Allowed

Shanta v. Mahantesha

Karnataka HC14 Jun 2016RSA/610/2004

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a second appeal against a decree for specific performance of an agreement for sale. The Court held that since the site was not identified by metes and bounds on the date of the agreement and depended on future statutory approvals, the agreement was unenforceable. The decree for specific performance was set aside, and the trial court's decree for refund of consid

What did the court decide?

The decree of the lower appellate court setting aside the trial court's decree for refund is set aside. The defendants are ordered to refund Rs.50,000 with interest at 11% per annum.

Shanta Vs Mahantesha — Specific Performance | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

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DATED THIS THE 14^TH DAY OF JUNE, 2016

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BEFORE

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THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

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REGULAR SECOND APPEAL NO. 610 OF 2004

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BETWEEN:

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Shanta W/o Sidaraya Harakari Age: 63 years, Occupation: House hold work, Residents of Kasageri oni, Bijapur.

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Muregemma W/o Sidaraya Harakari Age: 68 years, Occupation: H.H. Work, Residents of Behind Dr. Bidari Residence BLDE, Hospital Road, Bijapur.

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Yamanakka W/o Mahadeva Inchageri Age: 38 years, Occupation H.H. Work, R/o Near Micro Office Siddishwa Colony Bagalkot Road, Bijapur.

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Kamala W/o Siddu Manavi Age: 36 years, Occupation: H.H. Work, Residents of Behind Dr. Bidari Residence BLDE, Hospital Road, Bijapur.

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Renuka W/o Mallinatha Nimbargi Age: 35 years, Occupation: H.H. Work, Residents of Behind Dr. Bidari Residence BLDE, Hospital Road, Bijapur.

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Shridevi W/o Mahadeva Mamadapur Age: 34 years, Occupation: H.H. Work, Residents of Behind Dr. Bidari Residence BLDE, Hospital Road, Bijapur.

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Jawahar S/o Sidaraya Harakari Age: 33 years, Occupation: Agriculture, Residents of Behind Dr. Bidari Residence BLDE, Hospital Road, Bijapur.

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Vivekananda S/o sidaraya Harakari Age: 30 years, Occupation: Student, Residents of Behind Dr. Bidari Residence BLDE, Hospital Road, Bijapur.

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Babu S/o Sidaraya Harakari Age: 28 years, Occupation: Student, Residents of Behind Dr. Bidari Residence BLDE, Hospital Road, Bijapur.

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… APPELLANTS

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(Shri Ashok S. Kinagi, Advocate) AND: Mahantesha S/o Sharanagouda Patil

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Age: Major, Occupation: Agriculture, Residing at Agasabavi, Taluk: Muddebihal, Now at Darabar Galli, Bijapur.

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… RESPONDENT

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(Shri Prakash R. Kulkarni, Advocate)

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This Regular Second Appeal is filed under Section 100 of Civil Procedure Code, 1908, against the Judgment and Decree dated 6.4.2004, passed in RA.No.8/2003, on the file of the II Additional District & Sessions Judge, Bijapur, allowing the appeal and modifying the Judgment and Decree dated 1.8.2003, passed in Original Suit No.151/1995, on the file of the Principal Civil Judge (Senior Division), Bijapur.

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This Appeal coming on for hearing this day, the Court delivered the following:

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J U D G M E N T

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Heard the learned counsel for the appellants and the learned

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counsel for the respondent.

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The appellants were the defendants before the Trial Court. The case of the plaintiff was that the suit was for specific performance of an agreement of sale dated 11.06.1993 executed by one Sidaraya who was then represented by the defendants in respect of a plot which was to be formed in Revenue Sy.No.490/1B of Mahal Bagayat, Bijapur, measuring 60’ x 40’ and in the alternative, for refund of the consideration amount of Rs.50,000/- paid by the plaintiff to the defendants, with interest at the rate of 18% per annum and also for permanent injunction restraining the defendants from alienating the property during the pendency of the suit.

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The property was described in the plaint as the plot to be culled out of land bearing revenue Sy.No.490/1B and bounded on the East by Plot No.77, West by road, North by road and South by Plot No.75. The deceased was the owner of the entire land

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measuring 5 acres 32 guntas, in all. This was not in dispute. The land was said to have been converted for non-agricultural purposes and it was intended to be formed into a layout of residential plots. But however, on the basis of a proposed plan, the intended plots were brought to sale and it is in this background that the agreement is admittedly said to have been entered into. The plaintiff also claimed to have been put in possession of the plot of land which was to be sold to him. Sidaraya is said to have died on 19.12.1994 leaving behind the defendants. The plaintiff having called upon the defendants to register a sale deed in respect of the said plot in his favour, the defendants having failed to do so, the suit was filed in the year 1995.

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The defendants had entered appearance through counsel and primarily contended that the agreement was unenforceable, as there was no plot formed as on the date of the agreement and it was only between 6.4.1994 and 16.04.1994 that the land was measured by the Assistant Director of Land Records and it was thereafter that the proposed plots were drawn up on paper and therefore, to claim

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that the Plot No.76 was identified by metes and bounds even as on the date of the agreement of sale and therefore, could be brought to sale, was not tenable. It was also contended that Sidaraya was not the absolute owner of the entire land measuring 5 acres 32 guntas and that it was actually the joint family property of his family and though it was converted for non-agricultural purposes, the land was to be measured by the ADLR and the layout plan unless approved by the statutory authority, it could not be said that a plot was in existence which was identified by metes and bounds as on the date of the agreement of sale. It is in this background that the trial court had framed the following issues:

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“1. Whether plaintiff proves that the deceased Siddaraya has executed a deed of agreement of sale on 11.06.1993 in respect of Plot No.76 measuring 60’ x 40’ sq.ft. out of Revenue Survey No.490/1B subsequently renumbered as 490-C in favour of him (Plaintiff) after receiving entire consideration amount of Rs.50,000/- from him (Plaintiff)?

