Karnataka High Court
Smt Shantabai vs Smt Padmavati on 22 October, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL NO.48/2006
BETWEEN:
SMT. SHANTABAI
W/O. BASAGONDAPPA PATIL
AGED ABOUT 58 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O. GOLSAR VILLAGE, TALUKA INDI,
DISTRICT BIJAPUR, PIN- 586 101.
.... APPELLANT
(BY SRI D.P.AMBEKAR, ADVOCATE)
AND:
1. SMT. PADMAVATI W/O. MOHAN PATIL
AGED YEARS, OCC: HOUSEHOLD WORK,
R/O. MIRAGI, TQ. INDI,
DIST. BIJAPUR, PIN - 586 101.
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2. SRI. YAMANAPPA
S/O. GURULINGAPPA TEGGIHALLI,
AGED ABOUT 63 YEARS,
OCC: AGRICULTURAL LABOURER,
RESIDENT OF GOLSAR,
TQ. INDI, DIST. BIJAPUR.
... RESPONDENTS
(BY SRI. UMESH V. MAMADAPUR, ADVOCATE FOR
RESPONDNETS)
THIS REGULAR SECOND APPEAL IS FILED
UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED: 15.09.2005 IN
R.A.NO.8/2002 ON THE FILE OF THE 4TH ADDITIONAL
DISTRICT JUDGE, BIJAPUR REVERSING THE
JUDGMENT AND DECREE DATED:20.04.2002 IN
O.S.NO.73/1992 ON THE FILE OF THE PRL. CIVIL
JUDGE (S.D.), AT BIJAPUR IN SUIT O.S.NO.73/1992
BE DECREED AS PRAYED FOR AND THIS APPEAL BE
ALLOWED WITH COST THROUGHOUT.
THIS APPEAL HAVING BEEN HEARD, RESERVED
FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS
COURT DELIVERED THE FOLLOWING;
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JUDGMENT
This appeal arises out of judgment and decree passed in R.A.No.8/2002 dated 15.09.2005 on the file of IV Additional District Judge, Bijapur, in which the First Appellate Court has allowed the appeal and set aside the judgment and decree passed in O.S.No.73/1992 dated 20.04.2002 on the file of Civil Judge (Sr. Dn.) Bijapur in which suit of the plaintiff came to be decreed in part.
02. This appeal is filed by appellant who is plaintiff and the respondents are defendants No.1 and 2 before the Trial Court respectively.
03. For the purpose of convenience and to avoid repetition of discussion, the parties will be referred as per their respective ranks before the Trial Court as plaintiff and defendants.
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04. Case of the plaintiff in brief was as under :-
The plaintiff purchased block No.95/3 measuring 04 acres from the husband of defendant No.1 by name Mohan Patil on 22.03.1990 for Rs.45,000/- through a registered sale deed. Since then the plaintiff is in actual possession and enjoyment of the same with 1/3rd share in the Well situated in the suit land. It is further contended that defendant No.1 intend to dispose off the suit land in order to meet her family necessities and looking after for a good offer. The plaintiff being owner of block No.95/3 thought that it fit and convenient to purchase the suit land as it is an adjacent land to the land already purchased by him. The plaintiff approached defendant No.1 and offered to purchase the suit land. After negotiations sale consideration was fixed at Rs.60,000/-. It is further agreed that out of the sale consideration amount a sum of Rs.45,000/- was to be paid to defendant No.1 as earnest money and the 5 remaining balance of Rs.15,000/- is to be paid at the time of registration of sale deed. In this regard defendant No.1 executed an agreement of sale in favour of plaintiff on 09.04.1990 after receiving earnest money of Rs.45,000/- from the plaintiff. Time is not the essence of the contract. It is further contended that orally the plaintiff was put in actual possession and enjoyment of the suit land on the date of agreement of sale. It is further contended that plaintiff learnt that some disgruntled elements of the village offered more price to defendant No.1 for the suit land. The plaintiff started negotiations with them. She learnt that defendant No.1 has entered into an agreement of sale in favour of Malakappa, Yamanappa and Amboji sons of Gurulingappa Teggalli and with the sons of Siddappa Teggalli for Rs.70,000/-. In fact the plaintiff is and was ever ready and willing to perform her part of contract.
She approached defendant No.1 requesting her to execute a registered sale deed in her favour by receiving 6 balance consideration amount of Rs.15,000/-. The defendant No.1 went on postponing the execution of the sale deed by stating one or other reason. So, plaintiff got issued legal notice to defendant No.1 on 13.04.1992. The defendant No.1 gave false reply to the said notice. Thereafter, plaintiff came to know that defendant No.1 is the owner of block No.95/2A and not block No.95/2B. But in the agreement of sale and in the legal notice the number of suit land is shown as block No.95/2B. Because till 18.05.1992 the Village Accountant has issued ROR extract of the said land for the year 1991-92 as block No.95/2B only. However, the extent of the said land, assessment and boundaries are identical to block No.95/2B mentioned in agreement of sale. Therefore, the plaintiff asserts that the mistake with regard to the block number of the suit land appearing both in the agreement of sale and in the legal notice issued by the plaintiff are bonafide one. She has contended that the defendant No.1 is trying to dispose 7 off the suit land to some other person. It is further contended that the plaintiff is ever ready and willing to perform her part of contract.
