SMT NARAYANAMMA v. SRI GOVINDAPPA

4.SMT BHAGYAMMA,

D/O LATE ANJANAPPA,

MAJOR,

APPELLANTS 3 TO 4 ARE

R/AT MUTKUR VILLAGE,

ANUGONDANAHALLI HOBLI,

HOSKOTE TALUK,

BANGALORE RURAL DISTRICT-560 067. ... APPELLANTS

(BY SRI: T.N.VISWANATHA, ADV.)

AND:

1.SRI GOVINDAPPA,

SON OF BALE KRISHNAPPA,

MAJOR,

2.SMT NARAYANAMMA,

W/O BALE VENKATASWAMY,

MAJOR,

3.SMT GOWRAMMA,

W/O THATHNUR VENKATASWAMY,

MAJOR,

ALL ARE R/AT MUTKUR VILLAGE,

ANUGONDANAHALLI HOBLI,

HOSKOTE TALUK,

BANGALORE RURAL DISTRICT-560 067. ... RESPONDENTS (BY SRI: G.PAPI REDDY, ADV. FOR R1; R2 & R3 - SERVED) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE

JUDGEMENT AND DECREE DATED 17.06.2008 PASSED IN

RA.NO.86/2004 ON THE FILE OF THE PRL.DISTRICT JUDGE,

BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE

APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE

DATED 23.01.2004 PASSED IN OS.NO.93/1999 ON THE FILE OF THE CIVIL JUDGE, (JR.DN.) & JMFC HOSKOTE.

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THESE RSAs COMING ON FOR ADMISSION THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

J U D G M E N T

These appeals are filed by the defendants in O.S.No.93/1999, assailing judgment and decree passed in R.A.No.86/2004 by the Presiding Officer, Fast Tract Court- III, Bengaluru Rural District, dated 17/06/2008, by which, the judgment and decree dated 23/1/2004 passed in O.S.No.93/1999 was set aside and the suit was decreed by allowing the appeal.

2. For the sake of convenience, parties shall be referred to in terms of the status before the trial court.

3. The respondent, Sri Govindappa, had filed O.S. No.93/1999 seeking specific performance of agreement to sell dated 15/5/1990 in respect of the suit schedule property and for permanent injunction. As the defendants did not come forward to execute the sale deed, he filed the said suit seeking specific performance of the said agreement. In response to the notices and summons

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issued by the trial court, the defendants appeared before the court, but they did not file their written statement. The plaintiff examined himself through Power of Attorney as PW1 and two other witnesses were examined as PWs.2 and 3. The plaintiff produced Exs.P-1 to P-34 and closed his case. The defendants did not cross-examine the plaintiff, nor did they file any written statement. The trial court, on considering Ex.P-1, agreement to sell dated 15/5/1990 held that, the said agreement was made during the non-alienation period and contrary to the non- alienation clause as the said period expired only on 13/10/1998. According to the trial Court, it was clear that the said agreement was entered into between the plaintiff and defendants before the expiry of stipulated non-alienation period and that the said agreement was null and void and therefore, a suit for specific performance could not be maintained and accordingly, dismissed the suit. Being aggrieved by the judgment and decree of the trial Court, the plaintiff filed R.A.No.86/2004 before the 1^st Appellate Court.

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4. Before the trial Court, the point considered was:

"Whether the plaintiff is entitled for the relief of specific performance of contract?"

Before the 1^stAppellate Court, the points for consideration were:

"1. Whether the plaintiff is entitled for a direction for execution of the sale deed by the defendants?

2. What order?"

On these points, the 1^stAppellate Court held in favour of the plaintiff and allowed the appeal by setting aside the judgment and decree of the trial Court. Being aggrieved by the judgment and decree passed in R.A.No.86/2004, the defendants have filed these appeals. To be more specific, defendant Nos.4 and 5 have filed R.S.A. No.1925/2008 and defendant Nos.1 to 3 have filed R.S.A.No.1834/2008.

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5. I have heard the learned counsel for the appellants and learned counsel for the respondents and perused the material on record.

