Kantharaju and Others vs Muniyappa and Others

H. Billappa, J.—This Regular second appeal by the appellants/defendants 1 to 4 is directed against the judgment and decree dated 9.6.2006 passed by the District and Sessions Judge and Presiding Officer, Fast Track Court No. V, Bengaluru Rural District, Bengaluru, in R.A. No. 21/2002 reversing the judgment and decree passed by the Principal Civil Judge (Junior Division) and JMFC, Anekal, in O.S. No. 767/1995.

By the impugned judgment and decree, the Appellate Court has reversed the judgment and decree passed by the Trial Court in O.S. No. 767/1995 and has decreed the suit of the first respondent-plaintiff for specific performance of the sale agreement dated 18.6.1987 and has directed the defendants to execute the sale deed in terms of the sale agreement dated 18.6.1987 within two months, failing which, the plaintiff can get the sale deed executed through the process of Court.

Aggrieved by that, the appellants -defendants 1 to 4 have filed this second appeal.

The first respondent is the plaintiff. The respondents 2 to 4 are the defendants 5 to 7 in the Trial Court. For the sake of convenience, the parties will be referred to with reference to their rank in the original suit O.S. No. 767/1995.

Briefly stated the facts are;

The first respondent -plaintiff filed suit in O.S. No. 767/1995 for specific performance of the sale agreement dated 18.6.1987. The case of the first respondent -plaintiff was that he purchased the suit schedule property i.e., three acres of land in Sy. No. 18 of Krishna Sagar Village, Attibele Hobli, Anekal Taluk, Bengaluru District, for a price of Rs. 24,000/- on 18.6.1987 from Sri. Y. Venkataramanappa, the father of the defendants 1 to 3 and the husband of the 4th defendant i.e., the appellants herein. It is stated, the sale was completed on 18.6.1987 when the vendor Venkataramanappa received the full consideration of Rs. 24,000/-. The plaintiff was put in possession of the property on 18.6.1987. It is stated, though the sale was complete, the registered sale deed was not executed on 18.6.1987 due to misunderstanding that there was a restriction for execution of the sale deed for a period of 15 years. It is stated, the vendor executed a deed dated 18.6.87 confirming the sale and also confirming the fact of handing over possession of the property in favour of the plaintiff. In the said agreement, the vendor has specifically stated that the entire sale consideration amount was received by him. The sale deed may be registered as soon as the restriction was removed. In the event if the sale deed is not registered by the vendor, the plaintiff is at liberty to treat the agreement as a deed and approach the court of law for getting the sale deed registered through court. It is stated, the original agreement was produced in O.S. No. 273/1995. The vendor Sri. Y. Venkataramanappa expired recently. After his death, the defendants were prevented from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff by obtaining an order of temporary injunction in O.S. No. 273/1995. It is stated, the plaintiff belongs to scheduled caste and he is an illiterate person. He does not own any other land except the suit schedule property.

It is stated, a Mahazar was prepared by the revenue authorities to show that the plaintiff is in possession of the suit schedule property since 1987. The vendor Sri. Y. Venkataramanappa also obtained an endorsement dated 20.5.1992 from the Tahsilar, Anekal Taluk to show that there was no restriction whatsoever for alienation of the suit schedule property. The said endorsement was given to the plaintiff. He was not able to trace it being an illiterate person. Recently, the said endorsement was shown to one of the well wishers of the plaintiff. The plaintiff came to know that there was no restriction for the alienation of the suit schedule property. Thereafter, the plaintiff got issued a legal notice dated 23.11.1995 to the defendants who are the legal heirs of the deceased vendor Y. Venkataramanappa calling upon them to execute a registered sale deed in favour of the plaintiff in respect of suit schedule property. The defendants instead of complying with the demand sent untenable reply dated 6.12.1995.

It is stated, the plaintiff was always ready and willing to comply with the terms of the agreement. But, late Venkataramanappa was not ready and willing to comply with the terms of the agreement in spite of repeated demands and requests made by the plaintiff. After his death, the legal heirs of Venkataramanappa are not ready to perform their part of contract. Inspite of notice, the defendants have failed to execute the sale deed. Therefore, the plaintiff has prayed for specific performance of the sale agreement dated 18.6.1987.

The third defendant has filed written his statement contending that the suit is not maintainable. It is denied that the plaintiff purchased the suit schedule property measuring 3 acres in Sy. No. 18 situated at Krishnasagara Village, Athibele Hobli, Anekal Taluk, Bengaluru District for sale consideration of Rs. 24,000/- from Y. Venkataramanappa. It is also denied that the sale was completed on 18.6.1987 when the vendor received full consideration amount of Rs. 24,000/-. It is denied that the plaintiff was put in possession of the property as on 18.6.1987 and that the sale deed was not executed due to misunderstanding that there was a restriction to execute the sale deed for a period of 15 years. It is denied that the vendor has executed a deed dated 18.6.1987 confirming the sale transaction and also confirming the fact of handing over possession of the property. It is admitted that the plaintiff had filed suit in O.S. No. 273/1995. It is stated, the defendants have filed an application for vacating temporary injunction. It is denied that mahazar was prepared by the revenue authorities to show that the plaintiff continued to be in possession of the suit property since 1987. It is stated, the plaintiff is not in possession of the property. The mahazar is a concocted document. It is obtained by the plaintiff in collusion with the officials to defraud the legitimate rights of the defendants.

It is stated, the defendants are the absolute owners of the suit schedule property. The Land Reforms Tribunal conferred occupancy rights in favour of Sri. Y. Venkataramanappa, the father of the defendants 1 to 3. During the life time of Sri. Y. Venkataramanappa, he was in possession of the schedule land and he was cultivating it. Subsequently, after the death of Sri. Y. Venkataramanappa, the defendants have continued in possession of the suit schedule property and they are cultivating the land personally. The RTC extracts clearly show that the defendants have cultivated the suit schedule land. The revenue authorities have effected the katha in favour of the defendants in the year 1994-95.

