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2012 DIGILAW 787 (KAR)

K. S. Jayaramaiah v. B. L. Sridhar Bhat

2012-09-18

B.MANOHAR

body2012
JUDGMENT B. MANOHAR, J.—The appellant, who is defendant in OS No. 55/2002, being aggrieved by the judgment and decree dated 31.08.2005 passed by the Civil Judge (Sr. Dn.) Doddaballapur, has filed this appeal. 2. The brief facts of the case are as follows: The respondent/plaintiff filed a suit seeking for declaration, declaring that he is the absolute owner of the land bearing Sy. No. 6/1, measuring 2 acres 17 guntas, situated at Venkateshpura Village, Doddabelavangala Hobli (here-in after referred to as ‘suit schedule property’) and also sought for permanent injunction restraining the appellant/defendant from interfering with the peaceful possession of the suit schedule property. In the plaint it was contended that, as per registered sale deed, dated 08.07.1996, the plaintiff has purchased the said property from one Gangaiah for a valuable sale consideration of Rs. 1,22,000/-, thereafter he got changed the revenue entries in his name and he has been in possession and cultivating the same. However, the defendant who has no right, title or interest tried to interfere with the possession of suit schedule property. Hence, plaintiff has filed a suit with the above prayer. In pursuance to the notice issued by the trial Court the defendant entered appearance and filed his written statement denying the entire averments made in the plaint and contended that, pursuant to the agreement of sale dated 25.06.1995, entered into between Gangaiah, he has agreed to purchase the suit schedule property for a total sale consideration of Rs. 1,40,000/-. Pursuant to the agreement of sale, part of the sale consideration of Rs. 30,000/- paid on the date of execution of the agreement of sale through cheques. Pursuant to the agreement of sale, this defendant was put in possession of the said schedule property and he is enjoying the same. The time is not essence of the contract. He was always ready and willing to perform his part of the contract and to pay balance sale consideration and get the sale deed registered. Further, he asserted that, he also filed suit against said Gangaiah in OS No. 272/1996 in the Court of Munsiff and JMFC, Doddaballapur and obtained interim order on 17.07.1996, restraining the said Gangaiah from alienating the suit schedule property and interfering with possession of the defendant. In spite of the interim order, the said Gangaiah alienated the said property in favour of the plaintiff on 08.07.1996. In spite of the interim order, the said Gangaiah alienated the said property in favour of the plaintiff on 08.07.1996. Hence, the plaintiff is not entitled for any relief and he sought for dismissal of the suit. 3. On the basis of the pleadings of the parties, Trial Court framed the following issues: (1) Whether plaintiff proves that he is the absolute owner of the suit schedule property having purchased the same through a registered sale deed dated 27.07.1996 as alleged in the plaint. (2) Whether the plaintiff proves that he is in physical possession and enjoyment of the suit schedule property and interference of the defendants as alleged in the plaint? (3) Whether the defendant proves that he is in physical possession and enjoyment of the suit schedule land by virtue of the agreement of sale dated 25.06.1995 as alleged in the written statement? (4) What relief the plaintiff is entitled? (5) What order and decree? 4. The plaintiff in order to prove his case, examined himself as PW1, got examined two other witnesses as PW2 and PW3 and relied upon Exs.P1 to P8. On the other hand, the defendant examined himself as DW1, and also examined other witnesses as DW.1 to DW.5 and got marked the documents as Exs.D1 to D5. 5. The plaintiff in his evidence deposed that, as per the registered sale deed dated 08.07.1996, he has purchased the suit schedule property for a valuable sale consideration of Rs. 1,22,000/- and on the basis of the sale deed, he got the mutation entries changed into his name. The Sale Deed is marked as Ex.P1 and Mutation entries, extracts, Pahani and Tax paid receipts are marked as Exs.P.2 to P5. He further contended that, his father had purchased Sy. No. 207/2 from the said Gangaiah as per sale deed dated 30.05.1990. The suit schedule properties are agricultural lands and he was raising Ragi and Jowar crop. He was cross-examined by the defendant. Nothing contrary has been elicited in the cross-examination. The PW2 in his evidence deposed that, the plaintiff is cultivating the suit schedule property from the date of purchase and raising Jowar, Ragi and other crops. His land is situated adjacent to the property of the plaintiff he is one of the attesting witness of the sale deed. He was cross-examined by the defendant. The PW2 in his evidence deposed that, the plaintiff is cultivating the suit schedule property from the date of purchase and raising Jowar, Ragi and other crops. His land is situated adjacent to the property of the plaintiff he is one of the attesting witness of the sale deed. He was cross-examined by the defendant. In the cross-examination he was deposed that, the crop is entirely depending upon the rain. He does not know what crop has been raised by the plaintiff. Further, PW.3 who is neighboring owner of the suit schedule property and also attesting witness of sale deed, deposed in similar lines as that of PW2. 