Karnataka High Court
Gururaj S/O Babu Rao Kulkarni Malipatil vs Somshekar on 23 January, 2012
Author: N.Kumar
Bench: N.Kumar
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
Dated this the 23rd day of January 2012
B EFORE
THE HON'BLE MR.JUSTICE N.KUMAR
R.F.A. No.1153 of 2005
BETWEEN:
1) Gururaj S/o Babu Rao. Kulkarni Malipatil
Age: 34 years. 0cc: Agriculture.
R/o Lalgiri. Brahampur.
Gulbarga-585 101.
2) Bhimashankar S/o Shivashankar Path
Age: 54 years.
R/ o Had1QpL Tliiu
Dist: Gulbarga-585101.
Represented by GPA Holder Sri Shanlappa
Sb Sangshettappa.
Appellants
(By Sri:Veeresh B Patil. Adv.)
AND:
Somshekar S/o Dhulappa Siroor
Age: 49 vear. 0cc: Agri,
R/o Had noor Tq: Chittapur.
Dist: Gulbarga 585101.
(By Sri: S.S. Sajjanshetty & Shivaleela S.S. Adv for C/R-1)
This RFA is filed under Section 96 of CPC praying to
against the judgment and decree daicd 1 7-O62OO5 passed in
O.S.No.29/04 on the tile of the civil judge (Sr.Dn), Sedam,
partly decreeing the suit for specific pcrlhrrnarice of contract,
cancellation of sale deed and for permanent injunction.
This RFA coming on for Hearing, the Court delivered the
following:
JUDGMENT
This is defendants' appeal against the judgment and decree passed by the trial Court setting aside the alienation made by the first defendant in favour of the second defendant and also directing the defendants to exectitc the sale deed in favour of the plaintiff.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The subject matter of the suit is land hearing Sv.No.55/Aa measuring 4 acres 20 guntas situated at Hadnoor Village. Chinapur Taluk. Gulbarga District, which is morefully described in paragraph 3 of the plaint, which is hereinafter referred to as the 'Schedule property.
4. The case of the plaintiff is that the lIrst defendant was the owner of the land bearing Sy.No.55/Aa measuring 6 acres 20 guntas situated at Hadnoor village. Chfltapur Taluk, Gulbarga District. Out of the said extent of land the first defendant sold 2 acres to one Veerabhadrappa S/o Dhulalppa Siroor. who is none other than the brother of the plaintiff lbr a consideration of Rs.44,000-00 on 12.07.2001. which is duly notarized. The remaining extent of 4 acres 20 guntas was agreed to be sold to the plaintiff for a consideration of Rs.1.22.000-00 on 01.12.2002 and the said agreement was reduced into writing. On the same day, the said amount of Rs, 1 .22.00000 was paid in the presence of one Gopal. Revnasiddavva and Veeravva. which is also been duly notarized. The possession of the land was delivered by the first defendant to the plaintiff on the same day. The plaintiff has been S 'I 4 personally cultivating the suit land from 01.12.2002. The first defendant has passed a separate receipt for having received a sum of Rs. 1.22.000-00 from the plaintiff which is duly attested by the aforesaid three witnesses. It is also notarized. The first defendant Is also the owner of land bearing Sy.No.56. measuring 12 acres 1 gunta. situated at the very same village. The said land was also put in possession of the plaintiff on the venj same day for joint cultivation on a condition that in case the sale deed is executed by the first defendant in respect of the suit land before 02.12.2003. the possession of land bearing Sy.No.56. measuring 12 acres 1 gunta should be re-delivered by the plaintiff to the first defendant. The plaintiff shall remain in possession of that land and the suit land till the execution of the registered sale deed by the first defendant In terms of the agreement dated 01.12.2002.
5. The first defendant deilberately arid intentionally has violated the tenns of the agreement dated 01.12.2002. He has not repaid to the plaintiff, the sum of Rs. 1.22.000-00 before 1-
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02.12.2003. Vithout notice and without gMng any information to the plaintiff, the first defendant has sold the suit land to the second defendant on 13111 day of May 2003 for a consideration of Rs. 1,10,000-00 said to be in the pursuance of an undated agreement of sale. In that sale deed. there has been non-compliance of provisions contained in Section 59 of the Registration Act. 1908. Therefore that sale deed is void and does not confer any right upon the second defrndant. In view of Section 33 of the Specific Relief Act. 1963. it is wholly unnecessary to seek the cancellation of the sale deed dated 13111 May 2003 between the defendants. The alleged sale deed Is created and got up document without payment of consideration amount and without delivery of possession with a view to cause loss to the plaintiff and to dispossess the plaintiff from the suit land and from the land bearing Sy.No.56 measunng 12 acres 1 gunta situated at Hadnur Village. The plaintiff has been in lawful possession and enjoyment of the stilt land sincc December 2002 In pursuance ol the agreement deed executed 1w the first defendant.
