Karnataka High Court
N. Range Gowda vs Sri Keshavanarayana on 7 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.442/2010 (SP)
BETWEEN:
1. N.RANGE GOWDA
S/O LATE LINGE GOWDA
AGED ABOUT 59 YEARS
R/AT NO.4202, 49TH MAIN
KUMARASWAMY LAYOUT
BANGALORE-560 078. ... APPELLANT
(BY SRI HALESHA R.G., ADVOCATE)
AND:
1. SRI. KESHAVANARAYANA
S/O LATE SRI. THIRUPATHI
MAJOR,
NCC DIRECTOR,
NCC CELL NO.2, KSCMF LTD.,
N.F.BUILDING, NO.2, 4TH FLOOR
NEAR CHANDRIKA HOTEL
BANGALORE-560 062.
2. SMT. T. NAGARATHNAMMA
D/O LATE SRI. THIRUPATHI
MAJOR.
3. SMT. KESHAVAMMA
D/O LATE SRI. THIRUPATHI
MAJOR.
2
4. SMT. ARUNA
D/O LATE SRI. THIRUPATHI
MAJOR.
RESPONDENTS NO.2 TO 4 ARE
RESIDING AT NO.95,
ANDRALANE, VIVEKNAGAR,
BANGALORE-560 047. ... RESPONDENTS
(BY SRI C.S.VINOD, ADVOCATE FOR R1;
VIDE ORDER DATED 28.09.2010,
NOTICE TO R2 TO R4 ARE HELD SUFFICIENT)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.10.2009
PASSED IN O.S.NO.3543/2008 ON THE FILE OF THE XVII ADDL.
CITY CIVIL JUDGE, BANGALORE (CCH 16), DISMISSING THE
SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
1. Heard the learned counsel for the appellant and
the learned counsel for the respondent is absent and hence
arguments is taken as Nil.
2. This appeal is filed challenging the judgment and
decree of dismissal of the suit for the relief of specific
performance of contract passed in O.S.No.3543/2008
dated 06.10.2009.
3. The factual matrix of case of plaintiff before the
Trial Court while seeking the relief of specific performance
against the defendant, it is contended that plaintiff entered
into an agreement on 12.09.1997 in respect of the suit
schedule property from deceased Tirupathi who is the
father of the 1st defendant to 4th defendant. It is further
alleged in the plaint that on the date of agreement, entire
sale consideration amount of Rs.1,80,000/- is paid to the
father of the defendant. The possession was handed over to
him on the date of agreement itself. It is contended that
father of defendant was allotted the said site on 04.02.1995
by the BDA since then there was lease cum sale agreement
in between the BDA and father of the defendants. It is also
contended that father of the defendants undertook to
execute the sale deed in favour of the plaintiff after the
lease period of 10 years and after obtaining absolute sale
deed from the BDA. It is also alleged in the plaint that after
the agreement, plaintiff approached the defendant No.1 in
the month of December-2007 and reminded his obligation
to execute the regular sale deed and did not come forward
to execute the sale deed and hence filed the suit against
the defendant seeking the relief of specific performance.
The defendant did not appear before the Trial Court when
the paper publication was taken against them and
summons was also published in the newspaper and inspite
of that they did not choose to appear and hence, they were
placed exparte. The plaintiff examined himself as PW1 and
relied upon 7 documents in support of his claim and Trial
Court having considered the pleadings of the plaint and also
the documents, framed the points for consideration as
hereunder:
1) Whether the plaintiff has succeeded in
showing that father of the deceased
Thirupathi agreed to sell the suit schedule
property on 12.09.1997 after receiving
entire sale consideration of Rs.1,80,000/-?
2) Whether the plaintiff further proves that
father of the defendant agreed to perform
his part of contract after obtaining regular
sale deed from Bangalore Development
Authority and after completion of lease
period?
3) Whether plaintiff further proves that he
was ever willing and ready to perform his
part of contract?
4) Whether plaintiff is entitled for the decree
as prayed for?
5) What Order or decree?
