Karnataka High Court
Chamansab S/O. Peersab Nadaf vs Ranganath S/O. Shrinivasrao Kulkarni on 27 March, 2023
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RSA No. 6268 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.6268 OF 2012 (S.P.)
BETWEEN:
1. CHAMANSAB
S/O. PEERSAB NADAF
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O: CHIKKALINGADAHALLI,
TQ:HAVERI, DIST: HAVERI-581110.
2. MEHAMMOBSAB
S/O. PEERSAB NADAF
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O: CHIKKALINGADAHALLI,
TQ: HAVERI,
DIST: HAVERI-581110. ... APPELLANTS
(BY SRI S.V. YAJI, ADVOCATE)
SAMREEN AYUB
DESHNUR
AND:
High Court of
Karnataka, 1. RANGANATH
Dharwad S/O. NARAYANACHARYA SAVANUR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALINGADAHALLI,
TQ:HAVERI, DIST: HAVERI-581110.
2. RAGHAVENDRARAO
S/O. SHRINIVASRAO KULKARNI
DEAD REP. BY HIS LR's
R-4 AND R-5 WHO ARE ALREADY ON RECORD
ARE LR's OF DECEASED R-2.
3. GEETABAI
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RSA No. 6268 of 2012
W/O. RAGHAVENDRA RAO
DEAD REP. BY HER LR's
R-2, R-4, R-5, R-6 WHO ARE ALREADY
ON RECORD ARE LR's OF DECEASED R-3.
4. GIRISH
S/O. RAGHAVENDRARAO KULKARNI
AGE: 42 YEARS, OCC: NIL,
R/O: OPP. GOVT. URDU, HIGH SCHOOL,
BEHIND DISTRICT HOSPITAL,
TQ:HAVERI, DIST: HAVERI-581110.
5. VENKATESH
S/O. RAGHAVENDRARAO KULKARNI
AGE: 42 YEARS, OCC: NIL,
R/O. OPP. GOVT. URDU, HIGH SCHOOL,
BEHIND DISTRICT HOSPITAL,
TQ:HAVERI, DIST: HAVERI-581110.
6. SHESHAGIRIRAO
S/O. RAGHAVENDRARAO KULKARNI
DEAD REP. BY HIS LR's
R-2, R-4 AND R-5
WHO ARE ALREADY ON RECORD
ARE LR's OF DECEASED R-2. ... RESPONDENTS
(BY SMT. SUJATA DUMMAWAD, ADVOCATE AND
SRI ARAVIND D. KULKARNI, ADVOCATE FOR R-1;
R-2, R-4 TO R-6 ARE LR's OF DECEASED R-3;
R-4 AND R-5 ARE LR's OF DECEASED R-2;
SRI SANTOSH B. RAWOOT, ADVOCATE FOR R-4 AND R-5)
THIS RSA FILED U/S.100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD:10.10.2012 PASSED IN
R.A.NO.41/2009 ON THE FILE OF THE DISTRICT JUDGE AT
HAVERI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT DTD:24.04.2009 AND THE DECREE PASSED IN
O.S.NO.49/1995 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
HAVERI, DECREEING THE SUIT FILED FOR SPECIFIC
PERFORMANCE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 6268 of 2012
JUDGMENT
This Court while admitting the appeal has framed the following substantial question of law on 21.04.2014:
"Whether the trial Court as well as the first appellate Court have committed a serious error in ignoring the material evidence placed on record more particularly without framing a specific issue in regard to the defence set up by defendant nos.6 and 7, i.e., appellants herein, relating to purchase made by them bona fidely for consideration without notice and thus judgments of the trial Court and the first appellate court have become perverse and illegal?"
2. In addition, the following substantial question of law has been framed by this Court, "Whether the suit is maintainable seeking declaration in respect of registered document in the suit for specific performance?"
