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2023 DIGILAW 1016 (KAR)

M. Nanjunda Reddy v. Malathi

2023-08-24

ASHOK S.KINAGI

body2023
JUDGMENT 1. This second appeal is filed by the appellant challenging the judgment and decree dtd. 4/9/2014 passed by the III Addl. District and Sessions Judge, Bengaluru Rural District, sitting at Anekal, in R.A.No.20/2006 dismissing the appeal by confirming the judgment and decree dtd. 1/4/2003, passed by the Principal Civil Judge (Jn.Dn.) and JMFC, Anekal in O.S.No.192/1996. 2. Parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondents No.1 and 2 are defendants No.1 and 2. 3. Brief facts leading rise to filing of this appeal are as under: Plaintiff filed a suit for specific performance of contract. It is the case of the plaintiff that defendant No.1 is the wife and defendant No.2 is the minor son of Late Gopalakrishna. The said Gopalakrishna was the absolute owner of the suit schedule property. He offered to sell the suit schedule property bearing Sy.No.30 measuring 3 guntas and plaintiff accepted the said offer. He entered into an agreement of sale in favour of the plaintiff on 2/2/1984 for a sale consideration of Rs.2, 130.00. He also received the entire sale consideration and put the plaintiff in possession of the suit schedule property in part performance of the contract. Further, at the time of executing an agreement of sale, since the Karnataka Prevention of Fragmentation and Consolidation of Holding Act, 1966 (hereinafter referred to as 'the Act of 1966' for short) was in force, the sale deed could not be executed by Late Gopalakrishna in favour of the plaintiff. Further, it is contended that the said Gopalakrishna, husband of the defendant No.1 and father of defendant No.2, died leaving behind them as his legal heirs. After the demise of Gopalakrishna, the plaintiff requested defendant No.1 to execute the sale deed. But, defendants declined to execute the sale deed. It is the case of the plaintiff that he was ready and willing to perform his part of contract, but the defendants were not ready to perform their part of the contract. It is the case of the plaintiff that since there is a breach of contract, the plaintiff got issued legal notice to the defendants on 22/1/1996, calling upon them to perform the obligation under the sale agreement by executing the registered sale deed. The said notice was served on defendant No.1. It is the case of the plaintiff that since there is a breach of contract, the plaintiff got issued legal notice to the defendants on 22/1/1996, calling upon them to perform the obligation under the sale agreement by executing the registered sale deed. The said notice was served on defendant No.1. But the defendant No.1 failed to execute register sale deed and she has not replied the said legal notice and hence cause of action arose to the plaintiff to file a suit for specific performance. Hence the suit. 4. The defendant No.1 filed written statement denying the averments made in the plaint and it is the case of the defendant No.1 that her husband did not offer to sell the suit schedule property in favour of the plaintiff for a consideration of Rs.2, 130.00 and it is also denied that plaintiff has paid a sum of Rs.2, 130.00 to her husband Late Gopalakrishna. The defendant No.1 further denied that the plaintiff was put in possession of the suit schedule property. It is contented that the plaintiff created the alleged agreement of sale and that there is no privity of contract between the plaintiff and her husband Gopalakrishna. Further, it is contended that the suit is barred by law of limitation. During the pendency of the suit the plaintiff got amended the suit. The defendant filed additional written statement denying the amendment portion of the plaint. Hence on these grounds the defendants prayed to dismiss the suit. 5. The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issue: 1. Whether the plaintiff proves that father of D1 and D2 agreed to sell the suit properties for Rs.2, 130.00 and received Rs.2, 000.00 executed agreement of sale on 2/2/84 putting the plaintiff in possession of the suit property? 2. Whether the plaintiff is ever ready and willing to perform his part of contract? 3. Whether the defendant proves that the agreement of sale is forged concocted document? 4. Whether the suit is time barred? 5. What order or decree? Additional Issue: 1. Whether the plaintiff proves that the father of defendant No.1 and 2 agreed to sell the suit property for Rs.2, 130.00 and received the entire sale consideration of Rs.2, 130.00 and executed an agreement of sale on 2/2/84 putting the plaintiff in possession of the suit property? 6. 5. What order or decree? Additional Issue: 1. Whether the plaintiff proves that the father of defendant No.1 and 2 agreed to sell the suit property for Rs.2, 130.00 and received the entire sale consideration of Rs.2, 130.00 and executed an agreement of sale on 2/2/84 putting the plaintiff in possession of the suit property? 6. In support of his case the plaintiff examined himself as PW1 and examined one witness as PW2. The plaintiff also got marked 15 documents as Ex.P1 to P15. The GPA holder of defendant No.1 got examined as DW1 and got marked one document as Ex.D1. 