Basappa S/O Channappa Kalaveerappanavar Vs Sri Balappa S/O Basappa Pujar

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON’BLE MR. JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL No.2462 OF 2006 (SP) C/W REGULAR SECOND APPEAL No.2460 OF 2006 (SP)

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IN RSA No.2462/2006

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BETWEEN

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BASAPPA

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S/O CHANNAPPA KALAVEERAPPANAVAR

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SINCE DECEASED BY HIS LRS

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1(a) SMT.YALLAVVA

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W/O BASAPPA KALAVEERAPPANAR

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AGE: 55 YEARS, OCC: COOLIE AND HOUSEHOLD R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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1(b) SRI CHANDRAPPA

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S/O BASAPPA KALAVEERAPPANAVAR

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AGE: 36 YEARS, OCC: COOLIE R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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1(c) SRI SURESH

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S/O BASAPPA KALAVEERAPPANAVAR AGE: 32 YEARS, OCC: COOLIE R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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1(d) SRI ASHOK

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2

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S/O BASAPPA KALAVEERAPPANAVAR AGE: 29 YEARS, OCC: COOLIE R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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SUBHASH S/O CHANNAPPA KALAVEERAPPANAVAR AGE: 58 YEARS, OCC: AGRICULTURE R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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...APPELLANTS

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(BY SMT PALLAVI S PACHAPURE, ADVOCATE FOR SRI F.V. PATIL, SRI K.V. HIREMATH, ADVOCATES) AND

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SRI BALAPPA S/O BASAPPA PUJAR SINCE DECEASED BY HIS LRs

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1(a). SMT. KOKILA W/O RAMESHREDDY GODIHAL AGE: 45 YEARS, OCC: HOUSEWIFE, R/O: KUSAGUR, TAL: RANEBENNUR, DIST: HAVERI - 581208

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1(b). SMT. KAVITA W/O NINGAREDDY GODIHAL AGE: 43 YEARS, OCC: HOUSEWIFE, R/O: KUSAGUR, TAL: RANEBENNUR, DIST: HAVERI - 581208.

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1(c). SMT. ROHINI W/O SHIVAREDDY JANGAREDDY AGE: 41 YEARS, OCC: HOUSEWIFE, R/O: MOTEBENNUR, TAL: BYADAGI, DIST: HAVERI - 581106.

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1(d). SMT. SUNITA W/O BALAPPA PUJAR AGE: 66 YEARS, OCC: HOUSEWIFE,

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3

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R/O: MOTEBENNUR, TAL: BYADAGI, DIST: HAVERI - 581106.

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1(e). SRI. RAJENDRA S/O BALAPPA PUJAR AGE: 37 YEARS, OCC: LECTURER, C/O: SHIVAREDDY JANGAREDDY, R/O: MOTEBENNUR, TAL: BYADAGI, DIST: HAVERI - 581106.

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…RESPONDENTS

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(BY SRI S.A. SONDUR, ADVOCATE FOR SRI K.L. PATIL, SRI S.S. BETURMATH, ADVOCATES FOR R1(A TO E) )

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THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.22.06.2006 PASSED IN R.A.NO.25/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND PRL. JMFC., RANEBENNUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT.28.01.2003 PASSED IN O.S.NO.162/1996 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AND I ADDL. JMFC., RANEBENNUR AND ETC.

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IN RSA No.2460/2006

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BETWEEN

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BASAPPA

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S/O CHANNAPPA KALAVEERAPPANAVAR SINCE DECEASED BY HIS LRS

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1(a) SMT.YALLAVVA W/O BASAPPA KALAVEERAPPANAR

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AGE: 55 YEARS, OCC: COOLIE AND HOUSEHOLD R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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1(b) SRI CHANDRAPPA S/O BASAPPA KALAVEERAPPANAVAR

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AGE: 36 YEARS,

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4

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OCC: COOLIE R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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1(c) SRI SURESH S/O BASAPPA KALAVEERAPPANAVAR AGE: 32 YEARS, OCC: COOLIE R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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1(d) SRI ASHOK S/O BASAPPA KALAVEERAPPANAVAR AGE: 29 YEARS, OCC: COOLIE R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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SUBHASH S/O CHANNAPPA KALAVEERAPPANAVAR AGE: 58 YEARS, OCC: AGRICULTURE R/AT YANNIHOSALLI TQ: RANEBENNUR, DIST: HAVERI 581115

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...APPELLANTS

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(BY SMT PALLAVI S PACHAPURE, ADVOCATE FOR SRI F.V. PATIL, SRI K.V. HIREMATH, ADVOCATES)

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AND

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SRI BALAPPA S/O BASAPPA PUJAR SINCE DECEASED BY HIS LRs

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1(a). SMT. KOKILA W/O RAMESHREDDY GODIHAL AGE: 45 YEARS, OCC: HOUSEWIFE, R/O: KUSAGUR, TAL: RANEBENNUR, DIST: HAVERI - 581208

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1(b). SMT. KAVITA

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W/O NINGAREDDY GODIHAL AGE: 43 YEARS, OCC: HOUSEWIFE, R/O: KUSAGUR, TAL: RANEBENNUR, DIST: HAVERI - 581208. 1(c). SMT. ROHINI W/O SHIVAREDDY JANGAREDDY AGE: 41 YEARS, OCC: HOUSEWIFE, R/O: MOTEBENNUR, TAL: BYADAGI, DIST: HAVERI - 581106.

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1(d). SMT. SUNITA W/O BALAPPA PUJAR AGE: 66 YEARS, OCC: HOUSEWIFE, R/O: MOTEBENNUR, TAL: BYADAGI, DIST: HAVERI - 581106.

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1(e). SRI. RAJENDRA S/O BALAPPA PUJAR AGE: 37 YEARS, OCC: LECTURER, C/O: SHIVAREDDY JANGAREDDY, R/O: MOTEBENNUR, TAL: BYADAGI, DIST: HAVERI - 581106.