4. The Trial Court on appreciation of both oral and
documentary evidence placed on record answered point
Nos.1 to 3 as Affirmative, however, declined to grant the
relief of specific performance by answering issue No.4 as
negative in coming to the conclusion that as on the date of
entering into an agreement, he was not having any
absolute right and only a lease cum sale agreement was in
existence. Hence, taking into note of judgment of this Court
reported in 1997(4) Karnataka Law journal 264 in case
of Y.R.Mahadev V/s K.Dayalan comes to the conclusion
that suit itself is not maintainable in law as agreement of
sale is violative of statutory rules, therefore, from this
ground only the Court cannot direct the defendant to
execute the registered sale deed in favour of the plaintiff.
The permission is granted for construction of house to
Tirupathi and not to the plaintiff and also having taken note
of documents shows that Tirupathi had sought permission
for construction of the house and no permission was given
to the plaintiff and plaintiff was not the owner of the
property and BDA cannot permit the plaintiff to construct
the building.
5. The counsel appearing for the appellant in his
argument would vehemently contend that it is not in
dispute that the property was allotted in favour of the
father of the defendants on 04.02.1995 and it is not in
dispute that agreement was executed on 09.12.1997 and
entire sale consideration was paid on the date of agreement
that is Rs.1,80,000/-. The counsel also would vehemently
contend that immediately after the expiry of lease period,
demand was made in the month of December-2007 that to
come and execute the sale deed, but did not come forward
to execute the sale deed and hence the suit is filed in the
year 2008 within the period of the time. The Trial Court
committed an error in dismissing the suit only on the
ground that only a lease cum sale agreement was executed
and there was no any absolute sale deed and no
marketable title and agreement of sale deed being violative
of statutory rule prohibiting such elimination is void ab initio
and hence unenforceable.
6. The counsel appearing for the appellant would
vehemently contend that this Court in the recent judgment
in the year 2019 (2) KAR L.R.560 in case of S.Ananda
Shetty V/s Sri.Mehaboob Sherieff and others pressed
into the service of Section 43 of the Transfer of Property Act
and contend that transfer made by unauthorized person. It
is clear that if any transfer is made by any unauthorized
person who subsequently acquires interest in property, law
of estoppel applies, if sale is made for consideration, the
said section shall impair the right of transferee in good faith
for consideration. He was having limited interest based on
lease cum sale agreement and not having absolute sale
deed, but represents that he is authorized to transfer, now
he cannot contend that on the date of execution of sale
agreement, not having absolute sale deed, but he has paid
the sale consideration and only formalities of obtaining the
sale deed was pending after the period of lease cum sale
agreement. Hence, the defendant estopped from taking the
said defense in view of Section 43 of Transfer of Property
Act. The counsel relying upon this judgment would
vehemently contend that the factual aspects is presently
applicable to the case on hand and hence, aptly applicable.
The counsel appearing for the respondent was absent and
this Court earlier on 27.11.2024 made it clear that if the
learned counsel for respondent No.1 does not appear on the
next date of hearing, the appeal will be heard in his
absence. When the counsel was absent, taken as no
argument and reserved the matter for judgment.
7. Having heard the appellant's counsel and also
considering the grounds urged in the appeal as well as oral
submission of the appellant's counsel and also the principles
laid down in the judgment referred supra, the point that
would arise for consideration of this Court are:
1) Whether the Trial Court committed an error
in decline to grant the relief of specific
performance and whether it requires
interference of this Court?
2) What Order?
8. Having heard the appellant's counsel and also
considering the pleading of the appellant/plaintiff, it is the
specific case that father of the defendant Mr.Tirupathi
agreed to sell the suit schedule property on 12.09.1997 and
received the entire sale consideration of Rs.1,80,000/- and
also possession was handed over to him. It is also clear that
the property was allotted by BDA in favour of the father of
the defendant in the year 1995. It is also important to note
that sale agreement clearly discloses that property was
allotted in favour of the father of the defendant on
04.02.1995 and sale cum lease agreement was also
registered and there is a recital that from the date of
allotment he was enjoying the property and he was in need
of money of Rs.1,80,000/- and hence he sold the same for
the same value and averment is clear that power of
attorney is also executed and possession also delivered in
terms of sale agreement and Ex.P2 is also clear that power
of attorney is registered in favor of the plaintiff.
