Ramappa Basappa Bhosle vs Ishwarappa and Others

S. Sujatha, J.—These appeals arise against the judgment and decree dated 15.3.2006 in R.A. No. 159/2003 and R.A. No. 160/2003 on the file of the III Addl. Civil Judge (Sr.Dn.) & CJM, Dharwad confirming the judgment and decree dated 30.6.2003 in O.S. No. 162/2000 and O.S. No. 161/2000 on the file of the I Addl. Civil Judge (Jr.Dn.), Dharwad.

O.S. No. 161/2000 was filed by Sri Ishwarappa, seeking the relief of injunction against the appellant - Sri Ramappa Bhosle restraining him from interfering with the peaceful possession and enjoyment of the suit property.

O.S. No. 162/2000 was filed by the appellant against Smt. Laxmibai, Sri Gurunath Govindarao Gudihal and Ishwarappa for the relief of specific performance of an agreement of sale dated 18.11.1987 in respect of the R.S. No. 261 measuring 6 acres 15 guntas situated at Mishrikoti Village, Dharwad Taluk and also for the alternative relief of refund of earnest money of Rs. 26,000/- with interest at the rate of 18% p.a. from the date of agreement of sale till realisation and for permanent injunction restraining the defendants from alienating the suit property.

Respondent No. 1 in RSA No. 1907/2006 filed O.S. No. 84/88 against her son Sri Gurunath Gudihal and another for the relief of declaration that she is the absolute owner of Sy. No. 261 measuring 13 acres 39 guntas by virtue of Section 14 of the Hindu Succession Act. The said suit was decreed on 9.11.1987 holding that Laxmibai -respondent No. 1 in RSA 1907/2006 is the absolute owner of the property bearing Sy. No. 261 measuring 13 acres 29 guntas in Mishrikote Village, Kalghati Taluk, Dharwad District. Ishwarappa Hanumanthappa Chikkadi filed O.S. No. 197/1999 on 20/11/1987 against Laxmibai Gudihal for specific performance of the contract as per the oral agreement entered in the year 1989 in respect of R.S. No. 261 to the extent of 13 acres 15 guntas. Appellant herein filed an application to implead him as a party in the said proceedings and the same was allowed on 30.11.1992. Sri Ishwarappa Chikkadi preferred CRP No. 671/1993 challenging the order passed in O.S. 197/89 on the impleading application. This Court by order dated 28.9.1996 was pleased to set-aside the said order passed on the impleading application and further observed that "however if the respondents has any independent rights, those will not stand affected in the least by virtue of the fact that he is not permitted to participate in the present litigation. It is also made clear that in the event of the respondent instituting any proceedings in that Court, provided the same are maintainable, within the course of the next three months from today, in respect of the subject matter of the present dispute and completing all the necessary formalities expeditiously, that the Trial Court will in that event take up both the proceedings and hear them together".

