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2025 DIGILAW 331 (KAR)

Prathima v. Vinaya R. Achar

2025-06-11

H.P.SANDESH

body2025
JUDGMENT : H.P.Sandesh, J. This matter is listed for admission and I have heard learned counsel for the appellants and learned counsel for caveator-respondent. 2. The factual matrix of case of the plaintiff before the Trial Court is that ‘A’ schedule property was assigned in favour of defendant in EDR:SR:1307/1994-95 dated 14.10.1998 and in ADS EDR (1) SR 253/2002-03 dated 21.06.2003 The defendant was residing at Udupi and employed there and he wanted to dispose of the property for his urgent needs. The defendant approached the plaintiff and agreed to sell the ‘A’schedule property for a sum of Rs.4,15,000/- and also entered into a written agreement of sale with the plaintiff dated 11.09.2004. The plaintiff was already in possession of the ‘A’ schedule property under an earlier agreement of sale. The plaintiff continued in possession of the property and the defendant agreed that the plaintiff shall be entitled to make any alterations in the suit property. The agreement was prepared in duplicate and the original is with the plaintiff along with original records. It is further contended that defendant also executed a General Power of Attorney dated 27.03.2005 before the Notary Public, Hebri empowering the husband of the plaintiff to construct new building, to raise loans, and to do various acts mentioned therein in view of the agreement of sale. Thereafter plaintiff invested huge amount, carried out the enormous improvements by erecting fence, raising fruit yielding trees, constructing house, well, etc. As the price of the property has been ascending considerably, defendant has been trying to get over the agreement of sale by hook or crook. The defendant has issued notice dated 04.06.2012 informing that aforesaid power of attorney is terminated. The plaintiff has sent a true reply dated 08.06.2012. There are two valuable jackfruit trees in the suit property and defendant is now threatening to cut and remove the said trees. The defendant is negotiating to sell the property on the basis of entries in record of rights and also to dispossess the plaintiff. Therefore, plaintiff issued legal notice on 26.02.2013 calling upon the defendant to refrain from interfering with possession and enjoyment of the ‘A’ schedule property. The defendant had sent a reply denying the agreement of sale and even alleging forgery and fabrication by the plaintiff. There was an earlier agreement of sale dated 29.06.1995 of the same property. Therefore, plaintiff issued legal notice on 26.02.2013 calling upon the defendant to refrain from interfering with possession and enjoyment of the ‘A’ schedule property. The defendant had sent a reply denying the agreement of sale and even alleging forgery and fabrication by the plaintiff. There was an earlier agreement of sale dated 29.06.1995 of the same property. The defendant has denied the same in the reply notice. On 24.03.2013 defendant brought outsiders to the property informing that he would sell the two jackfruit trees situated in the property and also brought some surveyor stating that he would put up fence around the house so as to prevent the plaintiff from using the remaining property. The defendant is permanently residing in Udupi. The plaintiff and her family are residing in the very same property and in the house bearing Door No. 6-18 of Hebri Village situated in the suit property. The defendant is denying the agreement of sale as well as possession of the plaintiff over the suit property. 3. It is also contended that bar against the sale of land of first item of plaint schedule property stipulated in the assignment order dated 02.01.1999 has expired. The defendant has agreed to sell the property to the plaintiff as per agreement of sale dated 19.11.2004 after the said period i.e., after 02.01.2014. The defendant has also agreed to sell the second item of plaint ‘A’ schedule property after 21.06.2018 i.e., after the period of 15 years as per the order of assignment dated 21.06.2003. The defendant has refused to execute the sale deed and also denied the agreement of sale 26.11.1995 and 19.11.2004. It is also pleaded that plaintiff is and has always been ready and willing to perform of agreement of sale and she has already paid the entire consideration at the time of agreement of sale and is ready to meet all the expenses of execution and registration of sale deed. 4. In pursuance of the suit summons, the defendant appeared and filed a written statement contending that agreement dated 26.11.1995 and 19.11.2004 are false, forged and fabricated. The defendant had not entered into any agreement of sale at any point of time with the plaintiff. It is also contended that there is a statutory bar to enter into an agreement of sale of the suit properties. The defendant had not entered into any agreement of sale at any point of time with the plaintiff. It is also contended that there is a statutory bar to enter into an agreement of sale of the suit properties. The defendant plotted the plot granted to him by the Government and effected vast and valuable improvements in the suit schedule properties by rearing and protecting trees and also