Bangalore District Court
Sri Chinnaiah @ Chinnaswamy vs Sri.N.S.Suresh Babu on 10 September, 2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this 10th day of September, 2015.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.No.2795/2008
PLAINTIFF : Sri Chinnaiah @ Chinnaswamy,
s/o Sri Chinnakarpan,
aged about 60 years,
r/at No.165, 69th Cross, 5th Block,
Rajajinagar, Bangalore.
(By Sri D.S.Jayaraj,Advocate)
-VS-
DEFENDANT : Sri.N.S.Suresh Babu,
s/o late N.L.Satyanarayana Shetty,
aged about 45 years,
r/at No.9,
West Circle Road,
V.V.Puram, Bangalore-04.
( By Sri.VSR, Advocate)
Date of Institution of the suit : 15/4/2008
Nature of the Suit : Specific Performance
2 O.S.No.2795/2008
Date of commencement of recording
of evidence : 28/1/2011
Date on which the Judgment was
pronounced : 10/9/2015
Year/s Month/s Day/s
Total Duration : 07 04 25
JUDGMENT
The plaintiff has filed this suit for the relief of specific performance relating to the oral agreement directing defendant to execute sale deed in favour of plaintiff in respect of suit schedule property with court costs and such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff is in possession and enjoyment of suit schedule property bearing House List No.50/10-9 formed in Sy.No.50/10 situated at Nayandanahalli Village, Kengeri Hobli, Bangalore South Taluk measuring East to West 33 ft and North to South 115 ft. Plaintiff is in possession of suit schedule property as absolute 3 O.S.No.2795/2008 owner by virtue of Registered sale deed dtd:18/2/1998 executed by S.Prakash s/o N.Subramanyam. He is paying taxes to the concerned authorities. Further father of defendant filed O.S.No.5240/1987 against one Ramachandra for declaration that he is the absolute owner of Sy.No.50/10 measuring 1 acre 35 guntas situated at Nayandanahalli village, Kengeri Hobli, Bangalore South Taluk and this court passed judgment and decree on 30/7/1993 declaring that father of defendant is absolute owner of said property. Based on said judgment and decree, defendant's father had filed Ex.No.203/1994 which is still pending for consideration. Plaintiff is not party to said suit. In order to avoid litigation in respect of title of the property, plaintiff agreed to purchase suit schedule property from father of defendant and father of defendant also agreed to sell the suit schedule property by obtaining sale consideration at the rate of Rs.95/- per sq.ft totally amounting to Rs.3,60,525/-. Plaintiff has also paid Rs.25,000/- through cheque bearing No.326520 dtd: 4 O.S.No.2795/2008
30/12/1996 drawn on Syndicate Bank. Plaintiff has also paid Rs.50,000/- through cheque bearing No.379237 dtd:16/1/2004 drawn on Syndicate Bank, Cottonpet Branch to defendant. Plaintiff has also paid Rs.1,20,000/- through D.D. bearing No.859732 and No.859733 both dated 16/12/2003; D.D. bearing Nos.864815 and 864814 both dtd:
23/6/2004 drawn on Syndicate Bank, Bangalore. Even though defendant received a sum of Rs.50,000/-, but he failed to give any acknowledgement. Thus, in all, plaintiff paid Rs.2,45,0000/- as advance sale consideration amount. After accepting the above said amount from plaintiff, defendant has not come forward to execute the sale deed even after repeated requests and demands. Plaintiff is ready to perform his part of contract and willing to pay the remaining balance amount and ready to get sale deed in his favour. Time is not the essence of the agreement. When plaintiff is in possession of suit schedule property, it is settled principle that time is not essence of contract. Plaintiff has 5 O.S.No.2795/2008 filed application under Order XXI R.97 CPC in Ex.No.203/1994 as objector to adjudicate the claim. It is still pending for consideration. In order to put off litigation, it is agreed between parties to purchase the property by paying the above said sale consideration i.e., to buy piece of land. Negotiations took place between plaintiff and defendant and matter was being adjourned from time to time in Ex.Petition to report settlement. Looking into the rival contentions of plaintiff and defendant, learned Judge has also referred the matter to Mediation to work out remedies and possibility of settlement between plaintiff and defendant in said execution petition. Ultimately, matter was remanded back, because defendant demanded prevailing market rate with a sole intention to extract money from plaintiff and thus, conciliation was failed. Defendant has been taking adjournment on one pretext or other in the execution petition. Absolutely, there are no reasons on the part of defendant in non-compliance of terms in executing the sale 6 O.S.No.2795/2008 deed. The delay tactics adopted by defendant is in view of escalation of price. Once defendant accepted part of sale consideration, only course open for him is to execute the sale deed by receiving balance sale consideration. However, defendant is not ready to comply with the undertakings. Plaintiff had paid the entire sale consideration agreed between plaintiff and defendant and even afterwards, defendant failed to come forward to execute the sale deed. Hence, there was no option for plaintiff and he issued notice to defendant on 3/1/2008 to appear before Sub-Registrar on 10/1/2008 with relevant documents to register the property. Inspite of notice, defendant failed to comply with the same. Defendant is aware of notice, but made all necessary arrangements to get schedule property registered endorsement on the notice. Defendant has not appeared before Sub-Registrar only to deprive the claim of plaintiff. Hence, the suit for appropriate reliefs. 7 O.S.No.2795/2008
3. After service of suit summons, defendant appeared through his counsel and filed his written statement wherein he contended that the suit is barred by limitation and also barred under provisions of CPC. Plaintiff has filed the suit only to abuse the process of law by unscrupulous litigants. The suit is filed with malafide intention. Plaintiff is attempting to drag defendant from one court to another to defeat the very purpose of decree already granted by court in O.S.No.5240/1987. Defendant's father has filed suit against Ramachandra in O.S.No.5240/1987 on 25/11/1987 in respect of 1 acre 35 guntas in Sy.No.50/10 of Nayandanahalli, Kengeri Hobli, Bangalore South Taluk for declaration and mandatory injunction directing removal of constructions. Said Ramachandra filed written statement and contested the suit. It was decreed on 30/7/1993. Only with a view to defeat the rights of father of defendant and to frustrate the decree that may be passed in the suit, even during pendency of the said suit and even after passing 8 O.S.No.2795/2008 judgment and decree, Ramachandra sold portions of suit schedule land in said suit to several persons. All these persons including present plaintiff are lis pendens transferees from said Ramachandra. Father of defendant filed Ex.No.203/1994 seeking enforcement of the order of mandatory injunction passed in O.S.No.5240/1987 for demolition of construction put up on the property. During pendency of said Ex.Case, father of defendant died and defendant being his LR comes on record. During pendency of execution petition, several persons who were all lis pendens transferees filed petitions under Order XXI R.97 CPC in Execution Petition seeking obstruction of decree. The plaintiff traces his title to one G.Ahamd Ghouse who is alleged to have purchased property from Ramachandra on 1/6/1988 i.e., during pendency of the suit. Defendant filed objections to said application. With a view to drag on the proceedings and to complicate the matter, plaintiff with other objectors filed I.A. under S.151 CPC alleging that a 9 O.S.No.2795/2008 settlement had been entered into between himself and defendant and prayed for dismissal of execution petition. Present defendant filed objections to said application also. Thereafter, the matter was set down for hearing on the applications filed by the plaintiff and other obstructers and also on maintainability of those applications. Only after submitting arguments on behalf of these obstructers in said execution petition, they came to know that they had no case. In this regard, the obstructer sought to withdraw the applications filed by them under S.151 CPC. Instead they filed separate suits purporting to seek specific performance of alleged agreements for compromise of the suit. On the basis of it, they sought stay of execution proceedings. They have further filed miscellaneous petitions seeking to club these several proceedings with the execution case. These facts reveal the sole intention of obstructers including present plaintiff is to drag on the proceedings with a view to confuse the issue, complicate the matter and thereby 10 O.S.No.2795/2008 denying the rights of defendant to enjoy the fruits of decree passed in his favour.
