Murugesh vs T M Kashinath
2022 Latest Caselaw 513 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY, 2022

                         BEFORE

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

                R.S.A.No.32/2019(MON)

BETWEEN:

1.     MURUGESH,
       S/O KUPPUSWAMY NAIDU,
       AGED ABOUT 70 YEARS,
       AGRICULTURIST,
       RESIDING AT MALLAVADI VILLAGE,
       THIRUVANNAMALAI TALUK AND DISTRICT,
       TAMIL NADU STATE.

2      ANNA MALAI,
       S/O KUPPUSWAMY,
       SINCE DEAD BY LRs.,

2(a) SMT. UNNA MALAI,
     W/O LATE ANNA MALAI,
     SINCE DEAD BY LRs.,

2(b) KUMARA,
     S/O LATE ANNA MALAI,
     AGED ABOUT 50 YEARS,

2(c) VENKATESHA,
     S/O ANNA MALAI,
     AGED ABOUT 39 YEARS,

2(d) SHANKAR,
     S/O ANNA MALAI,
     AGED ABOUT 42 YEARS,
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2(e) SMT. KUMARI @ SELVI,
     D/O ANNA MALAI,
     AGED ABOUT 44 YEARS,
     APPELLANT Nos.1,2(b),2(c) & 2(e) ARE
     REPRESENTED BY THEIR GPA HOLDER
     SRI.SHANKAR.

       ALL ARE RESIDENTS OF
       MALLAVADI VILLAGE,
       THIRUVANNA MALAI TALUK
       AND DISTRICT, TAMIL NADU STATE.

       PRESENTLY RESIDING AT
       No.27/21, K.V.B.GARDEN
       RAJA ANNAMALAI PURAM,
       CHENNAI -600 028.
                                     ... APPELLANTS

(BY SRI. K.R.KRISHNAMURTHY, ADV.)

AND:

T.M.KASHINATH,
S/O MANIKYAM NATTAR,
AGED ABOUT 76 YEARS,
RESIDING AT KUMBARA GUNDI,
BEHIND MANJUNATHA TALKIES,
SHIVAMOGGA CITY-577 418.             ... RESPONDENT


     THIS APPEAL IS FILED UNDERSECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.09.2018
PASSED IN R.A.No.189/2013 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 10.10.2013 PASSED IN O.S.No.273/2008 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC,
SHIVAMOGGA.

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

1. This is a second appeal by the first defendant.

2. Sri T.M.Kashinath, the plaintiff, instituted a suit in

O.S.No.273/2008 seeking to enforce an Agreement of

Sale dated 14.02.1984 and also for recovery of a sum of

`8,000/- along with interest. It was his case that

Kuppuswamy Naidu had been granted land measuring 3

acres 18 guntas situate in Sy.No.51 of Sidlipura Village

of Shivamogga Taluk. He stated that Kuppuswamy

Naidu had decided to leave the village permanently and

hence, wanted to sell the said property. He stated that

Kuppuswamy Naidu, therefore, entered into an

Agreement of Sale dated 14.02.1984 agreeing to sell the

aforementioned property for consideration of `5,000/-

and he had received the said amount at the time of

execution of Sale Agreement itself.

3. He stated that there was a condition of non-

alienation while issuing a saguvali chit and therefore, he

had executed another registered document which was

titled as "Security Deed", whereunder he had received

another sum of `8,000/- on the very same day i.e., on

14.02.1984.

4. He also contended that possession of the suit

property was handed over to him and after the execution

of the documents, Kuppuswamy Naidu left Sidlipura and

started residing in Tamil Nadu. He stated that on the

expiry of the period of non-alienation, he had made

efforts to approach Kuppuswamy Naidu, but

Kuppuswamy Naidu dodged him and subsequently, he

passed away.

5. He stated that he came to know about the death of

Kuppuswamy Naidu only in the month of April, 2008,

when his sons i.e., defendants visited Sidlipura and

approached several persons stating that they intended to

sell the suit property. He stated that after collecting

information regarding the defendants, he approached the

defendants and requested them to execute the Sale

Deed and also repay the money paid under the Security

Deed, but since the defendants had refused to execute

the Sale Deed and also to repay the amount of `8,000/-

with interest, he was constrained to file the suit seeking

for specific performance and also for recovery of a sum

of `8,000/- along with interest.

6. On service of suit summons, the sons of

Kuppuswamy Naidu entered appearance and contested

the suit. They admitted that there was a condition not to

alienate the suit schedule property. However, they

contended that they were not liable to pay a sum of

`8,000/- along with interest and the plaintiff was also not

entitled for specific performance of the Agreement of

Sale dated 14.02.1984 as it was barred under Section

41(c) of the Specific Relief Act and also under Article 54

of the Limitation Act.

