Masavalli Ramappa and Others vs Abdul Gaffor Sab and Others

S.N. Satyanarayana, J.—These two appeals are filed by one Masavalli Ramappa who is defendant No. 1 in O.S. No. 37/1991 and plaintiff in O.S. No. 56/199 1 both on the file of Civil Judge (Sr.Dn.), Hospet.

The suit in O.S. No. 37/1991 was filed by one Abdul Gafforsab S/o. Hussainsab claiming himself to be the absolute owner of the land bearing Sy. No. 54 measuring 15.40 acres and Sy. No. 78/A measuring 1.30 acres and also Sy. No. 87/A measuring 8 cents, all situated at Tippapur village, Hadagali taluk, Bellary district. In the said suit he sought for the relief of declaration that he is the absolute owner of the suit schedule property and also for an order of permanent injunction restraining the 1st defendant in the said suit from disturbing his title and possession of the same and other consequential reliefs.

The suit in O.S. No. 56/1991 is filed by the 1st defendant in O.S. No. 37/1991 Masavalli Ramappa for the relief of specific performance of agreement dated 23.3.1984 wherein he sought for direction to defendants i.e., children of erstwhile owner namely Hussainsab to execute sale deed of suit property in his favour by receiving the balance consideration of Rs. 56,000/-, or in the alternate by ordering plaintiff to deposit the balance sale consideration in the Court and register the sale deed of the suit property in his favour by the Court itself.

The brief facts leading to these two appeals are as under:

"a) The appellant in both the appeals namely Masavalli Ramappa is said to have entered into an agreement dated 23.3.1984 with one Hussainsab for purchase of land bearing Sy. No. 54 measuring 15.40 acres, Sy. No. 78/A measuring 1.30 acres, 87/A measuring 8 cents, situated at Tippapur village, Hadagali taluk, from its erstwhile owner. The sale consideration in the said agreement is said to be Rs. 1,05,000/-. Out of that Rs. 30,000/- is said to have paid at the time of agreement and balance Rs. 75,000/- was required to be paid at the time of execution of the sale deed. It is further stated that subsequently on two occasions another Rs. 19,000/- was paid i.e., on 21.10.1984 a sum of Rs. 10,000/- was paid and on 19.12.1984 a sum of Rs. 9,000/- was paid to vendor Hussainsab.

b) It is stated that in part performance of the agreement he was put in vacant possession of the suit schedule property. It is stated that the suit schedule property was inam land and the same was required to be re-granted in favour of vendor Hussainsab. Hence in the sale deed a recital was made to the effect that the sale will be completed as and when the vendor Hussainsab secure the registration certificate from the authority in re-granting the land in his favour.

c) When the matter stood thus, it is stated that Hussainsab died on 12.9.1985 i.e., within 1 1/2 years from the date of agreement of sale dated 23.3.1984. It is stated that he died leaving him surviving plaintiff in O.S. No. 37/1991 and also defendants 2 to 5 in the said suit who are said to be the children of deceased Hussainsab. The records would disclose that immediately after the death of Hussainsab his son Abdul Gafforsab filed suit in O.S. No. 161/1985 for the relief of declaration that he is the absolute owner of the suit schedule property and also for permanent injunction restraining the 1st defendant of the said suit namely Masavalli Ramappa from interfering with his alleged possession and enjoyment of the suit lands.

d) It is stated that the said suit was filed in ''forma-pauparis''. In the said suit on 23.4.1986 an application was filed seeking to pursue the suit in ''forma-pauparis'' which was allowed and the suit was registered. However subsequently the Court below felt that the suit is filed in the wrong forum and the same is required to be taken back and re-presented in the Court having jurisdiction to try the same. Accordingly on 27.6.1987 an order was passed for return of the plaint to be filed in competent Court. The records would disclose that thereafter nothing was done in collecting the plaint in O.S. No. 161/1985 for re-presenting the same in the Court having jurisdiction to try the same. Instead of that it is seen that subsequently the suit in O.S. No. 37/1991 is filed for the very same relief i.e., for the relief of declaration that he is the absolute owner of the suit property and also for permanent injunction.

