(Prayer: This Regular Second Appeal is filed under Section 100 OF CPC. Against the judgement and decree dated:07/12/2009 passed in R.A.NO.60/1985 on the file of the Additional Civil Judge (SR. DN.) GADAG, Sitting At Judgment Dated: 07/11/1985 and the decree passed in O.S.NO.28/1980 ON THE FILE OF THE MUNSIFF AND JMFC., LAXMESHWARA, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMATION OF CONTRACT OR FOR REFUND OF EARNEST MONEY.)
1. This second appeal by the plaintiff in OS No.28 of 1980 – a suit for specific performance of agreement dated 7.6.1975 purporting to convey agricultural property measuring 13 acres 20 guntas in R.S. No.57/1 situated at Devihal Village, for total consideration of Rs.3,600/- and a sum of Rs.2,000/- had been paid at the time of agreement and balance Rs.1,600/- to be paid later, impleading the owner of the land as first defendant and subsequent purchaser of the very property as per the sale deed dated 3.7.1980 – Exhibit. D1 as second defendant and suing for specific performance.
2. The suit was contested on all aspects and the trial court framed the following issues:
i) Whether the plaintiff proves that defendant No.1 has agreed to sell the suit land for consideration of Rs.3,600/-?
ii) Whether the plaintiff further proves that defendant No.1 has executed an agreement for sale deed dated 7.6.1975 after receiving earnest money of Rs.2,000/-?
iii) Whether the plaintiff further proves his possession of the suit land for the last 20 years as a tenant first and next as a purchaser of the land from 7.6.1975 by the agreement of sale?
iv) Whether the plaintiff further proves that he is ready and willing to perform part of his contract and defendant No.1 is avoiding his part of contract?
v) Whether defendant No.1 prove that the agreement of sale is fraudulent and that he has executed a receipt for the security for the sum of Rs.500/- as contended in para-8 of his WS?
vi) Whether the defendant No.2 proves that he is in lawful possession of the suit land on the strength of registered sale deed by defendant No.1 dated 3.7.1980?
vii) Whether the suit of the plaintiff is barred by limitation?
viii) What order or decree?
Addl. Issue No.1.Whether the defendant No.2 proves that he is a bonafide purchaser of suit property for value without notice of suit agreement of sale between plaintiff and defendant No.1?"
3. While issues 1 and 2 were answered in favour of the plaintiff holding that the plaintiff has proved the existence of the agreement and it had been executed by the first defendant on 7.6.1975, issue No.3 claim of the plaintiff that he was in possession of the very subject land for a period of twenty years prior to the agreement as a tenant and as a purchaser of the said land i.e., the owner on and after 7.6.1975 under the agreement of sale, answered against the plaintiff and so also was the issue relating to plaintiffs readiness and willingness to perform his part of the contract on the premise that the first defendant was avoiding to perform his part of the contract. However, issue No.5 as to whether first defendant proves the agreement was a result of fraudulent act on the part of the plaintiff against the first defendant by manipulating a receipt issued in favour of the plaintiff for having received a sum of Rs.500/- by way of loan etc., was answered against the defendants and issue No.6 relating to possession of the land was answered in favour of second defendant and therefore in the trial court, the suit was dismissed though issue relating to limitation had been answered in favour of the plaintiff.
4. In fact, for such purpose, evidence let in by tine parties, namely, oral evidence of plaintiff himself who had deposed as PW.1 and other witnesses being the neighbours of the subject agricultural land, documentary evidence in the form of Exhibit.P1 - agreement of sale and Exhibit.P2 purported to be an application made to the Sub-Registrar given on 1.7.1980 to prevent the registration of sale deed in favour of the second defendant executed by the first defendant and certain revenue receipts evidencing payments of revenue tax for the land by the plaintiff in the interregnum from the years 1974 to 1980 and such other related documents including a certified copy of the revenue records of the suit land as per Exhibit.P11.
