Bangalore District Court
Smt.Amaravathi vs Sri.K.Chandra on 27 April, 2019
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 27th day of April 2019.
PRESENT: Smt.PREETHI K.P B.A., LL.M.,
XI Addl.City Civil Judge, B'lore city.
O.S.No.6286 of 2008
C.C.H.8
Plaintiff/s: Smt.Amaravathi
W/O Krishna Reddy,
aged about 52 years,
R/at No.713, 5th Cross,
Triveni Road, Mathikere
Bengaluru -560054
(By Sri.V.Manjunath, Advocate)
Vs.
Defendant/s: 1. Sri.K.Chandra,
son of P.Kannan,
aged about 46 years,
R/at No.64, II Main Road,
4th Cross, M.S.R.Nagar,
Bengaluru -560054
2. Sri.N.A.Bhaskar,
aged about 37 years,
S/O Late N.S.Anand,
R/at No.421, New BEL Road,
Chikka Marenahalli,
Bengaluru -560054
(D.1- By A.R.C advocate,
D.2- By A.S advocate )
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O.S.No.6286 of 2008
Date of the institution of suit: 18.9.2008
Nature of the suit: Specific performance
Date of the commencement of 12.3.2015
recording of the evidence :
Date on which the judgment 27.4.2019
was pronounced :
Total duration: Year/s Month/s Day/s
10 07 09
XI Addl.City Civil Judge,
B'lore city.
JU DG M E NT
The suit is filed by the plaintiff against the defendants
seeking for judgment and decree in favour of the plaintiff and
to direct the defendants to execute the registered sale deed in
favour of the plaintiff by receiving the balance sale
consideration and on failure of the defendant, this court may
exercise its powers by executing the sale deed in favour of the
plaintiff and grant an order of permanent injunction against
the defendants from alienating the suit schedule property in
favour of third parties and such other reliefs.
2. The case of the plaintiff is that the defendant no 1
an absolute owners of property bearing site No.9, formed in
Sy.No.52/3, situated at Thindlu village, Yelahanka Hobli,
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O.S.No.6286 of 2008
Bangaluru North Taluk measuring east-west 45 feet and
north-south 30 feet which is described as suit schedule
property and defendant has agreed to sell the schedule
property to the plaintiff for a valuable sale consideration of
Rs.42,000/-(Forty Two Thousand only) on 13.9.1992. As
on the date of receipt of the sale consideration by way of cash,
the defendant on execution of the agreement, has executed a
GPA and affidavit in respect of the suit schedule property in
favour of the plaintiff and agreed to register proper sale deed
in favour of the plaintiff after lifting of ban of registration of
revenue sites by the Government. Since there was an act of
fragmentation enforced by the Government, the sale deed
could not take place as on the date of execution of the sale
agreement. And after lifting of the fragmentation act by the
Government, the plaintiff has approached the defendant
personally and requested him to execute to the sale deed in
her favour. The plaintiff was ready and willing to perform her
part of contract. The defendant has not come forward to
execute the registered sale deed in respect of the suit
schedule property in favour of the plaintiff. The plaintiff
having no other option got issued a legal notice, dated
29.8.2008 calling upon the defendant to come and register
the proper sale deed in her favour by way registered post
acknowledgement due and through certificate of posting. The
defendant has received the legal notice and has sent an
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O.S.No.6286 of 2008
untenable reply. Hence, plaintiff has filed the present suit.
In view of the market value has been raised in and around
Bengaluru city, the defendant is making hectic efforts to sell
the same to third parties. If the same is materialized the
plaintiff will lose the suit schedule property. Hence, this suit
is also for permanent injunction and restraining the
defendant from alienating the same in favour of third parties
in respect of the suit schedule property. The cause of action
to file this suit arose on 13.9.1992 when the plaintiff has
entered into an agreement of sale with the defendant in
respect of the suit schedule property and legal notice dated
29.8.2008 and the same is within the jurisdiction of this
court. Hence, plaintiff prays to decree the suit.
3. In response to the suit summon issued in this case,
defendant No.1 appeared through his counsel and filed his
written statements. He denied all the allegation made by the
plaintiff in the plaint specifically. Thereafter impleading
applicant has filed an IA no 2 and imp leaded as defendant no
2 by the order dated 19.7.2011 and has filed his written
statement and denied all the allegations in the plaint. 1 St
defendant in his written statement contended that the
plaintiff is a stranger to the defendant. The defendant does
not know the plaintiff at all and he has not executed any sale
agreement dated 13.9.1992 or any other document at any
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O.S.No.6286 of 2008
time in favour of the plaintiff agreeing to sell the suit property
bearing No.9 in Sy.No.52/3, Thindlu village, Yelahanka Hobli,
Bangaluru North Taluk for a sale consideration of
Rs.42,000/-.In fact the defendant was never the owner of the
said property and he has nothing to do with the same. Even
now he is not the owner of the said property. He has not
executed any GPA or affidavit in favour of the plaintiff . The
plaintiff is trying to put forth the false claim against the
defendant by making use of fabricated documents. Evidently
there is some mistaken identity on the part of the plaintiff.