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6. On 17.02.2004 the second defendant came to the suit land and attempted to take forcible possession of the suit land. but failed In his attempt. The second defendant pretended as having purchased the suit land from the first defendant. Immediately the plaintiff approached the first defendant and requested him to advise the second defendant not to cause obstruction Into his possession over the suit land and take steps to cancel the sale deed dated 1311) May 2003 In the name of the second defendant and to execute the registered sale deed In his favour, In pursuance of the aforesaid agreement of sale. The first defendant denied the very execution of the agreement of sale. The second deièndant has no right or any interest In the suit land. The plaintIff has right to remain in possession of the land till the first respondent executes registered sale deed In his favour. Therefore he filed a suit for specific performance of the agreement of sale and for a decree for permanent Injunction.
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7. After service of notice, the defendants filed written statement They denied that they are the absolute owners of the suit schedule property. They denied the execution of the suit agreement in favour of the plaintiff. They denied the receipt of consideration of Rs. 1,22,000-00 under the suit agreement. They denied acknowledgment of the receipt in the presence of the witnesses. They denied that the suit agreement and the receipt were notarized. They denied that they delivered vacant possession of the schedule property to the plaintiff on 01.12.2002. The also denied delivery of possession of land bearing Sy.No.56 measuring 12 acres 1 gunta on the very same day. The terms mentioned in the agreements are all created for the purpose of this case with malafide intention. No foolish or lay man can entrust or enter such conditions in respect of immovable property with strangers. The entire transaction pleaded by the plaintiff is Imaginary and It has no meaning in the eye of law. The plaintiff is not in possession of any land. The question of first defendant repaying Rs. 1.22,000-00 before 02.12.2003 does not arise. The allegation that there Is non 1' S compliance of provisions of Section 59 of the Registration Act while executing the sale deed dated 13.05.2003 in favour of second defendant Is false. The allegation that said sale deed is created and got up document is false. The case of attempt of forcible dispossession is imaginary and false. In substance. each and every allegation in the plaint is denied by the defendants. Therefore they sought for dismissal of the suit.
8. On the aforesaid pleadings, the trial Court framed the following Issues:
1. Whether defendant no. I has agreed to sell the suit property to plaintiff for consideration of Rs. 1.22.000/- by agreement dated 1-12-2002 and executed an agreement deed after receiving entire consideration amount from plaintiff and delivered possession of suit property to plaintiff on same day?
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2. Whether plaintiff proves that 1st defendant has executed a receipt in favour of plaintiff for having received Rs.1,22.000/- on 1- 12-2002?
3. Whether plaintiff proves that 1t defendant has delivered possession of Sy.No.56 to plaintiff on 1-12-2002. With a condition that in case sale deed of suit land is executed by defendant no.1 to plaintiff then plaintiff has to redeliver possession of Sy.no.56 to defendant no.1?
4. Whether plaintiff proves that, without information and notice to plaIntiff, l' defendant has sold suit land to 211d defendant by violating terms of agreement dated 1-12-2002?
5. Whether plaintiff proves that, sale decd of suit land executed by 1t defendant in favour of 211d defendant is null and void?
6. Whether plaintiff proves that, he is always ready and willing to take registered sale deed of suit land, and as such, he requested to defendant no.1 for execution of sale deed, but defendant no.1 denied it on 18-2-2007?
7. Whether defendants are attempting to dispossess the plaintiff from suit property and Sy.No.56/Aa? 10
8. To what order or decree?
9. The plaintiff in order to substantiate his case. examined himself as P.W- 1. He examined 3 witnesses who had attested both the agreement of sale and the receipt. He also examined his brother Veerabhadrappa as Ex.P-5 and produced 24 documents, which are marked as Exs.P- 1 to P-24. On behalf of defendants, no witness was examined and no documents were produced.
