1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR FIRST APPEAL NO.442/2010 (SP) BETWEEN: 1 . N.RANGE GOWDA S/O LATE LINGE GOWDA AGED ABOUT 59 YEARS R/AT NO.4202, 49TH MAIN KUMARASWAMY LAYOUT BANGALORE-560 078. … APPELLANT (BY SRI HALESHA R.G., ADVOCATE) AND: 1 . SRI. KESHAVANARAYANA S/O LATE SRI. THIRUPATHI MAJOR, NCC DIRECTOR, NCC CELL NO.2, KSCMF LTD., N.F.BUILDING, NO.2, 4TH FLOOR NEAR CHANDRIKA HOTEL BANGALORE-560 062. 2 . SMT. T. NAGARATHNAMMA D/O LATE SRI. THIRUPATHI MAJOR. 3 . SMT. KESHAVAMMA D/O LATE SRI. THIRUPATHI MAJOR. 2 4 . SMT. ARUNA D/O LATE SRI. THIRUPATHI MAJOR. RESPONDENTS NO.2 TO 4 ARE RESIDING AT NO.95, ANDRALANE, VIVEKNAGAR, BANGALORE-560 047. … RESPONDENTS (BY SRI C.S.VINOD, ADVOCATE FOR R1; VIDE ORDER DATED 28.09.2010, NOTICE TO R2 TO R4 ARE HELD SUFFICIENT) THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.10.2009 PASSED IN O.S.NO.3543/2008 ON THE FILE OF THE XVII ADDL. CITY CIVIL JUDGE, BANGALORE (CCH 16), DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.12.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT 1. Heard the learned counsel for the appellant and the learned counsel for the respondent is absent and hence arguments is taken as Nil. 3 2. This appeal is filed challenging the judgment and decree of dismissal of the suit for the relief of specific performance of contract passed in O.S.No.3543/2008 dated 06.10.2009. 3. The factual matrix of case of plaintiff before the Trial Court while seeking the relief of specific performance against the defendant, it is contended that plaintiff entered into an agreement on 12.09.1997 in respect of the suit schedule property from deceased Tirupathi who is the father of the 1st defendant to 4th defendant. It is further alleged in the plaint that on the date of agreement, entire sale consideration amount of Rs.1,80,000/- is paid to the father of the defendant. The possession was handed over to him on the date of agreement itself. It is contended that father of defendant was allotted the said site on 04.02.1995 by the BDA since then there was lease cum sale agreement in between the BDA and father of the defendants. It is also contended that father of the defendants undertook to 4 execute the sale deed in favour of the plaintiff after the lease period of 10 years and after obtaining absolute sale deed from the BDA. It is also alleged in the plaint that after the agreement, plaintiff approached the defendant No.1 in the month of December-2007 and reminded his obligation to execute the regular sale deed and did not come forward to execute the sale deed and hence filed the suit against the defendant seeking the relief of specific performance. The defendant did not appear before the Trial Court when the paper publication was taken against them and summons was also published in the newspaper and inspite of that they did not choose to appear and hence, they were placed exparte. The plaintiff examined himself as PW1 and relied upon 7 documents in support of his claim and Trial Court having considered the pleadings of the plaint and also the documents, framed the points for consideration as hereunder: 5 1) Whether the plaintiff has succeeded in showing that father of the deceased Thirupathi agreed to sell the suit schedule property on 12.09.1997 after receiving entire sale consideration of Rs.1,80,000/-? 2) Whether the plaintiff further proves that father of the defendant agreed to perform his part of contract after obtaining regular sale deed from Bangalore Development Authority and after completion of lease period? 3) Whether plaintiff further proves that he was ever willing and ready to perform his part of contract? 4) Whether plaintiff is entitled for the decree as prayed for? 5) What Order or decree? 4. The Trial Court on appreciation of both oral and documentary evidence placed on record answered point Nos.1 to 3 as Affirmative, however, declined to grant the 6 relief of specific performance by answering issue No.4 as negative in coming to the conclusion that as on the date of entering into an agreement, he was not having any absolute right and only a lease cum sale agreement was in existence. Hence, taking into note of judgment of this Court reported in 1997(4) Karnataka Law journal 264 in case of Y.R.Mahadev V/s K.Dayalan comes to the conclusion that suit itself is not maintainable in law as agreement of sale is violative of statutory rules, therefore, from this ground only the Court cannot direct the defendant to execute the registered sale deed in favour of the plaintiff. The permission is granted for construction of house to Tirupathi and not to the plaintiff and also having taken note of documents shows that Tirupathi had sought permission for construction of the house and no permission was given to the plaintiff and plaintiff was not the owner of the property and BDA cannot permit the plaintiff to construct the building. 