7. They contended that they were unaware of the

transaction entered into between their father

Kuppuswamy Naidu and the plaintiff. They stated that

they were the absolute owners in possession and

enjoyment of the suit property and the revenue entries

establish the said fact. They stated that at no point of

time the possession of the suit property was handed

over to the plaintiff by their father and therefore, the suit

could not be maintained. They stated that even if it is

construed that the registered Security Deed had been

executed by their father Kuppuswamy Naidu, the recitals

therein indicated that possession had not been delivered

and it was only a document creating a charge over the

property.

8. It was stated that the Agreement of Sale dated

14.02.1984 was a concocted document and when there

was a registered Deed creating a charge executed, the

question of there being an Agreement of Sale executed

on the same day was not tenable. They ultimately

pleaded that the suit for specific performance filed 24

years after the execution of the Agreement of Sale was

barred by limitation and therefore, the suit was liable to

be dismissed.

9. On consideration of the evidence adduced before it,

the Trial Court came to the conclusion that the execution

of Agreement of Sale dated 14.02.1984 had been proved

and the payment of `5,000/- as sale consideration had

also been proved. The Trial Court also recorded a

finding that the registered document titled as "Security

Deed" had been executed whereunder a sum of `8,000/-

had been paid. The Trial Court, however, came to the

conclusion that the plaintiff had failed to prove that he

was ready and willing to perform his part of the contract

and the Trial Court also came to the conclusion that the

suit was barred by limitation. Accordingly, the Trial Court

dismissed the suit.

10. In appeal, the Appellate Court, on re-appreciation

of evidence, came to the conclusion that the finding of

the Trial Court that the suit was barred by limitation was

erroneous and the finding that the plaintiff was not ready

and willing was also erroneous. The Appellate Court

accordingly allowed the appeal and decreed the suit.

11. The Appellate Court, however, came to the

conclusion that the plaintiff was not entitled for recovery

of a sum of `8,000/- along with interest and he was only

entitled for specific performance of the Agreement of

Sale dated 14.02.1984.

12. In order to come to the said conclusion, the

Appellate Court stated that the question of readiness and

willingness on the part of the plaintiff did not arise since

under the Agreement of Sale, the entire amount of sale

consideration of `5,000/- had been paid. The Appellate

Court noticed that there was a legal impediment for

Kuppuswamy Naidu to execute the Sale Deed and the

evidence on record indicated that only on the death of

Kuppuswamy Naidu in the month of April, 2008, the

defendants had got mutated their names in the revenue

records and expressed their intention to alienate the

property. The Appellate Court recorded a finding that till

April, 2008, neither Kuppuswamy Naidu nor his children,

had interfered with the possession and enjoyment of the

suit schedule property by the plaintiff and since there

was no refusal at all on the part of either Kuppuswamy

Naidu or his children to execute the Sale Deed, the

question of the suit being barred by limitation would not

arise.

13. The Appellate Court placed reliance on the second

portion of Article 54 of the Limitation Act, which states

that if no date is fixed for specific performance, time

would begin to run only from the date the plaintiff had

noticed that performance of the contract was refused.

The Appellate Court observed that admittedly no date

was fixed for performance of the Agreement of Sale and

there was nothing to indicate that either Kuppuswamy

Naidu or his children had refused the performance of the

Agreement till 2008. The Appellate Court took the view

that immediately on being aware of the refusal, the

plaintiff had filed a suit and therefore, the suit was not

barred under Article 54 of the Limitation Act. The

Appellate Court also noticed that the revenue records

were changed only in the year 2008 and until then, the

name of Kuppuswamy Naidu was entered into in the

records and having regard to the fact that defendants

were not residents of Sidlipura village and were residing

in Tamil Nadu, it was clear that the plaintiff was in

possession of the suit schedule property right from

14.02.1984.

14. The Appellate Court, having regard to the

registered document, took the view that the transaction

between Kuppuswamy Naidu and the plaintiff had been

established and therefore, the plaintiff was entitled for

specific performance of the Agreement of Sale.

15. It may be pertinent to state here that the finding of

the Trial Court that an Agreement of Sale and a Security

Deed had been executed by Kuppuswamy was not

challenged by filing an appeal or by filing cross

objections. Thus, the finding of fact recorded that

Kuppuswamy Naidu had executed the Agreement of Sale

and the Security Deed attained finality.

16. It is against this divergent finding, the present

second appeal has been preferred.

17. Sri K.R.Krishnamurthy, learned counsel for the

appellants contended that the suit was hopelessly time

barred. He contended that even if no date had been

fixed for performance, it was incumbent on the plaintiff

to have made a demand and since no demand at all had

been made for nearly 24 years, the Court was not

justified in decreeing the suit. He submitted that the

judgment and decree of the Trial Court in coming to the

conclusion that the plaintiff had not established that he

was ready and willing was correct and therefore, could

not have been set aside by the Appellate Court. He

submitted that the Appellate Court, having come to the

conclusion that the plaintiff was not entitled for recovery

of a sum of`8,000/- paid under the Security Deed, it

could not have come to the conclusion that it was a part

of the sale consideration. He also submitted that there

was absolutely no proof evidencing payment of `5,000/-

to Kuppuswamy Naidu.

