Judgment :-(RFAs Filed U/S. 96 of CPC against the Judgment And Decree Dt.16.12.02 Passed in O.S.No.179/00 & O.S.No.55/95 on the file of the Civil Judge (Sd), Chikmagalur, decreeing the suit for specific performance of agreement and dismissing the suit for declaration and possession.)

These two appeals are filed against the Judgment and Decree dated 16.12.2002 passed in O.S.No.179/1999 and O.S.No.55/1995 respectively. The plaintiffs in O.S.No.55/1995 are the defendants in O.S.No.179/1999 and vice-versa.

2. For the sake of convenience the parties shall be referred to in terms of their status in RFA.No.377/2003.

3. According to the appellants they filed O.S.No.55/1995 seeking the relief of declaration that the agreement dated 6.5.1991 is unenforceable as they are the owners and for possession of the suit schedule property and also for enquiry of accounts under Order XX Rule 12 CPC. During the pendency of the trial the first plaintiff i.e., Syed Mehaboob died and his legal representatives were brought on record as 1(a) to (e) who are the appellants. According to the appellants suit schedule property bearing Sy.No.33/P measuring 4 acres each is situated in Hirekolale village with common boundaries and the same was granted to Syed Zaheer, the first appellant along with Naimunnissa, w/o of Syed Mahaboob. After the death of Naimunnissa, the Khatha was mutated in the name of the first and second appellants. That the appellants were in debt and in strained financial circumstances and the first respondent herein who was a close friend and in whom the appellants and obtained a deed of agreement of sale of the schedule property in his favour by deed dated 6.5.1991. The said agreement according to them is not signed by Late Syed Mahaboob but only the appellants had signed it. According to the appellants they wanted a loan from the respondent and he advanced the entire sum of Rs.3,40,000/- then respondent took possession under the said agreement and he has been in cultivation of the schedule property and has more than four annual coffee crops. According to them the value of the crop is more than Rs.5,00,000/- in the year 1993-94. The agreement with the respondent was that he should reimburse a sum of Rs.3,40,000/- with interest and the respondent should return the property to the appellants. According to the appellants, there was a non-alienation clause of fifteen years when the property was granted and that such an agreement is not enforceable as there was a violation of the said term in the grant when the agreement was executed. Hence they filled the suit for declaration that the agreement dated 6.5.1991 is unenforceable and sought possession from the respondent.

4. The respondent herein upon service of notice entered appearance and denied the material allegations made against him. He however admitted that possession was with him and that the coffee plants were six to seven years old and that he had developed estate and re-planted the coffee plants since the earlier plants were not yielding and that he had spent not less than Rs.1,35.000/- for development of the coffee estate. He has also stated that coffee had started yielding from the year 1994-95 and that after knowing about the value of the coffee estate and in order to make a wrongful gain and defeat the bonafide purchaser s interest, the appellants had filed the collusive suit and that the agreement dated 6.5.1991 was enforceable and that there was no unfair advantage that the first respondent had taken and that even if there was a non-alienation clause as between the parties the said agreement was enforceable. After the period of non-alienation the first respondent was entitled for the registration of the sale deed from the appellants and respondent Nos. 2 to 4. On the basis of the said pleadings he had sought dismissal of the suit with costs.

5. The trial court framed the following issues for its consideration:

1. Whether the plaintiffs prove that the agreement dated: 6.5.1991 is not deed of agreement of sale but it is only securities deed for receipts of Rs.3,40,000/- from the defendants?

2. Whether agreement dated: 6.5.1991 by land grant rules, since the land is suit darkasth land with not alienation of condition is the grant?

