Karnataka High Court
Sri S K Revanasiddappa vs Dr Prema Prabhudev on 4 September, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER 2024
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR. JUSTICE C.M.POONACHA
REGULAR FIRST APPEAL NO.297/2007 (SP)
C/W
REGULAR FIRST APPEAL NO.344/2007 (SP)
R.F.A. NO.297/2007
BETWEEN:
1. SRI S.K. REVANASIDDAPPA
S/O SRI SHAMHANNA
SINCE DEAD BY LRS.
1(A). BASAVAMMA
W/O LATE REVANASIDDAPPA
AGED ABOUT 70 YEARS
1(B). BASAVALINGAMMA
D/O LATE REVANASIDDAPPA
AGED ABOUT 52 YEARS
1(C). NALINAKSHI
D/O LATE REVANASIDDAPPA
AGED ABOUT 45 YEARS
1(D). DHANYA KUMARI
D/O LATE REVANASIDDAPPA
AGED ABOUT 43 YEARS
2
ALL ARE RESIDING AT
SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577002.
2. SRI S.R. ESWARAPPA
S/O SRI REVANASIDDAPPA
MAJOR
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577002.
3. SRI S.R. HEMANTHARAJU
S/O SRI REVANASIDDAPPA
MAJOR
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577002.
4. SRI S.R. NAGARAJ
S/O SRI REVANASIDDAPPA
MAJOR
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577002.
... APPELLANTS
(BY SRI. S SREEVATSA SR. ADV. A/W
SRI UDITA RAMESH AND MS. PARVATHY R NAIR, ADVS.
FOR (A1(B-D), A2-14 AND THE SAME ARE LRS OF A1(A)
V/O 05.09.2023))
AND:
1. DR. PREMA PRABHUDEV
W/O SRI PRABHUDEV
MAJOR
R/AT DAVANAGERE-577002.
2. SMT. P.G. KUSUMA
W/O SRI R.G. BASAVARAJ
MAJOR
HOUSEWIFE
R/AT DAVANAGERE-577002.
3
3. SRI G.M. VIRUPAKSHAPPA
S/O MAHESWARAPPA
MAJOR
D.N.384/2, 2ND CROSS
1ST MAIN, K.B. EXTENSION
DAVANAGERE-577002.
4. SMT. HIRIYAMMA
W/O SRI G.R. SHEKHARAPPA
MAJOR
HOUSEWIFE
R/AT DAVANAGERE-577002.
5. SRI V.S. PATIL @ VASANTHAKUMAR S. PATIL
S/O SRI SHIVANAGOWDA PATIL
AGED ABOUT 57 YEARS
BUSINESSMAN
C/O M/S. BYLABASAVA AND CO.,
CHAMARAJAPET
DAVANAGERE-577002.
6. SRI SHANMUKHAPPA S PATIL @ S.S. PATIL
S/O SRI SHIVANAGOWDA PATIL
AGED ABOUT 46 YEARS
BUSINESSMAN
R/AT 12TH CROSS, K.T.J. NAGAR
BYLABASAVA, HADADI ROAD
DAVANAGERE- 577002.
...RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SR. ADV. A/W
SRI RAJATH ARIGA, ADV. FOR
SRI YESHU MISHRA, ADV. FOR R1 TO R4
SRI MADHUSUDHANA RAO, ADV. FOR R5 & R6)
THIS RFA FILED UNDER ORDER 41 RULE SECTION 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.09.2006
PASSED IN O.S NO.61/1998 ON THE FILE OF THE I ADDL. CIVIL
JUDGE (SR.DN.) DAVANGERE, PARTLY DECREEING THE SUIT
FOR DECLARATION AND POSSESSION.
4
R.F.A. NO.344/2007
BETWEEN:
1. MR. V.S. PATIL @ VASANTHAKUMAR S. PATIL
S/O SRI SHIVANAGOWDA PATIL
AGED ABOUT 48 YEARS
BUSINESSMAN
R/AT C/O BYLABASAVA AND CO.,
CHAMARAJAPET
DAVANAGERE-577001.
2. MR. SHANMUKHAPPA S PATIL @ S.S. PATIL
S/O SRI SHIVANAGOWDA PATIL
AGED ABOUT 37 YEARS
R/AT 12TH CROSS, K.T.J. NAGAR
BYLA BASAVA, HADADI ROAD
DAVANAGERE- 577001.
.... APPELLANTS
(BY SRI A MADHUSUDHANA RAO, ADV.)