Defendant further contended that the suit is not maintainable on 5 grounds.
1) Firstly, suit is barred under S.47 CPC since all questions arising between the decree holder and judgment debtor or his representatives including questions pertaining to the alleged discharge or satisfaction of the decree is to be decided by the executing court.
2) Secondly, suit is barred by virtue of provisions of Order XXI R.101 CPC. Plaintiff is not entitled to prosecute the parallel proceedings in relation to the same issue when plaintiff has chosen to file an application under Order XXI Rule 97 CPC question arising between the parties to that proceeding is required to be tried by the executing court itself and a separate suit is barred.
3) Thirdly, absolutely no agreement between parties.
Even assuming without conceding, for the sake of argument that an agreement exists, the said agreement admittedly not even certified by the 11 O.S.No.2795/2008 executing court in terms of Order XXI Rule 2(3) of CPC and as such, is void.
4) Fourthly, even otherwise, present suit is hopelessly barred by limitation. Plaint averments are entirely vague as to the alleged agreement, the date of alleged contract and its terms. It appears that plaintiff's claim is that the alleged agreement was entered into somewhere in 2003 or before that and the suit is filed in the year 2008. Admittedly, defendant was actively prosecuting the execution case and had in course of proceedings filed statements denying the very existence of agreement and hence, suit filed about 5 years after the date of such alleged agreement is barred by limitation.
5) Fifthly, plaintiff herself is not ready and willing to perform his obligations as per his own pleadings. Defendant further denied that plaintiff is in possession and enjoyment of any part of the property in Sy.No.50/10 of Nayandanahalli, Kengeri Hobli, Bangalore South Taluk. The identity and location of suit schedule property is not made out from description given in the plaint or in the suit 12 O.S.No.2795/2008 schedule. He denied that S.Prakash was in possession of suit schedule property at any point of time or plaintiff gets his possession through S.Prakash. He denied all other averments made in the plaint regarding agreement between plaintiff and defendant about suit schedule property or price fixed at Rs.95/- per sq.ft. He denied all other averments made in the plaint regarding agreement between him or his father with plaintiff. But admitted about the proceedings in Execution No.203/1994. He contended that when defendant sought to execute the decree, some of the obstructers in Ex.No.203/1994 requested him to give some time to vacate the property and at that point of time, in order to compensate the decree holder for damages for illegal use and occupation of the properties, some payments are made to him and thereafter, instead of vacating the property, the said objectors turned around and sought to press the objections in the execution proceedings. The payments referred in the plaint at para No.4 of the plaint is towards 13 O.S.No.2795/2008 damages and not as advance payments for any agreement. The conduct of plaintiff discloses that there was no readiness or willingness on his part and thus, not entitled for equitable relief of specific performance of agreement. He further contended that plaintiff is not definite about his case, at one stretch he pleads the part payment and at another stretch, he pleads the entire payment of sale consideration amount. He contended that the plaintiff is a trespasser and is illegally in use and occupation of the property. He further contended that the attempts made for settlement in Ex.No.203/1994 indicates absolutely no agreement between plaintiff and defendant and matter was referred to mediation to work out remedies and possibilities of settlement between parties is only an attempt to put an end to the litigation on account of the fact that already one generation of defendant's family has passed away during the course of litigation in execution proceedings without enjoying the benefits of decree in their favour. However, plaintiff was thereafter entirely 14 O.S.No.2795/2008 unreasonable in his stance and no settlement could be effected before mediation centre. The notice dtd:3/1/2008 is not within his knowledge and it is not received by him. He has filed objections to application under Section 151 CPC in execution proceedings denying the existence of suit agreement. Hence, there is no need or necessity to issue notice. Hence, prayed for dismissal of the suit with exemplary costs.
4. From the above facts, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that the father of the defendant has orally entered into an agreement of sale agreeing to sell the suit schedule property at the rate of Rs.95/- per sq.ft as alleged?
2. Whether the plaintiff proves he has made payments as detailed in para 5 and 6 of the plaint to the defendant and his father towards part sale consideration and the defendant is bound by the said agreement of sale?15 O.S.No.2795/2008
3. Whether the plaintiff proves that he always been ready and willing to perform his part of contract?
4. Whether the Plaintiff proves that the defendant has committed default and failed to execute the registered sale deed as agreed upon in terms of the said agreement of sale?
5. Whether the plaintiff is entitled for the relief of specific performance of contract as sought for?
6. Whether the suit is barred by limitation?
7. Whether the suit is not maintainable for the reasons stated in the written statement?
8. Whether the plaintiff is entitled for a judgment and decree as prayed for?
9. To what Order or Decree?
5. On behalf of plaintiff, plaintiff is examined as PW-1, got marked Ex.P.1 to Ex.P.29 and closed his side. On behalf of defendant, defendant is examined as D.W.1, got marked Ex.D.1 to Ex.D.7 and closed his side.
16 O.S.No.2795/2008
6. Heard arguments of both sides. Plaintiff's counsel has also filed synopsis of his arguments.
7. Findings of this court on the above issues are:-
Issue No.1:- In Negative;
Issue No.2:- Partly in Affirmative; Issue No.3:- In Negative;
Issue No.4:- In Negative;
Issue No.5:- In Negative;
Issue No.6:- Does not arise for consideration; Issue No.7:- In Affirmative;
Issue No.8 :- In Negative;
Issue No.9:- As per the final order for the following:-
REASONS ISSUE Nos.1 & 2
8. These issues are considered together as they require common discussion.
9. Before considering the facts of the case, it is pertinent to note the admitted proceedings that have taken place between parties and others.
17 O.S.No.2795/2008
10. It is an admitted fact that father of defendant has filed O.S.No.5240/1987 against one Ramachandra in respect of Sy.No.50/10 initially for declaration and permanent injunction and then added the relief of mandatory injunction and in which case, said Ramachandra has filed his written statement denying the contentions of defendant's father, but did not come forward to cross-examine plaintiff or to lead any evidence. Said suit was decreed on 30/7/1993 declaring the plaintiff of said suit as owner of the property bearing Sy.No.50/10 measuring 1 acre 35 guntas and further Ramachandra was permanently restrained from trespassing over suit schedule property and obstructing the peaceful possession of plaintiff over said suit schedule property; it is further ordered to direct the said defendant-Ramachandra to demolish the construction of building which has come up in the suit and make it fit for agricultural purpose. Defendant has produced the certified copies of judgment and decree passed in said suit as per Ex.D.1 and Ex.D.2. 18 O.S.No.2795/2008
11. It is an admitted fact that based on said judgment and decree, father of defendant has filed Ex.No.203/1994 against said Ramachandra and during pendency of said suit, plaintiff of present suit and several other persons have filed applications under Order XXI R.97 to come on record as obstructers in respect of suit schedule property. During pendency of consideration of said application, present plaintiff and others have filed I.A. under S.151 CPC to dismiss the execution petition, as there was compromise between parties and then got it withdrawn the said I.A. and afterwards, filed the present suit.
12. Defendant has not seriously disputed about the suit filed by Ramachandra in O.S.No.4128/1984 against Rukminibai and decree passed in said suit for specific performance of the agreement.
13. It is the contention of plaintiff that said Ramachandra got decree for specific performance of the agreement in 19 O.S.No.2795/2008 respect of Sy.No.50/10 measuring 1 acre 5 guntas from Rukminibai and based on said decree and GPA executed by Rukminibai in his favour, he has sold bits of properties to several persons. One of them is the vendor of the plaintiff. Plaintiff has produced the registered sale deed as per Ex.P.1 and E.Cs. as per Ex.P.2 and Ex.P.3 to show that plaintiff has purchased the suit schedule property from one S.Prakash. Plaintiff has also produced demand register extract as per Ex.P.4 to show that suit schedule property stands in the name of plaintiff in Nayandanahalli, Pattanagere Group Panchayath.
