Shivacharada Shivananjappa vs S S Raghavendra on 23 February, 2024

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Karnataka High Court

Shivacharada Shivananjappa vs S S Raghavendra on 23 February, 2024

Author: H.P. Sandesh

Bench: H.P. Sandesh

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF FEBRUARY, 2024

                         BEFORE

          THE HON'BLE MR. JUSTICE H.P. SANDESH

               R.S.A. NO.443/2008 (PAR)
                          C/W.
               R.S.A. NO.444/2008 (PAR)

IN R.S.A. NO.443/2008:

BETWEEN:

1.   SHIVACHARADA SHIVANANJAPPA
     S/O LATE SUBRAYAPPA
     AGED ABOUT 58 YEARS,

2.   SHIVACHARADA SRIKANTAPPA
     S/O LATE SUBRAYAPPA
     AGED ABOUT 46 YEARS,

3.   SHIVACHARADA NANDAKUMAR
     S/O SUBBAIAH
     AGED ABOUT 45 YEARS,

4.   SHIVACHADRADA NANJAMMA
     D/O SUBBAIAH
     AGED ABOUT 70 YEARS,

     ALL THE ABOVE APPELLANTS ARE
     R/O BALALE VILLAGE AND HOBLI,
     PONNAMPET NAD,
     VIRAJPET TALUK, KODAGU.
                              2



5.     SMT. PARVATHAMMA
       W/O SHIVANNA
       AGED ABOUT 57 YEARS,
       R/O BANNIKUPPE VILLAGE AND POST,
       HUNSUR TALUK.

6.     SMT. KAMALA
       AGED ABOUT 50 YEARS,
       R/AT KANATESUGADA VILLAGE AND POST,
       PERIAPATNA TALUK,
       MYSORE DISTRICT.
                                         ... APPELLANTS

          [BY SRI K.CHANDRANATH ARIGA, ADVOCATE]
AND:

1.       S.S. RAGHAVENDRA
         S/O LATE SANNAPPA
         AGED ABOUT 58 YEARS,

2.       S.S. VEERAPPA
         AGED ABOUT 68 YEARS,
         SINCE DECEASED BY HIS LRS

2(a)     SMT. KAMALAMMA
         W/O LATE S.S. VEERAPPA
         AGED ABOUT 65 YEARS,

2(b)     SMT. SACHITRA
         D/O LATE S.S. VEERAPPAA
         AGED ABOUT 38 YEARS,

2(c)     SMT. PAVITHRA
         D/O LATE S.S. VEERAPPAA
         AGED ABOUT 34 YEARS,
                               3



2(d)      SRI SUNIL
          S/O LATE S.S. VEERAPPAA
          AGED ABOUT 30 YEARS,

2(e)      SRI ANIL
          S/O LATE S.S. VEERAPPAA
          AGED ABOUT 28 YEARS,

          ALL ARE RESIDENTS OF
          BILIKERE VILLAGE, BILIKERE
          HUNSUR TALUK, MYSORE DISTRICT .

3.        SMT. SAVITHRAMMA
          SINCE DECEASED BY HER LRSS

3(a)      RAVIKUMAR
          S/O LATE MAHADEVAPPA
          AGED ABOUT 4O YEARS,
          R/AT HITTINABAGILU
          VILLAGE AND POST
          SERICULTURAL ASST.
          PERIYAPATTANA,
          MYSORE DISTRICT.

          SINCE DECEASED BY LRS.
3(a)(1)
          SMT.SUDHA
          W/O LATE S.M.RAVIKUMAR
          AGED ABOUT 50 YEARS

3(a)(2) YESHUKUMAR R
        S/O LATE S.M.RAVIKUMAR
        AGED ABOUT 50 YEARS

3(a)(3) R. ASHWINI
        S/O LATE S.M.RAVIKUMAR
        AGED ABOUT 22 YEARS
                             4



       ALL ARE R/AT BILIKERE VILLAGE & POST
       MYSORE HUNSUR MAIN ROAD
       HUNSUR TALUK, MYSORE DISTRICT
       KARNATAKA STATE.

3(b)   SMT. KUMARI
       W/O SOMASHEKERA
       AGED MAJOR,
       R/AT CHIKKAHOSUR VILLAGE,
       KUSHALNAGAR POST
       SOMWARPET TALUK
       KODAGU DISTRICT.


3(c)   SMT. RENU @ SHANTHI
       W/O CHANABASAPPA
       AGE: MAJOR,
       R/AT ELEVALA VILLAGE AND POST
       MYSORE DISTRICT.

4.     H.S. ROOPA
       W/O JAGADEESH
       AGED ABOUT 32 YEARS,
       R/AT HITTINABAGILU VILLAGE,
       PERIAPATNA.

5.     H.S. MANJULA
       D/O SANNAMALLAPPA
       AGED ABOUT 31 YEARS,
       R/AT HOSAHALLI ARENAHALLI
       PERIAPATNA TALUK.

6.     H.T. SANNAMALLAPPA
       S/O LATE THAMMAIAH
       AGED ABOUT 60 YEARS,
       R/AT HOSAHALLI ARENAHALLI,
       PERIAPATNA TALUK.
                               5



7.     S.M.CHANDRASHEKAR
       S/O LATE MALLAPPA
       AGED ABOUT 40 YEARS
       R/AT BALALE VILLAGE & HOBLI
       PONNAMPET NAD,
       VIRAJPET TALUK, KODAGU.

8.     S.M.PRAKASH
       S/O LATE MALLAPPA
       AGED ABOUT 35 YEARS

       SINCE DECEASED BY LRS.

8(a)   SMT. RAJAMANI
       W/O LATE S.M.PRAKASH
       AGED ABOUT 54 YEARS
       R/AT AVARTHI VILLAGE
       KOPPA POST
       PIRIYAPATTANA TALUK
       MYSORE-571234.

