Karnataka High Court
Jave Ahmed S/O Ahmed Hussain Sindagikar vs Jainbabee W/O Maheboobsab Mulla& Anr on 25 February, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT
KALABURAGI BENCH
DATED THIS THE 25th DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO.6034/2012 (SP & INJ)
BETWEEN:
Javed Ahmed,
S/o.Ahmed Hussain Sindagikar,
Age: 51 years,
Occ: Agriculture,
R/o.Mirde Galli,
Bijapur-586 101.
...APPELLANT
(By Sri.Syed Fayazuddin, Advocate)
AND:
1. Jainabbi,
W/o.Maheboobsab Mulla,
Age: 68 years,
Occ: Household,
R/o.Mulla Kirana Shop,
Nisar Maddi,
Bijapur-586 101.
2. Abdul Hannan,
S/o.Alla Baksh Bagalkot,
Age: 35 years,
Occ: Business,
R/o.Asar Galli,
Bijapur-586 101.
...RESPONDENTS
(By Sri.Shivakumar Kalloor, Advocate for R-1 & 2)
This RFA is filed u/s.96 of CPC against the judgment and decree
dt.6.8.2012 passed in O.S.No.13/2009 on the file of the Prl. Senior Civil
Judge, Bijapur, wherein the suit of plaintiff was dismissed.
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This appeal being heard and reserved, coming on for
pronouncement of judgment, this day, the Court delivered the following:-
JUDGMENT
This appeal by the appellant-plaintiff is directed against the impugned judgment and decree passed by the Prl.Senior Civil Judge, Bijapur, in O.S.13/2009 whereby the suit for specific performance and other reliefs filed by the appellant- plaintiff against the respondents-defendants in respect of suit schedule immovable property bearing Sy.No.473/1B measuring 4 Acres situated in Bijapur was dismissed by the trial court.
2. For the purpose of convenience, the parties are referred to by their respective ranks in the suit.
3. The brief facts giving rise to the above appeal are as follows:-
The plaintiff filed a suit interalia contending that the 1st defendant was the owner of suit schedule property bearing Sy.No.473/1B measuring 4 Acres situated in Bijapur. It was contended that during 2001-02, when the 1st defendant 3 wanted to sell the property for legal necessity, plaintiff approached her and offered to purchase the same for a sum of Rs.10,50,000/- pursuant to which, negotiations took place between them. It was contended that as per the terms of the contract, sale consideration was fixed at Rs.10,50,000/- out of which Rs.2,60,000/- was to be paid towards earnest money and balance of Rs.7,90,000/- at the time of registration of the sale deed which was to be executed within six months.
The plaintiff has also contended that pursuant to the above terms of contract, a sum of Rs.2,60,000/- was paid by him to 1st defendant in the presence of two witnesses on 19.03.2002 which was acknowledged by the 1st defendant by executing agreement to sell. In terms of the said agreement dated 19.03.2002, plaintiff was to get the sale deed within six months but after measurement of the suit land from a private surveyor, it was found that 4 Acres was not available and it was decided that 1st defendant should first apply for measurement and fix boundaries and prepare P.T. sheet after which the 1st defendant was to execute sale deed in favour of the plaintiff.4
The plaintiff also contended that in the meanwhile, the 1st defendant received further sums of Rs.2,00,000/- on 14.08.2002, Rs.1,90,000/- on 31.03.2003 and Rs.1,00,000/- on 08.10.2003. The 1st defendant executed another agreement to sell dated 06.05.2004 wherein she acknowledged the receipt of the amount from the plaintiff in addition to agreeing to apply for measurement and fixing the boundaries of the land after which she would execute sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs.2,50,000/-.
Subsequently, the plaintiff also received Rs.50,000/- for payment of petty loan and thus, by 06.05.2004, 1st defendant had received Rs.8,00,000/- from the plaintiff and the remaining sum of Rs.2,50,000/- was to be paid at the time of the sale deed. It was contended that despite plaintiff being ready and willing to perform his part of the contract, 1st defendant instead of applying for measurement and fixing the boundaries once again demanded and received Rs.50,000/- on 01.02.2005 and Rs.50,000/- on 01.11.2005 from the plaintiff and she has 5 executed receipts in his favour acknowledging the receipt of the said sums.
