Karnataka High Court
Babagouda Lakhamgouda Patil vs Smt Dundawwa W/O Dundappa Dolli on 19 July, 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF JULY, 2024
BEFORE R
THE HON'BLE MR JUSTICE C. M. POONACHA
R.S.A. No.5323 OF 2008 (SP)
C/W
R.S.A. No.6052 OF 2010
IN R.S.A. No.5323/2008
BETWEEN
1. SRI BABAGOUDA LAKHAMGOUDA PATIL
AGED ABOUT 72 YEARS
OCC AGRICULTURE
R/O KOCHERI TQ HUKKERI
DISTRICT BELGAUM 590001
...APPELLANT
(BY SRI SANGRAM S KULKARNI, &
SRI KRISHNA KUMAR JOSHI, ADVOCATES)
AND
1. SMT DUNDAWWA
W/O DUNDAPPA DOLLI
MAJOR, OCC HOUSEHOLD WORK
R/ KOCHERI TQ HUKKERI
DISTRICT BELGAUM 590001
2. SMT LAXMIBAI DUNDAPPA JARALI,
MAJOR
OCC AGRICULTURE
R/O KOCHERI TQ HUKKERI
DISTRICT BELGAUM 590001
2
3. SMT SARASWATI CHANNAPPA CHOUGALA
MAJOR
R/O MASARGUPPI TQ HUKKERI
DISTRICT BELGAUM 590001
4. SMT AWWAKKA
W/O BALAPPA ANKALI
MAJOR
R/O KOCHERI TQ HUKKERI
DISTRICT BELGAUM 590001
...RESPONDENTS
(BY SRI SANTOSH P PUJARI, ADVOCATE FOR R1 TO R3 & R4(a))
THIS RSA IS FILED U/S. 100 OF CIVIL PROCEDURE CODE, 1908
AGAINST THE JUDGMENT & DECREE DTD:01/09/2008 PASSED IN
R.A.NO:35/2006 ON THE FILE OF THE I ADDL. DISTRICT JUDGE,
BELGAUM, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT
AND DECREE DTD: 23/02/2006 PASSED IN O.S.NO:16/2001 ON THE
FILE OF THE CIVIL JUDGE (SR.DN) HUKKERI, DISMISSING THE SUIT
FILED FOR SPECIFIC PERFORMANCE WITH ALTERNATIVE PRAYER TO
REFUND OF THE EARNEST MONEY WITH INTEREST.
IN R.S.A. No.6052/2010
BETWEEN
1 SMT DUNDAWA
W/O DUNDAPPA DOLLI
AGED ABOUT 74 YEARS,
OCC : AGRICULTURE
R/O KOCHARI 591 340
TQ : HUKERI DIST : BELGAUM
2 SMT LAXMIBAI
W/O DUNDAPPA JIRALI
AGED ABOUT 49 YEARS,
OCC : AGRICULTURE HOUSEHOLD
R/O KOCHARI 591 340
TQ : KOCHARI DIST : BELGAUM
3. SMT SARASWATI
3
W/O CHANNAPPA CHOUGALA
AGED ABOUT 44 YEARS,
OCC : AGRICULTURE HOUSEHOLD,
R/O KOCHARI 591 340
TQ : KOCHARI DIST : BELGAUM
SMT. AWAKKA
W/O BALAPPA ANKALI.
SINCE DECEASED. BY HER LR
4. SRI BASAVARAJ BALAPPA ANKALI
AGED ABOUT 26 YEARS,
OCC : AGRICULTURE
R/O KOCHARI 591 340
TQ : HUKERI DIST : BELGAUM
...APPELLANTS
(BY SRI SANTOSH P PUJARI, ADVOCATE)
AND
1. SRI BABAGOUDA LAKHAMAGOUDA PATIL
AGED ABOUT 70 YEARS,
OCC : AGRICULTURE
R/O,KOCHARI
TQ : HUKERI DIST : BELGAUM
...RESPONDENT
(BY SRI SANGRAM S KULKARNI, &
SRI KRISHNA KUMAR JOSHI, ADVOCATES)
THIS RSA IS FILED U/SEC.100 R/W ORDER 42 RULE 1 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED:27-10-2010 IN
R.A.NO.21/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT, HUKKERI, DISMISSING THE APPEAL BY CONFIRMING
THE JUDGMENT AND DECREE DTD:27-01-2006 IN OS.NO.202/2000
PASSED BY THE CIVIL JUDGE (JR.DN) SANKESHWAR, DISMISSING THE
SUIT FILED FOR PERMANENT INJUNCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
10.10.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, THIS COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
RSA No.5323/2008 is filed under Section 100 of the Code of Civil Procedure1 by the plaintiff challenging the Judgment and decree dated 01.09.2008 passed in R.A No.35/2006 by the First Additional District Judge, Belgaum2 and the judgment and decree dated 23.02.2006 passed in O.S.No.16/2001 by the Court of the Civil Judge Senior Division Hukkeri3 whereunder, the suit for specific performance filed by the appellant/ plaintiff has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.
2. RSA No.6052/2010 is filed by the plaintiff under Section 100 of the C.P.C challenging the Judgment and decree dated 27.10.2010 passed in R.A No.21/2006 by the 1 Hereinafter referred to as the 'C.P.C.' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' 5 Fast Track Court, Hukkeri4 and the Judgment and decree dated 27.01.2006 passed in O.S No.202/2000 passed by the Civil Judge (Junior Division) Sankeshwar5 whereunder, the suit for injunction filed by the plaintiffs has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.
3. The relevant facts necessary for the consideration of the present appeals are that, one Sri. Babugouda Lakhamagouda Patil6 entered into an agreement of sale dated 22.03.19857 with the owners of the property namely Dundawwa and others8 for purchase of property bearing RS No.17/1 of Kochari village measuring 1 acre 38 guntas9 for a total sale consideration of ₹60,000/-. The earnest money 4 Hereinafter referred to as the 'First Appellate Court' 5 Hereinafter referred to as the 'Trial Court' 6 Hereinafter referred to as 'agreement holder' 7 Hereinafter referred to as 'said agreement' 8 Hereinafter referred to as 'owners' 9 hereinafter referred to as 'suit property' 6 received under the said agreement was ₹50,000/- and the balance sale consideration was payable was ₹10,000/-.
4. It is the contention of the agreement holder that he was put in possession of the suit property and the time fixed for registration of the sale deed was 12 years if the cost of registration was to be shared between the parties. If not, the agreement holder will have a right to get the registered Sale Deed after completion of 15 years. However, the owners dispute the fact that they have put the agreement holder in possession of the suit property.
5. The owners of the property filed a suit for injunction in O.S.No.202/2000 on 13.12.2000 against the agreement holder, restraining him from interfering with the owners' peaceful possession and enjoyment of the suit property. The agreement holder entered appearance in the said suit and contested the same.
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6. The agreement holder filed O.S No.16/2001 for specific performance of the agreement of sale dated 22.03.1985. The owners of the suit property entered appearance and contested the same.
7. In both the suits oral and documentary evidence of the parties were recorded.
8. Vide Judgment and decree dated 27.01.2006, the Trial Court dismissed OS. No.202/2000 for injunction filed by the owners. Being aggrieved, the owners preferred R.A.No.21/2006, which appeal was dismissed by the First Appellate Court on 27.10.2010. Being aggrieved RSA No.6052/2010 is preferred by the owners.
