Karnataka High Court
Shri.Shiddappa S/O Andaneppa vs Smt.Mahadevi W/O Sangappa on 24 August, 2023
Bench: Anant Ramanath Byarhj
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NC: 2023:KHC-D:9471
MFA No. 101540 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 101540 OF 2019 (CPC)
BETWEEN:
SHRI. SHIDDAPPA
S/O ANDANEPPA SHIRAHATTI,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: DHANNUR-587118,
TQ: HUNGUND, DIST: BAGALKOT-587118.
...APPELLANT
(BY SRI. GIRISH A YADAWAD, ADVOCATE)
AND:
1. SMT. MAHADEVI
W/O SANGAPPA SHIRAHATTI
AGE: 51 YEARS, OCC: HOUSE MAKING,
2. SUJATA SANGAPPA SHIRAHATTI
Digitally
signed by
SAROJA
AGE: 35 YEARS, OCC: HOUSE MAKING,
SAROJA HANGARAKI
HANGARAKI Date:
2023.08.29
11:14:45
3. SHIDDAPPA S/O SANGAPPA SHIRAHATTI
+0530
AGE: 32 YEARS, OCC: AGRICULTURE,
ALL ARE R/O: DHANNUR-587118,
TQ: HUNGUND, DIST: BAGALKOTE-587118.
NOW RESIDING AT: GADAG,
TQ AND DIST: GADAG.
4. ASHOK S/O BASAVANTAPPA PATTANASHETTI
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: DHANNUR-587118, TQ: HUNGUND,
DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI. B SHARANABASAWA, ADVOCATE FOR R1-R3;
SRI. S.C.HIREMATH, ADVOCATE FOR R4)
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NC: 2023:KHC-D:9471
MFA No. 101540 of 2019
THIS MFA IS FILED U/O.43 RULE 1(R) OF THE CODE OF
CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE ORDER
DATED 22.02.2019 ON I.A. NO.3 IN O.S.NO.58/2017 ON THE FILE
OF SENIOR CIVIL JUDGE AND JMFC, HUNAGUND, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal the plaintiff is aggrieved by the order
rejecting his application seeking temporary injunction
against the defendants. The suit in O.S.No.58/2017 is one
for specific performance of contract. The plaintiff claims
that he entered into an agreement for sale on 06.07.2015
to purchase the suit schedule property from defendants
No.1 to 3. He claims that Rs.16 lakhs is the consideration
amount agreed, and he has paid Rs.80,000/-. The plaintiff
also claimed that he is in possession of the property
pursuant to the agreement for sale.
2. The suit was resisted by the defendants.
Defendants No.1 and 3 admitted that they have entered
into an agreement for sale. However, they disputed the
claim of the plaintiff that he is in possession of the
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MFA No. 101540 of 2019
property. Defendant No.2 disputed the agreement for sale
and took a specific stand that defendant No.2 is not a
party to the agreement for sale. Defendants also raised a
contention that the document is not properly stamped and
the document is unregistered as such no relief can be
granted based on the said document.
3. The trial Court after considering the rival
contentions, rejected the application on the premise that
the document is not properly stamped and not registered.
4. Learned counsel for the appellant Sri Girish
Yadwad, submits that though the agreement for sale is not
properly stamped, the Court has passed an order to
impound the document and the appellant is ready to pay
deficit stamp duty and process is on to make good the
deposit. Since the appellant is ready to pay the deficit
stamp duty, the deficiency in the agreement relating to
the stamp duty is cured as such the trial Court ought to
have granted relief of injunction relying on the said
document.
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MFA No. 101540 of 2019
5. He also submits that the entries in the record of
right would reveal that the plaintiff is in possession and
there is no specific denial relating to the execution of the
agreement in the written statement as such the Court can
certainly hold that the plaintiff is in possession in view of
the stand taken by the defendants.
6. Learned counsel for the respondents would
submit that in the agreement the plaintiff claims to be in
possession of the property. He would refer to Section
17(1A) of the Registration Act and would contend that the
document which purports to transfer the possession of an
immoveable property requires registration and this
document is not registered. In view of the bar contained
under Section 17(1A), the plaintiff cannot claim to be in
possession based on the unregistered agreement for sale.
7. It is also his contention that the document is
not properly stamped and so far the deficit stamp duty is
not paid and assuming that it is paid, the lacuna of
registration is not cured, as such the trial Court is justified
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MFA No. 101540 of 2019
in dismissing the application seeking injunction. He also
contends that the defendants have not admitted the
possession of the plaintiff and defendant No.2 is not a
party to the alleged agreement for sale and would also
contend that the written statement if it is considered in
entirety would lead to the inference that the defendants
have disputed alleged agreement for sale.
8. This Court has considered the contentions.
9. Admittedly, the plaintiff is claiming to be in
possession of the property under the unregistered
agreement for sale where he claims to have taken
possession under the alleged agreement for sale.
10. Section 17(1A) of the Registration Act reads as
under:
"17(1A) The documents containing contracts to
transfer for consideration, any immovable property
for the purpose of section 53A of the Transfer of
Property Act, 1882 (4 of 1882) shall be registered if
they have been executed on or after the
commencement of the Registration and Other
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MFA No. 101540 of 2019
Related laws (Amendment) Act, 2001 and if such
documents are not registered on or after such
commencement, then, they shall have no effect for
the purposes of the said section 53A."
11. On reading of Section 17(1A), it is apparent
that in case the agreement for sale is not registered, then
the person who claims to be in possession of the property
under the said unregistered agreement cannot seek
protection of Section 53A of Transfer of Property Act.
Section 53A provides for protection to the person in
possession of the property pursuant to an agreement for
sale.
12. It is well settled position of Hindu Law that a
purchaser of undivided share of a property cannot claim to
be in joint possession of the property along with persons
who have not sold the remaining undivided share. The
remedy for such person is to file a suit for general
partition, as such, it cannot be contended that the plaintiff
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MFA No. 101540 of 2019
is in joint possession along with person/defendant no.2
who has not sold or agreed to sell the undivided share.
13. This Court does not find any illegality in the
discretionary order passed by the trial Court to interfere
with the limited jurisdiction under Order XLIII of Code of
Civil Procedure.
14. It is also required to be noticed that the suit for
specific performance is filed in the year 2017. More than
six years have elapsed since the suit is filed. Under these
circumstances, both the plaintiff and defendants are
directed to cooperate in the early disposal of the suit and
the trial Court shall also make an endeavor to decide the
suit within eight months from the date of receipt of a copy
of this order.
15. It is also made clear that the observations
made in this order are only confined to the merit of the
interlocutory application and merit of the miscellaneous
appeal challenging the interlocutory order. Nothing is
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MFA No. 101540 of 2019
expressed on the merits of the claim of respective parties.
All contentions of both the parties kept upon to be decided
in the suit.
16. In view of the above, the appeal stands
disposed of.
Sd/-
JUDGE
SH
..