The defendant has not received any money much less
Rs.42,000/- from the plaintiff at any time. He has not agreed
to execute any sale deed in favour of the plaintiff. If there
was an act of fragmentation enforced by the Government and
hence, the sale deed could not take place as on the date of
execution of the sale agreement if that is so, the very sale
agreement is opposed to law of Karnataka Prevention of
Fragmentation and Consolidation of Holding Act,1966 and
consequently no rights would flow out of the alleged
agreement of sale as per Sec.23 of the Indian Contract Act.
An agreement entered into between the parties, which is
against public policy or affecting statutory provisions is void
in law. Hence, the plaintiff is not entitled for specific
performance of the said agreement of sale. There was no
demand for execution of sale deed from the plaintiff at any
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O.S.No.6286 of 2008
time prior to issue of legal notice dated 29.8.2008, since there
was no sale agreement executed by the defendant in her
favour and hence, the question of postponing the execution
of sale deed on one pretext or the other does not arise. The
said legal notice has been suitably replied by the defendant
through his counsel on 10.9.2008. Even assuming that the
parties have entered into sale agreement on 13.9.1992 when
the Karnataka Prevention of Fragmentation and Consolidation
of Holding Act,1966 was in force, the said Act has been
repealed on 13.12.1990 itself. So as on the date of the alleged
sale agreement said to have been entered into between the
plaintiff and the defendant, there was no prohibition for
registration of the sale deed under the Act mentioned above.
If that is so, the plaintiff ought to have approached the court
for specific performance within 3 years from the date of sale
agreement i.e., on or before 13.9.1995. This suit for specific
performance having been filed on 12.2.2009, is therefore
hopelessly barred by limitation. Therefore, the plaintiff is not
entitled for any relief from this court and mere issue of legal
notice on 29.8.2008 will not save limitation or give any cause
of action for the plaintiff to file this suit. Since the plaintiff
has put forth a false claim against the defendant, he is not
required to execute any sale deed in favour of the plaintiff.
There is no cause of action for the suit. The suit is time
barred and liable to be dismissed in limine. Hence, defendant
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O.S.No.6286 of 2008
prays to dismiss the suit with costs.
4. The defendant No.2 in his written statement
contended that the above suit is not maintainable in law or on
facts and that the suit is liable to be dismissed in limine. He
states that the property described in the schedule to the
plaint was comprised in the lands situated in Sy.No.52/3,
Thindlu village, Yelahanka Hobli, Bengaluru. The entire
aforesaid lands were owned by Sri.V.Krishnappa executed a
GPA dated 15.2.1996 registered in favour of Smt. H.Mangala
Gowramma in respect of the site bearing No.9 and 8/1,
Sy.No.52/3, Thindlu village, Yelahanka Hobli, Bangaluru
North Taluk measuring east-west 45 feet and north-south 45
feet totally measuring 2025 square feet described in the
written statement schedule property . By virtue of the power
of attorney Smt. H.Mangala Gowramma sold to this defendant
the written statement schedule property vide a sale deed
dated 13.7.2004. After purchasing the same the 2 nd defendant
was put into actual physical possession of the written
statement schedule property and thus this defendant became
its lawful owner and right from the date of purchase i.e.,
from 13.7.2004, he is in physical and peaceful possession,
occupation and enjoyment of the written statement schedule
property. The written statement schedule property stands in
the name of 2nd defendant and he has been paying the
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O.S.No.6286 of 2008
municipal taxes etc., The khata stands in the name of this
defendant. The 2nd defendant stated that he is the lawful,
legal, sole and absolute owner of the written statement
schedule property and the same stands in his name. No
person including the plaintiff or the defendant No.1 has any
manner of right, title interest etc., over the written statement
schedule property This defendant recently and more
particularly on 2.8.2010 the plaintiff came near the written
statement schedule property and informed that he has filed
a suit and gave the case number and stated that the matter
is pending in the court and thereafter he got himself
impleaded and 2nd defendant stating that the plaint schedule
property is a site bearing No.9 and measures east-west 45
feet and north-south 30 feet and totally measures 1350
square feet, whereas the written statement schedule property
is a site bearing Nos. 9 and 8/1 and measures east-west 45
feet and north-south 45 feet and totally measures 2025
square feet. In other words, the plaint schedule property is
comprised in the written statement schedule property and he
further contended that the plaintiff and defendant No.1 have
colluded and have tried to grab the written statement
schedule property, which belong to 2 nd defendant. Hence, 2nd
defendant prays to dismiss the suit with costs.
5. Based on these respective pleadings, the following
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O.S.No.6286 of 2008
issues are framed by my learned predecessor in office as
follows:-
1. Whether the plaintiff proves that the 1 st defendant
entered into an agreement to sell the suit schedule
property in his favour for consideration of
Rs.42,000/- and received the entire sale
consideration and executed an agreement of sale
dated 13.9.1992?