05. It is further the case of plaintiff that during the pendency of the suit defendant No.1 has sold about 02 acres of land in the suit land to defendant No.2. So, defendant No.2 has been impleaded. Accordingly, the plaintiff amended the plaint and contended that the sale deed is hit by principles of lis-pendence and defendant No.1 cannot take any defence. Though there is temporary injunction order, but defendant No.1 with utter disregard and disobedience to the order of the Court executed a registered sale deed on 13.07.1993 in favour of defendant No.2 in respect of western portion of 02 acres out of suit land for Rs.20,000/-. With these contentions the plaintiff prayed to decree the suit. 8
06. The defendant No.1 appeared through counsel and filed written statement contending that she and her husband were in need of money for the purpose of marriage of their daughter. They have negotiated for sale of land bearing block No.95/3 which was in the name of her husband with one Sri. S. R. Patil, who happens to be the husband of the sister of plaintiff. He agreed to purchase the same and then purchased it in the name of plaintiff, as he himself did not intend to get the sale deed in his name, as he was in government service. The consideration shown in the sale deed is farless and is not true for obvious reasons. Later defendant No.1 and her husband found that the amount was not sufficient and they would require an additional amount of Rs.45,000/-. They intend to raise money by way of loan. Accordingly, they approached Sri. S. R. Patil and he agreed to pay the loan. But insisted upon execution of an agreement of sale document in respect of the suit land in the name of the plaintiff as a 9 security for the said loan. There was mutual confidence between the parties. So, defendant No.1 and her husband agreed. The suit agreement came to be executed as security for the loan in the name of plaintiff. But it was never acted upon. The defendant No.1 and her husband are left with only the suit land and they could not have possibly agreed to part with the same. When defendant No.1 and her husband requested Sri. S. R. Patil, to receive the loan amount and return the document, but he fell back and this suit came to be filed taking false contentions. The defendant No.1 contended that plaint averments are all false and they denied the possession of the plaintiff. It is further contended that the wrong mentioning of block number of the suit land in the agreement of sale is on account of the fact that nobody was serious about it. With these main contentions defendant No.1 prayed to dismiss the suit of the plaintiff.
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07. The defendant No.2 appeared and filed his written statement contending that he is a bonafide purchaser. He came to know about the pendency of the suit only after the receipt of notices from the Court. He is cultivating the suit land. He further contend that he is in possession of the same. With these main contentions, he prayed to dismiss the suit of the plaintiff.
08. On the basis of above pleadings, the Trial Court has framed the following issues:-
01. Does the plaintiff prove that the Ist defendant has agreed to sell the suit land bearing block No.95/2A measuring 03 acres 21 guntas of Golsar village for Rs.60,000/-?
02. Does the plaintiff prove that Ist defendant had received Rs.45,000/-
under agreement of sale deed dated 09.04.1990?
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03. Does the plaintiff prove that she was put in possession of the suit land orally on the date of agreement of sale?
04. Does the plaintiff prove that she was all along ready and willing to perform her part of contract?
05. Does the Ist defendant prove that suit agreement deed came to be executed as security for the loan amount of Rs.45,000/-?
06. Does the Ist defendant prove that she never intended to sell the suit land?
07. Does the defendant No.2 prove that he is the bonafide purchaser of 02 acres of suit land for the value without knowing suit agreement?
08. Is the plaintiff entitled for specific relief of contract?
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09. Is the plaintiff entitled for refund of Rs.45,000/- with interest?
10. What order or decree?
09. In order to prove her case the plaintiff got examined herself as PW.1 and got marked eleven documents as Exs.P.1 to 11. On behalf of the defendants, defendant No.1 got examined herself as DW.1 and her husband got examined as DW.2. One Mahantappa got examined as DW.3. Defendant No.2 is examined as DW.4. Two other witnesses were examined as DW.5 and 6. Defendants got marked three documents as Exs.D.1 to 3.
10. After hearing both sides the Trial Court partly decreed the suit of the plaintiff directing defendant No.1 to execute registered sale deed in favour of plaintiff in respect of the suit land by receiving balance amount of Rs.15,000/- within sixty days from the date of judgment and ordered that the sale deed 13 executed by defendant No.1 in favour of defendant No.2 in respect of two acres out of the suit land during the pendency of the suit is hit by doctrine of lis-pendence and it is not binding on the plaintiff.
11. Aggrieved by the said judgment and decree of the Trial Court, the respondents - defendants have filed the Regular First Appeal before IV Additional District Judge, Bijapur in R.A.No.8/2002. The First Appellate Court has allowed the appeal and set-aside the judgment and decree of the Trial Court and dismissed the suit.
12. Aggrieved by the said judgment and decree of the First Appellate Court, the appellant - plaintiff has filed this Regular Second Appeal before this Court on the following grounds:-
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(a) That the First Appellate Court has failed to consider both documentary and oral evidence in a proper prospective.
(b) The First Appellate Court has surmised the facts which are not pleaded and has assumed things in the absence of any pleadings.
(c) The First Appellate Court erred in considering the evidence.
(d) Though execution of agreement of sale as per Ex.P.1 has been admitted in the written statement, but the First Appellate Court itself made out certain defence which are not pleaded in the written statement regarding filling the blanks in the agreement.
(e) The Trial Court has rightly considered the mentioning of wrong survey number and same is admitted by plaintiff in the legal notice. So, there is no mistake in 15 understanding the agreement entered into between the plaintiff and defendant No.1.
