IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7'?" DAY OF' DECEMBER 2013.»
BEFORE
THE HONBLE MRJUSTICE SUBHASH'?$: Am D' A'
REGULAR FIRST APPEAL I\IO}'1'446".O1?«."2O:O5V:v
RFA CROB. NO. 13 OF 2006 - =
RFA NO.1446 of 2005
BETWEEN:
CHIKKAMUNIYAPPA
s/0 LATE SADAPPA,
A/A GTYEARS, '
AGRICULTURI_ST;.«_ I :
MALURTOW.N>. . ., 4. "
MALUR--5'F151._'2. ...APPELLAN'i'
(BY ADV}
AND: V V V D
ABD'UI, JALEEL 'BE,11§Q,
. ' 'S/vCJ"AUEF'UB%EING.
A/A.V72..Y33ARS';v _
' E-AC%RIC{.ILTURfSVTJ~
R/A'--IT'KONDASHETI'Y HALLI VILLAGE.
TEKAL H.0I;3'I;--1;
MALURTALUK,
'-.MALUR,, 3 571512. ...RESPONDE3NT
"SR1 D.L.N RAO & SMT S.R.AN'URADHA FOR C/R.
s;.R1'c.sHANKAR REDDY. ADV FOR
' IIVEPLEADING R2 & Rswmo)
THIS APPEAL IS FILED UNDER ORDER 4&1 RULE 1
R/W SEC96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 19.07.2005 PASSED IN O.S.150/98__ON
THE FILE OF PRL. CIVIL JUDGE [SR.DN.)<3I C.J.MHKQLIAR
PARTLY DECREEINC. THE SUIT FOR S'PEC1_'EI{l
PERFORMANCE.
RFA CROB. NO. 13 OF 2006
BETWEEN; -
ABDUL JALEEL BEING
S/O AUFUBEING,
A/A 72 YEARS.
AG RICULTURIST, I
R/AT KONDASHETIY HALL] VII...L.A'C}E,"--»..
TEKAL HOELI, V I , I
MALUR TALUK, ~
WILUR. -- 571512.
OBJECTOR
(BY SMT S.R.A1'JI'LIRAD¥IA AND'
SMT KUSUMA A133"/s) if; .
AND:
CHIKKAMUNIYAPPA---.."--
S/O LATE APPA, "
A/A E7«.YEAR'S_,.., I ' '
AGRfCULTURIST;'~~ . ..... <4 .
- L 'IX/IA1;.UR3TOWN.
»MAI.UE.;-ET 1512. ...RESPONDENT
- I".2,TI9IIé''_'*RF'I€XI3ROB. IN RFA 1446/O5 IS FILED UNDER
ORDER 4.1. ERULE 22 OF CPC AGAINST THE JUDGMENT
ANDDECREE DATED 19.07.05 PASSED IN O.S.150/98 ON
'-THE F'ILEi~OF' PRL. CIVIL JUDGE (SR.DN.] & C.J.1V£., NOLAR
" --_PAETLY DECREEING THE SUIT OF' THE APPELLANT
_1~IE_RE}IN FOR SPECIFIC PERFORMANCE AND PERMANENT
. INJUNCTION.
THE APPEAL AND CROSS.OBJECTEO1\i COMENG ON
FOR ADMISSION THIS DAY. THE COURT MADE__THE
F'OLLOWING:~
JUDGMENT
This is a defendant’s appeai
and decree in os 150/98 dated i9;7V ;2oo5
the Principal Civil Judge .
2. Piaintiff has filed;:’cr_osvsf_’ot)jsections 13/06
insofar as onfissuet’_jr1o§2″Vj’no1dii’1g that the
defendant w’;s_”‘riiiot possession in part
performance .ofV ihe éagreedmelit.
_ Parties .Wi11″be””referred as per their ranking in
°=the”‘tria;i=Court. ” “”” ”
A 7?;’§3uAiit is one for specific performance of an
‘.V_agre’e:ri’ei1i.V”dated 15.3.1990 and 28.4.1994 and for
peiriiianent injunction from aiienating the suit schedule
«%3:”’/
1w
property as well as interfering with the possession of the
suit schedule property by the plaintiff.
