KARNATAKA LAND LAWS

PRINCIPLES OF HINDU LAW ON PROPERTIES

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IN PTCL CASES - THE APPLICATION FOR RESTORATION OF GRANTED LANDS CANNOT BE ENTERTAINED AFTER LAPSE OF REASONABLE TIME

noreply@blogger.com (Advocate Sridharababu) — Mon, 3 Jun 2019 12:17:00 +0530

Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed.Prem Singh and Ors. vs. Birbal and Ors. (02.05.2006 - SC) : MANU/SC/8139/2006

SOURCE :- JUSTICE G. Narendra, J. IN H.N. Krishne Gowda vs. The Deputy Commissioner, Hassan District and Ors. (20.11.2018 - KARHC) : MANU/KA/5400/2018

Nekkanti Rama Lakshmi Vs. State of Karnataka and Another reported in MANU/SC/1814/2017 : 2018(1) Kar. L.R. 5 (SC) wherein the Hon'ble Apex Court was pleased to hold as hereunder:

"8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., MANU/SC/0781/2017 : 2017(6) SCALE 459 and also in the case of Ningappa vs. Dy. Commissioner & Ors. (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely, R. Rudrappa vs. Deputy Commissioner, MANU/KA/0056/2000 : 2000 (1) Karnataka Law Journal, 523, Maddurappa vs. State of Karnataka, MANU/KA/8048/2006 : 2006 (4) Karnataka Law Journal, 303 and G Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J. Sh. N. 4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly."

Hon'ble Apex Court has settled the law, in respect of inordinate and gross delay in invoking the statutory provisions or exercising powers vested by the statute. After examining the issue and following its earlier ruling rendered in the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs.& Ors. reported in MANU/SC/0781/2017 : 2017(6) SCC 459 wherein it has been reiterated that in respect of a statute that does not provide for a period of limitation to exercise the power, then the statutory provisions must be invoked within a reasonable time.

Apex Court in the case of Manchegowda vs. State of Karnataka reported in MANU/SC/0342/1984 : (1984) 3 SCC 301. That in the case of Manchegowda, the law is settled by a Division Bench of three Judges whereas, the cited ruling is rendered by a Division Bench of two Judges. This contention requires to be rejected in the light of the fact that, the Hon'ble Apex Court was not seized with the issue regarding delay in invoking the provisions of the Act while disposing of Manchegowda's case. Thus, the Apex Court has not considered the issue with regard to unreasonable delay in invoking the provisions of the statute as the said ruling came to be rendered in a short span after coming into force of the enactment.

The Hon'ble Apex Court in Manchegowda's case referred supra in fact visualized the present conundrum by holding that any negligence and delay on the part of the authorities, entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. The relevant paragraph is extracted hereunder for quick reference.

"12. In pursuance of this policy, the Legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time. Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void and providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes."

(underlining by this Court)

The Hon'ble Apex Court has been prophetic in rendering the said ruling by observing that, in statues where no limitation is provided, the Authorities and the State must act consciously and if the process of invoking the provisions of statute is delayed and is initiated after a long lapse of time, the delay by itself would act as an impediment.

It is relevant to state the principle enunciated by the Hon'ble Apex Court that the exercise of power vested in an authority should be exercised in a reasonable manner and more importantly even a reasonable time more so, when time is not stipulated under the statute is not a principle of recent origins and the Hon'ble Apex Court way back in 1983 itself has enunciated the principle in the case of Mansaram vs. S.P. Pathak and others reported in MANU/SC/0363/1983 : 1984(1) SCC 125 where the issue involved was one of eviction of a tenant and the Hon'ble Apex Court has held that where the time limit for taking action for eviction is not stipulated in the statute, the eviction after an unreasonable long lapse of time on the ground of initial occupation of the premises being unlawful is not sustainable. In para. 12 the Hon'ble Apex Court has held thus:

