Karnataka High Court
Siddahanumaiah vs Mariyamma on 7 September, 2022
-1-
RSA No. 1143 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 1143 OF 2012 (RES)
BETWEEN:
1. SIDDAHANUMAIAH
S/O GANGAIAH
AGED ABOUT 61 YEARS
R/AT MASKAL VILLAGE
GULUR HOBLI - 572 118
TUMKUR TALUK AND DISTRICT.
2. NARASIMHAMURTHY
S/O SIDDAHANUMAIAH
AGED ABOUT 21 YEARS
R/AT MASKAL VILLAGE
GULUR HOBLI
TUMKUR TALUK AND
DISTRICT - 572 118
... APPELLANTS
Digitally signed (BY SRI: M. CHIDANANDA KUMAR , ADVOCATE)
by NANDINI B
G
AND:
Location: High
Court Of
Karnataka 1. MARIYAMMA
W/O SIDDAPPA
AGED ABOUT 72 YEARS
2. M.S. HANUMANTHARAYAPPA
S/O SIDDAPPA
AGED ABOUT 51 YEARS
3. PARVATHAMMA
D/O SIDDAPPA
AGED ABOUT 49 YEARS
4. MARIYAPPA
S/O SIDDAPPA
-2-
RSA No. 1143 of 2012
AGED ABOUT 47 YEARS
5. SANJEEVAIAH
S/O SIDDAPPA
AGED ABOUT 45 YEARS
6. S. KRISHNAIAH
S/O SIDDAPPA
AGED ABOUT 42 YEARS
7. M.S. UMESH
S/O SIDDAPPA
AGED ABOUT 41 YEARS
8. M.S. SIDDARAJU
S/O SIDDAPPA
AGED ABOUT 39 YEARS
ALL THE ABOVE APPELLANTS ARE
RESIDENTS OF MASKAL VILLAGE
GULUR HOBLI - 572 118
TUMKUR TALUK AND DISTRICT
... RESPONDENTS
(BY SRI: SARAVANA .S., FOR
MISS: SIRI RAJASHEKAR FOR
LEX NEXUS, ADVOCATES FOR R1 TO R8
V/O DATED 04/09/2014 PAPER BOOK IS DISPENSED WITH)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 05.04.2012 PASSED IN
R.A.NO.417/2009 ON THE FILE OF I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, TUMKUR, ALLOWING THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED 29.9.2007 PASSED
IN OS.NO.168/1995 ON THE FILE OF PRINCIPAL CIVIL JUDGE
(JR.DN.) AND JMFC, TUMKUR.
THIS R.S.A. COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
RSA No. 1143 of 2012
JUDGMENT
The appellants-defendant Nos.1 and 2 are before this Court being aggrieved by the judgment and decree dated 05.04.2012 passed in RA No.417 of 2009 on the file of the learned I Additional District and Sessions Judge, Tumakuru (hereinafter referred to as the 'First Appellate Court' for brevity), which allowed the appeal and decreed the suit of the plaintiffs for specific performance of contract directing the defendants to execute the regular sale deed in favour of the plaintiffs within a month from the date of judgment, after accepting the balance consideration amount of Rs.1,000/-, failing which, reserving liberty to the plaintiffs to get the regular sale deed executed through the due process of law.