5. The case of the plaintiff is that the V’
the owner of sites. He entered into”a-I1. agreerner;_tlld~atedv..A
15.3.1990 interalia agreeing to
Property for consideration”‘~l5’fi, He V
received advance amotxnpt — and agreed to
receive balance of Rs.l.0£) hefofref_’.:t.1¢11e’_Subwregistrar
at the time of It was also
admitted ldpending on the file of
Maiiuryceui-tvee::.t::oe’peiepoee1 of the same, defendant
would e,iieeut.e deed. Subsequently, on
defer1,(:1ar1t received further sum of
the plaintiff and executed another
a’green1entf’j_ agreeing to receive the balance of
V/~ and admitting that he had already received
A “:f.”_Rs.4’f»,500/~ and agreed to execute the sale deed on
demand. On 31.8.1998, the case pending in the Mallur
Court was disposed of however defendant did not take
any steps to execute the sale deed. Aecordinglyfithe
plaintiff made an attempt to get the sale
but the defendant tried to avoid executionof 9
As such plaintiff was constrained todissuue”:
on 15.10.1998 which was replied the
accordingly he filed the suit for. ,:specific”perlorn}1ance of
the contract.
6. DQf€lHidé.flt ion; s.ervice’.j_’~o.f_. spjummons, filed a
written statement.lireteéraiiad’contending the land bearing
Sy.Nol*l6l of’ was a Thoti Inam Jarnin
registered :hé”n.é:1§1et§§:*s defendant and his brother and
yteiarsv___n.o:n–alienation clause in the regrant
orderp. ~ stated that suit is pending between
Abdul Sattar Khan in OS 14/98.
Plaéidntittiind the said suit did not succeed and as such, he
A “it the agreement in this case. Suit is collusive
‘ further alleged the judgment and decree in OS
14/98 is questioned in RA 212/98 and that it is not
finaliy disposed of. He further alieged that the order of
regrant is dated 12.6.1972 with a nonwalienatiohj
and as such pkaintiff is not entitled for
sought for dismissal of the suit.
‘7. The trial Court on _thev4b.asis of t]:1;e:’
framed fokiowing five issues:
(1) Whether :__p:ro’+.res thatfon
15.03.1990; ‘:jefe11dantsr¢:ag;<eéd; to sell
the_:'s1,_1it pi-£:p.§;rty:' Rs,:.id'1"»r,27,500/-
“”” agre’efi:1ent of sale by
= amount of Rs.27,500/ —
plaintiff proves that on
18,000/– to the
Sitfendant acknowiedged it and
u28d.U4…1994, he paid sum of
defendant.
.’:”:gie’1ivered possession of the suit
property in part performance of the
agreement’?
(iii) Whether the suit is in time’?
Wu;/1}
, ,.,»-0»
crow
(iv) Vlfhether the plaintiff is entitled to
specific performance of the ._
agreement?
(V) Vlflaat decree or order?
8. Plaintiff examined four witnesses to K
and marked EX.P.1 to 13.31.
Chikkarnuniyappa was examined
DA: were marked in his evidericel’
9. The trial COt1:.i_’fi«–Or1 of theevidence
held if _ agreement dated
l5.3.lQ9Q “\vhe1’ein:f1ét”;{§fef1dant agreed to sell the suit
schegdule propertv’ for l§.s.l,27,5OO/A by receiving sale
of «~. Plaintiff also proved that
had paid further sum of Rs.18,000/–.
F’ur’the:jj ‘ the trial Court held that plaintiff h_as not
it .:lpr9vedl””his possession in part performance of the
.’ coritract. However, it granted the decree for specific
l “performance of the contract. It is against this judgment
and decree the defendant has filed the appeal and as
against the finding on issue as regards tor”-the
possession of the plaintiff. plaintiff has
objection. l l V
10. Learned Counsel for
that the land is an inam land. dispute.
regranted is also not in ‘pelr”vtheV;regrant
dated 12.63.1972, there._..is_l3ar forula period
of 15 years and it isiielear of regrant
E’.x..D.1. this period
is Voidlias opposed to the public policy
and opposed to’ provisions of regrant order. As
sucfii, p_laintiff entitled for a decree of specific
‘plerforri1_ai~ie’e.lof the contract. He further submitted that
e.v’en’iothe1’§.vivfis’e. plaintiff who claims to be in possession,
lV._phowever}_possession could not have been delivered by
A fdthel”defendant as delivery of possession amounts to
alienation and alienation having been prohibited under
§
‘<%l':3',/'S
the regrant order. the Whole contract is Void contract.
and unenforceable in law and the suit for specific
performance is liable to be dismissed.
11. Sri D L N Rao, learned–Si”.»–Coulnseéll if
for the plaintiff submitted is «.
