Gangappa S/O. Kallappa Kori vs Basavanni @ Tammanna ...
2022 Latest Caselaw 5885 Kant

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           IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 1ST DAY OF APRIL, 2022

                        PRESENT
       THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
           RSA NO.100426 OF 2015 (DEC & INJ)
BETWEEN:

SRI. GANGAPPA S/O. KALLAPPA KORI
AGE: 65 YEARS,
OCC: AGRICULTURE
R/O. HOGARTI, TQ: BAILHONGAL
DIST: BELAGAVI
                                          ...APPELLANT
(BY SMT. PALLAVI S. PACHHAPURE, ADV.)

AND:

     SRI. BASAVANNI @ TAMMANNA
     S/O.MALLAPPA GOUDAR @ PATIL
     SINCE DECEASED BY HIS LRS

1.   SRI. BASAPPA
     S/O. BASAVANNEPPA @
     TAMMANNA GOUDAR @ PATIL
     AGE: 40 YEARS,
     OCC: AGRICULTURE,
     R/O.: HANAMANATTI,
     TQ: BAILHONGAL
     DIST: BELAGAVI - 590 001.

2.   SMT. KASTUREWWA
     W/O.MAYAPPA HANABAR,
     AGE: 35 YEARS,
                            2


     OCC: HOUSEHOLD WORK AND
     AGRICULTURE,
     R/O. YARAGATTI, TQ: SAUNDATTI,
     DIST: BELAGAVI - 590 001.

3.   SRI. REVANASIDDAPPA
     S/O. BASAPPA GURAVANAVAR,
     AGE: 73 YEARS,
     OCC: AGRICULTURE
     R/O.:SUTAGATTI, TQ: BAILHONGAL,
     DIST: BELAGAVI - 590 001.

4.   SRI. YALLAPPA
     S/O. BASAPPA GURAVANAVAR,
     AGE: 70 YEARS,
     OCC: AGRICULTURE,
     R/O. SUTAGATTI,
     TQ: BAILHONGAL,
     DIST: BELAGAVI - 590 001.

5.   SRI. DUNDAPPA
     S/O. BASAPPA GURAVANAVAR
     AGE: 69 YEARS,
     OCC: RTD., GOVT. SERVANT AND
     AGRICULTURE,
     R/O. SUTAGATTI,
     TQ: BAILHONGAL
     DIST: BELAGAVI - 590 001.

6.   THE ASSISTANT DIRECTOR OF LAND RECORDS,
     BAILHONGAL,
     TAL:BAILHONGAL,
     DIST:BELAGAVI.
                                         ...RESPONDENTS
(BY SRI. S.H.MITTALKOD, ADV. FOR R5;
 SMT. GIRIJA S. HIREMATH, HCGP FOR R6;
 R1 TO R4 SERVED)
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     THIS APPEAL IS FILED UNDER SECTION 100 OF THE CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2014
PASSED IN R.A. NO.12/2012, ON THE FILE OF THE SENIOR
CIVIL JUDGE, BAILHONGAL, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 17.4.2012
AND THE DECREE PASSED IN O.S NO.44/2002 ON THE FILE OF
THE ADDL. CIVIL JUDGE, BAILHONGAL, DISMISSING THE SUIT
FILED FOR DECLARATION AND INJUNCTION.

        THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

The present appeal by plaintiff assailing the

concurrent findings of the Courts below in RA No.12/2012

dated 26.09.2014 on the file of the Senior Civil Judge,

Bailhongal, confirming the judgment and decree dated

17.04.2012 in OS No.44/2002 on the file of the Additional

Civil Judge, Bailhongal.

2. The parties herein are referred to as per the

ranking before the trial Court.

3. Heard the learned counsel for the parties and

perused the materials on record.

4. The suit for declaration and permanent injunction

to declare that the sale deed dated 14.08.1997 in favour of

defendant No.4 is null and void and for consequential relief

of permanent injunction against defendant No.4. In the

alternative, the plaintiff also sought for an injunction

against defendant No.4 not to dispossess the plaintiff's

family without due process of law.

5. The suit property is 25 guntas in Survey No.22/2

of Sutagatti village out of total extent measuring 2 acres 30

guntas. It is averred by the plaintiff that the plaintiff is the

owner in possession of 1 acre 15 guntas having been

purchased by the plaintiff's father and the remaining 1 acre

15 guntas purchased by the father of the defendant No.1 by

name Mallappa son of Thammanna Goudar.

6. It is further averred due to non-feasibility to use

the land for cultivation as the land purchased by the father

of the plaintiff was slopping towards the land of the

defendant and in order to resolve, it was eventually agreed

between the father of the plaintiff and the father of

defendant No.1 by way of oral agreement to sell the suit

schedule property i.e. 25 guntas abutting Eastern side of

the purchased property. In the meanwhile, on coming into

force of the Land Reforms Act, the suit property vested with

the Government and the father of defendant Nos.2 and 3

sought for occupancy rights in respect of the property

measuring 1 acre 15 guntas, which was belonging to the

father of defendant No.1. It is averred that subsequently,

in the year 1996, an agreement to sell was entered into

between defendant No.1 and the brother of the plaintiff

namely, Basalingappa.