AND:
1. DR. PREMA PRABHUDEV
W/O SRI PRABHUDEV
MAJOR
R/AT D.NO.384/2, 2ND CROSS
1ST MAIN, K.B. EXTENSION
DAVANAGERE-577002.
2. SMT. P.G. KUSUMA
W/O SRI R.G. BASAVARAJ
MAJOR
R/AT D.NO.384/2, 2ND CROSS
1ST MAIN, K.B. EXTENSION
DAVANAGERE-577001.
3. SRI G.M. VIRUPAKSHAPPA
S/O MAHESWARAPPA
MAJOR
D.N.384/2, 2ND CROSS
5
1ST MAIN, K.B. EXTENSION
DAVANAGERE-577001.
4. SMT. HIRIYAMMA
W/O SRI G.R. SHEKHARAPPA
SINCE DEAD BY HER LRS.
4(A). SRI POORNA CHANDRA TEJASWI
MAJOR
S/O G.R. SHEKHARAPPA
4(B). KAVITHA
MAJOR
D/O G.R. SHEKHARAPPA
BOTH ARE R/AT DOOR.NO.384/2
2ND CROSS, 1ST MAIN
K.B. EXTENSION
DAVANAGERE.
5. SRI S.K. REVANASIDDAPPA
SINCE DEAD BY LRS.
5(A). BASAVAMMA
W/O LATE REVANASIDDAPPA
AGED ABOUT 70 YEARS
SINCE DEAD BY HER LRS.
5(B). BASAVALINGAMMA
D/O LATE REVANASIDDAPPA
AGED ABOUT 53 YEARS
5(C). SMT. NALINAKSHI
D/O LATE REVANASIDDAPPA
AGED ABOUT 45 YEARS
5(D). SMT. DHANYA KUMARI
D/O LATE REVANASIDDAPPA
AGED ABOUT 43 YEARS
RESPONDENTS 1 TO 4 ARE RESIDING AT
SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577001.
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6. SRI S.R. ESWARAPPA
S/O SRI REVANASIDDAPPA
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577001.
7. SRI S.R. HEMANTHARAJU
S/O SRI REVANASIDDAPPA
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577001.
8. SRI S.R. NAGARAJ
S/O SRI REVANASIDDAPPA
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577001
...RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SR. ADV. A/W
SRI RAJATH ARIGA, ADV. FOR
SRI YESHU MISHRA, ADV. FOR R1 TO R4 (A & )
SRI S SREEVATSA, SR. ADV. A/W
SRI UDITA RAMESH, ADV. FOR R5 (B, C, D),
R6-8 AND THE SAME ARE LRS OF R5 (A) V/O
DATED 05.09.2023)
THIS RFA FILED UNDER ORDER 41 RULE SECTION 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.09.2006
PASSED IN O.S NO.61/1998 ON THE FILE OF THE I ADDL. CIVIL
JUDGE (SR.DN.) DAVANGERE, PARTLY DECREEING THE SUIT
FOR DECLARATION AND POSSESSION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.08.2024 COMING ON THIS DAY,
S.G.PANDIT J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
AND
HON'BLE MR JUSTICE C.M. POONACHA
7
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) The above appeals are directed against the judgment and decree dated 30.09.2006 in O.S.No.61/1998 on the file of I Additional Senior Civil Judge (Sr.Dn.), Davanagere (for short, 'Trial Court') whereby respondent Nos.1 to 4/plaintiffs' suit for specific performance is allowed, directing the appellants and respondent Nos.5 and 6 to execute registered sale deed in favour of the plaintiffs in respect of the 'A' suit schedule land.
2. RFA.No.297/2007 is by defendant Nos.1 to 4 who are said to have executed agreement of sale in favour of plaintiffs, respondents No.1 to 4 herein, whereas RFA.No.344/2007 is by defendants No.5 and 6 in the suit, purchasers of 10 guntas each, prior to filing of the suit.
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3. The parties to the appeals would be referred to as they stood before the Trial Court. Appellants in both the appeals were defendants and respondents No.1 to 4 herein were plaintiffs before the Trial Court.
