Karnataka High Court
Smt Anusuya D/O Holebasappa Arakeri vs Sri Gurappa S/O Mukkandappa ... on 16 March, 2012
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENC H AT D HARWAD
DATED THIS THE 1C DAY OP MARCH, 2012
THE HON 'BLE MRJUSTICE DNSH.YLENDRA
K U M AR
AND
THE HONELE MRJUSTICE BVPINTO
RF A NQ72QQ7SP
BETWEEN:
SMT. ANUSUYA
U 0 HOLEB '\S \PP \ \R \KEki
AGEI) ABOUT 47 YEARS,
OCC:AGRICULTURE
RJAT KENCHAGAR GALLI,
NL RNAf, \RiFSHV \RA G1 Di
HUBL1 580 031
DHAR WAD DISTRIcT
(BY SRI : V R DATAR, PTMURALIDHAR.
ViSPA WAR, (35 BHAT. ADVS)
1. S RI GIJRAPPA
S 0 MLKKAND PPA BLDD'PPA\ VAR
AGE 70 YEARS 0CC AGRICELTURE
R/AT KESHAVAPUR,
HUB.[ P380 ty.r,
TT T('Jc4
5/0 Di P3ivIASA DI3Ak7
AGF 'YEARE iCC BE TESS
RJAT KESH&VAPLR
HtJBLU5S() 023
RESPONDENTS
BY SRI HANUMANTHAREDDY SAHUKAR. ADV FOR
RI
VJ .SHEELVANT AND
VINAY S.KOUJALAGI, ADVS, FOR Rh.)
THIS REGULAR FIRST APPEAL IS FILED U/S 96 OF
('PC
AGAINST THE JUDGEMENT AND DECREE
DL 10.04.2007
PASSEI) IN OS.NO.385/2005 ON It-IF FILE OF THE PRL
CIVIL
JUDGE, (SR.DN) HUBLI, DISMISSING THE SUIT
FOR
DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS RFA HAVING BEEN HEARD AND RESERV
ED
FOR JUDGMENT ON 29.022012 AND COMING
ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
B.V.PINTO, J., DELIVERED THE FOLLOWING
:
JUDGMENT
This regular first appeal is flied by the plain tiff in O.S.No.385/2005, challenging the judgemen t dated (Sr.Dn.), Hubh (for brevity 'the trial Court' in performance of the agreement of sale d.ated 03.12.2002 and directing defendant No.1 to pay to the plaintiff a sm of Rs 60 000i et l2/ p a 'S -3-
2. The parties are referred according to their rank in the trial court.
3. It is the case of the plaintiff that the first defendant is the owner of an agricultural land bearing survey No.35/3A measuring 1 acre and Survey No.34/ 1A measuring 36 guntas situated in Bengeri village area Hubli taluka Hubli. In order to repay the debts and for the purpose of family necessity in the presence of elderly persons of the village, the first defendant agreed to sell the suit property and since the plaintiff agreed to pay the reasonable and highest price and having come to proper conclusion after discussions and negotiations, the defendant No.1 agreed to sell the suit property for consideration of Rs.6,90,000/- (market value prevailing on that day) executed an agreement of sale dated 03.12.2002, by receiving advance amount of Rs.60,000/-, on a two hundred rupees stamp paper purchased by him drafted by advocate B.B.Badni and typed by N.Kanchagar and thereafter the same has been a registered before the Subregistrar and agreed to execute sale deed before the subregistrar after receiving balance amount of sum of Rs,6,3O, OOO/ the same is registered in book No, 1. volume No,2 062 on pages ranging from 33 to 35. The plaintiff has paid the sum of Rs6,OO,OOO/ remaining con sideration amount to the defendant No.1 as per his req uest and demand for his legal and family necessity and the first defendant has passed receipts for having received amounts on stamp paper now balance amount of Rs3OOOO/ is to be paid and defendant No,i has agreed to receive the same at the time of exec ution of the sale deed before the subregistrar Hub li, But recently plaintiff came to know that the defendant No. I by colluding with defendant No.2 with the sole intentioj. of cheating the. plaintiff has exe cuted sale deed on 2IO52OO4 before the su.thregist rar only for consideration of Rs. hO 1,000/- only to nulli iy the agreen.ent of sale aiid the same is e.xec.uted only to fatratt the. cor tract a.nd. the sal.e deed fraudulent g one and null and void ab initio the same is not binding on plaintiff. The fact of sale having come to the notice and knowledge of the plaintiff on May 2004 when plaintiff requested the defendant No. 1 for registration of the sale deed, the defendant No.1 started giving evasive