In the meanwhile Ishwarappa Chikkadi had filed I.A. No. 1 in O.S.217/89 seeking for the relief of injunction against the appellant which was allowed on 29.3.1990 against which M.A. No. 14/90 was filed by the appellant before the Addl.CJ & CJM, Dharwad. The said appeal M.A. No. 14/90 was partly allowed on 10.4.1991 vacating the injunction order issued in favour of the appellant on I.A. No. 1 as far as the southern half portion of the suit land measuring 6 acres 15 guntas is concerned. However, it was observed that the plaintiff - Ishwarappa Chikkadi should not disturb the possession of the appellant over the said portion of the land and the appellant in turn should not disturb the possession of the plaintiff as far as northern half portion of the suit land is concerned. The said order was challenged by Ishwarappa Chikkadi before this Court in CRP No. 618/91 and the said petition was dismissed confirming the order passed in MA. No. 14/1990. The appellant filed O.S. No. 92/98 on 11.11.1998 seeking decree for specific performance of contract in respect of 6 acres 15 guntas out of 13 acres 29 guntas in R.S. No. 261 of Mishrikoti Village against Smt. Laxmibai Govindarao Gudihal and Ishwarappa Chikkadi to enforce the agreement of sale dated 18.11.1987 on the file of City Civil Judge, Kalghatgi. The said suit was transferred to the Court of I Addl. Civil Judge (Jr.Dn.), Dharwad and renumbered as O.S. 162/2000. Ishwarappa Chikkadi filed O.S. No. 40/1999 on 13.5.1999 for injunction against the appellant on the file of Civil Judge (Jr.Dn.), Kalghatagi. The said suit was transferred to I Addl. Civil Judge (Jr.Dn.), Dharwad and renumbered as O.S. No. 161/2000. The suit filed by Ishwarappa Chikkadi against Laxmibai in O.S. No. 197/89 renumbered as O.S. No. 215/1992 was compromised before the Lok-Adalath in respect of Sy. No. 261 measuring 13 acres 29 guntas on 17.12.1998 and pursuant to which the sale deed dated 2.1.1999 was executed by Laxmibai and Gurunath in favour of Ishwarappa Chikkadi in respect of R.S. No. 261 measuring 13 acres 29 guntas. Both the suits i.e., O.S. No. 161/2000 filed by respondent No. 5 -Ishwarappa Chikkadi and O.S. No. 162/2000 filed by the appellant were clubbed and disposed. O.S. No. 161/2000 was decreed and O.S. No. 162/2000 was dismissed by a common judgment and decree dated 30.6.2003. The appellant filed R.A. No. 159/2003 and R.A. No. 160/2003 against the said common judgment and decree passed in O.S. No. 162/2000 and 161/2000. Both the appeals filed by the appellant were dismissed confirming the judgment and decree of the trial Courts, against which these appeals are preferred by the appellant.

At the time of admission, the following substantial questions of law were framed.

"1) When the plaintiff in O.S. No. 162/2000 is relying upon the agreement of sale dated 18.11.1987 vide Ex. DA, whether both the Courts were justified in accepting the contention of plaintiff in O.S. No. 161/2000 to the effect that he was in possession of suit property since 1979 on oral agreement and also agreeing that he had entered into an agreement with the second defendant in O.S. No. 162/2000 vide Ex. D.2 and Ex. D.3 in respect of 7 acres 18 guntas and 7 acres 14 guntas respectively at a later stage?

2) Whether both the Courts below have properly appreciated the discrepancy in pleadings and evidence of plaintiff in O.S. No. 161/2000?

3) Whether both the Courts were justified in ignoring the written agreement between the plaintiff and defendant in O.S. No. 162/2000 and accept the oral agreement set up in a suit which is filed two days after the agreement dated 18.11.1987 was entered into between the plaintiff and defendant in O.S. No. 161/2000?"

The learned counsel appearing for the appellant mainly contended that appellant was in possession of suit property to the extent of 6 acres 15 guntas as per sale agreement dated 18.11.1987, executed by Smt. Laxmibai after making the part payment of Rs. 26,000/- towards the earnest money deposit, against the total sale consideration of Rs. 44,625/-, confirmed in M.A. No. 14/1990. Thus, transferee/appellant being in possession of 6 acres 15 guntas of suit property in part performance of agreement of sale is protected under Section 53-A of the Transfer of Property Act, law of limitation is not applicable for filing a suit for specific performance. Hence, the defendant was not right in claiming injunction for entire 13 acres 29 guntas of the suit property. O.S. No. 197/1987 filed by Sri. Ishwarappa Chikkadi against Smt. Laxmibai Gudihal, compromised before the Lok Adalath in respect of Sy. No. 261 measuring 13 acres 29 guntas is not binding on the appellant. In support of his contentions, learned counsel placed reliance on the following judgments:

"(1) Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another,

(2) N. Basavaraj Since deceased by his L.Rs. Vs. B. Sridhar and Others, .

