Bangalore District Court
Smt.V.Yogalakshmi vs Sri.N.S.Suresh Babu on 10 September, 2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this 10th day of September, 2015.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.No.2792/2008
PLAINTIFF : Smt.V.Yogalakshmi,
s/oSri.Chatrusamhara Velu,
aged about 49 years,
r/at No.400/25, I Floor,
5th Main Road, Nagendra Block,
BSK III Stage, Bangaore-560 050.
(By Sri D.S.Jayaraj,Advocate)
-VS-
DEFENDANT : Sri.N.S.Suresh Babu,
s/o late N.L.Satyanarayana Shetty,
aged about 45 years,
r/at No.9,
West Circle Road,
V.V.Puram, Bangalore-04.
( By Sri.VSR, Advocate)
Date of Institution of the suit : 15/4/2008
Nature of the Suit : Specific Performance
Date of commencement of recording
of evidence : 25/1/2011
2 O.S.No.2792/2008
Date on which the Judgment was
pronounced : 10/9/2015
Year/s Month/s Day/s
Total Duration : 07 04 25
JUDGMENT
The plaintiff has filed this suit for the relief of specific performance relating to the oral agreement directing defendant to execute sale deed in favour of plaintiff in respect of suit schedule property with court costs and such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff is in possession and enjoyment of suit schedule properties bearing No.1, a portion of the property Sy.No.50/10, asbestos shed No.4 and open space A & B situated at Nayandanahalli Village, Kengeri Hobli, Bangalore South Taluk measuring East to West 44 ft and North to South 23.9 ft along with open space measuring East to West 44 ft and North to South 8.7 ft i.e., suit 'A' schedule property and open space 'B' schedule property measuring East to 3 O.S.No.2792/2008 West 18.2 ft and North to South 4.10 ft i.e., suit 'B' schedule property. Plaintiff is in possession of suit schedule property as absolute owner by virtue of GPA and affidavit dated 20/10/1994 executed by Smt.Saraswathi w/o late Hariram and her children. She is paying taxes to the concerned authorities. Further defendant filed O.S.No.5240/1987 against one Ramachandra for declaration that he is the absolute owner of Sy.No.50/10 measuring 1 acre 35 guntas situated at Nayandanahalli village, Kengeri Hobli, Bangalore South Taluk and this court passed judgment and decree on 30/7/1993 declaring that father of defendant is absolute owner of said property. Based on said judgment and decree, defendant's father had filed Ex.No.203/1994 which is still pending for consideration. Plaintiff is not party to said suit. In order to avoid litigation in respect of title of the property, plaintiff agreed to purchase suit schedule property from father of defendant and defendant also agreed to sell the suit schedule property by obtaining sale consideration at the rate of Rs.95/- per sq.ft totally amounting to 4 O.S.No.2792/2008 Rs.1,35,090/-. Defendant agreed to execute the sale deed and in pursuance of it, plaintiff has paid Rs.50,000/- on 28/11/2003 through cheque bearing No.53087 drawn on Corporation Bank, Srinagar Branch. Defendant encashed the same. Plaintiff has paid further sum of Rs.28,000/- on 16/12/2004 through cheque bearing No.158238 drawn on Corporation Bank and it was also encashed by defendant. After accepting the above said amount from plaintiff, defendant has not come forward to execute the sale deed even after repeated requests and demands. Plaintiff is ready to perform her part of contract and willing to pay the remaining balance amount and ready to get sale deed in her favour. Time is not the essence of the agreement. When plaintiff is in possession of suit schedule property, it is settled principle that time is not essence of contract. Plaintiff has filed application under Order XXI R.97 CPC in Ex.No.203/1994 as objector to adjudicate the claim. It is still pending for consideration. In order to put off litigation, it is agreed between parties to purchase the property by paying the above said sale consideration i.e., 5 O.S.No.2792/2008 to buy piece of land. Negotiations took place between plaintiff and defendant and matter was being adjourned from time to time in Ex.Petition to report settlement. Looking into the rival contentions of plaintiff and defendant learned Judge has also referred the matter to Mediation to work out remedies and possibility of settlement between plaintiff and defendant in said execution petition. Ultimately, matter was remanded back, because defendant demanded prevailing market rate with a sole intention to extract money from plaintiff and thus, conciliation was failed. Defendant has been taking adjournment on one pretext or other in the execution petition. Absolutely, there are no reasons on the part of defendant in non-compliance of terms in executing the sale deed. The delay tactics adopted by defendant is in view of escalation of price. When once defendant accepted part of sale consideration, only course open for him is to execute the sale deed by receiving balance sale consideration. However, defendant is not ready to comply with the undertakings. Plaintiff had paid the entire sale 6 O.S.No.2792/2008 consideration agreed between plaintiff and defendant and even afterwards, defendant failed to come forward to execute the sale deed. Hence, there was no option for plaintiff and he issued notice to defendant on 3/1/2008 to appear before Sub-Registrar on 10/1/2008 with relevant documents to register the property. Inspite of notice, defendant failed to comply with the same. Defendant is aware of notice, but made all necessary arrangements to get schedule property registered endorsement on the notice. Defendant has not appeared before Sub-Registrar only to deprive the claim of plaintiff. Hence, the suit for appropriate reliefs.
