Karnataka High Court
C Mahith Gowda vs Chikkanna on 16 April, 2026
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
REGULAR SECOND APPEAL NO. 1281 OF 2024 (SP)
BETWEEN:
1. C. MAHITH GOWDA
AGED ABOUT 30 YEARS
SON OF C.B.CHANNAPPA
RESIDING AT
CHOTTANAHALLI VILLAGE
KOPPA HOBLI
MADDURU TALUK
MANDYA DISTRICT
PIN: 571 419.
...APPELLANT
(BY SRI C.N.SATYANARAYANA SHASTRY, ADVOCATE)
AND:
1. CHIKKANNA
Digitally AGED ABOUT 48 YEARS
signed by B
SON OF THAMMAIAH
LAVANYA
RESIDING AT
Location: K. HAGALAHALLI VILLAGE
HIGH KASABA HOBLI
COURT OF MADDURU TALUK
KARNATAKA MANDYA DISTRICT
PIN: 571 422.
2. PUTTASIDDAMMA
MAJOR
WIFE OF LATE KULLAIAH.
3. HUCHAMMA
MAJOR
DAUGHTER OF LATE KULLAIAH.
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4. JAYALAKSHMI
MAJOR
DAUGHTER OF LATE KULLAIAH.
SHIVAHUCHAIAH
MAJOR
SON OF LATE KULLAIAH
SINCE DECEASED BY L.Rs.
5. H. K. CHETAN
MAJOR
SON OF LATE KULLAIAH.
RESPONDENT NOS.2 TO 5
RESIDING AT
K. HAGALAHALLI VILLAGE
KASABA HOBLI
MADDURU TALUK
PIN: 571 422.
...RESPONDENTS
(BY SRI PRAMOD R., ADVOCATE FOR R1;
SRI SIDDHARTH D.K., ADVOCATE FOR R2;
NOTICE TO R3 TO R5 IS DISPENSED VIDE ORDER DATED
12.01.2026)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 01.04.2024 PASSED IN R.A.NO.47/2021
BY THE SENIOR CIVIL JUDGE, MADDUR AND RESTORE THE
JUDGMENT AND DECREE DATED 17.09.2021 PASSED IN
O.S.NO.255/2016 BY II ADDITIONAL CIVIL JUDGE AND JMFC,
MADDUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by defendant No.6 challenging the judgment and decree dated 01.04.2024 passed in R.A.No.47/2021 by the Senior Civil Judge, Maddur, to restore the judgment and decree dated 17.09.2021 passed in O.S.No.255/2016 by II Additional Civil Judge and JMFC, Maddur, wherein suit for specific performance of contract came to be partly allowed in favour of respondent No.1-plaintiff.
2. Parties shall be referred to as per their ranking before the trial Court.
3. Brief facts of the case are as under:
The plaintiff has instituted the suit against the defendants seeking relief of specific performance of contract. It is the case of the plaintiff that an agreement of sale was executed on 28.02.2013 by Kullaiah of K. Hagalahalli Village, Maddur Taluk, the original owner of a -4- NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR the suit schedule property. Defendant Nos.1 to 5 are the wife and children of the said Kullaiah and defendant No.6 is the purchaser of the suit schedule property under a registered sale deed executed by defendant Nos.1 to 5 after the death of said Kullaiah.
3.1 It is stated that Kullaiah agreed to sell the suit schedule property to the plaintiff for a valuable sale consideration of ₹50,000/- under a registered agreement of sale dated 28.02.2013. In pursuance thereof, he received an advance amount of ₹40,000/- on the same day in the presence of witnesses and put the plaintiff in possession and enjoyment of the suit schedule property.
Thereafter, Kullaiah agreed to receive the balance sale consideration of ₹10,000/- from the plaintiff within thirty-five months from the date of execution of the agreement, after furnishing the necessary documents for registration.
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3.2 It is stated that the plaintiff was always ready and willing to perform his part of the contract and was ready with the balance sale consideration of ₹10,000/-. In the meanwhile, the said Kullaiah died in the month of March 2014, which has been wrongly mentioned as March 2015 in the judgment of the trial Court.
3.3 Pursuant to the death of Kullaiah, the plaintiff approached defendant Nos.1 to 5, being the legal representatives of Kullaiah and requested them to execute the sale deed by receiving the balance sale consideration of ₹10,000/-. Despite the efforts made by the plaintiff, defendant Nos.1 to 5 went on prolonging the matter and ultimately refused to execute the sale deed.