(f) The agreement of sale - Ex.P.1 was also discarded by the First Appellate Court on the ground that the scribe of Ex.P.1 as spoken by PW.1 by name Annappagowda is also called as Marlingappa.
(g) The said scribe is none-other-than the brother of the plaintiff.
(h) The signature of the defendant No.1 and execution of Ex.P.1 are not in dispute, the said Annappagowda was not examined.
Since, there is no dispute about the name of scribe and the said person is also called as M.G. Patil, the First Appellate Court wrongly assumed the said facts. The First Appellate Court has failed to note that the writing and the drafting in Ex.P.1 and its contents, are 16 not disputed by the defendant No.1 in her written statement.
(i) The First Appellate Court wrongly held that the plaintiff has no capacity to purchase the suit land.
(j) There is no dispute that the plaintiff has already purchased R.S.No.95/3 of the same village for Rs.40,000/- on 22.03.1990 itself.
The plaintiff has paid Rs.45,000/- under Ex.P.1 on 09.04.1990.
(k) The finding of the First Appellate Court that plaintiff will got unfair advantage over the defendants is totally arbitrary and illegal.
(l) The defendant No.1 has sold 02 acres of land on the western side to defendant No.2 for Rs.20,000/- as per Ex.P.9 on 13.07.1993. It is obvious the rate of sale is Rs.10,000/- per acre. Under the transaction the plaintiff 17 agreed to purchase the suit property consisting 03 acres 21 guntas on 23.07.1992 for Rs.60,000/-.
(m) The defendants No.1 and 2 are having other lands. There is active collusion between defendants No.1 and 2 to commit fraud on the plaintiff which is obvious from the admission of DW.1.
(n) The suit transaction is by way of security for the loan advanced by Sri. S. R. Patil and it is not an out and out sale.
(o) The defendant No.1 has admitted that she has received Rs.45,000/-. That itself indicates that the agreement is not denied by defendant No.1. Therefore, the transaction is not for the security of the loan.
With these main grounds the appellant prayed to allow the appeal.
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13. After admitting the appeal, the following substantial questions of law was framed on 07.09.2006:-
(i) Whether the learned Appellate Judge was justified in reversing the judgment and decree of the Trial Court?
(ii) Whether the decree of the lower
Appellate Court is vitiated for non-
consideration of the material
admissions during the course of
evidence?"
14. Heard Sri. D. P. Ambekar, learned counsel for the appellant and Sri. Umesh V. Mamadapur, learned counsel for the respondents.
15. Learned counsel for the appellant argued that though the Trial Court considering all the aspects partly decreed the suit of the plaintiff, but the First Appellate Court without there being any pleadings and evidence has assumed certain facts and dismissed the 19 suit of the plaintiff. It is argued that no amount of evidence can to be looked into which is not pleaded.
There is no evidence led regarding non-execution of the document - Ex.P.1 and it is not denied by defendant No.1. On the other hand, it is admitted. The First Appellate Court made much discussion about the discrepancy in the name of the scribe who is the brother of the plaintiff. He has contended that the appellant in this appeal has filed application I.A.No.1/2019 under Order 41 Rule 27 of the CPC for production of document to show that the scribe by name M.K. Patil is also called and known as Annappagouda Patil. The learned counsel also argued that no hardship is pleaded by the plaintiff. Regarding identification of the land, the same is admitted by defendant No.1. The Ex.P.3 - extract of record of right clarify that it was revenue department mistake which resulted in non-mentioning of correct survey number of suit land. The learned counsel further contended that the plaintiff has got easementary right to 20 draw the water from Well situated in the land of defendants. The plaintiff being adjacent owner of the land has got better chance of use and enjoyment of plaintiff property also. The defendant No.2 who was purchaser of the property during the pendency of the suit, cannot be permitted to plead plea of lis-pendence. The plaintiff was always ready and willing to perform her part of contract. The learned counsel further argued that, even defendants cannot claim equity as they have made false claim for the grant of relief which is discretionary one. But the defendants are not entitled for any equity as they have not done equity. So, with these main contentions the learned counsel for the appellant prayed to allow the appeal.
16. Per contra, Sri. Umesh V. Mamadapur learned counsel for the respondent No.1/defendant No.1 argued that the agreement of sale is sham document. In fact there was no agreement between the defendant 21 No.1 and the plaintiff. The defendant No.1 was in need of money to perform the marriage of her daughter. So, she contacted one Sri. S. R. Patil who happens to be the husband of sister of plaintiff to lent the amount, but he asked them to execute an agreement of sale for the security of the amount borrowed by her. Accordingly, the said agreement - Ex.P.1 came to executed. It is further argued that subsequently the defendant No.1 has paid Rs.25,000/- to said Sri. S.R. Patil. The learned counsel further argued that if the agreement of sale Ex.P.1 is perused it indicates that there are lot of blank space left which were subsequently filled. The scribe of the document is not examined and survey number mentioned in agreement is not correct. Though it is mentioned in the agreement that possession was handed over, but it is admitted that, the possession is not given and the Trial Court has also given finding in this regard. The plaintiff has no source of independent income. She has stated that her mother and brother 22 gave money to her, but none of them were not examined. Even if there is an agreement, the plaintiff did not perform her part of contract, that itself indicate that it was the plaintiff who was not ready and willing to perform her part of contract as she kept quite for two years. The plaintiff filled up the gaps in the document which amounts to material alteration of the said document.
