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TMI Blog2006 (3) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 days from the said date. The balance of sale consideration was to be paid at the time of registration of sale within six months from the date of the agreement. On 18.10.1993, plaintiff paid further sum of ₹ 40,000/- under separate receipt, and the time for completion of the sale transaction was refixed as nine months from 18.9.1993. It. is the case of the plaintiff that subsequently, plaintiff made several payments to the defendants on different dates to the tune of ₹ 1,89,000/- to the defendants and alleged that the plaintiff was always ready and willing to perform its part of contract.. However, on account of institution of a suit in O.S.No. 50/1994 by the sisters of the defendants and obtaining a temporary injunction restraining the alienation of the suit, properties therein including the suit schedule property the sale transaction could be completed. Plaintiff further alleged that it got impleaded in the said suit and thereafter, the plaintiff also filed another suit in O.S.No. 130/1996 seeking permanent injunction restraining the defendants from alienating the suit schedule properties to third party. It is the case of the plaintiff, that it was always ready and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement of sale on 18.9.93? 2. Whether the plaintiff further proves that the defendants received a sum of ₹ 1,89,000/- as part payment towards the sale consideration? 3. Whether the plaintiff further proves that it is always ready and willing to perform his part of the contract? 4. What order or decree? 8. Before the trial Court, the Secretary of the plaintiff - Society got himself examined as PW-1 and got Exs.P1 to P11 marked. However, defendants did not lead any evidence on their part. The trial court based on the evidence, recorded a finding that the plaintiff has proved that the defendants have entered into an agreement of sale of the suit schedule property for the total sale consideration of ₹ 3,30,000/- and also gave a finding that the plaintiff has proved that the defendants have received a sum of ₹ 1,89,000/- as part of the sale consideration. However, the trial court held that the plaintiff has failed to prove that it was always ready and willing to perform its part of contract and dismissed the suit. 9. The plaintiff being aggrieved by the said judgment and decree, has preferred this appeal. Though the trial court has given findings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale consideration fixed under the agreement of sale. The defendants have also not disputed the receipt, of ₹ 10,000/- and ₹ 40,000/-on two different dates. In the light of the admission and also in the light of the findings of the court based on the evidence of the plaintiff, that the plaintiff has already paid ₹ 1,89,000/- as against ₹ 3,30,000/-, learned Senior Counsel submitted that the findings arrived at by the trial court that the plaintiff is not ready and willing to perform its part of contract is one contrary to the evidence on record. He also further submitted, that to the contrary, the defendants have not lead any evidence. In view of this, learned Senior Counsel submitted that the finding of the trial court on issue No. 3 is not tenable and runs contrary to the evidence. 14. Nextly, he contended that the sisters of defendants had filed O.S.No. 50/ 1994 wherein temporary injunction was operating against the defendants restraining the alienation of the suit properties therein inclusive of the suit schedule property and in which, this plaintiff got impleaded and this fact is not denied by the defendants, in turn he relied on paragraph-11 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seek the discretionary relief of grant of specific performance of the contract, had to come with clean hands and in this context he relied on Exs. D-1, D-2 and D-3 to point out that there is variance in the pleading and the proof. 16. He pointed out from Exs. D-1, D-2 and D-3, to show that the plaintiff had addressed a letter to the first defendant on 01.07.1999 inter alia stating therein that the society had entered into an agreement with the defendants in respect of land bearing Survey No. 305/1 measuring 6 acres situated at Mandakalli village, Kasaba Hobli and pointed out that the plaintiff has agreed to pay ₹ 3,50,000/- extra. He also pointed out from identical letter addressed to the second defendant. He also referred to Ex.D-3, a notice issued by the plaintiff dated 09.04.1996 to the first defendant to show that ₹ 1,05,000/- is alleged to have been paid to the first defendant and the balance of ₹ 60,000/- is to be paid and further stated therein that, ₹ 25,000/- is paid for the discharge of the mortgage in favour of one Puttayallakkaiah. He also referred to Ex.D-4, a notice addressed to second defendant to show that he has received ₹ 81,500/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, he also relied on a judgment in the case of Gopal Krjshnaji Ketkar v. Mohamed Haji Latif and Ors. and submitted that adverse inference is required to be drawn against the plaintiff for non production of the relevant document and material for the proper adjudication of the issues involved in this case. He relied on paragraphs 5 and 6 of the said decision. 