9. O.S.No.16/2001 filed for specific performance was dismissed by the Trial Court on 23.02.2006. Being aggrieved the agreement holder filed R.A. No.35/2006 which appeal was dismissed on 01.09.2008. Being aggrieved RSA No.5323/2008 is filed by the agreement holder. 8
10. This Court vide orders dated 27.03.2014 admitted both the above appeals and framed the following substantial questions of law:
10.1 IN RSA No.5323/2008:
1. Whether the trial Court as well as the first appellate Court have committed a serious error in giving negative finding on issue No. 1 relating to the execution of agreement of sale by ignoring the material evidence placed on record, more particularly, when the plaintiff is in possession of the schedule property?
2. Whether both the Courts have committed a serious error in coming to the conclusion that suit filed for the relief of specific performance is barred by time and thereby the judgments are illegal and perverse?
10.2 IN RSA No.6052/2010:
"Whether the trial Court as well as the first appellate Court have committed a serious error in dismissing the suit filed for the relief of injunction by ignoring the material evidence 9 placed on record and thereby the judgments are perverse and illegal?"
11. Learned counsel for the agreement holder Sri Sangram S.Kulkarni assailing the judgment and decree passed by the trial Court and the first appellate Court in the suit for specific performance submits that the defence of the owner of the property is one of complete denial of the agreement of sale and both the Courts erred in dismissing the suit for specific performance filed by the agreement holder. He further submits that this Court by order dated 8.4.2015 had ordered for scientific verification of the agreement of sale - Ex.P1 to ascertain the thumb impressions of the owners of the property, consequent to which a report dated 15.9.2015 has been furnished, wherein it has been specifically stated that the thumb impressions are that of the owners of the property. He further submits that the agreement holder is in possession of the property for more than 38 years uninterruptedly and has carried out 10 various improvements in the property. That the findings recorded by both the Courts that the suit for specific performance is barred by time are erroneous having regard to the fact that it is also stipulated in the agreement of sale dated 22.3.1985 that the sale transaction is required to be completed within 12 years if the expenses incurred for registration are to be shared between the parties and if not, the agreement holder will have a right to have the Sale Deed registered after completion of 15 years, which period would expire on 21.3.2000. That the right to sue will accrue only after expiry of 21.3.2000 and hence the agreement holder has got issued a legal notice on 21.4.2001 and thereafter, filed the suit for specific performance. Hence, he submits that the suit is filed within 3 years from the date of the cause of action. He further submits that out of the total sale consideration of ₹60,000/- the plaintiff has paid a sum of ₹50,000/- which was a large amount of money as on date of the agreement and hence, the specific performance is 11 required to be granted. He further submits that in addition to the balance sale consideration of ₹10,000/-, the agreement holder is ready to pay an additional sum of ₹1.00 lakh to the owner of the suit property.
12. Per contra, learned Counsel Sri Santosh P.Pujari appearing for the owners of the property submits that both the Courts have rightly dismissed the suit for specific performance filed by the agreement holder and that the suit is filed after a lapse of 15 years and 6 months of the agreement. That the agreement is surrounded by suspicious circumstances. That the wording of the clause indicating time for performance is a strange one and notwithstanding the fact the report dated 15.9.2015 submitted to this Court pursuant to the order dated 8.4.2015 indicates that the thumb impressions at Ex.P1 are that of the owners, the same does not prove Ex.P1. He further submits that the owners of the property are illiterate ladies and admittedly the scribe has not explained the contents of the agreement nor has any 12 information regarding the same been given and hence, there was undue influence in the execution of the said agreement. He further submits that the trial Court and the first appellate Court have rightly dismissed the suit for specific performance which ought not to be interfered with by this Court in the present Second Appeal. He further submits that the dismissal of the suit for injunction by the owners will not in any way aid the case of the agreement holder in seeking for specific performance of the agreement of sale.
13. In support of their contentions, both the learned counsels have relied on various judgments, which shall be referred to during the course of this order to the extent they are applicable for the purpose of adjudication of the lis between the parties.
14. The submissions made by both the learned counsels have been considered and the material on record has been perused.
13
15. Before the contentions putforth by both the parties are dealt with, it is necessary to note the case putforth by both the parties before the trial Court and the first appellate Court and the findings recorded. Pleadings of the parties:
16. The owner filed OS No.202/2000 for injunction contending that the plaintiffs are the owners of suit property bearing No.RS.No.17/1, measuring 1 acre 38 guntas and that they are in possession of the same. That the owners of the suit property are uneducated ladies and the agreement holder being a shrewd man, who is a relative of plaintiff No.1 in OS No.16/2001 has obtained thumb impressions of the owners of the suit property on some documents and on the basis of the said concocted documents got entered his name in the revenue records in respect of the suit property. That the agreement holder, taking advantage of the fact that his name is entered in the revenue records has sent the 14 sugarcane crop grown in the land of the owners of the suit property in his name and also took payment of the said crop from the parties and since he is claiming right of possession in the suit property, the suit for injunction is filed.
17. The agreement holder who is arrayed as the defendant in the said suit, entered appearance and filed written statement denying the case of the owners of the suit property and further contended that since the owners of the suit property were in need of money, they approached the agreement holder to dispose of the suit property. Accordingly, in the presence of witnesses the agreement of sale dated 22.3.1985 was executed to sell the suit property for a total sale consideration of ₹60,000/-, out of which a sum of ₹50,000/- was paid on the said date and the agreement holder was put in possession of the suit property. That the agreement holder has developed the property by putting up pipeline to grow crops from the year 1985 i.e., from the date of execution of the agreement and has been in 15 absolute possession and enjoyment of the suit property. That he has filed a suit for specific performance and question of granting injunction does not arise. It was specifically contended that the agreement was executed in the year 1985 and till 2001 the owners of the property have kept quiet, which shows that they do not have any right, title and interest in the suit property.
18. The agreement holder filed OS No.16/2001 for specific performance, wherein the plea regarding due execution of the agreement of sale dated 22.3.1985 was averred and that the sale transaction as per the said agreement is required to be completed within 12 years. It was further averred that the agreement holder was ready and willing to perform his part of the agreement by paying the balance sale consideration of ₹10,000/-. It was also averred that he was put in possession of the suit property in part performance of the agreement of sale and that his name was entered in the revenue records.
16
19. The owners of the suit property who were arrayed as defendants in the said suit entered appearance and filed their written statement denying the case of the agreement holder. It was further specifically contended that the agreement of sale is a fabricated document and is on a plain paper and the suit was barred by limitation. It is further contended that there was no legal necessity for the owners of the suit property to sell the property in favour of the decree holder and their financial position was good.
20. In OS No.202/2000 (injunction suit) based on the pleadings of the parties, the trial Court framed the following issues:
i. "Whether the plaintiffs prove that they are the lawful owners in possession of the suit property as on the date of the suit?
ii. Whether the plaintiffs further prove the alleged interference caused by the defendant? iii. Whether the plaintiffs are entitled for permanent injunction as prayed for?
iv. What order or decree?"17
21. In OS No.16/2001 (suit for specific performance) based on the pleadings of the parties, the trial Court framed the following issues:
i. Whether the plaintiff proves that on 22.3.1985 the defendant no.1 to 4 have agreed to sell the suit schedule property to him for ₹60,000/- and received an earnest money of ₹50,000/- and put the plaintiff in possession of the suit schedule property?
ii. Whether plaintiff further proves that he is ready and willing to perform his part of obligation under the agreement of sale dated 22.3.1985? iii. In the event of the refusal of the specific performance of agreement to sell the suit schedule property, in that event, whether the plaintiff is entitled for the refund of earnest money?
iv. Whether the defendants prove that, the suit is barred by time?
v. Is there any cause of action to file the suit? vi. Whether the plaintiff is entitled for the relief sought for?18
vii. What order or decree?
