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2005 Supreme(Kar) 530
HULUVADI G. RAMESH, J.
MOULASAB Appellant
versus
YAMANAPPAAND OTHERS Respondent
Regular Second Appeal No. 650 of 1995.
Decided on 2nd September, 2005
M/s. Jayakumar S. Patil and Associates, Advocates for Appellant;
Sri M. Aswathnarayana Reddy, Advocate for Respondent-5.
Headnote:Specific Relief Act, 1963 - Suit for permanent injunction - Section 38 -Suit for permanent injunction -Agreement to sell -Defendant put in possession -Revenue entries mutated -Plaintiff purchased property from owner -Held, there is no valid transfer -Plaintiff is not a bona fide purchaser -Relief cannot be granted. [Huluvadi G. Ramesh, J]: It is seen that the plaintiff did not come forward to give evidence before the Court in support of his case rather, the power of attorney holder has entered the witness box and deposed something. In the instant case even as noted and argued by the Learned Counsel for the appellant/plaintiff before purchase of the suit property by the plaintiff he said to have made an enquiry and that the property was free from all encumbrances and then only he entered in to the said sale transaction with defendants 1 to 4. It is seen that if really such an enquiry being made as contended by him he would have been very much aware through the revenue authorities that the property was put in possession of defendant No.5 much prior to the sale deed even as per the mutation entry which is dated 20.6.79 which is one month 10 days prior to the alleged sale deed in favour of the plaintiff. It is the case of the appellant/plaintiff that his possession was parted and given to defendant No.5 by the vendors namely defendants 1 to 4 and also an amount of Rs. 6,000/- was received as earnest money towards the total consideration of Rs.l 0,500/- But, when once the mutation entry is being made in the revenue records and in the place of the name of vendor, the name of defendant No.5 is inducted necessarily, the possession of the property has been transferred in favour of defendant No.5 from defendants 1 to 4 by virtue of the sale agreement. This situation attracts the provisions of 53 A of the Transfer of Property Act. In that view of the matter, both the Courts below have rightly rejected the suit filed by the plaintiff. As such, he is not entitled for declaratory relief moreover, when there is a finding of the Assistant Commissioner that plaintiff is a non-agriculturist and according to the plaintiff his father was an agriculturist, that issue does not arise for consideration. In view of the above discussions, it is to be held that both the Courts below were right in holding that plaintiff is not entitled to purchase the suit land and that title has not passed to him and have rightly rejected the prayer of the plaintiff for declaratory relief.
Suit for permanent injunction
SPECIFIC RELIEF ACT, 1963 - Section 38 -Suit for permanent injunction -Agreement to sell -Defendant put in possession -Revenue entries mutated -Plaintiff purchased property from owner -Held, there is no valid transfer -Plaintiff is not a bona fide purchaser -Relief cannot be granted.
[Huluvadi G. Ramesh, J]: It is seen that the plaintiff did not come forward to give evidence before the Court in support of his case rather, the power of attorney holder has entered the witness box and deposed something. In the instant case even as noted and argued by the Learned Counsel for the appellant/plaintiff before purchase of the suit property by the plaintiff he said to have made an enquiry and that the property was free from all encumbrances and then only he entered in to the said sale transaction with defendants 1 to 4. It is seen that if really such an enquiry being made as contended by him he would have been very much aware through the revenue authorities that the property was put in possession of defendant No.5 much prior to the sale deed even as per the mutation entry which is dated 20.6.79 which is one month 10 days prior to the alleged sale deed in favour of the plaintiff. It is the case of the appellant/plaintiff that his possession was parted and given to defendant No.5 by the vendors namely defendants 1 to 4 and also an amount of Rs. 6,000/- was received as earnest money towards the total consideration of Rs.l 0,500/- But, when once the mutation entry is being made in the revenue records and in the place of the name of vendor, the name of defendant No.5 is inducted necessarily, the possession of the property has been transferred in favour of defendant No.5 from defendants 1 to 4 by virtue of the sale agreement. This situation attracts the provisions of 53 A of the Transfer of Property Act. In that view of the matter, both the Courts below have rightly rejected the suit filed by the plaintiff. As such, he is not entitled for declaratory relief moreover, when there is a finding of the Assistant Commissioner that plaintiff is a non-agriculturist and according to the plaintiff his father was an agriculturist, that issue does not arise for consideration. In view of the above discussions, it is to be held that both the Courts below were right in holding that plaintiff is not entitled to purchase the suit land and that title has not passed to him and have rightly rejected the prayer of the plaintiff for declaratory relief.
