Remanded

Sri Prasanna Kumar v. Sri K Narayanaswamy

Karnataka HC23 Nov 2024RSA/851/2018

Case brief

AI extract

What is this about?

The Court allowed the second appeal and remitted the matter to the Trial Court. It held that the suit was premature due to an unlifted statutory bar on land registration. The Court permitted the appellant to produce a gazette notification as additional evidence to determine if the bar has been removed. Both the Trial Court and First Appellate Court judgments were set aside to the extent of this co

What did the court decide?

Regular second appeal allowed; judgment and decree set aside; matter remitted to Trial Court for fresh consideration of gazette notification lifting the registration ban.

Sri Prasanna Kumar Vs Sri K Narayanaswamy — Specific Performance | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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REGULAR SECOND APPEAL NO.851 OF 2018 (SP)

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BETWEEN:

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SRI PRASANNA KUMAR, AGED ABOUT 48 YEARS, S/O. MUNIYAPPA, R/O. CHATRAKODIHALLI VILLAGE, KASABA HOBLI, KOLAR TALUK-563 101. … APPELLANT

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(BY SRI V. VINOD REDDY, ADVOCATE)

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AND:

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SRI K. NARAYANASWAMY, AGED ABOUT 53 YEARS, S/O. CHIKKA KARIYAPPA.

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SRI. RAMESH, AGED ABOUT 48 YEARS, S/O. CHIKKA KARIYAPPA.

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BOTH ARE RESIDING AT CHATRAKODIHALLI VILLAGE, KASABA HOBLI, KOLAR TALUK-563 101. … RESPONDENTS

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(BY SRI SURESHA M., ADVOCATE FOR C/R1 AND R2)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.01.2018 PASSED IN R.A.NO.51/2017 ON THE FILE OF THE PRL. SENIOR

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CIVIL JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 01.03.2017 PASSED IN O.S.NO.426/2008 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND JMFC KOLAR.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.11.2024, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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CAV JUDGMENT

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Heard the learned counsel for the appellant and the learned counsel for the respondents.

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This regular second appeal is filed against the divergent finding. At the first instance, the Trial Court granted the relief of specific performance in O.S.No.426/2008 vide judgment dated 01.03.2017 and the same is reversed in R.A.No.51/2017 setting aside the judgment and decree of the Trial Court vide order dated 27.01.2018.

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The factual matrix of the case of the

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plaintiff/appellant before the Trial Court is that the defendants have executed the agreement of sale dated 20.08.2005 agreeing to sell the suit schedule property for sale consideration of Rs.2,35,000/and the entire sale

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consideration was paid and there was a bar for execution of small bit of land and hence the sale deed was not executed and recital was made to that effect in the agreement. The plaintiff issued a legal notice on 19.05.2008 demanding the defendants to execute the registered sale deed. Thereafter, the plaintiff instituted the suit and the suit was decreed by answering issue Nos.1 to 3 and 5 in the affirmative and issue No.4 in the negative, since the defendants took the specific contention that the agreement of sale is created and concocted.

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Being aggrieved by the judgment and decree of the Trial Court, the defendants preferred an appeal and the same was reversed holding that the suit was premature and there was no cause of action for filing the suit and hence the present second appeal is filed before this Court.

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The main contention of the learned counsel for the

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plaintiff/appellant before this Court is that the findings of the

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First Appellate Court is erroneous and the First Appellate Court fails to take note of the very execution of the sale

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agreement and proving of the same by examining the witnesses. D.W.1 categorically admitted the service of notice and the defendants neither replied the legal notice nor complied with the agreement for sale, but false defence was taken that no such agreement was executed. The learned counsel contend that there was no prohibition for registration of the sale deed, they were under contractual obligation to execute the necessary sale deed and get it registered in favour of the plaintiff having received the entire sale consideration and also deliver the physical possession of the property. The First Appellate Court misdirected itself in allowing the appeal and setting aside the order of the Trial Court. The First Appellate Court committed an error in declining equitable and discretionary relief of specific performance when the sale agreement was proved and the very approach that the suit was premature and there was no cause of action is erroneous.

