J.C. Manjunath vs K. Kumarappa and Others

S. Sujatha, J—This appeal is filed by the plaintiff challenging the concurrent finding of the Courts below.

The facts in brief are that the plaintiff filed a suit for the relief of specific performance of contract against the defendants in respect of the landed property bearing Sy.No. 320/A measuring 21.95 acres situated at Kolagallu village basing on the agreement of sale dated 18.1.2002. The said suit was resisted by the defendants. After considering the material evidence on record, the trial Court partly decreed the suit. The plaintiffs were entitled to receive earnest money of Rs. 20,000/- along with interest at the rate of 6% p.a. from the date of agreement till the date of realization. The defendants were directed to pay the amount forthwith along with interest. An appeal was preferred by the plaintiff against the said judgment and decree of the trial Court, which was dismissed confirming the judgment and decree passed by the trial Court. This judgment and decree of the lower appellate Court is assailed in this second appeal.

The learned counsel for the appellant contended that the defendants have entered into an agreement of sale with the plaintiff on 18.1.2002 to sell the suit property for a sale consideration of Rs. 1,31,700/- against which Rs. 20,000/- was paid as earnest money. As per the recitals of the said contract Ex. P. 2, the plaintiff was liable to execute the sale deed after obtaining the occupancy rights from the concerned authorities, which he failed to do. Though ample evidence was led before the Courts below, the same was not properly appreciated by both the Courts and rejected the relief of specific performance claimed by the plaintiff.

Per contra, the learned counsel for the respondents firstly argued that the plaintiff has not entered the witness box to prove his case. On the other hand, the power of attorney holder, the mother of the plaintiff deposed on behalf of the plaintiff, who was a stranger to the contract i.e., Ex. P. 2. The learned counsel placed reliance on Order 3 Rule 2 of the Code of Civil Procedure in support of his submission. Secondly, the learned counsel argued that the property was an inam land on the date of execution of the agreement of sale i.e., on 18.1.2002, admittedly the suit property vested with the Government and the defendants had no right in whatever manner to enter into an agreement. Thirdly, it was argued that the plaintiff has failed to prove his readiness and willingness for the enforcement of the contract. To sum up the argument of the learned counsel for the respondents, the agreement dated 18.1.2002, Ex. P. 2, is admittedly unenforceable and the plaintiff had no cause of action to institute the suit for the relief of specific performance against the defendants.

After hearing the parties and perusing the material on record it is noticed that the plaintiff has entered into an agreement with the defendants on 18.1.2002, to purchase the land measuring 21 acres 95 cents in Sy.No. 320/A at Kolagallu village for a sale consideration of Rs. 1,31,700/- and has paid the earnest money of Rs. 20,000/-. The recital of the said agreement of sale specifies that the defendants had no right and title over the property to execute the sale deed. The relevant provisions of Section 4 of the Karnataka Certain Inams Abolition Act, 1977, reads thus:

Abolition, vesting of inams and the consequences thereof.- (1) Notwithstanding anything contained in any contract, grant or other instrument or in any decree or order of court or in any other law for the time being in force, with effect from and on the appointed date, the inam tenure of all inams and minor inams to which this Act applies under section 2 shall stand abolished.

(2) Save as otherwise expressly provided in this Act with effect from and on the appointed date, the following consequences shall ensue, namely,-

(a) the provisions of the Act relating to inams of alienated holding shall be deemed to have been repealed in their application to inam or alienated holding and the provisions of the Act and all other enactments applicable to unalienated villages or lands shall apply to the said inams or alienated holding;

(b) all rights, title and interest vesting in the inamdar including those in all communal lands, cultivated lands, uncultivated lands, whether assessed or not, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries, and ferries shall cease and be vested absolutely in the State Government, free from all encumbrances;

(c) the inamdar shall cease to have any interest in the inam other than interests expressly saved by or under the provisions of this Act;

A reading of this provision makes it clear that with effect from and on the appointed date, all rights, title and interest vesting in the inamdar, vested absolutely in the State Government free from all encumbrances. As such in view of the said statutory provisions, admittedly on 18.1.2002 the suit property vested with the Government and the defendants had no title or interest in the suit property to enter into any agreement of sale. Accordingly, the said agreement of sale is contrary to the provisions of the Inams Abolition Act, not enforceable in law. To examine the veracity of the agreement of sale and to prove the same, the plaintiff was represented through his GPA holder who was a total stranger to the said agreement. Order 3 Rule 2 of the Code of Civil Procedure provides that power of attorney holder cannot depose in place and in respect of principal. Order 3 rule 1 and 2 of the Code empowers the holder of power of attorney to act on behalf of the principal.

The word ''acts'' employed in Order 3 Rule 1 and 2 confines only in respect of ''acts'' done by the power of attorney holder in exercise of power granted by the instrument. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have the personal knowledge and in respect of which the principal is entitled to be cross examined as per the judgment of the Apex Court in the case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, AIR 2005 SC 439 : (2005) 123 CompCas 154 : (2005) 3 CTC 128 : (2004) 10 JT 264 : (2005) 140 PLR 1 : (2004) 10 SCALE 244 : (2005) 2 SCC 217 : (2004) AIRSCW 7064 : (2005) 3 Supreme 275 . Admittedly, the plaintiff has not stepped into the witness box and not tendered himself for cross examination which is fatal on the part of the plaintiff to prove the agreement of sale.

It is also pertinent to notice that the Form No. 2 was issued on 11.4.2005, converting the suit property by issuing raitawari patta, pursuant to the order passed by the Tahasildar, under the Inams Abolition Act, conferring occupancy rights on defendant No. 1. A perusal of this Ex. P. 6, Form No. 2 establishes that the defendants had no right to enter into any agreement of sale and the agreement of sale dated 18.1.2002 is prima facie illegal and unenforceable. The relief of specific performance is a discretionary relief. It is settled law that the Court is not bound to grant such relief, merely it is lawful to do so.

Considering these aspects in the light of documentary and oral evidence adduced by the parties, evaluating the same, the Courts below have rightly rejected the relief of specific performance, passed the decree for refund of earnest money with reasonable interest, which cannot be found fault with. No case is made out by the appellant to interfere with the concurrent findings of the Courts below. No substantial question of law arises for consideration in this second appeal. Accordingly the appeal is dismissed.