17. Learned counsel also contended that he has filed objections to I.A.No.1/2019 filed by the appellant seeking for production of additional evidence, but he will not have opportunity even to cross-examine the said witness as it is learnt that the said witness is no more. The main transaction is only with Sri. S.R. Patil and not with this plaintiff. The learned counsel further argued that the First Appellate Court has rightly considered and appreciated the evidence in a proper perspective and allowed the appeal by dismissing the suit. With 23 these main arguments he prayed to dismiss this second appeal. In support of his arguments he relied upon decision of the Hon'ble Supreme Court in the case of Sukhwinder Singh vs Jagroop Singh & another reported in Civil Appeal No.760/2020 dated 28-01- 2020.
18. I have perused the pleadings, evidence and judgment and decree of the Trial Court and the First Appellate Court and also the substantial question of law framed in this case.
19. The undisputed contentions are that, the plaintiff has already purchased Block No.95/3 measuring 04 acres from husband of defendant No.1 for consideration amount of Rs.40,000/- on 22.03.1990 and she is in actual possession and enjoyment of the same. It is also evident that the defendant No.1 intend to perform the marriage of her daughter, they found that the said amount is not sufficient and they require 24 additional amount. It is also undisputed that defendant No.1 has sold 02 acres of land out of the suit land to defendant No.2 after the date of said agreement.
20. The Trial Court after considering the evidence held that the plaintiff is entitled for specific performance of Agreement of Sale and transaction of defendant No.2 is hit by principles of lis-pendence. It is also evident that there is a mistake in the survey number mentioned in Ex.P.1. The First Appellate Court on re-appreciation of evidence held that there are infirmities and defect in the Agreement of Sale.
21. Admittedly, defendant No.1 is the owner of Block No.95/2A but not 95/2B. Of course on reading of Ex.P.1 it appears that portion of land survey number was kept blank and it is subsequently filled up with the survey number. Even the measurement of the land also appears to have been written subsequently. The date is also over-written on the second page. There is no 25 signature of defendant No.1 on the first page. Even the signature of defendant No.1 which is written also creates some suspicion. So, the First Appellate Court held that the Trial Court has ignored these material circumstances. The First Appellate Court held that the admission made by defendant No.1 regarding non- mentioning of survey number cannot be construed as a admission. The First Appellate Court has also held that plaintiff No.1 has separated from her husband and not residing with her husband. She has no source of income of her own. According to the evidence placed on records about 18 days prior to this Agreement of Sale one more land in Sy.No.95/3 belonging to the husband of defendant No.1 was sold. It was registered in the name of same plaintiff and that was 04 acres of land. The First Appellate Court has held that when plaintiff has no occupation how she could mobilize the fund for purchasing these two lands. The First Appellate Court has held that the evidence of PW.1 that her mother and 26 brother have contributed for purchase cannot be believed in the absence of their evidence. The First Appellate Court based on the decision of this High Court reported in ILR 2004 KAR PAGE 2105 in the case of Sheetawwa vs. Hemareddi, has dismissed the suit by allowing the appeal.
22. It is pertinent to note that, admittedly the Agreement of Sale contains the land Sy.No.95/2B. The defendant No.1 is the owner of land Sy.No.95/2A. So, this Agreement of Sale appears to be some defective. Of course the scribe of the said document died recently. Therefore, the deposition of the said scribe which is sought to be filed now by way of additional evidence is of no avail to the appellant as the same cannot be put to the said witness to ascertain his actual name. In Ex.P.5 the legal notice dated 13.04.1992 it is stated that plaintiff was put in possession of the said land Sy.No.95/2B on the date of Agreement of Sale. But the 27 Agreement of Sale speaks the possession to be handed over only after execution of Registered Sale Deed. So, the contention of the plaintiff in this regard is not correct. Ex.P.7 is the reply notice issued by defendant No.1 wherein they have setup defence that it was only a security for loan and on account of mutual confidence this agreement is executed and contended that they intend to clear the loan to the tune of Rs.45,000/- and asked the plaintiff to return the said document, but the suit is filed. The defendant No.1 clearly contends that transaction is only a loan transaction and she is ready to repay the loan amount of Rs.45,000/- even today.
23. Therefore, it is evident that the defendant No.1 has admitted that it is only a loan transaction, but not a Agreement of Sale to sell the property. But the execution of agreement is admitted by her. Therefore, the First Appellate Court raising suspicion about the document - agreement Ex.P.1 has no basis. Only it is to 28 be seen whether the plaintiff was and is ready and willing to perform her part of contract or not. Though the plaintiff stated in her examination-in-chief about the execution of Agreement of Sale, but in her cross- examination she has admitted that her sister husband by name Siddanagouda Patil is working in excise department. But she has denied that the said Siddanagouda is also from said Balehosur.
24. The defendant No.1 has contended that the transaction is for the security of the loan. The plaintiff has not examined any of the attesting witnesses to the said Ex.P.1 particularly when the execution of document is admitted, but it is contended that it was only executed for the security of the loan. Under such circumstances, the non-examination of attesting witnesses by the plaintiff will create doubt about the nature of the transaction. Of course the defendant No.1 has stated that as there was necessity to borrow the 29 loan, the said Agreement of Sale was executed. But she do now know whether there is any agreement to pay the interest, but she states that her husband knows about it. It appears that the most of transactions are known to her husband and she has simply put the signature on the suit document.
