Karnataka High Court
Basappa S/O Channappa … vs Sri Balappa S/O Basappa Pujar on 17 January, 2025
1
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE 17TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL No.2462 OF 2006 (SP)
C/W
REGULAR SECOND APPEAL No.2460 OF 2006 (SP)
IN RSA No.2462/2006
BETWEEN
BASAPPA
S/O CHANNAPPA KALAVEERAPPANAVAR
SINCE DECEASED BY HIS LRS
1(a) SMT.YALLAVVA
W/O BASAPPA KALAVEERAPPANAR
AGE: 55 YEARS,
OCC: COOLIE AND HOUSEHOLD
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
1(b) SRI CHANDRAPPA
S/O BASAPPA KALAVEERAPPANAVAR
AGE: 36 YEARS,
OCC: COOLIE
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
1(c) SRI SURESH
S/O BASAPPA KALAVEERAPPANAVAR
AGE: 32 YEARS, OCC: COOLIE
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
1(d) SRI ASHOK
2
S/O BASAPPA KALAVEERAPPANAVAR
AGE: 29 YEARS, OCC: COOLIE
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
2. SUBHASH
S/O CHANNAPPA KALAVEERAPPANAVAR
AGE: 58 YEARS,
OCC: AGRICULTURE
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
...APPELLANTS
(BY SMT PALLAVI S PACHAPURE, ADVOCATE FOR
SRI F.V. PATIL, SRI K.V. HIREMATH, ADVOCATES)
AND
SRI BALAPPA
S/O BASAPPA PUJAR
SINCE DECEASED BY HIS LRs
1(a). SMT. KOKILA
W/O RAMESHREDDY GODIHAL
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O: KUSAGUR, TAL: RANEBENNUR,
DIST: HAVERI - 581208
1(b). SMT. KAVITA
W/O NINGAREDDY GODIHAL
AGE: 43 YEARS, OCC: HOUSEWIFE,
R/O: KUSAGUR, TAL: RANEBENNUR,
DIST: HAVERI - 581208.
1(c). SMT. ROHINI
W/O SHIVAREDDY JANGAREDDY
AGE: 41 YEARS, OCC: HOUSEWIFE,
R/O: MOTEBENNUR, TAL: BYADAGI,
DIST: HAVERI - 581106.
1(d). SMT. SUNITA
W/O BALAPPA PUJAR
AGE: 66 YEARS, OCC: HOUSEWIFE,
3
R/O: MOTEBENNUR, TAL: BYADAGI,
DIST: HAVERI - 581106.
1(e). SRI. RAJENDRA
S/O BALAPPA PUJAR
AGE: 37 YEARS, OCC: LECTURER,
C/O: SHIVAREDDY JANGAREDDY,
R/O: MOTEBENNUR, TAL: BYADAGI,
DIST: HAVERI - 581106.
...RESPONDENTS
(BY SRI S.A. SONDUR, ADVOCATE FOR
SRI K.L. PATIL, SRI S.S. BETURMATH, ADVOCATES FOR R1(A TO E) )
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND
DECREE DT.22.06.2006 PASSED IN R.A.NO.25/2003 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) AND PRL. JMFC., RANEBENNUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT.28.01.2003
PASSED IN O.S.NO.162/1996 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN.) AND I ADDL. JMFC., RANEBENNUR AND ETC.
IN RSA No.2460/2006
BETWEEN
BASAPPA
S/O CHANNAPPA KALAVEERAPPANAVAR
SINCE DECEASED BY HIS LRS
1(a) SMT.YALLAVVA
W/O BASAPPA KALAVEERAPPANAR
AGE: 55 YEARS,
OCC: COOLIE AND HOUSEHOLD
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
1(b) SRI CHANDRAPPA
S/O BASAPPA KALAVEERAPPANAVAR
AGE: 36 YEARS,
4
OCC: COOLIE
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
1(c) SRI SURESH
S/O BASAPPA KALAVEERAPPANAVAR
AGE: 32 YEARS, OCC: COOLIE
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
1(d) SRI ASHOK
S/O BASAPPA KALAVEERAPPANAVAR
AGE: 29 YEARS, OCC: COOLIE
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
2. SUBHASH
S/O CHANNAPPA KALAVEERAPPANAVAR
AGE: 58 YEARS,
OCC: AGRICULTURE
R/AT YANNIHOSALLI
TQ: RANEBENNUR,
DIST: HAVERI 581115
...APPELLANTS
(BY SMT PALLAVI S PACHAPURE, ADVOCATE FOR
SRI F.V. PATIL, SRI K.V. HIREMATH, ADVOCATES)
AND
SRI BALAPPA
S/O BASAPPA PUJAR
SINCE DECEASED BY HIS LRs
1(a). SMT. KOKILA
W/O RAMESHREDDY GODIHAL
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O: KUSAGUR, TAL: RANEBENNUR,
DIST: HAVERI - 581208
1(b). SMT. KAVITA
5
W/O NINGAREDDY GODIHAL
AGE: 43 YEARS, OCC: HOUSEWIFE,
R/O: KUSAGUR, TAL: RANEBENNUR,
DIST: HAVERI - 581208.
1(c). SMT. ROHINI
W/O SHIVAREDDY JANGAREDDY
AGE: 41 YEARS, OCC: HOUSEWIFE,
R/O: MOTEBENNUR, TAL: BYADAGI,
DIST: HAVERI - 581106.
1(d). SMT. SUNITA
W/O BALAPPA PUJAR
AGE: 66 YEARS, OCC: HOUSEWIFE,
R/O: MOTEBENNUR, TAL: BYADAGI,
DIST: HAVERI - 581106.
1(e). SRI. RAJENDRA
S/O BALAPPA PUJAR
AGE: 37 YEARS, OCC: LECTURER,
C/O: SHIVAREDDY JANGAREDDY,
R/O: MOTEBENNUR, TAL: BYADAGI,
DIST: HAVERI - 581106.
...RESPONDENTS
(BY SRI S.A. SONDUR, ADVOCATE FOR
SRI K.L. PATIL, SRI S.S. BETURMATH, ADVOCATES FOR R1(A TO E) )
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND
DECREE DT.22.06.2006 PASSED IN R.A.NO.24/2003 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) AND PRL. JMFC., RANEBENNUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT.28.01.2003
PASSED IN O.S.NO.60/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.)
AND I ADDL. JMFC., RANEBENNUR AND ETC.
THESE APPEALS HAVING BEEN RESERVED FOR JUDGMENT ON
12.12.2024 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
6
CAV JUDGMENT
RSA No.2460/2006 is filed under Section 100 of Code of Civil
Procedure, 19081 by the defendants2 challenging the judgment and
decree dated 22.06.2006 passed in RA No.27/2003 by the Court of the
Civil Judge (Senior Division) and Principal JMFC, Ranebennur3 and the
judgment and decree dated 28.01.2003 passed in OS No.60/1997 by
the Principal Civil Judge (Junior Division) and I Additional JMFC,
Ranebennur4.
