did not properly re-appreciate the evidence by formulating the points for consideration as required under Order 41 Rule 31 of CPC and further, contended that the appellant was impleaded as additional respondent before the First Appellate Court. Such being the case, the First Appellate Court ought to have given liberty for this appellant to file the written statement and also allowed to lead evidence on his behalf, which was not done. Therefore, without giving opportunity to the respondent No.4/appellant, the very judgment of the Court is not sustainable under law and hence, prayed for allowing the appeal by setting aside the judgment of the First Appellate Court.
11. Per contra the learned counsel for the respondent No.1/plaintiff has contended that the First Appellate Court though has not formulated proper points for consideration as required under Order 41 Rule 31 of CPC but the findings clearly goes to show that after considering the evidence and re-appreciation of the evidence on record, the First Appellate Court has allowed the appeal filed by the plaintiff. It is also contended that though there was a delay in filing the suit by the plaintiff but the fact remains the same that very agreement of sale has been executed on 17.11.1986 whereunder the plaintiff - defendants had entered the agreement of sale of suit schedule property measuring 18 guntas in Sy.No.125/3. On the same date, one more property has been sold to the same defendant in Sy.No.125/5. Sale Deed has been executed on the same day and a recital in the boundary of the property in Sy.No.125/5 has mentioned that in the very agreement, the property has been shown as northern boundary and the learned counsel argued that the plaintiff was able to get the mutation in his name in the RTC on the very same date based upon Sale Deed dated 17.11.1986. Therefore, there is no need for the plaintiff to insist the execution of Sale Deed as the possession of property in question was handed over to the plaintiff on the date of agreement of Sale and the endorsement was also made in the name of the plaintiff. Therefore, when the defendant filed the application before the revenue authority challenging the name of the plaintiff in the revenue records, then, the plaintiff was forced to file the suit. The denial of the execution of Sale Deed by the defendant is only in the year 2007, by way of reply to the legal notice, through suit, which is filed within 3 years from the date of refusal of the execution of the Sale Deed. Therefore, suit is within time. Therefore, the learned counsel supported the judgment of the First Appellate Court and prays for dismissal of the appeal. It is also contended by the learned counsel for the respondents that the appellant is a subsequent purchaser, during the pendency of the first appeal, the appellant stepped into the shoes of the defendant, such being the case, the question allowing him to file any written statement or lead evidence is not permissible under law. As suit is barred by limitation and hence, prays for dismissal of the appeal.
12. Upon hearing the arguments of the learned counsel for the parties, the substantial questions of law arise for consideration are under:
a) Whether the Lower Appellate Court committed an error of jurisdiction in not raising proper issues and points for its determination and assessing the material on record independently and recording findings thereon on each of the issues giving cogent and acceptable reasons for doing so? And without raising proper issues for determination?
b) Whether the Lower Appellate Court was justified in ignoring the presumption of law as to proof of documents and passing of consideration when the defendants had denied the execution of the document that is Agreement of Sale?
c) Whether the Appellate Court was justified in proceeding with the Appeal as such without remanding the matter to trial Court having permitted to implead the appellant purchaser of the suit schedule property at the insistence of the First Respondent/appellant before it without affording an opportunity to the appellant herein impleaded respondent to put forth his case and affording opportunity to defend?
d) Whether the Appellate Court was justified in holding that the suit is not barred by Limitation when the suit had been filed after lapse of 16 years from the date of the agreement? And whether the First appellate Court was justified in granting equitable relief when there was admittedly inordinate delay?’ 13. As regards the first substantial question of law raised, the First appellate Court committed error in not rising appropriate points for determination and assessing the materials on record. On perusal of the judgment of the First Appellate Court and the trial Court, it goes to show that the trial Court framed 9 issues and ultimately, dismissed the suit. Whereas, the First Appellate Court formed only one point for determination, which reads as under:
Point No-1: Whether the judgment and decree passed by the trial Court is perverse, Capricious and arbitrary and it calls for any interference by this Court?
14. Admittedly, on perusal of the point for determination raised by the First Appellate Court, it is seen that it is not correct in view of the provisions of Order 41 Rule 31 of CPC, which reads as under:
“31.Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state – (a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”
15. The First appeal being continuance of the original suit, the First appellate Court ought to have raised points for consideration as required under Order 41 Rule 31 of CPC, thereby the First Appellate Court committed error in not raising proper point for determination. However, it is brought to the notice of the Court by the respondents counsel that the First Appellate Court though has not raised proper points for consideration, but the findings of the First Appellate Court goes to show that the entire evidence has been re- appreciated by the First Appellate Court in connection with the issues framed by the trial Court. Therefore, at this stage, it cannot be considered as error merely the point for consideration not mentioned by the Appellate Court as the very defendants have sold the property during the pendency of the first appeal, the appellant being the subsequent purchaser. Though the First appellate Court committed error in not raising point for consideration as required under Order 41 Rule 31 of CPC, however, it is only an irregularity but not illegal. The findings cannot set aside only on the basis of not raising of proper point of consideration. Accordingly, I answer the first substantial question of law.