4. Brief facts of the case are that, plaintiffs filed suit for specific performance praying to direct the defendants to receive the balance sale consideration and to execute the sale deed in respect of the 'A' schedule property in favour of the plaintiffs and ancillary relief of cancellation of sale deeds dated 23.12.1996 executed by the defendants No.1 to 4 in favour of the defendants No.5 and 6 in respect of the 'B' schedule property. Plaint averments would indicate that defendants No.1 to 4, owners of the 'A' schedule property executed agreement of sale dated 16.10.1992 agreeing to sell 2 acres of land out of 2 acres 28 guntas for a sale consideration of 9 Rs.5,35,000/- per acre. The plaintiffs paid an advance of Rs.2,00,000/- on 16.10.1992 on the date of the agreement which was acknowledged by defendants No.1 to 4; paid another sum of Rs.1,00,000/- within six months from 16.10.1992 and also paid another Rs.70,000/- and Rs.35,000/-, totally Rs.4,05,000/-. The agreement required the parties to complete the sale transaction within 20 months. The possession of the suit schedule property was handed over to the plaintiffs. Further, it is stated that defendants No.1 to 4 also executed a registered power of attorney in favour of the third plaintiff on 28.10.1992 authorizing him to do all acts necessary for the purpose of conversion of the 'A' schedule property for formation of sites. Later, plaintiffs found that 'A' schedule property was kept aside for public purpose i.e., for park and other public purpose in the CDP and ODP published by Davanagere Urban Development 10 Authority (for short "DUDA"). Plaintiffs approached defendants No.1 to 4, demanded explanation for suppression of fact of land being reserved for public purpose. It is stated that to compensate the plaintiffs, defendants agreed to sell the entire property measuring 2 acres 28 guntas for the original sale consideration of Rs.10,70,000/- in all, instead of Rs.5,35,000/- per acre. The plaintiffs and defendants No.1 to 4 accordingly entered into a fresh agreement of sale dated 12.05.1993 wherein defendants No.1 to 4 agreed to sell entire 2 acres 28 guntas for sale consideration of Rs.10,70,000/-. Further, it was agreed that plaintiffs shall get the entire land converted for non-agricultural purpose and after formation of sites, plaintiffs should give six sites each measuring 30 X 40 feet to the defendants, free of cost. The balance sale consideration of Rs.7,00,000/- was required to be paid by the plaintiffs within 2 years 11 from the date of the agreement. It is stated that the Government was taking its own time to take a decision on the application of plaintiffs for conversion of land, plaintiffs decided that irrespective of the fact that permission is granted or not, to use the suit schedule property for residential purpose. Hence, plaintiffs who were always ready and willing to perform their part of the contract approached defendants No.1 to 4 requesting to receive the balance sale consideration and to execute the sale deed, but the defendants No.1 to 4 were avoiding the plaintiffs. Thereafter, plaintiffs got issued legal notice to defendants No.1 to 4 who failed to comply with the demands made therein. The defendants No.1 to 4 issued a paper publication canceling the power of attorney executed in favour of third plaintiff and also filed O.S.No.426/1995 to restrain the plaintiffs from interfering with their peaceful possession and 12 enjoyment of 'A' schedule property. There was an order of status quo in the said suit. The defendants No.1 to 4 executed two sale deeds in respect of 'B' schedule property in favour of defendants No.5 and 6 respectively on 23.12.1996. The suit was filed on 18.04.1998. The suit property measures 2 acres 28 guntas in Sy.No.197/1 of Shamanur Village, Davanagere Taluk.
5. Defendant No.1 filed written statement admitting execution of agreement dated 16.10.1992 and also receiving advance amount of Rs.2,00,000/- on the date of execution of the agreement, but denied execution of second agreement dated 12.05.1993. Further, denied receiving any sale consideration in pursuance to second agreement dated 12.05.1993. Defendant No.1 also denied handing over possession of the suit schedule property to the plaintiffs. Further, it is averred that the plaintiffs have committed breach 13 of the terms and conditions of agreement dated 16.10.1992 and in order to bring the said document within the period of limitation, plaintiffs have resorted to another agreement purporting to have been executed by defendants No.1 to 4. Further, defendant No.1 denied receipt of Rs.4,05,000/-. First defendant further stated that the suit schedule property is the ancestral property and to meet dire need for money, the plaintiffs prevailed over him and succeeded in getting the first agreement. Further, he admits selling of 10 guntas of each under registered sale deed dated 23.12.1996 in favour of defendants No.5 and 6. The first defendant also contended that plaintiffs have not taken any steps for conversion of land; plaintiffs were not ready and willing to get the sale deed executed; and plaintiffs have not proved that they had sufficient money and their financial capacity to pay the balance sale consideration and to get the sale deed executed. 14
6. The defendants No.5 and 6 in their written statement contended that they are the bonafide purchasers for valuable consideration and that they were not aware of the unregistered agreement entered into between plaintiffs and defendants No.1 to 4.