7. The trial Court on consideration of the oral and documentary evidence, answered issue Nos.2 and 3 as per discussion and issue No.4 in the affirmative and additional issue in the negative and consequently, dismissed the suit of the plaintiff. 8. Plaintiff aggrieved by the said judgment and decree passed by the trial Court preferred an appeal in R.A.No.20/2006 on the file of the III Addl. District and Sessions Judge, Bangalore Rural District sitting at Anekal. The First Appellate Court, after hearing the parties, has framed the following points for consideration: 1. Whether the appellant proves that the judgment and decree passed by the learned Prl. Civil Judge and JMFC Anekal in O.S.No.192/1996 dtd. 1/4/2023 is suffering from any irregularities or illegalities and calls for interference by this Court in this appeal? 2. Whether the appellant proves that the husband of defendant No.1 has agreed to sell the suit property for Rs.2, 130.00 and received entire sale consideration of Rs.2, 130.00 and executed an agreement of sale on 2/2/1984 putting the plaintiff in possession of suit property? 3. Whether the appellant proves that he was and is ready and willing to perform his part of contract? 4. What order? 9. The First Appellate Court, on re-appreciating the oral and documentary evidence, answered point Nos.1 to 3 in the negative and consequently, dismissed the appeal filed by the plaintiff and confirmed the judgment and decree passed by the trial Court. 10. Plaintiff aggrieved by the judgments and decrees passed by both the Courts below has filed this second appeal. 11. Heard the learned counsel for plaintiff. 12. Learned counsel for the plaintiff submits that the Courts below have committed an error in passing the impugned judgments and decrees. 10. Plaintiff aggrieved by the judgments and decrees passed by both the Courts below has filed this second appeal. 11. Heard the learned counsel for plaintiff. 12. Learned counsel for the plaintiff submits that the Courts below have committed an error in passing the impugned judgments and decrees. He submits that one Gopalakrishna, husband of defendant No.1 and father of defendant No.2, agreed to sell the suit schedule property for a consideration of Rs.2, 130.00 and plaintiff paid the entire sale consideration amount to him. He submits that said Gopalakrishna executed an agreement to sell on 2/2/1984. He also submits that plaintiff has proved execution of Ex.P1 by examining the attesting witness as PW2. The trial Court has overlooked the evidence of PW2. He also submitted that the Courts below have committed an error in placing reliance on the handwriting expert's report. He submitted that the Courts could have compared admitted signature with the disputed signature. He submits that both the Courts below have failed to consider the documents produced by the plaintiff and failed to appreciate the case of the plaintiff. He also submits that the reasons assigned by the Courts below are contrary to the records. Hence, the judgments and decrees passed by both the Courts below are erroneous. Hence, on these grounds he prays to allow the appeal. 13. Perused the records and considered the submissions of the learned counsel for the plaintiff. 14. It is not in dispute that one Gopalakrishna, husband of defendant No.1 and father of defendant No.2, was the absolute owner of the suit schedule property. It is the case of the plaintiff that there was an offer from Gopalakrishna to sell the suit schedule property for consideration of Rs.2, 130.00 and plaintiff accepted the offer of Gopalakrishna and agreed to purchase the same for aforesaid consideration amount. Accordingly, Gopalakrishna executed an agreement to sell dtd. 2/2/1984 and received the entire sale consideration from the plaintiff and in part performance of the contract, The Gopalakrishna delivered the possession of the suit schedule property to the plaintiff. The said Gopalakrishna died leaving behind the defendants as his legal heirs and defendants have succeeded to the suit schedule property. The plaintiff requested the defendants to execute the registered sale deed but the defendants refused to execute the same. 15. The said Gopalakrishna died leaving behind the defendants as his legal heirs and defendants have succeeded to the suit schedule property. The plaintiff requested the defendants to execute the registered sale deed but the defendants refused to execute the same. 15. PW1 in his examination-in-chief reiterated the plaint averments and produced Ex.P1 - agreement of sale alleged to have been executed by Gopalakrishna in favour of the plaintiff, Ex.P2 - copy of the legal notice issued by the plaintiff to the defendants, Ex.P3 - postal receipt, Ex.P4 - acknowledgment, Ex.P5 - RTC extract in respect of suit land, Ex.P6 - sale deed dtd. 25/10/1977, executed in favour of third party, the said registered sale deed is produced with an intention to prove the signature of Gopalakrishna on Ex.P1, as Ex.P6 is registered sale deed executed by Gopalakrishna. The execution of EX.P6 is admitted by him. Ex.P7 is the amended written statement. 16. Further, during the course of cross-examination of PW1, it was suggested to PW1 that Gopalakrishna never executed Ex.P1 and agreement of sale in favour of the plaintiff and also he agreed to sell the suit schedule property and also receipt of sale consideration amount of Rs.2, 130.00. The said facts have been denied. Further, the defendants have denied the execution of Ex.P1 by the Gopalakrishna in favour of the plaintiff. 