e) It is seen that prior to filing of said suit the 1st defendant in the said suit namely Masavalli Ramappa is said to have pursued the application filed by late Hussainsab seeking issue of Form No. 2 in respect of the suit schedule property and thereafter by paying the requisite fee to the Government, he has secured Form No. 2. It is only after Form No. 2 was issued in re-granting the land under Certain Inams Abolition Act, the 1st son of vendor Hussainsab has filed suit in O.S. No. 37/1991 for declaration and permanent injunction claiming himself to be in possession of the property. It is seen that subsequently the suit in O.S. No. 56/1991 is filed by Masavalli Ramappa seeking specific performance of agreement dated 23.3.1984 on the ground that the occupancy certificate or re-grant of suit land is made in favour of plaintiff''s vendor on 16.2.1990. As such the agreement holder for purchase of the suit property has secured right to seek enforcement of the specific performance of the said agreement of sale dated 23.3.1984. Accordingly the said suit was filed by him against the children of deceased Hussainsab who are respondents in the said suit.

f) After filing the said suit for specific performance by Masavalli Ramappa, the contesting defendants filed their written statement i.e., in O.S. No. 37/1991 agreement holder Masavalli Ramappa who is the 1st defendant has filed his written statement denying the claim of the plaintiff that he is the absolute owner and also his right to seek permanent injunction against the defendant on the ground that the possession is already delivered in his favour. In so far as O.S. No. 56/1991 is concerned, on behalf of defendants it is only the 1st defendant Abdul Gafforsab who is the plaintiff in O.S. No. 37/1991 filed his written statement denying the execution of agreement by his father and also right of the plaintiff to seek specific performance. With this it is seen that the pleadings in both the suit are complete. Hence issues were framed separately in both the suits in the following manner.

Issues in O.S. No. 37/1991

Does plaintiff prove that he is the exclusive owner of the suit properties? - Answered in the affirmative.

Does defendant No. 1 prove that deceased father of plaintiff voluntarily executed an agreement of sale dated 23.3.84 in his favour and put him in possession of suit properties? - Answered in the affirmative.

Does defendant No. 1 further prove that he has improved the lands by investing huge amount as contended in para 19 of W.S.? -Answered in the negative.

Does defendant No. 1 prove that suit of plaintiff is barred by limitation? - Answered in the negative.

Whether plaintiff is entitled for mesne profits? - Answered in the affirmative.

Whether plaintiff is entitled for declaration and possession? -Answered in the affirmative.

What order or decree? - Answered as per final order in the suit.

Additional issue

Whether this court has no jurisdiction to entertain and try this suit? (to be tried as preliminary issue). - Answered in the negative.

Issues in O.S. No. 56/1991

Does plaintiff prove that late B. Hussain Sab agreed to sell the suit properties to plaintiff for Rs. 1,05,000/- and executed an agreement of sale on 23.3.84 by receiving Rs. 30,000/- as advance? - Answered in the affirmative.

Does plaintiff further prove that late B. Hussain Sab received Rs. 10,000/- on 21.6.84 and Rs. 9,000/- on 19.12.84 as further advance and acknowledge the same? - Answered in the affirmative.

Whether defendants prove that the suit is barred by limitation? -Answered in the affirmative.

Whether plaintiff is ever ready and willing to perform his part of contract? - Answered in the negative.

Whether plaintiff is entitled for the relief sought? - Answered in the negative.

What order or decree? - Answered as per the final order in the suit.

Additional issue

Whether defendants prove that suit agreement is void and unenforceable in the eye of law as contended in para 15A of the written statement? - Answered in the negative.

Issue No. 5(a)

5(a) Whether in the alternative, the petitioner is entitled to the refund of earnest and advances money of Rs. 49,000/- with interest at 18% p.a. as prayed for by him? -Answered in the negative.

g) The evidence of plaintiff in O.S. No. 56/1991 Masavalli Ramappa who is also defendant in O.S. No. 37/1991 was treated as evidence in PW series and the documents which are marked by him in both the suits are taken in P series and the plaintiff in O.S. No. 37/1991 Abdul Gafforsab who is also 1st defendant in O.S. No. 56/1991 was treated as defendant in the clubbed suit and the evidence on his side was recorded in DW series and the documents produced in support of his case in both the suits are taken in D series.

