Karnataka High Court

Shri.Nagoji Bhavaku Dayagonde vs Smt.Madhuri W/O Maruti Shinde on 8 December, 2023

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                                                               NC: 2023:KHC-D:14420
                                                                   RSA No. 100106 of 2021




                                       IN THE HIGH COURT OF KARNATAKA
                                               DHARWAD BENCH

                                 DATED THIS THE 8TH DAY OF DECEMBER, 2023

                                                      BEFORE

                                  THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                              REGULAR SECOND APPEAL NO.100106 OF 2021 (SP)

                              BETWEEN:

                              SHRI. NAGOJI BHAVAKU DAYAGONDE
                              AGE: 67 YEARS, OCC: AGRICULTURE,
                              R/O: H.NO.69, GAVALI GALLI,
                              BEKINKERI VILLAGE, BELAGAVI.
                                                                              ...APPELLANT
                              (BY SRI. VENKATESH M.KHARVI, ADVOCATE)


                              AND:

                              SMT.MADHURI W/O. MARUTI SHINDE
                              AGE: 62 YEARS, OCC: HOUSEHOLD,
                              R/O: H.NO.185, SHAHAPUR, BELAGAVI.
                                                                            ...RESPONDENT
           Digitally signed
           by VISHAL
                              (BY SRI. SOURABH HEGDE, ADVOCATE)
VISHAL     NINGAPPA
           PATTIHAL
NINGAPPA   Date:
PATTIHAL   2023.12.14              THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
           11:39:00
           +0530              100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
                              JUDGEMENT AND DECREE DATED 19.12.2020 PASSED IN
                              R.A.NO.154/2019 ON THE FILE OF THE III ADDITIONAL SENIOR
                              CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI,
                              DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
                              DECREE DATED 11.09.2019, PASSED IN O.S. NO.1460/2011 ON
                              THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND JUDICIAL
                              MAGISTRATE FIRST CLASS, BELAGAVI DISMISSING THE SUIT
                              FILED FOR SPECIFIC PERFORMANCE OF CONTRACT AND
                              PERMANENT INJUNCTION.
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                                  NC: 2023:KHC-D:14420
                                    RSA No. 100106 of 2021




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

                       JUDGMENT

1. The present regular second appeal by the

unsuccessful plaintiff, assailing the judgment and decree

of the Courts below, whereby, the suit seeking for the

relief of specific performance of contract and permanent

injunction was dismissed.

2. The parties herein are referred to as per their

ranking before the trial Court, for the sake of convenience.

3. Suit seeking for the relief of specific

performance of contract directing the defendant to execute

the registered sale deed in respect of the suit property as

per the agreement of sale, dated 29.06.1992 and in

alternative, the defendant to be directed to refund the sale

consideration of Rs.15,000/- along with damages with

interest @ 18% per annum from 29.06.1992, till its

realization and restrain the defendant from interfering with

the peaceful possession and enjoyment of the suit

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property. It is averred in the plaint that in the event the

Court comes to the conclusion that the sale deed is an

unregistered sale deed, it has to be treated as an

agreement of sale for the purpose of specific performance

of a contract. It is further averred that the defendant is

the legal representative of the deceased - Rama Hari

Shinde and the name of the defendant has been mutated

in the revenue records and she is bound by the sale deed

executed by her father-in-law.

4. Pursuant to the suit summons issued by the

trial court the defendant appeared and filed her written

statement, inter alia, contending that the suit property

was in the ownership of the deceased, Rama Hari Shinde

and he was the exclusive owner in lawful possession of the

suit property and Rama Hari Shinde died, leaving behind

the defendant as a sole legal surviving heir and she has

acquired right over the suit property. It is contended that

her father-in-law has never, at any point of time, executed

any sale deed or an agreement of sale, as alleged by the

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plaintiff on 25.09.2006 and the said document was

created, fabricated and concocted. The defendant

contended that the suit of the plaintiff was barred by

limitation and sought dismissal of the suit.