2. RSA No.2462/2006 is filed under Section 100 of Code of Civil
Procedure, 19081 by the plaintiff2 challenging the judgment and decree
dated 22.06.2006 passed in RA No.25/2003 by the First Appellate
Court and the judgment and decree dated 28.01.2003 passed in OS
No.162/1996 by the Trial Court.
3. The parties herein are referred to as per their status in the
transaction for the sake of convenience.
1
Hereinafter referred to as the ‘CPC‘
2
Hereinafter referred to as the ‘owners’
3
Hereinafter referred to as the ‘First Appellate Court’
4
Hereinafter referred to as the ‘Trial Court’
7
4. OS No.60/19975 is filed by Balappa Basappa Pujar6 for
specific performance of the Agreement of Sale dated 21.7.1973
against defendant Nos.1 and 2 in the said suit, who were the children
of the original deceased owner of RS No.34/2, measuring 4 acres 31 ½
guntas including pot karab situated at Ennehosalli village at
Ranebennur Taluk7, by name one Channappa. OS No.162/19978 is
filed by the children of the deceased owner for a declaration that the
Agreement dated 6.3.1972 executed by deceased Channappa in favour
of the agreement holder (defendant therein) is null and void and for a
declaration that they are the absolute owners of the suit property and
for cancellation of the revenue entries. The suit for declaration was
clubbed with the suit for specific performance vide order dated
23.6.2000 passed by the Trial Court and hence, the Trial Court treated
the suit for specific performance as the main suit and the pleadings in
the said suit were taken into consideration for adjudication of the
matter.
5. It is the case of the agreement holder that deceased
Channappa was the original owner of the suit property. That due to
5
Hereinafter referred to as the ‘suit for specific performance’
6
Hereinafter referred to as the ‘agreement holder’
7
Hereinafter referred to as the ‘suit property’
8
Hereinafter referred to as the ‘suit for declaration’
8
financial difficulty, the said deceased Channappa executed the
Agreement of Sale dated 21.7.1973 agreeing to sell the suit property
to the agreement holder for a total sale consideration of `8,000/-.
That on the date of the agreement, an earnest money of `2,500/- is
paid and the Sale Deed was agreed to be executed as and when called
upon by the agreement holder. That on the same day, possession of
the property was handed over by the said deceased Channappa to the
agreement holder. That deceased Channappa received a further sum
of `2,000/- on 25.2.1974. That deceased Channappa died on
11.6.1974 leaving behind 2 sons namely, Basappa and Subash9. That
the present owners received a sum of `500/- on 20.7.1975. That
since the present owners refused to execute the Sale Deed and
complete the sale transaction, a legal notice dated 13.12.1996 was
issued. That the present owners got issued a reply dated 19.12.1996.
Thereafter, the suit for specific performance is filed.
6. It is the case of the present owners in the suit for a
declaration that their father, deceased Channppa, was in financial
difficulty and executed an Agreement of Sale dated 6.3.1972 agreeing
to sell the suit property for a total sale consideration of `8,000/- and
that `2,000/- was paid by the agreement holder on the date of
9
Hereinafter referred to as ‘the present owners’
9
agreement. That the sale transaction was required to be completed
within 2 years from the date of the agreement. That since the sale
transaction was not completed, the owners filed the suit for a
declaration that the Agreement dated 6.3.1972 executed by deceased
Channappa in favour of the agreement holder (defendant therein) is
null and void and for a declaration that they are the absolute owners
of the suit property and for cancellation of the revenue entries.
7. Both the suits were contested.
8. Since the Trial Court clubbed the suit for declaration with the
suit for specific performance, it treated the suit for specific
performance as the main suit and while adjudicating the matter has
considered the pleadings in the suit for specific performance.
9. The Trial Court framed the following issues:
i. “Whether defendants prove that agreement dated:
21.7.1973 is a document executed by deceased Channappa
as security for the loan advanced on different dates and not
sale agreement?
ii. Whether plaintiff prove that he is in possession of the suit
property as a prospective purchaser as per agreement
dated: 21.7.1973?
iii. Whether plaintiff prove that he was and is ready to perform
his part of agreement?
iv. Whether suit is barred by limitation?
10
v. Whether plaintiff is entitled for relief of decree for specific
performance?
vi. Whether plaintiff is entitled for refund of earnest money of
Rs.5,000/- with interest at the rate of 24% p.a. from the
date of agreement in the alternative?
vii. What order or decree?”
10. The agreement holder examined himself as PW.1 and three
witnesses have been examined as PWs.2, 3 and 4. Ex.P1 to Ex.P14
have been marked in evidence. One of the present owners i.e., Plaintiff
No.3 in O.S. No.162/1996 was examined as DW.1 and two witnesses
were examined as DW.2 and DW.3. Ex.D1 to Ex.D12 has been marked
in evidence.
11. The Trial Court by its judgment and decree dated 28.01.2003,
decreed the suit for specific performance and dismissed the suit for
declaration and passed the following order:
“The suit of the plaintiff is in O.S No.60/97 decreed with
cost. Hereby directed to defendant no.1 and 2 to execute the
sale-deed in favour of plaintiff after receiving the balance sale
consideration of Rs.3,000/- within 4 months of this order.
Otherwise to refund the earnest money of Rs.5,000/- with
interest at the rate of 24% per annum from the date of
agreement in the alternative. The suit in O.S No.162/96 is
hereby dismissed.
Draw decree accordingly. Copy of the judgment kept in O.S
No.162/96″.
11
12. Being aggrieved, the agreement holder preferred R.A
No.27/2003. The present owners preferred R.A Nos.24 and 25 of
2003. The First Appellate Court framed the following points for
considerations:
The points that arise for consideration in O.S No.60/1997 are:
i. “Whether defendant-respondent in O.S No.60/97 proves that,
his father deceased Channappa has borrowed the hand loan
of Rs.2.500/- and executed the agreement
dated:21.07.1973 as security to the loan?
ii. Whether appellant-plaintiff proves that, he is in possession of
the suit property as on date of agreement?
iii. Whether appellant-plaintiff proves that, he is ready and
willing to perform his part of contract?
iv. Whether defendant-respondent proves that, suit filed by the
appellant-plaintiff is barred by limitation?
v. Whether the appellant-plaintiff is entitled for the relief as
prayed for?
vi. Whether appellant-plaintiff proves that, the findings given on
issue no.6 is in wrong?
vii. What order or decree?”