22. Separate evidence was adduced in both the suits.
In the injunction suit, the owners examined themselves as PWs.1 to 3 and marked Exs.P1 to P6. The defendant examined himself as DW.1, a witness as DW.2 and marked Exs.D1 to D19.
23. In the suit for specific performance, the agreement holder examined himself as PW.1 and 2 two witnesses were examined as PWs.2 and 3. Exs.P1 to P27 were marked in evidence. Defendant No.4 in the said suit examined himself as DW.1 and another witness as DW.2. Exs.D1 to D9 were marked in evidence.
FINDINGS OF THE TRIAL COURT AND FIRST APPELLATE COURT IN THE INJUNCTION SUIT:
24. The Trial Court while considering the issues framed in OS No.202/2000 (injunction suit) has recorded the following findings:
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i. PW.1 is the PA holder of plaintiff No.1, PW.2 is plaintiff No.2 and PW.3 is the adjacent land owner;
ii. In the documents produced on behalf of the plaintiffs, except Exs.P2 and P3 which are the revenue documents, no documents are forthcoming on behalf of the plaintiffs to prove their possession;
iii. No documents are produced by the plaintiffs to establish that the husband of plaintiff No.1 and the father of plaintiff Nos.2 to 4 were in possession of the suit property earlier to the filing of the suit or earlier to 1985;
iv. PW.1 admits that the defendant has obtained a loan from the bank by giving survey number of the property;20
v. PW.3 admits that the defendant is sending the sugar cane grown on the land to the sugar cane factory in his name;
vi. The documents produced by the defendant at Exs.D3 to D5 and D8 to D9 clearly establish that possession of the property is with the defendant; vii. Ex.D17 is the application filed by PW.3 to measure his property and his adjacent land owner and the Taluka Surveyor has issued notice to the defendant;
viii. In the exhibits produced by the plaintiffs, the name of the defendant is forthcoming; ix. PW.1 admits that in the year 2001 a complaint was lodged before the police by the defendant that the plaintiffs were damaging the pipelines existing in the land and the plaintiffs have given 21 an undertaking that they will not damage the pipelines;
x. PW.3 admits the water is supplied from the well in the defendant's property to the suit property and that Dundappa Dolli was growing sugar cane crop in the suit property;
xi. Exs.D9 and D10 clearly establish about sending sugar cane crop to the factory in the year 2011; xii. Ex.D3 establish that the defendant has obtained loan from the bank in the year 1986-87; xiii. The plaintiffs are claiming right on the basis of previous owner but in order to establish the fact of the ownership of his previous owner, no documents have been produced by the plaintiffs; xiv. By considering the documents available on record, there is no hesitation for coming to the conclusion 22 that the defendant is in possession of the property.
25. The Trial Court by its judgment and Decree dated 27.1.2006 passed in the injunction suit dismissed the said suit. Being aggrieved the land owners preferred RA No.21/2006. The Agreement holder entered appearance in the said appeal and contested the same. The first Appellate framed the following points for determination:
i) Whether the appellants prove that they are in possession of suit property?
ii) Whether the appellants prove that the judgment and decree passed by Civil Judge, Sankeshwar in OS No.202/2000 dated 27/01/2006 is suffering from irregularities or illegalities and calls for interference by this court?
iii) What order?
26. The first appellate Court while considering point Nos.1 and 2 recorded the following points for consideration: 23
i. Though the defendant has taken the contention that he has perfected his title by adverse possession, he has not made any counter claim; ii. The plaintiffs have pleaded at para 3 of the plaint that the defendant has taken the thumb impression of the plaintiffs in a blank paper and created a sale agreement in his favour and got mutated his name in the revenue records. As against this, the defendant has contended that the plaintiffs have executed a Sale Agreement Deed agreeing to sell the suit property for ₹60,000/- and out of that amount ₹50,000/- has been paid and the plaintiffs have handed over possession of the suit property. The present suit is for bare injunction and the validity of the agreement does not come in the way and in the suit only possession is to be taken into consideration; 24 iii. If the pleadings and evidence given by the plaintiffs are taken into consideration, it clearly shows that the plaintiffs have executed the Sale Agreement Deed and handed over possession of the suit property to the defendant;
iv. PW.1 - Channappa Chougula has admitted in the cross-examination that there is land belonging to the defendant and one Well is situated in the said land. He has further admitted that from road towards his land the pipeline measuring 3 inches is installed. He has further admitted that from the Well to the road there is a 2-inch pipeline. He has further admitted that he has got certain documents to show purchase of the pipeline; v. It is important to note that PW.1 has not produced any document to show that he has purchased the 25 pipelines and installed the pipelines in the suit property;
vi. It is important to note that from the evidence of PW.1 and DW.1 it is clear that no Well is situated in the suit property;
vii. It is admitted by PW.1 that the Well is situated in the land of the defendant;
viii. Nowhere PW.1 has given evidence that he has taken permission from the defendant to take water from the Well of the defendant. He has admitted installation of the pipelines in the suit property but claims that the plaintiffs have put up the said pipelines;
ix. In the absence of any other document produced by the plaintiffs, though they were having document to show installation of pipelines, the 26 evidence of PW.1 does not help to show that the plaintiffs installed the pipelines; x. If the evidence of DW.1 coupled with the admissions given by PW.1 have been taken into consideration along with the Well situated in the land of the defendant, it clearly shows that the defendant has installed the pipelines in the suit property to take water facilities from the Well situated in his own land;
xi. It is the specific defence of the defendant that he has grown sugarcane crops and is sending the same to the sugar factory in his name mentioning the suit property survey number. As against this, the plaintiffs have contended that they have grown sugarcane crop and because the defendant has got mutated his name behind the back of the plaintiffs, they have filed objections to the sugar 27 factory not to accept the sugarcane of the suit property under the name of the defendant; xii. The plaintiffs have not produced any document to show raising sugarcane crop in the suit property, except Ex.P5 i.e., objections submitted to the Hira Sugar Factory, Sankeshwar;
xiii. Ex.D5 is the receipt issued by the sugar factory which shows that the defendant has supplied sugarcane crop raised in Sy.No.17/1. Ex.D9 and Ex.D10 also show that the defendant has supplied sugarcane to the factory which has been raised in Sy.No.17/1;
xiv. Merely because the plaintiffs have filed objections to the factory, it does not mean that the plaintiffs were raising sugarcane crop in the suit property; xv. If the non production of any document by the plaintiffs has been taken into consideration 28 coupled with the documents discussed above, it clearly shows that the defendant is in possession of the suit property as on the date of the suit; xvi. The present suit property is bearing Sy.No.17/1 measuring 1 acre 38 guntas. It shows that Ex.P6 is not pertaining to Sy.No.17/1;
xvii. The defendant has produced Exs.D13 to D16 to show payment of revenue to the Government. They are pertaining to the years 1989, 1997, 2000 and 2003;
xviii. PW.1 has admitted in the cross-examination that he got documents to show payment of revenue to the Government. However, no documents have been produced by the plaintiffs. Hence, it shows that though the plaintiffs are the owners of the property, they are not in possession of the suit property;29
xix. Whether the agreement is valid or invalid and proof of the said agreement is a point to be considered in the suit filed by the defendant for specific performance. If the said agreement has been taken into consideration along with the mutating of the name of the defendant in the revenue records coupled with several documents produced by the defendant, it clearly shows that the plaintiffs are not in possession of the suit property;
xx. On going through the evidence of PWs.1 to 3, DW.1, coupled with the documents produced by the parties, it shows that the plaintiffs have failed to establish possession of the suit property as on the date of the suit.30
27. The Trial Court in OS No.16/2001 (suit for specific performance) while answering issue No.1 has recorded the following findings:
