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2024 Supreme(Online)(KAR) 1229
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2024 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ REGULAR SECOND APPEAL NO. 437 OF 2015 (SP)
C/W REGULAR SECOND APPEAL NO. 436 OF 2015 (SP)
IN RFA NO. 437/2015 BETWEEN:
SRI. KRISHNOJI RAO, S/O VENKOBA RAO, AGED 71 YEARS, R/O NANDIHALLI PALYA, CHELUR HOBLI, GUBBI TQ., TUMKUR DT. - 572 126.
…APPELLANT (BY SRI. M.B. CHANDRACHOODA, ADVOCATE)
AND:
Digitally signed by NARAYANAPPA 1. SRI. VENKOBAI, LAKSHMA MMA W/O LATE RAMA RAO, Location: HIGH AGED ABOUT 75 YEARS, COURT OF KARNATAKA
2. RAJA RAO ALIAS KUMAR, S/O LATE RAMA RAO, AGED ABOUT 50 YEARS, 3. VENKATA RAO, S/O LATE RAMA RAO, AGED 46 YEARS, 4. GANESH RAO, S/O LATE RAMA RAO, AGED 44 YEARS, 5. GOPAL RAO, S/O LATE RAMA RAO, AGED 42 YEARS, 6. ESWAR RAO, S/O LATE RAMA RAO, AGED 35 YEARS, RESPONDENTS 1 TO 6 ARE R/O NANDHIHALLI VILLAGE, CHELUR HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 126.
7. SMT. SAVITHRI BAI, W/O NARAYANA RAO, D/O LATE RAMA RAO, AGED ABOUT 39 YEARS, R/O OIL MILL ROAD, WESTERN EXTENSION, TUMKUR - 572 105.
…RESPONDENTS (BY SRI. B.R. PRABULLINGA MURTHY, ADVOCATE FOR R1 TO R7)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 6.2.2015 PASSED IN R.A.NO.29/2009 ON THE FILE OF SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 22.1.2009 PASSED IN OS.No.98/2004 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.), GUBBI.
IN RSA NO. 436/2015 BETWEEN:
SRI. KRISHNOJI RAO, S/O VENKOBA RAO, AGED 71 YEARS, R/O NANDIHALLI PALYA, CHELUR HOBLI, GUBBI TQ., TUMKUR DT. - 572 126.
…APPELLANT (BY SRI. M.B. CHANDRACHOODA, ADVOCATE)
AND:
1. SRI. VENKOBAI, W/O LATE RAMA RAO, AGED ABOUT 75 YEARS, 2. RAJA RAO ALIAS KUMAR, S/O LATE RAMA RAO, AGED ABOUT 50 YEARS, 3. VENKATA RAO, S/O LATE RAMA RAO, AGED 46 YEARS, 4. GANESH RAO, S/O LATE RAMA RAO, AGED 44 YEARS, 5. GOPAL RAO, S/O LATE RAMA RAO, AGED 42 YEARS, 6. ESWAR RAO, S/O LATE RAMA RAO, AGED 35 YEARS, RESPONDENTS 1 TO 6 ARE R/O NANDHIHALLI VILLAGE, CHELUR HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 126.
7. SMT. SAVITHRI BAI, W/O NARAYANA RAO, D/O LATE RAMA RAO, AGED ABOUT 39 YEARS, R/O OIL MILL ROAD, WESTERN EXTENSION, TUMKUR - 572 105.
…RESPONDENTS (BY SRI. B.R. PRABULLINGA MURTHY, ADVOCATE FOR R1 TO R7)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 6.2.2015 PASSED IN R.A.NO.20/2009 ON THE FILE OF SENIOR CIVIL JUDGE, GUBBI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 22.1.2009 PASSED IN OS.No.98/2004 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.), GUBBI. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant is before this Court seeking for the following reliefs:
"i) Set aside the judgment and decree dated 06.02.2015 passed in RA No.29/2009 in RSA No.437/2015 and RA No.20/2009 in RSA No.436/2015 on the file of Senior Civil Judge at Gubbi, reversing the judgment and decree dated 22.01.2009 passed in O.S.No.98/2004 on the file of Additional Civil Judge (Jr.Dn.), Gubbi.
ii) Grant such other relief/s as deemed fit in the circumstances of the case including the cost of this appeal in the interest of justice."
2. The appellant had filed a suit in O.S.No.98/2004 seeking for specific performance of an agreement dated 20.11.1984 before the Additional Civil Judge (Jr.Dn.), Gubbi. The said suit was partly decreed in terms of grant of order of injunction, but the relief for specific performance was rejected. Challenging the order of injunction, the respondent - vendor had filed RA.No.20/2009 which came to be allowed. It is challenging the said judgment that the RSA.No.436/2015 has been filed.
3. The factual matrix of the matter is that the plaintiff claimed that he had entered into an agreement dated 20.11.1984 for purchase of certain lands owned by the respondents as regards which a consideration of Rs.2000/- had been paid. The suit has been filed on 28.06.2004. The trial court dismissed the same by holding that the agreement itself was contrary to the Karnataka Prevention of Fragmentation and Consolidation Holding Act 1966 (for short 'The Fragmentation Act') and secondly on the ground that there is a delay in filing of the suit, but however granted an order of injunction by holding that the plaintiff was in possession of the property.
4. Insofar as that injunction order is concerned in RA.No.20/2009, the injunction order has also been vacated. Thus, as of now, the appellant has neither succeeded in specific performance nor in the relief for injunction.
5. The contention of Sri M.B.Chandrachooda, learned counsel for the appellant is that the appellant being in possession and having paid consideration of Rs.2000/-, the relief of specific performance cannot be denied in a suit which had been filed post the repeal of The Fragmentation Act.
6. The trial court having appreciated the fact that the agreement was contrary to the Fragmentation act and that the suit was filed in the year 2004, the Fragmentation act having been repealed in the year 1991, the suit having been filed after 13 years after the repeal, in my considered opinion has rightly come to a conclusion that the suit was much delayed and barred by limitation.
7. The Fragmentation act having been repealed on 03.01.1991, the period of limitation would commence from that date and any suit for specific performance ought to have been filed by 02.01.1994. The same not having been done and suit having been filed in the year 2004, 10 years after the expiry of the limitation. No fault can be found with the judgment of the trial court and the first appellate court. There is no substantial question of law which arises in the present matter. The appeal stands dismissed at the stage of admission itself.