The points that arise for consideration in O.S No.162/96 are:
i. “Whether appellant-plaintiff proves that, the agreement to
sale dated:6.2.1972 executed by their father Channappa in
favour of the defendant is not binding upon them?
ii. Whether appellant-plaintiff proves that, they are the owner
and possessor of the suit property?
iii. Whether plaintiff-appellant proves that, Respondent-
defendant got entered his name in ROR illegally?
iv. Whether appellant-plaintiff proves that, they are entitled for
the relief as prayed for?
v. Whether appellant-plaintiff proves that, the judgment and
decree passed by the lower court in O.S No.162/96 is
illegal?
vi. What order or decree?”
12
13. The First Appellate Court by its judgment dated 22.06.2006,
allowed R.A No.27/2003 filed by the agreement holder and dismissed
R.A Nos.24 and 25 of 2003 filed by the owners and passed the
following order:
“The appeal filed by the appellant-plaintiff in R.A
No.27/2003 is hereby allowed and set aside the judgment and
decree passed by the lower court in O.S No.60/97 dated:
28.01.2003 and decreed the O.S.60/97 against the
defendants.
The defendants-respondents are directed to received
balance consideration amount Rs.2,000/- along with interest
at the rate of 6% per annum from the date of decreed the
suit dated:28.1.2003 and executed the registered sale deed
in favour of the plaintiff within 3 months from the date of this
order.
The appeal filed by the appellants-defendants in R.A
No.24/2003 and appeal filed by the appellant-defendants in
R.A No.25/2003 are hereby dismissed and confirmed the
judgment and decree passed by the lower court in O.S
No.162/96 dt:28.01.2003.
Both parties bear their own cost.
Copy of the judgment shall be kept in R.A No.24/2003 and
R.A No.24/2003 and R.A No.25/2003.
Sent the copy of the judgment along with entire case file to
the lower court.”
14. Being aggrieved, the present owners have preferred the
present second appeals.
15. This Court, vide order dated 31.01.2007 passed in RSA
No.2460/2006 and order dated 10.06.2008 passed in RSA
No.2462/2006 has admitted the appeals and framed the following
substantial question of law:
13
“Whether the Courts below was justified in decreeing the
suit for specific performance when admittedly the agreement
dated 21.07.1973 and the suit was filed 14 years after the
said agreement?”
16. Learned counsel for the appellant/ present owner,
Smt. Pallavi Pachchapure assailing the judgments of the Trial Court
and the First Appellate Court submits that, in the Agreement of Sale
deed dated 6.03.1972 (Ex.D.2) there is a stipulation that the sale
transaction ought to have been completed within 2 years. That the
original owner Channappa died on 11.06.1974 and the notice dated
13.12.1996 (Ex.P.4) was issued by the agreement holder to the legal
representatives of deceased Channappa calling upon them to complete
the transaction in terms of the said agreement. That the period for
completion of the transaction expires on 05.03.1974 and having
regard to Section 54 of the Limitation Act, the suit ought to have been
filed within three years from the said date i.e., on or before
05.03.1977. The suit having been filed on 02.07.1996 was hopelessly
barred by time. It is further contended that there are no averments
that the plaintiff was ready and willing to perform his part of contract
and there is no evidence also adduced by the plaintiff regarding his
readiness and willingness. Further, it is contended that neither the
Trial Court nor the First Appellate Court has adequately appreciated
the factual matrix and the oral and documentary evidence on record
14
with regard to the aspect of readiness and willingness. Further, the
learned counsel for the appellant submits that, the suit property is the
only land belonging to the land owners and the said aspect has been
averred in the written statement filed in OS No.60/1997. That on the
aspect of the hardship also, the judgment and decree passed by the
Trial Court and First Appellate Court requires to be set aside. Hence,
learned counsel seeks for allowing of the appeals and granting the
reliefs sought for.
17. Per contra, learned counsels for the agreement
holder/respondent Sri K.L.Patil and Sri S.A.Sondur contend that both
the Courts have recorded concurrent findings of fact that the
agreement holder has proved due execution of the Agreement of Sale
and have recorded concurrent findings regarding readiness and
willingness. Hence, it is contended that the concurrent findings
recorded by the Trial Court and the first appellate Court ought not to
be interfered with by this Court. It is further contended that the suit
for specific performance is within time as has been rightly held by the
Trial Court and the First Appellate Court.
15
18. The submissions of both the learned counsels have been
considered and material on record including the records of the Trial
Court and the first appellate Court have been perused.
19. From the facts of the case, the following aspects are
forthcoming:
(i) The agreement holder averred that the original owner
executed Agreement of Sale dated 21.07.1973 (Ex.P.1)
whereunder the total sale consideration agreed was
₹8,000/- and an advance of ₹2,500/- was paid as on the
date of agreement. The balance sale consideration was
payable at the time of execution of the sale deed and there
was no time limit for completion of the sale transaction
and execution of the same;
(ii) The present owners averred that the original owner
executed an Agreement of Sale dated 06.03.1972 (Ex.D.2)
with the plaintiff agreeing to sell the suit properties for a
total sale consideration of ₹8,000/- and that an advance of
₹2,000/- was paid as on date of the agreement. That the
sale transaction was required to be completed within two
years from the date of the agreement.
16
(iii) The original owner died on 11.06.1974.
(iv) Pursuant to the Agreement, a total sum of ₹5,000/- was
paid by the agreement holder to the owners in the
following manner:
a) ₹2,500/- as on the date of agreement (Ex.P1)
to the original owner;
b) ₹2,000/- on 25.02.1974 to the original owner
in terms of the endorsement in Ex.P.1(e);
c) ₹500/- on 20.07.1975 to the present owners in
terms of the endorsement in Ex.P.1(j).
(v) The agreement holder is admittedly in possession of the
property.
(vi) Pursuant to the Agreement of Sale (Ex.P1), the plaintiff,
for the first time issued a legal notice dated 13.12.1996
(Ex.P4) calling upon the owners to execute the Sale Deed.
20. While it is the contention of the learned counsel for the
agreement holder that the owners were required to get the names
removed from the revenue records and hence, the Sale Deed could not
be executed within the time contemplated under the Agreement of
Sale, the said aspect alone will not suffice to enable the agreement
17
holder to not seek for execution of the Sale Deed within the time
stipulated in the agreement or within a reasonable time from the date
of the agreement.
21. In the present case, it is clear that pursuant to the Agreement
of Sale on 21.07.1973 (Ex.P1), the plaintiff has issued the notice dated
31.12.1996 (Ex.P4) after a lapse of more than 23 years. The plaintiff
has not placed any material on record to demonstrate that before
issuance of the notice (Ex.P4), the agreement holder called upon the
owners to receive the balance sale consideration and complete the sale
transaction.