(3) Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others, ."

Per contra, learned counsel appearing for the respondents supported the judgment and decree passed by the Courts below and argued that the lower Courts after appreciation of the material evidence on record, have categorically given a finding that defendant Ishwarappa Chikkadi was not in possession of the suit property at the time of institution of the suit. The recital in the agreement dated 18.11.1987 specifically stipulates that sale deed has to be executed within a period of two years. The appellant has not shown his readiness and willingness to perform his part of the contract, i.e., to make the payment of the balance consideration, to get the document registered within the period stipulated in the sale agreement, however, instituted the suit for specific performance of contract dated 18.11.1987 after a period of about 11 years, that too without issuing notice to Smt. Laxmibai, which is obviously barred by limitation. It is further argued that judgment of the Apex Court relied upon by the learned counsel appearing for the appellant in the matter of Shrimant Shamrao Suyryavanshi (supra) supports the case of the respondents.

Having heard the learned counsel for the parties, one more substantial question of law that arises for consideration is:

"4) Whether the appellant would be entitled to enforce the agreement of sale dated 18.11.1987 (Ex. D4) after the period of 11 years for obtaining the discretionary relief having regard to Section 20 of the Specific Relief Act?"

After considering the rival contentions and perusing the records, it is clear that, Smt. Laxmibai had executed an agreement dated dated 18.11.1987 in favour of the appellant agreeing to sell 6 acres 15 guntas of land in R.S. No. 261 of Mishrikoti village, out of 13 acre 29 guntas for a sale consideration of Rs. 44,625/- and part payment of Rs. 26,000/- was received by Smt. Laxmibai with a clause that the sale deed has to be executed within a period of two years and the appellant has to pay the balance consideration amount at the time of registration of the document. ExsD2 and D3 are the xerox copies of the agreements dated 09.08.1982 and 18.06.1984, executed by Sri. Gurnath S/o Smt. Laxmibai in favour of Sri. Ishwarappa Chikkadi agreeing to sell 7 acres 18 guntas and 7 acres 14 guntas respectively in Sy. No. 261 of Mishrikoti village. A dispute between Smt. Laxmibai and her son Gurunath G. Gudihal was resolved by the judgment and decree, i.e., Ex. D20 passed in O.S. No. 84/1980, wherein, the suit filed by Smt. Laxmibai was decreed and it was declared that Smt. Laxmibai was the absolute owner of suit property measuring 13 acres 29 guntas. Respondents Sri. Ishwarappa Chikkadi had filed O.S. No. 197/1987 against Smt. Laxmibai and Sri. Gurunath G. Gudihal for specific performance of contract. Appellant herein filed an application to implead him as party in the proceeding, which was allowed, against which, CRP was preferred before this Court by Sri. Ishwarappa Chikkadi. This Court allowed the revision filed by Sri. Ishwarappa Chikkadi and observed that the appellant is at liberty to institute any proceedings in that Court provided the same are maintainable, within the period of three months of the date of order i.e., within 28.09.1996. In the suit O.S. No. 219/1987 filed by Ishwarappa Chikkadi seeking for the relief of injunction, I.A. No. 1 filed in the said suit seeking an injunction against the appellant was allowed, against which, M.A. No. 14/1990 was filed by the appellant and in the said appeal the injunction order was vacated. The said O.S. No. 217/1989 was dismissed for non prosecution. The learned counsel for the appellant made emphasis on this order passed in M.A. No. 14/1990 and argued that possession was intact in view of the said order passed in M.A. No. 14/1990 and the appellant is entitled to status quo ante prior to decree. The order in M.A. No. 14/1990 is only an order vacating the temporary injunction on I.A. in O.S. No. 2 17/1989. It is settled law that an interim order subsists only during the pendency of the main matter. Subsequent to the dismissal of O.S. No. 2 17/1989, the order passed in M.A. No. 14/1990 attains a natural death and would not enure to the benefit of the appellant to prove his possession. Possession follows title is the normal rule. The defendant Ishwarappa Chikkadi has proved his title over the suit property in view of the compromise decree entered into between Laxmibai and Ishwarappa Chikkadi and the subsequent registered sale deed dated 2.1.1999 Ex. P3. No documentary evidence is produced by the appellant to prove his possession over the suit property to the extent of 6 acres 15 guntas. A specific issue is framed by the trial Court regarding the possession of the suit property, after appreciating the evidence, it is categorically held that the appellant is not in possession of the suit property and on the other hand, Ishwarappa Chikkadi has proved his possession, the same is confirmed by the lower appellate Court. The sale deed registered subsequent to compromise entered into between the parties has an evidentiary value. Moreover, the appellant has not challenged the compromise decree nor instituted any suit in compliance with the order passed by this Court within three months as specified therein. The appellant has filed O.S. No. 92/1998, which was renumbered as O.S. No. 162/2000, nearly after two years from the date of the order passed by this Court, without issuing any notice to his vendor would indicate that the appellant was not diligent in pursuing his claim.

