ORDERS ON 1A III

    [1]    This application is filed on behalf of defendant No.5 under Order 7 Rule 11(d) of Civil Procedure Code seeking to reject the plaint as the suit is opposed to public policy law and barred by limitation. 

    [2]    The facts of the case, in brief, are as below: One Sri. G. Vijaykumar, the General Power of Attorney holder of 5th defendant has sworn to an affidavit and stated that the plaintiff is a Co-operative Society registered under the provisions of the Co-operative societies Act, that the plaintiff is prohibited from acquiring or holding agricultural lands according to section 79(B)(IV) of the Karnataka Land Reforms Act, 1961 and that the agreement of sale dated 20/1/1984 and, another agreement which came into existence in the year 1980, upon which this suit has been held cannot be enforced. It is stated that the suit is barred by limitation and for these reasons the plaint has to be rejected. 

    [3]    The plaintiff has got filed detailed objection statement. The gist of the objection statement is that the application is not maintainable either in law or no facts that though the plaintiff is a co-operative society the law would not prohibit acquisition of agricultural lands to achieve its objectives that the suit schedule property ceased to be an agricultural land long back that no agricultural operations are being carried on, that in and around the schedule property about 160 acres of land was acquired for the purpose of the plaintiff society that the schedule property was left out from acquisition that the society has given a representation to the Government for acquiring the schedule land also that the Government has also issued notice that the schedule land comes within the ambit of notification issued by the Government in this regard that the plaintiff has paid the consideration amount tot he defendants that the defendants have delivered the possession to the plaintiff that a lay out was formed, the sites were alloted to its members that the allottees from the society are actually having possession to this application the provision of Land Reforms Act could not be made applicable to  say that the plaintiff cannot acquire the land, that the suit is within time as no specific period has been fixed in the agreement and hence the application has to be dismissed. 

    [4]    Heard the arguments of the learned counsel for defendant No.5 and also the plaintiff. 

    [5]    The learned counsel for defendant No.5 has argued like this.

        The plaintiff is the co-operative society and it cannot acquire agricultural land and if housing co-operative society enters into contract with the land owners, it is opposed to the provisions of Land Reforms Act which prohibits the acquisition of land by non-agriculralists. In this regard he referred to section 79(A) and (B) of Land Reforms Act. He also referred to section 23 of The Indian Contract Act according to which, any contract coming into existence to defeat the purpose of law is void. Referring to section 109 of the Land Reforms Act which provides for a scheme and saying that the plaintiff society has not sought exemption under this section he has also argued that the transaction on which the plaintiff has based the relief is against the constitution as enshrined in 9th schedule. It is also his further that the agreement does not impose and legations on the part of the defendants to execute the sale deed and therefore when there is no obligation, the plaintiff cannot found the relief on the basis of this agreement. His next argument is that the suit is barred by limitation. The agreement came into existence in the year 1984 that the suit was filed in the year 2004 and thus taking into consideration the period of limitation as provided under article 54 of the Limitation Act, the suit is highly time barred. The defendant's counsel submitted the following decisions in support of his argument. 

       [6]    Per contra the learned plaintiffs counsel argued that to reject the plaint the averments made in the plaint alone have to be considered, that by considering the averments made in the plaint, if it can be said that there are question of facts and law to be decided, the plaint cannot be rejected. He has argued that in the plaint, it is clearly averred that the defendants entered into an agreement with the plaintiff, that they received the said sale consideration and handed over the possession of the schedule property to the plaintiff and intern the society formed layout and alloted sites to its members and hence the possession would remain with the plaintiff. In this regard he has referred to section 53(A) of Transfer of property Act and argued that if by virtue of the agreement, the possession of the property has been handed over to the vendor and that the vendor has done something more in pursuance of the agreement the possession of the plaintiff cannot be disturbed. 

    [7]      With regard to prohibition as contained in the Land Reforms Act, he has argued that though such provisions is there, it would not prohibit the acquisition of land by this society on the basis of the agreement because the schedule property is no more an agricultural land for it has been included within the limits of Yelahanka CMC. The Municipality has collected the betterment charges formed layout and hence section 79(B) of Land Reforms Act is not applicable. He also argued that the 5th defendant and filed this application by suppressing the material facts. 

