Karnataka High Court
Sri M K Shivaji Rao vs Sri R V Shet on 23 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.170/2007 (SP)
C/W.
R.S.A. NO.171/2007 (SP)
IN R.S.A. NO.170/2007:
BETWEEN:
1. SRI M.K.SHIVAJI RAO
S/O KUNTA KAREBASAPPA
AGED ABOUT 64 YEARS
RESIDING AT CHIRADONI VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISTRICT
SINCE DEAD BY LRS
1(a) SMT.LAKSHMAMMA
W/O LATE M.K.SHIVAJIRAO
AGED ABOUT 60 YEARS
1(b) SRI BASAVARAJU
S/O LATE M.K.SHIVAJIRAO
AGED ABOUT 32 YEARS
1(c) SRI HANUMANTHAPPA
S/O LATE M.K.SHIVAJIRAO
AGED ABOUT 29 YEARS
ALL ARE RESIDENTS OF
CHIRADONI VILLAGE
2
CHANNAGIRI TALUK
DAVANAGERE DISTRICT. ... APPELLANTS
[BY SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR
APPELLANT NO.1(a - c) -THROUGH V.C.]
AND:
1. SRI R.V. SHET
S/O LATE VANKATESH SHET
AGED ABOUT 77 YEARS
RESIDING AT CHIRADONI
CHANNAGIRI TALUK
SINCE DEAD BY LRS.
1(a) SRI R.V.VISHWANATH
S/O LATE R.V.SHET
AGED ABOUT 58 YEARS
RESIDING AT KARKI VILLAGE
HONNAVARA TALUK
UTTARA KANNADA DISTRICT
(SINCE DEAD, REPRESENTED BY LRS
ALREADY ON RECORD)
1(b) SRI GANESH S/O LATE R.V.SHET
AGED ABOUT 50 YEARS
RESIDING AT SIRASI VILLAGE
SIRASI TALUK
BHAGIRATHA MARUTHI TEMPLE
RAYARA PETE, SIRASI VILLAGE
UTTARA KANNADA DISTRICT.
1(c) SRI MANJUNATHA R.V.
S/O LATE R.V.SHET
AGED ABOUT 52 YEARS
RESIDING AT BEHIND
BANNIDIBBA GARAGE
KARAVARA POST
KARAVARA DISTRICT.
3
1(d) SRI SOMESHWARA
S/O LATE R.V.SHET
AGED ABOUT 45 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT.
1(e) SMT.VIJAYA GANESH SHET
AGED ABOUT 57 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT.
1(f) SMT. RAJESHWARI VIMALESHWAR SHET
W/O VIMALESHWAR SHET
AGED ABOUT 45 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT.
1(g) SMT. CHANDRAKALA
AGED ABOUT 35 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT.
SINCE DEAD BY LRS.
1(g)(a) SRI RAVINDRA
S/O RAMDAS
AGED ABOUT 22 YEARS
RESIDING AT HOUSE NO.224
4TH CROSS, 2ND MAIN ROAD
JAYANAGAR, BANGALORE.
4
1(g)(b) SRI RAMDAS
AGED ABOUT 55 YEARS
RESIDING AT HOUSE NO.224
4TH CROSS, 2ND MAIN ROAD
JAYANAGAR, BANGALORE.
1(h) SMT.GEETHA
W/O SUYARE
AGED ABOUT 32 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT.
2. SMT. SHARADABAI
W/O R.V.SHET
AGED ABOUT 62 YEARS
R/AT CHIRADONI
CHANNAGIRI TALUK. ... RESPONDENTS
(BY SRI SHREERAM T. NAYAK, ADVOCATE R1(a -f),
R1(g)(a & b) AND R(h) VIDE ORDER DATED 13.01.2023
R1(a to f) ARE LRS OF DECEASED R1 & R2)
THIS R.S.A. IS FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED: 27.10.2006 PASSED IN
R.A.NO.190/2002 ON THE FILE OF THE I ADDL.CIVIL JUDGE
(SR.DN.), DAVANGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED: 31.7.2002
PASSED IN O.S.NO.307/1990 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), CHANNAGIRI AND ETC.