"12. What is stated hereinbefore is sufficient to quash and set aside the order of the House Allotment Officer. However, there is one more aspect of the matter which we cannot overlook. The appellant entered the premises in 1954. There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the premises in contravention of clause 22(2). Till Basantrai Sharma died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contravention of clause 22. Basantrai Sharma in his life time tried to obtain possession of the premises from the appellant alleging grounds available to him under the Rent Control Order other than unauthorized entry. This would permit an inference that Basantrai Sharma accepted the appellant as his tenant and his tenancy did not suffer from any infirmity. After Basantrai Sharma died, his successor-in-interest one Smt. Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr. S.P. Pathak, a total stranger has come forward to complain about the unauthorised entry of the appellant in the premises. The unauthorised entry according to the appellant was in the year 1954. Appellant retired in 1967. Basantrai Sharma was alive in 1967. If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing. Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereafter. Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorized. To slightly differently formulate the proposition, could the initial unauthorized entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2)? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal v. State of U.P. wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by sec. 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorized occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha & Ors. In that case Commissioner exercised suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one year after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor-in-interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 was in contravention of clause 22(2)."

Hon'ble Apex Court in its subsequent judgment in the case of Santhoshkumar Shivgonda Patil & others vs. Balasaheb Tukaram Shevale and others reported in MANU/SC/1608/2009 : (2009) 9 SCC 352 wherein at para. 10 referring to the ruling in the case of State of Punjab vs. Bhatinda District Co-op Milk Producers Union Ltd., held that where the statute does not prescribe the time limit, same has to be exercised within a reasonable time be it suo motu or otherwise. It was pleased to hold that the reasonable period under the Maharashtra Land Revenue Code could be three years subject to exceptional circumstances and categorically held that the exercise of revisional power after lapse of 17 years can by no stretch of imagination be construed as being within a reasonable time. The observation of the Hon'ble Apex Court in para. 10, 11 and 12 is reproduced below.

'10. Recently, in the case of State of Punjab and Others v. Bhatinda District Coop. Milk Producers Union Ltd. while dealing with the power of revision under Section 21 of the Punjab General Sales Tax Act, 1948, it has been held: (SCC p.367, paras 17-19)

"17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefore, the same would not mean that the suo motu power can be exercised at any time.

18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.

19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in sub-section (6) of Section 11 of the Act is five years."

11. It seems to be fairly settled that if a statute does not prescribed the time-limit for exercise of revisional power, it does not mean that such power can be exercises at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is playing that exercise of such power within reasonable time is inherent therein.

12. Ordinarily, the reasonable period within which the power of revision may be exercised would be 3 years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time. Invocation of revisional power by the Sub-Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstance of the case assuming that the order of the Tahsildar passed on 30.03.1976 is flawed and legally not correct.'

14. Thus, without exception and across various fields of law, the Apex Court has categorically stated the law in respect of exercise of powers/jurisdiction under a statute where no limitation is stipulated. Hence, law in this regard is no more res integra. Apart from the embargo placed by the Apex Court in exercise of jurisdiction by the authorities under the statute where no limitation is specified, the Apex Court has also settled the law in respect of delay on the part of litigants in seeking redressal of the grievances.

15. Law on the point of delay and laches is well settled by a catena of Judgments be it, in the matter of land acquisition or in the field of service law. The Apex Court has been pleased to hold that unexplained gross delay would be fatal to the right of the party, to seek a judicial adjudication of his rights."

LIMITATION TO FILE SUIT FOR CANCELLATION OF DEED

noreply@blogger.com (Advocate Sridharababu) — Sat, 25 May 2019 11:44:00 +0530

If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority.

Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the Articles, provides that upon lapse of the prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed.

Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.

In Ningawwa v. Byrappa Shiddappa Hireknrabnar and Ors. MANU/SC/0145/1968 : [1968]2SCR797 , this Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable stating:

The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.

In Balvant N. Viswamitra and Ors. v. Yadav Sadashiv Mule (Dead) Through LRS. and Ors. MANU/SC/0625/2004 : AIR2004SC4377 , this Court opined that a void decree can be challenged even in execution or a collateral proceeding holding:

The main question which arises for our consideration is whether the decree passed by the trial court can be said to be "null" and "void". In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.

