BEFORE THE PRINCIPAL SENIOR CIVIL JUDGE,
BANGALORE RURAL DISTRICT, AT BENGALURU
OS NO. 1836/2022
BETWEEN
VENKATA KRISHNA REDDY …
PLAINTIFF
AND
P. MUNIYAPPA AND ORS. …
DEFENDANT
WRITTEN ARGUMENTS FILED BY PLAINTIFF ON IA NO. 2 FILED BY DEFENDANT
UNDER ORDER 7 RULE 11 OF THE CODE OF CIVIL PROCEDURE, 1908
A. MATERIAL FACTS
1. Suit for Specific Performance filed by Plaintiff on 20/08/2022 -
Directing Defendants to execute a registered deed of Easementary Right
of Way. (Prayer @ page 10 of the Plaint.)
2. Plaintiff purchased two pieces of land – Sy.No. 53/2 and Sy.No. 53/3.
Said Property is landlocked. Defendants who are purportedly absolute
owners of adjacent property, offered the Plaintiff an Easementary Right
of Way.
3. Plaintiff along with Defendant No. 1 to Defendant No. 10 entered into an
‘Agreement for Easementary Right of Way’ on 19/04/2018. (@ page
28 of the Plaint). Map accompanying said Agreement pictorially
representing the Schedule Property is @ page 39 of the Plaint.
4. Consideration payable by Plaintiff towards Easementary access and
consequent obligation of the Defendants towards building the road is
captured at Clause 2 and 3 of the said Agreement dated 19/04/2018. @
page 35 of the Plaint.
5. Defendants having failed to form the road, register the oral partition
and have breached the terms of the Agreement dated 19/04/2018.
Despite calling upon the Defendants to honour the terms of the
contract, defendants have failed to do so. Hence, above suit was filed.
B. ARGUMENTS ADVANCED BY COUNSEL FOR DEFENDANTS
6. That Clause 2(c) of the Agreement dated 19/04/2018 (@ page 35) – i.e.
registration of partition deed is an uncertain event.
7. Therefore, Agreement dated 19/04/2018 is a contingent contract in
terms of S.31 of the Contract Act and Transfer of Property Act. Hence,
present suit for specific performance is not maintainable.
C. ARGUMENTS ADVANCED BY COUNSEL FOR PLAINTIFF
8. Defendants have executed the present Agreement dated 19/04/2018
pursuant to an oral partition. Same is not denied by the Defendants;
no such averment is forthcoming in the Application/Affidavit for
rejection of Plaint.
9. Registration of Partition Deed is merely to reduce the oral partition into
writing as per clause (a) @ page 33 of the Plaint.
10. Easementary Right vested in the Plaintiff cannot be extinguished :
(i) Clause (d) @ page 33 of the Plaint – wherein it is provided that
even if entire Schedule Property will be alienated to third parties,
the Defendants ought to protect the Easementary right of the
Plaintiff.
(ii) Para 2 @ page 31 of the Plaint (last 2 lines) – wherein it says that
Defendant No. 7 to 10 have been made party to the said
Agreement as a matter of abundant caution, since registration of
partition is pending.
11. Construction of road, registration of partition deed are essential
covenants towards honouring the Agreement dated 19/04/2018.
12. By not completing the events as per Clause 3 – Time for Completion ( @
page 35), the Defendants have breached Agreement dated 19/04/2018.
13. Terms of the contract indicate that the easementary right must vest
with the Plaintiff, and the same cannot be detracted.
14. Citations in support :
a. Balwant Singh vs. Rajaram
1974 RLW 482, Page 10 Paragraph 7 -9
“…S.31 of the Contract Act says that a ‘contingent contract’ is a
contract to do or not do something, if some event collateral to such
contract does or does not happen…happening of such event is
beyond the control of the Vendor…”
b. Harbakhsh Singh Gill and Ors. Vs. Ram Rattan and Another.
1986 SCC Online P & H 561, Page 2-3 Paragraph 6
“…there is a distinction between a contract under which a present
obligation is created but the performance is postponed to a future
date and a contract under which there is no obligation at all and
obligation arises by reason only by reason of some condition being
complied with or some contingency occurring…” -
c. Rama (Dead) by Legal Representatives vs. R.Natarajan
(2022) 10 SCC 143, page 16, paragraph 15-17
“…Court cannot grant a relief of specific performance against a
person compelling him to enter into an agreement with a third
party…”
15. The registration of the Partition Deed is not an uncertain event, as the
same is within the control of the Defendants. All the Defendants are
privy to the Agreement dated 19/04/2018 and are bound by the terms
therein. Registration of the Partition Deed is an essential covenant to
the contract, and cannot be viewed as a collateral event beyond the
control of the parties.
16. Registration of the Easementary Deed ought to follow registration of the
partition deed in terms of Clause 2(c) of the Agreement dated
19/04/2018.
WHEREFORE, in light of the factual matrix and accompanying citations, the
application filed by the Defendants under O.7 Rule 11 of the Code of Civil
Procedure,1908 ought to be dismissed.
BANGALORE
DATE: A DVOCATE
FOR PLAINTIFF
Philappa………..Papamma (D6)
Muniyappa………..Gowramma Rajappa - D8
( D1) (D2) (D7)
D4 D9 D10