18. As stated above, the execution of the Agreement of

Sale dated 14.02.1984 and the Security Deed, cannot be

in dispute since the defendants basically accepted the

finding of the Trial Court that Kuppuswamy Naidu had

executed the Agreement of Sale and the Security Deed.

The defendants had in their defence merely contended

that they were unaware of the transaction between their

father Kuppuswamy Naidu and the plaintiff.

19. It is to be stated here that on 14.02.1984

Kuppuswamy Naidu executed a registered document

which is titled as "Security Deed". In the said document,

it is clearly recited that Kuppuswamy Naidu had decided

to leave Sidlipura Village for good and wanted to go back

to his native village in Tamil Nadu. On the very same

day, an Agreement of Sale is also executed, whereby

Kuppuswamy Naidu agreed to alienate the property

which had been granted to him. It is, however, stated in

the Agreement of Sale that because there was a

condition of non-alienation, the Sale Deed had not been

executed.

20. The fact that the registered document was entered

into by Kuppuswamy Naidu cannot be disputed by his

children. The fact that the registered document

contained a clear recital that Kuppuswamy Naidu had

decided to leave Sidlipura for good and he was hence

receiving a sum of `8,000/- as security also indicates

that he did not have any intention to retain the property

that had been granted to him. Having regard to the fact

that there is a registered instrument executed on

14.02.1984, the execution of the Agreement of Sale on

the same day, in the context of Kuppuswamy Naidu

leaving Sidlipura for good, would lead to an inference

that he also intended to dispose off the only suit

property that he owned.

21. As stated above, the finding of the Trial Court that

these documents were executed by Kuppuswamy Naidu

has not been challenged by the defendants and thus, it

will have to be held that Kuppuswamy had executed the

Agreement of Sale and also the Security Deed.

22. It is clear from a reading of Exs.P1 and P2 that

essentially Kuppuswamy Naidu was collecting the entire

value of the suit property, firstly, under the Security

Deed and simultaneously, under the Agreement of Sale.

The fact that from 1984 till 2008, no attempt was made

by Kuppuswamy Naidu to recover possession of this

property by repaying the security amount also indicates

that Kuppuswamy Naidu had given up his interest in

respect of suit schedule property completely.

23. The controversy erupted only in the month of April

and May, 2008 when the defendants came to Sidlipura

and got their names mutated. It is only when they got

their names mutated and indicated their intention to lay

a claim over the suit property, the plaintiff filed a suit for

specific performance.

24. It is inconceivable that a person who owns a

granted land would receive a sum of `8,000/- under a

registered document and would have kept quiet for more

than 24 years. The fact that Kuppuswamy Naidu during

his life time did not make any attempt to get the

property back indicates that he had in fact relinquished

his interest over the suit property and the execution of a

registered document on 14.02.1984 is an affirmation of

that fact.

25. The Appellate Court, in my view, has rightly

recorded a finding of fact that there was no refusal on

the part of Kuppuswamy Naidu during his life time to

enable the plaintiff to approach the Court by filing a suit

for specific performance. The Appellate Court is also

right in coming to the conclusion that since there was no

refusal, the question of the suit being barred by

limitation would not arise.

26. As stated above, the defendants did not specifically

take the plea that their father had not executed any

Agreement of Sale. They also did not specifically deny

the execution of the registered document dated

14.02.1984. The case of the defendants was that they

were unaware of the transaction between their father

and the plaintiff. Having regard to the said plea of the

defendants and keeping in mind that a registered

document was executed in favour of the plaintiff, and on

the very same day, an Agreement of Sale was also

executed, the execution of an Agreement of Sale would

stand proved.

27. As a matter of fact, the Trial Court has clearly

recorded a finding of fact that an Agreement of Sale was

executed on 14.02.1984 and a Security Deed was also

executed on the same day. This finding recorded by the

Trial Court has not been challenged by the defendants by

filing any cross-objection in the appeal. Having regard

to the finding of fact recorded by the Trial Court which

has been affirmed by the Appellate Court, in my view,

the decision of the Appellate Court in granting specific

performance on the premise that Kuppuswamy Naidu

had executed an Agreement of Sale cannot be found

fault, especially since essentially a finding of fact has

been recorded that an Agreement of Sale had been

executed and there was no refusal on the part of

Kuppuswamy Naidu. The Appellate Court was thus

justified in coming to the conclusion that the suit for

specific performance was not barred by time.

28. In my view, there is no question of law, muchless a

substantial question of law, arising for consideration in

this second appeal and therefore, the same is dismissed.

Sd/-

JUDGE

PKS