2. Whether the plaintiff proves that she has always been
ready and willing to perform her part of contract?
3. Whether the 2nd defendant proves that he is the
owner of the written statement schedule property
and the suit schedule property is comprised in the
written statement schedule property?
4. Whether the suit is barred by limitation?
5. Whether the plaintiff is entitled for the relief of
specific performance of contract?
6. Whether the plaintiff is entitled for the relief of
permanent injunction as sought for in the plaint?
7. What decree or order?
6. On behalf of plaintiff, the power of attorney holder of
plaintiff got examined himself as P.W.1 and got marked two
witnesses as P.W.2 and P.W.3 and got marked Ex.P.1 to P.7.
On behalf of defendant No. 1 and 2, no oral evidence adduced
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O.S.No.6286 of 2008
but during the course of cross examination of PW1 certified
copies of RTC are confronted to the PW1 by the learned
counsel for defendant no 2, hence said documents are got
marked as Ex.D.1 to Ex.D.12 on behalf of 2 nd defendants.
7. Advocate for plaintiff filed written arguments and no
arguments addressed on behalf of defendants.
8. My findings on the above issues are as under:-
Issue No.1: In negative;
Issue No.2: In negative
Issue No.3: In negative
Issue No.4: In affirmative
Issue No.5: In negative
Issue No.6: In negative
Issue No.7: As per final order for the following reasons:
R E A S ON S
9. Issue No.1 :
Plaintiff-GPA Holder got examined as P.W.1 by filing
examination in chief by way of affidavit by reiterating the plaint
averments and got marked Ex.P.1 to 7(d). Special Power of
Attorney as per Ex.P.1 and agreement of sale dated 13.09.1992
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O.S.No.6286 of 2008
as per Ex.P.2 and General Power of Attorney dated 13.09.1992
as per Ex.P.3, affidavit as per Ex.P.4, office copy of demand
notice as per Ex.P.5 dated 29.08.2008, reply notice dated
10.09.2008 of 1st defendant as per Ex.P.6, RPAD cover sent to
the 1st defendant as per Ex.P.7 and postal receipt as per
Ex.P.7(a), postal acknowledgement as per Ex.P.7(b) and postal
acknowledgement as per Ex.P.7(c) and legal notice as per
Ex.P.7(d). PW-1 depose that plaintiff is his wife and he is the
General Power of Attorney Holder of plaintiff and 1 st defendant
entered into agreement of sale on 13.09.1992 agreeing to sale
the suit schedule property for total valuable sale consideration
of Rs.42,000/- as on the date of execution of sale agreement.
The 1st defendant has executed General Power of Attorney in
favour of his wife i.,e plaintiff to look after the affairs of suit
schedule property and also to look after and to develop the suit
schedule property as she likes. After receipt of such amount of
Rs.42,000/- from PW-1, the 1st defendant has executed an
affidavit in favour of his wife and affidavit on 13.09.1992 , the
physical portion of the schedule property has been handed over
to them and further deposed that on the date of execution of
GPA, affidavit and agreement of sale, the physical portion of the
suit schedule property has been handed over to them and they
are in physical possession of suit schedule property and
enjoying the same without any interruption from anybody due
to Fragmentation Act implemented by the Hon'ble Government
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O.S.No.6286 of 2008
of Karnataka the registration of sale deed was not taken place.
The 1st defendant has assured to them that he would execute
the registered sale in favour of PW-1 after relaxation of
government rules. Further deposed that for the sale
agreement, one Mr. Narayanappa and Sanjeeva Reddy have
affixed their signatures as witness to the sale agreement, GPA
and affidavit and PW-1 was ready and is ready and willing to
perform his part of contract. In this regard requested the 1 st
defendant to come and execute registered sale deed in his
favour, but defendant never bothered to execute registered sale
deed in his favour and plaintiff issued legal notice to defendant
calling upon them to come and execute the registered sale deed
on 29.08.2008 and now the defendant No.1 has sold the suit
schedule property to 2nd defendant on 13.07.2004. For
cancellation of sale deed, plaintiff PW-1 has filed a separate
suit and the said suit is still pending for adjudication.
10. The 1st defendant in his written statement has
taken the contention that he is not the owner of suit schedule
property and nothing to do with the same and plaintiff is a
stranger and has not executed any sale agreement dated
13.9.1992 or any other documents at any time in favour of the
plaintiff agreeing to sell the suit schedule property site no 9 in
Sy.No.52/3, Thindlu village, Yelahanka Hobli, Bangaluru
North Taluk for a sale consideration of Rs.42,000/-.
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O.S.No.6286 of 2008
11. The 2nd defendant in his written statement has
taken the contention that 1st defendant is not the owner of the
suit schedule property. The property described in the plaint
schedule has comprised in the lands situated in Sy.No.52/3,
Thindlu village, Yelahanka Hobli, Bengaluru. The entire said
land owned by Sri.V.Krishnappa s/o Late venkatappa.
