Bangalore District Court
Sri. K.Venkatesh vs Smt.Gangamma on 2 March, 2017
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 2nd day of March 2017.
PRESENT: Smt. M.LATHA KUMARI, MA, LLM.,
XI Addl.City Civil Judge, B'lore city.
O.S.No.4610/2000
C.C.H.8
Plaintiff/s: Sri. K.Venkatesh
Aged about 37 years
S/o. Sri.Kenchappa
No.706,
12th Cross, ,
7th Block,
West Jayanagar,
Bangalore 560082
(By Sri.BNJ advocate)
Vs.
Defendant/s: 1. Smt.Gangamma
Aged about 52 years
W/O late Srikantaiah
At No.18, ITI Colony
31st Main road, 9th Cross,
I Phase,J.P.Nagar
Bangalore-5600078.
2. Sri.K.S.Nagesh Babu @ Babu
Aged about 30 years
W/o late Srikanthaiah
At No.18, ITI Colony
31st Main road,
9th Cross, I Phase,
J.P.Nagar
Bangalore-5600078.
2 OS. No.4610/2000
3. Sri. J.Lakshminarayana
Major
S/o Chennarayudua
No.20/23, 18th Cross,
"A" Main, J.P.Nagar, II Phase
Bangalore-560078.
(By Sri.BR Advocate for D1,2
Sri.VV advocate for D3 )
Date of the institution of suit: 5-7-2000
Nature of the suit: Specific performance
Date of the commencement of 28.06.2001
recording of the evidence :
Date on which the judgment 2-3-2017
was pronounced :
Total duration: Year/s Month/s Day/s
16 07 27
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is plaintiff's suit initially for relief of specific performance of agreement to sell dated 19.1.2000, against defendants in respect of land and building with the site measuring east to west 50 ft., and north to south 30 ft., 3 OS. No.4610/2000 consisting of 4 shops at premises No.18, 9th cross, ITI Layout, Sarakki, 1st Phase, J.P.Nagar, Bengaluru-78 hereinafter referred to as suit schedule property. Later plaintiff got amended the plaint and also prayer column sought declaratory relief to declare that the sale deed executed by defendant No.1 and 2 in favour of 3rd defendant on 30.6.2000 in respect of suit schedule property is concerned, is not binding on plaintiff's rights.
2. Brief facts of the plaintiffs case is that, defendant No.1 and 2 are absolute owners of suit schedule property having succeeded to the same upon the death of Srikantaih, husband of 1st defendant and father of 2nd defendant. It is plaintiff's further case that the said Srikantaih died leaving behind defendants and two other daughters and another son, in all 5 persons. These 5 persons came to an understanding and arrived at oral partition on 10.2.1999 and started enjoying the property left by said Srikantaih separately exercising their rights of ownership. Said oral partition was later reduced into writing by way of family settlement styled as "Kutumba Vyavastha patra" on 15.3.1999. In pursuance of this "Kutumba Vyavastha patra"
defendant No.1 and 2 became absolute owners of the suit schedule property. Plaintiff has been a tenant in a portion of the suit schedule property since 1986. Defendant No.1 and 2, who are in need of money for performance of marriage of 4 OS. No.4610/2000 2nd defendant and also for other family necessities, agreed to sell the suit schedule property to the plaintiff for a valuable sale consideration of Rs.4,00,000/- and thereby executed an agreement to sell on 19.1.2000. On the date of agreement, plaintiff paid a sum of Rs.50,000/- in cash to the 1st and 2nd defendant herein. These defendants having acknowledged the advance amount and also as a token of part performance of agreement, handed over Xerox copies of title deeds, encumbrance certificate, partition deed etc., to the plaintiff. Plaintiff further asserted that in the said agreement, time fixed for performance of the contract was six months. He was ever ready and willing to perform his part of contract, which was tenanted to him and further defendant No.1 and 2 agreed to hand over the possession of the remaining portion of suit schedule property other than the tenanted portion before the execution of the sale deed. When such being the state of affairs, 3rd defendant is claiming rights of ownership over the suit schedule property claiming that defendant No.1 and 2 have executed a sale deed in his favour, even though agreement to sell in favour of plaintiff is still valid and subsisting. When plaintiff being ready and willing to perform his part of contract, 3rd defendant being an alien having no right or interest over the suit schedule property, with men and labours tried to demolish the property . He also demolished portion of the compound wall proclaiming that, he has got the ownership, transferred by 1st and 2nd 5 OS. No.4610/2000 defendants in his favour, not only by defendant No.1 and 2, but also by other son and daughter of late Srikantaih. Plaintiff further asserted that, under the sale agreement, defendant No.1 and 2 symbolically handed over the possession of plaint schedule property other than the tenanted portion and 3rd defendant, is no way concerned with the property, is trying to dispossess him under the guise of document of sale. Further on credible information, plaintiff has learnt that, defendant No.1 and 2 are trying to alienate the suit property entirely in favour of the 3rd defendant by colluding with the other members of the family. The plaintiff is always ready and willing to perform his part of contract by paying the entire balance sale consideration and further he is ready to get the sale deed executed in his favour. The balance of Rs.2,50,000/- to be paid to the defendant No.1 and 2 is ready with the plaintiff right from the date of agreement in his favour. Whereas defendant No.1 and 2 have already received substantial amounts from the plaintiff dodging to execute the sale deed in his favour and hence, plaintiff initially sought the relief of specific performance in this suit. Later plaintiff got amended his plaint and also prayer column asserting that sale deed executed by defendant No.1 and 2 in favour of the 3rd defendant is a nominal sale deed, not binding on the plaintiff and hence sought for a declaration to declare that said sale 6 OS. No.4610/2000 deed is in no way concerned with the suit schedule property nor binding the plaintiff herein.
3. Plaintiff filed this suit on 5.7.2000. On issuance of suit summons, defendant remained absent and placed exparte. Plaintiff suit came to be partly decreed on 29.10.2001.