3. Learned counsel for the appellant and learned counsel for the respondents have been heard on the substantial questions of law as stated above. 4. The present appeal by defendant Nos.6 and 7 assailing the judgment and decree dated 10.10.2012 -4- RSA No. 6268 of 2012 passed in R.A.No.41/2009 on the file of the District Judge, Haveri, confirming the judgment and decree dated 24.04.2009 passed in O.S.No.49/1995 on the file of the Civil Judge (Sr. Dn.), Haveri, whereby the suit of the plaintiff for specific performance came to be decreed directing defendants Nos.1, 6 and 7 to execute a regular sale deed in favour of the plaintiff.
5. The brief facts of the case are that:
The plaintiff instituted a suit for the relief of specific performance of contract to enforce the sale agreement dated 31.03.1995 against the defendants and in the alternate sought for damages of Rs.10,000/- and refund of earnest money of Rs.1,10,000/- with interest from the date of the agreement of sale and for permanent injunction. The plaint avers that the defendant entered into an agreement of sale dated 31.03.1995 agreeing to sell the suit schedule property in favour of the plaintiff for an amount of Rs.1,42,500/- and by way of earnest money, an amount of Rs.1,10,000/- was paid on the date of the -5- RSA No. 6268 of 2012 sale agreement and defendant No.1 agreed to execute sale deed by receiving the balance sale consideration. As defendant No.1 did not come forward to execute the sale deed and the defendant was making an attempt to sell the property, the plaintiff was constrained to issue notice dated 21.06.1995 calling upon defendant No.1 to register the sale deed. It is stated that defendant No.1, inspite of receiving notice and the plaintiff having filed objections before the Sub-Registrar not to register the sale deed, defendant No.1 has executed a sale deed in favour of defendant Nos.6 to 8 on 21.06.1995. It is stated that the plaintiff is in possession of the suit schedule property from the date of agreement of sale dated 31.03.1995 and defendant Nos.6 to 8, though were aware about the execution of the agreement of sale in favour of the plaintiff and the plaintiff being in possession of the suit schedule property, have joined together and created the sale deed and hence, the present suit for specific performance of contract directing defendant Nos.1, 6 and 7 to execute the registered sale deed in favour of the plaintiff.-6- RSA No. 6268 of 2012
6. Pursuant to the suit summons issued by the trial Court, defendant Nos.1 to 8 appeared and defendant No.1 filed his written statement, which was adopted by defendant Nos.2 to 5 and the written statement filed by defendant No.7 was adopted by defendant Nos.6 and 8. 7. The contest of the suit by defendant Nos.1, 6 and 7 is that the agreement of sale as alleged by the plaintiff is created in collusion with plaintiff and his brother and the signature on the agreement of sale is forged, there is no sale transaction having taken place between the plaintiff and defendant No.1 nor the possession of the suit schedule property was handed over to the plaintiff. It is contended that defendant No.1 has executed an agreement of sale in favour of defendant Nos.6 and 7 and they have been put in possession of the suit schedule property. Defendant Nos.6 and 7 have contested the suit stating that they are bona fide purchasers for a valuable consideration as defendant No.1 has executed a registered sale deed in favour of defendant Nos.6 and 7 on -7- RSA No. 6268 of 2012 23.06.1995 and that the suit of the plaintiff is not maintainable.
8. The trial Court, based on the pleadings, framed the following issues:
1. Whether the plaintiff proves that, deft. No.1 has agreed to sell the suit land in favour of the plaintiff for a consideration of Rs.1,42,500/- and deft.No.1 has executed the sale agreement already in favour of the plaintiff on 31.3.1995?
2. Does he further prove that, he has parted with an earnest money of Rs.1,10,000/- in favour of deft.
No.1 and he was put in possession of the suit land on the very date of alleged date of agreement?
3. Does he further prove that, he is ever ready and willing to perform his part of the contract under the alleged agreement of sale dtd.31.3.1995?
4. Whether the deft.No.6 & 7 prove that, they have purchased suit land in their favour from deft.No.1 under the two separate registered sale deeds dtd.23.6.1995 and have come into actual possession of the suit land respectively under the said sale deeds?
5. Whether the said two registered sale deeds dtd.23.6.95 alleged to have been executed by D.1 in favour of deft.No.6 and 7 are materially altered and forged documents including the handing over -8- RSA No. 6268 of 2012 the possession of the concerned lands in favour of deft.No.6 and 7?