10. On the aforesaid pleadings and the evidence on record, the trial Court held that the plaintiff has proved that the first defendant agreed to sell the suit schedule property to the plaintiff for a consideration of Rs. 1.22,000-00 under agreement dated 01.12.2002 after receiving the entire sale consideration. It also held that on the date of the agreement of sale, the first defendant delivered the possession of suit schedule property to the plaintiff. The plaintiff also proved that on receipt of Rs. 1.22,000-00 In cash. the first defendant executed the receipt II on the very same day in the presence of three witnesses who had attested the sale deed. The Court below also held that the plaintiff has proved that till the sale deed is executed the first defendant handed over possession of land bearing Sy.No.56 to the plaintiff. It held that the second defendant is not a bonafide purchaser for valuable consideration and therefore the sale deed executed in his favour IA void. It also held that the plaintiff was always ready and willing to take the registered sale deed even though the words readiness and willingness Is not mentioned hi the plaint A reading of the entire plaint makes It clear that he was ready and willing to perform his part of the contract. It also held that there was an attempt to dispossess the plaintiff from the suit schedule property. Therefore, it granted a decree as prayed for, directed cancellation of the sale deed executed by the first defendant in favour of the second defendant and also directed the defendants to execute a registered sale deed In favour of the plaintiff in respect of the suit schedule property.
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11. AggrIeved by the said judgment and decree, the defendants have preferred this appeal.
12. The learned Counsel for the appellants at the time of hearing produced an applicatIon under Order 41 Rule 27 of CPC seeking permission of the Court to produce the agreement of sale entered Into between the plaintiff and the lint defendant as well as the sale deed executed by the first defendant In favour of the second defendant.
13. The learned Counsel for the appellant contended that in the first place, the judgment and decree of the trial Court Is liable to be set aside on the ground of not giving opportunity to the defendants to contest the suit to lead evidence. Secondly he contended that In the entire plaint there Is no averment that the plaintiff was ready and willing to perform his part of the contract. In the absence of which. the decree for specific performance could not have been decreed. Thirdly. it was contended that a careful reading of the plaint e 13 discloses that the relationship between the plaintiff and the first defendant was that of a creditor and debtor and therefore a suit for specific performance could not have been decreed. Lastly it was contended that there was an agreement between the plaintiff and the first defendant much prior to the suit agreement and the first defendant has sold the schedule property to the second defendant in the pursuance of the agreement for a sum of Rs.4,02,000-OO. Therefore, the said sale Is a bonafide one for valuable consideration and therefore the trial Court committed serious en-or in cancelling the said sale deed and decreeing the suit for specific performance.
14. Per contra, the learned Counsel appearing for the respondent-plaintiff submitted that the case of the defendants is of total denial. Once the plaintiff has proved that the first defendant has executed agreement of sale and received a sum of Rs. I .22.000-00 under the agreement. then the plaintiff Is entitled to a decree for specific performance as held by the trial '7- I V I, 14 Court. Therefore, he submits that no case for Interference Is made out.
15. In the light of the aforesaid facts and rival contentions, the points that arise for consideration In this appeal are as under:
1* (1) Whether the suit agreement E.tP-1 is proved?
(2) Whether the plaintiff is entitled to a decreefor specific peformance?
(3) Whether the second dqfendani is the bonafide purchaser qf the schedule property Jor a valuable consideration uithout notice of the agreement of sale?
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POINT NO.1 akd Z
16. The suit is one for specific performance of agreement of sale dated 01.12.2002. The material on record discloses that the plaintiff is not a stranger to the first defendant. The plaintiff is a tenant under the first defendant who was cultivating the land, which is the subject matter of the suit. The case of the plaintiff is that first defendant agreed to sell the suit land to him for a consideration of Rs. 1,22,000-00 on 01.12.2002. The entire sale consideration was paid under the agreement on the very same day. In addition to the agreement of sale, the first defendant has also acknowledged the receipt of Rs.1,22.000-00 under a separate receipt which is also attested by the very same witnesses who attested the agreement of sale. The defendant has denied this agreement of sale. However he has not denied that the signature found on the said agreement or on the receipt, is not his signature. In fact. he did not step Into the witness box and deny the signature. The case of the plaintiff Is that both the agreement Iv I S. 16 of sale and the receipt were notarized and have been duly executed before the Notary. All the three witnesses, who have attested the agreement of sale and the receipt, are examined as P.Ws-2, 3 and 4. All of them have deposed