IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.1152/2006 BETWEEN:
SRI T KRISHNAPPA S/O THIMMAPPA AGED ABOUT 60 YEARS R/A No.258, NEAR WATER TANK K.R.PURAM, BANGALORE – 560 036.
...APPELLANT (BY SRI T S MAHABALESWARA, ADVOCATE) AND:
SRI M G KRISHNAIAH S/O GURUREDDY AGED ABOUT 81 YEARS R/A No.258/2, NEAR WATER TANK K.R.PURAM, BANGALORE – 560 036.
…RESPONDENT (BY SRI C SHANKAR REDDY, ADVOCATE) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.03.2006 PASSED IN O.S.No.286/1993 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for the appellant present. Learned counsel for the respondent absent. There is no representation. In the light of the age and stage of the case, the matter is taken up for final disposal.
2. The appeal is directed against the judgment and decree dated 15/03/2006 passed in O.S.No.286/1993 by the XI Additional City Civil Judge, Bangalore City, wherein the suit for specific performance of agreement came to be dismissed. Being aggrieved of the said judgment and decree, plaintiff has come in appeal.
3. In order to avoid the confusion and overlapping, the parties are hereinafter referred in accordance with the rankings held by them before the trial Court.
4. The brief facts leading to filing of O.S.NO.286/1993 are:
Defendant is the owner of the suit schedule property bearing No. 271, Krishnarajapuram, Bangalore South Taluk. On 21.11.1978 defendant entered into an agreement to sell in favour of the plaintiff for a sum of Rs.11,000/- and received an advance amount of Rs.1,000/- in part performance of the contract and that the plaintiff became the holder of possession under part performance of the contract. Though the defendant entered into an agreement did not come forward to complete the transaction by receiving the balance sale consideration. The plaintiff has been ever ready and willing to perform his part of contract i.e. to pay balance sale consideration and to get executed the registered sale deed of the schedule property from the defendant in performance of the agreement dated 21.11.1978.
5. It is further pleaded that due to difference between defendant and plaintiff, defendant filed a suit for ejectment before the City Civil Court in OS.No.106/1983. In the said suit, defendant denied the execution of the agreement. An issue was framed in the suit on the existence and validity of the contract. After considering the matter on merits, the dispute with regard to the existence of the contract came to be decided in the said suit. Plaintiff in the present suit claims that the existence of contract was held in affirmative by the court trying the ejectment suit. However, suit was decreed as part performance of the contract and possession by virtue of the intended purchaser claimed by the defendant was not considered. The plaintiff called upon the defendant to receive the balance consideration amount and execute the registered sale deed of the property through a notice dated 6.12.1989. Despite the service of notice, defendant did not perform his part of contract.
6. The defendant appeared through his counsel and filed his written statement denying the plaint averments and contending that defendant filed an appeal against the judgment and decree passed in O.S.No.106/1983 before this court in RFA No.572/1989 which came to be dismissed on 17.11.1998 and thereafter, plaintiff has filed this suit on 2.12.1992 for specific performance of the agreement dated 21.11.1978.
7. On the basis of the above pleadings of the parties, the trial Judge framed the necessary issues and after considering the oral evidence of PW1 and DW1 and documentary evidence of Exs.P1 to P4, dismissed the suit of the plaintiff. Against which, the plaintiff has presented this appeal.
8. Learned counsel Sri.T.S.Mahabaleshwar appearing for the plaintiff/appellant would submit that the learned trial Judge has given contradictory finding, wherein, in the earlier suit though it was decreed in favour of the present defendant regarding ejectment, but the execution of sale agreement in favour of the present plaintiff/appellant was held in favour i.e. in the suit in O.S.NO.106/1983. It was a suit for ejectment filed by the defendant that came to be decreed on the ground of existence of the relationship of landlord and tenant and not accepting the claim of the tenant that he was in possession of the schedule property in part performance of the agreement dated 21.11.1978. The landlord in that case (defendant in this case) got the decree in his favour. The defendant preferred an appeal in RFA No.572/1989 before this court and that came to be dismissed.
9. Learned counsel for the appellant would submit that the Court having held the sale agreement was executed by the defendant in this case erred seriously in this case holding that the agreement was executed, but erred seriously in dismissing the suit for specific performance. He would further submit that based on the said facts, learned trial Judge has accepted the appellant in the capacity of the plaintiff is absolutely entitled for a decree of specific performance, but unfortunately the same was not granted. Learned counsel would submit that plaintiff has been ever ready and willing to perform his part of contract. But for no fault of the plaintiff, the suit came to be dismissed.
10. In the over all context and circumstances of the case, the moot question would be;
Whether the finding of execution of sale agreement in OS No.106/1983 between the same parties has overriding power in holding the issue regarding the execution in the negative?
11. In this connection, the submission of the learned counsel for the appellant is that, the courts are same rank i.e. 10th and 11th Additional City Civil Judge. Earlier the matter was pending in OS No.106/1983 on the file of the learned Additional City Civil Judge which was a suit simplicitor for eviction claiming that the tenant in the said case was present plaintiff- T.Krishnappa and defendant- M.G. Krishnaiah were quarelling over the property despite of termination of tenancy. The claim was resisted by T. Krishnappa, the plaintiff in this case on the ground that he was an agreement holder and that the status of tenant has got merged in the status of intending purchaser and on entering into agreement, the possession of the tenant Krishnappa transformed into one that of the intending purchaser as he was asked to continue in possession of the property by virtue of the agreement dated 21.11.1978 wherein Krishnappa had paid an advance amount of Rs.1,000/- out of total sale consideration of Rs.11,000/-.