3. After service of suit summons, defendant appeared through his counsel and filed his written statement wherein he contended that the suit is barred by limitation and also barred under provisions of CPC. Plaintiff has filed the suit only to abuse the process of law by unscrupulous litigants. The suit is filed with malafide intention. Plaintiff is attempting to drag defendant from one court to another 7 O.S.No.2792/2008 to defeat the very purpose of decree already granted by court in O.S.No.5240/1987. Defendant's father has filed suit against Ramachandra in O.S.No.5240/1987 on 25/11/1987 in respect of 1 acre 35 guntas in Sy.No.50/10 of Nayandanahalli, Kengeri Hobli, Bangalore South Taluk for declaration and mandatory injunction directing removal of constructions. Said Ramachandra filed written statement and contested the suit. It was decreed on 30/7/1993. Only with a view to defeat the rights of father of defendant and to frustrate the decree that may be passed in the suit, even during pendency of the said suit and even after passing judgment and decree, Ramachandra sold portions of suit schedule land in said suit to several persons. All these persons including present plaintiff are lis pendens transferees from said Ramachandra. Father of defendant filed Ex.No.203/1994 seeking enforcement of the order of mandatory injunction passed in O.S.No.5240/1987 for demolition of construction put up on the property. During pendency of said Ex.Case, father of defendant died and defendant being his LR 8 O.S.No.2792/2008 comes on record. During pendency of execution petition, several persons who were all lis pendens transferees filed petitions under Order XXI R.97 CPC in Execution Petition seeking obstruction of decree. The plaintiff traces her title to one G.Ahamd Ghouse who is alleged to have purchased property from Ramachandra on 1/6/1988 i.e., during pendency of the suit. Defendant filed objections to said application. With a view to drag on the proceedings and to complicate the matter, plaintiff with other objectors filed I.A. under S.151 CPC alleging that a settlement had been entered into between herself and defendant and prayed for dismissal of execution petition. Present defendant filed objections to said application also. Thereafter, the matter was set down for hearing on the applications filed by the plaintiff and other obstructers and also on maintainability of those applications. Only after submitting arguments on behalf of these obstructers in said execution petition, they came to know that they had no case. In this regard, the obstructer sought to withdraw the applications filed by them under S.151 CPC. Instead 9 O.S.No.2792/2008 they filed separate suits purporting to seek specific performance of alleged agreements for compromise of the suit. On the basis of it, they sought stay of execution proceedings. They have further filed miscellaneous petitions seeking to club these several proceedings with the execution case. These facts reveal the sole intention of obstructers including present plaintiff is to drag on the proceedings with a view to confuse the issue, complicate the matter and thereby denying the rights of defendant to enjoy the fruits of decree passed in his favour. Defendant further contended that the suit is not maintainable on 5 grounds.
1) Firstly, suit is barred under S.47 CPC since all questions arising between the decree holder and judgment debtor or his representatives including questions pertaining to the alleged discharge or satisfaction of the decree is to be decided by the executing court.