6. Whether the deft.No.1 proves that the letters written by him to the plaintiff and his brothers in connection with loan transaction of them with the plaintiff have been misused by the plaintiffs as contended in para 18 & 19 of W.S. of deft.No.1?
7. Whether the plaintiff is entitled for a decree of specific performance of contract in pursuance of agreement of sale dtd. 31.3.1995 from deft. No.1 and D.6 & 7?
8. Whether the plaintiff is entitled for a sum of Rs.10,000/- from deft.No.1 by way of damages for a breach of contract also?
9. Whether the plaintiff in the alternative is entitled for a refund of earnest money as prayed for in the event of the decree for specific performance cannot be granted to him?
10. Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?
9. The trial Court, on the basis of the pleadings, oral and documentary evidence, held that:
i) The plaintiff has proved that defendant No.1 has agreed to sell the suit schedule property in favour of the plaintiff for valuable consideration of Rs.1,42,500/- and -9- RSA No. 6268 of 2012 defendant No.1 has executed the sale agreement in favour of the plaintiff on 31.03.1995;
ii) The plaintiff has paid a sum of Rs.1,10,000/- in favour of defendant No.1 and the plaintiff is in possession of the suit land from the date of the agreement of sale;
iii) The plaintiff is ready and willing to perform his part of contract as per the agreement of sale dated 31.03.1995;
iv) Defendant Nos.6 and 7 have failed to prove that the suit schedule property is purchased from defendant No.1 under the registered sale deed dated 23.06.1995 and they are in possession of the suit schedule property;
v) The registered sale deeds dated 23.06.1995 executed by defendant No.1 in favour of defendant Nos.6 and 7 are materially altered and forged the documents including handing over of the possession in favour of defendant Nos.6 and 7;
10. Accordingly, the trial Court decreed the suit of the plaintiff directing defendant Nos.1, 6 and 7 to execute
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RSA No. 6268 of 2012the regular sale deed in favour of the plaintiff by paying remaining balance sale consideration to defendant No.1.
11. Aggrieved by the judgment and decree of the trial Court, defendant Nos.6 and 7 preferred first appeal before the first appellate Court.
12. The first appellate Court framed the following points for consideration:
1. Whether the appellants made out the ground to allow the application filed u/O.41 R.27 of CPC?
2. Whether the lower court has erred in answering issue Nos.1 to 3 as Affirmative and granting the relief of specific performance in favour of the plaintiff?
3. Whether the trial Court has erred in answering issue Nos.4, 6 as negative and issue No.5 in the Affirmative in coming to the conclusion that there is a correction in the sale deed regarding delivery of possession and plaintiff is entitled for the relief of specific performance in answering issue No.7 believing the agreement of sale deed dt.31.3.1995 executed by defendant No.1?
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RSA No. 6268 of 2012
13. The first Appellate Court, on re-appreciation of the material on record, oral and documentary evidence, dismissed the appeal filed by defendant Nos.6 and 7 and confirmed the judgment and decree of the Trial Court.
14. Aggrieved by the concurrent findings of the Courts below, the present appeal is by defendant Nos.6 and 7.
15. Learned counsel for appellants would vehemently contend that both the Courts have concurrently held that defendant Nos.1, 6 and 7 to execute the registered sale deed in favour of the plaintiff by receiving the balance sale consideration without taking note that the suit of the plaintiff is not maintainable without seeking for declaration for cancellation of the sale deed in favour of defendant Nos.6 and 7 by defendant No.1. Learned counsel would contend that the Courts below have held that defendant No.1 has executed an agreement of sale in favour of the plaintiff and received the earnest money, without considering the specific
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RSA No. 6268 of 2012contention of defendant No.1 that the agreement of sale sought to be executed by the plaintiff is obtained by fraud and the signature of defendant No.1 is forged and it is a collusive transaction by the plaintiff and his brother, this being so, the material placed by defendant No.1 to substantiate that the plaintiff has obtained the agreement of sale by fraud has not been considered by the Trial Court. Learned counsel would contend that defendant No.1 himself has admitted about the execution of the sale deeds in favour of defendant Nos.6 and 7 and defendant Nos.6 and 7 on proper verification has purchased the suit schedule property and are put in possession of the suit schedule property and they are bona fide purchasers for valuable consideration. Learned counsel would also contend that the rejection of the application filed by the appellants under Order LXI Rule 27 CPC by the first appellate Court is unsustainable as the documents sought to be brought were necessary for adjudication of the dispute between the parties and the substantial questions of law need to be answered in favour of the appellants
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RSA No. 6268 of 2012herein by allowing the appeal. To buttress his submission, learned counsel for the appellants relied upon the following judgments:
(a) Shakeeruddin Mohd. Zaheeraddin vs. Eknath Patil in RSA No.200068/2017 (Shakeeruddin Mohd.