16. As regards the second substantial question of law, raised by the appellant in respect of the denial of the documents the agreement of sale executed by the defendants. On perusal of the records, Ex.P21 - agreement of sale dated 17.11.1986 executed by the defendant Nos.1 to 3, though the defendants denied the execution of the agreement of sale and receipt of Rs.4,000/- as earnest money but they have not denied the execution of the very same date for having sold the property in Sy.No.125/5 measuring about 20 guntas. The boundaries shown in the said sale deed on the northern side of the property in Ex.P22, clearly indicates that on the same day, the vendor agreed to sell their property bearing Sy.No.125/3 by way of agreement of sale.
17. The trial Court, while appreciating the evidence, execution of Ex.P20 and Ex.P22, the Sale deed and the agreement of sale has been executed on the same day, the defendant has sold property of Sy.No.125/5 and agreed to sell the property in Sy.No.125/3 by receiving the amount of Rs.4,000/-. But the trial Court did not consider the execution of agreement of sale and examining of the witnesses by the plaintiff proving the agreement of sale. Therefore, the defendants cannot deny the agreement of sale while admitting the Sale Deed executed in favour of the plaintiff on the same day. The defendant cannot be permitted to blow hot and cold at the same time. Therefore, the Appellate Court has rightly held that there is agreement of sale executed by the defendants in favour of the plaintiff on 17.11.1986. Though the defendants denied the execution of agreement of sale but the plaintiff is successful in proving by examining the PW.4 – the attestor of agreement of sale. As already observed above, the defendant has also sold the property to the plaintiff on the very same date. Such being the case, the contentions taken by the appellant cannot be accepted. Mere denial of the execution is not enough. Whereas, the plaintiff is successful in proving execution of agreement of sale by oral as well as documentary evidence. Therefore, the second question of law is answered against the appellant and in favour of the respondents.
18. As regards to the third question of law raised by the appellant that after considering the application filed by appellant by impleading himself as respondent No.4, the First Appellate Court ought to have permitted him to file written statement and also could be permitted to lead evidence or else First Appellate Court ought to have remitted the matter back to trial Court for fresh consideration. But, the very contention of the appellant is not acceptable since the very purchase made by the appellant from the respondent Nos.2 to 4 on 24.06.2010 was during the pendency of the first appeal. The very sale itself is lis-pendens and therefore, after purchase of the property, he himself impleaded as party as respondent No.4 in the first appeal, which was permitted by the First Appellate Court. There was no question of granting any chance to the subsequent purchaser for filing any written statement in the appellate stage. It is also not necessary to give any opportunity for the impleading applicant in the appellate stage to adduce any evidence. Therefore, filing of written statement is permissible only in the trial Court but not in the Appellate Court, but defendant Nos.1 to 3 have filed written statement and issues were framed by the trial Court. Such being the case, he being the subsequent purchaser purchased the property during the pendency of the appeal has no right to file any written statement and adduce any evidence. Hence, the contention of the learned counsel for the appellant that First Appellate Court committed error without affording any opportunity is not sustainable under the law and merely the appellant became party in the appeal as respondent by purchasing the property during the pendency of the appeal, question of remanding the matter to trial Court does not arise, the purchaser/appellant’s deriving only title subject to the result of the appeal and he has no independent right over the property. Accordingly, third substantial question of law is answered as against the appellant and in favour of the plaintiff.
19. The fourth substantial question of law as regards limitation of filing the suit after 16 years from the date of agreement. In this regard, admittedly, the Ex.P22 shows that the Sale Deed has been executed in favour of the plaintiff on the very same date of the agreement of sale dated 17.11.1986. Though there was recital in the agreement of sale, that the defendants to get their names in the revenue records and Sale Deed required to be executed thereafter. Admittedly, time is not the essence of contract of law and no time limit is mentioned in the agreement.
20. The Hon’ble Apex Court in the case of Chand Rani v/s Kamal Rani reported in (1993) 1 SCC 519 has held that time is not the essence of the contract for selling the immovable properties. However, the Court may infer that it is to be performed in a reasonable time. The Hon’ble Apex Court held as under:
(1) From the express terms of the contract;
(2) From the nature of the property; and (3) From the surrounding circumstances for example the object of making the contract. For the purposes of granting the relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.