It was contended that the 1st defendant kept delaying to perform his part of the contract and instead she got issued public notice in Kannada Daily News paper 'Veeravani' dated 17.04.2008 through her Advocate falsely alleging that since the plaintiff did not comply with the agreement to sell, the same has been cancelled. The plaintiff got issued a reply notice in the same news paper on 22.04.2008 and informed the public at large that the agreement between the plaintiff and 1st defendant was still subsisting and cautioned the public not to deal with the 1st defendant.
Since the 1st defendant attempted to alienate the suit schedule property, the plaintiff was constrained to institute O.S.No.1/2008 for permanent injunction against 1st defendant in which there is an order of status-quo which continued to be in force. Despite this, defendants 1 and 2 have colluded with each other resulting in sale deed dated 13.05.2008 in favour of 2nd defendant by the plaintiff who has full knowledge about the prior sale agreement in favour of the plaintiff as can be 6 seen from the recitals in the sale deed. It was contended that 2nd defendant was not a bonafide purchaser of the suit schedule property from the 1st defendant and that consequently, he was bound to join the 1st defendant in executing the sale deed in favour of the plaintiff.
In paragraphs-9 and 10 of the plaint, having referred to the earlier suit in O.S.463/2008, and making allegations of fraud and collusion between defendants and putting forth other contentions which gave rise to cause of action to file the present suit, the plaintiff filed the suit seeking specific performance and other reliefs against the defendants.
The 1st defendant filed his written statement denying all the plaint allegations. It was specifically contended that the plaintiff has suppressed material facts without giving proper description and identification of the suit schedule property. It was contended that the suit as instituted by the plaintiff was not in a proper form and was liable to be dismissed. While admitting the paper publication issued by her as well as execution of the sale deed dated 13.05.2008 in favour of 2nd defendant, all other allegations made by the plaintiff was 7 specifically denied. It was pointed out that in the absence of details of the agreement to sell in the prayer column of the plaint, plaintiff is not entitled to relief of specific performance. The alleged agreement for sale of the year 2002, alleged passing of consideration as well as the alleged execution, genuineness and validity of the alleged agreements from 19.03.2002 onwards were specifically disputed and denied by 1st defendant.
At paragraph-14 of her written statement, 1st defendant specifically contended that being an aged pardanashin lady dependent fully on her children, who were not looking after her or maintaining her, 1st defendant was totally dependent upon the suit schedule property. Prior to the sale deed dated 13.05.2008, by her in favour of 2nd defendant, the 1st defendant had gifted away portions of the property to an extent of 62 guntas in favour of different persons and it was only the remaining extent of 2 Acres 33 guntas that was sold by her in favour of 2nd defendant under the sale deed dated 13.05.2008.
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The 1st defendant contended that during 2001, she received Rs.1,00,000/- from the plaintiff to overcome her financial difficulties and at that time, he obtained her signature on blank bond papers and white papers, to which, she affixed her signatures bonafide and in good faith believing the plaintiff. Subsequently, it transpired that making use of the said papers, plaintiff was asserting that there was an agreement to sell dated 13.10.2001 executed by 1st defendant in his favour under which the sale deed was to be executed within a period of eight months. Though the 1st defendant had not executed any sale agreement, since the plaintiff started asserting that he was an agreement holder, 1st defendant was constrained to issue not only a legal notice but also a paper publication in 2008 since the plaintiff had not complied with the terms and conditions of the alleged agreement.
It was also contended that the persons in whose favour the 1st defendant had gifted portions of the property had got the khata mutated into their respective names prior to 2008 itself and despite this, the said persons have not been impleaded as parties to the suit which was liable to be 9 dismissed for non-joinder of parties. It was pointed out that even in the notice dated 21.04.2008 issued by the plaintiff, prior to filing of the suit, the agreement of the year 2001 had not been mentioned and only the subsequent agreements dated 19.03.2002 onwards had been mentioned which clearly indicates that the transaction of the year 2001 had been waived by the plaintiff. It was also contended that the suit was barred by limitation and the plaintiff had not pleaded and proved that he was ready and willing to perform his part of the contract and was not entitled to the discretionary and equitable relief of specific performance. Putting forth these contentions and denying all the plaint allegations, the 1st defendant sought for dismissal of the suit.