7 5. The counsel appearing for the appellant in his argument would vehemently contend that it is not in dispute that the property was allotted in favour of the father of the defendants on 04.02.1995 and it is not in dispute that agreement was executed on 09.12.1997 and entire sale consideration was paid on the date of agreement that is Rs.1,80,000/-. The counsel also would vehemently contend that immediately after the expiry of lease period, demand was made in the month of December-2007 that to come and execute the sale deed, but did not come forward to execute the sale deed and hence the suit is filed in the year 2008 within the period of the time. The Trial Court committed an error in dismissing the suit only on the ground that only a lease cum sale agreement was executed and there was no any absolute sale deed and no marketable title and agreement of sale deed being violative of statutory rule prohibiting such elimination is void ab initio and hence unenforceable. 8 6. The counsel appearing for the appellant would vehemently contend that this Court in the recent judgment in the year 2019 (2) KAR L.R.560 in case of S.Ananda Shetty V/s Sri.Mehaboob Sherieff and others pressed into the service of Section 43 of the Transfer of Property Act and contend that transfer made by unauthorized person. It is clear that if any transfer is made by any unauthorized person who subsequently acquires interest in property, law of estoppel applies, if sale is made for consideration, the said section shall impair the right of transferee in good faith for consideration. He was having limited interest based on lease cum sale agreement and not having absolute sale deed, but represents that he is authorized to transfer, now he cannot contend that on the date of execution of sale agreement, not having absolute sale deed, but he has paid the sale consideration and only formalities of obtaining the sale deed was pending after the period of lease cum sale agreement. Hence, the defendant estopped from taking the 9 said defense in view of Section 43 of Transfer of Property Act. The counsel relying upon this judgment would vehemently contend that the factual aspects is presently applicable to the case on hand and hence, aptly applicable. The counsel appearing for the respondent was absent and this Court earlier on 27.11.2024 made it clear that if the learned counsel for respondent No.1 does not appear on the next date of hearing, the appeal will be heard in his absence. When the counsel was absent, taken as no argument and reserved the matter for judgment. 7. Having heard the appellant’s counsel and also considering the grounds urged in the appeal as well as oral submission of the appellant’s counsel and also the principles laid down in the judgment referred supra, the point that would arise for consideration of this Court are: 1) Whether the Trial Court committed an error in decline to grant the relief of specific performance and whether it requires interference of this Court? 10 2) What Order? 8. Having heard the appellant’s counsel and also considering the pleading of the appellant/plaintiff, it is the specific case that father of the defendant Mr.Tirupathi agreed to sell the suit schedule property on 12.09.1997 and received the entire sale consideration of Rs.1,80,000/- and also possession was handed over to him. It is also clear that the property was allotted by BDA in favour of the father of the defendant in the year 1995. It is also important to note that sale agreement clearly discloses that property was allotted in favour of the father of the defendant on 04.02.1995 and sale cum lease agreement was also registered and there is a recital that from the date of allotment he was enjoying the property and he was in need of money of Rs.1,80,000/- and hence he sold the same for the same value and averment is clear that power of attorney is also executed and possession also delivered in 11 terms of sale agreement and Ex.P2 is also clear that power of attorney is registered in favor of the plaintiff. 