7. Based on the pleadings of the parties, the Trial Court framed as many as 10 issues at the first instance and two additional issues subsequently on 10.07.2006. The issues framed by the Trial Court are as follows:
"1. Whether the plaintiffs prove that, on 16.10.1992 defendants 1 to 4 agreed to sell suit 'A' schedule property and executed agreement on 16.10.1992 and received an amount of Rs.2,00,000/-?15
2. Whether the plaintiffs further proves that, on 12.05.1993 under the changed circumstances the defendants agreed to sell the entire suit 'A' schedule property measuring 2 acres 28 guntas for valuable consideration of Rs.10,70,000/- and on that day they have received an amount of Rs.3,70,000/- and acknowledged to that effect?
3. Whether the plaintiffs further prove that after the conversion of land for non agriculture purpose and for residential purpose six sites are to be allotted to defendants 1 to 4?
4. Whether the plaintiffs further prove that defendants violated the terms and conditions, where as plaintiffs were all along ready and willing to perform their part of obligation?
5. Whether the plaintiffs are entitled for the decree sought?16
6. Whether the 1st defendant proves the contentions of para-10 of the written statement?
7. Whether 1st defendant proves that suit is not maintainable for non- joinder of necessary parties?
8. Whether the suit of the plaintiffs is hit by Doctrine of estoppel, acquiescence, delay, latches, misrepresentation and fraud?
9. Whether the defendants 5 and 6 proves that they are bonafide purchasers without notice?
10. What decree or order?
Additional Issues framed on 10.07.2006
1. Whether the suit is barred by limitation?
2. Whether the suit is properly valued and Court fee paid is sufficient?"17
8. Heard learned senior counsel Sri.Seevatsa for Smt.Udita Ramesh and Smt.Parvathy R. Nair, learned counsel for the appellants/defendants No.1 to 4 in RFA.No.297/2007, learned counsel Sri.A.Madhusudhana Rao for appellants/defendant Nos.5 and 6 in RFA.No.344/2007 and learned senior counsel Sri.Ashok Haranahalli for Sri.Rajath Ariga, learned counsel for plaintiffs/respondent Nos.1 to 4. Perused the entire appeal papers as well as original Trial Court Records.
9. Learned senior counsel Sri.Sreevatsa for appellants/defendants No.1 to 4 would submit that the judgment and decree under challenge is opposed to the material on record and further he submits that the Trial Court failed to appreciate the facts by applying proper proposition of law. It is submitted that defendants No.1 to 4 admit execution of Ex.P1 18 agreement dated 16.10.1992 and deny the execution of agreement dated 12.05.1993. Learned senior counsel would submit that agreement dated 12.05.1993 is concocted to overcome limitation as the suit is filed on 18.04.1998 in respect of agreement dated 16.10.1992. Learned senior counsel would submit that defendants No.1 to 4 admit having received Rs.3,70,000/-, but denies handing over possession to the plaintiffs. It is further submitted that there is breach of terms and conditions of agreement dated 16.10.1992 (Ex.P1) by the plaintiffs. Learned senior counsel would submit that the agreement required the plaintiffs to take steps for conversion of land for residential purpose, but the plaintiffs have not taken any steps for conversion of land. It is submitted that by order dated 30.10.1995, request for conversion of land for residential purpose was rejected, which was suppressed. It is further 19 submitted that the request for conversion was refused on the ground that the land is reserved for park and other public purpose in the CDP. As the plaintiffs failed to get the conversion of land, the contract got frustrated. The suit filed on 18.04.1998 to enforce the agreement dated 16.10.1992 is barred by time and as such the suit was liable to be dismissed.
10. Learned senior counsel would further submit that the plaintiffs have paid only Rs.3,70,000/- in pursuance of Ex.P1 - agreement dated 16.10.1992 and the plaintiffs never came forward to pay the balance sale consideration and to get the sale deed executed in their favour. The plaintiffs were not ready and willing to get the sale deed executed in their favour and also failed to establish their readiness and willingness by getting the land converted to get the sale deed executed. Further, it is submitted that plaintiffs also failed to establish their financial capacity 20 to pay the balance sale consideration. No material whatsoever to establish their financial capacity is placed on record, except stating that they had cash with them. Further, learned senior counsel would submit that Ex.P1 - agreement dated 16.10.1992 required the parties to complete the transaction within two years, but the plaintiffs have not come forward within two years to get the land converted and to pay the balance sale consideration. The plaintiffs have not taken any steps in that regard and after expiry of two years for the first time, Ex.P6 - notice dated 08.09.1995 was issued calling upon the defendants to receive the balance sale consideration and to execute sale deed.