5
IN R.S.A. NO.171/2007:
BETWEEN:
1. SRI M.K.CHANDRAPPA
S/O BASAPPA
AGED ABOUT 68 YEARS
RESIDING AT CHIRADONI VILLAGE
BASAVAPATNA HOBLI
CHANNGIRI TALUK,
DAVANAGERE DISTRICT-577231. ... APPELLANT
(BY SRI P.M.SIDDAMALLAPPA, ADVOCATE [THROUGH VC])
AND:
1. SRI R.V. SHET
S/O LATE VANKATESH SHET
AGED ABOUT 77 YEARS
2. SMT. SHARADABAI
W/O R.V.SHET
AGED ABOUT 62 YEARS
BOTH ARE DIED BY THEIR LRS.
1(a) SRI R.V.VISHWANATH
S/O LATE R.V.SHET
AGED ABOUT 58 YEARS
RESIDING AT KARKI VILLAGE
HONNAVARA TALUK
UTTARA KANNADA DISTRICT
(SINCE DEAD, BY LRS ALREADY ON RECORD)
1(b) SRI GANESH
S/O LATE R.V.SHET
AGED ABOUT 50 YEARS
RESIDING AT SIRASI VILLAGE
SIRASI TALUK
6
BHAGIRATHA MARUTHI TEMPLE
RAYARA PETE, SIRASI VILLAGE
UTTARA KANNADA DISTRICT.
1(c) SRI MANJUNATHA R.V.
S/O LATE R.V.SHET
AGED ABOUT 52 YEARS
RESIDING AT BEHIND
BANNIDIBBA GARAGE
KARAVARA POST
KARAVARA DISTRICT.
1(d) SRI SOMESHWARA
S/O LATE R.V.SHET
AGED ABOUT 45 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT.
1(e) SMT.VIJAYA GANESH SHET
AGED ABOUT 52 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT.
1(f) SMT. RAJESHWARI VIMALESHWAR SHET
W/O VIMALESHWAR SHET
AGED ABOUT 45 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT.
1(g) SMT. CHANDRAKALA
W/O RAMDAS
SINCE DEAD BY HER LRS
7
1(g)(a) SRI RAVINDRA
S/O RAMDAS
AGED ABOUT 22 YEARS
RESIDING AT HOUSE NO.224
4TH CROSS, 2ND MAIN ROAD
JAYANAGAR, BANGALORE.
1(g)(b) SRI RAMDAS
AGED ABOUT 55 YEARS
RESIDING AT HOUSE NO.224
4TH CROSS, 2ND MAIN ROAD
JAYANAGAR, BANGALORE.
1(h) SMT.GEETHA W/O SUYARE
AGED ABOUT 32 YEARS
RESIDING AT NO.6
HONDA CIRCLE MAIN RAOD
SHIVAJINAGAR
DAVANAGERE DISTRICT. ... RESPONDENTS
(BY SRI SHREERAM T. NAYAK, ADVOCATE R1(a -f),
R1(g)(a & b), AND R(h) VIDE ORDER DATED 13.01.2023
R1(a to f) ARE LRS OF DECEASED R1 & R2
THIS R.S.A. IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED: 27.10.2006 PASSED IN
R.A.NO.116/2004 ON THE FILE OF THE I ADDL. CIVIL JUDGE
(SR.DN.), DAVANAGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED: 8.4.2004
PASSED IN O.S.NO.236/1993 ON THE FILE OF THE ADDL.CIVIL
JUDGE (JR.DN.) & JMFC, CHANNAGIRI AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
8
JUDGMENT
R.S.A.No.170/2007 is filed challenging the judgment and
decree dated 27.10.2006 passed in R.A.No.190/2002 and
R.S.A.No.171/2007 is filed challenging the judgment and decree
dated 27.10.2006 passed in R.A.No.116/2004.
2. These appeals are heard together and reserved for
judgment.
3. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of the Court.