h) The plaintiff in O.S. No. 37/1991 Abdul Gafforsab did not adduce evidence. He gave power of attorney in favour of Anwar Saheb a Lecturer in Government College of Bellary to give evidence on behalf of the plaintiff in O.S. No. 37/1991 who got examined himself as DW.1 in support of the case of the plaintiff in O.S. No. 37/1991. One more witness was examined by name Khasim Sab as DW.2 and in all 24 documents were marked on behalf of Abdul Gafforsab plaintiff in O.S. No. 37/1991 which are marked as Exs. D.1 to D.24. So far as plaintiff in O.S. No. 56/1991 is concerned, he himself got examined as PW.1. The son of one of the attesting witness to the agreement of sale Ex. P.1 has given evidence as PW.2 and another witness Mohammed as PW.3 and Sanganabasappa who is an advocate who earlier issued a legal notice in the year 1986 tendered evidence as PW.4 and in all 24 documents were produced and marked as Exs. P.1 to P.24.

i) Based on the pleadings, oral and documentary evidence available on record, the trial Court proceeded to dispose of both the suits by common judgment dated 29.9.2001 wherein the issues framed were answered as stated against each issues in both suits.

j) Consequently the suit of the plaintiff Masavalli Ramappa filed for specific performance of agreement dated 23.3.1984 was dismissed and the suit of the plaintiff Abdul Gafforsab filed for declaration and possession was decreed in his favour. Being aggrieved by the common judgment in both the suits these two appeals are filed."

The appeal in RFA No. 11/2002 is filed by defendant in O.S. No. 37/1991 in challenging the judgment and decree passed in the said suit in declaring the suit schedule property as exclusive property of plaintiff Abdul Gafforsab and consequently decreeing his suit for possession.

The appeal in RFA No. 13/2002 is by the plaintiff in O.S. No. 56/1991 Masavalli Ramappa challenging the judgment and decree passed in O.S. No. 56/1991 rejecting his suit for specific performance. Both the appeals are coming up today for final hearing. In this proceeding through notice is duly served on the respondents, they remained un-represented. Hence the appeals are taken up for final disposal in the presence of learned counsel for appellants Sri Ravi Hegde in both the appeals.

Heard the learned counsel for appellants. Perused the grounds of appeal memo in both appeals and as well as the common judgment and also oral and documentary evidence relied upon by the Court below in both the suits. On going through the same the common points for consideration arising in these two appeals are as under:

"i) Whether the Court below was justified in accepting the plaintiff in O.S. No. 37/1991 namely Abdul Gafforsab as absolute/exclusive owner of the suit schedule lands in the absence of defendants 2 to 5 in the said suit relinquishing their right, title and interest in the suit schedule property in favour of their brother Abdul Gafforsab?

ii) Whether Abdul Gafforsab was entitled to seek declaration in the absence of any document executed by his sisters in relinquishing their right, title and interest in the suit schedule property in his favour?

iii) Whether the Court below was justified in holding that the suit of Masavalli Ramappa the plaintiff in O.S. No. 56/1991 is barred by limitation when admittedly the agreement speaks of the purchaser''s right to seek execution of the sale deed in his favour after Form No. 2 being issued by the revenue authorities?

iv) Whether the Court below was justified in answering that the suit of Abdul Gafforsab for declaration in O.S. No. 37/1991 is in time when admittedly he has declined to comply with the order dated 27.6.1987 passed in O.S. No. 161/1985 by the very same Court in returning the said suit for filing it before the competent Court having jurisdiction to try the said suit filed for very same relief which he has sought in O.S. No. 37/1991."

This Court answer the points for consideration in favour of the appellants against the plaintiff in O.S. No. 37/1991 and 1st defendant in O.S. No. 56/1991 namely Abdul Gafforsab for the following:

REASONS

Points 1 and 2: The fact that three items of suit schedule property are the properties of one Hussainsab is not in dispute. In the agreement of sale dated 23.3.1984, which is at Ex. P.1, he has agreed to sell only two items of lands namely Sy. No. 54 measuring 15.40 acres and Sy. No. 78/A measuring 1.30 acres of Tippalur village, Huvinahadagali taluk in Bellary District for valuable consideration of Rs. 1,05,000/- only. In the said agreement there is no reference to Sy. No. 37/A measuring 8 cents. Therefore the plaintiff is not entitled to seek specific performance in that behalf.

