Karnataka High Court
Gulzar Ahmed S/O Mukhtar Ahmed Saheb vs Mir Muzzafar Ali S/O Sadat Ali Ors on 4 December, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2024:KHC-K:9239
RSA No. 7446 of 2010
C/W RSA No. 7445 of 2010
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 7446 OF 2010 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 7445 OF 2010(DEC/INJ)
IN RSA.NO.7446/2010:
BETWEEN:
GULZAR AHMED S/O MUKHTAR AHMED SAHEB,
AGE: 45 YEARS, OCC: BUSINESS,
R/O. H.NO.11-1814/23, VIDYANAGAR COLONY,
BEHIND MADINA MASJID, M.S.K.MILLS ROAD,
GULBARGA-585102.
Digitally signed ...APPELLANT
by SACHIN (BY SRI SACHIN M. MAHAJAN, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. MIR MUZZAFAR ALI S/O SADAT ALI,
AGE: 72 YEARS, OCC: BUSINESS,
2. MIR SHAKEEL @ SHAMU S/O MIR MUZAFFAR ALI
AGE: 44 YEARS, OCC: BUSINESS,
3. MIR JUNED @ BOBY S/O MIR KHALIFATUR RAHMAN,
AGE: 34 YEARS, OCC: BUSINESS,
4. MIR IMRAN ALI S/O MIR KHALIFATUR RAHMAN,
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NC: 2024:KHC-K:9239
RSA No. 7446 of 2010
C/W RSA No. 7445 of 2010
AGE: 32 YEARS, OCC: BUSINESS,
ALL R/O. VIDYANAGAR COLONY,
BEHIND MADINA MASJID, M.S.K. MILLS ROAD,
GULBARGA-585102.
...RESPONDENTS
(BY SRI MOHD. KHADERKHAN, ADVOCATE FOR R1;
R2 TO R4 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 30.09.2010 PASSED IN
R.A.NO.51/2008 BY LEARNED IV ADDITIONAL DISTRICT
JUDGE, GULBARGA AND RESTORE THE JUDGMENT AND
DECREE DATED 07.11.2007 PASSED IN O.S.NO.353/2000 BY
LEARNED PRINCIPAL CIVIL JUDGE(SR.DN) GULBARGA.
IN RSA.NO. 7445/2010:
BETWEEN:
GULZAR AHMED S/O MUKHTAR AHMED SAHEB,
AFE: 42 YEARS, OCC: BUSINESS,
R/O. H.NO.11-1814/23, VIDYANAGAR COLONY,
BEHIND MADINA MASJID, M.S.K.MILLS ROAD,
GULBARGA-585102.
...APPELLANT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
1. MIR MUZZAFAR ALI S/O SADAT ALI,
AGE: 72 YEARS, OCC: BUSINESS,
R/O. H.NO.11-1814, VIDYANAGAR COLONY,
M.S.K.MILLS ROAD, GULBARGA.
2. NISSAR AHMED S/O MOHD. HUSSAIN SAHAB,
SINCE DECEASED BY HIS LRS,
2A) GAZI AHMED S/O NISSAR AHMED,
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NC: 2024:KHC-K:9239
RSA No. 7446 of 2010
C/W RSA No. 7445 of 2010
AGE: 65 YEARS, OCC: SERVICE,
2B) MUQTHAR AHMED S/O NISSAR AHMED,
AGE: 32 YEARS, OCC: SERVICE,
2C) NASEER AHMED S/O NISSAR AHMED
AGE: 30 YEARS, OCC: SERVICE,
2D) ARIF AHMED S/O NISSAR AHMED
AGE: 28 YEARS, OCC: SERVICE,
2E) MAHAJABEEN D/O NISSAR AHMED
AGE: 26 YEARS, OCC: SERVICE,
2F) PARVEEN D/O NISSAR AHMED,
AGE: 24 YEARS OCC: SERVICE,
2G) NIKHAT NASREEN D/O NISSAR AHMED,
AGE: 22 YEARS, OCC: SERVICE,
ALL R/O. H.NO.1-98 & 99,
KILLE GALLI FORT ROAD, BIDAR-584104.
