1

IN THE HIGH COURT OF

CIRCUIT BENCH AT DHARWAD

DATED THIS THE 28 th DAY OF FEBRUARY, 2013

BEFORE

THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA

RFA.1135/05 c/w RFA.1136/05 (S P)

IN RFA.1135/2005:

BETWEEN:

SIDDAPPA, S/O. RAYAPPA SHINGANNAWAR, SINCE DECEASED BY LRS: 1A) SMT.DODDAWWA, W/O SIDDAPPA SHINGANNAWAR, MAJOR, OCC: HOUSEHOLD. R/O GUDAKATTI (SALAHALLI), TQ: RAMADURG, DIST: .

1B) SRI.RAYAPPA, S/O SIDDAPPA SHINGANNAWAR, AGE: 44 YEARS, OCC:AGRICULTURE. R/O GUDAKATTI (SALAHALLI), TQ: RAMADURG, DIST: BELGAUM.

1C) PANDAPPA, S/O SIDDAPPA SHINGANNAWAR, AGE: 40 YEARS, OCC:AGRICULTURE. R/O GUDAKATTI (SALAHALLI), TQ: RAMADURG, DIST: BELGAUM. 2

1D) HANAMANTHA, S/O SIDDAPPA SHINGANNAWAR, AGE:38 YEARS, OCC:AGRICULTURE. R/O GUDAKATTI (SALAHALLI), TQ: RAMADURG, DIST: BELGAUM.

1E) SMT.SHANTAVVA, W/O NAGAPPA WADENAVVAR, AGE:37 YEARS, OCC:HOUSEHOLD. R/O , DIST: BELGAUM.

1F) SATYAVVA, D/O SIDDAPPA SHINGANNAWAR, AGE:35 YEARS, OCC:HOUSEHOLD. R/O GUDAKATTI (SALAHALLI) RQ: RAMADURG, DIST: BELGAUM.

(AMENDMENT CARRIED OUT AS PER THE ORDER DATED 30/1/2012) ... APPELLANTS

(By Sri JAGADISH PATIL, ADV.)

AND:

1. MUDAKAPPA GURUBASAPPA MASKI, MAJOR OCC: AGRICULTURE, R/O GUDAKATTI (SALAHALLI) TQ RAMADURG DIST BELGAUM-591123. ... RESPONDENT

(By Sri A S PATIL, ADV.)

THIS RFA IS FILED U/S 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 21.6.05 3

PASSED IN O.S.NO.152/96 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), , AND ETC.

IN RFA.1136/05:

BETWEEN:

HANAMAPPA CHANDRAPPA TIPPANNAWAR, AGED: ABOUT 55 YEARS OCC: AGRICULTURE. R/O TALUK RAMADURG, DIST BELGAUM. ... APPELLANT

(By Sri JAGADISH PATIL, ADV. )

AND:

MUDAKAPPA GURUBASAPPA MASKI, AGE: MAJOR OCC: AGRICULTURE. R/O GUDAKATTI (SALAHALLI), TQ RAMADURG, DIST BELGAUM-591 123. ... RESPONDENT

(By Sri A S PATIL, ADV.)

THIS RFA IS FILED U/S 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 21.6.05 PASSED IN O.S.NO.145/96 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), SAUNDATTI, AND ETC.

THESE RFAs COMING ON FOR HEARING THIS DAY, COURT DELIVERED THE FOLLOWING: 4

JUDGMENT

The appellants are the plaintiffs. They have assailed the judgment and decree passed in O.S.No.152/96 and

O.S.No.145/96, dated 21.6.2005 by the Civil Judge

(Sr. Division) Saundatti.

2. For the sake of convenience the status of the parties shall be in terms of their status before the Trial

Court.