18. It is his further contention that though the respondents-defendants have not filed appeal against the findings on the issues 1 and 2, still the respondents-defendants are entitled to address their arguments, to show that the findings on issue Nos. 1 and 2 are required to be interfered in this appeal. In this connection, he relied on a judgment in the case of Nirmala Bala Ghose and Anr. v. Balai Chand Ghose and Ors. and submitted that if the appellate Court comes to the conclusion that the findings reached by the trial Court is inconsistent with that of the trial Court in adjudication of the rights claimed by the appellant and if it. is found necessary, it can grant a relief to a person who has not appealed. Another judgment in in the case of Ravinder Kumar v. State of Assam and Ors. stating that the respondent can quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for specific performance is not. maintainable as the plaintiff being a society not engaged in agricultural activity is not entitled to hold an agricultural land in view of the bar under Sections 79B and 80 of the Act. 22. The other contention of the learned Counsel for the respondent is that there is a steep hike in the price of the lands and if the decree for specific performance is granted, defendants would be put to great hardship. Based on these contentions, he submitted that the decree for specific performance being a discretionary relief, the Courts, as a matter of course, should not grant the decree even if the contract is valid. 23. By way of reply, learned senior counsel Mr. Rajendra Prasad, submitted that there is no variance in the pleading and proof and he specifically pointed out that what is agreed, is mentioned in Ex.P-1 and in furtherance of Ex.P-1, Exs.P-2, 7 and 8, came in existence, and the receipt of the amount, is also proved. The defendants have not led any evidence to show that there is any discrepancy in the pleading and proof. He relied on the admissions made by the defendants 1 find 2 in the written statement to the effect that there is only one con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of the sale deeds, now defendants cannot be allowed to urge that the plaintiff is not ready and willing to perform his part of the contract. As against the contention raised by the learned Counsel for the respondent, that the contract is violative of Section 79B and 80 of the Act, learned senior counsel referred to Sections 79B and 80 of the Act and further he referred to Section 132 of the Act and pointed out that the civil Court has no jurisdiction to go into the question as to whether transaction under the agreement of sale is in violation of Sections 79B and 80 of the Act. It is the exclusive domain of the statutory authority under the Karnataka Land Reforms Act and he further submitted that this issue cannot be agitated in this appeal or in the suit and further he pointed out that there is no Pleading or issue raised before the trial Court. He referred to Section 32, which reads thus: No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by, the Deputy Commissioner, an authority under Sub clause (1) of Section 77, Assistant Commissioner, prescribed authority under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. In this regard, he also referred to another decision in the case of Yogambika v. Narsingh and pointed out that even in case where there is a bar of transfer of land for a period of 10 years, this Court has held that such non-alienation clause of 10 years would not bar for granting decree of specific performance of the contract. He also relied on another judgment mentioned supra and referred to paragraph-4 to 6: The Phrase holder of the land in Section 79-B must be construed from that perspective. The contra-contention violates the scheme and defeats the purpose of the Act. It is to be remembered that in respect of the matters covered under the Act, the jurisdiction of the Civil Court; has been ousted and conferred on the Tribunals under the Act. There is no forum created under the Act to decide the rights of the landowner and the erstwhile tenant. That once the power is specifically conferred on the authorities mentioned in the Act same cannot be exercised by the Civil Court. A forum is created under the Act to decide all such rights which are required to be adjudicated under the Act. In this case, the Civil Court cannot, be called upon to decide the question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. Form of objection and provision application thereto.- Such cross objection shall be in the form of a memorandum, and the provisions of Rule 1 so far as they relate to the form and contents of the memorandum of appeal, shall apply there. xxx xxxx xxxx The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the same relief in order to support the decree passed in his favour. Similar is the view of the Apex Court in the case of Ravinder Kumar Sharma v. State Of Assam and Ors. wherein the Hon'ble Supreme Court has held as under: Respondent, defendant in an appeal can without filing cross objection can attack the adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the decree to the extent the lower court had dismissed the suit against the defendants respondents. The tiling of cross objection after 1976 Amendment is purely optional and not mandatory. 28. In the light of the provisions of Order 41 Rule 22 and 33 and also in the light of the decisions of the Apex Court and this Court, we find that, the defendants -respondents, though have not filed any cross-objection or appeal against the findings on issue Nos. 1 and 2, can still challenge those findings while supporting the judgment and decree in their favour. Accordingly, we answer point No. 1 in affirmative. 