22. The trial Court has recorded the following findings:
i) It is an undisputed fact that the suit property is
the ancestral property of the defendants
family;
ii) Father of defendants late Channappa executed
the Agreement of Sale on 21.07.1973 agreeing
to sell the suit property for a total sale
consideration of `8,000/-. That the Sale
Agreement was executed due to financial
difficulty.
iii) It is undisputed fact that late Channappa
received `2,000/- as earnest money as per
18Ex.P1 and agreed to execute the Sale Deed as
and when called upon by the plaintiff within
two years of the Agreement after receiving the
balance sale consideration of `6,000/-. Again
on 25.02.1974, late Channappa received
`2,000/- under the said Agreement dated
21.7.1973 and thereafter on 11.06.1974, the
father of Channappa died without executing
the Sale Deed.
iv) The father of the defendants deceased
Channappa executed the Agreement on
21.07.1973 in favour of the plaintiffs as
security for the loan advance of different
dates.
v) PW.1 in his cross examination has clearly
stated since 1972 he continued in possession
by virtue of the Agreement of Sale. The
deceased Channappa has also given Vardhi in
order to enter the name of the plaintiff in the
cultivators column of the RTC. The plaintiff also
gave a representation for entering his name in
Exs.D1 and D7. The name of plaintiff got
mutated in M.R. No.1075 as per Ex.D8.
Thereafter, the name of plaintiff also got
entered in the cultivators column of RTC as per
Ex.D10.
19
vi) The defendants are not in possession of the
suit property.
vii) The plaintiff examined one attesting witness,
who has deposed that late Channappa sold the
land bearing Sy.No.34/2 for a sale
consideration of ₹8,000/-. That the witness
put his signature as per Ex.D1(b) and that
Channappa put his signature as per Ex.D1(a).
viii) The plaintiff has sent a notice to the defendant
as per Ex.P4.
ix) Looking at Exs.D1 and D7 after executing
Agreement of Sale as per Ex.P1, the father of
the defendants late Channappa and plaintiff
jointly gave vardi to the concerned authorities
to enter the name of the plaintiff in the
cultivators column of RTC.
x) In the instant case, though there is express
stipulation of two years for executing the Sale
Deed, the nature of property or the
surrounding circumstances would make it
inevitable to interfere with and modify the legal
right. This is what is meant and all that is
meant when it is said that in equity, time is not
the essence of the contract.
20
xi) After perusal of the legal notice dated
13.12.1996 (Ex.P.4), it clearly indicates the
readiness and willingness of the plaintiff. The
only obligation which he had to comply was
payment of balance sale consideration.
23. It is relevant to note that the Trial Court had framed issue
No.3 regarding readiness and willingness and the First Appellate Court
had framed point No.3 for consideration while considering the appeal
in the suit for specific performance with regard to readiness and
willingness. The First Appellate Court has, while reappreciating Exs.P4
and P5 held that the plaintiff is ready and willing to perform his part of
the contract and affirmed the findings of the Trial Court recorded on
issue No.3.
24. At this juncture, it is relevant to note that the Agreement
holder has averred regarding the Agreement of Sale dated 21.7.1973,
which has been marked as Ex.P1, while the owners referred to
Agreement dated 6.3.1972, which has been marked as Ex.D2. In both
the Sale Agreements the total sale consideration is `8,000/-. While in
Ex.P1, it is mentioned that the advance of `2,500/- has been paid and
there is no time limit stipulated for completion of the sale transaction,
in Ex.D2 it is mentioned that an advance of `2,000/- has been paid
21
and that the sale transaction was required to be completed within two
years. Since the Trial Court has considered the case of the parties by
treating the suit for specific performance as the main suit, reference in
the judgment of the Trial Court has been to Ex.P1. It is further
relevant to note that a further amount of `2,000/- on 25.2.1974 and
`500/- on 20.7.1975 was paid as is forthcoming from the
endorsements made on Ex.P1, which endorsements have been marked
as Ex.P1(e) and Ex.P1(j).
25. It is relevant to note that in a suit for specific performance,
the plaintiff was specifically required to plead and prove that he was
ready and willing to complete the sale transaction. In the plaint in the
suit for specific performance and in the examination-in-chief adduced
by PW.1, it is merely stated that he was ready and willing to perform
his part of the contract. At this juncture, it is relevant to note that
after execution of the Agreement of Sale dated 06.03.1972 (Ex.D2) /
21.03.1973 (Ex.P1) the agreement holder got issued a legal notice
dated 13.12.1996 (Ex.P4 / Ex.D3) calling upon the present owners to
complete the sale transaction. However, the agreement holder has not
either averred or adduced any evidence as to the steps taken by him
to complete the sale transaction between the period of execution of
the Agreement of Sale and the issuance of legal notice – Ex.P4. Hence,
22
it is clear that there is absolutely no explanation forthcoming from the
agreement holder as to the steps / measures taken by him for more
than 24 years after execution of the Agreement of Sale in order to
complete the sale consideration. Even if the date of payment of last
installment/part sale consideration to the present owners in a sum of
`500/-which is paid on 20.07.1975 [Ex.P.1(j)] is taken into
consideration, more than 23 years have been passed before issuance
of the legal notice which aspect has remained unexplained by the
agreement holder.
26. It is also pertinent to note here that consequent to the
execution of the Agreement of Sale and the payment of part sale
consideration, the present owners instituted the suit in
OS.No.162/1996 for declaration on 02.07.1996. Thereafter, the
agreement holder got issued the legal notice dated 13.12.1996
(Ex.P4/Ex.D3) for which the present owners got issued a reply dated
19.12.1996 (Ex.D.4). It is only thereafter that the agreement holder
filed the suit for specific performance in OS.No.60/1997 on
26.02.1997.
23
27. In order to appreciate the legal position with regard to the
aspect of readiness and willingness in a suit for specific performance, it
is necessary to notice the following judgments:
27.1 A Constitution Bench of the Hon’ble Supreme Court
in the case of Chand Rani (Dead) by Lrs., v. Kamal Rani
(Dead) by Lrs.,10 was considering as to whether time was the
essence of the contract. After noticing various judgments, it was
held as follows:
“25. From an analysis of the above case-law it is clear
that in the case of sale of immovable property there is no
presumption as to time being the essence of the contract.
Even if it is not of the essence of the contract the Court
may infer that it is to be performed in a reasonable time if
the conditions are:
1. From the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example: the
object of making the contract.”
(emphasis supplied)
27.2 The Hon’ble Supreme Court in the case of His
Holiness Acharya Swami Ganesh Dassji v. Sita Ram
Thapar11 has held as follows:
10
AIR 1993 SC 1742
11
(1996) 4 SCC 526
24“2. There is a distinction between readiness to perform
the contract and willingness to perform the contract. By
readiness may be meant the capacity of the plaintiff to
perform the contract which includes his financial position
to pay the purchase price. For determining his willingness
to perform his part of the contract, the conduct has to be
properly scrutinised. There is no documentary proof that
the plaintiff had ever funds to pay the balance of
consideration. Assuming that he had the funds, he has to
prove his willingness to perform his part of the contract.