It is stated, the endorsement dated 20.5.1992 issued by the Tahsildar stating that there is no non-alienation clause in respect of the land in question does not confer any right to the plaintiff in respect of the suit schedule property. It is stated, there was a bar for alienation of lands granted by the Land Tribunal under the relevant laws.

It is stated, late Y. Venkataramanappa the father of the defendants 1 to 3 sold the land bearing Sy. No. 91/6 in favour of the plaintiff and executed a registered sale deed on 18.6.1987. On 18.6.1987, the plaintiff obtained the signatures of the defendants 1 to 3 and their father on the blank stamp papers by representing that the same is required for the purpose of filing the affidavit before the Sub-Registrar for effecting the registered sale deed and for the purpose of filing affidavit consenting for the sale of the land bearing Sy. No. 91/6. It is stated, the plaintiff has misused the stamp papers obtained on 18.6.1987. The plaintiff has concocted the sale agreement. At no point of time, Y. Venkataramanppa or the defendants have agreed to sell the suit schedule land in favour of the plaintiff. The suit is barred by limitation. The suit is bad for mis-joinder of proper parties. Therefore, the defendant No. 3 has prayed for dismissal of the suit.

The defendants 1, 2 and 4 have adopted the written statement filed by the defendant No. 3.

Subsequently, the defendants 1 to 4 have filed additional written statement. It is denied that the plaintiff was ready and willing to perform his part of the contract. It is contended that there was no such contract entered into between the plaintiff and the defendants or the defendants'' father with the plaintiff in respect of the suit schedule property. Therefore, complying with the terms of agreement does not arise.

The Trial Court has framed the following issues:

"a. Whether the plaintiff proves that defendants Nos. 1 to 3''s father agreed to sell the suit property for Rs. 24,000/- and received the full consideration amount and executed agreement of sale on the same day putting the plaintiff in possession of the suit property?

b. Whether plaintiff is ever ready and willing to perform his part of contract?

c. Whether the defendants prove that on 18.6.1987 plaintiff obtained signatures of defendants Nos. 1 to 3 and their father in blank stamp papers by mis-representation and misused the same and concocted and cooked up the blank stamp papers into an agreement of sale?

d. Whether the suit is hit by non-joinder of proper parties?

e. What order or decree?"

The Trial Court considering the material on record has held that the plaintiff has misused the stamp paper and has failed to prove the execution of the sale agreement. Consequently, the suit has been dismissed.

Aggrieved by that, the first respondent-plaintiff has preferred R.A. No. 21/2002. The Appellate Court by its judgment and decree dated 9.6.2006 has reversed the judgment and decree passed by the Trial Court and has decreed the suit of the plaintiff directing the defendants to execute the sale deed in favour of the first respondent -plaintiff in terms of the sale agreement dated 18.6.1987.

Aggrieved by that, the appellants -defendants 1 to 4 have preferred this second appeal.

At the time of admission, this Court has formulated the following substantial questions of law for consideration:

"(1) Whether the lower Appellate Court was justified in reversing the judgment and decree of the Trial Court and arriving at the finding that the document Ex. P2 had been proved in accordance with law?

(2) Whether the lower Appellate Court had properly exercised the discretion as contemplated in section 22 of the Specific Relief Act?"

The learned counsel for the appellants contended that the impugned judgment and decree passed by the Appellate Court cannot be sustained in law. He also submitted that the Appellate Court has failed to consider the evidence on record in proper perspective. Further he submitted that the suit is barred by limitation under Article 54 of the Limitation Act. No issue has been framed regarding limitation. He also submitted that O.S. No. 273/1995 filed by the plaintiff has been dismissed as not maintainable. Therefore, the subsequent suit is barred under Order 2 Rule 2 of CPC. The agreement was not executed. The signatures of Venkataramanappa and defendants 1 to 3 were obtained on the blank stamp papers and they have been misused. The scribe has not been examined. The agreement is not signed by the executant at page No. 2. The plaintiff has not stepped into the witness box. Therefore, adverse inference has to be drawn. The evidence of PWs. 1 to 4 is not consistent and it is not trustworthy. The Appellate Court was not justified in holding that the sale agreement Ex. P2 has been proved. The endorsement Ex. P4 was issued on 20.5.1992 stating that there was no prohibition for alienation. Therefore, the limitation started from the date of endorsement. The suit has been filed in the year 1995. It is clearly barred by limitation. The appellants i.e., the defendants are in possession and enjoyment of the property. The RTC entries stand in the name of the defendants. The mahazar has been drawn behind the back of the appellants. Therefore, the Appellate Court was not justified in holding that the plaintiff is in possession. The Appellate Court has erred while relying upon the evidence of PWs. 2 and 3 who are the relatives of the plaintiff. Further he submitted that the sale consideration is inadequate. For three acres of land, the sale consideration is fixed at Rs. 24,000/-. P.W. 2 has deposed that the land value was Rs. 80,000/- per acre. The Appellate Court has failed to consider this. Further he submitted that the plaintiff has deliberately avoided to enter the witness box. The evidence of PW-1 who is the power of attorney holder of the plaintiff cannot be looked into. P.W. 1 has not signed the sale agreement. His evidence is not trustworthy. Further he submitted that the suit is filed after the lapse of 81/2 years from the date of sale agreement. Ex. P2 is a doubtful document. Therefore, there can be no decree for specific performance. The evidence of PWs. 1 to 4 is not trustworthy. Adverse inference has to be drawn against the plaintiff. The Appellate Court was not justified in decreeing the suit. The impugned judgment and decree passed by the Appellate Court cannot be sustained in law. In support of his submission, he placed reliance on the following decisions:

