R.H. SONNEGOWDA, v. R.G. PILLAPPA,

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3. Brief facts leading rise to the filing of this appeal are as follows:

The plaintiff filed the suit against the defendants for a Specific Performance of Contract. It is the case of the plaintiff that, the defendants are the owners of the suit schedule property and the defendants agreed to sell the suit schedule property for consideration of Rs.6,68,750/-; it was agreed that, the plaintiff shall pay an advance sale consideration amount of Rs.4,00,000/-. To that effect, an agreement of sale was entered into on 30.05.2007. Accordingly, the plaintiff paid Rs.4,00,000/- to the defendants. It was agreed that the defendants should execute a registered sale deed in favour of the plaintiff after the completion of non alienation period of 15 years after obtaining the sale permission from the concerned authority by receiving the balance consideration amount before the concerned Sub Registrar's Office. It is contended that, after the completion of 15 years, i.e, the non-alienation period, the plaintiff requested the defendants to receive the balance consideration amount

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and execute the registered sale deed. The defendants went on postponing on one pretext or other. The plaintiff finally got issued a legal notice to the defendants, calling upon the defendants to receive the balance consideration amount and execute a registered sale deed. Despite service of notice, the defendants neither replied to the legal notice nor complied with the terms of legal notice. Hence, a cause of action arose for the plaintiff to file a suit for the Specific Performance of the Contract. Accordingly, prays to decree the suit.

4. The defendants filed a written statement denying the averments made in the plaint and also denied the execution of an agreement of sale in favour of the plaintiff and receiving of the alleged part consideration amount. It is contended that the suit of the plaintiff is not sustainable in the eye of the law since the suit schedule property was agricultural land granted by the government with a condition not to alienate the suit schedule property for 15 years. The sale agreement is void, and the same

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was executed during non alienation period. Hence, prays to dismiss the suit.

5. The trial court, based on the aforesaid pleadings of the parties, framed the relevant issues.

6. The plaintiff, to prove his case, examined himself as PW1, examined one witness as PW2 and got marked 3 documents as Ex.P1 to Ex.P3. In rebuttal, defendant No.1 examined as DW1 and marked 4 documents as Ex.D1 to Ex.D4. The trial court, on assessment of oral and documentary evidence, decreed the suit of the plaintiff with cost and directed the defendants to execute a registered sale deed in favour of the plaintiff with respect to the suit schedule property within 4 months from the date of order. In default, the plaintiff can get the sale deed registered through the court. The plaintiff was aggrieved by the Judgment and Decree passed in O.S.No.21/2013 preferred an appeal in R.A.No.120/2017 on the file of Learned III Additional District and Sessions Judge, Chikkaballapura. The appellate court, on reassessment of oral and documentary

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evidence, dismissed the appeal vide judgment dated 21.09.2021. The defendants, aggrieved by the impugned judgments, filed this Regular Second Appeal.

7. Heard the learned counsel for the defendants. Learned counsel for the defendants submits that, the plaintiff has failed to prove the execution of an sale agreement, the readiness and willingness. He also submits that, neither of the Courts below have not properly exercised the judicial discretion vested under Section 20 of the Specific Relief Act. He also submits that, the agreement of sale alleged to have been executed by the defendants in favour of the plaintiff is contrary to provision of Section 61 of the Karnataka Land Reforms Act and Section 23(A) of the Indian Contracts Act. Hence, on these grounds, he prays to allow the appeal.

8. Perused the records, and considered the submissions of the learned counsel for the defendants.

9. The plaintiff, to substantiate his case, examined himself as PW1 and reiterated the plaint averments in the

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examination in chief and further, to prove that the defendants have executed an agreement of sale in favour of the plaintiff in respect of the suit schedule property, produced an agreement of sale marked as Ex.P1 and the signatures of the plaintiff are marked as Ex.P1(a) to ExP1(d) and the signatures of the defendants are marked as Ex.P1(e) to Ex.P1(l), and the signatures of the scribe are marked as Ex.P1(m). Further the plaintiff, after the expiry of the non alienation period, the plaintiff approached the defendants to receive the balance consideration amount and execute a registered sale deed. Despite the oral request made by the plaintiff, the defendants did not receive the balance consideration amount and execute a registered sale deed. To show his readiness and willingness, the plaintiff got issued a legal notice as per Ex.P2 dated 24.01.2013 calling upon the defendants to receive the balance consideration amount and execute a registered sale deed. Despite service of notice, the defendants neither replied to the legal notice nor executed a registered sale deed. Ex.P3 is the Pahani,

