SMT LAKSHMIDEVAMMA vs SHIVANNA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO.601 OF 2017 (SP)
BETWEEN:
SMT. LAKSHMIDEVAMMA
W/O LATE G.M. HANUMANTHA RAYAPPA,
AGED ABOUT 63 YEARS
R/AT GOWDI HALLI,
BELLAVI HOBLI,
TUMKUR TALUK
NOW RESIDING AT:
DOOR NO.22/3
BEHIND GANAPATHI TEMPLE
RD
3 CROSS, MADIVALA
BANGLAORE – 560 068
BY HER SPA HOLDER
SRI. K. RANGASWAMAIAH
S/O KARE RANGAIAH
MAJOR,
R/AT KURUVAKOTE, C.N.DURGA HOBLI,
KORATAGERE TALUK.
…APPELLANT
(BY SRI. VASANTHA A.K., ADVOCATE)
AND:
1. SHIVANNA,
(SINCE DEAD BY LRs)
1(a). SMT. MADEVAMMA
W/O LATE SHIVANNA,
AGED ABOUT 60 YEARS
1(b). SRI. RANGARAJU,
S/O LATE SHIVANNA,
AGED ABOUT 45 YEARS,
Digitally
signed by
VANDANA S
Location:
High Court
of
Karnataka
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1(c). SRI DHAYANAND
S/O LATE SHIVANNA,
AGED ABOUT 38 YEARS,
1(d). SRI MANJUNATH,
S/O LATE SHIVANNA,
AGED ABOUT 35 YEARS,
ALL ARE R/AT GOWDI HALLI,
BELLAVI HOBLI,
TUMKUR TALUK
TUMKUR DISTRICT
…RESPONDENTS
(BY SRI. V.B. SIDDARAMAIAH, ADV. FOR R1 (A TO D))
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 16.12.2016 PASSED IN
R.A.NO.239/2016 ON THE FILE OF THE VI ADDL. DIST. AND
SESSIONS JUDGE, TUMAKURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 05.01.2013
PASSED IN O.S.NO.432/2002 ON THE FILE OF THE I ADDL. CIVIL
JUDGE AND JMFC-II, TUMKUR.
THIS APPEAL, COMING ON FOR ADMISSION , THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellant was plaintiff in O.S.No.432/2002 filed by her
against the respondent – defendant for specific performance of an
alleged Sale Agreement dated 13.01.1982 alleged to have been
executed by respondent – defendant in favour of her husband
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Hanumantharayappa, in relation to the suit schedule property and
for other reliefs.
2. The said suit having been contested by the respondent
– defendant, the Trial Court proceeded to dismiss the suit vide
impugned judgment and decree dated 05.03.2013, which was
challenged by the appellant – plaintiff in R.A.No.239/2016 before
the First Appellate Court, which proceeded to dismiss the appeal
filed by the appellant – plaintiff thereby confirming the judgment
and decree of the Trial Court. Aggrieved by the impugned
judgment and decree passed by the Trial Court and the First
Appellate Court, the plaintiff is before this Court by way of the
present appeal.
3. Heard learned counsel for the appellant and learned
counsel for the respondents and perused the material on record.
4. In addition to reiterating the various contentions urged
in the petition and referring to the material on record, learned
counsel for the appellant invited my attention to the material on
record in order to point out that both the Courts committed an error
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in coming to the conclusion that the appellant – plaintiff had not
proved the due execution of the Sale Agreement dated 13.01.1982
in favour of her husband Hanumantharayappa for total sale
consideration of Rs.3,000/-. It is also submitted that both the
Courts erred in holding that the appellant and her husband were
never ready or willing to perform their part of the contract and that
the appellant was not entitled to the relief of specific performance in
the suit, which had not been filed within the period of limitation. It
was submitted that the appellant had adduced legal and acceptable
evidence to prove her contentions and failure on the part of both
the Courts to appreciate this has resulted in erroneous conclusion.
It was therefore submitted that the impugned judgment and decree
passed by the Trial Court and the First Appellate Court deserve to
be set aside and the suit of the plaintiff be decreed in her favour as
sought for in the suit.
5. Per contra, learned counsel for the respondents would
support the impugned judgment and decree passed by the Trial
Court and the First Appellate Court and submits that there is no
merit in the appeal and the same deserves to be dismissed.
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6. A perusal of the material on record will indicate that the
appellant – plaintiff instituted the aforesaid suit specifically
contending that the suit schedule property originally belonging to
the defendant was agreed to be sold by him in favour of the
appellant’s husband – Hanumantharayappa vide unregistered Sale
Agreement dated 13.01.1982 in pursuance of which, the said
appellant’s husband paid the entire sale consideration to the
defendant, who handed possession of the suit schedule property in
favour of the appellant’s husband in part performance of the
contract. It was submitted that at the time of execution of the Sale
Agreement dated 13.01.1982, since The Karnataka Prevention of
Fragmentation and Consolidation of Holdings Act, 1966 was in
force, the defendant agreed that he would execute the registered
Sale Deed in favour of the appellant – plaintiff after repeal of the
said enactment, which came to be repealed only on 02.02.1991
subsequent to which, the plaintiff’s husband as well as the plaintiff
repeatedly called upon the respondent to perform his part of the
contract and execute a registered Sale Deed in favour of the
plaintiff and since the defendant did not comply with the repeated
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requests and demands made by the plaintiff and her husband, she
instituted the aforesaid suit for specific performance of the sale
agreement and for other reliefs.
7. The respondent-defendant filed his written statement
and contested the suit disputing and denying the various
allegations and claims made by the plaintiff. The execution,
legality, validity and genuineness of the alleged sale agreement
was specifically denied and disputed by the defendant, who also
denied that he had received the entire sale consideration of
Rs.3,000/- from the plaintiff and that he had delivered possession
of the suit schedule property in favour of the plaintiff's husband. It
was submitted that the suit schedule property was a joint family
property and the defendant's children have undivided share in the
suit schedule property and as such, the suit was not maintainable
and was liable to be dismissed. It was also submitted that apart
from the fact that the suit was barred by delay and latches coupled
with the fact that the appellant – plaintiff was never ready and
willing to perform his part of the contract, the suit was also barred
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for non-joinder of necessary parties and hopelessly barred by
l imitation, as a result of which, the suit was liable to be dismissed.