7. It is contended that in the meanwhile defendant

Nos.1, 2 and 3 and father of defendant No.1 without the

knowledge of the plaintiff in spite of there being an

agreement of sale, executed a sale deed in favor of

defendant No.4. On this ground, filed a suit for declaration

and injunction.

8. Defendant Nos.1 and 2 filed their written

statement admitting the plaint averments. However,

defendant Nos.3 and 5 did not choose to file written

statement. Defendant No.4 filed his written statement and

denied the plaint averments contending that he has

purchased the property to an extent of 1 acre 15 guntas

from defendant Nos.1, 2 and 3 and the father of defendant

No.1 and thus, would contend that he is a bona fide

purchaser for valuable consideration by way of a registered

Sale Deed dated 14.08.1997 and thus, sought for dismissal

of the suit of the plaintiff.

9. The trial Court based on the pleadings framed the

following issues:-

ISSUES

1. Whether the plaintiff proves that, the sale deed executed on 14.8.97 in respect of the suit schedule property in favour of defendant No.4 is created and null and void?

2. Whether the plaintiff further proves that he is in possession of suit schedule property?

3. Whether the plaintiff further proves the alleged interference cause by defendant No.4 to the suit schedule property?

4. Whether the plaintiffs are entitle for the relief as sought for?

5. What order or decree?

10. The trial Court dismissed the suit of the plaintiff

holding that the plaintiff has failed to prove that the Sale

Deed executed on 14.08.1997 in favor of defendant No.4 is

not proved by the plaintiff as null and void.

11. On the appeal filed by the plaintiff, the First

Appellate Court, on re-appreciation of the materials and

evidence on record held that the plaintiff has failed to prove

that the sale deed executed in favor of defendant No.4 is

null and void and that he is in possession of the suit

schedule property.

12. Heard Smt. Pallavi S Pachhapure, learned counsel

for the appellant and Sri S.H. Mittalkod, learned counsel for

respondent No.5 as also learned High Court Government

Pleader for respondent No.6

13. The grounds to seek a declaration that the sale

deed is null and void is that, the plaintiff has a legal right by

way of Ex.P.13-the agreement of sale and the agreement

having been once entered in between the father of the

plaintiff and the father of defendant No.1, now the

defendant No.1 cannot contend and execute the sale deed

in favor of defendant No.4.

14. Ex.P.13 is the agreement which is said to have

been entered between the father of the plaintiff and the

father of defendant No.1 agreeing to sell the suit schedule

property in favor of the father of the plaintiff herein. It is

undisputed that the plaintiff has not filed a suit for specific

performance of contract of sale on the basis of Ex.P.13. It

is well settled law that an agreement to sell creates a right

in personam and it does not create any right in the

property. An agreement to sell gives a right to the

proposed purchaser to bring a suit for specific performance

of contract, but he cannot claim any interest in the property

till his suit for specific performance is decreed as held by

the Hon'ble Supreme Court in Ram Baran Prasad vs.

Ram Mohit Hazra and others reported in AIR 1967 SC

744 and in Jiwan Dass Rawal vs. Narain Dass and

others reported in AIR 1981 Delhi 291.

15. The Ex.P.1- Sale deed executed in favour of

defendant No.4 is not a void or a voidable document and

the plaintiff has no legal right or a locus standi to challenge

Ex.P.1-Sale Deed. Section 31(1) of the Specific Relief Act

reads as under:

"31. When cancellation may be ordered.

31(1). Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled."

As per Section 31(1) of the Specific Relief Act, to hold a

document as void or voidable against a person, the said

person should have a legal right which admittedly in the

present case as per Ex.P.13, no valuable right has been

created in favour of the plaintiff and Ex.P.13 is not sought

to be enforced in any court of law at the first instance. The

validity or the right of defendant No.1 to execute Ex.P.13

need not be considered in the present circumstance as the

suit is not for specific performance of contract seeking to

enforce the agreement at Ex.P.13. What can be gathered

from the facts is that the plaintiff in the guise of having a

right as per Ex.P.13, which is not valid in the eye of law, is

seeking for a declaration that the sale deed executed in

favour of defendant No.4 is null and void, which right is not

available to the plaintiff as contemplated under Section

31(1) of the Specific Relief of Act.

16. On perusal of the judgment and decree of the

Courts below and material on record clearly establish that a

right is not conferred on the plaintiff merely on the basis of

an agreement to sell.

17. For the reasons stated supra and in view of

concurrent of findings of facts of the courts below, this

court is of the considered opinion that no substantial

questions of law arises for consideration in the present

appeal.

18. In the result, this court pass the following:

ORDER

(i) The appeal is hereby dismissed as devoid

of merits.

(ii) No order as to costs.

Sd/-

JUDGE

Vmb/Pj