29. From the above ratio laid down by the Apex Court it is clear that, to support the judgment of the trial Court the respondent without filing an appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he categorically admit it is true that this defendant along with the 1st defendant had entered into an agreement of sale of the property described in the plaint schedule as averred in paragraph 3 of the plaint and further it is also hue that in the said sale agreement the defendant had agreed to convey the schedule property for total consideration of ₹ 3,30,000/- as on the date of execution of agreement of sale. The plaintiff has paid ₹ 10,000/- as advance and receipt of which has been acknowledged by both the defendants. Further it is also true as averred in paragraph 3 of the plaint that within thirty days from the date of the agreement, the plaintiff should pay ₹ 40,000/- to the defendants and the balance of sale consideration of ₹ 2,80,000/ - was agreed to be paid at. the time of registration of sale deed before the Sub-Registrar and further it is hue that the sale transaction should be completed within six months i.e., within 19.3.1994 . 32. The 2nd defendant has categorically admitted the execution of the agreement by defendants-1 has also categorically admitted that they had received advance amount of ₹ 10,000/- and ₹ 40,000/-. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dants prove that they had not put their signature on Exs.P7 and P8. The trial court has taken note of Exs.P7, P8 and the evidence of PW-1 and also has taken note of the defendants not leading any evidence and not entering the witness box. As such, in the light of the evidence already on record, the findings arrived by the trial court on issue No. 2 does not call for interference. 34. Regarding point No. 2: Learned Counsel for the respondents has vehemently contended that the pleadings and the evidence have altered the contract and as such the plaintiff is not entitled for enforcement of the contract and has submitted that this Court, under the provisions of Section 20 of the Specific Relief Act should dismiss the suit on account of alteration of contract. 35. In the light of the contentions of the respondents it is necessary to find out, as to whether there is variance in the pleadings and the evidence and as to whether it alters the contract? In the pleadings, the plaintiff has categorically stated that the agreement is executed on 18.9.1993 and further he has categorically stated that on 18.10.1993 the respondents have executed a receipt for having received the further a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed the agreement, and receipt of ₹ 40,000/- under Ex.P2 and extension of time. In fact the offer of payment of additional sum of ₹ 3,50,000/- or extension of time by three months does not. in any way has prejudiced the defendants. As such in our opinion the evidence on record clearly shows that the terms of the agreement are clear, understandable, and there is no uncertainty in the same. Further in the evidence led by the plaintiff we do not find any variance as against the pleadings. Apart, from this, it is to be noticed that the defendants have not stepped into the witness box to deny the said allegation. In the light of this, we find there is no merit in the contentions of the learned Counsel for the respondents that there is variance in the pleadings and evidence and it alters the contract. 37. Regarding point No. 3: Section 16(c) of the Specific Relief Act, 1963 requires the party seeking the Specific performance of the Act to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms, the performance of which has been prevented by the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he agreement is dated 18.09.1993 as per Ex.P-1. Under Ex.P-1, six months time was fixed for completion of the contract. However, they got extended the time by another three months that is as per Ex.P-2, they fixed the time for completion of contract as nine months. The plaintiff herein by Ex.P-3 dated 10.06.1994 had called upon the respondents herein to contact the Secretary of the plaintiff society immediately in connection with the negotiations relating to the agreement of sale. It is relevant to notice that the time was stipulated as six months in Ex.P-1 and nine months as per Ex.P-2 and respondents herein went on receiving the further advance amount under Exs.P-7 and P-8 till February 1996. 39. Though under Ex.P-1, the time for completion of the sale transaction was fixed at 6 months, however, as per Ex.P-2 dated 18.10.1993, an acknowledgement of receipt of ₹ 40,000/-, the time was extended to 9 months. Even taking the 9 months period from the date of original agreement that is from 18.09.1993, the same would expire on 17.06.1994. However, the appellant on 10.06.1994 as per Ex.P-3 called upon both the defendants to come to negotiations in connection with agreement date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ex.P-1, but he has also shown his readiness to pay more money that is double of the sale consideration if the respondents were to execute the sale deed immediately. This aspect of the matter is clear from Exs.D-1 and D-2 wherein the appellant: on 01.07.1999 has informed the respondents that the society will pay extra amount of ₹ 3,50,000/- immediately if the defendants are agreeable. What emerges from Exs.D1 and D2 is that the appellant had sufficient, financial resources and were in a position to pay not only the sale consideration but much more than the sale consideration. 