Sri K Mahabala Adiga vs Sri Ramachandra Adiga
2024 Latest Caselaw 11505 Kant

Karnataka High Court

Sri K Mahabala Adiga vs Sri Ramachandra Adiga on 23 May, 2024

Author: M.G.S.Kamal

Bench: M.G.S.Kamal

                            1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF MAY, 2024

                        BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                R.S.A.NO. 1598 OF 2023

BETWEEN:

1.   SRI. K. MAHABALA ADIGA
     AGED ABOUT 78 YEARS,

2.   SRI. ANANTHA ADIGA
     AGED ABOUT 76 YEARS,

3.   SRI. K. SRINIVASA ADIGA
     AGED ABOUT 74 YEARS,

4.   SRI. K. SHANKARANARAYANA ADIGA
     AGED ABOUT 72 YEARS,

5.   SRI. K. LAXMINARAYANA ADIGA
     AGED ABOUT 66 YEARS,

     APPELLANTS NO. 1 TO 5 ARE THE
     CHILDREN OF KOTESHWARA ADIGA
     AND ARE RESIDING AT BASAVA GUDI,
     POST KOTESHWARA VILLAGE - 576 222,
     KUNDAPURA TALUK,
     UDUPI DISTRICT.
                                      ... APPELLANTS

(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)

AND:

1 . SRI RAMACHANDRA ADIGA
                          2



   AGED ABOUT 74 YEARS,
   S/O LATE PADMANABHA ADIGA,
   NO. 26, KANDAVARA, 2ND CROSS,
   AICO BOO NAGAR,
   B.T.M. LAYOUT, II STAGE,
   BANGALORE - 560 076.

2 . SRI. SATHYANARAYANA ADIGA
    AGED ABOUT 71 YEARS,
    S/O LATE PADMANABHA ADIGA,
    HAMPAKATTE,
    POST BALKOOR - 576 211
    KUNDAPURA TALUK,
    UDUPI DISTRICT.

3 . SRI. SUBRAMANYA ADIGA
    AGED ABOUT 70 YEARS,
    S/O LATE PADMANABHA ADIGA,
    HAMPAKATTE,
    POST BALKOOR - 576 211.
    KUNDAPURA TALUK,
    UDUPI DISTRICT.

4 . SRI. GIRISH ADIGA
    AGED ABOUT 66 YEARS,
    S/O LATE PADMANABHA ADIGA,
    HAMPAKATTE,
    POST BALKOOR -576 211,
    KUNDAPURA TALUK,
    UDUPI DISTRICT.

5 . SRI. KRISHNAMOORTHY ADIGA
    AGED ABOUT 59 YEARS,
    S/O LATE PADMANABHA ADIGA,
    C/O RAMACHANDRA ADIGA,
    NO. 206, KANDAVARA,
    2ND CROSS, AICO BOO NAGAR,
    BTM LAYOUT, 2ND STAGE,
    BENGALURU - 560 076.
                                   ...RESPONDENTS
                             3




(BY SRI. S.P. SHANKAR SENIOR COUNSEL FOR
  SRI. VARADARAJ RANGANATHA RAO HAVALDAR,
ADVOCATE FOR C/R1 TO R5)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED:13.07.2023 PASSED IN R.A.NO.18/2022 ON
THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND   DECREE   DATED:14.06.2022   PASSED    IN   O.S.
NO.169/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC, KUNDAPURA.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
19.04.2024 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                      JUDGMENT

This appeal is by plaintiffs aggrieved by Judgment

and decree dated 14.06.2022 passed in O.S.No.169/2009

by Principal Civil Judge and JMFC, Kundapura (trial

Court) which is partly confirmed by the Judgment and

order dated 13.07.2023 passed in R.A.No.18/2022 by

Senior Civil Judge, Kundapura (First Appellate Court).

2. The above suit is filed by the plaintiffs seeking

relief of specific performance of an agreement of sale

dated 07.04.1984 against the defendants contending

interalia that:

(a) Father of the plaintiffs late Koteshwara Adiga

and father of the defendants late Padmanabha Adiga

were the brothers and that the plaintiffs and defendants

constituted a Joint Hindu Family owning and possessing

certain immovable properties.