25. DW.2 is her husband. In his evidence he has also stated that the suit document was executed for the security of loan. But possession was not handed over. Though they are ready to repay the said amount of Rs.45,000/- but plaintiff is not ready to take the money nor ready to get register the sale deed. Therefore, they have sold 02 acres of land to defendant No.2. He has also admitted that defendant No.2 was working in their family and he was cultivating the suit land from beginning. Defendants have examined the other witness Mahantagouda - DW.3, but his evidence will not help to defendants.
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26. DW.4 - Yamanappa is defendant No.2, he has also denied that he was knowing earlier Agreement of Sale. But he has stated that as defendant No.1 was in need of money she has sold 02 acres of land to him. He has also stated that he is a bonafide purchaser and in possession of the suit land purchased by him.
27. DW.5 - Veerappa, is a witness to the sale deed executed by defendant No.1 in favour of defendant No.2.
28. DW.6 - Amburaya is another attesting witness for the said sale deed.
29. On entire consideration of the evidence of plaintiff and defendants, it is crystal clear that Ex.P.1 Agreement of Sale is executed by defendant No.1 by receiving Rs.45,000/-. There are certain infirmities, interpolation and insertion in the document. The survey number of the land is wrongly mentioned in Agreement 31 of Sale. Though some explanation is sought to be given by the plaintiff for wrong number, but that will indicate that the parties are not serious about the transaction. Further, it is mentioned in the suit document that the possession will be handed over after registration of the sale deed, the plaintiff stated that possession is with her, which is neither proved by oral evidence or by any documentary evidence. On the other hand, both the Courts have concurrently held that the possession of the land is with defendant No.1 only. None of the attesting witnesses to the Agreement of Sale were examined. The scribe is none other than the brother of the plaintiff. Now he sought to be examined by producing additional evidence, document of his deposition, but he is stated to be no more. The allegation is that the plaintiff's sister husband who was an excise inspector and is in government service, paid the amount to the plaintiff as a loan and as is in government service he got executed this document as a 32 security of loan in favour of his wife's sister who is a plaintiff instead of in his name. It is also evident that this plaintiff separated from her husband and residing separately for the last 30 years. She has no independent source of her own income. She states her mother and her brother have helped to purchase the earlier land. But none of them were examined on her behalf to show their capacity to pay any amount to the plaintiff.
30. It is to be noted here that the said agreement is stated to have been executed on 22.03.1990, but the legal notice came to be issued only after more than 02 years i.e., on 13.04.1992. If at all the plaintiff was ready and willing to perform her part of contract and if at all the said agreement is actually intended to sell the land then there is no difficulty for the plaintiff to pay remaining balance of Rs.15,000/- only and insisted the defendant No.1 to execute the sale deed immediately. If defendant No.1 has refused to execute the sale deed she 33 could have filed a suit immediately. If at all the plaintiff has paid nearly 2/3rd of the sale consideration amount, then there is no reason for the plaintiff to keep quite for more than 02 years. Absolutely, the plaintiff has not placed any evidence to show that she is having any source of income and she was always ready with the amount. On the other hand, defendant No.1 contends that it is the husband of her sister who paid the amount through this plaintiff. The said husband of the plaintiff's sister is not examined by the plaintiff. When the plaintiff has purchased the land just 18 days prior to this Agreement of Sale from the defendant No.1's husband, then the plaintiff could have purchased this land also, if at all there was any intention of selling of this land to plaintiff by defendant No.1 or her husband. But as already stated that the Agreement of Sale came into existence as defendant No.1 was in need of money. 34
31. Hence, from pleadings, oral and documentary evidence of the parties, it is evident that the said agreement came into existence only as a security for the loan advanced to defendant No.1. The plaintiff never shown readiness and willingness on her part to perform her part of contract. She kept quite nearly for more than two years without any reason and filed the suit. It appears the defendant No.2 was cultivating the suit land and may be for that reason defendant No.1 and her husband thought it fit to sell the land to defendant No.2 as they were in need of money. But they never intended to sell the land under this Agreement of Sale to plaintiff.
32. The First Appellate Court has relied upon the decision of this Court reported in ILR 2004 KAR 2105 in the case of Sheetawwa vs. Hemaraddi and Para No.9, 10, 11 it is held as under:-
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"9. It is true that grant of decree of specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the Court in its discretion can impose any reasonable conditions including the payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Even, the conduct of the parties could be looked into while granting or refusing such relief by the Court. The grant of decree for specific performance is a matter of discretion under Section 20 of the Specific Relief Act. The Court is not bound to grant such relief merely because it is lawful to do so, but the discretion is not required to be exercised arbitrarily. It is to be exercised on sound and settled judicial principles.