Cases Referred: AIR 1967 SC 744; AIR 1954 SC 44; (2005) 5 SCC 100; ILR 2005 Kar 729; AIR 1995 SC 1891.
Transfer of Property Act, 1882 - Suit for permanent injunction - Section 53-A -Suit for permanent injunction -Agreement to sell -Defendant put in possession -Revenue entries mutated -Plaintiff purchased property from owner -Held, there is no valid transfer -Plaintiff is not a bona fide purchaser -Relief cannot be granted. [Huluvadi G. Ramesh, J]: It is seen that the plaintiff did not come forward to give evidence before the Court in support of his case rather, the power of attorney holder has entered the witness box and deposed something. In the instant case even as noted and argued by the Learned Counsel for the appellant/plaintiff before purchase of the suit property by the plaintiff he said to have made an enquiry and that the property was free from all encumbrances and then only he entered in to the said sale transaction with defendants 1 to 4. It is seen that if really such an enquiry being made as contended by him he would have been very much aware through the revenue authorities that the property was put in possession of defendant No.5 much prior to the sale deed even as per the mutation entry which is dated 20.6.79 which is one month 10 days prior to the alleged sale deed in favour of the plaintiff. It is the case of the appellant/plaintiff that his possession was parted and given to defendant No.5 by the vendors namely defendants 1 to 4 and also an amount of Rs. 6,000/- was received as earnest money towards the total consideration of Rs.10,500/- But, when once the mutation entry is being made in the revenue records and in the place of the name of vendor, the name of defendant No.5 is inducted necessarily, the possession of the property has been transferred in favour of defendant No.5 from defendants 1 to 4 by virtue of the sale agreement. This situation attracts the provisions of 53 A of the Transfer of Property Act. In that view of the matter, both the Courts below have rightly rejected the suit filed by the plaintiff. As such, he is not entitled for declaratory relief moreover, when there is a finding of the Assistant Commissioner that plaintiff is a non-agriculturist and according to the plaintiff his father was an agriculturist, that issue does not arise for consideration. In view of the above discussions, it is to be held that both the Courts below were right in holding that plaintiff is not entitled to purchase the suit land and that title has not passed to him and have rightly rejected the prayer of the plaintiff for declaratory relief.
TRANSFER OF PROPERTY ACT, 1882 - Transfer - Section 5 -Transfer -Agreement to sell -Defendant put in possession -Revenue entries mutated -Plaintiff purchased property from owner -Held, there is no valid transfer. [Huluvadi G. Ramesh, J]: It is seen that the plaintiff did not come forward to give evidence before the Court in support of his case rather, the power of attorney holder has entered the witness box and deposed something. In the instant case even as noted and argued by the Learned Counsel for the appellant/plaintiff before purchase of the suit property by the plaintiff he said to have made an enquiry and that the property was free from all encumbrances and then only he entered in to the said sale transaction with defendants 1 to 4. It is seen that if really such an enquiry being made as contended by him he would have been very much aware through the revenue authorities that the property was put in possession of defendant No.5 much prior to the sale deed even as per the mutation entry which is dated 20.6.79 which is one month 10 days prior to the alleged sale deed in favour of the plaintiff. It is the case of the appellant/plaintiff that his possession was parted and given to defendant No.5 by the vendors namely defendants 1 to 4 and also an amount of Rs. 6,000/- was received as earnest money towards the total consideration of Rs.10,500/- But, when once the mutation entry is being made in the revenue records and in the place of the name of vendor, the name of defendant No.5 is inducted necessarily, the possession of the property has been transferred in favour of defendant No.5 from defendants 1 to 4 by virtue of the sale agreement. This situation attracts the provisions of 53 A of the Transfer of Property Act. In that view of the matter, both the Courts below have rightly rejected the suit filed by the plaintiff. As such, he is not entitled for declaratory relief moreover, when there is a finding of the Assistant Commissioner that plaintiff is a non-agriculturist and according to the plaintiff his father was an agriculturist, that issue does not arise for consideration. In view of the above discussions, it is to be held that both the Courts below were right in holding that plaintiff is not entitled to purchase the suit land and that title has not passed to him and have rightly rejected the prayer of the plaintiff for declaratory relief.