8. On the basis of the aforesaid pleadings, the Trial Court
framed the following issues:
“(1) Whether the plaintiff proves that the defendant
has executed an Agreement on 13.01.1982 to sell the suit
schedule property in favour of her husband
G.M.Hanumantharayappa for a sale consideration of
Rs.3000/-?
(2) Whether the plaintiff proves that her husband
and herself have been ready and willing to perform their part
of contract as per law?
(3) Whether the plaintiff is entitled to relief of
specific performance of the contract?
(4) What Order or Decree?
Additional Issue:
(1) Whether the suit of the plaintiff is within the
period of limitation?”
9. The plaintiff examined her power of attorney holder as
PW1 and one witness as PW2 and documentary evidence at Ex.P1
to P11 were marked on her behalf while defendant examined
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himself as DW1 and documentary evidence at Ex.D1 to D11 were
marked on his behalf.
10. After hearing the parties, the Trial Court answered all
the issues against the appellant – plaintiff and proceeded to
dismiss the suit by holding as under:
"8. ADDITIONAL ISSUE NO.1: Before discussing
the other issues, this issue is taken up for consideration at
first, because the finding on other issues is dependent on
this Issue. The Plaintiff has filed this suit seeking the relief of
specific performance. It is the case of the plaintiff that
defendant having agreed to sell the suit schedule property
for sale consideration of Rs.3,000/- has executed the
Agreement of sale Ex.P.2 in favour of the husband of the
plaintiff, and has received entire sale consideration and has
parted with the possession of the suit schedule property. The
alleged agreement of sale Ex.P.2 is dtd: 13-01-1982. The
plaintiff has stated that on the day of execution of Ex.P.2 as
Fragmentation Act was existing the defendant had agreed to
execute the regular sale deed after the repeal of the same.
9. The learned counsel for defendant vehemently argued
that the Fragmentation Act has been repealed in the year
1991 and the suit filed in the year 2002, is hopelessly barred
by limitation. On this point, the learned counsel for plaintiff
argued that after the defendant filed suit O.S No.781/2001,
the plaintiff came to know about the refusal of performance
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of contract and so, the suit filed in the year 2002 is within the
period of limitation. The learned counsel for defendant while
arguing that the suit is barred by limitation, has relied upon
the Judgment reported in 2011(3) KCCR 2345 in the case of
Smt. Parvathamma and others V/s. Smt.Uma and others .
I have gone through this Judgment. In this Judgment, the
Hon'ble High Court has held that "in a specific
performance of the Agreement of Sale, if the date fixed
for the performance was after the repeal of
Fragmentation Act, the Agreement itself is invalid and
the suit filed after lapse of 3 years of the repealment of
Fragmentation Act in the year 1991, is barred by
limitation." In this case, though the Fragmentation Act has
been repealed in the year 1991, the plaintiff has filed this suit
in the year-2002 and in the light of the above cited
Judgment, this suit being filed after the lapse of 11 years of
the repealing of the Fragmentation Act is barred by limitation.
10. The learned Counsel for plaintiff while arguing that
suit is within the period of limitation has relied upon the ruling
reported in ILR 2001 KAR 3870 in the case of H.M.
Krishna Reddy V/s. H.C. Narayana Reddy. At this juncture,
it is relevant to refer to a subsequent Judgment of the
Hon'ble High Court of Karnataka reported in 2012(4) KLJ
653 in the case of T.Muniyappa V/s. H.Eshwar Sa and
others . The facts of this Judgment is similar to the facts of
the case on hand. Further as this Judgment is a subsequent
Judgment of the Hon'ble High Court of Karnataka, as per law
of precedent, this Judgment is relied upon for considering the
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case on hand. In this Judgment. the Hon'ble High Court
while considering the Agreement of Sale of the year 1985,
when the Karnataka Prevention of Fragmentation and
Consolidation of Holdings Act 1966 was in force, has held
that "the suit for specific performance filed after 14 years is
hopelessly barred by time. "In this Judgment, the Hon'ble
High Court has held that "the Agreement entered into
during the subsistence of Fragmentation Act was
unenforceable in law and so, no decree could be granted
on the said Agreement." Further the Hon'ble High Court
has held that "the suit filed after 14 years of the repealing
of the Act dated 03/12/1990, is hopelessly barred by
time”. In this case, the Agreement of Sale is dated
13/01/1982. The Karnataka Prevention of Fragmentation and
Consolidation of Holdings Act, 1966 has been repealed in
the year 1990 i.e on 03/12/1990. Hence, the suit filed in the
year 2002 having filed after lapse of 12 years of the
repealing of the Act, is held to be hopelessly barred by time
in the light of the above cited Judgment of the Hon'ble High
Court of Karnataka. In view of all the above discussion, the
suit of the plaintiff is barred by limitation. Hence, Additional
Issue No.1 is answered in the negative.
11. ISSUE No.1: The plaintiff has filed this suit seeking
specific performance of contract alleging that the defendant
has executed an Agreement of Sale Deed dated 13/01/1982
in favour of her husband G.M. Hanumnatharayappa in
respect of the suit schedule property for a sale consideration
of Rs.3000/=. The plaintiff in support of her case has
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examined her power of attorney as Pw-1 and an attesting
witness of Ex.P.2 as Pw-2 and has got marked the
documents Ex.P.1 to 11. The defendant has denied the
execution of Ex.P.2 and has stated that the suit schedule
property was the property belonging to his family and the
property is standing in the name of his brother. The
defendant in support of his defence has examined himself as
Dw-1 and has got marked the documents Ex.D.1 to 11.
