Karnataka High Court
Sri Prasanna Kumar vs Sri K Narayanaswamy on 23 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.851 OF 2018 (SP)
BETWEEN:
SRI PRASANNA KUMAR,
AGED ABOUT 48 YEARS,
S/O. MUNIYAPPA,
R/O. CHATRAKODIHALLI VILLAGE,
KASABA HOBLI,
KOLAR TALUK-563 101. ... APPELLANT
(BY SRI V. VINOD REDDY, ADVOCATE)
AND:
1. SRI K. NARAYANASWAMY,
AGED ABOUT 53 YEARS,
S/O. CHIKKA KARIYAPPA.
2. SRI. RAMESH,
AGED ABOUT 48 YEARS,
S/O. CHIKKA KARIYAPPA.
BOTH ARE RESIDING AT
CHATRAKODIHALLI VILLAGE,
KASABA HOBLI,
KOLAR TALUK-563 101. ... RESPONDENTS
(BY SRI SURESHA M., ADVOCATE FOR C/R1 AND R2)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.01.2018
PASSED IN R.A.NO.51/2017 ON THE FILE OF THE PRL. SENIOR
2
CIVIL JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 01.03.2017 PASSED
IN O.S.NO.426/2008 ON THE FILE OF THE I ADDL. CIVIL JUDGE
AND JMFC KOLAR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.11.2024, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. This regular second appeal is filed against the
divergent finding. At the first instance, the Trial Court
granted the relief of specific performance in O.S.No.426/2008
vide judgment dated 01.03.2017 and the same is reversed in
R.A.No.51/2017 setting aside the judgment and decree of the
Trial Court vide order dated 27.01.2018.
3. The factual matrix of the case of the
plaintiff/appellant before the Trial Court is that the defendants
have executed the agreement of sale dated 20.08.2005
agreeing to sell the suit schedule property for sale
consideration of Rs.2,35,000/- and the entire sale
consideration was paid and there was a bar for execution of
small bit of land and hence the sale deed was not executed
and recital was made to that effect in the agreement. The
plaintiff issued a legal notice on 19.05.2008 demanding the
defendants to execute the registered sale deed. Thereafter,
the plaintiff instituted the suit and the suit was decreed by
answering issue Nos.1 to 3 and 5 in the affirmative and issue
No.4 in the negative, since the defendants took the specific
contention that the agreement of sale is created and
concocted.
4. Being aggrieved by the judgment and decree of
the Trial Court, the defendants preferred an appeal and the
same was reversed holding that the suit was premature and
there was no cause of action for filing the suit and hence the
present second appeal is filed before this Court.
5. The main contention of the learned counsel for the
plaintiff/appellant before this Court is that the findings of the
First Appellate Court is erroneous and the First Appellate
Court fails to take note of the very execution of the sale
agreement and proving of the same by examining the
witnesses. D.W.1 categorically admitted the service of notice
and the defendants neither replied the legal notice nor
complied with the agreement for sale, but false defence was
taken that no such agreement was executed. The learned
counsel contend that there was no prohibition for registration
of the sale deed, they were under contractual obligation to
execute the necessary sale deed and get it registered in
favour of the plaintiff having received the entire sale
consideration and also deliver the physical possession of the
property. The First Appellate Court misdirected itself in
allowing the appeal and setting aside the order of the Trial
Court. The First Appellate Court committed an error in
declining equitable and discretionary relief of specific
performance when the sale agreement was proved and the
very approach that the suit was premature and there was no
cause of action is erroneous.
6. This Court having taken note of the grounds which
have been urged, admitted the second appeal and framed the
following substantial questions of law:
1. Whether in a case where time for
performance is not specifically mentioned,
filing of the suit on the basis of agreement
dated 20.08.2005 and legal notice
demanding specific performance is dated
19.05.2008 and suit filed on 05.07.2008
makes it premature?
2. Whether doctrine of anticipatory breach of
contract operates on the agreement between
plaintiff and defendants?
7. The learned counsel for the appellant would
contend that there is a divergent finding and though disputed
the sale agreement dated 20.08.2005, the Trial Court and the
First Appellate Court have given a definite finding that there
was a sale agreement, but there was no any time stipulation
for performing the contract and the only reason assigned by
the First Appellate Court is that the suit is premature and
hence not entitled for the relief of specific performance. The
learned counsel contend that now the gazette notification has
been issued and in terms of the gazette notification,
registration could be done and placed the gazette notification
dated 25.09.2023 along with the memo. The learned counsel
brought to the notice of this Court the annexure and would
contend that upto an extent of 5 guntas, by collecting the
amount, the document can be registered. The learned counsel
referring the gazette notification would contend that in view of
lifting of bar for registration of small bit of land, the relief can
be granted.