There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent No. 1 has not been able to rebut the said presumption.

Article 59 of the Schedule to the Limitation Act, 1963 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid.

SOURCE:- Prem Singh and Ors. vs. Birbal and Ors. (02.05.2006 - SC) : MANU/SC/8139/2006

This Court in Syed Haisanulla V. Ahmad Beig alias Mumtaz reported in MANU/KA/0091/1988 : ILR 1987 KAR 591 has noted that ordinarily heavy burden lies on Courts especially where defendants are placed ex parte to ensure that judgments must contain precise of the plaint and the points that arose for determination and should also record the findings and "contain succinctly the summary of the discussion of the evidence and the effect of the document in the suit". This duty, it can be said would specifically also include framing of issue on limitation, in the present facts.

Domegunta Venkatasesha Reddy vs. Gowramma and Ors. (25.01.2019 - KARHC) : MANU/KA/0231/2019

Suit merely for declaration that plaintiffs were absolute owners of suit lands could not have been filed without seeking declaration that registered sale deed was loan transaction and not sale

N.V. Srinivasa Murthy and Ors. vs. Mariyamma (Dead) by Proposed Lrs. and Ors. (11.07.2005 - SC) : MANU/SC/0403/2005

T. Arvindam v. T.V. SatyapalMANU/SC/0034/1977 : [1978]1SCR742 :- "The trial court must remember that if on a meaningful - no formal - reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order VII, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order X, CPC. An activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch.XI) and must be triggered against them."

N.V. Srinivasa Murthy and Ors. vs. Mariyamma (Dead) by Proposed Lrs. and Ors. (11.07.2005 - SC) : MANU/SC/0403/2005

Hon'ble Apex Court in the case of Yellapu Uma Maheshwari and Another vs. Buddha Jagadheeswar Rao and Others reported in (2015) 16 SCC 787 has been pleased to hold that the nomenclature given to the document is not the decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question.

There existed a fiduciary relationship between the plaintiff and the defendants, and therefore, the burden should have been cast on the defendants to prove that they acted fairly and that there was no misrepresentation or undue influence or pressure on the plaintiff. He has placed reliance on 1) Poosathurai v. Kannappa Chettiar and others(AIR 1920 PC 65), 2) Krishna Mohan Kul Alias Nani Charan Kul and another v. Pratima Maity and Others [(2004) 9 SCC 468], 3) A. Venkappa Bhatta and others v. Gangamma and others (AIR 1988 Ker 133), 4) Sher Singh and others v. Pirthi Singh and others (AIR 1975 All 259), 5) Guljan Bibi v. Nazir-uddin Mia (AIR 1975 Gau 30), and 6) Smt. Chinnamma and others v. The Devanga Sangha and others(AIR 1973 Mysore 338).

Supreme Court in the case of Pratima Chowdhury v. Kalpana Mukherjee and another, [(2014) 4 SCC 196]. At page 239, it is observed as below:-

"A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage."

In Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib and others, (1967) 1 SCR 331, the Hon'ble Supreme Court has held as below:- "8. It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the judicial committee of the Privy Council in Poosathurai V/s. Kannappa Chettiar and others.

"It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point 'influence' alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, 'undue'. "

Later, the Hon'ble Supreme Court, in the case of M. Rangasamy v. Rengammal and others (AIR 2003 SC 3120) had an occasion to refer to the judgment in the case of Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib and others to hold that mere existence of close relationship will not lead to a presumption of undue influence. It is held as below :

"14. The only issue out of seven which were framed by the learned Subordinate Judge at the trial of the suit which has any bearing on this point Issue No. 5. This reads:

"Is the deed of gift by the grandfather to defendant 1 valid and true : If so, is the suit maintainable without setting aside the deed of gift?"