4. Based on said judgment and decree, 3rd defendant preferred miscellaneous petition No.692/2003 under Order 9 Rule 13 read with Sec.151 of CPC seeking to set aside the exparte judgment and decree dated 29.1.2001 passed in this suit and thereby to restore the suit. The said miscellaneous petition came to be dismissed by order dated 5.9.2009. Against this order, 3rd defendant preferred MFA No.7687/2009 before Hon'ble High Court of Karnataka against plaintiff and defendant No.1 and 2 herein. Hon'ble High Court of Karnataka by its order dated 3.6.2010, restored this suit with a direction to dispose off in accordance with law. In pursuance of the direction by Hon'ble High Court of Karnataka, this court issued court notice to both parties and their counsel on 13.8.2010. On such notice, defendant No.1 to 3 appeared before this court.7 OS. No.4610/2000
5. Defendant No.1 and 2 resisted the suit of the plaintiff by filing their common written statement asserting that they have never executed any agreement of sale, much less the alleged agreement dated 19.1.2000 in favour of the plaintiff. All the LRs of late Srikantaih including defendant No.1 and 2 have already sold the suit schedule property in favour of 3rd defendant and his wife under registered sale deed dated 30.06.2000, accordingly, 3rd defendant and his wife are the absolute owners in possession and enjoyment of the suit schedule property. These defendants do not have any right, title and interest over the suit schedule property. Plaintiff has fabricated agreement of sale dated 19.1.2000. They have not received any consideration amount from the plaintiff herein. The plaintiff never approached these defendants either on 30.6.2000 or on 1st July 2000 and he has not at all made out grounds for consideration of his claim. These defendants at para No.8 specifically asserted that 1st defendant's husband and father of 2nd defendant late Srikantaih was the absolute owner in respect of entire property bearing No.18 situated at Sarakki layout having purchased the same under sale deed dated 19.9.1980. Said Srikantaih died on 27.10.1991 intestate leaving behind his wife, 2 sons and 2 daughters by name Shilaja and Geetha as his only Legal Representatives, who in turn succeeded to the suit schedule properties left by Srikantaih as a joint owners. With the consent of all the L.Rs, katha of the above said property got transferred in the name 8 OS. No.4610/2000 of 1st defendant herein. There was no partition either by way of oral or written among the family members of late Srikantaih. The plaintiff has fabricated alleged partition deed dated 15.3.1999. There were 4 tenement shop premises in a portion of the above said property bearing No.18, the plaintiff herein became a tenant in respect of one shop bearing No.2 under late Srikantaih during his lifetime. After the death of late Srikantaih, plaintiff continued to pay the rents to 1st defendant. Since there was urgent need of funds in the family of defendant No.1 and 2 like performing marriage of the daughters of late Srikantaih and also for other family necessities. All legal representatives of late Srikantaih sold the entire property bearing No.18 in favour of 3rd defendant and his wife by executing registered sale deed dated 30.06.2000. Thus 3rd defendant and his wife became the absolute owners in respect of property bearing No.18 including the shop in possession of plaintiff herein. The L.rs of Srikantaih accordingly, issued demand notice to the respective tenants in respect of 4 shops including the plaintiff herein. When they have already sold the property, they have no manner of right, title and interest over the same. They have not executed any document in favour of the plaintiff herein. All the right, title and interest over suit schedule property as on 30.6.2000 parted in favour of 3rd defendant and his wife, plaintiff is not at all entitled for any relief under 9 OS. No.4610/2000 created document. Hence, pray for dismsisal of the suit against them.
6. 3rd defendant also resisted the suit of the plaintiff by filing his written statement asserting that suit as brought on by the plaintiff is vexatious, meritless, does not discloses clear right to sue, plaintiff has no locus-standi to file this suit against this defendant. All the L.rs of late Srikantaih including defendant No.1 and 2 herein have executed registered sale deed dated 30.06.2000 sold the suit property and also remaining property in property bearing No.18 in favour of this defendant and his wife. Accordingly, they are in possession of the property as an absolute owner. This defendant is a bonafide purchaser, purchased the same from all the legal heirs of late Srikantaih. There was no agreement between plaintiff and defendant No.1 and 2 as alleged by the plaintiff, he has not paid an amount of Rs.1,50,000/- to the 1st and 2nd defendant herein. There is no cause of action for the suit. 1st defendant's husband and father of 2nd defendant was the absolute owner of property bearing No.18 situated at Sarakki layout. After his death, his wife, sons and daughters, who have succeeded to the said property along with suit schedule property herein sold the same in favour of this defendant. This defendant became the owner of suit schedule property and remaining property bearing No.18, this defendant evicted all the 3 tenants by due process of law.10 OS. No.4610/2000
This defendant also issued termination notice to the plaintiff and since he has not delivered the vacant possession of the shop No.2, he had filed a civil suit in O.S. No.7610/2000 against the plaintiff for recovery of possession and for other reliefs. Said suit came to be decreed by judgment and decree dated 1.9.2005 and concerned court directed the plaintiff to deliver the vacant possession of shop No.2 in his occupation to this defendant. Plaintiff has preferred RFA No.1726/2005 before Hon'ble High Court of Karnataka against said judgment and decree and the same is pending consideration before Hon'ble High Court of Karnataka. At the time of pendency of O.S. No.7610/2000, present suit filed by the plaintiff herein also pending consideration. Inspite of the same, the plaintiff either in reply notice to the attornment notice, issued by this defendant or in his written statement in O.S. No.7610/2000 has not whispered about pendency of this present suit. Plaintiff managed to obtain an exparte decree in his favour after making this defendant exparte. Said exparte decree is set aside by Hon'ble High Court of Karnataka in MFA No. 7089/2009 by its order dated 3.6.2010. The plaintiff herein taking advantage of exparte decree, tried to execute the same by filing the Execution Petition No.894/2002. This defendant sought for stay of operation and execution of exparte decree passed in the present suit. Accordingly, this court has stayed further proceedings in E.P.No.894/2002. Further the plaintiff during pendency of 11 OS. No.4610/2000 the appeal in MFA No.7087/2009 without notice to this defendant and also in E.P.No.894/2002 got executed the sale deed in respect of suit schedule property in pursuance of the exparte decree passed in this suit. However, Hon'ble High Court of Karnataka while setting aside the exparte judgment and decree passed by this court, directed the plaintiff not to take any further steps pursuant to the alleged sale deed till the disposal of the suit. Defendant No.1 and 2 have not at all executed any such agreement. Further plaintiff as on the date of filing of this suit, he is very much aware about the sale deed dated 30.06.2000 executed in favour of the defendants. Inspite of the same, plaintiff has not sought for cancellation of sale deed nor impleaded his wife Smt. Saroja as one of the defendants since the sale deed dated 30.06.2000 is in the joint name of 3rd defendant and his wife. The suit of the plaintiff is utterly barred by limitation against this defendant. The plaintiff had knowledge of execution of sale deed dated 30.06.2000 in favour of this defendant by L.Rs of late Srikantaih managed to file this suit by creating document. Hence, pay for dismiss the suit with costs.