4. In R.S.A.No.170/2007, the factual matrix of the case
of the plaintiff before the Trial Court that the defendants are
husband and wife and they have executed an unregistered
agreement of sale dated 18.07.1977 in favour of the plaintiff and
thereby agreed to sell the property bearing Sy.No.82/A
measuring 2 acres of Chiradoni village, Basapatna hobli,
Channagiri taluk for valuable consideration of Rs.17,402/-. On
the date of the said agreement, the entire sale consideration was
paid and the said land was granted land to the defendants. In
the said grant, there was a condition for not to alienate the
property for a period of 15 years. Hence, immediately, after the
lapse of the period of non-alienation clause which was going to
be expired on 16.01.1985, the sale deed was not executed by
the defendants and hence, the plaintiff had approached and
requested the defendants to execute the sale deed, when they
failed to execute the sale deed, a suit has been filed in
O.S.No.307/1990. The defendants appeared and filed the written
statement denying the claim of the plaintiff stating that the
agreement becomes void and the suit is barred by limitation.
The defendants have also made the counter claim of possession
and the plaintiff took the contention that the counter claim is
barred by limitation. Hence, the defendants prayed for dismissal
of the suit.
5. The Trial Court after hearing the parties, framed the
following Issues:
1. Whether plaintiff proves that since the date of grant
he and his brother were cultivating the suit land as
contended?
2. Whether the plaintiff proves that the defendants
agreed to sell the suit land on 18.07.1977 for
Rs.17,402/- and the execution of agreement of sale
by the defendant on the same date?
3. Whether plaintiff proves that he has paid the entire
sale consideration of Rs.17,402/- as contended by
him?
4. Whether the defendants prove that the agreement of
sale is a void document as contended?
5. Whether the plaintiff is entitled to the relief of specific
performance of the suit agreement as prayed for?
6. What decree or order?
Additional Issues
1. Whether the defendant proves that the suit is barred
by limitation?
2. Whether the plaintiff proves that counter claim made
by the defendants is barred by limitation?
3. Whether the defendants are entitled to recover the
possession of the suit schedule property as prayed in
their counter claim?
6. The Trial Court allowed the parties to lead their
evidence and accordingly, the plaintiff examined himself as PW1
and also examined two witnesses as PW2 and PW3 and got
marked the documents at Ex.P1 to P20. On the other hand,
defendant No.1 examined himself as DW1 and got marked the
documents at Ex.D1 to D13. The Trial Court having considered
both oral and documentary evidence placed on record answered
that there was a sale agreement and entire sale consideration
has been paid by answering Issue Nos.2 and 3 and answered
Issue No.4 as affirmative in coming to the conclusion that the
agreement is void and dismissed the suit in coming to the
conclusion that the plaintiff is not entitled for the relief of specific
performance since the suit is barred by limitation and counter
claim is also dismissed in coming to the conclusion that the
counter claim is also barred by limitation and the defendants are
also not entitled for the relief of counter claim. Accordingly, the
suit of the plaintiff as well as counter claim made by the
defendants are dismissed by the Trial Court.
7. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was preferred by the plaintiff in
R.A.No.190/2002 as well as the defendants also preferred an
appeal in R.A.No.183/2002. The First Appellate Court having
considered the grounds urged in the appeal memo, formulated
the following Points:
1. Whether the judgment and decree passed by the Trial
Court in respect of the relief of specific performance of
contract is calls for interference by this Court and
liable for set aside?
2. Whether the judgment and decree passed by the Trial
Court in respect of the relief of counter claim is calls
for interference by this Court and liable for set aside?
3. What order?
8. The First Appellate Court having considered the
grounds urged in the appeal and also re-analysing the material
available on record, answered Point 1 as negative and confirmed
the order of dismissal of the suit of the plaintiff for the relief of
specific performance and answered Point No.2 as affirmative by
reversing the finding of the Trial Court with regard to the counter
claim and allowed the appeal filed by the defendants and
dismissed the appeal filed by the plaintiff. Being aggrieved by
the judgment and decree of the First Appellate Court, the
plaintiff has filed this second appeal before the Court.
9. The main contention of the learned counsel for the
appellant that the impugned judgment and decree of the First
Appellate Court is highly arbitrary in nature and suffers for want
of proper and convincing reasoning and the reason one assigned
by the First Appellate Court is one sided and erroneously comes
to the conclusion that the defendants are entitled for the counter
claim. The First Appellate Court has misread the evidence of
PW1 to PW3 though their evidence has fully corroborated with
the documentary evidence at Ex.P1 to P20. Both the Courts
have committed an error in not granting the relief of specific
performance and the First Appellate Court has erred in believing
the evidence of DW1 in the absence of corroborative evidence in
proof of Ex.D1 to D13. The counsel also would vehemently
contend that no dispute with regard to the agreement and no
dispute with regard to the payment of entire sale consideration
and fails to consider non-alienation clause for 15 years and fails
to take note of the fact that notices were exchanged between
the parties and only the possession can be obtained by due
process of law.
