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2016 DIGILAW 417 (KAR)

D. G. APPAYANNA v. A. M. SIDDAPPA

2016-06-06

S.N.SATHYANARAYANA

body2016
JUDGMENT : S.N. Sathyanarayana, J. Plaintiffs in O.S. No. 427/2015 on the file of Senior Civil Judge and JMFC., Devanahalli, have come up in this appeal impugning the order dated 30.09.2015 in dismissing their application in I.A.I. filed under Order 39 Rules 1 and 2 of CPC., for the relief of temporary injunction restraining defendants from alienating or encumbering the suit schedule property during the pendency of the said suit. 2. The brief facts of this case leading to this appeal are as under :- The suit in O.S. No. 427/2015 is filed by plaintiffs - appellants herein inter alia for the relief of specific performance of agreement of sale dated 24.12.2012 and for permanent injunction restraining defendants from alienating the suit schedule property to anyone other than the plaintiffs or encumbering the same in any manner. Admittedly, agricultural land in Sy. No. 26 of Aradeshanahalli village, Kundana Hobli, Devanahalli Taluk, measuring 5 Acres 31.08 guntas originally belonged to late Munishamappa. Respondents, who are defendant Nos. 1 to 14 in the suit, are children and grand-children of the said Munishamappa. 3. It is stated in the plaint that initially, on 03.05.2007, plaintiffs had entered into an agreement of sale in respect of the suit schedule property with defendants and in suppression of the same, second agreement of sale dated 24.12.2012 is entered into between the same parties. Along with the agreement of sale, defendants have executed registered power of attorney dated 24.12.2012. Admittedly, defendants have agreed to sell the suit property to the plaintiffs for sale consideration of Rs.1,50,15,000/- (mentioned as Rs.1,50,47,500/- in the plaint). Out of that, part consideration of Rs.67,50,000/- is paid by plaintiffs under various cheques from time to time and receipt of the said amount is accepted by defendants in the suit. 4. When the matter stood thus, it is stated that a notice has been issued by defendants on 18.05.2015 cancelling agreement of sale dated 24.12.2012 as well as registered general power of attorney executed in favour of plaintiffs citing certain lapses on the part of plaintiffs in making payments to defendants within the stipulated time. 5. 4. When the matter stood thus, it is stated that a notice has been issued by defendants on 18.05.2015 cancelling agreement of sale dated 24.12.2012 as well as registered general power of attorney executed in favour of plaintiffs citing certain lapses on the part of plaintiffs in making payments to defendants within the stipulated time. 5. It is the case of plaintiffs that they were not aware of the pendency of tenancy dispute in LRF No. 9/1975-76 respect of the suit property before the Land Tribunal and they came to know about the same only when they applied for change of katha in the name of defendant Nos. 1 and 9 before the jurisdictional Tahsildar. They were ready and willing to perform their part of the contract as contemplated under agreement of sale dated 24.12.2012 by paying the balance sale consideration to defendants. Defendants were not justified in issuing notice dated 18.05.2015 terminating agreement of sale and general power of attorney executed in their favour. The defendants with an ulterior motive have refused to execute and register the sale deed in favour of plaintiffs. Hence, plaintiffs are entitled to specific performance of agreement of sale dated 24.12.2012. 6. In the said suit, I.A.I. was filed by plaintiffs under Order 39, Rules 1 and 2 of CPC., seeking the relief of temporary injunction restraining defendants from alienating or encumbering the suit property pending disposal of the suit. 7. Defendant No. 9 has filed the written statement along with a memo adopting the written statement as objections to I.A.I. He has contended that plaintiffs have not challenged notice of termination dated 18.05.2015 and therefore, the suit filed by them is not maintainable under Order 2, Rule 2 of CPC. The plaintiffs were aware of the tenancy dispute in LRF. No.9/1975-76 pending before the Land Tribunal, Devanahalli, and they had agreed to purchase the suit property pending litigation. Defendant No. 9 - Shivanna and one Ravikumar have challenged the order passed by the Land Tribunal dated 08.01.2013 in W.P. No. 37602/2013 before this Court. Therefore, the suit of the plaintiffs is barred under Sections 132 and 133 of the Karnataka Land Reforms Act. Defendant No. 8 - Siddamma has filed a suit for partition in O.S. No. 37/2013 on the file of Senior Civil Judge, Devanahalli, wherein temporary injunction has been granted and the same is operating against defendant No. 9 and others. Therefore, the suit of the plaintiffs is barred under Sections 132 and 133 of the Karnataka Land Reforms Act. Defendant No. 8 - Siddamma has filed a suit for partition in O.S. No. 37/2013 on the file of Senior Civil Judge, Devanahalli, wherein temporary injunction has been granted and the same is operating against defendant No. 9 and others. In view of the tenancy dispute pending before the Land Tribunal and the injunction order passed by the Civil Court in O.S. No. 37/2013, the defendants are not in a position to perform their part of the contract under the agreement of sale. He has alleged that plaintiffs by playing fraud on defendants have created the agreement of sale dated 24.12.2012. However, he has admitted receipt of part sale consideration of Rs. 67,50,000/- from the plaintiffs. Accordingly, defendant No. 9 has sought for dismissal of suit and I.A.I. with costs. 8. The Trial Court, after considering the contentions of the parties, by order dated 30.09.2015, has dismissed I.A.I. filed by plaintiffs for temporary injunction. Being aggrieved by the same, plaintiffs have preferred this first appeal. 9. Heard the learned counsel for appellants and learned counsel for the contesting respondents. Perused the records. On going through the same, it is seen that the Trial Court has proceeded on the basis that the agreement of sale dated 24.12.2012 and registered general power of attorney are terminated by defendants by issuing notice to the plaintiffs on 18.05.2015 and in the absence of any declaratory relief sought by plaintiffs to the effect that termination of agreement by defendants is bad in law, the suit filed by plaintiffs for specific performance prima facie is not maintainable. It is further observed by the Trial Court that pursuant to the remand order passed by this Court in W.P. No. 10603/2005 dated 13.04.2005, the tenancy dispute in respect of the suit property is pending adjudication before the Land Tribunal, Devanahalli. In view of the same, the land in dispute is vested with the State and till occupancy rights are granted in favour of defendants, they have no right over the suit property and therefore, the question of alienation by them does not arise. Accordingly, the Trial Court has dismissed I.A.I filed by plaintiffs for temporary injunction as devoid of merits. In view of the same, the land in dispute is vested with the State and till occupancy rights are granted in favour of defendants, they have no right over the suit property and therefore, the question of alienation by them does not arise. Accordingly, the Trial Court has dismissed I.A.I filed by plaintiffs for temporary injunction as devoid of merits. It is seen that the Trial Court while dismissing I.A.I, has not taken into consideration the parking of sale consideration to an extent of 40% by plaintiffs with defendants, which amounts to Rs. 67,50,000/-, and rights of the parties have not been adjudicated by the Trial Court in the proper perspective. In that view of the matter, the order passed by the Trial Court rejecting the application in I.A.I. filed by plaintiffs for temporary injunction is unjust and improper. 10. Accordingly, this appeal is allowed. The order passed by Senior Civil Judge and JMFC., Devanahalli, on I.A.I. in O.S. No.427/2015 dated 30.09.2015 is hereby set aside. The application filed by plaintiffs in I.A.I. before the Trial Court, is hereby allowed. 11. In view of disposal of this appeal, I.A.I.2016 filed in this appeal for vacating stay does not survive for consideration and the same stands disposed of.