15. It will be noted at once that even the expression "undue influence" was not used in the issue. There was no issue as to whether the grandfather was a person of unsound mind and whether he was under the domination of the second defendant."

IF THE PARTIES HAD DELIBERATELY LEFT OUT SOMETHING FROM THE WRITTEN INSTRUMENT THAT CANNOT BE PUT IN

noreply@blogger.com (Advocate Sridharababu) — Sat, 12 Sep 2015 19:19:00 +0530

Court in State of Karnataka & Anr. v. K. K. Mohandas & etc, AIR 2007 SC 2917 Under Section 26 of the Specific Relief Act, an instrument or contract may be rectified when through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intention. According to Dr. Banerjee in his Tagore Law Lectures on the, Law of Specific Relief, if the parties had deliberately left out something from the written instrument, that cannot be put in, by resort to the remedy of rectification. Here, the parties have entered into written contracts and admittedly no term is incorporated therein regarding enforcement of the ban on trade of toddy to the public in the District of Dakshina Kannada. Nor is there any case pleaded in the plaint of any mutual mistake in the matter of setting down the terms of the contract. There is also no plea of fraud on the part of the State in entering into the contract. On the terms of the contract, the plaintiffs had obtained the right to vend arrack for the Excise Year 1990-91 on their obligation to pay the bid amount in monthly instalments. In the absence of any foundation in the pleadings being laid by the plaintiffs establishing a ground for the grant of the relief of rectification, the mere adding of a prayer by way of an amendment could not be considered sufficient to grant them the relief of rectification.

RECTIFICATION OF INSTRUMENT CANNOT BE SOUGHT BY WAY OF AMENDMENT UNDER ORDER VI RULE 17

noreply@blogger.com (Advocate Sridharababu) — Sat, 12 Sep 2015 19:19:00 +0530

In the High court of Karnataka by Justice K.Bhakthavatsala, in the case of Fakkirawwa vs Ashok Decided on 18 July, 2014, WRIT PETITION NO.76686 & 76687/2013

Chapter-III of the Specific Relief Act, 1963 deals with regard to rectification of instruments in the event of fraud or mutual mistake of the parties mentioned therein. As per sub-Section (2) of Section 26, if, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention. Further, sub-Section (3) of Section 26 says that a contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced. ………………… The above-said provision does not permit the plaintiff, who has filed a Suit for specific performance of agreement to seek direction to the defendants to amend the Sy. No.63/A/2 instead of Sy. No.63/2A in the agreement of sale. It is pertinent to mention that if the case of the plaintiff is that there is mistake in mentioning correct survey number in the agreement of sale, it is open to the plaintiff to plead the same in the plaint or seek amendment of the plaint for such a relief in the suit by urging the grounds, but the above-said provision does not give any such right to the plaintiff to seek rectification of the instrument viz., the agreement of sale by filing an application under Order VI Rule 17 of CPC.

WHEN DEVELOPMENT CHARGES PAID AND MUNICIPALTY GIVES LICENCE TO CONSTRUCTION NO NEED TO CONVERSION OF LAND 2012 KHC

noreply@blogger.com (Advocate Sridharababu) — Sun, 27 Jul 2014 10:10:00 +0530

DIVISION BENCH OF KARNATAKA HIGH COURT consisting of THE HON'BLE MR.JUSTICE K.L.MANJUNATH AND THE HON'BLE MR.JUSTICE V.SURI APPA RAO in the case of M Muninarayana Swamy, vs State Of Karnataka reported in ILR 2012 KAR 3428, held that ……………….. when the property situated within the Town Municipal Council area when Town Municipal Council has collected development charges from the appellants and granted plan for construction of the compound and in the planning area if it has lost the character of agriculture, the Dy. Commissioner will not get any right to cancel the khata on the ground that the appellants have not obtained an order of conversion. …………… Therefore, we are of the opinion that there is no necessity for the appellants to obtain conversion from agriculture to non-agriculture, if the area comes within the Town Municipal council limits and in the background of Town Municipal Council collecting the developmental charges and treated as Municipal property.