...RESPONDENTS
(BY SRI MOHD. KHADERKHAN, ADVOCATE FOR R1;
R2(A), R2(C) ARE SERVED
V/O DTD. 11.12.2023 NOTICE TO R2(B), R2(D) AND R2(G)
IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 30.09.2010 PASSED IN
R.A.NO.28/2008 BY LEARNED IV ADDITIONAL DISTRICT
JUDGE, GULBARGA AND RESTORE THE JUDGMENT AND
DECREE DATED 07.11.2007 PASSED IN O.S.NO.21/2001 BY
LEARNED PRINCIPAL CIVIL JUDGE(SR.DN), GULBARGA.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
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NC: 2024:KHC-K:9239
RSA No. 7446 of 2010
C/W RSA No. 7445 of 2010
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) RSA No.7445/2010 is filed by the defendant No.2 aggrieved by the Judgment and order dated 30.09.2010 passed in R.A.No.28/2008 on the file of IV Additional District Judge, Gulbarga (First Appellate Court) by which the First Appellate Court while allowing the appeal filed by the plaintiff set aside the Judgment and decree dated 07.11.2007 passed in O.S.No.21/2001 on the file of Principal Civil Judge (Senior Division), Gulbarga (trial Court) and consequently decreed the suit declaring that the sale deed executed by defendant No.1 in favour of the defendant No.2 was not binding on the plaintiff. Further directed the legal representatives of defendant No.1 to execute and register the deed of sale in favour of the plaintiff by receiving balance sale consideration of Rs.10,000/- within two months.
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010
2. RSA No.7446/2010 is filed by the plaintiff being aggrieved by the Judgment and order dated 30.09.2010 passed in R.A.No.51/2008 on the file of IV Additional District Judge at Gulbarga (First Appellate Court) by which while allowing the said appeal filed by the defendants set aside the Judgment and decree dated 07.11.2007 passed in O.S.No.353/2000 on the file of Principal Civil Judge, (Senior Division), Gulbarga and consequently dismissed the said suit in O.S.No.353/2000.
3. Since the parties in both the suits, subject matter and the issues arising thereof are one and the same, these appeals are taken up for analogous hearing and disposal.
4. Brief facts of the case are that:
One Nissar Ahmed (defendant No.1 in O.S.No.21/2001) was the owner of property bearing plot No.31 measuring 30 feet x 30 feet situated at Vidyanagar, behind Madina Masjid, Gulbarga.
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 Gulzar Ahmed plaintiff in O.S.No.353/2000 claiming to have purchased the said property from Nissar Ahmed under registered deed of sale dated 25.11.1993 for valuable consideration, filed the said suit against one Mir Muzzafar Ali and his son and his grand children for the relief of declaration and injunction. It is contended that after purchase of the property as above his name was entered into in the corporation records and he has also obtained valid construction permission and approved plan for construction of the house on the said property. But the defendants in the said suit without having any right, title and possession over the property were interfering in his possession and enjoyment and caused obstruction in his construction process. He had also given a complaint to the jurisdictional police. Since no action was taken he was constrained to file said suit for declaration and injunction.
5. Defendants 1 to 4 filed written statement contending that Nissar Ahmed the owner of suit property had entered into agreement of sale with defendant No.1- -7- NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 Mir Muzzafar Ali on 12.07.1993 for valuable consideration of Rs.70,000/- and amount of Rs.5,000/- was paid to said Nissar Ahmed towards part payment of sale consideration and he has delivered possession of the suit schedule property to the defendant No.1 in part performance of the agreement. That the defendants have been utilizing the suit property as access to their property situated adjacent to suit property. Since defendants have been in possession of the suit property, the claim of the plaintiff of he being in possession was false. Hence sought for dismissal of the suit.
6. The said Mir Muzaffar Ali (defendant No.1 in O.S.No.353/2000) filed suit in O.S.No.21/2001 against said Nissar Ahmed and Gulzar Ahmed (plaintiff in O.S.No.353/2000) seeking relief of specific performance of the contract and for relief of injunction repeating the averments made in the written statement to the suit in O.S.No.353/2000.
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010
7. Considering the pleadings of the parties the trial Court framed following issues:
In O.S.No.353/2000:
1. Whether the plaintiff proves that he is the owner in possession of the suit property having been purchased under the registered sale deed dated 25.11.93?
