Karnataka High Court
Sri. Bananagada G Poonacha vs Sri. Banangada G Muddaiah on 6 December, 2023
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NC: 2023:KHC:44140
RSA No. 2128 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.2128 OF 2016 (POS)
BETWEEN:
SRI.BANANAGADA G.POONACHA
S/O LATE GANPATHY
AGED ABOUT 66 YEARS
HYSODLOOR VILLAGE
VIRAJPET TALUK - 571218
SOUTH KODAGU DISTRICT
...APPELLANT
(BY SRI.MRINAL KUTTAPPA, ADVOCATE FOR
SMT.LEELA P DEVADIGA, ADVOCATE)
AND:
Digitally signed
by CHAITHRA
A SRI.BANANGADA G.MUDDAIAH
Location: HIGH S/O LATE GANAPATHY
COURT OF AGED ABOUT 69 YEARS
KARNATAKA
HYSODLOOR VILLAGE
VIRAJPET TALUK - 571218
SOUTH KODAGU DISTRICT
...RESPONDENT
THIS RSA IS FILED U/SEC.100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 07.09.2016 PASSED IN R.A.
NO.32/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE,
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RSA No. 2128 of 2016
VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DTD: 30.05.2007 PASSED IN
O.S.NO.54/2004 ON THE FILE OF THE ADDL. CIVIL JUDGE
(JR.DN.) JMFC., VIRAJPETE AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful plaintiff, who has questioned the concurrent
judgments rendered by both the Courts, wherein plaintiff's
suit seeking vacant possession of the schedule property by
receiving a sum of Rs.4,000/- is dismissed by both the
Courts.
2. For the sake of brevity, the parties are referred as
they are ranked before the Trial Court.
3. Facts leading to the case are as under;
Plaintiff and defendant are the brothers and they own
immovable properties namely Coffee Estate and wet lands
in Hysodlur Village. The plaintiff claims that to reach his
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coffee estate from his house, he needs to pass through
wet land through a footpath over the bund of the wet land
in Sy. No.111. The plaintiff contended that it is difficult to
transport manure coffee and other agricultural produce
from his coffee estate. The plaintiff has further contended
that his brother Biddaiah has left about 3 feet area of his
wet land in Sy. No.111, which is adjacent to the bund and
therefore, the plaintiff requested the defendant to leave
some land adjacent to the wet land in Sy. No.111, so as to
enable the plaintiff to have 11 feet road. Therefore, the
plaintiff contended that the panchayath was held on
12.09.2001 and in terms of the agreement, the defendant
agreed to leave a portion of his land measuring 8 feet in
width and 200 feet in length to enable the plaintiff to have
access through his coffee estate. In exchange of open
space, the defendant agreed to accept Rs.4,000/- from the
plaintiff. The present suit is filed alleging that though
defendant has executed an agreement and is a party to
the agreement, in spite of repeated requests, the
defendant has not come forward to honour the agreement
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by leaving land as agreed. Hence, the present suit is filed
seeking relief of possession and a direction is sought
against the defendant to hand over the possession of the
agreed portion under the agreement by receiving an
amount of Rs.4,000/-.
4. Defendant on receipt of summons tendered
appearance and filed written statement. Though defendant
admitted agreement, however, contended that the
agreement between plaintiff and defendant imposes
corresponding obligations on the plaintiff as well as on the
defendant. The defendant contended that the plaintiff has
not honoured the obligations incorporated in the
agreement and he is guilty of not honouring the terms and
conditions. The defendant claimed that under the
agreement, the plaintiff was also required to provide a
right of way to the defendant to have access to his family
house. The plaintiff refused to honour the said agreement
and blocked the way and therefore, defendant was
compelled to form his own road to have access to his
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house. Therefore, the defendant contended that he is not
liable to oblige the obligations and honour the agreement
and give up a portion of the land to form a road in his
land.
5. The plaintiff and defendant to substantiate their
respective claims have let in oral and documentary
evidence.
6. The Trial Court referring to the pleadings, oral
and documentary evidence let in by both the parties,
though answered Issue No.1 in the Affirmative and held
that plaintiff has succeeded in proving the agreement,
however, answered issue No.2 in the Negative. The Trial
Court, while answering issue No.3 in the Affirmative, held
that the defendant has succeeded in proving that the
agreement dated 12.09.2001 is not enforceable in law.
On these set of grounds, the Trial Court proceeded to
dismiss the suit.