The recital in the sale agreement dated 18.11.1987 Ex. D.4, contemplates that the balance amount towards the sale consideration has to be paid within a period of two years and the sale deed has to be registered accordingly. Despite the said clause the appellant has failed to prove that he was ready and willing to perform his part of the contract. Article 54 of the Limitation Act prescribes a period of three years for filing the suit for specific performance of contract. Admittedly, the suit for specific performance of the contract filed by the appellant after 11 years, apparently is barred by limitation.

Readiness and willingness of plaintiff to perform his part of obligation is necessarily to be proved. Section 16(c) of the Specific Relief Act makes it mandatory that such readiness and willingness is necessarily to be averred in the plaint. No such pleadings are available in the plaint to prove that the plaintiff was ready and willing to get the sale deed executed by paying the balance amount of sale consideration within a period of three years from the date of agreement. It is true that, in case of agreement of sale of immovable property, there is no presumption as to time being of the essence of the contract but it has to be performed within a period of reasonable time.

In Lourdu mari David and others v. Louis Chinnaya Arogiaswamy and others reported in (1965) 5 SCC 589, the Apex Court held thus:

"2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief must come to the Court with clean hands. In other words the party who makes false allegations does not come with clean hands and it is not entitled to the equitable relief......."

The Apex Court in the case of A. Lewis and Another etc. Vs. M.T. Ramamurthy and Others, has held thus:

"As rightly pointed out by the High Court, the existence of right to claim protection under Section 53-A of the Transfer of Property Act would not be available if the transferee just kept quiet and remained passive without taking effective steps. Further, he must also perform his part of the contract and convey his willingness."

This Court in the case of Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa Since dead by his L.Rs. Smt. Bhagyamma and Others, has held thus:

"86. Therefore, it is clear that, before a transferee can claim the benefit of Section 53A , the contract should have been in writing signed by the transferor, the transferee should have got possession of the immovable property covered by the contract, the transferee should have done some act in furtherance of the contract and lastly the transferee has either performed his part of the contract or is willing to perform his part of the contract. Section 53-A makes it clear by employing the word "then" after laying down the prerequisites that a transferee can seek refuge under it only after satisfying the above pre-requisites. In other words, the bar envisaged in the section against enforcement of the transferor''s right can be exercised only on compliance with the postulates. Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of Sec. 53-A of the Transfer of Property Act must be absolute and unconditional. If willingness is studded with a condition, it is in fact no more than an offer and cannot be termed as willingness. Therefore, the sine qua non for basing a claim on Section 53A is the complete performance or complete willingness and not performance in part or conditional willingness or even willingness in part. It is only when the transferee has either performed his part of the contract or is willing to perform his part of the contract, he is entitled to the benefit of Section 53A of the Transfer of Property Act.