8. Per contra, the learned counsel for the
respondents would contend that the First Appellate Court
rightly comes to the conclusion that there is no cause of
action to file the suit. The learned counsel contend that the
boundaries which are mentioned in the alleged agreement did
not pertain to the defendants as on the date of agreement
i.e., in 2005. The learned counsel contend that the
defendants purchased the property on 01.12.2006 as per
Ex.D.1 and there is no owner as on the date of agreement of
sale. It is contended that the property does not pertain to the
defendants. The learned counsel contend that 32 guntas of
land is ancestral property and 1 acre 20 guntas was
purchased, which is an adjacent property. The learned
counsel contend that the boundaries mentioned in the
agreement is not correct and the document is created. The
learned counsel contend that under threat the signature was
taken and the plaintiff has not produced any document of
lifting of ban before the First Appellate Court and the First
Appellate Court rightly comes to the conclusion that there is
no cause of action to file the suit and the suit is premature
and rightly reversed the finding of the Trial Court.
9. In reply to the arguments of the learned counsel
for the respondents, the learned counsel for the appellant
submits that the contention that the document was created
was not accepted by the Trial Court and a definite finding was
given. There was no life time limit and there is no question of
suit being premature and in view of the recent lifting of the
ban, this Court has to reverse the finding of the First Appellate
Court.
10. Having heard the learned counsel for the appellant
and the learned counsel for the respondents and also
considering the substantial questions of law framed by this
Court, admittedly there is no any time limit mentioned in the
agreement. The suit was filed in the year 2008 and before
filing the suit, notice was issued and the same was served,
but no reply was given. The notice was given on 19.05.2008
and the suit was filed on 05.07.2008. The question before
this Court is whether the filing of the suit is premature, as
observed by the First Appellate Court. The other substantial
question of law framed by this Court is whether doctrine of
anticipatory breach of contract operates on the agreement
between plaintiff and defendants. Both the substantial
questions of law are interconnected and hence both are
considered together based on the material on record.
11. Having perused the grounds urged in the appeal
memo and considering the contentions which have been urged
by both the learned counsel during the course of argument,
this Court has to take note of the material on record. In the
suit it is specifically pleaded with regard to the agreement of
sale contending that the defendants have executed an
agreement of sale dated 20.08.2005 agreeing to sell the suit
schedule property in favour of the plaintiff for sale
consideration of Rs.2,35,000/-. It is also contended that
entire sale consideration was paid and the plaintiff was always
ready and willing to perform his part of contract. It is noted
that the defendants took the contention that the plaintiff has
created the agreement of sale dated 20.08.2005 and the
same is a concocted document. The Trial Court having
considered the evidence of P.W.1 to P.W.5 and D.W.1 comes
to the conclusion that there was a sale agreement and entire
sale consideration was paid to the extent of Rs.2,35,000/- and
the plaintiff was always ready and willing to perform his part
of contract. But not accepted the contention of the defendants
that the document is created, since the Trial Court
appreciated both oral and documentary evidence placed on
record of P.W.1 to P.W.5 and D.W.1 admitted his signature
available on the document during the course of cross-
examination. The Trial Court granted the relief and directed
the defendants to execute the regular sale deed within three
months. The First Appellate Court reversed the finding of the
Trial Court. The First Appellate Court having re-assessed the
material on record formulated the point whether the judgment
of the Trial Court is perverse and whether it requires
interference. But not framed the point for consideration with
regard to the granting of relief and the document and recitals
of the document and in a casual manner framed the point for
consideration whether the impugned judgment becomes
capricious, perverse and arbitrary and answered the same in
the affirmative.
12. Having perused the discussion made by the First
Appellate Court, the First Appellate Court taken note of the
evidence of the witnesses, including the plaintiff witnesses
and evidence of D.W.1 and so also the documentary evidence
and comes to the conclusion that there was an agreement of
sale and entire sale consideration was paid. The First
Appellate Court also comes to the conclusion that merely
because the entire consideration amount has been paid and
agreement of sale has been executed, the plaintiff cannot be
held as entitled to the relief of specific performance as the
conditions agreed upon in Ex.P.1 cannot be complied with by
the defendants because even as on the date of suit, the so
called statutory bar is very much in existence and the same
has been observed in paragraph No.80 of the First Appellate
Court's judgment. The First Appellate Court also comes to the
conclusion that statutory bar which has been incorporated in
the agreement if looked into, it is found that there is a
prohibition on the owners of the agreement not to sell the
property in bits and that is the reason why the authorities
concerned have also not registered the document. The
plaintiff having called upon the defendants to perform their
part of the contract ought to have proved that such statutory
bar has been withdrawn only then the plaintiff would have
been entitled to call upon the defendants to perform their part
of the contract. Unless and otherwise the plaintiff proves that
there was a notification/order or permission by the competent
authorities wherein the authorities have permitted for
registration of the sale deed and in the absence of any
permission as mentioned in the document Ex.P.1 that the
defendants themselves should have got the permission from
the competent authorities to enable the plaintiff to get the
sale deed registered, definitely the agreement i.e., the suit
document remains unenforceable and hence comes to the
conclusion that the suit itself is premature and there was no
cause of action for the plaintiff to file the suit. The Trial Judge
only considered the execution of the agreement and fails to
appreciate the recital in the document with regard to the
terms and conditions agreed upon as on the date of the suit
and remained unenforceable.