i. The evidence on record adduced by the plaintiff goes to show that it is PW.2 who has written Ex.P1. Admittedly, PW.2 is not a licensed Bond Writer;
ii. When the defendants have denied their left thumb impressions (LTMs) on Ex.P1, the plaintiff ought to have taken steps to send the admitted LTMs and the disputed LTMs found on Ex.P1 for expert opinion. But the same has not been done; iii. Further, it is interesting to note that the scribe of the document has not attested the alleged LTMs of defendant Nos.1 to 4, but it is PW.3 who is the close relative to plaintiffs has attested the LTMs of defendant Nos.1 to 4 and the said PW.3 has also signed on Ex.P1 as an attesting witness; 31 iv. It has come in the evidence of PW.2 that there is no difficulty for him to attest the said LTMs of defendant Nos.1 to 4. So I find considerable force in the arguments advanced by the learned Counsel for the defendants in this regard; v. On perusal of Ex.P1, it is not mentioned with regard to the need of selling the suit property. So it is also one of the matter that has to be taken into consideration that Ex.P1 is a concerned (concocted) document;
vi. The wardi given by defendant No.1 is contrary to the provisions of Section 128 of the Karnataka Land Revenue Act;
vii. The name found in the concerned RTCs and also mutation entry cannot be held to be title deeds; viii. The suit document was got written by a person who has no Bond Writer's licence and the alleged LTMs of defendant Nos.1 to 4 are very much 32 disputed by the defendants and same are not sent to the experts opinion as to know whether the said LTMs belong to defendant Nos.1 to 4 or not; ix. Further, it has come in the evidence of PW.2 that as per the say of panch witnesses he got written Ex.P1. So it is crystal clear that defendants never instructed PW.2 to write Ex.P1;
x. Hence, looking to the entire evidence of the plaintiff they go to show that the defendants never executed the Agreement of Sale in favour of the plaintiff for valuable consideration of ₹60,000/-and by receiving ₹50,000/-.
28. While considering issue No.4 with regard to limitation, the Trial Court has recorded the following findings:
i. PW.1 at page 5 of his cross examination has mentioned that the regular Sale Deed was to be executed within 12 years from the date of Ex.P1;
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ii. According to the own case of the plaintiff, Ex.P1
was executed by defendant Nos.1 to 4 on
22.3.1985 as per his own case 12 years expires on 22.3.1997 and so from that 3 years period comes to 22.3.2000. However, the suit was filed on 27.3.2001. So there is a delay of one year four days in filing the suit. Hence, the suit is hopelessly barred by time.
29. The Trial Court by its judgment and decree dated 23.2.2006 dismissed the suit. Being aggrieved, the agreement holder preferred RA No.35/2006. The owners entered appearance in the said appeal and contested the same. The first appellate Court framed the following points for determination:
"(1) Whether the judgment of the trial court holding that the plaintiff is unable to prove that the defendants 1 to 4 have agreed to sell the suit scheduled property to him for ₹60,000/- and received 34 earnest money of ₹50,000/- and put the plaintiff in possession of the suit property is justified and legal? (2) Whether the judgment of the trial Court holding that the issue whether the plaintiff proves that he is ready and willing to perform his part of obligation under the agreement of sale dated 22.03.1985 does not survive for consideration is justified and legal? (3) Whether the judgment of the trial court holding that the plaintiff is unable to prove that in the event of refusal of the specific performance of agreement to sell the suit schedule property, in that event, whether the plaintiff is entitled for the refund of earnest money is justified and legal?
(4) Whether the judgment of the trial court holding that the defendants have proved that the defendants have proved that the suit of the plaintiff is barred is justified and legal?
(5) Whether the judgment of the trial court holding that there was no cause of action to file the suit is justified and legal?
(6) Whether the impugned judgment of the Court below calls for interference in this appeal? 35
(7) What order?"
30. The first appellate Court, while considering point No.1 has recorded the following findings:
i. The Trial Court while dealing with the authority of PW.1, the document writer of Ex.P1 has also dealt with several other aspects to come to the conclusion as to whether Ex.P1 was really executed and acted upon by the parties; ii. A plain reading of Section 80B of the Registration Act, demonstrates that no person other than Advocate or Legal Practitioner shall for payment write Deeds unless he holds a valid licence; iii. Therefore, the finding of the Trial Court that the suit document was got written by a person who has no Bond Writer's licence and as such Ex.P1 is not a valid document is sound and proper. 36 Therefore, the finding of the Trial Court to this extent is legal;
iv. Admittedly, Ex.P1 is written on a white paper as long back as in the year 1985. The words written on the top of the document are in different ink and do not convey any meaning at all;
v. So also in the penultimate para of the agreement, the wordings do not convey any meaning; vi. The agreement of that nature should be specific and clear and it must manifestly depict the intention of both the parties;
vii. On the contrary, the evidence on record amply establishes that there was no financial difficulty for the defendants. PW.2 in his evidence has categorically stated that the financial position of the husband of defendant No.1 was good, so also the financial position of defendant No.1. If such 37 being the case, the burden is on the plaintiff to establish that due to legal necessity the property was sold. In Ex.P1 there is absolutely no reference as to whether defendants were in need of money;
viii. The time limit of 12 years creates a strong doubt in the mind of this Court as to the very existence of the document. Normally, whenever an agreement of this kind is written, it is an usual practice to grant time period of six months to one year or to the maximum of three years. Granting of 12 years time for execution of the agreement is a strange clause;
ix. If the defendants were really in financial dearth, they would not have allowed the plaintiff to pay the remaining balance of ₹10,000/- after a period of 12 years and they would have certainly insisted 38 the balance consideration of ₹10,000/- immediately after the execution of the agreement; x. The document Ex.P1 particularly when it is written in a format like the present one, must be clear and unimpeachable and it should not give room for suspicion;
xi. If the say of the plaintiff that all the defendants have put their LTMs on Ex.P1 were to be true, nothing prevented him to refer to this document for expert's opinion. This document was said to be written long ago on a white paper, the LTMs were also not tallied with each other and some clauses and words are written in an unusual manner. All this short falls create doubt as to the genuineness of Ex.P1. Therefore, the finding of the Trial Court as to the genuineness of Ex.P1 appears to be sound and proper;39
xii. No doubt, the mutation of the said land was effected in the year 1985 itself, the entries in RORs have presumptive value;
xiii. Even if mutation was effected, it is contrary to the intention of the party as per the tenor of Ex.P1. So also it is very much relevant to note that under Ex.P9 - mutation entry there is absolutely no reference as to the execution of Ex.P1; xiv. The contention of the plaintiff that Ex.P1 was acted upon pursuant to the mutation entry appears to be palpably false and far from the truth. Mere proving of possession is not sufficient to hold that an Agreement of Sale was entered into between the parties and that has been acted upon by the parties. As discussed supra, in Ex.P9 there is no mention as to the execution of Ex.P1. Thus, this Court, cannot hold that Ex.P1 was acted 40 upon by the parties and pursuant to the same, the mutation was entered in favour of the plaintiff; xv. The factum of possession is only a corroborative piece of evidence in support of Ex.P1;
xvi. The plaintiff must prove by way of substantive
evidence that Ex.P1 is a true and genuine
document which was duly executed by the
defendants;
xvii. As the plaintiff has utterly failed to prove the
execution of Ex.P1, the factum of possession does not come to his aid;
xviii. It is crystal clear that even if the execution of Agreement of Sale has been proved, it is still the discretion of the Court to grant the relief of specific performance of the contract. In the instant case, the plaintiff was unable to prove the execution of the Sale Agreement - Ex.P1. 41 Therefore, the question of exercising this discretion does not arise at all.