Zaheeraddin) disposed of on 27.09.2021 to contend that the hardship faced by the defendant Nos.6 and 7 need to be considered as the defendant Nos.6 and 7 are cultivating the suit land as registered document is valid until it is set aside by the Court.
(b) Suhrid Singh alias Sardool Singh vs. Randhir Singh and others reported in (2010)12 SCC 112 (Suhrid Singh).
(c) Sukhwinder Singh vs. Jagroop Singh and others reported in 2020 SCC 4865 (Sukhwinder Singh) at para 11 and 12 - to contend that the present appellants are bona fide purchasers for valuable consideration since defendant No.1 has put them in possession of the suit schedule property.
(d) Sri H.M.Shivappa since deceased by his L.RS. vs. Sri Chandrappa reported in AKR 2023 VOL-1 364
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RSA No. 6268 of 2012
- on similar ground regarding maintainability of the suit without seeking for declaration,
(e) M. Ramappa vs. Lakshmamma and others, in RSA NO.5058/2011 disposed of on 16.12.2022 to contend that the suit of the plaintiff is not maintainable without seeking cancellation of the sale deed.
(f) Metropoli Overseas Limited vs. Sri H.S. Deekshit and others reported in 2022 (1) KCCR 13 to contend that defendant No.1 has no saleable interest since defendant Nos.6 and 7 are owners by way of registered instrument.
(g) Kaisur Rahiman @ Kaisar Rahiman vs The State of Karnataka Ron Police reported in 2022 (1) KCCR
51.
16. Learned counsel for appellants during the course of his argument in the alternate sought to contend that the appellants are ready to refund the earnest money with reasonable interest and compensation with litigation cost to the plaintiff as an alternative relief.
17. Per contra, learned counsel for the respondents would justify the judgment and decree of the trial Court
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RSA No. 6268 of 2012and the first appellate Court and would contend that defendant Nos.6 and 7 being the subsequent purchasers would join in the conveyance so as to pass on the title along with defendant No.1 for execution of the sale deed and the prayer for declaration to be sought by the plaintiff as contended by the learned counsel for the appellants would not be essential as in a suit for specific performance of contract between the vendor and the plaintiff, it would suffice if there is a prayer to direct the subsequent transferee to join the vendor and pass on the title which vests in him to the plaintiff when admittedly the agreement of sale in favour of the plaintiff was prior to the execution of the registered sale deed in favour of defendant Nos.6 and 7. Learned counsel for respondents would further submit that in a suit for specific performance, once execution of agreement of sale and payment of sale consideration is admitted by the vendor, nothing is required to be proved by the vendee and sought to rely upon the judgment of the Hon'ble Apex Court in the case of Durga Prasad & another vs. Deep Chand &
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RSA No. 6268 of 2012others1 to contend that the declaration regarding the sale deed would not be necessary in a suit for specific performance and the defence available to the subsequent purchasers defendant Nos.6 and 7 is only to prove that they are bona fide purchasers for valuable consideration without notice. He relied upon the judgment of the Hon'ble Apex Court in the case of MMS Investments, Madurai and others vs. V. Veerappan and others2, to contend that the only question to be adjudicated by the appellants herein is that, whether the subsequent purchaser is a bona fide purchaser for a valuable consideration?