(b) That the aforesaid Koteshwara Adiga and

Padmanabha Adiga and their brothers had partitioned

family properties in terms of a registered deed of

partition dated 04.06.1958. In terms of which the father

of the defendants Sri.Padmanabha Adiga was allotted as

his share suit schedule properties namely lands bearing

(1)Sy.No.302/12 measuring 0-38 cents, (2)Sy.No.304/11

measuring 0-20 cents, (3)Sy.No.302/15 measuring 0-20

cents, (4)Sy.No.306/7A measuring 0-90 cents,

(5)Sy.No.303/11 measuring 0-07 cents all situated at

Koteshwara Village, Kundapura, described in the plaint as

`A' schedule properties.

(c) That the said Padmanabha Adiga being in need

of money offered to sell suit schedule properties to the

father of the plaintiffs Koteshwara Adiga for a

consideration of Rs.18,000/-. In furtherance of which an

agreement of sale was executed by late Padmanabha

Adiga on 07.04.1984. The possession of the suit

properties were delivered. Entire sale consideration was

paid and acknowledged. That though Padmanabha Adiga

was absolute owner of the property, as a matter of

abundant caution signatures of some of the defendants

being sons of said Padmanabha Adiga who were available

at the time of entering into agreement, were obtained on

the said agreement.

(d) That at the time of entering into agreement two

persons namely Bacchi Devadgthi and Athmaram Kamath

had filed applications seeking occupancy rights in respect

of item Nos.1 and 4 of the suit schedule properties. As

such, the agreement provided that sale deed would be

executed within six months after the rights in some of

the suit properties were cleared and established. After

the sale agreement, father of the plaintiffs was defending

the matter before the Land Tribunal. That the father of

the plaintiffs along with father of defendants had filed a

writ petition before this Court challenging the order

passed by the Land Tribunal which was allowed by

remanding the matter to the Land Tribunal, Kundapura.

The father of the plaintiffs had subsequently entered into

a compromise with said Bacchi Devadgthi and gave her

an alternate land and money to construct separate house

and got her application dismissed. That the application

filed by Athmaram Kamath was still pending enquiry.

That even after the order of remand the Land Tribunal

had passed another illegal order. By that time father of

the plaintiffs had expired and the defendants were not

ready to take any action. As such, plaintiffs had

approached this Court by filing writ petition in

W.P.No.29247/1991 which was allowed on 03.06.1999

setting aside the order of the Land Tribunal and once

again remanding the matter back to the Land Tribunal for

fresh disposal.

(e) That during all these proceedings, defendants

had not raised any objection in plaintiffs conducting the

proceedings. They did not also take any action to safe

guard the suit properties. This conduct of the defendants

established that they had consented for the agreement of

sale dated 07.04.1984 and its validity. As such, they are

estopped from denying the validity of the sale

agreement.

(f) That the sale agreement is in existence for over

20 years to the knowledge of the defendants which is

valid and legally enforceable. That defendants had not

taken any steps to cancel or challenge the same. That

the defendants who have succeeded to the estate of late

Padmanabha Adiga are bound by the terms of the

agreement and are thus liable to specifically perform the

said sale agreement. That the plaintiffs are ready and

willing to perform their part of the agreement. However,

the defendants are not willing to perform their part of the

agreement by executing deed of sale.

(g) That defendants had tried to interfere with the

peaceful possession and enjoyment of the plaint schedule

properties, as such the plaintiffs filed a suit for

permanent injunction in O.S.No.177/1988 before the

Civil Judge, Kundapura. Defendants had also filed a suit

for partition in O.S.No.304/1988. By a common

Judgment and decree dated 27.03.2000 suit in

O.S.No.177/1988 was dismissed and suit in

O.S.No.304/1988 was decreed. Plaintiffs had filed

regular appeals in R.A.Nos.22/2000 and 23/2000. The

First Appellate Court by Judgment and decree dated

30.03.2002 allowed the appeals and set aside the

Judgment in O.S.No.177/1988 and decreed the said suit

and dismissed the suit in O.S.No.304/1988. As against

the same, defendant No.4 had filed regular Second

appeal in RSA Nos.626/2002 and 627/2002 before this

Court.

(h) That in the meanwhile defendants in collusion

had entered into a partition deed in terms of which all the

suit schedule properties were allotted to the share of

defendant No.4-Girish Adiga with an intention to take up

a false defence of he not having agreed for sale of suit

schedule properties as he had not signed the sale

agreement dated 07.04.1984.

(j) That RSA No.626/2002 was dismissed and grant

of permanent injunction was confirmed. RSA

No.627/2002 was dismissed as having become

infructuous. That validity of the agreement of sale dated

07.04.1984 was left open to be adjudicated in an

appropriate proceedings.