9. It is important to note that in the agreement
itself it is mentioned that a conditional sale agreement was
executed in favour of the defendant and in the agreement,
recital is very clear with regard to property is sold and also
given permission to use the property and no any other
claim, whatever the claim is made, he is going to clear the
same at his cost. The averment also discloses that he can
even build the house and also recital is very clear that even
if dies, his successors will come and execute the sale deed.
10. Having considered the agreement as well as
general power of attorney, it is very clear that possession
delivered and all the original documents belongs to the
defendant are also given to the plaintiff while selling the
property. The records also discloses that before filing the
suit, notice was given and plan also produced for having
obtained the permission and also taken electricity
connection and also paid the charges for BWSSB and also
material discloses that he had put up construction and
residing in the suit schedule property.
11. The Trial Court while rejecting the claim, made
an observation that the permission is given only to the
lease cum agreement holder to put up the construction and
the same is not in favour of the plaintiff and plaintiff is the
only power of attorney of the suit schedule property and
father of the defendant is shown to be the owner who
sought permission for the construction of the house and
permission granted for construction of house only to
Tirupathi and not to the plaintiff and it cannot be construed
that plaintiff had constructed the house and getting
permission from the BDA and also considering the earlier
judgment of this Court, comes to the conclusion that suit
itself is not maintainable and the same is only an
agreement of sale and the same is violative of statutory
rules. The Court cannot direct the defendant to execute the
registered sale deed in favor of the plaintiff.
12. The counsel appearing for the appellant relied
upon the judgment of this Court reported in 2019 (2) Kar.
L.R. 560 and this Court in this judgment elaborately
discussed the law and mainly taken note of the Section 43
of the Transfer of Property Act and comes to the conclusion
that even if as on the date of agreed to sell the property, he
was not having absolute right, but he subsequently acquires
interest in the said property, law of estoppel, if sale is made
for consideration, the said section shall impair the right of
transferee in good faith for consideration.
13. This Court observed that no doubt 1st defendant
was having limited interest based on lease cum sale
agreement and not having absolute sale deed but
represents that he is authorized to transfer and now he
cannot contend that on the date of execution of the sale
agreement not having absolute sale deed, but he has paid
the sale consideration and only formalities of obtaining the
sale deed was pending after the period of lease cum sale
agreement. In the case on hand, no dispute that there was
a sale agreement and earlier to that there was a lease cum
sale agreement in favour of the father of the defendant and
also it is important to note that having received the amount
of Rs.1,80,000/- that is entire sale consideration, not only
executed the sale agreement, even executed the power of
attorney and the same is registered power of attorney and
all rights are given to the plaintiff and even to put up
construction and to enjoy the property and when such being
the case, Section 43 of the Transfer of Property Act aptly
applicable to the case on hand and also the principles laid
down in the judgment wherein also detailed discussion was
made referring the judgment of the Apex Court and taken
note of observation made by this Court sale agreement
between the parties cannot be treated as actual alienation
or transfer of land. Hence, the very contention that there
was a prohibition of alienation cannot be accepted and in
the case on hand there was no any alienation taken place
during the subsistence of lease cum sale agreement and
only entered sale agreement.
14. Having taken note of factual aspects of the case
and Trial Court also comes to the conclusion that there was
a sale agreement and delivery of possession in terms of the
power of attorney but only rejected the relief of specific
performance on the ground that there was no any absolute
sale deed, but fails to take note of Section 43 of Transfer of
Property Act and the same is also enure the benefits in
favour of the plaintiff, since there is no any dispute of
execution of agreement and power of attorney and also the
respondents not disputed the very execution of sale deed
and remained absent. The Trial Court committed an error in
declining to grant the relief of specific performance and
hence, I answered point as affirmative in granting the relief
of specific performance.
15. In view of the discussions made above, I pass
the following:
ORDER
i) The Appeal is allowed.
ii) The judgment and decree of the Trial Court
dated 06.10.2009 passed in O.S.No.3543/2008 is set-aside.
Consequently, the suit filed by the plaintiff for the relief of
specific performance is granted as prayed.
Sd/-
(H.P. SANDESH)
JUDGE
RHS