8(b)   SMT. S.P.AMBIKA
       D/O LATE S.M.PRAKASH
       AGED ABOUT 34 YEARS
       R/AT BEERANAHALLI VILLAGE
       HONNENAHALLI POST
       HANAGUD HOBLI,
       HUNSUR TALUK
       MYSORE DISTRICT.

8(c)   SRI S.P.MALLIKA
       S/O LATE S.M.PRAKASH
       AGED ABOUT 33 YEARS
       R/AT AVARTHI VILLAGE
       KOPPA POST,
       PIRIYAPATTANA TALUK
       MYSORE-571234.
                               6



8(d)   SRI S.P. ASHOKA
       S/O LATE S.M.PRAKASH
       AGED ABOUT 31 YEARS
       R/AT AVARTHI VILLAGE
       KOPPA POST,
       PIRIYAPATTANA TALUK
       MYSORE-571234.
                                        ... RESPONDENTS

  [BY SRI PRAKASH M.H., ADVOCATE FOR R1 & R2 (a to e);
SRI VENKATESH R. BHAGAT, ADVOCATE FOR R3(b) & R4 - R6;
              VIDE ORDER DATED 21.03.2014
         R2 (b - d) TREATED AS LRS OF R2 (a & e);
                 R8(a), R8(b), R(c), R8(d),
         R3(a)(1), R3(a)(2), R3(a)(3) ARE SERVED;
              VIDE ORDER DATED 20.02.2018,
                APPEAL AGAINST R7 ABATED;
              VIDE ORDER DATED 27.10.2023,
              APPEAL AGAINST R3(c) ABATES]

     THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 20.11.2007 PASSED IN
R.A.NO.05/1997 ON THE FILE OF THE AD-HOC DISTRICT JUDGE,
FAST TRACK COURT, VIRAJPET, ALLOWING THE APPEAL FILED
AGAINST THE JUDGEMENT AND DECREE DATED 24.02.1997
PASSED IN O.S.NO.6/1994 ON THE FILE OF THE CIVIL JUDE,
VIRAJPET.

IN R.S.A. NO.444/2008:

BETWEEN:

1 . SHIVACHADRADA SHIVANANJAPPA
    AGED ABOUT 58 YEARS

2 . SHIVACHARADA SRIKANTAPPA
    AGED ABOUT 46 YEARS
    BOTH S/O LATE SUBRAYAPPA
                              7




       BOTH R/O BALALE VILLAGE
       AND HOBLI, PONNAMPET NAD,
       VIRAJPET TALUK, KODAGU.
                                           ... APPELLANTS

           (BY SRI K.CHANDRANATH ARIGA, ADVOCATE)
AND:

1.       S.S. VEERAPPA
         AGED ABOUT 68 YEARS,
         SINCE DECEASED BY HIS LRS

1(a)     SMT. KAMALAMMA
         W/O LATE S.S. VEERAPPA
         AGED ABOUT 65 YEARS,

1(b)     SMT. SACHITRA
         D/O LATE S.S. VEERAPPAA
         AGED ABOUT 38 YEARS,

1(c)     SMT. PAVITHRA
         D/O LATE S.S. VEERAPPAA
         AGED ABOUT 34 YEARS,


1(d)     SRI SUNIL
         S/O LATE S.S. VEERAPPAA
         AGED ABOUT 30 YEARS,

1(e)     SRI ANIL
         S/O LATE S.S. VEERAPPAA
         AGED ABOUT 28 YEARS,

         ALL ARE RESIDENTS OF
         BILIKERE VILLAGE, BILIKERE
         HUNSUR TALUK, MYSORE DISTRICT .
                              8



2.     S.S.RAGHVENDRA
       S/O LATE SANNAPPA
       AGED ABOUT 58 YEARS

3.     SMT. SAVITHRAMMA
       SINCE DECEASED BY HER LRSS

3(a)   RAVIKUMAR
       S/O LATE MAHADEVAPPA
       AGED ABOUT 4O YEARS,
       R/AT HITTINABAGILU
       VILLAGE AND POST
       SERICULTURAL ASST.
       PERIAPATNA,
       MYSORE DISTRICT.

       SINCE DECEASED BY LRS.

3(a)(1) SMT.SUDHA
        W/O LATE S.M.RAVIKUMAR
        AGED ABOUT 50 YEARS

3(a)(2) YESHUKUMAR R.
        S/O LATE S.M.RAVIKUMAR
        AGED ABOUT 50 YEARS

3(a)(3) R. ASHWINI
        S/O LATE S.M.RAVIKUMAR
        AGED ABOUT 22 YEARS

       ALL ARE R/AT BILIKERE VILLAGE & POST
       MYSORE HUNSUR MAIN ROAD
       HUNSUR TALUK, MYSORE DISTRICT
       KARNATAKA STATE.

3(b)   SMT. KUMARI
       W/O SOMASHEKERA
       AGE: MAJOR,
                              9



       R/AT CHIKKAHOSUR VILLAGE,
       KUSHALNAGAR POST
       SOMWARPET TALUK
       KODAGU DISTRICT.

3(c)   SMT. RENU @ SHANTHI
       W/O CHANABASAPPA
       AGED MAJOR,
       R/AT ELEVALA VILLAGE AND POST
       MYSORE DISTRICT.

4.     SRI SANNAMALLAPPA
       AGED ABOUT 62 YEARS

5.     H.S. MANJULA
       D/O SANNAMALLAPPA
       AGED ABOUT 36 YEARS,
       R/AT HOSAHALLI ARENAHALLI
       PERIAPATNA TALUK.

6.     H.S.ROOPA
       D/O SANNAMALLAPPA
       AGED ABOUT 33 YEARS

       ALL R/O. HOSAHALLI VILLAGE
       REVENDUR HOBLI
       PERIYAPATNA TALUK
       MYSORE DISTRICT.