3. Whether the plaintiff No.1 proves that the agreement of sale dated 6.5.1991 is not binding?

4. Whether the plaintiffs is entitled for relief of declaration and possession of the land?

5. Whether the plaintiff is entitled for mesne profits?

6. What order or decree?

6. In support of their case the parties let in evidence which shall be adverted to at a later stage.

7. As far as O.S.No.179/1999 is concerned, the same was filed by the first respondent herein which is a suit for specific performance of the agreement dated 6.5.1991. In the plaint it is contended that the appellants herein are the children of late Syed Mehaboob and Naimunnissa. Naimunnissa was granted the suit schedule land on 26.9.1983 and she died after obtaining saguvali chit and that the appellants herein and their father had jointly executed a power of attorney on 5.1.1984 authorizing the first appellant herein, namely, Sri. Syed Zaheer to sell the acquired property by late Naimunnissa. Accordingly, he had entered into an agreement with the respondent herein to sell the suit schedule property items 1 & 2 as per general power of attorney executed by other appellants along with their father late Syed Mehaboob, vide agreement dated 6.5.1991. According to the respondent herein though the sale agreement was executed by the fist appellant in the suit as power of attorney holder of other title holders and late Syed Mehaboob, other appellants herein had also subscribed their signature to the agreement since they were present at the time of negotiation and that possession was delivered to the respondent after receiving the entire sale consideration of Rs.3,40,000/- which was also the market value of the property then, as the value of the coffee land was comparatively less and the schedule property was not properly cultivated and not yielding a good income. The appellants herein had agreed to obtain permission from the government to execute the sale deed since there was a non-alienation clause in the grant certificate. Since the appellants did not come forward to execute the sale deed, a legal notice was got issued on 24.6.1999 and since there was no response even after the receipt of the legal notice, he had filed the suit. According to the first respondent he was ready and willing to perform his part of contract since he had already paid the entire amount of sale consideration to the plaintiff. The appellants herein had filed O.S.No.55/1995 for cancellations of the agreement, which the first respondent had contested. Hence be prayed for a direction to the appellants and executors of the agreement dated 6.5.1991 to execute the sale deed in his favour.

8. Upon service of notice and summons from the suit, the appellants herein resisted the suit by filing a written statement and stated that the agreement was not enforceable and that since the respondent herein was to possession of both items of the property in enquiry into the mesne profits had to be gone into. According to them the market value of the property was Rs.8,00,000/- and the respondent had cultivated the crop worth Rs.5,00,000/- that they were ready to pay Rs.3,40,000/- to the respondent and sought for return of the property as the agreement dated 6.5.1991 was not enforceable.

9. On the basis of the said pleadings, the trial court framed the following issues for its consideration:

1. Whether the plaintiff proves that the defendants 1 to 4 along with Syed Mahaboob executed an agreement dated 6.5.1991 to sell the schedule items 1 and 2 in favour of the plaintiff?

2. Whether the plaintiff proves that the defendant have delivered the possession of schedule items 1 and 2 favour of the plaintiff?

3. Whether the plaintiff proves that he has paid the entire sale consideration of Rs.3,40,000/- to the defendants?

4. Whether the plaintiff proves that the defendants are liable to execute the registered sale deed of the schedule properties in favour of the plaintiff?

5. Whether the plaintiff proves that the defendants have failed to perform their part of the contract under the agreement dated: 6.5.1991?

6. Whether the defendants prove that they have not executed the agreement dated 6.5.1991 either by themselves or through their G.P.A. holder?

7. Whether the defendants prove that the agreement dated: 6.5.1991 is not enforceable?

8. Whether the defendants prove that plaintiff has failed to perform his part of the contract?

9. Whether the defendants prove that the suit is barred by limitation?

10. Whether the defendants prove that the suit is bad for not joinder of necessary party?

11. To what reliefs the parties are entitled to?

10. Since both O.S.No.55/1995 as well as O.S.No.179/1999 were clubbed, common evidence was let in. The appellants herein let in evidence of PW.1 Sayed Zaheer and got marked Ex.P1 to P25 while the respondent herein let evidence of himself as DW.1 and one Sri.Rudregowda as DW.2 and got marked Ex.D1 to D21.

11. On the basis of the said material, the trial court answered the issue Nos. 1 to 5 raised in O.S.No.55/1995 in the negative and the said suit was dismissed. As for as O.S.No.179/1999 is concerned, issue Nos. 1 to 5 were held in the affirmative and issue Nos. 6 to 10 were held in the negative and the said suit was decreed. Being aggrieved by the dismissal of O.S.No.55/1995. RFA No.376/2003 has been filed and being, aggrieved by the decreeing of O.S.No.179/1999, RFA.No.377/2003 has been filed.