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed OS No.168 of 1995 against defendant Nos.1 and 2 seeking specific performance of contract with a direction to the defendants to execute regular sale deed in his favour in terms of a registered agreement dated 02.04.1994 or in the alternate for return of earnest money of Rs.25,000/- with interest at 18% p.a. by way -4- RSA No. 1143 of 2012 of damages. It is contended by the plaintiff that the suit property i.e., 8 guntas of land in Sy.No.40/4 situated at Devara Amanikere Village, Gukur Hobli, Tumakuru Taluk belongs to defendant No.1 and he had agreed to sell the same in favour of the plaintiff for a total consideration of Rs.26,000/- and had executed the registered agreement dated 02.04.1994. The said agreement was executed by defendant No.1 for and on behalf of himself and his minor son and had received advance amount of Rs.25,000/-. He agreed to receive the balance amount of Rs.1,000/- to be paid within one year from the date of execution of the agreement. Defendant No.1 put the plaintiff in possession of the suit property. It is contended that even though the plaintiff approached defendant No.1 several times with balance amount and requested to execute the regular sale deed, defendant was not ready and willing to perform his part of the contract. The plaintiff came to know that the defendant is making efforts to sell the suit property in favour of a third party. Therefore, the plaintiff issued legal notice dated 25.02.1995 calling upon the defendant to perform his part of the contract and execute the sale deed.
-5-RSA No. 1143 of 2012
4. Notice was served on the defendants. There was no reply nor compliance by the defendants. Therefore, the plaintiff filed the suit for specific performance of contract or in the alternate to seek return back the advance amount with interest. During the pendancy of suit, the original plaintiff died and his legal representatives were impleaded. They are respondent Nos.1 to 8 in the present appeal. During the pendancy of the suit, defendant No.2 who was minor represented by his father defendant No.1 was impleaded.
5. Defendant No.1 appeared before the Trial Court and filed written statement denying the contention of the plaintiff in toto. It is contended that the suit schedule property is the ancestral and joint family property of the defendant and he is in possession of the same. However, it is admitted that the defendants have agreed to sell the suit schedule property in favour of the deceased plaintiff for a total consideration of Rs.26,000/- executing registered agreement dated 02.04.1994. It is also admitted that the advance amount of Rs.25,000/- was received and agreed to receive the balance consideration amount within one year from the date of the agreement. But the contention of the plaintiff that he was put in possession of -6- RSA No. 1143 of 2012 the suit schedule property under the agreement for sale was denied. It is also stated that agreement in question was only a nominal document and since defendant No.1 was residing in the said house and the plaintiff was working as a labourer under the defendant, question of putting the plaintiff in possession of the property did not arise. Receipt of legal notice issued by the plaintiff was also admitted.
6. It is contended that the plaintiff has no right, title or interest over the suit property. It is denied that the plaintiff was ready and willing to perform his part of the contract. There was no cause of action for the suit as contended by the plaintiff. It is further contended that the suit schedule property is the ancestral and joint family property of the defendant and he is in lawful possession of the same. There was no legal necessity for the defendant to enter into the agreement. The defendant never expressed his willingness to sell the suit schedule property. Taking advantage of the illiteracy and close relationship between the plaintiff and defendants, the plaintiff managed to concoct the agreement in question.
7. It is further contended that the document dated 02.04.1994 is a conditional agreement for sale entered into -7- RSA No. 1143 of 2012 between the original plaintiff Siddappa and defendant No.1. It was agreed between the parties that foster mother of defendant No.1 by name Chikkamma, wife of Sanjeevaiah had executed agreement in favour of the plaintiff in respect of 13 guntas of land in Sy.No.23/2 situated at Chikkakoratagere Village, Tumakuru Taluk which was in possession of defendant No.1. Since the suit was filed in respect of the said property of plaintiff and if defendant consented for a decree, then the agreement referred to by the plaintiff in the present suit should stand cancelled. Accordingly, defendant No.1 consented for the decree that was filed by the original plaintiff and Siddappa got executed the sale deed after filing the execution petition in respect of 13 guntas of land in Sy.No.23/2 of Chikkakorategere Village. In view of the fulfillment of condition entered into between the parties, the present agreement for sale stands cancelled. Therefore, the suit of the plaintiff is to be dismissed.
8. On the basis of these pleadings, the Trial Court framed the following issues and additional issues as under:
"1) Whether the plaintiff proves that the suit schedule property originally belonged to the defendant and he has executed the Registered -8- RSA No. 1143 of 2012 Agreement to Sell, dated 2/4/94 in favour of the plaintiff receiving Rs.25,000/- sale consideration?
