Dismissed

Shidagireppa v. Smt.Saraswati

Karnataka HC14 Mar 2017RSA/100432/2016

Case brief

AI extract

What is this about?

Second appeal by legal representatives of the defendant in an agreement to sale suit. The High Court dismissed the appeal, holding that the defendant was not ready and willing to perform the contract and thus could not claim protection under Section 53(A) of the Transfer of Property Act or adverse possession.

What did the court decide?

Appeal dismissed; judgment and decree of the courts below conferring possession on plaintiffs were confirmed.

Shidagireppa Vs Smt.Saraswati — Specific Performance | Karnataka HC (2017)

¶1

: 1 :

¶2

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶3

DATED THIS THE 14^TH DAY OF MARCH, 2017

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

¶6

R.S.A. NO.100432/2016 (POS)

¶7

BETWEEN:

¶8

SHIDAGIREPPA MAHALINGAPPA DHADUTI, (SINCE DECEASED BY HIS LRS)

¶9

SMT.VAISHALI W/O RAMESH DHADUTI, AGE: 38 YEARS, OCC: HOUSE HOLDWORK, R/O: BANHAHATTI,-587311 TAL: JAMAKHANDI, DIST:BAGALKOT.

¶10

SMT.BOURAWWA (SUJATA) W/O ANNAPPA @ VASANT YADWAD AGE: 50 YEARS, OCC: HOUSE HOLDWORK, R/O: BANHAHATTI,-587311 TAL: JAMAKHANDI, DIST:BAGALKOT.

¶11

SMT.PARAWWA W/O DEVENDRAPPA SAVADI, AGE: 54 YEARS, OCC: HOUSE HOLDWORK, R/O: KAROLI ONI ASHOK COLONY BANHAHATTI,-587311 TAL: JAMKHANDI. DIST:BAGALKOT 4. SMT.ANNAPURNA W/O SUBHASH HASHE, AGE: 51 YEARS, OCCO: HOUSE HOLDWORK, R/O: ICHALKARANJI,-415416 DIST: KOLHAPUR.

¶12

... APPELLANTS

¶13

: 2 :

¶14

(BY SRI. ARUN P BOLAJ, ADV.)

¶15

AND

¶16

SMT.SARASWATI W/O SHRISHAILPPA KALAKAMB, (SINCE DECEASED BY HER LRS)

¶17

SMT.DEVAKI W/O BALAPPA TIRAKI, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, RESIDENT OF MALAPUR-587313 TAL: MUDHOL, DIST:BAGALKOT.

¶18

SMT.NEELAWWA W/O SHIVAPPA KADLI (SINCE DECEASED BY HER LRS)

¶19

SHIVAPPA HANAMANTAPPA KADLI AGE 60 YEARS, OCC: WEAVER RESIDENT OF ASHOK COLONY BANAHATTI-587311 TQ:JAMAKHANDI, DIST:BAGALKOT.

¶20

HANAMANT @ SANTOSH S/O SHIVAPPA KADLI, AGE: 28 YEARS OCC: PRIVATE SERVICE RESIDENT OF ASHOK COLONY BANAHATTI-587311 TQ:JAMAKHANDI, DIST:BAGALKOT.

¶21

SMT.MAHADEVI W/O GURAPPA AMBI AGE 50 YEARS, OCC: HOUSEHOLD RESIDENT OF MAHALINGPUR-587001 TAL: MUDHOL, DIST:BAGALKOT.

¶22

KADAPPA S/O SHRISHAILAPPA KALAKAMB AGE 62 YEARS, OCC: SERVICE RESIDENT OF ASHOK COLONY BANAHATTI-587311 TQ:JAMAKHANDI, DIST:BAGALKOT.

¶23

DUNDAPPA S/O SHRISHAILAPPA KALAKAMB AGE 60 YEARS, OCC: SERVICE

¶24

: 3 :

¶25

RESIDENT OF ASHOK COLONY BANAHATTI-587311 TQ:JAMAKHANDI, DIST:BAGALKOT.