12. We have heard the learned counsel for the appellants and learned counsel for the respondent.

13. According to the counsel for the appellants, O.S.No.179/1999 was filed on 13.8.1999, the said suit is barred by law of limitation. However, the trial court failed to apply Article 54 of the Limitation Act and therefore, the suit ought to be dismissed on the said ground. Elaborating his contention he has stated that the date of the agreement is 6.5.1991 and the suit is filed on 13.8.1999 which is nearly eight years after the agreement and therefore on the ground of limitation, the suit ought to be dismissed. He has also stated that the agreement dated 6.5.1991 was not an agreement to sell the suit schedule property. It was in fact an agreement with regard to a usufructuary mortgage. Since the appellants were in need of money, in order to meet their financial difficulties, they had mortgaged the suit schedule property to the respondent who was entitled to use the usufructs of the coffee estate and after a lapse of time on payment of consideration amount i.e., Rs.3,40,000/- he had to return the possession to the appellants. He has also stated that the appellants had no authority to alienate the suit schedule property in as much as the land was granted in the year 1984 i.e., 26.9.1984 and for a period of fifteen years there was in operation a non-alienation clause. Therefore, the agreement dated 6.5.1991 was opposed to public policy and unlawful and therefore barred under Section 23 of the Contract Act. In the alternative, he has stated that the relief of specific performance is a discretionary relief and in the instant case, the trial court has not appreciated the evidence on record and has erroneously granted the said relief to the respondents herein and hence this is a fit case where the Judgment and Decree passed in both the cases ought to be reversed by allowing both the appeals.

14. Another contention raised on the question of limitation is that the 5th appellant herein namely Smt. Haseena was not initially impleaded in the suit and she was impleaded later on and hence the suit as against her is barred as on the date of impleadment. In support of his contentions he has relied upon certain citations which shall be advertised to later.

15. Per contra, counsel for the respondent has stated that the suit filed is not hit by the provisions of the Limitation Act; that the Suit Schedule Property was granted with a condition of non-alienation for a period of fifteen years, that on 6.5.1991 it was only an agreement of sale for the said land which was entered into, there was no sale or conveyance as such and that only after the lapse of fifteen years the suit for specific performance had been filed. The said suit was filed within three years from the date of coming to an end of fifteen years from the date of grant namely 26.9.1993 and hence the same is not hit by Article 54 of the Limitation Act. It is also contended that permission had to be obtained from the competent authority so as to make a sale in question and so long as the said permission was not obtained time did not run against the respondent herein. He has also stated that under the terms and conditions of the agreement, time was not the essence of the contract and therefore, filing of the suit in the year 1999 was just and proper and the trial court was justified in decreeing his suit and dismissing the suit filed by the appellants, which do not call for any interference in these appeals.

16. Having heard the counsel on both sides, the following points arise for our consideration:

1. Whether O.S.No.179/1999 filed by the respondent herein was not maintainable as being barred by Limitation?

2. If the answer to point No.1 is in the affirmative, whether the agreement dated 6.5.1991 is unenforceable as sought in O.S.No.55/1995?

3. If the answer to point No 1 and 2 are in the affirmative, whether the respondent herein is entitled to a decree of specific performance?

4. What order?

17. At the outset it is necessary to mention that the execution of the documents dated 6.5.1991 is not in dispute. It is also admitted that under the said document a sum of Rs.3,40,000/- was given by the appellants to the respondent, so that it was given by the respondents to the appellants who utilized the said amount to pay the bank debts and other financial institutions. It is also an admitted fact that the said amount was paid to Syed Mehaboob and his children and on receipt of the said amount, possession of the suit schedule property was given to the respondent. Ex.P4 is the agreement dated 6.5.1991 which is styled as an agreement of sale and one K.R.Rudregowda is the attestor of the said agreement who has been examined as DW.2.