7.     N.K.LAXMANA
       S/O LATE KUTTAPPA
       AGED ABOUT 51 YEARS

       SINCE DECEASED BY HIS LRS

7(a)   SMT.UMAVATHI LAKSHMAN
       W/O LATE LAKSHMANNA
       AGED ABOUT 43 YEARS
                           10



7(b)   KUTTAPPA LAKSHMAN
       S/O LATE LAKSHMANNA
       AGED ABOUT 18 YEARS

7(c)   MASTER BIDDAPPA LAKSHMANNA
       S/O LATE LAKSHMANNA
       AGED ABOUT 16 YEARS
       REPRESENTED BY HIS
       NATURAL GUARDIAN
       UMAVATHI LAKSHMAN

       ALL ARE R/AT AMATHI POST
       BILAGUNDA VILLAGE, MUNDONI
       VIRAJPET TALUK, KODAGU DISTRICT.

8.     N.K.POOVAIAH
       S/O LATE KUTTAPPA
       AGED ABOUT 53 YEARS

       SINCE DECEASED BY HIS LRS

8(a)   SMT. KAVERAMMA POOVAIAH
       W/O LATE POOVAIAH
       AGED ABOUT 52 YEARS

8(b)   SMT. INDIRA POOVAIAH
       LATE POOVAIAH
       AGED ABOUT 29 YEARS

8(c)   SMT. SUBHA POOVAIAH
       S/O LATE POOVAIAH
       AGED ABOUT 27 YEARS

       ALL ARE R/AT AMATHI POST
       BILAGUNDA VILLAGE, MUNDONI
       VIRAJPET TALUK, KODAGU DISTRICT.
                              11



9.      NELLAMAKKADA SUBRAMANI
        S/O LATE KUTTAPPA
        AGED ABOUT 54 YEARS

        SINCE DECEASED BY HIS LRS

9(a)    SMT.PRABHA SUBRAMANI
        W/O LATE NELLAMAKKADA SUBRAMANI
        AGED ABOUT 58 YEARS

9(b)    SMT. KAVANA SUBRAMANI
        S/O LATE NELLAMAKKADA SUBRAMANI
        AGED ABOUT 26 YEARS

        BOTH ARE R/AT AMATHI POST
        BILAGUNDA VILLAGE, MUNDONI
        VIRAJPET TALUK, KODAGU DISTRICT.

10 .    N.K.SHARADHA
        D/O LATE KUTTAPPA
        AGED MAJOR
        R/AT KAIKAD VILLAGE
        PARANE POST, KODAGU.
                                           ... RESPONDENTS

       (BY SRI VENKATESH R. BHAGAT, ADVOCATE FOR R2,
                  R3(a)(2), R3(b & c) & R4 - R6;
       SRI PRAKASH M.H., ADVOCATE FOR R1(a to e) & R2;
                 VIDE ORDER DATED 21.03.2014,
             R1(a & e) DECEASED & R1(b to d) LRS OF
                      DECEASED R1(a & e);
                  R3(a)(1), R3(a)(3) - SERVED;
       R7(c) IS MINOR, REPRESENTED BY GUARDIAN R7(a);
                R7(a), R7(b), R8(a), R8(b), R8(c),
                   R9(a), R9(b) & R10-SERVED]
                                   12



      THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 20.11.2007 PASSED IN
R.A.NO.6/1997 ON THE FILE OF THE AD-HOC DISTRICT JUDGE,
FAST TRACK COURT, VIRAJPET, PARTLY ALLOWING THE APPEAL
FILED AGAINST THE JUDGEMENT AND DECREE DATED
24.02.1997 PASSED IN OS.NO.14/1994 ON THE FILE OF THE
CIVIL JUDGE VIRAJPET.

    THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 12.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                             JUDGMENT

Heard the learned counsel for the appellants and learned

counsels for the respondents in both the appeals.

2. The factual matrix of the case of the

appellants/plaintiffs in R.S.A.No.443/2008 arising out of

O.S.No.6/1994 which was filed for the relief of partition,

separate possession and declaration of their half share in the suit

schedule properties, mesne profits and other relief is that the

plaintiffs and defendants belong to same family. The plaintiffs’

ancestor is one Earegowda, S/o.Channabasappa Gowda and he

had got two wives, one Boramma and second one is Puttamma.

Boramma had got two sons, Subbaiah and Puttaswamy and

Puttamma has got only son by name Erappa. Now Subbaiah and
13

Puttaswamy, sons of Boramma are no more. The children of

Subbaiah and Puttaswamy are defendant Nos.1 to 4. Erappa,

S/o. Puttamma is also no more. Raghavendra and Earappa are

plaintiff Nos.1 and 2, Savithramma, Roopa, Manjula,

Sannamallappa are added as plaintiffs. The defendant No.1-

Shivananjappa is also no more and his legal representatives are

brought on record.

3. It is contended in the plaint that one Earappa,

propositus has got two wives by name Boramma and Puttamma.

Boramma’s sons Subbaiah and Puttaswamy and Puttamma’s son

Earappa are the only heirs. During the life time of deceased

Earappa, the properties were in tact and they have not been

partitioned by metes and bounds. The defendant No.1 instituted

suit in O.S.No.138/1982 for declaration and permanent

injunction and the said suit was compromised on 30.07.1983.

The defendant No.1 agreed to purchase the said properties for

Rs.1,08,000/- towards the share of the plaintiffs. On

06.06.1983, the defendant with the aid of the police forced the

plaintiff No.1 to sell his share in the schedule property for
14

Rs.85,000/- even though the consideration was Rs.1,08,000/-

and paid Rs.40,000/- and the remaining amount was agreed to

be paid on or before 30.09.1983 and the plaintiffs are to execute

the sale deed in favour of the defendant No.1. The defendant

No.1 took possession of the properties and not performed their

part of contract and also did not pay the balance amount and got

the sale deed registered. The defendant cannot enforce the

agreement, since it is void and not enforceable. The defendant

is in illegal possession of the schedule properties and they have

enjoyed the usufructs of the land for a period of 2 years after

payment of advance money and as such, the plaintiffs are

entitled for possession of the suit schedule properties, since

there was no partition by metes and bounds.