10. In the instant case, it is not in dispute that the respondent is none other than the brother-in-law of the appellant. Thus, the appellant and the respondent are closely related to each other. The property in question had been given to the appellant by her mother. The family of the appellant is an agriculturist family having their own agricultural establishment at their village Shelavadi. The appellant was aged about 75 years at the relevant time of the execution of the deed Ex. P1. The body of the Deed Ex. P1 does not contain the date of execution of the document, but only at the end of the document, the date has been put as 14.06.1993. The way in which the date has been put on the document Ex. P1.36
would create some doubt whether it was really put on the date of its execution or subsequently more so, when the stamp paper on which the document has been written was found to have been purchased on 01.04.1993. The stamp papers seem to have been purchased about two and a half months prior to the execution of the document itself and that too in the name of the appellant by the respondent. No doubt, it was sought to be argued on behalf on the respondent that since the talks were going on, there is every likelihood that the stamp papers might have been purchased. But, such an explanation on the part of the respondent cannot be accepted. It is needless to point out that it is only after the talks are concluded that parties will go for purchasing the stamp papers. But, this is a case where the stamp papers have been purchased about two months prior to the execution of the document itself. That apart, even the LTM of the appellant which is found on Ex.P1 appears to have been put by leaving sufficient space after the body of the document, which also creates some suspicion whether the LTM was obtained after the document was written or at any time prior to the execution. This suspicion gets strengthened by the long gap between the purchase of stamp papers and the execution of the agreement Ex. P1. Further, the document Ex. P1 would show that the recitals regarding the delivery of possession has been subsequently inserted after the execution of the document. This suspicion will get strengthened by the entries found in the RTC extracts Exs. P8 and P9 produced by the respondent himself and they would clearly show that it is the 37 appellant who has been in possession of the suit lands. The said entries which are entitled for presumption under law would manifest that in all probability the recitals regarding delivery of possession had been subsequently inserted after the execution of the document so as to appear to be more natural and probable. Even a cursory or a bare look at the document Ex. P1. would show that it is a subsequent insertion in the document after the same was written. The alteration or the insertion found to have been made in the agreement Ex. P1 by introducing the delivery of possession pursuant to an agreement of sale is in the nature of a material alteration of the document Ex. P1. The said insertion will have the effect of varying the rights of the parties. The effect of making such an alteration without the consent of the party bound by it, is exactly the same as that of cancelling the deed. An alteration made in a deed which varies the rights and obligations of the parties will certainly effect the validity of the deed more so, when it is the specific contention of the appellant that the said document was obtained by way of security for the loan advanced to her by the respondent. In my view it is a material alteration which very the legal effect of the deed in its original state. Such alteration has been made to make it more onerous or at any rate to make it appear that it was in its letter and spirit an agreement of sale. It was in the nature of interpolation with the document by the person who had custody of such document. In order to prove this document Ex. P1, the respondent besides examining himself as P.W.1 had also examined P.Ws. 2 and 3. Of the two witnesses examined 38 by the plaintiff, P.W.2 is the scribe and P.W. 3 is an attestor. P.W.2 has stated that he had written the deed Ex.P.1 to which the appellant had affixed her LTM at Ex.P1A. The respondent paid Rs. 40,000/- as earnest money and the balance was agreed to be paid at the time of the registration. Under the cross-examination he admits that he is from the same village as that of the respondent. The plaintiff had bought the stamp papers for Ex.P.1. The appellant is more than 75 years old and she is weak by constitution. He has further stated that she is illiterate and she cannot read and write. According to him, the plaintiff, the husband of the defendant and children had asked him to write the document Ex.P.1. It is pertinent to note that there is nothing in the evidence of P.W.2 to show that the document after it was written was read over to the appellant and the appellant after accepting the correctness thereof had put her LTM. Now coming to the evidence of the attestor P.W.3, he has stated that before he could go over to the house of the appellant, the entire transaction and talks were over and he was only asked to sign the document and accordingly, he subscribed his signature to the document Ex.P.1 as per Ex.P1C. He did not know as to who wrote the document Ex.P.1. No amount was paid in his presence. He did not know what was the nature of the document. Thus, the evidence of P.W.3 is quite contrary to the evidence of P.W.2. It has to be mentioned that P.W. 3 had not been treated as Hostile and the plaintiff seeks to rely upon the evidence of P.W.3 also. His evidence if accepted, will create serious doubt about the real nature of the transaction.39
Though, P.W.2 has stated that the husband and children of the defendant and the plaintiff had asked him to write the document Ex.P.1, the plaintiff who gave evidence before the Court as P.W.1 has stated that it is he who gave instructions to write the document Ex.P.1. P.W. 1 would go to the extent of saying that prior to the document Ex.P.1, he was cultivating the land as a tenant on lavani basis and was paying Rs. 3,000/- per year by way of lavani to the appellant. But the recitals of the document Ex.P.1 as has been interpolated would show that he was put into the possession on the same day. There is nothing on record to show that the respondent was earlier cultivating the land on lavani basis. Under the circumstances of the case, the plea of the appellant that the document in question had been obtained by way of security for the loan advanced to her by the respondent cannot be lightly ignored. In fact, she gave evidence before the Court to the effect that she had executed such document by way of security for the loan borrowed by her from the respondent. She had also examined her son as D.W.2 who has clearly supported the version of D.W.1 in Court. The husband of the appellant having been dead, he could not be examined in Court. Therefore, in so far as the appellant is concerned, besides examining herself, she had also examined her son who was present at the time of the alleged transaction. Both D.W.1 and D.W.2 have consistently spoken to about the transaction in question being a loan transaction. On the other hand, the evidence adduced on behalf of the respondent was highly inconsistent. If P.W.3 is to be believed, 40 then P.W.2 cannot be believed. In such nature of evidence adduced on behalf of the