3.4 Since defendant Nos.1 to 5 did not come forward to execute the sale deed in favour of the plaintiff, he caused a legal notice to be issued through his counsel on 26.08.2015, calling upon defendant Nos.1 to 5 to perform their part of the contract. The notice was duly served on a -6- NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR defendant Nos.1 to 5. As the demand made under the legal notice was not complied and they failed to perform their part of the contract, the plaintiff was left with no other alternative but to file the suit for specific performance of contract. Accordingly, the plaintiff filed a suit against the defendants.
3.5 Upon summons being issued in the suit, defendant Nos.1 to 5 appeared through counsel. However, they did not file their written statement. Defendant No.6 claimed to be the purchaser of the suit schedule property. Since defendant No.6 claimed to have purchased the suit schedule property under a registered sale deed dated 27.02.2018 executed by defendant Nos.1 to 5, he was impleaded in the suit by the plaintiff as defendant No.6.
3.6 Defendant No.6 filed his written statement denying the entire plaint averments. It is pleaded that one Huchhaiah was the father of Kullaiah and that he had purchased the property bearing survey No.151/1, a -7- NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR measuring 19 guntas, situated at Hagalahalli Village, Kasaba Hobli, Maddur Taluk, from one Biliheggade, S/o Huchana Doddahaida, under a registered sale deed dated 24.10.1983, in the name of his son Kullaiah, out of joint family funds. Therefore, according to defendant No.6, the property became the ancestral property of deceased Kullaiah and as such, Kullaiah had no independent right to alienate or create any charge over the suit schedule property or any portion thereof without the consent and knowledge of the other coparceners, namely defendant Nos.1 to 5.
3.7 It is also pleaded that the said Kullaiah was not worldly wise and was a chronic drunkard. Taking undue advantage of his illiteracy and innocence and by misusing the said circumstances, the plaintiff appears to have obtained the agreement of sale dated 28.02.2013 by misrepresenting the facts.
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3.8 It is further pleaded that defendant Nos.1 to 5, being the legal representatives of deceased Kullaiah and rightful owners of the property, as according to them it was ancestral property, were not signatories to the agreement of sale alleged to have been executed by deceased Kullaiah in favour of the plaintiff. Hence, the said agreement was stated to be not binding on defendant Nos.1 to 5. Several other contentions were also taken by defendant No.6 in the written statement and he sought dismissal of the suit.
3.9 On the basis of the pleadings and rival contentions made by both the parties, the trial Court framed the following issues for consideration:
"1. Whether the plaintiff proves that Kullaiah, the father of the defendants had entered into agreement to sell the suit schedule property for a valuable sale consideration of Rs.50,000/- on 28/02/2013 and registered it and on the same day delivered the possession of the suit property and he has received the advance amount of Rs.40,000/- and agreed to receive a -9- NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR the remaining balance sale consideration of Rs.10,000/- within thirty five months from the date of agreement after obtaining survey sketch and other necessary documents ?
2. Whether the plaintiff further proves that he was and has always been ready and willing to perform his part of contract?
3. Whether the plaintiff proves that defendant No. 1 to 6 in collusion created sale deed on 27/02/2018 with respect to the suit schedule property and the same is not binding on the rights of the plaintiff?
4. Whether defendant No.6 proves that Küllaiah did not have independent right to alienate the suit property ?
5. Whether the defendant No.6 proves that he is the bonafide purchaser of the suit property for valuable consideration ?
6. Whether the plaintiff is entitled for the relief of specific performance of the contract?
7. What order or decree ?"
3.10 In order to substantiate the issues and to establish the case, plaintiff examined himself as PW.1 and two witnesses as PWs.2 and 3 and got marked 13 documents as per Exs.P1 to P13. On the other hand, a - 10 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR defendant Nos.1 to 5 did not file their written statement nor did they contest the suit. Defendant No.6 did not lead any evidence.
3.11 Based on the materials placed on record, both oral and documentary, the trial Court proceeded to decide the issues for consideration. Upon a careful appreciation of the material available on record, it came to the conclusion that the plaintiff had made out a case for grant of relief in his favour, insofar as recovery of the sum of ₹40,000/-
was concerned. Accordingly, the trial Court partly decreed the suit and held that the plaintiff was not entitled to the relief of specific performance of contract dated 28.02.2013, but was entitled to recovery of the earnest money as an alternative relief. It was further ordered that the plaintiff was entitled to recover a sum of ₹40,000/-
with interest at the rate of 12% per annum from the date of the agreement till its realisation from defendant No.6.