"1. Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, (2009) 1 JT 656 : (2009) 1 SCALE 80 : (2009) 2 SCC 532

G. Rangaiah Vs. Govindappa Rangappa and Others, AIR 2008 Kar 151 : (2008) 6 KarLJ 285 : (2008) 3 KCCR 1405 : (2009) 106 RD 168

The State Government Vs. M.L. Manjunatha Shetty, AIR 1972 Kar 263

Ahmmadsahab Abdul Milla (dead) by proposed Lrs. Vs. Bibijan and Others, AIR 2009 SC 2193 : (2009) 1 CLR 945 : (2009) 14 JT 364 : (2009) 5 SCALE 437 : (2009) 5 SCC 462 : (2009) 5 SCR 476 : (2009) 3 UJ 1538

Hindustan Lever and others Vs. Hindustan Lever Mazdoor Sabha and others, AIR 1994 SC 834 : (1993) 5 JT 459 : (1994) LabIC 70 : (1994) 1 LLJ 668 : (1993) 3 SCALE 894 : (1994) 1 SCC 1 Supp : (1993) 2 SCR 540 Supp

ILR 2004 Kar page 2328

Ram Niwas Gupta Vs. Mumtaz Hasan and Others, (2002) 2 JT 384

2014 AIR SCW page. 3292

N.V. Srinivasa Murthy and Others Vs. Mariyamma (dead) by Proposed LRs. and Others, AIR 2005 SC 2897 : (2005) 3 CTC 545 : (2005) 6 JT 1 : (2005) 5 SCC 548 : (2005) 1 SCR 411 Supp : (2005) 2 UJ 898 : (2005) AIRSCW 3346 : (2005) 4 Supreme 683

State Bank of India Vs. Gracure Pharmaceuticals Ltd., AIR 2014 SC 731 : (2014) 118 CLT 59 : (2013) 6 CTC 789 : (2013) 15 JT 316 : (2014) 1 RCR(Civil) 889 : (2013) 14 SCALE 392 : (2014) 3 SCC 595 : (2014) 1 SCJ 158

ILR 2005 Kar page 4862"

Regarding I.A. No. 1, the learned counsel for the appellants submitted that the cause of action for the suit has arisen in the year 1992 itself and it cannot be split up. The order passed on memo does not amount to leave granted by the Court to continue the second suit. Therefore, the subsequent suit is not maintainable and it may be dismissed. Regarding I.A. No. 2, the learned counsel for the appellants submitted that Ex. P2 is inadmissible in evidence. The recitals of Ex. P2 show that it is a conveyance. Therefore, Ex. P2 requires registration under section 17(1)(b) of the Registration Act. The stamp duty is payable under Article 20 of the Karnataka Stamp Act. Ex. P2 is a compulsorily registrable document and it is not admissible in evidence for any purpose. Therefore, I.A. No. 2/2014 may be allowed and Ex. P2 may be rejected.

As against this, the learned counsel for the first respondent submitted that the impugned judgment and decree passed by the Appellate Court does not call for interference. The sale agreement was executed, consideration has been paid and possession was delivered on the date of sale agreement. In the written statement, the defendants i.e., the appellants have contended that there was a bar for alienation in respect of the granted land. In O.S. No. 273/1995, a memo was filed to club O.S. No. 273/1995 with O.S. No. 767/1995. The appellants objected the memo contending that O.S. No. 273/1995 is not maintainable as the same relief is claimed in O.S. No. 767/1995 also. At the most the plaintiff can withdraw the suit. The Trial Court by its order dated 7.6.1996 dismissed O.S. No. 273/1995 as not maintainable and observing that the plaintiff is at liberty to seek all appropriate reliefs including permanent injunction in O.S. No. 767/1995. Therefore, it is clear that the Trial Court permitted the plaintiff to continue the suit for specific performance. Therefore, the appellants cannot contend that the suit is not maintainable. Further he submitted that in the reply notice Ex. P6 nothing has been stated regarding obtaining of signatures on the blank stamp papers. For the first time, in the written statement, the defendants i.e., the appellants have contended that the signatures of Venkataamanappa and the defendants 1 to 3 were taken on the blank stamp papers. It is clearly afterthought. On the same day, i.e., on 18.6.1987 Venkataramanappa has executed sale deed in favour of the plaintiff in respect of Sy. No. 91/6. It is not challenged. No notice has been issued by the appellants stating that their signatures were taken on the blank stamp papers. No action has been taken. Venkataramanappa and his sons are literates. The plaintiff is illiterate. Therefore, there is no question of plaintiff obtaining the signatures on blank stamp papers. Further he submitted that the Appellate Court has considered the limitation aspect and has held that the suit is not barred by limitation. He also submitted that in exhibits P7 and P8 non-alienation period has been mentioned. The defendants refused to execute the sale deed through their reply dated 6.12.1995. The suit has been filed on 18.12.1995. Within three years from the date of refusal, the suit has been filed. Therefore, the suit is well within time. The limitation starts from the date of refusal. The reply is sent on 6.12.1995 denying the transaction and refusing to perform their part of the contract. Thereafter, the suit has been filed. It is well within time. Further he submitted that there is no pleading regarding hardship. The bar under Order 2 Rule 2 of CPC is also not pleaded. The legal notice was issued subsequent to O.S. No. 273/1995. There was no cause of action for specific performance when O.S. No. 273/1995 was filed. The cause of action for specific performance arose when reply was sent refusing to execute the sale deed. Therefore, there is no bar under Order 2 Rule 2 of CPC. The plaintiff has pleaded his readiness and willingness. The entire sale consideration amount has been paid. There is no pleading regarding hardship. No document has been produced regarding the value of the property as on the date of the suit.