constructing the house, putting enclosures. It is further contended that the plaintiff’s husband was in the suit properties as agent/General Power of Attorney Holder of the defendant and since the plaintiff's husband Ramakrishna Achar turned hostile to the interest of the defendant, the said General Power of Attorney was revoked by cancelled by the defendant. Enraged by the revocation of General Power of Attorney, the plaintiff has filed the suit making false and frivolous allegations. The plaintiff is not entitled for benefit of Section 53A without fulfilling the pre- requisites for invoking the equitable doctrine of part performance and prayed the court to dismiss the suit. 5. During the pendency of the suit, defendant died and his legal representatives were also brought on record and they have also filed additional written statement denying the agreement of 19.11.2004 and content that it was an unregistered agreement. It is also contented that any document in which if possession of immovable property is delivered, then it has to be registered subsequent to 24.09.2001 i.e., the date on which Amendment Act 2001 of Indian Registration Act come into force. It is also contented that the alleged agreement is unenforceable under law and contend that agreement dated 19.11.2004 is also not duly stamped and unregistered. As on the date of alleged agreement dated 26.11.1995, the property was not granted in favour of the defendant and the extent of land mentioned therein is 0.99 acre. It is further contended that in the alleged agreement dated 19.11.2004, the total extent of land mentioned therein is 0.93 acre. Hence it cannot be believed that plaintiff came into possession of plaint ‘A’ schedule property. It is also contended that plaintiff has sought the relief initially for the relief of the permanent injunction and subsequently got amended for specific performance and hence, not entitled for the relief of the specific performance. 6. Hence it cannot be believed that plaintiff came into possession of plaint ‘A’ schedule property. It is also contended that plaintiff has sought the relief initially for the relief of the permanent injunction and subsequently got amended for specific performance and hence, not entitled for the relief of the specific performance. 6. The Trial Court also framed the issues and also additional issues and answered Issue No.1 as ‘affirmative’regarding payment of consideration of Rs.4,15,000 in terms of the agreement dated 19.11.2004. However, answered issue No.2 as ‘negative’ regarding possession of plaint ‘A’ schedule property under an earlier agreement of sale dated 26.11.1995 and answered issue No.3 as ‘affirmative’, in coming to the conclusion that earlier there was an Power of Attorney and the same was revoked. The Trial Court also answered issue no.4 as ‘negative’ regarding lawful possession is concerned as on the date of suit and so also answered issue no.5 that plaintiff is not entitled for the relief of declaration and also for the relief of permanent injunction. However, answered the additional issues in coming to the conclusion that bar will not come in the way of sale of land in item nos.1 and 2 of the plaint schedule property, since the same has expired and also answered additional issue no.2 in the ‘affirmative’, in coming to the conclusion that defendant has agreed to sell the 2 nd item of plaint schedule property after 21.06.2018 and so also answered additional issue no.3 as ‘affirmative’ that plaintiff proves that she is always ready and willing to perform his part of agreement of sale. Having answered these issues, granted the relief of specific performance in favour of the plaintiff and directed to execute the sale deed in favour of the plaintiff within four months. 7. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.16/2021. Having answered these issues, granted the relief of specific performance in favour of the plaintiff and directed to execute the sale deed in favour of the plaintiff within four months. 7. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.16/2021. The First Appellate Court having considered the grounds urged in the appeal memo and also considering both oral and documentary evidence available on record, formulated the point whether the appellant has established that agreement of sale is void during non-elimination period of 15 years and also framed the point for consideration whether judgment and decree passed by Trial Court partly decreeing the suit of the plaintiff is just and proper and so also formulated the point whether the appellants/defendant nos.1(a) to 1(a) have made out grounds to interfere with the judgment and decree passed by Trial Court. The First Appellate Court, on re- appreciation of both oral and documentary evidence, answered the point no.1 as ‘negative’ and confirmed the judgment of the Trial Court and answered point no.2 as ‘affirmative’ and so also answered point no.3 as ‘negative’ and the appeal filed by the appellant is dismissed. 