7. Based on these respective pleadings, the following issues are framed by this court as follows:-12 OS. No.4610/2000
1. Whether the plaintiff proves that the defendants No.1 and 2 entered into and to sell the suit schedule property in his favour for consideration of Rs.4-00 lakhs and received a sum of Rs.1-5 lakhs as advance and executed an agreement of sale dated 19.1.2001?
2. Whether the plaintiff proves that he has always been ready and willing to perform his part of contract?
3. Whether the defendant No.3 proves that he and his wife are the bona fide purchasers of the suit schedule property for valid consideration without notice of the earlier transaction?
4. Whether the plaintiff is entitled for the relief of specific performance of contract against the defendants No.1 and 2?
5. Whether the plaintiff is entitled for the alternative relief of the refund of the advance amount of Rs.1,50,000/-
with interest at 18% p.a against the
defendants No.1 and 2?
6. Whether the plaintiff is entitled for the damages of double the amount of the advance amount of Rs.1.5 lakhs from the defendants No.1 and 2?
7. Whether the suit is barred by time?
8. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?13 OS. No.4610/2000
9. What decree or order?
ADDITIONAL ISSUE:-
1. Whether the plaintiff proves that the sale deed dated 30.6.2000 executed by defendant No.1 and 2 in favour of defendant No.3 is a nominal sale deed and the same is not binding on the plaintiff?
8 Plaintiff initially got examined himself as P.W.1 and got marked as many as 16 documents. Ex.P.1 to P.16.
Subsequent to restoration of the suit, plaintiff again got examined himself further by filing his chief affidavits on 5.7.2013 and also 29.9.2016. Earlier documents Ex.P.1 to P.16 again re-exhibited as Ex.P.1 to P.16. Plaintiff also examined three witnesses in support of his claim as P.W.2 to 4 and got marked another 12 documents as per Ex.P.17 to P.28 through D.W.1. On behalf of defendant No.1 and 2, 2nd defendant got examined himself as D.W.1, no documents were marked on behalf of 1st and 2nd defendant and 3rd defendant examined himself as D.W.2 and got marked as many as 8 documents in his further chief examination as Ex.D.6 to Ex.D.13 and got confronted and marked Ex.D.1 to Ex.D.5 in the cross-examination of P.W.1.
9. I have carefully scrutinized entire records before me. Heard arguments of respective counsel and also perused 14 OS. No.4610/2000 memo with citations produced by the plaintiff and 3rd defendant.
10. My findings on the above issues are as under:-
Issue No.1: In the negative;
Issue No.2: In the negative;
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: In the negative
Issue No.6: In the negative
Issue No.7: In the affirmative
Issue No.8: In the negative
Additional Issue: In the negative
Issue No.9: As per final order for the following reasons:
REASONS
11. Issue No.1 : It is the case of the plaintiff that that
defendant No.1 and 2 who succeeded to the suit schedule property by way of family settlement dated 15.3.1999 executed agreement to sell in his favour on 19.1.2000, agreeing to sell the suit schedule property for a total sale consideration of Rs.4,00,000/- since they were in need of money for performance of marriage of 2nd defendant and for other family necessities and thereby received Rs.1,50,000/- from him in 15 OS. No.4610/2000 cash on the date of said agreement to sell . Defendant No.1 and 2 on the other hand disputed the very execution of agreement to sell and also receipt of Rs.1,50,000/- from the plaintiff herein. With these claims of plaintiff and defendant No.1 and 2 in background, now let me scan through the oral and documentary evidence relied upon by plaintiff and defendant No.1 and 2 in respect of these claims. Plaintiff, who got examined himself as P.W.1 by reiterating entire plaint averments got marked as many as 16 documents in his favour initially. Ex.P.1 is the agreement to sell in question, dated 19.1.2000. In this agreement, at page No.2, there is a recital to the effect that defendant No.1 and 2 have agreed to sell the suit schedule property for their necessity, for the welfare of family members and also since 2nd defendant is in need of excess amount on account of suit pending on him and also to repay the earlier loans taken by them since longtime, they are executing the sale agreement in favour of plaintiff, who is a tenant under them from beginning with an intention to give priority to him in purchasing the suit schedule property for a sale consideration of Rs.4,00,000/- and received Rs.1,50,000/- in presence of witnesses to this document. Further at page No.4, there is a clear recital that as per the recitals in partition deed, they have already informed remaining L.rs by name K.S.Shivashanakr, Smt. Shilaja and K.S.Geetha, who in turn have consented for the sale agreement, put their signatures as a consenting witnesses to this document and also ready to 16 OS. No.4610/2000 put their signatures, if required as a consenting witnesses, even in the sale deed required to be executed in respect of suit schedule property in future. Whereas neither daughters of late Srikantaih nor his another son has signed this document as a consenting witness. On the other hand , it is not the case of the plaintiff that apart from defendant No.1 and 2, the other son and daughters of 1st defendant have also signed Ex.P.1 as a consenting witness. On the other hand , plaintiff categorically asserted that defendant No.1 and 2 entered into an agreement to sell on 19.1.2000, agreeing to sell the suit schedule property in his favour since they were in need of money for performance of marriage of 2nd defendant and other family necessities. Apart from these two purposes referred by the plaintiff in para No.5 of his plaint, in Ex.P.1 at page No.2, various other reasons have been recited. One such reason is defendant No.1and 2 in order to give first priority to the plaintiff herein, who is tenant under him since long time, agreed to sell the suit schedule property in favour of the