4. The defendant Nos.1 to 3 filed the written statement

and denied all the contentions of the plaintiffs and denied the

allegation of the plaintiffs that defendant No.1 has not used any

police force or gunda elements and forced the plaintiffs to

execute the agreement of sale. The plaintiffs took Rs.40,000/-

as advance money towards part consideration amount and put
15

defendant Nos.1 and 2 in possession of the property and agreed

to receive balance amount of Rs.45,000/- at the time of

registration of the deed and denied all averments made in the

plaint and the allegation that the defendant No.1 has not acted

upon in terms of the agreement is also baseless. Hence, suit for

the relief of partition is not maintainable.

5. The defendant No.4 filed a memo adopting the

written statement filed by defendant Nos.1 to 3.

6. The defendant Nos.5 and 6 filed the written

statement contending that the suit for partition and separate

possession is not maintainable and contend that the plaintiffs are

not entitled for half share.

7. Based on the pleadings of the parties, the Trial Court

framed the followings issues in O.S.No.6/1994:-

“1. Whether the plaintiffs prove that the suit
properties were the self-acquired properties of
Earegowda?

2. Whether the plaintiffs prove that late
Earegowda had settled half of the suit
properties to Boramma and her children and
16

the other half to Puttamma and her child
Earappa?

3. Whether the plaintiffs prove that they are
entitled to half share in the suit properties?

4. Whether the defendants prove that the
plaintiffs are acquiesced and estopped from
claiming half share in the suit properties for
the reasons stated in Para 6 of their written
statement?

5. Whether the plaintiffs prove that the
agreement of sale dated 06.06.1983 is a void
and unenforceable document?

6. Whether the defendants prove that the suit is
bad for non-joinder of necessary parties?

7. Whether the defendants prove that the suit is
not properly valued and Court fee paid is
insufficient?

8. Whether the defendants prove that the
plaintiffs are not entitled to future mesne
profits?

9. Whether the defendants prove that D1 and D2
have improved the suit properties by making
heavy investments and that they are entitled
to be compensated for said improvements in
case of partition?

17

10. Whether the defendants prove that they are
entitled for compensatory costs as claimed?

11. To what decree or order the parties are
entitled?”.

8. Having considered the material on record, the Trial

Court comes to the conclusion that the properties were the self-

acquired properties of original propositus Earegowda. The Trial

Court also comes to the conclusion that Earegowda had settled

half of the suit schedule properties to Boramma and her children

and other half to Puttamma and her only son, but answered

issue No.3 that the plaintiffs are entitled to 1/3rd share on the

ground that settlement deed is not acted upon and comes to the

conclusion that the plaintiffs are acquiesced and estopped from

claiming half share and that the plaintiffs have not proved that

the agreement of sale is a void one and they have proved that it

is unenforceable and answered issue No.6 as ‘negative’ and issue

No.8 that the plaintiffs are entitled to accounts and not future

mesne profits and answered issue No.9 that though it is proved

that the defendants have improved the suit properties, they are

not entitled for compensation for the said improvements.
18

9. Being aggrieved by the said judgment and decree of

dismissal of suit, an appeal is filed before the First Appellate

Court in R.A.No.5/1997 and the First Appellate Court, having

considered the grounds urged in the appeal memo, modified the

judgment and decree of the Trial Court, in coming to the

conclusion that the plaintiffs are entitled for half share, since the

Trial Court comes to the conclusion that they are entitled for

1/3rd share. Hence, the appeal in R.S.A.No.443/2008 is filed

before this Court.

10. This Court, having considered the grounds urged in

the second appeal, formulated the following substantial question

of law:-

“Whether the First Appellate Court was
justified in modifying the decree of the Trial Court to
the detriment of the appellants, who were the
defendants before the Trial Court and in the absence
of the plaintiffs having preferred any appeal to the
First Appellate Court?”.

11. The factual matrix of the case of the

appellants/plaintiffs in R.S.A.No.444/2008, wherein the plaintiffs

filed the suit before the Trial Court for the relief of specific
19

performance in O.S.No.14/1994 is that Shivananjappa and

Srikantappa, the first and second sons of Subrayappa referred to

in the suit, who are the defendant Nos.1 and 2 in O.S.No.6/1994

are the plaintiff Nos.1 and 2 in O.S.No.14/1994. Veerappa,

plaintiff No.2 in O.S.No.6/1994 is the defendant No.1 in

O.S.No.14/1994. Raghavendra, the plaintiff No.1 in

O.S.No.6/1994 is the defendant No.2 in O.S.No.14/1994. The

legal representatives of Deveeramma, namely Sannamallappa,

Manjula and Roopa are defendant Nos.4 to 6 respectively in

O.S.No.14/1994.

12. The contention of the plaintiffs in O.S.No.14/1994 is

that the suit schedule properties are the family properties and

under an oral family arrangement which was effected about 60

years prior to the suit, the properties were enjoyed separately

and each of the sons of Earegowda was in possession and

enjoyment of 1/3rd portion of the properties and Veerappa and

Raghavendra i.e., defendant Nos.1 and 2 in O.S.No.14/1994

entered into an agreement of sale dated 14.05.1982 with the

defendant No.7-Muthamma and her son, the defendant No.8-
20

Subramani and in that regard, the plaintiffs in O.S.No.14/1994

filed a suit in O.S.No.138/1982 on the file of the Civil Judge,

Madikeri against defendants Veerappa, Raghavendra, Muthamma

and Subramani and during the course of proceedings in

O.S.No.138/1982, there was a panchayath and it was decided in

the panchayath on 20.02.1983 that on payment of a particular

sum of money to defendant Nos.7 and 8, the suit in

O.S.No.138/1982 should be got settled and further Veerappa,

Raghavendra and their sisters should execute an agreement of

sale in favour of the plaintiff-Shivananjappa and Srikantappa in

respect of their 1/3rd share in the suit schedule properties and

accordingly, on 06.06.1983, an agreement of sale was executed

agreeing to sell the properties for Rs.85,000/- and a sum of

Rs.40,000/- is paid in advance and the balance amount is

Rs.45,000/-. It is also contended that, in terms of the

agreement, defendants Veerappa, Raghavendra and their sisters

had to move the authorities concerned for obtaining permission

for alienating the properties under the provisions of the

Karnataka Prevention of Fragmentation and Consolidation of

Holdings Act and further had to obtain income tax clearance
21

certificate and they fail to do and therefore, after the repeal of

the said Act with effect from 02.02.1991, there is absolutely no

impediment for a sale and therefore, they are entitled to a

decree for specific performance. It is contended that they were

always ready and willing to perform their part of the contract.

