IN THE HIGH scum 0? KARNATAKA AT BANGALORE- SATED THIS THE 7-rs: my 0? JULY 2009 BEFORE THE H()N'BL§3) MR. JUSFICE K.N.KESHA'!.&1§'A§%A§fANA» " u .V R.S.A.NO. 1c)»=;*;%:A1/2c>:_c')'6 ; '1' = V' BETWEEN: M 1. KKANNAPPA * AGED ABOUT 45 YEARS ' 2. K.MUNISWAMY ; AGED ABGUT 50 YEARS ' BCYFH ARE sow:-'.50? LA.TE.'KANDH;<~.PPA Aim Ri'A'¥'~A§'jPENi§§I"£ALLl'--VIi;LP1i3~Ei, KAMAsAMUD£%--A..HC:BL4I%V . ' BANGARAPET 'mIf;U;V.) A §?;BA1AKRi'S.§f~iNA X gm 1'!3E*£KP.TA.P.PA AGED ABS-£}T;=45 YEARS Rig APPE_N}%HALLI VILLAGE KAM:As;.sMuDRAM HOBLI, »- -. _ _' ' BAN GARAPET TALL: K, 3 B;=kN GARAPET -- 563 :14. RESPONDENT
;SY’éR1.B.vEERAPpA, ADV, FOR C;/ R)
2
am.
THIS R.S.A. IS TTLED U/S 100 OF CPC1 A§3;5:.i~:$T’fr§Tg
JUDGMENT AND DEGREE DATED :3.3.2Do5:—PASSEDf’:=:a;
R.A.NO.l49[O1 0:51 THE FILE DTP TH}?~<:i$,I1L'T~w.;JLIAD<}*E,"Tw
(SR'.DN.) KOLAR GOLD F1aLDs,:;'AL:,§&¥1':~{TG-1 'fr;e1iE.;a1§'P'E;5i:,
AND SETTING ASDIEI THE JUD*GE§a;E:§ITT';z§éD.D
DATED 30.22.2001 PAssaD__':.:§§ 0.5%ri0..53$j§i3'«–TQ.N–9THE."
FILE 012' THE I ADDL. CEVIL (gR.i)N.¢_j:,D I«§:G1'f;&. ETC.
THIS R.S.A. {3Ct§vfl§§¥T'G' {EN 2}?"{'TR'T–4§g{);'NII,SSION THIS DAY,
THE COURT DELIVEREQf¥'HV!:5'vF'{§VLLfL3W'i§§
directed against the:
divargéntf’ below.
5 T T1 ie were defendants 1 and 2 in
. ” €}.’S;.;N<§§'L£'3:"iS,f&93 <)z:V1u"'&A1e file of the I fldditienal Civil Judge
The respendant herein was the sole
' plaintiff filed the suit against defendants 1
"for sgwcific pexfermance of the agreement
contending that defendants 1 and 2 being {ha
""(3@'E€FS 0f the fiend bearing Smvey No.13 méasuring 1
acre 16 gtmtas and Smvey ND 14 measmiing 15%
%/
3
guntas situated at Kethaganahalli village agreed to sefl
those properties te the plejnfifi for a total consideration
of Rs.3,800/-. In that behalf they executed an
agreement dated 8.2.1985 and on the date”. “the
agreement, the defendants received the __ _
eensideratior}. and pieced the it”: =
the property. It was further aflegede
there was a prohibition for’tVa1ienatiet1′ ef pre’pAe;*ty’Vee *
the previsions ef the Preyehffion of
of Holdings Act,
1966 ), they agreed to execute
thegjsele deed. _e’fte1″h’th.e prohibitien is lifted. It is the
il:.t;ti:e?’1;:A.e€V§4tttention of the plaintiff that the said Act
Htt:aa”.’i;fe’A3eé£)ea}ed in the year 1991 and thereafter
he the defendants to execute the sale deed
‘V V’ ~ iii “geeslfigeet of the properties. Despite ef the repeated
Aiaeqtzests, the defendants failed te exeeute the saie deed.
‘Therefere the piaintifl’ issued notice eallmg upon the
defendants to execute the sale deed and though the
defendants were served with the said notice, they
neither repiied appeared me}? complied
demands made theneirl.
8. O1″: service of suit smnrglpns, ulv
and 2 apmared before the
suit. denying the ease of *
the case of plaintiff ‘that the_y i te. pmperty
by _ ‘ez:V§hsidefé£ti0n of Rs.3,8{)(}/~ and
handee Vmzer of the properties to the
piajntflf. ‘Ttfiey. contended that they did net
. –. c;g¢~;;;1;i;*¢= any agfeeiizent in favour of p1ai11ti;t’f. They
:’~~.«eef1:i:ef1ded that they haé raised a loan by
fi1ertgegLrég’fhe suit schedule property in favour of the
PLD as such there was I10 occasion for them to
‘ Keixtez’ 311:0 any ageemerzt ef sale with the plaintiff.