plaintiff. According to plaintiff, defendant No.1 and 2 are the absolute owners in possession of suit schedule property by virtue of family settlement dated 15.3.1999. Plaintiff himself has produced said document, which is as per Ex.P.10. In this document, there is reference about two schedules styled as "A" schedule and "B" schedule properties. "A" schedule property is shown to the share of defendant No.1 and 2 herein and remaining portion of property in property No.18 has been 17 OS. No.4610/2000 given to 1st defendant's other son Shivashankar and her two daughter stating that as "B" schedule property. Whereas at para No.3 of page No.3 of this document, there is a recital that if anyone of the parties to this document, willing to sell their share for their necessity in favour of anyone. The other parties shall give their consent for such sale transaction and also ready to put their signatures on such document. According to plaintiff, he is also one of the witnesses to this document and his signature is at Ex.P.10(a). Hence, plaintiff was very much aware as on the date of execution of Ex.P.10 that, even other L.Rs of deceased Srikantaih shall sign the document pertaining to sale transaction as consenting witnesses. Though in Ex.P.1, there is a recital to this effect, the daughters of late Srikantaih have not at all signed the document. It is the specific contention of defendant No.1 and 2 that, plaintiff has created Ex.P.1, they have neither executed Ex.P.1 in favour of plaintiff nor received any amount of Rs.1,50,000/- from the plaintiff herein. The absence of consenting witnesses signature on Ex.P.1 inspite of recital to the effect that remaining L.rs of deceased Srikantaih apart from 1st and 2nd defendant herein are putting their signatures on Ex.P.1 as consenting witnesses, no such signature is forthcoming on Ex.P.1. With this in background, now let me scan through the evidence of plaintiff's witnesses recorded on oath before this court as P.W.2 and 3.
18 OS. No.4610/200012. P.W.2 Jaikumar, who is one of the signatory to the document Ex.P.1, according to plaintiff , he got examined himself as P.W.2 by filing his chief affidavit. In para No.9 of his chief affidavit, P.W.2 categorically deposes that defendant No.1 and 2 have received Rs.1,50,000/- towards advance sale consideration in his presence on 19.1.2000 from plaintiff K.Venkatesh. Though P.W.2 has stated about the family details of late Srikantaih , how he acquired the suit schedule property and other subsequent affairs including the measurement of the shop in possession of the plaintiff and also property given to the share of daughter of deceased Srikantaih. In his cross- examination, he pleaded ignorance about the name of other children of Srikantaih and asserts that his friend informed him that his father Srikantaih acquired the property through society. He do not know the total measurement of the property bearing No.18. He categorically asserts that, he has not stated anything about the partition that has taken place between wife and children of deceased Srikantaih. According to him, his chief affidavit came to be prepared as per the instructions of plaintiff herein. He is not at all aware of contents of Ex.P.1. He has put his signature on Ex.P.1 at the request of the plaintiff near his shop some time. He is not having knowledge about any such transaction taken place between plaintiff and 1st defendant herein. P.W.2 further stated in his chief examination that, plaintiff told him that he has already obtained the signatures of defendant No.1 and 2 on Ex.P.1 and asked P.W.2 19 OS. No.4610/2000 to put his signature as witness. Accordingly, he has put his signature. He do not know whether the signature available on Ex.P.1 as per Ex.P.1(a) and P.1(b) are not the signatures of defendant No.1 and 2 and it is their forged signatures. He further deposes that he is not aware of the money transaction between plaintiff and defendant No.1 and 2 herein. This oral testimony of P.W.2 establishes that he has not seen defendant No.1 and 2 putting their signature on Ex.P.1 nor receipt of alleged Rs.1,50,000/- cash by them from the plaintiff herein. According to him, he has put his signature some time on Ex.P.1 near the shop of plaintiff at his request during evening hours and he is not at all aware of the contents of Ex.P.1 and also his chief affidavit, which came to be prepared as per the instructions of plaintiff.
13. P.W.3 K.Govinde Gowda is another witness examined on behalf of plaintiff. Even this witness deposes that defendant No.1 and 2 received Rs.1,50,000/- from the plaintiff herein in his presence. This witness further deposes that defendant No.1 and 2 agreed to receive the balance sale consideration of Rs.2,50,000/- within six months at the time of execution of sale deed and further agreed that till the execution of sale deed, plaintiff need not pay any rent to defendant No.1 and 2. It is not the case of the plaintiff himself that, on execution of Ex.P.1, defendant No.1 and 2 agreed that he need not pay rent to the plaintiff till execution of sale deed. Whereas 20 OS. No.4610/2000 plaintiff's witness P.W.3 has come up with new theory. Even this witness categorically deposes that, plaintiff informed him that he has purchased the shop premises in pursuance of Ex.P.1 and informed that 1st and 2nd defendants are signed on Ex.P.1 and thereby requested himself and other witnesses to put their signatures as a witnesses. Accordingly, he has signed the same. He do not know whether signature at Ex.P.1(a) and
(b) are the signatures of 1st and 2nd defendants or not. P.W.3 also deposes that, there was no such money transaction as stated in his chief affidavit has taken place in his presence between plaintiff and 1st and 2nd defendants herein. Hence, according to these two witnesses, they have not witnessed payment of Rs.1,50,000/- by plaintiff to the 1st and 2nd defendants herein. Further they have also not seen 1st and 2nd defendants affixing their signatures on document Ex.P.1 as per Ex.P.1(a) and (b).
