M. Appaiah and Others vs Chotesab

Ravi V. Malimath, J.—The case of the plaintiffs is that the defendant is the absolute owner of the agricultural land bearing Survey No. 188/2-B, measuring 6 guntas situated at Karaloor Village, Kasaba Hobli, Hoskote Taluk, Bengaluru District, as described in the plaint schedule. The defendant entered into an agreement of sale of the suit schedule property of the agricultural land with the plaintiffs on 03.10.1988, agreeing to sell the suit schedule property for a total sale consideration of Rs. 18,000/- which was fully paid to the defendant.

The plaintiffs were put in possession. In view of the enactment in force of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 (hereinafter referred to as ''Act''), the sale deed was deferred. Hence, the defendant executed a registered simple mortgage deed on the same day. The condition of the agreement was that the sale deed would be executed after the repeal of the said Act. The case of the plaintiffs is that after the Act was repealed, they approached the defendant and requested to execute the sale deed. The defendant went on promising to do so, but, did not execute the sale deed. A legal notice was issued to the defendant. There was no reply to the same. Hence, the instant suit was filed for specific performance of the agreement of sale.

On service of suit summons, the defendant entered appearance and filed his written statement. He contended that he being the owner of the suit schedule property, but, however, denied the allegation that he has entered into an agreement of sale. The question of receiving the sale consideration of Rs. 18,000/- does not arise for consideration. The plaintiffs were never put in possession of the suit schedule property. The defendant has not entered into an agreement to sell. The suit is barred by limitation, since it is filed three years after the repeal of the said Act.

Based on the pleadings, the trial Court framed the following issues and additional issues:

"1. Whether the plaintiff proves that the defendant executed an agreement of sale on 03.10.88 by agreeing to sell the suit schedule property for a sum of Rs. 18,000/-?

Whether the plaintiff proves that the defendant put him in possession the suit schedule property as a part performance of the contract?

Whether plaintiff further proves that the defendant had executed a simple mortgage deed on 03.10.88, as a security to the amount received under the agreement?

Whether the plaintiff proves that he is always ready and willing to perform his part of contract?

Whether the defendant proves that the plaintiff has obtained his signatures on stamp papers on 03-10-88 along with mortgage deed without his knowledge and consent and then created and concocted the sale agreement?

What order or decree?"

ADDITIONAL ISSUE:

"1. Whether the defendant proves that the suit is barred by limitation?"

Plaintiff was examined as P.W. 1 along with another witness and 5 documents were marked. Defendant was examined as D.W. 1 and no documents were marked. Issues No. 1 to 3 and additional issue were held in the affirmative. Issues No. 4 and 5 were held in the negative. The suit of plaintiff was dismissed. Aggrieved by the same, he filed regular appeal, which was also rejected. Hence, the present second appeal.

By the order dated 18.07.2008, the appeal was admitted, to consider the following two substantial questions of law.

"i. Whether the courts below were justified in holding that the suit is barred by limitation?

ii. Whether the appellate court was justified in reversing the findings recorded on issue Nos. 1 to 3 and 5 by the trial court, without any contest by the respondents?"

So far as the first substantial question of law is concerned, both the courts held against the plaintiff. It was held that the suit was barred by limitation. In arriving at such a conclusion, the trial court reasoned its order by holding that the agreement of sale was executed on 03.10.1988. The sale deed had to be executed after the repeal of the Fragmentation Act. The Fragmentation Act was repealed on 02.02.1991. The terms of the agreement would narrate that after the repeal of the Fragmentation Act, the sale deed has to be executed, which means within three years from 02.02.1991. Admittedly, the case of the plaintiff is that he issued a legal notice to the defendant only on 20.01.1995. The same is beyond the period of limitation and therefore the suit was dismissed on that ground.

