[Cites 18, Cited by 0]
Karnataka High Court
Sri Ningappa S/O ; Sagareppa Devaravar ` vs Sri Basappa S/O : Ningappa Byakod on 6 April, 2026
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RSA No. 5213 of 2010
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 6TH DAY OF APRIL 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 5213 OF 2010 (SP)
BETWEEN:
SRI. NINGAPPA S/O. SAGAREPPA DEVARAVAR,
AGE: 58 YEARS, OCC: ADVOCATE,
R/O. GIRISH NAGAR, JAMAKHANDI-587301.
...APPELLANT
(BY SRI. PRAKASH N. HOSAMANE, ADVOCATE)
AND:
1. SRI. BASAPPA S/O. NINGAPPA BYAKOD,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. KADAPATTI, JAMAKHANDI,
DIST: BAGALKOT-587301.
2. SRI. JAGADISH S/O. KESHAV TUNGAL,
Digitally signed
by GIRIJA A.
BYAHATTI
AGE: 57 YEARS, OCC: ADVOCATE,
Location:
HIGH COURT R/O. JAMAKHANDI-587301.
OF
KARNATAKA,
DHARWAD
BENCH
3. SRI. MALLAPPA S/O. NINGAPPA BYAKOD,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. KADAPATTI, JAMAKHANDI-587301.
DECEASED ON 08.10.2010
VIDE ORDER DATED 26.10.2016 LR'S APPLICATION
IS ALLOWED AND LR'S ARE
3(A) SMT. GANGAWWA W/O. MALLAPPA BYAKOD,
AGE: 79 YEARS, OCC: HOUSEHOLD WORK,
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RSA No. 5213 of 2010
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3(B) GAJANANA S/O. MALLAPPA BYAKOD,
AGE: 49 YEARS, OCC: AGRICULTURE,
3(C) SHRISHAIL S/O. MALLAPPA BYAKOD,
AGE: 43 YEARS, OCC: CONTRACTOR,
ALL ARE R/O. KUDACHI ROAD, JAMKHANDI,
DIST: BAGALKOT.
4. THE ASSISTANT COMMISSIONER,
JAMAKHANDI, DIST: BAGALKOT-587301.
5. THE TAHASILDAR,
JAMAKHANDI, DIST: BAGALKOT-587301.
6. THE DEPUTY COMMISSIONER,
BAGALKOT-587301.
...RESPONDENTS
(BY SRI. K.L. PATIL, ADVOCATE FOR R1;
SRI. SOURABH A. SONDUR, ADVOCATE FOR R2;
SRI. ASHOK KATTIMANI, AGA FOR R4-R6;
R3(A)-HELD SUFFICIENT; R3(B)-SERVED)
---
THIS RSA IS FILED UNDER SECTION 100 READ WITH 106
OF C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED:24/11/2009 PASSED IN R.A.NO.24/2007 BY THE FAST
TRACK COURT, JAMAKHANDI AND ALSO SET ASIDE THE
JUDGMENT AND DECREE DATED:22/02/2007 PASSED IN
O.S.NO.132/1994 BY THE PRINCIPAL CIVIL JUDGE (JR.DN),
JAMAKHANDI AND ALLOW THE APPEAL AND ETC.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
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RSA No. 5213 of 2010
HC-KAR
ORAL JUDGMENT
1. This is the appeal filed under Section 100 read with
Section 106 CPC, praying to set aside the judgment
and decree dated 24.11.2009 passed in
R.A.No.24/2007 on the file of the Fast Track Court,
Jamakhandi (hereinafter referred to as 'the trial
Court', for short), and to set aside the judgment and
decree dated 22.02.2007 passed in O.S. No.132/1994
on the file of the Principal Civil Judge, Jamakhandi
(hereinafter referred to as 'the first Appellate Court',
for short), and to allow the appeal and decree the suit
of the plaintiff.
2. The parties would be referred with their ranks as they
were before the Trial Court for the sake of
convenience and clarity.
3. The brief facts of the case are;
3.1. The plaintiff has filed the suit before Trial Court,
praying for specific performance of the
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agreement in his favour in respect of his half
share in the suit schedule property, and
alternatively for a decree awarding ₹19,000/- by
way of damages and for such other reliefs.
