C.V.Raju vs C.G.Shankar
2022 Latest Caselaw 1057 Kant

                        1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 24TH DAY OF JANUARY, 2022

                     BEFORE

   THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

   REGULAR SECOND APPEAL No.1380 OF 2014 (SP)

BETWEEN:

C.V.RAJU
S/O C.V.VENKATAPPA,
AGED ABOUT 52 YEARS,
R/O NEAR TALUK OFFICE,
CHIKKANAYAKANAHALLY TALUK,
TUMKUR DISTRICT-572214.            ... APPELLANT

(BY SRI.K.S.RAMASWAMY IYENGAR, ADVOCATE)

AND:

C.G.SHANKAR
S/O C.H.GUDDAIAH,
AGED ABOUT 57 YEARS,
R/O ASHOKA STREET CENTRE,
B.H.ROAD,
CHIKKANAYAKANAHALLY TOWN,
TUMUKUR DISTRICT-572214.         ... RESPONDENT

(BY SRI.S.RAJENDRA, ADVOCATE]

     THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC., AGAINST THE JUDGMENT & DECREE DATED
11.07.2014 PASSED IN R.A.NO.130/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE, ITINERATE COURT, C.N.HALLI
DISMISSING THE APPEAL AND CONFIRMING THE
                                2
JUDGMENT AND DECREE DATED 05.11.2013 PASSED IN
OS.NO.73/2010 ON THE FILE OF THE PRL. CIVIL JUDGE &
JMFC., CHIKKANAYAKANAHALLI.

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


                       JUDGMENT

1. This is a second appeal by the unsuccessful plaintiff.

2. The plaintiff contended that the 13 guntas of the

land bearing Sy.No.301/7 situated at Dabbegatta Village

was purchased by the defendant and the plaintiff jointly for

a valuable consideration of Rs.8,000/- and the plaintiff had

contributed 50% of the sale consideration and also

towards the expenditure incurred for getting the

instrument registered. It was stated that since, there was

a prohibition for creating a fragment under the Provisions

of Karnataka Prevention of Fragmentation and

Consolidation of Holdings Act,1966, the entire 13 guntas of

land was registered in the name of defendant. It was

further stated that since, the plaintiff had contributed

equally to the sale deed and he possessed a right over the

half portion of the land, an agreement of sale was

executed on 06.06.1989 whereby the defendant had

agreed to convey six and half guntas of land. The plaintiff

also contended that the conveyance was to be executed

after obtaining the conversion of land and the expenses of

conversion would also be contributed in equal proportion.

It was alleged that the conversion was not procured and

the Fragmentation Act having been repealed, a demand

was made by the plaintiff to the defendant to execute sale

deed, but there was no response from the defendant and

hence, the plaintiff filed the suit.

3. The defendant contested the suit stating that he had

purchased the entire 13 guntas of land bearing

Sy.No.301/7 from one Gangamma and it was not a joint

purchase as alleged. It was stated that pursuant to the

registration, the revenue records were transferred in his

name and he was enjoying the same as its absolute owner.

He further contended that the plaintiff was a chronic

litigant before the Courts and a criminal cases had been

filed against him also. He stated that the plaintiff had

colluded with some of the sales man and committed theft

of the properties of the plaintiff, for which, he had lodged a

complaint before the police and a criminal case was

registered against him. It was alleged that in the said case,

number of properties had been recovered from the plaintiff

and thereafter, the defendant took possession of the same

through the Court. It was stated that the plaintiff nursing a

grudge towards the defendant, had committed theft of old

stamp papers and concocted the alleged agreement and

had forged his signature. It was also stated that since the

agreement was of the year 1989, the suit should have

been filed within three years, whereas the suit had been

filed after a lapse of 20 years of the alleged agreement and

therefore, the suit was clearly barred by limitation.

4. The Trial Court, on consideration of the evidence,

recorded a finding that the plaintiff had failed to prove that

the defendant had executed an agreement of sale in

respect of half portion of the 'A' schedule property. The

Trial Court also recorded a finding that the defendant had

purchased the entire 'A' schedule property from one

Gangamma and was in possession and enjoyment of the

said property. The Trial Court also found that the suit was

hopelessly barred by limitation. Consequently, the suit was

dismissed.

5. The plaintiff, being aggrieved by the dismissal,

preferred an appeal. The Appellate Court on re-

appreciation of the evidence concurred with the findings of

the Trial Court that the entire 'A' schedule property was

purchased exclusively by the defendant and it was not a

joint purchase. The Appellate Court also recorded a finding

that the agreement of sale had not been proved.

6. Lastly, the Appellate Court recorded a finding that

the agreement of sale was of the year 1989 and

Fragmentation Act was repealed on 03.12.1990 and the

suit has been filed after a lapse of 19 years and it was

therefore, it was clear that the suit was hopelessly barred

by limitation. The Appellate Court accordingly, confirmed

the judgment of the Trial Court and dismissed the appeal.

7. Being aggrieved by the concurring judgments, the

present second appeal has been filed.

8. Learned counsel for the appellant contended that

both the Courts below have not appreciated the evidence

in the proper perspective. He submitted that the plaintiff

was a signatory to the sale deed executed in favour of the

defendant and this by itself proved the contention urged

by the plaintiff that the property had been purchased

jointly.

9. It is to be stated here that on appreciation of the

evidence of PWs.1 to 4, the Trial Court as well as Appellate

Court have recorded a clear finding of fact that the plaintiff

was unable to establish that the agreement of sale had

been executed in favour of him. This finding, being a

finding of fact, cannot be reexamined in this second

appeal.

10. It is also not in dispute that the agreement of sale

was stated to have been executed on 06.06.1989 and in

the said agreement of sale, a recital was also found that

the sale deed was required to be executed after the

Fragmentation of the Act was repealed. It cannot be in

dispute that the Karnataka Prevention of Fragmentation

and Consolidation of Holdings Act, 1966 was repealed on

03.12.1990 and despite the repeal in the year 1990, the

suit was filed in the year 2010 i.e,. after lapse of 20 years.

This by itself, proves that the suit was hopelessly barred

by limitation.

11. The contention of learned counsel for the appellant

that the agreement of sale contained a recital that the sale

deed would be executed after getting conversion and since

the land remained unconverted, there was no starting

point of limitation at all. This agreement cannot be

accepted.

12. A purchaser who claims to have paid the entire

consideration and had also agreed to pay conversion

expenses would not obviously keep quiet for a period of

twenty years to obtain sale deed.

13. In my view, the findings recorded by both the Courts

that the agreement of sale has not been proved and that ,

the suit as filed was hopelessly barred by limitation, cannot

found fault with.

14. There is absolutely no question of law, much less, a

substantial question of law arising for consideration in this

appeal.

15. Consequently, the second appeal is dismissed.

Sd/-

JUDGE

JS/-