14. Plaintiff also examined one more witness as P.W.4. Even the oral testimony of this witness is similar to that of P.W.2 and 3 and not of any help to plaintiff in establishing execution of Ex.P.1 by defendant No.1 and 2 and also receipt of Rs.1,50,000/- from the plaintiff herein. Though no where in the plaint cause tilt or in chief affidavit of plaintiff, plaintiff has stated about his avocation. P.W.2 deposes at para No.8 of his chief affidavit that, plaintiff, who is in possession of shop No.18/3 is carrying on carpentry works in the said shop.
21 OS. No.4610/2000According to plaintiff's witnesses, they have not witnessed payment of Rs.1,50,000/- by plaintiff to the 1st and 2nd defendant herein. 1st and 2nd defendants herein not only denying the execution of Ex.P.1, but also receipt of Rs.1,50,000/- from plaintiff in pursuance of Ex.P.1. It is not the case of the plaintiff that, he has paid the advance amount of Rs.1,50,000/- to the 1st and 2nd defendant herein through cheque, D.D or by RTGS. According to him, he has paid the amount by cash. Under such circumstances, the burden is on the plaintiff to establish not only availability of Rs.1,50,000/- with him on the date of Ex.P.1, but also receipt of the same by defendant No.1 and 2.
15. Plaintiff, who got examined himself as P.W.1. In his chief examination got marked as many as 16 documents. Ex.p.1 is the agreement to sell in question, Ex.P.2 to P.8 are rent receipts for the month of October 1986 to June 1987. Ex.P.9 is the death certificate of K.M.Srikantaih, Ex.P.10 Family Settlement deed, Ex.P.11 tax paid receipt, Ex.P.12 to P.14 are the encumbrance certificates, Ex.P.15 is the demand notice, Ex.P.16 is the returned RPAD cover. These are the only documents got marked by plaintiff in his chief examination though him and another 12 documents as per Ex.P.17 to P.28 through D.W.1. None of these documents are pertaining to financial status of plaintiff. Money does not exist in vacuum, money has to be necessarily in the form of physical object.
22 OS. No.4610/2000Money is deposited in the banks, it is in the nature of securities. Money is capable of being raised from borrowing. Money could be raised by sale of properties, immovable or movable. When a plaintiff claims that he has paid Rs.1,50,000/- cash to the defendant No.1 and 2 herein, he has to produce some documentary evidence, which proves his capacity to raise the funds or he possessed the funds. Such document may be plaintiff's passbook issued by a bank, where he has kept the said amount along with balance sale consideration ready for payment. If he has invested his money by way of securities, he has to produce those securities before court to show that he has encashed the same and paid to the defendants. Similarly, if he has taken the money by closing his F.Ds , such FDs receipts. If he has borrowed money from bank or some other persons, documents showing details of such loan. Plaintiff absolutely not produced any such documents to establish that he had actually possessed Rs.1,50,000/- with him as on the date of Ex.P.1. Accordingly, he has paid the same to the defendant No.1 and 2. Nowhere in the plaint or in his chief affidavit, plaintiff has not whispered about how said amount of Rs.1,50,000/- came to be arranged by him. Whereas in his cross-examination at page No.23, it is elicited that he is a carpenter by profession. He has paid Rs.1,50,000/- to defendant No.1 and 2 by way of cash. P.W.1 further stated that he was having some amount with him and taken some more amount from his friends. He has categorically deposed that 23 OS. No.4610/2000 he has no documents to show that he was having Rs.1,50,000/- with him and also he is also not having any documents for having taken the loan from his friends. According to him, though he became income tax assessee, subsequently he has not declared this amount even in his income tax returns. This is plaintiff's suit for discretionary relief of specific performance before court of equity. Under such circumstances, Apart from oral and documentary evidence relied upon by the plaintiff, his conduct also plays vital role so as to enable him for the reliefs claimed. Admittedly, neither P.W.1 nor P.W.2 to 4 have witnessed payment of amount of Rs.1,50,000/- by plaintiff to the defendant No.1 and 2 herein. They have put their signatures somewhere during evening hours at Ex.P.1 near the shop of plaintiff at his request, who informed them that, he has purchased suit schedule property from defendant No.1 and 2 and defendant No.1 and 2 have already signed the documents. Hence, plaintiff's own witness neither witnessed defendant No.1 and 2, actually putting their signatures on Ex.P.1 nor receipt of money from the plaintiff herein. Inspite of these circumstances, plaintiff categorically admitted that, he has no documents to show that he was in possession of Rs.1,50,000/- and further he is not having documents for having borrowed some amount from his friends. This oral testimony of P.W.1 recorded on oath to the effect that he has borrowed some amount from his friends establishes, he was not having Rs.1,50,000/- with 24 OS. No.4610/2000 him as on the date of Ex.P.1, who are those friends, from whom, plaintiff has borrowed money, what is actually amount borrowed by him from said friends and what was the actual amount, he possessed at the time is neither whispered nor established by the plaintiff herein. As per pleadings, defendant No.1 and 2 executed Ex.P.1, since they were in need of money for performance of 2nd defendant's marriage and other family necessities. Whereas in Ex.P.1, the purpose of selling the suit schedule property is shown as to meet the expenses of civil litigations and also to discharge antecedent debts and for other necessities and also for welfare of the family. Further at page No.5, there is a clear recital that even other LRs of deceased Srikantaih signed Ex.P.1 as a consenting witness. Whereas at page No.6, there is only reference about three persons, purchaser, vendor and witness. Absolutely, no reference about said consenting witness. Further it is not the case of the plaintiff that even the consenting witnesses, who are none other than the remaining L.rs of deceased Srikantaih have signed Ex.P.1. Hence, the recital in Ex.P.1 to this effect is contrary to plaintiff's averments and also non availability of their signatures establishes that Ex.P.1 is not a document executed by 1st and 2nd defendant in presence of witnesses P.W.1 to P.3 Further plaintiff failed to establish passing of Rs.1,50,000/- under Ex.P.1. Except the oral testimony of plaintiff, plaintiff absolutely not produced any documents, which establishes his financial capacity or he 25 OS. No.4610/2000 possessed the requisite funds at the relevant point of time . Mere stepping into the witness box and saying on oath that, he has actually paid Rs.1,50,000/- by way of cash to the defendant No.1 and 2 by itself will not establish the case of plaintiff. He has to produce such documentary evidence, which would enable the court to come to the conclusion that, plaintiff had actually possessed said amount or he has arranged the said amount by way of loan and thereby paid the same to the defendants herein. If no evidence is adduced in this regard by way of documentary evidence being produced, it is a case of plaintiff's case being not proved. Sec.61 of the Evidence Act deals with the proof of contents of document, which reads as under:-
"61: Proof of contents of documents:-
The contents of documents may be proved either by primary or by secondary evidence."