3. It is the case of the respective plaintiffs in the two suits that the defendant had executed agreements to sell two distinct portions of R.S.No.187 totally measuring

22 acres 25 guntas on 12.8.1990 to the respective plaintiffs for a valuable consideration of Rs.1,19,306/- in respect of each of the two portions. The Eastern portion of the said survey number is the subject matter of

O.S.No.152/96 and the Western portion of the said survey number is the subject matter of O.S.No.145/1996. It is the case of the plaintiffs that the defendant was in need of 5 funds and therefore he agreed to sell the suit schedule lands. That on the date of agreement of sale, namely,

12.8.1990, a sum of Rs.60,000/- was paid as part consideration by each of the plaintiffs to the defendant.

That the defendant had agreed to get the land converted into ‘Raitawa land’ and receive the balance consideration of

Rs.59,306/- from each of the plaintiffs at the time of registration before the Sub-Registrar, Ramdurga.

4. That the defendant did not keep up his promise as per the agreements to sell despite the plaintiffs’ requesting him to execute the sale deeds. That the plaintiffs have at all times been ready and willing to perform their part of the agreement by paying the balance sale consideration. But the defendant has been evading to perform his part of contract by giving vague excuses. The plaintiffs therefore, got issued their respective legal notices dated 28.7.1993 to the defendant calling upon him to perform his part of the contract and execute registered sale deeds. But there was no reply to the said notices. 6

Under the circumstances, the plaintiffs filed their respective suits seeking the relief of specific performance of their respective agreements.

5. After receipt of suit summons, the defendant appeared and filed his written statement in each of the suits, denying the execution of the agreement of sale deeds and stating that the defendant has not received any earnest money. That the property bearing RS.No.187 measuring 22 acres 26 guntas is a fertile agricultural land.

It is the ancestral joint family property and that there was no legal necessity to alienate the schedule lands. The agreements dated 12.8.1990 are bogus and without consideration. That no agreement to sell the lands which are not converted into ‘Raitawa land’ is permissible. The defendant therefore sought for dismissal of the suits.

6. Based on the rival pleadings, the Trial Court framed the following issues in both the suits: 7

Issues in O.S.no.152/1996:

1. Whether the plaintiff proves that the defendant agreed to sell the suit land for Rs.1,19,306/- on 12.8.90 and executed an agreement of sale as alleged? 2. Whether the plaintiff proves that he paid advance amount of Rs.60,000/- to defendant on 12.8.1990 under agreement of sale as alleged? 3. Whether the plaintiff prove that he was/is ever ready and willing to perform his part of the contract as alleged? 4. Whether the suit of the plaintiff is premature as contended in para No.7 of the written statement? 5. Is plaintiff entitled for specific performance of Agreement of Sale as sought for? 6. Is plaintiff in the alternative entitled for refund of earnest money plus damages of Rs.60,000/- as sought for? 7. To what order or decree? 8

In O.S.No.145/1996:

1. Whether plaintiff proves that the defendant has agreed to sell the suit land for Rs.1,19,306 and received a sum of Rs.60,000/- as earnest money towards sale consideration by executing agreement of sale dated 12.8.1990? 2. Whether plaintiff further proves that he is all along ready and willing to perform his part of contract to the said agreement of sale? 3. Whether defendant proves that the suit of the plaintiff is not maintainable without converting the suit land into Raitawa land as contended in para-13 of the WS? a. Whether plaintiff is entitled for Specific Performance of Contract under the said agreement? b. Whether in the alternative the plaintiff is entitled for refund of earnest money of Rs.60,000/- with interest at 18% p.a. and damages of Rs.10,000/- from the defendant? 4. What Decree or Order? 9

7. In support of his case, the plaintiff in

O.S.152/1996 examined two witnesses and produced five documents which were marked as Ex.P.1 to Ex.P.5. While the defendant examined one witness. In O.S.145/1996 the plaintiff examined two witnesses and produced ten documents which were marked as Ex.P.1 P.10. No documents were marked on behalf of the defendant.

8. On the basis of the said evidence, the Trial

Court answered issue Nos.1 and 2 in the affirmative, issue

Nos.3 and 6 partly in the affirmative and issue Nos.4 and 5 in the negative in O.S.No.152/1996.

