Karnataka High Court
Dattappa Since Deceased By Lrs vs Mohd.Abdul Zahoor S/O Mohd.Abdul ... on 13 February, 2024
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RSA No. 7175 of 2010
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 7175 OF 2010 (DEC)
BETWEEN:
DATTAPPA SINCE DECEASED
BY LRS.
SIDDAMMA W/O.DATTAPPA SINCE
DEAD BY LRS.
1. HANAMANTH
S/O DATTAPPA,
(DELEATED AS PER ORDER DATED 16.11.2022)
2. RAJAPPA S/O DATTAPPA,
AGE: MAJOR, OCC: BUSINESS,
3. SUBHASH S/O LATE. DATTAPPA
DIED PER LRS.
Digitally signed 3(A) SARALA W/O LATE.SUBASH,
by SACHIN
Location: HIGH AGE: 50 YEARS, OCC: HOUSEHOLD,
COURT OF
KARNATAKA R/O: H.NO.6-4-48, JAWAHAR BAZAR,
BIDAR-585401.
3(B) SPOORTI D/O LATE.SUBASH,
AGE: 20 YEARS, OCC: STUDENT,
R/O H.NO.6-4-42, JAWAHAR BAZAR,
BIDAR-585401.
3(C) SISHIR S/O LATE.SUBASH,
AGE: 18 YEARS, OCC: STUDENT,
R/O H.NO.6-4-42, JAWAHAR BAZAR,
BIDAR-585401,
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RSA No. 7175 of 2010
THEY ARE BROUGHT ON RECORD AS PER ORDER
DATED 16.11.2022.
4. SMT.SHAKUNTALA
AGE: MAJOR, OCC:SERVICE,
ALL ARE R/O.H.NO.6-4-10,
JAWAHER BAZAR, BIDAR.
...APPELLANTS
(BY SRI. K M GHATE, ADVOCATE FOR A-2,A-3(A) TO (C) & A-4)
AND:
1. MOHD.ABDUL ZAHOOR
S/O MOHD.ABDUL RAZZAK,
AGE:MAJOR, OCC:BUSINESS,
R/O: BIDAR.
GUNDERAO SINCE DECEASED BY
LRS
2. SMT.RAJU
S/O LATE.GUNDERAO DESHPANDE,
AGE: 44 YEARS,
3. SMT.RENUKA
D/O LATE.GUDERAO DESHPANDE,
AGE: 41 YEARS, OCC: HOUSEHOLD.
4. SMT.ROHINI
D/O.LATE GUNDERAO DESHPANDE,
AGE: 36 YEARS, OCC: HOUSEHOLD.
ALL ARE R/O: HYDERABAD.
...RESPONDENTS
(NOTICE TO R-2, R-3 AND R-4 SERVED BUT UN-REPRESENTED
; NOTICE TO R-1 IS HELD SUFFICIENT, V/O DATED
06.02.2024)
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RSA No. 7175 of 2010
THIS RSA IS FILED UNDER SECTION OF 100 OF CPC,
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 10.02.2010 PASSED IN
R.A.NO.123/2004 BY THE LEARNED PRESIDING OFFICER, FAST
TRACK COURT-I, CONFIRMING THE JUDGMENT AND DECREE
DATED 29.11.2000 PASSED IN O.S.129/1987 BY THE
ADDL.CIVIL JUDGE(JR.DN.) BIDAR AND TO GRANT ANY OTHER
APPROPRIATE RELIEF.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by legal representatives of
defendant No.1 challenging the judgment and decree
dated 10.02.2010 passed in RA.No.132 of 2004 on the
file of the Presiding Officer, Fast Track Court-I, Bidar,
dismissing the appeal and confirming the judgment
and decree dated 29.11.2000 passed in OS.No.129 of
1987 on the file of the Additional Civil Judge (Jr. Dn.),
Bidar, decreeing the suit of the plaintiff in part.
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2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The plaint averments are that, the plaintiff is the
owner in possession of the suit schedule property
having purchased the same as per registered Sale
Deed dated 20.07.1979, and modified Correction Deed
dated 03.10.1989, from defendant No.2. It is averred
in the plaint that, the plaintiff has leased the suit
schedule property in favour of the defendant No.1 on
monthly rent of Rs.50/- and thereafter, the defendant
No.1 failed to pay the rent, to the plaintiff and as
such, the plaintiff has filed HRC No.4 of 1982 against
the defendant No.1, which came to be dismissed by
the competent court on 18.03.1987 on the ground
that, the tenancy has not been established. However,
it is contended in the plaint that, the ownership and
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title of the plaintiff over the suit schedule property has
been decided in favor of the plaintiff. Hence, the
plaintiff has filed OS No.129 of 1987 seeking releif of
declaration of title and recovery of possession from
the defendant No.1.