respondent, the plea taken by the appellant which has been substantiated by the evidence on record cannot be lightly ignored. Furthermore, having regard to the conduct of the respondent in deposing falsely before the Court that he was earlier cultivating the lands as a tenant and the interpolation to the document Ex. P1, so as to appear as though the possession was delivered to the respondent on the same day pursuant to an agreement of sale Ex. P1 will clearly disentitle him to the discretionary relief of specific performance. As I have already stated the jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such a relief is to be granted. Merely because it is lawful to grant specific performance, the Court need not grant the decree for specific performance, but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act as to under what circumstances that Court shall exercise such discretion. If under the terms of the contract, the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of the agreement. If it is inequitable to grant specific relief, then also the Court would desists from granting a decree to the plaintiff. Section 20 of the Specific Relief Act preserves judicial 41 discretion to Courts as to decreeing specific performance. The Court should meticulously consider all the facts and circumstances of the case before granting decree for specific performance. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter in the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In the connection a reference may be made to the decisions of the Hon'ble Supreme Court , and 2001 AIR SCW 3046. That apart, it has to be mentioned that the party who seeks to avail the jurisdiction of a Court and specific performance being equitable relief must come to the Court with clean hands. The party who makes false allegations and interpolations to the document does not come with clean hands and he is not entitled to the equitable relief. The grant of decree for specific performance of contract is not automatic as sought to be contended by the learned Counsel for the respondent and is one of the discretions of the Court and the Court has to consider whether it would be fair, just and equitable. The Court is guided by the principles of justice, equity and good conscience. In the instant case, it would appear that the respondent-plaintiff had been trying to take an unfair advantage over the appellant and that in the circumstances of the case, the appellant would not have intended to sell the property to the respondent. That apart, the circumstances in the case also point out that the respondent had not come to the Court with clean hands: Merely because the 42 appellant did not reply the letters and notice issued by the appellant, no inference can be drawn that the plea that was taken by her in the written statement was false and untenable. The entries in the RTC extracts would show that the appellant has been in possession, but the recitals of the document Ex. P1 would show that the appellant had delivered possession and these recitals as I have already stated, appears to be an interpolation to the document Ex.P1. Granting of specific performance is an equitable relief though the same is now governed by the statutory provisions of the Specific Relief Act. These equitable principles are nicely incorporated in Section 20 of the Act.
While granting a decree for specific performance these salutary guidelines shall be in the forefront of the mind of the Court. Having carefully perused the judgment of the Trial Court, I find that the Trial Court did not keep the salutary guidelines in the forefront of its mind while granting the decree for specific performance. The Trial Court did not consider the question whether it would be fair, just and equitable to grant the decree for specific, performance in the facts and circumstances of the case. Therefore, having given my anxious consideration to the entire matter in issue, I find that the impugned judgment and decree of the Trial Court cannot be sustained in law, in so far as it relates to the relief of specific performance and it is liable to be set aside.
11. In the instant case, it is not in dispute that the respondent-plaintiff had paid a sum of Rs.40,000/- to the appellant-defendant at the time of the execution of the document Ex.P1. I 43 am of the opinion that the interest of justice would be squarely met if I direct the appellant- defendant to pay a sum of Rs.40,000/- to the respondent-plaintiff together with interest thereon at 14% per annum from the date of the agreement of sale i.e., 14.06.1993 till realisation. Thus, the respondent-plaintiff will be entitled to recover a sum of Rs.40,000/- together with interest thereon at 14% per annum from the date of the agreement of sale i.e., 14.06.1993 to the date of realisation of that amount. There shall be a charge for this amount on the plaint schedule property and the respondent-plaintiff would be at liberty to enforce the decree against the appellant and her property, in case the appellant fails to repay the said sum of Rs.40,000/- with interest at 14% per annum from the date of the agreement. Accordingly, I modify the impugned judgment and decree of the Trial Court to the extent as indicated above."
33. Further the Hon'ble Supreme Court in the case of Sukhwinder Singh vs Jagroop Singh & another reported in Civil Appeal No.760/2020 dated 28-01-2020, at Para No.9 and 10 it is held as under:-
"9. The suit being the one for specific performance of the contract on payment of the balance sale consideration, the readiness and willingness was required to be proved by the plaintiff and was to be considered by the Courts below as a basic requirement if a decree for specific performance is to be granted. In the instant case though the defendant No.2 had denied the agreement as also 44 the receipt of the earnest money, the same would not be of consequence as the agreement claimed by the plaintiff is with the defendant No.1 and the contention of the defendant No.2 to deny the same is without personal knowledge on that aspect. However, even in the absence of the defence put forth, the plaintiff was required to prove his readiness and willingness and that aspect of the matter was to be considered by the Courts below. In the present case though the plaintiff examined himself as PW1, as also PW2 and PW3, the document writer, and the witness to the agreement who stated with regard to the execution of the agreement, the evidence to prove the readiness and willingness with regard to the resources to pay the balance sale consideration is insufficient. In the absence of denial by the defendant No.1, even if the payment of Rs.69,500/ and the claim by the plaintiff of having gone to the office of SubRegistrar on 15.06.2004 is accepted, the fact as to whether the plaintiff had notified the defendant No.1 about he being ready with the balance sale consideration and calling upon the plaintiff to appear before the Sub-Registrar and execute the Sale Deed was required to be proved. From among the documents produced and marked as Exhibit P1 to P9 there is no document to that effect, more particularly to indicate the availability of the balance sale consideration as on 15.06.2004 and as on the date of filing the suit. Despite the same, merely based on the oral testimony of PW1, the Courts below have accepted the case put forth by the plaintiff to be ready and willing to complete the transaction.