14. As discussed above, plaintiff has filed I.A. under Order XXI R.97 r/w S.151 CPC in Ex.No.203/1994. Defendant has produced certified copy of said I.A. and affidavit as per Ex.D.3 and Ex.D.4. These documents are admitted and filed before court in another proceeding and hence, it can be looked in to.
20 O.S.No.2795/2008
15. In the affidavit annexed to said I.A. i.e., in Ex.D.4, the present plaintiff has stated in the execution petition that he is the absolute owner in possession of suit schedule property having purchased the same under registered sale deed dated: 18/2/1998 from S.Prakash and all revenue documents are standing in his name. He further pleaded that one G.Ahmed Khan s/o Ghouse Khan has purchased the suit schedule property from Ramachandra under registered sale deed dated 1/6/1988 registered in No.2769/87-88. Said Ramachandra acquired the shed i.e., suit schedule property as per judgment and decree passed in O.S.No.4128/1984 dtd:1/12/1984 from Rukminibai. Said Rukminibai has executed agreement of sale in favour of Ramachandra.M. In the said suit Rukminibai undertook that she will not alienate the property and executed irrevocable GPA in favour of Ramachandra. It is further averred in para 4 of the affidavit that Rukminibai sold the same in favour of Ahmed Khan under the deed dtd:27/6/1989 and in turn Ahmed Khan sold 21 O.S.No.2795/2008 it to J.Hariram and Saraswathi; in turn, they sold it to plaintiff.
16. The above said pleadings in the affidavit annexed to I.A. as per Ex.D.4 is confusing. At one stretch, this plaintiff states that Ahmed Khan purchased the property under registered sale deed from Ramachandra and at another stretch, he states that Ahmed Khan purchased from Rukminibai under deed of 1989. At another stretch plaintiff pleads that he purchased the property from one S.Prakash. However, he has no stated in this affidavit that how said Prakash got said property. However, it is not much relevant to decide the present suit. Furthermore, plaintiff has not made any efforts to produce certified copy of Judgment and Decree passed in O.S.No.4128/1984 to know the rival contentions of both parties or to know the result of said suit. Any way from Ex.P.1 to Ex.P.4, it can be gathered that plaintiff claims that he is in possession of suit schedule 22 O.S.No.2795/2008 property based on registered sale deed executed by Prakash who in turn claims the property through Ramachandra.
17. The above said facts made it very clear that plaintiff claims the suit schedule property only through Ramachandra who has suffered decree in O.S.No.5240/1987 pertaining to the present suit schedule property which is a portion of Sy.No.50/10 i.e., suit schedule property in said suit. The learned counsel for defendant vehemently submitted arguments that when plaintiff claims his title to suit schedule property through Ramachandra, he has no independent right to agitate his claim and hence, his claim is to be decided in Ex.No.203/1994, because, he is lis-pendens transferee. According to plaintiff, he got the property through Registered sale deed dated: 18/2/1998 executed by one S.Prakash. Thus, the claim of plaintiff through S.Prakash is only during pendency of suit in O.S.No.5240/1987. In this regard, defendant's counsel relied on the citation reported in AIR 23 O.S.No.2795/2008 2008 SC 2560 in "Smt.Ram Peary and others v/s Gauri and others" wherein, their Lordships held as under:-
"Contract - subsequent transferee - Section 52 of Transfer of Property Act, 1882 - subsequent transferee entirely ignorant of any right on the part of contractor - suit filed by contractor against the vendor is also not known to him - subsequent transferee cannot setup against the contractor any right from which the vendor is excluded by the decree."
In the above said citation, their lordships further held as under:
"In our opinion, therefore, when the doctrine of lis pendens renders a transfer made during the pendency of the suit subservient to the rights of the plaintiff seeking specific performance of a prior contract entered into by the vendor in his favour and when 'on account of the operation of the doctrine of lis pendens such conveyance is treated as if it had never any existence, the subsequent transferee, even though he had obtained the transfer without notice of the original contract, cannot set up against plaintiff -contactor any right; for it would defeat the rule of lis pendens which is founded upon public policy. And considered in that manner, Section 52 of the T.P.Act is not subject to S, 19(b) of the Specific Relief Act.24 O.S.No.2795/2008
8. We may yet arrive to a similar conclusion in a different manner. "A judgment inter-parties raises an estoppel only against the parties to the proceeding in which it is given, and their privies, for example, those claiming or deriving title under them."
(Halsbury's Laws of Engand, Third Ediition, Volume 15, para 372). The transferee pendente lite would be treated as a representative in interest of the parties to the suit and the judgment which has been pronounced, in the absence of fraud and collusion, would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. The decision being respondent-judicata would bind not only the parties thereto but also the transferees pendente lite from them."
18. Learned counsel for defendant further relied on the citation reported in (2008) 7 SCC 144 in "Usha Sinha v/s Dina Ram and others" wherein, their Lordships held as under:-
"The doctrine of lis pendens is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right 25 O.S.No.2795/2008 to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
The doctrine of lis pendens would apply to the transaction in question, and the High Court was wholly right in holding that the case was covered by Rule 102 of Order 21 CPC. The appellant could not seek protection of pendency of suit instituted by her. The executing court was not justified in granting stay of execution proceedings."
19. In both the above said citations, their Lordships clearly held that if a person purchases the property in dispute in any suit during pendency of said suit, then, his rights are subservient to the rights of party to said suit. In the instant case, admittedly, plaintiff's vendor claims right only through the defendant in O.S.No.5240/1987. Hence, his right is subservient to the right of defendant in said suit.
20. It is to be noted here that in the instant case, plaintiff is claiming independent agreement with defendant and not 26 O.S.No.2795/2008 claiming right through Prakash or through defendant of O.S.No.5240/1987. The rights of present plaintiff as per registered sale deed is to be decided in Ex.No.203/1994 and not in this suit.
21. Defendant's counsel argued that at one stretch, plaintiff pleads part payment of consideration amount towards agreement; whereas, at another stretch, he pleads entire payment of consideration amount towards agreement. And thus, his said pleadings are definitely inconsistent pleas taken by plaintiff in the plaint.
22. In this regard, learned counsel for defendant relied upon the unreported decision reported in RSA.No.103/2008 at Dharwad Bench in "Albarsab & others v/s Smt.Tippawwa" wherein, their Lordships held as under:-
"9. Learned Counsel for the appellants has vehemently argued that the defendant has taken up an inconsistent stand of having acquired the title by way of adverse possession in respect of this area measuring 27 O.S.No.2795/2008 4' x 29'. Therefore, it is argued that, defendant cannot blow hot and cold together. It is well established that a plaintiff cannot take inconsistent stand in the plaint and cannot seek inconsistent prayers. A defendant can take inconsistent stand and hence the alternate defence of adverse possession will not come in the way of the defendant, more particularly when the plaintiff has thoroughly failed to prove the important aspect of title in respect of their area."
23. The above ruling made it very clear that defendant is permitted to take inconsistent pleas and not plaintiff. In the instant case, as stated above, at one stretch, plaintiff claims that he has paid the entire consideration amount to defendant and at another stretch; he contends that he paid part amount and ready to pay the balance amount. This plea of plaintiff is not definitely inconsistent plea in the plaint.
In the plaint, plaintiff pleads that he has purchased the suit schedule property from S.Prakash under registered sale deed and again pleads that there is an oral agreement with defendant to purchase the suit schedule property. Hence, defendant's counsel submitted that there is inconsistent plea 28 O.S.No.2795/2008 on this point. However, the entire plaint pleadings is to be looked in to. Hence, in the further para, plaintiff pleads that to avoid future litigation pertaining to schedule property, he agreed to purchase suit schedule property from father of defendant and after his death, he entered in to agreement with defendant. Hence, there is no question of inconsistency in this plea as argued by defendant's counsel.