According to the terms of the agreement, the plaintiff was
to supply the draft sale deed to the defendant within 7
days of the execution of the agreement, i.e., by 27-2-
1975. The draft sale deed was not returned after being
duly approved by the petitioner. The factum of readiness
and willingness to perform plaintiff’s part of the contract
is to be adjudged with reference to the conduct of the
party and the attending circumstances. The court may
infer from the facts and circumstances whether the
plaintiff was ready and was always ready and willing to
perform his part of the contract. The facts of this case
would amply demonstrate that the petitioner/plaintiff was
not ready nor had the capacity to perform his part of the
contract as he had no financial capacity to pay the
consideration in cash as contracted and intended to bide
for the time which disentitles him as time is of the
essence of the contract.”
(emphasis supplied)
27.3 The Hon’ble Supreme Court in the case of
U.N.Krishnamurthy v. A.M.Krishnamurthy12 has held as
follows:
“23. Section 16 (c) of the Specific Relief Act, 1963 bars
the relief of specific performance of a contract in favour of
a person, who fails to aver and prove his readiness and
willingness to perform his part of contract. In view of
Explanation (i) to clause (c) of Section 16, it may not be12
(2023) 11 SCC 775
25essential for the plaintiff to actually tender money to the
defendant or to deposit money in court, except when so
directed by the Court, to prove readiness and willingness
to perform the essential terms of a contract, which
involves payment of money. However, Explanation (ii)
says the plaintiff must aver performance or readiness and
willingness to perform the contract according to its true
construction.
24. To aver and prove readiness and willingness to
perform an obligation to pay money, in terms of a
contract, the plaintiff would have to make specific
statements in the plaint and adduce evidence to show
availability of funds to make payment in terms of the
contract in time. In other words, the plaintiff would have
to plead that the plaintiff had sufficient funds or was in a
position to raise funds in time to discharge his obligation
under the contract. If the plaintiff does not have sufficient
funds with him to discharge his obligations in terms of a
contract, which requires payment of money, the plaintiff
would have to specifically plead how the funds would be
available to him. To cite an example, the plaintiff may
aver and prove, by adducing evidence, an arrangement
with a financier for disbursement of adequate funds for
timely compliance with the terms and conditions of a
contract involving payment of money.”
(emphasis supplied)
27.4 The Hon’ble Supreme Court in the case of
P.Daivasigamani v. S.Sambandan13 has held as follows:
“20. From the bare reading of the aforestated
provisions, it clearly emerges that the specific
performance of the contract, may in the discretion of the
court, be enforced, when the act agreed to be done, was
such that compensation in money for its non-performance
would not afford adequate relief, and that the breach of a
contract to transfer immovable property could not be
adequately relieved by compensation in money. It also
emerges that specific performance of a contract could not
be enforced in favour of a person, who failed to aver and13
(2022) 14 SCC 793
26prove that he had performed or had always been ready
and willing to perform the essential terms of the contract,
which were to be performed by him. It could also not be
enforced in favour of a person who failed to aver in the
plaint the performance of, or readiness and willingness to
perform the contract according to its true construction.
21. Readiness and willingness are not one, but two
separate elements. Readiness means the capacity of the
plaintiff to perform the contract, which would include the
financial position to pay the purchase price. Willingness
refers to the intention of the plaintiff as a purchaser to
perform his part of the contract. Willingness is inferred by
scrutinising the conduct of the plaintiff purchaser,
including attending circumstances [ See para 2 in Ganesh
Dassji v. Sita Ram Thapar, (1996) 4 SCC 526] .
Continuous readiness and willingness on the part of the
plaintiff purchaser from the date the balance sale
consideration was payable in terms of the agreement to
sell, till the decision of the suit, is a condition precedent
for grant of relief of specific performance [ See para 5
in N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5
SCC 115. Also see Ardeshir Mama v. Flora Sassoon, 1928
SCC OnLine PC 43 : (1927-28) 55 IA 360 : AIR 1928 PC
208] .
29. Time, it is stated, is not the essence of the contract in
the case of immovable properties, unless there are
grounds to hold to the contrary. This doctrine is applied,
without being unfair and inequitable to the defendant
seller, as the court should not ignore that a person sells
the property when he needs money, and, therefore,
expects the money in the stipulated or reasonable time,
which would meet the purpose of the sale. The purpose of
sale can vary from the need for liquid cash to be invested
to earn interest, medical, educational, child’s marriage or
purchasing another property. To save capital gains, the
seller has to purchase another immovable property,
unless the proceeds are exempt.
33. Though much reliance was placed by the learned
counsel for the appellant on the decisions of this Court
in Ritu Saxena v. J.S. Grover [Ritu Saxena v. J.S. Grover,
(2019) 9 SCC 132 : (2019) 4 SCC (Civ) 302] ,
in Abdullakoya Haji v. Rubis Tharayil [Abdullakoya
Haji v. Rubis Tharayil, (2019) 17 SCC 216 : (2020) 3 SCC
27
(Civ) 399] , and other cases, to submit that the
respondent had failed to establish his financial capacity to
pay the balance amount of consideration at the relevant
time and had also failed to deposit the said amount in the
court at the time of filing of the suit, he was not entitled
to the discretionary relief of specific performance as
granted by the Court, we do not find any substance in
any of the said submissions. As per the ratio of judgment
laid down by the three-Judge Bench in Syed
Dastagir [Syed Dastagir v. T.R. Gopalakrishna Setty,
(1999) 6 SCC 337] , the compliance of “readiness and
willingness” has to be in spirit and substance and not in
letter and form, while making averments in the plaint. As
per Explanation (i) to Section 16(c), he need not tender
to the defendant or deposit the amount in the court, but
he must aver performance of, or readiness and
willingness to perform the contract according to its true
construction.”
(emphasis supplied)
28. It is relevant to note at this juncture that present owners
who are the defendants in the suit for specific performance had taken
a contention in the written statement that the said suit filed by the
agreement holder was barred by time. With regard to the said
contention, the Trial Court had framed issue No.4 which was answered
in the negative and the first appellate Court in the points for
consideration in O.S. No.60/1997 had framed point No.4 with regard
to issue of limitation adjudicated by the Trial Court and affirmed the
finding of the Trial Court that the suit is within time. Both the trial
Court and the first appellate Court have held that the agreement
holder having issued the legal notice dated 13.12.1996 (Ex.P4) and
the present owner having responded to the same by denying the
28
performance of the Agreement, the suit in O.S. No.60/1997 for specific
performance having been filed within three years from Ex.P4, the suit
was within time.
29. In the present case, the aspect with regard to the
agreement holder belatedly issuing the notice dated 12.12.1996
(Ex.P4) and thereafter, filing the suit is required to be considered for
the purpose of adjudicating regarding the readiness and willingness of
the agreement holder and not for the purpose of adjudicating as to
whether the suit for specific performance was barred by time.