11. Learned senior counsel referring to Ex.P2 - alleged agreement dated 12.05.1993 would submit that the said agreement is concocted; it would not indicate or no mention about Ex.P1 - agreement 21 dated 16.10.1992 and the amount received thereunder. It would also not indicate on what date or dates, sum of Rs.3,70,000/- is paid. Further, learned senior counsel would point out that under Ex.P1 - agreement dated 16.10.1992, defendants agreed to sell 2 acres of land at Rs.5,35,000/- per acre and for a total sum of Rs.10,70,000/- however under Ex.P2 - agreement dated 12.05.1993, the sale consideration is shown as Rs.10,70,000/- for total extent of land of 2 acres 28 guntas. It is submitted that there is no reason for the defendants No.1 to 4 to sell more extent of land for the same price and submits that, that itself would be sufficient to establish that the said agreement at Ex.P2 is concocted. Thus, he prays for allowing the appeal by setting aside the judgment and decree under appeal.
12. Learned counsel Sri.A.Madhusudhan Rao for appellants in RFA.No.344/2007 and defendants 22 No.5 and 6 would submit that they are bonafide purchasers of 10 guntas of land each out of 2 acres 28 guntas under two separate registered sale deeds dated 23.12.1996 for valuable consideration. Further, it is submitted that sale deeds are prior to filing of the suit, but admits that those sale deeds are subsequent to Ex.P1 and Ex.P2 - unregistered agreements. It is submitted that defendants No.5 and 6 bonafide purchasers were not aware of the alleged unregistered agreements at Ex.P1 and Ex.P2. It is contended that no material is placed on record to show that defendants No.5 and 6 were aware of the agreements at Ex.P1 and Ex.P2. Learned counsel Sri.A.Madhusudjan Rao referring to evidence on record would submit that the plaintiffs have not established their readiness and willingness to get the sale deed executed by paying balance of sale 23 consideration. As such, he request for allowing the appeal.
13. Per contra, learned senior counsel Sri.Ashok Haranahalli for plaintiffs/respondents No.1 to 4 supports the impugned judgment and decree and submits that the plaintiffs have proved Ex.P1 and Ex.P2 agreements of sale executed by defendants No.1 to 4, as such he submits that the Trial Court is justified in decreeing the suit. Learned senior counsel would submit that the defendants No.1 to 4 would not dispute execution of agreement at Ex.P1 and the dispute is only with regard to Ex.P2 agreement dated 12.05.1993 which according to learned senior counsel, plaintiffs have successfully proved. Learned senior counsel referring to Ex.P1 and Ex.P2 would submit that the signatures on those documents are not disputed and PW.4 - typist and PW.2 - Commissioner of DUDA support the case of the plaintiffs. Further, 24 learned senior counsel would submit that the amount mentioned in Ex.P2 tallies with the amount mentioned in Ex.P1. Further, learned senior counsel would submit that the request of the plaintiffs for conversion is not rejected and on the other hand, the request of plaintiffs for conversion was recommended for change of land use and the file was forwarded to the Director of Town Planning. Therefore, he submits that it cannot be said that the plaintiffs have not taken any steps for conversion of land. Learned senior counsel would refer to Ex.P6 - legal notice dated 08.09.1995 and would submit that to the said legal notice, no reply is issued and the defendants have not come forwarded to execute the sale deed. Further, learned senior counsel would submit that the suit is filed within three years from thereafter and the suit filed is within the period of limitation. Learned senior counsel invites attention of this Court to cause of action stated at paragraph 9 25 of the plaint and submits that when the defendants No.1 to 4 refused to comply the demand made under notice dated 06.09.1995 and when the defendants No.1 to 4 executed sale deed dated 23.12.1996 in favour of defendants No.5 and 6, the cause of action to file the suit arose. Further, he submits that time is not the essence of the contract and time starts from the date of refusal. Moreover, he submits that the sale deed dated 23.12.1996 in favour of defendants No.5 and 6 is executed at Rs.40,000/- for 10 guntas, which is far less than the market value and the price agreed under Ex.P1 and Ex.P2 agreements. Therefore, he submits that those sale deeds are executed only to frustrate the agreement which was executed in favour of the plaintiffs. The plaintiffs were always ready and willing to pay the balance sale consideration and to get the sale deed executed in their favour. Further, referring to evidence of PW1 learned senior counsel 26 would submit that PW1 has made it clear that they had cash with them and they had requested defendants No.1 to 4 to receive the balance sale consideration and to get the sale deed executed in their favour. Thus, learned senior counsel would pray for dismissal of the appeals.