24. Though, in the plaint, plaintiff pleads agreement with defendant/his father; in the cross-examination, plaintiff has deposed that he does not know defendant and his father. Without knowing defendant or defendant's father, plaintiff cannot enter into agreement with him. Hence, his pleadings that plaintiff agreed to purchase the suit schedule property from defendant or father of defendant is difficult to accept.
25. In the further cross-examination, plaintiff asserts that he purchased the suit schedule property from one Prakash through a registered sad and also asserts that he is the 29 O.S.No.2795/2008 absolute owner of suit schedule property. He further deposed that in 1996 defendant and his father had come to demolish the building in schedule property, at that time, there was negotiations and settlement was reached between them and no document was executed in writing at that time and no agreement was entered in to between them in the year 1996.
26. The above evidence of P.W.1 reveals that again he himself denies the agreement between him and father of defendant, but again he deposed that he has paid Rs.25,000/- by cash to the father of defendant when he came for demolition and he has not paid any other amount in 1996. The above evidence of P.W.1 in his cross-examination is little bit contrary to his plaint and examination-in-chief. Because, in examination-in-chief and paint, he stated that he has paid Rs.25,000/- by way of cheque to father of defendant, but in the cross-examination, he deposed that the said amount was paid through cash. Again in the further 30 O.S.No.2795/2008 cross-examination held on 17/7/2015, this witness again stated that he has given cheque to father of defendant on the date of oral agreement itself. But he does not remember the date of handing over said cheque.
27. On perusal of his above said evidence, it is quite clear that plaintiff himself is confused i.e., to say whether he paid Rs.25,000/- in cash or in cheque to the father of defendant. He has produced his bank pass book as per Ex.P.9. This pass book contains entries only of 2003-04 and not the entry of 1996. Hence, payment during 1996 is not proved. In the further cross-examination held on 21/7/2011, again this witness has admitted that defendant has not entered in to any agreement with him and further deposed that defendant assured him to execute an agreement after receiving the amount. But even after payment made by him, he has not executed the agreement.
28. The above evidence of P.W.1 makes it very clear that plaintiff himself has not admitted that he entered into 31 O.S.No.2795/2008 agreement with defendant or with his father. Hence the pleadings of plaintiff that he had oral agreement with defendant's father or with defendant is very difficult to accept.
29. Learned counsel for defendant submitted arguments that it is very difficult to prove oral agreement. The high standard of proof is required to prove the same. In this regard, he relied on the citation reported in 2009(4) Mh.L.J. in Chandrahas v/s Misribai" wherein, their Lordships held as under:-
"10. It is the positive case of the appellant that an oral agreement was entered into in regard to the suit transaction. In such a situation, it is required to be noted that in the normal course, grant of specific performance based on oral agreement is always considered with reservations. Assuming that in a peculiar case, the Court would like to grant the relief of specific performance it will be the duty of the Court to ascertain the terms on the basis of which the parties wanted to complete the transaction. In such a case, the terms of oral agreement are required to be paced before the Court in the form of evidence so as to crystallize the terms on the basis of 32 O.S.No.2795/2008 which specific performance was agreed to be granted. In the present case, the evidence on record nowhere shows as to on what terms the specific performance was required to be granted. The quality of evidence placed before the Court in the matter of grant of specific performance is absolutely weak. In any case, in the absence of agreement that the owners who could convey the property i.e., in the absence of direct agreement with respondent Nos.1 and 2, the appellant could not get specific performance. Whatever the transaction which he had with respondent No.3 was not binding upon respondent Nos.1 and 2. For the reasons mentioned aforesaid, the learned trial judge was right in appreciating the evidence against the appellant and that the learned trial Judge rightly declined to grant specific performance."
30. In this regard, learned counsel for plaintiff relied on the citation reported in ILR 2014 KAR 4185 in "S.V.Narayanaswamy v/s Smt.Savithramma, since deceased by her Lrs. and others" wherein, their Lordships held as under:-
"A) Specific Relief Act, 1963 - Sections 16 & 20- Oral agreement of sale - Suit for specific performance of oral agreement of 33 O.S.No.2795/2008 sale - Payment of full sale consideration amount in cheque and cash - Delivery of possession in part performance of agreement
- Documents were handed over pursuant to the sale agreement - Plaintiff/Appellant obtained licence and sanctioned plan for the construction- Plaintiff/Appellant was authorized under the irrevocable General Power of Attorney to put up construction, to obtain licence, to pay taxes, to obtain necessary permissions from the authorities concerned - General Power of Attorney executed coupled with interest - Pleadings are in conformity with Section 16(c) of the Specific Relief Act - No specific denial of the plaint averments as required under Order 8 Rules 3 and 5 of CPC - Evidence on record to show the readiness and willingness of the plaintiff to perform his part of contract through the process of transaction. -
Dismissal of suit by the Trial Court without exercising judicious discretion under Section 20 of the Act - Grant of decree of permanent injunction in favour of defendant - Appealed against - Re-appreciation of evidence on record - HELD, Trial Court erred in dismissing the suit - Plaintiff /Appellant is entitled for specific performance of oral agreement of sale - Appellant has pleaded all the ingredients of oral sale agreement - The pleadings are in conformity with Section 16
(c) of the Specific Relief Act and Form Nos.47 and 48 of 1st Schedule to CPC -The pleadings and evidence of the respondents themselves show that the appellant was demanding, insisting and pressurizing the respondents to 34 O.S.No.2795/2008 execute the sale deed after the death of 'X' and the respondent/LRs of late 'X' have declined to execute the sale deed. "
Further Held:
"(a) From the evidence on record, it is proved that the sale agreement was dated 17.12.1979. The sale consideration agreed was Rs.16,000/-. It was paid through cheques and cash. The documents were handed over. Possession was delivered. Thereafter, the GPA was executed. The appellant has put up construction at his own cost. He has collected the sale deed from the BDA. The appellant was always and even now ready and willing to take the sale deed bearing expenses of stamp and registration charges.
Therefore, it is clear, the appellant has pleaded all the ingredients of oral sale agreement. The appellant has proved the oral sale agreement dated 17.12.1979 -
Therefore, in the circumstances, the appellant cannot be denied specific performance and he is entitled for specific performance."
"(c) Mere price escalation during the pendency of the litigation is not a ground to deny specific performance. The Court can impose reasonable condition to pay additional amount which is reasonable. In the present case, the litigation has gone on for years. The respondents have approached the Court in O.S.No.5065/1987 and obtained injunction. They have denied the sale agreement and contested the matter in O.S.No.1920/1989. 35 O.S.No.2795/2008
In the circumstances of case, and keeping in view the price escalation, it is proper to direct the appellant to pay additional amount of Rs.20,00,000/- in addition to the amount already paid. The appellant is entitled for specific performance, but subject to the condition that the appellant shall pay additional amount of Rs.20,00,000/- to the respondents."
31. In the above said citation, their Lordships held that based on oral agreement, the suit can be decreed. In the above said case, the plaintiff was in possession of suit schedule property in pursuance of sale agreement with defendant's husband. However, in present case, plaintiff is in possession of suit schedule property not in pursuant of agreement with defendant's father, but, he is in possession of suit schedule property in pursuance of Registered sale deed of one S.Prakash. Furthermore, there was evidence in said case that plaintiff had constructed the building by investing huge amount, which was in the knowledge of defendant's husband. Considering all those facts in total, their Lordships held that though there was oral agreement, it 36 O.S.No.2795/2008 was established by plaintiff and suit was decreed. However, that is not the situation in present case.