42. Appellants in his pleading in paragraph-9 of the plaint has stated that the sister of the respondent Smt. Puttamma and another sister had filed suit in O.S.No. 50/94 in which they had obtained temporary injunction restraining the respondent from alienating the suit schedule property and on account of this suit, the appellant has stated that it could not get the sale deed registered during the pendency of the said suit. This aspect of the matter is admitted by respondent No. 2 in his written statement in paragraph-11 herein the second respondent has stated that the respondents were ready and wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the appellant failed to prove its readiness and willingness to perform its part of the contract. This finding, in our view, is not supported by any evidence and is contrary to the evidence on record. Hence, we find that the findings arrived by the trial Court on issue No. 3 requires to be set aside. 44. Regarding point No. 4: The next contention that is urged by the counsel for the respondent is that in view of the provisions of Sections 79B and 80 of the Act, there is a clear bar for holding an agricultural land by a non-agricultural labourer. It is useful to refer to the provisions of Sections 79B and 80 of the Act which reads thus: 79B. Prohibition of holding agricultural land by certain persons: (1) With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act,- no person other than a person cultivating land personally shall be entitled to hold land; and it shall not be lawful for, an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in Sub-section (7) of Section 63, capable of holding property; (ii) a company; (iii) an associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disentitled to acquired or hold land under Section 79A or Section 79B) who bonafide intend taking up agriculture to acquire land on such conditions as may be prescribed in addition to the following conditions, namely: - (i) that the transferee takes up agricultural within one year from the date of acquisition of land, and (ii) that if the transferee gives up agricultural within five years, the land shall vest in the State Government. 45. No doubt Section 79B bars for holding an agricultural land by a person who is not an agriculturist personally cultivating the land. Similarly, Section 80 also bars transfer of agricultural land in favour of a person who is not an agriculturist or agricultural labourer or for non-agricultural purpose. However, the Assistant Commissioner having jurisdiction over the area or any officer not below the rank of an Assistant Commissioner is authorised by the State Government in this behalf in respect, of any area may grant permission for such sale, gift or exchange, (to enable a person other than a person disentitled to acquire or hold the land under Section 79A or Section 79(B) who bona-fide intend of taking up agriculture to acquire land on suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the Act. Section 132 reads thus: 132. Bar of jurisdiction.- (1) No civil courts shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Deputy Commissioner, (an officer authorised under Sub section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83) (the Tribunal), the (Tahsildar), the Karnataka Appellate Tribunal or the State Government in exercise of their powers of control. (2) No order of, the Deputy Commissioner (an officer authorised under Sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83), (the Tribunal) (the Tahsildar), the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any Civil or Criminal Court. By reading of the provisions of Section 132, it makes it clear that it is not for the Civil Court to decide as to whether there is a contravention of the provisions of Sections 79B or 80 of the Act, when such a power is conferred exclusively on the authority prescribed under Section 83. In this regard it is useful to refer to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A(1) and (3), 82 and 83 has held: The Civil Court which is not competent to determine in terms of Section 132 of the Land Reforms Act that question as to the illegality or legality of such a transaction cannot create a bar to itself to enforce the Contract on plausible result on such enquiry under Section 83 of the Land Reforms Act. This Court in the matter of granting specific performance of the contract has interpreted the provisions of Sections 79A, 82, 83 and 132 of the Act and held that the Civil Court is not competent to go into the question of illegality or legality of the transactions as there is a bar under Section 132 of the Act and a specific authority is conferred with the power to enquire as to whether the transaction is illegal or legal under Section 83 of the Act. 48. Thus from the provisions of Sections 79B, 82, 83 and 132, it clearly emerges that the enquiry, in respect of any allegations of illegality or legality of the transactions has to be done by the specific statutory authority prescribed under the Act and such an enquiry cannot be held by the Civil Court. Much less, before the contract is concluded by execution of the sale deed. The counsel appealin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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