18. The other admitted fact is that in the grant certificate issued, there was a non-alienation clause and the said grant was under Darkasth for cultivation of coffee and it is an undisputed fact that it was granted to Syed Mehaboob and his wife and that a non-alienation clause was for a period of fifteen years. The grant is of the year 1983-84 and the said bar for alienation ends in the year 1998-99. The appellants themselves have admitted that they knew the respondent and therefore, the appellants and the respondent were not strangers and that they were having a business relationship between them.

19. PW.1-Syed Zaheer is the power of attorney holder of the members of the family including Syed Mehaboob. The said document is marked as Ex.D1 and it is dated 17.7.1991. In the said document which is undisputed document, there is mention of Ex.P4 agreement dated 6.5.1991 and the intention to sell the land in favour of the respondents. The contents of the agreement enable the respondent to enjoy the property and also make improvements for cultivation of the same and utilize the usufructs of the property.

20. As far as the issue regarding limitation is concerned, Article 54 of the Limitation

Description of suit

Period of limitation

Time from which period begins to run

54.For specific performance of a contract

Three years

The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.

21. Article 54 of the Limitation Act specifies two points of time from which time begins to run for the purpose of computing the period of three years limitation with regard to filing suits for specific performance of contract. One, is the date fixed for the performance of the contract and two, if no such date is fixed then when the plaintiff has notice of the performance being refused. Much reliance has been placed on the decision of the Apex Court in the case of Ahamed Saheb Abidulla Mulla Vs. Bibijan reported in (2009) 5 SCC 462, by the counsel for the appellants to contend that in the instant case, the suit filed for specific performance was beyond the prescribed period of limitation and therefore, the suit filed by the respondent herein was not maintainable by placing reliance on the second limb of Article 54 of the Limitation Act. While considering time from which period begins to run under Article 54 of the Limitation Act, the Apex Court in the aforesaid decision held that fixed used in the said article in essence means having final or crystallized form or not stopped to change or fluctuation and the inevitable conclusion is that the expression date fixed for the performance is a crystallized notion which is clear from the fact that the second part of Article 54 states time from which period begins to run which refers to a case where no such date is fixed. In other words, the Apex Court held that when date is fixed, it means that there is a definite date fixed for doing a particular act and when there is no date fixed then when the plaintiff has notice that performance is refused is also a definite point of time when the plaintiff notices the refusal and in that sense both the particulars refer to definite dates. The same has been relied upon to contend that in the instant case the legal notice was issued by the appellants in the year 1995 with regard to refusal to perform the contract, in as much as it was stated that the agreement was unenforceable on account of non-alienation clause, but the suit has been filed only in the year 1999. The facts of the present case have to be considered in the light of the decision of the Apex Court. It is seen that the land grant which is the subject matter of the agreement in question was made in the year 1983 and there was a fifteen year period of non-alienation which would have come to an end only in the year 1998. However, three years prior to that date I.e., in the year 1995 itself legal notice was sent to the respondent stating that on account of the non-alienation clause, the contract could not be performed by the appellants on account of permission not been obtained from the concerned authority by them. At that point of time there were still three more years for the non-alienation period to come to an end and therefore, it was premature on the part of the appellants to contend that in the year 1995 itself that on account of the non-alienation clause the contract could not be performed on account of permission not being obtained. However, a declaration with regard to unenforceability of the contract was sought by the appellants by filing a suit in the year 1995 itself. But, what has to be noticed is the fact that on account of the non-alienation clause it was specifically mentioned in the contract that the sale deed would be registered only after coming to an end of the non-alienation period, which would have been in the year 1998. Therefore, until the non-alienation period came to an end the respondent also could not have asked for performance of the contract by the appellants. Only after the end of the non-alienation period i.e., in the year 1998 the cause of action to seek specific performance of the contract arose for the respondent.

22. The appellants in fact filed a premature suit seeking a declaration regarding unenforceability of the contract when it was a clear or admitted fact that till the year 1998 the said contract could not be enforced or performed by the appellants. Therefore, the time that has to be reckoned in the instant case from the date fixed for the performance I.e., after the completion for the alienation period which was in the year 1998 and on obtaining the permission of the Deputy Commissioner, the sale deed to be registered by the appellants in favour of the respondents.