32. In the instant case, as discussed above, plaintiff claims to be in oral agreement with defendant's father at one stretch and with defendant at another stretch. However, he has not mentioned either in the plaint or in the affidavit evidence, the date, month or year of such agreement. Further, in the cross-examination plaintiff asserts that S.Prakash was the owner of suit schedule property and plaintiff is its absolute owner. Even in the obstructer application filed by the plaintiff in Ex.203/94 during 2005, plaintiff specifically stated that defendant is nothing to do with suit schedule property. Said application was filed only after the payment during 2003 and 2004. Hence, he has not accepted the defendant as the owner of suit schedule property even in this suit and also in said execution petition. Hence, there is no question of agreement with defendant to purchase suit schedule property from him. When plaintiff 37 O.S.No.2795/2008 asserts that defendant/defendant's father is not the owner of suit schedule property, the above said ruling relied by plaintiff's counsel is not helpful to plaintiff.
33. In further cross-examination on 21/7/2011, plaintiff has deposed that he has paid Rs.25,000/- to defendant's father in 1996, he has given D.D. for Rs.70,000/- in the year 2003 and D.D. for Rs.50,000/- in the year 2004 to defendant and also given cheque for Rs.50,000/-. But he does not remember the date of issuance of said cheque. He has also paid Rs.50,000/- by way of cash. But, he is not having any documents to prove the same. He denied the suggestion that he has not paid any amount to defendant. This suggestion is contrary to the contention taken by defendant in his written statement. Because, in the written statement defendant categorically admits receipt of Rs.50,000/- through cheque. He further categorically stated in the written statement at para No.10 payment referred to in para No.5 of the paint 38 O.S.No.2795/2008 were made as damages for use and occupation and not as advance payment for any agreement.
34. In para No.6 of the plaint, plaintiff categorically pleads payment of Rs.1,20,000/- through D.Ds. and cash of Rs.50,000/-. Further in the cross-examination, D.W.1 categorically admitted the receipt of Rs.50,000/- by means of cheque in the year 2004, but denied the suggestion that plaintiff has paid Rs.1,20,000/- through D.Ds. and cash in 2004. However, receipt of amount through D.Ds. is admitted in his written statement. Hence, once admitted, he cannot deny it. Furthermore, plaintiff has produced the counterfoils for taking D.Ds. as per Ex.P.5 and Ex.P.8. His passbook as per Ex.P.9 reveals the payment of Rs.50,000/- on 16/12/2004 through cheque to defendant. Though plaintiff pleads that he paid Rs.25,000/- to father of defendant through cheque and also mentioned the cheque number in the plaint, he failed to produce the passbook for making such payment to father of defendant. He has also failed to 39 O.S.No.2795/2008 produce receipt for having paid Rs.50,000/- in cash to defendant. Hence, in all, plaintiff has proved the payment of Rs.1,70,000/- through D.Ds. and cheque.
35. Defendant has produced certified copy of judgment and decree passed in O.S.No.5240/1987 as per Ex.D.1 & Ex.D.2. He has also produced certified copy of I.A. under Order XXI R.97, its affidavit, objection to it in Ex.No.203/1994 as per Ex.D.3 to Ex.D.5, his objection to I.A. under Section 151 CPC as per Ex.D.6 and certified copy of the order sheet in Ex.203/1994 from 16/12/2003 till 29/1/2008 as per Ex.D.7.
36. Defendant in his affidavit evidence at para No.20 has admitted only about payment of Rs.50,000/- through cheque and said payment was towards damages in view of illegal occupation of his property by plaintiff and not towards agreement of sale.
37. In the cross-examination, D.W.1 denied the suggestion that said amount was paid towards agreement of sale. He 40 O.S.No.2795/2008 admitted that plaintiff is in possession of suit schedule property. In the further cross-examination held on 20/2/2014, defendant has deposed that plaintiff had asked to pay some damages and to give time and agreed to vacate from the suit schedule property. Plaintiff and plaintiffs in other connected cases were present at the time of said discussions regarding vacating of suit schedule property. But said talk was not reduced into writing.
38. The above evidence of plaintiff and defendant made it very clear that plaintiff has established total payment of Rs.1,70,000/- to defendant in different occasions through cheque and D.D. But according to plaintiff, it was towards agreement of sale, whereas according to defendant, it was towards damages. In the further cross-examination on 17/3/2014 at page No.15, defendant has deposed that no rate of damage was fixed and at that time he has deposed that plaintiffs have agreed to vacate their respective premises at the earliest and no time limit was fixed. 41 O.S.No.2795/2008
39. According to him, rate of damage was not fixed. But as per his own evidence, plaintiff of this suit and other connected suits have agreed to pay damages differently.
40. In the cross-examination, defendant has deposed that the talk between plaintiff and other plaintiffs pertaining to damages was not reduced in to writing. In the further cross- examination, he has deposed that he believed plaintiff and hence it was not reduced into writing. At another stretch, i.e., in page No.9, he has deposed that all the plaintiffs had agreed to vacate from the suit schedule property by taking some amount and requested some time to vacate from the suit schedule property.
41. Defendant himself has produced the obstructer's application filed by plaintiff and his objections to it. He admitted in the cross-examination that in the said objections, he has not stated that this plaintiff had agreed to vacate the suit schedule property after one year or after some reasonable time. He has also further deposed that he has 42 O.S.No.2795/2008 not issued any notice to plaintiff for vacating the suit schedule property. He has not mentioned that plaintiff agreed to pay damages in said objection statement, though it was filed subsequent to receiving the amount from plaintiff.
42. This defendant is an income-tax assessee. He has stated in his cross-examination at page No.14 that he is getting audited his account through his auditor and submitted his account along with IT returns from 2003-05 and showed the amount received from plaintiff in Income-tax returns, but he does not remember under what head he had shown that amount and he can produce the IT Returns for 2003-2005. Even though he has deposed so on 20/2/2014, he has not produced his IT returns. In the subsequent cross- examination on 17/3/2014, he has deposed that he has not made any efforts to meet his auditor to know whether his entire statement of accounts are available with the auditor for the relevant period or not and he could not produce the same since they are misplaced. Afterwards, plaintiff has filed 43 O.S.No.2795/2008 an application to summon IT returns of defendant, but said application was rejected by this court by passing considered order. If really, defendant has produced his IT returns, that would throw some light on the proceedings to know whether defendant has received the amount towards damages or towards agreement of sale. But, in the absence of same, with the available materials, the defendant has to prove for what purpose, he received said amount from plaintiff.
43. The above discussion reveals that defendant failed to prove that the amount received by him from plaintiff is towards damages.
44. It is the initial burden of plaintiff to establish that there is oral agreement between plaintiff and defendant regarding sale of suit schedule property. In this regard, in the above said ruling cited supra by defendant's counsel, unreported judgment in RSA.No.103/2008 at Dharwad Bench in 44 O.S.No.2795/2008 "Albarsab & others v/s Smt.Tippawwa" wherein, their Lordships held as under:-
"Section 101 of the Evidence Act mandates that, whoever approaches the Court for a particular relief or reliefs, must necessarily discharge the initial burden cast upon him or her. Unless the initial burden is effectively discharged, the onus does not shift on the other side and inconsistencies, if any, in the case of adversary, cannot be taken advantage by the plaintiff. Therefore, unless the initial burden is effectively discharged, plaintiff cannot succeed on the weakness of the defendant, if any. "
45. It is true that always initial burden is on plaintiff to establish his case. However, when once, it is established, then the burden shifts upon defendant to disprove it. When defendant categorically admits the receipt of Rs.50,000/- from plaintiff and when plaintiff establishes payment of Rs.1,20,000/-, plaintiff need not prove the same. Plaintiff failed to prove that the total payment is Rs.1,70,000/-. Even otherwise, he has produced his Bank Account extract as per Ex.P.9 and bank counter foils as per Ex.P.5 to 8 to prove it. 45 O.S.No.2795/2008 The above discussion further reveals that defendant failed to prove that he received the same as damages from plaintiff.