2) Whether the plaintiff further proves that the defendant has refused to execute Regular Sale deed and made attempts to sell away the suit schedule property to others?
3) Whether the defendant proves that there is no cause of action for the suit and that the contract between the plaintiff and the defendant is illegal?
4) Whether plaintiff proves that, in the alternative he is entitled to recover Rs.25,000/-
with 18% interest from the defendant from the date of the suit till realisation?
5) What Order, the parties are entitled?"
Additional Issue:
"1) Whether plaintiff proves that he is
ready and willing to perform his part of contract?
(This Issue has been raised by this court suo-moto)
9. Plaintiff examined PWs.1 and 2 and got marked Exs.P1 to P7 in support of their contention. The defendant got examined as DWs.1 to 4 and got marked Exs.D1 to 4 in support -9- RSA No. 1143 of 2012 of their contention. The Trial Court after taking into consideration all the materials on record, answered issue Nos.1 and 3 in Affirmative and issue No.2 and additional issue in Negative. It is held that the plaintiff is entitled for refund of Rs.25,000/- with interest at 6% per annum, but he is not entitled for specific performance of contract.
10. Being aggrieved by the impugned judgment and decree passed by the Trial Court denying the specific performance of contract, the plaintiff filed RA No.417 of 2009. It is stated that defendant Nos.1 and 2 have also preferred RA No.19 of 2008. Considering the impugned judgment and decree passed by the Trial Court, the First Appellate Court allowed RA No.417 of 2009 filed by the plaintiff, thereby decreeing the suit of the plaintiff as prayed for by granting specific performance of contract in terms of the agreement for sale. Being aggrieved by the same, defendant Nos.1 and 2 have preferred this appeal.
11. Heard Sri M Chidananda Kumar, learned counsel for the appellant and Sri S Saravana, learned counsel for Miss Siri Rajashekar, learned counsel for respondent Nos.1 to 8. Perused the materials including Trial Court records.
- 10 -
RSA No. 1143 of 2012
12. Learned counsel for the appellants submitted that specific defence had been taken in the written statement regarding agreement for sale as per Ex.D1. Both the Trial Court as well as First Appellate Court have ignored the said document. However, the Trial Court refused specific performance of contract and directed the defendants to return the earnest money. The First Appellate Court committed an error in granting specific performance of contract in favour of the plaintiff ignoring Ex.D1. The plaintiff has never proved that he was ready and willing to perform his part of the contract by paying balance consideration amount. Under such circumstances, the impugned judgment and decree passed by the First Appellate Court is liable to be set aside. Accordingly, he prays for allowing the appeal.
13. Per contra, learned counsel for the respondents opposing the appeal contended that initially written statement dated 19.11.1996 was filed by the defendants wherein, there is no reference to Ex.D1. The written statement was amended after lapse of about 9 years by stating about Ex.D1. There is absolutely no explanation as to why initially there was no reference to Ex.D1. Ex.D1 is an unregistered document which
- 11 -
RSA No. 1143 of 2012cannot be taken into consideration with Ex.P1, which is a registered agreement for sale. The signature of one Siddappa found on Ex.D1 is not that of the plaintiff. This signature is disputed signature and the First Appellate Court has rightly rejected the said document. The First Appellate Court categorically held that the plaintiff is entitled for specific performance of contract. The balance consideration amount was only Rs.1,000/-, as major portion of consideration amount was paid as advance. Even when the legal notice was issued, there was no reply by defendant No.1 which shows that the defendant was not ready and willing to perform his part of the contract, but the plaintiff was ever ready. The impugned judgment and decree passed by the First Appellate Court granting specific performance is a well reasoned judgment and the same do not call for any interference. Therefore, he prays for dismissal of the appeal with costs.