2. Whether the plaintiff further proves that in the second week of November, 2000, and also on the subsequent dates, the defendants were tried to interfere into his lawful possession and enjoyment over the suit property by way of denying his title?
3. Whether the defendant No.1 proves that Nisar Ahmed having alienable title in the suit property, agreed to sell the same at his favour on 12.07.1993 for the consideration of Rs.70,000/- in part performance of the contract on receipt of part consideration of Rs.5,000/-, agreeing to receive the remaining consideration at the time of the execution of the registered deed, he has delivered the possession of the suit property?
4. Whether the defendant No.1 proves that he has performed his part of contract, as such, his possession is required to be protected under Section 53(A) of T.P.Act?
5. Whether the defendant No.1 proves that the instant suit is false, frivolous, vexatious, as such, he is entitled for the costs and compensatory costs of Rs.25,000/-?
6. Whether the plaintiff proves that he is entitled for the relief sought?
7. What decree or order?-9-
NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 In O.S.No.21/2001:
1. Whether the plaintiff proves that the defendant No.1 agreed to sell the site property for Rs.70,000/- and defendant executed agreement for sale on 12.07.93 after receiving Rs.5,000/- and delivered the possession?
2. Whether the plaintiff proves that the defendant No.1 before Notary on 25.03.1995 admitted the execution of agreement for sale and further defendant No.1 agreed to execute the sale deed after close of E.P.No.29/92?
3. Whether the plaintiff further proves that the defendant No.1 received Rs.55,000/- from him on 05.05.2000 and executed the receipt for the same.
4. Whether the plaintiff proves that after receipt of suit summons in O.S.No.353/00, he came to know defendant No.1 has executed sale deed in respect of suit site in favour of defendant No.2?
5. Whether the plaintiff proves that the defendant No.2 had knowledge of suit agreement of sale and same is binding on him?
6. Whether the plaintiff is ever ready and willing to perform his part of the contract and ready to pay balance amount of Rs.10,000/-?
7. Whether the defendant No.1 proves that legally he has sold suit site to defendant No.2 for valuable consideration by registered sale deed on 25.11.1993 and delivered the possession to defendant No.2?
8. Whether the defendant No.1 proves that the plaintiff has created false and concocted documents knowing fully that O.S.No.71/81 before Munsiff, Gulbarga and E.P.No.29/92 were pending between defendant No.1 and the sons of the plaintiff?
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010
9. Whether the defendant No.1 is the bonafide purchaser in possession of plot No.31 measuring 30x30' situated behind Madina Masjid boundary shown in para 13(1) of W.S. purchased from defendant No.2 under the registered sale deed dated 25.11.1993?
10. Whether the defendant No.2 proves that the suit of the plaintiff is barred by limitation?
11. Whether the plaintiff is entitled for the relief of Specific Performance, alternatively for refund of Rs.60,000/-, further the relief of permanent injunction?
12. What decree or order?"
8. Gulzar Ahmed, plaintiff in O.S.No.353/2000 examined himself as PW1 and two additional witnesses as PW2 and PW3 and exhibited 19 documents marked as Ex.P1 to P19. Mir Muzaffar Ali examined himself as DW1 and two additional witnesses as DW2 and DW3 and exhibited six documents marked as Ex.D1 to D6. On appreciation of evidence the trial court answered issue Nos.1, 2, 4 and 6 in the affirmative and issue Nos.3 and 5 in the negative in O.S.No.353/2000 and answered issue Nos.1 to 4, 7, 8, 9 and 11 in the negative and issue No.10 in the affirmative in O.S.No.21/2001. Consequently
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 decreed the suit in O.S.No.353/2000 and dismissed the suit in O.S.No.21/2001.
9. Being aggrieved by decreeing of the suit in O.S.No.353/2000 Muzzafar Ali filed R.A.No.51/2008 and being aggrieved by dismissal of his suit in O.S.No.21/2001 for specific performance he filed regular appeal in R.A.No.28/2008.
10. By the impugned judgment and order the first appellate Court allowed the aforesaid regular appeals dismissing the suit in O.S.No.353/2000 and decreeing the suit in O.S.No.21/2001. Aggrieved by the same Gulzar Ahmed (plaintiff in O.S.No.353/2000 and defendant in O.S.No.21/2001) is before this Court in the present appeals.