5. As against this, on the part of the defendants, both defendants deposed as DW.1 and DW.3 respectively and were supplemented by three more witnesses one Yallappa Ningappa Hanakanahalli as DW.2, Krityunjaya Gurayya Hombalimath as DW.4 and Shanmukhgouda Karigouda Patil as DW.5. The documentary evidence on behalf of the defendants comprised of Exhibit. D1 sale deed dated 3.7.1980, record of rights dated 15.7.1980 as per Exhibit.D4.
6. It was because of such evidence and findings on the above issues by the trial court resulting in dismissal of the suit, the aggrieved plaintiff appealed to the lower appellate court in RA No.60 of 1985.
7. The appellate court dismissed the appeal finding no scope for reversal of the Judgment and decree of the trial court as per its Judgment and decree dated 23.1.1989.
8. The undaunted plaintiff pursued by way of filing second appeal in RSA No.183 of 1989 and this appeal came to be allowed and remanded to the first appellate court as per Judgment dated 29.8.1997 observing that if the second defendant sought to contend that he was a bona fide purchaser for valuable consideration, it was up to him to raise commensurate plea to this effect.
9. On remand, the supplemental written statement was filed by the second defendant and the lower appellate court framed an additional issue as follows:
"Whether the deft. No.2 proves that he is a bona fide purchaser of suit property for value without notice of suit agreement of sale between plaintiff and Defendant No.1?"
The learned Judge of the appellate court, on noticing that even earlier finding recorded by the learned Judge of the trial court on this aspect was that while plaintiff had not proved his bona fides regarding readiness and willingness to pay the balance sale consideration of Rs.1,600/- and therefore had failed on the aspect of readiness and willingness, on the other hand, had recorded a finding that the second defendant was a bona fide purchaser for value without notice of the development or even about the existence or otherwise of the agreement dated 7.6.1975 and consequently had refused to grant the decree for specific performance of the contract notwithstanding answering issues 1 and 2 in favour of the plaintiff and being of the view that the additional issue was required to be answered in the background of such a finding recorded by the trial court and noticing the contention of the learned counsel for the appellant that the second defendant cannot be characterized as a bona fide purchaser for the reason that possession of the subject land by the plaintiff was sufficient notice to the second defendant to have made further enquiries etc., and having placed considerable reliance on Exhibit.P2, and noticing the contentions urged on behalf of the second defendant that there was nothing to indicate that plaintiff was in possession of the suit land, in fact, it was not so and the finding of the trial court being to the contrary that the plaintiff was not in possession and this aspect having been affirmed once in the first round by the appellate court not disturbed in the second appeal by this court but remand being only on the aspect of limited question of the second defendant being a bona fide purchaser for valuable consideration and when once that had been answered once earlier in favour of the defendants and against the plaintiff, that concludes the issue etc., and therefore proceeded to formulate the following points for determination.
10. Though the findings on these issues as indicated in paragraph 17 of the judgment are as under:
"17. My finding for the below given reasons on the above points are:
1) In the affirmative, 2) Partly in the affirmative, 3) In the negative, 4) In the affirmative, 5) In the affirmative, 6) In the negative, 7) In the negative, 8) In the negative, 9) As per the final order."
this paragraph is full of mistakes and factual incorrect recordings inasmuch as on a perusal of the reasoning portion of the judgment relating to the findings on these issues, it is actually found that issue No.3 is answered in the affirmative in favour of the plaintiff, issue No.5 is answered in the negative and against the 2nd defendant, issue No.7 is answered in the affirmative in favour of the plaintiff/appellant, issue No.8 is also answered in the affirmative in favour of the appellant/plaintiff for reversing the judgment and decree of the court below and in this view of the matter, the learned Judge of the Appellate Court by order dated 24.09.2001 allowed the appeal, set aside the dismissal part of the judgment and decree of the trial court and decreed the suit for specific performance of the agreement between the parties as under:
Appeal is allowed. However, parties are directed to bear their own costs.