12. The learned Counsel for plaintiff by referring to the
evidence of Pw-1 and 2 and documentary evidence on
record argued that the plaintiff has proved the execution of
Ex.P.2 and prayed for decreeing the suit. The learned
Counsel for defendant argued that defendant has never
executed Ex.P.2 and more over the suit schedule property
was not in the name of the defendant and hence the
agreement is not valid and hence the learned Counsel
prayed for dismissing the suit. Further the learned Counsel
for defendant by relying upon the Judgment reported in AIR
2008 SC 1541-in the case of Thiruvengada Pillai V/s.
Navaneethammal & Anr argued that the defendant has
specifically denied the execution of Ex.P.2 and so it is the
burden on the plaintiff to prove the execution of Ex.P.2 and
the plaintiff has failed to prove the same and hence the suit
is liable to be dismissed.
13. The plaintiff, who has stated about the alleged
Agreement has not come forward to lead her evidence, but
she has examined her brother as her Power of Attorney
Holder as PW.I before the court. PW.I has filed his chief
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examination affidavit by reiterating the plaint averments. In
entire chief examination affidavit, PW.I has not stated as to
how he acquired the knowledge about the Agreement of
Sale. On going through the entire evidence of PW.1, it is
forthcoming that there is no evidence as regards the
personal knowledge of PW.1 about the alleged contract
entered into between defendant and deceased
G.M.Hanumantharayappa.
In the Judgment reported in AIR 2005 SUPREME
COURT 439 "Janki Vashdeo Bhojwani v. Indusind Bank Ltd."-
The Hon'ble Apex Court has held - Order, 3 Rr. 1 and 2
empowers the holder of power of attorney to 'act' on behalf of
the principal. The word 'acts' employed in Q.3. Rr. 1 and 2.
confines only in respect of 'acts' done by the power of
attorney holder in exercise of power granted by the
instrument. The term 'acts' would not include deposing in
place and instead of the principal. If the power of attorney
holder has rendered some 'acts' in pursuance to power of
attorney, he may depose for the principal in respect of such
acts, but he cannot depose for the principal for the acts done
by the principal and not by him. Similarly, he cannot depose
for the principal in respect of the matter which only the
principal can have a personal knowledge and in respect of
which the principal is entitled to be cross-examined.
In view of this principle of law laid down by the
Hon'ble Apex court, the evidence of Pw-1 is not
considerable, as he has not done any act in pursuance of
power of attorney and as he has no personal knowledge
about the alleged contract Ex.P.2. Hence, the evidence of
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PW.1 is not relevant for considering the proof for execution
of Ex.P.2. Further PW.I is not a witness to Ex.P.2. Hence, on
that aspect also, his evidence is not considerable for the
proof of Ex.P.2.
14. PW.2 P.H.Gangaiah has filed his chief examination
affidavit by supporting the case of the plaintiff. During cross-
examination, PW.2 has stated that he do not know the
boundaries of the suit schedule property and 1 he do not
know the survey number of the schedule property. Further
PW.2 has stated that the bond for executing Ex.P.2 was
brought from the bank. In the year 1992, the bonds were not
issued through banks. Further on perusal of Ex.P.2, it is
forthcoming that, the bond on which it has been executed
has not been purchased from the bank. Hence, this shows
that PW.2 without having any knowledge about the alleged
Agreement Ex.P.2, has filed his chief examination affidavit by
supporting the case of the plaintiff. Hence, the evidence of
PW.2 is also not helpful for the plaintiff in proving the
execution of Ex.P.2.
15. The learned counsel for plaintiff vehemently argued
that in pursuance of the Agreement, deceased
G.M.Hanumantharayappa was in possession of the suit
schedule property and after his death, the plaintiff is in
possession of the property. The learned counsel for plaintiff
has made reference to the Ex.P.3, which is an affidavit sworn
by the defendant before Principal Civil Judge and Chief
Judicial Magistrate, Tumkur. I have perused Ex.P.3. In
Ex.P.3, the defendant has stated that he has executed an
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Agreement of Sale by receiving the consideration of
Rs.3000/- and has delivered the possession of suit schedule
property in favour of G.M.Hanumantharayappa. Further in
the suit filed by the defendant in O.S No.781/2001, this
document has been considered. On perusal of Ex.P.10,
which is the certified copy of Judgment passed in O.S
No.781/2001, it is forthcoming that the Hon'ble II Addl.Civil
Judge (Jr.Dr.) Court Tumkur, has held that the plaintiff is in
possession of the suit schedule property. Further the said
Judgment has been confirmed by the Hon'ble Fast Track
Court in R.A No.266/2009. Merely because the plaintiff is in
possession of the suit schedule property, this itself will not
entitle the plaintiff in getting the discretionary of specific
performance of contract. The plaintiff has to prove the
execution of Ex.P.2 by both oral and documentary evidence.
In the absence of such material evidence for proving Ex.P.2,
the plaintiff is not entitled to claim the relief of specific
performance basing on the alleged Agreement of Sale
Ex.P.2. As already discussed above, the plaintiff has not
stepped into the witness box for proving Ex.P.2. The
evidence of PWs.1 and 2 are not striking as genuine for the
proof of Ex.P.2. Hence, the plaintiff has failed to prove the
execution of Agreement dated 13/01/1982.
16. The Defendant has stated that the suit schedule
property is in the name of his brother. To substantiate this
fact, the defendant has got marked 11 RTC extracts of the
suit schedule property as Ex.D.1 to 11. Ex.D.1 to D.11 are
the RTC extracts of the Suit schedule property from the year
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2001-2002 to 2011-2012. In these RTC extracts in column
No.9, the name of Rangaawamaiah has been shown as
owner and possessor and the name of defendant is
mentioned in column No.12, which is meant for mentioning
the name of cultivator. Further the plaintiff has not produced
any document to show that, as on the date of execution of
alleged agreement of sale, the suit schedule property was
standing in the name of defendant. It is settled principle of
law that no person who is having a better title can pass the
title to some other person. Hence when as per the RTC
extracts, the defendant is only the cultivator, he is not legally
authorized to enter into any contract with any person in
respect of the said property of which he is not the owner and
possessor. On this aspect Ex.P.2 is not a valid contract.