4. After service of summons, defendant No.1
entered appearance and filed written statement.
During the pendency of the suit, defendant No.1 died
and his legal representatives were brought on record.
It is contended by legal representatives of defendant
No.1 that, defendant No.1 has entered into Sale
Agreement dated 02.02.1956 with the defendant No.2
and the defendant No.1 is in possession of the suit
schedule property and therefore, it is contended in the
written statement that, the defendant No.1 is entitled
for possession under Section 53(A) of the Transfer of
Property Act. It is also stated in the written statement
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that, the defendant No.1 perfected the title by adverse
possession and accordingly, they sought for dismissal
of the suit.
5. Defendant No.2 entered appearance by filing
written statement and admitted the execution of the
registered Sale Deed dated 20.07.1979 in favour of
the plaintiff and accordingly, sought for decreeing of
the suit in favour of the plaintiff.
6. On the basis of the rival pleadings, the trial Court
has formulated issues for its consideration.
7. In order to establish their case, plaintiff has
examined 03 witnesses as PW1 to PW3 and got
marked 06 documents as Exs.P1 to P6. Defendants
have examined 04 witnesses as DW1 to DW4 and
marked 01 document as Ex.D1.
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8. The trial Court, after considering the material on
record, by its judgment and decree dated 29.11.2000
decreed the suit of the plaintiff and being aggrieved by
the same, the defendant No.1 has preferred Regular
Appeal in RA.No.132 of 2004 on the file of First
Appellate Court and the said appeal was resisted by
the plaintiff. The First Appellate Court, after re-
appreciating the facts on record, by its judgment and
decree dated 10.02.2010 dismissed the appeal and
confirmed the judgment and decree passed by the
trial Court in OS.No.129 of 1987. Being aggrieved
same, the legal representatives of defendant
No.1/appellants have preferred this Regular Second
Appeal under Section 100 of CPC.
9. This Court by order dated 13.08.2015 framed the
following substantial question of law:
1) Whether the first appellate court has committed a
serious error in answering point No.(3) in the
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negative, refusing to give protection to the
appellant in terms of Section 53-A of the Transfer
of Property Act for part performance in spite of
answering point no.(2) in the affirmative, holding
that the Agreement of Sale dated 20.07.1979 is
proved and possession is handed over to the 1st
defendant on the strength of the said document ?
2) Whether the judgment of the first appellate court
is perverse and illegal ?
10. Heard Sri K.M.Ghate, learned counsel appearing
for the appellants. Respondents are served but
remained absent. Perused the material on record.
11. Sri K.M.Ghate, learned counsel for the appellants
argued that, the Trial Court has wrongly answered
issue Nos.5(A) and 5(B) with regard to the possession
of the defendant No.1 in terms of Agreement of Sale
dated 02.02.1956 between the defendant No.1 and
defendant No.2. He further argued that, the said
aspect has been re-appreciated by the First Appellate
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Court and arrived at a conclusion to dismiss the
appeal, however, the finding recorded by the First
Appellate Court on point No.3, requires to be looked
into, as the same is made in favour of the defendant
No.1, however, the First Appellate Court dismissed the
appeal and accordingly, he sought for interference of
this Court. In order to buttress his arguments, learned
counsel appearing for the appellants refers to the
judgment of the Hon'ble Supreme Court in the case of
Shamrao Suryavanshi and others vs. Pralhad
Bhairoba Suryavanshi by Lrs. and others reported
in AIR 2002 SC 960 and contended that, the law of
limitation barred only an action, however, the
defendant No.1 is having remedy under Section 53A of
Transfer of Property Act, and accordingly, sought for
interference of this Court.
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12. In the light of the arguments advanced by the
learned counsel appearing for the appellants, I have
carefully examined the finding recorded by both the
Courts below and perused the original records.
Undisputably the plaintiff has purchased the schedule
property from defendant No.2, as per registered Sale
Deed dated 20.07.1979 (Ex.P1) and Correction Deed
(Ex.P2). It is also not in dispute that the plaintiff has
filed HRC No.4 of 1982 (Ex.P5), against the defendant
No.1 and said petition came to be dismissed as the
jural-relationship between the parties has not been
proved to be as landlord and tenant. It is also to be
noted that the defendant No.1 has filed written
statement contending that the plaintiff is not the
owner in possession of the land in question, however,
took up a specific contention at paragraph 11 of the
written statement seeking relief as the defendant No.1
perfected his title by adverse possession as the
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defendant No.1 was in possession for more than 12
years. In the backdrop of this aspect, I have carefully
considered the contention raised by the learned
counsel appearing for the appellants with regard to
remedy under Section 53A of the Transfer of Property
Act. In Shamrao Suryavanshi's case, supra, Hon'ble
Supreme Court laid down the guidelines at paragraphs
16 and 17, which reads as under:
"16. But there are certain conditions which are
required to be fulfilled if a transferee wants to
defend or protect his possession under Section 53-
A of the Act. The necessary conditions are-
1) there must be a contract to transfer for
consideration any immovable property.