(k) That after the disposal of RSA No.626/2002 and

RSA No.627/2002, plaintiffs demanded for execution of

sale deed which was not complied with. Plaintiffs caused

issue of notice dated 02.04.2009 to the defendants.

Since there was no favourable response plaintiffs filed

suit for specific performance.

(l) That since the agreement of sale provides that

the defendants shall execute deed of sale after their

rights are finalized and settled by disposal of the case

pending before the Land Tribunal, which is still pending,

the suit is not barred by limitation.

3. Defendant No.4 filed his written statement

denying the plaint averments and contended that suit

schedule properties are the ancestral joint family

properties. He also denied the plaint averments that his

father being in need of money for the marriage of

defendant No.2 and other family necessities had offered

to sell the suit properties to the father of the plaintiffs

and also denied the execution of agreement of sale dated

07.04.1984 for consideration of Rs.18,000/-. He also

denied the right and authority of the father of the

defendants to execute the agreement of sale. He also

denied the signatures of the defendants. It is contended

that Padmanabha Adiga was entitled for 1/6th share of

the property as such, he could not have entered into

such an agreement receiving the entire sale

consideration as alleged. That no sale consideration has

been received by the defendants as alleged. That the

suit filed in the year 2009 in respect of agreement dated

07.04.1984 is barred by limitation. As such, liable to be

dismissed. That the suit properties are in possession of

defendant No.4. Revenue records are standing in his

name. That the claims made by Bacchi Devadigthi and

Atmaram Kamath do not pertain to suit schedule

property. That the claim made by Bacchi Devadigthi was

in respect of land in Sy.No.302/12 which was in

possession of the mother of the defendants and the said

claim was rejected by the Land Tribunal on 28.01.1987.

As such the claim made by the plaintiffs is false. That if

at all the plaintiffs were entitled they ought to have filed

the suit immediately after the order dated 28.01.1987

passed by the Land Tribunal. As such, the suit is barred

by limitation. Hence, sought for dismissal of the suit.

4. Based on the pleadings, trial Court framed the

following issues:

1. Whether the plaintiffs prove that the suit schedule properties were acquired by one Padmanabha Adiga under partition deed dated 04.06.1958 and as such, are his absolute property?

2. Whether the plaintiffs prove that Padmanabha Adiga was Kartha of the joint family of himself and his sons and he has sold the schedule properties under the sale agreement dated 07.04.1984 for family necessity?

3. Whether the plaintiffs prove that their father and plaintiffs put up construction on the suit schedule properties?

4. Whether the plaintiffs prove that they are ready and willing to perform their part of contract?

5. Whether the defendants prove that suit schedule properties are the joint family properties?

6. Whether the defendants prove that suit is barred by limitation?

7. Whether the plaintiff is entitled for the relief sought as prayed in the plaint?

8. What order or decree?

5. Plaintiff No.1 examined himself as PW-1 and

exhibited 24 documents as Ex.P1 to P24. Defendant

No.4 examined himself as DW-1 and exhibited 55

documents as Ex.D1 to D55. On appreciation of

evidence, trial Court answered issue Nos.1, 2, 4 and 7 in

the negative and issue Nos.3, 5 and 6 in the affirmative

and consequently dismissed the suit. Aggrieved by the

same, plaintiffs preferred regular appeal in

R.A.No.18/2022. The First Appellate Court framed the

following points for its consideration:

1. Whether the plaintiffs able to prove the execution of agreement of sale dated 07.04.1984 and the seller had been delivered to physical possession under the said document as part performance?

2. Whether the plaintiffs are then and now ready and willingness to perform their part of contract?

3. Whether the suit of the plaintiffs is barred by the time?

4. Whether the trial Court has committed error in dismissing the suit and thus the impugned judgment and decree of trial Court calls for any interference by this Court?

5. If so what order?

6. On reappreciation of evidence, First Appellate

Court answered point Nos.1 and 3 in the affirmative and

Point No.2 partly in the negative and point No.4 in the

negative and consequently dismissed the appeal

confirming the Judgment and decree passed by the trial

Court. Being aggrieved by the same, plaintiffs are before

this Court.

7. This Court by order dated 19.02.2024 admitted

the appeal for consideration of following substantial

questions of law:

"1. Whether the trial Court and the First Appellate Court are justified in dismissing the suit on the ground of limitation without adverting to the plea and evidence of the plaintiffs, that the property in item No.4 of agreement of sale at Ex.P6 was subject matter of the petition before the Land Tribunal and the said petition was disposed of only on 10.03.2017 and that one of the terms of Ex.P6 is that the agreement of sale would be performed after determination of rights of the parties in respect of item Nos.1 and 4 thereof?