Further he submitted that a memo was filed on 21.12.1995 to club O.S. No. 273/1995 with O.S. No. 267/1995. The appellants objected the memo. The Trial Court by its order dated 7.6.1996 rejected the memo and dismissed O.S. No. 273/1995 as not maintainable observing that the plaintiff can seek all reliefs in O.S. NO. 767/1995. Therefore, it is clear, the Trial Court allowed the plaintiff to continue the suit for specific performance. There is no plea in the written statement regarding Order 2 Rule 2 of CPC. Therefore, the application is misconceived and it is liable to be rejected.

Regarding I.A. No. 2, the learned counsel for the 1st respondent submitted that during the year 1987, the requisite stamp duty for sale agreement was Rs. 10/-. Ex. P2 has been written on requisite stamp paper. It does not require registration. The relevant provision during 1987 was Article 5(e) of the Karnataka Stamp Act. It is amended with effect from 1.4.1995 and it is not applicable to the present case. Ex. P2 is not a conveyance. It does not require registration. I.A. No. 2 may be rejected. In support of his submission, the learned counsel for the 1st respondent placed reliance on the following decisions:

"(i) ILR 1992 Karnataka page 429

(ii) ILR 2001 Karnataka page 3870

(iii) ILR 2010 Karnataka page 765

(iv) Prakash Chandra Vs. Narayan, AIR 2012 SC 2826 : (2012) 3 RCR(Civil) 335 : (2012) 4 SCALE 583 : (2012) 5 SCC 403 : (2012) AIRSCW 2674 : (2012) 3 Supreme 204

(v) 1963 M.P page 31

(vi) ILR 2005 Karnataka page 4370

(vii) Coffee Board Vs. Ramesh Exports Pvt. Ltd., AIR 2014 SC 2301 : (2014) AIRSCW 3077 : (2014) 6 SCALE 651 : (2014) 6 SCC 424 ."

I have carefully considered the submissions made by the learned counsel for the parties.

It is noticed, while framing second substantial question of law the section is wrongly mentioned as Section 22 of the Specific Relief Act instead of section 20 of the Specific Relief Act. Apart from this, no substantial question of law has been framed regarding limitation and maintainability of the suit. Therefore, the substantial questions of law are reframed as follows:

"1. Whether the lower Appellate Court was justified in reversing the judgment and decree passed by the Trial Court recording a finding that the document Ex. P2 has been proved in accordance with law?

Whether the suit was barred by limitation?

Whether the suit was barred under Order 2 Rule 2 of CPC?

Whether the discretion under section 20 of the Specific Relief Act has been properly exercised?"

The appellants have filed I.A. No. 1/2014 to reject the plaint as not maintainable under Order 2 Rule 2 of CPC and I.A. No. 2/2014 to reject Ex. P2 as inadmissible.

Question No. 1:

To prove the execution of the sale agreement Ex. P2, the plaintiff has examined PWs. 1 and 4. PWs. 1 and 4 have deposed regarding the execution of the sale agreement. P.W. 1 has deposed that Venkataramanappa agreed to sell the land bearing Sy. No. 18 measuring 3 acres situated at Krishnasagara Village in favour of the plaintiff and received the sale consideration amount of Rs. .24,000/- and executed the sale agreement Ex. P2. At the time of execution of Ex. P2, P.W. 1, his father, his brother Krishnappa, Venkataramanappa, his sons Subramani, Kantharaju, Venugopal and the witness Y.K. Nanjunda Reddy were present. Ex. P2 was written by one Rama Rao. It was read over to Venkataramanappa and he signed Ex. P2 and received Rs. 24,000/-. Thereafter, witnesses Y.K. Nanjunda Reddy i.e., P.W. 4, Kantharaju, Subramani and Venugopal i.e., appellants 1 to 3 signed Ex. P2. PW-1 has identified the signatures of Venkataramanappa, his sons, Y.K. Nanjunda Reddy and the scribe. Similarly, PW-4 has deposed that Venkataramanappa executed sale agreement Ex. P2 in favour of the plaintiff. At that time, Venkataramanappa, his sons Kantharaju, Subbaiah alias Subbaraju and Venugopal, the plaintiff and his sons were present. The scribe Rama Rao wrote Ex. P2. Venkataramanappa signed Ex. P2. Thereafter, PW-4 and the sons of Venkataramanappa signed Ex. P2 as witnesses. The plaintiff paid Rs. 24,000/- to Venkataramanappa. Thereafter, the scribe signed Ex. P2. PW-4 has identified the signatures of Venkataramanappa and his sons.

PWs 2 and 3 are the adjacent owners. They have deposed that the plaintiff is in possession and enjoyment of the suit schedule property and he is cultivating the land.

The defendants i.e., the appellants have contended that signature of Venkataramanappa and the defendants 1 to 3 were taken on the blank stamp papers stating that affidavit has to be filed for effecting the sale deed and consenting the sale of land bearing Sy. No. 91/6. The plaintiff has issued legal notice dated 23.11.1995 as per Ex. P5 calling upon the appellants to execute the sale deed. The defendants i.e., the appellants have replied Ex. P5 as per Ex. P6. In Ex. P6, the defendants i.e., the appellants have denied the execution of the sale agreement and receipt of sale consideration amount. There is no whisper in Ex. P6 that the signatures were taken on the blank stamp papers stating that affidavit has to be filed for effecting the sale deed and consenting the sale of land bearing Sy. No. 91/6. It is only in the written statement the defendants have contended that the signature of Venkataramanappa and defendants 1 to 3 were taken on the blank stamp papers stating that the affidavit has to be filed for effecting the sale deed and consenting the sale of land bearing Sy. No. 91/6. It is clearly after thought. The defendants 1 to 3 have signed the sale agreement as witnesses. The recitals of Ex. P2 show that defendants 1 to 3 have signed the sale agreement as consenting witnesses. P.Ws. 1 and 4 have deposed regarding the execution of the sale agreement. They have identified the signatures of the defendants 1 to 3 and Ventakaramanappa. The sale consideration amount has been paid. It is relevant to note, on the same day i.e., on 18.6.1987 Venkataramanappa has executed the sale deed in respect of Sy. No. 91/6 in favour of the plaintiff as per Ex. D11. The said sale deed has not been challenged. The scribe of Ex. D11 and Ex. P2 is one and the same person. Therefore, the execution of Ex. P2 sale agreement cannot be doubted. Some discrepancies were pointed out in the stamp papers and also in the evidence of PWs. 1 and 4. They are not significant. The defendants have admitted their signatures in Ex. P2, but they contend that the signatures were taken on the blank stamp papers to file affidavits. It is clearly afterthought. Therefore, it cannot be believed. It is unacceptable.

