Neelappa Naik vs Ratnavathi and Others

Ravi V. Malimath, J.—1. Aggrieved by the concurrent findings recorded by both the Courts below in decreeing the plaintiffs'' suit for specific performance, the defendant has filed this appeal.

The parties will be referred to as per their rank in the trial court.

The case of the plaintiffs is that the suit schedule property originally belonged to late Aithappa Naik who is the father of the defendants. The lands were granted by the Government in his favour. During his lifetime he and his sons divided the suit properties. ''A'' schedule properties fell to the share of defendant No. 3. On 14-12-1983, the defendant No. 3 and his father entered into an agreement with one P.V. Ganapathy who is the husband of 1st plaintiff and father of the 2nd plaintiff, agreeing to sell ''A'' schedule property for Rs. 35,000/-. Accordingly, a deed of agreement was executed. On the same day, a sum of Rs. 15,000/- was paid as advance. It was agreed that the balance sale consideration be paid in installments. Defendant No. 3 and his father agreed to execute the sale deed. On the same day defendant No. 3 handed over possession to Sri P.V. Ganapathy who is since in possession of the same. The installment of Rs. 2,000/- each were paid on 19-12-1984, 31-12-1985, 13-12-1986, 11-12-1987 and 13-12-1988 to defendant No. 3. As agreed between the parties the remaining sale consideration of Rs. 10,000/- was to be paid to defendant No. 3 with interest at the rate of 10% per annum from 1989 till the date of registration. On 16-12-1989, P.V. Ganapathy, has paid Rs. 1,000/- to defendant No. 3. On 30-4-1999, the husband of plaintiff No. 1 died. Therefore, plaintiff No. 1 being the wife and plaintiff No. 2 being the son have filed the instant suit seeking specific performance, since the defendants denied to execute the sale deed by receiving the sale consideration. Defendants 2, 3 and 5 filed their written statement. The other defendants remained absent. Defendant No. 5 denied the plaint averments except the fact that Aithappa Naik is their father and the suit schedule property was granted by the Government. Defendant No. 2 the brother of defendant No. 3, admitted the genealogy. He also admitted that by an agreement the properties were divided and defendant No. 3 was put in possession of his share. They denied that the agreement was entered into between defendant No. 3 and the plaintiffs.

Defendant No. 3 denied the plaint averments and contended that the children of Aithappa Naik divided the ''A'' schedule property, cannot be accepted. That no partition had taken place. That the agreement dated 14-12-1983 is not enforceable. That it is opposed to public policy, namely, the Schedule Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands)Act. Hence, sought for dismissal of the suit.

Based on the above pleadings, the trial court framed the following issues and additional issues:--

"1. Whether the Plaintiffs prove that the Defendant No. 3 and his father, agreed to sell the Suit VT schedule property for a sum of Rs. 35,000/- and executed an agreement of sale, by receiving an advance of Rs. 15,000/- (earlier it was mentioned as Rs. 20,000/-before amendment of plaint. The plaintiff has subsequently amended the plaint and substituted Rs. 15,000/-) on 14.12.1983 from the husband of 1st Plaintiff?

Whether the Plaintiff proves that he had paid Rs. 10,000/- on installments of Rs. 2,000/- each to the 3rd Defendant and Rs. 1,000/- as interest on balance of Rs. 10,000/- as stated in para 5 of Plaint?

Whether the Plaintiffs prove that they are always ready to perform their part of contract by giving balance of Rs. 10,000/- to the Defendants?

Whether the Plaintiffs prove that the husband of the 1st plaintiff was put in possession of the VT schedule?

Whether the alleged refusal on the part off the Defendant is true?

Whether the Defendants prove that the agreement dated 14.12.1983 is unenforceable, as it is in violation of Section 4 and SC.ST(P.T.C.L) Act?

Whether the Plaintiffs are entitled to the reliefs sought?

What order or decree?

