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CASE NO.: Appeal (civil)  666 of 2002

PETITIONER: Pratap Lakshman Muchandi & Ors.

RESPONDENT: Shamlal Uddavadas Wadhwa & Ors.

DATE OF JUDGMENT: 18/01/2008

BENCH: A.K.MATHUR & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

WITH

Civil Appeal No.728 of 2002 Contempt Petition ) No. 52 of 2006 in C.A.No.728 of 2002 Contempt Petition ) No.58 of 2006 in C.A.No.666 of 2002

A.K.MATHUR, J.

1.              Both the Civil Appeals arise against the order  passed by the Karnataka High Court in RFA Nos.290 & 311 of  1993 dated 17.12.1999. Therefore, both the appeals are  disposed of by a common order.

2.              The brief facts which are necessary for the  disposal of these appeals are that a suit was filed on the  basis of an agreement to sell dated 24.4.1982 for a  consideration of Rs.1,20,000/- for property, namely, open  space with some dilapidated room bearing CTS No.4094/1B/2  admeasuring  472 square yards, College Road, Belgaum. The  agreement was executed by the first defendant as the  \021Kartha\022 of Hindu joint family along with other defendant  Nos.2 to 4. A sum of Rs.10,000/- was paid as advance and  the agreement was to be concluded within six months. As the  defendants did not execute the sale deed within the  stipulated time, a suit was filed by the plaintiff after  giving notice dated 10.5.1983 for enforcement of the  agreement to sell. The defendant Nos.1 to 5 also filed a  suit being O.S.No.236 of 1982 for injunction against  defendant Nos.6 to 15 and took a plea that because of the  pendency of their suit, they could not execute the sale  deed and they would execute the sale deed after decree in  their favour was passed. The plaintiff suspected their  movements and, therefore, he filed the present suit.  Defendant Nos.1 to 3 filed a common written statement  admitting the joint Hindu family consisting of defendant  Nos.1 to 4. But they denied that the 1st defendant was the  Kartha of the family. They admitted that the suit property  was an ancestral property and they were the absolute  owners. They also denied the agreement to sell and receipt  of the advance. They further took a plea that they agreed  to sell the property for a sum of Rs.1,70,000/- at the  first instance and the deed of the agreement was typed and  signed by the parties and the earnest money in sum of  Rs.10,000/- was paid and they were willing to sell the  property for a sum of Rs.1,70,000/- and as the plaintiff

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did not pay the balance sum, therefore, the sale deed could  not be executed. The defendant No.4 was a minor when the  suit was instituted, but became major during the pendency  of the suit and he denied that the defendant No.1 was his  natural guardian. The defendant No.5 also claimed 1/5th  share in the property. The defendant No.1 died during the  pendency of the suit and his other daughter was brought on  record as defendant No.1(a). She also filed a written  statement denying  the agreement of sale. Defendant No.6  contended that  there was no collusion between the  defendant Nos. 6 to 15 and defendant Nos.1 to 4. They also  contended that the agreement cannot be enforced as against  them as defendant Nos.1 to 5 were never in possession of  the suit property. Defendant Nos.6 to 15 claimed the  ownership  by way of adverse possession and claimed to be  in such exclusive possession from the year 1957 onwards  with the knowledge of defendant Nos.1 to 5. Therefore, it  was contended that the agreement of sale was not  enforceable because of the laches on the part of the  plaintiff.  On the basis of these pleadings, nine issues  were framed and then three more additional issues were  framed. The Trial Court after analyzing  the evidence  decreed the suit and directed the defendant Nos. 1(a) to 5  to execute the sale deed in favour of plaintiff by  receiving the balance consideration of Rs.1,10,000/- and  hand over possession, at the same time, a decree was passed  evicting the defendant Nos.6 to 15 from the premises in  question. The Trial Court further directed defendant Nos.6  to 15 to hand over the possession to the plaintiff.  Aggrieved against this judgment and decree passed by the  Trial Court, two appeals were preferred before the High  Court. Both the appeals were taken up together. The  grievance  of defendant Nos. 1 to 5 was that the agreement  of sale was not proved and appeal by another batch of  persons who were directed to be evicted from the premises  in question and to hand over the possession, was filed,  i.e. Appeal No.311 of 1883 and Appeal No.290 of 1993. Both  these appeals were tagged together.  