6. Supporting the judgment and decree of the trial Court, appellants' counsel contended that, the 1^st Appellate Court was not right in allowing the appeal and decreeing the suit. They contended that, the 1^stAppellate Court ought to have considered the case in all its aspects by examining the evidence on record and given findings as to whether the respondents herein were entitled to a decree of specific performance. They further contended that, though the appellants had not filed any written statement, nor cross-examined the plaintiff, nor let-in any independent evidence, nevertheless, duty was cast on the Appellate Court to frame the issues as to whether the respondents herein were entitled to the decree of specific performance and as to whether the respondents were ready and willing to perform their part of the contract and thereafter considered the matters.

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7. It was also contended that the agreement was entered into on 15/5/1990, whereas the suit was filed in the year 1999. There was gross delay in filing the suit. The 1^stAppellate Court had to consider the issue of limitation. It was also contended that, even though the written statement was not filed by the defendants, the 1^st Appellate Court could have granted an opportunity to the defendants to file their written statement and thereafter decided the matters on merits. A similar plea was also made in this proceeding by contending that both the judgments and decrees of the courts below could be set aside and the matter may be remanded to the trial court for fresh disposal after granting an opportunity to the appellants to file their written statement, subject to payment of cost.

8. It was faintly contended that, when there is a non-alienation clause in an order of grant and an agreement to sell was entered into in respect of the granted land, then such an agreement is null and void by

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placing reliance on the decision of the Hon'ble Supreme Court in Taibai (Dead) By Lrs. v. Annasaheb Goudappa Patil . [1996

(6) Kar.L.J. 594(SC) (DB). Therefore, learned counsel for the appellants contended that substantial questions of law would arise in these appeals and hence, substantial questions of law may be framed and the matters may be heard on merits.

9. Per contra, learned counsel for the respondent- plaintiff, supporting the judgment and decree of the 1^st Appellate Court contended that, the said judgment and decree would not call for any interference and that the appellants herein were remiss in not filing the written statement and not cross-examining the plaintiff. The trial Court had misdirected on the position of law and had erroneously dismissed the suit. The 1^stAppellate Court had framed the relevant issues and on going through the evidence, had given its findings and has rightly allowed the appeal of the plaintiff and these appeals do not raise for any substantial question of law.

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Placing reliance on the decisions of this Court in the case of Yogambika v. Narsingh (ILR 1992 Kar. 717) (DB) and Syed Zaheer & others v. C.V.Siddaveerappa [2010 (2) KCCR 954] (DB), he pointed out that respondent had not delayed in filing the suit. That the cause of action arose after 1998 after the expiry of non-alienation period and that the suit was not barred by limitation. He, therefore, contended that, there is no merit in these appeals and the same be dismissed.

10. Having heard the learned counsel for parties and on perusal of the material on record, the following facts are established as is evident from the judgments of the courts below:

That an agreement to sell the suit schedule property has been entered into to sell the mortgaged property in favour of the plaintiff, on 15/5/1990 and the sale consideration was Rs.46,000/-, after adjusting a sum of Rs.20,000/- towards the mortgaged amount, as there was a mortgage in respect of the suit schedule property in

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favour of plaintiff, the balance amount of Rs.26,000/- was handed over to the defendants and possession of the suit schedule property was given in favour of the plaintiff. It has also come on record that there was a non-alienation clause under the grant made in favour of the father of defendant Bale Venkataramanappa and the period of non-alienation came to an end on 13/10/1998 and the suit was filed on 15/5/1999.

11. Having regard to the fact that there was a non- alienation clause in the order of grant, plaintiff could not have had any cause of action to seek enforcement of the agreement dated 15/5/1990 prior to that date. This has been established by a Division Bench of this Court in the case of Syed Zaheer referred to supra. Therefore, the filing of the suit on 15/5/1999 is not hit by the provisions of the Limitation Act and the suit is in time.

