Karnataka High Court
Sri Muniswamy vs Sri Nissar Ahmed on 27 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 985 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 985 OF 2014 (SP)
BETWEEN:
SRI.MUNISWAMY,
S/O MEKALLAPPA,
AGED ABOUT 80 YEARS
R/A KADIREGOWDANAKOTE VILLAGE,
KAMMASAMUDRAM POST,
BANGARPET TALUK - 563 114.
...APPELLANT
(BY SRI. NATARAJ H.C., ADVOCATE)
AND:
1. SRI. NISSAR AHMED
S/O. LATE SHAIK ABDULLA,
R/AT NEAR CIVIL HOSPITAL COMPOUND,
Digitally signed ROBERTSONPET, KGF 563125,
by
NARAYANAPPA SINCE DEAD BY HIS LRS
LAKSHMAMMA
Location: HIGH
COURT OF 1(A). SMT ZARIN TAJ
KARNATAKA W/O LATE NISSAR AHMED,
AGED ABOUT 45 YEARS,
R/AT MANGAMMAPALYA,
HOSUR ROAD,
BEHIND BILLAL MASJID,
BANGALORE - 560 099.
1(B). SRI. MASOOD AHMED,
S/O. LATE NISSAR AHMED,
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RSA No. 985 of 2014
AGED ABOUT 25 YEARS,
R/AT MANGAMMAPALYA,
HOSUR ROAD,
BEHIND BILLAL MASJID,
BANGALORE - 560 099.
1(C). SMT. SHABARIM TAJ
D/O. LATE NISSAR AHMED,
W/O SYED ALI,
AGED ABOUT 35 YEARS,
R/AT RALLABUDUGUR,
KUPPAM TALUK - 517 425.
1(D). SMT. NASEERN TAJ
D/O LATE NISSAR AHMED,
W/O HIDAYUTULLA,
AGED ABOUT 33 YEARS,
R/AT KANCHETTAHALLI,
MALUR TALUK - 563 130.
1(E). SMT. YASIM TAJ,
D/O LATE NISSAR AHMED,
W/O AMJADULL,
AGED ABOUT 31 YEARS,
R/AT TANNEY ROAD,
HIDAYAT NAGAR,
8TH CROSS,
BANGALORE - 560 045.
1(F). SMT. AHMADHI ANJUM,
D/O LATE NISSAR AHMED,
W/O WASEEM REHAMAN,
AGED ABOUT 28 YEARS
R/AT PEENYA 2ND STAGE,
HEGANAHALLI CROSS,
BANGALORE - 560 110.
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RSA No. 985 of 2014
1(G). SMT. SALMA ANJUM,
D/O LATE NISSAR AHMED,
W/O LATE RAIFQ,
AGED ABOUT 22 YEARS,
R/AT ARAHALLI,
HASSAN DISTRICT - 573 201.
...RESPONDENTS
(BY SRI. RAVINDRANATH K., ADVOCATE R1(A) TO R1(G))
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 15.04.2014 PASSED IN
R.A.NO.20/2012 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE
AND JMFC., K.G.F, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 13.04.2012
PASSED IN O.S.NO.250/2003 ON THE FILE OF PRL. CIVIL
JUDGE AND ADDL. JMFC, KGF.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant who was the defendant in OS.No.250/2003
and respondent in RA.No.20/2012 is before this Court
challenging the divergent judgment of the First Appellate
Court seeking for the following reliefs:
"WHEREFORE, the Appellant above named
humbly prays that this Hon'ble Court may
kindly be pleased to:
(a) Call for records.
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(b) Set aside the Judgment and Decree passed
in R.A.No.20/2012 dated 15.04.2014, passed
by the Additional Senior Civil Judge and
J.M.F.C at K.G.F, which reverses the Judgment
and Decree dated 13.04.2012 passed by the
Civil Judge Junior division at K.G.F in
O.S.No.250/2003 and consequently dismiss
the suit O.S.No.250/2003.
(c) Pass such relief as deem fit by this Hon'ble
Court, in the interest of justice and equity."
2. The suit in OS.No.250/2003 was filed by the deceased
respondent No.1 for specific performance of an
agreement dated 14.08.1988 contending that it is only
after the Karnataka Prevention of Fragmentation and
Consolidation of Holdings Act 1966, (for short
'Fragmentation Act') was repealed, that the plaintiff had
issued a notice, calling upon the defendant to execute a
sale deed, the defendant not having executed the sale
within the time frame, even after having admitted the
agreement, the relief of specific performance has been
sought for.