17. In the Judgment referred supra reported in 2012(4)
KLJ 653 in the case of T.Muniyappa, V/s. H.Eshwar Sa
and others , the Hon'ble High Court of Karnataka has held
that - "the Agreement entered into during the
subsistence of Fragmentation Act was unenforceable in
law and so, no decree could be granted on the said
Agreement." In view of this principle of law laid down by the
Hon'ble High Court of Karnataka, Ex.P.2 being during the
subsistence of Fragmentation Act is held to be
unenforceable in law. In view of all the above discussion, the
plaintiff has failed to prove the execution of Ex.P.2. Hence,
Issue No.1 is answered in The negative.
18. ISSUE No.2: In view of the finding on Issue No.1, as
the plaintiff contract was has failed to prove the alleged
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Agreement of Sale Ex.P.2, there arises no question of
discussing about readiness and willingness on the part of the
plaintiff. Further in this case, in Ex.P.2, the recitals say that
the privity of between the defendant and the deceased G.M.
Hanumantharayappa. There is no recital in Ex.P.2 as to
extending the privity of contract to the plaintiff, who is the
wife of G.M. Hanumantharayappa. Further in the entire plaint
averments, the plaintiff has not stated as to how the contract
between her husband and defendant extends to her. In the
absence of such recitals in the contract for extending the
contract to herself, the plaintiff cannot rely upon the contract
of her husband for claiming the relief of specific performance.
Hence, the plea of plaintiff saying that she is ready and
willing to perform her part of contract is contrary to the
principles of law of contract.
19. In this case the plaintiff has produced the death
extract of G.M. Hanumantharayappa and it is marked as
Ex.P.9 and the same speaks that deceased
Hanumantharayappa has died on 26-08-2001. Further the
plaintiff has produced the geneology and it is marked as
Ex.P.8. Ex.P.8 speaks that deceased Hanumantharayappa
has died living behind his wife i.e. the plaintiff and one son
and two daughters. When as per Ex.P.8, deceased 1
Hanumantharayappa has died living behind four legal
representatives, then why the plaintiff alone has filed this suit
has not been pleaded. Further as siready discussed above,
there is no single recital in Ex.P.2, as to the extending of
privity of contract in favour of the plaintiff. Hence in the
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contract between the plaintiff and deceased absence of such
Hanumantharayappa for extension of privity of contract in
favour of the plaintiff, the plea of readiness and willingness
will not aid the plaintiff in claiming the relief of specific
performance. Hence, Issue No.2 is answered in the negative.
20. ISSUE No.3: For the aforesaid reasons and findings
on Issues No.1 and 2 and Additional Issue No.1, as the suit
of the plaintiff is barred by limitation and as the plaintiff has
failed to prove the execution of Ex.P.2 and as there is no
privity of contract between the plaintiff and defendant, the
plaintiff is not entitled for the relief of specific performance of
contract. Hence, Issue No.3 is answered in the negative.
21. ISSUE No. 4: For the aforesaid reasons and findings
on Issue No.1 to 3 and Additional Issue No. 1, I proceed to
pass the following:
ORDER
Suit of the plaintiff filed against the defendant seeking
the relief of specific performance of contract is hereby
dismissed.
Under the circumstances of the case, the parties shall
bear their own costs.
Draw Decree accordingly."
11. As can be seen from the findings recorded by the Trial
Court referred to supra, the Trial Court came to the conclusion that
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PW1 who was merely a Power Attorney Holder of the plaintiff did
not have any personal knowledge as regards execution of the
alleged Sale Agreement by the defendant in favour of the plaintiff's
husband nor did he have any personal knowledge as regards the
alleged sale transaction said to have been entered into between
the defendant and the plaintiff’s husband including payment of sale
consideration of Rs.3,000/- by the plaintiff's husband in favour of
the defendant. The Trial Court also took note of the fact that PW1
was neither a signatory nor a witness to the alleged Sale
Agreement and his evidence was not sufficient to substantiate the
claim of the plaintiff that the defendant had executed a Sale
Agreement in favour of her husband. The Trial Court also drew
adverse inference against the plaintiff for not stepping into the
witness box nor adducing evidence on her own and came to the
conclusion that the various discrepancies, admissions,
inconsistencies and contradictions in the evidence of PW2, the
alleged fourth witness to the Sale Agreement was sufficient to hold
that the appellant – plaintiff had not proved due execution of the
Sale Agreement by the defendant in favour of the plaintiff's
husband.
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12. A perusal of the impugned judgment and decree of the
Trial Court will also indicate that the Trial Court took cognizance of
the undisputed fact that the plaintiff’s husband-
Hanumantharayappa had not taken any steps from the date of the
agreement till his demise on 26.08.2001 for the purpose of seeking
enforcement of the alleged Sale Agreement; so also, the aforesaid
Act of 1956 having been repealed as long back as on 02.02.1991
almost more than 10 years prior to the demise of
Hanumantharayappa on 26.08.2001, there was complete and total
inaction on the part of the said Hanumantharayappa to take
necessary steps to seek enforcement of the Sale Agreement for
more than 10 years from the date of repeal of the said Act of 1956
till his demise, which was sufficient to come to the conclusion that
the said Hanumantharayappa was not ready and willing to perform
his part of the contract. The Trial Court also took note of the fact
that the first part of Article 54 of the Limitation Act was applicable
and the cause of action and the right of the plaintiff's husband to
sue for specific performance arose when the said Act of 1956 got
repealed on 02.02.1991 and the suit filed not even by the plaintiff's
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husband but by the plaintiff after the demise of her husband in the
year 2002 was hopelessly barred by limitation. Under these
circumstances, the Trial Court proceeded to dismiss the suit filed
by the appellant – plaintiff, who challenged the same before the
First Appellate Court in the aforesaid R.A.No.239/2016, in which
the First Appellate Court framed the following points for
consideration and answered the same against the appellant –
plaintiff by holding as under:
“(1) Whether the trial Court has erred in answering
issues No.1 to 3 and additional issue No.1 as in the
Negative?
(2) Whether the trial Court has erred in properly
appreciating the evidence placed before it and that therefore
the impugned judgment and decree of the trial Court
warrants interference by this Court?
(3) What order or decree?”