8. Now learned counsel for the appellants would vehemently contend that the very reasoning given by both the Courts is erroneous and contend that both the Courts have committed an error in decreeing the suit of the plaintiff without appreciating the provisions of Section 34 of the Karnataka Stamp Act, 1957, when it was the case of P.W.1 that the alleged possession of the suit schedule properties were based on the alleged sale agreement Ex.P.29 and Ex.P30. Learned counsel also would vehemently contend that the Trial Court has erred in law in decreeing the suit of the plaintiff based Ex.P29, when there is an express bar under the assignment/Saguvali Chit Exs.P5, P6, P11 and P12 respectively. Learned counsel also counsel would vehemently contend that Trial Court also committed an error in holding that suit is filed within the period of limitation, having accepted the fact that defendant has denied the execution of alleged agreement of sale way back in the year 2012-2013 by issuing notice and amendment of plaint was allowed only on 05.12.2017 in view of Article 54 of the Limitation Act. The counsel also vehemently contended that the decree passed by the Trial Court is not justifiable in view of Section 16(c) and 17 of the Specific Relief Act, 1963. The counsel also vehemently contended that First Appellate Court is not justified in confirming the judgment and decree of the Trial Court without re-appreciating the pleadings, evidence and legal issues raised by the defendants and the First Appellate Court are not justified in confirming the judgment and decree of the Trial Court without re-appreciating the pleadings and evidence. Hence this court has to frame substantial questions of law in terms of the grounds which have been urged in the appeal and also substantial question of law suggested by counsel for the appellants. 9. Per contra, learned counsel for the caveator-respondent brought to notice of this Court that even while entering into an agreement also, both the plaintiff and defendants were conscious about the bar and the recitals of the agreement is very clear that sale deed would be executed only after expiry of the period of 15 years and the said fact was also taken note of by the Trial Court while considering the material on record and particularly in Paragraph No.41, comes to the conclusion that it was only a sale agreement and not any sale and the same not comes within the meaning of Section 61 of the Karnataka Land Reforms Act. The counsel would vehemently contend that the Trial Court given the finding that agreement of sale is not hit by Section 61 of the Karnataka Land Reforms Act. The counsel also would vehemently contend that having received the entire sale consideration, the appellants cannot blow hot and cold denying the very execution of document and though contend that document was forged and created, nothing is placed on record before the Trial Court by sending the document to Handwriting Expert that the document was forged. But the Trial Court comes to the conclusion that there was an agreement and also comes to the conclusion that Power of Attorney was executed and the same was also admittedly revoked by the appellant and all these factors were taken note of by the Trial Court. But the Trial Court comes to the conclusion that there was an agreement and also comes to the conclusion that Power of Attorney was executed and the same was also admittedly revoked by the appellant and all these factors were taken note of by the Trial Court. The counsel also brought to notice of this court even in paragraph No.35 of the order of the First Appellate Court there was a mistake and it was observed that plaintiff instituted suit only after completion of 15 years time stipulated in the Saguvali Chit and counsel would submit that when an attempt was made to dispossess the possession of plaintiff, a suit was filed and though suit was filed prior to completion of the period, but the decree was granted only after expiry of period of 15 years and hence, cannot find fault with the same. The counsel also would contend that both the Courts have not committed any error. 10. In reply to this argument of learned counsel for the caveator-respondent, learned counsel for the appellants relied upon the judgment of Apex Court in SMT. NARAYANAMMA AND ANOTHER ETC. ETC. VS. GOVINDAPPA AND OTHERS ETC. ETC. reported in AIR 2019 SC 4654 and brought to notice of this Court paragraph No.23, wherein it is observed that the transaction between the late Bale Venkataramanappa and the plaintiff is not disputed. Initially, the said Bale Venkataramanappa had executed a registered mortgage deed in favour of the plaintiff. Within a month, he entered into an agreement to sell wherein, the entire consideration for the transfer as well as handing over of the possession was acknowledged. It could thus be seen, that the transaction was nothing short of a transfer of property. Under Section 61 of the Reforms Act, there is a complete prohibition on such mortgage or transfer for a period of 15 years from the date of grant. The counsel also referred paragraph No.25 of the judgment and contend that when there is a clear bar to sell the property, there cannot be any sale. Hence, this judgment is aptly applicable to the case on hand and matter requires reconsideration. 11. The counsel also referred paragraph No.25 of the judgment and contend that when there is a clear bar to sell the property, there cannot be any sale. Hence, this judgment is aptly applicable to the case on hand and matter requires reconsideration. 