answers and did not execute the sale deed and failed to perform his part of contract and when the same was enquired with the sub registrar, he advised to approach the Civil Court. Plaintiff has received notice from Tahasildar Hubli in RTCSBSR No2/0506 and the Tahasildar has passed order in favour of defendant No2 and the order h..as been challenged, by the piain.tilf before the nsistant Commissioner Dhanvad in RTS APth4/ 200f-06 ard plaintiff is. always ready and willing t pcrfonn her part of c:c,ntract at any time and at this hour. The cause cit. aetion for the suit arose in Lcccmbcr 2004 and so also when the first defendant executed the "3 tt tii. ctv ciUi,r Ui ''g L3.1.
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Relief Act the plaintiff will be put to substantial hardship and irreparable loss and the second defendant is not bona fide purchaser for valuable consideration and thus prayed for decreeing the suit.
4. The defendants have filed their appearance through their advocates. The defendant has filed his written statement and denied the plaint averments. The defendant No.2 has stated that he has purchased the suit property from defendant No.1 for the total sale consideration of Rs. 1,01,000/- and the sale deed is registered before the Sub-registrar and further even separate consent agreement has been got executed from the wife and children of first defendant to see that no objections are raised by them in future by making payment of Rs.5,05,000/- the fact that the defendant No.1 has executed the agreement of sale in favour of the plaintiff could not be noticed since the same has not appeared in Record of fights and further the defendant No.2 denied that the defendant No, 1 has come forward and executed agreemen t of sale for legal necessity and family problem and they do not have any connection or relation, The agreement of sale dated 03.12,2002 executed by first defendant in favour of plaintiff was not well within the knowledge of this defendant No2 and thus the transaction is not legal and valid one. The proceedings before the Tahasildar has been admitted by the plaintiff and it is denied that the first and second defendants have not executed the sale deed and the cause of action arose on December 2004 .
The plaintiff has not given any notice to the first and second defendant and has not raised any objections. Since the property is purchased from defendant No.1 the plaintiff cannot get. eae.cuted sale de€.d from defèndnnt No, 1, The olaintiff has given loan. arno u.nt to the defendant No. I and she is recovering the same from him. and plaintiff has got executed some papers from the defenderit No. 1, .
1 have recently come to ienow tn.ar: both tue o.ei:en.aant no. 1 auG. p1anufl nave A separate suit for declaration for car. cel.latioi.. of the sai.e deed h..as to be flied by the plaintiff. The date of agreement of sale is 03.12.2002 and 3 year lapses on 02.12.2005 and the suit is filed on 03.12.2005, which is time barred. For the reasons stated about the suit of the plaintiff is to be dismissed with compensatory cost of Rs.5,000/.
5. On hearing the parties, the trial Court framed
1. Whether the p laintiff proves that the first defendant agreed to sell the suit property in her favour for Rs,6,90,000/ and executed and registered the sale agreement on
03. .12.2002 after receiving Rs.6O,00/ as earnest money?
2. Whether she •••her proves that she has paid Rs.6,00,00O/ as and when the first defendan.t demanded?
3 fy.ther the plaintifffhe her prove. that the defendant No, I c..olludd heth the.. defendant No.2 h.as sold the sui.t p roerty in. favour cf the defendant No.2 to defe..at the rights of the piointjf accrued under the sale agreement?
4. Whether the plaintifffarthe.r proves:
tha.t she wa.s and is ready and -9- willing to perform her part of contract mentioned in the sate agreement?