2) In modification of the judgment and decree passed by the trial court suit of the plaintiff is decreed as under:
a) The appellant/plaintiff is entitled to specific performance of agreement of sale dt. 7.06.1975. The respondent-1 was shall execute a registered sale deed within 3 months from the date of this order. The appellant shall deposit balance consideration amount into this court within one month from the date of this order. The respondent-2/deft.-2 shall also joint respt.-1 / deft.-1 to execute regular registered sale deed in favour of the appellant/plaintiff so as to convey the title to the suit property to the appellant/plaintiff.
b) In the event of failure of the respts./defts. To execute the sale deed within the time stipulated the appellant/plaintiff is at liberty to get the sale deed executed through court.
c) Draw decree accordingly.
d) Send a copy of this judgment to the trial court.
Send trial court records after appeal period is over."
11. This time, the 2nd defendant in the suit appealed to this court in R.S.A. No.929/2001. This occasion, it was the second round of second appeal before this court. This court noticed that the 1st defendant/owner of the land had died on 14.02.1990 and that the appellant/plaintiff having not taken any steps to bring the legal heirs of the deceased 1st defendant/1st respondent on record, the judgment and decree passed against a dead person was a nullity and therefore thought it proper to remand the matter yet again to the lower Appellate Court notwithstanding this court having framed the following three substantial questions of law for answering in the second appeal which are as under:
"(1) Whether the lower Appellate Court was justified in reversing the judgment and decree passed by the Trial Court dismissing the plaintiffs suit seeking a decree for specific performance when there is absolutely no evidence to prove that the appellant who was the second defendant before the Trail Court had notice of the alleged agreement between the plaintiff and the first defendant which was entered 5 years earlier to the sale deed between defendants 1 and 2?
(2) Whether in the facts and circumstances of the case the lower Appellate Court was justified in granting the discretionary decree for specific performance?
(3) Whether the decree passed by the Court below is a nullity in view of the appellant before the lower Appellate Court not bringing on record the L.Rs of the deceased defendant No.7 against whom the decree is granted?"
but being of the opinion that it was not necessary to answer the first two questions but thought it fit to answer the third question relating to the decree passed by the lower Appellate Court in the appeal, to decree the suit for specific performance was as a nullity in law and therefore while the judgment and decree was liable to set aside, the learned Judge remanded the matter to the lower Appellate Court yet again without the benefit of the judgment and decree for specific performance in favour of the plaintiff.
12. The net result of this second round of remand to the lower Appellate Court is that R.A.No.60/1985 which the plaintiff had filed against the judgment and decree in
O.S.No.28/80 dismissing the suit got revived and the learned Judge of the lower Appellate Court has on this occasion examined the appeal afresh and was of the view
that the only point that arose for consideration was:
" 1) Whether the appellants-plaintiffs prove that the judgment and decree passed by the trial court in perverse, arbitrary and this court interference is necessary in respect of relief's of mandatory and permanent injunction?
2) To what order or relief?"
and found it proper to answer the sole point in the negative, against the appellant and therefore dismissed the appeal as per the judgment dated 07.12.2009. It is against this dismissal of the first appeal, the present second appeal by the plaintiff now by legal heirs of the first plaintiff.
13. Sri. Andanimath, learned counsel appearing for the appellants has vehemently urged three points for examination in the second appeal. It is firstly contended that the remand order by this court in the latest remand i.e., in terms of the judgment in R.S.A.No.929/2001 was on a very limited aspect such as to examine the scope and the effect of the judgment and decree in the wake of the appellants/plaintiffs having not taken steps to bring on record the legal representatives of the deceased 1st defendant/1st respondent and this aspect having now been taken care of by impleading the legal representatives of the deceased 1st defendant who are now on record, the impediment for the judgment and decree that had been passed by the lower Appellate Court earlier to decree the suit for specific performance was removed and this court not having held against the plaintiffs in respect of other aspects which had already been found in favour of the plaintiffs in the earlier round of appeal by the learned Judge of the lower Appellate Court i.e., as per the judgment and decree of the lower Appellate Court dated 24.09.2001, the learned Judge of the lower Appellate Court on this occasion has committed a grave error even amounting to a blunder, in travelling beyond the scope of the remand order passed by this court and therefore submits that the dismissal of the appeal was not justified and this is a substantial question of law eliciting admission.