5. The trial Court, on the basis of the pleadings,

framed the following issues:

"1) Whether the plaintiff proves that, the defendant has executed an agreement of sale on 29-06-1992 with respect to suit property in his favour?

2) Whether the plaintiff proves that, he is in possession of the suit property in pursuance of agreement of sale dated: 29-06-1992?

     3)    Whether      the    plaintiff   proves    that,    the
           defendant     has     received    an     amount     of

Rs.15,000/- on sale consideration for suit property?

4) Whether the plaintiff proves that, the defendant is disturbing his peaceful possession over the suit property as alleged in plaint?

5) Whether the defendant proves that suit of the plaintiff is barred by limitation?

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6) Whether the plaintiff is entitled for specific performance of contract?

7) Whether the plaintiff is entitled for Permanent Injunction?

8) Whether the plaintiff is entitled for alternative relief of refund Rs.15,000/- and at what rates of interest?"

6. Later, issue Nos.1 & 3 were reframed by the

trial Court and the reframed issues are as under:

"1) Whether the plaintiff proves that the deceased Rama Hari Shinde had executed the sale deed on 29.06.1992 with respect to the suit property in his favour?

3) Whether the plaintiff proves that the deceased Rama Hari Shinde had received Rs. 15,000/- as sale consideration for the suit property?"

7. In order to substantiate their claim, the plaintiff

got examined himself as PW1 and got marked documents

at Exs.P1 to P13 and the translated copy of Ex.P13 was

marked as Ex.P13(a) and one Mallappa B. Dhayagonde

has been examined as PW2. On the other hand, the

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defendant got examined herself as DW1 and got marked

documents as per Exs.D1 & D1(a).

8. The trial Court, on the basis of the pleadings,

oral and documentary evidence, arrived at a conclusion

that,

(i) the plaintiff has failed to prove that the

deceased Rama Hari Shinde had executed

the sale deed on 29.06.1992 in respect of

the suit property;

(ii) the plaintiff has failed to prove that he is

in possession of the suit property in

pursuance of the agreement of sale, dated

29.06.1992; &

(iii) the plaintiff failed to prove that deceased

- Rama Hari Shinde had received

Rs.15,000/- as a sale consideration for

the suit property;

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and the trial Court by the impugned judgment and

decree dismissed the suit, however, held that the suit of

the plaintiff is not barred by limitation.

9. Feeling aggrieved by the judgment and decree

of the trial Court, an appeal was preferred before the first

appellate Court by the plaintiff. The first appellate Court,

while re-appreciating and reconsidering the entire oral and

documentary evidence independently, concurred with the

judgment and decree of the trial Court and held that the

suit of the plaintiff lacks merits and also held that the suit

is barred by limitation.

10. Aggrieved by the concurrent findings of facts of

the Courts below, the present regular second appeal, by

the plaintiff.

11. Heard Shri Venkatesh M.Kharvi, learned counsel

for the appellant and Shri Sourabh Hegde, learned counsel

appearing for the respondent.

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12. In addition to various other contentions raised

in the appeal memo by the learned counsel for the

appellant, the main contention of the appellant is that the

agreement of sale dated 29.06.1992 through an

unregistered sale deed for Rs.15,000/- and on the same

day, the plaintiff had handed over possession of the suit

property and this aspect was totally overlooked by the

Courts below. The Courts below have concurrently held

that the plaintiff has failed to establish that there is an

unregistered sale deed or an agreement of sale in favour

of the plaintiff, which is contrary to the oral and

documentary evidence placed by the plaintiff and would

contend that there arises substantial question of law for

consideration in the present appeal.