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…RESPONDENTS

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(BY SRI S.A. SONDUR, ADVOCATE FOR SRI K.L. PATIL, SRI S.S. BETURMATH, ADVOCATES FOR R1(A TO E) )

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THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.22.06.2006 PASSED IN R.A.NO.24/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND PRL. JMFC., RANEBENNUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT.28.01.2003 PASSED IN O.S.NO.60/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AND I ADDL. JMFC., RANEBENNUR AND ETC.

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THESE APPEALS HAVING BEEN RESERVED FOR JUDGMENT ON 12.12.2024 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE C.M. POONACHA

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CAV JUDGMENT

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RSA No.2460/2006 is filed under Section 100 of Code of Civil

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Procedure, 1908¹ by the defendants² challenging the judgment and decree dated 22.06.2006 passed in RA No.27/2003 by the Court of the Civil Judge (Senior Division) and Principal JMFC, Ranebennur³ and the judgment and decree dated 28.01.2003 passed in OS No.60/1997 by the Principal Civil Judge (Junior Division) and I Additional JMFC, Ranebennur⁴ .

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RSA No.2462/2006 is filed under Section 100 of Code of Civil Procedure, 1908¹ by the plaintiff² challenging the judgment and decree dated 22.06.2006 passed in RA No.25/2003 by the First Appellate Court and the judgment and decree dated 28.01.2003 passed in OS No.162/1996 by the Trial Court.

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The parties herein are referred to as per their status in the transaction for the sake of convenience.

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘owners’

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3 Hereinafter referred to as the ‘First Appellate Court’

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4 Hereinafter referred to as the ‘Trial Court’

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OS No.60/1997⁵ is filed by Balappa Basappa Pujar⁶ for

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specific performance of the Agreement of Sale dated 21.7.1973 against defendant Nos.1 and 2 in the said suit, who were the children of the original deceased owner of RS No.34/2, measuring 4 acres 31 ½ guntas including pot karab situated at Ennehosalli village at Ranebennur Taluk⁷ , by name one Channappa. OS No.162/1997⁸ is filed by the children of the deceased owner for a declaration that the Agreement dated 6.3.1972 executed by deceased Channappa in favour of the agreement holder (defendant therein) is null and void and for a declaration that they are the absolute owners of the suit property and for cancellation of the revenue entries. The suit for declaration was clubbed with the suit for specific performance vide order dated 23.6.2000 passed by the Trial Court and hence, the Trial Court treated the suit for specific performance as the main suit and the pleadings in the said suit were taken into consideration for adjudication of the matter.

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It is the case of the agreement holder that deceased Channappa was the original owner of the suit property. That due to

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5 Hereinafter referred to as the ‘suit for specific performance’

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6 Hereinafter referred to as the ‘agreement holder’

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7 Hereinafter referred to as the ‘suit property’

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8 Hereinafter referred to as the ‘suit for declaration’

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financial difficulty, the said deceased Channappa executed the Agreement of Sale dated 21.7.1973 agreeing to sell the suit property to the agreement holder for a total sale consideration of `8,000/-.

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That on the date of the agreement, an earnest money of 2,500/- is paid and the Sale Deed was agreed to be executed as and when called upon by the agreement holder. That on the same day, possession of the property was handed over by the said deceased Channappa to the agreement holder. That deceased Channappa received a further sum of 2,000/- on 25.2.1974. That deceased Channappa died on 11.6.1974 leaving behind 2 sons namely, Basappa and Subash⁹ . That the present owners received a sum of `500/- on 20.7.1975. That since the present owners refused to execute the Sale Deed and complete the sale transaction, a legal notice dated 13.12.1996 was issued. That the present owners got issued a reply dated 19.12.1996. Thereafter, the suit for specific performance is filed.

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It is the case of the present owners in the suit for a declaration that their father, deceased Channppa, was in financial difficulty and executed an Agreement of Sale dated 6.3.1972 agreeing to sell the suit property for a total sale consideration of 8,000/- and that 2,000/- was paid by the agreement holder on the date of

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9 Hereinafter referred to as ‘the present owners’

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agreement. That the sale transaction was required to be completed within 2 years from the date of the agreement. That since the sale transaction was not completed, the owners filed the suit for a declaration that the Agreement dated 6.3.1972 executed by deceased Channappa in favour of the agreement holder (defendant therein) is null and void and for a declaration that they are the absolute owners

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of the suit property and for cancellation of the revenue entries.

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Both the suits were contested.

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Since the Trial Court clubbed the suit for declaration with the

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suit for specific performance, it treated the suit for specific performance as the main suit and while adjudicating the matter has considered the pleadings in the suit for specific performance.

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The Trial Court framed the following issues:

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i. “Whether defendants prove that agreement dated: 21.7.1973 is a document executed by deceased Channappa as security for the loan advanced on different dates and not sale agreement?

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ii. Whether plaintiff prove that he is in possession of the suit property as a prospective purchaser as per agreement dated: 21.7.1973?

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iii. Whether plaintiff prove that he was and is ready to perform his part of agreement?

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iv. Whether suit is barred by limitation?

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v. Whether plaintiff is entitled for relief of decree for specific performance?

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vi. Whether plaintiff is entitled for refund of earnest money of Rs.5,000/- with interest at the rate of 24% p.a. from the date of agreement in the alternative?

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vii. What order or decree?”

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The agreement holder examined himself as PW.1 and three witnesses have been examined as PWs.2, 3 and 4. Ex.P1 to Ex.P14 have been marked in evidence. One of the present owners i.e., Plaintiff No.3 in O.S. No.162/1996 was examined as DW.1 and two witnesses were examined as DW.2 and DW.3. Ex.D1 to Ex.D12 has been marked in evidence.

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The Trial Court by its judgment and decree dated 28.01.2003, decreed the suit for specific performance and dismissed the suit for declaration and passed the following order:

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“The suit of the plaintiff is in O.S No.60/97 decreed with cost. Hereby directed to defendant no.1 and 2 to execute the sale-deed in favour of plaintiff after receiving the balance sale consideration of Rs.3,000/- within 4 months of this order. Otherwise to refund the earnest money of Rs.5,000/- with interest at the rate of 24% per annum from the date of agreement in the alternative. The suit in O.S No.162/96 is hereby dismissed.