23. In the instant case since the suit for specific performance has been filed by the respondent in the year 1999 i.e., within three years from the year 1998 which has to be reckoned in the instant case as the date for performance, the said suit is maintainable within the period of the limitation prescribed under Article 54 of the Limitation Act and therefore, the trial court was justified in holding that the suit is not barred by limitation. Even otherwise the trial court has noticed with regard to this aspect of the matter that the agreement executed in the year 1991 at Ex.P4 clearly stipulated that the permission and then executed the sale deed in favour of the respondents. There is no document to show that such a permission had been obtain from the Deputy Commissioner, on the other hand, the case of the appellants is that such a permission could not be obtained. Hence there was no time fixed in the agreement when the sale deed had to be executed and therefore, time was not the essence of the contract as only after the lapse of the non-alienation period, the agreement was enforceable. The above reasoning is also correct in view of the facts of the case.

24. The case of Ganapathy (Padala) Suryakumar V/s. Dr.Erra Reddy and Another reported in AIR 2007 AP 118 has been cited to contend that if a party is added subsequently as a plaintiff a defendant in the suit as far as that party is concerned, the date of institution of suit would reckoned as the date on which the order allowing the impleadment is passed by the court and that in the instant case, 5th appellant was arrayed as fifth defendant by the respondent herein after the institution of the suit and that the suit was barred by limitation as against her. However, the said position of law is not correct in view of provisio to Section 21 of the Limitation Act which has been interpreted by the Supreme Court in the case of Munshi Ram V/s. Narsi Ram & another (AIR 1983 SC 271), wherein it has been held that if the court is satisfied with the omission to include a new plaintiff or a defendant was due to a mistake or the mistake was made in good faith it may direct that the suit as regards such plaintiff or defendant should be deemed to have been instituted on any earlier date. The said provisio is inserted to take care of the case of omission to implead a person due to to be a bonafide mistake which should not deprive the plaintiff of his rights against the person if the court is satisfied in that behalf.

25. In this context it would be of relevance to refer to a decision of the Apex Court in the case of Ranjibhjai Vs. Narotham Das reported in AIR 1986 SC 1912. In the said case there was an agreement for sale of flat which had to be finalized after obtaining permission of authorities to use as village site was a pre-condition for the execution of the sale deed. The suit for specific performance was filed within three years are obtaining permission. It was held to be not barred by limitation. The said decision is applicable to the facts of the present case also. Consequently, the other decisions which have been cited by the learned counsel for the appellants namely ILR 1992 Karnataka 429 and ILR 1992 Karnataka 644 are not applicable to the facts of the present case. Therefore, we confirm the finding of the trial court that the suit filed by the respondent was in time and not hit by the law of limitation. Hence point No.1 is answered in favour of the respondent.

26. The next question that has to be answered is as to whether it is an agreement of sale or whether it was only an agreement executed by way of a security for loan transaction amounting to Rs.3,40,000/- or was it usufructuary mortgage agreement given by way of security and whether on account of the non-alienation clause the agreement dated 6.5.91 is not enforceable.

27. It is seen that legal notice at Ex.D5 was issued on behalf of the appellants to the respondent herein wherein it is stated that under misconception that a permission could be obtained for the alienation of the property granted by way of Darkasth, agreement dated 6.5.1991 was entered into but since the appellants were not in a position to obtain the requisite permission, the agreement was unlawful and therefore could not be enforced. Stating the said reason the appellant s cancelled the agreement dated 6.5.1991 as well as the general power of attorney dated 17.7.1991 executed in favour of the respondent herein. In reply to the said notice dated 26.4.1995 it was stated on behalf of the respondent that there was no misconception regarding the agreement, it was very clear that after the fifteen year period, the appellants would execute the sale deed in favour of the respondent who was put in possession of the suit schedule property not only by virtue of the agreement of sale but also under the general power of attorney dated 17.7.1991 which was an irrevocable one.