3.              The High Court again reviewed the evidence and  while hearing the appeals, it felt that document executed  by P.W.1 contained some corrections or erasure.  Consequently, the document was sent for the expert opinion  and after receipt of the report of the Assistant Director  (questioned document), Forensic Science Laboratory,  Bangalore, evidence of erasure was found and subsequent  typing of figures of Rs.1,20,000/- was detected. Both the  parties were directed to file their objection to the report  of the Handwriting Expert. The High Court framed following  two questions, viz.;

               \023(i) Whether the agreement of sale is true and  binding on all the defendants ?                 (ii)  Whether the defendants 6 to 15 perfected  their title over suit property by way of adverse  possession?\024

4.              The High Court, after review of the evidence came  to the conclusion that because of the legal necessity as  admitted by the defendants, an agreement of sale was  executed for the aforesaid property and a sum of  Rs.10,000/- was taken as advance. The High Court also  observed that defendant No.1 was the Kartha of the family,  who died and it was not open to his sons to challenge that  there was no family necessity for sale of the property. So

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far as the agreement to sell was concerned,  the High Court  also affirmed the finding of the trial court and did not  find any reason to take a different view of the matter. The  High Court also affirmed that in fact, the agreement of  sale was for a sum of Rs.1,20,000/- and not for  Rs.1,70,000/- as alleged. So far as the possession by the  defendant Nos.6 to 15 was concerned, the Trial Court as  well as the High Court affirmed that the plea of adverse  possession was very vague and these  persons were carrying  on timber business in suit property and it was very  difficult to hold that they perfected their title by way of  adverse possession. It was also observed that these persons  were in permissive possession. It was also found by both  the Courts below that there was no evidence to show that  the title was perfected by way of adverse possession.  Consequently, the High Court confirmed the finding of the  Trial Court. Aggrieved against this judgment, two appeals  were filed and they were tagged together, and are being  disposed of by this common order.

5.              Learned counsel for the appellants  submitted  that the findings given by both the Courts below cannot be  accepted and in support thereof, learned counsel invited  our attention to a number of decisions of this Court i.e.  V.Pechimuthu v. Gowrammal [(2001) 7 SCC 617]; Swarnam  Ramachandran (Smt) & Anr. V. Aravacode Chakungal Jayapalan  [(2004) 8 SCC 689]; S.V.R.Mudaliar (Dead) by LRs. & Ors. V.  Rajabu F. Buhari (Mrs.) (Dead) by LRs. & Ors. [ (1995) 4  SCC 15] & P.C.Varghese v. Devaki Amma Balambika Devi & Ors.  [(2005) 8 SCC 486]. Mr. K.Ramamoorthy, learned senior  counsel appearing for the appellants in Civil Appeal No.666  of 2002 submitted that both the Courts below could not have  passed an eviction decree against the appellants in these  very proceedings as they were claiming the property by way  of adverse possession,  and in support thereof, he has  invited our attention to a decision of Bombay High Court in  Mohd. Hanif (deceased by LRs) & Ors. V. Mariam Begum & Ors.  [ AIR 1986 Bom. 15] and an English decision in Tasker v.  Small [1824-34 ALL ER 317].

6.              We have heard learned counsel for the parties and  perused the record. As per the findings given by both the  Courts below it is clear that the agreement to sell was  entered into for  family necessity and the same was agreed  by the father of the defendant though the father died  during the course of the pendency of the suit. Therefore,  he could not be examined. Learned counsel has  submitted  that the appreciation done by both the Courts below is not  correct and in fact the property was not agreed to be sold  for Rs.1,20,000/- but the consideration money was  Rs.1,70,000/- and the appellants themselves were not  willing to pay the remaining amount. Hence he submitted  that the agreement to sell cannot be executed.

