Karnataka High Court
Nirmaladevi W/O Mahanand Adoni vs M. Channayyaswamy And Anr on 28 May, 2024
-1-
NC: 2024:KHC-K:3343
RSA No. 200315 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200315 OF 2019 (SP)
BETWEEN:
NIRMALADEVI W/O MAHANAND ADONI,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: MATRU CHAYA NILAYA,
BASWESHWAR NAGAR, STATION AREA,
YADGIR, TQ: DIST: YADGIRI-585 201.
...APPELLANT
(BY SRI. S.S. SAJJANSHETTY, ADVOCATE)
AND:
1. M. CHANNAYYASWAMY
S/O SHARANAYYA SWAMY,
AGE: 56 YEARS, OCC: BUSINESS,
Digitally signed R/O: SHARANBASWESHWAR MATH
by SWETA
KULKARNI SHARANA NAGAR, SHAHAPURPETH,
Location: High YADGIRI, TQ: DIST: YADGIRI-585201.
Court of
Karnataka
2. B. PARVATHREDDY S/O LASMIREDDY
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: JAGRAM VILLAGE,
TQ: DIST: YADGIRI-585201.
...RESPONDENTS
(BY SRI. GURURAJ RAO KAKKERI, ADV. FOR R1 AND R2)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET
ASIDE THE BOTH IMPUGNED JUDGMENT AND DECREE DATED
28.06.2019 PASSED IN RA NO.48/2017 PASSED BY THE COURT
-2-
NC: 2024:KHC-K:3343
RSA No. 200315 of 2019
OF THE SENIOR CIVIL JUDGE AT YADAGIR VIDE ANNEXURE-A
AND CONSEQUENTLY SET ASIDE THE IMPUGNED JUDGMENT
AND DECREE DATED 21.02.2017 PASSED IN O.S. NO.10/2012
BY THE COURT OF CIVIL JUDGE AND JMFC AT YADAGIR VIDE
ANNEXURE-B BY ALLOWING THIS APPEAL AND CONSEQUENTLY
PLEASED TO ALLOW THE SUIT OF PLTF/APPELLANT AS PRAYED
FOR BY SUITABLE MODIFICATION AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful plaintiff is before this Court in
Regular second appeal assailing the concurrent findings of
the Courts below, whereby, the suit seeking for specific
performance of contract was dismissed holding that the
suit of the plaintiff is barred by limitation.
2. Heard Sri S. S. Sajjanshetty, the learned
counsel for the appellant and Sri Gururaj Rao Kakkeri,
learned counsel for the respondents.
3. Learned counsel for the appellant submits that
the defendants had filed IA No.11 under Order VII Rule 11
of C.P.C for rejection of plaint on ground that the suit is
barred by limitation and the Trial Court considering the
NC: 2024:KHC-K:3343
application has rejected IA No.11 filed by the defendants
by order dated 01.12.2016, holding that the suit of the
plaintiff is within time.
4. Learned counsel for the appellant would submit
that the order passed on IA No.11 dated 01.12.2016 was
not considered by the Courts below while holding that the
suit of the plaintiff is barred by limitation.
5. Parties herein are referred to as per the ranking
before the Trial Court for the sake of convenience.
6. On 21.10.2002 for sale consideration of
Rs.1,00,000/- of which Rs.90,000/- as an earnest money
was paid to the defendants, an agreement of sale was
executed in his favour is the contention of the plaintiff.
According to the plaintiff based on the agreement of the
sale the name of the plaintiff was entered in the revenue
records and the plaintiff has been paying taxes to the
panchayat.
NC: 2024:KHC-K:3343
7. It is the contention of the plaintiff that he was
ever ready and willing to perform his part of contract and
in spite of several request made to the defendants to
execute a register sale deed the defendants have not
come forward.
8. Pursuant to the suit summons the defendants
appeared and filed their written statement interalia
contended that the plaintiff had issued a legal notice to the
defendants on 25.11.2006, calling upon them to execute
the registered Sale Deed in respect of the suit schedule
property and the reply was issued to the plaintiff by the
defendants denying the agreement of sale dated
21.10.2002 and receipt of Rs.90,000/-. The specific
averment of the defendants is that the suit of the plaintiff
is barred by limitation and the plaintiff has deliberately
suppressed the fact of the notice issued by the plaintiff
and the reply notice of denial by the defendants. The
defendants sought for dismissal of the suit with cost.