14. On hearing the learned counsel appearing for the parties and on perusal of the Trial Court Records, the following points would arise for our consideration:
1) Whether the plaintiffs have proved Ex.P1 and Ex.P2 agreements dated 16.10.1992 and 12.05.1993?
2) Whether the plaintiffs have proved their readiness and willingness to get the sale deed executed in their favour?
3) Whether the impugned judgment and decree requires interference?
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15. Answer to point Nos.1 and 3 would be in the Affirmative and point No.2 would be in the Negative for the following reasons:
16. It is the case of the plaintiffs that the defendants No.1 to 4 executed an agreement dated 16.10.1992, agreeing to sell 2 acres out of 2 acres 28 guntas of 'A' schedule property for a sale consideration of Rs.5,35,000/- per acre by accepting the advance amount of Rs.2,00,000/- on the date of agreement. Further, the plaintiffs state that due to compelling circumstances, defendants No.1 to 4 executed another agreement dated 12.05.1993, agreeing to sell entire 2 acres 28 guntas of land for total consideration of Rs.10,70,000/-. In the written statement of defendant No.1, defendant No.1 admits execution of agreement dated 16.10.1992 (Ex.P1) by accepting a sum of Rs.2,00,000/- as advance, but denies handing over possession to the defendants. 28 Under Ex.P1 agreement dated 16.10.1992, defendants No.1 to 4 had also agreed to execute General Power of Attorney for the purpose of getting the land converted for non-agricultural purpose in respect of the entire land measuring 2 acres 28 guntas and also to take permission from the Urban Development Authority and Mandal Panchayath. Accordingly, Ex.P19 - General Power of Attorney was executed by defendants No.1 to 4 in favour of third plaintiff. There is no dispute with regard to execution of Ex.P19 - General Power of Attorney. The Trial Court has rightly held issue No.1 with regard to execution of agreement dated 16.10.1992 in the affirmative and has rightly come to the conclusion that defendants No.1 to 4 executed agreement dated 16.10.1992 on receiving Rs.2,00,000/- on the said date. Though, defendants No.1 to 4 deny the execution of Ex.P2-agreement dated 12.05.1993, they have failed to establish non- 29 execution of agreement dated 12.05.1993. On the other hand, plaintiffs have succeeded in establishing execution of agreement dated 12.05.1993. The case of the defendants No.1 to 4 is that Ex.P2 - agreement dated 12.05.1993 is concocted and fraudulent one, but there is no dispute with regard to the signatures on Ex.P2. PW1 - third plaintiff has denied the suggestion of defendants that the document is created one and further DW1 in his evidence has denied the execution of agreement. But, the evidence of other witnesses would support the case of the plaintiffs. PW4 - Hatheem Thaj is the Typist who typed Ex.P2 and he has identified the said document and stated that he has typed the said document. He also states that Revanasiddappa - defendant No.1 instructed him to type the said document. In his cross-examination, he has denied the suggestion that he was not working as Typist in 30 his Typing shop. PW5 - A.Theerthappa, brother-in-law of first defendant is the witness to both Ex.P1 and Ex.P2. With regard to Ex.P2, PW5 states that in addition to agreement dated 16.10.1992 (EX.P1), defendants No.1 to 4 executed one more agreement dated 12.05.1993. Further, he states that at the time of discussion with regard to Ex.P2 agreement, he was present and he has signed the said agreement as witness. Ex.P1 contains endorsement for having received a sum of Rs.50,000/- on 27.04.1993 and also a sum of Rs.45,000/- on 04.05.1993 and the endorsement contains the signatures of defendant No.1 - Revanasiddappa, defendant No.2 - Eswarappa and defendant N.4 - Nagaraj. Those signatures are not denied and not disputed. Therefore, it cannot be said that defendant Nos.1 to 4 have not executed Ex.P2 - agreement dated 12.05.1993. Under Ex.P2, total consideration is mentioned as Rs.10,70,000/- 31 and it also states that defendants have received a sum of Rs.3,70,000/- as advance and balance sum of Rs.7,00,000/- is to be paid within two years from the date of the agreement. From the material on record, it is seen that defendants have received a total sum of Rs.4,05,000/- i.e., a sum of Rs.2,00,000/- as on the date of execution of agreement dated 16.10.1992, Rs.1,00,000/- within six months from 16.10.1992 and also another sum of Rs.70,000/- and Rs.35,000/-. Therefore, in the light of the above discussion, point No.1 is held in the Affirmative.