28. From the said documents it becomes apparent that it was never in the mind of the parties that the agreement dated 6.5.1991 was given only by way of security for a loan transaction amounting to Rs.3,40,000/-. In fact the word used in the notice at Ex.P5 is alienation and therefore, the contention which has now been raised by the counsel for the appellants that the agreement dated 6.5.1991 was given only as a security and that the respondent had to use the usefruct of the land and received the amount of Rs.3,40,000/- from the appellants is only an after thought. In fact the suit filled is for a declaration that the agreement dated 6.5.1991 (Ex.P4) is unenforceable on account of non-alienation clause. Therefore, the appellants cannot now contend that the said agreement was entered into by way of security for a loan transaction that Ex.P4 is not an agreement for sale, but only an agreement of security or a mortgage for use of usufruct of the suit schedule property for four years cannot be accepted, particularly when an irrevocable general power of attorney under Ex.D1 was given to the respondent. Hence the contention of the counsel for the appellants that the agreement dated 6.5.91 is not enforceable on account of the same being an agreement by way of security cannot be accepted.

29. It is also necessary to consider the evidence of respondent DW.1 and 2, the attestor of the agreement along with Ex.D1 which is the power of attorney together, from which it becomes apparent that the appellants intended to alienate the suit schedule property to the respondent and because there was a non-alienation clause in the grant and since the entire sale consideration was received by the appellants, general power of attorney was issued so as to enable the respondent to enjoy the suit property. As opposed to this evidence PW.1 has let in evidence, which is not corroborated by any other independent witness. For this reason also the contention of the appellants that Ex.D4 was only given as a security for the loan transaction and not as an agreement for sale of the suit schedule property cannot be accepted.

30. The other reason put forth by the appellants for the non-enforceability of the agreement is the fact that there was non-alienation clause in the order of grant of the suit schedule property made in favour of the appellants family and that without the permission of the Deputy Commission the said land could not be alienated and in the absence of obtaining the said permission the agreement for sale is not enforceable. It is to be noted that at the time of grant, non-alienation clause for a period of 15 years was imposed and it is only after the lapse of said period, the suit for specific performance was filed by the respondent. Therefore, it cannot be said that there has been a breach of the non-alienation clause or that the specific performance has been sought prior to the expiry of the non-alienation clause. In fact, the reasons given with regard to point No.1 on the question of limitation are applicable while considering this aspect of the matter inasmuch as the respondent has not sought specific performance of the agreement prior to the lapse of the non-alienation clause, but on the other hand, the declaration sought by the appellants on the ground that on account of non-alienation clause in the grant, the agreement in question could not have been made and the same is hit by Section 23 of the Contract Act, cannot be accepted. Hence point No.2 is answered against the appellant.

31. Gahesa Naicken V/s. Arumuga Naicken (AIR 1954 Madras 811) has been cited to contend that where the darkhast grant was in the nature of a gift by the Government with a specific provision that the property shall not be alienated without the consent of the Tahsildar, any contract which has the effect of circumventing this policy of the Government would be opposed to public policy and the agreement to sell the property would be void. The said decision is not applicable to the facts of the present case since the sale agreement had to be executed by the appellants after the period of non-alienation and it is only on the lapse of the said period that the respondent filed the suit for specific performance. Similarly, the decision in Ramachandraiah V/s. Nagappa Naidu (ILR 1995 Kar 570) is also not applicable.

32. Pujari Narasappa & another V/s. Shaik Hazrat & others (AIR 1960 Mysore 59) has been cited on behalf of the appellant to contend that where permission of the collector is a condition precedent for alienation under the Act and the plaintiffs sought before the Civil Court specific performance of the agreement to sell and if the said suit is decreed, it would defeat the pre-condition of obtaining permission which would be in contravention of the grant or law regarding alienation of such grant and Section 23 of the Contract Act and would be a bar to such a suit. However, another division Bench of this court in the case of Yogambika V/s. Narsingh (ILR 1992 Kar 717) has held that even in the presence of a period of non-alienation clause for ten years in a document of allotment, is not a bar to decree a suit for specific performance as the object of the law is to enforce contract which is applicable to the facts of the present case.