The 2nd defendant filed a separate written statement supporting the defence put forth by 1st defendant. It was contended that the 2nd defendant was a bonafide purchaser for valuable consideration from the 1st defendant to an extent of 2 Acres 32 guntas of which he was the absolute owner in lawful and peaceful possession and enjoyment. Denying the various contentions put forth by the plaintiff and the reliefs 10 sought for by him, the 2nd defendant sought for dismissal of the suit.
The plaintiff got the plaint amended during the pendency of the suit to which both the defendants filed their additional written statements denying the amended plaint allegations.
4. Based on the above pleadings, the trial court framed the following issues:-
" (i) Whether plaintiff proves that the defendant No.1 entered into contract with him to sell the suit land for Rs.10,50,000/-?
(ii) Whether plaintiff further proves that defendant No.1 executed agreements of sale dated 19.03.2002, 6.5.2004, 1.2.2005 and 1.11.2005 by receiving earnest money of Rs.9,00,000/- in total?
(iii) Whether plaintiff further proves that defendant No.1 failed to perform her part of contract and failed to execute regular sale deed?
(iv) Whether plaintiff further proves that there is cause of action to file this suit as pleaded in para- 10 of the plaint and that he is entitled for the relief?
(v) Whether the defendant No.1 proves that suit is bad for non joinder of necessary parties in whose favour she gifted 62 guntas out of 4 acres in suit survey number land?11
(vi) Whether defendant No.2 proves that he is bonafide purchaser of 2-33 acres in suit survey number land?
(vii) Whether defendant Nos. 1 and 2 prove that suit is barred by limitation?
(viii) What decree or order?
Recasted Issue No.2:
Whether plaintiff further proves that defendant No.1 executed agreements of sale Dtd.20.03.2001, 19.03.2002, 6.5.2004, 1.2.2005 and 1.11.2005 by receiving earnest money of Rs.9,00,000/- in total?
5. On behalf of the plaintiff, he examined himself as PW-1 and three witnesses PWs 2 to 4. Exs.P1 to P16 were marked on behalf of the plaintiff. On behalf of the defendants, the 1st defendant and 2nd defendant were examined themselves as DW-1 and DW-2 and they did not adduce any documentary evidence.
6. By the impugned judgment and decree, the trial court answered issues 1 to 3 in the 'negative' against the plaintiff, thereby coming to the conclusion that not only the plaintiff failed to prove the alleged sale agreement between himself and 1st defendant but had also failed to establish having paid an advance sale consideration of Rs.9,00,000/- and also that 12 the plaintiff was not ready and willing to perform his part of the contract and that he had failed to prove that there was breach on the part of the defendants. The trial court also answered issue No.6 in the 'affirmative' in favour of 2nd defendant thereby coming to the conclusion that he was a bonafide purchaser to an extent of 2 acres 32 guntas. Accordingly, the trial court proceeded to dismiss the suit.
7. Aggrieved by the impugned judgment and decree passed by the trial court, the plaintiff is before this Court by way of the present appeal.
8. Learned counsel for the appellant-plaintiff submits that the trial court committed an error in not properly considering and appreciating the material on record. In this context, learned counsel submits that the evidence of the plaintiff and his witnesses was sufficient to establish not only the agreements of sale executed by 1st defendant in favour of the plaintiff but also the payment of consideration by the plaintiff to the 1st defendant towards the sale transaction. 13
9. It was also contended that the plaintiff having paid a substantial sum of Rs.9,00,000/- which was almost the entire sale consideration fixed at Rs.10,50,000/-, the plaintiff was ready and willing to perform his part of the contract. It is contended that since the 1st defendant did not take steps to conduct survey and fix boundary stones as undertaken by him, it could not be said that the plaintiff was not ready and willing to perform his part of the contract particularly when there was no reason to disbelieve the plaintiff's contention that he was continuously calling upon the 1st defendant to comply with the terms and conditions of the agreement.
