B. RAJAGOPALA RAO v. U. VYASA RAO — 1987 DIGILAW 267 (KAR)

CHANDRAKANTHARAJ URS, J. ,, J. ( 1 ) THIS is third defendant's appeal against the judgment and decree dated 19th March, 1987in O. S. No. 117 of 1982 on the file of the I Additional Civil Judge at Mangalore, Dakshina Kannada District. The suit was brought by one U. Vyasa Rao and later by an application under Order VI rule 17 C. P. C. , the 2nd plaintiff was brought on record as additional plaintiff. ( 2 ) THE plaintiffs alleged that the 1st plaintiff had entered into an agreement with defendants 1, 3 and 4 agreeing to purchase the property situated in Kasaba bezar village and within the Fort Ward of mangalore town comprised in R. S. No. 1679/a1 and 1725/2, T. S. No. 13/2 and 76/2 being the eastern portion measuring 49 cents in extent with tiled dwelling house, out-houses etc. , with trees, rights of way and water more-fully described in the registered sale deed dated 17-1-1928 registered as document No. 93/78 before the Registrar of Sou'h Kanara. Defendants 1, 2, 4, 5 and 6 executed the sale deed pursuant to the said agreement during the pendency of the suit and therefore, the relief in so far as they were coneerned was not pressed by the plaintiffs. The 3rd defendant who had taken a different stand in his written statement did not join in the execution though he was a signatory to the suit agreement to sell. He specifically took the stand that the suit agreement was obtained by misrepresentation and fraud; that plaintiff no. 1 was not willing to perform his part of the contract within the stipulated time; that the 3rd defendant was not bound to execute the deed of sale in respect of his 1/3rd share in the suit-schedule property because the time stipulated for execution of the sale deed was over. On such plea, the trial Court raised as many as 12 issues with all of which we need not concern ourselves but refer only to the following issues for a just disposal of this appeal :" (1) Whether the plaintiff was ready and willing to perform his part of the contract ? (2) Whether the time was the essence of the contract ? (2) Whether the time was the essence of the contract ? (3) Whether the suit agreement dated 21-12-1980 is vitiated by misrepresentation and fraud ?" ( 3 ) IN so far as Issue No. 6 extracted as above is concerned, no serious attempt was made by Sri Subba Rao, learned counsel for the appellant to dislodge the conclusion reached by the trial court and the assertion in the written statement was unsupported by evidence. We, therefore, do not propose to deal with that finding except to mention that appellant-defendant No. 3 is not an ignorant person to be mis-led by the so called misrepresentation made by the 1st plaintiff about a law being passed which would enure to the benefit of tenants in the property just as the Land Reforms Act conferred the benefit on agricultural tenants. We are of the view that the stand taken by him in the Written Statement was more one of form than of substance. Not having supported such a stand by any evidence, the trial Court cannot be blamed if Issue No. 6 was answered in favour of the plaintiff. Therefore, the judgment of the trial Court on issue No. 6 must be sustained. ( 4 ) IN so far as Issue No. 3 is concerned, mr. Subba Rao has made that issue the sheet-anchor of his argument in this Court. His argument which is reproduced below in his own words as submitted in this Court is :"if the purchaser does not come forward to get the sale deed executed within six months from Exhibit P. 29, the suit-agreement, the vendors have no obligation to execute the sale-deed. "the period of six months referred to in the argument is the period mentioned in clause-7 of the suit-agreement Exhibit p 29. It is as follows :"the sale deed, in pursuance of this agreement, shall be executed within six months from this date, or within two months of the final disposal of the declaration of the tenant under the karnaiaka Land Reforms Act, now pending before the Land Tribunal. "from the above, it is clear that the intention of the parties was to have two periods of time within which the suit agreement of sale was required to be got executed by the purchaser. Six months from the date of the agreement, namely, 21-12-1980 was the period first mentioned. "from the above, it is clear that the intention of the parties was to have two periods of time within which the suit agreement of sale was required to be got executed by the purchaser. Six months from the date of the agreement, namely, 21-12-1980 was the period first mentioned. Having regard to the construction of the sentence and the presence of a comma, after the expression "within six months from this date, "or" which follows is clearly dis-junctive and provides for another time period which is within two months after the final disposal of the declaration of the tenant under the Karnataka land Reforms Act then pending before the Land Tribunal. That the parties were aware of such proceedings pending is clear by clause-3. Clause-3 clearly states that the tenant of the suit-schedule property had filed a declaration under the karnataka Land Reforms Act and the same was pending enquiry. The purchaser was required to co-operate with the vendors to contest the case. All expenses pertaining thereto was to be brone by the vendors. If by chance, the occupancy patta was granted to the tenant at the cost of vendors, the vendors should file a Writ Petition before the High court at Bangalore and contest the case. Inspite of all the efforts, occupancy patta was granted to the tenant under the Karnataka land Reforms Act, than the agreement would stand cancelled and the vendors were required to return the advance of Rs. 20,000/- paid at the time of signing the agreement. Therefore, it is clear that six months was not the only period unless it is established by Defendant no. 3 that the proceedings under the Karnataka Land Reforms Act initiated by the