14. Mr. Andanimath, learned counsel secondly contend that the learned Judge of the lower Appellate court had wrongly cast the burden on the plaintiffs to prove that the 2nd defendant was not a bonafide purchaser and this erroneous approach itself has vitiated the finding on this aspect, that the burden being always on the person who puts forth a special defence particularly as it was the 2nd defendant who sought to rely upon the exception to clause (b) of Section 19 of the Specific Relief Act, 1963 which reads as under:
"19. Relief against parties and persons claiming under them by subsequent title.-
Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-
a) either party thereto;
b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
e) When the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:
Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."
The burden was heavily on the 2nd defendant to make good that he was a bonafide purchaser for valuable consideration and if at all the initial burden had been discharged, perhaps the onus would have shifted to the plaintiffs but that burden itself having not been discharged and in fact wrongly cast on the plaintiffs by the lower Appellate Court, the judgment and decree for dismissing the appeal is not sustainable. In this regard, he has drawn my attention to paragraph 20 of the judgment of the lower Appellate Court and submits that the manner the burden was put on the plaintiffs was virtually calling upon the plaintiffs to prove the negative which is not a possible thing and for this reason also the judgment is vitiated.
15. In support of such submissions, Mr. Andanimath has placed reliance on the following judgments of the Supreme Court:
i) M. M. S. INVESTMENTS, MADURAI AND OTHERS VERSUS V. VEERAPPAN AND OTHERS (AIR 2007 SC 2663),
ii) R.K.MOHAMMED UBAIDULLAH AND OTHERS VERSUS HAJEE C. ABDUL WAHAB (D) BY LRs AND OTHERS (AIR 2000 SC 1658).
16. While the judgment of the Supreme Court in M.M.S. Investment's case is not a judgment which has any bearing on the facts of the present case in the sense that it was a case where the owner of the property had sold the subject property agreed to be sold even subsequent to the decree for specific performance or during the pendency of the suit etc., such is not the position but the question is one of the bonafides of the purchaser and not so much the conduct of the owner that is involved in the present appeal for the purpose of answering additional issue as framed by the lower Appellate Court on the amendment of the pleadings by the 2nd defendant and therefore I do not find any bearing of this judgment on the present case and so far as the judgment of the Supreme Court in R.K. Mohammed's case is concerned, it is a judgment based more on the facts particularly the manner of conduct of the purchaser and the lack of bonafides in not having made proper enquiries and in the present case it was the case of the plaintiffs that pursuant to the agreement dated 07.06.1975, the plaintiffs had been put in possession way back in the year 1975 while the finding of the trial court on this aspect is that the plaintiffs had failed to prove that they were in possession and on the other hand the material on record being to the contrary and the learned Judge of the lower Appellate Court not having reversed this finding nor having upset this finding to positively hold that the plaintiffs were in possession, the situation does not arise for the plaintiffs to place reliance on this judgment particularly as it is the definite case of the defendants that the 1st defendant was in possession and the 2nd defendant was put in possession of the property in the year 1980 and in fact even on perusal of the record, I have noticed this position is more supported by the record and the only material which the plaintiffs placed reliance for asserting their physical possession of the property being certain revenue receipts which are neither here nor there not even an extract of the record of rights which perhaps could have been a possible material to presume factual physical possession which is a presumptive possession but which can be rebutted but that also having not been achieved, the plaintiffs having failed to prove its physical possession and at any rate on and after 1975 onwards, the year in which the agreement is said to have been entered, the judgment in no way helps to advance the appellants' case.