13. Per contra, learned counsel appearing for the

respondent would justify the judgment and decree of the

Courts below and would contend that the Courts below

have rightly arrived at a conclusion that the plaintiff has

failed to prove the genuineness of the agreement of sale

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or to be the sale deed as alleged by the plaintiff, his

possession over the suit property as well and the first

appellate Court being the last fact finding Court, while

re-appreciating the entire oral and documentary evidence

has observed that the suit is barred by limitation, if it is on

the basis of an agreement of sale and if Ex.P13 is

construed as a sale deed, in the absence of deed of

conveyance which requires to be duly stamped and

registered no right, title or interest in an immovable

property can be transferred and the essential ingredient

necessary to constitute a sale has been failed to be

established by the plaintiff. Learned counsel would

contend that the findings of facts recorded by the Courts

below do not warrant any interference by this Court and

no substantial question of law arises for consideration in

this appeal.

14. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties

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and perused the material on record, more particularly the

judgment and decree of the Courts below.

15. Undisputed facts are that the father-in-law of

the defendant, namely, Rama Hari Shinde, was the owner

of the suit property. The plaintiff has set up a claim

stating that on 29.06.1992, the deceased - Rama Hari

Shinde executed an unregistered sale deed in his favour

for sale consideration of Rs.15,000/- and also states that,

in the event the Court comes to the conclusion that it is

not a sale deed, the deed is to be treated as an agreement

of sale to seek specific performance of a contract. The trial

Court held that the suit of the plaintiff is not barred by

limitation. Insofar as the deed at Ex.P.13, whether the

document is an agreement of sale or an unregistered sale

deed, the plaintiff has failed to establish the very

execution of the document at Ex.P13 by the deceased,

Rama Hari Shinde, at any point of time in favour of the

plaintiff.

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16. If the contention of the plaintiff is taken that

the document at Ex.P.13 is a sale deed, the definition of

sale as envisaged under Section 54 of the Transfer of

Property Act, 1882 ('the TP Act' for short) needs to be

looked into. Section 54 of the TP Act defines sale, which

reads as under:

"54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

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Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."

17. The transfer of immovable property by way of

sale can only be by a deed of conveyance (sale deed). In

the absence of deed of conveyance as envisaged under

Section 17 of the Registration Act, no right, title or interest

in an immovable property can be transferred. The Apex

Court in the case of Suraj Lamp & Industries (P) Ltd.

v. State of Haryana1 has held that the transfer of

immovable property by way of sale can only be by a deed

of conveyance and in the absence of deed of conveyance

(duly stamped and registered as required by law) no right,

title or interest in the immovable property can be

transferred.

18. In the instant case, admittedly Ex.P.13 is an

unregistered document, in the absence of registration of

(2011)11 SCC 438

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the document at Ex.P13, there is no right, title and

interest transferred in the suit property to the transferee

as envisaged under Section 54 of the TP Act and if the

document is to be treated as an agreement and possession

has to be established, it also needs to be registered as

envisaged under Sections 17(1)(b) and 49 of the

Registration Act and the plaintiff has failed to prove the

genuineness of the document itself on both counts,

whether it is to be construed as an unregistered sale deed

or a sale agreement.

19. The Trial Court held that the suit of the plaintiff

is not barred by limitation since the date of refusal by the

defendant was only in the year 2011. The first appellate

Court while re-appreciating the entire oral and

documentary evidence has arrived at a conclusion that if

the document at Ex.P.13 is termed as an agreement of

sale, then the suit of the plaintiff is obviously barred by

limitation as per Article 54 of the Limitation Act, 1963 ('the

Act' for short. Article 54 of the Act reads as under:

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54. For specific Three years The date fixed for the performance of performance, or, if no a contract such date is fixed, when the plaintiff has notice that performance is refused.

20. Article 54 of the Act is in two folds: the first

part states regarding when the date is fixed for

performance, second part if no such date is fixed, when

the plaintiff has noticed that performance is refused. In

the present facts, it is termed to be an agreement of sale

applying the second part of Article 54 of the Act since no

time was fixed for the execution of the sale deed, the

agreement of sale is of the year 1992, the suit being filed

in the year 2011 and notice was issued only prior to the

institution of the suit seeking the defendant to come

forward for execution of the sale deed. The plaintiff has

failed to prove that the suit of the plaintiff is within