Defendant No.6, being the purchaser pendente lite of the suit schedule property, was directed to pay the said a - 11 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR amount along with interest at the rate of 12% per annum to the plaintiff within three months from the date of the order. It was also observed that defendant No.6 would be at liberty to recover the said amount from defendant Nos.1 to 5.
3.12 Being aggrieved by the impugned judgment and decree of the trial Court, defendant No.6 preferred an appeal before the first Appellate Court in R.A.No.47/2021.
3.13 Upon summons being served, defendant Nos.1 to 5 did not appear. Defendant No.6 appeared and contested the matter.
3.14 The first Appellate Court, after reconsideration of the entire materials, both oral and documentary and re-analysing all the gamut of materials placed including the impugned judgment and decree passed by the trial Court, formulated the following points for consideration:
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"1. Whether the Trial Court erred in refusing specific performance and ordering for refund of advance amount?
2. Whether the findings of the Trial Court calls for interference by this Court?
3. What order or decree?"
3.15 Upon re-analysation and re-consideration of the entire materials on record, the first Appellate Court came to the conclusion that defendant Nos.1 to 5 had not contested the matter and had, in effect, not disputed the execution of the agreement of sale by late Kullaiah in favour of the plaintiff. It further held that defendant No.6 was a purchaser of the suit schedule property during the pendency of the litigation and therefore, it was for defendant No.6 to establish that he was a bona fide purchaser. It also came to the conclusion that defendant No.6 had failed to establish that he was a bona fide purchaser for valuable sale consideration.
3.16 The first Appellate Court also came to the conclusion that defendant No.6 was required to join a - 13 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR defendant Nos.1 to 5 in the execution of the registered sale deed in performance of the agreement of sale entered into between the plaintiff and Kullaiah and to hand over possession of the suit schedule property to the plaintiff. It also came to the conclusion that the plaintiff was entitled to the relief of specific performance of contract and that the trial Court had committed an error in not decreeing the suit for specific performance of contract. Accordingly, the first Appellate Court allowed the appeal filed by the plaintiff and by its judgment and decree, set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff.
3.17 It was also directed that defendant Nos.1 to 5 shall execute the sale deed in favour of the plaintiff in respect of the suit schedule property after receiving the balance sale consideration of ₹10,000/- from the plaintiff and in default thereof, the plaintiff would be at liberty to get the sale deed executed in accordance with law. It was also directed that defendant No.6, being a purchaser a - 14 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR during the pendency of the suit, shall join defendant Nos.1 to 5 in executing the sale deed in favour of the plaintiff with regard to the suit schedule property.
3.18 Aggrieved by the same, defendant No.6 is before this Court in this second appeal.
4. It is the vehement contention of the learned counsel for appellant-defendant No.6 that the first Appellate Court had committed a serious error, illegality and perversity in decreeing the suit of the plaintiff, whereas the plaintiff himself in the suit, had claimed an alternative relief of refund of the advance sale consideration amount. Learned counsel for appellant- defendant No.6 further contended that the first Appellate Court had failed to appreciate the facts and had ignored the evidence on record.
4.1 It is further contended by the learned counsel for appellant-defendant No.6 that the first Appellate Court had not assigned proper reasons or recorded cogent findings a - 15 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR while passing the judgment and decree and decreed the suit of the plaintiff by granting the relief of specific performance of contract.
4.2 Learned counsel for appellant-defendant No.6 further contended that the first Appellate Court had failed to appreciate the fact that respondent No.1-plaintiff had not initiated any steps for conducting a survey of the suit schedule property, as contemplated in law, for completion of the sale transaction during the lifetime of Kullaiah. It is further contended by the learned counsel for appellant- defendant No.6 that the plaintiff, having failed to do so during the lifetime of Kullaiah, had obtained the agreement of sale dated 28.02.2013 by playing fraud upon the innocent and illiterate deceased Kullaiah, behind the back of defendant Nos.1 to 5, who are the children of Kullaiah.