    [8]     The learned plaintiff's counsel argued that though the fist agreement came into existence in the year 1984 and that the second agreement came into existence in the year 1990 but in both the agreements no specific period is fixed completing the transaction  and in that circumstance the period of limitation actually starts running from the date of denial on the part of the defendants, as envisaged in this is article 54 of Indian Limitation Act and thus reckoning the period of limitation the suit is within the time. 

    [9]     With regard to the argument that there is no specific allegations on the part of the defendant to execute the sale deed the learned plaintiffs counsel has argued that it is the question of fact which can be decided only after the trial because there is a recital in the agreement that the defendants have agreed to execute the sale deed. If really there is no such recital which obligates the defendants to execute the sale deed and if the same is established in the course of the trial, this court can dismiss the suit. But that ground the plaint cannot be rejected at this stage. With the above submissions, the learned counsel for plaintiff submitted with this application should be dismissed. He has relied upon the following judgments:- 

            [10]     In the reply the learned counsel for 5th defendant made reference to a report submitted by the Government in which contained that the plaintiff society is having possession of some excess land which was not the subject matter of acquisition proceedings and this excess land stood continued to be agricultural land and that the society has not taken permission required under the Land Reforms Act. He also pointed out from the report that the schedule property is not situated within the limits of Municipality or the Bangalore Development Authority and therefore he once again submitted that the plaint was liable to be rejected as the suit is barred by law. The learned counsel for 5 defendant has also submitted his written arguments. 

    [11]     He perused the application, the objection statement and I gave my anxious consideration to the arguments advanced by the learned counsel for 5th defendant as also the plaintiff's. 

    [12]     Now, the following points arise for my consideration "whether the plaint is liable to be rejected?" 

    [13]     My findings on the above point is in the Negative, for the following: 

        REASONS 

        [14] Before taking up the issue whether this application deserves to be allowed or not, I feel it appropriate to refer 3 judgments which provide the guidelines for deciding an application filed under Order 7 Rule 11 of Civil Procedure Code. The first judgment that I would like to refer to is of the Supreme Court in the case of SALEEM BHAI AND OTHERS V/S. STATE OF MAHARASHTRA AND OTHERS (AIR 2003 SC PAGE 759). In this judgment the Hon'ble Supreme Court has clearly held that the application under Order 7 Rule 11 of Civil Procedure Code has to be decided only on the basis of the averments made in the plaint and filling of written statement by contesting defendant is not at all necessary. 

        [15] The Hon'ble Supreme Court in another judgment i.e.in the case of N.V. SRINIVASA MURTHY AND OTHERS V/S. MARIYAMMA (DEAD) BY PROPOSED LRS AND OTHERS (2005(5) SCJ PAGE 298), has once again laid down the law that the averments made in the plaint alone decide whether the plaint is liable to be rejected or not. 

        [16] The Hon'ble High Court of Karnataka in the case of Karantaka Bank V/S. Gopalakrishna Rao (ILR 1984 kar Page 230) has held that if on facts alleged in the plaint it is found that the suit is manifestly merit less, it has to be thrown out at the earliest. 

        [17] Thus from the above case law, it is very clear that the court has to see the averments made in the plaint alone to decide whether the plaint is liable to be rejected under Order 7 Rule 11 of Civil Procedure Code or not therefore I refer to the averments of the plaint. 