30. Learned counsel for the respondent/agreement holder
has relied upon the judgment of the Hon’ble Supreme Court in the
case of S.Brahmanand and others Vs. K.R. Muthugopal (D) and
others14 as well as the judgment of the Hon’ble Supreme Court in the
case of Pancharan Dhara & Ors. V. Monmatha Nath Maity (D) by
L.Rs. & Anr.15. However, the said judgments would not aid the case
of the respondent since the said judgments are with regard to the
limitation of filing a suit for specific performance. As has been noticed
above, the delay in issuing the legal notice(Ex.P4) and filing the suit by
the agreement holder is taken for consideration for the purpose of
14
AIR 2006 SC 40
15
AIR 2006 SC 2281
29
adjudicating the aspect of readiness and willingness of the agreement
Holder and not for the purpose of adjudication of the aspect of
limitation in filing the suit.
31. Learned counsel for the agreement holder also relied on
the judgment of the Hon’bel Supreme Court in the case of Narinderjit
Singh Vs. North Star Estate Promoters Limited16 , wherein the
Hon’ble Supreme Court has not interfered with the finding of the High
Court which affirmed the finding of the lower appellate Court with
regard to the readiness and willingness on the ground that the said
finding was not specifically challenged. It is a settled proposition of law
that this Court while considering a second appeal under Section 100 of
the CPC is entitled to interfere with a concurrent finding of fact when
there is perversity in the said finding and the same having been
recorded by not taking into consideration the evidence/material on
record and suffers from material irregularity. (See :
Balasubramanian v. Arockiasamy, AIR 2021 SC 4221)
32. Learned counsel for the agreement holder also relied on
the judgment of the Hon’ble Supreme Court in the case of Ramathal
16
AIR 2012 SC 2035
30
Vs. Maruthathal and Others17, wherein the Hon’ble Supreme Court
has held that mere escalation of price is not a ground to refuse the
specific performance. However, the said judgment would not aid the
case of the respondent since in the said case, the Hon’ble Supreme
Court had held that the buyer had taken prompt steps to file a suit for
specific performance as soon as the execution of the sale was stalled
by the seller and that the buyer has always been ready and willing to
perform his part of the contract at all stages. The Hon’ble Supreme
Court further held that the seller cannot take advantage of their own
wrong. The factual matrix of the said case is wholly different from the
facts of the present case.
33. Learned counsel for the agreement holder also relied on
the judgment of the Hon’ble Supreme Court in the case of Ferrodour
Estate (Pvt.) Ltd., v. P.Gopirathnam (Dead) and others18 ,
wherein it held as follows:
“31. The resultant position in law is that a suit for
specific performance filed within limitation cannot be
dismissed on the sole ground of delay or laches. However,
an exception to this rule is where immovable property is
to be sold within a certain period, time being of the
essence, and it is found that owing to some default on the
part of the plaintiff, the sale could not take place within
the stipulated time. Once a suit for specific performance
has been filed, any delay as a result of the court process17
AIR 2018 SC 340
18
AIR 2020 SC 5041
31cannot be put against the plaintiff as a matter of law in
decreeing specific performance. However, it is within the
discretion of the Court, regard being had to the facts of
each case, as to whether some additional amount ought
or ought not to be paid by the plaintiff once a decree of
specific performance is passed in its favour, even at the
appellate stage.”
33.1 However, the said case will not aid the case of the
respondent-owner as in the said case, the Court held that the
purchaser was always ready and willing to complete his part of
Agreement and mere escalation of price is not a ground to deny the
specific performance. The said fact situation is wholly different from
the fact situation of the present case, wherein, the agreement holder
has failed to demonstrate his readiness and willingness in completing
the sale transaction.
34. In view of the settled legal position as noticed above and
taking into consideration the factual matrix, it is clear that the Trial
Court has, by merely stating that having regard to the nature of the
property and surrounding circumstances, it was held that time is not
the essence of the of the contract so as to modify the legal right of the
parties. Further, the First Appellate Court has merely, taking into
consideration the legal notice – Ex.P4, affirmed the finding on
readiness and willingness recorded by the Trial Court. The agreement
holder, neither in the plaint nor in the examination-in-chief has stated
32
as to what steps / measures he has taken to complete the sale
transaction for a period of 23 years after payment of the last
installment of sale consideration. It is also relevant to note that the
agreement holder has adduced the testimony of PW.2, PW.3 and PW.4
(erroneously mentioned as DW.4 in the deposition), who have adduced
evidence regarding the Agreement of sale and payment of part sale
consideration. None of the said witnesses have spoken to about the
steps / measures taken by the plaintiff to demonstrate that he was
ready and willing to complete his part of the sale transaction for the
period between payment of the last installment of sale consideration
up to the issuance of legal notice – Ex.P.4.
35. It is also forthcoming from the material on record that the
deceased owner entered into the Agreement of Sale since he was in
need of money. At this juncture, it is relevant to note the it was the
case of the owners that the Agreement of Sale (Ex.P1) was merely a
security for a loan transaction. It is also relevant to note that the
owners had contended that they had repaid the advance amount of
`5,000/- to the agreement holder. However, both the Courts have
recorded a concurrent finding that the owners have failed to prove
their case that the Agreement (Ex.P1) is a security for the loan
33
transaction and that the owners had repaid the advance sale
consideration of `5,000/- to the agreement holder.
36. It is further forthcoming from the legal position as noticed
above that readiness and willingness are two separate elements and to
order specific performance, the agreement holder is required to satisfy
both the elements. While readiness is the capacity of the agreement
holder to perform the contract including the financial position to pay
the purchase price, willingness refers to the intention of the agreement
holder/purchaser to perform the contract which is required to be
inferred by scrutinizing the conduct of the agreement holder including
the attending circumstances. In the present case, there is absolutely
no material on record to demonstrate that the agreement holder was
either ready or willing to complete the sale transaction within a
reasonable time from the date of execution of the Agreement of sale.
37. Although it is the vehement contention of the learned
counsel for the agreement holder that there need not be a specific
format for taking a plea as to readiness and willingness and the aspect
of readiness and willingness has to be inferred from the entirety of the
factual circumstances, it is pertinent to note here that the agreement
holder, not even having complied with basic requirements of pleading
34
and adducing evidence regarding readiness and willingness, the
question of affirming the finding of the Trial Court and First Appellate
Court regarding readiness and willingness does not arise.
38. Having regard to the finding recorded above, the
substantial question of law dated 31.01.2007 and 10.06.2008 passed
in the above appeals is required to be answered in the Negative. In
view of the fact that the said substantial question of law is answered in
the Negative, a further substantial question of law arises for
consideration in respect of which both the learned counsels have also
made their submissions. The said further substantial question of law is
as follows:
“If the substantial question of law dated 31.01.2007 and
10.08.2008 are answered in the negative, whether any further
order is required to be passed with regard to the relief claimed by
the owners in OS No.162/1997 and with regard to possession of
suit schedule property?”