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This Court having taken note of the grounds which have been urged, admitted the second appeal and framed the following substantial questions of law:

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1. Whether in a case where time for performance is not specifically mentioned, filing of the suit on the basis of agreement dated 20.08.2005 and legal notice demanding specific performance is dated 19.05.2008 and suit filed on 05.07.2008 makes it premature?

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2. Whether doctrine of anticipatory breach of contract operates on the agreement between plaintiff and defendants?

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The learned counsel for the appellant would contend that there is a divergent finding and though disputed the sale agreement dated 20.08.2005, the Trial Court and the First Appellate Court have given a definite finding that there was a sale agreement, but there was no any time stipulation for performing the contract and the only reason assigned by the First Appellate Court is that the suit is premature and hence not entitled for the relief of specific performance. The learned counsel contend that now the gazette notification has been issued and in terms of the gazette notification, registration could be done and placed the gazette notification dated 25.09.2023 along with the memo. The learned counsel

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brought to the notice of this Court the annexure and would contend that upto an extent of 5 guntas, by collecting the amount, the document can be registered. The learned counsel referring the gazette notification would contend that in view of lifting of bar for registration of small bit of land, the relief can be granted.

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Per contra, the learned counsel for the

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respondents would contend that the First Appellate Court rightly comes to the conclusion that there is no cause of action to file the suit. The learned counsel contend that the boundaries which are mentioned in the alleged agreement did not pertain to the defendants as on the date of agreement i.e., in 2005. The learned counsel contend that the defendants purchased the property on 01.12.2006 as per Ex.D.1 and there is no owner as on the date of agreement of sale. It is contended that the property does not pertain to the defendants. The learned counsel contend that 32 guntas of land is ancestral property and 1 acre 20 guntas was purchased, which is an adjacent property. The learned counsel contend that the boundaries mentioned in the

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agreement is not correct and the document is created. The learned counsel contend that under threat the signature was taken and the plaintiff has not produced any document of lifting of ban before the First Appellate Court and the First Appellate Court rightly comes to the conclusion that there is no cause of action to file the suit and the suit is premature and rightly reversed the finding of the Trial Court.

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In reply to the arguments of the learned counsel for the respondents, the learned counsel for the appellant submits that the contention that the document was created was not accepted by the Trial Court and a definite finding was given. There was no life time limit and there is no question of suit being premature and in view of the recent lifting of the ban, this Court has to reverse the finding of the First Appellate Court.

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10. Having heard the learned counsel for the appellant

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and the learned counsel for the respondents and also considering the substantial questions of law framed by this Court, admittedly there is no any time limit mentioned in the

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agreement. The suit was filed in the year 2008 and before filing the suit, notice was issued and the same was served, but no reply was given. The notice was given on 19.05.2008 and the suit was filed on 05.07.2008. The question before this Court is whether the filing of the suit is premature, as observed by the First Appellate Court. The other substantial question of law framed by this Court is whether doctrine of anticipatory breach of contract operates on the agreement between plaintiff and defendants. Both the substantial questions of law are interconnected and hence both are considered together based on the material on record.

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11. Having perused the grounds urged in the appeal

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memo and considering the contentions which have been urged by both the learned counsel during the course of argument, this Court has to take note of the material on record. In the suit it is specifically pleaded with regard to the agreement of sale contending that the defendants have executed an agreement of sale dated 20.08.2005 agreeing to sell the suit schedule property in favour of the plaintiff for sale consideration of Rs.2,35,000/-. It is also contended that