21. The Hon’ble Supreme Court in the case of K.S.Vidya nadam v/s Vairavan reported in (1997) 3 SCC 1 wherein it has held that, “Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.”
22. In another judgment of the Hon’ble Supreme Court in Manjunath Anandappa Urf Shivappa Hansi v/s Tammanasa and others reported in AIR 2003 SC 1391 has held (A) and (B) as under:
(A) Specific Relief Act (47 of 1963).S-16 – Specific performance of contract for sale – Readiness and willingness of plaintiff to perform his part of obligation – Averment and proof of said requirement of S.16(c) is mandatory – Plaintiff not making any averment to that effect – Nor even asked defendant to execute deed of sale in his favour or tendered balance amount to consideration to her within period of 3 years from date of agreement – Merely making statement that defendant did not execute sale deed despite notice being issued – Do not satisfy mandatory requirement of S.16(c) – Particularly, when notice was served upon power of attorney holder of defendant which was already revoked to knowledge of plaintiff – And the power of attorney was not registered one and holder was not competent to execute registered sale deed.
(B) Specific Relief Act (47 of 1963), S.20 – Specific performance of contract for sale – Discretionary relief – suit filed almost after six years from date of entering into agreement to sell – Mainly when plaintiff learnt that suit land had been sold by defendant owner in favour of appellant – No material to show that plaintiff ever approached defendant/owner of property to execute deed of sale – Time though not essence of contract plaintiff is required to approach Court within reasonable time – Having regard to conduct of plaintiff discretionary relief refused by lower Courts – Proper – High Court in second appeal not to interfere with discretion of lower Courts.
23. On perusal of Ex.P.21, the agreement, it is clear that the time is not the essence of the contract. The very agreement of sale dated 17.11.1986 goes to show that on the same day, the entire consideration has been paid to the defendants by the plaintiff. The terms of the agreement is only an obligation on the part of the defendants to get her name mutated in the revenue record. After the name of defendants entered in the revenue records they have to execute the sale deed. But on perusal of the evidence on record, it is an admitted fact that the plaintiff got mutated her name in respect of the suit schedule property in the year 1986 itself while mutating her name in respect of other properties purchased by her under Ex.P.22-sale deed. The notice came to be issued by the plaintiff only on 31.07.2002 and admittedly, the suit came to be filed in the year 2002 for directing the defendants to execute the sale deed. There is no explanation from the plaintiff whatsoever for the delay in demanding the defendants to execute the sale deed. The only obligation on the part of the defendants was that to get the name mutated in the revenue records, but in the year 1986 itself, the plaintiff got mutated her name in the revenue record based upon the agreement of sale. Such being the case, the obligation on the part of the plaintiff to demand the defendants to execute the sale deed in her favour within a reasonable period, though there is remaining balance amount payable to the defendants except the condition that the defendants have to make the name entered in the revenue records. Once the plaintiff got entered her name in the revenue record based upon the agreement of sale such being the case, the plaintiff ought to have filed the suit within three years or issued notice to the defendants demanding execution of sale deed atleast within the reasonable time, but the suit was filed after 15 years of agreement of sale and for saving limitation a notice has been sent to the defendant. It is utterly barred by limitation. That apart, the while granting the relief to the plaintiff the Court below not exercised the discretionary power under Section 20 of Specific Relief Act, 1963. There is no discussion in respect of irreparable hardship being caused while directing the defendants to execute the sale deed after long delay on the part of the plaintiff in filing the suit after 15 years. The First Appellate Court has not considered the delay in filing the suit while granting the relief under Section 20 of the Specific Relief Act in favour of the plaintiff after lapse of 15 years of the agreement of sale. Therefore, in view of the delay in filing the suit and in issuing the notice after 15 years and granting relief in favour of the plaintiff is not acceptable. Hence, I answer the second substantial question of law against the plaintiff and in favour of the appellant. In view of my findings, the judgment and decree passed by the First Appellate Court requires to be set aside and the judgment of the Trial Court requires to be confirmed.
24. Accordingly, I pass the following order:
The appeal is allowed. The judgment of the First Appellate Court in RA No.2/2008 dated 10.09.2012 granting the relief of decree of specific performance is set aside. The judgment of the Trial Court dismissing the suit is hereby confirmed. There is no order for refund of earnest money as there is no alternative prayer/claim made by the plaintiff for refund of the earnest money.
Parties to bear their own cost.
SD/- JUDGE NS Mv page nos.24-27