"12. POINTS No.1 & 2 : These two points are
interlinked with each other and hence, these points are taken
up together for common discussion to avoid repetition of
facts. On careful perusal of the pleadings, evidence and
arguments urged by both sides, it is clear that there exists no
dispute in between the parties to the suit that the defendant
is the absolute owner of the suit schedule property as on
13.01.1982 as well as on the date of filing this suit. The total
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extent and boundaries of the suit schedule property as
mentioned in the plain schedule are also not disputed by the
defendant. The defendant has also not specifically disputed
the fact of filing of suit by him in O.S 781/2002 for grant of
permanent injunction in respect of the suit schedule property
against the plaintiff before the Court of II Adl. Civil Judge,
Tumakuru. It is not in dispute that the said suit of the
defendant filed for grant of permanent injunction came to be
dismissed after its contest.
13. In view of the facts and circumstances of this suit
as well as the facts and circumstances of the aforesaid case
laws, I have carefully re-appreciated the evidence placed
before the trial Court for both sides in support of their
respective contentions. I also carefully gone through the view
of the trial Court for dismissing the plaintiff’s suit. The trial
Court by relying on the several judgments of the Hon’ble
High Court of Karnataka reported in 204 (3) KCCR 2345 ILR
KAR 7870, 2012 (4) KLJ 653 has opined that suit, of the
plaintiff having filed after 12 years of repealing of the
Fragmentation Act, is hopelessly barred by time. Therefore, it
has answered the additional issue as in the negative. The
trial Court by relying the judgment of the Hon’ble Apex Court
in AIR 2005 SC 439 Janaki Vashdeo Bhojwani V/s Indusind
Ban Ltd., has opined that the P.W-1 cannot depose the
evidence for the acts done by the plaintiff. The trial Court has
further held that during the subsistence of Fragmentation
Act, the agreement enter in to between the parties of this suit
is un enforceable in law. Therefore, it has opined that the
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plaintiff’s has fail to prove execution of Ex.P-2 document.
The trial Court has also held that the plaintiff fails to prove
her readiness and willingness in performing part of the
contract. Therefore, the trial Court has answered the issues
No. 1 to 3 as in the negative and has dismissed the suit of
the plaintiff.
14. P.W-1 is a power of attorney holder of the plaintiff
of this suit. In the affidavit evidence filed by him before the
trial Court, he had specifically reiterated all most all the fact
as averred in the plaint once again before this Court. P.W-2
by way of filing affidavit evidence has deposed before this
Court that on the said date, the defendant had executed the
Ex.P-2 sale agreement in favour of the plaintiff’s husband for
consideration of Rs 3,000/-. He also has specifically deposed
that the defendant had received Rs 3,000/- from the husband
of the plaintiff and that the defendant had delivered
possession and enjoyment of the suit schedule property to
the plaintiff’s husband on the said date itself. P.W-2 has
specifically identified his signature as well as the signatures
of the other witnesses on the Ex.P-2 document. During the
course of his oral evidence by way of filing affidavit evidence,
the defendant has specifically reiterated all most all the
pleadings as averred by him in his written statement. He has
specifically denied that he executed the Ex.P2 sale
agreement as alleged in favour of the plaintiff’s husband on
the said date. He also has specifically denied that he had
received Rs 3,000/- from the plaintiff’s husband on the said
date in the presence of P.W-2 and others. He also has
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specifically denied that he delivered possession and
enjoyment of the suit schedule property to the plaintiff’s
husband on the said date of alleged agreement. I have
carefully perused the order sheet of the trial Court, the P.W-1
has obtained permission of this Court to represent the
plaintiff as provided under order 3 rule 2 CPC.
15. In view of the aforesaid oral evidence of P.W-1 &
2 as well as D.W-1, I have carefully perused the contents of
the documents marked at Ex.P-1 to 11 as well as the Ex.D-1
to 11 placed before the trial Court. Ex.P-1 the special power
of attorney dated 18.08.2003 discloses that plaintiff has
executed the said document in favour of P.W-1 who is her
brother (1) to engage or appoint any legal practitioner to
conduct the said case before the trial Court (2) to sign, verify
and file a written statement. (3) to make un-present to the
Court an application in connection with any proceedings in
the suit (4) to produce or summon or receive back
documentary evidence. (5) to make and file compromise or a
confession of judgment and to refer the case to arbitration.
(6) to deposit and withdraw any money for the purpose of
any proceeding. (7) to file an application for execution of a
decree or order passed in the said suit and to sign and to
verify such application. (8) To receive any money due to the
plaintiff under such decree or order and to certify payment to
the Court (9) to apply for inspection and inspect documents
or records (10) to obtain a copies of documents and papers
and for the conduct of the said case. The said power of
attorney do not disclose that the plaintiff has authorized the
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P.W-1 to depose evidence in the said suit for her behalf on
merits of the said suit. Ex.P-2 disputed sale agreement
discloses that on 13.01.1982 the defendant of this suit had
executed the said document in favour of the plaintiff’s
husband G.M.Hanumantharayappa in respect of sale of the
suit schedule property for a consideration of Rs 3,000/-. The
said document further discloses that the defendant had
received Rs 3,000/- from the plaintiff’s husband towards
entire sale consideration amount. The said document also
further discloses that the defendant had delivered
possession and enjoyment of suit schedule property in
favour of the plaintiff’s husband on the said date itself. Ex.P-
2 further disclose that the defendant had agreed to execute
the sale deed only after repeal of Fragmentation Act. Ex.P-3
affidavit discloses that the defendant of this said suit had
sworn before the Chief Judicial Magistrate , Tumakuru
stating that he had executed sale agreement marked at
Ex.P-2 in favour of the plaintiff’s husband and received Rs
3,000/-. The said agreement also has further discloses that
the defendant had further sworn that he delivered
possession and enjoyment of the suit schedule property to
the plaintiff’s husband on the said date itself. Ex.P-4
discloses that the defendant had filed the application before
the Deputy Tahasildar, Nada Kacheri, Bellavi Hobli,
Tumakuru in respect of change of katha and pahani in
respect of the suit schedule property in his name. the said
document further discloses that in view of the suit, the
application of the defendant dismissed. Ex.P-5 Copy of
mahazar prepared before the Deputy Tahasildar, Nada
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Kacheri, Bellavi Hobli, Tumakuru, on 18.12.2011 discloses
that the plaintiff’s husband’s brother Chikkanna has been in
possession and enjoyment of the suit schedule property for
plaintiff’s husband. Ex.P-6 RTC of the suit schedule property
for the year 2000-01 discloses that one Rangashamaiah of
Gowdihalli Village was the khabjedar of the suit schedule
property for the said year and that it was his ancestral
property. The said document further discloses that the
defendant was in possession and enjoyment of the suit
schedule property as on the said year. Ex.P-7 discloses that
the said one Chikkanna had paid revenue of the suit
schedule property to the Government on 10.04.2001. Ex.P-8
G-Tree of the plaintiff’s family. Ex.P-9 death certificate
discloses that the plaintiff’s husband
G.M.Hanumantharayappa died on 26.08.2001 at Manipal
Heart Foundation, Bangalore-17. Ex.P-10 Copy of the
judgment passed in O.S 781/01 discloses that the
defendant’s suit filed for permanent injunction against the
plaintiff came to be dismissed on 16.03.2006. Contents of
Ex.P-8 to 11 are not disputed by the defendant. Ex.P-11 is
the copy of the decree drawn in O.S 781/01. Ex.D-1 to D-11
RTC of the suit schedule property for the year 2001-02 to
2011-12 are all discloses that one Rangashamaiah was the
khabjedar of the suit schedule property on ancestral basis
and that the defendant are in possession and enjoyment of
the suit schedule property as on the said years respectively.
