Muthu Poojarthi vs Paddu Shedthi
2021 Latest Caselaw 248 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 06TH DAY OF JANUARY, 2021

                           BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

       REGULAR SECOND APPEAL NO.1578 OF 2019

Between:

Muthu Poojarthi
Since deceased

Shekara Poojary
Since deceased

     1. Sunanda Poojary
        W/o late Shekara Poojary
        Aged about 51 years

     2. Sandeep Poojary
        S/o late Shekara Poojary
        Aged about 51 years

     3. Prameela Poojary
        D/o late Shekara Poojary
        Aged about 27 years

        All are R/at D.No.2-1-41
        Gundibail Ward
        Udupi City Municipality
        Kunjibettu Post
        Udupi Taluk-576 102.
                                               ...Appellants
(by Shri Uday Kumar H.B., Advocate)
                                 2




And:

Paddu Shedthi
Since deceased

       1. Raghurama Shetty
          S/o Paddu Shedthi alias Shetty
          Aged about 63 years
          R/at Moodanidamboor Village
          Udupi Taluk-576 101.

       2. Baby B Shetty
          D/o Paddu Shedthi alias Shetty
          Aged about 69 years
          R/at 201, G Wing
          'Hari Om Park'
          Behind Cabin Road
          Bhavani Chawk
          Ambarnath (E) Thane District
          Maharashtra- 421 501.

       3. Sunanda Shivarama Shetty
          D/o Paddu Shedthi alias Shetty
          Aged about 66 years
          R/at No.7/B, Raja Shree Apartment
          86 Near Narayan Society
          Opp:Maha Dev Temple
          Dakshini Road, Mani Nagar
          Ahmedabad,
          Gujarat-380 008.

       4. Laxmi Sudhakara Shetty
          D/o Paddu Shedthi alias Shetty
          Aged about 54 years

       5. Shantarama Shetty
          S/o Paddu Shedthi alias Shetty
          Aged about 61 years
                                 3




        Respondent Nos. 4 & 5 are
        R/at A/11/379, Sector 2
        Petro Chemical Township IPCL
        Baroda
        Gujarat State-391 310.

     6. Jayarama Shetty
        S/o Paddu Shedthi alias Shetty
        Aged about 52 years
        R/at Matadabettu
        Moondanidamboor Village
        Udupi Taluk-576 101.

     7. Ramani M. Shetty
        D/o Paddu Shedthi alias Shetty
        Aged about 49 years

        R/at N.R. Old Barrack R.T.42/512
        Indira Nagar, Near Mohan Pawar
        Chemboor Camp, Chemboor
        Mumbai,
        Maharashtra-400 701.
                                                   ...Respondents
(by Shri R Vijayakumar, Advocate)

       This Regular Second Appeal is filed under Order XLII Rule I
r/w Section 100 of the Code of Civil Procedure against the
judgment and decree dated 27th June, 2019 passed in R.A.No.
60 of 2013 on the file of the Additional Senior Civil Judge and
ACJM, Udupi dismissing the appeal and confirming the Judgment
and Decree dated 27.04.2013 passed in OS.No.128 of 1998 on
the file of the Additional Civil Judge and JMFC, Udupi.

      This Appeal coming on for further hearing, this day, the
court delivered the following:
                                  4




                          JUDGMENT

This second appeal is preferred by the defendants in

Original Suit No.128 of 1998 on the file of the Additional Civil

Judge and JMFC, Udupi and the appellants before the First

Appellate Court.

2. For the sake of convenience, the parties in this appeal

are referred to with their status before the trial Court.