KARNATAKA LAND REVENUE ACT, 1964 - Presumption under - Section 133 -Presumption under -Agreement to sell -Defendant put into possession -Revenue records mutated accordingly -As a consequence, possession of property got transferred in favour of defendant. See, Transfer of Property Act, 1882 -Section 53-A.
Cases Referred: AIR 1967 SC 744; AIR 1954 SC 44; (2005) 5 SCC 100; ILR 2005 Kar 729; AIR 1995 SC 1891.
This second appeal is by the plaintiff being aggrieved by the judgment and decree passed by the II Additional District Judge, Bijapur in R.A. No.7 of 1988, wherein the learned District Judge has dismissed the appeal filed by the plaintiff and confirmed the judgment and decree passed by the Additional Civil Judge, Bijapur in O.S. No. 169 of 1983.
2. The plaintiff had filed a suit to declare that the defendant 5 has not acquired any right, title or interest in the alleged sale deed dated 10-5-1982 executed by defendants 1 to 4 and also to issue permanent injunction restraining the defendant 5 from interfering with the peaceful possession and enjoyment of the suit land by the plaintiff and to order for delivery of possession if the Court finds that the plaintiff is not in possession or lost the possession of the suit land. The plaintiff said to have purchased the suit schedule property from defendants 1 to 4 for a valuable consideration of Rs. 10,000/- under a sale deed dated 30-7-1979 which is to the extent of 3 acres 10 guntas situated at Tadalagi Village, Basavana Bagewadi Taluk. It is stated that immediately after the sale deed the title of the suit property passed to the plaintiff and the possession was also given and he started cultivating the property and that subsequently, defendants 1 to 4 without the knowledge of the plaintiff have executed the sale deed dated 10-5-1982 in favour of defendant 5 in respect of the same property for a sale consideration of Rs. 10,500/-. Hence, the suit. The said suit was resisted by defendant 5 stating that there is a sale agreement by defendants 1 to 4 in his favour and he has also paid Rs. 6,000/- as earnest money and an agreement of sale was entered into between him and defendants 1 to 4 on 17-5-1979 and also thereafter there is a mutation entry effected subsequent to the delivery of possession in his favour in M.E. No. 1120 and he is in possession and enjoyment of the same and the alleged sale in favour of the plaintiff is void and not binding on him and also that plaintiff is a Government employee working as a police and in the proceedings before the Assistant Commissioner there is a finding that the plaintiff is a non-agriculturist and he is prohibited from purchasing agricultural land against which, no appeal was preferred. Whereas he has purchased the property from the original vendor, as such, he is in possession and enjoyment and the suit is filed by the plaintiff is only to harass him. Based on the pleadings as many as 7 issues were framed. Thereafter, after the evidence was let in and after hearing the parties, the suit filed by the plaintiff was dismissed by the Additional Civil Judge, Bijapur in O.S. No. 169 of 1983. Thereafter, an appeal was preferred before the II Additional District Judge, Bijapur in RA. No.7 of 1988 by the plaintiff and that also came to be dismissed while confirming the judgment and decree passed by the Additional Civil Judge, Bijapur. Being aggrieved by the same, this second appeal has been preferred by the plaintiff. Originally this appeal filed by the plaintiff was disposed of by this Court on 7-9-1998 by allowing the appeal against which, the defendant 5 preferred Civil Appeal No. 1539 of 1999 before the Apex Court wherein, the order passed in this second appeal by Sri T.N. Vallinayagam, J. was set aside by the Apex Court on the ground that no substantial questions of law were raised for consideration and remitted the matter back to this Court to dispose of the matter after formulating the substantial questions of law that arises for consideration. After remand, this Court on 7-7-2005 has raised the following substantial questions of law for consideration:
1. Whether the lower appellate Court was right in holding that the plaintiff was not entitled to purchase the suit land and the title has not passed to him?
2. Whether both the Courts below were right in rejecting the prayer of the plaintiff for declaratory relief?
3. Whether the agreement