It was contended by the learned counsel for the appellants that the evidence of P.W. 1 cannot be believed. It is not trust worthy. PW-1 is not a signatory to the sale agreement. He cannot depose in the place of the plaintiff. No doubt P.W. 1 is the power of attorney holder of the plaintiff. But, he has not deposed in the place of the plaintiff. He has deposed from his personal knowledge. He has deposed that he was present at the time of sale agreement Ex. P2. The sale agreement was executed by Venkataramanappa and he received the sale consideration amount. P.W. 4 has deposed that P.W. 1 was present when the sale agreement was executed. Therefore, the presence of P.W. 1 cannot be doubted. It is true, a power of attorney holder cannot depose as a substitute. But, in the present case, P.W. 1 has deposed from his personal knowledge. Therefore, the evidence of PW-1 cannot be discarded. Reference can be made to the decision of this court reported in Kaju Devi and Another Vs. H.S. Rudrappa alias Rudy and Others, (2005) ILR (Kar) 4370 : (2006) 2 KarLJ 551 : (2005) 4 KCCR 2430 wherein it has been held that a power of attorney holder can depose from his personal knowledge and it is permissible in law.

P.W. 4 has deposed that the sale agreement was executed by Venkataramanappa in favour of the plaintiff by receiving the sale consideration amount. On the same day i.e., on 18.6.1987 Venkataramanappa has executed sale deed Ex. D11 in favour of the plaintiff in respect of Sy. No. 91/6. P.W. 4 is the witness to Ex. D11 also. Therefore, there is no reason to disbelieve the evidence of P.W. 4. It is relevant to note, the defendants i.e., the appellants have contended that their signatures were obtained on the blank stamp papers. It cannot be believed, for the reason, in the reply notice, the defendants have denied execution of the sale agreement. It is only in the written statement they have contended that their signatures were taken on the blank stamp papers. It is clearly after thought. Therefore, it cannot be believed. It is unacceptable.

It was contended by the learned counsel for the appellants that the plaintiff has not stepped into the witness box and therefore, adverse inference has to be drawn against him. I do not find any merit in this contention, for the reason, PWs. 1 and 4 have been examined to prove the execution of the sale agreement Ex. P2. They have deposed regarding the execution of the sale agreement. Their evidence clearly proves the execution of sale agreement. There is no reason to disbelieve the evidence of PWs. 1 and 4. Therefore, non-examination of the plaintiff is not fatal to the case. The decision relied upon by the learned counsel for the appellants reported in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 : (1993) 2 BC 546 : (1993) 6 JT 331 : (1995) 109 PLR 293 : (1993) 4 SCALE 277 : (1994) 1 SCC 1 : (1993) 3 SCR 422 Supp : (1994) 1 UJ 1 is not applicable to the facts of the present case.

Insofar as the scribe is concerned, it has come in the evidence of D.W. 1 that the scribe is no more. Apart from this, the death certificate of the scribe has been produced in the appeal. Therefore, it is clear, the scribe is not available for examination.

PWs. 2 and 3 are the adjacent land owners. They have deposed that the plaintiff is in possession and enjoyment of the suit schedule property and he is cultivating the land. P.W. 4 has deposed that the plaintiff is in possession and enjoyment of the suit schedule property. The recitals of Ex. P2 sale agreement show that possession was delivered on the date of sale agreement itself. Subsequent to Ex. P2, the plaintiff has requested the Tahsildar to enter his name in the RTC. The Tahsildar has refused to enter the name of the plaintiff in the RTC for the reason that CRP was pending. It is also relevant to note, Venkataramanappa has obtained endorsement as per Ex. P4. It is stated, permission is not required for alienation as there is no prohibition. The evidence on record clearly establishes that the sale agreement Ex. P2 was executed by Venkataramanappa and possession was delivered on the date of sale agreement and the plaintiff is in possession. The entries in the RTC stand rebutted. The evidence of PWs. 2, 3 and 4 and the recitals in Ex. P2 clearly show that possession was delivered on the date of sale agreement itself and plaintiff is cultivating the land. The defendants have examined D.W. -2. He has deposed that the defendants are in possession and enjoyment of the land. He is not the adjacent owner. It is elicited that he is the friend of Venkataramanappa''s children. Therefore, the evidence of PWs. 2, 3 and 4 can be preferred to the evidence of D.W. 2.

It was contended by the learned counsel for the appellants that Ex. P2 is not admissible in evidence as it is insufficiently stamped and it requires registration. Further he submitted that Ex. P2 is in the nature of conveyance and it requires registration. Reliance was placed on the following decisions.

"1. Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, (2009) 1 JT 656 : (2009) 1 SCALE 80 : (2009) 2 SCC 532

G. Rangaiah Vs. Govindappa Rangappa and Others, AIR 2008 Kar 151 : (2008) 6 KarLJ 285 : (2008) 3 KCCR 1405 : (2009) 106 RD 168

The State Government Vs. M.L. Manjunatha Shetty, AIR 1972 Kar 263 ."

In Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, (2009) 1 JT 656 : (2009) 1 SCALE 80 : (2009) 2 SCC 532 the Hon''ble Supreme Court has held that unregistered sale deed where adequate stamp duty was not paid is not admissible for any purpose and even for collateral purpose also.

