Revansiddayayya vs Gangamma @ Shashikala . on 5 December, 2017

                                                                   REPORTABLE

                              IN THE SUPREME COURT OF INDIA

                                CIVIL APPELLATE JURISDICTION

                                 CIVIL APPEAL No.5039 OF 2009


                         Revanasiddayya                            ….Appellant(s)

                                                VERSUS

                         Gangamma @
                         Shashikala  Anr.                         …Respondent(s)


                                         JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is filed by defendant No.1 against

the final judgment and order dated 25.10.2006

passed by the High Court of Karnataka at Bangalore

in Regular First Appeal No.242 of 2004 whereby the

High Court allowed the first appeal filed by

respondent No.1(plaintiff) and modified the

judgment/decree of the Trial Court dated
Signature Not Verified

Digitally signed by
ASHA SUNDRIYAL
Date: 2017.12.05
09.02.2000 passed by the IIIrd Additional Civil
17:28:49 IST
Reason:

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Judge, Dharwad in O.S. No. 151 of 1993 and

accordingly passed a decree for possession of the

suit land against the appellant in relation to the suit

land.

2. In order to appreciate the issue involved in the

appeal, which lie in a narrow compass, few relevant

facts need mention herein below.

3. The appellant is defendant No.1 whereas

respondent No.1 is the plaintiff and respondent

No.2 is defendant No.2 in a suit out of which this

appeal arises. Plaintiff and defendant No.2 are the

legal representatives of Veerabasayya, who was the

original owner of the suit land.

4. The dispute in this appeal relates to the land

bearing R.S. No. 177/3A+3B admeasuring 7 acres

37 guntas, R.S. No.161/2A admeasuring 12 acres

36 guntas. Situated at Shirol Village, R.S. No.24/5,

admeasuring 5 acres 02 guntas situated at

Kallapur, R.S. No.35/1, admeasuring 1 acre 22

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guntas and R.S. No.35/2 admeasuring 3 acres 10

guntas situated at Budihal (hereinafter referred to

as “suit land”).

5. The respondents’ father – Veerabasayya was

the original owner of the suit land. He entered into

an agreement (Ex-P-1) on 06.11.1986 to sell the suit

land to the appellant for a total consideration of

Rs.1,75,000/-. In terms of the agreement, the

appellant paid a sum of Rs.1,00,000/- to

Veerbasayya towards earnest money and was,

accordingly, placed in possession of the suit land by

him. The sale deed of the suit land was to be

executed within 3 months. In the meantime,

Veerbasayya died on 06.08.1988. The respondents

being his legal representatives inherited the suit

land and became its owners.

6. On 14.09.1993, the respondents herein filed a

suit against the appellant(defendant No.1) being

O.S. No.151/1993 in the Court of IIIrd Additional

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Civil Judge, Dharwad for a declaration and

possession in relation to the suit land.

7. According to the respondents, they, being the

owner of the suit land by virtue of inheritance, are

entitled to claim possession of the suit land from

the appellant(defendant No.1). It was alleged that

the agreement dated 06.11.1986 executed between

the parties in relation to the suit land for its sale by

the respondents’ late father to the appellant expired

long back by efflux of time inasmuch as the

appellant too never took any steps to enforce the

agreement while it was enforceable in law and

continued to remain in possession of the suit land

and enjoyed its usufructs to the detriment of the

respondents’ interest in the suit land. It is

essentially on these averments, the respondents

claimed declaration of their title over the suit land

and possession from the appellant.

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8. The appellant contested the suit by filing the

written statement. According to the appellant

(defendant No.1), he was in lawful possession of the

suit land pursuant to the agreement dated

06.11.1986 and hence the respondents are not

entitled to claim a relief of declaration of their title

over the suit land or even possession of the suit

land from the appellant.

9. Parties adduced evidence. The Trial Court, by

judgment/decree 09.02.2000, dismissed the suit

insofar as the relief of possession was concerned

but decreed the suit by granting a declaratory

decree in respondents’ favour of their ownership

over the suit land. In other words, the Trial Court

held that the respondents are the owners of the suit

land but are not entitled to claim possession of the

suit land.

10. After the disposal of the respondents’ suit, the

appellant, in the year 2000, filed a suit against the

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respondents being O.S. No. 153/2000 seeking

specific performance of the agreement dated

06.11.1986(Ex-P-1) from the respondents in relation

to the suit land. The appellant’s suit for specific

performance was dismissed in 2009 and the appeal

filed by the appellant against the dismissal of his

suit was also dismissed by the District Sessions

Judge, Gagad in R.A. No.31 of 2009 on 16.04.2012.

Thereafter, it was not pursued by the appellant.

11. The respondents, felt aggrieved of the

judgment/decree of the Trial Court dated

09.02.2000, filed first appeal being RFA No.

242/2004 in the High Court of Karnataka. So far as

the appellant is concerned, he did not file any cross

appeal under Section 96 of the Code of Civil

Procedure, 1908 (hereinafter referred to as “the

Code”) nor filed any cross objection under Order 41

Rule 22 of the Code in respondents’ first appeal to

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challenge the finding of ownership of the

respondents, which was against the appellant.