18. Learned counsel would contend that Exs.P.41 and 42 are the documents, which establish that the defendant Nos.6 and 7 are not bona fide purchasers for valuable consideration and in addition, also contended that plaintiff had issued notice to defendant No.1 on 1 1954 AIR SC 75 2 2007 (3) KCCR 1905
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RSA No. 6268 of 201221.06.1995 and the plaintiff also filed objections before the Sub-Registrar not to register the sale deed as an agreement of sale has been executed in favour of the plaintiff and relied on Ex.P.5(a)-endorsement by the Sub- Registrar acknowledging the objections (Ex.P-5) of the plaintiff and thus, would contend that the right of the plaintiff by way of agreement of sale was well within the knowledge of defendant Nos.6 and 7 as on the date of the alleged execution of the sale deed dated 23.06.1995, and as such, defendant Nos.6 and 7 cannot contend that they are bona fide purchasers for valuable consideration without notice. The plea of bona fide purchaser by defendant Nos.6 and 7 is not established by leading any rebuttal evidence and the Courts below were justified in decreeing the suit of the plaintiff and would contend that the substantial question of law needs to be answered against the appellant and sought to dismiss the appeal.
19. This Court has carefully considered the rival contentions urged by the learned counsel for the parties
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RSA No. 6268 of 2012on the substantial question of law and perused the material on record.
20. The dispute arose in light of the subsequent sale deed executed by the defendant No.1 in favour of defendant Nos.6 and 7. The material on record reveals that the agreement of sale in favour of the plaintiff was executed on 31.03.1995, the contest of the defendants more particularly, defendant No.1 was that the agreement of sale was obtained by fraud. Other than merely stating that the signature of defendant No.1 was forged, no oral or documentary evidence is placed on record by the defendant regarding the said aspect nor defendant No.1 has entered into the witness box to prove his contention regarding the fraud played by the plaintiff in creating the agreement of sale. The person who denies his signature on a document has to prove by leading corroborative evidence to the effect as to how the fraud has been played and in the absence of any material the trial Court and the first Appellate Court have rightly held that defendant No.1
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RSA No. 6268 of 2012had entered into an agreement of sale in favour of the plaintiff. The Courts below placing reliance on Exs.P.2, 4, 5, 8, 41 to 44 and Ex.D.143-agreement of sale purported to have been executed in favour of defendant Nos.6 and 7 prior to the registration of the sale deed has come to the conclusion that the plaintiff has proved the execution of the agreement of sale by defendant No.1 in favour of the plaintiff and by which, the plaintiff is in possession of the suit schedule property from the date of agreement of sale.
21. The contention of defendant Nos.6 and 7 is that they are bona fide purchasers for a valuable consideration without notice. The material on record speaks that the plaintiff had issued a notice to defendant No.1 prior to the execution of the alleged sale deed dated 23.06.1995 in favour of defendant Nos.6 and 7 and the objections were filed before the Sub-Registrar and an acknowledgement as per Ex.P.5 which establish that the subsequent purchasers were put to notice about the agreement of sale in favour
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RSA No. 6268 of 2012of the plaintiff and defendant Nos.6 and 7 cannot contend that they are bona fide purchasers.