3.2. The suit schedule property is measuring East-
West 100 feet and North-South 100 feet portion
(approximately 10 guntas), out of the South-
eastern portion of the middle strip measuring 1
acre 17 guntas of Sy.No.78/2 of Jamakhandi
belonging to defendant No.1.
3.3. It is the contention of the plaintiff that there was
an agreement between the plaintiff, defendant
No.2, and defendant No.1 on 01.07.1987,
wherein defendant No.1 agreed to sell the suit
schedule property for a sum of ₹38,000/- by
receiving an advance amount of ₹10,000/-, and
agreed to sell the suit schedule property in
favour of both the plaintiff and defendant No.2
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after fulfilling certain terms and conditions
mentioned in the said agreement.
3.4. It is the further contention of plaintiff that he and
defendant No.2 were friends and advocates by
profession, and thus he believed defendant No.2
and defendant No.2 was requested to take all the
responsibilities of the terms and conditions of the
suit agreement, and defendant No.2 has taken a
Special Power of Attorney from defendant No.1
in the year 1993. After fulfilling all the terms and
conditions, and after obtaining the property in
the name of defendant No.1, defendant No.1, in
collusion with defendant No.2, entered into a
sale transaction. Defendant No.1 executed a sale
deed in favour of defendant No.2 in respect of
the entire 1 acre 17 guntas belonging to him.
Defendant Nos.3 and 4 are the brothers of
defendant No.1 and were made as formal parties
to the suit. The plaintiff has narrated the terms
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and conditions of the agreement in detail in the
plaint.
3.5. The plaintiff further contended that he, along
with defendant No.1 & 2, is in possession of the
suit schedule property. Defendants are trying to
dispossess him by creating evidence of
possession entirely in favour of defendant No.2.
The plaintiff requested defendant Nos.1 and 2 to
execute the sale deed in his name in respect of
his share in the property, but they refused and
ignored his request and rights. Hence, the suit
for appropriate reliefs.
3.6. After service of summons, defendant No.1 filed
his written statement, wherein he denied the
plaint averments in toto. He contended that the
suit schedule property is the subject matter
before the Land Tribunal, Jamakhandi, as the
entire R.S.No.78/2 is Inam land and it belongs to
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defendant No.1 along with his co-owners,
defendant Nos.3 and 4, who are the sons of
Ningappa Byakod, and there is no division by
demarcation of their shares. He further denied
the suit transaction in toto.
3.7. Defendant No.1 further contended that the
predecessors-in-title of defendant Nos.1, 3 and
4, namely their father-Ningappa Byakod, was a
tenant and had filed Form No.7 before the Land
Tribunal, Jamakhandi, which was adjudicated in
KLR-D-SR No.51 & 52 of Jamakhandi before the
Land Tribunal on 23.09.1981, and it was subject
matter in appeal before the Land Reforms
Appellate Authority, Bijapur in LRA-TR-135/87
and ultimately before this Court in Civil Revision
Petition No.8737/91. In those proceedings,
defendant No.1 along with defendant Nos.3 and
4 succeeded, and the decision was rendered in
their favour.
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3.8. It was further contended that the alleged
agreement dated 01.07.1987 is void ab initio, as
the lands in question were already vested with
the Government and the agreement is in
contravention of Section 4 of the Karnataka
Certain Inams Abolition Act, 1977, and also
Section 23 of the Indian Contract Act, 1872.
Defendant No.1 had no saleable interest in the
property at that point of time; hence, the alleged
agreement is invalid and not enforceable
contract in law.
3.9. He further contended that there was no
readiness or willingness on the part of the
plaintiff, and there is no averment in the plaint
about readiness and willingness of the plaintiff.
Without making pleading in respect of readiness
and willingness, the suit is not maintainable as
required under Section 16(c) of the Specific
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Relief Act, 1963. The suit is also barred by
limitation, and the court fee paid is incorrect.
3.10. He further contended that he, along with
defendant Nos.3 and 4, have paid a premium
amount of ₹2,816/- to the Government through
Challan No.6 on 08.10.1993, applied for re-
grant, and the entire R.S.No.78/2 measuring 3
acres 34 guntas was re-granted to them by the
Tahsildar, Jamakhandi, under the Karnataka
Certain Inams Abolition Act, 1977, as per order
dated 14.10.1993.
