Smt Satyam Lakshmi vs Sri K M Krishna Murthy
2022 Latest Caselaw 3839 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR. JUSTICE R.NATARAJ

       CIVIL REVISION PETITION NO.509 OF 2012

BETWEEN:

SMT. SATYAM LAKSHMI
D/O LATE GANGARAJU
AGED ABOUT 50 YEARS
C/O TANNERU NAGESHWARA RAO
R/AT VEDULLAPALLI VILLAGE
MUNIKUDALI POST, VIA RAJAMUNDRY
EAST GODAVARI DISTRICT
ANDHRA PRADESH-533297
REPRESENTED BY G.P.A. HOLDER
HUSBAND-SRI RMAKRISHNA SATHYAM
                                         ...PETITIONER
(BY SRI. V. SANJAY KRISHNA, ADVOCATE)

AND:

1.     SRI. K.M. KRISHNA MURTHY
       S/O MUNIRANGAIAH
       AGED ABOUT 51 YEARS
       R/AT KANTANAKUNTE VILLAGE
       KASABA HOBLI
       DODDABALLAPUR TALUK
       BANGALORE RURAL DISTRICT.

2.     SRI CHKKAMUTHAIAH
       S/O LATE MUTHAIAH @ MUTHTHA
       AGED ABOUT 66 YEARS.

3.     SMT. CHIKKAVEERAMMA
       W/O. LATE CHIKKA MUTHAIAH
       AGED ABOUT 56 YEARS.
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4.    SMT. MUNIRATHNAMMA
      D/O CHIKKA MUTHAIAH
      AGED ABOUT 37 YEARS.

5.    SMT. MUTHTHAMMA
      D/O CHIKKA MUTHAIAH
      AGED ABOUT 35 YEARS.

6.    SMT. YELLAMMA
      D/O CHIKKA MUTHAIAH
      AGED ABOUT 23 YEARS.

7.    SMT. GOWRAMMA
      D/O CHIKKA MUTHAIAH
      AGED ABOUT 31 YEARS.

8.    SMT. MUTHANNA
      D/O CHIKKA MUTHAIAH
      AGED ABOUT 29 YEARS.

9.    SRI. MUNIRAJU
      S/O CHIKKA MUTHAIAH
      AGED ABOUT 27 YEARS.

10.   KUM. GIRIJA
      D/O CHIKKA MUTHAIAH
      AGED ABOUT 25 YEARS.

11.   SRI MANJUNATHA
      S/O CHIKKA MUTHAIAH
      AGED ABOUT 24 YEARS.
                                        ...RESPONDENTS
(BY SRI. S. ANIL KUMAR, ADVOCATE FOR RESPONDENT NO.1;
VIDE ORDER DATED. 21.01.2019 SERVICE OF NOTICE TO
RESPONDENTS NO.2 TO 11 IS DISPENSED WITH)

     THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 10.09.2012 PASSED IN
O.S.NO.208/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE,
DODDABALLAPUR, REJECTING THE IA NO.VIII FILED UNDER
ORDER VII RULE 11(d) READ WITH SECTION 151 OF CPC.
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      THIS CRP HAVING BEEN HEARD AND RESERVED ON
23.12.2021 COMING ON FOR 'PRONOUNCEMENT OF ORDERS'
THIS DAY, THE COURT PASSED THE FOLLOWING:

                           ORDER

This Revision Petition is filed by defendant No.11 in

O.S.No.208/2008 pending trial before the Senior Civil

Judge at Doddaballapur (henceforth referred to as 'Trial

Court'), challenging an Order dated 10.09.2012 by which

an application filed by him under Order VII Rule 11(d) read

with Section 151 of the Code of Civil Procedure, 1908

(henceforth referred to as 'CPC' for short) was rejected.

2. The suit in O.S.No.208/2008 was filed for

specific performance of an agreement of sale dated

09.06.2007 executed by the defendant Nos.1 to 10,

agreeing to sell the land bearing old Sy.No.15, new

Sy.No.113 situate at Menasi village, Kasaba Hobli,

Doddaballapur taluk measuring 3 acres 3 guntas for a total

sale consideration of `.22,90,875/-. The plaintiff claimed

that he had paid a sum of `.6,00,000/- as part of agreed

sale consideration and the balance was to be paid at the

time of registration of a deed of absolute sale, which was

to be after obtaining permission from the State

Government to sell the property.

3. The suit was contested by the defendant No.1

who denied the execution of sale agreement dated

09.06.2007. He contended that the suit property was

granted to him and as he belonged to the depressed class.

He sought and obtained permission from the State

Government under Section 4(2) of the Karnataka

Scheduled Castes and Scheduled Tribes (Prohibition of

Transfer of Certain Lands) Act, 1978 (henceforth referred

to as the 'PTCL Act') on 17.10.2007 and thereafter sold it

to the defendant No.11 on 28.06.2008.

4. The defendant No.11 also contested the suit

and claimed that the alleged sale agreement dated

09.06.2007 was not enforceable in a Court of law as it was

contrary to the provisions of Section 4(2) of the PTCL Act.

She claimed that she was the lawful purchaser who

purchased the suit property in terms of a sale deed dated

28.06.2008 registered on 14.08.2008. The defendant

No.11 filed an application on 12.01.2011 under Order VII

Rule 11(d) read with Section 151 of CPC to reject the

plaint as an agreement to transfer the suit property

without the prior consent of the State Government was

void ab initio and therefore, a suit to enforce the contract

was not maintainable.