2. Whether the finding given by the trial Court at paragraph 35 adverting to Ex.D3 (which is the same as of Ex.P18) pertains to property different from the one which is item No.4 of Ex.P6?"

8. Sri. K.Chandrakanth Ariga, Learned counsel for

the appellants reiterating the grounds urged in the

memorandum of appeal submitted that:

(a) In terms of agreement dated 07.04.1984 as per

Ex.P6 possession of item Nos.2, 3 and 5 were handed

over to the father of the plaintiffs while item Nos.1 and 4

were subject matter of claim made by two persons

namely Bacchi Devadgthi and Atmaram Kamath.

(b) He referred to terms of agreement of sale at Ex.P6

and submitted that the parties had agreed that the sale

deed would be executed within six months from the date

of establishment of rights in respect of properties in item

Nos.1 and 4.

(c) That the dispute with regard to item No.1 of the suit

schedule property was settled in the year 1987, while the

dispute with regard to item No.4 of the suit schedule

property being land in Sy.No.306/7 attained finality by

the Order of the Land Tribunal dated 10.03.2017 as per

Ex.P18 and that the suit was thus filed on 21.07.2009

which was well within limitation.

(d) That the finding of the Trial Court to the effect that,

the property bearing Sy.No.306/7 that was agreed to be

sold actually belonged to Koteshwara Adiga-the

purchaser himself, is perverse as the same is without

adverting to the pleading and evidence of the plaintiffs.

That the confirmation of said finding of the Trial Court by

the First Appellate Court is also illegal and contrary to the

material evidence placed on record.

(e) In furtherance to the above contention learned

counsel submitted that total extent of land in

Sy.No.306/7 is 2.81 acres out of which 1.91 acres was

allotted to the share of Koteshwara Adiga and 0.90 acres

was allotted to the share of Padmanabha Adiga under the

deed of partition as per Ex.P16. That the said 0.90 acres

of land is item No.4 of the suit schedule property. That

one Ganapathi Kamath had claimed occupancy rights by

filing Form No.7 as per Ex.D2 in which he had claimed

1.40 acres in Sy.No.306/7. That the Land Tribunal had

granted occupancy rights to an extent of 0.70 acres in

Sy.No.306/7(P-1) as per Ex.D3. That a sketch had been

drawn showing the land granted making it clear that the

land that was claimed in Form No.7 and granted by the

Land Tribunal is the land belonging to Padmanabha

Adiga.

(f) That Ex.P20 is FMB Sketch of Sy.No.306/7A and

306/7B. That Sy.No.306/7A is smaller in extent and

Sy.No.306/7B is larger in extent. Thus there is clear

indication that the land in Sy.No.306/7A measures 0.90

acres which was allotted to the share of Padmanabha

Adiga and the land in Sy.No.306/7B which is 1.91 acres

allotted to the share of Koteshwara Adiga. Thus, learned

counsel submitted that the trial Court and the First

Appellate Court lost sight of this factual aspect of the

matter resulting in perversity in their finding and

conclusion.

(f) That the plaintiffs being the purchasers in order to

protect their rights had filed Writ Petition in

W.P.No.29247/1991 as per Ex.P15 which was allowed by

remanding the matter back to the Land Tribunal and the

Land Tribunal had rejected the claim of the said

Ganapathi Vasudeva Kamath by its order dated

10.03.2017 as per Ex.P18 and the suit filed by the

plaintiffs in the year 2009 is therefore within the

limitation.

(g) As regards the findings of the First Appellate Court at

paragraph Nos.28, 29 and 30 of its judgment on the

issue of limitation learned counsel submitted that the suit

in O.S.No.177/1988 filed by the plaintiffs for permanent

injunction and the suit in O.S.No.304/1988 filed by the

defendants were disposed of on 27.03.2000. That the

regular appeals filed against the said judgment and

decree were allowed and regular second appeals filed by

the defendants against the same in R.S.A. No. 626/2002

and R.S.A. No.627/2002 were disposed on 25.06.2008,

with the observation that the validity of agreement be

adjudicated in appropriate proceedings. As such, the

present suit filed on 21.07.2009 is well within the time.

(h) He also referred to the judgment dated 16.02.2021

passed by this Court as per Ex.P24 in R.S.A.Nos.626 and

627/2002 (which was passed subsequent to the order of

remand by the Apex Court passed in Civil Appeal Nos.