2) Secondly, suit is barred by virtue of provisions of Order XXI R.101 CPC. Plaintiff is not entitled to prosecute the parallel proceedings in relation to the same issue when plaintiff has chosen to file an 10 O.S.No.2792/2008 application under Order XXI Rule 97 CPC question arising between the parties to that proceeding is required to be tried by the executing court itself and a separate suit is barred.
3) Thirdly, absolutely no agreement between parties.
Even assuming without conceding, for the sake of argument that an agreement exists, the said agreement admittedly not even certified by the executing court in terms of Order XXI Rule 2(3) of CPC and as such, is void.
4) Fourthly, even otherwise, present suit is hopelessly barred by limitation. Plaint averments are entirely vague as to the alleged agreement, the date of alleged contract and its terms. It appears that plaintiff's claim is that the alleged agreement was entered into somewhere in 2003 or before that and the suit is filed in the year 2008. Admittedly, defendant was actively prosecuting the execution case and had in course of proceedings filed statements denying the very existence of agreement and hence, suit filed about 5 years after the date of such alleged agreement is barred by limitation.
5) Fifthly, plaintiff herself is not ready and willing to perform her obligations as per her own pleadings. 11 O.S.No.2792/2008 Defendant further denied that plaintiff is in possession and enjoyment of any part of the property in Sy.No.50/10 of Nayandanahalli, Kengeri Hobli, Bangalore South Taluk. The identity and location of suit schedule property is not made out from description given in the plaint or in the suit schedule. He denied that Smt. Saraswathi was in possession of suit schedule property at any point of time or plaintiff get her possession through Smt. Saraswathi. He denied all other averments made in the plaint regarding agreement between plaintiff and defendant about suit schedule property or price fixed at Rs.95/- per sq.ft. He denied all other averments made in the plaint regarding agreement between him or his father with plaintiff. But admitted about the proceedings in Execution No.203/1994. He contended that when defendant sought to execute the decree, some of the obstructers in Ex.No.203/1994 requested him to give some time to vacate the property and at that point of time, in order to compensate the decree holder for damages for illegal use and occupation of the properties, some 12 O.S.No.2792/2008 payments are made to him and thereafter, instead of vacating the property, the said objectors turned around and sought to press the objections in the execution proceedings. The payments referred in the plaint at para No.4 of the plaint is towards damages and not as advance payments for any agreement. The conduct of plaintiff discloses that there was no readiness or willingness on her part and thus, not entitled for equitable relief of specific performance of agreement. He further contended that plaintiff is not definite about her case, at one stretch she pleads the part payment and at another stretch, she pleads the entire payment of sale consideration amount. He contended that the plaintiff is a trespasser and is illegally in use and occupation of the property. He further contended that the attempts made for settlement in Ex.No.203/1994 indicates absolutely no agreement between plaintiff and defendant and matter was referred to mediation to work out remedies and possibilities of settlement between parties is only an attempt to put an end to the litigation on account of the fact that already 13 O.S.No.2792/2008 one generation of defendant's family has passed away during the course of litigation in execution proceedings without enjoying the benefits of decree in their favour. However, plaintiff was thereafter entirely unreasonable in her stance and no settlement could be effected before mediation centre. The notice dtd:3/1/2008 is not within his knowledge and it is not received by him. He has filed objections to application under Section 151 CPC in execution proceedings denying the existence of suit agreement. Hence, there is no need or necessity to issue notice. Hence, prayed for dismissal of the suit with exemplary costs.
4. From the above facts, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that the defendant orally agreed to sell the suit schedule property in her favour at the rate of Rs.95/- per sq.ft as alleged?14 O.S.No.2792/2008
2. Whether the plaintiff proves she has paid a sum of Rs.50,000/- on 28.11.2003 through cheque bearing No.53087 and a sum of Rs.28,000/- on 16.12.2004 through cheque No.158238 drawn on Corporation bank, Srinagar branch as advance sale consideration?