/&
S
4. The Trig} Court, on the basis of the pleaciings of
the parties, framed the following issues:
1. Whether the plaintiff proves the
of agreement of saio in respect _of– Stiiito
schedule proyerty by
favour of the plaintjfi’ asA1’o;i’«8′{‘2. . «. ”
2. Whether the p1ai11ti1″f:’f111*iI1.ef.}jro1}€:sA “i3io;f’
in yuIsuaI3.<;r:3.of tl1€"'se:1o ézgroemént. dated
8.2.1985 he" iiad"– o__1:)};f«.1V'1¢:<:1 ontire sale
of f2S;'3~;–83{)O/~ in favour of
ciefefiiianjis oas§%;;s.2. 1985 itself?
3. u'{}’iif2j1%VeE;§1for»__tf:h;o” further proves that
‘V he §1as;V:vVbe¢§.1 ever ready and wiliing to
‘ :p:g1*f§’Wn part: of oomraot as mt the
To and conciitions of the sale.
L’ «agreement éatod 8.2.1985′?
“<§'1-Whether me plaintiff is emifled for the
sought reiiei?
5. What order or decreo?
ta
6
5. After the parties led evidence, the Trial Court an
appreciation of the oral and documentary evideriee, by
its judgement dated 30.11.2001 answered
2 in the afiirmative but issues 3 and :iieg_ative.,
and consequently dismissed the j;
held. that the agreernerit ieatgid ciiafiiitio L.
prohibition under Section (3.)” ’35’: [tile if-‘£81; from
alienatimg the prope1*t.j.5}:e’*s1_11<i_ agreement entered into
by the defendaifits i1:..fai}{):ur' ~z')_f;._tIie' amounts to
aheneiiiozi; '$3.80 held that the suit was
barred i5'y.__4 .:BiggI'ievec1 by the judgment alfld
aecifeemé the piaintifi flied appeal in
e §§;'.';'XiNt7i3i4§'3:/2001 on the file of the em Judge (Sr.Dn.),
mp.
‘ ‘;Ti1e Lower Appellate Court after heariltlg both
sides and 0:1 reappxeciatien ef the evidence, by its
it _:];:i1€1gf3B1f:’I1’E dated 13.3.2{){)6 allowed the appeal by
reversing the judgmeiit and decree of the Trial Court
(‘1
V
and éecreeci the suit of the piairztifi” fizag
defenéants to execute sale détid in respecfiiiixf fjiziié
schedule pmperties in favour” “t’1.;::V “4pIe1.izit_ifi’,VV
three: months frem that c¥ay._ ‘I’11£én§g6*aver A151;-§1}ateVC’,£§uI;£’». L»
held that the judgement, V_ the V
agreement was voi@.é;;.. by’ vfiééfion 28 of
the Indiazx Centxact and <:0ntra.Iy
to law. 'I'he_ heid that the
suit is It was fmher
held not justified in holding
that ti'1A€:V feady and wining to perform
his part; of 'V agjfétimeflt. In this View of the matter, €116
Crmrt decreed the suit for specific
aggieved by. the judgment and
daéree Lower Appeliaté: Court, defendants 1 and 2
" ham prefemd this second appeaz.
‘7’. I have haaré Sri.K.H.S0I::1ashekam, learned
sounsel for the appeliants arzd SI’i.B.Ve€:;f’appa, {earned
@
9 .
ready and wifling to perform his part of the: aontragt and
the Lower Appeilate Court was not correct in mfefsiug
the fmding of the ma; com. Learned 09.4336;
appellant relies upon ths d€Ci’5-E81714 of
Aliahabad in the case of Nutan _
Additional District Judge, i§f>oi”iéd in” V
AIR 1994 A.LLA1~1ABAn;z98 193$;-.3E§cH)Z’
9. I have fifienfien to the
su§:m1i$$i:”>r1s;> fiizifdé ‘ ieaxned counsel for the
appeI1a;1£s._4 . £ ‘ find any substance in his
é_ su_b§;;1iSsiir.);1s. A’V”‘l’\.Y.Q___.£§OtIbt there: is prohibiticfl under
‘ S’ec1:ipn4’5:v0.f ihe Act. The prohibition C0}”1t8;iI1€d in the
0:11}; to sail or lease: the property which
21as”b§:Vi§:fs. Iiotified as fragment. Reading 01′ Secticn 5 (1)
A 5.’ {;3,~:}jL”<::f the Act ciearly indicates that the said prohibitiem
appiicabie to the 9mp&1*t3s' in respect 01' which a natice
undar sub~Secti<':2z1 (2) of Section 4 of the Act had been
: ix-
issued rzotifying such land as a fragment. Itséonly if a
5″}
W”
£0
bit of iarzd had been deciared and notified as figment
as provided under Section 4(2) of the Act, pmmbition
provided under Section 5 would be applicable. .1-no
such declaration had been made and neieicefl
effect haé not been issued as _require(i x
4(2) of the Act, Section 5 has
land. The reading of the of ii$e1ow’* ‘
do not indicate as to I2-ei1_d we;s’deeiered and