4.3 Learned counsel for appellant-defendant No.6 further contended that the first Appellate Court has a - 16 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR ignored the fact that defendant Nos.1 to 5, being the Class-I legal representatives of deceased Kullaiah, inherited the ancestral property and thereby acquired an inherent right, title, interest and possession over the suit schedule property by way of succession. It is further contended by the learned counsel for appellant-defendant No.6 that there was no partition of the ancestral property between Kullaiah and his children during his lifetime. Therefore, Kullaiah had no exclusive right to sell the suit schedule property in favour of the plaintiff.
4.4 It is also contended by the learned counsel for appellant-defendant No.6 that defendant Nos.1 to 5 were not aware of the agreement of sale dated 28.02.2013 said to have been executed by their father, i.e., Kullaiah, in favour of the plaintiff. It is further contended by the learned counsel for appellant-defendant No.6 that they had not received any notice of the suit proceedings and there is nothing on record to show that summons had been duly served on them by the Court.
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4.5 It is further contended by the learned counsel for appellant-defendant No.6 that the first Appellate Court has failed to appreciate the findings of the trial Court and that the plaintiff failed to prove his readiness and willingness to complete the sale transaction. It is also contended by the learned counsel for appellant-defendant No.6 that though it is stated that a legal notice was issued on 26.08.2015 to defendant Nos.1 to 5, the suit came to be filed on 19.07.2016, after a lapse of nearly 11 months from the date of the alleged notice. Hence, he contends that this fact itself establishes that the plaintiff was fully aware that he could not enforce the agreement of sale dated 28.02.2013, which was allegedly obtained from Kullaiah in his individual capacity, as the same was not binding on the legal representatives of deceased Kullaiah, i.e., defendant Nos.1 to 5.
4.6 It is further contended by the learned counsel for appellant-defendant No.6 that any agreement of sale alleged to have been executed by Kullaiah in favour of the a - 18 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR plaintiff would not bind the right, title and interest devolved upon defendant Nos.1 to 5, being the legal representatives of deceased Kullaiah, have a lawful share in the ancestral property.
4.7 Learned counsel for appellant-defendant No.6 also contends that defendant Nos.1 to 5, who are the children of Kullaiah, were unaware of the alleged sale transaction said to have been executed by Kullaiah in favour of the plaintiff. It is further contended by the learned counsel for appellant-defendant No.6 that nothing prevented the plaintiff, during the lifetime of Kullaiah, from informing the children of Kullaiah about the alleged agreement of sale. Learned counsel for appellant- defendant No.6 vehemently contends that the suit of the plaintiff is not maintainable for the reason that the plaintiff did not seek the relief of declaration in respect of the registered sale deed executed in favour of defendant No.6 by defendants No.1 to 5, who are the children of deceased Kullaiah.
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4.8 It is further contended by the learned counsel for appellant-defendant No.6 that when the plaintiff impleaded defendant No.6, he was fully aware of the registration of the sale deed in favour of defendant No.6 by defendant Nos.1 to 5. Therefore, nothing prevented the plaintiff from seeking the relief of declaration to declare the registered sale deed executed by defendant Nos.1 to 5 in favour of defendant No.6 as invalid, not binding or null and void. Since no such relief has been sought in the suit, the suit is not maintainable.
4.9 It is further contended by the learned counsel for appellant-defendant No.6 that defendant Nos.1 to 5, having sold the suit schedule property for valuable sale consideration under a registered sale deed dated 27.02.2018 and having put defendant No.6 in vacant possession of the suit schedule property, nothing remained with them to convey in favour of the plaintiff under the terms of the agreement of sale, which consequently fails and pales into insignificance in view of the subsequent a - 20 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR registered sale deed dated 27.02.2018 executed in favour of defendant No.6.
4.10 Learned counsel for appellant-defendant No.6 further contends that either in pursuance of the judgment and decree or at the time of filing of the suit for specific performance, the plaintiff had not deposited the balance sale consideration amount before the trial Court. On these grounds, learned counsel for appellant-defendant No.6 contended that the suit filed by the plaintiff itself was not maintainable; defendant Nos.1 to 5 were not parties to the agreement of sale; and that, thereafter, defendant Nos.1 to 5 had sold the property by way of a registered sale deed in favour of defendant No.6. Hence, the direction issued to defendant No.6 to join defendant Nos.1 to 5 in executing the sale deed is illegal and perverse. Learned counsel for appellant-defendant No.6 contended that the decree granted in favour of the plaintiff for specific performance of the agreement of sale is also perverse and illegal and therefore, the same requires to be set aside by a - 21 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR framing substantial questions of law as urged in the appeal memo.
