MOULASAB BANDGISAB GOUNDI Vs. YAMANAPPA AMEENAPPA HIKODI

JUDGEMENT

(1.) THIS second appeal is by the plaintiff being aggrieved by the judgment and decree passed by the II Addl. District judge, Bijapur in R. A. No. 7/88 wherein the learned District Judge has dismissed the appeal filed by the plaintiff and confirmed the judgment and decree passed by the Addl. Civil Judge, Bijapur in O. S. No. 169/83.

(2.) THE plaintiff had filed a suit to declare that the defendant No. 5 has not acquired any right, title or interest in the alleged sale deed dated 10-5-1982 executed by defendants 1 to 4 and also to issue permanent injunction restraining the defendant No. 5 from interfering with the peaceful possession and enjoyment of the suit land by the plaintiff and to order for delivery of possession if the Court finds that the plaintiff is not in possession or lost the possession of the suit land. The plaintiff said to have purchased the suit schedule property from defendants 1 to 4 for a valuable consideration of Rs. 10,000/- under a sale deed dated 30-7-1979 which is to the extent of 3 acres 10 guntas situated at Tadalagi village, basavana Bagewadi Taluk. It is stated that immediately after the sale deed the title of the suit property passed to the plaintiff and the possession was also given and he started cultivating the property, and that subsequently, defendants 1 to 4 without the knowledge of the plaintiff have executed the sale deed dated 10-5-1982 in favour of defendant No. 5 in respect of the same property for a sale consideration of Rs. 10,500/ -. Hence, the suit. The said suit was resisted by defendant No. 5 stating that there is a sale agreement by defendants 1 to 4 in his favour and he has also paid Rs. 6,000/- as earnest money and an agreement of sale was entered into between him and defendants 1 to 4 on 17-5-1979 and also thereafter there is a mutation entry effected subsequent to the delivery of possession in his favour in m. E. No. 1120 and he is in possession and enjoyment of the same and the alleged sale in favour of the plaintiff is void and not binding on him and also that plaintiff is a government employee working as a police and in the proceedings before the Assistant Commissioner there is a finding that the plaintiff is a non-agriculturist and he is prohibited from purchasing Agricultural land against which, no appeal was preferred. Whereas he has purchased the property from the original vendor, as such, he is in possession and enjoyment and the suit is filed by the plaintiff is only to harass him. Based on the pleadings as many as 7 issues were framed. Thereafter, after the evidence was let in and after hearing the parties, the suit filed by the plaintiff was dismissed by the Addl. Civil Judge, Bijapur in O. S. No. 169/83. Thereafter, an appeal was preferred before the II Addl. District Judge, Bijapur in R. A. No. 7/88 by the plaintiff and that also came to be dismissed while confirming the judgment and decree passed by the Addl. Civil Judge, Bijapur. Being aggrieved by the same, this second appeal has been preferred by the plaintiff. Originally this appeal filed by the plaintiff was disposed of by this Court on 7-9-1998 by allowing the appeal against which, the defendant No. 5 preferred Civil appeal No. 1539/99 before the Apex Court wherein, the order passed in this second appeal by Sri T. N. Vallinayagam, J. was set aside by the Apex Court on the ground that no substantial questions of law were raised for consideration and remitted the matter back to this Court to dispose of the matter after formulating the substantial questions of law that arises for consideration. After remand, this Court on 7-7-2005 has raised the following substantial questions of law for consideration: 1 ). Whether the lower appellate Court was right in holding that the plaintiff was not entitled to purchase the suit land and the title has not passed to him ? 2 ). Whether both the Courts below were right in rejecting the prayer of the plaintiff or declaratory relief ? 3 ). Whether the agreement to sell the immovable properties has got a priority over the sale deed executed in favour of the plaintiff?

(3.) IT is the argument of the learned counsel for the appellant/plaintiff that the suit property was purchased by the plaintiff for a valid consideration and he is a bona fide purchaser for value without notice. The agreement of sale does not create any interest over the suit property whereas, the sale deed creates interest and also transfer takes place on such execution of the sale deed and both the Courts below have erred in dismissing the suit of the plaintiff. It is further contended that the alleged second sale deed in favour of defendant No. 5 is not binding on the plaintiff and as such, both the Courts below ought to have decreed the suit of the plaintiff. In support of his argument, he relied upon the rulings reported in AIR 1967 sc 744 in the case of Ram Baran Prasad v. Ram Mohit Hazra and AIR 1954 SC 44 in the case of Satyabrata Ghose v. Mugneeram bangur and Co.