3.11. The Assistant Commissioner, Jamakhandi, in
LRM-CR-No.49/93-94, by order dated
06.12.1993, granted permission to alienate the
property under Section 12(2) of the Karnataka
Certain Inams Abolition Act, 1977. Accordingly,
defendant No.1 sold the property to defendant
No.2 in the year 1994 for valuable consideration,
and defendant No.2 is in actual possession and
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enjoyment of the same. Hence, the plaintiff is
not entitled for damages, as the agreement itself
is void, and he prayed for dismissal of the suit
with compensatory costs of ₹3,000/-.
3.12. Defendant No.2 filed his written statement,
wherein he substantially reiterated the
contentions of defendant No.1 and denied the
alleged agreement of sale by himself and plaintiff
with defendant No.1. He also took a contention
that the alleged agreement of sale is void under
Section 23 of the Indian Contract Act, 1872. He
denied all other averments made in the plaint.
However, he admitted that after the sale deed,
he made an application for conversion of the suit
schedule property from agricultural to non-
agricultural use as the owner thereof. Hence, he
prayed for dismissal of the suit with
compensatory costs.
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4. From the above facts, the Trial Court has framed the
following issues and additional issues:
1) Whether the plaintiff proves that
defendant no.1 has agreed to sold
the suit property on 1.7.1987 for
Rs.38,000/- to the plaintiff and
defendant no.2 and defendant No.1
received Rs.10,000/- as earnest
money and executed an agreement
of sale in favour of plaintiff and
defendant No.2 and the plaintiff has
saddled responsibility on defendant
no.2 for getting removed the
encumbrance recorded over the said
property as alleged in the plaint?
2) Whether the plaintiff is entitled to
the relief sought?
3) What order or decree?
Addl. Issues framed on 24.8.2002:
1) Whether the defendant No.1 proves
that the agreement of sale is void-ab-
intio which is in contravention of sale
of Inam Abolition Act etc?
2) Whether the defendant No.1 proves
that the suit is time barred?
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3) Whether the defendant no.1 proves
that court fee paid is incorrect, if so
what is the correct court fee?
4) Whether the defendant No.1 proves
that the suit is hit by non-compliance
of mandatory averments as per Sec.
16(C) of Specific Relief Act?
5. After recording evidence of both sides and hearing
arguments of both sides, the Trial Court came to the
conclusion that the suit agreement is void ab initio and
partly decreed the suit, holding that the plaintiff is
entitled for refund of ₹10,000/- from defendant No.1
only, which was paid as earnest money.
6. Aggrieved by the said judgment and decree, the
plaintiff/appellant has preferred the first appeal.
7. After hearing arguments of both sides, the first
Appellate Court has confirmed the judgment and
decree passed by the trial Court. Aggrieved by the
same, the plaintiff/appellant is before this Court.
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8. Heard the arguments of both sides and perused the
records.
9. Learned counsel for the appellant Sri Prakash N.
Hosamane would submit that:
9.1. The agreement was in force between defendant
No.2 and defendant No.1, and even though such
an agreement existed and defendant No.2 was a
party to it, knowing fully well that the agreement
in question is valid and subsisting, defendant
Nos.1 and 2, in collusion with each other, have
entered into a registered sale deed which is not
binding on the plaintiff. Hence, he prayed for
allowing the suit and to grant a decree of specific
performance.
9.2. He would further submit that the agreement in
question is valid because the plaintiff is not
enforcing the agreement as on that date, but
there are conditions mentioned in the agreement
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that after completion of all revenue proceedings
and after re-grant of land to defendant No.1,
plaintiff can get execution of the sale deed based
on the said agreement. The Trial Court and the
First Appellate Court have not examined this
point of law in a proper manner, and hence he
prayed for allowing the appeal.
10. Learned counsel for respondent No.1 Sri. K. L. Patil
would submit that;
10.1. The alleged agreement in question is void ab
initio, as the property in question was already
vested with the Government. He would further
submit that there was no partition at all among
defendant Nos.1, 3, and 4 to identify which part
of the property would fall to the share of
defendant No.1. In the absence of these factors,
the plaintiff cannot claim execution of the sale
deed based on the said agreement.