17. On the other hand, a perusal of the pleadings on record and the evidence both oral and documentary and on a reading of the judgments of the trial court and the first appellate court and two rounds in this court and on examining the submissions made at the bar, I find that the plaintiffs are not persons with any bonafides eliciting a discretionary relief for specific performance of an agreement particularly as the plaintiffs, turn out to be persons who are blowing hot and cold.
18. It was the case of the plaintiffs that the plaintiffs were tenants under the 1st defendant for long years prior to the agreement of the year 1975. If, in fact, the plaintiffs were tenants under the 1st defendant in the light of the provisions of the Karnataka Land Reforms Act, the land being a tenanted land, vests in the State Government as on 01.03.1974 and to enter into an agreement with the 1st defendant to convey the property in this land to the plaintiffs is impossible as in such event on the date of this agreement the 1st defendant was no more the owner of the land. The plaintiffs' own pleading and stand in claiming that they were the tenants earlier, in fact estopps the plaintiffs from claiming any relief particularly within the scope of Section 20 of the Specific Relief Act.
19. In fact, one of the reasons given by the learned Judge in the trial court is that it is not a fit case for granting the decree for specific performance in favour of the plaintiffs though the plaintiffs were successful in establishing that there was an agreement in the year 1975 and the parties had entered into such an agreement. The learned Judge of the lower Appellate Court having found no occasion to interfere with the judgment of the trial court, dismissed the appeal and the first point urged by Mr. Andanimath, to contend that the learned Judge of the lower Appellate Court has gone beyond the scope of the remand order inasmuch as this court though did set aside the judgment and decree for the reason that it was a decree against a dead person and therefore a nullity for such reason, the judgment and decree having been set aside, the entire judgment and decree disappears and it is not sustained to any extent inspite of not answering to substantial questions 1 and 2 as had been posed by this court in the judgment i.e., in R.S.A.No.929/2001 under which the remand order has been passed.
20. While this contention fails for this reason, the second contention that the burden had been wrongly placed is also a contention not available particularly as the argument on behalf of the appellants/plaintiffs and the stand of the plaintiffs for lack of bonafide on the part of the 2nd defendant proceeded on the factual premise of the plaintiffs being in possession of the subject land and therefore the 2nd defendant is not a bonafide purchaser of valuable consideration particularly when the plaintiffs were in physical possession, it was necessary for the defendant purchaser to have made enquiries but the very premise being fallacious and as the plaintiffs were not in possession as found by the learned Judge of the trial court and affirmed in appeal by the learned Judge of the lower Appellate Court, this finding of fact concludes the issue and argument against the plaintiffs and therefore the dismissal of the appeal by the learned Judge of the lower Appellate Court in third round of examination of R.A.No.60/85 does not warrant any interference by this court in this appeal filed u/s 100 of the Code of Civil Procedure.
21. While questions of law do arise, there is no question of law which is a question of substantial nature and wrongly decided by the learned Judge of the lower Appellate Court and in fact the judgment and decree by the lower Appellate Court being only one of dismissing the appeal and confirming the judgment and decree passed by the trial court if at all the appellant has to succeed in the second appeal, the plaintiffs have to demonstrate that the judgment of the trial court gives rise to substantial questions wrongly decided by that court but the plaintiffs, having failed even on this aspect and that position having not been made good not even attempted by the appellants/plaintiffs, there is no scope for interference in this appeal.
22. No merit in this appeal within the scope of section 100 CPC. Appeal dismissed with costs quantified at Rs.5,000/- on the appellants in favour of the 2nd defendant who is represented by counsel.
23. As the main appeal itself is disposed of, Misc. Cvl. No.101985/2011 does not survive for consideration. Hence, it is dismissed.