11. This Court by order dated 03.11.2010 framed following questions of law in both the appeals:
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 In RSA No.7445/2010:
(1) "Whether the Appellate Court was justified in reversing the Judgment and Decree passed by the learned Trial Judge without meeting the reasoning?
(2) Whether the Lower Appellate Court was justified in holding that the suit is in time, when the agreement to sell was executed on 12.07.1993 and the suit having been filed in the year 2001 when the time was the essence of the contract?
In RSA No.7446/2010:
(1) Whether the Lower Appellate Court was justified in reversing the Judgment and Decree passed by the learned Trial Judge without meeting the reasoning?
(2) Whether the Judgment and decree of the Appellate Court is vitiated inasmuch as the vendor of the appellant is not examined?"
12. Sri.Sachin M.Mahajan, learned counsel appearing for the appellants reiterating the grounds urged in the memorandum of appeals drawing attention of this Court to the reasoning assigned by the First Appellate Court submitted that;
(a) the very approach adopted by the first Appellate Court is legally erroneous and unsustainable. In that he
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 submits that the first Appellate Court has opined that a subsequent purchaser as that of the appellant herein has no locus to raise any defence and dispute with regard to the agreement that had been entered into by the vendor in favor of the purchaser. He submits that the appellant being bonafide purchaser of the property for a value by stepping into the shoes of vendor is entitled to raise all possible defence which was otherwise available to the vendor.
(b) He further submits in any case defendant Mir Muzzafar Ali, who filed written statement in O.S.No.353/2000 as well as had filed suit in O.S.No.21/2001, had contended that he had entered into agreement of sale with the original vendor on 12.07.1993. As such, he ought to have independently discharged his burden of he having entered into agreement which he has failed. He has also failed to prove payment of Rs.5,000/- and further payment of Rs.55,000/- as claimed. That the trial Court had dismissed the suit for specific performance primarily for he not establishing and proving the
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 agreement allegedly entered into between him and the original vendor.
(c) He further submits that admittedly there was a dispute that was pending adjudication between original vendor Nissar Ahmed and the sons of Mir Muzaffar Ali in O.S.No.71/1981 which was filed for seeking recovery of possession of an encroached portion of the suit property and the said suit was decreed in favor of Nissar Ahmed and he had filed execution petition No.29/1992. The said execution petition of 1992 admittedly came to an end on 07.11.1998. Thus, he submits under these hostile circumstances the claim of Muzaffar Ali being the father of defendants in said suit in O.S.No.71/1981, entering into agreement with Nissar Ahmed who was plaintiff in O.S.No.71/1981 was unacceptable. Thus, he submits the trial court taking into consideration all these aspects of the matter had dismissed the suit in O.S.No.21/2001 and consequently decreed the suit of the plaintiff.
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010
(d) That the first appellate Court without assigning any reason whatsoever on these elaborate findings and conclusion arrived at by the trial court has on an erroneous premise of appellant herein being the purchaser of the property, not having right or authority to dispute the agreement has allowed the appeals setting aside the judgment and decree passed by the trial Court.
(e) He relies upon the judgment of the Apex Court in the case of Ram Awadh (dead) by Lrs Vs Achhaibar Dubey reported in 2000 AIR SCW 442 and judgment of the Apex Court in the case of Kadupugotla Varalakshmi vs Vudagiri Venkata Rao and others reported in 2021 SCC Online SC 365. Referring to said judgments he submits that law is well settled, in that a subsequent purchaser of the property is entitled to take all the defence that would be available to the vendor against the person who is claiming to have entered into agreement and seeking relief of specific performance.
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 Thus, he submits judgment and order of the first appellate Court being contrary to settled position of law is unsustainable. Hence seeks for allowing of the appeals.
13. Per contra Sri.Mohammed KhaderKhan, learned counsel appearing for the respondents justifying the judgment and order passed by the first appellant Court submits that;
(a) the plaintiff-appellant being the subsequent purchaser ought to have discharged his burden of he being a bonafide purchaser for a value. He submits that in both the cases the original vendor, namely Nissar Ahmed has neither appeared nor filed any written statement. He submits it was for Nissar Ahmad to have either denied or confirmed the transaction which he had entered into between the appellant and plaintiff as well as the defendant.