13. The defendant Nos.1 to 3 appeared and filed their

written statement denying the material averments in the plaint

in O.S.No.14/1994 and contend that the agreement was

executed in the circumstances narrated in the plaint in

O.S.No.14/1994. It is also stated that the suit is barred by time.

It is further contended that there is a prayer for alternative relief

in O.S.No.14/1994 for the refund of the advance amount and for

a decree for a sum of Rs.25,000/- said to be the investments

made by the plaintiffs on the suit schedule properties.

14. The defendant Nos.4, 5 and 6 have filed a memo

stating that they adopt the written statement of defendant Nos.1

to 3.

22

15. The defendant Nos.7 and 8 have filed written

statement and have also set up a counter-claim stating that in

terms of the decision given by the panchayathdars, a subsequent

agreement took place and accordingly, Veerappa, Raghavendra

and others at the time of executing a sale deed in favour of

Shivananjappa and others had to pay a particular sum of money

to defendant Nos.7 and 8 and therefore, they have set up

counter claim for recovery of the said amount. Additional written

statement has been filed by the other defendants after the

counter-claim was set up stating that defendant Nos.7 and 8 are

not entitled to counter-claim and that the counter claim is also

barred by time.

16. Based on the pleadings of the parties, the Trial Court

has framed the following issues in O.S.No.14/1994:-

“1. Whether the plaintiffs prove that the defendant
Nos.1 to 3 and Smt. Deveeramma had
executed the agreement of sale dated
06.06.1983 in their favour in respect of suit
properties?

2. Whether the defendant Nos.1 to 3 prove that
the agreement of sale dated 06.06.1983 was
23

outcome of coercion, misrepresentation and
threat?

3. Whether the plaintiffs prove that they have
been all-along ready and willing to perform
their part of the contract under the agreement
of sale dated 06.06.1983?

4. Whether the plaintiffs prove that they are
entitled to specific performance of the
agreement of sale dated 06.06.1983?

5. Whether the plaintiffs prove, in the alternate
that they are entitled to refund of Rs.40,000/-
from the defendants with interest at 15% p.a.,
as claimed?

6. Whether the plaintiffs prove that they have
effected improvement in the suit properties
and that they are entitled to recover
Rs.25,000/- towards said improvements from
the defendants?

7. Whether the defendant Nos.1 to 3 prove that
the suit is barred by limitation?

8. Whether the defendant Nos.1 to 3 prove that
the suit is bad for non-joinder of necessary
parties as contended in paras 2 and 21 of their
written statement?

9. Whether the defendant Nos.1 to 3 prove that
the suit is not properly valued and Court fee
paid is insufficient?

24

10. To what decree or order the parties are
entitled?”.

17. The Trial Court, considering the material available on

record, answered issue No.1 as ‘affirmative’ that there was a

sale agreement and comes to the conclusion that there was no

coercion, misrepresentation and threat while getting the sale

agreement dated 06.06.1983. The Trial Court, answered issue

No.3 in coming to the conclusion that though the plaintiffs have

proved that they were willing and ready to perform their part of

contract at some earlier part of time, their subsequent readiness

and willingness is not established. The Trial Court answered

issue No.4 as ‘negative’ that the plaintiffs are not entitled for

specific performance and answered issue No.5 as ‘negative’ that

the plaintiffs are not entitled for refund of money. However, the

Trial Court answered issue No.6 in coming to the conclusion that

though it is proved that the plaintiffs have effected

improvements, they are not entitled to recover the same, since

they have used the usufructs. While answering issue No.7, the

Trial Court comes to the conclusion that suit is barred by

limitation and answered issue No.8 as ‘negative’ regarding non-
25

joinder of necessary parties and answered issue No.10 that the

plaintiffs are not entitled for the relief of specific performance.

18. The Trial Court also framed following additional

issues in O.S.No.14/1994:-

“1. Whether defendant Nos.8 and legal
representatives of defendant No.7 are entitled
to the counter-claim?

2. Is the counter-claim barred by time as
contended by the other defendants?”.

The Trial Court answered additional issue Nos.1 and 2

against the defendant Nos.7 and 8 and rejected their counter

claim.

19. Being aggrieved by the judgment and decree of

dismissal of suit, the plaintiffs have also filed an appeal before

the First Appellate Court in R.A.No.6/1997 and the First

Appellate Court, having considered the grounds urged in the

appeal and also on re-appreciation of both oral and documentary

evidence placed on record, allowed the appeal in part and

directed the defendants to pay a sum of Rs.40,000/- to the

plaintiffs within one from the date of the judgment. If they fail
26

to pay the amount within the stipulated period, the defendants

shall pay interest at the rate of 10% p.a. on the said amount.

Being aggrieved by the judgment and decree of granting the

relief of refund of money and not granting the relief of specific

performance, the appeal in R.S.A.No.444/2008 is filed before

this Court.

20. This Court, having considered the grounds urged in

the appeal in R.S.A.No.444/2008, framed the following

substantial questions of law:-

“i. Whether both the Courts below are justified in
holding that there was readiness and
willingness on behalf of the plaintiff initially
and subsequently, the same did not exist?

ii Whether the Courts below were justified in
dismissing the suit for specific performance?”.