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10.2. In support of his contention, he relied upon the
decision of the Division Bench of this Court in the
case of Sri Ni Pra Cahnnabasava
Deshikendra Swamigalu Matadhipathigalu
Kannada Mutt Vs. C. P. Kaveeramma and
Others1.
11. Learned counsel for respondent No.2 Sri. Sourabh A.
Sondur would submit that;
11.1. There is no evidence on behalf of the plaintiff
regarding readiness and willingness, and there is
no pleading or proof in that regard, and hence,
the suit is hit by Section 16(c) of the Specific
Relief Act, 1963 (prior to amendment). He would
further submit that the agreement in question is
void ab initio.
11.2. In this regard, he relied upon the judgment of
the Hon'ble Supreme Court in the case of
Smt.Narayanamma and Others v.
2008 (2) KCCR 696 (DB)
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Govindappa and Others2, wherein at para 15
it is held as under:
15. The three-Judge Bench of this Court,
after referring to the aforesaid judgments,
speaking through M. Hidayatullah, J. (as
his Lordship then was), observes thus:
"15. The correct position in law, in our
opinion, is that what one has to see is
whether the illegality goes so much to the
root of the matter that the plaintiff cannot
bring his action without relying upon the
illegal transaction into which he had
entered. If the illegality be trivial or
venial, as stated by Williston and the
plaintiff is not required to rest his case
upon that illegality, then public policy
demands that the defendant should not be
allowed to take advantage of the position.
A strict view, of course, must be taken of
the plaintiff's conduct, and he should not
be allowed to circumvent the illegality by
resorting to some subterfuge or by mis-
stating the facts. If, however, the matter
is clear and the illegality is not required to
be pleaded or proved as part of the cause
AIR 2019 SC 4654
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of action and the plaintiff recanted before
the illegal purpose was achieved, then,
unless it be of such a gross nature as to
outrage the conscience of the Court, the
plea of the defendant should not prevail."
12. At the time of admitting the appeal, following
substantial question of law is framed by this Court on
01.02.2017:
"Whether both the Courts below were justified
in ignoring the right of plaintiff under Ex.P.1,
which is neither cancelled nor withdrawn by the
parties, prior to execution of Exs.P.2 and P.3 in
favour of defendant No.2 in the original suit?"
13. Finding of this Court on the above point is in
AFFIRMATIVE for the following:
REASONS
14. The admitted contention of the plaintiff is that, at the
time of entering into the suit agreement with
defendant No.1, the suit schedule property was not
granted to defendant No.1, but it was vested with the
Government as per the provisions of the Karnataka
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Certain Inams Abolition Act, 1977. Ex.P.1-agreement
also reveals that it came into existence between the
plaintiff, defendant No.2, and defendant No.1. There
is specific recital in the agreement that defendant
No.1, along with defendant Nos.3 and 4 are the legal
representatives of their father-Ningappa Byakod.
However, defendant Nos.3 and 4 are not parties to
this agreement. Admittedly, there was no partition
among defendant Nos.1, 3, and 4 at the time of the
alleged agreement of sale.
15. It is further recited in the agreement that an
application filed for re-grant of the Inam land was
pending before appropriate authority, and that after
defendant No.1 paying the premium to Government
and obtaining all necessary permissions, he would sell
the property to the plaintiff and defendant No.2 within
three months from the date of obtaining such
permission and bringing to the notice of plaintiff and
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defendant No.2 in writing, by receiving the balance
sale consideration of ₹28,000/-.
16. Section 23 of the Indian Contract Act, 1872, reads as
under:
23. What consideration and objects are
lawful, and what not--The consideration
or object of an agreement is lawful,
unless--
it is forbidden by law; or
is of such a nature that, if permitted, it would
defeat the provisions of any law; or
is fraudulent; or
involves or implies, injury to the person or
property of another; or
the Court regards it as immoral, or opposed to
public policy.
In each of these cases, the consideration or
object of an agreement is said to be unlawful.
Every agreement of which the object or
consideration is unlawful is void.
17. Under Section 23 of the Indian Contract Act, 1872, the
object of any agreement is said to be lawful unless it
is forbidden by law, or if it is of such a nature that, if
permitted, it would defeat the provisions of any law.