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entire sale consideration was paid and the plaintiff was always ready and willing to perform his part of contract. It is noted that the defendants took the contention that the plaintiff has created the agreement of sale dated 20.08.2005 and the same is a concocted document. The Trial Court having considered the evidence of P.W.1 to P.W.5 and D.W.1 comes to the conclusion that there was a sale agreement and entire sale consideration was paid to the extent of Rs.2,35,000/- and the plaintiff was always ready and willing to perform his part of contract. But not accepted the contention of the defendants that the document is created, since the Trial Court appreciated both oral and documentary evidence placed on record of P.W.1 to P.W.5 and D.W.1 admitted his signature available on the document during the course of crossexamination. The Trial Court granted the relief and directed the defendants to execute the regular sale deed within three months. The First Appellate Court reversed the finding of the Trial Court. The First Appellate Court having re-assessed the material on record formulated the point whether the judgment of the Trial Court is perverse and whether it requires

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interference. But not framed the point for consideration with regard to the granting of relief and the document and recitals of the document and in a casual manner framed the point for consideration whether the impugned judgment becomes capricious, perverse and arbitrary and answered the same in the affirmative.

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Having perused the discussion made by the First Appellate Court, the First Appellate Court taken note of the evidence of the witnesses, including the plaintiff witnesses and evidence of D.W.1 and so also the documentary evidence and comes to the conclusion that there was an agreement of sale and entire sale consideration was paid. The First Appellate Court also comes to the conclusion that merely because the entire consideration amount has been paid and agreement of sale has been executed, the plaintiff cannot be held as entitled to the relief of specific performance as the conditions agreed upon in Ex.P.1 cannot be complied with by the defendants because even as on the date of suit, the so called statutory bar is very much in existence and the same has been observed in paragraph No.80 of the First Appellate

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Court’s judgment. The First Appellate Court also comes to the conclusion that statutory bar which has been incorporated in the agreement if looked into, it is found that there is a prohibition on the owners of the agreement not to sell the property in bits and that is the reason why the authorities concerned have also not registered the document. The plaintiff having called upon the defendants to perform their part of the contract ought to have proved that such statutory bar has been withdrawn only then the plaintiff would have been entitled to call upon the defendants to perform their part of the contract. Unless and otherwise the plaintiff proves that there was a notification/order or permission by the competent authorities wherein the authorities have permitted for registration of the sale deed and in the absence of any permission as mentioned in the document Ex.P.1 that the defendants themselves should have got the permission from the competent authorities to enable the plaintiff to get the sale deed registered, definitely the agreement i.e., the suit document remains unenforceable and hence comes to the conclusion that the suit itself is premature and there was no

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cause of action for the plaintiff to file the suit. The Trial Judge only considered the execution of the agreement and fails to appreciate the recital in the document with regard to the terms and conditions agreed upon as on the date of the suit and remained unenforceable.

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Having perused the reasoning of the Trial Court and the First Appellate Court, the First Appellate Court rightly comes to such a conclusion, since there is a specific averment in Ex.P.1 that there is a prohibition for selling of bit of land and also specific averment is made that the defendants are ready to execute the sale deed when the same is lifted and then to get the sale deed registered in their favour. No doubt, the First Appellate Court taken note of the recital of document Ex.P.1 and the same has not been considered by the Trial Court and if any specific performance is granted, in view of the bar, there cannot be any enforceability of the agreement and the First Appellate Court rightly comes to the conclusion that there is a bar and no material is placed for lifting of the

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bar.

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Now, the learned counsel for the appellant has filed a memo along with the document. The same is not produced along with the application under Order 41 Rule 27 of CPC. On perusal of the document, special guidelines are issued except some of the districts and the same is for fixing of the market value and the guidelines for collecting stamp duty upto the extent of 5 guntas including 5 acres taking note of agricultural land and converted land while selling the property and fixing of the market value.