Sri.V.Krishanappa had executed a registered GPA in favour of
H.Mangala Gowramma on 15.2.1996 in respect of site NO.9
and 8/1 in Sy.No.52/3, Thindlu village, Yelahanka Hobli,
Bangaluru North Taluk, measuring east-west 45 ft., and
north-south 45 feet, totally measuring 2025 sq.ft., by the virtue
of registered GPA, Smt. Mangala Gowramma sold said property
to 2nd defendant through registered sale deed dated 13.7.2004
and put the 2nd defendant in possession of said property and
2nd defendant has been paying the municipal tax and khata
stands in the name of 2nd defendant.
12. In the present suit, agreement dated 13.9.1992 is
seriously disputed by the 1st defendant by contending that he
neither received any consideration amount nor executed
agreement dated 13.9.1992 , therefore the burden lies upon the
plaintiff to prove execution of sale agreement dated 13.9.1992
by the 1st defendant in his favour. The plaintiff asserts that the
entire amount has been paid as a consideration for sale
transaction, but no proof is forthcoming regarding payment of
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O.S.No.6286 of 2008
entire consideration at the time of execution of alleged
agreement dated 13.9.1992. Plaintiff did not produce any
document to establish that entire consideration amount was
paid to the 1st defendant and 1st defendant has availed such
payment in respect of alleged agreement. The sole testimony of
P.W.1 regarding execution of agreement is not enough to prove
execution of alleged agreement. At this juncture it is relevant
to refer some of the statements made by the P.W.1 wherein he
admits that
"ದದವದ ಆಸಸಗಗ ಸಸಬಸದ ಪಟಟ ದದಖಲಗಗಳನನನ ನದನನ ನಗನನಡಲಲ . ನನನ ಮತನಸ
ವ.ಕಕಷಷಪಪರವರ ನಡನವಗ ದದವದ ಆಸಸಗಗ ಸಸಬಸದ ಪಟಟಸತಗ ಯದವವದಗನ ವಕವಹದರ ನಡಗದಲಲ.
ದದವದ ಆಸಸಗಗ ಸಸಬಸಧಪಟಟಸತಗ 1 ನಗನ ಪಪತವದದ ಮತನಸ ವ. ಕಕಷಷಪಪರವರ ನಡನವಗ ಯದವವದಗನ
ವಕವಹದರ ಆದ ಬಗಗಗ ನನಗಗ ಗಗನತಸಲಲ. ದದವದ ಆಸಸಗನ 1 ನಗನ ಪಪತವದದಗನ ಯದವವದಗನ ರನತ
ಸಸಬಸದ ಇಲಲ ಎಸದರಗ ಸರಯಲಲ. ದದವದ ಆಸಸ 1 ನಗನ ಪಪತವದದಗಗ ಸಗನರದನದ ಎಸದನ
ತಗನನರಸನವ ಯದವವದಗನ ದದಖಲಗ ನನನ ಹತಸರ ಇಲಲ. ಆ ತರಹದ ದದಖಲಗಗಳನನನ ನದನನ 1 ನಗನ
ಪಪತವದದ ಹತಸರ ನಗನನಡಲಲ. ಈ ಕಗನಸನಲಲ ಹದಜರನಪಡಸರನವ ದದಖಲಗಗಳನನನ ಹಗನರತನಪಡಸ
ದದವದ ಆಸಸ 1 ನಗನ ಪಪತವದದಗಗ ಸಗನರದನದ ಎಸದನ ತಗನನರಸಲನ ಬಗನರಗ ದದಖಲಗ ಇಲಲ."
13. Therefore, this categorical admission made by the
P.W.1 that he has not seen the documents in respect of suit
schedule property and he has no document to show that suit
schedule property belongs to 1st defendant and also admits
that except the documents produced in this case, there are no
other documents to show that suit schedule property belongs
to 1st defendant clearly demonstrate that prior to purchasing
the suit schedule property no enquiry was made in order to
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O.S.No.6286 of 2008
know whether suit schedule property belongs to defendant
No.1 or not. Generally if an ordinary prudent man intends to
purchase the property normally makes enquire about the
ownership and title documents of his vendor when he intends
to purchase the property. Even though 1st defendant has taken
serious contention that he was never the owner of suit
schedule property and nothing to do with the same the
plaintiff has not made any positive attempt to establish that 1 st
defendant is the owner of suit schedule property to produce
any material documents. When a person has purchased the
property without enquiry about the ownership over the
schedule property of the vendor, then he has taken the risk of
entering into an agreement. In Ex.P.1 alleged agreement of
sale some of the lines are erased by using whitener ink
perhaps there is no signatures of the parties to the alleged
agreement at the place wherever whitener ink is used to erase
the lines . In Ex.P.3 which is an affidavit, there is a recital
regarding handing over the possession of schedule property
surprisingly there is no such recital with regarding to handing
over possession of alleged agreement schedule property in
favour of plaintiff in alleged agreement of sale. When such
recital is made in Ex.P.3, if at all possession was handed over
to plaintiff then what prevented from making such recital in
Ex.P.1 agreement itself. No explanation is forthcoming in this
regard from the plaintiff. At this juncture it is relevant to refer
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O.S.No.6286 of 2008
some of the statement made by the pw1 during the course of
cross examination wherein he admits that
"ನವಗನಶನ ಸಸಖಗಕ 9 ರ ಉತಸರಕಗಕ ನವಗನಶನಸಸಖಗಕ8-1 ರಸದಗ ಇದಗ ಎಸದರಗ ಸರ .