31. While answering point No.3, the first appellate Court has recorded the following findings:
i. The plaintiff has failed to establish as to the mode of payment and the actual denomination of currency paid by him, if he has paid in the form of cash;
ii. Nothing is forthcoming from his evidence except a bare statement that he has paid ₹50,000/- to the defendants. That the granting of alternate relief of refund of earnest money would arise only in cases where the plaintiff is able to establish the execution of the Agreement of Sale and payment of consideration. Since the plaintiff has failed to establish the same, the question of passing an order for refund of earnest money does not arise. 42
32. While answering Point No.4 the first appellate Court has recorded the following findings:
i. As per Ex.P1, the alleged Sale Agreement, the transaction of sale and purchase has to be completed within a period of 12 years and as observed by this Court supra that it is a strange clause found in Ex.P1. The law of limitation lays down that the limitation for such agreement shall be three years;
ii. Even assuming for a moment that it was really agreed that the transaction has to be completed within a period of 12 years, even then the suit is barred by limitation for the obvious reason that the alleged Sale Agreement Ex.P1 is dated 22.3.1985 and the limitation mentioned in Ex.P1 of 12 years expired on 22.3.1997. Thus, the suit is clearly barred by the law of limitation; 43
CONSIDERATION OF THE CASE OF THE PARTIES:
33. It is forthcoming that the Trial Court has decreed the suit for bare injunction, which decree has been affirmed by the first appellate Court. The suit for specific performance has been dismissed by the Trial Court which has been affirmed by the first appellate Court.
34. At this stage, it is relevant to note that this Court vide order dated 8.4.2015 has ordered for the Agreement - Ex.P1 to be referred for scientific verification. Pursuant to the said order dated 8.4.2015, a report dated 15.09.2015 has been submitted to this Court by the Police Officer, Finger Print Bureau, Madiwal, Bengaluru, wherein it is opined that the admitted fingerprints of the defendants are identical to the finger prints that is affixed on the agreement to sale (Ex.P.1).
35. It is further relevant to state that this Court vide order dated 29.08.2023 ordered as follows: 44
"Counsel for the appellant and counsel for the respondents in both the appeals present.
This Court vide order dated 08.04.2015, ordered for scientific verification of Ex.P-1 in O.S.No.16/2001 to ascertain the thumb impression of plaintiffs No.1 to 4 in O.S.No.202/2000 along with the admitted signatures available on record. Consequent to the order dated 08.04.2015, the report has been furnished on 15.09.2015.
Counsel for the appellant and respondents are permitted to peruse the report from the Court records.
Counsel for the respondents in RSA No.5323/2008 submits that the findings in the report will not affect the case of the respondents inasmuch as it is the specific contention of the respondent that the thumb impression of the respondents were affixed on a blank paper and that they have not agreed to sell the property.
The said contention of the counsel for the respondents would be considered at the time of consideration of the above appeal on its merits.
In order to enable the counsel to peruse the report and make their submissions on the merits of the matter, call on 14.09.2023 at 2.30 p.m."
36. Hence, both the learned counsels were permitted to peruse the said report and no objections have been filed to the said report dated 15.09.2015.
45
37. It is relevant to note that in the suit for injunction, the Trial Court and the First Appellate Court have recorded concurrent findings of fact that the agreement holders are in possession of the suit property and hence the suit for injunction filed by the owners was dismissed by the Trial Court which was upheld by the First Appellate Court.
38. With regard to the findings recorded by the Trial Court and the First Appellate Court in the suit for specific performance, it is the contention of the learned counsel for the agreement holder that having regard to the opinion of the expert that the thumb impression forthcoming from Ex.P.1 is that of the owners, he contends that initially the owners had merely taken a defence of total denial and it was only thereafter they have taken a defence that their thumb impressions have been taken on blank papers by the agreement holders.
46
39. With regard to the payment of consideration, he contends that there is no suggestion made to PW.1 with regard to sale consideration and the suggestion made to the scribe PW.2 has been denied. It is further contended that the agreement holder having paid the substantial amounts and having been in possession of the suit property from the date of the agreement, the finding recorded by the Trial Court and the First Appellate Court in the suit for specific performance is erroneous and liable to be interfered with.
40. It is further contended that both the Courts have recorded findings that the agreement ought to have been written by a registered deed writer which finding is wholly erroneous and the scribe of Ex.P.1 having been examined as PW.2 and he having spoken with regard to the execution of the said agreement and in view of the report of the expert placing on record that the thumb impression on Ex.P.1 is that of the owners, it is required to be held that the agreement 47 holder has proved due execution of the agreement and is entitled for specific performance of the same.
41. Learned counsel for the owners submits that the concurrent findings of fact in the suit for injunction that the owners are not in possession of the suit property will not in any manner be detrimental to the case of the owners since it is his contention that the agreement holder has failed to prove due execution of Ex.P.1. He further contends that merely because the opinion of the expert has stated that the thumb impression in Ex.P.1 is that of the owners, it will not tantamount to the agreement holder proving Ex.P.1 having regard to the fact that the owners are illiterate persons and that there is no proof of payment of consideration. He further submits that there is nothing on record to indicate that the terms of Ex.P.1 have been explained to the owners.
42. It is forthcoming from the material on record that the agreement holder is in possession of the property. The 48 said aspect is forthcoming from the fact that he has laid a pipeline to supply water to the suit property from his property. That DW.2 and DW.3 have admitted that there is no other source of water to the suit property apart from pipeline drawn by the agreement holder. It is further forthcoming from the record that the agreement holder has grown sugarcane in the suit property and supplied the same to the sugar factory.
43. It is the consistent case of the agreement holder that he has been put in possession of the suit property pursuant to the agreement of sale dated 22.3.1985 (Ex.P.1). The suit for injunction filed by the owners is in the year 2000. Hence, it is clear that the agreement holder has been in possession of the suit property for 15 years prior to the filing of the suit for injunction. Apart from the objections filed by the owners to the sugar factory, there is no material on record to indicate that the owners had objected to the possession of the agreement holder. Hence, the factum of 49 agreement holder being in possession of the suit property for 15 years prior to filing of the suit is an important aspect which is detrimental to the case of the owners when the defence regarding denial of Ex.P.1 is considered, since if the owners had not executed the agreement of sale Ex.P.1, they would have, in some manner, registered their protest when the agreement holder is in possession of the suit property.