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Draw decree accordingly. Copy of the judgment kept in O.S No.162/96”.

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Being aggrieved, the agreement holder preferred R.A No.27/2003. The present owners preferred R.A Nos.24 and 25 of 2003. The First Appellate Court framed the following points for considerations:

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The points that arise for consideration in O.S No.60/1997 are:

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i. “Whether defendant-respondent in O.S No.60/97 proves that, his father deceased Channappa has borrowed the hand loan of Rs.2.500/and executed the agreement dated:21.07.1973 as security to the loan?

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ii. Whether appellant-plaintiff proves that, he is in possession of the suit property as on date of agreement?

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iii. Whether appellant-plaintiff proves that, he is ready and willing to perform his part of contract?

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iv. Whether defendant-respondent proves that, suit filed by the appellant-plaintiff is barred by limitation?

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v. Whether the appellant-plaintiff is entitled for the relief as prayed for?

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vi. Whether appellant-plaintiff proves that, the findings given on issue no.6 is in wrong?

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vii. What order or decree?”

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The points that arise for consideration in O.S No.162/96 are:

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i. “Whether appellant-plaintiff proves that, the agreement to sale dated:6.2.1972 executed by their father Channappa in favour of the defendant is not binding upon them?

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ii. Whether appellant-plaintiff proves that, they are the owner and possessor of the suit property?

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iii. Whether plaintiff-appellant proves that, Respondentdefendant got entered his name in ROR illegally?

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iv. Whether appellant-plaintiff proves that, they are entitled for the relief as prayed for?

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v. Whether appellant-plaintiff proves that, the judgment and decree passed by the lower court in O.S No.162/96 is illegal?

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vi. What order or decree?”

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The First Appellate Court by its judgment dated 22.06.2006,

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allowed R.A No.27/2003 filed by the agreement holder and dismissed R.A Nos.24 and 25 of 2003 filed by the owners and passed the

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following order:

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“ The appeal filed by the appellant-plaintiff in R.A No.27/2003 is hereby allowed and set aside the judgment and decree passed by the lower court in O.S No.60/97 dated: 28.01.2003 and decreed the O.S.60/97 against the defendants.

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The defendants-respondents are directed to received balance consideration amount Rs.2,000/- along with interest at the rate of 6% per annum from the date of decreed the suit dated:28.1.2003 and executed the registered sale deed in favour of the plaintiff within 3 months from the date of this order.

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The appeal filed by the appellants-defendants in R.A No.24/2003 and appeal filed by the appellant-defendants in R.A No.25/2003 are hereby dismissed and confirmed the judgment and decree passed by the lower court in O.S No.162/96 dt:28.01.2003.

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Both parties bear their own cost.

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Copy of the judgment shall be kept in R.A No.24/2003 and R.A No.24/2003 and R.A No.25/2003.

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Sent the copy of the judgment along with entire case file to the lower court.”

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Being aggrieved, the present owners have preferred the present second appeals.

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This Court, vide order dated 31.01.2007 passed in RSA No.2460/2006 and order dated 10.06.2008 passed in RSA No.2462/2006 has admitted the appeals and framed the following substantial question of law:

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“Whether the Courts below was justified in decreeing the suit for specific performance when admittedly the agreement dated 21.07.1973 and the suit was filed 14 years after the said agreement?”

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Learned counsel for the appellant/ present owner,

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Smt. Pallavi Pachchapure assailing the judgments of the Trial Court

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and the First Appellate Court submits that, in the Agreement of Sale deed dated 6.03.1972 (Ex.D.2) there is a stipulation that the sale transaction ought to have been completed within 2 years. That the original owner Channappa died on 11.06.1974 and the notice dated 13.12.1996 (Ex.P.4) was issued by the agreement holder to the legal representatives of deceased Channappa calling upon them to complete

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the transaction in terms of the said agreement. That the period for completion of the transaction expires on 05.03.1974 and having regard to Section 54 of the Limitation Act, the suit ought to have been filed within three years from the said date i.e., on or before 05.03.1977. The suit having been filed on 02.07.1996 was hopelessly barred by time. It is further contended that there are no averments

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that the plaintiff was ready and willing to perform his part of contract and there is no evidence also adduced by the plaintiff regarding his readiness and willingness. Further, it is contended that neither the Trial Court nor the First Appellate Court has adequately appreciated

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the factual matrix and the oral and documentary evidence on record

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with regard to the aspect of readiness and willingness. Further, the learned counsel for the appellant submits that, the suit property is the only land belonging to the land owners and the said aspect has been averred in the written statement filed in OS No.60/1997. That on the aspect of the hardship also, the judgment and decree passed by the Trial Court and First Appellate Court requires to be set aside. Hence, learned counsel seeks for allowing of the appeals and granting the reliefs sought for.

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Per contra, learned counsels for the agreement holder/respondent Sri K.L.Patil and Sri S.A.Sondur contend that both the Courts have recorded concurrent findings of fact that the agreement holder has proved due execution of the Agreement of Sale and have recorded concurrent findings regarding readiness and willingness. Hence, it is contended that the concurrent findings recorded by the Trial Court and the first appellate Court ought not to be interfered with by this Court. It is further contended that the suit for specific performance is within time as has been rightly held by the Trial Court and the First Appellate Court.

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The submissions of both the learned counsels have been considered and material on record including the records of the Trial Court and the first appellate Court have been perused.

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From the facts of the case, the following aspects are forthcoming:

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(i) The agreement holder averred that the original owner executed Agreement of Sale dated 21.07.1973 (Ex.P.1) whereunder the total sale consideration agreed was ₹8,000/- and an advance of ₹2,500/- was paid as on the date of agreement. The balance sale consideration was payable at the time of execution of the sale deed and there was no time limit for completion of the sale transaction and execution of the same;

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(ii) The present owners averred that the original owner executed an Agreement of Sale dated 06.03.1972 (Ex.D.2) with the plaintiff agreeing to sell the suit properties for a total sale consideration of ₹8,000/- and that an advance of ₹2,000/- was paid as on date of the agreement. That the sale transaction was required to be completed within two years from the date of the agreement.

