Sri. K. S. Gowrishankar Vs Sri. Nanjundaiah

SRI. K. S. SAROJAMMA D/O. LATE SRI. K.M. SIDDARAMAIAH, AGED ABOUT 63 YEARS, W/O. SRI. PALAKSHAIAH, R/AT RENUKA NILAYA, BEHIND DIVYA C.P.ED. COLLAGE, MELUKOTE ROAD, TUMKUR DISTRICT-572 105.

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SMT. UMADEVI. K. S. D/O. SRI. VISHVESHWARAIAH, AGED ABOUT 58 YEARS, R/O. KODHALLI, GULUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-572 118.

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SMT. GIRIJAMMA K.S. D/O. LATE SRI. K. M. SIDDARAMAIAH, AGED ABOUT 55 YEARS, R/AT NO.649, 1^ST MAIN, 6^TH ‘A’ CROSS, KEMPEGOWDA NAGARA, T. DASARAHALLI, BANGALORE-560 057.

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SMT. NAGALAMBIKE D/O. LATE SRI. K.M. SIDDARAMAIAH,

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AGED ABOUT 53 YEARS, R/AT BITTASANDRA, SOLUR HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT-562 127.

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SMT. MANJULA W/O. LATE SRI. PRABHUDEVAN K.S., AGED ABOUT 40 YEARS, R/O. KODHALLI, GULUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-572 118.

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KUMARI DEEKSHA D/O. LATE SRI. PRABHUDEVAN K.S., AGED ABOUT 11 YEARS, R/O. KODHALLI, GULUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-572 118.

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MASTER SIDDARTHA S/O. LATE SRI. PRABHUDEVAN K.S., AGED ABOUT 7 YEARS, R/O. KODHALLI, GULUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-572 118.

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SINCE APPELLANT NOS.7 AND 8 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER i.e. APPELLANT NO.6 SMT. MANJULA.

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SMT. GAYATHRI K.S. W/O. LATE SRI. K.M. SIDDARAMAIAH, AGED ABOUT 48 YEARS, R/AT NO.42, 1^ST MAIN, 6^TH A CROSS, KEMPEGOWDA NAGARA, T. DASARAHALLI, BANGALORE-560 057.

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SRI. MALLIKARJUNA K.S. S/O. LATE SRI. K.M. SIDDARAMAIAH, AGED ABOUT 45 YEARS, R/AT NO.33, 1^ST MAIN,

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6^TH ‘A’ CROSS, KEMPEGOWDA NAGARA,

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T. DASARAHALLI, BANGALORE-560 057. …APPELLANTS

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(BY SRI PRADEEP NAIK K., ADVOCATE)

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AND:

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SRI. NANJUNDAIAH S/O. LATE SRI. NANJAPPA, AGED ABOUT 63 YEARS,

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SRI SHIVASWAMY S/O. LATE SRI. NANJAPPA, AGED ABOUT 56 YEARS,

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SRI. SIDDALINGAIAH S/O. LATE SRI. NANJAPPA, AGED ABOUT 45 YEARS,

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SRI PARAMESHWARAIAH @ PARAMASHIVAIAH, S/O. LATE SRI. NANJAPPA, AGED ABOUT 42 YEARS,

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SMT. SIDDARAMAKKA W/O. LATE SRI. NANJAPPA, AGED ABOUT 82 YEARS,

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RESPONDENT NOS.1 TO 5 ARE ALL R/AT KODHALLI, GULUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-562 006. …RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 42 RULE 2 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.12.2019 PASSED IN R.A.No.138/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 09.10.2017 PASSED IN O.S. No.91/2000 ON THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the plaintiffs challenging the judgment and decree dated 20.12.2019 in R.A.No.138/2017 by the II Additional Senior Civil Judge and J.M.F.C, Tumakuru (‘First Appellate Court’ for short), whereby, the First Appellate Court partly allowed the appeal and modified the judgment and decree dated 09.10.2017 passed in O.S.No.91/2000 on the file of IV Additional Civil Judge and J.M.F.C, Tumakuru (‘Trial Court’ for short). The suit instituted by the plaintiffs seeking specific performance of an agreement of sale dated 30.10.1985 in respect of the suit schedule property was dismissed insofar as the relief of specific performance is concerned, while directing refund of the advance consideration amount.

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The case of the plaintiffs is that the suit schedule property measuring 2 acres in Sy.No.2/9A1 out of 4 acres 10 guntas situated at Kodihalli Village, Tumakur Taluk, originally belonged to Siddalingaiah and Nanjappa,

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who were brothers. Siddalingaiah had mortgaged the said

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property in favour of the original plaintiff Sri K. M. Siddaramaiah under a mortgaged deed dated 29.03.1971 for a sum of 500/- and the plaintiff was placed in possession of the property. It is stated that after the death of Siddalingaiah, who died issueless, his brother Nanjappa succeeded to the property. Thereafter, Nanjappa along with defendant No.1 executed an agreement of sale dated 30.10.1985 in favour of the plaintiff, agreeing to sell the suit schedule property for a consideration of 8,000/- and received 7,000/- as advance, agreeing to receive the balance amount of 1,000/- at the time of execution of the registered sale deed.

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According to the plaintiffs, since the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act was enforced, the parties agreed that the registered sale deed would be executed after the repeal of the said Act. It is their case that after the repeal of the Act in the year 1991, the plaintiffs repeatedly requested the

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defendants to execute the sale deed and also issued legal notices dated 21.08.1991 and 17.05.1994, but the defendants failed to execute the sale deed, thereby compelling the plaintiffs to file the suit for specific performance.

