B Subramanya vs Sri M Shivarama Gowda
2023 Latest Caselaw 6428 Kant

                           1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                         BEFORE
     THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
     REGULAR SECOND APPEAL NO.2431 OF 2008(SP)

BETWEEN:
B. SUBRAMANYA,
S/O SHYAMA JOSHI,
AGED ABOUT 48 YEARS,
MERCHANT, RESIDING AT
BELLARE CASBA VILLAGE,
SULLIA TALUK-574 601
POST: BELLARE,
DAKSHINA KANNADA.
                                         ...APPELLANT
(BY SRI. KESHAVA BHAT, ADVOCATE FOR
    SRI. SACHIN B.S, ADVOCATE )

AND:

1.     SRI. M. SHIVARAMA GOWDA,
       S/O DERANNA GOWDA,
       AGED ABOUT 58 YEARS,
       LAND OWNER,
       RESIDING AT SAVANOOR VILLAGE,
       PUTTUR TALUK-574 201,
       DAKSHINA KANNADA.

2.     GULAM YUNUS KHAN,
       S/O KARIM KHAN,
       AGED ABOUT 68 YEARS,
       RESIDING AT KOORNADKA OF
       KEMMINJE VILLAGE,
       PUTTUR TALUK,
       POST: DARBE-574 202,
       DAKSHINA KANNADA.
                                       ...RESPONDENTS
(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE FOR R1,
   R2 IS SERVED)
                                       2




      THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT           & DECREE DTD:              25.10.2008, PASSED IN
RA.NO.105/1990 ON THE FILE OF THE PRL.CIVIL JUDGE
(SR.DN.)       PUTTUR    D.K.,   ALLOWING           THE   APPEAL    AND
SETTING ASIDE THE JUDGEMENT AND DECREE DATED
30.07.1990, PASSED IN OS.NO.194/1989 ON THE FILE OF
THE PRL. MUNSIFF, PUTTUR, D.K.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR      JUDGMENT       ON    18.08.2023,          COMING    ON     FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                             JUDGMENT

This regular second appeal is filed by the appellant /

plaintiff under Section 100 of Code of Civil Procedure, 1860

challenging the judgment and decree passed by Principal

Senior Civil Judge, Puttur in R.A.No.105/1990 dated

25.10.2008, whereby the learned Civil Judge has set aside

the decree of specific performance granted by the Principal

Munsiff Puttur in O.S.No.194/1989 and thereby dismissed

the suit.

2. For the sake of convenience, the parties herein

are referred with original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

that the defendant No.1 is the absolute owner of schedule

property having acquired the same by way of assignment

from government on 17.06.1971 and he was enjoying the

property as its owner. The defendant No.1 thought of

alienating the suit schedule property, but there was a clause

of non alienation for 15 years. However, he entered into a

sale agreement of 'A' schedule property with plaintiff for a

sum of Rs.15,000/- vide agreement dated 26.05.1985

agreeing to execute the sale deed after completion of non-

alienation period. It is also asserted that the defendant No.1

has received a sum of Rs.7,350/- as an earnest money and

balance was to be paid at the time of execution of the sale

deed. The plaintiff was all along willing to perform his part of

the contract and for improvement of the suit schedule

property, defendant No.1 has executed a Power of Attorney

in favour of brother of the plaintiff and later on, the Power of

Attorney was cancelled. It is also alleged that Defendant

No.1 has tried to create fraudulent document and is keen on

selling the schedule property to others and hence, the

plaintiff has filed the suit for specific performance. He has

also sought relief of injunction against defendant No.1 from

alienating the schedule 'A' property. Subsequently, the

plaintiff sought the relief of declaration that the sale deed in

favour of defendant No.2 was got created and it is an illegal

document not binding on the plaintiff.

4. The defendant No.1 has appeared by advancing

the case and filed a consent written statement and further

submitted that he has no objection for decreeing the suit.