17. Point No.2 is with regard to readiness and willingness of the plaintiffs to get the sale deed executed in their favour. Trial Court has come to the conclusion that plaintiffs have proved that they were always ready and willing to perform their part of the obligation to get the registered sale deed from defendants No.1 to 4.
32
18. In a suit for specific performance, the burden is always on the plaintiffs to aver and prove that they were ready and willing to perform their part of the contract throughout, by placing on record the acceptable evidence. The specific performance cannot be enforced in favour of a person, who fails to prove that he has performed or was always ready and willing to perform terms of contract. Even in the absence of defense put forth, the plaintiff is required to prove his readiness and willingness to perform his part of the contract. It is also incumbent upon the plaintiff to prove his financial capacity i.e., to garner balance sale consideration for payment on the agreed date and when the demand notice was issued or on the date of filing the suit. Even if the plaintiff has failed to establish possessing the balance sale consideration throughout, it would be sufficient that, if he 33 establishes his capacity to generate the finance or balance sale consideration when demanded.
19. In the case on hand, on careful scrutiny of the material on record and on appreciating the contentions of the parties, we are of the opinion that plaintiffs have utterly failed to prove their readiness and willingness to perform their part of the contract and to get the sale deed registered in their favour. Ex.P1 is the agreement dated 16.10.1992 and in terms of the said agreement, defendants No.1 to 4 executed General Power of Attorney in favour of plaintiff No.3 on 28.10.1992 (EX.P19) so as to enable the plaintiffs to get the suit land converted for non- agricultural/residential purpose and also to get conversion from Urban Development Authority. Plaintiffs also ought to have obtained permission from Mandal Panchayath with regard to door numbers by forming sites in respect of the entire extent of 2 acres 34 28 guntas of land. Under Ex.P2 agreement dated 12.05.1993, on formation of sites, plaintiffs were required to hand over six sites measuring 30 X 40 feet each, free of cost to the defendants. It was also agreed that if the conversion is not permitted, except six sites area, defendants agreed to register the balance land in favour of the plaintiffs. Therefore, there was an obligation on the plaintiffs to get the land converted from agricultural to non-agricultural purpose and also to get the land released from the land use prescribed under the CDP.
20. The plaintiffs examined P.W.2-K.G.Thimma Reddy; an official from the Town Planning Department and P.W.3-A.R.Ujjinappa, Secretary of Panahcyat. P.W.2 was working as Commissioner, DUDA and in his evidence, he has made it clear that 2 acres 28 guntas of land in Sy.No.197/1 of Shamanur village was earmarked for park in the CDP (Ex.P20(A)). Further, 35 he stated that, on behalf of defendant No.1- Revanasiddappa, GPA holder had submitted an application dated 25.12.1993 seeking conversion of land from park to residential purpose. He further deposed that the said application was considered and resolution was passed and forwarded to the Government for taking a decision, as the Government is the appropriate authority to change of land use under CDP. In his cross-examination, he had admitted that on 31.10.1995, an endorsement was issued to the GPA holder of defendant No.1 stating that it would not be possible to convert the land which is earmarked for park to residential purpose. From the evidence of P.W.2 it is clear that as on the date of filing the suit, as required under Ex.P1 and Ex.P2, the land was not got converted for residential purpose and the plaintiffs had failed in their obligation to get the land converted from the competent authorities. 36 Therefore, it cannot be said that the plaintiffs were ready and willing to perform their part of the contract.
21. In terms of Ex.P2, the plaintiffs were required to pay balance sale consideration of Rs.7,00,000/- and at paragraph 7 of the plaint, the plaintiffs have averred that they were ready and willing to perform their remaining part of the contract, by getting the sale deed executed in their favour by paying balance sale consideration.