In G. Rangaiah Vs. Govindappa Rangappa and Others, AIR 2008 Kar 151 : (2008) 6 KarLJ 285 : (2008) 3 KCCR 1405 : (2009) 106 RD 168 in the case of Rangaiah v. Govindappa and others this court has held, the partition deed i.e., palupatti though does not attract the provisions of Registration Act, it is not admissible for want of sufficient stamp duty.

In The State Government Vs. M.L. Manjunatha Shetty, AIR 1972 Kar 263 in the case of The State by Sub Registrar, Chickmagalur v. M.L Manjunatha Shetty , the document described as release deed has been held to be a conveyance chargeable under Article 20 of the Mysuru Stamp Act.

In the present case, at the time of marking Ex. P2 no objection has been raised. A careful reading of the recitals of Ex. P2 show that it is not a conveyance and it is only a sale agreement. The parties have agreed that the sale deed shall be executed after the expiry of 15 years. Consideration has been paid. Possession has been delivered. As there was prohibition for alienation, the parties have agreed that the sale deed shall be executed after the expiry of 15 years, failing which, the purchaser can approach the court and take the sale deed through the process of court. It is clear, the parties have not treated Ex. P2 as a sale deed. Ex. P2 is only a sale agreement and it is not a sale deed. It does not require registration. At the time of execution of Ex. P2 the requisite stamp duty was Rs. 10/- under Article 5(e) of the Karnataka Stamp Act. Ex. P2 is written on requisite stamp paper of Rs. 10/-. Therefore, there is no merit in the contention that Ex. P2 is a conveyance and it is insufficiently stamped and requires registration. Ex. P2 is a sale agreement and it does not require registration. It is admissible in evidence.

The evidence of PWs 1 to 4 and the material on record clearly establishes that the execution of the sale agreement Ex. P2 has been proved. The Appellate Court on proper consideration of the material on record has rightly held that the execution of Ex. P2 sale agreement has been proved. It does not call for interference. Question No. 1 answered, accordingly.

Question No. 2:

It was contended by the learned counsel for the appellants that the suit was barred by limitation. According to him, the sale agreement is dated 18.6.1987. The suit is filed on 18.12.1995. It is barred by limitation. Venkataramanappa has obtained endorsement as per Ex. P4. The limitation starts from the date of endorsement i.e., 20.5.1992. PW-1 has deposed that inspite repeated demands the sale deed was not executed. The limitation starts from that date. The suit is filed in the year 1995. It is clearly barred by limitation. The courts below have failed to consider this. Reliance was placed on the following decisions;

"1. Ahmmadsahab Abdul Milla (dead) by proposed Lrs. Vs. Bibijan and Others, AIR 2009 SC 2193 : (2009) 1 CLR 945 : (2009) 14 JT 364 : (2009) 5 SCALE 437 : (2009) 5 SCC 462 : (2009) 5 SCR 476 : (2009) 3 UJ 1538

ILR 2004 Kar page 2328

Ram Niwas Gupta Vs. Mumtaz Hasan and Others, (2002) 2 JT 384 ."

In Ahmmadsahab Abdul Milla (dead) by proposed Lrs. Vs. Bibijan and Others, AIR 2009 SC 2193 : (2009) 1 CLR 945 : (2009) 14 JT 364 : (2009) 5 SCALE 437 : (2009) 5 SCC 462 : (2009) 5 SCR 476 : (2009) 3 UJ 1538 in the case of Ahmmadsahab Abdul Mulla (deceased by LRs) v. Bibijan and others , the Hon''ble Supreme Court has held, the expression ''date'' used in Article 54 definitely is suggestive of a specified date in the calendar. When date is fixed it means that there is definite date fixed for doing particular act.

In V.S. Munirathanam, since deceased by LRs. Vs. P. Sundaram, since deceased by LRs and Others, AIR 2004 Kar 383 : (2004) ILR (Kar) 2328 : (2004) 3 KCCR 1649 this court has held, the plaintiff''s performance of his part of the contract and filing of the suit within time is not the sole decisive factor. Despite payment of full consideration the plaintiff remained inert for about two years. The latches on the part of the plaintiff weighs heavily against him to seek equitable relief.

In Ram Niwas Gupta Vs. Mumtaz Hasan and Others, (2002) 2 JT 384 in the case of Ram Niwas Gupta v. Mumtaz Hasan and others the Hon''ble Supreme Court has held that the specific performance suit was filed in time but after much delay. The question of delay defeating the relief of specific performance was not decided. Therefore, the Hon''ble Supreme Court has directed to frame an issue and call for finding of the Trial Court and decide the first appeal.

The learned counsel for the 1st respondent placed reliance on the following decisions:

"1) ILR 1992 Kar page 429

2) ILR 2001 Kar page 3870

3) ILR 2010 Kar page 765."

In ILR 1992 Kar page 429 in the case of Gururao v. Subba Rao this court has held, in case where the agreement fixes the date for performance, if the very agreement is denied, the limitation starts from the date of knowledge or notice of denial of agreement whether the date fixed in the agreement expired or not.

In ILR 2001 Kar page 3870 in the case of H.M. Krishna Reddy v. H.C. Narayana Reddy this court has held, the limitation begins to run from the date when the agreement holder has notice of refusal to perform the contract by the owner.

In ILR 2010 Kar page 765 in the case of Syed Zaheer and others v. C.V. Siddveerappa this court has held, time begins to run from the date fixed for the performance of the contract. If no such date is fixed then when the plaintiff has notice of refusal of performance.

