In the High Court of Karnataka, Dharwad Bench
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1 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10 TH DAY OF FEBRUARY 2014 BEFORE THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA RSA No.5587 OF 2009 BETWEEN : SRI.GURUSIDDAPPA S/O BHARMA KADALGI AGED ABOUT 70 YEARS, R/AT JINARAL, TQ:HUKKERI, 591309 DISTA BELGAUM. ... APPELLANT (By Sri. MRUTYUNJAY TATA BANGI, ADV.) AND NINGAPPA MALLAPPA JINAGI, SINCE DECEASED BY LRS 1. SMT.SHIVAKKA W/O MAHADEV KUNTABALE AGED ABOUT 60 YEARS, R/AT GANDHINGLAJ, TQ:GANDHINGLAJ, DIST KOLHAPUR, MAHARASTRA,420410 2. SMT SHOBA W/O ANNAPPA MALI AGED ABOUT 35 YEARS, R/AT BELKUD, TQ:CHIKKODI, 591201 DIST BELGAUM. RACHAPPA MALLAPPA JINAGI SINCE DECEASED BY LRS, 3. SMT. KASHAVVA W/O RACHAPA JINGI AGED ABOUT 54 YEARS, 2 R/AT KABBUR, TQ:CHIKKDOI 591209 DIST BELGAUM. (RESPONDENTS 4 & 5 ARE TREATED AS LEGAL REPRESENTATIVES OF RESPONDENT NO.3 BY ORDER OF THE COURT DTD. 21.10.2013) 4. SMT SUSHILA W/O DUNDAPPA CHIGARITOT AGED ABOUT 32 YEARS, R/AT GOKAK, DIST BELGAUM-591321. 5. SMT SHANTA W/O RACHAPPA JINAGI AGED ABOUT 30 YEARS, R/AT KOLLOL, TQ:GOKAK-591321 DIST BELGAUM. 6. BHARAMA S/O NINGAPPA JINAGI AGED ABOUT 65 YEARS, R/AT KABBUR, TQ CHIKKODI, 591201 DIST BELGAUM 7. SRI SHANKAR S/O NINGAPPA JINAGI AGED ABOUT 60 YEARS, R/AT KABBUR, TQ CHIKKODI, 591201 DIST BELGAUM. 8. SRI APPNNA S/O NINGAPA JINAGI AGED ABOUT 58 YEARS, R/AT KABBUR, TQ CHIKKODI, 591201 DIST BELGAUM 9. SRI MAHADEV S/O RACHAP AJINAGI AGED ABOUT 60 YEARS, R/AT KABBUR, TQ CHIKKODI, 591201 DIST BELGAUM. 10. SRI DUNDAPPA S/O R ACAHPPA JINAGI AGED ABOUT 56 YEARS, R/AT KABBUR, TQ CHIKKODI, 591201 3 DIST BELGAUM. 11. SRI BABU S/O RACHAPPA JINAGI AGED ABOUT 50 YEARS, R/AT KABBUR, TQ CHIKKODI, DIST BELGAUM-591201 12. SRI KALLAPPA S/O RACAHPPA JINAGI AGED ABOUT 46 YEARS, R/AT KABBUR, TQ CHIKKODI, DIST BELGAUM 591201 SRI BALAPA MALAPA JINAGI BY LRS SINCE DECEASED BY HIS LRS, 13. VIMALA BALAPP AJINAGI AGED ABOUT 45 YEARS, R/AT JINARAL, TQ:HUKKERI DIST BELGAUM-591309. 14. SRI LAXMANNA S/O BALAPPA JINAGI AGED ABOUT 39 YEARS, R/AT JINARAL, TQ:HUKKERI DIST BELGAUM-591309 15. SRI KEMPANNA S/O BALAPPA JINAGI AGED ABOUT 38 YEARS R/AT JINARAL, TQ HUKKERI, DIST BELGAUM-591309 16. SRI ANAND S/O BALAPA JINAGI AGED ABOUT 35 YEARS R/AT JINARAL, TQ HUKKERI, DIST BELGAUM-591309 17. SMT KALLAVVA W/O BALAPPA JINAGI AGED ABOUT 65 YEARS R/AT JINARAL, TQ HUKKERI, DIST BELGAUM-591309 4 ... RESPONDENTS (By Sri. HEGDE, NEERALAGI & PATIL, ADVS. FOR R13-R17. R1-R12 ARE SERVED UNREPRESENTED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD: 18/7/2009 PASSED IN R.A.NO:56/2005 ON THE FILE OF THE CIVIL JUDGE (SD), HUKKERI, DISMISSING THE APPEAL, FILED AGAINST THE JUDGEMENT AND DECREE DTD: 19/7/2005 PASSED IN O.S.NO:589/97 ON THE FILE OF THE CIVIL JUDGE(JR.DN), SANKESHWAR, DISMISSING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Being aggrieved by the concurrent judgment in O.S.No.589/1997 and in R.A.No.56/2005, the plaintiff has approached this Court. Respondents herein were the defendants in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking in the trial Court. 2. Plaintiff had filed a suit for the relief of specific performance of the contract before the Court of Civil Judge 5 (Jr.Dn.), Sankeshwar, in O.S.No.589/97. It is the case of the plaintiff that Ningappa and Rachappa i.e., deceased defendants 1 and 2 had agreed to execute a regular sale deed in respect of 33 guntas of land in Sy.No.28/1 of Jinaral Village by means of an agreement of sale dated 09.06.1983 agreeing to sell the entire suit schedule property for a sum of Rs.9,000/- and in this regard had received a sum of Rs.8,900/- as advance. 3. Since the land in question had been granted by the Land Tribunal in their favour vide order dated 31.03.1981 the prohibition period to alienate the property would come to an end only on 30.03.1996 and therefore they were expected to execute a regular sale deed after obtaining permission from the Government. A legal notice was got issued to the vendors to execute a sale deed and in the light of their refusal to execute the sale deed a suit was filed. 6 4. During the pendency of the suit, Ningappa and Rachappa died and hence their legal representatives were brought on record. The case of the plaintiff is that he was ready and willing to perform his part of the contract which the defendants knew. Defendants appeared before the trial Court and filed written statement denying all the material allegations. Apart from pleading that the document itself is a concocted document, more particularly, in the light of certain interpolations. According to them, the suit was specifically barred by time and that the plaintiff was not ready and willing to perform his part of the contract. Suit was also stated to be bad for non-joinder of necessary parties and for want of proper description. 