Naraynamma And Anr Etc Etc vs Govindappa And Ors. Etc Etc

3. For the sake of convenience, the parties shall be referred hereinafter as per their status shown in the plaint before the trial court. The suit O.S. No. 93/1999 was filed by the plaintiff Govindappa, who is the son of Bale Krishnappa. Originally the suit property belonged to one Bale Venkataramanappa, who was the brother of Bale Krishnappa. Said Bale Venkataramanappa has entered into an agreement to sell with the plaintiff, specific performance of which is sought in the present suit. The son of the Bale Venkataramanappa, M.V. Nagaraj was defendant No. 1, who has been represented through Legal representatives in the appellate courts since deceased. The wife and daughter of Anjanappa, who was another son of Venkataramanappa are the defendant Nos. 2 & 3 to the suit respectively. The daughter and wife of Bale Venkataramanappa are defendant Nos. 4 & 5 to the suit respectively. The R.S.A. No. 1925/2008 is filed by the original defendant Nos. 4 & 5, who are daughter and wife of Bale Venkataramanappa. The R.S.A. No. 1834/2008 has been filed by the legal representatives of the original defendant No. 1, M.V. Nagaraj and the original defendant Nos. 2 & 3, who are wife and daughter of Anjanappa. The suit was filed inter alia contending that the defendants did not come forward to execute 3 the sale deed in respect of the agreement to sell. After the notice was issued by the Civil Judge (Junior Division) & JMFC, Hoskote, the defendants appeared before the Court. However, they did not file the written statement. The power of attorney holder of the plaintiff is examined as PW­1. The plaintiff also examined two witnesses in support of his case, i.e., PW­2 and PW­3. He produced documentary evidence Exhibits P­1 to P­34 in support of his case. The defendants did not cross­examine the plaintiff. The trial court, upon appraisal of Exhibit P­1, i.e., the agreement to sell dated 15.05.1990, held that the suit property was granted in favour of the defendant and as per the grant certificate, there was a 15 years bar on alienation of the suit property. The period of the said bar was to expire on 13.10.1988. It was, therefore, held by the trial Judge that since the said agreement was executed during the non­alienation period of 15 years, the agreement was void and non­executable. It was held that since the said agreement was contrary to the statutory bar, it was void in law and as such the suit for specific performance of the contract was not maintainable.

4. Being aggrieved thereby, the plaintiff filed Regular Appeal No. 86 of 2004 before the Principal District & Session Judge, 4 Bangalore. Before the appellate court, though the defendants had put in their appearance, the Advocate did not appear to argue the matter. The first appellate court held that the father of Original defendant No. 1, namely, Bale Venkataramanappa, had mortgaged the suit property by a registered mortgage deed on 23.04.1990. It further held that on 15.05.1990 he had also entered into an agreement to sell with the plaintiff. It was further held that, the entire sum of Rs. 46,000/­ agreed to be paid to Bale Venkataramanappa was received by him. It was further found that the plaintiff had already been put in possession of the suit property. The first appellate court held that, the reasoning of the trial court that the non­alienation clause prohibits alienation was not apt. On this reasoning, the appeal was allowed.

10. It appears, that there were also parallel proceedings before the revenue authorities. After the death of Bale Venkataramanappa, the plaintiff filed an application on 12.05.1997 before the Tehsildar, Hoskote, for mutating his name in place of Bale Venkataramanappa. The Tehsildar, without any notice, carried out the mutation and entered the name of the plaintiff in the revenue records. The defendants challenged the same before the Assistant Commissioner, Doddabalapura Division. The said appeal was allowed on 27.06.2008. Accordingly, the revenue records were corrected and the defendants’ names were entered on 24.10.2009. The said Order came to be challenged by the plaintiff before the High Court by way of Writ Petition Nos. 22243­22244 of 2011. The High Court vide Order dated 26.07.2011, dismissed the said petitions.

24. Undisputedly, both, the predecessor­in­title of the defendant(s) as well as the plaintiff, are confederates in this illegality. Both, the plaintiff and the predecessor­in­title of the defendant(s) can be said to be equally responsible for violation of law.

26. It could thus be seen that, the trial Judge upon finding that the agreement of sale was hit by Section 61 of the Reforms Act, had rightly dismissed the suit of the plaintiff.

28. In the result, the appeals deserve to be allowed and are accordingly allowed. The judgment and order passed by the High Court of Karnataka dated 08.06.2015 and the Order passed by the Fast Track Court­III, Bangalore Rural District, Bangalore, dated 17.06.2008 are quashed and set aside. The order dated 23.01.2004 dismissing the suit passed by the trial court is upheld.

29. The parties shall bear their own costs.

SEPTEMBER 26, 2019.