3. The respondents herein are the plaintiffs before the

trial Court. Plaintiffs have filed suit for specific performance

compelling the defendants to execute the registered sale deed in

respect of plaint 'A' schedule property in furtherance of the

agreement for sale dated 08th September, 1983. It is averred in

the plaint that, in respect of the land bearing Survey No.122/15A

measuring 50 cents of Shivalli, Udupi Taluk, the defendant No.1

had claimed occupancy right under Section 48-A(1) of the

Karnataka Land Reforms Act, 1961 (for short hereinafter

referred to as 'Act') and the Land Tribunal, Udupi, by its order

dated 18th August, 1981 granted the schedule property in favour

of the first defendant. In pursuance of the same, occupancy

certificate was issued in favour of the mother-in-law of first

defendant on 16th November, 1981 by Special Tahsildar (Land

Reforms), Udupi, and it is further averred in the plaint that the

2nd defendant and deceased-Sudhakar Poojari are the sons of

the first defendant (Muttu Poojarti). Further, it is stated that

during the lifetime of Sudhakar Poojari, he had executed special

Power of Attorney in favour of the second defendant on 03rd

September, 1983 to sell the property granted by the land

Tribunal and also entered into an agreement for sale in respect

of 'B' schedule property. The second defendant, exercising his

individual capacity and also as power of attorney holder of his

brother-Sudhakar Poojary, and the first defendant in her

individual capacity, had entered into an agreement for sale dated

08th September, 1983 with the plaintiffs agreeing to sell 50 cents

of land in survey No.122/15A of Shivalli village of Udupi Taluk

for a sum of Rs.9,500/-. In pursuance of the said agreement for

sale, the plaintiffs have paid the entire consideration amount of

Rs.9,500/- to the defendants. It is further averred in the plaint

that as the property is a granted land in terms of conditions

stipulated in the grant made by the government, the said

property could not have alienated for a period of fifteen years

from the date of granting of occupancy certificate and as such,

the said condition was also stipulated in the agreement for sale.

It is the case of the plaintiffs that though they have entered into

agreement of sale referred to above, however, the defendants

have not come forward to execute the registered sale deed in

favour of the plaintiffs and accordingly the plaintiffs filed Original

Suit No.128 of 1998 on the file of Additional Civil Judge and

JMFC, Udupi and sought for specific performance of contract

dated 8th September, 1983. After service of notice, the

defendant No.2 filed detailed written statement denying the

plaint averments. It is the case of the defendants that the first

defendant has been bedridden and become senile since quite

some time and as the first defendant is mentally unsound/infirm,

and is incapable of protecting her interest and therefore, it is

necessary to appoint a guardian for the first defendant in the

suit proceedings. It is further contended in the written

statement that since the land in question is a granted land, there

is no authority for the power of attorney holder to enter into an

agreement with plaintiffs. It is also further stated in the written

statement that even assuming that agreement has been entered

into between the parties, however, as there is stipulation in the

grant certificate itself to evidence that the grantee shall not

alienate the suit schedule property for a period of fifteen years

and as there is an embargo in the grant certificate itself, the

defendants have denied the plaint averments and accordingly

sought for dismissal of the suit. Based on the pleadings of the

parties, the trial Court has formulated as may as fourteen issues

for its consideration.

4. In order to establish the case, the plaintiff No.2

Raghuram Shetty was examined as PW1 and examined one

Seetarama Shetty as PW2 and produced seven documents and

the same were marked as Exhibits P1 to P7. The defendant has

got herself examined as DW1 and produced 20 documents which

are marked as Exhibits D1 to D20. The Trial Court, after

consideration of oral and documentary evidence adduced by the

parties and after considering the submissions made by the

learned counsel appearing for the parties therein, by its

judgment and decree dated 27th April, 2013, decreed the suit in

favour of the plaintiff and directed defendants 2(a) to 2(c) to

execute registered sale deed in respect of plaint 'A' schedule

property for a sum of Rs.9,500/- within three months from the

date of judgment. Being aggrieved by the judgment and decree

dated 27th April, 2013 passed by the trial Court, the defendants

preferred Regular Appeal No.60 of 2013 on the file of the

Additional Senior Civil Judge, Udupi. The defendant/appellants

urged certain grounds before the First Appellate Court to

controvert the findings recorded by the trial Court. The plaintiffs

entered appearance before the First Appellate Court and the First

Appellate Court, after considering the material on record, by its

judgment and decree dated 27th June, 2019, dismissed the

appeal preferred by the defendant and affirmed the judgment

and decree dated 22nd April, 2013 passed in OS No.128 of 1998

by the Additional Civil Judge and JMFC, Udupi. Being aggrieved

by the Judgments and decree passed by the Courts below,

defendants have preferred the instant second appeal.