I have considered the evidence on record, as well as the agreement to sell vide Exhibit-P1. A reading of Exhibit-P1 would indicate that the sale deed had to be executed after the repeal of the Fragmentation Act and on such day as the plaintiff so demanded. This is the relevant portion of Exhibit-P1 which calls for consideration. While determining the question of limitation, both the Courts below committed an error in misreading Exhibit-P1. Reading only the first part of the sentence would narrate that the sale deed has to be executed on the repeal of the Fragmentation Act. The same sentence continues to state that such a sale deed will be executed as and when demanded by the plaintiff. The demand by the plaintiff was made only on 20.01.1995. The suit was filed on 16.08.1995. It is well within three years from the date of refusal. It is herein that the error is committed by both the courts below. That the entire sentence in the agreement should have been considered as a whole. The trial court considered only a portion of the agreement to hold that the sale deed has to be executed within three years from the date of repeal of the Fragmentation Act. That was not the intention of the parties. The intention of the parties was firstly that the sale deed has to be executed necessarily after the Fragmentation Act was repealed and further as and when so demanded by the plaintiff.

Therefore, I have no hesitation to hold that both the courts below committed an error in misreading Exhibit-P1, while erroneously coming to the conclusion that the suit is barred by limitation. On the contrary, the suit is filed within the period of limitation. Therefore, the finding recorded by the courts below on this question is reversed. The first substantial question of law is answered by holding that both the courts were not justified in holding that the suit is barred by limitation.

The second substantial question of law framed is as to whether the First Appellate Court was justified in reversing the findings recorded on the issues 1, 3 and 5 by the Trial Court without any contest by the respondents.

Learned Counsel submits that the second substantial question of law requires to be re-framed. The question of reversing the findings recorded by the Trial Court is incorrect. There is no reversal of the findings at all. Therefore, the substantial question does not arise for consideration. The substantial question of law therefore, is to the extent as to whether the First Appellate Court committed an error in holding that the plaintiff has failed to prove readiness and willingness. Hence, the substantial question of law is re-framed as follows:

"Whether both the courts below were justified in holding that the plaintiff has failed to prove the readiness and willingness?"

So far as this issue is concerned, the Trial Court relying on Section 16(c) of the Specific Relief Act, 1963 came to the conclusion that the plaintiff has failed to prove the readiness and willingness. The facts in this case would show that the entire amount of Rs. 18,000/- was paid to the defendant on the date of execution of agreement of sale and he has received the entire amount. Therefore, the question of readiness and willingness on the part of the plaintiff does not arise for consideration at all. The readiness and willingness to perform his part of the contract is always relatable. The entire sale consideration is paid at the time of execution of agreement of sale. There is no further action contemplated by the plaintiff. The only contingency in terms of the agreement of sale was the repeal of the Fragmentation Act and the demand by the plaintiff having been repealed on 02.02.1991 and the demand was made in the year 1995, nothing else remained for consideration. Therefore, the issue of readiness and willingness under Section 16(c) would not be applicable to the facts of this case. The trial court was at tangent in holding that there is an absence of adequate pleading with regard to readiness and willingness. Therefore, it cannot be said that the plaintiff was ready and willing to perform his part of the contract. As stated hereinabove, the entire sale consideration has been paid and nothing further requires to be done. Hence, the second substantial question of law is answered by holding that both the courts below committed an error in holding that the plaintiff has failed to prove the readiness and willingness.

On answering both the substantial questions of law, the appeal is allowed. The judgment and decree dated 22.02.2001, in O.S. No. 350/1995, passed by the Civil Judge (Junior Division) and JMFC, Hoskote and the judgment and decree dated 20.11.2007, in R.A. No. 54/2001 passed by the District and Sessions Judge and Presiding Officer, Fast Track Court-V, Bengaluru Rural District, Bengaluru are set aside. The suit of the appellants-plaintiffs are decreed with costs. The defendant is directed to execute the registered sale deed in favour of the appellant�plaintiff within a period of three months from the date of receipt of copy of this order, failing which, the appellants are entitled to move the Court for necessary execution.