39. In this context, it is relevant to note that the deceased
owner had put the agreement holder in possession of the property as
is forthcoming from the Varadi (Ex.D1). It is further relevant to note
that M.E.No.1075 dated 17.07.2023 (Ex.P3) also discloses that the
agreement holder is in possession of the suit property.
35
40. This Court in the case of Tukaram Sadasiv Chamber
Vs. Mallu Babu Chamber and Ors.19 was considering a fact situation
wherein upon a finding being recorded that the agreement holder had
failed to demonstrate his readiness and willingness to perform the
agreement and even in the absence of a prayer for possession, the
trial Court having ordered for relief of possession which is confirmed
by the first appellate Court, this Court held as follows:
“27. In the present case, the finding of readiness and
willingness having been held against the plaintiff by both the
Courts, and the same having been affirmed by this Court as
noticed above, the question of the plaintiff taking the benefit of
Section 53A of the T.P. Act to remain in possession of the suit
property does not arise. Hence, the said contention put forth by
the plaintiff is untenable and liable to be rejected.”
41. Further, another co-ordinate Bench of this Court in the
case of Smt. Suvarnabai W/o. Late Sadashivayya Sunkadmath
and others v. Shri. Mallaikarju and others20 has held as follows:
“46. At this stage, learned counsel for the appellant seeks to
contend that the since the plaintiff has obtained possession over
the property in part performance of contract, the plaintiff-
appellant is entitled to protect his possession under Section 53A
of the Transfer of Property Act (hereinafter referred to as ‘the TP
Act‘ for short). In support of his contention, learned counsel for
the appellant has placed reliance on the following decisions:
19
RSA No.5922/2019 – Dharwad Bench, decided on 10.07.2024
20
Judgment dated 15.11.2023 in RSA No.5101/2013
36In the case of Shrimant Shamrao
Suryavanshi and another Vs. Pralhad Bhairoba
Suryavanshi (dead) by LRs. and others21
(Shrimant Shamrao) and Narasimhasetty
(Deceased) Vs. Padmasetty22 (Narasimhasetty)
and would contend that the bar of limitation alone
does not bar the plea of part performance being
raised, if all the other requisites of Section 53A of the
TP Act are available.
47. Per contra, learned counsel for the respondent would
contend that the defendants efforts to get the possession has
went in vain and the appellant cannot be permitted to seek a plea
of part performance and protection under Section 53A of the T.P.
Act, as he has been given opportunity to defend his contention in
the HRC proceedings from the year 1991 and the subsequent suit
for possession. The plaintiff cannot be entitled for protection
under Section 53A of the TP Act and this Court can exercise the
power of the appellate Court and direct possession of the suit
schedule property to the defendants and place reliance on the
following decisions:
i) D.S. Parvathamma Vs. A. Srinivasan23
(D.S. Parvathamma)
ii) Banarsi and Ors. Vs. Ram Phal24 (Banarsi)
48. What needs to be considered is whether necessary
protection as contemplated under Section 53A of the TP Act
needs to be accorded to the plaintiff appellant. In the decision of
Shrimant Shamrao stated supra, the Apex Court held at
paragraph No.11 as under:
“When the Transfer of Property Act was
enacted, Section 53-A did not find place in it. In
the absence of Section 53-A, there arose
difference of opinion between various courts in
India as regards the application of English doctrine
of part performance of contract as it was then21
AIR 2002 SC 960
22
AIR 1998 Kant 389
23
AIR 2003 SC 3542
24
AIR 2003 SC 1989
37prevailing in England. Since there was a difference
of opinion on question of the application of English
equitable doctrine of part performance in various
courts of India, the Govt. of India resolved to set
up a Special Committee for making
recommendations amongst others – whether the
British equitable doctrine of part performance be
extended in India also. The Special Committee
was of the view that an illiterate or ignorant buyer
who had partly performed his part of contract
required statutory protection. The Committee was
of the further view that where a transferee in good
faith that lawful instrument i.e. a written contract
would be executed by the transferor takes
possession over the property, the equity
demanded that the transferee should not be
treated as trespasser by the transferor and
subsequently evict him through process of law in
the absence of lawful transfer instrument. The
Special Committee also considered the question
whether protection under the proposed Section
53-A to a transferee would also be available even
if the period of limitation for bringing an action for
specific performance of an agreement to sell has
expired. On the said question, the Committee was
of the view that even after expiry of period of
limitation, the relationship between the transferor
and transferee remains the same as it was within
the period of limitation and, therefore, the
possession over the property taken in part
performance of an agreement is required to be
protected even if the period of limitation for
bringing an action for specific performance has
expired.”
49. The Apex Court held that the purpose of enacting Section
53A was to provide protection to a transferee who in part
performance of contract had taken possession of the property
even if the limitation to bring a suit for specific performance has
expired. The necessary condition to defend or to protect his
possession under Section 53A of the TP Act is enumerated at
paragraph No.14 as under:
38
“14. But there are certain conditions which are
required to be fulfilled if a transferee want to defend or
protect his possession under S.53-A of the Act. The
necessary conditions are-
1) there must be a contract to transfer for
consideration any immovable property;
2) the contract must be in writing, signed by the
transferor, or by someone on his behalf;
3) the writing must be in such words from which
the terms necessary to construe the transfer can
be ascertained;
4) the transferee must in part performance of the
contract take possession of the property, or of
any part thereof;
5) the transferee must have done some act in
furtherance of the contract; and
6) the transferee must have performed or be
willing to perform his part of the contract.”
50. The Apex Court held that the conditions enumerated
above are to be complied with, the law of limitation does not
come in the way of the defendant taking plea under Section 53A
of the TP Act to protect his possession of the suit property even
though a suit for specific performance has been dismissed as
barred by limitation.
51. One of the essential ingredient to avail protection under
Section 53A of the TP Act is willingness to perform his part of
the contract, which is invariably absent in the present case and
the protection as sought by the appellant under Section 53A of
the TP Act is not available to the appellant-plaintiff for more
than two reasons.
52. The HRC proceedings has been protracted by the plaintiff
since 1991, in the HRC proceedings substantial protection was
given and the proceedings has been conducted by the plaintiff in
39
its spirit. The decisions placed reliance by the appellant is not
applicable to the present facts and circumstances of the case
and is highly distinguishable.