that the first defendant executed the agreement of sale, acknowledged the receipt of consideration of Rs. 1,22,000-00 and that they attested both the agreement of sale and the receipt. as witnesses. Extensive cross examination has been done of these witnesses. As rightly held by the trial Court, nothing is elicited to disbelieve the evidence of these witnesses. The evidence on record shows that the total extent of Sy.No.55/Aa measuring 6 acres 20 guntas. Prior to entering into the agreement of sale with the plaintiff, the first defendant sold 2 acres of land under a registered sale deed dated 12.07.200 1 in favour of Veerabhadrappa. the brother of the plaintiff, for a consideration of Rs.44,000-00 which is marked as Ex.P-4. ft is thereafter the first defendant has sold under a registered sale deed dated 13.05.2003. Ex.P-3. the schedule property in favour of the second defendant for a consideration of Rs. 1,10,000-00. The .1 4 * 17 agreement of sale, i.e.. the suit agreement. the receipt, the sale deed executed by the first defendant in favour of the second defendant Ex.P-3, the sale deed executed by the first defendant in favour of Veerabharappa. Ex.P-4, a bare comparision of these sale deeds show that the signature of the first. defendant found In these documents is one and the same. That is probably the reason why the first defendant did not step into the witness box. He did not deny the signature on the suit agreement as well as the receipt The argument is that he was not given sufficient opportunity to adduce evidence. The material on record shows that on an interlocutarv matter, the matter went up to the High Court. The High Court while disposing off the Miscellaneous First Appeal directed the trial Court to dispose of the suit within six months by taking up the case on day-to-day basis. When an attempt Is made to take up the case on day-to day basis, the order sheet discloses the obstructions which are put by the defendants In completing the trial. When the plaintiff examIned 5 witnesses, they were not cross examined on the day they were examined in chief nor subsequently. The 18 defendants and their Counsel remained absent when witnesses were discharged. Applications were ified for recalling. The plaintiffs side had no objection. Witnesses were recalled and it is thereafter those witnesses have been completely examined.
When the case was posted for adducing evidence, neither their Counsel nor they were present. After giving sufficient opportunity the defendant's side was closed. No application is filed to recall and permit them to adduce evidence. When the case was posted for arguments. their Counsel sought for adjournment without any justification. Thereafter. the trial Court proceeded to hear the plaintiff and disposed of the suit on merits. Having disobeyed the order passed by the High Court in not co-operating with the trial Court in going on with the matter on day-to-day basis and not availing the opportunity given to them to adduce evidence, it is not open to the appellants before this Court to contend that they had no opportunity. The submission is contrary to the state of affairs as reflected in the ordersheet of the trial Court.
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17. In the light of what Is discussed above, It Is obvious that the first defendant was afraid to enter the witness box as he has not denied his signature. He being an educated man, probably knowing the consequences, he was afraid of entering the witness box. More over, It was a blanket denial. It Is for the plaintiff to prove his case and take a decree, the defendant need not putforth his defence at all. In those circumstances, he cannot say that the judgment and decree passed by the trial Court is vitiated for not giving them an opportunity. On the contrary. the oral and documentary evidence on record clearly shows that the case of the plaintiff that the first defendant executed the suit agreement on 01. 12.2002 agreeing to sell the suit schedule property to the plaintiff for a consideration of Rs. 1,22,000-00. He received the entire sale consideration under the agreement. which Is also evidenced by a three attestIng witnesses, who are examined In this case as P.Ws-2, 3 and 4. As the entire consideration was paid under the agreement and time stipulated to complete the transaction Is one year and It was In that one year the first defendant sold the 4 I 20 property to the second defendant, nothing more remains to be done for the plaintiff, except to file a suit even without Issuing a notice. That is precisely what has been done. As held by the Courts, It is not the repetition of the words, 'readiness and willingnes& which would comply with the statutory requirement under Section 16(c) of the Specific Relief Act 1963. a reading of the plaint should disclose that the plaintiff is ready and willing to perfonn his part of the contract. In this case, a reading of the entire plaint clearly demonstrates that as the plaintiff had paid the entire sale consideration under the agreement of sale on the date of the agreement and before expiry of the period for completion of the sale, the first defendant committed breach and executed sale deed in favour of the second defendant the readiness and willingness of the plaintiff is to be demonstrated by filing a suit without even issuing a notice. which the plaintiff has done. Therefore, the finding recorded by the trial Court all these Issues are legal and valid, based on legal evidence and do not suffer from any infirmity.