3. Whether the plaintiff proves that she has always been ready and willing to perform her part of contract?
4. Whether the plaintiff proves that the defendant has failed to execute the regular sale deed as agreed upon?
5. Whether the defendant proves that the suit is barred under the provisions of Sec.47 and Order XXI Rule 101 CPC?
6. Whether the defendant proves that the suit is not maintainable as contended in his written statement?15 O.S.No.2792/2008
7. Whether the plaintiff is entitled for the relief of specific performance of contract as sought for?
8. To what Order or Decree?
5. On behalf of plaintiff, plaintiff is examined as PW-1, got marked Ex.P.1 to Ex.P.22 and closed his side. On behalf of defendant, defendant is examined as D.W.1, got marked Ex.D.1 to Ex.D.10 and closed his side.
6. Heard arguments of both sides. Plaintiff's counsel has also filed synopsis of his arguments.
7. Findings of this court on the above issues are:-
Issue No.1:- In Negative;
Issue No.2:- Partly in Affirmative; Issue No.3:- Negative;
Issue No.4:- Negative;
Issue No.5:- In Affirmative;
Issue No.6:- In Affirmative;
Issue No.7:- In Negative ;
Issue No.8:- As per the final order for the following:-16 O.S.No.2792/2008
REASONS ISSUE Nos.1 & 2
8. These issues are considered together as they require common discussion.
9. Before considering the facts of the case, it is pertinent to note the admitted proceedings that have taken place between parties and others.
10. It is an admitted fact that father of defendant has filed O.S.No.5240/1987 against one Ramachandra in respect of Sy.No.50/10 initially for declaration and permanent injunction and then added the relief of mandatory injunction and in which case, said Ramachandra has filed his written statement denying the contentions of defendant's father, but did not come forward to cross-examine plaintiff or to lead any evidence. Said suit was decreed on 30/7/1993 declaring the plaintiff of said suit as owner of the property bearing Sy.No.50/10 measuring 1 acre 35 guntas and further Ramachandra was permanently restrained from trespassing over suit 17 O.S.No.2792/2008 schedule property and obstructing the peaceful possession of plaintiff over said suit schedule property; it is further ordered to direct the said defendant-Ramachandra to demolish the construction of building which has come up in the suit and make it fit for agricultural purpose. Defendant has produced the certified copies of judgment and decree passed in said suit as per Ex.D.1 and Ex.D.2.
11. It is an admitted fact that based on said judgment and decree, father of defendant has filed Ex.No.203/1994 against said Ramachandra and during pendency of said suit, plaintiff of present suit and several other persons have filed applications under Order XXI R.97 to come on record as obstructers in respect of suit schedule property. During pendency of consideration of said application, present plaintiff and others have filed I.A. under S.151 CPC to dismiss the execution petition, as there was compromise between parties and then got it withdrawn the said I.A. and afterwards, filed the present suit. 18 O.S.No.2792/2008
12. Defendant has not seriously disputed about the suit filed by Ramachandra in O.S.No.4128/1984 against Rukminibai and decree passed in said suit for specific performance of the agreement.
13. It is the contention of plaintiff that said Ramachandra got decree for specific performance of the agreement in respect of Sy.No.50/10 measuring 1 acre 5 guntas from Rukminibai and based on said decree and GPA executed by Rukminibai in his favour, he has sold bits of properties to several persons. One of them is the vendor's vendor of the plaintiff. Plaintiff has produced the GPA and affidavit as per Ex.P.1 and Ex.P.2 to show that Smt.Saraswathi w/o J.Hari Ram and her children have executed these 2 documents in favour of the plaintiff pertaining to suit schedule property i.e., a portion of Sy.No.50/10 situated at Nayandahalli Village, Kengeri Hobli, Bangalore South Taluk. In this GPA and affidavit, it is not stated that how Smt.Saraswathi and her children got this property. Furthermore, this affidavit is not sworn before Notary. 19 O.S.No.2792/2008
14. As discussed above, plaintiff has filed I.A. under Order XXI R.97 r/w S.151 CPC in Ex.No.203/1994. Plaintiff has produced certified copy of said I.A. and affidavit annexed to it as per Ex.P.4. Defendant has produced same certified copy of I.A. and affidavit as per Ex.D.3 and Ex.D.4. As this document is admitted one and it is filed before the court in another proceedings, this can be looked into to gather the title of plaintiff's vendor Smt.Saraswathi. In the affidavit annexed to this I.A., the present plaintiff has stated that one G.Ahmed Khan s/o Ghouse Khan has purchased this suit schedule property from Ramachandra under registered sale deed dated 1/6/1988 registered in No.2769/87-88. Said Ramachandra had acquired the shed i.e., suit schedule property as per the judgment and decree passed in O.S.No.4128/1984 dtd:1/12/1984. Said Rukminibai had executed an agreement to sell in favour of Ramachandra.M. In said suit, Rukminibai undertook that she will not alienate the property and executed irrevocable GPA in favour of Ramachandra. It is further averred in para 4 of the 20 O.S.No.2792/2008 affidavit that Rukminibai sold the same in favour of Ahmed Khan under the deed dtd:27/6/1989 and in turn Ahmed Khan sold it to J.Hariram and Saraswathi; in turn, they sold it to plaintiff.