2) the contract must be in writing, signed by the
transferor, or by someone on his behalf;
3) the writing must be in such words from which
the terms necessary to construe the transfer can
be ascertained:
4) the transferee must in part performance of the
contract take possession of the property, or of any
part thereof:
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5) the transferee must have done some act in
furtherance of the contract; and
6) the transferee must have performed or be
willing to perform his part of the contract.
17. We are, therefore, of the opinion that if the
conditions enumerated above are complied with,
the law of limitation does not come in the way of a
defendant taking plea under Section 53-A of the
Act to protect his possession of the suit property
even though a suit for specific performance of a
contract has barred by limitation."
13. In the said judgment, the Hon'ble Supreme Court
has arrived at a conclusion that, the High Court was
erred in not considering the protection given to the
defendant under Section 53A of the Transfer of
Property Act, solely on the ground that the defendant
has not filed suit for specific performance. But the
declaration of law made by the Hon'ble Supreme Court
has to be considered in the light of the facts of this
case, where the proceedings were held before the HRC
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Court, in HRC No.4 of 1982. In the said suit itself, the
HRC court has arrived at a conclusion that jural-
relationship has not been proved. In the backdrop of
these aspects, Trial Court has framed issues No.5A
and 5B and arrived at a conclusion that, as the
defendant No.2, who is the vendor of suit schedule
property in favor of the plaintiff, admitted the
registered Sale Deed dated 20.07.1979 and further
the Trial Court after considering the aspect, that,
Ex.D1, which is the Sale Agreement executed on
02.02.1956 in favour of the defendant No.2 by the
father of defendant No.1, and same has not
materialized by execution of the registered Sale Deed.
It is also not the case of defendant No.1, that
defendant No.1 has made any attempt to enforce the
Sale Agreement dated 02.02.1956. In that view of the
matter, I am of the opinion that, finding recorded by
the Trial Court on issue Nos.4 and 5A and 5B are just
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and proper. Therefore, I do not find material illegality
in the judgment and decree passed by the Trial Court.
It is also pertinent to mention that, no attempt is
made by the defendant No.1 to prove Ex.D1-
Agreement of Sale before the Trial Court. In that view
of the matter, finding recorded by the Trial Court
holding that the plaintiff has to be declared as owner
of the property in question is just and proper.
However, insofar as finding recorded by the First
Appellate Court, particularly with reference to point
No.1 raised by appellants herein, the First Appellate
Court, though discussed the entire material on record
taking into consideration the provision under Section
53A of the Transfer of Property Act, arrived at a
conclusion that, defendant No.1 has kept the
documents Ex.D1 in dark and has not been acted upon
till the proceedings before the HRC Court. In that
view of the matter, issue No.3 was held to be negative
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by the First Appellate Court. Taking into consideration
the finding recorded by the both the Courts below as
the defendant No.1 has failed to file suit for specific
performance of the contract, against the defendant
No.2 (original owner of the property in question) and
looking into the scope and ambit of Section 53A of the
Transfer of Property Act, which protects the
possession of the property though very limited right
subject to the satisfaction of the condition enumerated
under Section 53A of the Act and in that view of the
matter, though the transferee, defendant No.1 herein,
is entitled to resist the claim made by the plaintiff
regarding possession, however, the defendant No.2
himself, has sold the suit schedule property in favour
of the plaintiff as per registered Sale Deed dated
20.07.1979. Evidence of the PW3 makes it clear that,
the defendant No.1 has slept over the matter for
decades and raised the plea only in HRC proceedings
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and in that view of the matter, finding recorded by the
both the Courts below are just and proper and I do
not find any material illegality committed by both the
Courts below, taking into consideration the fact that,
the defendant also raised plea related to adverse
possession having perfected title by adverse
possession which runs contrary to his own plea in the
written statement stating that, there is Agreement of
Sale dated 02.02.1956 with the defendant No.2. In
that view of the matter, I do not find any merit in the
appeal and accordingly, the substantial questions of
law framed above favours the plaintiff and Regular
Second Appeal is dismissed.
Sd/-
JUDGE
SB