ನವಗನಶನ ಸಸಖಗಕ 9 ಮತನಸ 8-1 ಕಗಕ ಒಟಟಗಗ ಆವರಣ ಗಗನನಡಗ ಕಟಟಲದಗದಗ ಎಸದರಗ ಸರ.
ಆವರಣ ಗಗನನಡಗಯನನನ ಭದಸಕರರ ಕಟಟದದದರಗ ಎಸದರಗ ಸರ . ಅವರನ ಅದರಲಲ ಒಸದನ
ಬಗನನರರ ವಗಲರ ಹದಕಸದದದರಗ ಎಸದರಗ ಸರ ."
14. Therefor this clear admission clinchingly establish
that the plaintiff is not in possession of suit schedule property.
More over even though defendant no 1 denies execution of
alleged agreement of sale then what prevented the plaintiff to
seek the permission of court to refer the Ex.P 1 to 3 to Forensic
Science Labratory in order to obtain the opinion of experts to
prove the signature of defendant no 1 on Ex.P.1 to P.3. More
over on careful perusal of Ex.P.1 it reveals that the 1 st
defendant through General Power Attorney on 1.4.1992 is in
possession of agreement schedule property from V.Krishnappa
and his sons K.Venkatesh, K.Sridharamurthy, K.Vishwanath
and Hanumanna s/o Late Venkatappa clearly shows that no
title was passed on the 1st defendant for the reason that no title
will be passed on to General Power Attorney holder. Therefore
1st defendant had no title either at the time of execution of
alleged agreement dated 13.9.1992 or at present also. Hence,
plaintiff cannot claim any discretionary relief of specific
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O.S.No.6286 of 2008
performance in respect of suit schedule property.
15. Plaintiff has examined Pw2 and PW3 as witnesses to
the alleged agreement of sale on her behalf. At this juncture, it
is also relevant to refer the some of the statements of P.W.2
during the course of cross-examination, wherein he clearly
admits that
"I cannot identify the signature of the defendant No.1. I
do not know what property 1 st defendant was owning. I do
not know what are the documents Ex.P.2, 3 and 4. I do not
know the contents of the said documents. I do not know
anything about the transaction as per Ex.P.2 to P.4".
16. Therefore even though this witness was examined
from plaintiff side as a witness to the alleged agreement,
perhaps this witness does not supports the case of the plaintiff
put forth by her and also the evidence of P.W.3 does not
inspire the confidence of the court in support of plaintiff's case.
The plaintiff fails to prove execution of alleged agreement
through witnesses. Hence, execution of alleged agreement itself
creates a strong doubt. The defendant No.1 and 2 have not led
any oral evidence. But merely because defendants have not led
evidence does not itself prove the execution of alleged
agreement and case put forth by the plaintiff. The Burden lies
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O.S.No.6286 of 2008
upon the plaintiff to prove her case independently. During the
course of cross examination certified copies of RTC and
certified copy of plaint on the file of Os 6927/2013 were
confronted to the PW.1, wherein P.W.1 admits those documents
hence got marked as Ex.D.1 to Ex.D.10. The RTC reflects the
name of V.Krishnappa in respect of Sy.No.52/3 that is
nothing but the suit schedule property. This also clearly
establishes that 1st defendant is not the owner of agreement
schedule property at the time of execution of alleged sale
agreement dated 13.9.1992 and at present also. At this
juncture it is relevant to refer Sec.101 of Indian Evidence Act.
"Sec.101 of Indian Evidence Act 1872 defines:-
"Burden of plaintiff which is reproduced as below:-
Burden of proof whenever desires any court to give judgment
as to any legal right as liability dependent on the existence of
facts, which he asserts must prove that these facts exist .
"When a person is bound to prove the existence of any fact, it is
said that the burden of proof lies on that person."
17. Sec.101 of the Evidence Act has clearly laid down
that the burden of proving a fact always laying upon the
person, who asserts the facts, until such burden is discharged,
the other party is not required to be called upon to prove his
case. Therefore, it is necessary to examine as to whether the
19
O.S.No.6286 of 2008
person upon whom the burden lies has been liable to discharge
his burden until plaintiff arrives at such conclusion he cannot
proceed on the basis of weakness of other party. It is a settled
law that the plaintiff succeeds or fails on his own and cannot
take advantage of weakness of defendant case to get a decree.
Plaintiff has to prove his contention independently.
