Karnataka High Court
Satish S/O. Late Ganapatsa ... vs Hasmukh S/O. Ranachandas Sheth on 13 July, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.6088 OF 2012 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO.6093 OF 2012
IN RSA NO. 6088 OF 2012
BETWEEN:
1. SATISH S/O. LATE GANAPATSA MEHARWADE
AGE: 58 YEARS, R/AT: AMBIKA NAGAR,
KESHWAPUR, HUBLI-23, DIST: DHARWAD
2. GOPAL S/O. LATE GURUNATHSA KHODE
AGE: 56 YEARS, R/AT: PINTO ROAD,
HUBLI-20, DIST: DHARWAD
...APPELLANTS
(BY SRI. SHRIHARSH NEELOPANT
FOR SRI. RAJA RAGHAVENDRA NAIK, ADVOCATE)
AND:
1. HASMUKH S/O. RANACHANDAS SHETH
AGE: 65 YEARS,
2. RAJESH S/O. HASMUKH SHETH
AGE: 43 YEARS,
3. HIMANSHU S/O. HASAMUKH SHETH
AGE: 44 YEARS
4. HITESH S/O. HASMUKH SHETH
AGE: 45 YEARS
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
5. RAJENDRA S/O. MURARSA HABIB
AGE: 58 YEARS
RESPONDENTS 1 TO 5 ARE
RESIDING AT FLAT NO. B-502,
SILVER SPRING APARTMENTS,
LOKHANDWALA COMPLEX, ANDHERI WEST,
MUMBAI - 53, MAHARASHTRA
6. SURYAKANT S/O. MURARSA HABIB
AGE: 56 YEARS,
R/AT: TRAVELERS BUNGLOW ROAD,
DESHPANDE NAGAR, HUBLI-29,
DIST: DHARWAD.
7. MANOHAR S/O. MURARSA HABIB
AGE: 56 YEARS,
R/AT: TRAVELERS BUNGLOW ROAD,
DESHPANDE NAGAR, HUBLI-29,
DIST: DHARWAD
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE
FOR R1 to R7)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.06.2012
PASSED IN RA NO.247 OF 2010 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD
SITTING AT HUBLI, DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 28.07.2010 AND THE
DECREE PASSED IN OS NO.138 OF 2008 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AT HUBLI, DISMISING THE
SUIT FILED FOR DECLARATION AND INJUNCTION.
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
IN RSA NO.6093 OF 2012
BETWEEN:
1. SATISH S/O LATE GANPATSA MEHARWADE,
AGE: 58 YEARS, OCC: AMBIKA NAGAR,
KESHWAPUR, HUBLI-23, DIST: DHARWAD.
2. GOPAL S/O LATE GURUNATHSA KHODE,
AGE: 56 YEARS, R/AT: PINTO ROAD,
HUBLI-20, DIST: DHARWAD.
...APPELLANTS
(BY SRI. SRIHARSH NEELOPANT, ADVOCATE
FOR SRI. RAJA RAGHAVENDRA NAIK, ADVOCATE)
AND:
1. RUDRAPPA S/O HONNAPPA HOTAGI,
AGE: 66 YEARS
2. SMT.ANASUYA W/O RUDRAPPA HOTAGI,
AGE: 61 YEARS
3. SIDDAPPA S/O RUDRAPPA HOTAGI,
AGE: 39 YEARS
4. ASHOK S/O RUDRAPPA HOTAGI,
AGE: 38 YEARS
5. HONNAPPA S/O RUDRAPPA HOTAGI,
AGE: 34 YEARS
6. SRI.BASAVA S/O RUDRAPPA HOTAGI,
AGE: 28 YEARS
RESPONDENTS 1 TO 6 ARE RESIDING AT
SAI NAGAR, UNKAL AREA,
HUBLI, DIST: DHARWAD.
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
7. SMT.BASAVVA W/O UMESH YANAGI,
AGE: 26 YEARS,
RESIDING AT: BELAWADI VILLAGE,
TQ and DIST: DHARWAD.
8. HASMUKH S/O RANACHANDAS SHETH,
AGE: 65 YEARS, R/AT: FLAT NO. B-502,
SILVER SPRING APARTMENTS,
LOKHANDWALA COMPLEX,
ANDHERI WEST,MUMBAI-53.