notified as fragment. is Iietf5tLt:’:e the defendants
that the ereiifeehejciuiejebprepet ties had been declared and
1’i()tifi€(i 35$ 21 “eQe4’fequired under Section 4(2) of
t:he_;}Aetu.and iiefiee requéreei therein had been issued
.A :}eC1eIji:ég.4i’i«-._as a fragment. In the absence of such
:§etiee’,” open for the defendants to eontend
theft was a prohibifien fer alienation of the
K ‘V V’ The Trial Court, without eeneidenéng this
;-mes: ef the matter, proceeded te held that the
V’ eagreement entered into was void and hit by Section 23
of the Indian Centraet: Act. in the Eight ef the
39%
11
prehibitien under Secfion ;3(1)(a) of the Act, the said
fméing has been rightly corrected by the V.-Lewer
Appeilate Court. in addition to this wha1;é.._i§%§§S
prohibiteé. {Hider Section 5 is enly a sale Vvieasei;
Agreement to sen even a bit of declared V:é)r_r1_{>’tified
as 3. fragment also is not pI'()hibiit€~’§’.uI1(i(33f?.”_S§’3C’£iOI1 Iifiaofr,
the Act. Ageement. to sell ci{3e:’Se»:1ot tfansfer
of property. Therefo§e,_ ag;t?eefz1ie::ti,.vvi’enterefii’Akite by the
defendants cannot ._{h6 prohibition
tiieu Therefere, the Lower
Appeiieite e §Z’V,0u1ff’.V jieaaéasjiunified in holding that the
agreemeniié’i3_:Vne£7’veé;d it is not hit by Section 23 of
. – the a’Irit§i.ai1..é&_Conifé;€:t Act. There is no error of law”
itile Lower Appeilate Clourt, in this regard.
The deeieieiii relied upon by the Immed eeunsel for the
appeiiafit in Nutan Kumar’s case refezrred te supra has
i aipptieation 120 the facts Of this case. In said deeisien,
{he Caurf: was eozzsiderizzg as ta whether an ageememt
(if lease beiween the iandlord and tenant for letting
-@
12
Gccupation ef the building in contravention of the UP
Urban Buildirags {Reglnafion of Letting, Rt-:z11:’–. aRd
Eviction) Act, 191712 is void. As per the
there was a clear prohibitiexi under L”
leasing the property. in the p;*ééet1t._cé1se,’ Vn (:>
prohibition from entering 113:0 afiagceemsixi; c}f Sale bait’=.L
What was prohibited was sailzz-gar Ieasfe, ‘F.;;s has
also founé that even pf;(§1)ibi¥ZiQf}L’=’!;¥}d€I’V’S€f£3ti0I1 5 of
the Act has no appfigation this case: as
the 1a:1dS’ ‘;1ué§i’iafi’hgt;e nbtvhéen notified as fragment
as reqiiifed :4 (2) of the Act. Therefore, no
SL§S{j€I1aI}{f(}CE1I1})x’?, ti:1:aw’i1 fimn the said clecisien.
* The ‘:&+is.:e::emrt rscerded a definite fmdmg that
proved the execution of ageement by
:de,_t:’§é191d.:a *(‘1;£x:»*;..V_A.T:;1 and 2 and also receipt of sale
considfiéirafion of Rss.3,8{}0/» from the plaizitifi’, The
éeféndants did not question the <::0rre<:me$s of the said
' V' fiiidizig. This firzding recorded by the Trial Court on that
13
aemet ef the matter became final. In this appeal aiso
the correctness of the said fmding is not questioned.
The recitals in the agreement clearly inéicatee teat on
aeceunt of the prohibition for registsratierz.’
agricultural {and as per Governmem’..,x,1Vg§;:ijice.té?e:1..
mentioned therein, the dfifefifiallffi L
diffietflties in executing the rieed ;
execute the saie deed soon the is lifted.
Therefore, the pimnfifi __ac:1:i0n to file the
suit that prohibitiorz is
1if’ted. “.i’1?iere ie: the Act was repealed en
5.2.1991.’ “‘~I§”ie_en;13:_»errrepeal of the Act, the plaintiff’
eetitiefi “te””enforee the agreement. There is no
eer”ieugS.. that thereafter the piaintiff get issued
!:0 the defendants calling upon them to
exeetiter’ the sale deed as per the ageement and
V.”V?.,Aad:eitted1y me defendants did not execute the sale deeé.
…_.’fhereafi:er the suit: came to be filed en. 6.10.1993 within
a periee 03′ 3 years from the date of repeal of the Act.
e’
15
Lower Appellate Court Hence, the appeal does not
involve any question of Law, much less substantial
quzfsstion of }aw.
11. Accordingly, the appeal is dis3:t1i–::i§é'(“3:’
stage cf admisssiori.
R3,!’