15. The above said pleadings in the affidavit annexed to I.A. as per Ex.P.4 is confusing. At one stretch, this plaintiff states that Ahmed Khan purchased the property under registered sale deed from Ramachandra and at another stretch, she states that Ahmed Khan purchased from Rukminibai under deed of 1989. However, it is not much relevant to decide the present suit. Furthermore, plaintiff has not made any efforts to produce certified copy of Judgment and Decree passed in O.S.No.4128/1984 to know the rival contentions of both parties or to know the result of said suit. Any way from Ex.P.1 to Ex.P.4, it can be gathered that plaintiff claims that she is in possession of suit schedule property based on GPA and affidavit executed by Smt.Saraswathi and her children who in turn 21 O.S.No.2792/2008 claims the property through Ahmed Khan who in turn claims property through Ramachandra.
16. The above said facts made it very clear that plaintiff claims the suit schedule property only through Ramachandra who has suffered decree in O.S.No.5240/1987 pertaining to the present suit schedule property which is a portion of Sy.No.50/10 i.e., suit schedule property in said suit. The learned counsel for defendant vehemently submitted arguments that when plaintiff claims her title to suit schedule property through Ramachandra, she has no independent right to agitate her claim and hence, her claim is to be decided in Ex.No.203/1994, because, she is lis-pendens transferee. According to plaintiff, she got the property through General Power of Attorney and affidavit executed by one Saraswathi dtd: 20/10/1994. Ex.P.2 was not sworn before the Notary. Thus, the claim of plaintiff through Smt. Saraswathi is only after passing judgment and decree in O.S.No.5240/1987. In this regard, defendant's counsel 22 O.S.No.2792/2008 relied on the citation reported in AIR 2008 SC 2560 in "Smt.Ram Peary and others v/s Gauri and others"
wherein, their Lordships held as under:-
"Contract - subsequent transferee - Section 52 of Transfer of Property Act, 1882 - subsequent transferee entirely ignorant of any right on the part of contractor - suit filed by contractor against the vendor is also not known to him - subsequent transferee cannot setup against the contractor any right from which the vendor is excluded by the decree."
In the above said citation, their lordships further held as under:
"In our opinion, therefore, when the doctrine of lis pendens renders a transfer made during the pendency of the suit subservient to the rights of the plaintiff seeking specific performance of a prior contract entered into by the vendor in his favour and when 'on account of the operation of the doctrine of lis pendens such conveyance is treated as if it had never any existence, the subsequent transferee, even though he had obtained the transfer without notice of the original contract, cannot set up against plaintiff - contactor any right; for it would defeat the rule of lis pendens which is founded upon public policy. And considered in that manner, Section 52 of the T.P.Act is not subject to S, 19(b) of the Specific Relief Act.23 O.S.No.2792/2008
8. We may yet arrive to a similar conclusion in a different manner. "A judgment inter-parties raises an estoppel only against the parties to the proceeding in which it is given, and their privies, for example, those claiming or deriving title under them." (Halsbury's Laws of Engand, Third Ediition, Volume 15, para 372). The transferee pendente lite would be treated as a representative in interest of the parties to the suit and the judgment which has been pronounced, in the absence of fraud and collusion, would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. The decision being respondent- judicata would bind not only the parties thereto but also the transferees pendente lite from them."
