B.R. SATHYANARAYANA Vs. C. SHANKAR REDDY

JUDGEMENT

(1.) HEARD the learned counsel for the appellant and the learned counsel for the respondent. The parties in this appeal are referred to by their rank before the Trial Court for the sake of convenience. The appellant was the plaintiff before the Trial Court. He died during the pendency of this appeal and his legal representatives are on record. It was the plaintiffs case that he was in lawful possession and enjoyment of lands in survey No. 90/2 of Hongasandra village, Begur Hobli, Bangalore South Taluk measuring 2 acre 11 guntas in which a residential layout had been formed and which was described as the suit schedule property. The plaintiff had stated that the suit property along with other properties belonged to defendants 2 to 4. The suit property, along with other properties of the same village, were the subject matter of acquisition by the Government of Karnataka under the provisions of Land Acquisition Act, 1894, for the purpose of a Housing Co -operative Society, viz. Vyalikaval House Building Co -operative Society (hereinafter referred to as "the Society" for brevity). The lands were notified for acquisition in the year 1984 and a declaration under Section 6(1) of the Land Acquisition Act was issued in favour of the said Society. The acquisition proceedings however, were the subject matter of challenge before this Court and the Writ Petitions in that regard had been allowed and the acquisition was nullified and the lands were to be restored to the original owners. It is in this fashion that the same had been restored to the defendants 2 to 4. This was in the year 1991. The plaintiff claims that he was running a school in the vicinity of the suit property in the name and style of "Adarsha Education Centre" in the land comprised in Survey No. 90/1, which was adjacent to the suit schedule property. According to the plaintiff, the suit schedule property was landlocked and did not have a direct access except through the land in which the plaintiff was running a school. Defendants. 2 to 4, who were aware of this situation, had called upon the plaintiff to purchase the suit property. The plaintiff, however, was reluctant in view of the land being the subject matter of acquisition proceedings. Subsequent to the acquisition having been set at naught, the defendants had again approached the plaintiff as regards the purchase. The plaintiff had subsequently agreed and an agreement of sale was said to have been executed as on 5 February 1992, subject to certain terms and conditions. The defendants 2 to 4 are said to have received a sum of Rs.25,000/ - under the agreement and the plaintiff had been put in possession in part performance of the contract. The plaintiff was to pay the balance consideration of Rs.1,65,000/ - to the defendants jointly and severally, which the plaintiff claims, had been paid over a period of time and that the entire sale consideration of Rs. 1,90,000/ - had been paid One other obligation that was outstanding was that the plaintiff was required to reimburse the award amount which had been borne by the society and which amount had been paid to the defendants 2 to 4 when the lands were acquired under the acquisition proceedings as aforesaid, and since the land was restored to the defendants, the amount received by them was to be repaid by the plaintiff to the Society. In terms of the agreement, the plaintiff was to develop a layout over the suit properties with all infrastructure, such as, roads and other facilities. A rough sketch had been produced to indicate the layout plan and as per the terms of the agreement, according to the plaintiff, sites No. 1 to 26 indicated in the rough sketch including site No. 1A and site No. 44, were to be the exclusive property of the plaintiff, which he was at liberty to alienate under an authority granted by defendants 2 to 4, and the remaining sites, viz. sites No. 27 to 43 were to be the share of defendants 2 to 4. The defendants are said to have executed an irrevocable General Power of Attorney pertaining to the entire suit schedule property in favour of the plaintiff. Accordingly, the plaintiff had completed the formation of sites and it was the obligation on the part of the defendants 10 complete the transaction by transferring the allotted sites in favour of the plaintiff or his nominees. The plaintiff had obtained khata in respect of the area comprising 21 sites in the suit property in the name of plaintiff and since the plaintiff claimed that he had been conferred with complete authority to sell and alienate the sites which were earmarked as his share of the developed layout, the plaintiff had proceeded to execute sale deeds to various third parties and they were put in possession of the respective sites. Those purchasers had, in turn, paid the betterment charges to the local authority and had proceeded to construct residential properties thereon. The plaintiff contends that as the matter stood thus, since the value of the property had escalated, the first defendant along with defendants 2 to 4, had engineered a scheme to defeat the right of the plaintiff in respect of suit property. A legal notice was issued through defendants 2 to 4 referring only to the General Power of Attorney that was executed along with agreement in favour of the plaintiff and sought to cancel it. When the plaintiff made enquiry as to the motive behind such cancellation, he was informed that in their belief, since the power of attorney was executed to enable the plaintiff to complete the development of the layout, there was no further requirement of any such authority in favour of the plaintiff. The plaintiff, therefore, had contended that the defendants could not cancel the power of attorney and had accordingly issued a legal notice by way of reply. However, the defendants, by way of paper publication, sought to cancel the power of attorney in favour of the plaintiff. In this background, since the plaintiff had always been ready and willing to discharge the only outstanding obligation of reimbursing the award amount in favour of the Society, which amount had been paid to the defendants 2 to 4 pursuant to the acquisition of the suit property, claimed that he was ready and willing to do so and called upon defendants 2 to 4 to complete the transaction by effectively transferring his share of the sites formed in the suit schedule property in his favour. However, the defendants 2 to 4, along with defendant No. 1, denied that the plaintiff had any such claim over the suit property and sought to take forcible possession ct the same on the strength of a compromise decree, which the defendants 1 to 4 claim to have obtained in a civil suit in O.S. No. 4256 of 1997, which was said to be a decree passed in terms of a compromise petition entered into between the defendants 1 to 4. The plaintiff, thereafter, obtained the certified copies of those case papers and to his shock and dismay it was found that the defendants, had, while suppressing the actual facts and circumstances, claimed that there was an agreement dated 5th March 1990 between the defendants 2 to 4 on the one hand, and defendant No. 1 on the other, and it was further claimed that defendant No. 1 had been put in possession of the suit property and the same was developed by defendant No. 1 and it was to be sold in favour of intending purchasers. The defendants had agreed to co -operate in the transactions. When, in fact, it was the plaintiff who had already developed the sites and it was he, who was legally entitled to his share of property as agreed earlier. There was such an agreement that was placed before the Court and the defendants 2 to 4 had seemingly entered appearance and conceded the case of the plaintiff therein, viz. defendant No. 1 in these proceedings. Significantly, it was pointed out that the counsel, who had issued public notices in favour of defendants 2 to 4, had filed the suit on behalf of defendant No. 1, and therefore, would have knowledge of the transactions between the defendants 2 to 4 and the plaintiff. Hence, collusion between the defendants was apparent on the face of it and an agreement that was set up by the defendants was fabricated.