5. Whether the defendant No.2 proves that he is the bona fide purchaser for value without notice of the sate agreement made in favour of the plaintiff by the defendant Na 1?
6. Whether the defendant No.2 • fisrther proves that the suit filed is barred by law of limitation?
7. In whose favour the degree of hardship lies in case a decree for spec4ficperfornance is ordered?
8. Is plaintiff entitled for the reliefs prayed in the plaint?
9. What order?
6. In order to prove the case, the plaintiff herself examined as PW. 1 and has examined one Smt.Rukmani as PW.2 and Kiran Ramachandra Vagrnodhe as PW.3 and got marked Exs.P.1 to P.8. Defendant No.2 got himself examined as DW. 1 and further examined one Ourappa Mukund Buddappanavar as DW.2 and Maruthi guruppa Buddappanavar as DW.3 and got marked Exs.D. 1 to D.3.
7. After hearing the parties, the learned trial 'A, /7 10 Judge has passed the judgment dismissing the suit of the plaintiff for relief of specific performance of agreement of the sale dated 03.12.2002 and directing the defendant to refund the amount of Rs.6O,000/ paid to him as per Ex,P,1 dated 03.12.2002, with interest at 12% p.a., from the date of agreement till the date of payment.
8. The trial Court further rejected the relief of declaration sought by the plaintiff seeking to declare the sale deed dated 2.. .5.2004 executed by the defendant No. I in favour of defendant o,2. as null and void.
9. Heard Sri V,R.Dat,ar and Associates, learned Counsel for the appel.i.ant. and Sri Hanumanthar eddy Sahukar, learned Counsel for the first respondent and Sri V,H,Sheelvant and, Sri Vina S.Kouialagi, learned Coun.sel fOr the second respondent.
10. t. b the. Vrred Counsel fOr /•.:.
11the appellant Sn V R Datar that the igreement dated 03 12 2002 is a registered sale agreement between the plaintiff intl defendant No I for Rs690000 md a sum of Rs60000 has ixen paid by the plaintiff to the defrndant which fact is mentioned in the agreement itself and the same is marked as Fx p i It is further submitted b3 him that the plaintiff paid a sum of Rs 90,000/ on 05022003 asperExP2 asumofRs2l0000 on28022003 as per Ex p '3 and a sum of Rs 3,00,000/ on 20042003 is per ExP4 Thus in all the plaintiff ha paid snr of s o0000 a d a im cf ks30000 n email d ipaabi hepi tif c jl fr 1 is a a d a h '1 C -12- Rs. 1,01,000/- and that the said document is brought into existence only for the purpose of defeating the rights of the plaintiff in respect of Ex.P. 14, for suit schedule property being registered in her name. It is further submitted by the learned Counsel that the trial Judge has erroneously disbelieved the contents of •Exs.P.2, 3 and 4 and the same is nothing short of perversity. It is further submitted by him that PWs.2 and 3 are the witnesses to Ex.P.2, P.3 and P.4, and they have deposed before the Court that the defendant has in fact received the amounts mentioned in the said documents from the plaintiff. and hence, the documents are fully proved. It is further submitted by him that the cross-examination of PWs.2 and 3 by the defendant indicates that there is no cross-examination at all, in respect of the signatures of defendant No.1 in the said documents namely Exs.P.2, P.3 and P.4. It is further submitted by him that the cross-examination of DW. 1 further indicates that the schedule property was not a family 13 propert3 hut that of thc first defendant himself otherwise all the mmlxrs f the family of defendant No I should have joined for executing Ex D I in ft' our o deft ndant N 2 The cross exmintion f DW 1 further indicates the evasive manner in hich the defendant No I has deposed regarding the title to schedule propert It is further submitted b him that the document Ex D 1 is a false document created b defendant Nos I ind 2 n order to deprue the plaintiff rom her rights as rer Ex p i i is firthe ubmitted by him that DW is false itness ind i nr hible d in usu ith id f nn t ,i pp 1 1 se of I s Icf dEin a ft I f is 14 that the suit of the plaintiff may be decreed, The learred Counsel relied on the fcllowing ruhngs:
a. 1998 (1) KarLJ365 She C.harnpaial Oswal Vs. Peralu Achanna and another:
wherein in has held that:
"tB TRAIVSFER OF PROPERTY ACT. 1882, Section 3, Explanation I Registration Act,
--
1908, Sections 51 and 55-- Constructive notice Fixing party with Transaction with
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respect to immovable property which is compulsorily registrable and has been duly registered operates as constructive notice to subsequent transferees.