As far as O.S.No.145/1996 is concerned, issue No.1 was answered in the affirmative. Issue Nos.2 and 3(b) were answered partly in the affirmative. Issue No.3(a) in the negative. Issue No.7 in O.S.152/96 and Issue NO.4 in

O.S.145/96 were answered in terms of their final order, stating that the suits filed by the plaintiffs for specific performance are dismissed and in the alternative both the 10 plaintiffs are entitled to receive back their earnest money of Rs.60,000/- each from the defendant.

9. Being aggrieved by the said judgment and decree the plaintiffs have filed these appeals.

10. I have heard the learned Counsel for the appellants and the learned Counsel for the respondent and perused the material on record as well as the lower court records.

11. It is contended on behalf of the appellants that the Trial Court has rightly answered issue Nos.1 and 2 in the affirmative in O.S.152/96. But it was not right in answering issue No.3 partly in the affirmative and issue

No.4 in the negative by holding that the suit filed by the plaintiff is premature in terms of what is stated in para-7 of the written statement. Similarly, in O.S.145/96 the

Trial Court was right in answering issue No.1 in the affirmative, but was not right in answering issue No.2 partly in the affirmative and negativing issue No.3 by 11 holding that the suit was not maintainable and thereby declining to grant the relief of specific performance in both the suits and by directing the plaintiffs to receive their advance consideration from the defendant.

12. Drawing my attention to the factual Matrix of the case, he contended that the plaintiffs have purchased the two respective portions of R.S.No.187, totally measuring 22 acres 05 guntas. That the sale was on account of legal necessity as the defendant was in need of funds. That on the date of agreement i.e. 12.8.1990,

50% of the consideration amount was received by the defendant under each of the agreements of sale. The balance sale consideration was to be paid at the time of registration of the agreements. Despite several requests made by the plaintiffs to the defendant, he went on evading the execution of the sale agreements. It is under these circumstances, that the plaintiffs filed respective suits for specific performance. That, when the execution of agreement to sell is proved and the receipt of earnest 12 money is also proved under both the agreements, the Trial

Court was not right in holding that the plaintiffs could not maintain the suits on the basis of what has been stated in para-7 of the written statement in O.S.152/96 and in para-

13 of the written statement filed in O.S.145/96. He contended that instead of partly allowing the suits, the

Trial Court ought to have exercised its discretion in favour of the appellants and granted the relief of specific performance. He therefore submitted that the judgment and decrees of the Trial Court be modified and the relief of specific performance be granted to the appellants.

13. Per contra, the learned Counsel for the respondent has drawn my attention to the reasoning of the

Trial Court and contended that the issues have been rightly answered. That the execution of the sale agreements themselves are in doubt. In fact, the Trial Court ought not to have granted the relief of refund of advance sale consideration to the plaintiffs. That the plaintiffs have taken advantage of filing the suits on the basis of the 13 alleged agreement to sell. That the judgment and decree of the Trial Court do not call for any interference.

Elaborating his submission he drew my attention to para-7 of the written statement filed in O.S.152/96, wherein it has been stated that the suit filed by the plaintiff is premature as the suit lands are not converted into ‘Raitawa lands’ and therefore the said lands could not have been alienated as the suit lands are inam lands

(walikar service) and there is non-alienation clause in respect of these lands.

Similarly, drawing my attention to paragraph 13 of the written statement filed in O.S.145/96 similar contention with regard to the maintainability of the suit has been raised as the lands are not converted into

‘Raitawa lands’ and therefore the suit for specific performance is premature as till the suit lands are not converted into ‘Raitawa lands’ the sale deed cannot be executed. He therefore submitted that the Trial Court was right in declining to grant the relief of specific performance in both the suits and has granted the necessary relief to 14 the plaintiffs to seek return of the advance sale consideration paid by them, which judgment and decrees would not call for any interference in these appeals.