It is further seen that in the said suit a sum of Rs. 30,000/- was paid as advance sale consideration on the date of agreement and in return the vendor Hussainsab has delivered vacant possession of the aforesaid two properties. The recitals in the agreement would indicate that the suit schedule land is inam land in respect of which the vendor had absolute right and it is also stated that since it was a franchisee grant, he was required to get re-grant certificate before executing the deed of conveyance in respect of such properties. In the agreement it was also mentioned that securing of re-grant in the form of Form No. 2 is essential for the purpose of conveying the suit land, thereby implying that the right to seek specific performance would commence only from the time when Form No. 2 in respect of the aforesaid lands is issued in favour of vendor Hussainsab.

It is seen, after the agreement was executed, in March 1984, within 18 months therefrom, i.e., in the month of September 1985 vendor Hussainsab died leaving him five surviving children. Thereafter i.e., after the death of Hussainsab his first son Abdul Gafforsab filed suit in O.S. No. 161/1985 seeking declaration that he has become the absolute owner of the suit schedule property and that he is entitled to the relief of injunction against Masavalli Ramappa who is claiming possession of the land pursuant to agreement of sale dated 23.3.1984. In the said suit, on 27.6.1987, an order was passed by the Court below directing the plaintiff to take return of the plaint and re-present before the jurisdictional Court which has jurisdiction to try the same. It is seen that the said order is not complied. Thereafter the suit O.S. No. 37/1991 is filed by him.

It is seen that in O.S. No. 16 1/1985 and also in O.S. No. 37/1991 sisters of Abdul Gafforsab have not joined him in filing the suit. They are formal parties in both the suits. It is stated by him that he has become the absolute owner of suit schedule property after the death of his father for which his sisters have no objection. Though he has made such statement in O.S. Nos. 161/1985 and 37/1991, while filing written statement in O.S. No. 56/1991 it is stated by him that his sisters have relinquished their right in suit schedule property in his favour, thereby he has become the absolute owner of suit land and as such he has right to pursue O.S. No. 37/1991. With such assertion he is continuing O.S. No. 37/1991 filed seeking relief of declaration of his title to the suit schedule property. In the said suit he has to establish that his sisters have released their right, title and interest in the suit schedule property in his favour. He has to establish that they have executed a relinquishment deed in his favour with reference to their right to the suit schedule property. In both suits there is no document to substantiate such claim by Abdul Gafforsab. It would indicate that admittedly defendants 2 to 5 have not filed any statement either accepting or denying the contention of the plaintiff Abdul Gafforsab that he has become the absolute owner of the suit schedule property. In the absence of clear admission by defendants 2 to 5 and also in the absence of any document to show that defendants 2 to 5 in O.S. No. 37/1991 who are defendants 2 to 5 in O.S. No. 56/1991 having executed any document relinquishing their title in favour of Abdul Gafforsab, he would not be entitled to the relief of declaration to suit schedule property, which aspect is lost sight by the Court below.

In fact based on the pleadings an issue should have been framed to decide Abdul Gafforsab''s right to seek declaration on the basis of release of right in his favour by his sister. It is seen no such issue is framed, no evidence is adduced by Abdul Gafforsab in both the suits in that behalf. As such the finding in holding that he has become the absolute owner of the suit schedule property is without basis. Therefore points 1 and 2 framed for consideration are required to be answered in favour of Masavalli Ramappa in holding that the Court below has not properly appreciated the pleadings and evidence to ascertain the right of Abdul Gafforsab to suit property.

Points 3 and 4: Now coming to limitation in filing O.S. No. 37/1991, it is a suit filed for declaration and permanent injunction and there is no prayer for possession in O.S. No. 37/1991. It is seen that in O.S. No. 37/1991 in addition to declaration he has sought for possession whereas his contention was totally different in earlier suit O.S. No. 161/1985, wherein he had sought for declaration and permanent injunction. In that view of the matter it is seen that his pleading is inconsistent in O.S. No. 161/1985, where he has categorically stated that he is in possession of the suit schedule property whereas in O.S. No. 37/1991 he is seeking possession of said property thereby accepting delivery of possession of suit property in favour of Masavalli Ramappa under agreement of sale dated 23.3.1984. With this it is clearly seen that the agreement of sale is established by the plaintiff Masavalli Ramappa as accepted by the Court below.