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It is important to note that the agreement is dated 20.08.2005 and within a span of three years, the suit is filed. Admittedly, there is no time stipulation for enforcement of the agreement and the plaintiff ought not to have given notice in 2008 itself, since there is no order of lifting of prohibition of selling of small bit of land as on the date of issuance of notice. No doubt, the suit is filed and tried and when no such prohibition was removed as on the date of filing of the suit, the First Appellate Court rightly comes to the conclusion that there is no cause of action for filing the suit. The cause of action arises for the suit in terms of Ex.P.1, only after lifting of

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the ban and though specific date is mentioned in the substantial question of law that agreement is dated 20.08.2005 and legal notice is dated 19.05.2008 and suit is filed on 05.07.2008 and as on the date of filing of the suit, there is no cause of action for demanding specific performance against the defendants. Hence, the First Appellate Court rightly comes to the conclusion that the suit itself is premature.

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The other substantial question of law is whether doctrine of anticipatory breach of contract operates on the agreement between the plaintiff and the defendants. The same is not a breach and specific recital is made that immediately after lifting of ban only the defendants will come and execute the sale deed and there is no such lifting or removal of the said prohibition for registration of small bit of land. On perusal of Ex.P.1, it is clear that both understood the recitals and knowingfully well only the document of Ex.P.1 came into existence that there is a bar to register the document in favour of the plaintiff as there is a prohibition of selling of small bit of land. The plaintiff also ought not to

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have filed the suit immediately by causing notice since there

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was no any removal of prohibition and the same was not taken note of by the Trial Court. However, the First Appellate Court having taken note of the recitals in paragraph Nos.80 and 81 assigned the reason that the suit becomes premature and there is no cause of action as on the date of filing of the suit. I have already pointed out that the appellant though produced the document along with the memo, not sought any permission to produce the same invoking Order 41 Rule 27 of CPC to treat the same as additional evidence and hence the question of entertaining the memo in the second appeal does not arise.

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Unless the appellant produce the said document

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with appropriate application, the same cannot be considered and the question is with regard to prohibition of sale of property and the same involves both question of fact and question of law. Whether the prohibition is removed or not, this Court cannot venture to decide the same unless the said document is part of the record. However, this Court can set aside the judgment and remit the matter to the Trial Court for

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fresh consideration in view of the gazette notification and the appellant can be given an opportunity to produce the same as additional evidence before the Trial Court to consider the issue of whether the suit is premature and these proceedings are continuous proceedings and the matter is remitted back for limited purpose of considering this document as question of law in involved. The appellant is given an opportunity to produce the same and lead evidence only for the limited purpose of proving of fact of lifting of bar for registration of small bit of land. The Trial Court is not permitted to consider once again the merits of the case as already the Trial Court has considered the same. The First Appellate Court has also considered the material on record and reversal is made only as regards to the suit is premature since as on the date of filing of the suit there was no any material for lifting of prohibition of transfer of property i.e., bit of land. Hence, I answer both the substantial questions of law accordingly.

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In view of the discussions made above, I pass the

following:

ORDER

(i) The regular second appeal is allowed.

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(ii) The judgment and decree of the Trial Court and the First Appellate Court are set aside to the extent as observed above. The matter is remitted back to the Trial Court only for the limited purpose of consideration of gazette notification whether ban of registration of the property is removed and if such removal is established, then to consider the relief as sought in the suit.

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(iii) The appellant is permitted to produce the said gazette notification as additional evidence and permitted to lead evidence on the said document for the limited purpose of determining the issues involved between the parties.

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(iv) Both the parties are directed to appear before the Trial Court on 13.12.2024, without expecting any notice from the Trial Court.

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(v) The Trial Court is directed to dispose of the suit within three months from 13.12.2024.

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(vi) The Registry is directed to send the Trial Court records forthwith to enable the Trial Court to take up the matter on 13.12.2024.

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(vii) The Registry is directed to send the First Appellate Court records forthwith.

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Sd/(H.P. SANDESH) JUDGE

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Sri Prasanna Kumar v. Sri K Narayanaswamy

Case brief

What is this about?

What did the court decide?

Sri Prasanna Kumar v. Sri K Narayanaswamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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