18. In a suit for specific performance, it is required to
see the totality of the circumstances, which are to be assessed
in light of facts and circumstances of each case. The party who
seeks specific performance being an equitable relief must come
to the court with cleans hands and while exercising the
discretion, the court would take into consideration, the stage of
the case and conduct of the parties and motive behind the
litigation. As per the admission made by P.W.1, he had not
seen the ownership documents in respect of schedule property
prior to transaction and not produced any documents to
establish the ownership and title of the 1 st defendant in respect
of suit schedule property. Plaintiff has examined P.W.2 and
P.W.3, but having regard to the testimony during the course of
cross-examination to P.W.2, who has not at all supported the
case of the plaintiff regarding execution of alleged sale
agreement in favour of the plaintiff and P.W.3 has also been
examined perhaps his evidence also do not inspires the
confidence at all . In the nutshell plaintiff failed to prove that
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O.S.No.6286 of 2008
the defendant No.1 being a owner has agreed to sell the suit
schedule property to the plaintiff and plaintiff even failed to
prove any payment of consideration of Rs.42,000/- to the
defendant No.1 as claimed in the plaint. Hence, clear
admission made by the PW1 supports the defence taken by the
1st defendant and falsifies the case of the plaintiff. In the
nutshell the testimony of P.W.2 and 3 appears to have no
substance and cast shadow on the plaintiff's case and plaintiff
is accordingly not entitled for the relief of specific performance
as prayed in the suit. Plaintiff failed to prove that the 1 st
defendant has entered into an agreement to sell the suit
schedule property in his favour for consideration of
Rs.42,000/- and received the entire sale consideration and
executed an agreement of sale dated 13.9.1992. Hence, I
answer Issue No.1 in negative.
19. Issue No.2 and 4: These two issues are interlinked
with each other. Hence, I answer both these issues in
common in order to avoid repetition of facts and
circumstances.
20. I have already recorded my finding on Issue No.1
that plaintiff has failed to prove and establish that defendants
entered into an agreement to sell the suit schedule property in
favour of the plaintiff for consideration of Rs.42,000/- and had
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received entire sale consideration amount and executed alleged
agreement of sale dated 13.9.1992.
" In N.P.Thirugananam Vs. Jaganmohan Rao , reported in
AIR 1996 SC 116 para No.5 it held that " Right from the date
of execution of agreement till the date of decree, he must prove
that he is ready and willing to perform his part of contract". In
a suit for specific performance of contract readiness and
willingness of the plaintiff must be continuous readiness and
willingness at all the stages from the date of agreement till the
date of hearing of the suit has to be proved and established by
the plaintiff. The continuous readiness and willingness on the
part of the plaintiffs is a condition precedent to grant the relief
of specific performance to adjudge whether the plaintiff is ready
and willing to perform his part of the contract. The court must
take into consideration the conduct of the parties prior and
subsequent to the filing of the suit along with the other
attending circumstances. Therefore, the burden lies upon the
plaintiff to show that she is ever ready and willing to perform
her part of the contract. Mere stepping into the witness box
and saying on oath that Pw1 is ready and willing to perform
his part of the obligation will not prove the plaintiff's readiness
and willingness.
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21. It has been held by Hon'ble Supreme Court in
catena of its judgment that even in a case of payment of full
consideration amount, the purchaser is required to initiate
prompt action to get the sale deed executed in his favour and
any latches or delay on the part of the purchaser in not filing
the suit immediately would make difference in law to
adjudicate whether the plaintiff is ready and willing to perform
his part of the contract. Readiness is a financial capacity to go
ahead with the agreement of sale and willingness is the
intention to perform the obligation by the plaintiff is always
important aspect and has to be proved by the plaintiff with
categorical evidence. There is no evidence by the plaintiff for
having paid the entire sale consideration amount even the
defendant has specifically denied the execution of alleged
agreement dated 13.9.1992. Under such circumstances, the
burden lies upon the plaintiff to prove that the entire sale
consideration amount was paid and he was ever ready and
willing to get the sale deed executed in his favour by the 1 st
defendant. According to the plaintiff, he has paid entire sale
consideration amount and the only obligation lies upon is to
request the 1st defendant to come forward to execute registered
sale deed in his favour. On perusal of ExP 2 shows an alleged
agreement dated 13.9.1992 perhaps suit was filed in the year
2008. Therefore after 16 years of alleged agreement of sale it
bespeaks and betoken that the plaintiff was not ready and
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O.S.No.6286 of 2008
willing to perform his part of the contract. In a suit for specific
performance the conduct of the plaintiff should be seen and
the plaintiff cannot try to achieve success in the litigation
process by raising his accusative finger as against the
defendant.
"G.Ramalingam v/s T Viajyarangam 2007(1) CTC243,
Wherein it has been held that "even if for a single day,
plaintiff -agreement holder is not ready to take the sale deed,
the equitable remedy should not be granted" .
