Karnataka High Court
Sri A Basanna S/O Late Sri Alemani Kencha ... vs Sri Mallikarjunappa on 19 July, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 19TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR.JUSTICE AJIT J.GUNJAL
R.S.A. NO.1655/2007 (SP)
BETWEEN:
1. Sri. A. Basanna,
S/o. late Sri. Alemani Kencha Lingappa,
Since deceased by his L.Rs.,
a) Smt. Gangamma,
W/o. late Sri. A. Basanna,
Major,
b) Smt. Karibasamma,
W/o. Sri. Gangappa,
D/o. late Sri. Basanna,
Major,
c) Smt. Mahadevamma,
W/o. Sri. Hanumanthappa,
D/o. late Sri. Basanna,
Major,
All are r/o. Bandina Kuruhatti,
Chitradurga District 583 251.
d) Smt. Vasanthamma,
W/o. Sri. A. Bheemappa,
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Major,
D/o. late Sri. Basanna,
R/o. Mayakonda,
Davanagere District 577 001.
e) Pavathis
D/o. late Sri. Basanna
f) Sri. Nagaraja A,
S/o. late Sri. A. Basanna,
g) Sri. A. Devendrappa,
S/o. late Sri. A. Basanna,
h) Sri. A. Kenchalingappa,
S/o. late Sri. A. Basanna,
i) Sri. A. Kamalakara,
S/o. late Sri. A. Basanna,
Appellants 1(e) to (i) all are
Majors, agriculturists,
And r/a. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 101. ...APPELLANTS
(By Sri. S.S. Yadrami, Adv.)
AND:
1. Sri. C. Mallikarjunappa,
S/o. Sri. Sanna Veeranna,
Major, Agriculturist,
R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
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2. Smt. Kariyamma,
W/o. late Sri. Parameshwarappa,
Major, Agriculturist,
R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
3. Sri. Kenchappa,
S/o. Sri. Madivalara Ramanna ,
Dead by his L.Rs.,
a) Sri. Thippeswamy,
S/o. Sri. Kenchappa,
Major, Agriculturist,
R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
b) Sri. Basappa,
S/o. Sri. Kenchappa,
Major,
R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
c) Sri. Dodda Ramappa,
S/o. Sri. Kenchappa,
Major,
R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
d) Sri. Sanna Ramappa,
S/o. Sri. Kenchappa,
Major,
R/o. Thayakanahalli,
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Kudligi Taluk,
Bellary District 583 101.
4. Sri. Anaburu Goranna,
S/o. Sri. Kenchalingappa,
Major,
R/o. Thayakanahalli
Kudligi Taluk
Bellary District 583 218
5. Sri. Thammajjanavara Gurappa
S/o. Sri. Tippanna
Major, Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
6. Sri. Kare Ramajjanavara Ramappa,
Dead by his L.Rs.,
a) Sri. Ucchengeppa,
S/o. late Sri. Kare Ramajjanavara,
Ramappa, Major, Agriculturist,
R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
b) Smt. Siddamma,
W/o. late Sri. Kare Ramajjanavara,
Ramappa, Major, Agriculturist,
R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
7. Smt. Hosuramma,
W/o. Late Sri. Bharmappa,
Dead by his L.Rs.,
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a) Sri. Kenchappa @ Sri. Gadibuddi,
S/o. Sri. Bharmappa,
Major,
R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
b) Sri. Kenchappa @ Sri. Mookanna,
S/o. Sri. Bharmappa,
Major, R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
8. Sri. Malagi Ramappa,
S/o. Sri. Hosurappa,
Major, R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218.
9. Sri. Machandrappa,
S/o. Sri. Bhadramma,
Major, R/o. Thayakanahalli,
Kudligi Taluk,
Bellary District 583 218. ... RESPONDENTS
[By Sri. Shivaraj P. Mudhol, Adv.
for R-1 - R-3 (a & b), R-4, R-5,
R-6(a), R-7(a), R-7(b), R-8 and R-9]
....
This R.S.A. is filed under Section 100 of CPC against
the Judgment and Decree dated 21.04.2007 passed in
R.A.No.178/2002 on the file of the Civil Judge (Sr.Dn.),
Kudligi, dismissing the appeal and confirming the
judgment and decree dated 6.9.2000 passed in
O.S.No.12/95 on the file of the Civil Judge (Jr.Dn.),
Kudligi.
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This R.S.A. coming on for Admission, this day, the
Court delivered the following:
JUDGMENT
Plaintiff is in appeal. He is questioning the judgment and decree passed by the learned Trial Judge partly decreeing the suit and directing refund of the amount, which was paid under the suit agreement. The said judgment and decree was questioned by the plaintiff by way of an appeal and the Appellate Court has dismissed the appeal. As against the said concurrent findings the plaintiff is before this Court.