4.11 Learned counsel for appellant-defendant No.6 has relied upon the following judgments in support of his case:
1. Bal Krishna and Anr. v. Bhagwan Das (Dead) by L.Rs and Ors. reported in AIR 2008 SUPREME COURT 1786.
2. Jayaram Mudaliar v. Ayyaswami and others reported in AIR 1973 SUPREME COURT 569.
3. Divyagnakumari Harisinh Parmar and others v/s Union of India and others reported in Civil Appeal No.1479/2006.
4. Karnataka Electricity Board vs Messrs. Oriental Timber Industries* reported in I.L.R. 1993 KAR 2072.
4.12 Learned counsel for appellant-defendant No.6 relied upon the decision of the Hon'ble Apex Court in the case of Bal Krishna as stated supra, wherein, para-8 reads as under:
"Para-8: Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") a - 22 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c) of Section 16 further makes it clear that plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The compliance of the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiffs readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific a - 23 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfied itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the courts discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void."
4.13 Learned counsel for appellant-defendant No.6 relying upon the decision of the Hon'ble Apex Court in the case of Jayaram Mudaliar as stated supra, he contends that the purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only a - 24 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR to subject them to the Authority of the Court which is dealing with the property to which claims are put forward. A private sale of joint family properties executed by the Karta not on behalf of the whole family, but in his individual capacity to discharge previous debts and liabilities, during the pendency of a suit for partition brought by a member of the family would not be binding on the family and would be hit by Section 52 of the T.P.Act. The fact that some of the properties under the said deed were under attachment before judgment in the purchaser's mortgage suit or that part of the consideration for the sale was for the discharge of the mortgage decree could not remove it from the ambit of lis pendens so long as the sale was not in execution of the mortgage decree.
4.14 Learned counsel for appellant-defendant No.6 also relied upon paras-16 to 20 of the decision of the Hon'ble Apex Court in the case of Divyagnakumari Harisinh Parmar as stated supra.
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4.15 Learned counsel for appellant-defendant No.6 further placed reliance on the judgment in the case of Karnataka Electricity Board as stated supra, more particularly para-10 thereof, which reads as under:
"Para-10: xxx No one can doubt the power of the appellate Court to give the appropriate reliefs to the parties under Order 41 Rule 33 CPC. which is interpreted and explained in the Ruling of the Supreme Court quoted above. But when the party itself has failed to seek the particular relief, the appellate Court will not be justified in granting that very relief under Order 41 Rule 33 CPC., moreso, when the relief had become time barred and a right had accrued to the defendants. Therefore, this argument of the learned Counsel for the respondent that though the respondents have not appealed and challenged the validity of the finding of both the Courts below on issue No.1, still the Court should set it aside under its power under Order 41, Rule 33 CPC. because if the Court would do so, the Court would be practically granting a relief when the party itself has not prayed for that relief and that relief had become time barred and a right had accrued to the defendants."
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4.16 On these grounds, learned counsel for
appellant-defendant No.6 seeks framing of substantial questions of law to delve further into the matter for consideration and to decide the same in accordance with law.
5. Per contra, learned counsel for respondent No.1- plaintiff contended that there is absolutely no perversity or illegality in the judgment rendered by the first Appellate Court. However, he submitted that the judgment and decree passed by the trial Court was perverse, illegal and unsatisfactory and therefore, the same was challenged before the first Appellate Court, as the trial Court had not granted the relief of specific performance and had only granted the relief of refund of the advance sale consideration amount. Learned counsel for respondent No.1-plaintiff further contended that the first Appellate Court, having considered all the materials on record, including the registered agreement of sale and other documentary evidence placed on record, has rightfully a - 27 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR decreed the suit of the plaintiff by granting the relief of specific performance, taking into consideration the registered sale agreement dated 28.02.2013 executed by deceased Kullaiah in favour of the plaintiff.
5.1 It is also contended by learned counsel for respondent No.1-plaintiff that in the original suit proceedings, despite service of summons on defendant Nos.1 to 5, who claimed to be the legal representatives of deceased Kullaiah, they did not contest the matter. Though they had filed vakalath, they failed to participate or contest the proceedings. Despite having been duly served with summons, they chose not to contest the suit.