5. The defendant No.2 was not impleaded in the

suit initially and it is asserted that when he got knowledge

regarding collusive suit between plaintiff and defendant

No.1, he got impleaded himself and filed a written

statement.

6. According to defendant No.2, he entered into

agreement of sale with defendant No.1 in April 1977 and on

02.05.1977, an agreement of sale was executed for

Rs.3,250/- and defendant No.1 has agreed to execute the

registered sale deed after completion of 15 years and

possession was also handed over to defendant No.2. He

claims that sale deed was executed by defendant No.1 as

agreed before filing the suit. He has denied the rest of the

allegations and sought for dismissal of the suit.

7. The trial court, on the basis of these pleadings,

has framed the following nine issues:

(i) Whether the agreement dated: 26.5.1985 alleged to have been entered into between the plaintiff and 1st defendant is true, valid and binding on the 2nd defendant?

(ii) Whether the 1st defendant and 2nd defendant entered into an agreement for the sale of the plaint 'A' schedule property on 2.5.1977?

(iii) Whether the plaintiff is entitled to the relief of specific performance of the agreement dt:26.5.1985?

     (iv)    Whether the sale deed executed by the
             1st      defendant        in    favour   of   the       2nd

defendant does not derive title to the suit property?

(v) Whether the plaintiff is entitled to the relief of injunction?

(vi) Whether the frame of the suit is proper?

(vii) Whether the 2nd defendant is entitled to the costs under Sec.35A of C.P.C?

(viii) To what reliefs are the parties entitled?

     (ix)    What order as to costs?
     5(a)     Whether the plaintiff is entitled to the
             cancellation         of    registered       sale        deed
             dt:26.6.1986?

8. The brother of the plaintiff who was neither the

Power of Attorney holder nor authority was got examined

himself as PW1. Further, three witnesses were examined as

PW2 to PW4 and 23 documents at Ex.P1 to Ex.P23 are

marked. The defendant No.1 was got examined himself as

DW1 and Defendant No.2 was examined as DW2. Further

Defendant No.2 has got examined four witnesses on his

behalf as DW3 to DW6 and he placed reliance on 17

documents marked at Ex.D1 to Ex.D17. Further, Ex.C1 to

Ex.C4 were also marked.

9. After hearing the arguments and after perusing

the oral and documentary evidence, the learned Munsiff has

answered issue Nos.1, 3, 4, 5(a) and 6 in the affirmative,

while issue Nos.2, 5, 7 were answered in the negative and

ultimately, decreed the suit by granting specific performance

in favour of the plaintiff. Being aggrieved by this judgment

and decree, the defendant No.2 has approached the learned

Additional Senior Civil Judge, Puttur in R.A.No.105/1990. The

Learned Additional Senior Civil Judge after re-appreciating

the oral and documentary evidence, has allowed the appeal

by setting aside the impugned judgment and decree passed

by the trial court and dismissed the suit filed by the plaintiff.

Being aggrieved by this divergent opinion, the plaintiff is

before this court by way of this Regular Second Appeal.

10. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for the

respondent.

11. The learned counsel for the plaintiff / appellant

would contend that suit for specific performance was filed

and there was 15 years prohibition for alienation and the

agreement of the plaintiff was dated 26.05.1985 and suit for

specific performance came to be filed in 1986. The main

contention of the learned counsel for the appellant is that the

defendant No.1 has admitted the execution of the agreement

of sale in favour of plaintiff and thereby, the trial court has

rightly decreed the suit and the learned Additional Senior

Civil Judge has erroneously reversed it. He would further

contend that as per the case of defendant No.2, he entered

into an agreement on 02.05.1977 and possession was

delivered, which is against the grant norms of 15 years

alienation. He would also assert that after filing of the suit,

sale deed was executed by defendant No.1 in favour of

defendant No.2 and it is hit by the principles of lis pendence.