17. Plaintiff in order to prove the contents of Ex.P1 examined one witness as PW2 - Muniswamy Reddy, who deposed that Gopalakrishna agreed to sell the suit schedule property in favour of the plaintiff for consideration of Rs.2, 130.00 and agreed to execute the registered sale deed within three months and further contended that Gopalakrishna executed an agreement of sale dtd. 2/2/1984 and delivered possession of the suit schedule property in part performance of contract. In the course of cross-examination, it is suggested that Gopalakrishna never executed the alleged agreement of sale and the same was denied. 18. Further, the power of attorney holder of defendant No.1 is examined as DW-1. DW-1 has reiterated the written statement averments in his examination-in-chief. Nothing has been elicited form the mouth of this witness. 19. From the perusal of the agreement of sale, the agreement of sale was executed on 2/2/1984. As on the date of execution of agreement of sale, the Act of 1966 was in force. As per the said Act, the alleged transaction is void. Nothing has been elicited form the mouth of this witness. 19. From the perusal of the agreement of sale, the agreement of sale was executed on 2/2/1984. As on the date of execution of agreement of sale, the Act of 1966 was in force. As per the said Act, the alleged transaction is void. Further, the Act of 1966 was repealed in the year 1991. Though time was the essence of contract, i.e., the plaintiff has get executed registered sale deed within 3 months from the date of execution of Ex.P.1, the plaintiff has not performed his part of contract within time. Further, during the pendency of the suit, plaintiff filed an application to send Ex.P1 to an handwriting expert. The said application came to be allowed and a Commissioner was appointed and the said document was forwarded to the Court Commissioner. The Court Commissioner has submitted the report on 8/11/2002. From the perusal of the Commissioner's report, it discloses that the Commissioner has compared the admitted signature with the disputed signatures and it showed firmness, freedom, fluency and uniformity. It further shows that the pictorial appearance of the admitted signature differed from that of the disputed signature and uniformity was not found in the disputed signatures. There was no firmness in the disputed signatures and the movement was drawn. The line quality was found to be smooth in the admitted signatures whereas it was defective in the disputed signatures. He has opined that the admitted signatures differed from that of the disputed signatures and further observed that there were calligraphic differences in the admitted signatures with that of disputed signatures. Though the plaintiff has filed objections to the Commissioner's report, the plaintiff has not taken any steps to cross-examine the Court Commissioner. The trial Court, placing reliance on the Commissioner's report, has recorded a finding that the plaintiff has failed to prove the execution of agreement of sale by Gopalakrishna on 2/2/1984 and further recorded a finding that the Fragmentation Act was repealed on 5/2/1991. The plaintiff got issued legal notice on 22/1/1996, i.e., after lapse of 5 years from the date the Act was repealed. This itself goes to show that the plaintiff was not ready and willing to perform his part of contract. 20. On the question whether the alleged agreement of sale in question was void being in violation of the Act of 1966. This itself goes to show that the plaintiff was not ready and willing to perform his part of contract. 20. On the question whether the alleged agreement of sale in question was void being in violation of the Act of 1966. The plaintiff and husband of defendant No.1 were not in doubt and the transaction was prohibited under the Act of 1966. In order to consider the case in hand, it is necessary to consider the definition of Fragmentation and prohibition imposed for alienating the land. 21. Ss. 2(g), 3, 4, 5, 39 and Schedule of the Act of 1966 provides the definition of Fragmentation, which reads as under: "2(a) xxx 2(b) xxx 2(c) xxx 2(d) xxx 2(d) xxx 2(f) xxx 2(g) "Fragment" means a holding of land of less extent than the appropriate standard area determined under Sec. 3." 3. Determination of standard area:-For the purpose of this Act, standard area means the area specified in column (3) of the Schedule to this Act, in respect of the class of land specified in the corresponding entry of column (2) of the said Schedule: 4. Entry in the Record of Rights:- (1) As soon as may be after the commencement of this Act, all fragments in a village shall be entered as such in the Record of Rights, or where there is no Record of Rights, in such village record as the State Government may prescribe. (2) Notice of every entry made under subsec. (1) shall be given in the manner prescribed for the giving of notice under Chapter XI of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964), of an entry in the Register of Mutations. 