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(iii) The original owner died on 11.06.1974.

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(iv) Pursuant to the Agreement, a total sum of ₹5,000/- was paid by the agreement holder to the owners in the following manner:

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a) ₹2,500/- as on the date of agreement (Ex.P1) to the original owner;

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b) ₹2,000/- on 25.02.1974 to the original owner in terms of the endorsement in Ex.P.1(e);

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c) ₹500/- on 20.07.1975 to the present owners in terms of the endorsement in Ex.P.1(j).

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(v) The agreement holder is admittedly in possession of the property.

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(vi) Pursuant to the Agreement of Sale (Ex.P1), the plaintiff, for the first time issued a legal notice dated 13.12.1996 (Ex.P4) calling upon the owners to execute the Sale Deed.

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While it is the contention of the learned counsel for the

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agreement holder that the owners were required to get the names removed from the revenue records and hence, the Sale Deed could not be executed within the time contemplated under the Agreement of Sale, the said aspect alone will not suffice to enable the agreement

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holder to not seek for execution of the Sale Deed within the time stipulated in the agreement or within a reasonable time from the date of the agreement.

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In the present case, it is clear that pursuant to the Agreement of Sale on 21.07.1973 (Ex.P1), the plaintiff has issued the notice dated 31.12.1996 (Ex.P4) after a lapse of more than 23 years. The plaintiff has not placed any material on record to demonstrate that before issuance of the notice (Ex.P4), the agreement holder called upon the owners to receive the balance sale consideration and complete the sale transaction.

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The trial Court has recorded the following findings:

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i) It is an undisputed fact that the suit property is the ancestral property of the defendants family;

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ii) Father of defendants late Channappa executed the Agreement of Sale on 21.07.1973 agreeing to sell the suit property for a total sale consideration of `8,000/-. That the Sale Agreement was executed due to financial difficulty.

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iii) It is undisputed fact that late Channappa received `2,000/- as earnest money as per

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Ex.P1 and agreed to execute the Sale Deed as and when called upon by the plaintiff within two years of the Agreement after receiving the balance sale consideration of 6,000/-. Again on 25.02.1974, late Channappa received 2,000/- under the said Agreement dated 21.7.1973 and thereafter on 11.06.1974, the father of Channappa died without executing the Sale Deed.

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iv) The father of the defendants deceased Channappa executed the Agreement on 21.07.1973 in favour of the plaintiffs as security for the loan advance of different dates.

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v) PW.1 in his cross examination has clearly stated since 1972 he continued in possession by virtue of the Agreement of Sale. The deceased Channappa has also given Vardhi in order to enter the name of the plaintiff in the cultivators column of the RTC. The plaintiff also gave a representation for entering his name in Exs.D1 and D7. The name of plaintiff got mutated in M.R. No.1075 as per Ex.D8. Thereafter, the name of plaintiff also got entered in the cultivators column of RTC as per Ex.D10.

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vi) The defendants are not in possession of the suit property.

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vii) The plaintiff examined one attesting witness, who has deposed that late Channappa sold the land bearing Sy.No.34/2 for a sale consideration of ₹8,000/-. That the witness put his signature as per Ex.D1(b) and that Channappa put his signature as per Ex.D1(a).

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viii) The plaintiff has sent a notice to the defendant as per Ex.P4.

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ix) Looking at Exs.D1 and D7 after executing Agreement of Sale as per Ex.P1, the father of the defendants late Channappa and plaintiff jointly gave vardi to the concerned authorities to enter the name of the plaintiff in the cultivators column of RTC.

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x) In the instant case, though there is express stipulation of two years for executing the Sale Deed, the nature of property or the surrounding circumstances would make it inevitable to interfere with and modify the legal right. This is what is meant and all that is meant when it is said that in equity, time is not the essence of the contract.

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xi) After perusal of the legal notice dated 13.12.1996 (Ex.P.4), it clearly indicates the readiness and willingness of the plaintiff. The only obligation which he had to comply was payment of balance sale consideration.

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It is relevant to note that the Trial Court had framed issue No.3 regarding readiness and willingness and the First Appellate Court had framed point No.3 for consideration while considering the appeal in the suit for specific performance with regard to readiness and willingness. The First Appellate Court has, while reappreciating Exs.P4 and P5 held that the plaintiff is ready and willing to perform his part of the contract and affirmed the findings of the Trial Court recorded on issue No.3.

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At this juncture, it is relevant to note that the Agreement holder has averred regarding the Agreement of Sale dated 21.7.1973, which has been marked as Ex.P1, while the owners referred to Agreement dated 6.3.1972, which has been marked as Ex.D2. In both the Sale Agreements the total sale consideration is 8,000/-. While in Ex.P1, it is mentioned that the advance of 2,500/- has been paid and there is no time limit stipulated for completion of the sale transaction, in Ex.D2 it is mentioned that an advance of `2,000/- has been paid

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and that the sale transaction was required to be completed within two years. Since the Trial Court has considered the case of the parties by treating the suit for specific performance as the main suit, reference in

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the judgment of the Trial Court has been to Ex.P1. It is further relevant to note that a further amount of 2,000/- on 25.2.1974 and 500/- on 20.7.1975 was paid as is forthcoming from the endorsements made on Ex.P1, which endorsements have been marked as Ex.P1(e) and Ex.P1(j).

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It is relevant to note that in a suit for specific performance, the plaintiff was specifically required to plead and prove that he was ready and willing to complete the sale transaction. In the plaint in the suit for specific performance and in the examination-in-chief adduced by PW.1, it is merely stated that he was ready and willing to perform his part of the contract. At this juncture, it is relevant to note that after execution of the Agreement of Sale dated 06.03.1972 (Ex.D2) / 21.03.1973 (Ex.P1) the agreement holder got issued a legal notice dated 13.12.1996 (Ex.P4 / Ex.D3) calling upon the present owners to complete the sale transaction. However, the agreement holder has not either averred or adduced any evidence as to the steps taken by him to complete the sale transaction between the period of execution of the Agreement of Sale and the issuance of legal notice – Ex.P4. Hence,

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it is clear that there is absolutely no explanation forthcoming from the agreement holder as to the steps / measures taken by him for more than 24 years after execution of the Agreement of Sale in order to complete the sale consideration. Even if the date of payment of last installment/part sale consideration to the present owners in a sum of `500/-which is paid on 20.07.1975 [Ex.P.1(j)] is taken into consideration, more than 23 years have been passed before issuance of the legal notice which aspect has remained unexplained by the agreement holder.