11. Having heard learned counsel for the appellants and also learned counsel for the respondent and also considering the material on record, it is not in dispute that land in ‘A’ schedule property was granted and there were two grants and first grant was dated 14.10.1998 and second grant was 21.06.2003 and it has to be noted that the very case of the plaintiff is that there were two sale agreements, one was in the year 1995 and another agreement was in the year 2004. The main contention is that while executing the sale agreement dated 19.11.2004 in respect of the ‘A’ schedule property received the consideration of Rs.4,15,000. The counsel appearing for the appellants also not disputes the fact that in the recitals of agreement, there is a clause that sale deed will be executed after the expiry of the period of 15 years, since there is a bar to execute the sale deed. Hence, it is very clear that the agreement of sale is made consciously that there was a bar and no sale transaction has taken place during that period and only an agreement of sale was entered into and when the defendants had consciously executed the document of sale agreement knowing fully well that there is a bar for alienation of the property for a period of 15 years, apart from they also executed a Power of Attorney in favour of the plaintiff and admittedly, the same was revoked by the appellant herein. Hence, it is very clear that there was a sale transaction and Power of Attorney was also executed and counsel would contend that the bar was not properly taken note of by the Trial Court. But the fact is that there was a sale agreement and there was also a clause in the sale agreement that sale deed will be executed only after the expiry of the period of 15 years. But the fact is that there was a sale agreement and there was also a clause in the sale agreement that sale deed will be executed only after the expiry of the period of 15 years. When such being the case and when no sale transaction has taken place within a period of 15 years, the very contention that Section 61 of the Karnataka Land Reforms Act comes into play cannot be accepted and the same was also taken note of by the Trial Court in paragraph No.41 of the judgment that the same will not attract. 12. The First Appellate Court also having reassessed the material available on record, taken note of the fact that agreement was entered consciously by the defendants even during the subsistence of the bar and the clause in the agreement is also very clear that sale deed will be executed only after the expiry of bar. It has to be noted that it is also the specific case of the plaintiff before the Court that when the Power of Attorney was revoked and also an attempt was made to interfere with the possession having revoked the Power of Attorney, a suit was filed and no doubt, the First Appellate Court made an error in mentioning the factual aspect that suit was filed before expiry of the period of 15 years, but the fact is that in the very pleading, it is categorically stated that when attempt was made to disturb the possession, suit was filed and as rightly pointed out by learned counsel for the caveator- respondent also that judgment and decree was passed only after expiry of the period of 15 years, since there was a bar. Apart from that, the clause is very clear with regard to the fact that transaction has to be taken place only after the period of 15 years. When such being the case, both the Courts have applied their mind invoking Section 61 as contended by the learned counsel for the appellants and there was no sale transaction within that period. Hence, question of invoking Section 61 and framing of substantial question of law does not arise. When such being the case, both the Courts have applied their mind invoking Section 61 as contended by the learned counsel for the appellants and there was no sale transaction within that period. Hence, question of invoking Section 61 and framing of substantial question of law does not arise. The counsel for the appellant would vehemently contend that both the documents of sale agreement are barred by Section 34 of the Karnataka Stamp Act, 1957 and both the Courts taken note of the very execution of Power of Attorney with regard to delivery of possession and for improvement. When such being the case, the very contention of the learned counsel for the appellants also cannot be accepted. 13. The principles laid in the judgment of the Apex Court in the case of SMT. NARAYANAMMA’s case is not helpful to learned counsel for the appellants, since there was no sale transaction between the period of bar and only an agreement was entered and the defendants have consciously entered into an agreement of sale knowing the fact that there was a bar to execute the sale deed and the time stipulated is also to execute the sale deed after the period of 15 years. When such being the factual aspects, I do not find any ground to come to a conclusion that there was a perversity in the finding of the Trial Court to invoke Section 100 of CPC to frame the substantial question of law as contended by the learned counsel for the appellants. 14. In view of the discussions made above, I pass the following: ORDER The regular second appeal is dismissed.