5. Mr. Uday Kumar H.B., learned Counsel appearing for

the appellants contended that, both the Courts below, have not

appreciated the material on record in the right perspective and

further contended that, both the Courts below have not

considered the legislative intent of Section 61(1) of the Act and

Section 63 of the Indian Contract Act, 1972. He further

submitted that the alleged agreement for sale is hit by Section

23 of the Act, as the same is opposed to public policy and he

further contended that, in view of the law declared by the

Hon'ble Supreme Court in the case of JAYAMMA v. MARIA BAI

reported in AIR 2004 SC 3957, the judgments and decree

passed by the Courts below require to be set aside in this

appeal.

6. Per contra, Shri R. Vijaykumar, learned counsel

appearing for the respondent/plaintiffs contended that both the

Courts below, having considered the material on record,

concurrently held against the defendant/appellants and

therefore, the interference under Section 100 of the Code of Civil

Procedure is very limited as the defendant/appellants have not

made out a case for interference with regard to the substantial

questions of law as raised by the appellants and accordingly, he

sought for dismissal of the appeal. Shri R. Vijayakumar placed

reliance on the judgment passed by the Division Bench of this

Court in the case of PARVATAGOUDA NINGANAGOUDA PATIL

AND OTHERS v. GUDDAPPA AND ANOTHER reported in (2009)1

Kant LJ 547 and submitted that the Division Bench of this Court

has held that 'agreement to sell' is not transfer of property and

thereby Section 61 of the Act is not applicable to the case on

hand and therefore, the learned counsel submitted that the

appeal preferred by the defendant/appellants requires to be

dismissed.

7. I have carefully examined the arguments advanced by

the learned counsel for the parties as well as perused the finding

recorded by the courts below. The undisputed facts of the case

are that the plaintiffs are purchasers and defendants are sellers

and accordingly, they have entered into an agreement for sale

on 18th September, 1983. Perusal of the impugned judgments

and decree passed by the courts below would indicate that the

suit schedule property is granted by Land Tribunal, Udupi under

the provisions of Karnataka Land Reforms Act in favour of the

mother-in-law of appellant No.1. Pursuant to the grant made by

the Land Tribunal, the statutory authorities conferred occupancy

right in favour of the grantee with a stipulation that the grantee

shall not alienate the suit schedule property for a period of

fifteen years from the date of granting occupancy right as per

Exhibit D15. In furtherance of the same, statutory authority

issued Form No.10 in favour of the defendants as per Exhibit D1.

Thereafter, revenue records have been effected in favour of the

defendants. In the meanwhile, parties have entered into

agreement for sale dated 08th September, 1983. Perusal of the

same would indicate that the plaintiff has paid consideration

amount of Rs.9,500/- to the defendant/vendor despite there

being non-alienation clause for fifteen years by the Land Tribunal

and defendants had also executed General Power of Attorney in

favour of the plaintiff knowing the position of the property. I

have also carefully examined the evidence of PW1 and PW2 and

also same was analysed along with the evidence of DW2, which

would clearly indicate that there is no dispute with regard to the

execution of agreement for sale dated 08th September, 1983 by

the parties. I have carefully examined the finding recorded by

the Trial Court with regard to issues No.6 to 9 wherein the trial

Court, after consideration of the material on record as well as

the provisions contained in Section 61 of the Karnataka Land

Reforms Act, had come to the conclusion that since the parties

have entered into consensus with regard to the suit schedule

property and thereby, Section 61 of the Act is not applicable to

the case of the parties. The said finding recorded by the trial

Court is just and proper in view of the law declared by the

Division Bench of this Court in the case of PARVATAGOUDA

(supra). In the said case, at paragraphs 28 and 29, the Division

Bench of this Court has observed as follows:

"28. Admittedly, the tenancy of the suit schedule property was conferred on defendants and as per Section 61 of the Karnataka Land Reforms act, such land in respect of which occupancy right. However, subsequently by way of amendment in the year 1999 with effect from 15.02.1999 the commencement date has been altered to the date of final order passed by the Land Tribunal in place of date of registration of occupancy rights. However, in the case on hand, as the agreement was interest into on 01.05.1995, prohibition contained in unamended Section 61 would

get attracted Therefore, for a period of 15 years from the date of issuance of registration certificate, i.e. from 08.08.1982 the defendants could not have sold the property.

