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CASE NO.: Appeal (civil)  454-455 of 2002

PETITIONER: Ramakrishna Rao (dead) by Lr

RESPONDENT: Rai Murari

DATE OF JUDGMENT: 21/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in these appeals is to the judgment of a  learned Single Judge of the Karnataka High Court who while  dismissing the Second appeal filed by the respondent has  given certain directions which according to the appellant   could not have been given in the absence of any finding.   

2.      A suit for permanent injunction was filed by the  appellant, with the prayer to direct the defendant, respondent  herein from interfering with the peaceful possession and  enjoyment over the suit schedule land. The trial court  dismissed the suit but the first appellate court allowed the  appeal.  The High Court in the Second appeal as noted above  dismissed the same but directed payment of certain amounts  by the appellants to the respondent.  The directions in this  regard read as follows:

       "Now the defendant’s grievance is that the  plaintiff could not have the benefit of the  property as well as money paid by the  defendant’s wife on 19.6.1983.  In equity and  in law, inasmuch as agreement is found to be  valid by the first Appellate Court, it is the duty  of the plaintiff to return the money of  Rs.5,000/- together with the interest at 12%  per annum.  Such amount shall be charged in  the property.  The plaintiff is directed to pay  the same within a period of six months and the  decree of injunction shall come into operation  only after payment is made.  Subject to the  above direction, the second appeal is  dismissed."

3.      Subsequently, the figure of Rs.5,000/- was substituted  with a figure of Rs.32,000/-.  The High Court proceeded on the  basis as if the suit for injunction was on the ground that  plaintiff had entered into an agreement with defendant’s wife  on 19.6.1983. It was further observed that on the basis of the  agreement the defendant’s wife claimed to have been put in  possession of the land and the right to property cannot be

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taken away by the plaintiff by way of injunction or otherwise.   To say the least, this shows complete non application of mind.   This is not the case of the plaintiff in the suit but as a matter  of fact it was the defendant’s case.  To add to the vulnerability,   the High Court found that the agreement was found to be valid  by the first appellate court and, therefore, it was the duty of  the plaintiff to return the amount with interest at the rate of  12% per annum.  Even on a deep scanning of the first  appellate court’s order it is noticed that there was no such  finding recorded.  On the contrary, in paragraphs 19 to 21 of  the first appellate court’s order, it is clear that the first  appellate Court found that the stand of the plaintiff about the  alleged existence of an agreement for sale was not established.   It is relevant to take note of what has been stated in the  aforesaid paragraphs:

"19.    In this connection it was urged on behalf  of the plaintiff that the document is a cooked  up one as the wife of the defendant was not in  a position to afford such a huge amount. It is  an admitted fact that there has been a loan  transaction between the plaintiff and the  defendant and for recovery of the said amount  a suit has been filed which has been decreed  by the court of Munsif. The suit had been filed  in O.S.No. 118/84. According to the plaintiff a  sum of Rs.11,500/- was paid in august, 1983  and for non payment of balance amount  O.S.No.118/84 has been filed against him. It  was urged that the defendant was not in a  position to pay the said amount and it was  quite impossible to enter into an agreement for  purchase of the land at the rate of Rs.2,000/-  per acre. It is stated by D.W.2 that his wife  who was the owner of the land at Hokrani  village has been sold by her, but neither the  wife of the defendant has been examined  before the court nor any other material is  produced to show that she was in a position to  pay the amount so as to purchase the suit  land along with non-suit land. 20. It can also be seen here that the plaintiff  has denied the execution of the document and  has refused the said transaction. To enforce  such transaction no action has been taken by  the wife of the defendant for specific  performance of agreement of sale against the  plaintiff though it has come to the knowledge  that the said agreement has been refuted by  the plaintiff.

21. The perusal of the document at Ex.D-2  itself goes to show that Sy.No.715 appearing in  the document at two places has been over  written. It has also been mentioned therein  that in the month of May of next year by  taking the balance amount, the document has  to be taken. In spite of lapse of time as  contended so far no action has been taken  against the plaintiff, so the right of equity  accrued to the wife of the defendant and the  defendant who claims through her,       has been  defeated by lapse of time."

4.      No one appears for the respondent.

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5.      A review petition was filed highlighting these aspects by  the appellants, but the same came to be rejected by the High  Court.  Since the High Court proceeded on totally untenable  premises and recorded findings which are contrary to  materials on record and findings recorded, the direction for  refund of money is clearly indefensible and is set aside.

6.      The appeals are allowed to the aforesaid extent with no  order as to costs.