]
3. The trial Court dismissed the said suit on the ground that
the suit was barred by limitation. The Fragmentation Act
having been repealed on 03.01.1991, the suit ought to
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have been filed within three years of the date of such
repeal that is by 02.01.1994. The suit having been filed in
the year 2003 was beyond the period of limitation and as
such, the suit being one for specific performance, the
delay in filing the suit, apart from the suit being barred
by limitation would not require the trial Court to exercise
its powers to grant discretionary relief of specific
performance.
4. The First Appellate Court vide the judgment dated
15.04.2014 set-aside the judgment of the Trial Court and
decreed the suit for specific performance, on the ground
that the plaintiff had established his readiness and
willingness for execution and registration of a sale deed.
The plaintiff having issued a notice on 04.03.2003 in
terms of Ex.P2, the defendant having replied for the
same on 10.03.2003 at Ex.P3, the suit having been filed
on 05.08.2003, the suit was within time. It was for the
reason that in the reply there is no refusal as such and
taking into consideration that the agreement was
subsisting, the First Appellate Court exercising the
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discretion under Section 20 of Specific Relief Act, granted
the relief of Specific Performance. It is challenging the
said judgment, the appellant is before this Court.
5. The above appeal was admitted on 05.12.2022 to answer
the following substantial question:-
"Whether the First Appellate Court is
justified in holding that the suit for specific
performance is in time despite the law
relating to the Karnataka Prevention of
Fragmentation and Consolidation of
Holdings Act, 1966 was amended in 1991
and the restriction relating to alienation was
removed in the year 1991 itself?"
6. Learned counsel for the appellant submits that there
being a clause in the agreement of sale at Ex.P1 that the
sale has to be executed after the repeal of the
Fragmentation Act. The repeal has occurred on
03.01.1991, claim for execution of the sale deed was to
be made and in the event of not being executed to
initiate such proceedings as may be necessary in relation
thereto within a reasonable period of time. The cause of
action arose for the first time on 03.01.1991 when the
Fragmentation Act stood repealed and it is on such repeal
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that the plaintiff was entitled to seek for specific
performance of the agreement of sale. The cause of
action in this case is not one as determined by the
parties, but one determined on the basis of an act of the
State in repeal of the Fragmentation Act. There is no
obligation on the part of the vendor to do anything post
the repeal of the Fragmentation Act, thus it was for the
plaintiff to have sought for the execution of sale deed
within three years from the said repeal. The plaintiff not
having done so, a notice came to be issued only on
04.03.2003 as per Ex.P2, which is nearly nine years after
the period of limitation came to an end, even considered
that the repeal has occurred in the year 1991.
7. This delay has remained completely unexplained and no
explanation could be given thereto in terms of Article 54
of the Limitation Act, the limitation period fixed for suit
for specific performance is three years which needs to be
calculated from the date fixed for the performance if no
date is fixed from the date when the plaintiff has received
notice of refusal of such performance.
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8. In the present case the date for performance has been
fixed to be the date of repeal of the Fragmentation
Act, the date which is required to be taken into
consideration is 03.01.1991 and the date having been so
in terms of Article 54, the period of limitation for any suit
by 02.01.1994. Notice itself having been issued on
04.03.2002 and the suit having been filed on 05.08.2003
is way beyond the period of limitation and is, therefore
barred by limitation. As such, I answer the substantial
question raised by holding that the First Appellate Court
was not justified in applying the principles of Section 20
of the Specific Relief Act to grant a relief of specific
performance and has also misapplied Article 54 of the
Limitation Act. Since the calculation of period of limitation
was required to be made from the date of repeal that
being the date fixed for performance and not on the basis
of a notice being issued by applying Section 20 of the
Specific Relief Act.
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9. In that view of the matter, I pass the following
ORDER
i. The above second appeal is allowed.
ii. The judgment and decree passed in RA.No.20/2012
dated 15.4.2014 passed by the Additional Senior
Civil Judge and JMFC, K.G.F is set-aside.
iii. The judgment and decree passed by the Principal
Civil Judge and Additional JMFC, K.G.F in
OS.No.250/2003 is confirmed. The suit stands
dismissed.
iv. Needless to say that since the relief for specific
performance has been rejected. However, there is a
clear admission made by the defendant that a sum
of Rs.5,000/- been received in full and final
settlement of sale consideration, the defendant is
directed to refund the said amount along with 6%
interest from the date of receipt by the deceased
first defendant, till the receipt thereof by the
plaintiff. The said amount shall be refunded within a
period of two months from today.
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v. Pending I.A's do not survive for consideration and
stand dismissed.
Sd/-
JUDGE
p
PK