2. I have heard Mr.S.S.Yadrami, learned counsel appearing for the plaintiff and Mr.Shivaraj P.Mudhol, learned counsel appearing for the defendants.
3. The facts in brief are that the 1st defendant executed an agreement to sell on 16.08.1995 and agreed to sell the suit property for a valuable consideration of Rs.30,000/-. It is his case that pursuant to the said :7: agreement, the plaintiff has been put in possession and defendant has received the entire sale consideration. For no apparent reason, the defendant postponed the execution of the sale deed. The plaintiff pleaded that he was always ready and willing to perform his part of the contract. Since the defendant refused to execute the sale deed, the suit is filed.
4. Defendant No.1 entered appearance, denied that he has executed the agreement in favour of the plaintiff and has received a sale consideration of Rs.30,000/-. He also denied that the plaintiff was ready and willing to perform his part of the contract.
5. The alternate plea taken by the defendant is that he had borrowed a sum of Rs.10,000/- from the plaintiff and as collateral security, the said document was executed. Hence, it cannot be said that defendant No.1 agreed to sell the suit schedule property. On the basis of :8: these pleadings the learned Trial Judge has framed the issues.
6. During the course of trial, both the plaintiffs as well as defendants have let in evidence both oral and documentary. The learned Trial Judge has recorded a finding that the plaintiff has proved that the defendant No.1 agreed to sell the suit schedule property for a sum of Rs.30,000/- by executing the agreement to sell, but however has returned a finding that the plaintiff was not ready and willing to perform his part of the contract. Three more additional issues were framed inasmuch as the 1st defendant had sold a portion of the property in favour of defendants 2 to 10.
7. Insofar as the additional issues are concerned, the learned Trial Judge has recorded a finding that defendants 2 to 10 are the bonafide purchasers. Thus partly decreed the suit inasmuch as directed for refund of the earnest money with interest at the rate of 12%. The Appellate :9: Court, on re-appreciation of evidence, has confirmed the same.
8. I am of the view that grant of a decree for specific performance is always regulated by Section 20 of the Specific Relief Act. The jurisdiction of the Court to grant a decree for specific performance is discretionary and the Court is not bound to grant such relief because it is lawful to do so. Nevertheless, the discretion must be exercised in a reasonable manner guided by sound judicial principles and not arbitrarily. It will be a proper exercise of jurisdiction where the plaintiff has done substantial acts in consequence of the specific performance. This discretion may be exercised for justifiable cause. But however, the Court will not exercise the discretion in favour of the plaintiff where the terms of the contract or the conduct of the parties at the time of entering into contract or other circumstances under which the contract was entered into, viable because the plaintiff has an unfair : 10 : advantage over the defendant or whether the performance of the contract would involve hardship of the defendant, which he could not foresee whereas the non-performance would involve no such hardship on the plaintiff.
9. In the case on hand, it is to be noticed that the suit document i.e., agreement to sell was executed in the year 1985, the suit is filed in the year 1995. Indeed the plaintiff did not choose to issue a notice calling upon defendant No.1 to execute the necessary sale deed i.e., to perform his part of the contract. Indeed Article 54 of the Limitation Act would contemplate that a suit is required to be filed within three years from the date fixed for the purpose, if no such date is fixed, when the plaintiff has noticed that the defendant has refused.
10. In the case on hand, it is to be noticed that the plaintiff has not chosen to issue any notice calling upon defendant No.1 to execute the suit document. It is no doubt true that the contention of the plaintiff is that : 11 : pursuant to the said `Agreement to sell' he has been put in possession and hence, he is protected under Section 53A of the Transfer of Property Act. But however, both the Courts below, on evidence have found that notwithstanding the recital in the suit document, the plaintiff was not put in possession.
11. Be that as it may, I am of the view that the plaintiff is not entitled for a decree for specific performance as a matter of right inasmuch as any grant of decree for specific performance, as observed, is governed by Section 20 of the Act. Both the Courts below have concurrently found that the agreement is proved but however, the said agreement to sell was executed as a collateral security for the amount said to have been borrowed by the 1st defendant. That also being a question of fact, the judgment and decree passed by the Courts below cannot be interfered.
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12. Having regard to what is stated above, I am of the view that the question of granting a decree for specific performance in the circumstances does not arise. No substantial question of law arises for consideration in this appeal.
Appeal stands dismissed.
Sd/-
JUDGE SPS/-