Karnataka High Court
Sri.G.R. Jayaram vs Sr. Ashith Layanel D. Souza on 7 August, 2024
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NC: 2024:KHC:32477
RSA No. 1019 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1019 OF 2015 (SP)
BETWEEN:
1. SRI.G.R. JAYARAM
AGED ABOUT 62 YEARS
S/O LATE RUDRAPPA GOWDA
R/O SANGAMESHWARAPETE VILLAGE AND POST,
CHIKKAMAGALUR TALUK & DISTRICT - 577 136
2. SMT. LAKSHMAMMA @ JAYALAKSHMI
AGED ABOUT 56 YEARS
W/O C.R. JAYARAM
R/O SANGAMESHWARAPETE VILLAGE & POST,
Digitally CHIKKAMGALURU TALUK & DISTRICT - 577 136
signed by R ...APPELLANTS
DEEPA
Location: (BY SRI. PRASHANTH H S., ADVOCATE)
HIGH COURT
OF AND:
KARNATAKA
SR. ASHITH LAYANEL D. SOUZA
S/O LATE VICTOR D SOUZA
SINCE DEAD BY LRS
SMT. SHAROON
AGED ABOUT 35 YEARS,
W/O LATE ASHIT LAYANEL D SOUZA
R/O VIJAYAGIRI,
R/O BASAPURA DEVADANA VILLAGE,
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RSA No. 1019 of 2015
S.M. PETE POST,
CHIKKAMAGALUR TALUK & DISTRICT - 577 136
...RESPONDENT
(BY SRI. CYRIL PRASAD PAIS., ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 11.02.2015 PASSED IN
R.A NO.11/2012 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 07.12.2011
PASSED IN O.S NO.132/2007 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE, CHIKMAGALUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular second appeal is filed by the appellants
challenging the judgment and decree dated 11.02.2015,
passed in R.A.No.11/2012 by the Principal District Judge,
Chikkamagaluru, confirming the judgment and decree
dated 07.12.2011 passed in O.S.No.132/2007 by the
Additional Senior Civil Judge, Chikkamagaluru.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. Appellants
are the plaintiffs and respondent is the defendant.
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3. The brief facts leading rise to filing of this
appeal are as under:
The plaintiffs filed a suit for specific performance of
contract. It is the case of the plaintiffs that, plaintiffs were
the owners of the suit schedule property, they sold the
suit schedule property in favour of the defendant under
registered sale deed dated 16.03.1989. It was contended
that, the defendant agreed to reconvey the said suit
schedule property under an agreement of reconveyance
dated 31.01.1994. The plaintiffs requested the defendant
to reconvey the suit schedule property in terms of
agreement dated 31.01.1994, but the defendant refused
to reconvey the said property. The plaintiffs got issued a
legal notice on 04.12.2006 calling upon the defendant to
execute his part of agreement. The defendant replied to
the legal notice and failed to reconvey. Hence, cause of
action arose for the plaintiffs to file a suit for specific
performance of contract dated 31.01.1994 directing the
defendant to execute the registered sale deed in respect of
suit property and for possession and for mesne profits.
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4. The defendant filed the written statement
admitting that the plaintiffs were the owner of the suit
schedule property and they have sold the suit property in
favour of the defendant in the year 1989 under the
registered sale deed dated 16.03.1989 and the defendant
denied the execution of reconveyance deed dated
31.01.1994. It is contended that, defendant never agreed
to reconvey the suit schedule property at any point of
time. It is contended that sale deed executed by the
plaintiffs is an absolute sale and not a nominal sale.
Hence, suit filed by the plaintiffs is barred by limitation, as
the suit is filed after 17 years from the date of execution
of alleged agreement for reconveyance. Hence, on these
grounds, prays to dismiss the suit.
5. The trial court on the basis of pleadings of the
parties, framed the relevant issues.
6. The plaintiffs in order to substantiate their case,
plaintiff No.1 was examined himself as PW.1 and examined
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one witness as PW.2 and got marked 6 documents as
Exs.P1 to 6. The defendant examined himself as DW.1,
but no documents marked. The trial court on the
assessment of oral and documentary evidence, dismissed
the suit of the plaintiffs vide judgment dated 07.12.2011.