6. DW1 in his evidence has reiterated the averments made in the written statement in his examination-in-chief. He got marked the agreement of sale dated 25.06.1996 as Ex.D1, the copy of the plaint in OS No. 272/1996 as Ex.D4, written statement filed by Gangaiah as Ex.D5 and the zerox copies of the cheques as Exs.D2 and D3. In cross-examination, he has deposed that, he is residing 7 to 8 kms away from Dodda Hejjaji Village and he is permanent resident of Kesthur Village. He has entered into an agreement to purchase the suit schedule property and paid advance amount of Rs. 50,000/- and six months time has been fixed for executing the registered sale deed. He further deposed that, he has not filed any suit for enforcement of agreement of sale. He has not made an application to get his name entered in the mutation entries. He further deposed that, on 28.07.1996 the plaintiff has lodged a complaint against him. Further, he has no knowledge about what happened to the OS No. 272/1996 filed against Gangaiah. The agreement of sale was signed by Ashwathnarayan Achari and Bairanna as witnesses. Ashwathnarayan Achari is alive, however, Bairanna is dead. He has not received any letter from Gangaiah on 10.05.1996. He has denied the suggestion made in the cross-examination that the notice has been issued by Gangaiah for cancellation of the agreement of sale. In Ex.P8 his name is mentioned, i.e. the certificate of posting of notice. He has not received such letter. He examined two other witnesses DW.2 and DW3 who are Officers of the Bank to show that he has given two cheques to the said Gangaiah. In Ex.P8 his name is mentioned, i.e. the certificate of posting of notice. He has not received such letter. He examined two other witnesses DW.2 and DW3 who are Officers of the Bank to show that he has given two cheques to the said Gangaiah. The Trial Court on the basis of the oral and documentary evidence let in by the parties and after consideration of the arguments addressed by the parties, held issue Nos. 1, 2 and 4 in the affirmative and issue No. 3 in the negative. Consequently by judgment and decree dated 31.08.2005 decreed the suit filed by the plaintiff declaring that the plaintiff is the owner of the suit schedule property and restrained the defendant from interfering with the peaceful possession of the suit schedule properties. The appellant/defendant being aggrieved by the judgment and decree dated 31.08.2005 has filed this appeal. 7. Sri B.S. Murali, learned Advocate appearing for the appellant contended that, the judgment and decree passed by the Trial Court is contrary to law. Pursuant to the agreement of sale, dated 25.06.1995, he was put in possession of the suit schedule property. However, during pendency of said agreement of sale, the said Gangaiah has sold the suit schedule property in favour of the respondent. Further, he has filed suit in OS No. 272/1996 with a prayer of restraining the said Gangaiah from alienating the said property and interfering in his peaceful possession and obtained an interim order on 17.06.1996. In support of his claim, he has examined two other witnesses. The payment has been made through cheques. Further, the said Gangaiah has not disputed the execution of agreement of sale. However, the Trial Court erroneously came to the conclusion that, the appellant has failed to establish the execution of agreement of sale he was put in possession of the suit schedule property. The reasoning assigned by the Trial Court is contrary to law. Further, during pendency of the above suit, the application filed by the respondent under Order 38 (1 & 2) of CPC was rejected by the Trial Court holding that the plaintiff has not made out any prima facie case for grant of interim order. Hence sought for setting aside the judgment and decree by allowing the appeal. 8. Further, during pendency of the above suit, the application filed by the respondent under Order 38 (1 & 2) of CPC was rejected by the Trial Court holding that the plaintiff has not made out any prima facie case for grant of interim order. Hence sought for setting aside the judgment and decree by allowing the appeal. 8. On the other hand, Sri M. Shivaprakash, the learned Advocate appearing for the respondent argued supporting the judgment and decree passed by the Trial Court. He has contended that, no material has been produced before the Trial Court to show that pursuant to the agreement of sale dated 25.06.1995, the appellant was put in possession of the suit schedule property and he has not examined any independent witness in this regard. Further, the appellant has not filed any suit for enforcement of agreement of sale and his right, if any, is barred by limitation. Hence, the agreement of sale cannot be enforced. The Trial Court on appreciation of oral and documentary evidence adduced by the parties came to the conclusion that, the respondent has been in possession and enjoyment of the said property pursuant to the sale deed, dated 08.07.1996, and got changed the mutation entries. Hence, there is no infirmity and illegality in the order passed by the Trial Court and sought for dismissal of the appeal. 