Case Note & Summary
The plaintiff, Sri Ramakrishnappa, filed a second appeal against the concurrent judgments of the trial court and the first appellate court dismissing his suit for declaration and injunction. The plaintiff and defendant No.1 are brothers. The plaintiff claimed that he had an agreement of sale dated 20.06.1988 with defendant No.1 for purchase of suit property and that he was put in possession. He alleged that defendant No.1 colluded with defendant No.2 and executed a sale deed in favor of defendant No.2 on 17.06.1993, which was not binding on him. He sought a declaration that the sale transaction was not binding and for perpetual injunction. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. In the second appeal, the High Court held that no substantial question of law arose. The court noted that the plaintiff had earlier filed O.S.No.25/1989 for specific performance, which was dismissed for default. The present suit was filed in 1993, beyond the period of limitation for specific performance. The plaintiff failed to prove the agreement, possession, or readiness and willingness. The concurrent findings of fact were based on evidence and could not be interfered with under Section 100 CPC. The appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The appeal under Section 100 CPC is maintainable only if a substantial question of law is involved. The court found no substantial question of law as the findings of fact by the lower courts were concurrent and based on evidence. (Paras 1-10)
B) Specific Relief - Specific Performance - Limitation - Agreement of Sale - The plaintiff's suit for specific performance based on an alleged agreement of sale dated 20.06.1988 was held to be barred by limitation as it was filed beyond three years from the date fixed for performance. The plaintiff failed to prove readiness and willingness. (Paras 3-9)
C) Evidence - Burden of Proof - Possession - The plaintiff failed to prove possession of the suit property. The courts below concurrently held that the plaintiff was not in possession and the sale deed in favor of defendant No.2 was valid. (Paras 4-8)
Issue of Consideration
Whether the plaintiff is entitled to a decree of declaration that the sale transaction between the defendants is not binding on him and for perpetual injunction, and whether the suit for specific performance is barred by limitation.
Final Decision
The second appeal is dismissed. The judgment and decree dated 20.08.2010 passed in R.A.No.257/2005 by the II Additional Civil Judge (Sr.Dn.), Kolar, and the judgment and decree dated 08.07.2005 passed in O.S.No.252/1993 by the Prl. Civil Judge (Jr.Dn.), Malur, are confirmed. No order as to costs.
Law Points
- Specific performance
- Limitation
- Burden of proof
- Agreement of sale
- Possession
- Declaration
- Injunction
Case Details
2016 LawText (KAR) (03) 28
Regular Second Appeal No.16/2011
Sri Venkatesha C. for Sri C. Shankar Reddy (for appellant), Sri H.T.Manjunatha (for respondents)
Sri K.M. Anjinappa and Sri Pilla Reddy
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Nature of Litigation
Civil second appeal against concurrent dismissal of suit for declaration and injunction.
Remedy Sought
Plaintiff sought declaration that sale transaction between defendants is not binding on him and perpetual injunction against defendants.
Filing Reason
Plaintiff claimed an agreement of sale with defendant No.1 and alleged that defendant No.1 colluded with defendant No.2 to sell the property, which was not binding on him.
Previous Decisions
Trial court dismissed O.S.No.252/1993 on 08.07.2005; first appellate court dismissed R.A.No.257/2005 on 20.08.2010.
Issues
Whether the plaintiff is entitled to a decree of declaration that the sale transaction between the defendants is not binding on him?
Whether the suit for specific performance is barred by limitation?
Whether there is any substantial question of law involved in the second appeal?
Submissions/Arguments
Plaintiff argued that he had an agreement of sale dated 20.06.1988 with defendant No.1 and was put in possession, and that the subsequent sale to defendant No.2 was collusive and not binding.
Defendants contended that the plaintiff failed to prove the agreement, possession, and that the suit was barred by limitation.
Ratio Decidendi
The plaintiff failed to prove the agreement of sale, possession, and readiness and willingness. The suit for specific performance was barred by limitation. The concurrent findings of fact by the lower courts were based on evidence and did not give rise to any substantial question of law under Section 100 CPC.
Judgment Excerpts
The plaintiff has filed this appeal. O.S.No.252/1993 filed in the Court of Prl. Civil Judge (Jr.Dn.) at Malur, to pass a decree of declaration that the sale transaction of the suit property between the defendants is not binding on the plaintiff and for grant of perpetual injunction against the defendants...
The plaintiff and the defendant No.1 are brothers.
The plaintiff had filed O.S.No.25/1989 in the Court of Munsiff at Malur, against his brother, for specific performance of the agreement of sale dated 20.06.1988...
The suit was dismissed for default on 28.06.1993.
The present suit was filed on 17.09.1993.
The trial court dismissed the suit. The first appellate court dismissed the appeal.
No substantial question of law arises for consideration in this appeal.
Procedural History
Plaintiff filed O.S.No.25/1989 for specific performance which was dismissed for default on 28.06.1993. Plaintiff then filed O.S.No.252/1993 for declaration and injunction, which was dismissed on 08.07.2005 by Prl. Civil Judge (Jr.Dn.), Malur. Plaintiff appealed in R.A.No.257/2005, which was dismissed on 20.08.2010 by II Additional Civil Judge (Sr.Dn.), Kolar. Plaintiff then filed Regular Second Appeal No.16/2011 in the High Court of Karnataka, which was dismissed on 29.03.2016.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Order 42 Rule 1
