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)

J U D G M E N T

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

09.02.2000  passed  by  the  IIIrd  Additional  Civil

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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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