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7. The Trial Court, while answering issue No.3 in the
Affirmative, has taken cognizance of the evidences of
panchayathdars. Referring to their evidence, the Trial
Court was of the view that though plaintiff and defendant
entered into an agreement, both the parties have not
acted upon the agreement and therefore, referring to
these evidences, the Trial Court held that suit agreement
is not enforceable. Therefore, the plaintiff is not entitled
for the reliefs as sought in the plaint. Accordingly, the suit
is dismissed.
8. Feeling aggrieved by the judgment and decree of
the Trial Court, the plaintiff preferred an appeal before the
Appellate Court. The Appellate Court being a final fact
finding authority has independently assessed the oral and
documentary evidence let in by both the parties. The
Appellate Court has also examined the evidence of the
panchayathdars, who are examined as P.Ws.2 and 3.
Referring to the evidences of both the panchayathdars, the
Appellate Court found that the plaintiff has not honoured
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the agreement. Both the panchayathdars have also
specifically stated that plaintiff and defendant under the
agreement were required to reciprocally honour the
agreement and implement their obligations as agreed
under the agreement. Both the panchayathdars have
specifically stated that both plaintiff and defendant are
guilty of not complying their obligations under the
agreement vide Ex.P.1. Referring to these materials on
record, the Appellate Court was not inclined to interfere
with findings and conclusions recorded by the Trial Courts.
The appeal is dismissed. These concurrent findings are
under challenge.
9. Before I advert to the facts of the case, it would
be useful for this Court to cull out the prayer sought in the
plaint. The true copy of the plaint is furnished by the
learned counsel appearing for the plaintiff and the prayer
column reads as under.
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"Wherefore, it is prayed that this Hon'ble
Court may be pleased to pass judgment and
decree against the defendant:-
a) Ordering him to leave and surrender
vacant possession of the schedule property to
the plaintiff by receiving a sum of Rs.4,000/-
(Four Thousand Rupees Only) or such amount
that may be determined by Court.
b) Costs of the suit.
c) Such other relief/s as this Hon'ble
Court may deems fit under the circumstances
of the case."
10. On examining the prayer column culled out
supra, it is clearly evident that the plaintiff is seeking
possession of the suit schedule property with a direction to
the defendant to receive an amount of Rs.4,000/- or any
such amount that may be determined by the Court.
11. In terms of the agreement vide Ex.P.1, the
plaintiff was required to provide access to the defendant to
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reach his family house and the defendant reciprocally was
required to give up a portion of his land in Sy. No.111 to
enable the plaintiff to have access to his coffee estate from
his residential house. This agreement is arrived at the
intervention of the panchayathdars, who are examined as
P.Ws.2 and 3. Both the panchayathdars, who are
examined as P.Ws.2 and 3 in the case, have specifically
deposed that plaintiff and defendant are both guilty of not
complying terms and conditions of the agreement vide
Ex.P.1. These significant details are taken note of by the
Trial Court as well as by the Appellate Court. If the plaintiff
has not honoured the obligations that were casted on him,
then this Court is of the view that the Trial Court was
justified in answering issue No.2 in the Negative. The Trial
Court has held that the plaintiff has failed to prove his
readiness and willingness to perform his part of obligation
under the agreement.
12. If prayer sought in the plaint is examined, this
Court would find that the present suit is not for specific
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performance of contract. The plaintiff has sought for
possession with a direction against the defendant to
receive an amount of Rs.4,000/-. Though proper reliefs
are not sought in the plaint, however, both the Courts
have proceeded on an assumption that the plaintiff has
instituted the present suit seeking specific performance of
the agreement vide Ex.P.1. If plaintiff has declined to
perform his part of obligations under the agreement and if
he has refused to provide access to the defendant, then I
am of the view that both the Courts were justified in
dismissing the suit filed by the plaintiff. If plaintiff himself
is guilty of not performing his part of obligation, plaintiff is
not entitled to enforce the agreement against the
defendant. If plaintiff has refused to grant access through
the existing road so as to enable the defendant to have
access to his residential house, he cannot enforce the
agreement and claim a portion of the land owned by the
defendant by enforcing the agreement. Both the Courts
referring to the conduct of the parties has rightly come to
the conclusion that the agreement dated 12.09.2001 is not
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enforceable on account of breach on the part of the
plaintiff. Since the plaintiff has refused to provide access
through the existing road, the defendant has formed a
new road to have access to his residential house. If these
significant details are looked into, then I am of the view
that the concurrent judgments rendered by both the
Courts does not warrant any interference at the hands of
this Court.
No substantial question of law arises for
consideration in this appeal.
Accordingly, the appeal is dismissed.
Pending applications, if any, are also dismissed.
Sd/-
JUDGE
NBM