7.              We have examined the record and found that as per  the evidence on record what is apparent is that the  agreement to sell in question was for the purpose of family  necessity only and it does not lie in the mouth of the sons  to deny the agreement to sell for which a sum of  Rs.10,000/- was already received. After going through the  evidence also we are of opinion that the Courts below have  correctly appreciated the testimony and rightly reached the  conclusion that the agreement to sell was for Rs.1,20,000/-  only. So far as the allegation of interpolation in the  document in question i.e. agreement to sell was concerned,

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it was sent for examination by the Handwriting expert, and   the report of the expert was received and the same was  accepted. The opinion of expert was that there is erasure  but not tampering with the document. The document in  question is genuine and has been rightly acted upon by both  the  Courts below. In this connection, learned counsel  invited our attention to various decisions referred to  above but that does not make any difference in the matter  because factually we are satisfied that the agreement to  sell was executed for family necessity. Therefore, the  various decisions referred to by learned counsel for the  appellants do not take the case of the appellants any far.  Hence we are of opinion that the agreement to sell was  executed for family necessity and the appellants cannot get  out of it. 8.              But at the same time it is also true   that the  agreement to sell was executed way back in the year 1982.  Since after 1982 much water has flown under the bridge, the  value of the real estate has shoot up very high, therefore,  while exercising our jurisdiction under Section 20 of the  Specific Relief Act, 1963 we would like to be equitable and   would not allow the sale of property to be executed for a  sum of Rs. 1,20,000/-. The litigation has prolonged for  almost 25 years and now at last reached at the end of the  journey. Therefore, we have to settle the equity between  the parties. We hold that the agreement to sell was genuine  and it was executed for bona fide necessity but because of  passage of time we direct that the respondents shall pay a  sum of Rs.5 lacs in addition to Rs.1,10,000/- as out of  Rs.1,20,000/-, Rs.10,000/- has already been paid as  advance. On receipt of Rs.1,10,000/- and Rs.5 lacs   [Rs.6,10,000/-]  the appellants shall execute the agreement  to sell for the property in question.   

9.              Mr. Ramamoorthy, learned senior counsel for the  appellants  in C.A.No.666 of 2002 submitted that in this  appeal an order of eviction cannot be passed and in support  of that invited our  attention to a decision of Bombay High  Court in Mohd. Hanif (deceased by Lrs) & Ors. V. Mariam  Begum & Ors. [AIR 1986 Bom. 15] and  English decision in  Tasker v. Small [1824-34 All ER 317].  It is true that  the  appellants in this appeal claimed the property in question  by way of adverse possession but neither before the trial  court nor before the High Court the appellants could show  any justification for the possession of the property in  question.  We also asked Mr.Ramamoorthy  under what legal  sanction the appellants are in possession of the premises  in question. He has failed to point out anything except by  way of permissible possession by the appellants in  C.A.No.666 of 2002. Therefore, the occupation of these  appellants in C.A.No.666 of 2002  was at best a permissible  possession and now that we are enforcing the agreement to  sell and direct  the appellants in C.A.No.728 of 2002 to  execute the sale deed in respect of the property in  question in favour of the respondent-plaintiff,we cannot  permit the appellants to continue in possession of the  property in question. Apart from this in order to put  quietus to the whole litigation it would be just and proper  that the appellants in C.A.No.728 of 2002 should be  directed to hand over the vacant possession of the property  in question to the respondent-plaintiffs on payment of a  sum of Rs.6,10,000/- [Rs.5,00,000/- + Rs.1,10,000/-]  to  the appellants. We cannot leave the matter again for  another round of litigation as otherwise  the respondent- plaintiff  will have to file another case for taking

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possession of the property in question and it will take  another decade or so. Therefore, in order to do complete  justice, it is directed that the appellants in C.A.No.728  of 2002 shall hand over the possession of the property in  question to the respondent-plaintiffs in the event  of the  respondent-plaintiffs paying a sum of Rs.1,10,000/-, the  original amount agreed in the agreement for sale and over  and above a sum of Rs.5,00,000/- i.e. Rs.6,10,000/- within  a period of three months from today and on receipt of the  aforesaid amount, the appellants in C.A.No.728 of 2002  shall hand over the possession of the premises in question.  In case the appellants fail to hand over the possession of  the property in question,  the respondent-plaintiff may  resort to  the help of the police authorities for taking  vacant possession of the property in question.  

10.     As a result of our above discussion, both the  appeals are disposed of with no order as to costs. 11.             Since we have disposed of the civil appeals as  indicated above, the contempt petitions are also disposed  of in the light of the above order.