HELD: if a. particular transaction with respect to immoveable property is required by law to be registered and has been. effected by a registered instrument then arm person subsequently acquiring such property or any interest therein shall be deemed to have 'notice' of such instrument as from the date of its registration. In. other words, by this statuton' [letion registration of compulsorily registrabie instrument under the Registration Act effecting transfer of property is by itself sufficient notice of such. transaction to a mj person ijiho thereater a.cauires anu right or interest whatsoever in tha,t property, a,ithouqh in reality such a transferee may not be having actual notice of that prior registration of such. document.
11. Sri Vina Shounalafi learned Counsel fOr -15- defendant No.2 submits that defendant No.2 has examined himself as DW. 1 before the trial Court and DW. 1 had no knowledge about the existence of a prior agreement between the plaintiff and defendant No.1 in respect of the suit schedule property. It is further submitted by him that defendant No.2 is a bona tide purchaser for value of the suit schedule property and that he has filed his written statement and also tendered evidence before the Court.
12. It is further submitted by the learned counsel that though defendant No.1 has not contested the suit by filing written statement, since defendant No.2 has purchased the suit schedule property for a value and since defendant No.2 is interested in the property, defendant No.2 has not only filed written statement but has examined himself as DW.1, defendant No.1 as DW.2 and the son of defendant No.1 as DW.3. The plaintiff has not proved the payment alleged to have been made by her 4, as per ExsP2 to P4 and hence, the trial Court has rightly disbelieved the version in ExP,2 to P4. it is further submitted by him that even if it is believed that money ha.s been paid as per ExsP2 to P 4, the plaintiff has kept quiet from 20042003, which is last the date of payment of amount due, as per ExP. 1 till
03. 122005 on which da, the suit is filed, This long silence of the plaintiff is fatal to the case of the plaintiff. If at all, the plaintiff has paid the entire amount mentioned in ExP, I except Rs30,O00/, plaintiff would not have kept quiet after 20042003, for almost two years to seek for specific erforrnance of the suit agreement. He submits th.. at the trial. Couit has rightly rejected the claim of the plaintiff for Sf celTIc pcrlormance and also me claim m mae lalntllt based on Exs,P,2 to PA whereas, the trial Court has rightly directed the defendant No.1 to refund the amount claimed as per Ex, P. 1. only. Hence. he submIts t..hat the appeal may be dismissed with cost to the defendant, iT -
13 The points for consideration in this appeal
are: -
a Whether the trial (out t is justified in dismissing the suit of the plaintiff for specific performance of the agreement dated 03 12 2002?
b. Whether the trial Court is justified in duecung defendant No I to pay a sum of Rs.60.000/ to the plaintiff as per Ex.P.1 with interest at 12°n p.a. from the date till the date of pa nent r What order?
14. Our ans'er to the above points as tolirni s e ffinit . in lie 'ffirmatiu ft th folio ii' :REASONS:
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agreement is registered on O3J22OO2 in her name, It is stated by her that the said agreement is written in a stamp paper of Rs 200 and was typed after the same was prepared by one advocate B,VBadni. The instructions for the contents of the said agreement was given by the first defendant and the same is registered in the office of the SubRegistrar. Hubli in Book No. 1, pages 33 to 35. It is stated by her that the balance amount of Rs630,000!- was agreed to be paid at the time of registration of sale deed.