The plaintiffs aggrieved by the judgment and decree
passed in O.S.No.132/2007, have preferred an appeal in
R.A.No.11/2012 on the file of the Principal District Judge,
Chikkamagaluru.
7. The First appellate court on re-assessment of
oral and documentary evidence, dismissed the appeal
confirming the judgment and decree passed by the trial
court vide judgment dated 11.12.2015. The plaintiffs
aggrieved by the impugned judgments passed by the
courts below, have filed this regular second appeal.
8. Heard the learned counsel for the plaintiffs.
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9. Learned counsel for the plaintiffs submits that,
the plaintiffs sold the suit schedule property in favour of
the defendant in the year 1989 under registered sale deed
and subsequently, the defendant agreed to reconvey the
said property in the year 1994 by executing an agreement
for reconveyance. He submits that plaintiffs requested the
defendant to reconvey the said property, but the
defendant refused to reconvey the schedule property. The
plaintiff got issued a legal notice to the defendant to
reconvey the suit property, but the defendant refused to
reconvey the suit property. He submits that the trial court
has not properly considered alleged agreement executed
by the defendant in favour of the plaintiffs. He also
submits that time was not an essence of contract. Hence,
as per Article 54 of the Limitation Act, if time is not an
essence of contract, suit for specific performance to be
filed within 3 years from the date of denial. Hence, he
submits that defendant has denied the execution of
reconveyance in the year 2007. Hence, suit filed by the
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plaintiffs is within time. Hence, on these grounds, he
prays to allow the appeal.
10. Perused the records and considered the
submissions of the learned counsel for the plaintiffs.
11. It is not in dispute that the plaintiffs were the
owners of the suit schedule property and the plaintiffs
have executed the registered sale deed in favour of the
defendant by executing the registered sale deed on
16.03.1989 and plaintiffs have also delivered the
possession of the suit schedule property in favour of the
defendant. On the strength of registered sale deed, the
name of defendant is appearing in the revenue records. It
is the case of the plaintiffs that, the defendant agreed to
reconvey the suit schedule property by executing the
agreement on 31.01.1994 and the plaintiffs have produced
the agreement marked as Ex.P2, which discloses that the
defendant agreed to reconvey the suit schedule property
after receiving the consideration amount in favour of
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plaintiffs by father of the defendant. Father of the
defendant failed to execute reconveyance, hence, plaintiffs
got issued a legal notice as per Ex.P5 calling upon the
defendant to receive the consideration amount and to
reconvey. The defendant replied to the legal notice
marked as Ex.P6.
12. From the perusal of Ex.P2, though time is not
the essence of contract, the said document was executed
in the year 1994. The suit was filed in the year 2007. The
plaintiffs have not pleaded and proved about the readiness
and willingness in terms of Section 16(3) of Specific Relief
Act. The plaintiffs got issued legal notice on 14.12.2006.
The plaintiffs have not explained the reason from 1994 to
04.12.2006, why they have not shown their readiness and
willingness. The plaintiffs have not made any attempts to
get reconveyance deed executed within reasonable time.
Hence, plaintiffs have not taken any steps to file a suit for
specific performance within a reasonable time. Hence,
plaintiffs filed a suit after lapse of 17 years from the date
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of execution of alleged Ex.P2 and also got issued a legal
notice after lapse of 14 years from the date of execution of
alleged Ex.P2. Thus, the trial court was justified in
dismissing the suit on the ground that suit is barred by
limitation. The first appellate court on
re-assessment of oral and documentary evidence has
rightly confirmed the judgment and decree passed by the
trial court.
13. Both the courts below have concurrently
recorded the finding of fact against the plaintiffs. Hence, I
do not find any error in the impugned judgments and
decree and find any substantial question of law that arise
for consideration in this appeal.
14. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is dismissed.
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ii. The judgments and decree passed by the
courts below are hereby confirmed.
iii. No order as to the costs.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SKS