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which discloses that, the defendants are the owners of the suit schedule property. Further, the plaintiff also examined the attesting witness to the Ex.P1, who has deposed that, the defendants agreed to sell the suit schedule property for consideration of Rs.6,68,750/-. Accordingly, the plaintiff paid a sum of Rs.4,00,000/- towards the advance sale consideration amount. Nothing has been elicited from the mouths of witnesses of PW1 and PW2 to disbelieve their evidence. In rebuttal, defendant No.1 was examined as DW1, and he reiterated the written statement averments in the examination-in-chief, and to prove the defence of the defendants, the defendants produced the original bank certificate marked at Ex.D1, which discloses that, the suit property was granted in favour of defendants by Ex.D1 and from the perusal of Ex.D1 there is a condition in the grant certificate that, the grantee shall not alienate the suit schedule property for 15 years from the date of grant. Ex.D2 is the Patta Book, Ex.D3 is the Mutation Register Extract. Ex.D4 is the Pahani. The defendants, except taking the defence that, the very

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transaction of sale is void and contrary to Section 61 of the Karnataka Land Reforms Act, the defendant had not taken any other defence. From the perusal of evidence of PW1, PW2 and DW1, it is clear that, the defendants had executed an agreement of sale in favour of the plaintiff agreeing to sell the suit schedule property for consideration of Rs.6,68,750/- and that, the plaintiff paid a sum of Rs.4,00,000/- to the defendants and the defendants executed an agreement of sale agreeing to sell the suit schedule property. Though, there was a condition imposed in the grant certificate that, the defendants should not alienate the suit schedule property, but, the defendants have executed an agreement of sale. This issue was considered by the judgment of Hon'ble Apex Court in Case of Munishamppa V/s. M.Ramareddy and others in Civil Appeal No.10327/2011 disposed of on 02.11.2023 wherein the Hon'ble Apex Court held that,

"The Agreement to Sell is not a conveyance; it does not transfer ownership rights or confers any title. What is prohibited or barred under the Fragmentation Act was the lease/sale/conveyance or transfer of rights. Therefore,the Agreement to Sell cannot be

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said to be barred under the Fragmentation Act. The appellant filed the suit for specific performance after the repeal of the Fragmentation Act. The suit could have been decreed without there being any violation to the law once the Fragmentation Act itself had been repealed in February 1991."

10. Though admitted as on the date of execution of a sale agreement there was a condition in the grant certificate Ex.D1 that, the grantee shall not alienate the suit schedule properties. Mere execution of an agreement of sale is not conveyance as observed by Hon'ble Apex Court in the case of Munishamppa V/s. M.Ramareddy and others. The courts below have concurrently recorded a finding of fact that, the plaintiff has proved the execution of an agreement of sale and also the plaintiff was/is ready and willing to perform his part of the contract. On the contrary, the defendants have committed a breach of contract. The Trial Court has rightly exercised its discretion under Section 20 of the Specific Relief Act and rightly granted a relief of Specific Relief of a Contract. The appellate Court, on reassessment of oral and documentary evidence, has rightly affirmed the judgment and decree

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passed by the Trial Court. I do not find any error in the impugned judgments or any Substantial Question of Law that arises for consideration in this appeal. Accordingly, I proceed to pass the following order.

ORDER

i) The Appeal is dismissed.

ii) The Judgments and Decrees passed by the Courts below are hereby confirmed.

iii) No order as to the costs.

iv) In view of dismissal of the appeal, IA No.2/2023 does not survive for consideration. Accordingly IA No.2/2023 disposed of.

Sd/-

(ASHOK S.KINAGI)

JUDGE

RCK

List No.: 3 Sl No.: 14