7252/2011-7254/2011) wherein this Court had granted

relief of permanent injunction in favour of the plaintiffs

holding that they are entitled to be in possession till they

are dispossessed in accordance with law and submitted

that the said finding has attained finality which aspect

has been lost sight of by the Trial Court and the First

Appellate Court. Learned counsel for the appellants

relied upon following judgments in support of his

contentions:

(1) 1979(4) SCC 393 - Prakash Chandra Vs Angadlal and others

(2) 1975(1) SCC 770 - Pasupuleti Venkateshwaralu Vs The Motor & General Traders

(3) 1950 SCC 51 - Gorakhram Sadhuram Vs LaxmiBai

(4) 1975(4) SCC 628 - RoshanLal Kuthalia and others Vs R.B.Mohan Singh Oberoi

(5) (1993) 1 SCC 519 - Chand Rani (SMT) (Dead) by LRs Vs Kamal Rani (SMT) (dead) by Lrs

6. 1948 SCC Online Madras 77 - Arjuna Mudaliar Vs Lakshmi Ammal and others.

Thus, he submits that the substantial questions of

law be answered in favour of the appellants and to allow

the appeal.

9. Sri. S.P.Shankar, learned Senior counsel

appearing for Sri.Varadharaj R.Havaldar, learned counsel

for the respondents justifying the judgment and decree

passed by the Trial Court and confirmed by the First

Appellate Court submitted that:

(a) The plaintiffs filed their suit in O.S.No.177/1988

against the defendants for permanent injunction based

on the aforesaid agreement of sale dated 07.04.1984

claiming that the cause of action to the said suit had

arose on 02.04.1988. He referred to paragraph No.2 of

the written statement filed by the defendants denying

the execution of the agreement of sale and submitted

that the cause of action for relief of specific performance

had arose on the very denial of the execution of

agreement by the defendants.

(b) That as per section 9 of the Limitation Act once the

cause of action commences same would not stop by any

subsequent events. That since the plaintiffs had not

initiated the proceedings seeking specific performance of

the contract within the period of limitation, their right

stood extinguished in the year 1991 in terms of provision

of Section 27 of the Limitation Act. As such, the present

suit filed in the year 2009 is hopelessly barred by

limitation.

(c) That item No.4 of the suit schedule properties was

never the subject matter of the proceedings before the

Land Tribunal. That as per the partition deed dated

04.06.1958 at Ex.P16, 1.91 acres in Sy.No.306/7 was

allotted to the share of Koteshwara Adiga and 0.90 acres

was allotted to the share of Padmanabha Adiga. That in

the Form No.7 at Ex.D2 claim made by one Ganapathi

Vasudeva Kamath, the name of the landlord is shown as

Rama Adiga and not Padmanabha Adiga. That as per

Ex.D3 order of the Land Tribunal dated 06.10.1980, one

Atmaram Kamath has been registered as occupant in

respect of land measuring 0.70 acres of land in

Sy.No.306/7. That even in the order dated 10.03.2017

passed by the Tribunal as per Ex.P18 rejecting the claim

of Atmaram Kamath, S/o Ganapathi Vasudeva Kamath,

the cause title would not refer to the name of the father

of the defendants as party to the proceeding.

(d) That even if there was pendency of the matter

before the Land Tribunal, there was no inhibition,

restriction and prohibition under law for the plaintiffs to

purchase the property or to initiate the proceedings for

specific performance. Thus, he submits the substantial

questions of law needs to be answered in favour of the

defendants rejecting the appeal. He relied upon the

following Judgments:

1. AIR 2023 SC 4375 - A.Valliammal Vs K.P.Murali and others

2. 2009 (4) KAR.LJ 561 (SC) -AhmmadSahab Abdul Mulla (Deceased) by Lrs Vs Bibijan and others

3. (2013) 1 SCC 625 - Virgo Industries (Eng) Private Ltd. Vs Venturetech Solutions Private Ltd.

4. 2015(3) AKR 350 SC - Fatehji & Company and anr Vs L.M.Nagpal and others

5. AIR 2019 Kar 122 - V.Venkataravanappa Vs D.K.Gopal and anr

6. AIR 2020 SC 395 - Vurimi Pullarao S/o Satyanarayana Vs Vemari Vyankata Radharani Dhankoteshwar Rao and anr.

10. Heard and perused the records.

11. The trial Court in the impugned Judgment has

held that the suit schedule properties are the joint family

properties and not the absolute properties of

Padmanabha Adiga, the father of the defendants.

