The High Court
Case Details
- 1 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 349 OF 2009 …APPELLANT BETWEEN: MR M VENKATAPPA, S/O LATE MUNIVEERAPPA, AGED ABOUT 75 YEARS, R/O CHIKKAKAADIGANAHALLI,NANDI HOBLI, CHIKKABALLAPURA DISTRICT-562101. (BY SRI HARISH BHANDARY T A/W SRI T K RAJAGOPALA, ADVOCATES) AND: 1. SRI SHIVASHANKAR G, S/O LATE B.R. GOPALA RAO, AGED ABOUT 63 YEARS, R/O NO. 103/1, NEAR GAYATHRI RELE VISION, NANDI ROAD,CHIKKABALLAPURA-562 101. 2. SMT. R.G. LALITHAMMA,
Legal Reasoning
W/O K. GANESH, AGED ABOUT 59 YEARS, D/O LATE B.R. GOPALA RAO, R/O NO. 1123, 10TH MAIN, 2ND CROSS, RAGHAVENDRA BLOCK, SRINAGARA, BANGALORE, 3. SRI G. SURYANARAYANA RAO, S/O LATE B.R. GOPALA RAO, AGED ABOUT 55 YEARS, R/O OLD HOSTEL BUILDING, Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR NEAR E.T.C.M. CIRCLE, BANGARPETH MAIN ROAD, KOLAR-563 130. 4. SRI G. ASHWATHANARAYANA, S/O LATE GOPALA RAO, AGED ABOUT 52 YEARS, R/O NO. 44/10, SLN NILAYA, BEHIND KTC GODOWN, RAJIV GANDHI NAGAR, CHURCH ROAD, BOMMANAHALLI, BANGALORE-560068. 5. SRI RAGHAVENDRA RAO, S/O LATE SATHYANARAYANA RAO, AGED ABOUT 40 YEARS, 6. SRI SRINIVASA RAO, S/O LATE SATHYANARAYANA RAO, AGED ABOUT 38 YEARS, 7. SMT NAGALAKSHMI, W/O SATHYANARAYANA RAO, AGED ABOUT 60 YEARS, NOS. 5 TO 7 R/O 19/119, SUBBARAYANAPETE, CHIKKABALLAPURA-562 101. (BY SRI K SUBRAMANYAM, ADVOCATE FOR R1 TO R4, R5 AND R6 ARE SERVED AND UNREPRESENTED V/C/O DT05.06.2025 R5 & R6 ARE THE LRS OF DECEASED R7) …RESPONDENTS THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE IN JUDGEMENT & DECREE DTD:11.12.2008 PASSED R.A.NO.101/2005 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPUR, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD:7.6.2005 PASSED IN OS. 200/1998 ON THE FILE OF THE C/C JMFC., CHIKKABALLAPURTRAIL COURT DISMISSED THE SUIT. (JR. DN.) JUDGE ADDL. CIVIL & - 3 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This second appeal was dismissed vide order dated 06.04.2010. Said dismissal was for non-prosecution and not on merit. An application is filed at I.A. No.2/2024 to recall the order dated 06.04.2010 and I.A. No.1/2024 is also filed to condone the delay of 5119 days in filing the application for recalling the order dated 06.04.2010. 2. Along with the application, learned counsel for the appellant has also produced the document to show that the appellant was not keeping well. 3. Respondents have filed the objection to both applications. In addition to considering the applications for condonation of delay on merit, this Court has also considered the case on merit. - 4 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR 4. The facts would reveal that suit for specific performance was filed in the year 1998 to enforce alleged agreement for sale dated 20.06.1980. Plaintiff/appellant claims that the property was agreed to be sold for Rs.12,000/- and he had paid Rs.5,000/- somewhere in the year 1974 as a hand loan to the defendants and defendants could not repay the loan amount, as such, the defendants executed a Guttha Deed (something similar to lease deed) in favour of the plaintiff. The plaintiff further claims to be in possession of the property with effect from 04.11.1974 based on the Guttha Deed. It is claimed that since defendants could not repay the loan amount, he agreed to sell the property for Rs.12,000/- in the year 1980 and Rs.5,000/- already paid as hand loan was also treated as part of the consideration amount of Rs.12,000/- and it is claimed that Rs.5,000/- was paid on 20.06.1980 and Rs.2,000/- was agreed to be paid later. - 5 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR 5. Suit is filed in the year 1998 on the premise that the land is re-granted to the defendants and defendants acquired right to alienate the property. 6. The defendants contested the suit denying execution of agreement for sale and also Guttha Deed. 7. The trial Court concluded that the plaintiff is not entitled to the relief and the suit is dismissed. The trial Court held that loan transaction of 1974 is not established and the execution of Guttha Deed is not established and Court also held that execution of agreement dated 20.06.1980 is also not established. 8. The plaintiff filed an appeal in R.A. No.101/2005. The same is also dismissed. Hence, the present second appeal. 