14. In reply to these arguments, learned Counsel for appellants has drawn my attention to Ex.P.2 in

O.S.145/96, which is the order of conversion in respect of the entire extent of land bearing Sy.No.187 measuring 22 acres 25 guntas. This conversion has taken place as early as in the year 1967, to be precise on 11.3.1967. That the agreement to sell is dated 12.8.1990, i.e. twenty three years after the re-grant of the suit lands, and that when once the re-grant order is passed the lands get converted into ‘Raitawa lands’. Therefore, the lands as on the date of agreement to sell were entered into by defendant, they were already converted lands in the sense, they no longer vested with the State. Therefore, there was no impediment to execute the agreements to sell on

12.8.1990. The Trial Court was therefore not right in holding that the suits are premature. In support of this 15 submission he has placed reliance on the judgment of the

Supreme Court in the case of State of Karnataka vs. G.

Seenappa, reported in AIR 1992 S.C.1531 .

15. Having heard the learned Counsel on both sides and on perusal of the material on record as well as the original records, the following points would arise for my consideration:

1. Whether the Trial Court was right in holding that the suits for specific performance filed by the plaintiffs were not maintainable? 2. Whether the plaintiffs are entitled to the relief of specific performance? 3. What Order?

16. On a consideration of the pleadings and evidence on record, it is established that the defendant entered into two agreements to sell on 12.8.1990, in respect of the Eastern portion and Western portion of

R.S.No.187, totally measuring 22 acres 25 guntas. The subject matter of sale in respect of these two agreements was to an extent of 11 acres 27 guntas in respect of 16

O.S.145/96 and 11 acres 2 guntas in respect of

O.S.152/96. It is established that the total sale consideration in respect of both the lands was

Rs.2,40,000/- and that Rs.1,20,000/- in respect of the two portions of land was received as advance sale consideration. The balance sale consideration was to be received at the time of registration of the sale deed. It is also relevant to note that the agreements to sell is dated

12.8.1990 and the suits were filed in the year 1993 and that they have been later re-numbered as O.S.152/96 and

O.S.145/96. It is also not in dispute that the lands in question were service inam lands (walikar lands), which service was abolished after the enforcement of the

Karnataka Village Offices Abolition Act, 1961. In the said

Act, on abolition of the Village Offices the lands stood vested with the State Government and on application filed by the holder of the Village Office or his legal heirs, the lands were to be regranted to them. In the instant case, the contention of the defendant is that the lands in question were never re-granted and that in the absence of 17 such a re-grant the lands continued to vest with the State

Government. They were never ‘Raitawa lands’ or converted lands in the name of the defendant. That the defendant had no right to alienate these lands. Therefore, the agreements to sell dated 12.8.1990 was without any legal sanctity. The Trial Court was therefore right in holding that in respect of these lands suit for specific performance could not be maintainable. In order to consider these contentions the evidence on record would have to be considered.

17. Ex.P.2 in O.S.152/1996 and Ex.P.1 in

O.S.145/96 are the original agreements to sell. These agreements have been executed by the defendant. The execution of these agreements are not in doubt, in as much as, the Trial Court has answered the fact that these agreements have indeed been executed by the defendant.

There is also no doubt about the sale consideration and also about the receipt of the advance sale consideration by the defendant. But while answering as to whether the 18 plaintiffs were ready and willing to perform their part of the contract, the Trial Court has linked the said issue with regard to the maintainability of the suits. It has held that the suits were not maintainable since the lands continued to be service inam lands (walikar service) and the defendant had no right to alienate the said lands and in that context has answered that, though the plaintiffs were ready and willing to perform their part of contract they are not entitled to any relief of specific performance. In this context, it is relevant to consider the Ex.P.2 in O.S.145/96 which is the conversion order. The said order is in respect of the entire extent of 22 acres 26 guntas in R.S.187. The lands have been re-granted in the name of the father of the defendant and that defendant is the successor to the said lands. Therefore, in the face of the conversion order, the contention raised by the defendant with regard to the maintainability of the suit is wholly without any basis. The

Trial Court by ignoring Ex.P.2 in O.S.145/96 has come to the conclusion that the lands were not ‘Raitawa lands’ and therefore, could not have been alienated by the defendant 19 and that as long as the lands were not converted no sale deed could be executed, and therefore has erroneously come to the conclusion that the suits filed by the plaintiffs were not maintainable.