22. The Hon'ble Apex Court in the case of R.K.Mohammed Ubaidullah and others Vs. C. Abdul Wahab by his legal representatives3, at para 13 and 19 has held as under:
"13. In paragraph 6 of the written statement defendants 2 to 4 stated that they had purchased the property only after contacting the plaintiff; they sought the permission of the plaintiff to inspect the suit godown informing him of their intention to purchase the same from the first defendant. The trial Court did not accept this contention and rightly so in our opinion. In the ordinary course a reasonable prudent person placed in the position of the plaintiff would not have failed to mention about the existence of the prior agreement in his favour particularly when he is using the very same godown as a tenant under the first defendant for the last 20 years prior to the filing of the suit. Similarly the defendants 2 to 4 intending to purchase the property in possession of a tenant would not have failed to make inquiry as to 3 AIR 2000 SCC 1658,
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any further interest in relation to possession or title of the plaintiff over the suit property. It is not uncommon that where a tenant is in possession of the property, that too for a long time, using it for business purpose would always like to purchase the property getting all advantages if offered for sale. Normally the landlord or owner of the property would also be interested in selling the property to a person in possession If a reasonable price is given to avoid litigation and to have smooth transaction. In certain statutes even provisions are made to give first option to a tenant to purchase the property. In such situation the defendants 2 to 4 would have made inquiry with the plaintiff about the nature of his possession and title under which he is in possession on the date of sale deed (Exhibit B-1) executed in their favour. If they had made Inquiry plaintiff would have certainly revealed about Exhibit A-3 the prior agreement in his favour. If such inquiry was not made it only means that the defendants 2 to 5 willfully abstained from making such inquiry or they grossly neglected to do so. The defence of defendants 2 and 4 is not consistent with regard to contacting the plaintiff and informing of their intention to purchase the property. Once they took a stand that they directly contacted the plaintiff seeking his permission to inspect the suit property and in the evidence of DW-1 it is stated that they
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sent their clerk to the plaintiff seeking per- mission to inspect the suit property. Neither the name of that clerk was given nor he was examined nor it is stated about the same in the written statement.
xxx xxx xxx
19. In view of what is stated above, it is clear that the defendants 2 to 5 were not bona fide purchasers for value without prior notice of the original contract and that they were required to make inquiry as to the nature of possession or title or further interest if any of the plaintiff over the suit property at the time! when they entered into sale transaction notwithstanding they were already aware that the plaintiff was in possession of the property as the tenant. What is material is the inquiry at the time when subsequent sale transaction was entered into."
23. The Hon'ble Apex Court has held that in the ordinary course, a reasonable prudent person placed in the position of the plaintiff would not have failed to mention about the existence of the prior agreement in his favour particularly, when he is using the very same godown. However, when a reference was to subsequent purchaser, it is essential that he should make an enquiry as to the title of the interest of the person in actual possession as
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RSA No. 6268 of 2012on the date when the sale transaction is made in his favour. The actual possession of the person itself is deemed or constructive notice of title of any person who is for the time being in actual possession thereof. The subsequent purchaser has to make enquiry as to the nature of possession and title under which the person was continuing in possession on the date of the purchase of the property. The material on record would reveal that the plaintiff has filed his objections before the Sub-Registrar and the defendant Nos.6 and 7 were very well aware about the rights that have been created by defendant No.1 in favour of the plaintiff and as such, defendant Nos.6 and 7 cannot contend that they are the bona fide purchasers for valuable consideration without notice.
24. The other line of the argument of the learned counsel for the appellant is that the suit of the plaintiff is not maintainable without seeking for declaration for cancellation of the sale deeds in favour of defendant Nos.6 and 7 and placing reliance on the judgment of the Hon'ble
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RSA No. 6268 of 2012Apex Court in the cases of Suhrid Singh, Sukwinder Singh and the Co-Ordinate Bench of this Court in the cases of H.M. Shivappa, Ramappa and Shakeeruddin stated supra were the cases where the suit was for declaration of title or for partition and separate possession among the coparceners. The Hon'ble Apex Court has held that "where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of the deed, he has to seek declaration that the deed is invalid, or nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A Executes a sale deed in favour of C. Subsequently, A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence
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RSA No. 6268 of 2012both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem Court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of `19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."