ADDITIONAL ISSUES:

Whether the 3rd defendant proves that the Agreement dated 14.12.1983 is not enforceable for the reasons stated in his Written Statement?

Whether the 3rd defendant proves that the suit is bad for n on-joinder of necessary parties?

Whether the suit property is not properly valued for the purpose of pecuniary jurisdiction?"

Plaintiff No. 1 was examined as P.W.1 and another witness and marked 67 documents. Defendant No. 2 was examined as D.W.1 and marked 3 documents. Issues 1 to 5 were held in the affirmative and issue No. 6 was held as does not survive for consideration. Additional Issues were held in the negative. The suit was decreed against defendant No. 3 and he was directed to execute the sale deed of ''A'' schedule property in favour of the plaintiffs to the extent of his share by receiving the balance consideration of Rs. 10,000/- along with interest. Aggrieved by the same, defendant No. 3 filed an appeal which was dismissed. Hence, the present second appeal.

The learned counsel for the appellant contends that both the Courts below committed an error in decreeing the suit. That in the absence of any partition having been effected, the question of defendant No. 3 becoming the owner in possession of his share and thereafter agreeing to sell the same in favour of the plaintiffs would not arise for consideration. That the agreement to sell prohibits alienation of granted land by the Government. Hence, he pleads that the decree in favour of the plaintiffs, on these two points, requires a reconsideration, through the substantial questions of law.

On the other hand, Sri K. Ravi Shankar, the learned counsel appearing for the contesting respondents defends the same. He contends that both the Courts below have rightly decreed the suit. The contention of the defendant that the partition has not been effected is negated by the evidence led in by the plaintiffs. That the Courts below have held that the agreement to sell is not prohibited under the Schedule Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands)Act. Hence, it is pleaded that the appeal be dismissed.

On hearing learned counsels, I am of the view that there is no merit in this appeal.

One of the contentions advanced is that the agreement is hit by the provisions of the Karnataka Scheduled Castes & Scheduled Tribes(Prohibition of the Transfer of Certain Lands)Act. Issue No. 6 is to the said effect. However, the plaintiffs filed a memo stating that they give up their claim in respect of lands bearing Survey Nos. 61-A3, A1 and A2 measuring 1 acre 26 guntas of Kuria village. Hence, based on the memo, the issue was held that it does not survive for consideration in terms of para-20 of the order of the trial court. Therefore, to re-agitate the said issue does not arise for consideration.

The contention being advanced is to the effect that since the suit schedule property is a granted land and no partition has been effected between the father and the children, the defendant could not have entered into any agreement so far as his share of his property is concerned. Based on the evidence and the material on record, the contentions were negated. In fact, defendant No. 2 has admitted in the evidence that on 27-2-1980 and 21-3-1983 through agreement, they got divided their family properties and ''A'' schedule property was put in possession of defendant No. 3. Under these circumstances, when defendant No. 2 has admitted to the partition having been effected of the suit schedule property, the contention of the defendant therefore cannot be accepted. Even otherwise it was defendant No. 2 alone who has led-in evidence on behalf of the defendants. Defendant No. 3 has not chosen to lead any evidence. Therefore, the contention that partition has not been effected would rest solely on the evidence of defendant No. 2. When defendant No. 2 himself has stated that partition has been effected, the contention of the appellant namely, defendant No. 3 that the partition has not been effected runs contrary to the suit averments. In fact, the decree is to the effect of directing defendant No. 3 to execute the sale deed in respect of the extent of his share alone. Therefore, the decree being purely in terms of the settlement or an agreement arrived at so far as division of property is concerned, such a contention cannot be accepted. Even otherwise, the said contention being raised by the appellant is only on a question of fact. No substantial question of law arises for consideration. Consequently, in the absence of any substantial question of law, the appeal being devoid of merit, is dismissed. No costs.

In view of the dismissal of the appeal, Misc. Cvl. 6475/2009 for stay does not survive for consideration.