33. In the case of Nirmala Anand V/s. Advent Corporation Pvt. Ltd. & others (AIR 2002 SC 2290) it has been held that when the construction company refused construction on the ground that the original lease of plot was terminated by the municipality and the facts showed that there was a possibility of renewal of lease and revalidation of building plan and the purchaser was ready to perform her part of the contract, then specific performance cannot be refused. The said decision is applicable to the facts of the present case.

34. In the case of Andanur Rajashekar V/s. Vasavi Industrial Enterprises & others (2007(1) AIR Kar R 4971) this court considered Section 80 of the Karnataka Land Reforms Act in the context of Section 23 of the Contract Act and Section of the specific Relief Act and held that what is prohibited under Section 80 is a non-agriculturist purchasing agricultural land and if a permission can be obtained from the statutory authority, then proviso to Section 80 would not be a bar. It was also stated that Section 80 did not bar an agreement to sell agricultural land to a non-agriculturist, but what is prohibited is a sale. The said decision is in fact applicable to the facts of the present case as no sale has taken place in contravention of the terms of the grant in the instant case and the agreement of sale specifically mentions that the sale deed would be executed after the period of non-alienation is completed. Therefore, the agreement in question cannot be held to be null and void or hit by Section 23 of the contract. To the same effect is the decision in another decision of this court in the case of Ningappa Durgappa V/s. Hanumantappa Balappa & another (L.J. 1982(1) 419). In fact even in the case of Manasa Housing Co-operative Society Ltd. V/s. Marikellaiah & others (AIR 2006 Kar 273) it has been held that the mere filing of a suit for specific performance of contract for grant of a decree in the same would not amount to violation of Section 80 of the Karnataka Land Reforms Act and that the said Section will not create any bar in the Civil Court to decide whether the plaintiff would be entitled to a decree for specific performance or not.

35. In the case of Balu Babu Rao V/s. Shaik Akbar (AIR 2001 Bombay 364) in the context of Section 43 of the Bombay Tenancy and Agricultural Lands Act and Section 20 of the Specific Relief Act it has been held that when the suit property was not transferable, without prior permission of the collector a decree of specific performance granted subject to sanction of collector cannot be held to be improper.

36. As far as point No.3 is concerned with regard to readiness and willingness on the part of the respondent is concerned from the facts already narrated, it is seen that the entire sale consideration was paid by the respondent to the appellants at the time of signing the agreement for sale. In fact the possession of the suit schedule property was also handed over by the appellants to the respondent so as to permit the respondent to enjoy the property since the entire sale consideration was received by the appellants. The appellants had also executed general power of attorney in favour of the respondent for the use and development of the suit schedule property considering the fact that the period of fifteen years non-alienation clause in the grant made by the authorities would come to an end only in the year 1998 Therefore in order to enable the respondent to enjoy the property, the power of attorney was executed. All that the appellants had to do was to obtain the necessary permission for conveying the said property from the Deputy Commissioner or other concerned authority after the lapse of non-alienation period i.e., in the year 1998 and thereafter to execute the sale deed in favour of the respondents. In fact the respondent had performed his part of the contract by parting with the entire sale consideration and a a part performance of the agreement to sell, the appellants had handed over possession to the respondent for the development of the coffee estate. Under the circumstances there was no action or step which was necessary to be taken by the respondent for the specific performance of the contract. The entire burden of completing the terms and conditions of the contract was with the appellant and the appellants had to convey the property by registering the same after completing the necessary legal formalities. Under the circumstances the trial court was correct in holding that the respondent who had file the suit for specific performance was ready and willing and had in fact performed his part of the contract and there was no reason as to why specific performance relief could not be granted to him. For the aforesaid reasons we have held point No.3 also in favour of the respondent.

37. In Manzoor Ahmed Margay Vs Gulaum Husssan Aram And Others (AIR 2000 SC 191) it is held that readiness and willingness can be inferred from evidence led by the willingness can be inferred from evidence led by the parties and if there is no delay on the part of the plaintiff, equitable relief cannot be denied.

38. However, one contention has been raised by the learned counsel for the appellant with regard to the hardship that would be caused and has relied upon Section 20 of the Specific Relief Act and has attempted to make out a case under the said section so as to contend that specific relief cannot be granted by this court In favour of the respondents.