As per these provisions, the duty casted on the court to find out, when plaintiff avers in the plaint that, he has paid Rs.1,50,000/- to the defendant No.1 and 2 herein under agreement to sell i.e., Ex.P.1, what is the proof that plaintiff has produced to prove the said averments. The alleged contract between plaintiff and defendant No.1 and 2 herein involves payment of money. When such being the case, he should produce such evidence to substantiate his case. As I have already stated, what he has to placed before the court is 26 OS. No.4610/2000 his financial ability either to raise the requisite funds or the possession of requisite funds in proof of payment of the same to his vendors. Defendant No.1 and 2 are denying receipt of this amount. P.W. 2 and 3 have not at all seen any such payment made by plaintiff to the defendant No.1 and 2 herein under Ex.P.1, they have not even seen defendant No.1 and 2 actually signing the said document. Under such circumstances, it is only the plaintiff who knows how he arranged Rs.1,50,000/- and when actually he has paid. Hence, plaintiff himself is the best person to substantiate his case by producing best evidence in his possession or power. Whereas plaintiff absolutely not produced any such primary evidence, which is otherwise best evidence before this court to establish as the alleged payment under Ex.P.1. On the other hand , the recital in his own document Ex.P.1, is not actually complied with not at all signed by remaining L.rs of deceased Srikantaih. All these circumstances makes entire case of plaintiff not only vague and baseless, but also doubtful. Accordingly, this court opines that, plaintiff fails to establish execution of Ex.P.1 by defendant No.1 and 2 in presence of witnesses and said document actually signed by consenting witnesses i.e., remaining L.rs of deceased Srikantaih and thereby he has actually paid Rs.1,50,000/- to the defendant No.1 and 2. Accordingly, I have answered this Issue No.1 in the negative.
27 OS. No.4610/200016. Issue No.2 : In a suit for specific performance, it is for the plaintiff to satisfy the court that, he is ready and willing to pay the balance sale consideration to the defendants herein as required under Sec. 16(c) of Specific Relief Act 1963, which reads as under:-
"16 Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person-
(a) Who would not be entitled to recover compensation for its breach; or
(b) Who has become incapable of performing, or violated any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or
(c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant, Explanation;- For the purposes of clause (c):, (1) Where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court' 28 OS. No.4610/2000 The plaintiff must aver performance of , or readiness and willingness to perform the contract according to its true construction."
As per these provisions, plaintiff can establish his readiness and willingness only by producing the documentary evidence. When a contract involves payment of money, though it is not essential for the plaintiff to actually tender or deposit in court any amount towards balance sale consideration, it is mandatory on plaintiff to produce such documents, which either establishes his financial ability either to raise the requisite funds or that he possessed requisite balance sale consideration at the relevant point of time along with expenses to get the sale deed executed. It is not in dispute that the term "Readiness" refers to financial ability or capacity of the plaintiff to pay the balance sale consideration and to take the sale deed. When a plaintiff on oath deposes before this court that, he is ready and willing to perform his part of contract, he must produce some evidence to prove his possession of the required funds. Such financial documents may be his passbook issued by the bank, if he had kept any amount in F.D, such F.D receipts, if he intends to take loan from any bank, letter issued by such bank at that time. The plaintiff in para No.7 of his plaint categorically asserted that, he is ready and willing to perform his part of the agreement by paying entire sale consideration in terms of the agreement of 29 OS. No.4610/2000 sale and further he is ready to get the sale deed executed in his favour. He also stated that the balance of Rs.2,50,000/- to be paid is ready with him right from the day, the agreement was executed in his favour and defendant No.1 and 2 have been avoiding due execution of the sale deed at the cost of plaintiff. Plaintiff also asserted that on 19.1.2000 and subsequently when he demanded the defendant No.1 and 2 to get the sale deed in his favour after receiving balance sale consideration of Rs.2,50,000/- and again on 30th June and 1st July, defendant No.1 and 2 refused to comply his demand to execute the sale deed . Whereas in the cross-examination of P.W.1, P.W.1 asserts that, he had taken balance consideration of Rs.2,50,000/- and defendant No.1 and 2 refused the same. Plaintiff further admits that he has not stated in his plaint that, he actually taken balance sale consideration of Rs.2,50,000/- and defendant No.1 and 2 refused to receive the same. Further at page No.23, plaintiff himself admits that within the six months time stipulated under Ex.P.1, he was supposed to arrange remaining Rs.2,50,000/- from others. He also asserted that in Ex.P.1, there is a recital to the effect that if plaintiff fails to pay the balance sale consideration within the stipulated of six months period, defendant No.1 and 2 can forfeit the advance amount of Rs.1,50,000/- . Hence, according to plaintiff's version before this court recorded on oath, within a stipulated period of six months, he was supposed to arrange balance sale consideration of Rs.2,50,000/- from others. When 30 OS. No.4610/2000 such being the case his plaint averments at para No.7 that, the balance of Rs.2,50,000/- to be paid is ready with him right from the date of agreement is nothing but a false statement asserted by the plaintiff. Plaintiff himself admits that he has not produced any documents to show that he was having Rs.1,50,000/- with him on the date of Ex.P.1. When a person on oath states in the witness box that he is ready with the requisite funds, he must produce some evidence to prove his possession of the required funds, it may be his bank passbook or any such documents referred supra. Plaintiff not at all produced scrap of paper to establish requisite funds with him at relevant point of time or his capacity to raise the funds at that time. The version of plaintiff in witness box that he was supposed to arrange Rs.2,50,000/- from others within a stipulated period establishes that he was not actually in possession of balance sale consideration at the time of Ex.P.1 or subsequently. The learned counsel for plaintiff asserted that plaintiff had actually deposited balance sale consideration of Rs.2,50,000/- before this court and thereby complied the provisions of Sec.16© of Specific Relief Act. As I have already stated