5. Sale, Lease, etc:- (1) (a) No person shall sell any fragment in respect of which a notice has been given under sub-sec. (2) of Sec. 4, except in accordance with the provisions of clause (b). (b) Subject to the provisions of Ss. 39 and 80 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962), whenever a fragment is proposed to be sold, the owner thereof shall sell it to the owner of a contiguous survey number or recognised sub-division of a survey number (hereinafter referred to as the contiguous owner). (b) Subject to the provisions of Ss. 39 and 80 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962), whenever a fragment is proposed to be sold, the owner thereof shall sell it to the owner of a contiguous survey number or recognised sub-division of a survey number (hereinafter referred to as the contiguous owner). Is the fragment cannot be so sold to the contiguous owner, for any reason, the owner of the fragment shall intimate in the prescribed form, the reasons therefore along with an affidavit in support thereof to the Tahsildar and also send copies of such intimation and affidavit to the Sub-registrar, in the prescribed manner and may thereafter sell such fragment to any other person. (2) Notwithstanding anything contained in any law for the time being in force or in any instrument or agreement, no such fragment shall be leased to any person other than a person cultivating any land, which is contiguous to the fragment. (3) No such fragment shall be sub-divided or partitioned. 39. Penalty for transfer or partition contrary to Act :- (1) The transfer or partition of any land contrary to the provisions of this Act shall be void. (2) The owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding two hundred and fifty rupees as the Deputy Commissioner may, subject to the general orders of the State Government direct. Such fine shall be recoverable as arrears of land revenue. (3) Any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or partition of which is void under the provisions of this Act, may be summarily evicted by the Deputy Commissioner, and after such eviction such land shall be deemed to be in the possession of the person lawfully entitled to such possession. Explanation.-In this Schedule 'A' Class, 'B' Class, 'C' Class or 'D' Class shall have the meaning assigned to them in the Karnataka Land Reforms Act, 1961. 22. Fragment means holding of a land of less extent than the appropriate standard area specified in column No.3 of the schedule to the Act of 1966 in respect of land specified in the corresponding entry in column No.2 of the said schedule. 23. Clause (a) of Sub sec. 22. Fragment means holding of a land of less extent than the appropriate standard area specified in column No.3 of the schedule to the Act of 1966 in respect of land specified in the corresponding entry in column No.2 of the said schedule. 23. Clause (a) of Sub sec. (1) of Sec. 5 of the Act of 1966 contemplates that the contract was prohibited under Sec. 5 of the Act of 1966 and there is a bar in respect of a sale, lease, sub division or partition of a fragment except as provided. It is not nearly the creation of a fragment by the transfer, partition or sub division i.e., prohibited under the Act of 1966. Therefore, a transfer of a fragment being expressly prohibited, the contract is void ab initio and cannot be enforced. Sec. 39(1) of the Act of 1966 provides that any transfer contrary to the provision of the Act of 1966 shall be void. 24. In the instant case the agreement of sale alleged to have been executed by Gopalkrishna is contrary to the Act of 1966 as the suit property measures 03 guntas and it falls within areas specified in column No.3 of schedule to the Act in respect of A class of land specified in corresponding entry in column No.2 of the schedule. 25. The trial Court was justified in recording a finding that the plaintiff has failed to prove the execution of agreement of sale by Gopalakrishna in favour of the plaintiff on 2/2/1984 and also rightly recorded a finding that the Gopalakrishna has not delivered possession of the suit schedule property in favour of the plaintiff in part performance of contract. The First Appellate Court on reappreciation of the evidence on record, has rightly reiterated the findings of the trial Court. Both the courts below have concurrently recorded a finding of fact holding that the plaintiff has failed to prove the execution of Ex.P1 and also payment of consideration amount of Rs.2, 130.00. Both the courts below are justified in passing the impugned judgments. The alleged agreement of sale is viod ab initio being in violation of Act of 1966 and cannot be enforced and the same is void as per Sub-sec. (1) of Sec. 39 of the Act of 1966. Both the courts below are justified in passing the impugned judgments. The alleged agreement of sale is viod ab initio being in violation of Act of 1966 and cannot be enforced and the same is void as per Sub-sec. (1) of Sec. 39 of the Act of 1966. I do not find any grounds to interfere with the impugned judgments and decrees passed by the Courts below and further I do not find any substantial question of law that arise for consideration in this appeal. Accordingly, the appeal is dismissed. No order as to the costs. 26. In view of dismissal of the appeal, pending I.As., if any, do not survive for consideration and are accordingly disposed of.