¶26

BASAPPA S/O SHRISHAILAPPA KALAKAMB AGE 63 YEARS, OCC: SERVICE RESIDENT OF ASHOK COLONY BANAHATTI-587311 TQ:JAMAKHANDI, DIST:BAGALKOT.

¶27

SHANKAR S/O SHRISHAILAPPA KALAKAMB AGE 49 YEARS, OCC: SERVICE RESIDENT OF ASHOK COLONY BANAHATTI-587311 TQ:JAMAKHANDI, DIST:BAGALKOT.

¶28

BASAPPA S/O SHIDAGIREPPA DHADUTTI AGE 61 YEARS, OCC: BUSINESS, RESIDENT OF ASHOK COLONY BANAHATTI-587311 TQ:JAMAKHANDI, DIST:BAGALKOT.

¶29

MALLAWWA W/O. ASHOK ALASHE AGE:54 YEARS, OCC:HOUSE HOLD WORK, R/O. KONGANOLLI-591 229, TQ:CHIKKODI, DIST:BELAGAVI

¶30

SHANKARAWWA W/O. L. POSHETTI, AGE:53 YEARS, OCC: HOUSEHOLD WORK, R/O. KOPPAR PETH, ILKAL-587 125 TQ:HUNAGUND, DIST:BAGALKOT.

¶31

... RESPONDENTS

¶32

THIS RSA IS FILED U/S. 100 CPC. 1908, AGAINST THE JUDGEMENT & DECREE DTD:28.03.2016 PASSED IN R.A.NO.28/2008 ON THE FILE OF THE I ADDL. DISTRICT & SESSIONS JUDGE, BAGALKOT TO SIT AT JAMAKHANDI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 26/3/2008 AND DECREE PASSED IN O.S.NO.36/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), BANAHATI, PARLY DECREEING THE SUIT FILED FOR POSSESSION.

¶33

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THIS COURT, DELIVERED THE FOLLOWING:

¶34

: 4 :

¶35

JUDGMENT

¶36

This appeal is filed by the legal representatives of the defendant in O.S.No.36/2001, on the file of the Civil Judge, Junior Division, Banahatti.

¶37

The substance of the pleading is that the plaintiffs 1 to 5 being the owners of suit property entered into an agreement with the defendant on 2/12/1977, agreeing to sell the said property to the defendant for a sale consideration of Rs.2,000/-. On the date of agreement, the plaintiffs received earnest money of Rs.500/- and put the defendant in possession. One of the terms and condition of the agreement was that on or before 1/12/1980, the defendant should pay balance of sale consideration and get the sale deed executed by the plaintiffs. This being the specific condition, the defendant did not show any interest to get the sale deed executed, and therefore, on 6/2/1998, plaintiffs issued a legal notice to the defendant terminating the agreement and forfeiting the earnest money. On 11/2/1998, the defendant issued a reply

¶38

: 5 :

¶39

denying the agreement and setting up a title of the suit property in himself. Therefore, the plaintiffs field a suit seeking possession of the suit property from the defendant.

¶40

In the written statement, the defendant admitted the agreement and his possession in the suit property. He also took up a stand that he was always ready and willing to perform his part of the contract. He stated that since the plaintiffs were his distant relatives, whenever he requested the plaintiffs to execute the registered sale deed, the plaintiffs used to say that they would not take any objection with regard to his possession over the suit property. Therefore, believing the words of the plaintiffs, the defendant constructed a building in the suit property by spending huge money and this fact is within the knowledge of the plaintiffs also. Defendant stated that his possession over suit property since 1997 has been peaceful and his exercising of ownership was to the knowledge of the plaintiffs and as well as the public at large. When the

¶41

: 6 :

¶42

plaintiffs asserted the right by issuing a notice in the year 1998, he got issued a reply suitably. Defendant stated that the plaintiffs have no manner of right over the suit property and they could not forfeit the earnest money besides terminating the agreement. Having taken up these contentions, the defendant set up a counter claim seeking the relief of specific performance of the contract, and in alternative he sought for relief of declaration of title over the suit property and confirmation of the possession.