15.3.1990 on which date’«:t’hce paid if 9
Rs.27,500/ W. However, on” “1994 9 A the plaintiff
entered into another the defendant
agreed to execi§:tpe:Z’the::__regis~tered’iisa.lVe__V:deed by receiving
balance sale ‘1-§sv.’82,000/~. Plaintiff
admitted “tllatVine-v..:hasl”a.r:e’ceived Rs/15,000/– which is
clear He further relied on the
o:f_PW?L’vvho«i1as admitted both the agreements.
P1 and P2 and the evidence of PW1
andfllPW2le:’i.V_plaintiff has proved the agreement and
‘V’..,IZ)E1yi’11€Ifl1’l’fI. of advance amount. Exs.P.26 and 29 are the
statement and certified copy of the plaintiffs
hystatement in OS 14/98. In the written statement, the
10
defendant has admitted the agreement in favour of the
plaintiff, though the defendant had tried to deny but it
is evident from Ex.P.26 to 19.29. These doeumentsgi’-dog’
prove the execution of the agreement betweeh V’
and defendant. Sofaras the no’ri–‘a1iena1’tion:A9clatiseflis3
concerned, admittedly agreeme11t:”i._s9o_r1 1913119909′
in the Written statement, tE1e’–fi:g’g=fendarrt..hhasfstieeifioally
stated that the regrant o_rder’is even if
15 years period is counted”)’fr1om.._fthe,z__said day, the
agreement is;In”u;::1*i beyoisidefthefi3eri_od,T’of 15 years and
there to”e1″1forc.eVVVthe said agreement. He
also su’bIr1i’t that Amendment Act
came ‘into ‘on 1.7.2″…1978 to the Karnataka Village
9if’OffiCer§_~.”f,bo1ition 1961 and by virtue of insertion of
99 ialiienatioii of regrant iand is prohibited for
15 “years; agreement though dated 28.4.1994 is
Jb:eygnd”w–*15 years from the date of the insertion of
S_eCtion 7{A). As such looking from any angle, there is
if “no prohibition to enter into an agreement either in 1990
11
or subsequently in 1994. He also relied on Ex.P.2 and
submitted that on perusal of Ex.P2, is much afterepthe
period of 15 years prohibition. As such, looking’:
any angle, there is no prohibition to enter
agreement either in 1990 or subsedueintiy igfi
also relied on EX.P2 and p.subrriits:”‘-that ‘
agreement. which is proVedl”b_\E”the the
trial court. In Ex.P2,» there Iieciitaippshovfiingivvthat the
plaintiff has been put such, such
possession is in-‘part ip’erfo’1’r_r1arrce..§of the contract
internist’ thlelliliransfer of Property Act
and submitted’ viight of these provisions and
also the transaction is not having been hit by provisions
– of ‘the’Karnataka Village Offices Abolition
is entitled for decree including the
perrnane1’1T!«:”” injunction holding that he is put in
it Vpflpossession in part performance of the contract.
12
12. In the Eight of the above submissions, the
points that arises for consideration in this appea1’e’p:tS»eas
to:
vxmether the plaintiff has .
possession in part perforrnanee ~it)f.__t1a_¢~..1′”j
Contract?
Whether the p1atht_iff_is Ventitlejd ttrprw
specific performanee’ tlae eontraetin
View of protfistonsof :§Karr:1_ata»ka Village
OffieesAbo1itio–n”pACt?f,__ 11 V
thenplaintiff that he entered
into an”Vagree1nen.t Ex.P1 on 15.03.1990 for
purchase of property for consideration of
.1″‘Rvs’:V1–. the date of the said agreement, he
I and subsequently. another agreement
was«..ent’e1’ed’ into on 28.04.1994 on which date, he made
J’furtherpayment of Rs.18,0O0/M. In Ex.P1, there is no
‘reference to the deiivery of possession. However. Ex.P2
1 ~~refers to the payment made under the earlier agreement
13
and on the same sale consideration, the defendant
agrees to register the sale deed after receiving the
balance of Rs.82,000/– as he had received
as on the date of Ex P2. There is a reci.tal..liin.v said”
agreement which states that
second agreement i.e., defenda;1;:has_jl§put
the plaintiff in possession of property.
However, the trial issue No.2
though has referred also having
found the — has been
receivtfisilfiycr that in Ex.P2,
there “possession mentioned. This
finding in isvscontrary to the recital in EX.P2,
‘refers delivery of possession by the
during the course of the arguments,
learned” ‘Counsel for the defendant submitted that
.Tdel,piver’y~'”of possession in favour of the plaintiff is in
“violation of the provisions of the Karnataka Village
T ‘”Offices Abolition Act as it amounts to alienation. In
soaight decree only on the basfg
14
View of the same, if Exs.P1 and P2 are admitted and
found true, the recital therein clearly estabiishesvthe
possession of the plaintiff.