        [18] It is stated in the plaint that the plaintiff is the co-operative Housing Society which has been registered under the provisions of Karnataka Co-operative Societies Act and the said society has come into existence with the intention of providing the residential sites to its members working in different courts in the State of Karnataka After formation of the society its promoters decided to acquire the suitable lands for formation of the layout and in their look out for suitable place, they saw that the land in Allalasandra, Chikka Bommsandra and Jakkur Plantation might be suitable Number of villagers also came forward for selling the grounds. The defendants 1 to 4 offered to sell their land to the plaintiff society. On 21-1-1984 defendants 1 and 4 entered into an agreement of sale with the plaintiff. Subsequently the defendants 3 and 4 along with their mother Narayanamma also joined hands with defendant 1 and 2 to execute the sale deed on 20-1-1984. This Narayanamma is now dead and hence she represented by 5th defendant as the Legal representatives. It is stated that according to this agreement defendants 1 to 4 along with Narayanamma offered to sell the land measuring to the extent of 1 acre 30 guntas in Sy.No.104/3-B of Allalasandra Village. Initially the sale consideration was fixed at Rs.18,000/- per acre and finalising the terms and conditions the agreement of sale was executed by the defendants 1 to 4 and Narayanamma on 20-1-1984 and for the said agreement they received Rs.35,000/- through post. On 6-4-1985 they received Rs.50,000/- through a cheque and that on 10-4-1986 the plaintiff made further payment of Rs.25,000/-to the defendants. It is stated that on 13-4-1987 also another sum of Rs.12,000/- was paid to the defendants. It is very clearly stated in the plaint that the defendants agreed that the plaintiff could enjoy the schedule property and develop it. The defendants also delivered the original sale deed dated14-8-1969 to the plaintiff. At the same time, the plaintiff initiated for the schedule land to be acquired by the Government and that the Special Deputy Commissioner Bangalore issued a Notification as per LAQ(1) SRS/87-88 dated11/2-1988 under section 4(1) of Land Reforms Act. But at the time of issuing this Notification the schedule property was left out from being notified. The plaintiff made correspondence with the Government to acquire this land also. The defendants not  only agreed to sell the land but also consented for getting the land acquired through the acquisition proceedings. This schedule land is situated amidst the other lands which were actually acquired for the benefit of the society. It is stated that the defendants agreed to sell the land even though the acquisition by the Government was not materialized. Because of delay in acquisition proceedings, the villagers demanded for paying higher  amount towards sale consideration and thus the plaintiff society agreed to pay at the rate of Rs.1,00,000/- per acre and also to pay Rs.32,000/- per acre for the Kharab Land. Once again on 26-4-1990 the defendant entered into the final agreement with the plaintiff fixing the consideration amount of Rs.1 lakh per acre against Rs.80,000/- which was fixed in the earlier agreement. It is stated that in the final agreement the defendants have clearly men about loosing their interest in the schedule property and that agreement of the sale will not be cancelled in any circumstance. In this regard they also executed on irrevocable power of attorney in the office bearers of the plaintiff society on 26-4-1990. 

        [19] The plaintiff has further averred that for the reason that the schedule property was left out from the acquisition proceedings it made many representations to the Government and then the Chief Minister of Karnataka passed an order directing the Revenue Commissioner to take immediate action to acquire the remaining land i.e. the schedule property for the benefit of the plaintiff and accordingly the Government of Karnataka approved the acquisition of additional lands to the extent of 45 acres and 33-1/4 guntas as per the order No. 29.AQB-91 dated 18-5-1993 directed the Special Deputy Commissioner to acquire the said lands for the benefit of the plaintiff and these lands includes the suit schedule property also. Pursuant to this order the Special Deputy Commissioner made correspondence with the plaintiff society.

        [20] The plaint discloses the averments that the defendants delivered the vacant possession of the schedule property to the plaintiff to enable it to develop the layout and accordingly the plaintiff developed the entire lands acquired and un acquired lands by providing drainage, underground sewerage facilities, sewerage pipelines, water supply and formed the roads. Thus the layout has been formed. This layout is situated within the limits of Yalahanka Municipality and thus the schedule lands lost the character of agricultural lands. It is very clearly stated that the plaintiff society has taken over the possession of the schedule property and that the defendant cannot claim any possession. This being the position, the defendants set up their sisters and children to file the suit in O.S.4358/2002. against the plaintiff for permanent Injunction and they sought for Temporary injunction. But the plaintiff here in who is defendant in hot case placed all the materials before the court and opposed the grant of temporary injunction and thus the temporary injunction was denied in this suit. It is also stated that challenging this order on appeal MFA 1283/2005 was also filed. Further the allegations is that the defendants and their children are trying to meddle with the possession and enjoyment of the plaintiff over the schedule property and this has resulted in seeking the relief of permanent injunction also besides the specific performance of the contract.

        [21] For proper appreciation, it is also necessary to see the averments made in the agreement upon which the plaintiff has based this suit, for it is the suit document. The agreement dated 21-1-1984 consists a recital that the defendants have agreed for selling the schedule property to the plaintiff and that schedule property was handed over to the possession of the plaintiff on that day itself. The agreement dated 26-4-1990 is to the effect that the defendants have agreed for schedule property being acquired for the benefit of the plaintiff society and in this agreement there is a clear pedal that the earlier agreement has not stood cancelled and this agreement as well as General Power of Attorney dated 26-4-1990 will never be cancelled.