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It is also pertinent to note here that consequent to the execution of the Agreement of Sale and the payment of part sale consideration, the present owners instituted the suit in OS.No.162/1996 for declaration on 02.07.1996. Thereafter, the agreement holder got issued the legal notice dated 13.12.1996 (Ex.P4/Ex.D3) for which the present owners got issued a reply dated 19.12.1996 (Ex.D.4). It is only thereafter that the agreement holder filed the suit for specific performance in OS.No.60/1997 on 26.02.1997.

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In order to appreciate the legal position with regard to the

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aspect of readiness and willingness in a suit for specific performance, it is necessary to notice the following judgments:

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27.1 A Constitution Bench of the Hon’ble Supreme Court in the case of Chand Rani (Dead) by Lrs., v. Kamal Rani (Dead) by Lrs.,¹⁰ was considering as to whether time was the essence of the contract. After noticing various judgments, it was held as follows:

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“ 25 . From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:

¶195

1. From the express terms of the contract;

¶196

2. from the nature of the property; and

¶197

3. from the surrounding circumstances, for example: the object of making the contract.”

¶198

(emphasis supplied)

¶199

27.2 The Hon'ble Supreme Court in the case of His

¶200

Holiness Acharya Swami Ganesh Dassji v. Sita Ram

¶201

Thapar¹¹ has held as follows:

¶202

10 AIR 1993 SC 1742

¶203

11 (1996) 4 SCC 526

¶204

24

¶205

“ 2 . There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27-21975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.”

¶206

(emphasis supplied)

¶207

27.3 The Hon’ble Supreme Court in the case of U.N.Krishnamurthy v. A.M.Krishnamurthy¹² has held as

¶208

follows:

¶209

“ 23 . Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be

¶210

12 (2023) 11 SCC 775

¶211

25

¶212

essential for the plaintiff to actually tender money to the defendant or to deposit money in court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, Explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.

¶213

24 . To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.”

¶214

(emphasis supplied)

¶215

27.4 The Hon’ble Supreme Court in the case of

¶216

P.Daivasigamani v. S.Sambandan¹³ has held as follows:

¶217

“20. From the bare reading of the aforestated provisions, it clearly emerges that the specific performance of the contract, may in the discretion of the court, be enforced, when the act agreed to be done, was such that compensation in money for its non-performance would not afford adequate relief, and that the breach of a contract to transfer immovable property could not be adequately relieved by compensation in money. It also emerges that specific performance of a contract could not be enforced in favour of a person, who failed to aver and

¶218

13 (2022) 14 SCC 793

¶219

26

¶220

prove that he had performed or had always been ready and willing to perform the essential terms of the contract, which were to be performed by him. It could also not be enforced in favour of a person who failed to aver in the plaint the performance of, or readiness and willingness to perform the contract according to its true construction.

¶221

21 . Readiness and willingness are not one, but two separate elements. Readiness means the capacity of the plaintiff to perform the contract, which would include the financial position to pay the purchase price. Willingness refers to the intention of the plaintiff as a purchaser to perform his part of the contract. Willingness is inferred by scrutinising the conduct of the plaintiff purchaser, including attending circumstances [ See para 2 in Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526] . Continuous readiness and willingness on the part of the plaintiff purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, is a condition precedent for grant of relief of specific performance [ See para 5 in N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115. Also see Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-28) 55 IA 360 : AIR 1928 PC 208] .

¶222

29 . Time, it is stated, is not the essence of the contract in the case of immovable properties, unless there are grounds to hold to the contrary. This doctrine is applied, without being unfair and inequitable to the defendant seller, as the court should not ignore that a person sells the property when he needs money, and, therefore, expects the money in the stipulated or reasonable time, which would meet the purpose of the sale. The purpose of sale can vary from the need for liquid cash to be invested to earn interest, medical, educational, child's marriage or purchasing another property. To save capital gains, the seller has to purchase another immovable property, unless the proceeds are exempt.

¶223

33 . Though much reliance was placed by the learned counsel for the appellant on the decisions of this Court in Ritu Saxena v. J.S. Grover [Ritu Saxena v. J.S. Grover, (2019) 9 SCC 132 : (2019) 4 SCC (Civ) 302] , in Abdullakoya Haji v. Rubis Tharayil [Abdullakoya Haji v. Rubis Tharayil, (2019) 17 SCC 216 : (2020) 3 SCC

¶224

27

¶225

(Civ) 399] , and other cases, to submit that the respondent had failed to establish his financial capacity to pay the balance amount of consideration at the relevant time and had also failed to deposit the said amount in the court at the time of filing of the suit, he was not entitled to the discretionary relief of specific performance as granted by the Court, we do not find any substance in any of the said submissions. As per the ratio of judgment laid down by the three-Judge Bench in Syed Dastagir [Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337] , the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form, while making averments in the plaint. As per Explanation (i) to Section 16(c), he need not tender to the defendant or deposit the amount in the court, but he must aver performance of, or readiness and willingness to perform the contract according to its true construction.”

¶226

(emphasis supplied)

¶227

It is relevant to note at this juncture that present owners

¶228

who are the defendants in the suit for specific performance had taken a contention in the written statement that the said suit filed by the agreement holder was barred by time. With regard to the said contention, the Trial Court had framed issue No.4 which was answered in the negative and the first appellate Court in the points for consideration in O.S. No.60/1997 had framed point No.4 with regard to issue of limitation adjudicated by the Trial Court and affirmed the finding of the Trial Court that the suit is within time. Both the trial Court and the first appellate Court have held that the agreement holder having issued the legal notice dated 13.12.1996 (Ex.P4) and the present owner having responded to the same by denying the

¶229

28

¶230

performance of the Agreement, the suit in O.S. No.60/1997 for specific performance having been filed within three years from Ex.P4, the suit was within time.