Now coming to the limitation aspect, when suit for declaration filed in the year 1985 was ordered to be returned to re-file before the competent Court by order dated 26.7.1987, the plaintiff in the said suit who is also plaintiff in O.S. No. 37/1991 has not taken steps for taking back the plaint and re-presenting the same before the competent Court. In that view of the matter he has lost his right to pursue the said suit or by filing a separate suit which is lost sight by the Court below. Therefore the issue which was framed in O.S. No. 37/1991 regarding limitation is concerned is answered wrongly in holding the same in favour of plaintiff Abdul Gafforsab, the said finding of the Court below is required to be set aside.

It is necessary to hold that as on the date of filing of suit O.S. No. 37/1991 the plaintiff Abdul Gafforsab had no right to seek the relief of declaration and possession in as much as he had not complied the order dated 27.6.1987 passed in O.S. No. 161/1985 in taking back the plaint and re-presenting the same before the jurisdictional Court. In that view of the matter he should not have filed O.S. No. 37/1991 and the finding on additional issue No. 1 in O.S. No. 37/1991 is erroneous and the same should have been answered against him in the said suit. In that view of the matter, this Court by answering 3rd point for consideration against Abdul Gafforsab holding that he was not entitled for declaration and possession in O.S. No. 37/1991 filed by him against Masavalli Ramappa and his other sisters.

So far as the 4th point for consideration with regard to correctness of the finding of Court below on additional issue No. 1 in O.S. No. 56/1991 regarding limitation it is seen that in the agreement dated 23.3.1984 there is a clear recital that the suit land is subject to franchisee grant. Therefore unless the vendor secure re-grant in his favour either in the form of Form No. 2 or any other document in confirming his title to the same, he could not have executed the sale deed in favour of the plaintiff Masavalli Ramappa.

It is seen that in this behalf immediately after the agreement is executed, an application is also made by him under Certain Inams Abolition Act. The said application was pending consideration at the time of his death in September 1985. When that being the situation, mere issuance of a notice by the plaintiff to the legal representatives of deceased vendor Hussainsab calling upon them to execute the sale deed cannot by itself construed as commencement of time for limitation. In fact the said notice is in aid of terms of agreement of sale. When agreement itself clearly states that the sale deed shall be executed after the land being re-granted in favour of the vendor, the question of taking notice as basis for calculating the period of limitation in filing the suit for specific performance of agreement is erroneous.

The finding of the trial Court on that issue is required to be set aside and consequently it has to be held that in view of re-grant being made in favour of the plaintiff on 3.2.1990, i.e., subsequent to the agreement holder Masavalli Ramappa himself paying the requisite fee for passing such order, the limitation for filing of suit for specific performance would commence and since the suit in O.S. No. 56/1991 is filed within three years from such date, the suit filed by Masavalli Ramappa for the relief of specific performance is in fact within the period of limitation. In view of issues framed regarding execution of the agreement, payment of part payment of sale consideration and delivery of possession of suit land for part performance of agreement having been rightly proved by him and accepted by the Court below in answering the issues framed in that behalf in his favour ought to have granted decree for specific performance in his favour.

Therefore the finding of the Court below on the additional issue in holding that the suit for specific performance is barred by limitation is required to be set aside and the issue framed by the Court below in that behalf is required to be answered in favour of the agreement holder Masavalli Ramappa. In that view of the matter it is clearly seen that the plaintiff Masavalli Ramappa has rightly established that he has entered into agreement with Hussainsab for purchase of the suit schedule property for valuable consideration of Rs. 1,05,000/- and that under the agreement of sale he has already paid Rs. 30,000/- sale consideration in favour of the vendor and that under the agreement he was already put in possession of the suit property, as such he continued to be in possession and enjoyment of the said land.

It is further seen that the Court below while appreciating the pleadings and evidence available on record has rightly answered all issues in respect of execution of the agreement of sale and right of plaintiff to seek specific performance are all being answered in his favour and in the light of the finding of Court below regarding limitation and the right of the plaintiff Abdul Gafforsab in O.S. No. 37/1991 to seek declaration of title in his exclusive name being turned down while answering point for consideration.

Therefore the judgment passed by the Court below in dismissing the suit of Masvalli Ramappa in O.S. No. 56/1991 and decreeing the suit of Abdul Gafforsab in O.S. No. 37/1991 for the relief of declaration is required to be modified in decreeing the suit of Masavalli Ramappa in O.S. No. 56/1991 and consequently dismissing the suit of Abdul Gafforsab for the relief of declaration and possession in O.S. No. 37/1991. Accordingly these two appeals are allowed.