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18. In the instant case, as discussed above, as on the date
of the alleged agreement of sale, the Karnataka
Certain Inams Abolition Act, 1977 was in force.
According to the said Act, all the Inam lands were
vested with the Government with effect from the date
the Act came into force. Admittedly, suit schedule
property was inam land. Thus, as on the date of the
alleged agreement of sale, this property was already
vested with the Government, and neither the
owner/inamdar nor the tenant had any saleable right
over the property in question.
19. Admittedly, the plaintiff is an advocate by profession
and he was fully aware of the consequences of the
said agreement and that it was not valid as on that
date.
20. As per Section 43 of the Transfer of Property Act,
1882, where a person fraudulently or erroneously
represents that he is authorized to transfer certain
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immoveable property and professes to transfer such
property for consideration, such transfer shall, at the
option of the transferee, operate on any interest which
the transferor may acquire in such property at any
time during which the contract of transfer subsists.
21. In this case, there was no fraudulent or erroneous
representation by defendant No.1 to the plaintiff,
because there is a specific recital in the agreement
itself that the property is Inam land and that only after
defendant No.1 obtains rights over the property, he
would sell the property to the plaintiff and defendant
No.2. Thus, this section may not come in aid to the
plaintiff.
22. As discussed earlier, plaintiff is not an illiterate person
but an advocate by profession and is thus fully aware
of the consequences and validity of such an
agreement.
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23. With this background, learned counsel for the
appellant/plaintiff would vehemently submit his
arguments that the sale agreement was valid and it
would come into force after defendant No.1 obtaining
tenancy rights in the suit schedule property. In this
regard, learned counsel for the appellant would rely
upon the decision of the Co-ordinate Bench of this
Court in the case of Subbireddy v. K. N. Srinivasa
Murthy3, wherein it is held as under:
"INDIAN CONTRACT ACT, 1872-Section
23-SPECIFIC RELIEF ACT, 1963-Section
20-KARNATAKA VILLAGE OFFICES INAM
ABOLITION ACT, 1965-Section 5(The
word 'transfer' implies conveying the title
or interest in the property apart from
parting with possession. When there is a
Sale Agreement and no delivery of
possession of land within the prohibited
period of 15 years of re-grant, and
possession remains with vendor, held,
there is no sale as such in order to hold
the transaction as void under Section
MANU/KA/0475/2005
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5(3) of the Village Offices Inam Abolition
Act.
The said sale transactions, held,
cannot be said to be even opposed
to Public Policy, as the sale was
contemplated to take place after
the non-alienation period was over
and after taking permission from
the concerned Authority.
Judgment and decree of First
Appellate Court was set aside and
the judgment and decree passed
by the trial Court decreeing the suit
was upheld.
Regular Second Appeals allowed."
24. In the said case, possession was not at all handed
over, but in the present case, as per the plaint
pleadings and the alleged sale agreement, possession
was delivered. Hence, this citation is not helpful for
the appellant to prove his contention.
25. On the other hand, learned counsel for respondent
No.1 relied on the decision of the Division Bench of
this Court in the case of Sri Ni Pra Cahnnabasava
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Deshikendra Swamigalu Matadhipathigalu
Kannada Mutt (cited supra), wherein it is held as
under:
A. TRANSFER OF PROPERTY ACT,
1882-Section 43 - Transfer by
unauthorised person who subsequently
acquires interest in the property
transferred-Feeding of grant by estoppel-
Element of fraud or misrepresentation-
Appellant being aware of its defective
title-Title of the appellant getting clear on
a subsequent date-Principle of feeding of
grant by estoppel applies
B. KARNATAKA CERTAIN INAMS
ABOLITIONS ACT, 1977-Section
4(2)(b) -Whether it contains any
express or implied provision to hold that
after regrant of land encumbrances
created would not get revived-Whether
the contractual tenancy right of alienee
after regrant in respect of alienantion
validly created prior to vesting in favour
of Government under Section 4(2)(h) be
affected-Considered.