9. HITESH, S/O HASMUKH SHETH,
AGE: 44 YEARS,R/AT: FLAT NO. B-502,
SILVER SPRING APARTMENTS,
LOKHANDWALA COMPLEX,
ANDHERI WEST,MUMBAI-53.
10. RAJESH S/O HASMUKH SHETH,
AGE: 43 YEARS,
R/AT: FLAT NO.B-502,
SILVER SPRING APARTMENT,
LOKHANDWALA COMPLEX,
ANDHERI WEST,MUMBAI-53.
11. HIMANSH S/O HASAMUKH SHETH,
AGE: 40 YEARS,
R/AT: FLAT NO. B-502,
SILVER SPRING APARTMENTS,
LOKHANDWALA COMPLEX,
ANDHERI WEST, MUMBAI-53.
12. RAJENDRA S/O MURARSA HABIB,
AGE: 58 YEARS,
R/AT: TRAVELERS BUNGLOW ROAD,
DESHPANDE NAGAR, HUBLI.
13. SURYAKANT S/O MURARSA HABIB,
AGE: 56 YEARS,
R/AT: TRAVELERS BUNGLOW ROAD,
DESHPANDE NAGAR, HUBLI.
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
14. MANOHAR S/O MURARSA HABIB,
AGE: 56 YEARS,
R/AT: TRAVELERS BUNGLOW ROAD,
DESHPANDE NAGAR, HUBLI.
15. SANGAPPA, S/O MURALASIDDAYYA HIREMATH,
AGE: 51 YEARS,
R/AT: LINE BAZAR, DHARWAD.
16. GADIGAYYA
S/O MURALASIDDAYYA HIREMATH,
AGE: 49 YEARS,
R/AT: LINE BAZAR, DHARWAD.
17. SMT.SANGAVVA
W/O MARALSIDDAYYA HIREMATH,
AGE: 46 YEARS,
R/AT: LINE BAZAR, DHARWAD.
18. SMT.SUMANGALA
D/O MARALASIDDAYYA HIREMATH
AGE: 44 YEARS,
R/AT: LINE BAZAR, DHARWAD.
19. SMT.KESHAVVA
W/O MARALASIDDAYYA HIREMATH
AGE: 41 YEARS,
R/AT: LINE BAZAR, DHARWAD.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE
FOR R2 TO R4, R7 TO R11 AND R12 TO R14;
R1 & R5 - ABATED V/C/O. 20.06.2016;
R6 - APPEAL DISMISSED V/C/O.07.10.2017;
NOTICE TO R15 TO R19 - HELD SUFFICIENT)
---
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.06.2012
PASED IN RA NO.248 OF 2010 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
SITTING AT HUBLI, DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 28.07.2010 PASSED IN
OS NO.398 OF 2007 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AT HUBLI, DISMISSING THE SUIT FILED FOR
SPECIFIC PERFORMANCE, DECLARATION AND INJUNCTION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These Regular Second Appeals are filed by plaintiffs,
challenging the judgment and decree dated 19th June, 2012
passed in Regular Appeals No.247 and 248 of 2010 on the file
of the I Addl. District and Sessions Judge, Dharwad, sitting at
Hubballi, (hereinafter referred to as 'the First Appellate Court',
for brevity), confirming the judgment and decree dated 28th
July, 2010 passed in Original Suit No.398 of 2007 and 138 of
2008 on the file of the Principal Senior Civil Judge, Hubballi
(hereinafter referred to as 'the trial Court', for brevity),
dismissing the suit of plaintiffs.
2. For the sake of convenience, parties to these
appeals shall be referred to in terms of their status and ranking
before the trial Court.
RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
3. The relevant facts for adjudication of these appeals
are that, plaintiffs filed Original Suit No.398 of 2007 on the file
of the trial Court, seeking specific performance of contract with
consequential relief of injunction and further, plaintiffs filed
Original Suit No.138 of 2008 seeking declaration and
consequential relief of injunction in respect of the suit schedule
properties. It is the case of the plaintiffs that, defendants 1 to
7 are the owners of the schedule property and defendants No.1
to 7 have executed three agreements of sale with defendants 8
to 11 on 21st June, 1987, 14th December, 1987 and 21st March,
1993, agreeing to sell the suit schedule properties at the rate of
Rs.11,000/- per gunta and as such, received Rs.16,000/- as
advance amount. Pursuant to same, actual physical possession
of the suit schedule property was given to defendants No.8 to
11 and in view of the statutory restriction of sale for a period of
15 years as contemplated in Form No.10, since the subject land
was granted to defendants No.1 to 7 under the provisions of
Karnataka Land Reforms Act, defendants 1 to 7 were not able
to execute the registered sale deed in favour of the defendants
8 to 11. In the meanwhile, defendants 8 to 11, have filed
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C/W RSA No. 6093 of 2012
Original Suit No.25 of 2003 before the trial Court seeking relief
of injunction against the defendants 1 to 7 and the said suit
came to be decreed on 16th April, 2003. Defendants 1 to 7
have preferred Regular Appeal No.154 of 2003 against the
judgment and decree dated 16th April, 2003 passed in Original
Suit No.25 of 2003 and the said appeal was allowed on the
ground that the suit is not maintainable as there was a remedy
for filing the suit for specific performance by defendants 8 to
11. It is also averred in the plaint that, defendants 8 to 11
have executed an irrevocable General Power of Attorney in
favour of plaintiffs on 23rd September, 2003 for the purpose of
institution of the suit for specific performance and accordingly,
Original Suit No.285 of 2004 was filed by the plaintiffs against
defendants 1 to 6 before the trial Court. It is further averred
that, plaintiffs were interested in purchasing the suit schedule
property from defendants 8 to 11 or from the defendants 1 to 7
and as such, plaintiffs entered into an agreement of sale dated
26th January, 2003 with defendants 8 to 11 agreeing to
purchase the suit schedule property for a total consideration of
Rs.6,00,000/- and the plaintiffs have paid Rs.2,00,000/- to
RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
defendants 8 to 11 as advance amount. It is further averred in
the plaint that, plaintiffs were always ready and willing to
purchase the suit schedule property, however, since the three
agreements of sale referred to above were not converted into
registered sale deed, plaintiffs filed Original Suit No.398 of
2007 against the defendants seeking specific performance of
the agreement and also filed Original Suit No.138 of 2008
seeking declaration with consequential relief of injunction.
4. After service of notice, defendants entered
appearance and filed detailed written statement denying the
averments made in the plaint. Defendants No.1 to 5 have
specifically contended that, there is no privity of contract
between the plaintiffs and defendants No.1 to 7 and therefore,
urged that the plaintiffs have no locus standi to challenge the
validity of the sale deed executed by defendants 1 to 5 in
favour of defendants 12 to 14. It is further contended that, in
view of the judgment and decree in Original Suit No.25 of 2003
culminating in Regular Appeal No.133 of 2013, the defendants
1 to 7 submitted that the question of executing the agreement
by defendants 8 to 11 in favour of plaintiff does not arise at all
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
on the ground that the plaintiffs herein have filed memo before
the trial Court in Original Suit No.284 of 2004 for dismissal.
Accordingly, defendants 1 to 7 contended that the suit be
dismissed in limine.
5. Defendant No.8 had filed written statement and
took up a plea that the suit is barred by limitation and further
pleaded that defendants 8 to 11 are not the owners of the
property in question and accordingly, sought for dismissal of
the suit. Defendant No.13 had filed written statement
admitting that defendants 1 to 7 are the owner in possession
of the suit schedule property and have purchased the suit
schedule property from defendants 1 to 7 by way of registered
sale deed dated 28th October, 2004, thus exercising ownership
insofar as the suit schedule property. During the pendency of
the suit, defendants 15 to 19 were impleaded and it is the
defence of defendants 15 to 19 that the Agreement of Sale
referred to by the plaintiffs are created to defeat the rights of
defendants and therefore, sought for dismissal of the suit. The
trial Court, based on the pleadings on record, formulated the
following issues for its consideration:
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
1. Whether the plaintiffs prove that the first defendant has
executed an agreement of sale In favour of the
defendants No.8 to 11 on 21.6.1987 and thereafter on
14.12.1987 and also he has entered into an agreement
of sale on 21.9.1993 in continuation of the aforesaid
sale agreements and delivered the possession of the
suit property to them on 21.9.1993 by agreeing to sell
the suit schedule property in favour of the defendants
No.8 to 11?