10. It was also contended that the 1st defendant having issued the legal notice at Ex.P4 and Paper Publication at Ex.P5 admitting the sale transaction, the same was sufficient to come to the conclusion that the sale agreement executed by the 1st defendant in favour of the plaintiff was proved in accordance with law. It was pointed out that as per the last agreement at Ex.P6 dated 01.11.2005 executed by 1st defendant in favour of the plaintiff, no time was fixed for performance of the contract and since time was not the 14 essence of the contract on account of the 1st defendant failing to conduct survey and fix boundary stones, the suit filed on 24.01.2009 after issuance of the legal notice at Ex.P5 dated 22.04.2008 by plaintiff to 1st defendant resulted in her refusing to perform her part of the contract was within limitation.
11. It was submitted that the 1st defendant had failed to establish the specific signatures having been taken on the blank papers. Further, the trial court apart from committing several factual and legal errors has committed an error in comparing the signatures on the agreements which was not permissible in law. It was therefore contended that the impugned judgment and decree being unjust, unfair and opposed to the facts and probabilities of the case, the same deserves to be set aside by this Court.
12. Per contra, learned counsel for the respondents would support the impugned judgment and decree passed by the trial court. Learned counsel submitted that a perusal of the plaint allegations and the evidence adduced by the plaintiff would indicate that apart from the fact that the frame of the 15 suit itself was not proper and in accordance with law, there was clear variance between pleading and proof on the part of the plaintiff who was not entitled to the discretionary and equitable relief of specific performance. It was contended that a perusal of the alleged agreements and receipts at ExsP12 to P16, will indicate that there were several patent discrepancies, material alterations, omissions and over writings in the said documents which were sufficient to falsify not only the said documents but also the claim put forth by the plaintiff. It was submitted that the material on record would indicate that neither the alleged agreements nor payment of the alleged sale consideration had been established by the plaintiff.
13. Further, it was contended that even on the plaintiff's own showing, there was a gross and inordinate delay and laches for a period of more than 2 ½ years from the date of the last alleged agreement dated 01.11.2005 and the suit was liable to be dismissed on this ground alone. It was submitted by the learned counsel for the respondents that the suit was barred by limitation and the plaintiff's conduct in suppressing material facts and coming to court with unclean hands clearly 16 disentitled him from the discretionary and equitable relief of specific performance.
14. Learned counsel for the respondents has placed reliance on the following judgments:-
" 1. Civil Appeal No.4453/2009 (Kamalkumar vs. Premlata Joshi & Others) (SC)
2. HCR 2015 Kant 297 (Vastada Shivamurtappa vs. Adhikari chennabasappa and others)
3. HCR 2018 Kant.623 (Basavarajaiah vs. S.Satish)
4. 2016(3) Kar.L.J.471 (K.H.Shama Rao and Sons, Bangalore and others vs. Mr.Jaishankar & Others).
15. After hearing the learned counsel for the parties and perusing the entire material on record, including the impugned judgment and decree, the following points arise for consideration in the present appeal:-
i) Whether the plaintiff had established the alleged sale agreements executed in his favour by the 1st defendant by receiving advance sale consideration as alleged by him?17
ii) Whether the plaintiff was ready and willing to perform his part of the contract?
iii) Whether the plaintiff was entitled to the discretionary and equitable relief of specific performance?
iv) Whether the impugned judgment and
decree passed by the trial court is just and
proper?"
Re - Point No.1:-
16. A perusal of the plaint averments will indicate that the plaintiff does not refer to the agreement of sale dated 20.03.2001 which is produced as Ex.P12 by the plaintiff. In fact, the plaint averments also do not indicate that on 20.03.2001, the 1st defendant executed Ex.P12 in his favour.