¶231

In the present case, the aspect with regard to the agreement holder belatedly issuing the notice dated 12.12.1996 (Ex.P4) and thereafter, filing the suit is required to be considered for the purpose of adjudicating regarding the readiness and willingness of the agreement holder and not for the purpose of adjudicating as to whether the suit for specific performance was barred by time.

¶232

Learned counsel for the respondent/agreement holder has relied upon the judgment of the Hon’ble Supreme Court in the case of S.Brahmanand and others Vs. K.R. Muthugopal (D) and others¹⁴ as well as the judgment of the Hon’ble Supreme Court in the case of Pancharan Dhara & Ors. V. Monmatha Nath Maity (D) by L.Rs. & Anr.¹⁵ . However, the said judgments would not aid the case of the respondent since the said judgments are with regard to the limitation of filing a suit for specific performance. As has been noticed above, the delay in issuing the legal notice(Ex.P4) and filing the suit by the agreement holder is taken for consideration for the purpose of

¶233

14 AIR 2006 SC 40

¶234

15 AIR 2006 SC 2281

¶235

29

¶236

adjudicating the aspect of readiness and willingness of the agreement Holder and not for the purpose of adjudication of the aspect of limitation in filing the suit.

¶237

Learned counsel for the agreement holder also relied on the judgment of the Hon’bel Supreme Court in the case of Narinderjit Singh Vs. North Star Estate Promoters Limited¹⁶ , wherein the Hon’ble Supreme Court has not interfered with the finding of the High Court which affirmed the finding of the lower appellate Court with regard to the readiness and willingness on the ground that the said finding was not specifically challenged. It is a settled proposition of law that this Court while considering a second appeal under Section 100 of the CPC is entitled to interfere with a concurrent finding of fact when there is perversity in the said finding and the same having been recorded by not taking into consideration the evidence/material on record and suffers from material irregularity. (See : Balasubramanian v. Arockiasamy , AIR 2021 SC 4221 )

¶238

Learned counsel for the agreement holder also relied on the judgment of the Hon’ble Supreme Court in the case of Ramathal

¶239

16 AIR 2012 SC 2035

¶240

30

¶241

Vs. Maruthathal and Others¹⁷ , wherein the Hon’ble Supreme Court

¶242

has held that mere escalation of price is not a ground to refuse the specific performance. However, the said judgment would not aid the case of the respondent since in the said case, the Hon’ble Supreme Court had held that the buyer had taken prompt steps to file a suit for specific performance as soon as the execution of the sale was stalled by the seller and that the buyer has always been ready and willing to perform his part of the contract at all stages. The Hon’ble Supreme Court further held that the seller cannot take advantage of their own wrong. The factual matrix of the said case is wholly different from the facts of the present case.

¶243

Learned counsel for the agreement holder also relied on the judgment of the Hon’ble Supreme Court in the case of Ferrodour Estate (Pvt.) Ltd., v. P.Gopirathnam (Dead) and others¹⁸ ,

¶244

wherein it held as follows:

¶245

“31. The resultant position in law is that a suit for specific performance filed within limitation cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where immovable property is to be sold within a certain period, time being of the essence, and it is found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the court process

¶246

17 AIR 2018 SC 340

¶247

18 AIR 2020 SC 5041

¶248

31

¶249

cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour, even at the appellate stage.”

¶250

33.1 However, the said case will not aid the case of the respondent-owner as in the said case, the Court held that the purchaser was always ready and willing to complete his part of Agreement and mere escalation of price is not a ground to deny the specific performance. The said fact situation is wholly different from the fact situation of the present case, wherein, the agreement holder has failed to demonstrate his readiness and willingness in completing the sale transaction.

¶251

In view of the settled legal position as noticed above and taking into consideration the factual matrix, it is clear that the Trial Court has, by merely stating that having regard to the nature of the property and surrounding circumstances, it was held that time is not the essence of the of the contract so as to modify the legal right of the parties. Further, the First Appellate Court has merely, taking into consideration the legal notice - Ex.P4, affirmed the finding on readiness and willingness recorded by the Trial Court. The agreement holder, neither in the plaint nor in the examination-in-chief has stated

¶252

32

¶253

as to what steps / measures he has taken to complete the sale transaction for a period of 23 years after payment of the last installment of sale consideration. It is also relevant to note that the agreement holder has adduced the testimony of PW.2, PW.3 and PW.4 (erroneously mentioned as DW.4 in the deposition), who have adduced evidence regarding the Agreement of sale and payment of part sale consideration. None of the said witnesses have spoken to about the steps / measures taken by the plaintiff to demonstrate that he was ready and willing to complete his part of the sale transaction for the period between payment of the last installment of sale consideration up to the issuance of legal notice - Ex.P.4.

¶254

It is also forthcoming from the material on record that the deceased owner entered into the Agreement of Sale since he was in need of money. At this juncture, it is relevant to note the it was the case of the owners that the Agreement of Sale (Ex.P1) was merely a security for a loan transaction. It is also relevant to note that the owners had contended that they had repaid the advance amount of `5,000/- to the agreement holder. However, both the Courts have recorded a concurrent finding that the owners have failed to prove their case that the Agreement (Ex.P1) is a security for the loan

¶255

33

¶256

transaction and that the owners had repaid the advance sale consideration of `5,000/- to the agreement holder.

¶257

It is further forthcoming from the legal position as noticed above that readiness and willingness are two separate elements and to order specific performance, the agreement holder is required to satisfy both the elements. While readiness is the capacity of the agreement holder to perform the contract including the financial position to pay the purchase price, willingness refers to the intention of the agreement holder/purchaser to perform the contract which is required to be inferred by scrutinizing the conduct of the agreement holder including the attending circumstances. In the present case, there is absolutely no material on record to demonstrate that the agreement holder was either ready or willing to complete the sale transaction within a reasonable time from the date of execution of the Agreement of sale.

