IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1129/2014 C/W R.S.A.No.1128/2014 R.S.A.No.1129/2014:
BETWEEN:
SRI.R.V.RAMANJINAPPA S/O VENKATARAYAPPA, AGED ABOUT 62 YEARS, R/AT RAMACHANDRA HOSURU, NANDI HOBLI, CHICKBALLAPUR TALUK-562101 ..APPELLANT (BY SRI SAMPATH BAPAT, ADVOCATE) AND:
1.SRI.GOPALAPPA S/O DODDAGOPALAPPA, AGED ABOUT 67 YEARS, R/AT RAMACHANDRA HOSURU, NANDI HOBLI, CHICKBALLAPUR TALUK-562101 2.SMT. GOWRAMMA W/O GOPALAPPA, AGED ABOUT 62 YEARS, R/AT RAMACHANDRA HOSURU, NANDI HOBLI, CHICKBALLAPUR TALUK-562101. ..RESPONDENTS (SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED: 28.06.2014 PASSED IN R.A.NO.26/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM, CHICKBALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:06.01.2010 PASSED IN O.S.NO.263/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) CHIKKABALLAPUR.
R.S.A.No.1128/2014:
BETWEEN:
SRI.R.V.RAMANJINAPPA S/O VENKATARAYAPPA, AGED ABOUT 62 YEARS, R/AT RAMACHANDRA HOSURU, NANDI HOBLI, CHIKKABALLAPUR TALUK-562101 ..APPELLANT (BY SRI SAMPATH BAPAT, ADVOCATE) AND:
1.SRI.GOPALAPPA S/O DODDAGOPALAPPA, AGED ABOUT 67 YEARS, R/AT RAMACHANDRA HOSURU, NANDI HOBLI, CHICKBALLAPUR TALUK-562101 2.SMT. GOWRAMMA W/O GOPALAPPA, AGED ABOUT 62 YEARS, R/AT RAMACHANDRA HOSURU, NANDI HOBLI, CHIKKABALLAPUR TALUK-562101 ..RESPONDENTS (SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED:28.06.2014 PASSED IN R.A.NO.25/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM, CHIKKABALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:06.01.2010 PASSED IN O.S.NO.659/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) CHIKKABALLAPUR.
THESE RSAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeals are directed against the Judgment and decree dated 28.06.2014 passed in R.A.Nos.25/2010 and 26/2010 by the Principal Senior Civil Judge and CJM, Chikkaballapur, wherein appeals came to be dismissed confirming the Judgment and decree dated 06.01.2010 passed in O.S.Nos.263/2007 and 659/2007 by the Principal Civil Judge (Jr.Dn) and JMFC, Chikkaballapur.
2. O.S.No.263/2007 is filed for relief of permanent injunction wherein the plaintiff seeks relief against defendants who are said to have entered into agreement to sell the schedule property which is said to be landed property to the extent of 1 acre in Sy.No.10/81 and new Sy.No.10/P127 situated at Balajigapade, Nandi Hobli, Chikkaballapura Taluk. It is stated that plaintiff entered into sale agreement with the defendants on 24.09.1999 for sale consideration of Rs.30,000/- and paid full consideration amount. As it is stated that the schedule property was a granted land to the defendants, they undertook to execute the registered sale deed of schedule property after obtaining permission from the Government. Meanwhile plaintiff was put in possession of the schedule property. The plaintiff further avers that he learnt that the defendants have obtained permission to sell the property but were making hectic efforts to sell the same to the third party in order to defeat the rights of the plaintiff. It is pertinent to note that by claiming contractual rights the plaintiff has filed a suit for permanent injunction and a suit (O.S.No.659/2007) for specific performance as well. The date of grant is said to be 01.09.97. The date of sale agreement is 24.09.99. Advance amount said to have been paid by the plaintiff to the defendants is Rs.30,000/-. Agreed amount of sale consideration is also Rs.30,000/- that means sale consideration amount was paid. O.S.263/2007 and O.S.659/2007 came to be dismissed. Being aggrieved by the same, plaintiff preferred R.A.No.25/2010 and R.A.No.26/2010 which also came to be dismissed. Hence, the present appeals.
3. Sri Sampath Bapat, learned counsel for appellant would submit that in view of embargo for transfer of granted property for a period of 15 years from the date of grant, sale deed was not executed. Learned counsel for appellant would further submit that there are absolutely no bar for decreeing the suit. Learned counsel would submit that as he has paid the sale consideration amount no duty is due from him.