Further the trial Court has held that since the father of

the plaintiffs and father of the defendants are no more

and since defendants have denied the execution of the

agreement of sale, mere marking of the said agreement

by the plaintiffs was not sufficient to prove its contents

and that it was necessary for the plaintiffs to have

proved the said agreement and its contents by examining

attesting witnesses. That since the plaintiffs have not

examined the attesting witnesses the agreement was not

proved.

12. The trial Court while answering issue Nos.4 and

6 on the aspect of readiness and willingness and on

limitation, has held that issue with regard to item No.1 of

the suit schedule property was resolved in the year 1987.

As regards item No.4 of the suit schedule property, the

trial Court held that the subject matter of the agreement

is different from the property which was being claimed

before the Land Tribunal and as such, concluded that

item No.4 of the suit property was not subject matter of

the dispute before the Land Tribunal and since the

dispute with regard to item No.1 was resolved by order

dated 28.01.1987, the period of limitation started from

28.01.1987 and suit ought to have been filed within

three years thereof. The trial Court also found that since

the plaintiffs had filed suit in O.S.No.177/1988 for

permanent injunction as such the cause of action had

arose from the date of filing the said suit and even on the

said count the present suit was barred by limitation.

Accordingly dismissed the suit.

13. The First Appellate Court on reappreciation of

the evidence particularly the Judgment and decree

passed in O.S.No.177/1988 and O.S.No.304/1988 and

RSA No.626/2002 and RSA No.627/2002 has come to the

conclusion that plaintiffs have indeed proved the

execution of agreement of sale at Ex.P6. However the

First Appellate Court concurred and confirmed the

findings of the trial Court on the other aspects of the

matter namely item No.4 of schedule `A' property and on

the issue of limitation.

14. From the records and even as admitted by the

defendants item No.1 of the suit schedule property was

subject matter of the claim made by one Bacchi

Devadgthi and the said dispute was admittedly resolved

by the order of the Land Tribunal dated 28.01.1987.

Plaintiffs thereafter has filed a suit in O.S.No.177/1988

for relief of permanent injunction against the defendants.

In the said suit the plaintiffs have specifically pleaded

about the facts and circumstances leading upto entering

into agreement of sale dated 07.04.1984. It was

specifically contended in the said suit at paragraph 5 that

Bacchi Devadgthi had filed an application under Section

48A of the Karnataka Land Reforms Act and the same

was rejected by an order dated 28.01.1987 in TRI

No.9639/78-79 passed by the Land Tribunal, Kundapura

and that order of the Land Tribunal passed in TRI

No.9670-71/78-79 granting occupancy rights in favour of

Atmaram Kamath was pending disposal before the Land

Reforms Appellate Tribunal in LRA No.TT 1985-86, as

such the registered deed of sale in respect of the suit

property could not be executed. It is further contended

in the said plaint that on 02.04.1988 defendants 2 and 4

along with some antisocial elements had tried to fell the

tree grown in item No.4 of the suit properties giving rise

to cause of action to file the suit for permanent

injunction.

15. Defendant No.4 filed written statement in the

said suit denying the plaint averments specifically

disputing the claim of the plaintiffs regarding the

agreement of sale dated 07.04.1984 having been entered

into between Koteshwara Adiga and Padmanabha Adiga.

16. Thus, from the aforesaid material evidence

available on record the question that requires to be

considered is whether the plaintiffs can rely upon the

term of the agreement at Ex.P6 to contend that since the

parties had agreed that the sale deed would be executed

within six months after determination of rights with

reference to item No.1 and 4 of the suit properties or the

plaintiffs could have filed the suit immediately on the

denial of execution of agreement of sale by the

defendants in the written statement filed in the said suit

in O.S.No.177/1988.

17. In the instant case, the term of the aforesaid

agreement read as under:

"PɼÀUÉ PÁt¹zÀ D¹ÛUÀ¼À ¥ÉÊQ dAeÁæ 2-3-5£Éà ¸ÀܼÀUÀ¼À£ÀÄß 1£Éà AiÀĪÀgÀ ¸Áé¢üãÀvÉUÉ ©lÄÖPÆ É qÀ vÀPÌÀ zÉAvÀ®Æ «ÄPÀÌ ¸ÀܼÀUÀ¼À ºÀPÀÄÌ ¹ÜgÀªÁzÀ vÁjÃT¤AzÀ 6 wAUÀ¼À M¼ÀUÉ PɼÀUÉ PÁt¹zÀ D¹ÛUÀ¼À PÀÄjvÀÄ PÀæAiÀÄzÀ¸ÁÛªÉÃd£ÀÄß 2 jAzÀ 7£Éà ªÀgÉV£À 1£Éà AiÀĪÀgÀ ºÉ¸ÀjUÉ jf¹Öç ªÀiÁrPÉÆqÀvÀPÌÀ zÉAvÀ®Æ ¸ÀºÀ ªÀiÁrPÉÆAqÀÄ D ªÉÄÃgÉUÉ £ÁªÀÅ F JVæªÉÄAlÄ ªÀiÁrPÉÆArgÀÄvÉÛêÉ"