2. Whether the plaintiffs prove that the defendant No.8 to
11 executed an agreement of sale on 26.1.2003 and
they agreed to sell the suit property in favour of them
for total sale consideration of Rs.6,00,000/- and out of
which, the defendant No.8 to 11 received a sum of
Rs.2,00,000/- from them as an advance amount and the
defendants 8 to 11 delivered the actual possession of
the suit property to the plaintiffs and they are in actual
physical possession of the suit property from
26.1.2003?
3. Whether the plaintiffs prove that the sale deed executed
by the defendants 1 to 7 in favour of the defendant
No.12 to 14 on 30.10.2004 is illegal, null and void and
same is not binding on them and also pertaining to the
suit property?
4. Are the plaintiffs entitled for the relief of specific
performance of the agreement of sale dated 26.1.2003
as prayed?
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
5. In the alternative, whether the plaintiffs prove that they
have perfected their title by adverse possession
pertaining to the suit property as stated in their plaint?
6. Whether the plaintiffs prove that they are in lawful
possession and enjoyment of the suit property?
7. Are the plaintiffs entitled for refund of an advance
amount of Rs.2,00,000/- with interest at the rate
of 24% per annum from 26.1.2003 till the date of
payment from the defendants 8 to 11 as prayed?
8. Whether the defendant No.1 to 5 prove that the
defendants 8 to 11 have filed a suit In O.S.No.285/2004
against them and the defendants 12 to 14 and they
have filled a memo stating that the claim is not pressed
and hence it was dismissed on 30.5.2007, hence
present suit is hit by principles of res judicata?
9. Whether the defendants 12 to 14 prove that they are
the bonafide purchasers of the suit property for valuable
consideration of Rs.9,00,000 from the defendants 1 to 6
and they have sold the suit property to them under a
registered sale deed dated 28.10.2004 and delivered
the possession of the suit property?
10. To what reliefs the parties are entitled?
Additional Issues have been formulated as under:
1. Whether plaintiffs prove that, the cancellation and
withdrawal of the GPA dated 23.09.2003 is illegal, null
and void and not binding upon the plaintiffs?
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
2. Whether the plaintiffs prove that the defendants No.1 to
4 are acting contrary to the terms of GPA dated
23.09.2003?
3. Whether suit is bad for non-joinder of necessary parties
and mis-joinder of parties?
4. Whether the suit is barred by principles of resjudicata?
5. Whether the plaintiffs are entitled to the relief sought
for?
6. What order or decree?
6. In order to establish their case, plaintiff No.2 was
examined as PW1 and marked two documents as Exhibits P1
and P2. No evidence on the part of defendants. The trial
Court, after considering the material on record, by its judgment
and decree dated 28th July, 2010 dismissed the suits. Feeling
aggrieved by the same, the plaintiffs have preferred Regular
Appeals No.247 and 248 of 2010 before the First Appellate
Court and same was resisted by the contesting defendants.
The First Appellate Court, after re-appreciating the entire
material on record, dismissed the appeals and feeling aggrieved
by the same, plaintiffs have preferred these Regular Second
Appeals.
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
7. Heard the learned counsel Sri.Sriharsh Neelopanth
appearing for Sri.Raja Raghavendra Naik, learned counsel for
the appellants and Sri.Mallikarjunaswamy B. Hiremath, learned
counsel appearing for respondents 1 to 7 in RSA No.6088 of
2012 and for respondents 2 to 4, 7 to 11 and 12 to 14 in
Regular Second Appeal No.6093 of 2012.
8. Sri. Sriharsh Neelopant, learned counsel for the
appellants contended that both the Courts below have
construed the material on record erroneously and passed the
impugned Judgment and Decree, which requires to be
interfered with in these appeals. The finding recorded by the
trial Court, denying the execution of the agreement and the
power of attorney by respondents 1 to 4 is not sufficient to
disbelieve the other materials on record. Accordingly, he
submitted that the finding recorded by the trial Court which
came to be confirmed by the First Appellate Court is on
misconception of facts and the same requires to be set right in
these appeals. In support of his contention, the learned
counsel places reliance on the judgment of this Court in the
case of CHIKKAMMA (SMT.) @ CHIKKALINGAMMA AND OTHERS
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
v. H.G. HARINATHA AND ANOTHER reported in HCR 2018
KANT. 109.
