Second appeal against concurrent dismissal of a suit for specific performance of a reconveyance agreement executed in 1994; suit filed in 2007 after 17 years without showing readiness and willingness, held time-barred. Appeal dismissed and judgments of courts below confirmed.
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NC: 2024:KHC:32477 RSA No. 1019 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1019 OF 2015 (SP)
BETWEEN:
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
…APPELLANTS
(BY SRI. PRASHANTH H S., ADVOCATE)
AND:
SR. ASHITH LAYANEL D. SOUZA S/O LATE VICTOR D SOUZA SINCE DEAD BY LRS
SMT. SHAROON AGED ABOUT 35 YEARS, W/O LATE ASHIT LAYANEL D SOUZA R/O VIJAYAGIRI, R/O BASAPURA DEVADANA VILLAGE,
S.M. PETE POST, CHIKKAMAGALUR TALUK & DISTRICT - 577 136
…RESPONDENT
(BY SRI. CYRIL PRASAD PAIS., ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.02.2015 PASSED IN R.A NO.11/2012 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.12.2011 PASSED IN O.S NO.132/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, CHIKMAGALUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular second appeal is filed by the appellants challenging the judgment and decree dated 11.02.2015, passed in R.A.No.11/2012 by the Principal District Judge, Chikkamagaluru, confirming the judgment and decree dated 07.12.2011 passed in O.S.No.132/2007 by the Additional Senior Civil Judge, Chikkamagaluru.
to as per their ranking before the trial Court. Appellants are the plaintiffs and respondent is the defendant.
The plaintiffs filed a suit for specific performance of contract. It is the case of the plaintiffs that, plaintiffs were the owners of the suit schedule property, they sold the suit schedule property in favour of the defendant under registered sale deed dated 16.03.1989. It was contended that, the defendant agreed to reconvey the said suit schedule property under an agreement of reconveyance dated 31.01.1994. The plaintiffs requested the defendant to reconvey the suit schedule property in terms of agreement dated 31.01.1994, but the defendant refused to reconvey the said property. The plaintiffs got issued a legal notice on 04.12.2006 calling upon the defendant to execute his part of agreement. The defendant replied to the legal notice and failed to reconvey. Hence, cause of action arose for the plaintiffs to file a suit for specific performance of contract dated 31.01.1994 directing the defendant to execute the registered sale deed in respect of suit property and for possession and for mesne profits.
NC: 2024:KHC:32477 RSA No. 1019 of 2015
admitting that the plaintiffs were the owner of the suit schedule property and they have sold the suit property in favour of the defendant in the year 1989 under the registered sale deed dated 16.03.1989 and the defendant denied the execution of reconveyance deed dated 31.01.1994. It is contended that, defendant never agreed to reconvey the suit schedule property at any point of time. It is contended that sale deed executed by the plaintiffs is an absolute sale and not a nominal sale. Hence, suit filed by the plaintiffs is barred by limitation, as the suit is filed after 17 years from the date of execution of alleged agreement for reconveyance. Hence, on these grounds, prays to dismiss the suit.
plaintiff No.1 was examined himself as PW.1 and examined
one witness as PW.2 and got marked 6 documents as Exs.P1 to 6. The defendant examined himself as DW.1, but no documents marked. The trial court on the assessment of oral and documentary evidence, dismissed the suit of the plaintiffs vide judgment dated 07.12.2011. The plaintiffs aggrieved by the judgment and decree passed in O.S.No.132/2007, have preferred an appeal in R.A.No.11/2012 on the file of the Principal District Judge, Chikkamagaluru.
NC: 2024:KHC:32477 RSA No. 1019 of 2015
9. Learned counsel for the plaintiffs submits that,
the plaintiffs sold the suit schedule property in favour of the defendant in the year 1989 under registered sale deed and subsequently, the defendant agreed to reconvey the said property in the year 1994 by executing an agreement for reconveyance. He submits that plaintiffs requested the
defendant to reconvey the said property, but the defendant refused to reconvey the schedule property. The plaintiff got issued a legal notice to the defendant to reconvey the suit property, but the defendant refused to reconvey the suit property. He submits that the trial court has not properly considered alleged agreement executed by the defendant in favour of the plaintiffs. He also submits that time was not an essence of contract. Hence, as per Article 54 of the Limitation Act, if time is not an essence of contract, suit for specific performance to be filed within 3 years from the date of denial. Hence, he submits that defendant has denied the execution of reconveyance in the year 2007. Hence, suit filed by the
plaintiffs is within time. Hence, on these grounds, he prays to allow the appeal.
submissions of the learned counsel for the plaintiffs.
plaintiffs by father of the defendant. Father of the defendant failed to execute reconveyance, hence, plaintiffs got issued a legal notice as per Ex.P5 calling upon the defendant to receive the consideration amount and to reconvey. The defendant replied to the legal notice marked as Ex.P6.
of execution of alleged Ex.P2 and also got issued a legal notice after lapse of 14 years from the date of execution of alleged Ex.P2. Thus, the trial court was justified in dismissing the suit on the ground that suit is barred by limitation. The first appellate court on
re-assessment of oral and documentary evidence has rightly confirmed the judgment and decree passed by the trial court.
ORDER
i. The appeal is dismissed.
NC: 2024:KHC:32477 RSA No. 1019 of 2015
iii. No order as to the costs.
Sd/(ASHOK S.KINAGI) JUDGE
SKS
2 issues framed by the court
Was the suit for specific performance of the reconveyance agreement barred by limitation?
Did plaintiffs demonstrate readiness and willingness as required under Section 16(3) of the Specific Relief Act?
3 provisions across 3 enactments
Sri G.R. Jayaram
Smt. Lakshmamma @ Jayalakshmi
Sr. Ashith Layanel D. Souza (since dead by LRs, represented by Smt. Sharoon)
Ashok S.Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
