Latif S/O.Mohammed Gouse Sab vs Shankrappa S/O. Sangappa ...
2022 Latest Caselaw 2396 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 15TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 R.S.A.NO.5563 OF 2013 (DEC)
                             C/W
                    R.S.A.NO.6158 OF 2012

IN R.S.A. NO. 5563/2013
BETWEEN:
LATIF S/O. MOHAMMED GOUSE SAB
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. 8TH WARD, NEAR RAVIRAJU BUILDING,
BHAGYANAGAR, TQ AND DIST: KOPPAL
                                                 ... APPELLANT
( BY SRI. B. SHARANABASAVA, ADV.,)

AND
1.    SHANKRAPPA S/O. SANGAPPA NINGALABANDI
      AGE: 42 YEARS, OCC: PETTI BUSINESS,
      R/O. BHAGYANAGAR, TQ AND DIST: KOPPAL

2.    ASHOK S/O. GANGADHARASA KALABANJAN
      AGE: 42 YEARS, OCC: PETTY BUSINESS,
      R/O. BHAGYANAGAR, TQ AND DIST: KOPPAL

                                               ... RESPONDENTS
(BY SRI. DEEPAK MAGANUR, ADVOCATE)
      THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.02.2012 IN
R.A.NO.39/2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-I, KOPPAL AND THE JUDGMENT AND DECREE DATED
                              2




15.12.2010 IN O.S.NO.8/2009 PASSED BY THE CIVIL JUDGE AND
J.M.F.C., KOPPAL BY ALLOWING THIS REGULAR SECOND APPEAL
AND DISMISSING THE SUIT OF THE PLAINTIFFS, IN THE INTEREST
OF JUSTICE AND EQUITY.


IN R.S.A. NO.6158/2012
BETWEEN
1.   SHANKRAPPA S/O SANGAPPA NINGALBANDI,
     AGE: 41 YEARS, OCC: PETTI BUSINESS,
     R/O: BHAGYANAGAR, TQ AND DIST: KOPPAL,
     PIN CODE 583 231.

2.   ASHOK S/O GANGADHARASA DALABANJAN,
     AGE: 41 YEARS, OCC: PETTI BUSINESS,
     R/O: BHAGYANAGAR, TQ AND DIST: KOPPAL,
     PIN CODE : 583 231.
                                              ... APPELLANTS

(BY SRI. DEEPAK MAGANUR, ADVOCATE)

AND:
LATIF S/O. MOHAMMED GOUSE SAB
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O. 8TH WARD, NEAR RAVIRAJU BUILDING,
BHAGYANAGAR, TQ AND DIST: KOPPAL
                                              ... RESPONDENT
( BY SRI. B. SHARANABASAVA, ADV.,)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.02.2012 IN
R.A.NO.31/2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-I, KOPPAL CONFIRMING THE JUDGMENT AND DECREE
DATED 15.12.2010 IN O.S.NO.8/2009 PASSED BY THE CIVIL JUDGE
AND J.M.F.C., KOPPAL AND DECREE THE SUIT OF THE PLAINTIFFS
                                          3




AS PRAYED FOR BY ALLOWING THIS APPEAL, IN THE INTEREST OF
JUSTICE AND EQUITY.


      THESE REGULAR SECOND APPEALS COMING ON FOR
ADMISSION, THIS COURT DELIVERED THE FOLLOWING:

                                   JUDGMENT

These two captioned appeals are filed by plaintiff as well

as defendant. RSA No.5563/2013 is filed by the defendant

questioning the judgment and decree passed in

R.A.No.39/2011 and O.S.No.8/2009 whereas RSA

No.6158/2012 is filed by the plaintiffs questioning the

judgment and decree passed by the Courts below insofar as

relief of declaration, which is negatived by the Courts below.

2. The parties are referred as per their ranks before

the Trial Court.

3. The facts leading to the case are as under:

The plaintiff filed a suit for declaration and injunction in

O.S.No.8/2009. Plaintiff claims that the defendant is the

owner of the property comprising survey No.718/2A

measuring 2 acres 13 guntas. Plaintiff further pleaded that the

defendant intended to develop the suit land and use it for non-

agricultural purposes by forming a layout. On account of

financial constraints, he approached the plaintiff, who rightly

agreed to invest funds for conversion of suit property. As per

mutual agreement, value of the property was fixed at

Rs.1,30,000/- per acre and therefore, the plaintiff agreed to

bear all expenses for conversion. In terms of the investment,

the defendant agreed that they have to share equally from the

sale of plots and after appropriation of amounts spent towards

conversion, all the remaining plots have to be sold and sale

price have to be equally shared by plaintiff-investor and

defendant-owner of the suit land in question. In furtherance,

an agreement also came to be entered on 21.03.1998.