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The defendants, while denying the execution of the agreement of sale, contended that the plaintiff had agreed to redeem the mortgage and received the mortgage amount and that they had filed a suit for redemption of mortgage in O.S.No.355/1993, which came to be decreed. It is further stated that the suit filed by the plaintiffs is barred by limitation and therefore liable to be dismissed.

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The Trial Court, upon appreciation of the oral and documentary evidence on record, framed necessary issues, recorded evidence of PW1 and PW2 on behalf of the plaintiffs and DW1 to DW3 on behalf of defendants.

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The plaintiffs marked documents at Ex.P1 to Ex.P24 and

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defendants at Ex.D1 to Ex.D12.

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The Trial Court held that the execution of

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agreement of sale and receipt of advance consideration of 7,000/- stood proved particularly in view of the expert report regarding the signature appearing on the agreement. However, the Trial Court further held that the plaintiffs have failed to establish their readiness and willingness to perform their part of contract as required under Section 16(c) of the Specific Relief Act, 1963 (‘Act’ for short). The Trial Court also held that the suit was barred by limitation under Article 54 of the Limitation Act, 1963 (‘Limitation Act’ for short). Since the Fragmentation Act was repealed in the year 1991 and the suit was instituted only in the year 2000. Consequently, the Trial Court dismissed the suit insofar as a relief of specific performances concerned, but directed the defendants to refund the advance amount of 7,000/- with interest at the rate of 6% per annum from the date of suit.

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Aggrieved by the said judgment, the plaintiffs

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preferred R.A.No.138/2017 before the First Appellate Court. The First Appellate Court being the last fact finding Court, re-appreciated the entire oral and documentary evidence and upon re-appreciation concurred with the findings recorded by the Trial Court and held that the agreement of sale dated 30.10.1985 stood proved and the plaintiffs have failed to establish readiness and willingness to perform their part of the contract. The First Appellate Court further held that the suit was clearly barred by limitation since the cause of action had arisen after the repeal of the Fragmentation Act in 1991 and the suit was instituted only in the year 2000. However, while confirming the rejection of the relief of specific performance, the First Appellate Court modified the decree to the extent of enhancing the interest payable on the advance amount and directed the defendants to refund `7,000/- with interest at rate of 18% per annum from the date of execution of the agreement of sale till realization.

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Learned counsel for the appellants contends

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that both the Courts have erred in dismissing the suit for specific performance despite holding that the agreement of sale and receipt of advance amount were proved. It is further contended that the time was not the essence of contract, particularly when the agreement itself stipulated that the sale deed would be executed only after the repeal of the Fragmentation Act. Therefore, the Courts below erred in holding that the suit is barred by limitation. It is further contended that the plaintiffs had issued legal notices and were continuously asserting their rights under the agreement and therefore the findings regarding the readiness and willingness are unsustainable.

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This Court has carefully considered the rival submissions and perused the material on record.

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The Courts below have concurrently recorded the finding on the aspect regarding execution of the agreement of sale, readiness and unwillingness of the

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plaintiffs and limitation for filing the suit. It is not in dispute that the plaintiffs relied upon the agreement of sale dated 30.10.1985 (Ex.P24), under which the defendants had allegedly agreed to sell the suit schedule property for total consideration of 8,000/- and had received an advance amount of 7,000/-. Both the Courts have held that the execution of the sale agreement should proved on basis of the oral evidence of PW1 and PW2 and the documentary evidence produced as Ex.P1 to Ex.P24. However, both the Courts have also concurrently held that the plaintiffs have failed to establish their continuous readiness and willingness to perform their part of contract as required under Section 16(c) of the Act.

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More importantly, both the Courts have held that the suit itself is barred by limitation under Article 54 of the Limitation Act. The material on record discloses that the agreement of sale (Ex.P24) itself stipulated that the sale deed would be executed after the repeal of the Fragmentation Act which admittedly came to be repealed

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in the year 1991. The plaintiffs themselves issued notice

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on 21.08.1991 and 17.05.1994 calling upon the defendants to execute the sale deed. Therefore, the cause of action to seek enforcement of the agreement had clearly arisen at list by the time legal notices were issued. Under Article 54 of the Limitation Act, the suit for specific performance ought to have been filed within three (3) years from the date when the plaintiffs had noticed of refusal or when performance became enforceable. In the present case, despite issuance of notices in the year 1991 and 1994, the plaintiffs instituted the suit only in the year 2000, after a lapse of several years. Hence, both the Courts have rightly held that the suit is clearly barred by limitation.

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The First Appellate Court being the last fact finding Court had re-appreciated the entire oral and documentary evidence, including Ex.P1 to Ex.24 and Ex.D1 to Ex.D12 and had concurred with the findings of the Trial Court that the plaintiffs are not entitled for

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specific performance. However, considering the fact that the advance of `7,000/- has been received by the defendants, the First Appellate Court modified the decree to the extent of directing refund of the said amount with interest.

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The findings recorded by the Courts below are concurrent findings of fact based on appreciation of evidence particularly on the questions of readiness and willingness and limitation. In the absence of any perversity or illegality in the appreciation of evidence by the Courts below, this Court, while exercising jurisdiction under Section 100 of CPC, cannot re-appreciate the evidence. The concurrent findings recorded by the Courts below do not suffer from any perversity and the findings are recorded in light of the clear bar of limitation under Article 54 of the Limitation Act and this Court is of the considered opinion that no substantial question of law arises for consideration in this Regular Second Appeal. Accordingly, this Court pass the following:

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