Hence, he would contend that defendant No.2 is not a

bonafide purchaser, since, the agreement in favour of

plaintiff was admitted and defendant No.1 did not dispute

the claim and the appellate court has erroneously reversed

the finding. Hence, he would contend that when defendant

No.2 is not a bonafide purchaser, question of he defending

the suit does not arise at all. Hence, he would contend that

the judgment and decree of the learned Additional Senior

Civil Judge is erroneous and perverse and sought for

interference by setting aside the same and restoring the

judgment and decree of the trial court.

12. Per contra, the learned counsel for defendant

No.2 contends that the agreement in favour of defendant

No.2 is in 1977 itself and sale deed was executed after

stipulation of bar of statutory period of 15 years. He would

further assert that the General Power of Attorney was

executed on 03.05.1985 in favour of PW1 i.e., the brother of

plaintiff and on 04.01.1986 it was cancelled. He would also

assert that General Power of Attorney holder of defendant

tendered the evidence on behalf of plaintiff and the

defendant No.1 has voluntarily appeared by advancing the

case by filing consenting written statement. He would

contend that he could have directly executed the sale deed

and there was no need for him to advance the case and

there was no need to file suit at all, which clearly disclose

that both defendant No.1 and plaintiff have colluded with

each other. He would also dispute the capacity of PW1 to

give evidence on the ground that he had no personal

knowledge of the agreement. He would also assert that the

sale deed in favour of defendant No.2 was executed on

28.06.1986 and it is only registered on 03.07.1986 and the

suit is filed on 01.07.1986 after execution of the sale deed.

He would contend that the defendant No.2 is not only

bonafide purchaser, but his agreement is well in advance

and question of principles of lis pendence will not be

applicable to him. He would also contend that void

agreement, during the prohibition period cannot be enforced

and he challenges the authority of PW1 to give evidence as

he is neither the Power of Attorney holder nor authorized

person to give evidence. Hence, he disputes the claim.

13. This court while admitting the appeal on

18.12.2008, framed following substantial question of law:

"1. Whether the lower Appellate Court was justified in reversing the Trial Court's judgment and holding that the agreement of sale is not proved by the

plaintiff in the face of the admission made by the defendant in his written statement with regard to the agreement itself?"

14. At the outset, the plaintiff has filed the suit for

enforcement of agreement of sale dated 26.05.1985.

Admittedly as on that date, the bar for alienation was still in

force. The suit land was granted in favour of defendant No.1

on 17.06.1971. Hence, plaintiff cannot enforce an agreement

dated 26.05.1985 when there was already bar for alienation.

The agreement in favour of plaintiff is produced at Ex.P2

dated 26.05.1985. It is also evident that the plaintiff has

placed reliance on Ex.P11 and Ex.P12 and PW1 as a General

Power of Attorney holder executed these documents in

favour of plaintiff while availing the loan. Ex.P18 is the

complaint filed on by PW1 as a General Power of Attorney

holder of defendant No.1 before the police. The evidence

also disclose that on 04.01.1986, defendant No.1 by issuing

notice as per Ex.D23/ D26 to PW1 cancelled the General

Power of Attorney executed in favour of PW1 as per Ex.P3.

Interestingly, in none of these documents, there is any

reference of Ex.P2 and no explanation was forthcoming.

15. Apart from that, PW1 in his cross-examination

specifically admitted that there is no impediment of

reference of Ex.P1 at the time of giving notice as per Ex.D7.

Even Ex.D14 is another sale agreement dated 03.03.1986 in

respect of schedule property in the name of Narayan Gowda

said to have executed by defendant No.1 and Ex.D7 is the

notice dated 28.03.1986 given by PW1 to defendant No.1 as

well as Naryan Gowda. In none of these documents, the

reference of Ex.P2 is forthcoming. Hence, the conduct of the

parties clearly discloses that Ex.P2 appears to have been

created subsequently.