29. Now the question is as to whether the bar under Section 61 would come into play even in respect of agreement of sale. We see no substance in the contention of the learned Counsel for the defendants that the defendants in the light of prohibition under Section 61 could not have entered into agreement of sale. The prohibition provided under Section 61 of the Karnataka Land Reforms Act is from transferring the property by way of sale, gift, exchange, mortgage, lease or assignment. The prohibition under Section 61 dos not apply to agreement of sale. Therefore, Section 61 doe not prohibit the tenants to whom occupancy rights have been granted from entering into an agreement of sale. The agreement of sale does not amount to transfer of interest or right I the property. It merely creates a right to seek enforcement of contract under the agreement. No interest or right in the property is transferred in favour of the prospective buyer. Therefore, Section 61 does not come in the way of tenant entering into an agreement to sell the property. It is for that reason only under the agreement the defendants agreed to execute the sale deed after the expiry of 15 years from 1983. Under

these circumstances there is no substance in this contention also."

8. I have carefully considered the arguments advanced by

the learned counsel appearing for the appellants wherein he has

placed reliance on the judgment of Hon'ble Supreme Court in the

case of JAYAMMA (supra) wherein the facts of the said case is

not with regard to the transfer of property between living

persons. The case before the Hon'ble Supreme Court was with

regard to bequeathing of the property by way of testamentary

disposition. The Division Bench of this Court in the case of

PARAVATAGOUDA (supra), had opined that agreement to sell is

not transfer of property that too when there is prohibition under

Section 61 of the Karnataka Land Reforms Act with regard to

transfer of property within 15 years of registration of occupancy

certificate. Considering the law declared by the Division Bench

of this Court, being clearly applicable to the facts of the case on

hand, I do not find any good ground to accept the submission of

the learned counsel for the appellants and therefore, the

impugned judgment and decree passed by the trial Court does

not suffer from any material irregularity. Therefore, the

judgment relied upon by the learned counsel for the appellants

in the case of JAYAMMA (supra) is not applicable to the case on

hand.

9. I have also carefully gone through the finding recorded

by the first Appellate Court, wherein the First Appellate Court

has re-appreciated the factual aspects of the case and also

taking into consideration the fact that since the subject matter of

the land in question is the subject matter before the Land

Tribunal and therefore, the same would not be hit by the

provisions of the Act and since Exhibit P3 is an agreement

entered into between living persons, the First Appellate Court

has rightly confirmed the judgment and decree passed by the

trial Court, which cannot be found fault with. I have also noticed

the finding recorded by the First Appellate Court at paragraph 67

of the judgment wherein the First Appellate Court, after re-

appreciating the entire material on record, had come to a

conclusion that Exhibit P5, which is a corroborative document

with regard to establishing their case and held that granting of

relief of specific performance is discretionary in nature and the

defendants have not proved the hardship that would be caused

to them if the relief of specific performance is granted.

10. The Hon'ble Supreme Court in the case of

LAXMIDEVAMMA AND OTHERS v. RANGANATH AND OTHERS

reported in (2015)4 SCC 264, at paragraph 16 of the judgment

has observed thus:

"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. IN the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the fist plaintiff has earmarked the A Schedule property for road an that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence

and the judgment of the High Court cannot be sustained."

11. In the case of S. SUBRAMANIAN v. S. RAMASWAMY

ETC. reported in AIR 2019 SC 3056, the Hon'ble Supreme Court

at paragraphs 8.1, 8.2 and 8.5 has observed thus:

" 8.1. ... As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to reappreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.

8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the

CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous. ...

8.3 and 8.4 xxx xxx xxx

8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re- appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re-appreciate the entire evidence on record and come to its own finding

when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC."

12. The Trial Court has rightly appreciated the documents

on record in the right perspective and the same was re-

appreciated by the first Appellate Court and therefore, I do not

find any perversity in the judgment and decree passed by the

Courts below. Having considered the finding recorded by both

the Courts below, I do not find any valid ground to interfere with

the judgment and decree passed by the Courts below exercising

power under Section 100 of the Code of Civil Procedure. In that

view of the matter, since the appellants have not made out any

ground for formulation of substantial question of law, the appeal

is liable to be dismissed at the stage of Admission itself,

accordingly dismissed.

Sd/-

JUDGE

lnn