¶258

Although it is the vehement contention of the learned counsel for the agreement holder that there need not be a specific format for taking a plea as to readiness and willingness and the aspect of readiness and willingness has to be inferred from the entirety of the factual circumstances, it is pertinent to note here that the agreement holder, not even having complied with basic requirements of pleading

¶259

34

¶260

and adducing evidence regarding readiness and willingness, the question of affirming the finding of the Trial Court and First Appellate Court regarding readiness and willingness does not arise.

¶261

Having regard to the finding recorded above, the substantial question of law dated 31.01.2007 and 10.06.2008 passed in the above appeals is required to be answered in the Negative. In view of the fact that the said substantial question of law is answered in the Negative, a further substantial question of law arises for consideration in respect of which both the learned counsels have also made their submissions. The said further substantial question of law is as follows:

¶262

“If the substantial question of law dated 31.01.2007 and 10.08.2008 are answered in the negative, whether any further order is required to be passed with regard to the relief claimed by the owners in OS No.162/1997 and with regard to possession of suit schedule property?”

¶263

In this context, it is relevant to note that the deceased owner had put the agreement holder in possession of the property as is forthcoming from the Varadi (Ex.D1). It is further relevant to note that M.E.No.1075 dated 17.07.2023 (Ex.P3) also discloses that the agreement holder is in possession of the suit property.

¶264

35

¶265

This Court in the case of Tukaram Sadasiv Chamber Vs. Mallu Babu Chamber and Ors.¹⁹ was considering a fact situation wherein upon a finding being recorded that the agreement holder had failed to demonstrate his readiness and willingness to perform the agreement and even in the absence of a prayer for possession, the trial Court having ordered for relief of possession which is confirmed by the first appellate Court, this Court held as follows:

¶266

“27. In the present case, the finding of readiness and willingness having been held against the plaintiff by both the Courts, and the same having been affirmed by this Court as noticed above, the question of the plaintiff taking the benefit of Section 53A of the T.P. Act to remain in possession of the suit property does not arise. Hence, the said contention put forth by the plaintiff is untenable and liable to be rejected.”

¶267

Further, another co-ordinate Bench of this Court in the case of Smt. Suvarnabai W/o. Late Sadashivayya Sunkadmath and others v. Shri. Mallaikarju and others²⁰ has held as follows:

¶268

“46. At this stage, learned counsel for the appellant seeks to contend that the since the plaintiff has obtained possession over the property in part performance of contract, the plaintiffappellant is entitled to protect his possession under Section 53A of the Transfer of Property Act (hereinafter referred to as ‘the TP Act’ for short). In support of his contention, learned counsel for the appellant has placed reliance on the following decisions:

¶269

19 RSA No.5922/2019 – Dharwad Bench, decided on 10.07.2024

¶270

20 Judgment dated 15.11.2023 in RSA No.5101/2013

¶271

36

¶272

In the case of Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs. and others²¹ (Shrimant Shamrao) and Narasimhasetty (Deceased) Vs. Padmasetty²² (Narasimhasetty) and would contend that the bar of limitation alone does not bar the plea of part performance being raised, if all the other requisites of Section 53A of the TP Act are available.

¶273

47. Per contra, learned counsel for the respondent would contend that the defendants efforts to get the possession has went in vain and the appellant cannot be permitted to seek a plea of part performance and protection under Section 53A of the T.P. Act, as he has been given opportunity to defend his contention in the HRC proceedings from the year 1991 and the subsequent suit for possession. The plaintiff cannot be entitled for protection under Section 53A of the TP Act and this Court can exercise the power of the appellate Court and direct possession of the suit schedule property to the defendants and place reliance on the following decisions:

¶274

i) D.S. Parvathamma Vs. A. Srinivasan²³ (D.S. Parvathamma)

¶275

ii) Banarsi and Ors. Vs. Ram Phal²⁴ (Banarsi)

¶276

48. What needs to be considered is whether necessary protection as contemplated under Section 53A of the TP Act needs to be accorded to the plaintiff appellant. In the decision of Shrimant Shamrao stated supra, the Apex Court held at paragraph No.11 as under:

¶277

“When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various courts in India as regards the application of English doctrine of part performance of contract as it was then

¶278

21 AIR 2002 SC 960

¶279

22 AIR 1998 Kant 389

¶280

23 AIR 2003 SC 3542

¶281

24 AIR 2003 SC 1989

¶282

37

¶283

prevailing in England. Since there was a difference of opinion on question of the application of English equitable doctrine of part performance in various courts of India, the Govt. of India resolved to set up a Special Committee for making recommendations amongst others – whether the British equitable doctrine of part performance be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith that lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired.”

¶284

49. The Apex Court held that the purpose of enacting Section 53A was to provide protection to a transferee who in part performance of contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. The necessary condition to defend or to protect his possession under Section 53A of the TP Act is enumerated at paragraph No.14 as under:

¶285

38

¶286

“14. But there are certain conditions which are required to be fulfilled if a transferee want to defend or protect his possession under S.53-A of the Act. The necessary conditions are-

¶287

1) there must be a contract to transfer for consideration any immovable property;

¶288

2) the contract must be in writing, signed by the transferor, or by someone on his behalf;

¶289

3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

¶290

4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;

¶291

5) the transferee must have done some act in furtherance of the contract; and

¶292

6) the transferee must have performed or be willing to perform his part of the contract.”

¶293

50. The Apex Court held that the conditions enumerated above are to be complied with, the law of limitation does not come in the way of the defendant taking plea under Section 53A of the TP Act to protect his possession of the suit property even though a suit for specific performance has been dismissed as barred by limitation.

¶294

51. One of the essential ingredient to avail protection under Section 53A of the TP Act is willingness to perform his part of the contract, which is invariably absent in the present case and the protection as sought by the appellant under Section 53A of the TP Act is not available to the appellant-plaintiff for more than two reasons.

¶295

52. The HRC proceedings has been protracted by the plaintiff since 1991, in the HRC proceedings substantial protection was given and the proceedings has been conducted by the plaintiff in

¶296

39

¶297

its spirit. The decisions placed reliance by the appellant is not applicable to the present facts and circumstances of the case and is highly distinguishable.