16. At the same time, the conduct of defendant No.1

is also relevant, since, he has executed agreement of sale in

faovur of defendant No.2, in favour of plaintiff as per Ex.P2

and in favour of one Narayan Gowda. He has also executed

sale deed in favour of defendant No.2 and later on, by

advancing the case, appears in this suit and consents for

decreeing the suit. Hence, the conduct of defendant No.1

clearly disclose that he is colluding with the plaintiff and his

consent written statement cannot be ground for decreeing

the suit. At the same time, PW1 initially acted as a Power of

Attorney of defendant No.1 and there are serious allegations

made against him, but subsequently,he is giving evidence on

behalf of plaintiff without any authority against defendants.

17. All along, it is asserted that the defendant No.1

could not have handed over the possession of the property

to defendant No.2 in view of the alienation bar, but the said

rule is also applicable to PW1, since, PW1 claims that from

21.09.1988 he was the General Power of Attorney holder

and he was in possession of the suit property and developed

by investing the amount. Hence, prima facie it is forthcoming

that the cause of action shown itself is a fake cause of action

created for filing the collusive suit between plaintiff and

defendant No.1.

18. As per Ex.P2, the value of the suit schedule

property is shown to be Rs.15,000 in 1985 and Ex.D3-notice

given by PW1 to Sripathy Rao Advocate, it is mentioned that

PW1 has borrowed a sum of Rs.80,000/- and he has

invested his own amount for the schedule property. PW1 was

then Power of Attorney holder of defendant No.1 and

question of he personally investing in the property does not

arise at all. PW1 being the General Power of Attorney holder

of defendant No.1 has given evidence on behalf of plaintiff

whose interest in respect of schedule property is adverse

with each other and it clearly disclose that PW1 is playing a

dual role having an eye on the property and as such, the

genuineness of the claim of the plaintiff itself becomes

doubtful. The plaintiff has not entered into witness box nor

he has given Power of Attorney in favour of PW1. All along, it

is asserted that it is a joint family property and hence, as a

family member PW1 is prosecuting it, but that was not the

case made out by the plaintiff.

19. Further DW1 in his cross-examination admitted

the registered sale deed Ex.D13 executed by him in favour of

defendant No.2 before Sub-Registrar. The evidence of DW2

and DW6 clearly establish that from the date of execution of

the agreement of sale in 1977, defendant No.2 is in

possession of the suit schedule property. Further the trial

court observes that the plaintiff is not in possession of the

suit schedule property, but PW1 claims that he is in

possession of the suit schedule property. However, the trial

court subsequently directs the defendants to put plaintiff in

possession of the suit schedule property and these versions

of the trial court are inconsistent and contrary.

20. Since, the plaintiff has approached the court

seeking discretionary relief of the specific performance, he is

required to substantiate his claim as grant of specific

performance is a discretionary relief. Plaintiff must succeed

or fall on his own pleadings. The trial court in fact,

condemned the conduct of PW1 and defendant No.1, but

again, accepted their evidence. When there is a prior

agreement in favour of defendant No.2 and when sale deed

was executed after stipulated period and before institution of

the suit, question of granting relief in favour of plaintiff does

not arise at all. Apart from that, plaintiff is not prosecuting

the suit and all along, it is PW1 who has prosecuted the suit.

21. The learned counsel for the appellant / plaintiff

placed reliance on a decision in 'JUGRAJ SINGH AND

ANOTHER VS. LABH SINGH AND OTHERS', AIR 1995 SC

945, but the principles relied on the said decision will not

come to the aid of the appellant since, defendant No.2 is not

a subsequent purchaser, but in fact, his agreement is prior

to that of plaintiff. The learned counsel for the appellant

further placed reliance on a decision in 'SATISH KUMAR

VS. KARAN SINGH AND ANR.', AIR 2016 SC 737, but

the Hon'ble Apex Court in the said decision has held that the

suit property being not transferable for a period of 10 years

and agreement of sale is not an enforceable contract. The

said principle is directly applicable to the case in hand and

this principle is against the plaintiff / appellant herein, since

plaintiff is seeking enforcement of the agreement, which was

executed during the stipulated period of 15 years bar for

alienation and after stipulated period, sale deed in favour of

defendant No.2 came to be executed. Hence, the said

decision will not come to the help of the appellant but on the

contrary it will help the defendant No.2. The learned counsel

for the appellant further placed reliance on a decision in

'SMT. NARAYANAMMA AND ANR. ETC. VS.