16. In view of specific denial of the defendant, in his
evidence that recorded during the course of his chief-
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examination as well as in his cross-examination and also in
his pleadings, that he had executed the Ex.P-2 sale
agreement in favour of the plaintiff’s husband in respect of
the suit schedule property, the burden was on the plaintiff to
prove that the defendant had executed the agreement
marked at Ex.P-2 as held by the Hon’ble Apex Court in a
case reported in AIR 2008 SC 1541 Thiruvengada Pillai’s
case at para 17, “. In this case, the plaintiff asserts that the
defendant had executed the sale agreement in favour of her
husband. Therefore, as per section 101 of evidence Act also,
the burden of proof is lies on the plaintiff to prove that the
defendant had executed the agreement. To prove her case,
she relied the evidence of P.W’s 1 & 2. P.W-1 is the PA
holder of plaintiff and brother of the plaintiff. P.W-2 according
to the plaintiff is an attesting witness to Ex.P-2 document.
17. As per order 3 rule 1 CPC “ Any appearance
application or act in or to any Court, required or authorized
by law to be made or done by a party in such Court, may,
except where other wise expressly provided by any law for
the time being in force, be made or done by the party in
person or by his recognized agent or by a pleader
(appearing, applying or acting as the case may be) on his
behalf provided that any such appearance shall if the Court
so directs , be made by the party in person. As per order 3
Rule 2 CPC the recognized agents of the parties by whom
such appearances, applications and acts may be made or
done are (a) persons holding powers of attorney authorizing
them to make and do such appearances, applications and
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acts on behalf of such parties. (b) persons carrying on trade
or business for and in the names of parties, not resident
within the local limits of the jurisdiction of the Court within
which limits the appearance, application or act is made or
done in matters concerned with trade or business only,
where no other agent is expressly authorized to make and do
such appearances, applications and acts. Ex.P-1 as stated
supra discloses that the plaintiff authorized the P.W-1 to
make and do such appearances application and acts on her
behalf only. Ex.P-1 do not discloses that the plaintiff has
authorized the P.W-1 to depose evidence in the suit on her
behalf. In fact, order 3 Rule 1 & 2 of CPC also not provided
authority to the parties to the suit to authorize their
recognized agents to depose evidence on behalf of such
parties to the suit about the acts done by them or have
personal knowledge over facts. The Hon’ble Apex Court in a
case law reported in AIR 2005 SC 439 Janki Vasudeo
Bhojwani’s case also has specifically held the “The word
‘acts’ employed in order 3 Rules 1 & 2 confines only in
respect of the acts done by the power of attorney holder in
exercise of power granted by the instrument. The term ‘act’
should not include deposing in place and instead of the
principal. If the power of attorney holder has rendered some
‘acts’ in pursuance to power of attorney, he may depose for
the principal in respect of such acts, but he cannot depose
for the principal for the acts done by the principal and not by
him. Similarly, he cannot depose for the principal in respect
of the matter which only the principal can have a personal
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knowledge and in respect of which the principal is entitled to
be cross-examined.
18. I have carefully perused the evidence of P.W-1
that recorded during the course of his chief as well as in the
cross-examination. No where he deposed before the trial
Court that he ad rendered some acts in pursuance of the
said power of attorney. He also had not deposed before the
trial Court that he had personal knowledge over the
execution of Ex.P-2 document by the defendant in favour of
the plaintiff’s husband. He also has not deposed that the
defendant had executed the Ex.P-2 sale agreement in his
presence in favour of the plaintiff’s husband in respect of the
suit schedule property. P.W-1 also had not deposed before
the trial Court that the plaintiff had instructed him about the
facts of the suit and to depose the same before the trial
Court. He also had not made his signature to the Ex.P-2
document. His evidence recorded during the course of his
cross-examination discloses that he had no knowledge that
how the defendant acquired the suit schedule property.