There is no merit in the contention that the suit was barred by limitation. The sale agreement is dated 18.6.1987. The parties have agreed that the sale deed shall be executed after the expiry of 15 years as there was prohibition for alienation. If the vendor fails to execute the sale deed after the expiry of 15 years, the purchaser can approach the Court and take the sale deed through the process of Court. It is mentioned in the RTC that alienation is prohibited for a period of 15 years. In the written statement it is contended that there is prohibition for alienation. It is clear, the understanding of the parties was that there was prohibition for alienation for a period of 15 years. The sale deed shall be executed after the expiry of 15 years. No specific date has been fixed for execution of the sale deed. Therefore, in the absence of specific date, the date of refusal is the relevant date. The vendor Venkataramanappa has obtained endorsement as per Ex. P4. It is dated 20.5.1992. The vendor is informed that permission is not required. Ex. P4 cannot be construed as refusal to execute the sale deed. The learned counsel for the appellant inviting my attention to the evidence of P.W. 1 submitted that there was demand for execution of the sale deed. The limitation starts from that date. A careful reading of the evidence of PW-1 shows that Venkataramanappa has never refused to execute the sale deed. Thereafter, legal notice dated 23.11.1995 has been issued as per Ex. P5 to execute the sale deed. The defendants 1 to 4 i.e., the appellants have replied the legal notice as per Ex. P6 denying the execution of the sale agreement and refusing to execute the sale deed. Therefore, the limitation starts from the date of refusal as per Ex. P6. Ex. P6 is dated 6.12.1995. The suit has been filed on 18.12.1995. From the date of refusal the suit is within time. Article 54 of the Limitation Act provides for three years time from the date fixed for the performance and if no date is fixed, when the plaintiff had notice that the performance is refused.

In the present case, no specific date has been fixed for performance. The reply notice refusing to execute the sale deed is sent on 6.12.1995. The suit has been filed on 18.12.1995. Therefore, the suit is well within time from the date of refusal. Though the Trial Court has not considered the limitation aspect, the Appellate Court has considered it and has held that the suit is not barred by limitation. It is justified in law. Question No. 2 answered accordingly holding that the suit is not barred by limitation.

Question No. 3:

Order 2 Rule 2 of CPC reads as follows:

"2. Suit to include the whole claim-

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."

It was contended by the learned counsel for the appellants that the suit was barred under Order 2 Rule 2 CPC. The plaintiff had filed O.S. No. 273/95 for permanent injunction. It was dismissed as not maintainable. Therefore, the subsequent suit is barred under Order 2 Rule 2 of CPC. Reliance was placed on the following decisions:

"1. ILR 2005 Kar page 4862

N.V. Srinivasa Murthy and Others Vs. Mariyamma (dead) by Proposed LRs. and Others, AIR 2005 SC 2897 : (2005) 3 CTC 545 : (2005) 6 JT 1 : (2005) 5 SCC 548 : (2005) 1 SCR 411 Supp : (2005) 2 UJ 898 : (2005) AIRSCW 3346 : (2005) 4 Supreme 683

State Bank of India Vs. Gracure Pharmaceuticals Ltd., AIR 2014 SC 731 : (2014) 118 CLT 59 : (2013) 6 CTC 789 : (2013) 15 JT 316 : (2014) 1 RCR(Civil) 889 : (2013) 14 SCALE 392 : (2014) 3 SCC 595 : (2014) 1 SCJ 158 ."

In ILR 2005 Kar page 4862 in the case of E. Jayaram and another v. Lakshmi @ Bhagyalakshmi and another, the suit was filed for bare injunction. The agreement was of the year 1983. Under Order 2 Rule 2 of CPC without seeking the leave to reserve right to sue for any other relief, it would preclude the respondent No. 1 to seek specific performance of the sale agreement. Therefore, it is held, the incidental relief of injunction would be unavailable.

In 2005(3) KCCR page 1961 in the case of N.V. Srinivasa Murthy and other v. Mariyamma (dead) by LRs and others where suit was filed for permanent injunction and second suit was filed for declaration, this court has held, the relief should have been claimed in the earlier suit itself. Second suit was barred under Order 2 Rule 2 of CPC.

In State Bank of India Vs. Gracure Pharmaceuticals Ltd., AIR 2014 SC 731 : (2014) 118 CLT 59 : (2013) 6 CTC 789 : (2013) 15 JT 316 : (2014) 1 RCR(Civil) 889 : (2013) 14 SCALE 392 : (2014) 3 SCC 595 : (2014) 1 SCJ 158 in the case of State Bank of India v. Gracure Pharmaceuticals Limited the Hon''ble Supreme Court has held, earlier suit was for recovery of amount and subsequent suit was for damages, no fresh cause of action arose in between the earlier suit and subsequent suit. Therefore, second suit cannot be filed under Order 2 Rule 2 of CPC.

The learned counsel for the 1st respondent placing reliance on the decision of the Hon''ble Supreme Court reported in Coffee Board Vs. Ramesh Exports Pvt. Ltd., AIR 2014 SC 2301 : (2014) AIRSCW 3077 : (2014) 6 SCALE 651 : (2014) 6 SCC 424 submitted that the suit is not barred under Order 2 Rule 2 of CPC. The Hon''ble Supreme Court in Coffee Board Vs. Ramesh Exports Pvt. Ltd., AIR 2014 SC 2301 : (2014) AIRSCW 3077 : (2014) 6 SCALE 651 : (2014) 6 SCC 424 in the case of Coffee Board v. M/s. Ramesh Exports Pvt. Ltd. , has held, the bar under Order 2 Rule 2 of CPC must be specifically pleaded by the defendant in the suit. The Trial Court should specifically frame specific issue in that regard. The pleadings in the earlier suit must be examined. The plaintiff has to be given an opportunity to demonstrate that the cause of action in the subsequent suit is different. If it is found that the cause of action pleaded in both the suits is identical and the relief claimed in the subsequent suit could have been pleaded in the earlier suit, then subsequent suit stands barred.