5.2 During the pendency of the suit, when the plaintiff came to know of the registered sale deed executed by defendant Nos.1 to 5, an application was filed and defendant No.6 was impleaded in the proceedings. Defendant No.6 thereafter filed his written statement and contested the matter. However, defendant No.6 neither a - 28 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR stepped into the witness box nor produced any documentary evidence in support of his case. Therefore, there was absolutely no evidence on behalf of the defendants. Insofar as defendant Nos.1 to 5 are concerned, they neither filed any written statement nor contested the proceedings, except receiving summons and remaining absent thereafter. Though defendant No.6 had filed his written statement, he did not enter the witness box nor place any material before the trial Court in support of his defence.
5.3 Learned counsel for respondent No.1-plaintiff contends that the relief sought in the suit was for enforcement of the agreement of sale dated 28.02.2013 by directing defendant Nos.1 to 5, being the legal representatives of deceased Kullaiah, to execute and register the sale deed upon receipt of the balance sale consideration. The second relief was sought in the alternative for recovery of ₹40,000/- from the defendants, a - 29 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR together with interest at 24% per annum from the date of the agreement till realisation of the entire amount.
5.4 It is contended by learned counsel for respondent No.1-plaintiff that merely because the plaintiff had sought an alternative relief in addition to the principal relief, it does not follow that, upon grant of the alternative relief and refusal of the principal relief, the suit claim stands fully satisfied. It is further contended that the plaintiff is entitled to challenge such refusal and to seek the primary relief which was denied by the trial Court. It is further contended by learned counsel that the alternative prayer is only ancillary to and dependent upon the principal prayer and that the primary relief sought by the plaintiff was specific performance of contract, whereas the alternative relief was not intended to stand independently by itself.
5.5 Learned counsel for respondent No.1-plaintiff has placed reliance on Section 19 of the Specific Relief Act, a - 30 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR 1963, contending that relief may also be claimed against the parties to the contract as well as persons claiming under them by a subsequent title, in addition to the relief already sought in the plaint.
5.6 Learned counsel for respondent No.1-plaintiff has also taken this Court to the provisions of Sections 52 and 53A of the Transfer of Property Act, 1882 (for short, 'TP Act'), which read as under:
"Section 52. Transfer of property pending suit relating thereto. During the [pendency] in any Court having authority [within the limits of India excluding The State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] 5[*] of [any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under my decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
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Section 53A: Part performance. Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession me property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that [*] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.] a - 32 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR 5.7 Learned counsel for respondent No.1-plaintiff has also placed reliance on Section 3 of the TP Act, more particularly Explanation I to Section 3 thereof, which reads as under:
"Section 3. Interpretation clause.- xxx Explanation I.- Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-
district any part of the property which is being acquired, or of property wherein a share or interest is being acquired, is situated:] Provided that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, a - 33 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act."
5.8 Learned counsel for respondent No.1-plaintiff has also relied upon the provisions of Order XLI Rule 22 of CPC and Order XLI Rule 33 of CPC relating to the powers of the Appellate Court in an appeal to pass an appropriate judgment and decree read as under:
"Order XLI Rule 22: Upon hearing respondent may object to decree as if he had preferred a separate appeal.- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal a - 34 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
[Explanation.- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto.- Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
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(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.
Order XLI Rule 33: Power of Court of Appeal- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:
[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]"
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5.9 Learned counsel for respondent No.1-plaintiff has placed reliance on the judgment of the Hon'ble Apex Court in the case of Maharaj Singh and Others v. Karan Singh (Dead) Through Legal Representatives and Others reported in (2024) 8 Supreme Court Cases 83, particularly paras - 22 and 24 thereof read as under:
"Para-22: A Bench of two Hon'ble Judges has rendered this decision. Unfortunately, the attention of the Bench was not invited to binding precedent in the form of a decision of a larger Bench in Durga Prasad. Hence, the decision in B. Vijaya Bharathi is not a binding precedent. Therefore, there was no requirement to make a prayer in the plaint for cancellation or setting aside the subsequent sale deeds.
Para-24: In view of clause (b) of Section 19, the defendants who are claiming under the sale deeds executed after the execution of the suit agreement can be subjected to a decree of specific performance as the suit agreement can be enforced specifically against such defendants unless they are bona fide purchasers without the notice of the original contract. When, in a given case, the defendants, who are subsequent purchasers, fail to prove that they entered into the sale deed in good a - 37 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR faith and without notice of the suit agreement, in view of Section 19(b), a decree for specific performance can be passed against such defendants. Therefore, in such a case where Section 19(b) is applicable, under the decree of specific performance, the subsequent purchasers can be directed to execute the sale deed along with the original vendor. There is no necessity to pray for the cancellation of the subsequent sale deeds."