12. However, the trial Court dismissed the suit on the ground that the agreement to sell itself was void as no such agreement could have been entered into in favour of

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the plaintiff during the period of non-alienation. Such a reasoning is also faulty as the reference to the aforesaid judgment as well as Yogambika's case would make it clear. Therefore, the trial court was not right in framing the issue as to "whether the plaintiff is entitled for the relief of specific performance of contract" and based on the reasoning that the agreement to sell was void and thereby dismissing the suit. Also the judgment of the Hon'ble Supreme Court relied upon by appellants' counsel is not applicable to the present case as there the provisions of law, namely, Section 5 of Karnataka Village Offices Abolition Act, 1961 categorically stated that any transfer of alienation of land resumed under sub-section (3) of Section 4 of that Act entered into prior to regrant under sub-section (1) of Section 4 was null and void with effect from 07/08/1978, i.e., the date of enforcement of Amendment Act. As already noted, being aggrieved by that judgment and decree, the plaintiff filed R.A.No.86/2004. The point considered by the 1^stAppellate

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Court was, "whether the plaintiff was entitled to a direction for execution of the sale deed by the defendants."

13. It is well known that in a suit for specific performance of contract, apart from the readiness and willingness of the plaintiff to perform his part of the contract, several issues are raised. But in this case, neither the trial court nor the 1^stAppellate Court raised the usual issues raised in such a suit for specific performance because, there was no contradictory pleading filed by the defendants in the suit. In the absence of the written statement, there would have been no issues raised or as to whether the defendant was entitled to any relief in the suit. All that the court had to see was, as to whether the plaintiff was entitled to any relief in the suit on the basis of evidence on record. As far as the evidence on record is concerned, it is noted that the defendants did not choose to cross-examine the plaintiff's witnesses not contradict any of the documents produced by the plaintiff. The First

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Appellate Court has on re-appreciation of evidence given the following findings:

That one Bale Venkataramanappa, had paid the premium on the land in question on 13/09/1983 and that on 23/04/1990, he had mortgaged the property. Subsequently, on 15/05/1990, he entered into an agreement to sell the property, which facts pleaded by the plaintiff were not contradicted by the defendants. That the entire sale consideration of Rs.46,000/- was received by Bale Venkataramanappa and that the plaintiff was put in possession of the suit schedule property. The aforesaid findings have been given on the basis of Ex.P.1, which is a document on the basis of which suit for specific performance was filed. In the absence of defendant's evidence on record, learned counsel for appellants have contended that the first appellate Court ought to have given a detail reasoning as to whether the suit for specific performance filed by the respondent ought to have been decreed or not. That was indeed considered by the 1^st

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appellate Court. No doubt, the judgment of the first appellate Court is short but it is precise as to the findings given by it which are on the basis of the documentary evidence, which are produced by the respondent. In fact, before the first appellate Court, the Legal Representatives of defendant No.1 were placed ex-parte, as they did not appear before that Court. Though the other defendants were represented by their counsel, no attempt was made to seek permission to file a written submission and contest the matter. In fact, the first appellate Court has noted the submission of the plaintiff that the trial Court without adjudicating upon the contested issues and on account of there being no written statement or contra evidence let in by the defendant, had on an erroneous approach, dismissed the suit.

14. The findings given by the first appellate Court arise from the unchallenged evidence which have been let in by the plaintiff. Nevertheless, the first appellate Court raised a point for consideration as to whether the plaintiff

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was entitled to any relief and as to whether directions could be issued to the defendants for execution of the sale deed, which is an omnibus consideration of the case, in the absence of pleadings and contrary evidence produced by the defendants. When the first appellate Court has given its finding based on the documentary evidence as well as on the supporting oral evidence and has decreed the suit, I do not think that any indulgence could be shown to the appellants herein by permitting them to file a written statement before the trial Court on setting aside the judgments and decrees of the Courts below. The defendants were served before the trial Court but they have been remis in not prosecuting the suit and at this stage, no liberty can be given to the defendants to file a written statement. In the circumstances, I do not find any substantial question of law that would arise in these appeals. The appeals are hence, devoid of merit and are dismissed, but without any orders as to costs.

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15. In view of the dismissal of the appeals, Misc.Cvl.Nos.17185/2009 and 17186/2009, do not survive for consideration and they also stand dismissed. Sd/-

JUDGE.

S*/*mvs

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