PARVATHAMMA v. CHANNAMMA

This is plaintiff's appeal against the judgment and decree in R.A.No.150/2002 dated 17th June 2006, reversing the judgment and decree in O.S.No.568/1996 dated 30th March 2002.

2. Parties are referred to as per their ranking in the trial court.

3. Plaintiff sought for specific performance of the contract under agreement dated 12.8.1984.

4. Case of the plaintiff is that, the defendant is the owner of land bearing Sy.No.115 of Ravagodlu village, Uttarahalli Hobli, Bangalore South Taluk, measuring 13 guntas. Defendant entered into an agreement to sell dated 12.8.1984 with the plaintiff, the sale consideration was fixed at Rs.2,000/-. The entire sale consideration was paid on the date of agreement and the plaintiff was also put in possession. However, the defendant had also borrowed a sum of Rs.3,000/- and in return of the said amount, she had issued a cheque. 3 The cheque was bounced. Thereafter, the defendant snatched the cheque and had not paid the said amount. Plaintiff issued legal notice to the defendant calling upon her to execute the sale deed. When the defendant did not come forward to execute the sale deed, plaintiff filed the present suit.

5. Defendant admitted the execution of the agreement to sell, however, contended that, on the very same day, plaintiff also executed another agreement as per Ex.D1. Both the agreements were written by the same scribe. It was a mutual exchange of land. When the plaintiff did not agree to sell her land measuring 3/4th gunta, the defendant returned the sale consideration along with Rs.1,000/- by issue of cheque and thereafter, she paid the cash and took back the cheque. Defendant denied that the plaintiff is entitled for the decree for specific performance of the contract. She also contended that the suit is barred by limitation and plaintiff is not ready and willing to perform her part of contract.

6. The trial court on the basis of the pleadings framed the following issues: 4

1. Whether the plaintiff proves that defendant executed an agreement to sell, dated 12.8.1984 for valuable consideration of Rs.2,000/- by receiving the entire sale consideration amount?

2. Whether the plaintiff proves that she was and is always, ready and willing to perform her part of obligations and under the agreement?

3. Whether the plaintiff proves that she has perfected her title to the suit schedule property by adverse possession?

4. Whether suit is barred by limitation?

5. Whether the defendant proves that 2 contemporaneous documents came into existence between the parties on 12.8.1984 in respect of exchange of land as stated in para 4 of the written statement? Whether the agreement is hit by Stamp Act

6. and Registration Act? Whether the plaintiff is entitled for the

7. decree as prayed for?

8. What Order or decree?

7. Trial Court held that, the plaintiff has proved the agreement dated 12.8.1984; plaintiff has proved that she is always ready and 5 willing to perform her part of contract and plaintiff has proved that she is in possession and negatived the case of the defendant that, the agreement is a contemporaneous document came in existence between the parties on 12.8.1984 as stated in para-4 and accordingly, decreed the suit.

8. Defendant being aggrieved by the said judgment and decree filed an appeal before the lower appellate court. The lower appellate court formulated the following points for determination:

1. “Whether the plaintiff has proved that she was always ready and willing too perform her part of contract of the agreement of sale dated 12.8.1984 entered into between her and the defendant?”

2. “Whether the suit is barred by limitation?”

3. “Whether the defendant has proved that the agreement of sale in question came into existence as a contemporaneous document for exchange of land between her an plaintiff as pleaded in the written statement?”

4. “Whether the plaintiff is entitled for specific enforcement of agreement of sale dated 12.8.1984?” 6

5. “Whether the judgment and decree passed by Trial court needs to be set aside or modified?” and held that the defendant has proved that the agreement of sale in question came into existence as a contemporaneous document for exchange of land between the plaintiff and the defendant as pleaded in the written statement. Further, the suit is for specific performance and is barred by limitation and accordingly, allowed the appeal by setting aside the judgment and decree of the trial court.

9. Learned Counsel for the plaintiff submitted that, the defendant has admitted the agreement. Though the defendant has raised a plea that the agreement of sale is a contemporaneous document, however, has not proved that she had made the payment of Rs.3,000/-, in turn, plaintiff has specifically pleaded in her plaint that, towards discharge of loan, defendant had issued a cheque to the plaintiff and she did not pay the said amount, defendant had snatched the said cheque from the plaintiff. When the defendant claims that she had made the payment, the burden is on her to prove the same. He 7 also submitted that, once the agreement is proved and the entire sale consideration is paid, readiness and willingness of the plaintiff does not arise. Plaintiff has also proved that, she is in possession of the suit schedule property.

10. Appellate Court on the ground that, both the documents have come into existence on the very same day and scribe of both the documents being one and the same, has erroneously held that the agreement of sale is a contemporaneous document. He also submitted that, period of limitation is not applicable as there was a prohibition of sale in view of the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 and the same was repealed in 1991. Plaintiff had issued notice in 1996, for which defendant did not reply, as such, from the date of refusal, suit was well within time. He further submitted that, the judgment and decree of the Appellate Court requires to be set aside.