22. P.W.1 in his evidence has stated that before expiry of 24 months, they requested the defendants to receive the balance sale consideration and to execute the sale deed, but has admitted that before expiry of 24 months, no notice was issued. P.W.1 has also admitted in his cross-examination that there is no document to prove that they had possessed Rs.7,70,000/-. No material or evidence is 37 placed on record to establish the plaintiffs financial capacity or to establish that they had possessed balance sale consideration throughout from the date of execution of Ex.P1 and Ex.P2 till the conclusion of the suit. It is settled position of law that the plaintiffs need not show that they had cash or amount in their hand, but at least it is for them to establish their financial capacity to garner or generate the balance sale consideration when demanded. In the instant case, there is no evidence or materials to establish their financial capacity or to establish that they had balance sale consideration throughout.
23. Ex.P2/agreement dated 12.05.1993 states that balance sale consideration of Rs.7,00,000/- to be paid within two years and to get the sale deed registered in their favour. Ex.P6/legal notice is dated 08.09.1995 wherein the defendants were called upon to receive the balance sale consideration of 38 Rs.7,00,000/- and to execute the sale deed. The said notice is subsequent to 24 months from the date of Ex.P2. Therefore, it would also suggest that plaintiffs were not eager to get the sale deed executed by paying balance sale consideration.
24. Insofar as the contention of the appellants in RFA No.344/2007, it is to be noted that the sale deeds in favour of purchasers i.e., defendants No.5 and 6 are executed by defendants No.1 to 4 on 23.12.1996 to an extent of 10 guntas each. The contentions of defendants No.5 and 6 need not be gone into, since we have come to the conclusion that plaintiffs have not established their readiness and willingness to perform their part of contract.
25. Learned senior counsel for the appellants/defendants No.1 to 4 also contended that the suit filed on 18.04.1988 is barred by limitation, 39 but we are unable to agree with the said contention. Ex.P2 - agreement is dated 12.05.1993. The plaintiffs had time up to two years to pay the balance amount and to get the sale deed executed which would be up to May, 1995. Thereafter, notice at Ex.P-14 dated 08.09.1995 is issued to the defendants calling upon them to receive the balance sale consideration and to execute the sale deed. In the meanwhile, defendants had sold 10 guntas each to defendant Nos.5 and 6 under registered sale deed dated 23.12.1996. Thereafter, the suit is filed on 18.04.1998, which is within three years from the date of cause of action. It is well settled position of law that the cause of action is a bundle of facts. Taking note of the above factual position, it can be safely said that suit filed on 18.04.1998 is not barred by limitation, as contended.
26. Learned senior counsel Sri.Ashok Haranahalli for respondents/plaintiffs placed reliance 40 on the decision of Honb'le Apex Court in PRAKASH CHANDRA VS. ANGADLAL AND OTHERS1 to contend that ordinarily specific performance shall be granted; decision in the case of ZARINA SIDDIQUI VS. A.RAMALINGAM ALIAS R. AMARNATHAN2 to contend that the equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties and if the defendants do not come with clean hands and suppressed material facts and evidence and misleads the Court, then such discretion should not be granted by refusing to grant specific performance. The decisions or precedents shall be applied depending on the facts of each case. The principles laid down by Honb'le Apex Court particularly in the matter of suit for specific performance would mainly depend on facts of each case, wherein the parties have to prove the 1 AIR 1979 SC 1241 2 (2015) 1 SCC 705 41 agreement and mainly it is for the parties to establish or prove their readiness and willingness by producing cogent material evidence on record. The material evidence on record would decide the issues. It is true that, ordinarily if the above stated principles are established, normally specific performance should not be refused. But, if the parties failed to establish any one of the above stated principles in a suit for specific performance, the parties would not be entitled for specific performance. Only on the ground that defendants have not come to the Court with clean hands and have suppressed the material facts and evidence, the suit cannot be decreed in favour of the plaintiffs. As held by the Honb'le Apex Court, even in the absence of defence with regard to readiness and willingness to perform his part of contract, it is for the plaintiff to aver and prove his readiness and 42 willingness (SUKHWINDER SINGH V. JAGROOP SINGH AND ANOTHER3).
27. For the reasons recorded above, both the appeals are allowed. Judgment and decree dated 30.09.2006 in O.S.No.61/1998 on the file of I Additional Senior Civil Judge (Sr.Dn.), Davanagere is set aside.
SD/-
(S.G.PANDIT) JUDGE SD/-
(C.M. POONACHA) JUDGE NC/MPK CT: bms 3 (2021) 20 SCC 245 4 (2023) 3 SCC 714