12. In view of the contentions of the plaintiff- landlord in the case of ejectment which was held in the affirmative along with the termination of tenancy, the suit was maintainable. There were two additional issues regarding jurisdiction of the court in respect of the suit for recovery of arrears of rent.
13. Insofar as issues regarding execution of the sale agreement dated 21.11.1978 for Rs.11,000/- and receiving advance amount of Rs.1,000/- was held in the affirmative. However, the issue regarding the obtaining or acknowledging the possession in part performance of the contract as contemplated under Section 53A was held in the negative. It is in this direction, the possession of the plaintiff required to be analysed. Section 53A of the Transfer of Property Act reads as under:
“1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]”.
14. In the circumstances, nodoubt, the sale agreement dated 21.11.1978 was held in the affirmative and that the rival party in the said case, the plaintiff Krishnappa did not prefer any appeal against the said finding. In this connection, nodoubt, that the said fact of claim or sale agreement was made to be in the knowledge of Krishnappa but it is a suit for eviction and one of the finding there is regarding the sale agreement. Regard being had to the fact that possession of the plaintiff was never accepted. Here, it is necessary to mention that, one of the finding in the ejectment suit is to the effect that there was an agreement and it is the proof of sale to the plaintiff. In other wards, there is a finding to that effect and the result would be the landlord in OS No.106/1983 has not chosen to challenge the said finding is estopped from contending contrary.
15. Here, it is necessary to mention that sale agreement came to be entered on 21.11.1978. The agreement came into force that was subjected in a suit for eviction and a finding also came to the effect that agreement is in existence.
16. Wherever there is right remedy will be there.
However, right has to be exercised during its lifetime. When the sale agreement is being entered on 21.11.1978 and time stipulated therein was two months from the date of agreement of sale. Sale consideration was Rs.11,000/- and advance paid is Rs.1,000/-. The due date would be two months thereafter. If the plaintiff was ready and willing during the said period to get execute the sale deed, he is entitled for the benefit of mutation also. Meanwhile, it is also stated the sale agreement was in the year 1978. However, in the year 1979 there was an extension of time limit for six months to execute the registered sale deed. In the sense, from the date of acknowledgment, the time is extended for six months. However, the original sale agreement is not before the court what is available is in the form of Ex.P1- certified copy of the agreement. It is stated that original agreement is lost and no endorsement of the court is filed to the said effect. With all that, what is concerned is the due date after the extended period of six months, the due date would not have extended or could not have gone beyond May 1979 and three years limitation is also applicable to which the agreement is bound to collapse somewhere in the year May 1982. However, the present suit is filed on 2.12.1992 exactly 10 years 7 months after the expiry of the sale agreement. In this connection, learned counsel submits that limitation would not have gone against the plaintiff. As they were litigating in OS No.106/1983.
Here, it is necessary to clarify on two areas, viz., the litigation that was going on regarding the eviction is in OS No.106/1983 filed on 9.12.1982, which came to be decreed and thereafter, appeal in RFA No.572/1989 came to be dismissed on 17.11.1998 and the suit in O.S.No.286/1999 is filed in the year 1992. It is to be seen that if the plaintiff who chosen to such a recourse, has not filed the suit after 1998 but when the matter was pending thus, it is not applicable in law. Such kind of relief cannot be sought and when he became aware of the denial of the plaintiff of the part performance. The assertion and denial need not be made in same proceedings. In any suit, wherein the parties are same. If such kind of right is available to the party, the period of limitation should starts running from the date of denial of agreement or fact may be through the objections, written statement, possession, chief examination, cross examination or by means of a document.
17. It is necessary to make a mention that, though the finding of sale agreement was already in the affirmative, the plaintiff did not pull up his socks to go for specific performance in time and the suit gets barred by limitation whether considered or not.
18. Under the Indian Contract Act, 1872, one of the mode of discharge of Contract is by merger. Wherein the contractual right of one person gets merged in a bigger right and the contracts get discharged i.e. if the case of the tenancy of the plaintiff was supposed as a tenant in the schedule property, the contract between plaintiff and the defendant would be that of lessee and lessor. If the plaintiff purchases that property from the defendant under the sale agreement dated 21.11.1978, the contract of Lease gets merged in Sale agreement. The sale agreement entered into shall satisfies all the features of background of part performance.
In this case, from both the angles, either from the angle of time or finding of the court, no remedy is available to the plaintiff. In a suit for specific performance, the plaintiff/ purchaser must be ever ready and willing to perform his part of contract. However, considering the facts and observations made above, it is self explanatory that readiness and willingness is a vanishing point in a suit. I do not find any infirmity, illegality or irregularity or perversity in the judgment and decree passed by the learned trial Judge. Appeal fails and liable to be dismissed. Accordingly, it is dismissed.
tsn* Sd/- JUDGE