4. Ex.P-8 in the trial court is stated to be mortgage deed of the schedule property wherein it is stated that mortgage was effected and plaintiff was allowed to be in possession. In the circumstances, there is no proper explanation as to how registered mortgage was executed when transfer was prohibited, as it is the basic principle that mortgage also is a prime transaction within the meaning of Section 5 of the Transfer of Property Act. Date of grant is 01.09.1997 and agreement is 24.09.1999 and it is the claim of the plaintiff that there was a covenant that defendants to get permission to sell the property in view of the embargo that is restriction for transfer of the schedule property. It is also stated that defendants were evading to get the registered sale deed and plaintiff came to know that defendants have obtained permission and trying to execute sale deed in favour of a third party. Insofar as permission is concerned, the defendants are supposed to apply for the same showing the name of the purchaser as well.
5. Mortgage is also a transfer and defendants do not fall within the category mentioned under sub-rule (2) of Rule 9 of The Karnataka Land Grant Rules, 1969 which reads as under:
9. Conditions of grant – (1) xxxx (2) The following shall not be regarded as alienation for purposes of sub-rule (1), – (a) Mortgage of the land in favour of State Government or a Co-operative Society or the Indian Coffee Board or a Scheduled Bank [or the Agricultural Refinancing Corporation or the Karnataka State Agro Industries Corporation] for loans obtained for improvement of such land or for buying cattle or agricultural implements for the cultivation of such land [or for raising educational loan to prosecute further studies of the children of the grantee after Pre- University Examination or twelfth Standard examination conducted by CBSC or ICSE or any Diploma Courses]; and (b) leasing of the land in accordance with the provisions of the Karnataka Land Reforms Act, 1961.
6. In the circumstances insofar as sale against violation of grant condition consequential disentitlement or non agriculturist buying a property in violation of Section 79(A and B) of the Land Reforms Act, 1961 do not come within the domain of Civil court. The Civil court cannot take cognizance of Section 79A and 79B and the related nor can dismiss the suit on the basis of violation of said provisions of Land Reforms Act. However, insofar as circumstances and facts of these cases are concerned, the cause of action is the aspect that invariably must be disclosed on reading of the plaint. It is necessary to mention that the year of grant is 1997 entering into agreement dated 24.09.1999 is not becoming factor. It is necessary to mention mere payment of consideration cannot be one and only requirement for readiness and willingness and enforceability of an agreement. The very concept of plaintiff being put in possession two years after the grant is not recognized by cannons of law.
7. Trial Court in its Judgment has held as under:
“The plaintiff has only examined one witness to the document i.e., PW.2. PW.2 is a stamp vendor and appears to be a real estate agent. He has admits that he used to become a witness for several transaction. By careful scrutiny of PW.2 it is made clear that he is professional stamp vendor and appears to be a professional witness to many transactions. The evidence of PW.2 is not trustworthy and it does not inspire confidence to accept his testimony. The disturbancies in the evidence of PW.1 and PW.2 strengthen the contention of the defendants that the plaintiff has created Ex.P.2. On the basis evidence of PW.1 and PW.2 it is not possible to come to the conclusion that the plaintiff has proved the valid execution of Ex.P.2. The plaintiff has failed to prove that defendants have agreed to sell the suit schedule property and executed an agreement of sale dated 29.09.99 and receiving a consideration of Rs.30,000/- on execution of agreement of sale. On the basis of evidence on record, it possible to draw only inference that transaction took place between the plaintiff and defendants is only a transaction of simple mortgage and it is not the transaction for agreement to sell. Accordingly, I have answered the Issue No.1 and 2 in O.S.659/2007 in the negative.
24. The plaintiff has not produced any documentary evidence except Ex.P.2 to prove his possession. The plaintiff has failed to prove the execution of the agreement of sale itself, therefore it cannot be said that he is put in possession of the suit schedule property on the basis of Ex.P.2. The plaintiff has examined one witness as PW.2. PW.2 has only stated in respect of Ex.P.2 and P.8. He has not stated in respect of possession of the suit schedule property by the plaintiff. The plaintiff has failed to establish his lawful possession over the suit schedule property by leading convincing evidence.
Accordingly, I have answered the Issue No.1 in O.S.263/2007 in negative. ”
8. The filing of suit for permanent injunction and after considerable lapse of time, filing suit for specific performance also go against the plaintiff regarding the readiness in the facts and circumstances.
In the above background, I do not find that there is any question of law that arises for consideration in both the appeals. Appeals are rejected.
Sd/- JUDGE SBN