17. Learned counsel for defendant further relied on the citation reported in (2008) 7 SCC 144 in "Usha Sinha v/s Dina Ram and others" wherein, their Lordships held as under:-
"The doctrine of lis pendens is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, 24 O.S.No.2792/2008 obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
The doctrine of lis pendens would apply to the transaction in question, and the High Court was wholly right in holding that the case was covered by Rule 102 of Order 21 CPC. The appellant could not seek protection of pendency of suit instituted by her. The executing court was not justified in granting stay of execution proceedings."
18. In both the above said citations, their Lordships clearly held that if a person purchases the property in dispute in any suit during pendency of said suit, then, his rights are subservient to the rights of party to said suit. In the instant case, admittedly, plaintiff's vendor claims right only through the defendant in O.S.No.5240/1987. Hence, her right is subservient to the right of defendant in said suit.
19. It is to be noted here that in the instant case, plaintiff is claiming independent agreement with defendant 25 O.S.No.2792/2008 and not claiming right through Smt.Saraswathi or through defendant of O.S.No.5240/1987. The rights of present plaintiff as per General Power of Attorney and affidavit is to be decided in Ex.No.203/1994 and not in this suit.
20. It is to be noted here that plaintiff further pleaded that when defendant's father had came near the suit schedule property to demolish the shed of suit schedule property, there was an oral sale agreement and he agreed to sell the suit schedule property. In this regard, the pleading of plaintiff is confusing and not giving clear picture. In para 5 of the plaint, plaintiff pleaded that in order to avoid litigation with regard to title of the property, plaintiff agreed to purchase the suit schedule property from father of defendant; defendant also orally agreed to sell suit schedule property in favour of plaintiff by obtaining sale consideration and on negotiations, the sale price was fixed at Rs.95/- per sq.ft. In this para at one stretch, plaintiff states that she agreed to purchase property from father of defendant, at another stretch that 26 O.S.No.2792/2008 defendant agreed to sell the property. Hence, this pleading is not giving clear picture with whom plaintiff had entered in to an agreement.
21. In the subsequent para 6, again plaintiff pleads that after the death of defendant's father, plaintiff appraised defendant that his father has agreed to execute sale deed for a total consideration of Rs.1,35,090/- and defendant agreed to execute the sale deed on receipt of the agreed amount; in pursuance of the same, plaintiff paid Rs.50,000/- on 28/11/2003 through cheque and Rs.28,000/- on 16/12/2004 through cheque.
22. If para 5 and 6 of the plaint are read together, then it can be gathered that plaintiff might have entered into an oral agreement with father of defendant at the inception and after his death, she again appraised the facts to defendant and he also agreed to execute the sale deed.
23. The affidavit evidence of plaintiff is nothing but replica of plaint and thus, same confusion found in plaint paras continued in the affidavit evidence of plaintiff. 27 O.S.No.2792/2008
24. In this regard, learned counsel for defendant relied upon the unreported decision reported in RSA.No.103/2008 at Dharwad Bench in "Albarsab & others v/s Smt.Tippawwa" wherein, their Lordships held as under:-
"9. Learned Counsel for the appellants has vehemently argued that the defendant has taken up an inconsistent stand of having acquired the title by way of adverse possession in respect of this area measuring 4' x 29'. Therefore, it is argued that, defendant cannot blow hot and cold together. It is well established that a plaintiff cannot take inconsistent stand in the plaint and cannot seek inconsistent prayers. A defendant can take inconsistent stand and hence the alternate defence of adverse possession will not come in the way of the defendant, more particularly when the plaintiff has thoroughly failed to prove the important aspect of title in respect of their area."
25. The above ruling made it very clear that defendant is permitted to take inconsistent pleas and not plaintiff. In the instant case, as stated above, at one stretch, plaintiff claims that suit schedule property belonged to Smt. Saraswathi; at another stretch, pleads that she entered 28 O.S.No.2792/2008 into agreement with father of defendant; at another stretch, contended that she entered into agreement with defendant.
26. It appears that the above pleading is having inconsistent pleas. However, as already discussed above, plaintiff specifically pleaded that though, she purchased the suit schedule property from Saraswathi, to avoid future litigation pertaining to title of suit schedule property and to have peace, she agreed to purchase suit schedule property from father of defendant, then after his death, she entered into agreement with defendant. Hence, there are no inconsistencies, as argued by defendant's counsel. Hence, there is no inconsistency on this point in the plaint. However, there is one more inconsistency in the plaint. At one stretch, plaintiff pleads part payment of consideration amount towards agreement; whereas, at another stretch, she pleads entire payment of consideration amount towards agreement. This is definitely inconsistent plea taken by plaintiff in the plaint.