In the present case there is no plea that the suit is barred under order 2 Rule 2 of CPC. No evidence has been adduced. It is only in the second appeal the appellants are contending that the suit is barred under Order 2 Rule 2 of CPC.

The plaintiff has filed suit in O.S. No. 273/1995 for permanent injunction. Subsequently, the plaintiff has filed O.S. No. 767/1995 for specific performance. Thereafter, the plaintiff has filed a memo dated 21.12.1995 to club O.S. No. 273/95 with O.S. No. 767/1995. The appellants have objected the memo contending that O.S. No. 273/95 is not maintainable as the same relief is claimed in O.S. No. 767/95 also. The Trial Court by its order dated 7.6.1996 has rejected the memo and dismissed O.S. No. 273/95 as not maintainable observing that the plaintiff is at liberty to seek all reliefs including permanent injunction in O.S. No. 767/95. Thereafter, O.S. No. 767/95 has been continued. The parties have contested the matter. The Trial Court has dismissed the suit. In the appeal, the Appellate Court has reversed the judgment and decree passed by the Trial Court. In the second appeal it is contended that the suit is barred under Order 2 Rule 2 of CPC. The contention is meritless. Firstly for the reason that there is no plea in the written statement. Secondly, the Trial Court has dismissed O.S. No. 273/95 observing that the relief claimed in O.S. No. 273/95 can be claimed in O.S. No. 767/95 itself. Thereafter, O.S. No. 767/95 has been continued and the parties have contested the matter. Therefore, it cannot be said that the suit is not maintainable. In the absence of specific plea and evidence as held in Coffee Board Vs. Ramesh Exports Pvt. Ltd., AIR 2014 SC 2301 : (2014) AIRSCW 3077 : (2014) 6 SCALE 651 : (2014) 6 SCC 424 , it cannot be said that the suit is barred under Order 2 Rule 2 of CPC. Question No. 3 answered accordingly.

Question No. 4:

The suit is for specific performance of the sale agreement dated 18.6.1987. The defendants have contended that the sale agreement is not executed. The plaintiff has proved the execution of the sale agreement. The entire sale consideration amount has been paid. The recitals of Ex. P2 show that possession was delivered. PWs. 2, 3 and 4 have deposed that the plaintiff is in possession and he is cultivating the land. The learned counsel for the appellants contended that the sale consideration is inadequate. That cannot be a ground to deny the specific performance. The defendants have not pleaded any hardship. The Honb''le Supreme Court in Prakash Chandra Vs. Narayan, AIR 2012 SC 2826 : (2012) 3 RCR(Civil) 335 : (2012) 4 SCALE 583 : (2012) 5 SCC 403 : (2012) AIRSCW 2674 : (2012) 3 Supreme 204 in the case of Prakash Chandra v. Narayan has held, defendant neither raising defence of hardship nor leading any evidence, denying the relief of specific performance on the ground of hardship would not be proper. The entire sale consideration amount has been paid. The plaintiff has been put in possession of the suit schedule property. The plaintiff has performed his part of the contract. The defendants have refused to perform their part of the contract. Therefore, specific performance cannot be denied. The parties have agreed that the sale deed shall be executed after the expiry of 15 years. Possession has been delivered on the date of sale agreement. It is agreed that the purchaser can continue in possession of the property. The sale deed was not executed as the parties understood that there is a prohibition for alienation. Subsequently, the vendor has approached the Tahsildar. The Tahsildar has issued endorsement as per Ex. P4 stating that there is no prohibition for alienation and therefore, permission is not required. Thereafter, legal notice dated 23.11.1995 has been issued as per Ex. P5 calling upon the defendants to execute the sale deed. The defendants have refused to execute the sale deed as per Ex. P6. The defendants have contested the matter. The plaintiff has proved the execution of the sale agreement. Consideration has been paid and possession has been delivered. Therefore, there is no valid reason to deny specific performance. The defendants have not pleaded any hardship. On the other hand, they have contended that the sale agreement was not executed and their signatures were obtained on the blank stamp papers and they have been misused. It is clearly after thought and cannot be believed. Therefore, specific performance cannot be denied. However, the parties are litigating the matter since several years. There is price escalation. Therefore, it is appropriate to direct the first respondent to pay additional amount of Rs. 1,00,000/- per acre in addition to the amount already paid. The Appellate Court has rightly directed to execute the sale deed. It does not call for interference. Question No. 4 answered accordingly holding that the first respondent shall pay additional amount of Rs. 1,00,000/- per acre, in all Rs. 3,00,000/-, in addition to the amount already paid.

I.A. No. 1/2014 has been filed by the appellants praying to reject the suit as not maintainable as per Order 2 Rule 2 of CPC.

While answering question No. 3 it has been held that the suit is not barred under Order 2 Rule 2 of CPC. Therefore, I.A. No. 1/2014 is liable to be rejected. Accordingly, it is rejected.

I.A. No. 2/2014 has been filed by the appellants praying to reject Ex. P2 as inadmissible.

While answering question No. 1, it has been held that Ex. P2 is a sale agreement and it is not a conveyance. It does not require registration and it is sufficiently stamped. Therefore, I.A. No. 2/2014 is liable to be rejected. Accordingly, it is rejected.

In view of my above discussion and conclusions, the appeal is disposed of in the following terms:

"The judgment and decree passed by the Appellate Court in R.A. No. 21/2002 decreeing the suit of the plaintiff for specific performance of the sale agreement dated 18.6.1987 is hereby confirmed. The first respondent shall pay additional amount of Rs. 1,00,000/- per acre, in all Rs. 3,00,000/-, to the defendants. The amount shall be deposited before the Trial Court within two months from today. Thereafter, the defendants shall execute the sale deed in favour of the first respondent/plaintiff. If the defendants fail to execute the sale deed even after the deposit of the amount, the first respondent-plaintiff can take the sale deed through the process of the Court. In the circumstances of the case, the parties shall bear their own costs."