9. It is important to note that in the agreement itself it is mentioned that a conditional sale agreement was executed in favour of the defendant and in the agreement, recital is very clear with regard to property is sold and also given permission to use the property and no any other claim, whatever the claim is made, he is going to clear the same at his cost. The averment also discloses that he can even build the house and also recital is very clear that even if dies, his successors will come and execute the sale deed. 10. Having considered the agreement as well as general power of attorney, it is very clear that possession delivered and all the original documents belongs to the defendant are also given to the plaintiff while selling the property. The records also discloses that before filing the suit, notice was given and plan also produced for having obtained the permission and also taken electricity 12 connection and also paid the charges for BWSSB and also material discloses that he had put up construction and residing in the suit schedule property. 11. The Trial Court while rejecting the claim, made an observation that the permission is given only to the lease cum agreement holder to put up the construction and the same is not in favour of the plaintiff and plaintiff is the only power of attorney of the suit schedule property and father of the defendant is shown to be the owner who sought permission for the construction of the house and permission granted for construction of house only to Tirupathi and not to the plaintiff and it cannot be construed that plaintiff had constructed the house and getting permission from the BDA and also considering the earlier judgment of this Court, comes to the conclusion that suit itself is not maintainable and the same is only an agreement of sale and the same is violative of statutory 13 rules. The Court cannot direct the defendant to execute the registered sale deed in favor of the plaintiff. 12. The counsel appearing for the appellant relied upon the judgment of this Court reported in 2019 (2) Kar. L.R. 560 and this Court in this judgment elaborately discussed the law and mainly taken note of the Section 43 of the Transfer of Property Act and comes to the conclusion that even if as on the date of agreed to sell the property, he was not having absolute right, but he subsequently acquires interest in the said property, law of estoppel, if sale is made for consideration, the said section shall impair the right of transferee in good faith for consideration. 13. This Court observed that no doubt 1st defendant was having limited interest based on lease cum sale agreement and not having absolute sale deed but represents that he is authorized to transfer and now he cannot contend that on the date of execution of the sale agreement not having absolute sale deed, but he has paid 14 the sale consideration and only formalities of obtaining the sale deed was pending after the period of lease cum sale agreement. In the case on hand, no dispute that there was a sale agreement and earlier to that there was a lease cum sale agreement in favour of the father of the defendant and also it is important to note that having received the amount of Rs.1,80,000/- that is entire sale consideration, not only executed the sale agreement, even executed the power of attorney and the same is registered power of attorney and all rights are given to the plaintiff and even to put up construction and to enjoy the property and when such being the case, Section 43 of the Transfer of Property Act aptly applicable to the case on hand and also the principles laid down in the judgment wherein also detailed discussion was made referring the judgment of the Apex Court and taken note of observation made by this Court sale agreement between the parties cannot be treated as actual alienation or transfer of land. Hence, the very contention that there 15 was a prohibition of alienation cannot be accepted and in the case on hand there was no any alienation taken place during the subsistence of lease cum sale agreement and only entered sale agreement. 14. Having taken note of factual aspects of the case and Trial Court also comes to the conclusion that there was a sale agreement and delivery of possession in terms of the power of attorney but only rejected the relief of specific performance on the ground that there was no any absolute sale deed, but fails to take note of Section 43 of Transfer of Property Act and the same is also enure the benefits in favour of the plaintiff, since there is no any dispute of execution of agreement and power of attorney and also the respondents not disputed the very execution of sale deed and remained absent. The Trial Court committed an error in declining to grant the relief of specific performance and hence, I answered point as affirmative in granting the relief of specific performance. 16 15. In view of the discussions made above, I pass the following: ORDER i) The Appeal is allowed. ii) The judgment and decree of the Trial Court dated 06.10.2009 passed in O.S.No.3543/2008 is set-aside. Consequently, the suit filed by the plaintiff for the relief of specific performance is granted as prayed. Sd/- (H.P. SANDESH) JUDGE RHS