12. Therefore, the only question, which arose

before the High Court, was as to whether the Trial

Court was justified in dismissing the suit insofar as

it relates to claim for possession of the suit land.

13. By Judgment/decree dated 25.10.2006, the

High Court allowed the respondents’ first appeal,

modified the judgment/decree of the Trial Court and

passed a decree for possession of the suit land

against the appellant in relation to the suit land. It

was held that the respondents are entitled to claim

possession of the suit land from the appellant. In

this way, the respondents’ entire suit stood decreed

by the High Court.

14. Felt aggrieved of the impugned

judgment/decree passed by the High Court, the

appellant(defendant No.1) has filed the present

appeal by way of special leave in this Court.

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15. Heard Mr. Trideep Pais, learned counsel for the

appellant and Mr. Ankolekar Gurudatta and Mr.

Shantha Kumar Mahale, learned counsel for the

respondents.

16. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to uphold the findings of the High Court

but, at the same time, modify the impugned

judgment and issue directions for ensuring its

compliance by the parties to this appeal as

indicated below.

17. In our considered opinion, one of the effects of

the dismissal of appellant’s suit/appeal, which was

filed for specific performance of the agreement, was

that the appellant was not entitled to retain

possession of the suit land. In other words, the

possession of the appellant on the suit land, after

the dismissal of his suit for specific performance,

became unauthorized and illegal thereby entitling

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the respondents to claim back the same from the

appellant on the strength of their ownership.

18. The appellant was, however, entitled to defend

his possession over the suit land by taking recourse

to the provisions of Section 53-A of the Transfer of

Property Act, 1882 (hereinafter referred to as “T.P.

Act”) but once his suit for specific performance

stood dismissed, the protection available under

Section 53-A of the T.P. Act was no longer available

to him.

19. So far as the present appeal is concerned, it

does not arise out of the suit filed by the appellant

against the respondents but arises out of a suit filed

by the respondents against the appellant. We

cannot, therefore, examine the legality and

correctness of judgment/decree passed in

appellant’s suit/appeal but can certainly examine

its effect while examining the legality and

correctness of the impugned judgment.

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20. In our considered opinion, the Trial Court as

also the High Court were justified in declaring the

respondents as owners of the suit land and were

also justified in passing a decree for possession

against the appellant.

21. It is for the reasons that firstly, the appellant

never disputed the respondents’ ownership over the

suit land and indeed rightly. Secondly, since the

respondents’ late father had placed the appellant in

possession of the suit land pursuant to part

performance of the agreement in question (EX-P-1),

the appellant could defend his possession against

the true owner (respondents) on the strength of

such agreement subject to his proving the

requirements of Section 53-A of the T.P. Act.

22. Since the appellant’s suit/appeal for specific

performance was dismissed, his possession over the

suit land became unauthorized. It is for these two

reasons, the High Court was justified in passing a

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decree for possession against the appellant in

relation to the suit land. We, therefore, find no

justification to set aside the findings of the High

Court. It is in conformity with the legal principles

applicable to the fact of this case.

23. This leaves us to examine only one question,

which, in our opinion, arises in the case but does

not appear to have been dealt with in two suits filed

by the parties against each other. In the interest of

justice, we consider it necessary to deal with the

question with a view to give quietus to the litigation

which is pending between the parties for the last 3

decades.

24. As mentioned above, it is not in dispute that

the appellant had paid a sum of Rs.1,00,000/- to

the respondents’ late father by way of earnest

money for purchasing the suit land. It is also not in

dispute that the respondents’ late father had placed

the appellant in possession of the suit land in 1986.

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It is also not in dispute that since then the

appellant continued to remain in possession of the

suit land though, in the meantime, suffered

impugned decree for dis-possession.

25. In our opinion, in the light of such factual

undisputed scenario emerging in the case, the

appellant is held entitled to claim refund of earnest

money of Rs.1,00,000/- from the respondents. One

cannot dispute the legal position that once the

bargain to sale/purchase of any land fails, the

unsuccessful buyer becomes entitled in law to claim

refund of earnest money from the seller under

Section 22 of the Indian Specific relief Act.

Similarly, the appellant is also, in turn, liable to

restore the possession of the suit land pursuant to

the impugned judgment/decree suffered by him and

which we have upheld.

26. It is for these reasons and with a view to do

complete justice between the parties, we invoke our

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power under Article 142 of the Constitution and,

accordingly, direct the respondents to refund a sum

of Rs.1,00,000/- to the appellant within 3 months

from today. Failure to refund Rs.1,00,000/- to the

appellant within 3 months will carry interest at the

rate of 6% p.a. on the said sum till payment.

27. We further direct the appellant to restore back

the vacant possession of the suit land to the

respondents in terms of the impugned

judgment/decree within 3 months from the date of

this judgment.

28. With these directions, the appeal stands finally

disposed of.

……………………………………..J.
[ABHAY MANOHAR SAPRE]

……………………………………….J.
[NAVIN SINHA]

New Delhi;

December 05, 2017

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Article source: Supreme Court

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