Therefore, it is clear that the P.W-1 has not rendered any
acts in pursuance of the Ex.P-1 power of attorney except
deposing his evidence before this Court. His evidence also
clearly discloses that the P.W-1 has no personal knowledge
over the execution of the Ex.P-2 sale agreement in favour of
the plaintiff’s husband. Therefore, it is clear that the evidence
of P.W-1 is not supported the case of the plaintiff that the
defendant had executed the Ex.P-2 sale agreement in favour
of the plaintiff’s husband on 13.01.1982 in respect of the suit
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schedule property. It is true that the plaintiff’s husband
G.M.Hanumantharayappa died on 26.08.2001. Plaintiff
pleaded that she alone is the LR of her husband. But G-Tree
marked at Ex.P-8 discloses that the plaintiff’s husband had
two daughters and one son. In the plaint also it was not
pleaded that the plaintiff had personal knowledge over the
execution of Ex.P-2 sale agreement. To know whether the
Ex.P-2 was executed as alleged, the evidence of plaintiff or
other LR’s of plaintiff’s husband is required and that the said
evidence required to be tested by the defendant by cross-
examining them about the said facts. Ex.P-8 was prepared
on 11.10.2001. As on that date, the plaintiff was aged 42
years. In the Ex.P-1, it was not stated that why the plaintiff
had executed the said power of attorney to the P.W-1. No
evidence also produced to show that the plaintiff was/is
unable to present before the trial Court to depose her
evidence. Therefore, evidence of P.W-1 cannot be accepted
in support of the case of the plaintiff.
19. According to the plaintiff, the P.W-2 is an attesting
witness to the Ex.P-2 sale agreement. P.W-2 as stated supra
also deposed that he had attested the Ex.P-2 on that date
and that he identified his signature on Ex.P-2 as Ex.P-2 (a). I
carefully examined the signatures of P.W-2 on his deposition
sheet and the signature marked as Ex.P-2 (a) on Ex.P-2
document. His signature on his deposition sheet on Ex.P-2
document are not similar in nature. During the course of his
cross-examination he deposed that he did not seen the suit
schedule property and that he did not know who are in
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possession of the suit schedule property. Where as in his
chief-examination he had deposed that the plaintiff and her
husband have been enjoying the suit schedule property till
the date of his deposition from the date of execution of Ex.P-
2 document. Therefore, evidence of P.W-2 also is not clear
about the execution of the Ex.P-2 document in favour of the
plaintiff’s husband. Therefore, evidence of P.W-2 also in not
reliable in nature. According to the plaintiff, the brothers of
the defendant i.e. G.K.Rangashamaiah, Ganganna and
Jayanna are also attesting witnesses to the said document
marked at Ex.P-2. But the plaintiff or her PA holder had not
tried to get examine them in support of her case. They are
also the material witnesses to the plaintiff’s case. In view of
non-examination of the said brothers of the defendant,
adverse interference is to be drawn against the plaintiff.
20. About plaintiff’s contention that the defendant had
delivered possession and enjoyment of the suit schedule
property to her husband on 13.01.1982, the plaintiff has
relied Ex.P-3 to 5 documents. No doubt Ex.P-3 discloses that
the person named as Shivanna S/o Sannakariappa, aged 30
years, Resident of Gowdihalli Village, had sworn before the
CJM, Tumakuru on 13.01.1982 stating that he had delivered
possession of suit schedule property to the plaintiff’s
husband and executed the sale agreement on 13.01.1982
itself. But the defendant has specifically denied contents of
Ex.P-3. Therefore, to prove contents of Ex.P-3 documents,
plaintiff ought to examine Sri. K.Kumar, Advocate who
identified the said Shivanna before the CJM, Tumakuru on
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13.01.1982 to prove her case that the defendant was
executed the Ex.P-3 document before the CJM, Tumakuru
on 13.01.1982. But the plaintiff had not examined the said
Sri.K.Kumar, Advocate. Therefore, it is doubtful that the
defendant was executed the Ex.P-3 document before CJM,
Tumakuru in favour of the plaintiff’s husband on 13.01.1982.
In Ex.P-5, it was shown that Chikkanna, the younger brother
of the plaintiff’s husband has been in possession of the suit
schedule property for plaintiff’s husband. The said Chikkanna
not been examined before the trial Court to prove the said
fact that he has been in cultivation of the suit schedule
property for plaintiff’s husband. In fact in the plaint, it was not
specifically pleaded that the said Chikkanna has been in
cultivation/possession of the suit schedule property for
plaintiff or her husband. RTC’s maked at Ex.P-6 as well as
Ex.D-1 to 11 also not discloses that the said Chkkanna, or
plaintiff’s husband or the plaintiffs have been in possession
of the suit schedule property after 13.01.1982. In fact, in
column No.12(2) of the said RTC, it was shown that the
defendant has been in possession and enjoyment of the suit
schedule property from the years 2000 to 2011-12. In Ex.P-
10, the Court of II Adl. Civil Judge & JMFC, Tumakuru had
not opined that the plaintiff of this suit has been in
possession of the suit schedule property as on the date of
filing the said suit. In the said suit it was held that the
defendant of this suit was not in lawful possession and
enjoyment of the suit schedule property as on the date of
filing the said suit. In the said suit, the Court was opined that
the plaintiff is to work out her remedy in a suit filed for
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specific performance of contract. Therefore, it is clear that
the trial Court has rightly held that the evidence of P.W’s 1 &
2 is not liable to be accepted. The trial Court also has rightly
held that the plaintiff has failed to prove the execution of the
agreement dated 13.01.1982.
21. Regarding contention of the plaintiff that the
provisions of Fragmentation Act is not applicable to the suit
schedule property since it was not “Fragment”. In Ex.P-2 it
was shown that the Fragmentation Act was applied to the
suit schedule property as on 13.01.1982 and that the
defendant agreed to execute the sale deed only after repeal
of the said Act. From a reading of page 65 of the case law
reported in AIR 2011 KARNATAKA 58 Smt. Parvathamma’s
case ‘Fragment’ means a holding of land of less extent than
the appropriate standard area specified in column (3) of the
schedule to the Act in respect the class of land specified in
the corresponding entry in column (2) of the schedule, which
reads as follows:
Sl. No. Class of lands Area
1 A Class One -half acre
2 B Class Three-fourth acre
3 C Class One and one-forth acre
4 D Class Two and Seven-tenth acre
Properties, excluding a house property and a vacant
site, are described as dry lands and would hence be “D
Class” lands for the purpose of the Act. Therefore, it is clear
that D class land measures less than two and seven-tenth
acres would fall under the definition of a word “Fragment” for
the purposes of the Act. Suit schedule property is less than 2
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acres and seven-tenth acres and that is not a house property
or vacant site. Therefore, definitely suit schedule property be
comes under the ‘D’ class land and fall under the definition of
word ‘Fragment’ for the purposes of the said Act. Therefore,
the contract marked at Ex.P-2 is void-ab-mitio and cannot be
enforced at all in view of the said Act.