        [22] Now if the averments made in the plaint are considered, it becomes clear that the plaintiff has filed this suit seeking specific performance agreements of sale in respect of  1 acre 30 guntas of land in Sy.No.104/3-B of Allalasandra Village Yalahanka Hobli, Bangalore North Taluk. The averments in the plaint are so clear that the plaintiff society entered into an agreement with the defendants for purchasing this land. The first agreement is dated 20-1-1984 and again one more agreement came into being on 26-4-1990. It is stated that the schedule land has lost the character of agricultural land and that the plaintiff taken over the possession of the defendants, a layout has been formed and that this layout has now been included within the limits of Yalahanka Municipality. Now it is to be seen whether the above averments are sufficient enough to reject the plaint.

        [23] At his juncture, I feel it proper to refer to some of the decisions upon which the learned counsel for 5th defendant and the plaint of have relied upon.

        [24] In the case of STATE OF MADHYA PRADESH V/S. BOARD OF REVENUE, GWALIOR AND OTHERS (AIR 1983 MP 111). it is held that the transfer of agricultural holdings without taking permission from the collector is invalid and void.

        [25]  In the case of STATE OF KARNATAKA AND OTHERS V/S. SHANKARA TEXTILES MILLS LIMITED (AIR 1995 SC PAGE 234), the Hon'ble Supreme Court has held that permission under section 95 of Karnataka Land Reforms Act is imminent for putting the agricultural lands to non-agricultural purposes.

        [26] The Supreme Court, in another case MURLIDHAR DAYADEO KESEKAR V/S. VISHWANATH PANDU BARDU AND ANOTHER (1995 AIR SCW PAGE 2224) has held that the refusal of permission to transfer the agricultural land by tribal to non tribal people is justifiable as such refusal was in consonance with Directive Principles of State Policy as contained in the Constitution of India.

        [27] It is true that the Land Reforms Act prohibits the purchase of agricultural lands by non agriculturists, company, Education Institutions and co-operative societies and other than the co-operatives form. This prohibition is contained in section 79(B) of Karnataka Land Reforms Act.

        [28] Thus if the principles laid down in the above decisions and also section 79(B) of Land Reforms Act are considered, it can be said that the co-operative society like the plaintiff society is prohibited  from holding agricultural lands.

        [29] But the plaintiff counsel has relied upon the judgment of the Hon'ble High Court of Karnataka. In the case of SHANKARA TEXTILE MILLS LIMITED DAVANAGERE V/S. STATE OF KARNATAKA AND OTHERS reported in 1993 (2) KLJ PAGE 67, in it is held that the land though described in the Revenue Records as Agricultural lands, but lands have actually ceased to be used for agricultural purposes, section 79(B) of Karnataka Land Reforms Act is not attracted. The learned counsel for plaintiff has relied upon the decision to garner support for his argument that the prohibition is not applicable as the schedule land has ceased to be an agricultural land. It is to be stated that this judgment of the Hon'ble High Court was taken in an appeal before the Supreme Court and that the Supreme Court has set aside this judgment. This judgment of Supreme Court has already been referred to above i.e. in AIR 1985 SC page 234. Be this concept as it may; the learned counsel for the plaintiff has placed reliance on another judgment of the Hon'ble High Court of Karnataka in the case of MRS.SUSHILA A.DASS V/S. MRS. MARY BOLGER. reported in ILR 1988 KARNATAKA PAGE 1413, the Hon'ble High Court has held that there is no bar for the Civil Court to grant specific performance of contract of sale of agricultural  land, the amendment to section 80(b)of Land Reforms Act does not take away the jurisdiction of Civil Court but it enlarges the jurisdiction of authorities, violation of section 79(A) Land Reforms Act does not render agreement to sell void and unenforceable. Therefore because of the principles laid down in this case though there is a clear bar in the Land Reforms Act for the co-operative society to acquire agricultural land but still it is enforceable.