29 O.S.No.2792/2008
27. Though, in the plaint, plaintiff pleads agreement with defendant/ his father; in the cross-examination, plaintiff has deposed that she does not know Sathyanarayana Shetty. Said Sathyanrayana Shetty is the father of defendant. Without knowing defendant's father, plaintiff cannot enter into agreement with him. Hence, her pleadings that plaintiff agreed to purchase the suit schedule property from father of defendant is difficult to accept.
28. In the further cross-examination, plaintiff has further deposed that she does not know the defendant, but her husband knows him. She has deposed that Smt. Saraswathamma is the owner of the suit schedule property and executed GPA in her favour during 1993. She further deposed that except Saraswathamma, no other person has executed any other document in her favour in respect of suit schedule property. This evidence was recorded on 11/7/2011.
30 O.S.No.2792/2008
29. On several dates, PW-1 was recalled by both the parties and she was further examined-in-chief and cross- examined several times. Even in the cross-examination of PW-1 on 17/7/2015, P.W.1 reiterated her contentions that Saraswathamma was the owner of suit schedule property. Plaintiff specifically deposed that she is the absolute owner of suit schedule property. Under these circumstances, her pleading that she had orally agreed with defendant's father or with defendant is very difficult to accept.
30. Learned counsel for defendant submitted arguments that it is very difficult to prove oral agreement. High standard of proof is required to prove the same. In this regard, she relied on the citation reported in 2009(4) Mh.L.J. in Chandrahas v/s Misribai" wherein, their Lordships held as under;_ "10. It is the positive case of the appellant that an oral agreement was entered into in regard to the suit transaction. In such a situation, it is required to be noted that in the normal course, grant of specific performance based on oral agreement is always considered with reservations.
Assuming that in a peculiar case, the 31 O.S.No.2792/2008 Court would like to grant the relief of specific performance it will be the duty of the Court to ascertain the terms on the basis of which the parties wanted to complete the transaction. In such a case, the terms of oral agreement are required to be paced before the Court in the form of evidence so as to crystallize the terms on the basis of which specific performance was agreed to be granted.
In the present case, the evidence on record nowhere shows as to on what terms the specific performance was required to be granted. The quality of evidence placed before the Court in the matter of grant of specific performance is absolutely weak. In any case, in the absence of agreement that the owners who could convey the property i.e., in the absence of direct agreement with respondent Nos.1 and 2, the appellant could not get specific performance.
Whatever the transaction which he had with respondent No.3 was not binding upon respondent Nos.1 and 2. For the reasons mentioned aforesaid, the learned trial judge was right in appreciating the evidence against the appellant and that the learned trial Judge rightly declined to grant specific performance."
31. In this regard, learned counsel for plaintiff relied on the citation reported in ILR 2014 KAR 4185 in "S.V.Narayanaswamy v/s Smt.Savithramma, since 32 O.S.No.2792/2008 deceased by her Lrs. and others" wherein, their Lordships held as under:-
"A) Specific Relief Act, 1963 -
Sections 16 & 20- Oral agreement of sale -
Suit for specific performance of oral agreement of sale - Payment of full sale consideration amount in cheque and cash - Delivery of possession in part performance of agreement - Documents were handed over pursuant to the sale agreement -
Plaintiff/Appellant obtained licence and sanctioned plan for the construction-
Plaintiff/Appellant was authorized under the irrevocable General Power of Attorney to put up construction, to obtain licence, to pay taxes, to obtain necessary permissions from the authorities concerned - General Power of Attorney executed coupled with interest - Pleadings are in conformity with Section 16(c) of the Specific Relief Act - No specific denial of the plaint averments as required under Order 8 Rules 3 and 5 of CPC - Evidence on record to show the readiness and willingness of the plaintiff to perform his part of contract through the process of transaction. - Dismissal of suit by the Trial Court without exercising judicious discretion under Section 20 of the Act - Grant of decree of permanent injunction in favour of defendant -
Appealed against - Re-appreciation of evidence on record - HELD, Trial Court erred in dismissing the suit - Plaintiff /Appellant is entitled for specific performance of oral agreement of sale -
Appellant has pleaded all the ingredients of oral sale agreement - The pleadings are in 33 O.S.No.2792/2008 conformity with Section 16 (c) of the Specific Relief Act and Form Nos.47 and 48 of 1st Schedule to CPC -The pleadings and evidence of the respondents themselves show that the appellant was demanding, insisting and pressurizing the respondents to execute the sale deed after the death of 'X' and the respondent/LRs of late 'X' have declined to execute the sale deed. "
Further Held:
"(a) From the evidence on record, it is proved that the sale agreement was dated 17.12.1979. The sale consideration agreed was Rs.16,000/-. It was paid through cheques and cash. The documents were handed over. Possession was delivered.