Further, in the legal notice at Ex.P5 issued by the plaintiff prior to the suit, he does not refer to the aforesaid sale agreement dated 20.03.2001. Similarly, in the paper publication at Ex.P4 also, the plaintiff does not refer to the sale agreement dated 20.03.2001. Even in his evidence as PW-1, no explanation whatsoever is offered by the plaintiff for not mentioning the 18 sale agreement date 20.03.2001 as indicated above. Further, in the plaint, plaintiff has specifically stated that on 19.03.2002, a sum of Rs.2,60,000/- was paid by him in favour of 1st defendant who executed an agreement to sell in his favour. PW-2 and PW-4 examined on behalf of the plaintiff also speak about agreement to sell dated 19.03.2002 and payment of Rs.2,60,000/- on that date. These facts and circumstances clearly indicate that there is complete variance between the pleadings and proof adduced on behalf of the plaintiff with regard to Ex.P12, alleged agreement dated 20.03.2001 as contended by the plaintiff and alleged payment of Rs.1,00,000/- as on that date by the plaintiff to the 1st defendant. As stated above, while the specific contention put forth in the evidence of the plaintiff as well as in his pleadings is with regard to payment of Rs.2,60,000/- on 19.03.2002 when Ex.P13 was allegedly executed in his favour, the other material on record produced by the plaintiff himself is inconsistent and contradictory to the said contention. Under these circumstances, I am of the opinion that the trial court was fully justified in coming to the conclusion that Ex.P12, 19 alleged agreement dated 20.03.2001 had not been proved by the plaintiff in accordance with law.
17. The material on record will indicate that PW-2 examined on behalf of the plaintiff has spoken with regard to Ex.P13 whereas PW-4 has spoken with regard to Exs.P14 and P15. It is also significant to note that the plaintiff has chosen to examine PW-3 who is none other than the son of 1st defendant on the ground that PW-3 is one of the witnesses to Exs.P13 to P16. However, the said PW-3 having turned hostile, nothing is elicited by the plaintiff in his cross- examination so as to impeach his testimony. As such, the evidence of PW-3 cannot be relied upon by the plaintiff in order to contend that Exs.P13 to P16 have been proved in accordance with law.
18. As stated above, while PW-2 has spoken only with regard to Ex.P13, PW-4 has also spoken only with regard to Ex.P14 and Ex.P15 and except for the self serving testimony of the plaintiff (PW-1), there is absolutely no material on record to establish proof of Ex.P16 or Ex.P12. Under these 20 circumstances, I am of the opinion that the trial court has come to the correct conclusion that the plaintiff had failed to establish execution as well as genuineness and validity of Ex.P12 and P16 which were allegedly the first and last agreements purported to have been executed by the 1st defendant in favour of the plaintiff.
19. Insofar as Exs.P13, P14 and P15 are concerned, a perusal of Ex.P13 will indicate that while there are no signatures on the first and second pages, the only signature of the 1st defendant that is found on Ex.P13 is on the left hand side. Similarly, in Ex.P14, there are no signatures on the 1st and 2nd pages and the signature of 1st defendant on the 3rd page is clearly different from the alleged signature of the 1st defendant on Ex.P13. A perusal of Ex.P15 will indicate that the signatures of 1st defendant are found at the bottom of 1st page and in the middle of the 2nd page which are again at variance with the alleged signature of 1st defendant in Exs.P13 to P15. There are also several overwritings in the documents relied upon by the plaintiff. The various discrepancies, ambiguities and inconsistencies in the pleadings as well as the 21 oral and documentary evidence on record adduced by the plaintiff coupled with absence of any evidence with regard to Ex.P16, clearly establish that the trial court was fully justified in coming to the correct conclusion that the plaintiff had not proved Ex.P12 to P16 in accordance with law.