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Further held: The appellant was aware of the
fact that the mutt is not the absolute owner of
the property but technically in the eye of law
was in permissive possession. The term of
inam did not prohibit alienation, the mutt being
aware of its imperfect right over the land has
created usufructuary mortgage for 99 years.
Therefore it cannot be argued that Section 43
does not attract the facts. When there is no
express prohibition in the provision of the Act,
1977 regarding the revival of contractual rights
of parties created prior to passing of Act, 1977
and in view of Section 43 of T.P. Act it is
inequitable in the eye of law to hold that after
regrant in favour of the inam holder, the
contractual commitments between the inam
holder and aliens created prior to the passing
of 1977 Act would not revive."
26. Learned counsel for respondent No.1 further relied
upon the judgment of the Hon'ble Supreme Court in
the case of Smt.Narayanamma and another etc.
etc. Vs. Govindappa and Others etc. etc.4
AIR 2019 SC 4654
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Paragraphs 25 and 26 of the said judgment reads as
under:
"25. However, the ticklish question that
arises in such a situation is:"the decision of this
Court would weigh in side of which party"? As
held by Hidayatullah, J. in Kedar Nath Motani
[AIR 960 SC 213] (supra) , the question that
would arise for consideration is as to whether
the plaintiff can rest his claim without relying
upon the illegal transaction or as to whether
the plaintiff can rest his claim on something
else without relying on the illegal transaction.
Undisputedly, in the present case, the claim of
the plaintiff is entirely based upon the
agreement to sell dated 15-5-1990, which is
clearly hit by Section 61 of the Reforms Act.
There is no other foundation for the claim of
the plaintiff except the one based on the
agreement to sell, which is hit by Section 61 of
the Act. In such a case, as observed by Taylor,
in his "Law of Evidence" which has been
approved by Gajendragadkar, J. in Immani
Appa Rao (AIR 1962 SC 370) (supra), although
illegality is not pleaded by the defendant nor
sought to be relied upon him by way of
defence, yet the Court itself, upon the illegality
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appearing upon the evidence, will take notice
of it, and will dismiss the action ex turpi causa
non oritur actio i.e. no polluted hand shall
touch the pure fountain of justice. Equally, as
observed in Story's Equity Jurisprudence, which
again is approved in Immani Appa Rao (supra),
where the parties are concerned with illegal
agreements or other transactions, courts of
equity following the rule of law as to
participators in a common crime will not
interpose to grant any relief, acting upon the
maxim in pari delicto potior est conditio
defendentis et possidentis.
26. It could thus be seen that, the trial
Judge upon finding that the agreement of sale
was hit by Section 61 of the Reforms Act, had
rightly dismissed the suit of the plaintiff."
27. In this regard, this Court relied upon the judgment of
the Hon'ble Supreme Court in the case of Tanu Ram
Bora Vs. Promod Ch.Das(D) through Lrs. &
Others5. Paragraphs 7.1 to 7.4 of the said judgment
reads as under:
7.1 At the outset, it is required to be
Civil Appeal No.1575 of 2019 disposed of on 08.02.2019
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noted that the following facts are not in
dispute:
i) that the original plaintiff
purchased the suit land by a
registered sale deed dated
06.01.1990, executed by late
Pranab Kumar Bora on payment
of full sale consideration;
ii) that as on 06.01.1990, the
suit land was ceiling surplus land
and the government was the
owner;
iii) that the land in question
became ceiling free land on
14.09.1990;
iv) that the name of the
original plaintiff was mutated in
the revenue record - Sadar
Jamabandi vide order dated
18.12.1991 in Mutation Case No.
94/91-92;
v) that neither the vendor nor
the heirs of the vendor
challenged order dated
18.12.1991 by which the name of
the plaintiff was mutated in the
revenue record;
vi) that when the earlier suit
was decreed by the learned trial
Court, it was only the original
defendant no.1 who challenged
the judgment and decree passed
by the learned trial Court and no
appeal was preferred by original
defendant nos. 2 to 7, heirs of
the original vendor; and
vii) that in the second round of
litigation, the first appellate Court
specifically observed against
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original defendant No.1 that he
has also no right, title or interest
in the suit land on the basis of
prior agreement to sell and the
said finding had attained finality.