9. As already noticed, the second appeal was dismissed vide order dated 06.04.2010. It was dismissed even before the case was admitted and as already noticed, - 6 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR nearly after 14 years, the application is filed to recall the order dismissing the appeal for non prosecution. 10. Learned counsel for the appellant would submit that the appellant was not keeping well and for this reason, he could not follow up the pending case and his earlier Advocate is also not traceable and later he has filed the present application on coming to know that the appeal is dismissed for non prosecution by engaging present Advocate. 11. Learned counsel for respondents on the other hand would submit that the plaintiff who has lost the suit for specific performance where he has admitted the ownership of the defendants, later has filed a suit for declaration of title based on adverse possession in O.S. No.245/2016 and said suit was dismissed and an appeal is filed against the said decree in R.A. No.22/2024. It is urged that in the very suit seeking declaration of title based on adverse possession, the defendants/respondents have taken a contention that this appeal in R.S.A - 7 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR No.349/2009 is dismissed for non prosecution. Thus, he would urge that the appellant has not shown sufficient cause for condoning the delay of nearly 14 years. 12. It is his further contention that the appellant was not keeping well and could not pursue the present appeal cannot be accepted as he was prosecuting the second suit as well as an appeal from the decree in the second suit. 13. This Court has considered the contentions raised at the bar and perused the records. 14. The admitted factual position is that the property was granted to the defendants in the year 1997. The alleged agreement for sale was executed in the year 1980. Admittedly, on that day the defendants had no title of the property and they could not have entered into an agreement to sell the property over which, they had no title. - 8 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR 15. It is also noticed that the land is an agricultural land. The plaintiff claims that he came in possession of the property under Guttha Deed dated 04.11.1974 which for all practical purposes can be construed as a lease deed. Karnataka Land Reforms Act was amended with effect from 01.03.1974. The amended provisions of the Karnataka Land Reforms Act prohibits the lease of an agricultural land. Thus, the alleged Guttha Deed itself is not permissible under law and Court cannot hold that the plaintiff came in possession of the property under the said document. 16. Both the Courts have concurrently held that the agreement dated 20.06.1980 is not proved. Even otherwise, the admitted legal position would be the defendants had no title over the property on 20.06.1980 to enter into an agreement to sell. 17. It is also noticed that relief of specific performance is discretionary relief. The person who seeks specific performance must establish that he was ready and - 9 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR willing to perform his part of the contract throughout. The appeal as already noticed was dismissed in the year 2010. Application to recall the said order dismissing the appeal for non prosecution is filed after 14 years. Instead of moving the application for restoration, the plaintiff was prosecuting the suit in respect of the same property seeking relief of declaration of title based on adverse possession. Thus, there is no difficulty in holding that the plaintiff gave up his claim for specific performance of the alleged contract. Even if it is assumed that the agreement for sale is proved then also the plaintiff having filed a suit for declaration of title cannot claim specific performance as the readiness and willingness to perform his part of the contract is not established. 18. Under these circumstances, this Court is of the view that the Court cannot show any indulgence to the appellant who is seeking the discretionary relief for specific performance of the contract. - 10 - NC: 2025:KHC:22789 RSA No. 349 of 2009 HC-KAR 19. For the aforementioned reasons, this Court is of the view that there is no merit in the appeal as well as there is no merit in the application to recall the order dated 06.04.2010. 20. Hence, appeal is dismissed. Applications are also dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS List No.: 1 Sl No.: 10