44. The land owners have taken a defence of total denial of the execution of the agreement of sale. The Trial Court and the First Appellate Court while considering the suit for specific performance has recorded a categorical finding that having regard to the fact that the owners have denied the execution of the agreements and have disputed that the said agreement contains their left thumb impression (LTM), the plaintiffs have not got the said agreement referred for expert opinion. However, the said concurrent finding will no longer aid the case of the owners, since, in the expert opinion dated 15.09.2015 submitted to this Court pursuant 50 to the Order dated 08.04.2015, it has been placed on record that the left thumb impression of the owners have been affixed to the agreement. As noticed above, no objections have been filed to the said application. Hence, this Court will have to take the expert opinion into account while considering the case of the parties.
45. In order to prove the agreement, the agreement holder examined himself as PW.1 in the suit for specific performance and deposed that since the owner was in need of money they approached him with the intention of disposing of the suit property and that the agreement of sale was entered into for a total sale consideration of ₹60,000/- and earnest money of ₹50,000/- was paid at the time of the agreement. The balance of ₹10,000/- was payable at the time of the execution of the sale deed. It is deposed that the expenses of the sale deed is to be borne by both the parties and that the sale deed was to be executed within 15 years from the date of agreement. He has further deposed that he 51 has paid ₹50,000/- to the defendants. That the defendants have given varadi and entered the names of the agreement holder in the revenue records pertaining to the suit property and accordingly ME No.3905 was issued. That the agreement holder had improved the land and put a pipe line of 3,500 ft., from the well situated in his property and cultivated the sugar cane crops and other crops in the suit property. It is further deposed as to the manner and the time when the agreement was entered into as well as the persons present at the time of execution of the said agreement. PW.1 has been cross-examined in detail about the date and time when the agreement was executed and he has stated that the negotiation took place on 22.03.2015 at his place in the presence of the witnesses and that the negotiations started at 7:00 PM and completed at 10:30 PM. That since at that time, they could not procure the stamp paper, the agreement was recorded in a plain paper. PW.1 was specifically cross- examined with regard to the alleged overwritings in the 52 agreement (Ex.P.1). PW.1 has also been cross-examined with regard to the improvements made in the land, including laying of pipeline for irrigation, etc. He states that he has spent a sum of Rs.1 lakh for the said improvements and that he has been in possession of the suit land from 1985. That the pipe line is a 3 inches pipeline for irrigation to get water from his land which is situated nearby. He has further deposed that he was employed in Sugar Factory at Sankeshwar and he has retired from the said employment.
46. PW.2 who is the scribe of the agreement has been examined and he has stated the circumstances under which he was called to write the agreement. That he wrote the agreement in the presence of the agreement holder and the land owners. PW.2 has been cross-examined in detail and has stated regarding the witnesses who were present at the time of execution of Ex.P.1. He has further stated in the cross-examination that plaintiff tendered ₹50,000/- to the owners in his presence. He has further admitted that the 53 financial position of the defendant No.1 and her husband are good. It is further deposed that, the sale consideration was paid in ₹100 denominations. PW.2 has also deposed that, he was working as a Postman for the last 27 years.
47. PW.3 is a witness who has deposed with regard to the execution of the agreement and the presence of the persons at the time of the agreement. PW.3 has also been cross-examined in detail and he states about the persons who were present at the time of the agreement. He also admitted in his cross-examination that the plaintiff is his distant relative. He has deposed regarding the payment of earnest money by the agreement holder to the owners. He further admits that, he has attested the left thumb impressions found at Ex.P.1.
48. The defendant No.1 in the suit is one of the owner and has been examined as DW.1 and she has denied the agreement and the receipt of the sale consideration. DW.1 54 has been cross-examined in detail and she admits that, she has never got any amount in the Bank and has not borrowed any loan. However, she admits that there is no well situated in the suit land and there is a pipeline laid in the suit land. That there is no pump set in their name. It is further admitted that it is the agreement holder who has supplied the suit land with water on the basis of 1/4th crop share and it was the mother PW.1, who paid the plaintiff with regard to getting water. However, PW.1 admits that she does not know the details of the said arrangement. Although DW.1 states that, they have laid the pipeline, she does not know the length of the pipeline and also that she does not have the receipts for having purchased the same. She admits that no electric motor is installed by them. DW.1 further admits that the relationship of the agreement holder and the owners is strained. She states that they have protested for entering the name of the agreement holder in respect of the suit land. 55 The DW.1 denies that the agreement holder is in possession of the suit property.
49. DW.2 is a witness who has deposed in support of the case of the owners. DW.2 has also been cross-examined in length. DW.2 denies that the financial position of the defendants are not good. DW.2 admits that no well is situated in the suit land. However, it is stated that as per the Factory Irrigation Scheme, the land was irrigated by the owners. DW.2 admits that, the water from the well of the agreement holder is being taken through pipelines. He further admits that, there is no pump set in the name of the defendant. That the pipeline has been laid by the owners at their own cost.
50. It is forthcoming from the aforementioned that, no suggestion has been made with regard to the payment of sale consideration to the agreement holder (PW.1). The only suggestion regarding the payment of sale consideration is 56 made to PW.2 who has stated that the advance amount of ₹50,000/- was paid in ₹100 denominations. PW.1, 2 and 3 have spoken regarding the payment of the advance sale consideration of ₹50,000/- by the agreement holder.
51. The Trial Court and the First Appellate Court in the suit for specific performance have recorded a finding that the suit is barred by time. In the said context it is relevant to note that in the agreement (Ex.P.1), there is a mention that the sale transaction will be completed in 12 years if the cost of said transaction is shared equally between the parties. However, subsequently, in the said agreement, it is mentioned that the sale transaction shall be completed within 15 years. The agreement holder in the suit for specific performance has specifically averred in the plaint that the sale transaction was required to be completed within 15 years and has also deposed the same in his affidavit evidence.
57
52. The agreement (Ex.P.1) having been disputed by the owners, there has been detailed cross-examination regarding various alleged overwritings/insertions made in the agreement. The Trial Court and the First Appellate Court have examined Ex.P.1 in detail and have recorded findings as to the alleged overwritings in the same. With regard to the period within which the sale transaction was required to be completed, a finding is recorded that the Clause requiring the parties to complete the sale transaction in 12 years if the cost is shared between the parties and the subsequent mention that the transaction shall be completed within 15 years, is a strange clause.
53. It is forthcoming from the factual matrix as noticed above that the agreement holder has examined himself as PW.1 and has specifically averred regarding the agreement of sale (Ex.P.1) and in proof of the said agreement has examined the scribe as PW.2 and a witness as PW.3. PW.1, PW.2 and PW.3 have deposed regarding the 58 manner in which the transaction between the parties took place and as to the circumstances leading to the execution of the agreement Ex.P.1. It has also been specifically deposed as to the persons who were present at the time of execution of Ex.P.1. It is also been specifically deposed with regard to the payment of consideration.
54. The owners had disputed the execution of the agreement as also affixing of the thumb impression. However, since the opinion of the expert has categorically placed on record that the LTM forthcoming in the agreement (Ex.P.1) is that of the owners, it cannot be said that the owners have not executed the agreement.
55. Although it is a vehement contention of the learned counsel for the owners that they are illiterate and the contents of the agreement have not been explained to them, as also the statement made by PW.2 in the cross- examination that he has written the agreement as per the 59 instructions of the agreement holder, it is forthcoming that PW.2 has deposed that he has prepared the agreement in the presence of the parties and the witnesses and the instructions to prepare the agreement was given by the witnesses also.