10. Instead of arriving at an appropriate conclusion on that aspect, the Trial Court while answering the issues No.1 and 2 has concluded that the amount of sale 45 consideration has already been paid and the fact that the Civil Suit has been filed by the plaintiff are sufficient to establish that the plaintiff remained ready and willing to perform his part of the contract. On the other hand, it is noticed that what had been paid as on the date of filing the suit was only the earnest money and the balance amount was deposited only on 03.08.2007 after the suit was decreed at the first instance on 14.06.2007 and not as on the date of filing the suit. Hence the concurrent conclusion reached by all the three Courts is an apparent error, the correction of which is necessary. It is no doubt true that as on the date of decision for the second time after restoration, the amount had been deposited which is not the same as having deposited or paid prior to or at the time of filing the suit. Even if the amount had been deposited as on the date of filing the suit, the readiness and willingness with possession of the sale consideration as on 15.06.2004 was necessary to be proved, which has not been done. Hence, in our opinion the Courts below have not appropriately considered this aspect of the matter.
34. In view of the principles stated in the above referred decisions, if the judgment of the Trial Court and the First Appellate Court and the evidence placed before the Court are considered then it is evident that though the execution of agreement of sale is proved, but 46 the transaction is not intended for the sale of the said property. Defendant No.1 also admits receipt of Rs.45,000/-. But the plaintiff was never in possession of the said property. It is also evident that the plaintiff was never ready and willing to perform his part of contract. Therefore, the First Appellate Court is justified in setting aside the judgment and decree of the Trial Court granting suit for specific performance of contract. But at the same time the First Appellate Court is not justified in refusing to order for return of earnest money as there is a alternative prayer of the plaintiff in the plaint to grant relief of refund of earnest money with interest at the rate of 18% p.a. The defendant No.1 who has admitted receipt of Rs.45,000/- and DW.2 her husband has also stated that they are ready to return the Rs.45,000/-, but plaintiff is neither receiving the amount nor executing the sale deed sold 02 acres of property to defendant No.2 for their necessity. Therefore, the amount of Rs.45,000/- which is 47 admittedly received by defendant No.1 and not repaid by them till today, is require to be refunded to them in view of their alternative prayer. The First Appellate Court though refused the relief of specific performance and also relied upon the decision of this High Court in the case of Sheetawwa vs Hemaraddi referred supra, wherein the refund of earnest money was ordered with interest, but the First Appellate Court failed to grant alternative relief of refund of earnest money which is prayed by the plaintiff.
35. As discussed above the appellant has filed application under Order 41 Rule 27 of CPC which is treated as I.A.No.1/2019 seeking permission to produce the documents mentioned in the accompanying list i.e., deposition of one Maralingappa @ Annappa s/o Kallappagouda Patil in O.S.No.6/1999 on the file of I Additional Senior Civil Judge Bijapur. It is contended in the affidavit that Ex.P.1 is scribed by one Annappagouda as observed by the Court below. But the 48 signature appearing on Ex.P.1 is appearing as M.K. Patil. The said M. K. Patil is also known as Annappagouda Patil. To prove that aspect his deposition in O.S.No.6/1999 is sought to be produced to clarify the same. At the time of pendency of the matter before the Trial Court the advocate has not notice the same.
36. The respondent No.1 has filed objections to that application denying the contents are all false. It is contended that they are different persons. It is further contended that the said respondent No.1 is not a party to that suit nor Annappagouda is party to the present suit. Moreover, the said Annappagouda was expired long back. So, such died person is not available for cross-examination. Only, when an adverse finding is given regarding the signature of the scribe and non- examination somehow these documents were tried to be produced, which is not permissible.
37. I have perused the said document. It is admitted by both the sides that the said Annappagouda 49 is no more. So, he is not available for either examination or for cross-examination by any of the parties. The said person is neither party to this suit nor this defendant No.1 is party to O.S.No.6/1999. Therefore, when the said person no more then it is not desirable to allow his deposition to which this defendant No.1 is not a party. The respondent No.1 will be deprived of countering such deposition. Further, the grounds mentioned in the affidavit accompanying the said application are also not tenable. Therefore, the application I.A.No.1/2019 deserves to be dismissed.
38. In view of the discussion made above, in my considered view refund of earnest money of Rs.45,000/- with interest at the rate of 14% p.a. from the date of agreement till the date of payment is to be awarded. Accordingly, I answered first substantial question of law in the affirmative and second substantial question of law partly in affirmative. Accordingly, I proceed to pass the following;
50
ORDER
a) The Regular Second Appeal filed by the appellant - plaintiff is allowed in part modifying the judgment and decree passed by the First Appellate Court in the manner and to the extent indicated above.
b) The suit of the appellant - plaintiff is decreed for Rs.45,000/- together with interest at the rate of 14% p.a. from the date of agreement Ex.P.1. i.e., from 09.04.1990 till the date of payment in lieu of specific performance.
c) There shall be a charge for this amount on the plaint schedule property.
d) The appeal stands disposed off with aforesaid modifications and directions. 51
e) In view of facts and circumstances the case, the parties to bear their own costs.
f) The application I.A.No.1/2019 under Order 41 Rule 27 of the Code of Civil Procedure stands disposed off, in view of discussion made above.
g) Send back the secured records to the concerned Courts.
Sd/-
JUDGE KJJ/MNS