tenant had come to an end before 21-6-1981. ( 5 ) THERE has been no such plea in the written statement filed by the 3rd defend dant nor is there any evidence, documentary or otherwise. In fact, when specifically addressed to this aspect by the court, the learned Counsel submitted that the burden was not on the defendant to prove that, that is, as to when the proceedings under the Karnataka Land reforms Act came to an end, but on the plaintiffs. In fact, when specifically addressed to this aspect by the court, the learned Counsel submitted that the burden was not on the defendant to prove that, that is, as to when the proceedings under the Karnataka Land reforms Act came to an end, but on the plaintiffs. Normally, the rule of evidence requires that one who asserts a particular, fact must necessarily prove that fact and not depend upon the failure of the other party to prove the same when the other party was not required to prove the same. Therefore, we must hold that on the unambiguous language employed in cla. use-7 of the suit agreement, the period was not six months from the date of the agreement but a period longer than that if there was no termination of the proceedings under the Karnataka Land Reforms act within the said six months. The trial court was correct in coming to the conclusion that the time was not the essence of the contract. It relied upon all the events that transpired, that is compromise entered in proceedings under the Karnataka Rent Control Act pending in the appropriate Court at Mangalore. by the tenants as well as the landlord-petitioners there-in. We are also fortified in affirming that conclusion by the fact that possession appears to have been delivered to the purchasers on the date of agreement, in the sense that constructive possession was made over to the 1st plaintiff. It is in evidence that tenants were paid money and Subha Enterprises took possession of the suit-schedule premises and that Subha Enterprises is none other than a firm in which plaintiff no 1 and his wife are parents. Therefore, actual possession was taken from the tenants in proceedings under the karnataka Rent Control Act cannot be disputed. At no point of time or at no stage was there any plea or evidence that 1st defendant was in possession, constructive or otherwise, that is, well after the period of six months referred to in clause-7 of the suit-agreement. ( 6 ) WHAT remains now is the contention that the plaintiffs were not willing to perform their obligation under the suit agreement and therefore, the judgment and decree of the trial Court are liable to be set-aside In that manner. Issue No. 1 has assumed some importance in this court though it was not seriously contended as such in the trial Court. Issue No. 1 has assumed some importance in this court though it was not seriously contended as such in the trial Court. What was really pressed in the trial Court was the issue that time was the essence of the contract. The unwillingness on the part of the 1st plaintiff to the contract, it is asserted by the learned Counsel for the appellant, must be understood in the context of clause-7 stipulating the period within which the contract was required to be performed. His argument has been that Exhibit P-29 did not say that the execution of the sale deed should take place only after the conditions in Exhibit p-29 were satisfied or fulfilled. We are unable to see how that argument may be advanced by the 3rd defendant. After-all the vendors can only pass that title which they possess and no more. That the suit-property was joint-family property was not in dispute. It was also not in dispute that the suit-property was in the occupation of the tenants except for a bare room which was retained by the 1st defendant. It is not disputed that the tenant had sought registration of occupancy rights under the Karnataka land Reforms Act. Therefore, title to the property did depend upon the success or failure of the tenant's application under the Karnataka Land Reforms Act. If he was declared occupant as understood by the parties in terms of clause-3 of the suit-agreement, the entire transaction was to be called-off and the advance paid returned. Therefore, now to argue at the appeal stage without adequacy of pleading or evidence in the trial Court that the sale deed was not to be executed if the conditions were not fulfilled is something which this Court cannot countenance. ( 7 ) THEREFORE, all the arguments advanced by the appellant are rejected by us. We do hot find any merit in this appeal and therefore, we dismiss it. ( 8 ) BEFORE parting with this case, we must state that the 3rd defendant-appellant has paid only Rs. 3000. 00 as Court fee though the appeal is valued at Rs. one lakh and over. He is required to pay court fee of Rs. 10,001. 00. But by virtue of the interim order made in W. P. 10221 of 1987, this appeal has been registered, numbered and taken on file on payment of Rs. 3000. 3000. 00 as Court fee though the appeal is valued at Rs. one lakh and over. He is required to pay court fee of Rs. 10,001. 00. But by virtue of the interim order made in W. P. 10221 of 1987, this appeal has been registered, numbered and taken on file on payment of Rs. 3000. 00 as initial court fee and subject to the orders of the Division Bench, namely, this Bench. As the appeal has failed, the appellant is bound to pay the additional Court fee. If he has not paid, within three months from today the deficit court fee, the Deputy Commissioner, bangalore District, within whose jurisdiction the appellant-3rd defendant resides shall recover the same as arrears of Land revenue. However, it is made clear that such recovery will not prejudice the contentions of the appellant in the Writ petition. If he succeeds in the Writ Petition, he may always seek refund of the excess Court fee paid by him, in proceedings under Article 226 of the Constitution of India that are pending. --- *** --- .