56. The alleged overwritings in the agreement as has been noticed by the Trial Court and the First Appellate Court, which has also been pointed out by the learned counsel for the owners, cannot be given too much importance having regard to the admitted position that the transaction between the parties was negotiated between 7.00 p.m. up to 10.00 p.m. The said transaction having taken place in a village and the agreement having prepared by PW.2 upon instructions of the persons who were present at the time when the negotiations were made out, it cannot be ruled out that certain additions/insertions would be made upon the instructions of the persons who were part of the negotiation during the course of preparation of the Agreement (Ex.P.1). 60
57. The finding of the Trial Court and the First Appellate Court that the agreement (Ex.P.1) was not prepared by a licneced bond writer and hence is not liable to be accepted is ex facie erroneous and liable to be interfered with. The agreement holder having specifically pleaded with regard to the manner and circumstances under which the agreement was executed, the scribe of the agreement having been examined as PW.2, the irresistible conclusion which is required to be arrived at is that the agreement (Ex.P.1) is required to be considered for adjudication upon the transaction between the parties.
58. Taking into consideration the entirety of the situation, the finding recorded by the Trial Court and the First Appellate Court that the agreement holder has failed to prove the execution of the agreement is erroneous and is liable to be interfered with. Having regard to the evidence adduced by the agreement holder, the due execution of the agreement (Ex.P.1) by the owners has been adequately proved. 61
59. With regard to the finding of the Trial Court and the First Appellate Court that the suit is barred by time, it is relevant to note that the agreement itself having also contemplated a period of 15 years for completion of the sale transaction and the agreement holder having filed the suit with a definite averment that the period for completion of the sale transaction was 15 years from the date of the agreement, it cannot be said that the period for computation of the agreement is 12 years. The Agreement (Ex.P.1) was executed on 22.03.1985. The period of 15 years expired on 21.03.2000. The suit for injunction in O.S.No.202/2000 was filed on 13.12.2000. The agreement holder issued notice dated 24.01.2001 (Ex.D.6) to the owners calling upon them to complete the sale transaction which was replied by the owners vide reply notice dated 31.01.2001 (Ex.D.7). As per Article 54 of the Limitation Act, the agreement holder was required to file the suit within three years of the date fixed for performance. The suit for specific performance in 62 O.S.No.16/2001 was filed on 27.03.2001 i.e. within three years from 21.03.2000. Hence, the finding recorded by the Trial Court and the First Appellate Court that the suit is barred by time is erroneous and liable to be set aside.
60. Having regard to the fact situation as noticed above, it is relevant to notice the following judgments:
i. The Hon'ble Supreme Court in the case of P.Ramasubbamma vs. V.Vijayalakshmi and Others10 relied upon by the learned counsel for the agreement holder has held as follows:
"5.2 Considering the fact that original defendant No. 1
- vendor - original owner admitted the execution of agreement to sell dated 12.04.2005 and even admitted the receipt of substantial advance sale consideration, the learned Trial Court decreed the suit for specific performance of agreement to sell dated 12.04.2005. Once the execution of agreement to sell and the payment/receipt of advance substantial sale 10 (2022) 7 SCC 384 63 consideration was admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff - vendee. Therefore, as such the learned Trial Court rightly decreed the suit for specific performance of agreement to sell. The High Court, was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration, once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required."
ii. The Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar and Ors.,11 relied upon by the learned counsel for the owners with regard to the interference made by the High Court, has held as follows:
"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the 11 (1999) 3 SCC 722 64 first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
(emphasis supplied) iii. In the case of Ramesh Chand vs. Asruddin12 relied upon by the learned counsel for the owners, the 12 (2016) 1 SCC 653 65 Hon'ble Supreme Court while considering the aspect regarding readiness and willingness held as follows:
"8. Section 20 of Specific Relief Act, 1963, provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. However, the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles. Sub- section (2) of Section 20 of the Act provides the three situations in which the court may exercise discretion not to decree specific performance. One of such situation is contained in clause (a) of sub-section (2) of the Section which provides that where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into or such that the contract though not voidable, gives the plaintiff an unfair advantage over the defendant, the decree of specific performance need not be passed. It is pertinent to mention here that in the present case, though execution of agreement dated 21.06.2004 between the parties is proved, but it is no where pleaded or proved by the plaintiff that he got redeemed the mortgaged land in favour of 66 defendant No. 2 in terms of the agreement, nor is it specifically pleaded that he was ready and willing to get the property redeemed from the mortgage.
(emphasis supplied) iv. In the case of G.Jayashree vs. Bhagwandas S Patil13 relied upon by the learned counsel for the owners, the Hon'ble Supreme Court considering the aspect of readiness and willingness has held as follows:
"32. The civil courts, in the matter of enforcement of an agreement to sell, exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law. ..."
(emphasis supplied) 13 (2009) 3 SCC 141 67 v. The Hon'ble Supreme Court in the case of Fatehji & Co., vs. L.M.Nagpal14 relied upon by the learned counsel for the owners while referring to the period of limitation in a suit for specific performance has held as follows:
"6. The fact that the plaintiffs were put in possession of the property agreed to be sold on the date of agreement itself would not make any difference with regard to the limitation of filing the suit for specific performance. In fact both the courts below have rightly held that Article 54 of the Limitation Act does not make any difference between a case where possession of the property has been delivered in part performance of the agreement or otherwise. In the same way the courts below have also concurrently held even if any permission is to be obtained prior to the performance/completion of the contract, the mere fact that the defendants have not obtained the said permission would not lead to inference that no cause of action for filing the suit for specific performance would arise. Further it is also not the case for postponing the performance to a future date without 14 (2015) 8 SCC 390 68 fixing any further date for performance. The last extension for a period of six months w.e.f. 1.8.1976 sought for by the defendants expired on 1.2.1977. The present suit seeking for specific performance was filed by the plaintiffs on 29.4.1994, much beyond the period of three years."
(emphasis supplied) vi. The Hon'ble Supreme Court in the case of Parakunnan Veetill Joseph's son Mathew v. Nedumbara Kuruvila's son15 relied upon by the learned counsel for the owners has held as follows:
"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. 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 into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair 15 AIR 1987 SC 2328 69 advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance."
(emphasis supplied) vii. In the case of Raj Kumar Rajinder Singh vs. State of H.P.16 relied upon by the learned counsel for the owners while considering the question as to the intention of the parties to the document has held as follows:
"19. Counsel for the defendants, however, contended that it was not open to the Court in view of the prohibition contained in Section 92 of the Evidence Act to take into account the subsequent facts and circumstances to determine the extent of the grant 16 (1990) 4 SCC 320 70 under the Patta of 14th Maghar 1999 Bikrami. He submitted that where a claim is based on a written document, the terms of the document must be inter-
preted without the aid of extrinsic evidence. It is true that ordinarily the intention of the parties to a document must be gathered from the language in which the relevant terms and conditions are couched and no oral evidence can be permitted with a view to varying or contradicting the terms of the document. To put it differently, if the terms of the document are clear and unambiguous, extrinsic evidence to ascertain the true intention of the parties is inadmissible because Section 92 mandates that in such a case the inten- tion must be gathered from the language employed in the document. But if the language employed is ambiguous and admits of a variety of meanings, it is settled law that the 6th proviso to the section can be invoked ;which permits tendering of extrinsic evidence as to acts, conduct and surrounding circumstances to enable the Court to ascertain the real intention of the parties. In such a case such oral evidence may guide the Court in unraveling the true intention of the parties. The object of admissibility of such evidence in such circumstances under the 6th proviso is to assist the Court to get to the real intention of the parties and thereby overcome the 71 difficulty caused by the ambiguity. In such a case the subsequent conduct of the parties furnishes evidence to clear the blurred area and to ascertain the true intention of the author of the document."