Proviso to Section 53A makes it clear that nothing in Section 53A shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. Therefore, Section 53A has no application in so far as the rights of the transferee for consideration who had no notice of the contract or of the part performance thereof. It is in this background that we have to appreciate the facts of this case."

Both the Courts have extensively considered the aspect of delay and latches on the part of the plaintiff in approaching the Court. A default is proved on the part of the plaintiff in not performing his part of the contract. Though, the Ex. D.4, agreement of sale is dated 15.11.1987, suit is filed in the year 1998, the period of 11 years, cannot be construed as reasonable time. The period of three months granted by this Court in Revision proceedings (CRP No. 671/1993) is also not availed by the plaintiff.

Section 20 of the Specific Relief Act provides that relief of specific performance is a discretionary relief and it is not always necessary to grant specific performance simply for the reason that it is legal to do so. In the decision report in K.S. Vidyanadam and Others Vs. Vairavan, , it is held that, inaction on the part of purchaser for 2 1/2 years would be inequitable to order for relief of specific performance. In the present case, inordinate delay of 11 years would be inequitable to give the relief of specific performance.

Much emphasis is placed on Section 53-A of the Transfer of Property Act by the appellant, placed reliance on the judgment of the Apex Court in the case of Shrimant Shyamrao Suryavanshi (supra). The question before the Apex Court in the said case was whether in a suit instituted by a transferor for recovery of possession of the suit property, a defendant transferee can protect his possession over the suit property obtained in pursuance of a part performance on an agreement of sale under Section 53-A of Transfer of Property Act, even if a suit for specific performance of an agreement to sell is barred by limitation. In that context it is held that:

"The matter may be examined from another angle. The established rule of limitation is that law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statue. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in a suit. Thus, the law of limitation bars only an action in a Court of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a Court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim made by him may be barred by limitation and cannot be enforced in a Court of law. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a Court of law, being barred by limitation."

Thus it is clear that a defendant transferee can defend or protect the suit property by putting forth defence of part performance though a claim for specific performance is barred by limitation and is not enforceable in the Court of law. It cannot be interpreted that it gives a right to the transferee- defendant to institute a suit for the relief of specific performance of a contract dehors the period of limitation. Taking a defence to protect the possession is different from filing a suit to enforce the contract. Accordingly, the said judgment may not enure to the benefit of the appellant to save the period of limitation. In the judgment of this Court relied on by the learned counsel for the appellant in Basavarj since deceased by LRs case (supra), this Court held that the transferee is entitled to institute a suit for injunction against the defendants basing his suit under Section 53-A of the Transfer of Property Act, albeit the period of limitation for enforcing the contract for specific performance has expired. This judgment is not applicable to the facts of the present case as the suit for injunction and suit for enforcement of a contract are two entirely different subject matters.

It is pertinent to note that the appellant was fighting the litigation on the basis of Ex. D.4, the agreement of sale dated 15.11.1987, filing the impleading application in O.S. No. 197/1987, the suit filed by Ishwarappa for injunction, for the reason best known to him the plaintiff has not filed the suit for specific performance within a reasonable time nor challenged the compromise decree entered into between Laxmibai and Ishwarappa Chikkadi, which shows that the plaintiff was not ready and willing to perform his part of the contract, but is trying to protect his possession which is not proved by taking shelter under Section 53-A of the Transfer of Property Act.

It is well settled law that a Court of appeal should not ordinarily interfere with the discretion exercised by the Courts below ( Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, . Accordingly, the concurrent finding given by the Court on appreciation of evidence, does not call for any interference.

Substantial question of law No. 4 raised in the appeal is answered against the appellant and in favour of the respondents. Hence, all other substantial questions of law raised at Sl. Nos. 1 to 3 require to be answered in the negative against the appellant.

For the forgoing reasons, appeals are dismissed.