46. Plaintiff's counsel submitted that in the connected 7 suits filed by different plaintiffs against same defendant pertaining to similar set of facts in respect of survey number property, those suits were decreed.
47. In this regard, plaintiff has also produced certified copies of written statement filed in O.S.No.7361, 7362 and 7363/2007 as per Ex.P.20 to Ex.P.22 to show similar pea in those suits also.
48. Certified copy of judgment in O.S.No.7364/2007 is produced by plaintiff in O.S.No.2792/2008. Though the said suit is not clubbed with this suit, as both suits are connected matters and thus, arguments in both suits were heard together, judgment and decree passed in O.S.No.7364/2007 could be looked in to for a limited purpose even in this suit. 46 O.S.No.2795/2008
49. The facts and circumstances of present suit and those other suits are little bit different. There was written agreement between plaintiff and defendant in those suits, as submitted by both counsels. Said agreement was disputed by defendant in the written statement of said suit.
50. Though defendant disputes written agreement of sale with plaintiff in his written statement in said suit, he admitted about the agreement, his signature, conditions mentioned in the agreement in toto in his cross-examination in said suit. Based on said evidence, this court has decreed said suit. Appeal against said judgment and decree is pending in Hon'ble High Court of Karnataka and said judgment has not become final. It is an admitted fact that not only in said suit, 6 other suits were also decreed at the time of passing judgment in O.S.No.7364/2007. As there was clear admission about written agreement between parties in those suits, those suits were decreed. However, that is not the situation in present suit, because defendant clearly disputes oral 47 O.S.No.2795/2008 agreement with plaintiff in his written statement and also in his evidence and he reiterates the same in his cross- examination also. Except the admission regarding receipt of money through cheques from plaintiff, defendant has not admitted anything in this suit.
51. As already discussed above, mere payment by plaintiff does not give raise to the presumption that the plaintiff has paid the said amount only towards agreement of sale. In the citation relied by both plaintiff and defendant as discussed above, it is clearly held that to rely upon oral agreement, plaintiff has to produce substantial evidence. In the instant case, as discussed above, though at one stretch, plaintiff deposed the agreement with defendant, at another stretch, plaintiff disputes the ownership of defendant itself over suit schedule property. When plaintiff disputes the ownership of defendant, plaintiff cannot prove oral agreement with defendant. Under these circumstances, it cannot be said that there is oral agreement between plaintiff and defendant and 48 O.S.No.2795/2008 plaintiff has proved it. Hence, the judgment and decree passed in O.S.No.7364/2007 is not helpful for plaintiff to prove it.
52. Plaintiff has produced Ex.P.4 tax demand register extract, Ex.P.10 to Ex.P.14 tax-paid receipts, Ex.P.15 and Ex.P.16 KEB Bills, Ex.P.23 to 25 BESCOM bills and receipts, Ex.P.26 to Ex.P.28 photographs. They reveal that since from 1988-89 onwards plaintiff is in possession of the property. Plaintiff contended that he is in possession of suit schedule property based on registered sale deed executed by Prakash and not in pursuance of sale agreement with defendant. Defendant also in his cross-examination admits possession of plaintiff over suit schedule property. Hence, these documents are not helpful for plaintiff to prove oral agreement with defendant.
53. The above discussion reveals that plaintiff has only able to prove the payment to defendant, but failed to prove that it was paid towards advance amount pertaining to agreement 49 O.S.No.2795/2008 of sale and defendant also failed to prove that said amount is received by him by way of damages. Plaintiff also failed to prove that the agreement between parties to sell suit schedule property for a sum of Rs.95/- per Sq.feet. Accordingly, Issue No.1 is answered in NEGATIVE and Issue No.2 is answered PARTLY in AFFIRMATIVE.
ISSUE No.3
54. Plaintiff claims that he was and is ready to perform his part of contract. However, there is no specific plea on this point. Further, while discussing Issue No.1 & 2, this court already held that plaintiff fails to prove the oral agreement with defendant. Hence, question of proving his readiness and willingness does not arise for consideration. Accordingly, Issue No.3 is answered in NEGATIVE.
ISSUE NO.7
55. Learned counsel for defendant vehemently submitted argument that suit is not maintainable and relied on the 50 O.S.No.2795/2008 citation reported in (1998) 4 SCC 543 in "Shreenath and another v/s Rajesh and others" wherein, their Lordships held as under:-
"10. Under sub-clause(1) Order 21 Rule 35, the executing court delivers actual physical possession of the disputed property to the decree holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by bat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree holder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through the judgment debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree holder, in such a case, may make an application to the executing court complaining such resistance for delivery of possession of the property. Sub-clause(2) 51 O.S.No.2795/2008 after 1976 substitution empowers the executing courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21 Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property evenif obstruction by a stranger is adjudicated and finally given even in the executing proceedings. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger."
56. Learned counsel for defendant further relied on the citation reported in (1968) 3 SCR 158 in "Moti Lal Banker(dead) by his LR v/s Maharaj Kumar Mahmood Hasan Khan" wherein, their Lordships held as under:- 52 O.S.No.2795/2008
"2. It is open to the parties to enter into a compromise with reference to their rights and obligations under a decree. There is nothing in the Code of Civil Procedure which prevents the parties from entering into such a compromise. If the compromise amounts to an adjustment of the decree, it must be recorded under Order 21, Rule 2 and if not so recorded, it cannot be recognized by any court executing the decree. The compromise of May 29, 1954 was so recorded within the prescribed period of limitation. The compromise was a fair bargain to postpone the execution of the decree on payment of reasonable interest. The terms of the compromise related to the execution of the decree. The executing Court has power to determine all questions arising between the parties to the suit relating to the execution of the decree and to give appropriate relief on such determination. Exclusive power to determine such questions is given to the executing Court by Section 47 of the Code of Civil Procedure. The executing Court can determine all questions relating to the agreement postponing the execution of the decree and the incidental term as to the payment of the higher rate of interest. The agreement to pay the higher interest is enforceable in execution of the decree, See Oudh Commercial Bank Ltd., v. Thakurain Bind Basni Kuer. On the question whether the agreement to pay interest at a rate higher than the rate provided in the decree can be enforced in execution proceedings there was a conflict of judicial opinion. The Privy 53 O.S.No.2795/2008 Council decision settled the law on this point. There was also earlier decisions which held that execution could have issue both for the sum decreed and for the interest promised, see Sreeshteedhur Shaha v. Woomeshnath Roy and Lakshmana v. Sukiya Bai.
57. The learned counsel for the defendant further relied on the decision reported in AIR 1997 SC 1006 in Sultana Begum Vs. Prem Chand Jain in para 16 of the judgment, the Hon'ble Supreme Court has held as under;
"Order 21 Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the nature of decree, a such money is paid out of court, the decree holder has to certify such payment to the court whose duty it is to execute the decree ad that court has to record the same accordingly. Similarly if a decree, irrespective of its nature, is adjusted in whole or in part to the satisfaction of the decree holder, the decree holder has to certify such adjustment to that court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree holder, the judgment debtor has been given the right to inform the court of such payment or adjustment and to apply to that court for certifying that payment or adjustment after notice to the decree holder. Then comes Sub-rule (3) which provides that 54 O.S.No.2795/2008 a payment or adjustment which has not been certified or recorded under Sub-rule (1) or (2), shall not be recognised by the court executing the decree."
58. The learned counsel for the defendant also relied on the decision reported in 2000 SC 2757 in Lakshmi Narayanan Vs. S.S.Pandian which reads as;
"Tenancy - eviction - section 47 and Order 21 Rule 2 of CPC, 1908 - whether compromise entered into between parties executing new lease deed extinguishes previously grated decree for eviction - effect of compromise on executability of decree depends upon intention of parties - intention being mixed question of fact ad law is to be determined by executing court under section 47 on interpretation of decree and compromise in light of fact and circumstances
- previously granted decree does not extinguish automatically in wake of compromise for fresh lease deed unless same is established from it."
