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2019 Supreme(Kar) 1902
IN THE HIGH COURT OF KARNATAKA
K.S. Mudagal, J.
Parvathamma — Appellant
Vs.
B Subramanya Sharma — Respondent
Regular Second Appeal No. 1655 of 2018
Decided On : 09-07-2019
Advocate Appeared:
Vijaya Kumar K, Adv., Shivakumar S. Gogi, Adv.
Point of Law: Section 54 of Transfer of Property Act, 1882 deals with ''Sale''. It clearly states that contract for the sale of immovable property itself does not create any interest or charge in the property. Therefore, agreement of sale does not amount to alienation.
Headnote:
Limitation Act, 1963 - Article 54 - Code of Civil Procedure, 1908 - Section 100 - Specific Relief Act, 1963 - Section 20 - Transfer of Property Act, 1882 - Section 54 - Suit for specific performance of agreement of sale - Sale of immovable property - Agreement of sale with plaintiff agreeing to sell property for consideration executed agreement received advance consideration - Land was granted terms of agreement, sale deed was to be executed after expiry of non alienation period stipulated grant order received further consideration executed supplemental agreement of sale as put plaintiff in possession of property - Defendants filed complaint before police which was registered as Crime On period of 15 years for alienation expired was not found till defendant Nos.1 to 3 executed supplementary agreement as per Ex.P3 assuring was not traced within seven years his missing, they would execute the sale deed - Plaintiff got issued legal notice calling upon the defendants to execute sale deed - Defendants neither complied with the notice nor replied to said notice
Finding of the court: Court findings of Courts execution agreements of sale and supplemental agreements was proved last agreement stated defendant Nos.1 to 3 will execute agreement of sale soon after returns home and in case he did not return, within seven years missing - Learned Counsel for appellants submits that death certificate shows suit ought to have been filed within three years from the date of death - learned Counsel for respondents submits that Ex.D1 was produced for first time before the Court plaintiff got the knowledge of death was produced before the Court - Whereas suit was filed itself - No evidence was adduced to show that the alleged death was within the knowledge of the plaintiff - It was contended PW.1 has admitted in his cross-examination about death - Ex.P4 notice was served on defendants, but they did not issue any reply to said notice intimating about death plaintiff - Article 54 of the Limitation Act, 1963, time started to run with effect Suit was filed - Trial Court decreed the suit and First Appellate Court on re-appreciating the evidence dismissed the appeal - Matter does not fall into any of norms laid down by Supreme Court case referred to supra - Court does not find any substantial question of law in this case
Result: Appeal is dismissed
JUDGMENT :
K S Mudagal, J.
This regular second appeal of defendants arises out of judgment and decree dated 15.06.2018 passed by the Senior Civil Judge, Somwarpet in R.A.No.1/2017. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the appellants and confirmed the judgment and decree dated 30.11.2016 passed by the Principal Civil Judge and JMFC, Somwarpet in O.S.No.92/2011. By the said judgment, the trial Court had decreed the suit of the present respondents for specific performance of agreement of sale.
2. Appellants were defendant Nos.1 to 7 in O.S.No.92/2011. That suit was filed by one B.Subramanya Sharma. He died when the matter was pending before the First Appellate Court. Respondents are legal representatives of said Subramanya Sharma. For the purpose of convenience, henceforth the parties will be referred to by their ranks before the trial Court.
3. The subject matter of the suit was land bearing Survey No.36:1(B)(2) which was renumbered as Kula No.180/A, Survey No.62/2(B) of Nagrooru Village, Somwarpet Taluk. The said property was granted to S.Basappa under Ex.P20 under the Karnataka Land Grant Rules, 1969 ('the Rules' for short).
4. The case of the plaintiff in brief is as follows :
S.Basappa entered into agreement of sale with the plaintiff on 22.12.1999 agreeing to sell the property for consideration of Rs.3,00,000/-, and executed the agreement. Basappa received Rs.1,50,000/- as advance consideration. Land was granted to Basappa on 25.10.1989. As per the terms of agreement, sale deed was to be executed after expiry of non alienation period stipulated under Ex.P20 the grant order. On 25.11.2000, S.Basappa, received further consideration of Rs.1,50,000/- and executed supplemental agreement of sale as per Ex.P2 and put the plaintiff in possession of the property. On 17.12.2002, S.Basappa went missing. On 10.04.2003, defendants filed complaint before Shanivarsanthe police which was registered as Crime No.26/2003. On 25.11.2004, prohibitory period of 15 years for alienation expired. S.Basappa was not found till 16.02.2005. Therefore, on 16.02.2005, defendant Nos.1 to 3 executed supplementary agreement as per Ex.P3 assuring that if S.Basappa was not traced within seven years from the date of his missing, they would execute the sale deed. The said period of seven years expired on 18.12.2009. Defendants did not execute the sale deed. Therefore, plaintiff got issued legal notice on 26.07.2011 calling upon the defendants to execute the sale deed. Defendants neither complied with the notice nor replied to the said notice. Thus, they sought specific performance of contract of sale.
5. The gist of written statement of defendants was as follows :
Execution of agreement of sale by S.Basappa or themselves was denied. All legal heirs of S.Basappa were not made parties to the suit. The suit was bad for non-joinder of necessary parties. Agreements of sale set up by plaintiff were fabricated. Receipt of consideration of Rs.3,00,000/- was denied. Said agreement of sale was hit by Rule 9 of the Rules. Suit was barred by time. Therefore, the suit shall be dismissed.
6. Having regard to the plea of non-joinder of necessary parties, plaintiff impleaded defendant Nos.4 to 7 other heirs of Basappa. Defendant No.7 filed separate written statement adopting the written statement of defendant Nos.1 to 3. Defendant Nos.4 to 6 adopted the written statement of defendant No.7.
7. On the basis of such pleadings, the trial Court framed the following issues and additional issues:
1. Whether the plaintiff proves that the father of the 2nd and 3rd defendant and husband of the 1st defendant by name Basappa has entered into an agreement to sell the suit schedule property on 22.12.1999 for a total sale consideration of Rs.3,00,000/- as contended?
2. Whether the plaintiff further proves that as on the date of Sale agreement the said Basappa has received a sum of Rs.1,50,000/- as part of sale consideration and the defendants herein has