7.2 It is required to be noted that as
such the heirs of the original vendor are
not contesting the proceedings and it is
only original defendant no.1 (now the legal
heirs of original defendant no.1) are
contesting the proceedings. Thus, it
appears and/or nothing is on record to
show that it was the case on behalf of the
original defendants, more particularly on
behalf of the vendor that the original
plaintiff was informed specifically at the
time of execution of the sale deed dated
06.01.1990 that the land in question is
ceiling surplus land. In the light of the
aforesaid facts, Section 43 of the T.P. Act,
which is heavily relied upon on behalf of
the original plaintiff is required to be
considered.
7.3 Section 43 of the Act reads as
under:
"43. Transfer by unauthorised
person who subsequently
acquires interest in property
transferred - where a person
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[fraudulently or] erroneously
represents that he is authorised
to transfer certain immovable
property and professes to
transfer such property for
consideration, such transfer
shall, at the option of the
transferee, operates on any
interest which the transferor
may acquire in such property at
any time during which the
contract of transfer subsists.
Nothing in this Section shall
impair the right of transferees in
good faith for consideration
without notice of the existence
of the said option".
7.4 Section 43 of the T.P. Act provides
that where a person fraudulently or
erroneously represents that he is
authorised to transfer certain immovable
property and professes to transfer such
property for consideration, such transfer
shall, at the option of the transferee,
operates on any interest which the
transferor may acquire in such property at
any time during which the contract of
transfer subsists. Thus, if at the time of
transfer, the vendor/transferor might have
a defective title or have no title and/or no
right or interest, however subsequently
the transferor acquires the right, title or
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interest and the contract of transfer
subsists, in that case at the option of the
transferee, such a transfer is valid. In
such a situation, the transferor cannot be
permitted to challenge the transfer and/or
the transferor has no option to raise the
dispute in making the transfer.
28. Relying on the principles noted in the aforesaid
judgments and on verification of the facts of the
present case, admittedly, the alleged sale agreement
in favour of the plaintiff came into existence when the
property was not at all re-granted to defendant No.1
and it was vested with the Government. Thus,
defendant No.1 had no right whatsoever over the
property in question.
29. Under these circumstances, the agreement is not
enforceable in law. The Hon'ble Supreme Court in
Smt.Narayanamma's case (cited supra) held that
the agreement of sale during subsistence of non-
alienation clause of 15 years is unenforceable in law.
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Thus, in that case, occupancy rights were granted to
the owner. However, the situation in the present case
is worse than that. The property in question was not
at all re-granted to defendant No.1 at the time of the
alleged sale agreement. Hence, at no stretch of
imagination it can be said that the agreement in
question is valid and enforceable in the eye of law.
30. This is the suit filed in respect of specific performance
of the agreement of the year 1987. Thus, as per
Section 16(c) of the Specific Relief Act, 1963
prevailing at that time, there must be pleading and
proof of readiness and willingness on the part of the
plaintiff to perform his part of the contract. However,
in the instant case, admittedly there is no pleading
about readiness and willingness on the part of the
plaintiff in the plaint. In the absence of such pleading,
any amount of evidence has no value in the eyes of
law. Hence, even on the ground of readiness and
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willingness, the suit of the plaintiff is liable to be
dismissed.
31. Considering these aspects, the Trial Court has rightly
not passed any decree in favour of the plaintiff for
specific performance of the contract, but has only
ordered refund of the earnest money. Defendant No.1
has not challenged the said order; hence, it has
become final for him. Therefore, now defendant No.1
cannot question about the refund of the earnest
money. Under these circumstances, the trial Court
and first Appellate Court were justified in partly
decreeing the suit of plaintiff without considering
Ex.P.1, which is not a valid agreement. Accordingly,
the substantial question of law is answered in
AFFIRMATIVE and this Court passes the following:
ORDER
The appeal filed under Section 100 CPC is
dismissed by confirming the judgment and decree
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dated 24.11.2009 passed in R.A.No.24/2007 on the
file of the Fast Track Court, Jamakhandi, and the
judgment and decree dated 22.02.2007 passed in O.S.
No.132/1994 on the file of the Principal Civil Judge,
Jamakhandi.
Sd/-
(GEETHA K.B.)
JUDGE
gab
CT-MCK
LIST NO.: 1 SL NO.: 36
