K.C. Vijayaraghava Reddy and Others vs Gopalappa and Others

N. Kumar, J.—Plaintiff has preferred this regular first appeal against the order passed by the trial Court allowing the application filed under Order 7 Rule 11(d) read with Section 151 of CPC and under Section 4 (1 to 3) of PTCL Act, 1978 and rejecting the plaint as barred by law. The suit land bearing Sy. No. 85/p16, new Sy. No. 135 measuring 3 acres 6 guntas is situated at Mindahalli village, Kasaba Hobli, Malur Taluk, Kolar District (hereinafter referred to as ''schedule property'')

The schedule property was granted to the 1st defendant''s father, Muniyappa, on 9.9.1961 on free of cost. On his death, his children have succeeded to the said property. They entered into an agreement of sale with the plaintiff on 23.4.2010 for consideration of Rs. 43 lakhs. He paid Rs. 10 lakhs by way of cheques and Rs. 5 lakhs by way of cash and in all a sum of Rs. 15 lakhs as advance. The plaintiff had to pay balance sum of Rs. 28 lakhs. When the defendants tried to wriggle out the contract of sale agreement, the plaintiff issued a legal notice calling upon the defendants to execute the sale deed. When the defendants did not comply with the demand, the plaintiff was constrained to file a suit for specific performance of agreement of sale and for further consequential reliefs.

Defendants entered appearance and filed written statement contesting the suit. After filing the written statement, the 1st defendant filed I.A. 3-A under Order 7 Rule 11(d) read with Section 151 of CPC and under Section 4(1) to (3) of Karnataka Schedule Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short hereinafter called as `the PTCL Act), contending that the plaintiff has not obtained permission to purchase the suit schedule property nor the defendants obtained permission for alienation of the suit schedule property. Therefore, the suit is not maintainable as per the provision of the PTCL Act, 1978. It is also impermissible to perform the contract in view of acquisition of the suit schedule property by the government of Karnataka. The alleged agreement is null and void and no right, title, interest shall be conveyed or be deemed ever to have conveyed by such transfer under Section 4(1)(2)(3) of PTCL Act. Further the Court has no jurisdiction to grant relief in view of provision of Section 4(1)(2)(3) of the PTCL Act. Now it is not possible for the plaintiff or the defendants to get permission to alienate the suit schedule property since the final acquisition proceedings are pending for adjudication. The said application was opposed by the plaintiff.

The trial Court after hearing both the parties was of the view that without permission of the government, the granted suit schedule property cannot be alienated under the PTCL Act and no decree for specific performance of sale agreement to be granted. Further it was of the view that these facts are pleaded in the plaint and therefore it proceeded to reject the plaint on the ground that the suit is barred by law. Aggrieved by the order of the trial Court, the present appeal has been filed.

From the aforementioned facts, it is clear that the defendants are belonging to schedule tribe. The schedule property was granted to the father of the 1st defendant free of cost. Therefore, without permission of the government, the property cannot be alienated. The parties are fully aware of this legal position. There is specific recital in the agreement of sale that the sale has to be completed after obtaining permission. After entering into the agreement of sale and receiving Rs. 15 lakhs as advance under the agreement, a requisite permission was to be obtained before alienation of the property. What is prohibited under law is to sell the property without permission. The permission is to be obtained before the sale deed is executed. When the 1st defendant''s father after entering into the agreement of sale refused to execute the sale deed, the plaintiff has no option except to file the suit for specific performance. If the decree is passed and the schedule property is to be conveyed, it is only for such execution of sale deed, permission is required. Therefore, the trial court did not properly appreciate the legal position and came to the conclusion that without permission of the government, the sale deed cannot be executed. Hence, the trial Court held that the suit is not maintainable. The order passed by the trial Court is contrary to law and accordingly it is hereby set aside.

The question as to whether the suit is not maintainable or not is the subject matter of a preliminary issue. In the instant case, no preliminary issue is framed. On the application filed under Order 7 Rule 11(d) read with Section 151 of CPC and under Section 4(1) to (3) of PTCL Act, 1978, the trial Court has erred in rejecting the suit as barred by law relying on the provision of PTCL Act. Hence, the order passed by the trial Court is contrary to law and accordingly liable to be set aside.

In that view of the matter, we pass the following:

(i) Appeal is allowed.

(ii) The impugned order dated 21.10.2013 passed by the trial Court is hereby set aside.

(iii) The matter is remanded to the trial Court for framing of issues and to pass appropriate order in accordance with law.

As the plaintiff is not at fault and by erroneous view taken by the trial Court, the suit has been rejected as barred by law, in view of Section 64 of the Karnataka Court Fees and Suits Valuation Act, the appellant is entitled to refund of Rs. 1,84,625/- paid as court fee on the memorandum of appeal. Accordingly, the Registry is directed to refund the court fee paid on the memorandum of appeal.