Pursuant to agreement, defendant received a sum of

Rs.30,000/- from the plaintiff. The plaintiff's further claim is

that he has spent a sum of Rs.2,07,790/- for conversion of the

land. After conversion, 78 plots were formed and out of them

around 63 plots were sold by defendant and only around 15

plots are remaining.

4. Plaintiff claims ownership in terms of agreement

dated 21.03.1998. The grievance of the plaintiff is that the

defendant cannot act contrary to the terms of the agreement

detrimental to the interest of plaintiff who has invested money

in securing conversion order pertaining to the suit land and

therefore, plaintiff filed a suit seeking declaration and

consequential relief of injunction.

5. The defendant, on receipt of summons, appeared

and contested the proceedings before the Trial Court. He

stoutly denied the entire averments made in the plaint by

specifically contended that the money received from the

plaintiff was a hand loan and in terms of agreement for having

rendered services, he has already paid the commission to the

plaintiff in respect of plots already alienated. Per contra,

defendant contended that it is plaintiff, who has retracted

from the terms and is acting contrary to the terms of

agreement and therefore, claimed that the present suit filed is

on fictitious grounds and hence, prayed for dismissal of the

suit. The defendant also contended that the alleged agreement

dated 21.03.1998 was not executed out of free will. The Trial

Court having assessed the oral and documentary evidence

answered issue No.1 in negative by holding that agreement

dated 21.03.1998 was executed out of free will and consent

and same binds on defendant/owner of the suit land. The Trial

Court also answered issue No.2 in affirmative holding that the

plaintiff has succeeded in proving that he has paid

Rs.2,07,790/- to the defendant for getting the land converted

into non-agricultural purpose.

6. However, while examining issue No.3, the Trial

Court has answered the same in negative by holding that the

plaintiff is not joint owner of the suit property. Feeling

aggrieved by the finding recorded by the Trial Court on Issue

No.1, the defendant preferred an appeal in RA No.39/2011,

whereas plaintiff preferred an appeal in RA No.31/2011. The

Appellate Court clubbed both the appeals and having

independently assessed the oral and documentary evidence

has proceeded to dismiss both the appeals. It is against these

judgment and decree of both the Courts below, the plaintiff as

well as the defendant have preferred these regular second

appeals.

7. Heard the learned counsel for the plaintiff and the

learned counsel appearing for the defendant. Perused the

judgments under challenge. The plaintiff claims that defendant

has executed an agreement on 21.03.1998 and therefore,

claims that in terms of an agreement, he is entitled for equal

share in the sale proceeds. However, defendant, who is owner

of the suit land claims that he has received a sum of

Rs.2,07,790/- as a hand loan and having repaid the loan, the

question of sharing amount from sale transactions in equal

proportion would not arise as he is absolute owner of the suit

land and therefore, plaintiff is not entitled for any share in the

sale consideration on account of sale of plots. Both the Courts

below have meticulously examined the agreement marked at

Ex.P5 and have come to the conclusion that defendant has

voluntarily executed an agreement and under the agreement

has agreed that after sale of plots, the amount received

towards sale consideration would be equally shared by the

plaintiff and defendant. Having examined this recital, which is

reproduced by the Trial Court at paragraph 10 has come to

the conclusion that defendant is bound by agreement dated

21.03.1998. It is on these set of reasons, the Trial Court has

held that defendant is estopped from denying the right of

plaintiff in claiming half share in the sale transaction on

account of sale of plots. However, while dealing with issue

No.3, has rightly answered it in negative and same is

confirmed by the First Appellate Court. The plaintiff has

acquired a right to claim share in the sale consideration

pursuant to agreement dated 21.03.1998. That itself would

not create right and title in favour of the plaintiff. The plaintiff

based on the agreement dated 21.03.1998 is asserting right

and claiming title over the suit land, which is impermissible in

law. Under the agreement, the plaintiff has invested money

and defendant, who is the owner of the land in question, has

agreed to share sale transaction after selling the plots.

Therefore, by this agreement, the plaintiff cannot assert

ownership over the property in question. Therefore, both the

Courts were justified in denying the relief of declaration in

favour of plaintiff. Therefore, the concurrent findings recorded

by both the Courts below in holding that defendant is bound

by agreement dated 21.03.1998 and also holding that the

plaintiff is only entitled to claim a share in the sale

consideration after selling of plots and not entitled for the

relief of declaration is based on legal evidence on record. Both

the parties are bound by the terms and conditions enumerated

in the agreement dated 21.03.1998 as per Ex.P5. Therefore,

no substantial question of law is involved in both the appeals.

Accordingly, both the appeals stand dismissed being devoid of

merits.

8. In view of disposal of the appeals, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE YAN