18. From the perusal of the aforesaid term of the

agreement it is clear that possession of properties in item

Nos.2, 3 and 5 was apparently handed over to the father

of the plaintiffs. It was further agreed that deed of sale

would be executed in the name of the father of the

plaintiffs within six months after determination of rights

in respect of other items of the properties, apparently

referring to item No.1 and 4 of the suit properties.

Admittedly claim in respect of item No.1 of the suit

property made by one Smt.Bacchi Devadgthi against

Padmanabha Adiga was resolved by the order of Land

Tribunal dated 28.01.1987 whereby the application filed

in Form No.7 by said Smt.Bacchi Devadgthi was rejected.

19. As regards the claim in respect of item No.4

namely land measuring 0.90 acres in Sy.No.306/7

though the trial Court has found that item No.4 of the

property is different from the land subject matter of the

claim made by Ganapathi Vasudeva Kamath and

thereafter his son Athmaram Kamath, learned counsel for

the appellants emphatically submitted that the said

property indeed belonged to Padmanabha Adiga and that

since claim made by said Ganapathi Vasudeva Kamath

and thereafter his son Athmaram Kamath was pending

consideration and was disposed of by the order of the

Tribunal on 10.03.2017, the plaintiffs could not file the

suit earlier.

20. Perusal of records would indicate that in Form

No.7 as per Ex.D2 filed by Ganapathi Vasudeva Kamath

the extent of land in respect of which occupancy rights

are claimed is shown as 1 acre 40 cents forming part of

Sy.No.306/7. The name of the owner of the said land in

the said application is shown as one Rama Adiga, S/o

Sheshappa Adiga. The said application has been

disposed of by Land Tribunal by its order dated

06.10.1980 as per Ex.D3 granting 70 cents in

Sy.No.306/7. Even in the said order there is no

reference to the name of the father of the defendants.

There is however a reference to the names of one

Kuppaiah yane Koteshwara and Rama Adiga.

21. The aforesaid order dated 06.10.1980 had been

originally challenged by Koteshwara Adiga and

Padmanabha Adiga by filing W.P.Nos.17986-16987/1983

which was later on renumbered as W.P.No.29247/1991

and disposed of by this Court by remanding the matter

for fresh consideration. From the contents of the order

dated 03.06.1999 passed in the said writ petition

produced at Ex.P15, it is seen that the appellants herein

who were the petitioners in the said writ petition have

contended that land measuring 1.40 acres in

Sy.No.306/7 of Koteshwara Village belonged to them in

terms of the registered partition deed dated 04.06.1958

and the revenue records had been changed in their

name. Thus as rightly contended by learned counsel for

the respondents neither in the application in Form No.7

filed by Ganapathi Vasudeva Kamath nor in the order of

the Tribunal or in the order of this Court passed in said

writ petition is there any clear and categoric reference of

Padmanabha Adiga being the landlord of land in item

No.4, even while one Rama Adiga has been shown as the

landlord.

22. Further perusal of order dated 10.03.2017 at

Ex.P18 passed by the Land Tribunal dismissing the claim

of the Ganapathi Vasudeva Kamath/Athmaram Kamath

would also not indicate any reference to item No.4 of the

schedule `A' property belonging to Padmanabha Adiga.

On the other hand appellants herein are shown as the

respondents even in the said order.

23. The trial Court at paragraph 35 of the

impugned Judgment has referred to revenue documents

namely RTC extracts. While referring to Ex.D4 it has

found that extent of 1.40 acres in Sy.No.306/7B has

been rounded off and re-entered as 0.70 acres standing

in the name of Koteshwara Adiga for the years 1996-

2001. Ex.D5 is the RTC in respect of land in

Sy.No.306/7B wherein an extent of 1.40 acres has been

rounded off and re-entered as 0.70 acres in the name of

Athmaram Kamath for the year 2000-2001. Based on

this material and the admission made by PW-1 in the

cross examination, the trial Court has come to the

conclusion that the dispute which was pending

consideration before the Land Tribunal, Kundapura was

not pertaining to item No.4 of the suit `A' schedule

property and that land measuring 0.90 acres in

Sy.No.306/7A and land measuring 0.70 acres in

Sy.No.306/7B are entirely different.