14. The appeal was admitted vide order dated 04.09.2014 to consider the following substantial question of law:
"When the Trial Court refused the specific performance of contract of sale and directed the
- 12 -RSA No. 1143 of 2012
appellants herein to refund the earnest money basing its conclusion on the evidence available including Ex.D1, whether the First Appellate Court was justified in reversing the findings of Trial Court and in doing so, did not assign appropriate and valid reasons to overcome the findings by directing the appellants to execute the sale deed?"
15. I have considered the arguments advanced by learned counsel for both the parties.
16. It is the specific contention of the original plaintiff that defendant No.1 had executed the registered agreement for sale dated 02.04.1994, which is marked as Ex.P1. It is pertinent to note that the defendants who appeared through their advocate before the Trial Court initially denied the execution of agreement for sale but however, they got amended the written statement during 2005, wherein, execution of Ex.P1 was categorically admitted. The fact that Ex.P1 is registered agreement for sale cannot be lost sight of. When the said registered sale deed is admitted by the defendants while amending the written statement, the defence taken by the defendants thereafter is to be taken into consideration.
- 13 -
RSA No. 1143 of 2012
17. The specific defence taken by the defendants is that on the date of execution of Ex.P1, he entered into another agreement with the plaintiff as per Ex.D1. Ex.D1 is the conditional agreement depending upon the performance or otherwise of the contract Ex.P1. As rightly contended by the learned counsel for the respondents, Ex.D1 had not seen the light of the day till 2005 i.e., till the application seeking amendment of the written statement was filed along with the said document. There is no whisper about Ex.D1 in the original written statement filed by the defendant on 19.11.1996. There is absolutely no explanation as to why Ex.D1 was not referred in the written statement during 1996 and why there is delay of over 9 years in producing the document. Serious doubt creates in the mind of the Court regarding the genuineness of Ex.D1 which is an unregistered document. The Trial Court in its judgment has appreciated Ex.P1 and Ex.D1 and assigned valid reasons as to why Ex.D1 is to be rejected. Under such circumstances and in the light of admitted document - Ex.P1 which is a registered agreement, the contents of the unregistered disputed document - Ex.D1 cannot be relied upon. Moreover, even according to the defendants, if the defendants
- 14 -
RSA No. 1143 of 2012have consented for decreeing the suit filed by the plaintiff in respect of Sy No.23/2, registered agreement Ex.P1 stands cancelled is to be considered in the light of the contention taken in the written statement itself, that the original plaintiff Siddappa had filed the suit against defendant No.1 for specific performance of contract in respect of Sy.No.23/2 measuring 13 guntas and that the suit was decreed and the sale deed was got executed by the original plaintiff by executing the decree. If at all the defendants have consented for a decree in respect of Sy.No.23/2, the plaintiff executing the decree and getting sale deed executed through the process of the court, would not have arisen.
18. Viewed from any angle, the defendants have not substantiated their defence, as such, it has no legs to stand. It is contended by the defendants that they have challenged the impugned judgment and decree passed by the Trial Court by filing RA No.19 of 2008. Nothing is stated about the said appeal in the entire memorandum of appeal filed before this Court. The impugned judgment which is under challenge is passed in RA No.417 of 2009 which was preferred by the plaintiff against the refusal of specific performance of contract.
- 15 -
RSA No. 1143 of 2012If at all the defendants have preferred RA No.19 of 2008 before the First Appellate Court, it would have passed common judgment along with RA No.417 of 2009.
19. In view of the discussions held above, I am of the opinion that the appeal should fail and the impugned judgment and decree passed by the First Appellate Court is liable to be confirmed. Accordingly, I answer the substantial question of law in favour of the plaintiff and against the defendants. Hence, the following:
ORDER The appeal is dismissed.
The judgment and decree dated 05.04.2012 passed in RA No.417 of 2009 on the file of the learned I Additional District and Sessions Judge, Tumakuru, is hereby confirmed.
Accordingly, the suit of the plaintiff is decreed as prayed for with costs.
Registry to send back the Trial Court records.
Sd/-
JUDGE *bgn/-