9. After hearing the learned counsel for the parties, the only point that arise for consideration in this appeal is as to Whether the appellant has made out a case to interfere with the order passed by the Trial Court.? 10. The records clearly disclose that the plaintiff had purchased the suit schedule property as per the registered sale deed dated 8-7-1996 from his vendor Gangaiah. Pursuant to the sale deed, he was put in possession of the property and the revenue entries have been changed in his name. His grievance is that the defendant is interfering with his peaceful possession and enjoyment of the suit schedule property. Hence, he filed a suit seeking for declaration as well as injunction. 11. The case of the defendant is that pursuant to the agreement of sale dated 25-6-1995, the vendor of the plaintiff had agreed to sell the suit schedule property in his favour for a sale consideration of Rs. 1,40,000/-. Hence, he filed a suit seeking for declaration as well as injunction. 11. The case of the defendant is that pursuant to the agreement of sale dated 25-6-1995, the vendor of the plaintiff had agreed to sell the suit schedule property in his favour for a sale consideration of Rs. 1,40,000/-. Pursuant to the agreement of sale, he received a part of the sale consideration of Rs. 30,000/-. Further the defendant was put in possession of the said property. During the subsistence of the said agreement of sale, Gangaiah had sold the suit schedule property in favour of the plaintiff. Since the defendant is in possession of the suit schedule property, the plaintiff cannot claims to be in possession of the property on the basis of the sale deed dated 8.7.1996. Further contended that earlier he had filed O.S. No. 272/1996 against the Vendor of the plaintiff restraining him from alienating the said suit schedule property and also obtained an interim order on 17-7-1996. As per Section 53-A of the Transfer of Act, even though he has not enforced his right seeking for specific performance of agreement of sale, he can protect his possessor right and also relied upon the judgment of the Full Bench of this Court reported in ILR 1998 KAR 3230 in the case of Narsimhasetty vs. Padmasetty, and also in 2004 (6) KLJ 187 (SC) in the case of Mahadeva and others vs. Tanabai. The defendant in order to prove that he was in possession of the suit schedule property pursuant to the agreement of sale has not examined any independent witnesses except his evidence. On perusal of Ex.D.1 the agreement of sale, it is clear that regarding handing over possession has not been mentioned in the body of agreement of sale. However, in the schedule to the property, in the last sentence it is mentioned that possession was handed over to the agreement holder/defendant as per the agreement of sale dated 25-6-1995. In order to prove the same, he has not examined any of the witnesses. 12. Admittedly the suit schedule property is an agricultural land. All the revenue records stand in the name of the plaintiff. Prior to the purchase of land by the plaintiff, the land in dispute stands in the name of the said Gangaiah. In order to prove the same, he has not examined any of the witnesses. 12. Admittedly the suit schedule property is an agricultural land. All the revenue records stand in the name of the plaintiff. Prior to the purchase of land by the plaintiff, the land in dispute stands in the name of the said Gangaiah. The specific case of the plaintiff is that after purchasing the property, he got changed the mutation entries in his name and he has raised ragi and jower crops. The case of the plaintiff was supported by two other witnesses wherein they had deposed that the plaintiff has been in possession and cultivating the suit land. The agreement of sale will not confer any right, title or interest over the property, though the defendant had entered into an agreement of sale with the vendor of the plaintiff on 25-6-1995. No effort has been made to enforce the said agreement of sale. In fact, the defendant has filed O.S. No. 272/1996 seeking to restrain Gangaiah from alienating the said property and he has not sought for enforcement of the said agreement of sale. No material has been produced before the Court to show that he is in possession of the property. Since the defendant is not in possession of the suit schedule property, the judgments relied upon by the defendant are not applicable to the facts of the present case. In the judgments relied upon by the defendant, the person was in possession of the property pursuant to the agreement of sale and he can take advantage of Section 53-A of the Transfer of Property Act. In the instant case, no material has been produced before the Court to show that the defendant has been in possession of the property pursuant to the agreement of sale. The Trial Court after considering the oral and documentary evidence let in by the parties held that the defendant has failed to establish that he was put in possession of the suit schedule property. 13. I find that there is no infirmity or irregularity in the judgment and decree passed by the Trial Court. The issue framed in this appeal is answered against the appellant. The appellant has not made out any case to interfere with the said judgment and decree of the Trial Court. Accordingly, I pass following order: 14. The appeal is dismissed.