39. Section 20 of the Act states that the jurisdiction to decree specific performance is discretionary. It says that the Court is not bound to grant such relief merely because it is lawful to do so. Such a discretion, however, is not to be exercised arbitrarily, but must be based on sound and reasonable judicial principles. The Section also specifies the circumstances in which the Court may property exercise the discretion not to decree specific performance and it also specific when, in an appropriate case, a decree could be given by proper exercise of discretion. Section 20 is not an exhaustive provision, but merely illustrative as it is not possible to define the circumstances in which equitable relief could or could not be granted. If, therefore, on a consideration of all the circumstances of the case, the Court thinks that it will be inequitable to grant the relief asked for, it should not give the relief. In this context, it is necessary to refer to explanation to Section 10 of the Act provides that, unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. But the said presumption is a rebuttable presumption.

40. Sub-section (2) of Section 20 specifies certain circumstances when discretion may be exercised not to decree specific performance. These circumstances are illustrative and they can be defined as follows:-

(i)when the terms of the contract or the conduct of the parties at the time of entering into contract or the circumstances under which the contract was entered into are such that they give the plaintiff an unfair advantage over the defendant.

(ii) where the performance of the contract would involve some hardship to the defendant whereas, its non-performance would involve no such hardship on the plaintiff.

(iii) that it makes it inequitable to enforce specific performance.

41. While explaining these circumstances, Explanation-1 speaks about unfair disadvantage. Explanation-II relates to hardship which is a circumstance in favour of the defendant, while Explanations-III and IV are in favour of the plaintiff when in a case where the plaintiff has done substantial acts in consequence of a contract capable of specific performance or refused specific performance, merely because the contract is not enforceable at the instance of the defendant.

42. The decision of the Supreme Court in the case Parakunnan Veetill Joseph s Son Mathew Vs Nedumbara Kuruvila s Son And Others (AIR 1987 SC 2328) is relied upon by the respondent to contend that it is the duty of the Court to see that litigation is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In the said decision, the Hon ble Supreme Court, while considering Section 20 of the Specific Reliefs Act, stated that Section 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case and the because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict.

43. In 1999(3) Kar.L.J. 677 (y.n.Gopala Rao Vs D.R.Laxminarayana And Otehrs) it has been held by this Court that the presumption in a suit for specific performance is that a breach of contract cannot be adequately relieved by compensation in money and that contract can be satisfied only by conveyance of particular estate contracted for sale and the said presumption is rebuttable, and the burden of rebutting is on the party opposing enforcement of contract and where such party has failed to rebut presumption, suit for specific performance is to be decreed against such party. This principle is also stated in Explanation (i) to sub-section (b) of Section 10 of the Specific Relief Act.

44. While adverting to Section 20 of the Act, it is stated in this decision that rise in price is no ground to refuse specific performance and the refusal may also have tendency to cause hardship in the plaintiff in acquiring such property or other property at such time.

45. In AIR 2004 SC 909 (M.S. Madhusoodhanan And Another Vs. Kerala Kaumudi Pvt. Ltd., And Others) it is observed that the guidelines for the exercise of the Court s discretion to decree specific performance of an agreement have been statutorily laid down in sub-section (2) of Section 20 of the Act and that, in Explanation 1 to Section 20, it is stated that mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

46. ILR 1992 Kar 717 (Yogambika Vs Narsingh) is relied upon by the respondent to contend that the mere fact that a person is a retired Government servant cannot at all be considered to be a valid ground to refuse to enforce the contract he had voluntarily agreed to and that, under Section 20 of the Act, the grounds which enable the Court to refuse to grant a decree must be such which were not in the contemplation of the parties when they entered into an agreement of sale and also that the defendant had no control over those grounds and as a result of those grounds, it has become impossible for him to get an without the property agreed to be sold.

47. For the aforesaid reasons we hold that the Judgment and Decree passed by the trial court is just and proper which do not call for any interference in these appeals. Hence the appeals are dismissed. Parties to bear their own costs.