NC: 2024:KHC-K:3343
9. The Trial Court on basis of the pleading framed
the following issues:
1. "Whether the plaintiff is proves that, defendant was
executed agreement Sale dated: 21.10.2002 by
agreeing to sell the suit schedule properties for
consideration amount of Rs.90,000/- and put her in
possession?
2. Whether the plaintiff is proves that, she is always
ready and willing to perform his part of contract?
3. Whether the plaintiff is proves that, defendant is
avoiding to perform her part of contract?
4. Whether the defendant is proves that, suit of the
plaintiff is barred by law of limitation?
5. Whether the plaintiffs entitle for the relief of
specific relief of contract as sought for?
6. What order or Decree?"
10. The Trial Court on the basis of pleadings, oral
and documentary evidence held:
1. That the plaintiff has proved that there an
execution of agreement of sale dated 21.10.2002
for sale consideration of Rs.1,00,000/-.
2. That the plaintiff is ever ready and wiling to
perform his part of the contract.
NC: 2024:KHC-K:3343
3. That the defendants have proved that the suit of
the plaintiff is barred by limitation and by the
judgment and decree dismissed the suit of the
plaintiff.
11. Aggrieved by the dismissal of the suit the
plaintiff preferred the First Appeal before the First
Appellate Court. The First Appellate Court by re-
appreciating and reanalyzing the entire oral and
documentary evidence concurred with the judgment and
decree of the Trial Court.
12. The alleged agreement is dated 21.10.2002, the
plaintiff issued a legal notice on 25.11.2006, calling upon
the defendants to come forward for execution of the Sale
Deed. The defendants replied denying the execution of
the agreement of sale on 07.12.2006. The issuance of
notice and the reply notice was not pleaded in the plaint
by the plaintiff, during the pendency of the suit application
was filed IA No.11 by the defendants under Order VII Rule
NC: 2024:KHC-K:3343
11 of C.P.C seeking for the rejection of the plaint on the
ground that the suit of the plaintiff is barred by limitation.
13. The plaintiff filed objections, the Trial Court by
order dated 01.12.2016 rejected the IA Nos.11, holding
that there is no merits in the application filed by the
defendants. The rejection of the defendants application
under VII Rule 11 implies that the Trial Court did not find
merit in the contention of the defendants at that stage to
hold the suit barred by time the question of limitation is
mixed question of law and fact and only after conclusion of
evidence, the Court can arrived at a finding whether the
suit is barred by time thus the contention of the
plaintiff/appellant that the findings recorded in IA No.11
ought to have been considered while passing the final
order falls to ground.
14. The Trial Court framed issue No.4 regarding the
question of limitation which reads as under :
"4. Whether the defendant is proves that, suit of the
plaintiff is barred by law of limitation?"
NC: 2024:KHC-K:3343
15. The Trial Court considering the documents
placed by defendants at Ex.D1 the legal notice dated
25.11.2006 and the reply notice issued by the defendants,
which was served on the plaintiff as per Ex.D3 on
08.12.2006 and the said fact of service of notice on the
plaintiff being admitted by PW1 in his cross examination,
the Trial Court considering the entire oral and
documentary evidence arrived at a finding that the suit of
the plaintiff is barred by limitation as per Article 54 of
Indian Limitation Act ("Act" for short). The First Appellate
Court being the last finding fact Court has rightly re-
appreciated the entire oral and documentary evidence.
The courts below on the question of limitation has held
that the suit of the plaintiff is barred by time as the
defendants denied the alleged agreement on 07.12.2006
and the suit has been filed in the year 2012.
16. Article 54 of the Limitation Act envisages that
for specific performance of the contract three years, if the
date fixed for performance is mentioned in the agreement
NC: 2024:KHC-K:3343
or if no such date is fixed, when the plaintiff has noticed
that the performance was refused.
17. The defendants by way of reply on 07.12.2006
itself has denied the agreement, the plaintiff does not
dispute about receipt of this notice. The Trial Court and
the First Appellate Court has rightly considered the entire
material on record and has held that the suit of the
plaintiff is barred by time by applying Article 54 of the Act,
the manner in which the Courts below have considered the
entire oral and documentary evidence this Court is of the
considered view that the same does not warrant any
interference and no substantial question of law arises for
consideration. Accordingly, this Court has pass the
following:
ORDER
i. The regular second appeal is hereby
dismissed.
ii. The judgment and decree passed by the
Courts below stands confirmed.
- 10 -
NC: 2024:KHC-K:3343
In light of the disposal of the appeal pending IAs
if any, would not survive for consideration.
Sd/-
JUDGE
AT
CT: VD