C 21 POINT NO.2
18. The argument is that the second defendant is a bonafide purchaser of the schedule property for a valuable consideration under agreement of sale. in the first place. there Is no such specific plea In the written statement. The second defendant did not enter the witness box. Now for the first time In appeal. an application Is filed for production of additional documents. Two documents were produced along with the said application. One Is the agreement said to have been entered with the second defendant on 20th November 2002 and second Is the sale deed executed by the first defendant In favour of the second defendant. In fact, the plaintiff himself has produced the sale deed executed by the first defendant In favour of the second defendant. Now what requires to be taken on record is only the agreement of sale. This agreement of sale shows that the first defendant executed agreement of sale to sell not only the schedule property but also land bearing Sy.No.55/Aa measuring 12 acres 1 gunta for a total consideration of Rs.4,02,000-00. However, no sale deed is executed In respect of I. 'I 22 Sy.No.56/Aa till today. The sale deed is executed only in respect of the schedule property on 13th May 2003 for a sum of Rs.1,l0.000-00. This clearly demonstrates the consideration agreed to be paid under the suit agreement is Rs. 1,22.000-00 whereas, the consideration paid under the sale deed Ex.P-3 is hardly Rs. 1.10.00-0-00. In the entire agreement of sale which Is produced, the total consideration agreed upon is Rs.4,02,000/- and no separate consideration is mentioned for the 2 bits of land. If really this agreement of sale dated 20.11.2002 was in existence then the first defendant in contravention of the said agreement entered into an agreement with the plaintiff to sell the property for a sum of Rs. 1,22,000/-. The recitals in the said agreement of sale shows the sum of Rs.4,02,000/- was received under the agreement of sale not on the date of the agreement of sale but much prior to that and separate receipts acknowledging the said amount is said to have been executed by the first defendant in favour of the second S I' S 23 defendant. Those receipts are not produced before the Court Under the agreement of sale itself. the possession is said to have been delivered by the first defendant in respect of both the lands to the second defendant. No period was stipulated for completing the execution of the sale deed. In the sale deed executed on 13.5.2003 there is no reference to this agreement at all. Therefore, similarly under the aforesaid sale deed possession is not delivered. It is averred It is already delivered. When the defendants totally denied the execution of the sale. this plea that the second defendant is a bona fide purchaser for valuable consideration without notice of this agreement would not stand. It is relevant to point that both the defendants have filed a common written statement. They are represented by a common counsel. Cross-examination is done on behalf of both of them. This speaks of the collusion and that takes away any merit in the said contention. It is .1 24 admitted by the defendants that the plaintiff was a tenant of the land in question. Therefore. it was the plaintiff who was In possession of the property throughout. The recitals in the agreement of sale shows the fIrst defendant wanted money. Plaintiff paid him Rs. 1,22,000/-. Assuming it is a loan transaction, as a further security for the due payment of the land, the other bit of land was given possession to the plaintiff on the date of the agreement of sale. Only if the first defendant repaid the money within a period of one year. then the plaintiff has to re-deliver possession of the property and the agreement will have no value. It is nobody's case that the first defendant either repaid the money or offered to repay the money. It is clearly set out in the agreement if he fails to repay the amount, he has to execute the sale deed within one year. Till money is paid and the sale deed is executed, the plaintiff was entitled to the possession of the other bit of land. It is not a case 1- a •1 • 25 where a money lender is taldng advantage of a hapless agriculturist and has persuaded him to enter into an agreement. It Is the other way round. The tenant has paid the money. He Is willing to surrender the property and take back the money If It Is paid within one year. It Is also clearly averred that if money Is not paid, the owner has to execute the sale deed. Therefore, this conduct of the first defendant disentitles him to request the Court to exercise the discretion In his favour as the relief of specific performance being a discretionary relief. On the contrary. the stand of the plaintiff Is consistent throughout. Here Is a case where a tenant Is In possession, enters into an agreement of sale, pays the entire sale consideration on the date of the agreement. was willing to give up the property provided his monies are paid and instead of keeping that word the first defendant has sold the property to the second defendant, created the documents which he wants 4 26 the Court to believe and try to defeat the just rights of the plaintiff. Application filed for additional evidence is allowed. It is taken note of and it clearly shows the collusion between defendants 1 and 2. Under these circumstances, the defendants have failed to establish their case and the trial Court was justified in decreeing the suit of the plaintiff.
19. As the first defendant has sold the property to the second defendant, question of his invoking Section 20 of the Specific Relief Act or the Court exercising its discretion in his favour would not arise, Further, it is submitted, now the said land is notified for acquisition. Possession is already taken in which event the owner of the land would be entitled to compensation. The question of consideration whether it is a case fit for exercise of discretion to grant specific performance also would not arise. In that view of the matter, seen from any angle. I do not see any merit in this appeal. Accordingly, the appeal is devoid of merits. Hence, it is dismissed.
20. In view of the main appeal being disposed of, the other applications filed do not survive for consideration, Accordingly, they are ordered to be filed.
Sd! JUDGE ksp/