(2.) IT is in this background that the present suit is filed claiming that the plaintiff is ready and willing to perform his part of the contract dated 5th February 1992 and has incidentally sought for a declaration to the effect that the judgment and decree dated 27th August 1997 obtained by the defendants collusively in suit in O.S. No. 4256 of 1997 did not bind the plaintiff, and for injunction restraining the defendants from entering upon the sites formed by the plaintiff over the suit schedule property. The defendants had contested the suit. The defendants 2 to 4 had filed a common written statement denying the plaint averments, while admitting that the suit schedule property belonged to the defendants and it was true that the lands were the subject matter of acquisition for the purpose of a House Building Co -operative Society and that they were notified in the year 1984, and that the acquisition proceedings had been set at naught which had been affirmed by the Supreme court by judgment dated 21st February 1995, but denied the other assertions of the plaintiff that the said defendants being desperate to sell the suit property in favour of the plaintiff and of having entered into an agreement. It was also stated that though they had entered into an agreement of sale dated 5th February 1992 after receiving an advance of Rs.25,000/ -, but denied having handed over possession to the plaintiff and since the plaintiff had agreed to pay the remaining balance within a period of eleven months and the same not having been paid, it was claimed that possession was not delivered to him. The defendants denied the alleged proof of payments made from time to time. The defendants also denied that the plaintiff had made any attempt to repay the award amount to the Housing Society. On the other hand, it was stated that the property was already developed and a layout had been formed by defendant No. 1 even prior to the agreement with the plaintiff and the plaintiff had not improved on the same. But in the belief that the plaintiff would pay the balance price and would improve the layout that had already been formed, the agreement was entered into and since the plaintiff had miserably failed to discharge his obligations under the agreement, the defendants, had in good faith, executed the General Power of Attorney in favour of the plaintiff and it was denied that the plaintiff had any right to independently execute sale deeds in respect of the sites in the suit property in favour of third parties, any such act was not only fraudulent but was also a nullity. It was claimed that the award amount received by the defendants from the Society was in a sum of Rs. 2,10,000/ - in all and not Rs. 90,000/ - as claimed by the plaintiff. Admittedly, the plaintiff had also not handed over the sites, which are already formed in the layout, which again indicates that on all three counts, viz. payment of the balance price of the suit schedule property; reimbursement of the award amount in favour of the Society; and handing over of possession of sites in favour of the defendants 2 to 4 is not shown to have been complied with, and therefore, the question of the plaintiff seeking any relief did not arise, and the defendants also sought to justify their action insofar as the suit in O.S. No. 4256 of 1997 was concerned. It was also denied that the alleged manner, in which the suit property was to be formed into a layout and the manner in which it had to be shared, were also figments of imagination of the plaintiff and there was no consensus -ad -idem in this regard. Even under the terms of the agreement, there was no sanctioned layout plan and hence the rough sketch, on the basis of which the plaintiff had set up his case, could not be accepted when on the basis of it the division of the property is wholly inequitable and is to suit the convenience of the plaintiff to the prejudice of the defendants and therefore vehemently questioned the bona fides of the plaintiff when the primary ingredient of the suit for specific performance was not apparent on the fact of it and the plaintiff not being in possession and demonstrate his readiness and willingness having regard to the sequence of events and the long interval from the date of agreement and the date of presentation of the suit, which by itself, is a ground for dismissal of the suit as being barred by delay and laches. The first defendant has also filed written statement contesting the suit and supporting the case of the defendants 2 to 4.

(3.) The Court below has answered all the issues in the negative except issues No. 4 and 8 and the additional issue which are answered in the affirmative. It is those findings, which are under challenge in the present appeal.