59. The learned counsel for the defendant also relied upon the decision reported in AIR 1959 KAR 155 in K.C.Pillappa Vs. M.Munireddy, wherein it reads as; 55 O.S.No.2795/2008
"Secondly once it is conceded, as it has to be, that the question raised by the application is one relating to satisfaction of a decree, section 47(1) expressly requires that it shall be determined by the executing court and not by a separate suit. When, therefore, an executing court finds that it is prevented from recognizing an uncertified satisfaction of the decree by reason of Order 21 Rule 2(3), all that it can do is to refuse to recognize the satisfaction and dismiss the application."
60. The learned counsel for the defendant also relied on the decision reported in AIR 1991 Calcutta 402 in Nebubala Sardar Vs. Abdul Aziz Baidya and para 6 of the judgment reads as follows:
"This second appeal has been preferred by the defendant, being aggrieved by the judgment and decree of the lower court. The concurrent findings of fact cannot be challenged in this court of appeal. As a matter of fact, Mr.Bagchi, appearing for the appellant, does not assail any of the findings of the two courts below. He takes a very short and interesting point in this second appeal. His contention is that the suit for 56 O.S.No.2795/2008 specific performance of contract is barred under section 47 of the C.P.code and therefore, any decree that may be passed in this suit by the court is void. In other words, he means to say that execution ought to have been levied to reap the benefit under the decree in title suit No.313 of 1971, and an independent suit would not lie. In support of his contention reliance is placed upon two decisions, namely, (1) Rabindra Nath Vs.Dhirendra Nath, reported in MANU/WB/0026/1939: AIR 1940 Cal82 and (2) Sadananda V. Union of India, reported in MANU/WB/0106/1956: AIR 1956 Cal 317. I have gone through those decisions. Those decisions squarely uphold the views expressed by Mr.Bagchi. The decree in the instant suit is void. The plaintiff could not institute the suit to enforce the terms of compromise which was incorporated in a decree. In other words, a suit for specific performance of contract would not lie to enforce the terms of the compromise decree.
The result under the compromise decree 57 O.S.No.2795/2008 could be achieved only by way of execution.
Mr.Chakraborty, appearing for the respondent, relied upon another division bench decision in Charu Ch. V. Birendra Nath, reported in MANU/WB/0005/1970: AIR 1970 Cal 34. What is spelt out in this decision is that in case of a decree of dismissal in terms of compromise a separate suit for specific performance of contract would lie. Mr.Bagchi submits that there is no real conflict between the decisions cited by him and the decision relied upon by Mr.Chakraborty. The most distinguishable feature of the two sets of decisions is that while a decree in terms of compromise can only be satisfied by means of execution of a decree, a decree of dismissal in terms of compromise cannot be so satisfied. In order to enforce a term of a decree of compromise which ended in dismissal it can only be satisfied by means of an independent suit unless, of course, in the said terms of compromise it is stated that the term so stipulated in the compromise petition is enforceable by means of an execution 58 O.S.No.2795/2008 despite a decree of dismissal. In the instant case, therefore, the suit filed by Mr.Chakraborty's client can, by no means, succeed since the earlier suit being Title Suit No.313 of 1971 had ended in a decree by compromise. Therefore, the plaintiff ought to have levied execution in order to satisfy the terms of decree instead of maintaining an independent suit for specific performance of contract. I quite agree with Mr.Bagchi in this behalf."
61. The learned counsel for the defendant also relied on the decision reported in AIR 1955 Bom 64 in Ganpatrao Sitaram Borlikar Vs. Shridhar Mukund Polekar, and para 4 of the judgment which reads as follows:
"But there is another difficulty in the way the plaintiff which is equally serious, difficult it is difficult to understand, again with respect to the learned judge, how he could have investigated to the issue as to the agreement relied - upon by plaintiff. That issue was the subject - matter the 59 O.S.No.2795/2008 proceedings pending in the small cause court, and it is unnecessary to state that proceeding for the adjustment or compromise a decree can only be initiated under see-in 47 of the Civil P.C. and not by abstansive suit. The learned Judge attempt-to decide an issue which could only have been decided by the executing court and which infact as pending before the executing court.
The reason that the learned judge gives why he went into this matter and why according to him section 47, Civil P.C. was not made applicable was that the relief as to declaration that the plaintiff was a tenant could not have been given by the small cause court. Obviously, with respect, the learned judge has fallen into an error. It is the sole right of the executing court to try an issue as to whether a decree has been adjusted or not. It is for the executing court to decide what the adjustment is and to record that adjustment of the decree. To that extent that the executing court can give relief to that 60 O.S.No.2795/2008 adjustment, the executing court will give it. To the extent it cannot, it may be that the judgment debtor might become entitled to file a suit or take other proceedings for enforcing the part of the adjustment in respect of which the executing court could not give any relief."
62. The learned counsel for the defendant also relied on the decision reported in CS(OS)No.1358/2005 of Hon'ble High Court of Delhi in CE Construction Ltd. and another Vs. Durga Builders Pvt. Ltd. and others, and para 11 of the judgment reads as follows:
"In the execution petition apart from seeking the execution, registration of the documents, custody of the original title documents, warrants of possession in respect of the entire first floor were also prayed for. A bailiff was sought for the said purpose with police aid. It was at that stage seeking execution that judgment debtors being defendants 1 to 3 herein filed objections under Order 21 Rule 58 CPC alleging that 61 O.S.No.2795/2008 they have not violated the terms of the compromise decree and that the original title documents had been misplaced for which police report had been lodged. In respect of the first floor, it was stated that the same was in possession of occupants under them who were now refusing to vacate. It was in these circumstances that a Local Commissioner was appointed vide order dated 17/1/2004 to make a report about the identity of the occupants on the first floor who submitted the report. The objections were thereafter filed by M/s. CE Construction Limited, plaintiff No.1."
63. In all the above said rulings, it is categorically held that if a person claims right through judgment debtor of any decree, then such rights should be decided only in execution case and not otherwise. It is further held in those rulings that if part of the decree is satisfied, then it is to be reported to the executing court and decree holder has to certify such adjustment in said executing court. In the instant case, 62 O.S.No.2795/2008 plaintiff claims that to have peace and to end litigation, plaintiff agreed to purchase suit schedule property from defendant or from his father at the rate of Rs.95/-per sq.f.t. The word "litigation" used in this pleadings is referred to Ex.No.203/94 and not to any other litigation. Because, that is the only pending case pertaining to suit schedule property. Hence, plaintiff ought to have reported settlement between parties in Ex.No.203/94 and he is not supposed to file separate suit. Even plaintiff made efforts to make such report in Ex.Petition by filing I.A. under S.151 CPC praying for dismissal of execution petition as parties have arrived at settlement. However, plaintiff herself got dismissed said application for the best reasons known to his. As discussed above, defendant has filed objections to said I.A. as per Ex.D.6. Even in said objections also, defendant disputes agreement with plaintiff. Even if any compromise entered between parties, it should be reported to executing court and filing of separate suit is barred as per the principles laid down 63 O.S.No.2795/2008 in all the above said citations. Under these circumstances, filing separate suit by plaintiff is not maintainable. Accordingly, issue Nos.7 is answered in affirmative.
ISSUE No.4
64. When plaintiff failed to prove the oral agreement with defendant, there is no question of consideration of the fact that whether defendant failed to execute the regular sale deed or not. Accordingly, this issue is answered in negative.