10. In R.S.A.No.171/2007, the factual matrix of the case
of the plaintiff before the Trial Court that the defendants are the
husband and wife and the land described in the suit schedule is
granted to defendant No.1 by the Government under Saguvali
Chit dated 02.08.1976 issued by the Tahsildar, Channagiri. Ever
since from the date of said grant, the plaintiff and his brother -
M.K.Shivaji Rao were cultivating the said land on contract basis
by paying money to defendant Nos.1 and 2 annually at the rate
fixed from time-to-time by mutual agreement. The plaintiff and
his brother cultivated the suit schedule property till 08.03.1979
and so also they have cultivated another 2 acres of land granted
to defendant No.2 from the year 1976-77 up to 18.07.1977. It
is also contended that in the meanwhile, defendants expressed
desire to sell the suit schedule property as they had to repay
certain loans of PLD Bank and needed money for their family
necessity and also for education of their children. Since the
plaintiff and his brother were already cultivating the suit
schedule property and were in possession of the same, they
agreed to sell the same to the plaintiff. After negotiation, it was
agreed between the plaintiff and the defendants on 08.03.1979
to sell the suit schedule property for sale consideration of
Rs.17,600/- and the plaintiff had paid the entire sale
consideration. It is also contended that there was an non-
alienation clause for 15 years, hence, agreed to execute the sale
deed after expiry of 15 years and the possession of the property
was continued with the plaintiff. The sale agreement was
executed on 08.03.1979 and the plaintiff was ever ready to have
the sale deed and defendant No.1 should have execute the
registered sale deed after the expiry of 15 years from the date of
Saguvali Chit which expires on 02.08.1991. The plaintiff
demanded defendant No.1 during last week of May 1993 to
come and execute the registered sale deed but he failed to do
the same. It is also contended by the plaintiff that defendant
No.2 has filed a suit against the plaintiff in O.S.No.35/1990 for
permanent injunction.
11. The defendants appeared and filed the written
statement admitting that the land was granted under Dharkasth
and denied the contention that the plaintiff and defendants
jointly cultivating the suit schedule property. It is also even
denied the very execution of the sale agreement stating that
they have not expressed any desire to sell the property. It is
contended that in the first week of February 1994, the
defendants have been disposed from the suit schedule property
by the plaintiff after the dismissal of the suit in O.S.No.35/1990
and hence, sought for the relief of possession.
12. The Trial Court having considered the pleadings of
the parties, framed the following Issues:
1. Whether the plaintiff proves that the defendants
have agreed to sell the suit schedule property for a
consideration of Rs.17,600/- and the defendants
have executed the agreement of sale by receiving
the entire consideration amount by the plaintiff on
08.03.1979?
2. Whether the plaintiff proves that since the date of
purchase, he is in peaceful possession and
enjoyment of the schedule property openly,
continuously and without any obstruction with the
knowledge of the defendants and thereby perfected
his title by way of adverse possession?
3. Whether the plaintiff proves that the plaintiff was
ever ready and willing to perform his part of
contract as stated in the plaint?
4. Whether the plaintiff proves the cause of action for
this suit?
5. Whether the suit is barred by limitation?
6. Whether the plaintiff is entitled to the relief's as
prayed for?
7. What decree or order?
Additional Issue
1. Whether the defendant is entitled to get possession
of the suit schedule property from the plaintiff?
13. The Trial Court allowed the parties to lead their
evidence and accordingly, the plaintiff examined three witnesses
as PW1 to PW3 and got marked the documents at Ex.P1 to P12.