11. On the other hand, learned Counsel for the defendant submitted that, though the plaintiff has pleaded that, there was a loan 8 transaction and towards the same, defendant had issued the cheque, however, defendant's specific defence was that, when the mutual exchange of land was not materialized, defendant had returned the amount by way of cheque and thereafter she paid the said amount in cash and took back the cheque. To support his contention, he also relied on Ex.P2 -legal notice, there is no such averment in the legal notice as to the snatching of the cheque by the defendant from the plaintiff. He also submitted that, PW-2 has admitted the signature of the scribe both on Ex.P1 as well as Ex.D1 and further both the documents have come into existence on the same day. This is also supported by oral evidence of DWs-1 to 3. The appellate court has held that, the agreement was contemporaneous and it was not agreement to sell the suit property alone.

12. As regard to the limitation, he submitted that, even according to the plaintiff herself, the Act was repealed in1991 and notice is issued in 1996. This aspect proves that the plaintiff was never ready and willing to perform his part of contract. It also proves that the suit is barred by limitation, as the cause of action, even according to the plaintiff, accrued in 1991 itself. 9

13. This Court while admitting this appeal has formulated the following substantial questions of law:

1. Whether the impugned judgment and decree of the lower appellate court is contrary to the law declared by this Court in H.M.Krishnareddy -vs- H.C.Narayanareddy reported in ILR 2001 Kar 3870?

2. Whether the lower appellate court committed an error in holding that the agreement of sale in favour of the plaintiff/appellant was cancelled is contrary to the evidence on record?

14. Defendant has not disputed that, she has executed the agreement Ex.P1, but it is the specific plea of the defendant in the written statement that, on the date of the alleged agreement, plaintiff had also executed an agreement of sale in respect of 3/4th gunta of her land in favour of the defendant, i.e., Ex.D1. Both the agreements were executed on the same day. PW-2 is an attestor to Ex.P1 and Ex.D1 also. He has not disputed his signature on Ex.P1 and Ex.D1. The scribe for both the documents is also one and the same. Both 10 plaintiff and defendant mutually agreed to exchange the land, accordingly, both the agreements were drafted on the same day. Since plaintiff did not sell her land, the agreement Ex.P1 stood cancelled, defendant refunded the earnest money to the plaintiff.

15. The plea of the plaintiff is that, the defendant had borrowed a sum of Rs.3,000/-, towards which defendant had issued a cheque, however, the said cheque was dishonoured, when plaintiff demanded the said amount, the defendant snatched the cheque from the plaintiff and did not make the payment. However, this plea is not supported by any evidence. On the contrary, Ex.P2 is a legal notice issued by the plaintiff. Though the plaintiff in her legal notice has stated that the defendant had borrowed Rs.3,000/- and she had issued a cheque and on its presentation, it was dishonoured, however, nowhere in the legal notice, she has stated that, the plaintiff snatched the cheque and did not return. It is only in the pleading, the said plea is raised.

16. It is the specific case of the defendant that, she took back the cheque by paying advance amount with one thousand interest 11 received under the agreement Ex.P1. It is not in dispute, that the said cheque is with defendant. Plaintiff has not explained as to how the cheque has gone into the possession of the defendant except making a bald plea in the plaint. This evidence probabalises the case of the defendant that, both the agreements viz., Ex.P1 and Ex.D1 came into existence on the same day. This also probabalises that the defendant by making payment had taken back the cheque and the agreement Ex.P1 stood cancelled.

17. Merely because the defendant has admitted the Ex.P1, that does not mean that the plaintiff automatically becomes entitled for decree of specific performance. Plaintiff having taken the plea of loan transaction, has utterly failed to prove the same. In turn, the said plea supports the case of the defendant that she had returned the amount and took back the cheque.

18. As far as limitation is concerned, agreement is dated

12.8.1984. The Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 was repealed by Act 4/1991 12 w.e.f. 5th February 1991. From February 1991, there was no legal impediment for the plaintiff to seek the enforcement of the agreement, admittedly, the suit is filed in 1996, i.e., nearly after 5 years. There is no explanation by the plaintiff for the said delay.

19. Not only this proves that the suit was barred by time but also that the plaintiff was not ready and willing to perform her part of contract.

20. The judgment relied by the learned Counsel for the plaintiff has no application to the facts and circumstances of the case. Limitation is not counted from the date of agreement, but limitation is sought to be considered from the date on which the Act repealed, as admittedly the plaintiff's case is that, because of Act she could not seek enforcement of the agreement. The Act is repealed in 1991, she had a cause of action in 1991 and the suit is filed in 1996.

21. In view of the discussion made above, the first substantial question of law is answered against the plaintiff. 13

21. In the light of the discussion that the agreement stood cancelled, the second substantial question of law is also answered in the negative. In view of the above circumstances, the appeal fails and same is dismissed. However, no order as to cost in this appeal. Sd/- JUDGE KNM/-