22. While deciding this issue on readiness and
willingness the conduct of the plaintiff prior and subsequent to
filing of the suit along with the other attending circumstances
to adjudge the readiness and willingness must be taken into
consideration. The conduct of the plaintiff clearly establishes
that she is not ready and willing to perform her part of contract
in oder to get execute the sale deed in her favour. There is no
iota of evidence to prove that plaintiff was ready and willing to
get the sale deed executed from defendant no 1 in her favour.
Moreover the Plaintiff asserts that as there is a prevention for
registration of revenue sites under the Karnataka Prevention of
Fragmentation Act and Consolidation of Hoarding Act 1966
sale deed could not place as on the date of execution of the sale
agreement . The date of agreement is 13.9.1992. Perhaps, the
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Prevention of Fragmentation and Consolidation of Holdings Act,
1966 (Hereinafter referred to as the " Fragmentation Act" for
brevity.) was repealed by Karnataka Act 4/1991 and was
published in the Karnataka Gazette on 5.2.1991. Therefore
the question of prevention of registration of sale deed in respect
of suit schedule property in plaintiff's favour due to
Fragmentation Act does not arise at all. More over, it has been
reported by Hon'ble High Court of Karnataka in Parvathamma
and others vs Uma and others in 2011(3) KCCR 2345, wherein
it has been held that "the transfer of fragment being expressly
prohibited, the contract was void abinitio and could not be
enforced. It is irrelevant whether the parties intended that the
contract could be completed on a later point of time, which was
again in contemplation of repeal of the Act, as uncertain
events". Therefore even if an agreement is entered during the
subsistence of Prevention of Fragmentation Act, such
agreements are void abinitio and are unexecutable. Perhaps,
having regard to the alleged agreement dated 13.9.1992, during
that period, there was no subsistence of Fragmentation Act and
there was already cessation of ban due to the repeal of
Fragmentation Act in 1991. Therefore the contention of the
plaintiff that due to fragmentation act prevention of registration
at the time of alleged agreement in 1992 is not acceptable . It
shows that the plaintiff has not approached the court with
clean hands. The specific performance is an equitable relief.
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Though the alleged agreement was entered in 1992, but
surprisingly the plaintiff has issued a legal notice on 29.8.2008
and filed suit on 18.9.2008 about 16 years later. Even though
entire sale consideration amount has been paid, it is settled
law that the plaintiff must show his readiness and willingness
to get execute the registered sale deed in his favour from the
date of the agreement till the date of decree. Perhaps plaintiff
has failed to show his readiness and willingness to get execute
the sale deed in his favour from 1 st defendant. The suit is
hopelessly time barred.
23. It is a settled law that even though the full payment
of consideration is made, the purchaser is required to initiate
prompt action to get the sale deed executed in his favour. Any
latches or delay on the part of plaintiff will dis entitle him from
seeking an equitable remedy of specific performance of
contract. Therefore plaintiff has failed to show readiness and
willingness from the date of alleged agreement and also the suit
is hopelessly time barred. Hence, I record my answer on Issue
No.2 in negative and Issue No.4 in affirmative.
24. Issue No.3: This issue is with regarding to whether
2nd defendant proves that he is the owner of the written
statement schedule property and the suit schedule property is
comprised in the written statement property. When defendant
26
O.S.No.6286 of 2008
No.2 has contended in his written statement that the plaint
schedule property is comprised in the written statement
schedule property then the burden lies on the defendant No. 2
by producing proper and cogent material to prove and establish
before the court that the plaint schedule property was
comprised in the written statement schedule property since no
evidence is led by defendant No.2 in order to prove his
contention and in the absence of evidence, the version of
defendant No.2 can not be acceptable . Therefore the defendant
No.2 failed to substantiate his contention with oral and
documentary evidence . Therefore defendant No.2 failed to
prove his contention. Hence, I record my finding on Issue No.3
in negative.
25. Issue No.5: Defendant no 1 categorically denies the
execution of alleged sale agreement and also denies having
received the entire consideration amount of Rs.42,000/-.
Inspite of it plaintiff has not chosen to seek the permission of
the court to refer Ex.P.1 to P.4 for F.S.L to get the opinion of an
expert about the signature of the defendant No.1 on Ex.P.1 to
P.4. The plaintiff has not produced any documents in order to
establish that defendant no1 is the owner of suit schedule
property at the time of execution of alleged agreement and clear
admission of the PW1 during the course of cross examination
establishes that defendant no1 is not at all the owner of the
27
O.S.No.6286 of 2008
suit schedule property . Though plaintiff has examined
witnesses, who are said to be the witnesses of alleged
agreement but the evidence of P.W.2 goes against the case put
forth by the plaintiff and the evidence of P.W.3 do not inspire
the confidence. Plaintiff asserts that due to subsistence of
Fragmentation Act, the registration of sale deed could not be
executed, but the Fragmentation Act was already repealed
during the year 1991 and it was not subsistence on the date of
alleged agreement. Therefore, the contention of the plaintiff
with regarding to the ban of registration of schedule property is
not acceptable. The suit was filed after 16 years from the date
of alleged agreement. The oral averment is not sufficient to
prove the case of the plaintiff for entitlement of the relief
particularly when the transaction appears to be barred by
provision of law. There is nothing on record except bald
averments of the plaintiff. The plaintiff claimed to have paid
Rs.42,000/- by way of cash, which itself is unbelievable
without any documentary evidence, when defendant clearly
denies the execution of sale deed and having received said
consideration from the plaintiff. Merely issuing of legal notice
does not extend any time limit and it cannot be considered
that the cause of action arise only upon the issuing of legal
notice by the plaintiff after 16 years from the date of alleged
agreement of sale. Therefore the suit is hopelessly time barred.