On the other hand, the defendants examined one witness as
DW1 and got marked the documents at Ex.D1 to D13. The Trial
Court answered Issue No.1 as affirmative in coming to the
conclusion that the plaintiff has proved that the defendants have
agreed to sell the suit schedule property by executing the
agreement on 08.03.1979 for valuable sale consideration of
Rs.17,600/-; answered Issue No.2 as negative with regard to the
adverse possession is concerned; answered Issue No.3 as
affirmative with regard to the readiness and willingness of the
plaintiff to perform his part of contract; answered Issue No.4 as
negative in coming to the conclusion that the plaintiff has not
proved the cause of action for the suit; answered Issue No.5 as
affirmative with regard to the limitation is concerned and
answered Issue No.6 as negative in coming to the conclusion
that the plaintiff is not entitled for the relief of specific
performance and answered additional issue as affirmative in
coming to the conclusion that the defendants are entitled to get
possession of the suit schedule property from the plaintiff.
Thereby, the Trial Court dismissed the suit of the plaintiff and
allowed the counter claim of the defendants. Being aggrieved by
the judgment and decree of the Trial Court, the plaintiff has
preferred an appeal in R.A.No.116/2004.
14. The First Appellate Court having considered the
grounds urged in the appeal, formulated the Points which read
as follows:
1. Whether the judgment and decree passed by the Trial
Court is calls for interference by this Court and liable
for set aside?
2. What order?
15. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record answered Point
No.1 as negative in coming to the conclusion that the judgment
and decree of the Trial Court does not require any interference
and thereby dismissed the appeal filed by the plaintiff/appellant.
Hence, the present second appeal is filed before this Court by
the plaintiff.
16. The main contention of the learned counsel for the
appellant that both the Courts have committed an error in not
appreciating the evidence on record in a proper perspective and
both the Courts have misread the evidence of PW1 to PW3
though their evidence has fully corroborated with the
documentary evidence. The counsel would vehemently contend
that the Trial Court committed an error in relying upon the
documents at Ex.D1 to D13 and the defendants have examined
only one witness and both the Courts believed the evidence of
DW1 and also failed to consider Article 54 of the Limitation Act
wherein it is clear that the limitation provided for specific
performance of contract is three years period. If that has been
considered, the finding of both the Courts is unsustainable. The
counsel further contend that alleged agreement of sale is dated
08.03.1979 and hence, both the Courts erroneously comes to
the conclusion the counter claim is within limitation. Hence, it
requires interference.
17. Per contra, the learned counsel appearing for the
respondents in both the appeals would vehemently contend that
the very contention of the appellant counsel that possession has
to be taken under due process of law cannot be accepted. The
counsel submits that there was a lease deed prior to the alleged
sale agreement i.e., on 01.05.1977 and sale agreement came
into existence on 08.03.1979. The counsel further submits that
the sale agreement is not signed by all the children of the
respondents/defendants. The counsel also submits that notice
was issued by the defendants and not by the respective plaintiffs
and the plaintiffs kept quiet and reply was given by the plaintiffs.
The counsel also submits that the counter claim was made in
both the suits for possession. In O.S.No.307/1990, the counter
claim was rejected but the First Appellate Court rightly reversed
the said finding and granted the relief of possession. In
O.S.No.236/1993, the Trial Court as well as the First Appellate
Court comes to the conclusion that the suit is barred by
limitation and the Trial Court also granted the relief of counter
claim and the same has been confirmed by the First Appellate
Court. The counsel also would vehemently contend that
O.S.No.236/1993 is concerned, the owners themselves have
filed the suit in O.S.No.35/1990 and the same was dismissed
and thereafter the original owners were dispossessed and the
suit was filed in the year 1993 and other suit filed by the
respondents was dismissed in the year 1994. The counsel would
vehemently contend that both the Courts have not committed
any error in granting the counter claim as well as confirming the
same and dismissing the suit of the plaintiff for the relief of
specific performance.
18. This Court would like to refer the common
substantial question of law framed by this Court at the time of
admitting the appeal, which reads as follows:
"Whether the lower appellate Court was justified in
granting a decree for possession on the ground that the
purchaser who was put in part performance of the
agreement of sale lost his right to sue for specific
performance when his suit came to be dismissed as
barred by time??
19. Now, the question before this Court is with regard to
the substantial question of law that whether the original owners
can seek for the relief of possession of the property when the
plaintiffs are unsuccessful in the suit for specific performance.