ISSUE No.6
65. Learned counsel for plaintiff relied on the citation reported in AIR 2006 SC 40 in "S.Brahmanand and others v/s K.R.Muthugopal(D) and others" wherein, their Lordships held as under:-
"Limitation Act (36 of 1963), Art.54 - Specific Relief Act (47 of 1963), S.16 - Contract Act (9 of 1872), S.63 - Suit for specific performance of contract - Limitation
- Expression 'date' occurring in Art.54, from which time begins to run - Not suggestive of specific calendar date - Original agreement had 'fixed date' for performance - But, by subsequent letter defendant requested for postponing performance to future date 64 O.S.No.2795/2008 without fixing any further date for performance - Plaintiffs by their act of forbearance and not insisting on performance forthwith accepted postponing performance - Time for performance stands extended - Case covered by second part of Art.54 - Plaintiffs realized that there was refusal to perform, when they were forcibly evicted from the godown- Counted from this date of refusal suit filed within 15 days was perfectly within period of limitation."
66. Learned counsel for plaintiff further relied on the citation reported in (2009) 5 SCC 462 in "Ahmadsahab Abdul Mulla (2)(Dead) by proposed LRs v/s Bibijan and others" wherein, their Lordships held as under:-
"B. Limitation Act, 1963 - Art.54 - Limitation period for suit for specific performance - Plaintiff whether had notice of refusal of performance, and date of refusal - Determination of - Materials to be considered
- Held, to be established with reference to materials and evidence to be brought on record."
67. Learned counsel for plaintiff further relied on the citation reported in ILR 1989 KAR 2408 in "Ameer 65 O.S.No.2795/2008 v/schandrasekharappa" wherein, their Lordships held as under:-
"Specific Relief Act, 1963 (Central Act No.47 of 1963) - Section 10 - Parties not precluded from reducing agreement on plain paper and later get it validated - If time not essence of contract, failure to stipulate does not render contract void - Vendor not sole owner of property, does not absolve him from liability under agreement."
68. Learned counsel for plaintiff further relied on the citation reported in ILR 2010 KAR 765 in "Syed Zaheer and others v/s C.V.Siddaveerappa"
"(A) Limitation Act, 1961 - Article 54
- Suit for specific performance of contract -
Period of Limitation - Time from which period begins to run - HELD, Article 54 of the Limitation Act specifies two points of time from which time begins to run for the purpose of computing the period of three years limitation with regard to filing suits for specific performance of contract. One, is the date fixed for the performance of the contract and two, if no such date is fixed then when the plaintiff has notice of the performance being refused."
66 O.S.No.2795/2008
69. Learned counsel for plaintiff further relied on the citation reported in 2010(3) KLJ 80 in "K.S.Srinivasiah and another v/s Munivenkatamma" wherein, their Lordships held as under:-
"Specific Relief Act, 1963, Section 20 -
Agreement of sale - Prohibition of registration by Government - Parties agreed to complete sale upon such ban being lifted - Notwithstanding lifting ban entire sale consideration was to be paid within the agreed date - Entire sale consideration was not paid but position of consideration was paid after the expiry period of agreed date - Then plaintiff filed suit for specific performance - Court below held plaintiff entitled to decree - Aggrieved party questioned the relief in second appeal - Held
- Entire sale consideration was unpaid - Did not indicate readiness and willingness in the performance of contract by defendants - Court below were not justified in exercising discretion under Section 20 - Receipt of money by defendants was in violation of condition imposed by them - Indicate waiver of condition of performance of agreement within time fixed - defendants not taken steps to terminate contract or claim that there was breach of contact - Hence Court below were not required to treat time as being essence of contract - Appeal rejected."67 O.S.No.2795/2008
70. The above said citations produced by plaintiff's counsel to show that suit filed by plaintiff for specific performance of the agreement is not barred by limitation. However, when plaintiff failed to prove the oral agreement with defendant, consideration of the principles narrated in these citations is not required. Hence, it is not required to decide the fact whether the suit is well within limitation or not. Accordingly, this issue is answered as does not arise for consideration.
ISSUE NOs.5 & 8
71. These issues are considered together, as they require common discussion.
Learned counsel for defendant relied on the citation reported in 1969(2) SCC 539 in "Ouseph Varguese v/s Joseph Aley and others" wherein, their Lordships held as under:-
"9. ............A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure 68 O.S.No.2795/2008 Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement."
72. Learned counsel for defendant further relied on the citation reported in (1995) 5 SCC 115 in "N.P.Thirugnanam(dead) by LRs v/s Dr.R.Jagan Mohan Rao and others" wherein their Lordships held as under:-
"The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into 69 O.S.No.2795/2008 consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
73. Learned counsel for defendant further relied on the citation reported in (2003) 10 SCC 390 in "Manjunatha Anandappa URF Shivappa v/s Tammanasa and others"
wherein, their Lordships held as under:-
"30. There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on record to show that he had ever asked defendant 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief." 70 O.S.No.2795/2008
"32. In Lourdu Mari David v/s Louis Chinnaya Arogiaswamy this Court observed:
(SCC p.590 para 2) "2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."
74. Learned counsel for defendant relied on above citations only to say that plaintiff has no readiness and willingness to get sale deed from defendant and there is delay on part of plaintiff to file the suit. However, while discussing issue No.1, 2, 5 and 6, this court already held that plaintiff has not proved the agreement with defendant as per law. Hence, consideration of the fact whether there was readiness and willingness on the part of plaintiff or not and whether there is delay on the part of plaintiff is not required. Hence, consideration of the principles narrated in these citations is not required.
71 O.S.No.2795/2008
75. In view of findings on issue Nos.1 to 4, 6 & 7, and for the above reasons, this court holds that plaintiff is not entitled for the relief of specific performance as prayed for. Accordingly, these issues are answered in negative.
ISSUE No.9
76. In view of findings on issue Nos.1 to 8, this court proceeds to pass the following:-
ORDER Suit is dismissed.
Under facts and circumstances of the case, parties are directed to bear their own costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 10th day of September, 2015).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.72 O.S.No.2795/2008
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Chinnaiah @ Chinnaswamy
b) Defendant's side :
D.W.1 - N.S.Suresh Babu II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Regd.Sale Deed dtd: 18/2/1988
Ex.P.2 EC in Form No.15 for the period
from 1/4/1987 to 31/5/1989
Ex.P.3 EC in Form No.15 for the period
from 1/6/1989 to 31/3/2004
Ex.P.4 Demand Register Extract
Ex.P.5 to 4 counterfoils of Bank challans
Ex.P.8
Ex.P.9 Pass Book of Syndicate Bank
Ex.P.10 to 5 receipts issued by Grama
E.P.14 Panchayath
Ex.P.15 & 2 electricity bills
Ex.P.16
Ex.P.17 Copy of the legal notice
Ex.P.18 Postal receipt
Ex.P.19 Certificate of posting
Ex.P.20 to Certified copy of written statement
Ex.P.22 filed in O.S.No.7361/07,
O.S.No.7362/2007 and
O.S.No.7264/2007
Ex.P.23 to 2 electricity bills and 1 receipt
Ex.P.25
73 O.S.No.2795/2008
Ex.P.26 to 3 photographs
Ex.P.28
Ex.P.29 CD
(b) Defendant's side : -
Ex.D.1 Certified copy of judgment in
O.S.No.5240/1987
Ex.D.2 Certified copy of decree in
O.S.No.5240/1987
Ex.D.3 Certified copy of I.A. No.40 filed by
plaintiff in Ex.No.203/1994
Ex.D.4 Certified copy of the affidavit filed
in support of I.A.No.40
Ex.D.5 Certified copy of the objections
filed to I.A.No.40 in
Ex.No.203/1994.
Ex.D.6 Certified copy of the objections
filed to I.A.No.49 in
Ex.No.203/1994
Ex.D.7 Certified copy of the order sheet
for the period 2004 to 2008 in
Ex.No.203/1994.
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-