since defendants initially remained absent. Suit of the plaintiff came to be decreed partly with a direction to the plaintiff to pay the balance sale consideration of Rs.2,50,000/- to 1st and 2nd defendant at the time of registration of the sale deed and if they failed to execute the same, the plaintiff has been directed to deposit the balance sale consideration within 31 OS. No.4610/2000 two months from the date of decree. Decree came to be dawn on 12.11.2001. Hence, as per the said judgment, plaintiff was under obligation to deposit balance sale consideration of Rs.2,50,000/- before this court on or before 12.1.2002. Plaintiff instead of depositing the said amount, filed an application on 14.2.2002 as per I.A.No.9 under Sec. 148 CPC seeking to enlarge and extend the time to deposit the balance sale consideration stating that he has admitted in the hospital due to heart disease and hence, extension of 45 days to deposit of balance sale consideration is required. Whereas plaintiff in his cross-examination at page No.26 admits that he has not produced any documents pertaining to ill health at that time. He also deposes that he is not having any disease. He also deposes that he is not having any disease, except diabetic. Hence, the extension of time for deposit of balance sale consideration sought by the plaintiff was again not supported by documentary evidence. Mere stepping into the witness box and saying on oath that, he is ready with the balance sale consideration or i.e., going to borrow money and ready to arrange the requisite funds at the relevant point of time. Without such oral evidence being supported by documentary evidence will not prove the plaintiff's readiness to pay the balance sale consideration. It is immaterial whether such oral evidence is challenged. It is not the case of the plaintiff or not. The plaintiff has to prove to the satisfaction of the court that he possessed the requisite funds at the relevant 32 OS. No.4610/2000 point of time. He can prove the same only by producing documentary evidence. In the absence of any such documentary evidence being produced, it is a case of plaintiff's case being not proved. On the other hand , plaintiff himself admits in his cross-examination that with these six months of stipulated period, he was supposed to arrange balance sale consideration from others. This oral testimony establishes that plaintiff did not possess balance sale consideration with him at the alleged stipulated period of six months. That apart, plaintiff absolutely not produced any scrap of paper, which establishes either his financial capacity to raise the funds or possession of such funds. That apart plaintiff's version with regard to balance consideration and availability of the same with him is contradictory.
17. Plaintiff relied upon two citations in support of his case reported before Hon'ble Supreme Court in SCC 2015(1) 745, in this citation, Hon'ble Supreme Court discussed about Sec.10 and 20 of Specific Relief Act and not Sec.16(c) of Specific Relief Act. Further in another citation reported in SCC 2005(6) SCC 243. In this citation, Hon'ble Supreme Court observed that with a view to arriving at a finding as to plaintiffs were all along ready and willing to perform their part of contract as his mandatorily required under Sec. 16© of Specific Relief Act must be determined having regard to the entire attending circumstances and his conduct must be 33 OS. No.4610/2000 judged having regard to the entirity of the pleadings. As I have already stated in pleadings, plaintiff averred that right from the date of Ex.P.1, he was in possession of balance sale consideration of Rs.2,50,000/-. Whereas in his cross- examination plaintiff deposes that he was supposed to arrange balance sale consideration within a stipulated time. Further at initial stages, plaintiff failed to deposit balance sale consideration before this court within two months as directed by the court and plaintiff himself sought for extension of another 1½ months time to deposit balance sale consideration. All these circumstances establishes that plaintiff was not possessed the requisite funds at the relevant point of time. Hence, seen from any angle, plaintiff not at all established his readiness and willingness as required under the provisions of Sec.16(c) of Specific Relief Act. That apart, plaintiff has already failed to establish the very execution of Ex.P.1 by defendant No.1 and 2 in his favour in presence of witnesses. Accordingly, I have answered Issue No.2 also in the negative.
18. Issue No.3: According to plaintiff himself, who has produced Ex.P.10, it was necessary for defendant No.1 and 2 to take the consent of other L.rs of late Srikantaih as a consenting witnesses to get the sale deed executed whether in respect of suit schedule property or in respect of entire property bearing No.18. 3rd defendant has purchased the suit 34 OS. No.4610/2000 schedule property along with remaining portion from all L.rs of late Srikantaih. It is also not in dispute that 3rd defendant had filed O.S. No.7610/2000 against the very plaintiff herein on 13.11.2000 for ejectment and mesne profits as per Ex.D.4 and said suit came to be decreed in favour of 3rd defendant and concerned court held that, 3rd defendant and his wife, the plaintiffs in the said suit are the land-lords of suit schedule property. P.W.1 in his cross-examination admits that as on the date of filing of this suit, he arrayed even 3rd defendant as a party, since he was having knowledge of the sale deed dated 30.6.2000, which is as per Ex.D.9. Hence, one month prior to the filing of this suit, plaintiff was very much aware of the said sale deed executed in favour of the 3rd defendant and his wife not only by defendant No.1 and 2, but also by remaining L.rs of late Srikantaih. Inspite of the same, plaintiff filed this suit only seeking decree for specific performance from defendant No.1 and 2 and got amended the prayer column and also pleadings only on 17.12.2011 as per orders of I.A.No.7 and said application was filed by plaintiff on 5.7.2011, when matter was posted for his evidence i.e., almost after 11 years from the date of filing of this suit. All these circumstances establishes that plaintiff has not approached this court with clean hands. That apart, the alleged sale agreement Ex.P.1 is not a registered document. When such being the case, question of said transaction reflected in encumbrance certificate does not arise. Defendant No.1 and 2 are asserting that they have not 35 OS. No.4610/2000 executed any such sale agreement in favour of the plaintiff and plaintiff also failed to establish execution of valid sale agreement by 1st and 2nd defendant in his favour. Plaintiff has filed this suit only after purchase of suit schedule property by 3rd defendant. Further plaintiff also failed to establish his readiness and willingness to perform his part of contract under Ex.P.1. All these circumstances establishes that 3rd defendant and his wife are bonafide purchasers.