9. Per contra, Sri. Mallikarjunaswamy B. Hiremath,
learned counsel appearing for the respondents sought to justify
the impugned Judgment and Decree passed by the courts
below and contended that the agreement of sale does not
confer title to defendants 8 to 11 and accordingly, he sought for
dismissal of the appeals.
10. In the light of the arguments advanced by the
learned counsel appearing for the parties, it is not in dispute
that plaintiffs have filed two suits viz. OS No.398 of 2007
seeking relief of specific performance of the agreement of sale
and O.S.No.138 of 2008 seeking relief of declaration and
injunction in respect of the suit schedule property. It is not in
dispute that defendants 1 to 7 are the owners of the suit
schedule property. The suit schedule property is a granted land
to defendants 1 to 7 under the provisions of the Karnataka
Land Reforms Act. Defendants 8 to 11 intended to purchase
the suit schedule property and as such, entered into an
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
agreement of sale with the defendant No.1 as a kartha of the
family and as such, executed three agreements of sale, viz. 21st
June, 1987, 14th December, 1987 and 21st March, 1993. It is
not in dispute that these three agreements were not
germinated in to execution of the absolute registered sale deed.
It is also forthcoming from the records that Original Suit No.25
of 2003 was filed by defendants 8 to 11 against the defendant
No.1 and the said suit was decreed on 16th April, 2000
restraining the defendant No.1 from alienating the suit schedule
property in favour of third parties. Feeling aggrieved by the
same, defendants 1 to 7 preferred Regular Appeal No.154 of
2003 before the First Appellate Court, which came to be
allowed and the suit was dismissed on the ground that the
defendants 8 to 11 have remedy of filing the suit for specific
performance against the defendants 1 to 7. In the meanwhile,
defendants 8 to 11 executed an irrevocable general power of
attorney dated 23rd September, 2003 in favour of plaintiffs for
the purpose of institution of suit for specific performance and as
such, plaintiffs have preferred Original Suit No.285 of 2004
(Exhibit P22) against defendants 1 to 7 before the trial Court,
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
seeking relief of specific performance and the said suit was
dismissed as withdrawn at the instance of defendants 8 to 11.
It is also not in dispute that pursuant to the dismissal of
Original Suit No.285 of 2004, defendants 1 to 7 executed
registered sale deed 28th October, 2004 in favour of defendants
12 to 14 and therefore, the finding recorded by both the Courts
below that the suit filed by the plaintiff seeking relief of specific
performance of contract, is not maintainable. It is also noticed
that defendants 8 to 11 have entered into an agreement of sale
with plaintiffs on 26th January, 2003, whereby defendants 8 to
11 agreed to sell the suit schedule property in favour of
plaintiffs for total sale consideration of Rs.6,00,000/- and out of
which, Rs.2,00,000/- was paid by the plaintiffs to defendants 8
to 11 as advance amount. That apart, defendants 1 to 7,
during the proceedings have sold the suit schedule property in
favour of defendants 12 to 14. In the backdrop of these facts
on record, it is the case of the plaintiffs that plaintiffs have
entered into an agreement with defendants 8 to 11 on 26th
January, 2003 based on the agreements of sale dated 21st
June, 1987, 14th December, 1987 and 21st March, 1993
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RSA No. 6088 of 2012
C/W RSA No. 6093 of 2012
executed by defendants 1 to 7 in favour of defendants 8 to 11.
Undisputably, the said agreements entered into between
defendants 1 to 7 in favour of defendants 8 to 11 was not
enforced and no absolute sale deed was executed by
defendants 1 to 7 in favour of defendants 8 to 11, thus, could
be concluded that there was no transfer of ownership from
defendants 1 to 7 in favour of defendants 8 to 11. At this
juncture, it is relevant to cite the judgment of the MR. VIKRAM
RAVI MENEZES v. MR. VICTOR GOVEAS reported in ILR 2015
KAR 3554. In the said case, at paragraphs 10 to 12 of the
judgment, it is held as under:
"10. Therefore, Section 31 of the Specific
Performance Act, 1963 has to be read along with
Section 38 of the Karnataka Court Fee Suit
Valuation Act. In the light of these provisions, we,
now would consider the facts of this case.