        [30] The plaint averments discloses the fact that the schedule has been situated within the limits of Yalahanka CMC. The learned counsel for defendant seriously disputes this fact and refers to a report submitted to the Government Whether the lands are really agricultural lands or have lost the character of agricultural, is the matter which can be decided after the trial. In fact the learned counsel for defendant does not say that the agricultural operations are being carried on in the schedule land. His line of argument is that the schedule land is still shown to be an agricultural in the Revenue Records. In this context, I would like to refer to a judgment of the Supreme Court reported in ILR 2005 Karnataka page 60. Though this judgment has been given while interpreting section 7 of the Karnataka Court Fees Act, but the Hon'ble Supreme Court has clearly held that the lands though shown as agricultural lands in the Revenue records but actually  fixed for non-agricultural purpose and if they are included in the corporation limits the Land Revenue Act would cease to be applicable to such land. Therefore, in the light of the decision of the Hon'ble Supreme Court there remains a fact to be investigated into whether the schedule property is still agricultural land or has lost the character of agricultural land and been included in the Municipal limits. There is a clear averment in the plaint that the schedule land has been included within Yalahanka CMC. For these reasons the plaintiff cannot be non-suited. 

        [31] The learned counsel for the defendant in the course of his arguments submitted that in the agreement, there is no obligation on the part of the defendant to execute the sale deed and hence on that ground also the suit is not maintainable has placed reliance upon the judgment of the Hon'ble High Court of Karnataka in the case of Kendra Upadyaya Sangha represented in General Secretary Basavanagudi V/S. Smt. Muniyappa and others. In this judgment it is held that the suit is maintainable if the agreement cast any obligation on the part of the land owner to execute the sale deed If there is no term or condition in the agreement as to the obligation on the part of the land owner to execute the sale deed, the suit is not maintainable. He has further argued that the agreement in question came into existence only to enable the plaintiff to facilitate the acquisition proceedings and in specific terms the defendants have not agreed to sell the schedule property to the plaintiff. To appreciate this argument, I have gone through the agreement. Though there is no specific       in the regard, but however there is categorical recital he agreement dated 20-1-1984. What is recited in the agreement is extracted as below in para 2 of the agreement. it is stated that"                      Added to this, there are averments in the plaint that the defendants agreed to sell the property to the plaintiff. Whether the recital in the agreement can be interpreted to mean that the defendants actually did agree for selling the schedule property to the plaintiff or not can be deeded only after the trial and not at this stage. This burden is on the plaintiff to establish this fact, therefore this ground cannot be taken to reject the plaint. 

        [32] Another point upon which the defendant No.5 has sought for rejection of the plaint is that the suit is time barred. The arguments advanced by the defendant's counsel, is not acceptable. On going through  the agreement it because very that no specific time is mentioned therein. If specific time is fixed for the completion of the contract, the period of limitation has to be reckoned from the date of knowledge of denial of the contract. Intact the plaintiff's counsel argued that the suit was filed well within the time from the day when the denial came to be knowledge of the plaintiff. Even otherwise in the facts and circumstances of the case question of limitation appears to been mixed question of facts and law. Therefore the complaint cannot be rejected on this count. 

        [33]  The plaintiff has brought this suit not only seeking specific performance but also for degree of permanent injunction to restrain the defendants from interfering with its possession and enjoyment of the schedule property. In the agreement and the General Power of Attorney, there are clear recitals to the effect that the defendants handed over the position of the schedule property to the plaintiff. In the plaintiff. In the plaint also it is stated that the plaintiff is is possession and actually a Layout was formed and the sites were allotted to the members. The Plaintiff's counsel has relied upon many judgments and submitted that the possession of the plaintiff could be brought within the scope of section 53 (A) of the Transfer of property Act as the possession was handed over in part performance or not or the possession of the plaintiff could be held to be valid even though there is clear bar under the Land Reforms Act, are all the matters to be decided at a later stage and at this stage there are clear averments in the plaint that the plaintiff is in possession and that the defendants interfered with its possession. This is also a matter to be investigated into. Even if it is held that the arguments sale that the suit for specific performance is not maintainable in view of clear probe action and Reforms Act, but for the reason that the plaintiff has sought for a judgment and degree of permanent injunction also, it cannot be said that entire plaint can be rejected. Rejecting the plaint in part with respect to relief of specific performance and retaining the plaint with respect to relief of permanent injunction is something not permissible under the law.

        [34] Therefore from the above, discussions I come to the conclusion that the plaint averments if considered alone disclose the cause of action as well as the ground for maintainability of the suit. Hence, the application filed by defendant No.5 under Order 7 Rule 11 of Civil Procedure Code does not deserve to be granted.

    [35] In the light of the above discussion, I proceed to pass the following order.