21. Learned counsel appearing for the appellants in

R.S.A.Nos.443/2008 would vehemently contend that in the suit

filed for the relief of partition, the Trial Court only granted 1/3rd

share. But, the First Appellate Court committed an error in

modifying the same as half share in the appeal filed by the

appellants, though no appeal is filed by the plaintiffs in
27

O.S.No.6/1994. The counsel also would vehemently contend that

both the Courts committed an error in not granting the relief of

specific performance in favour of the plaintiffs, who are the

appellants in O.S.No.14/1994 and concurred with the findings of

the Trial Court. The counsel would vehemently contend that the

property originally belongs to Earegowda is not in dispute. The

counsel also would vehemently contend that the plaintiffs in the

suit filed for the relief of partition claimed 1/3rd share and the

Trial Court rightly granted 1/3rd share. But, the First Appellate

Court committed an error in modifying the same as half share.

Hence, the very approach of the First Appellate Court is

erroneous and the same has to be reversed by answering the

substantial question of law framed by this Court.

22. Learned counsel appearing for the appellants in

R.S.A.No.444/2008 would vehemently contend that there is no

dispute with regard to the sale agreement dated 06.06.1983 and

the Trial Court also comes to the conclusion that there was a

sale agreement and the plaintiffs received a sum of Rs.40,000/-

as advance and the Trial Court failed to take note of the fact that
28

Karnataka Prevention of Fragmentation and Consolidation of

Holdings Act was prevailing at the time of entering into an

agreement. The counsel would vehemently contend in his

argument that time is not essence of the contract, but both the

Courts committed an error in coming to the conclusion that time

is the essence of the contract. The discussion made by the Trial

Court in respect of specific performance is erroneous and ought

not to have dismissed the suit for the relief of specific

performance when there is no dispute with regard to the

agreement of sale. The counsel would vehemently contend that

in the cross-examination, it is categorically admitted that money

was available in the bank account. However, the Trial Court

erroneously answered issue No.3 that the plaintiffs were not

ready and the conclusion arrived that they were not ready

subsequently is not correct.

23. Learned counsel for the appellants in both the

appeals in support of his argument, relied upon the genealogical

tree and there is no dispute with regard to the genealogical tree

and the relationship between the parties.

29

24. Learned counsel for the appellants in both the

appeals, in support of his argument, relied upon the judgment of

the Apex Court in ROSHANLAL KUTHALIA AND OTHERS VS.

R.B. MOHAN SINGH OBEROI reported in (1975) 4 SCC 628

and brought to notice of this Court Para No.35, wherein an

observation is made that equity arises largely from the inequity

of a foreign government’s refusal, for reasons we cannot guess,

to carry out the directions of its municipal Courts.

25. The counsel also relied upon the judgment of the

Apex Court in PASUPULETI VENKATESWARLU VS. MOTOR &

GENERAL TRADERS reported in (1975) 1 SCC 770 and

brought to notice of this Court Para No.4, wherein an

observation is made that it is basic to our processual

jurisprudence that the right to relief must be adjudged to exist

as on the date a suitor institutes the legal proceeding. Equally

clear is the principle that procedure is the handmaid and not the

mistress of the judicial process. If a fact, arising after the lis has

come to Court and has a fundamental impact on the right to

relief or the manner of moulding it, is brought diligently to the
30

notice of the Tribunal, it cannot blink at it or be blind to events

which stultify or render inept the decretal remedy. Equity

justifies bending the rules of procedure.

26. The counsel also relied upon the judgment of the

Apex Court in PRAKASH CHANDRA VS. ANGADLAL AND

OTHERS reported in (1979) 4 SCC 393 and brought to notice

of this Court Para No.9, wherein an observation is made that the

ordinary rule is that specific performance should be granted. It

ought to be denied only when equitable considerations point to

its refusal and the circumstances show that damages would

constitute an adequate relief.

27. The counsel also relied upon the judgment of the

Apex Court in KAMMANA SAMBAMURTHY (DEAD) BY LRS.

VS. KALIPATNAPU ATCHUTAMMA (DEAD) AND OTHERS

reported in (2011) 11 SCC 153 and brought to notice of this

Court Para Nos.11, 19, 22 and 27, wherein in Para No.27 it is

held that there is no impediment for enforcement of the

agreement against the vendor to the extent of his half-share in

the property.

31

28. The counsel also relied upon the judgment of the

Apex Court in SHIVAJI YALLAPPA PARTIL VS. RANAJEET

APPASAHEB PATIL AND OTHERS reported in (2018) 16 SCC

725, wherein the Apex Court has discussed with regard to

Section 20 of the Specific Relief Act, 1963 that the discretion to

pass decree for specific performance of contract requires to be

exercised judicially and prudently. The counsel also referred

Para No.19 of the judgment regarding exercise of discretionary

relief. Learned counsel appearing for the appellants referring

these judgments would vehemently contend that both the Courts

failed to take note of the fact that there was an agreement and

there was part payment of money and possession was also

delivered and failed to take note of Section 53-A of the Transfer

of Property Act, 1882.