Admittedly, there is registered sale deed executed
by the plaintiff's father. The plaintiff belongs to
the Christian community. He has no right in the
property in respect of which his father has
executed the sale deed, though, he contends that
his father acquired the title under a Will, where he
was not permitted to alienate the property. That
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C/W RSA No. 6093 of 2012
by itself, would not convey right on the plaintiff in
presenting a suit for any right in the property.
Once, father executes a sale deed, and confers
title on the defendant, the title vests with the
defendant. Unless the said registered document is
cancelled in a manner known to law, the title of
the property chooses to rest with the defendant.
11. Since the plaintiff has no title to the
property and is not a party to the sale deed, the
said sale is not binding on him. The declaration
that a particular sale deed is not binding on the
plaintiff would become necessary only when a
person who has interest in the property, but is not
a signatory to the document, and some other
person purports to convey the said title. The
plaintiff would in no way be bound by the
document, though registered, when he is not a
party to the said instrument. In such an event, he
can seek declaration. If the plaintiff has no right
or interest in the property, the question of
granting declaration that the said alienation is not
binding on him, would not arise.
12. In view of the provisions to Section 24, as
referred to above, if a plaintiff's title to the
property is disputed, if his possession is sought to
be disturbed, or if he is not in possession and
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C/W RSA No. 6093 of 2012
wants forever possession, Section 24(a) and (b)
provides for valuing such suits and the Court fee
payable. It is only when the case does not fall
under Section 24(a) and (b), Section 24(d) is
attracted as in the instant case. The plaintiff
cannot seek a declaration that he is the owner of
the suit schedule property as admittedly he is not
the owner. Admittedly, he is not in possession.
Therefore, the question of seeking a decree of
injunction, would not arise. He can seek for
delivery of possession provided he has title, which
he does not possess as on the date of the suit.
Therefore, his invoking Section 24(d) in those
circumstances, does not stand to reason."
11. Following the dictum of this Court referred to
above, since the Agreement of Sale does not confer title to the
purchaser until the due execution of the absolute registered
Sale Deed is made, the plaintiffs cannot claim relief of specific
performance against defendants 8 to 11. It is also to be
concluded that three Agreements of Sale dated 26th January,
2003 executed between defendants 1 to 7 and defendants 8 to
11 have not culminated in transfer of ownership by execution of
registered Sale Deed in favour of defendants 8 to 11 and as
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C/W RSA No. 6093 of 2012
such, plaintiffs cannot maintain a suit seeking relief against
defendants 8 to 11 and that apart, defendants 1 to 7 are not
parties to the Agreement of Sale dated 26th January, 2003, said
to have been executed by defendants 8 to 11 in favour of the
plaintiffs and therefore, I find force in the submission made by
the learned counsel appearing for the respondent that both the
courts below have rightly dismissed the suits.
12. Nextly, with regard to reliance placed by the
learned counsel appearing for the appellant to the judgment of
this Court in the case of CHIKKAMMA (supra) is concerned, the
facts of the said case was relating to a defective title of the
owner of the property. As regards the case on hand, since
defendants 1 to 7 are the absolute owners of the property in
question based on the grant made by the Land Tribunal under
the provisions of Karnataka Land Reforms Act, so also, there is
no privity of contract between the defendants 1 to 7 and
plaintiffs herein as the defendants 1 to 7 are not parties to the
agreement of sale dated 26th January, 2003, the
aforementioned judgment cited by the learned counsel for the
appellant is not applicable to the factual aspects of the present
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C/W RSA No. 6093 of 2012
case. It is also noticed that the entire case of the plaintiffs is
based on the Agreement of Sale dated 26th January, 2003,
alleged to have been executed by defendants 8 to 11 in favour
of the plaintiffs and the said document is not admitted in the
evidence and therefore, the finding recorded by both the courts
below dismissing the suit of the plaintiffs is just and proper and
does not call for interference in these appeals. In the result,
appellants have not made out a case for formulation of
substantial question of law as required under Section 100 of
Code of Civil Procedure to interfere with the well-reasoned
Judgment and Decree passed by the courts below and as such,
appeals are liable to be dismissed at the stage of Admission
itself, accordingly, dismissed.
Sd/-
JUDGE
gab/lnn