25. This Court absolutely has no quarrel about the proposition of law that an executant needs to seek for cancellation of deed and non-executant needs to seek for declaration that it is not binding on him and the deeds do not bind the coparcenery and for the joint possession. The
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RSA No. 6268 of 2012present case is a suit for specific performance of contract directing the defendant No.1 - the vendor and defendant Nos.6 and 7 - subsequent purchasers to come forward to execute the sale deed. In a suit for specific performance, the plaintiff need not seek for declaration for cancellation of the sale deed as the proper form of decree is to direct specific performance of contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff and placing reliance on the judgment of the Hon'ble Apex Court in the case of Durga Prasad stated supra, wherein it is held that the suit for specific performance by the prior transferee in case it succeeds, the question arises as to the proper form of decree in such case and the practice of the Courts in India has not been uniform and is in three distinct lines of thought emerge. According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone. Second, considers both vendor and vendee
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RSA No. 6268 of 2012should join and the third would limit execution of the conveyance to the subsequent purchaser. The Hon'ble Apex Court in the said judgment held that, the proper form of decree is to direct the specific performance of contract between the vendor and prior transferee and accordingly directed the subsequent transferee to join in the conveyance so as to pass on the title, which resides in him to the plaintiff. The Hon'ble Apex Court in the case of Durga Prasad stated supra, has held as under:
"In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin (I), and appears to be the English practice. See Fry on Specific Performance, 6th edition, page 90, Paragraph 207 ; also Potter v. Sanders( 2 ). We direct accordingly. That brings us to the question of the Rs. 62,000. We do not think it would be right to lay down that in
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every case the balance of the purchase money should be paid to the subsequent transferee up to the extent of the consideration paid by him. There may be equities between the vendor and the subsequent transferee which would make that improper, so, unless they fight the question out as between themselves and it is decided as an issue in the case, the normal rule should be to require that the money be paid to the vendor. But the circumstances here are peculiar. The parties before us were prepared to compromise, and had the Nawab been here it is more than probable that he would have been glad to agree so as to avoid further litigation. But he is in Pakistan and is."
26. The trial Court and the first appellate Court taking note that defendant No.1 has already executed the registered sale deed in favour defendant Nos.6 and 7 and in light of the judgment in the case of Lala Durga Prasad stated supra, directed defendant Nos.6 and 7 to join together with defendant No.1 and execute the sale deed in favour of the plaintiff-respondent No.1 herein. The contention of the learned counsel for the appellants that the suit of the plaintiff is not maintainable without seeking
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RSA No. 6268 of 2012for declaration is not sustainable, in light of the judgment of the Hon'ble Apex Court in the case of Lala Durga Prasad and subsequent judgment of the Hon'ble Apex Court in the case of P.Ramasubbamma stated supra, wherein the Hon'ble Apex Court placing reliance on Lala Durga Prasad's case and the relevant para No.5.6 has held as under:
"5.6 In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under:
"42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [AIR 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th
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Edn., p. 90, para 207;also Potter v. Sanders [67 ER 1057]. We direct accordingly.
"The aforesaid decision has been subsequently referred to and followed by this Court in the subsequent decision in the case of Rathnavathi & Anr. (supra)."
27. The judgments relied upon by learned counsel for the appellants to contend that the plaintiff has to seek for annulment of deed or for declaration that the deed is invalid is not applicable to the present facts and circumstances of the case as stated supra in light of the judgment of the Hon'ble Apex Court in the case of Lala Durga Prasad, wherein, the Hon'ble Apex Court has cleared the proposition that if at all there is a subsequent purchaser, the only proper form for the plaintiff is to ask the subsequent purchaser to join along with the vendor to execute the sale deed in his favour.
28. The judgments relied by the learned counsel for the appellants passed by the Coordinate Bench of this Court is not applicable to the present facts and
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RSA No. 6268 of 2012circumstances of the case as the judgments relied is insofar as declaration sought by the parties and not in the case wherein the suit specific performance has been sought. In the present case, the plaintiff has sought for specific performance and the contention raised by the defendant Nos.6 and 7 that the suit is not maintainable without the declaration is not justifiable. Accordingly, the substantial question of law framed by this Court on 21.04.2014 and additional substantial question of law framed by this Court during the course of argument need to be answered against the appellants herein. Consequently, this Court pass the following :
ORDER
(i) The second appeal filed by defendant Nos.6 and 7 is hereby dismissed.
(ii) The impugned judgment and decree dated 10.10.2012 passed in R.A.No.41.2012 on the file of the District Judge Haveri, confirming the judgment and decree dated 24.04.2009 passed in
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O.S.No.49/1995 on the file of the Senior Civil Judge, Haveri, is hereby confirmed.
(iii) No order as to costs.
(Sd/-) JUDGE NAA,AC List No.: 1 Sl No.: 57