13. Having perused the reasoning of the Trial Court
and the First Appellate Court, the First Appellate Court rightly
comes to such a conclusion, since there is a specific averment
in Ex.P.1 that there is a prohibition for selling of bit of land
and also specific averment is made that the defendants are
ready to execute the sale deed when the same is lifted and
then to get the sale deed registered in their favour. No doubt,
the First Appellate Court taken note of the recital of document
Ex.P.1 and the same has not been considered by the Trial
Court and if any specific performance is granted, in view of
the bar, there cannot be any enforceability of the agreement
and the First Appellate Court rightly comes to the conclusion
that there is a bar and no material is placed for lifting of the
bar.
14. Now, the learned counsel for the appellant has
filed a memo along with the document. The same is not
produced along with the application under Order 41 Rule 27 of
CPC. On perusal of the document, special guidelines are
issued except some of the districts and the same is for fixing
of the market value and the guidelines for collecting stamp
duty upto the extent of 5 guntas including 5 acres taking note
of agricultural land and converted land while selling the
property and fixing of the market value.
15. It is important to note that the agreement is dated
20.08.2005 and within a span of three years, the suit is filed.
Admittedly, there is no time stipulation for enforcement of the
agreement and the plaintiff ought not to have given notice in
2008 itself, since there is no order of lifting of prohibition of
selling of small bit of land as on the date of issuance of notice.
No doubt, the suit is filed and tried and when no such
prohibition was removed as on the date of filing of the suit,
the First Appellate Court rightly comes to the conclusion that
there is no cause of action for filing the suit. The cause of
action arises for the suit in terms of Ex.P.1, only after lifting of
the ban and though specific date is mentioned in the
substantial question of law that agreement is dated
20.08.2005 and legal notice is dated 19.05.2008 and suit is
filed on 05.07.2008 and as on the date of filing of the suit,
there is no cause of action for demanding specific
performance against the defendants. Hence, the First
Appellate Court rightly comes to the conclusion that the suit
itself is premature.
16. The other substantial question of law is whether
doctrine of anticipatory breach of contract operates on the
agreement between the plaintiff and the defendants. The
same is not a breach and specific recital is made that
immediately after lifting of ban only the defendants will come
and execute the sale deed and there is no such lifting or
removal of the said prohibition for registration of small bit of
land. On perusal of Ex.P.1, it is clear that both understood the
recitals and knowingfully well only the document of Ex.P.1
came into existence that there is a bar to register the
document in favour of the plaintiff as there is a prohibition of
selling of small bit of land. The plaintiff also ought not to
have filed the suit immediately by causing notice since there
was no any removal of prohibition and the same was not
taken note of by the Trial Court. However, the First Appellate
Court having taken note of the recitals in paragraph Nos.80
and 81 assigned the reason that the suit becomes premature
and there is no cause of action as on the date of filing of the
suit. I have already pointed out that the appellant though
produced the document along with the memo, not sought any
permission to produce the same invoking Order 41 Rule 27 of
CPC to treat the same as additional evidence and hence the
question of entertaining the memo in the second appeal does
not arise.
17. Unless the appellant produce the said document
with appropriate application, the same cannot be considered
and the question is with regard to prohibition of sale of
property and the same involves both question of fact and
question of law. Whether the prohibition is removed or not,
this Court cannot venture to decide the same unless the said
document is part of the record. However, this Court can set
aside the judgment and remit the matter to the Trial Court for
fresh consideration in view of the gazette notification and the
appellant can be given an opportunity to produce the same as
additional evidence before the Trial Court to consider the issue
of whether the suit is premature and these proceedings are
continuous proceedings and the matter is remitted back for
limited purpose of considering this document as question of
law in involved. The appellant is given an opportunity to
produce the same and lead evidence only for the limited
purpose of proving of fact of lifting of bar for registration of
small bit of land. The Trial Court is not permitted to consider
once again the merits of the case as already the Trial Court
has considered the same. The First Appellate Court has also
considered the material on record and reversal is made only
as regards to the suit is premature since as on the date of
filing of the suit there was no any material for lifting of
prohibition of transfer of property i.e., bit of land. Hence, I
answer both the substantial questions of law accordingly.
18. In view of the discussions made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree of the Trial Court
and the First Appellate Court are set aside to
the extent as observed above. The matter is
remitted back to the Trial Court only for the
limited purpose of consideration of gazette
notification whether ban of registration of the
property is removed and if such removal is
established, then to consider the relief as
sought in the suit.
(iii) The appellant is permitted to produce the
said gazette notification as additional
evidence and permitted to lead evidence on
the said document for the limited purpose of
determining the issues involved between the
parties.
(iv) Both the parties are directed to appear
before the Trial Court on 13.12.2024,
without expecting any notice from the Trial
Court.
(v) The Trial Court is directed to dispose of the
suit within three months from 13.12.2024.
(vi) The Registry is directed to send the Trial
Court records forthwith to enable the Trial
Court to take up the matter on 13.12.2024.
(vii) The Registry is directed to send the First
Appellate Court records forthwith.
Sd/-
(H.P. SANDESH)
JUDGE
MD