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Whether plaintiff proves that he is ready and willing to perform his part of contract?

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Whether plaintiff further proves his lawful possession over the suit plot on the date of suit?

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Whether plaintiff proves obstruction by the defendants?

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Whether plaintiff is entitled to a decree for specific performance of contract? Or In the alternative whether plaintiff is entitled to refund of entire consideration amount of Rs.50,000/together with interest as prayed by him in para No.15(c) of the plaint?

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What order or decree?”

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The trial court had answered the issues against the plaintiff

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and had dismissed the suit. The Trial Court rejected the prayer for specific performance of the agreement. However, found that the payment of the consideration amount and receipt of the same could not be denied and accordingly, had directed the refund of a sum of Rs.50,000/- with interest at 11% per annum.

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However, in an appeal filed by the plaintiff, the Lower Appellate Court has taken a different view and has opined that notwithstanding that the plots were measured by the ADLR in the year 1994 and the plots having been identified by metes and bounds only thereafter, since the intention in the mind of Sidaraya to sell the site bearing Site No.76 was evident from the agreement entered into and this having been established by cogent evidence, though the Trial Court had found that the agreement of sale was established, it could not then depart from the view and hold that it is not an enforceable agreement and ought to have decreed the suit for specific performance. And, handing over of possession or the property being identified by metes and bounds was insignificant when the agreement was found to have been proved. It is on that reasoning that the Lower Appellate Court has decreed the suit as prayed for and has modified the judgment of the Trial Court. It is that judgment of the Lower Appellate Court which is under challenge in the present appeal.

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The present appeal has been admitted on the following

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substantial questions of law, as per the order dated 24.11.2004:

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“1. Whether the lower appellate court is justified in decreeing the suit for specific performance when admittedly the land was not converted into non-agricultural land at the time when the suit agreement was entered into between the plaintiff and the defendant and hence, there was no question of identifying the property agreed to be sold under the alleged suit agreement?

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Whether the court below has kept in mind Section 20 of the Specific Relief Act before decreeing the suit for specific performance?”

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However, the first of the above substantial questions of law requires to be reframed, as it is not in consonance with the record.

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The land in question had been converted even as on the date of the agreement. However, the land was to be measured by the ADLR and the plan in respect of the proposed layout was to be approved by the statutory authority. These events had not taken

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place as on the date of the agreement. Therefore, it was only a proposal to form the Site No.76, which was agreed to be purchased under the agreement of sale. Therefore, the said substantial question of law is re-framed as follows:

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“Whether the Lower Appellate Court was justified in holding that there could be an enforceable agreement of sale in respect of a non-existent site which was not identified by metes and bounds as on the date of the agreement of sale?”

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In this regard, there is no dispute that the very Site No.76 was identified by metes and bounds only on the Assistant Director of Land Records having carried measurement of the property and having identified the several proposed plots of the layout in question for purpose of considering the approval of the layout plan. Therefore, it was only in the year 1994 that the preliminary measures of culling out the proposed sites was taken up. Hence, it could not be said that there was identifiable property by metes and bounds as on the date of the agreement of sale and the first principle of law is that the property to be purchased and the

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agreement of sale must be identified with certainty. There is no dispute that in the present circumstance, the agreement was in respect of a non-existent site which was yet to be culled out of the land belonging to the seller and it was also subject to statutory approval by the competent authority. It is only thereafter that the property could be identified by metes and bounds with any certainty. Hence, agreements which are uncertain in the sense that in the present case on hand, when the site was not identified by metes and bounds, the formation of the site was dependant on statutory approvals and both these events having occurred much after the agreement of sale, it could not be said that there was an enforceable agreement of sale when it was entered into.

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Hence, the only circumstance that stood proved was that there was an intention to sell a house site by the predecessor of the defendants to the plaintiff and that he had received a sum of Rs.50,000/- as full consideration in respect of the same. Therefore, the Trial Court having directed that the amount having been paid having been proved, ought to be refunded to the plaintiff with

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reasonable interest thereon, cannot be faulted. However, the Lower Appellate Court having proceeded to hold that when once the agreement has been accepted partly by the Trial Court, it was bound to also direct specific performance, is a finding which cannot be sustained, given the circumstances under which the agreement was entered into.

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The further circumstances that with the lapse of time, the original intention of the seller that sites would be formed in due course and statutory approvals would be obtained with respect of the layout so formed, also having come about, would not enure to the advantage of the plaintiff if in the first instance, the formation of the site and obtaining of the statutory approvals were uncertain and hence, the Lower Appellate Court was not justified in holding that the agreement as on the date which was entered into was an enforceable agreement. Consequently, the above substantial question of law is answered in favour of the appellants.

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However, in order to ensure that the plaintiff is entitled to a refund of the consideration amount and since the defendants would

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have had the benefit of the same over the years, it would be appropriate that reasonable interest is paid on the said amount by the defendants. Consequently, the appeal is allowed. The judgment of the Lower Appellate Court is set aside. The judgment and decree of the Trial Court is affirmed. The defendants are obliged to refund the amount of Rs.50,000/- to the plaintiff with interest thereon at 11% per annum, from the date of receipt, till the date of payment.

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Sd/JUDGE

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Shanta v. Mahantesha

Case brief

What is this about?

What did the court decide?

Shanta v. Mahantesha

Case brief

What is this about?

What did the court decide?

What the court decided

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