20. The material on record also indicates that there is a discrepancy with regard to the oral evidence of PW-1, PW-2 and PW-4 with regard to payment of sale consideration and the contents of Exs.P12 to P16 in this regard. While the said witnesses state that the advance sale consideration as alleged by the plaintiff was paid as on the date of Exs.P12 to P16, the contents of the said documents indicate that there were alleged payments on several other dates which have been recorded in the documents. Further, the said documents do not state that the plaintiff had paid monies to the 1st defendant as on the date of the documents. These material discrepancies in the payment of advance sale consideration is also sufficient to come to the conclusion that the plaintiff had failed to establish that he had paid an advance of Rs.9 lakhs towards the sale transaction as contended by him. 22
21. It is also relevant to point out that the plaintiff did not take any steps to get the disputed signatures of the 1st defendant on Ex.P-12 to P-16 compared with her admitted signatures by getting the same referred to a handwriting expert and as such, adverse inference would have to be drawn against the plaintiff in this regard. The aforesaid facts and circumstances clearly establish that having regard to the variance between pleadings and evidence of the plaintiff coupled with admissions, inconsistencies, contradictions and ambiguities in the material on record produced by the plaintiff, the trial court was fully justified in coming to the conclusion that the plaintiff has neither proved the agreement to sell relied upon by him nor payment of the advance sale consideration as contended by him. Upon re-appreciation of the entire material on record, I am of the considered opinion that there is no illegality or infirmity in the said finding in the impugned judgment and award that warrants interference at the hands of this Court.
Point No.1 is accordingly answered against the appellant.
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Re-Point Nos.2 & 3:-
22. While dealing with point No.1 I have already come to the conclusion that the plaintiff has not been able to establish the agreements of sale or the payment of sale consideration as alleged by him in the suit. Under these circumstances, the question of giving any finding with regard to the plaintiff being ready and willing to perform his part of the contract may not arise. However, while dealing with issue No.3, the trial court has come to the conclusion that not only the plaintiff was not ready and willing to perform his part of the contract, but also that plaintiff had not established that the 1st defendant has failed to perform his part of the contract. On the plaintiff's own showing, the last agreement at Ex.P16 was allegedly executed on 01.11.2005 while the notice at Ex.P5 was issued by the him on 22.04.2008 after almost 2½ years. Absolutely no satisfactory explanation is forthcoming in the pleadings and evidence of the plaintiff towards the said long and inordinate delay of almost 2½ years. It is well settled that before a decree for specific performance is granted, it is 24 incumbent upon the plaintiff to not only comply with the mandatory requirements contained in Section 16(1)(c) of the Specific Relief Act but also establish that he is entitled to the discretionary and equitable relief of specific performance as contemplated under Section 20 of the Specific Relief Act.
23. In this context, the plaintiff has deliberately and intentionally not furnished details of the agreement that is sought to be enforced by him in the prayer column of the suit. In the entire plaint, the plaintiff does not even describe the alleged agreement at Ex.P16 dated 01.11.2005 as the consolidated agreement and in fact, the said Ex.P16 contains over writings and material alterations. Under these circumstances, I am of the opinion that on the plaintiff's own showing, he has not only failed to establish that he was ready and willing to perform his part of the contract, but the conduct of the plaintiff clearly disentitles him to the discretionary and equitable relief of specific performance. As such, the trial court was fully justified in dismissing the suit filed by the plaintiff and the reasoning and the findings recorded by the 25 trial court in this regard do not warrant interference by this Court in the present appeal.
Accordingly, Point Nos. 2 and 3 are answered in the 'negative' against the appellant.
Re-Point No.4:-
24. As stated supra, while dealing with points 1 to 3, I have already held that the plaintiff has failed to establish that the 1st defendant executed sale agreements in favour of the plaintiff by receiving a total advance sale consideration of Rs.9,00,000/- from the plaintiff. I have also come to the conclusion that the material on record clearly establishes that the plaintiff was not ready and willing to perform his part of the contract and that the plaintiff's conduct clearly disentitles him to the discretionary and equitable relief of specific performance. Upon re-appreciation of the entire material on record, I am of the considered opinion that the impugned judgment and decree passed by the trial court is based on the correct and proper consideration and appreciation of the material on record and the same does not suffer from any illegality or infirmity nor can the same be said to be capricious 26 or perverse so as to warrant interference by this Court in the present appeal.
Point No.4 is also answered accordingly against the appellant.
25. Accordingly, I do not find any merit in the appeal and the same is hereby dismissed.
No costs.
Sd/-
JUDGE Srl/bnv