5. The application was contested by the plaintiff

who contended that there was no provision in the PTCL Act

that prohibited the filing of a suit for specific performance

of an agreement of sale, more particularly when the

agreement of sale mandated that the sale would be

completed after obtaining the permission of the State

Government. The Trial Court posted the case for issues by

05.11.2012.

6. The Trial Court considered the contentions

raised by the defendant No.11 and held that though the

defendant Nos.1 to 10 had agreed to obtain the permission

to alienate the suit property, that itself would not attract

Section 4 of the PTCL Act. The Trial Court held that the

application filed by the defendant No.11 cannot be

considered and the plaint cannot be rejected. Hence, it

rejected the application in terms of an order dated

10.09.2012.

7. Being aggrieved by the aforesaid order, the

present Revision Petition is filed.

8. The learned counsel appearing for the

petitioner/defendant No.11 contended that an agreement

of sale is in respect of a granted land which amounts to

transfer under Section 3(e) of the PTCL Act and therefore,

the agreement set up by the plaintiff is unenforceable in

law. He submitted that if the suit is not maintainable on

the face of it, this Court should exercise power under

Order VII Rule 11(d) of CPC to reject the plaint. He relied

upon the Judgment of the Hon'ble Supreme Court in the

case of SOPAN SUKHDEO SABLE AND OTHERS vs.

ASSISTANT CHARITY COMMISSIONER AND OTHERS

[(2004) 3 SCC 137]. He further invited the attention of

this Court to the judgment of a Co-Ordinate Bench of this

Court in the case of SMT. NARASAMMA AND OTHERS vs.

K.V.RAMPRASAD [ILR 2012 KAR 4261]. He also relied

upon the Judgment of this Court in the case of SMT.

P.VASANTHI vs. SMT. VIMALA MARTIN AND ANOTHER

[ILR 1997 KAR 1127] as well as the judgment in the case

of SRI. VENAKATANARAYANAPPA vs. SRI. SIDDAPPA

[ILR 2007 KAR 1323] and contended that the suit for

specific performance was liable to be rejected.

9. During the pendency of this Revision Petition,

the plaintiff filed an application under Section 22 of the

Specific Relief Act, 1963 read with Order VI Rule 17 of CPC

to amend the suit to seek the following alternative relief:

"If for any reason, the Hon'ble Court comes to the conclusion that the plaintiff is not entitled for specific performance of the agreement of sale, in the alternative direct the defendants/petitioner in the above revision petition to return/refund the advance amount paid under the agreement for sale"

10. The learned counsel appearing for the

respondents sought time to settle the dispute. However,

since nothing materialised, the case was heard. The

learned counsel appearing for the petitioner reiterated his

contentions, while learned counsel for the

plaintiff/respondent No.1 contended that there was no

provision under PTCL Act prohibiting the filing of civil suit

for specific performance. He submitted that since the

agreement of sale contemplated that the defendant Nos.1

to 10 would conclude the sale transaction after obtaining

the sale permission from the State Government, the

agreement is enforceable. Alternatively, he contended that

if the plaintiff is permitted to amend the plaint, then the

suit cannot be rejected. The learned counsel invited the

attention of this Court to Section 22 of the Specific Relief

Act, 1963 and claimed that the relief of refund of the

earnest money can be claimed at any stage of the suit.

11. I have given my anxious consideration to the

arguments canvassed by the learned counsel for the

parties.

12. It is not in dispute that the land in question is

a property granted to a person belonging to a scheduled

caste. It is also not in dispute that the period of non-

alienation of the suit property has expired. It is also not in

dispute that an agreement of sale is treated as a "transfer"

and therefore, under Section 4 of the PTCL Act, requires

prior permission. It is also not in dispute that in the

present case, neither the plaintiff nor the defendant Nos.1

to 10 had obtained prior permission of the State

Government before entering into the agreement of sale.

Section 4 of the PTCL Act contains a total bar against

transfer of granted land which is as below:

4. Prohibition of transfer of granted lands.-(1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or Sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer.

(2) No person shall, after commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.

(3) The provisions of Sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of any award of order of any other authority.

13. A Co-ordinate Bench of this Court while

considering a case arising out of an Order passed by Trial

Court on an application under Order VII Rule 11(d) of CPC

filed in a suit for specific performance of an agreement of

sale of a granted land held;

"The Trial Court must remember that if on a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11(a)."

14. A meaningful reading of the entire plaint in the

present case makes it clear that the suit property is a

granted land and that the agreement was entered into

without obtaining the prior permission of the Government

under Section 4(2) of the PTCL Act. Thus, the agreement

in question is void and unenforceable in the Court of law.

Hence, the plaintiff cannot pursue the suit for the relief of

specific performance.

15. However, there is no impediment for the

plaintiff to sue for any other relief, as provided in Section

22 of the Specific Relief Act, 1963. The plaintiff in the

present case has now filed an application for amendment

of the plaint to seek the relief of refund of the advance

sale consideration.

16. Such an application could be filed at any stage

of the suit. The Trial Court shall now examine the

entitlement of the plaintiff for the relief of refund of the

advance sale consideration allegedly paid under the sale

agreement dated 09.06.2007.

In view of the above, this Revision Petition is

allowed in part. This Court exercising jurisdiction under

Section 151 of CPC, restricts the suit filed by the plaintiff

for the relief of refund of the advance sale consideration

allegedly paid by the plaintiff to the defendant Nos.1 to 10.

The plaintiff is not entitled to pursue the suit for the relief

of specific performance.

The parties to bear their own costs.

Sd/-

JUDGE

hnm