17. PWJ has further stated that the first defendant has received a fui.ther sum of Rs.600000 on three occasions and kept a balance of Rs30,0C0/- for paying at the time of registration. It is furth.er stated by her that she came to know that the first defendant has sold the suit schedude prope ty to the second defendant on 21 ,052004 fOr a .
sum p 1 flflQ without informina in order to cheat her, The said sale deed is a nullity. Plaintiff 21 has further stated that she is ready to pa the balance amount at am time and to gt the oropertv registered tn her name hut the ftrst defendant has not come forward to receie the money nd to register the propert\ It is stated by her that the first and second defendants hate joined together to cheat her. She ame to kno about the sale of the property in May 2004 and when she requested defendant No, 1 defendant No, I refused to register the sale deed On receipt of the notice from the Deput Tahsildhar regarding the c hange 01 Khata, she has filed a ease before the Assistant Commissioner, Dharw ad, hut the d ppea hss 315 we d sm sse S e na I )d ( iii e pts a d 20 04 )( 3 ( C2 03 auil 28022O03 b x jrI @ of hir h the deP'tn hs 0 o o I un s,f 00 JO / 1i ft Hc'c s s ti s Ic fc I C L 11 r1 r% rl t4 rt rt rt <4 rt r± rt a- a- a- a- a a- a a B- --
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obtained from hi.m and has created documents
Exs,P,2 to R4. He has further stated that he has not received any notice fron.. the plaintiff calling upon him to execute the sale deed a.. d when the notice was received from the Court, plaintiff inform ed him that he need not do anything and that she would look after evething in the case, He has stated that because he received Court summons, he came to the Court to give evidence, It is further stated by DW 2 that h.e has repaid the amount due to the plaintiff as per the agreement dated 03. 122002 and that a false case has been filed by the plaintiff, in t.he crossexamination, it is eicited that the second defendant had asked him to come to the Court and to give evidence and that he does not know as to what is written in th.e affidavit, in lieu, of his evidence. before Court.
23. DW3 Maruthi is the son of DW 2 fle has also stat.ed as per the version. of DW2. and that h..is father has n.ot agreed to sell the property to the 'I -26- plaintiff nor received amounts as per Exs.P.2 to P.4. However, he has stated that his father has sold the property to defendant No.1 by means of a sale deed. In the cross-examination, he has stated that the affidavit filed by him in lieu of evidence is prepared by the advocate and information given in the said affidavit is of the advocate. He has denied the suggestion of the plaintiff that the sale deed executed in favour of defendant No.2 by defendant No.1 is a got up document.
24. Insofar as the documents are concerned, the learned Counsel for the defendants has raised serious doubts about the figure '6' appearing in Ex.P. 1, which is a registered document. In order to ascertain the originality of the said document, we had issued summons to the Senior Sub-Registrar, Hubli to produce the book containing the document Ex.P. 1
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plaintiff has not proved the furthe r payment and further the fact that the plaintiff has not issued any notice to defendant No.1, calling upo n him to execute the sale deed even after payment of the entire sale consideration, we are of the consid ered opinion that the plaintiff has not made out a cle ar case against the defendant No.1 for specific per formance of the agreement of sale. On the other hand, defendant No.1 is liable to refund the adv ance amount of Rs.60,000/- to the plaintiff.
28. The trial Court has therefore dis missed the suit filed by the plaintiff prayin g for a decree for specific performance of the agreem ent. We do not find any error or illegality in the sai d judgment of the trial Court. The trial Court has fur ther directed the first defendant to refund the am ount of Rs.60,000/-
as per Ex.P.1 with interest at 12% p.a., from the date of agreement till the date of payme nt. The trial Court has further decreed that the cost of the suit shall be 0
- 31 -
recovered by the plaintiff from defendant No.1. The said order of the learned trial Judge is just and proper and does not call for interference in this appeal.
29. In the result, the following :ORDER:
The appeal filed by the plaintiff is dismissed, confirming the order of the trial Court including the order regarding cost.
Sd! JUDGE Sd/ JUDGE nvj