14. However, it is not in dispute that_t’h,:e _ it
was aware of the fact of filing in
Para–4 of the plaint speeifieally refers = the “whieh
reads as under:–
“As per :«ti1eA”‘agreernent dated
15.03.1990, the pending on
the fi1e_Vdf4’_Ad:t!1.C§_ii?i1 [Ji:’;.Dn], Maiur, Was
disposedv and the suit which was
filedfa-gainst thte_de;fendant was dismissed”.
1’15,.P1aintiff’Was’aware of the pendency of the suit
1/.
of
said suit. The present suit has been
fiiednn .v1f'(). 1998 after the dismissal of the suit in
88. In the written statement, the defendant
%&
r4′
15
at para–3 has specifically alleged that suit for specific
performance has been filed against the defendaintiigin
O.S.No.1»ii/88 and the said suit has been
31.08.1998. He also states that R.A.212,xi3afis peindifign
and therefore in View of the pendencyloif .l
the litigation is not yet -*;onclude(l,lV’ the
plaintiff and the This
statement of the defeiidlantl–l.pi1i.:alires.’p’it:jabtmdantly clear
that the plaintiff the knowledge
of pender1(3§§’j..(§j.fy<tll'ile: performance and also
they of the suit their
rights nor the plaintiff
wouldbe entitled7'tol'-enforce his agreement. However,
'these ljgeadings being on record, the trial court has not
'*-evenpf'fran1edf~a;ny issue in this regard, that is as to
wh"ethe.r' plaintiff is entitled for decree of specific
.lpp.l'pe,ri°orrri–ance. in View of the suit in O.S.No.l4/88,
iinfortunately, the vendor had not even taken steps
"either to get the suit stayed or to get the suit clubbed
16
along with this suit., when the properties are same and
vendor is same, and nature of suit: is also same.
16. There is aiso prohibition under *
the Act which came Into force ioii” ‘Au
virtue of this, there is
into the agreement. Agreeri1’erit..entAe’re_d’into: the ”
prohibited period, earinpot his aspect of
the matter has been bench of this
Court in ILR H ‘V
‘However, _ 1.earned Senior Counsel
submitted that ‘the’tiIir.pst’«agreement is hit by Section 7-
A of the the ‘plaintiff has entered into second
on and on the said date, even 15
07.08.1978 had expired and there
was..no”1egai impediment to enter into an agreement.
‘1’hi__s aspect of the matter though arises in the suit
it however’ the trial court has not framed proper issue and
“has not addressed the legai issues. In my opinion, the
$5?
17
Vital issue is as to ‘whether the agreement of the
plaintiff is hit by provisions of the Karnataka Vfilrlage
Offices Abolition Act or not, is required to be
by the trial court. Secondly, ‘Whether
would be still entitled for specific’
light of the OS 14/88 as itis statedthat
been decreed, in these circunisitazices,l”t3ie”A’£lriali.;Clourt is
required to consider 14’/88$ and its
consequences. In find that the
matter requires l§jecoris.idera”tioii,V V ‘V
the following-
it KORDER
[1] ” v–..lAppeal is partly allowed.
The judgment and decree of the
V trial court is set aside and the
matter is remanded to the trial
court to consider whether the
plaintiff would be entitled for
specific performance in the light
of O.S.No.l4/88 and
18
subsequently in R.A.No.212/98
and consequences thereon and__.__
also Whether the agreement
the plaintiff is hit by provisions– . it
Karnataka Village
Abolition Act. ” ” 4′
(iii) Cross objeétionsliilflf Piaivfletiff is it
allowed finding
No.2 as the
that not hbleen
put in and
.-:;th_e to the
4′ to; frjamellproper issue
above findings and
‘ “the same as early as
” . p’ossi_bl’e
“(i\{] are permitted to lead
further evidence if any.
‘ It is open to the parties to file an
application before the trial court
and if such application is filed, it
is open to the defendant or the
plaintiff to file objections.
Ǥ>*s.,:g
19
19. There is an application for
the applicant interalia claiming thatiheéi V’
plaintiff in
initially dismissed, : has.iA:”.__
R.A.212/98 and the”‘*vs<i:.s'aid vhdeefee "Been it
Confirmed by Ceiiit" ttie Apex
Court. It is open-i_ to seek
imp1ea(i_if1g:,i':tt§ef0ife the Subject to the
oppoi'tu:iit.;y" " g 'péirties.
Sci/~3
IUDGE
' Sri_e..(111:_:E:–33ci} ' _