Readiness is a financial capacity and willingness is a intention
28
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of the parties to perform the act as per the agreement. If at
all entire amount has been paid by the plaintiff then what
prevented the plaintiff to get execute the sale deed through
defendant No.1, when there is no prevention by the
Fragmentation Act on the date of alleged agreement. There is
no explanation forthcoming from the plaintiff in this regard. So
it clearly shows that the plaintiff is not ready and willing to
perform his part of the contract. Moreover plaintiff has not at
all proved execution of alleged agreement of sale in her favour
by the defendant no 1. Examining the case of the plaintiff on
the basis of preponderance of probabilities, I am of the
considered opinion that the plaintiff has failed to prove an
entitlement for the relief as prayed in the suit for specific
performance. The plaintiff has not at all in possession of the
suit schedule property. Such being the case, seeking for the
relief of permanent injunction when plaintiff fails to show that
1st defendant is the owner of suit schedule property and
execution of alleged agreement of sale , then the question of
directing the defendant No.1 not to alienate the suit schedule
property does not arise at all. Plaintiff therefore cannot seek
the relief of specific performance of agreement as prayed in the
suit along with the decree of permanent injunction.
26. In view of the testimony of P.W.1 to 3, documents on
record, the pleadings of the parties and examining the case of
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O.S.No.6286 of 2008
the plaintiff on the basis of preponderance of probabilities , it
is established that the plaintiff failed to prove the case and
discharge the onus. Therefore, I am of the considered opinion
that the plaintiff failed to discharge onus and prove the issues.
Therefore the plaintiff is not entitled for the relief of specific
performance along with the decree of permanent injunction.
Hence, I answer Issue No.5 in negative.
27. Issue No.6: This issue is with regarding to the relief
of permanent injunction, plaintiff failed to prove execution of
alleged sale deed dated 13.9.1992 . The 1 st defendant has taken
the contention that he is not the owner of suit schedule
property whereas during the course of cross-examination of
P.W.1, he clearly supports the defense taken by the defendants
wherein he admits that he has no documents to show that the
suit schedule property belongs to 1 st defendant and also
admits Ex.D.1 to D.10 which are RTC extracts standing in the
name of V.Krishnappa in respect of suit schedule property and
also admits that the sale deed executed by the GPA holder of
Krishnappa in favour of 2 nd defendant and also admits that in
written statement schedule property the 2 nd defendant has
built compound wall and has also installed bore-well therein.
So this admission clearly shows that the plaintiff is not in
possession of the suit schedule property and also when the 1 st
defendant is not at all the owner of the suit schedule property,
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then passing an order against the 1 st defendant not to alienate
the suit schedule property to any person cannot be acceptable .
The plaintiff has also not produced any proper and cogent
evidence in order to prove and establish that she is entitled for
the relief of permanent injunction. Therefore, I record my
finding on Issue No.6 in negative.
28. Issue No.7: In view of my discussions made above
and my findings on Issue No.1 to 6, I proceed to pass the
following:-
ORDER
The suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Draw decree accordingly. {Dictated to the Judgment Writer transcribed by her, corrected and then pronounced by me in open court this 27 th day of April 2019} (PREETHI K.P) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
31
O.S.No.6286 of 2008 ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Sri.Krishna Reddy P.W.2: Sri.Sanjeeva Reddy P.W.3: Sri.krishna Prasad List of documents exhibited for plaintiff:-
Ex.P.1 S.P.A Ex.P.2: Sale agreement Ex.P.2(a) to (f) Signatures on Ex.P.2 Ex.P.3: Power of attorney P.3(a) to (f): Signatures on Ex.P.3 Ex.P.4: Affidavit Ex.P.4(a) to (e): Signatures on Ex.P.4 Ex.P.5: Office copy of notice Ex.P.6: Reply Ex.P.7: RPAD cover Ex.P.7(a) Receipt Exp.7(b) & (c): Acknowledgements Ex.P.7(d) Notice in Ex.P.7.
List of witnesses examined for defendants :-
...Nil..
List of documents exhibited for defendants :-
Ex.D. to D.9: RTC
Ex.D.10:: Copy of plaint in O.S.No.6929/2013
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Ex.D.11: Certified copy of GPA Ex.D.12: Certified copy of sale deed.
XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 33 O.S.No.6286 of 2008 33 34 O.S.No.6286 of 2008 35 O.S.No.6286 of 2008 35