5.10 It is further contended by learned counsel for respondent No.1-plaintiff that the defendants, who claim right, title and interest under sale deed executed subsequent to the agreement of sale, are also bound by a decree for specific performance. It is also contended by the learned counsel that such subsequent purchasers may be directed to execute the sale deed along with the original vendor. It is further contended by learned counsel that the Hon'ble Apex Court has held that there is no necessity to seek cancellation of the subsequent sale deed as a precondition for granting such relief.
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5.11 Learned counsel for respondent No.1-plaintiff has also placed reliance on the judgment of Hon'ble Apex Court in the case of Vidhyadhar v. Mankikrao and Another reported in AIR 1999 Supreme Court 1441, more particularly para-16 thereof reads as under:
"Para-16: Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross ex-amined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh' v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa -Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, - AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from a - 39 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
5.12 It is the contention of learned counsel for respondent No.1-plaintiff that when a party does not enter the witness box to depose in support of his own case, nor subjects himself to cross-examination or leads evidence, an adverse presumption may be drawn in favour of the plaintiff under Section 114 of the Indian Evidence Act, 1872. It is also contended by learned counsel that where the party against whom the case is filed has failed to file a written statement or to step into the witness box and furnish the best possible evidence, such presumption would operate against him.
5.13 Learned counsel for respondent No.1-plaintiff further contends that there is absolutely no illegality or a - 40 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR perversity in the judgment rendered by the first Appellate Court. The first Appellate Court, having come to the conclusion that the trial Court had committed an error in declining the relief of specific performance of the agreement of sale, interfered with the impugned judgment and decree of the trial Court. It further held that the sale agreement was a registered and valid document and since the same had not been challenged either during the lifetime of Kullaiah or thereafter by his children, a presumption in its favour would arise.
5.14 The first Appellate Court also took note of the fact that defendant Nos.1 to 5 neither filed a written statement nor entered the witness box. Likewise, defendant No.6, though the only contesting defendant in the suit proceedings, had purchased the property from defendant Nos.1 to 5, who, according to the findings recorded, had no subsisting right, title or interest to convey the suit schedule property in his favour. Consequently, it was held that the sale deed so executed a - 41 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR did not affect the rights of the plaintiff, particularly as the suit for enforcement of the agreement of sale had already been instituted on 19.07.2016, whereas the registered sale deed in favour of defendant No.6 came to be executed subsequently on 27.02.2018. Therefore, the first Appellate Court came to the conclusion that the trial Court had committed an error in not decreeing the suit for specific performance and in failing to direct delivery of possession and execution of the sale deed by the defendants, including defendant No.6, by joining defendant Nos.1 to 5 in executing the sale deed in favour of the plaintiff, particularly when the plaintiff had established his readiness and willingness to perform his part of the contract.
5.15 On the basis of such findings, the first Appellate Court set aside the judgment and decree of the trial Court and granted a decree for specific performance of contract. It directed defendant Nos.1 to 5 to execute and register the sale deed upon receipt of the balance sale a - 42 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR consideration amount, which was held to be just and proper. It also directed defendant No.6 to join defendant Nos.1 to 5 in executing the sale deed in favour of the plaintiff. According to him, the judgment and decree of the first Appellate Court does not call for interference.
6. Heard learned counsel for appellant-defendant No.6 and learned counsel for respondent No.1-plaintiff. The points that arises for consideration are:
"1. Whether the appellant-defendant No.6 has made out any valid ground or cogent reason warranting interference with the judgment and decree rendered by the first Appellate Court?
2. Whether the substantial questions of law proposed by the appellant-defendant No.6 in the memorandum of appeal require to be formulated by this Court to further delve into the matter?"
7. Admittedly, there is no dispute with regard to the relationship of the parties, i.e., Kullaiah with defendant Nos.1 to 5 and also with regard to the execution of the agreement of sale dated 28.02.2013 by Kullaiah in favour a - 43 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR of the plaintiff. Though learned counsel for appellant- defendant No.6 vehemently contended that Kullaiah did not have the absolute right to execute or enter into the said agreement of sale, on the ground that the suit schedule property was ancestral properties. The fact remains that the sale agreement dated 28.02.2013 is a registered document. It is also a fact that the sale deed dated 27.02.2018 came to be registered in favour of defendant No.6 by defendant Nos.1 to 5, much after the suit had been filed and prior to the judgment rendered in the original suit.