Having perused the material available on record, it discloses that
in O.S.No.236/1993, it is contended that there was no sale
agreement and possession was taken in the year 1994 illegally
and sought for possession. The Trial Court in both the suits has
given finding that there was a sale agreement. The fact that the
properties which were involved in both the suits are granted by
the Government and the same is not in dispute. It is also
important to note that there is a concurrent finding from both
the Courts that the suit of the plaintiff is barred by limitation. It
is also important to note that in O.S.No.236/1993, the sale
agreement is dated 08.03.1979 for sale consideration of
Rs.17,600/- and entire sale consideration was also paid and the
Trial Court also answered Issue No.1 as affirmative in coming to
the conclusion that there was a sale agreement and entire sale
consideration was paid and also comes to the conclusion that the
plaintiff was always ready and willing to perform his part of
contract. It is also not in dispute that in both the suits, the land
was granted with a condition that not to alienate the property for
a period of 15 years. It has to be noted that in
O.S.No.236/1993, the defendant also made the counter claim of
possession of the suit schedule property from the plaintiff
contending that they were dispossessed and the Trial Court but
comes to the conclusion that the plaintiff came into possession of
the suit schedule property based on the agreement of sale and
the plaintiff filed the suit for specific performance based on
agreement of sale. Hence, the plea of adverse possession and
retaining possession by operation of Section 53A of Transfer of
property Act is inconsistent with each other and hence, the
question of hostile possession does not arise. The Trial Court
while answering Issue No.5 with regard to the period of
limitation is concerned taken note of the fact that the defendants
themselves have issued legal notice on 14.12.1989 and in the
notice itself they have sought for the delivery of possession of
the suit schedule property in favour of the defendants. It is also
admitted by the plaintiff in his evidence that the defendants
themselves have filed a suit in O.S.No.35/1990 on 05.01.1990
for the relief of permanent injunction wherein they have denied
the very execution of the sale agreement at Ex.P2. The Trial
Court and the First Appellate Court taken note of the fact that
notice was issued in the year 1989 and the suit was filed in the
year 1990 for permanent injunction and also taken note of
appearance of the plaintiff in O.S.No.35/1990 is on 29.01.1990
and rightly comes to the conclusion that the suit is not filed
within three years.
20. In O.S.No.307/1990 also the Trial Court comes to
the conclusion that there was an agreement of sale and the
entire sale consideration was paid and taken note that the
agreement is dated 18.07.1977 as well as non-alienation clause
and also taken note that notices were also exchanged between
the parties. Thus, the Trial Court and the First Appellate Court
taken note of the fact that the evidence of witnesses also very
clear with regard to the issuance of notice but plaintiff claims
that the suit is in time from the date of issuance of notice dated
14.12.1989. The Trial Court taken note of the evidence of PW2
and PW3 in this regard. The First Appellate Court also considered
that immediately after expiry of the period of 15 years, that is
from 16.01.1985, limitation starts and also even taken note of
the fact that within one year from the date of expiry of the
period, a demand was made and the same was refused. Hence,
it is taken the year from 1986 and hence, the suit is not filed
within three years even from that date and suit was filed only in
the year 1990. In detail discussed with regard to the fact that
the suit ought to have been filed within three years from the
date of refusal and given finding that the suit is barred by
limitation. Hence, both the Courts come to the conclusion that
the suits are barred by limitation and no steps have been taken
by the plaintiffs, though 15 years has been elapsed immediately
after the completion of non-alienation condition. The defendants
themselves have given notice, till then, the plaintiffs have not
taken any steps in their respective suits.
21. Now, the question before this Court is that whether
the possession can be taken by due process of law as contended
by the respective plaintiffs or whether the defendants are
entitled for taking of possession on account of unsuccessful in
getting the relief of specific performance by the respective
plaintiffs. Both the Courts are come to the conclusion the
respective plaintiffs are not entitled for the relief of specific
performance on the ground of limitation, since both the suits are
not filed within three years and also invoked Article 54 of the
Limitation Act, since notices were exchanged between the
parties and also the suit was filed for the relief of permanent
injunction by the defendants and the defendants can seek the
relief of possession and the defendants can claim the counter
claim. The Trial Court in O.S.No.307/1990, rejected the counter
claim but the First Appellate Court reversed the said finding in
coming to the conclusion that the counter claim is within time
and the Trial Court in O.S.No.236/1993 granted the relief of
counter claim.