(emphasis supplied)
61. Having regard to the settled position of law as noticed above, it is relevant to note that merely because the agreement holder proves due execution of the agreement, he is not entitled for specific performance. The Court is not required to grant specific performance merely because it is lawful to do so. In order to demonstrate that the agreement holder is entitled to specific performance, he has to satisfy the requirements under Section 16(c) of the Specific Relief Act 196317 with regard to readiness and willingness. The Court while considering whether to order for specific 17 Hereinafter referred to as 'Act of 1963' 72 performance is also required to exercise its discretion required under Section 20 of the Act of 1963.
62. With regard to the readiness and willingness, it is required to be noticed that out of the total sale consideration of ₹60,000/-, the agreement holder has paid ₹50,000/- as advance. The balance sale consideration payable was ₹10,000/-. Although the agreement holder has averred and has also adduced evidence to demonstrate that he was always ready and willing to complete the sale transaction, having regard to the evidence on record, it cannot be said that the agreement holder did not have the necessary funds or was not capable of arranging the balance sale consideration of ₹10,000/-.
63. However, the agreement holder is required to satisfy the twin conditions of readiness and willingness. In this context, it is relevant to note the judgment of the Hon'ble Supreme Court in the case of His Holiness Acharya 73 Swami Ganesh Dassji vs. Sita Ram Thapar18 which held as follows:
"2. There is a distinction between readyness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform the plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the 18 (1996) 4 SCC 526 74 plaintiff was ready and was always ready and willing to perform his part of the contract."
(emphasise supplied)
64. In the said context, it is relevant to note while the agreement holder has satisfied the fact that he was ready to complete the sale transaction, with regard to willingness which is a mental aspect, it is necessary to note that after the execution of the agreement, there is nothing on record to demonstrate that the agreement holder has called upon the owners to complete the sale transaction. It is forthcoming from the material on record that the owners have raised objections contending that they were in possession of the suit property by filing objections with the sugar factory. It is also relevant to note that the owners filed O.S.No.202/2000 for injunction on 13.12.2000. It is only after the owners filed a suit for injunction that the agreement holder issued a legal notice dated 24.01.2001 (Ex.D.6) calling upon the owners to complete the sale transaction.
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65. While considering the aspect regarding hardship as required under Section 20 of the Act of 1963, it is relevant to note that the owners are illiterate persons. It is further relevant to note that while it was the case of the agreement holder that the owners executed the agreement since they were in need of money, PW.1 as well as PW.2 have admitted that the owners were in a good financial position. It is further relevant to note that the only avocation of the owners is agriculture, whereas the agreement holder was gainfully employed at a sugar factory from where he has subsequently retired. It is further forthcoming that the agreement holder has immovable property which is situated close to the property of the owners. Hence, it is clear that greater hardship will be caused to the owners if specific performance is ordered.
66. Another aspect which is required to be dealt with is the fact that the agreement holder has been in possession of the properties since the year 2000. It is his contention 76 that he has spent a lot of money for development of the property and has also installed a pipeline for supplying water and has incurred expenses for the same. However, it is relevant to note that the agreement holder has enjoyed the possession of the suit property which is an agricultural land where sugarcane is grown and has enjoyed the benefits of the usufructs of the property for the said period. There is no material on record to indicate the amount of expenses incurred by the agreement holder for improvement of the property. Even assuming that he has spent some money for improvement of the property, having regard to the fact that he has enjoyed the usufructs of the property, no hardship will be caused to the agreement holder if specific performance is declined.
67. In view of the discussion made above, the present case is a fit one where the alternate relief of refund of money with interest is required to be ordered while denying the primary relief of specific performance.
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68. With regard to rate of interest, Section 34 of CPC vests with the discretion of the Court to award interest. Keeping in mind the totality of the facts and circumstances of the case, it is just and proper that the owners be directed to refund a sum of ₹50,000/- together with interest at 8% p.a. from the date of agreement i.e., 22.03.1985 till the date of payment.
69. In this context, it is relevant to note that in the plaint in O.S.No.16/2001 filed for specific performance of the agreement of sale dated 22.03.1985, the agreement holder has sought for the alternative relief of refund of the earnest amount of ₹50,000/- vide prayer made in para No.11(c) of the plaint.
70. The plaintiff having sought for an alternative relief of refund, it is relevant to note Section 29 of the Act of 1963, which states as follows:
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"29. Alternative prayer for rescission in suit for specific performance.-- A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly."
71. It is clear that the agreement holder has been put in possession of the suit property under the Agreement (Ex.P.1). The enforcement of the said agreement of sale being the subject matter of O.S.No.16/2001 (suit for specific performance) and the same having been adjudicated upon in the present appeals and a finding having been recorded that specific performance is not required to be ordered upon and the alternative relief of refund is required to be ordered, the plaintiff cannot be permitted to retain possession of the property claiming under the said Agreement (Ex.P.1) which has already been adjudicated.
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72. In view of the clear wording of Section 29 of the Act of 1963 and this Court having recorded a finding that alternative relief of refund is required to be ordered upon, it is incumbent that the agreement holder be directed to return possession of the suit property to the owners which possession he was put in pursuant to the Agreement (Ex.P.1).
73. In view of the discussion made above, the substantial questions of law are answered as follows:
i. In RSA No.5323/2008, the substantial questions of law No.1 and 2 are answered in the affirmative.
ii. In RSA No.6052/2010, the substantial question of law is answered in the negative.
74. Having regard to the fact that the relief of possession is being granted, the owners will be required to 80 pay court fee for the said relief of possession. Hence, the defendant is to pay the requisite court fee for the relief of possession by valuing the suit property as on date of the suit.
75. In view of the aforementioned, the following:
ORDER i. RSA No.5323/2008 is partly allowed and is ordered as follows:
(a) The judgment and decree dated 01.09.2008 passed in R.A No.35/2006 by the I Additional District Judge, Belagavi is set aside.
(b) The judgment and decree dated 23.02.2006 passed in O.S.No.16/2001 by the Senior Civil Judge, Hukkeri is set aside.
(c) The suit in O.S.No.16/2001 filed by the plaintiff on the file of the Senior Civil Judge, Hukkeri is partly 81 decreed with proportionate cost and it is ordered that the defendants jointly and severally are liable to refund and pay the plaintiff a sum of ₹50,000/- together with interest at 8% p.a. from 22.03.1985 up to the date of payment.
(d) The relief of specific performance of the agreement of sale dated 22.03.1985 is rejected.
(e) Upon refund of the advance amount of ₹50,000/-
together with interest as ordered above, the plaintiff shall hand over the possession of the suit property to the defendants.
(f) Modified decree to be drawn after the defendant pays the requisite court fee for the relief of possession by taking the value of the suit property as on date of the suit.
ii. RSA No.6052/2010 is dismissed and the judgment and decree dated 27.10.2010 passed in R.A.No.21/2006 by 82 the Fast Track Court, Hukkeri and the judgment and decree dated 27.01.2006 passed in O.S.No.202/2000 by the Civil Judge, Sankeshwar are confirmed.
Modified decree to be drawn accordingly.
Sd/-
JUDGE nd/bs/sh