53. The Apex Court in the case of Banarsi stated supra has
held that the appellate Court can exercise the power under
Order 41 Rule 33 when a substantial justice has to be done, as
in the present case. One more ground that this Court would
apply in this context is that, if a suit for specific performance is
sought without a prayer for possession and the suit is decreed in
favour of the plaintiff directing specific performance by the
defendant. Direction to deliver possession of the property is
incidental to a decree for specific performance and therefore,
the Executing Court had jurisdiction to order delivery of
possession to do substantial justice instead of directing the
plaintiff to file separate suit for possession. If the very analogy
is applied in the present context, the relief of possession being
incidental to the rejection of the suit for specific performance of
contract, and instead of directing the defendants to again file a
suit for possession, since the defendant is litigating for
possession down from 1991, this Court is of the considered view
that the defendant would be entitled for possession of the suit
schedule property.
54. The other contention of the appellant is that the appellant
should not be dispossessed until in due process of law. What is
due process of law needs to be considered in the present
appeal, it means a person in settled position cannot be ejected
without a Court of law having adjudicated upon his rights qua
the true owner, the Apex Court in the case of Padhiyar
Prahladji Chenaji (Deceased) through Lrs Vs. Maniben
Jagmalbhai (deceased) through Lrs and Others25 has given
a deliberate consideration to the meaning of due process of law
and at para No.28 has held as under:
28. In the said decision in Maria Margarida, this Court
has approved the following findings of the High Court
of Delhi in Thomas Cook (India) Ltd. v. Hotel
Imperial2 : (Hotel Imperial Case2, SCC Online Del
para 28)25
(2022) 12 SCC 128
40“28.The expressions “due process of law”, “due
course of law” and “recourse to law” have been
interchangeably used in the decisions referred to
above which say that the settled possession of even a
person in unlawful possession cannot be disturbed
“forcibly” by the true owner taking law in his own
hands. All these expressions, however, mean the
same thing-ejectment from settled possession can
only be had by recourse to a court of law. Clearly,
“due process of law” or “due course of law”, here,
simply mean that a person in settled possession
cannot be ejected without a court of law having
adjudicated upon his rights qua the true owner.
Now, this “due process” or “due course” condition is
satisfied the moment the rights of the parties are
adjudicated upon by a court of competent
jurisdiction. It does not matter who brought the
action to court. It could be the owner in an action for
enforcement of his right to eject the person in
unlawful possession. It could be the person who is
sought to be ejected, in an action preventing the
owner from ejecting him. Whether the action is for
enforcement of a right (recovery of possession) or
protection of a right (injunction against
dispossession), is not of much consequence. What is
important is that in either event it is an action before
the court and the court adjudicates upon it. If that is
done then, the “bare minimum” requirement of “due
process” or “due course” of law would stand satisfied
as recourse to law would have been taken. In this
context, when a party approaches a court seeking a
protective remedy such as an injunction and it fails in
setting up a good case, can it then say that the other
party must now institute an action in a court of law
for enforcing his rights i.e. for taking back something
from the first party who holds it unlawfully, and, till
such time, the court hearing the injunction action
must grant an injunction anyway? I would think not.
In any event, the “recourse to law” stipulation stands
satisfied when a judicial determination is made with
regard to the first party’s protective action. Thus, in
the present case, the plaintiff’s failure to make out a
case for an injunction does not mean that its
consequent cessation of user of the said two rooms
41
would have been brought about without recourse to
law.”
55. Thus, in the instant case, the plaintiff – appellant having
duly participated in the eviction proceedings and in the
possession suit cannot contend that the possession directed by
this Court is without recourse to law. The appellant’s possession
has been adjudicated qua the true owner in the proceedings
initiated by the defendant and the “due process” or “due course”
condition is satisfied the moment the rights of the parties are
adjudicated upon by a Court of competent jurisdiction. Applying
the said principles, the plaintiff’s failure for grant of specific
performance, the defendant is entitled for possession of the suit
schedule property in the present facts and circumstance of the
case. In the realm of long-run litigations, the importance of
substantial justice becomes even more pronounced as a guiding
principle that mitigates the potential pitfalls of protracted legal
proceedings. Long-term legal battles often introduce
complexities, evolving circumstances, and changing dynamics
between the parties. By focusing the essentials, rather than
getting bogged in procedural minutiae, Courts can expedite the
process.
56. In light of the foregoing reasons and in order to have
substantial justicee to the parties, this Court is of the considered
view that the appellants herein to handover the possession of
the suit schedule property to the defendants within the
stipulated period of time as stated in the following order.”
42. While considering the aspect of refund it is relevant to note
at this juncture that the agreement holder has enjoyed the usufructs
of the suit property that has been in his possession from the year 1975
without paying the entire sale consideration or completing the sale
transaction under the agreements dated 06.03.1972/21.07.1973. The
rights of the parties under the agreements dated 06.03.1972
42
/21.07.1973, having been adjudicated upon in the present appeals and
the agreement holder admittedly having come into possession of the
suit property by virtue of the original deceased owner executing the
agreements of sale in his favour, all rights of the parties having
adjudicated upon, it is just and proper that since this Court has
recorded a finding that the agreement holder is not entitled to specific
performance of the suit property, appropriate orders be passed
ordering for redelivery of possession of the property to the present
owners and declaration of title of the present owners.
43. Having regard to the factual matrix and legal position, as
noticed above, the substantial question of law dated 31.1.2007 and
10.6.2008 framed for consideration are answered in the Negative and
the substantial question of law framed at para 36 of this judgment is
answered in the Affirmative. Further, the land owners are required to
refund the amounts received by them together with interest @ 12%
per annum and the agreement holder is required to return the
possession of the said property to the present owners.
44. In view of the aforementioned, the following:
ORDER
i. The above appeals are allowed;
43
ii. The judgment dated 22.06.2006 passed in
RA.No.27/2003 (clubbed with
RA.Nos.24/2003 and 25/2003) by the Civil
Judge (Senior Division) and Principal JMFC,
Ranebennur is set aside;
iii. The judgment and decree date 28.01.2003
passed in OS.Nos.60/1997 and 162/1996 by
the Principal Civil Judge (Junior Division) and
I Additional JMFC, Ranebennur, is set aside;
iv. The suit in OS.No.60/1997 on the file of the
Principal Civil Judge (Junior Division) and I
Additional JMFC, Ranebennur, is partly
decreed with costs by directing the
defendants therein to refund to the plaintiffs
therein the advance amount of `5,000/-
together with interest at 12% p.a, from the
date of suit till date of payment. A further
direction is issued to the plaintiff in the said
suit to handover possession of the suit
property to the defendants in the said suit;
v. The suit in OS.No.162/1996 on the file of the
Principal Civil Judge (Junior Division) and I
Additional JMFC, Ranebennur, is decreed
with costs as follows:
44
a. The plaintiffs in the said suit are
declared to be absolute owners of
the suit property.
b. A direction is issued to the revenue
authorities to enter the names of
the plaintiffs in the said suit in the
revenue records pertaining to the
suit property.
SD/-
(C.M.POONACHA)
JUDGEBS/nd/pmp/
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