24. As already noted above even the documents,

namely, the application in Form No.7 filed by Ganapathi

Vasudeva Kamath, order dated 06.10.1980 passed by

the Land Tribunal and order dated 03.06.1999 passed in

W.P.No.29247/1991 and the order dated 10.03.2017 do

not indicate that the claim made by Ganapathi Vasudeva

Kamath was in respect of land belonging to Padmanabha

Adiga. The contention of the appellants contrary to the

above documentary evidence cannot be countenanced.

The reliance placed by learned counsel for appellants to

the sketch at Ex.P20 is of no avail.

25. Be that as it is. The fact remains that in

response to the suit for bare injunction filed by the

plaintiffs in O.S.No.177/1988, the defendants in their

written statement had specifically and categorically

denied the very execution of the agreement of sale dated

07.04.1984. The plaintiffs in the said suit though had

claimed that the cause of action to the suit had arose on

02.04.1988, there is nothing on record to show that the

plaintiffs had reserved their right to seek comprehensive

relief by filing necessary application as required under

Order 2 Rule 2(3) of CPC. In the absence of plaintiffs

reserving their right to seek appropriate relief, they

cannot seek to enforce their right after expiry of period of

limitation as sought to be done in the instant case.

26. Order 2 Rule 1 CPC requires every suit to

include the whole of the claim to which the plaintiff is

entitled in respect of any particular cause of action.

However, plaintiff has an option to relinquish any part of

his claim if he chooses to do so. If the plaintiff being

entitled to more than one relief on a particular cause of

action, omits to sue for all such reliefs he is required to

seek leave of the Court as contemplated under Order 2

Rule 2(3) in the absence of which plaintiff is precluded

from bringing subsequent suit to claim the relief earlier

omitted except where the leave of the Court has been

obtained. (Virgo Industries (Eng.) Private Limited Vs

Venturetech Solutions Private Limited reported in

(2013) 1 SCC 625).

27. Relevant also to refer to Article 54 of the

Limitation Act:

54. For specific performance of a contract. Three years. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused

28. The Apex Court in the case of A.Valliammal Vs

K.P.Murali and others reported in AIR 2023 SC 4375

dealing with identical situation involving issue with

regard to Article 54 of Part II of Schedule to the

Limitation Act, 1963 has held that since the plaintiffs

had the notice of refusal of performance of the

agreement by the defendants, the period of three years

would commence from the date of such refusal and

accordingly declined to grant the relief of specific

performance.

29. Pertinent to note that even when the plaintiffs

filed the present suit on 21.07.2009 the claim made by

Ganapathi Vasudeva Kamath in respect of item No.4 was

still pending consideration. Even according to the

plaintiffs the said claim came to be rejected only on

10.03.2017 as per Ex.P18. It is the submission of the

learned counsel for the appellants that the suit was filed

in the year 2009 after disposal of RSA No.626/2002 and

RSA No.627/2002 on 25.06.2008. Thus it is clear that

the plaintiffs thought it appropriate not to wait till the

outcome of the claim made by Ganapathi Vasudeva

Kamath and subsequently by his son Atmaram Kamath in

respect of item No.4 of the suit schedule properties and

accordingly filed the suit in the year 2009 itself.

Therefore the vehement submissions made by learned

counsel for appellants that in terms of the agreement of

sale, the plaintiffs could file the suit only after

determination of the rights in respect of item Nos.1 and 4

of the suit property and therefore they could not file the

suit earlier cannot be countenanced.

30. Further as rightly contended by learned Senior

counsel for the respondents there was no inhibition,

restriction or prohibition under law for purchasing the

property even if item No.4 of the suit schedule property

was subject matter of claim before the Land Tribunal.

31. Reliance placed on by the learned counsel for the

appellants on the citations referred to above are of no

avail under the fact situation of the matter.

32. The trial Court and First Appellate Court on

appreciation of evidence, in the considered view of this

Court, have rightly declined to grant the relief of specific

performance as the same having barred by limitation and

have also rightly come to the conclusion that item No.4

of the suit property was not subject matter of

proceedings before the Land Tribunal.

33. The substantial questions of law are answered

accordingly.

Appeal is dismissed.

Sd/-

JUDGE SBN/RL