22. About readiness and willingness, in the plaint at
para 5, it was pleaded that the plaintiff is always ready and
willing to perform his part of contract. The said fact also
specifically deposed in the evidence of P.W-1 in his affidavit
at para-5. But as stated supra, the P.W-1 is not a competent
person to say about the execution of Ex.P-2. Therefore, he
also is not competent person to say about readiness and
willingness. No notice issued to the defendant expressing the
plaintiff’s or husbands readiness and willingness to perform
their part of contract. Suit filed in the year 2002. Disputed
agreement executed in the year 1982. Fragmentation Act
was repealed on 05.02.1991. No evidence placed before the
Court to show that when exactly they requested the
defendant to execute the sale deed by stating the specific
date, time and place to execute the sale deed. Therefore,
trial Court has rightly held that the plaintiff fails to prove her
ready and willingness to perform her part of the said
contract.
23. The article 54 of Limitation Act applies to the suits
for specific performance Act. The learned counsel for the
plaintiff contends that no exact time limit is fixed for
performance of the contract. Therefore, limitation of 3 years
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starts from the date of refusal of the performance. At para 6 it
was stated that the course of action for the suit arose on
13.01.1982 the date of filing of the suit in O.S 781/2001 and
subsequently at Gowdihalli Village. Ex.P-10 discloses that
the suit in O.S 781/2001 filed on 30.10.2001. As stated
supra, in Ex.P-2 about the date of performance of contract it
was shown as under:
¥ÉqÀÆå¯ï ¸ÀévÀÄÛ vÀÄAqÀĨÀsÆ«Ä DVzÀÄÝ CªÀPÁ±À«®èªÁzÀÝjAzÀ ªÀÄÄAzÉ
PÁ£ÀÆ£ÀÄ §AzÀÄ jf¹ÖçUÉ CªÀPÁ±À §AzÁUÀ £ÁåAiÀĪÁzÀ PÀæAiÀÄ ¥ÀvÀæ §gÉzÀÄ
jf¹Öç ªÀiÁr¹PÉÆqÀÄvÉÛêÉ.
As stated supra, the Fragmentation Act was repealed
on 05.02.1991. Therefore, limitation starts from 05.02.1991
suit filed after 3 years from 05.02.1991. As stated supra it
was stated that cause of action arose on 13.01.1982. The
plaintiff has not produced any evidence to show that the
defendant was refused to perform his part of contract as on
the date of filing the suit filed by him in O.S 781/01.
Therefore, it is clear that the suit of the plaintiff is hopelessly
barred by law of limitation. Therefore, the trial Court has
rightly answered the additional issue No.1 as in the negative.
It is clear that the Ex.P-2 is unenforceable document in view
of the fact that the suit schedule property was a ‘Fragment ‘
as on 13.01.1982. it is also clear that the plaintiff fails to
prove the execution of the Ex.P-2 document. She also fails to
show that she or her husband or ever ready and willing to
perform their part of contract. In view of the fact at Ex.P-2
void-ab-miltio document as on 13.01.1982 , it cannot be
specifically enforced in view of sec 14(b) of Specific Relief
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Act. Though the defendant specifically admitted that he is the
absolute owner of the suit schedule property as on
13.01.1982, but no documents placed to show his title over
the suit schedule property as on 13.01.1982. Ex.P-6 or Ex.D-
1 to 11 also not discloses that the defendant was the owner
of the suit schedule property as on the date of filing this suit.
Therefore, it is clear that the defendant had not acquired
valid marketable title over the suit schedule property as on
13.01.1982 or as on the date of filing the suit. Therefore, it is
also clear that the trial Court has rightly rejected to grant the
relief of specific performance of the said contract. Therefore,
it is clear that the trial Court has rightly answered issues
No.1 to 3 as in the negative. Hence, no grounds to interfere
with the properly reasoned impugned judgment and decree
of the trial Court. Hence, no grounds to appreciate the
arguments of the learned counsel appeared for the plaintiff
that the trial Court was erred in dismissing the plaintiff’s suit.
Therefore, this appeal is devoid of merits and that therefore it
deserves to be dismissed. Therefore I answer the aforesaid
points No. 1 to 2 as in the Negative.
24. POINT NO.4: In view of my answer to point No.1
to 2, I proceed to pass the following:
ORDER
This appeal, filed by the plaintiff, is hereby
dismissed. The impugned judgment and decree of
the trial Court is here by confirmed.
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In the circumstances of the case parties to
this appeal shall bear their own costs.
Draw up decree accordingly,"
13. Upon re-consideration, re-evaluation and re-
appreciation of the entire material on the record, I am of the view
that the First Appellate Court has rightly confirmed the findings of
the Trial Court and came to the conclusion that the alleged Sale
Agreement had not been proved in accordance with law; that the
plaintiff and her husband were never ready and willing to perform
their part of the contract and that the suit was barred by limitation;
the enormous / huge inaction / delay / latches on the part of the
plaintiff and her husband and thereafter, the plaintiff in not seeking
any specific performance for more than 20 years from the date of
the Sale Agreement and in any event, more than 10 years after the
said Act of 1956 was repealed on 02.02.1991 lead to an
unmistakable conclusion that the plaintiff and her husband were not
ready and willing to perform their part of the contract; that the suit
was barred by limitation and the long, enormous, huge,
unexplained, inordinate delay and latches on the part of the
plaintiff's husband and the plaintiff in failing to seek specific
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performance was sufficient to reject the claim of the plaintiff, who
would not be entitled to the discretionary and equitable relief of
specific performance.
14. The aforesaid findings of facts recorded by both the
Courts cannot be said to be perverse or capricious nor can the
same be said to be contrary to the material on the record so as to
give rise to any question of law much less substantial question of
law warranting interference by this Court in the present appeal.
Accordingly, I do not find any merit in the appeal and the same is
hereby dismissed .
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
SV
List No.: 1 Sl No.: 23