29. On the other hand, learned counsels appearing for

the respective respondents in both the appeals would

vehemently contend that the respondents have issued paper

publication in the year 1979 and counter publication was also

made by the other side in respect of undivided interest and there
32

is no dispute with regard to the fact that earlier there was an

agreement in the year 1982 in favour of Muthavva and also no

dispute with regard to the fact that suit was settled and fresh

agreement was entered into on 06.06.1983. The counsel would

vehemently contend that in terms of the fresh agreement, the

plaintiffs have not come forward to have the sale deed and both

the Courts have taken note of the said fact into consideration

while rejecting the prayer for specific performance. With regard

to the modification of the share by the First Appellate Court in

the appeal, it is the contention that the plaintiffs were not aware

of the same while seeking the relief of partition and hence, they

claimed 1/3rd share and subsequently, on coming to know about

the settlement deed dated 05.12.1910, prayer was made to

grant half share and the Trial Court committed an error in

coming to the conclusion that the parties have not acted upon in

terms of the settlement deed and when there was a registered

document, though no appeal was filed, the First Appellate Court

considered granting half share and not committed any error.
33

30. The counsel also would vehemently contend that in

terms of the agreement dated 06.06.1983, it is very clear that

transaction should be completed in the end of September, 1983

i.e., 30.09.1983 and before the end of September, 1983, notice

was issued in terms of Ex.P4 i.e., on 27.09.1983 and reply was

given on 30.10.1983 in terms of Ex.P13. A request was also

made to handover the draft sale deed, but the draft sale deed

was not handed over and subsequently, suit was filed in the year

1985 itself seeking the relief of partition and the same is

numbered as O.S.No.88/1985. On transfer, the same was

renumbered as O.S.No.275/1989 and subsequently, the same is

renumbered as O.S.No.6/1994. The counsel would vehemently

contend that when the plaintiffs came to know about the

settlement deed, got amended the same and the Trial Court

committed an error and the First Appellate Court, having

exercised the power under Order 41 Rule 33 of CPC, modified

the same and now, they cannot find fault with the same. The

counsel would submit that the suit for the relief of specific

performance was filed on 20.01.1994 by the plaintiffs and they

have not given any notice, but notice is sent by the respondents.
34

Hence, both the Courts have taken note of the fact that time is

the essence of the contract and the Trial Court rightly comes to

the conclusion that suit is barred by limitation and there was no

need of considering the provisions of Karnataka Prevention of

Fragmentation and Consolidation of Holdings, since the same

was repealed in the year 1991 itself and even after repealing of

the said Act, suit was filed in 1994 and at no point of time, the

plaintiffs were ready to have the sale deed.

31. Learned counsels for the respondents in support of

their argument, relied upon the judgment of the Apex Court in

JUGRAJ SINGH AND ANOTHER VS. LABH SINGH AND

OTHERS reported in AIR 1995 SC 945 and brought to notice of

this Court Para No.5 of the judgment, wherein the Apex Court

has observed that the subsequent purchasers have got only the

right to defend their purchase on the premise that they have no

prior knowledge of the agreement of sale with the plaintiff. They

are bona fide purchasers for valuable consideration. Though

they are necessary parties to the suit, since any decree obtained

by the plaintiff would be binding on the subsequent purchasers,
35

the plea that the plaintiff must always be ready and willing to

perform his part of the contract must be available only to the

vendor or his legal representatives, but not the subsequent

purchasers.

32. The counsel also relied upon the judgment of the

Apex Court in SHRIMANT SHAMRAO SURYAVANSHI AND

ANOTHER VS. PRALHAD BHAIROBA SURYAVANSHI (DEAD)

BY LRS. AND OTHERS reported in AIR 2002 SC 960 and

brought to notice of this Court Para No.14 of the judgment,

wherein the Apex Court has observed that part performance of

contract-defendant-transferee obtained possession over property

in part performance of contract-possession over property is

protected even if period of limitation for bringing suit for specific

performance of an agreement to sell has expired – defendant –

transferee, however, is required to fulfill necessary conditions in

order to defend or protect his possession. That apart, Limitation

Act, does not extinguish defence but only bars the remedy.

33. In reply to the argument of the learned counsel for

the respondents, learned counsel for the appellants would
36

vehemently contend that the judgment of the Apex Court in

SHRIMANT SHAMRAO SURYAVANSHI’s case is not applicable

and condition Nos.5 and 6 of the agreement of sale is very clear

to obtain income tax certificate and the judgments which have

been relied upon by the learned counsel for the respondents will

not come to the aid of the respondents. Hence, prayed the Court

to grant the relief of specific performance.

34. Having heard the learned counsel for the appellants

and learned counsel for the respondents, though the suits and

appeals are clubbed together, this Court has framed the

substantial questions of law independently and hence, the same

have to be answered independently. The substantial question of

law of framed by this Court in R.S.A.No.443/2008 is:

“Whether the First Appellate Court was
justified in modifying the decree of the Trial Court to
the detriment of the appellants, who were the
defendants before the Trial Court and in the absence
of the plaintiffs having preferred any appeal to the
First Appellate Court”.

35. It is not in dispute that suit was filed claiming 1/3rd

share in the suit schedule properties at the first instance and the
37

same was amended thereafter claiming half share. It is also not

in dispute that originally the properties belong to Earegowda. It

is also not in dispute that he had two wives i.e., Boramma and

Puttamma and through first wife, he had two sons i.e., Subbaiah

and Puttaswamy and the second wife had only one son i.e.,

Earappa. It has to be noted that, it is the specific case of the

plaintiffs that in a suit for partition, they are entitled for 1/3rd

share and it has to be noted that settlement deed is also marked

before the Trial Court that a settlement was made by the

propositus of the family Earegowda during his life time and the

same is marked as Ex.P1 dated 05.12.1910.

36. It is the case of the plaintiffs that they came to know

about the same subsequently and hence, got amended the same

thereafter. The fact that settlement deed came into existence on

05.12.1910 is not in dispute. However, the Trial Court comes to

the conclusion that the same is not acted upon and not accepted

the case of the plaintiffs for grant of half share. But, the First

Appellate Court, in the absence of the appeal by the plaintiffs,

proceeded to reconsider the same and reassessed the material
38

available on record and having considered the material on

record, taken note of the settlement deed dated 05.12.1910.

However, the Trial Court, while answering issue Nos.3 and 4,

negated the same, but the First Appellate Court reversed the

findings of the Trial Court and formulated the point in the appeal

whether the settlement deed executed by the propositus of the

family Earegowda is binding on the plaintiffs and defendants and

whether the Trial Court has wrongly answered issue No.2 that

the settlement deed is not acted upon and point No.3 whether

the plaintiffs are entitled for equal share, if so, what is the

quantum of share the plaintiffs and the defendants are entitled

to and all the points for consideration are answered as

‘affirmative’.