19. Further 3rd defendant, who got examined himself as D.W.1 categorically deposed before this court, he was not at all having knowledge about alleged transaction and also asserted that actually no such transaction taken place between plaintiff and 1st and 2nd defendant herein. Nothing much has been elicited in his cross-examination. Accordingly, I have answered this issue in the affirmative.
20. Issue No.4 and 5: These two issues are taken up together for discussion to avoid repetition of facts and circumstances.
Since plaintiff failed to establish his readiness and willingness and also execution of Ex.P.1 by 1st and 2nd defendant and further payment of Rs.1,50,000/- by him to the 1st and 2nd defendant herein. He is neither entitled for the discretionary relief of specific performance of contract, nor for 36 OS. No.4610/2000 any alternative relief of refund of the advance amount. Accordingly, I have answered these two issues in the negative.
21. Issue No.6: In view of my finding on Issue No.1 and 2, plaintiff is not at all entitled for damages from 1st and 2nd defendant. Accordingly, I have answered this issue also in the negative.
22. Issue No.7: Plaintiff has filed this suit within one month subsequent to the date of alleged stipulated time of six months. Accordingly, suit is in time. No doubt his amendment application came to be filed after lapse of 10 years. However on consideration of such amendments, it is presumed that said amendment date backs to original date of filing of the suit. Accordingly, suit is in time. Accordingly, I have answered this issue in the affirmative.
23. Issue No.8: Since plaintiff is not at all entitled for the main relief of specific performance, question of granting consequential relief does not arise. Accordingly, I have answered this issue also in the negative.
24. Additional Issue No.1: In a registered sale deed dated 30.6.2000 executed not only by defendant No.1 and 2, but also other L.rs of late Srikantaih in favour of 3rd defendant and his wife as per Ex.D.10, there is clear recital 37 OS. No.4610/2000 that they sold entire property bearing No.18 for sale consideration of Rs.12,84,000/- in favour of 3rd defendant and his wife, accordingly, received the said amount. The plaintiff is asserting that it is only a nominal sale deed Hence, the version of plaintiff is contrary to the recital available in registered sale deed Ex.D.10. Under such circumstances, the burden is on the plaintiff to establish that said recital found in registered document Ex.D.10 are not true and correct. Whereas plaintiff absolutely not produced any material in support of his contention. Under such circumstances, he has not at all discharged his burden. Considering the recital in Ex.D.10, the version of plaintiff appears vague and baseless. Accordingly, I have answered additional Issue in the negative.
25. Issue No.9: In view of my findings on Issue No.1 to 9 and additional issue No.1, I proceed to pass the following:-
ORDER Suit dismissed with costs.
Draw decree accordingly.
{Dictated to the Judgment Writer transcribed by her, corrected and then pronounced by me in open court this 2nd day of March 2017} (M.LATHA KUMARI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.38 OS. No.4610/2000
ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 K. Venkatesh P.W.2 Jaikumar P.W.3 K. Govinde Gowda P.W.4 J.V.Brahmaiah
List of documents exhibited for plaintiff:-
Ex.P.1 Sale agreement dt19-1-2000.
Ex.P.1(a) & (b) Defendants signatures
Ex.P.1(c) Signature of P.W.1
Ex.P1 (d, e & f) Signatures of witnesses
Ex.P.2 to 8 Rent receipts.
Ex.P9 Death certificate of K.M.Srikantaiha .ie
is first defendant.
Ex.P10 Notarized copy of family partition deed.
Ex.P11 Tax paid receipt
Ex.P12 to 14 Three encumbrance certificates
39 OS. No.4610/2000
Ex.P15 Returned RPAD cover issued to 1st
defendant.
Ex.P15(a) Legal notice
Ex.P.15(b) Postal acknowledgment.
Ex.P.16 Another returned RPAD cover
Ex.P16(a) Notice
Ex.P.17 & 18: Photos
Ex.P.19 to 26: Payment coupons
Ex.P.27: Court notice dated 24.3.2006
Ex.P.28: Certified copy of GPA
List of witnesses examined for defendants :-
D.W.-1 K.S.Nagesh Babu D.W.-2 J.Lakshmi Narayana
List of documents exhibited for defendants :-
Ex.D.1 Certified copy of notice dt3-8-2000.
Ex.D.2 Certified copy of notice dt10-10-2000.
Ex.D.3 Certified copy of written statement in O.S.No.7610/2000.
Ex.D.4 Certified Copy of judgment and decree in O.S.No.7610/2000.40 OS. No.4610/2000
Ex.D.5 Certified copy of sale deed dt30.6.2000.
Ex.D.6 Certificate.
Ex.D.7 Certified copy of notice dt30-6-2000.
Ex.D.7(a) Certified copy of notice dt30-6-2000.
Ex.D.7(b) Certified copy of acknowledgment and
receipt.
Ex.D.8 Certified copy of rental lease deed.
Ex.D.9 Sale deed.
Ex.D.10 Certificate.
Ex.D.11 Tax paid receipt.
Ex.D12 Certified copy of notice in
O.S.No.4610/2000.
Ex.D12(a) Certified copy of Nazar shara.
Ex.D.13 Certified copy of summons
Ex.D.13(a) Certified copy of of Nazar Shara XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 41 OS. No.4610/2000 42 OS. No.4610/2000