5. Later on, defendant No.10 purchased the suit schedule property prior to the filing of the suit and hence, suit was filed against defendant No.10. In the light of his death, his legal representatives were brought on record as defendant Nos.10(a) to (e). Defendant No.10 had pleaded that he was a bonafide purchaser for value without notice. 7 6. Plaintiff is examined himself as PW1 and two witnesses have been examined on his behalf. Thirteen exhibits have been got marked. In all six witnesses have been examined on behalf of the defendants including the subsequent purchaser. 24 exhibits have been got marked. 7. After hearing the arguments, the learned Civil Judge (Jr.Dn.), Sankeshwar, has answered issues 1 to 4, 8 and 9 in the negative. He has deleted issues 5 and 7. Issue No.6 has been held in the affirmative stating that the suit is barred by time. Additional issue No.1 has been held in the affirmative that subsequent purchaser is a bonafide purchaser for value without notice. 8. Being aggrieved by the said judgment an appeal came to be filed under Section 96 in R.A.No.56/2005 before the Court of Civil Judge (Sr.Dn.), Hukkeri. The learned Civil Judge (Sr.Dn.), Hukkeri, has dismissed the appeal by confirming the judgment of the trial Court. It is these 8 concurrent judgments which are called in question on various grounds as set out in the appeal memo. 9. The legal representatives of the deceased defendant Nos.1 and 2 have taken a specific stand that the document, which is styled as “Agreement of sale” is materially altered. The agreement of sale marked as Ex.P1. In the light of the specific denial of the agreement of sale and in the light of the specific stand that it is materially altered, burden was initially on the plaintiff to prove the same. What is argued before this Court by the learned counsel for the appellant is that, whenever a plea of material alteration is taken by a party to a suit, burden is upon such parties. This Court is unable to accept the said contention for the reason that the allegation of material alternation that Ex.P1 cannot be drawn out of the context and burden cannot be thrown out on a defendant to prove the allegation of material alteration. In the light of specific denial of the agreement of sale marked as Ex.P1, burden was initially upon the plaintiff to vouchsafe the authenticity of the said document. The trial Court as well as 9 the first appellate Court have come to the conclusion that it was incumbent upon the plaintiff to have got Ex.P1 by referring to the hand writing expert to disprove the allegation of interpolation. 10. Both the trial Court and the first appellate Court have come to the conclusion that the suit is specifically barred by time. Plaintiff is a person who has taken the risk of purchasing a property granted to the tenants by the Land Tribunal. Plaintiff knew very well that the defendants herein were not expected to sell the property within the prohibition period of 15 years. When the agreement discloses that the alienation can take place only after obtaining valid permission from the authorities, plaintiff should have called upon them to obtain permission from the competent authority to execute a sale deed at the earliest. The prohibition found in regard to the alienation of tenanted land cannot be considered as a rigorous prohibition as found in the land granted to the members of the Schedule Caste or Scheduled Tribe. 10 11. The material alteration is in regard to the time within which the sale deed should have been executed. As rightly pointed out by the first appellate Court in paragraph 16 that, firstly one year period had been fixed as the time within which the defendants were insisted to execute the sale deed. There is a material interpolation in regard to this period. In the light of the material alternation of this type, it was incumbent upon the plaintiff to have got it referred to a hand writing expert. To this effect, discussions is made by the first appellate Court in paragraph 18 of the impugned judgment relying upon the decision reported in 2008 (4) SCC 530, Thiruvengadam Pillai Vs Navaneethammal and Another .