GOVINDAPPA AND ORS. ETC.', AIR 2019 SC 4654

wherein the Hon'ble Apex Court, has observed as under:

"Specific Relief Act (47 of 1963), S.16 - Karnataka Land Reforms Act (10 of 1962), S.61(1), S.61(3)-

Specific performance of contract-Agreement to sell-Predecessor-in-title executed registered mortgage deed in favour of plaintiff-Grant of suit property is of year 1983 and transfer in question is of year 1990 which is within prohibited period of 15 years-Agreement executed during non-alienation period of 15 years is illegal as hit by S.61 of Act- Predecessor-in-title and plaintiff are equally responsible for illegal agreement-Suit for specific performance, not maintainable. Maxim: Ex turpi causa non oritur actio- Applicability. Maxim: In pari delicto potior est condition defendetis et possidentis- Applicability."

But again, it is the plaintiff who is seeking enforcement

of the agreement, executed during non alienation period of

15 years and hence, it cannot be enforced, but sale deed in

favour of defendant was already executed subsequent to

stipulation period and hence, question of treating it as illegal

does not arise at all.

22. On the contrary the learned counsel for the

respondent No.1/defendant No.2 placed reliance on a

decision in 'VIDYADHAR VS. MANKIKRAO', LAWS (SC)

1999 3 34. The learned counsel for respondent No.1 invites

the attention of this court to para 16, wherein the Hon'ble

Apex Court has observed as under:

"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC

230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 madh Pra 225, also followed the Privy Council decision

in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.

23. Hence, when the plaintiff does not appear into

witness box and states his own case on oath and did not

offer himself for cross-examination, the adverse inference is

required to be drawn as against him under Section 114 of

the Indian Evidence Act. In the instant case also the plaintiff

never entered into witness box and it is all along, PW1 who

is the brother of the plaintiff who is prosecuting for plaintiff

without Power of Attorney also. What is the interest of PW1

in prosecuting the matter is not at all forthcoming and

hence, in view of the observations of the Hon'ble Apex Court

referred above, PW1 has no authority to depose on behalf of

plaintiff and as such, the plaintiff cannot succeed in the suit.

The trial Court has committed a material mistake in

decreeing the suit in the absence of plaintiff getting

examined himself. However, even after making observations

regarding conduct of PW1 and defendant No.1, the trial

Court accepted their evidence and ignored the conduct of

defendant No.1 as well as dual capacity played by PW1.

24. The appellate court considered all these aspects

in its proper perspective and analyzed the oral and

documentary evidence in detail and has rightly dismissed the

suit by allowing th appeal. The lower appellate court has also

considered the evidentiary value of the evidence of PW1 as

he is neither Power of Attorney holder nor authorized person

having personal knowledge of the transaction. No illegality or

perversity is found in the judgment and decree passed by

lower appellate court so as to call for interference. Hence,

considering these aspects, the first appellate court is justified

in holding that the plaintiff has failed to prove the agreement

of sale, Ex.P2 inspite of the admission given by defendant

No.1. Hence, the substantial question of law framed by the

court is answered in favour of defendant No.2 / respondent

No.1 herein. As such, the appeal being devoid of any merits

does not survive for consideration and needs to be rejected.

Accordingly, I proceed to pass the following:

ORDER

(i) The Regular Second Appeal is dismissed with

costs through out.

Sd/-

JUDGE

SS