¶43

The trial Court framed eight issues, examined witnesses and ultimately came to the conclusion that the plaintiffs were entitled to possession. The trial Court also held very specifically that the defendant was not ready and willing to perform his part of the contract and hence, he could not claim any right under Section 53(A) of the Transfer of Property Act, to protect his possession. The trial Court also held that the defendant cannot claim to be in possession adverse to the interest of the plaintiffs.

¶44

: 7 :

¶45

Aggrieved by the judgement of the trial Court, the defendant preferred an appeal R.A.No.28/2008. The First Additional District and Sessions Judge, who decided the appeal confirmed the findings of the trial Court and dismissed the appeal. Hence, this second appeal now.

¶46

On perusing the pleadings, what becomes clear is that the plaintiffs executed an agreement of sale in favour of defendant on 2/12/1977. On the same day, the plaintiffs handed over the possession of the suit property to the defendant by receiving earnest money of Rs.500/-. It was stipulated that on or before 1/12/1980, the defendant should pay the balance of sale consideration and get the sale deed executed by the plaintiffs. On 11/2/1998, the plaintiffs issued a notice to the defendant terminating the agreement and forfeiting the earnest money. The defendant does not dispute the agreement. All that he says is that since he was in possession and whenever he requested the plaintiffs to execute the sale deed, the plaintiffs used to

¶47

: 8 :

¶48

say that they would not disturb the possession of the defendant. Now, once the defendant admits to have entered into possession on the basis of the agreement, he cannot claim adverse possession. It is true that the defendant can claim protection under Section 53(A) of the Transfer of Property Act. But, both the Courts have clearly held that the defendant was not willing to perform his part of the contract. For arriving at this conclusion, the trial Court has placed reliance on the judgement of the Supreme Court. This conclusion of the trial Court is legally acceptable. Whenever the transferee under agreement claims protection under Section 53(A) of the T.P.Act, besides fulfilling other conditions, he must also show that he was willing to perform his part of the contract. In this case, the agreement is dated 2/12/1977. There was a condition that on or before 1/12/1980, the defendant should pay the balance of sale consideration and get the sale deed. Even though time cannot said to be essence of the contract, but, till 6/2/1998, i.e. the day when the

¶49

: 9 :

¶50

plaintiffs got issued a legal notice, the defendant appears to have not taken any steps to get the sale deed executed. Therefore, rightly this finding of the trial Court can be said to be justifiable.

¶51

appellant/defendant argues that the suit was barred by time, because, the defendant entered into possession on 2/12/1977. This argument cannot be accepted. The reason being that, till 6/2/1998, i.e. the day when the notice was issued, there was a relationship of vendor and vendee between the parties. It was only after termination, if the defendant continued to be in possession for more than 12 years, it can be said that the defendant’s possession becomes hostile to the interest of the plaintiffs. Having issued termination notice on 6/2/1998, the plaintiffs filed a suit in the year 2001. So, it is well within the time.

¶52

Seen from any angel, I do not find any good

¶53

grounds to admit this appeal. Therefore, both the

¶54

: 10 :

¶55

Courts have concurrently held that the plaintiffs are entitled to possession.

¶56

In these circumstances, appeal should fail, it

¶57

is dismissed.

¶58

Sd/JUDGE

¶59

Vmb

Shidagireppa v. Smt.Saraswati

Case brief

What is this about?

What did the court decide?

Shidagireppa v. Smt.Saraswati

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kashinath Krishna Bandekar Vs Sadanand Narayan Mestri Dead by His Lrs

Shri.Kallappa Koneri Gurav @ Bhuttewadkar Vs Shri.Subhash Jivappa Patil

Hubli-Dharwad Municipal Corporation Vs Lalji

The Municipality, Ranebennur, Vs Sri.Naaganandeshwar Educational Trust

Shamshuddin S/O Fakeersab Reshmi, Vs Smt.Irene W/O Assis Rodrigues

Balagouda S/O Malagouda Kempi Vs Iragouda @ Veeragouda S/O Ramagouda Kempi