Karnataka High Court
Sri Muniswamy vs Sri Nissar Ahmed on 27 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:23888
RSA No. 985 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 985 OF 2014 (SP)
BETWEEN:
SRI.MUNISWAMY,
S/O MEKALLAPPA,
AGED ABOUT 80 YEARS
R/A KADIREGOWDANAKOTE VILLAGE,
KAMMASAMUDRAM POST,
BANGARPET TALUK - 563 114.
...APPELLANT
(BY SRI. NATARAJ H.C., ADVOCATE)
AND:
1. SRI. NISSAR AHMED
S/O. LATE SHAIK ABDULLA,
R/AT NEAR CIVIL HOSPITAL COMPOUND,
Digitally signed ROBERTSONPET, KGF 563125,
by
NARAYANAPPA SINCE DEAD BY HIS LRS
LAKSHMAMMA
Location: HIGH
COURT OF 1(A). SMT ZARIN TAJ
KARNATAKA W/O LATE NISSAR AHMED,
AGED ABOUT 45 YEARS,
R/AT MANGAMMAPALYA,
HOSUR ROAD,
BEHIND BILLAL MASJID,
BANGALORE - 560 099.
1(B). SRI. MASOOD AHMED,
S/O. LATE NISSAR AHMED,
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RSA No. 985 of 2014
AGED ABOUT 25 YEARS,
R/AT MANGAMMAPALYA,
HOSUR ROAD,
BEHIND BILLAL MASJID,
BANGALORE - 560 099.
1(C). SMT. SHABARIM TAJ
D/O. LATE NISSAR AHMED,
W/O SYED ALI,
AGED ABOUT 35 YEARS,
R/AT RALLABUDUGUR,
KUPPAM TALUK - 517 425.
1(D). SMT. NASEERN TAJ
D/O LATE NISSAR AHMED,
W/O HIDAYUTULLA,
AGED ABOUT 33 YEARS,
R/AT KANCHETTAHALLI,
MALUR TALUK - 563 130.
1(E). SMT. YASIM TAJ,
D/O LATE NISSAR AHMED,
W/O AMJADULL,
AGED ABOUT 31 YEARS,
R/AT TANNEY ROAD,
HIDAYAT NAGAR,
8TH CROSS,
BANGALORE - 560 045.
1(F). SMT. AHMADHI ANJUM,
D/O LATE NISSAR AHMED,
W/O WASEEM REHAMAN,
AGED ABOUT 28 YEARS
R/AT PEENYA 2ND STAGE,
HEGANAHALLI CROSS,
BANGALORE - 560 110.
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NC: 2024:KHC:23888
RSA No. 985 of 2014
1(G). SMT. SALMA ANJUM,
D/O LATE NISSAR AHMED,
W/O LATE RAIFQ,
AGED ABOUT 22 YEARS,
R/AT ARAHALLI,
HASSAN DISTRICT - 573 201.
...RESPONDENTS
(BY SRI. RAVINDRANATH K., ADVOCATE R1(A) TO R1(G))
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 15.04.2014 PASSED IN
R.A.NO.20/2012 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE
AND JMFC., K.G.F, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 13.04.2012
PASSED IN O.S.NO.250/2003 ON THE FILE OF PRL. CIVIL
JUDGE AND ADDL. JMFC, KGF.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant who was the defendant in OS.No.250/2003 and respondent in RA.No.20/2012 is before this Court challenging the divergent judgment of the First Appellate Court seeking for the following reliefs:
"WHEREFORE, the Appellant above named humbly prays that this Hon'ble Court may kindly be pleased to:
(a) Call for records. -4-
NC: 2024:KHC:23888 RSA No. 985 of 2014
(b) Set aside the Judgment and Decree passed in R.A.No.20/2012 dated 15.04.2014, passed by the Additional Senior Civil Judge and J.M.F.C at K.G.F, which reverses the Judgment and Decree dated 13.04.2012 passed by the Civil Judge Junior division at K.G.F in O.S.No.250/2003 and consequently dismiss the suit O.S.No.250/2003.
(c) Pass such relief as deem fit by this Hon'ble Court, in the interest of justice and equity."
2. The suit in OS.No.250/2003 was filed by the deceased respondent No.1 for specific performance of an agreement dated 14.08.1988 contending that it is only after the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act 1966, (for short 'Fragmentation Act') was repealed, that the plaintiff had issued a notice, calling upon the defendant to execute a sale deed, the defendant not having executed the sale within the time frame, even after having admitted the agreement, the relief of specific performance has been sought for.