8. Apparently, it is seen that, in pursuance of service of summons, there was no appearance on behalf of defendant Nos.1 to 5 and no written statement was filed by them. So also, defendant No.6, though having appeared and filed a written statement, did not step into the witness box nor lead any evidence before the trial Court. Now, the question that remains for consideration is whether the first Appellate Court, having proceeded to a - 44 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR decree the suit for specific performance, was justified in doing so, when the trial Court had only passed an order directing refund of the advance sale consideration, the said amount having already been deposited by defendant No.6 before the trial Court.
9. The first Appellate Court has considered the entire contentions of the plaintiff and defendant No.6 while delving into the matter and has referred to several judgments in its order. It has also arrived at a conclusion with regard to the sale agreement, the balance amount payable and the evidence adduced by the plaintiff through witnesses, i.e., PWs.1 to 3. It has further taken note of the non-examination of defendant No.6, non-contest by defendant Nos.1 to 5 and the failure of defendant No.6 to step into the witness box. The first Appellate Court has also taken into consideration the issue of limitation as put forth by defendant No.6, as well as the legal notice, service of the legal notice and the fact that the suit came to be filed after lapse of 11 months.
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10. It is relevant to note that defendant No.6 purchased the property pursuant to the filing of the suit under the registered sale deed dated 27.02.2018 and was required to prove that he was a bona fide purchaser of the suit schedule property. The first Appellate Court has come to the conclusion that a presumption would arise in favour of the plaintiff with regard to the agreement of sale and the subsequent purchase of the property. There was no challenge made either by the plaintiff or by defendant No.6 with regard to the nature of the property being ancestral property, nor was there any challenge to the validity of the execution of the agreement of sale by late Kullaiah in favour of the plaintiff.
11. The first Appellate Court has also come to the conclusion that merely because the plaintiff took time to issue a legal notice to defendant Nos.1 to 5 and thereafter, filed the suit for specific performance after lapse of 11 months, the same would not render the suit invalid nor give rise to any adverse inference against the plaintiff. The a - 46 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR first Appellate Court has further held that, in view of the fact that defendant No.6 is a subsequent purchaser during the pendency of the suit, the plaintiff would be entitled to seek a direction to defendant No.6 to join defendant Nos.1 to 5 in executing the sale deed in favour of the plaintiff and that the same would not operate as a bar.
12. Having considered the judgment rendered by the first Appellate Court and the submissions of the learned counsel for the appellant-defendant No.6 as well as the learned counsel for respondent No.1-plaintiff, I am in agreement with the learned counsel for respondent No.1- plaintiff that there is no error, perversity or illegality committed by the first Appellate Court in passing the judgment and decree for specific performance of the agreement of sale in favour of the plaintiff. The direction that the same shall be executed by defendant Nso.1 to 5 and that defendant No.6 shall join defendant Nos.1 to 5 in the execution and registration of the sale deed in favour of the plaintiff, is also justified. There is no bar under any law a - 47 -
NC: 2026:KHC:20766 RSA No. 1281 of 2024 HC-KAR in directing defendant No.6 to join defendant Nos.1 to 5 for registration of the sale deed upon receipt of the balance sale consideration amount.
13. Under the circumstance, no doubt defendant No.6 has sought for framing of substantial questions of law in this appeal. However, upon going through the material on record, I do not find any good ground or cogent reason has been made out by the appellant-defendant No.6 for this Court to frame such substantial questions of law. What has been urged in the appeal memo has already been considered by the first Appellate Court and no point of law survives for framing substantial questions of law, which has not already been considered by the first Appellate Court.
14. Accordingly, I pass the following:
ORDER i. This appeal is dismissed at the stage of admission itself, as this Court does not find any good ground to formulate any substantial questions of law;
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ii. Learned counsel for appellant-defendant No.6
submitted that he has deposited a sum of ₹40,000/- along with interest before the trial Court. The same shall be refunded to the appellant-defendant No.6 upon furnishing the relevant Bank details and subject to proper identification.
In view of dismissal of the appeal, pending interlocutory application, if any, does not survive for consideration and the same pales into insignificance.
Sd/-
(PRADEEP SINGH YERUR) JUDGE CPN List No.: 1 Sl No.: 36