(b) He submits that the agreement which Nissar Ahmed original vendor entered into with the defendant
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 was of the year 12.07.1993 and the sale deed was executed on 25.11.1993, which is subsequent to the said agreement. Therefore, he submits that subsequent sale deed was not binding on the defendant which has been rightly taken note and recognized by the first appellate Court.
(c) He further submits that the said agreement though entered into on 12.07.1993, the deed of sale was not executed in view of pendency of the execution proceedings in Ex.P.No.29/1992 and the original vendor kept on postponing the execution of sale deed on the pretext of pendency of the matter and in the meanwhile he executed the deed of sale in favor of appellant-plaintiff which is rightly held by the first appellate Court not binding on the defendant.
(d) Adverting to the judgments relied upon by the counsel for the appellants, he submits that the said judgments are distinguishable in that it is only to the extent of plea of readiness and willingness that a
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 subsequent purchaser can step into the shoes of the vendor and not in respect of questioning the very execution of agreement. Thus, he submits said judgments are of no avail. Hence seeks for dismissal of the appeals.
14. Heard and perused the records.
15. Admitted facts of the matter are that the suit schedule property originally belonged to Nissar Ahmad defendant in O.S.No.21 of 2001. It is also admitted fact that said Nissar Ahmed has executed deed of sale dated 25.11.1993 in favor of appellant-plaintiff. Appellant- plaintiff based on the said deed of sale has obtained revenue entries and also obtained a plan sanctioned for the purpose of construction of the house.
16. No doubt the said Nissar Ahmed has neither filed written statement nor has entered into the witness box. It is settled law that a person seeking relief of specific performance is required to discharge the burden of proving the execution of agreement. In the instant case
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 except examining himself Mir Muzzafar Ali had not examined anyone with regard to execution of the agreement not even witnesses whose names appeared on the said agreement. Learned counsel for the appellant- plaintiff brought to the attention of this Court the deposition of Muzaffar Ali recorded on 8.3.2007 found at paragraph 31 of page 15 wherein he has stated as under:
¤¦-2 gÀAvÉ EgÀĪÀ gÀ²Ã¢ §gÉzÀÄPÉƼÀĪ î À ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ºÁdjgÀ°®è C£ÀÄߪÀzÀÄ ¸Àj EzÉ ¸ÁQë ¸Àé ¥ÉÃæ gÀ£¬ É ÄAzÀ ºÉüÀÄvÁÛgÉ D ¸ÀªÀÄAiÀÄzÀ°è £À£Àß ªÀÄUÀ ºÁdjzÀÄÝ CªÀgÃÉ ºÀt ¥ÁªÀw ªÀiÁrzÁÝgÉ ªÀÄvÀÄÛ gÀ²Ã¢AiÀÄ£ÀÄß §gɹPÉÆArzÁÝg.É He also points out to the deposition at paragraph 36 of page 18 wherein the said witness has stated as under:
PÀ¼z É À 30 ªÀµÀðUÀ½AzÀ ¤¸ÁìgÀ CºÀäzÀ ªÀÄvÀÄÛ £ÀªÀÄä ªÀÄzÀå ªÉʵÀåªÀÄå ¨É¼¢ É vÀÄÛ C£ÀÄߪÀzÀÄ ¸Àj EzÉ. D jÃw ¤¸ÁìgÀ CºÀäz ªÀÄvÀÄÛ À £À£Àß ªÀÄzÀå ªÉʪÀÄ£À¸ÀÄì E¢zÀj Ý AzÀ CªÀgÀÄ zÁªÁ D¹Û £À£U À É RjâUÉ PÉÆqÀĪÀ ¥Àª æ ÉÄÃAiÉÄà E®è ªÀÄvÀÄÛ CªÀgÀÄ AiÀiÁªÀÅzÉà Rjâ PÀgÁgÀÄ ¥ÀvÀæ §gÉzÀÄPÉÆnÖ®è C£ÀÄߪÀzÀÄ ¸Àj C®è. UÀįÁÓgÀ CºÀäzÀ ªÀÄvÀÄÛ ¤¸ÁìgÀ CºÀäzÀ J£ÀÄߪÀªg À À «gÀÄzÀÞ ¸s ÁzÀåªÁzÀgÉ D¹Û ºÉÆqÀÄPÉƼÀĪ î À GzÉÃÝ ±À¢AzÀ ¸ÀļÀÄî zÁªÉ ºÀÆr ¸ÀzÀåzÀ°è ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwzÉÃÝ £É C£ÀÄߪÀzÀÄ ¸Àj C®è.