¶298

53. The Apex Court in the case of Banarsi stated supra has held that the appellate Court can exercise the power under Order 41 Rule 33 when a substantial justice has to be done, as in the present case. One more ground that this Court would apply in this context is that, if a suit for specific performance is sought without a prayer for possession and the suit is decreed in favour of the plaintiff directing specific performance by the defendant. Direction to deliver possession of the property is incidental to a decree for specific performance and therefore, the Executing Court had jurisdiction to order delivery of possession to do substantial justice instead of directing the plaintiff to file separate suit for possession. If the very analogy is applied in the present context, the relief of possession being incidental to the rejection of the suit for specific performance of contract, and instead of directing the defendants to again file a suit for possession, since the defendant is litigating for possession down from 1991, this Court is of the considered view that the defendant would be entitled for possession of the suit schedule property.

¶299

54. The other contention of the appellant is that the appellant should not be dispossessed until in due process of law. What is due process of law needs to be considered in the present appeal, it means a person in settled position cannot be ejected without a Court of law having adjudicated upon his rights qua the true owner, the Apex Court in the case of Padhiyar Prahladji Chenaji (Deceased) through Lrs Vs. Maniben Jagmalbhai (deceased) through Lrs and Others²⁵ has given a deliberate consideration to the meaning of due process of law and at para No.28 has held as under:

¶300

28. In the said decision in Maria Margarida, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. v. Hotel Imperial² : (Hotel Imperial Case² , SCC Online Del para 28)

¶301

25 (2022) 12 SCC 128

¶302

40

¶303

“28.The expressions "due process of law", "due course of law" and “recourse to law" have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed "forcibly" by the true owner taking law in his own hands. All these expressions, however, mean the same thing-ejectment from settled possession can only be had by recourse to a court of law. Clearly, "due process of law" or "due course of law", here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

¶304

Now, this "due process" or "due course" condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the "bare minimum" requirement of "due process" or "due course" of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the "recourse to law" stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms

¶305

41

¶306

would have been brought about without recourse to law."

¶307

55. Thus, in the instant case, the plaintiff - appellant having duly participated in the eviction proceedings and in the possession suit cannot contend that the possession directed by this Court is without recourse to law. The appellant’s possession has been adjudicated qua the true owner in the proceedings initiated by the defendant and the “due process” or “due course” condition is satisfied the moment the rights of the parties are adjudicated upon by a Court of competent jurisdiction. Applying the said principles, the plaintiff’s failure for grant of specific performance, the defendant is entitled for possession of the suit schedule property in the present facts and circumstance of the case. In the realm of long-run litigations, the importance of substantial justice becomes even more pronounced as a guiding principle that mitigates the potential pitfalls of protracted legal proceedings. Long-term legal battles often introduce complexities, evolving circumstances, and changing dynamics between the parties. By focusing the essentials, rather than getting bogged in procedural minutiae, Courts can expedite the process.

¶308

56. In light of the foregoing reasons and in order to have substantial justicee to the parties, this Court is of the considered view that the appellants herein to handover the possession of the suit schedule property to the defendants within the stipulated period of time as stated in the following order.”

¶309

While considering the aspect of refund it is relevant to note

¶310

at this juncture that the agreement holder has enjoyed the usufructs of the suit property that has been in his possession from the year 1975 without paying the entire sale consideration or completing the sale transaction under the agreements dated 06.03.1972/21.07.1973. The rights of the parties under the agreements dated 06.03.1972

¶311

42

¶312

/21.07.1973, having been adjudicated upon in the present appeals and the agreement holder admittedly having come into possession of the suit property by virtue of the original deceased owner executing the agreements of sale in his favour, all rights of the parties having adjudicated upon, it is just and proper that since this Court has recorded a finding that the agreement holder is not entitled to specific performance of the suit property, appropriate orders be passed ordering for redelivery of possession of the property to the present owners and declaration of title of the present owners.

¶313

Having regard to the factual matrix and legal position, as noticed above, the substantial question of law dated 31.1.2007 and 10.6.2008 framed for consideration are answered in the Negative and the substantial question of law framed at para 36 of this judgment is answered in the Affirmative. Further, the land owners are required to refund the amounts received by them together with interest @ 12% per annum and the agreement holder is required to return the possession of the said property to the present owners.

¶314

In view of the aforementioned, the following:

¶315

ORDER

¶316

i. The above appeals are allowed ;

¶317

43

¶318

ii. The judgment dated 22.06.2006 passed in RA.No.27/2003 (clubbed with RA.Nos.24/2003 and 25/2003) by the Civil Judge (Senior Division) and Principal JMFC, Ranebennur is set aside;

¶319

iii. The judgment and decree date 28.01.2003 passed in OS.Nos.60/1997 and 162/1996 by the Principal Civil Judge (Junior Division) and I Additional JMFC, Ranebennur, is set aside;

¶320

iv. The suit in OS.No.60/1997 on the file of the Principal Civil Judge (Junior Division) and I Additional JMFC, Ranebennur, is partly decreed with costs by directing the defendants therein to refund to the plaintiffs therein the advance amount of `5,000/together with interest at 12% p.a, from the date of suit till date of payment. A further direction is issued to the plaintiff in the said suit to handover possession of the suit property to the defendants in the said suit;

¶321

v. The suit in OS.No.162/1996 on the file of the Principal Civil Judge (Junior Division) and I Additional JMFC, Ranebennur, is decreed with costs as follows:

¶322

44

¶323

a. The plaintiffs in the said suit are declared to be absolute owners of the suit property.

¶324

b. A direction is issued to the revenue authorities to enter the names of the plaintiffs in the said suit in the revenue records pertaining to the suit property.

¶325

SD/(C.M.POONACHA) JUDGE

¶326

BS/nd/pmp/

Basappa S/O Channappa Kalaveerappanavar v. Sri Balappa S/O Basappa Pujar

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Basappa S/O Channappa Kalaveerappanavar v. Sri Balappa S/O Basappa Pujar

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