]
3. The trial Court dismissed the said suit on the ground that the suit was barred by limitation. The Fragmentation Act having been repealed on 03.01.1991, the suit ought to -5- NC: 2024:KHC:23888 RSA No. 985 of 2014 have been filed within three years of the date of such repeal that is by 02.01.1994. The suit having been filed in the year 2003 was beyond the period of limitation and as such, the suit being one for specific performance, the delay in filing the suit, apart from the suit being barred by limitation would not require the trial Court to exercise its powers to grant discretionary relief of specific performance.
4. The First Appellate Court vide the judgment dated 15.04.2014 set-aside the judgment of the Trial Court and decreed the suit for specific performance, on the ground that the plaintiff had established his readiness and willingness for execution and registration of a sale deed. The plaintiff having issued a notice on 04.03.2003 in terms of Ex.P2, the defendant having replied for the same on 10.03.2003 at Ex.P3, the suit having been filed on 05.08.2003, the suit was within time. It was for the reason that in the reply there is no refusal as such and taking into consideration that the agreement was subsisting, the First Appellate Court exercising the -6- NC: 2024:KHC:23888 RSA No. 985 of 2014 discretion under Section 20 of Specific Relief Act, granted the relief of Specific Performance. It is challenging the said judgment, the appellant is before this Court.
5. The above appeal was admitted on 05.12.2022 to answer the following substantial question:-
"Whether the First Appellate Court is justified in holding that the suit for specific performance is in time despite the law relating to the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 was amended in 1991 and the restriction relating to alienation was removed in the year 1991 itself?"
6. Learned counsel for the appellant submits that there being a clause in the agreement of sale at Ex.P1 that the sale has to be executed after the repeal of the Fragmentation Act. The repeal has occurred on 03.01.1991, claim for execution of the sale deed was to be made and in the event of not being executed to initiate such proceedings as may be necessary in relation thereto within a reasonable period of time. The cause of action arose for the first time on 03.01.1991 when the Fragmentation Act stood repealed and it is on such repeal -7- NC: 2024:KHC:23888 RSA No. 985 of 2014 that the plaintiff was entitled to seek for specific performance of the agreement of sale. The cause of action in this case is not one as determined by the parties, but one determined on the basis of an act of the State in repeal of the Fragmentation Act. There is no obligation on the part of the vendor to do anything post the repeal of the Fragmentation Act, thus it was for the plaintiff to have sought for the execution of sale deed within three years from the said repeal. The plaintiff not having done so, a notice came to be issued only on 04.03.2003 as per Ex.P2, which is nearly nine years after the period of limitation came to an end, even considered that the repeal has occurred in the year 1991.
7. This delay has remained completely unexplained and no explanation could be given thereto in terms of Article 54 of the Limitation Act, the limitation period fixed for suit for specific performance is three years which needs to be calculated from the date fixed for the performance if no date is fixed from the date when the plaintiff has received notice of refusal of such performance. -8-
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8. In the present case the date for performance has been fixed to be the date of repeal of the Fragmentation Act, the date which is required to be taken into consideration is 03.01.1991 and the date having been so in terms of Article 54, the period of limitation for any suit by 02.01.1994. Notice itself having been issued on 04.03.2002 and the suit having been filed on 05.08.2003 is way beyond the period of limitation and is, therefore barred by limitation. As such, I answer the substantial question raised by holding that the First Appellate Court was not justified in applying the principles of Section 20 of the Specific Relief Act to grant a relief of specific performance and has also misapplied Article 54 of the Limitation Act. Since the calculation of period of limitation was required to be made from the date of repeal that being the date fixed for performance and not on the basis of a notice being issued by applying Section 20 of the Specific Relief Act.
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9. In that view of the matter, I pass the following ORDER i. The above second appeal is allowed. ii. The judgment and decree passed in RA.No.20/2012 dated 15.4.2014 passed by the Additional Senior Civil Judge and JMFC, K.G.F is set-aside. iii. The judgment and decree passed by the Principal Civil Judge and Additional JMFC, K.G.F in OS.No.250/2003 is confirmed. The suit stands dismissed.
iv. Needless to say that since the relief for specific performance has been rejected. However, there is a clear admission made by the defendant that a sum of Rs.5,000/- been received in full and final settlement of sale consideration, the defendant is directed to refund the said amount along with 6% interest from the date of receipt by the deceased first defendant, till the receipt thereof by the plaintiff. The said amount shall be refunded within a period of two months from today.
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NC: 2024:KHC:23888 RSA No. 985 of 2014 v. Pending I.A's do not survive for consideration and stand dismissed.
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JUDGE p PK List No.: 1 Sl No.: 47