17. Thus referring to the aforesaid categoric admission by the said Muzzafar Ali learned counsel for the appellants submits that it is incomprehensible that when Nissar Ahmed was fiercely litigating the matter with the said persons, he could have entered into agreement with
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 the very same persons. He submits that the entire theory of Nissar Ahmad entering into agreement with said Muzaffar Ali and his son who are defendants in O.S.No.71/1981, paying the sale consideration and obtaining the receipt under Exhibit P3 is a replete of falsehood.
18. This Court finds substance in the aforesaid submissions. Added to it the trial Court has taken note of this attendant and incidental circumstances regarding the hostility that existed between the parties to come to the conclusion that the said Muzaffar Ali has failed to prove the execution of the agreement. The first Appellate Court has not adverted to this aspect of the matter in the impugned judgment and order. No reasons of any nature whatsoever assigned by the first Appellate Court to accept the execution of the purported agreement dated 12.07.1993.
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010
19. In that view of the matter the substantial question of law No.1 raised in both the appeals are answered accordingly, in that the first Appellate Court is not justified in reversing the judgment and decree passed by the trial Court without assigning any reasons.
20. Since Muzaffar Ali, the plaintiff in O.S.No.21/2001 has failed to prove and establish the execution of agreement the consequent question of readiness and willingness and examination of the same would not arise. Nonetheless, the first Appellate Court has held that it was not open for the appellant-defendant to have questioned the same which in the considered view of this Court was unwarranted. There is no explanation provided by the defendant-Muzzafar Ali for not filing the suit or taking any action seeking specific performance of the agreement until the appellant-plaintiff filed the suit for declaration.
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010
21. Another aspect of the matter is that agreement Ex.P.1/Ex.D1 is though dated 12.07.1993 appear to have been made on a stamp paper which is dated 15.01.1993 and purportedly notarized on 25.03.1995. The said agreement itself refers to the pending dispute between Nisar Ahmad and the very same purchaser the Musafar Ali and it purports that said Nisar Ahmed had agreed to execute the sale deed during the first week of October 1993 after the closure of the dispute between the very same purchaser and his sons.
22. It is this very reason which is taken shelter by the plaintiff - Muzaffar Ali for the delay in filing the suit in 2001.
23. Even if that is to be considered as true, the execution petition in Ex.P.No.29/1992 was admittedly closed on 07.11.1998 and the suit has been filed in the year 2001, that too after filing of suit by the appellant/plaintiff. No evidence of any nature is produced regarding plaintiff Muzaffer Ali seeking enforcement of said
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 agreement. As noted above it is incomprehensible that Nissar Ahmed continue to fight the litigation against Muzaffer Ali on one hand and also kept on assuring him that he would execute the deed of sale after closure of Ex.P.No.29/1992 on the other hand.
24. A holistic reading of the entire facts and circumstances of the matter would lead to a conclusion that the First Appellate Court erred in reversing the judgment of the Trial Court that too on the reasons noted hereinabove. The substantial questions of law are answered accordingly.
Hence, the following:
ORDER Appeals are allowed.
The judgment and order dated 30.09.2010 passed in R.A.No.28/2008 and R.A.No.51/2008 by the Court of the IV Additional District Judge, are set aside.
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NC: 2024:KHC-K:9239 RSA No. 7446 of 2010 C/W RSA No. 7445 of 2010 The judgment and decree dated 07.11.2007 passed in O.S.No.353/2000 and O.S.No.21/2001 by the Court of the Principal Civil Judge (Sr.Dn.), Gulbarga is confirmed.
Sd/-
(M.G.S.KAMAL) JUDGE SBN/SN List No.: 1 Sl No.: 32 CT:PK