18. On the other hand, on a consideration of

Ex.P.2 in O.S.145/96 it becomes clear that the lands were converted lands. They became ‘Raitawa lands’. The defendant had every right to alienate the said lands. He had executed the agreement of sale deeds on 12.8.1990 the validity of which have been upheld by the Trial Court.

The receipt of advance sale consideration by the defendant has also been proved by the plaintiffs. Therefore, the answer to issue Nos.3 and 4 in O.S.152/96 and to issue

Nos.2 and 3 in O.S.145/96 are incorrect. Accordingly, point No.1 is answered in favour of the appellants.

19. This takes me to the next point as to whether the appellants are entitled to the relief of specific performance. The suit for specific performance would have to be dealt with under the parameters of Chapter-II of the 20

Specific Relief Act, 1963. A burden is cast on the plaintiffs not only to prove the validity of the agreements which are sought to be specifically enforced but also to plead and prove that the plaintiffs are ready and willing to perform their part of the contract, and that the agreements do not suffer from any other illegality and are otherwise specifically enforceable and that there are no personal bars to relief.

On a consideration of Sections 9 to 19 of the Specific

Relief Act, 1963, it is noted that the plaintiffs have proved the execution of the agreements and also that they are ready and willing to perform their part of the contract by paying the balance sale consideration. Ex.P.4 in both the suits are the legal notices got issued on behalf of the respective plaintiffs to the defendants. In this context, reliance could be placed on a decision of the Apex Court in the case of Aloka Bose V/s. Parmatma Devi & others

(2009 AIR SCW 1030) wherein it has been held that when the vendee had performed her part of the contract by paying earnest money and sent a notice conveying her 21 readiness and willingness to pay the balance sale consideration, which notice was acknowledged by the defendant, then in that case, readiness and willingness on the part of the vendee must be found. The suits have been filed in time.

20. However, before granting the relief of specific performance of an agreement, Section 20 of the Act prescribes the discretion that is on the Court with regard to granting or declining to grant the relief of specific performance. Section 20 of the Act states that, the Court is not bound to grant such relief merely because it is lawful to do so, but the exercise of discretion of the Court should not be arbitrary but sound and reasonable, guided by

judicial principles and capable of correction by a Court of

appeal. Three circumstances where discretion in favour of

granting the relief of specific performance cannot be

exercised have been noted in Section 20 of the Act. None

of these circumstances are present in the instant case. In

fact, Explanations 1 and 2 to Section 20 of the Act also 22 make it clear with regard to adequacy of consideration and also with regard to the hardship that may be caused to the defendant. In the instant case, the Trial Court has exercised its discretion to order return of the advance sale consideration to the plaintiffs by the defendant. Though on the one hand, it held that the suits themselves were not maintainable but no reasons are assigned as to why the relief of specific performance cannot be granted. It is significant to note that certain issues with regard to the grant of the relief of specific performance have been answered in favour of the plaintiffs. Those portions of the

judgment have not been assailed by the defendant. The defendant has accepted the judgment and decree in so far as they are in favour of the plaintiffs. Thus, the defendant has also not made out any case either before the Trial

Court or before this Court to hold that the plaintiffs are not entitled to the relief of specific performance.

21. Having considered the totality of the facts and circumstances of the two cases and there being no 23 impediment for the sale of the suit properties and having regard to the fact that 50% of the sale consideration was received by the defendant on the date of the agreements itself i.e. on 12.8.1990, I am of the view that there is no reason as to why the relief of specific performance of the same agreements could be declined to the plaintiffs.

Accordingly, Point No.2 is answered in favour of the plaintiffs.

22. In the result, the appeals are allowed. The

judgment and decrees of the Trial Court are modified. The plaintiffs are entitled to the judgment and decree of specific performance of the agreements dated 12.8.1990.

The defendant No.1 who is respondent No.1 herein is directed to execute a registered sale deed in favour of the appellants, failing which a Court Commissioner be appointed to execute the sale deed in accordance with law. 24

Parties to bear their respective costs.

Sd/- JUDGE

*sub/