37. The First Appellate Court, in Para No.25 of the

judgment discussed the same and taken note of Section 8 of the

Transfer of Property Act which deals with the settlement deed

i.e., the deed which creates right and interest in favour of settlee

regarding the properties mentioned therein with life estate for an

enjoyment during her life time, settlee was to acquire absolute
39

right to enjoyment, alienation etc., and such deed is considered

to be settlement deed and also taken note of contents of Ex.P1

and extracted the same in the very same paragraph and

considering the same, the First Appellate Court comes to the

conclusion that the very original owner i.e., propositus of the

family made it clear in the settlement deed that both the wives

and their children are entitled for share in the suit schedule

properties and taken note of half share and remaining half share

should go to the legal representatives of deceased Subbaiah and

Puttaswamy, who are the children of first wife Boramma and in

Para Nos.28 and 29 of the judgment, discussed the same in

length and hence, the First Appellate Court comes to the

conclusion that settlement deed executed by late Earegowda is

binding on the plaintiffs and the defendants and one cannot go

beyond the intention of settled rights of the parties left by

Earegowda. Simply because it is the fact not brought to the

notice of the legal representatives of late Earegowda, the

document cannot be thrown away and his legal representatives,

cannot interpret the document according to their convenience,

since late Earegowda acquired these properties shown in Ex.P1
40

out of his own earnings and settled the rights of the parties.

Having taken note of the registered document of the year

05.10.1910 which is marked as Ex.P1, the First Appellate Court

given more credence to the documentary evidence rather than

oral evidence.

38. Having perused the reasoning given by the First

Appellate Court and also discussion made with regard to both

question of fact and question of law, the First Appellate Court

rightly comes to the conclusion that the share can be modified as

half share instead of 1/3rd share and in the absence of the

appeal by the plaintiffs, the Court can modify the share by

exercising the power under Order 41 Rule 33 of CPC. Hence, I

do not find any error committed by the First Appellate Court in

modifying the same. Therefore, the substantial question of law

framed by this Court is answered accordingly that the First

Appellate Court has not committed any error in exercising its

statutory power in appeal under Section 96 of CPC and under

Order 41 Rule 33 of CPC.

41

39. Now, this Court has to consider the material

available on record with regard to the substantial questions of

law framed by this Court in R.S.A.No.444/2008 which reads as

hereunder:

“i. Whether both the Courts below are justified in
holding that there was readiness and
willingness on behalf of the plaintiff initially
and subsequently, the same did not exist?

ii Whether the Courts below were justified in
dismissing the suit for specific performance?”.

40. The substantial questions of law framed by this Court

is with regard to readiness and willingness of the plaintiffs while

seeking the relief of specific performance. The First Appellate

Court in R.A.No.6/1997 formulated the point whether the Trial

Court committed an error in not granting the relief of specific

performance. The First Appellate Court having considered

whether the defendants have proved that they are entitled for

protection under 53-A of Transfer of Property Act and discussed

the same in Para No.34 of the judgment and so also taken note

of point No.3 with regard to the limitation which was answered in

the suit i.e., whether the suit is barred by limitation, as the Trial
42

Court held that the suit is barred by limitation and the said

finding is perverse. While answering point Nos.2 and 3, the First

Appellate Court in detail discussed that there was an agreement

of sale in terms of Ex.D1 dated 06.06.1983 and also taken note

of recital in the agreement that sale deed has to be executed on

30.09.1983 and balance amount has to be paid at the time of

execution of registered sale deed.

41. The Trial Court has also taken note of the fact that

suit was filed in the year 1994 and both the Courts have taken

note of the fact that suit ought to have been filed within three

years after 30.09.1983. Learned counsel for the appellants

would vehemently contend that time is not the essence of the

contract and the said contention cannot be accepted, when a

specific date is fixed in the agreement i.e., 30.09.1983. Apart

from that, an amount of Rs.40,000/- was paid and the balance

amount was payable on a particular date and the purpose for

which the properties are sold is also mentioned, wherein it is

also undertaken that they will not interfere with the possession

of the aggrieved purchaser. No doubt, the possession was
43

delivered at the time of entering into an agreement, the fact that

earlier suit was filed in O.S.No.132/1982 and the same was

withdrawn in view of the compromise is not in dispute and

subsequent sale agreement is also entered into which is

discussed in Para Nos.35 and 36 of the judgment of the First

Appellate Court.

42. The First Appellate Court also taken note of issue

No.7, the intention of the parties and also the fact that time is

the essence of the contract and discussed in detail Article 54 of

the Limitation Act and taken note of the fact that, inspite of

earlier suit being filed for the relief of partition in

O.S.No.88/1985, which was renumbered as O.S.No.275/1989

and thereafter renumbered as O.S.No.6/1994 and notices are

also exchanged in the year 1983 itself, the plaintiffs have not

made any efforts to file the suit immediately, though the

defendants demanded the draft sale deed for getting the income

tax clearance and the plaintiffs kept quiet for a longer period and

suit was filed in the year 1994. Hence, both the Courts have

rightly come to the conclusion that the plaintiffs were earlier
44

ready and subsequently, they were not ready to perform their

part of contract, inspite of notices being exchanged. However,

the First Appellate Court though not granted the relief of specific

performance, ordered to refund the amount of Rs.40,000/- with

interest at 10% p.a. in favour of the plaintiffs.

43. It has to be noted that while granting the relief of

specific performance, the plaintiffs should be always ready and

willing to perform their part of contract in compliance of Section

16(c) of Specific Relief Act and the same has not been complied

with. Under the circumstances, the plaintiffs are not entitled for

the relief of specific performance and both the Courts have not

committed any error in not granting the relief of specific

performance. Hence, I do not find any perversity in the findings

of the Trial Court and the First Appellate Court for inaction on

the part of the plaintiffs while seeking the relief of specific

performance and both the Courts have taken note of it. Though

the agreement is of the year 1983, the plaintiffs have filed the

suit in the year 1994 and even though the suit was filed

belatedly and time barred, the First Appellate Court granted the
45

relief of refund of money of Rs.40,000/- with interest at 10%

p.a. Therefore, I do find any grounds to reverse the finding of

the First Appellate Court and I answer the substantial questions

of law accordingly.

44. In view of the discussions made above, I pass the

following:

ORDER

The regular second appeals are dismissed.

Sd/-

JUDGE

ST

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