22. The very contention of the counsel for the respective
appellants that possession has to be sought under due process
of law and the said contention cannot be accepted when the
counter claim made in the very same suits filed by the plaintiffs
and the same is itself also is an under due process of law and
counter claim can be entertained in a suit filed by the plaintiffs
and the same is also invoking counter claim as provided under
the CPC. Both the Courts have taken note of the said fact into
consideration. When the plaintiffs themselves have not entitled
for the relief of specific performance, the question of continuing
with the possession does not arise and the same has been
discussed in detail by both the Courts that equity cannot be
claimed by the respective plaintiffs and the relief of equity is
applicable to both. Both the Courts in detail discussed taking into
consideration of protection under Section 53A of Transfer of
Property Act and comes to the conclusion that the plaintiffs are
not entitled for the benefit of said Section because they have
filed suits for the relief of specific performance after the
limitation period. When they loose their right of specific
performance, cannot remain in possession of the suit property,
they cannot resist the suit of the true owner for possession of
the suit schedule property. Section 53A also incorporates
doctrine of equity therefore in order to invoke the protection
under the doctrine of part-performance and the said possession
must be valid and when he lost his right and if the right under
the agreement is lost by law of limitation, even if it is lost during
the pendency of the suit, it is open to the party to take
advantage of the same and the Court to take note of it. When
the person is in possession of the suit schedule property, loses
his right to remain in possession, he cannot resist the suit of the
true owner for possession. It is also important to note that once
he lost his right under the agreement by dismissal of the suit, it
would be inconsistent and incompatible with his right to remain
in possession under the agreement. Even otherwise, a
transferee can avail of Section 53A only as a shield but not as a
sword and the same is held in the decision of the Apex Court
reported in AIR 1996 SC 910 in the case of MOHAN LAL
(DECEASED) THROUGH HIS LRS. KACHRU AND OTHERS vs
MIRA ABDUL GAFFAR AND ANOTEHR. This Court also in the
judgment reported in ILR 1992 KAR 429 held that the person
in possession losing right cannot resist the suit of the owner for
the possession.
23. In the case on hand, no doubt, both the plaintiffs
have filed the suits for the relief of specific performance and
both of them have failed to get the decree for specific
performance hence, they cannot defend their possession under
Section 53A of Transfer of Property Act. When the plaintiffs loose
their right to remain in possession of the suit schedule property,
they cannot retain the possession contending that possession
must be under due process of law. I have already pointed out
that the defendants have made counter claim in both the suits
contending that the suit is barred by limitation and hence, the
plaintiffs are not entitled for any relief and the defendants are
entitled for possession and the same has been considered by
both the Courts in one suit and appeal and in another appeal,
reversed the finding of the Trial Court regarding the counter
claim rejection. Though the counter claim not considered in
O.S.No.307/1990 by the Trial Court, the same was reversed by
the First Appellate Court having reassessed the material
available on record and allowed the appeal in R.A.No.183/2002
and rightly dismissed the suit filed by the plaintiff/appellant in
R.A.No.190/2002 and so also in other appeal, the First Appellate
Court rightly confirmed the judgment and decree of the Trial
Court passed in O.S.No.236/1993 in an appeal filed in
R.A.No.116/2004 having reassessed the material available on
record and also considering both the question of law and
question of fact. Having considered the substantial question of
law framed by this Court while admitting the appeal, this Court is
of the opinion that the First Appellate Court in R.A.No.183/2002
and 116/2004 and the Trial Court in O.S.No.236/1993 have not
committed any error in granting the relief of possession since
both the plaintiffs/purchasers have lost their right to sue for
specific performance and the same has been attained finality and
concurrent finding was made by both the Courts for the relief of
specific performance is concerned. When the suits of the
plaintiffs are barred by limitation, First Appellate Court was
justified in granting the relief of decree for possession in other
suit which was rejected. Hence, I answer the substantial
question of law as affirmative in coming to the conclusion that
the First Appellate Court was justified in granting a decree for
possession on the ground that the purchasers though put in
possession in part performance of the agreement, they lost their
right to sue for specific performance on the ground of limitation
and they cannot be remain in possession when they lost their
valuable right of specific performance.
24. In view of the discussions made above, I pass the
following:
ORDER
The appeals are dismissed.
Sd/-
JUDGE
SN