Thereafter, the GPA was executed. The appellant has put up construction at his own cost. He has collected the sale deed from the BDA. The appellant was always and even now ready and willing to take the sale deed bearing expenses of stamp and registration charges. Therefore, it is clear, the appellant has pleaded all the ingredients of oral sale agreement. The appellant has proved the oral sale agreement dated 17.12.1979 - Therefore, in the circumstances, the appellant cannot be denied specific performance and he is entitled for specific performance."
"(c) Mere price escalation during the pendency of the litigation is not a ground to deny specific performance. The Court can impose reasonable condition to pay additional amount which is reasonable. In the present case, the litigation has gone on 34 O.S.No.2792/2008 for years. The respondents have approached the Court in O.S.No.5065/1987 and obtained injunction. They have denied the sale agreement and contested the matter in O.S.No.1920/1989. In the circumstances of case, and keeping in view the price escalation, it is proper to direct the appellant to pay additional amount of Rs.20,00,000/- in addition to the amount already paid. The appellant is entitled for specific performance, but subject to the condition that the appellant shall pay additional amount of Rs.20,00,000/- to the respondents."
32. In the above said citation, their Lordships held that based on oral agreement, the suit can be decreed. In the above said case, the plaintiff was in possession of suit schedule property in pursuance of sale agreement with defendant's husband. However, in present case, plaintiff is in possession of suit schedule property not in pursuant of agreement with defendant's father, but, she is in possession of suit schedule property in pursuance of General Power of Attorney and affidavit of one Smt.Saraswathamma. Furthermore, there was evidence in said case that plaintiff had constructed the building by investing huge amount, which was in the knowledge of 35 O.S.No.2792/2008 defendant's husband. Considering all those facts in total, their Lordships held that though there was oral agreement, it was established by plaintiff and suit was decreed. However, that is not the situation in present case.
33. In the instant case, as discussed above, plaintiff claims to be in oral agreement with defendant's father at one stretch and with defendant at another stretch. However, she has not mentioned either in the plaint or in the affidavit evidence, the date, month or year of such agreement. Further, in the cross-examination when plaintiff asserts that Smt.Saraswathamma was the owner of suit schedule property and plaintiff is its absolute owner. Even in the obstructer application filed by the plaintiff in Ex.203/94 during 2005, plaintiff specifically stated that defendant is nothing to do with suit schedule property. Said application was filed only after the payment during 2003 and 2004. Hence, she has not accepted the defendant as the owner of suit schedule property even in 36 O.S.No.2792/2008 this suit and also in said execution petition. Hence, there is no question of agreement with defendant to purchase suit schedule property from him. When plaintiff asserts that defendant is not the owner of suit schedule property, the above said ruling relied by plaintiff's counsel is not helpful to plaintiff.
34. In further cross-examination on 11/7/2011 itself, plaintiff has deposed that she has issued cheque for Rs.50,000/- in the year 2003 and for Rs.28,000/- in the year 2004 in favour of defendant. She further deposed that defendant agreed to sell the suit schedule property at Rs.95/- per sq.ft.; sale negotiations held between defendant and her husband; but defendant has not executed the agreement of sale and he has been postponing the same on one pretext or other. In the subsequent cross-examination on 17/12/2013, plaintiff has deposed that she does not know who has filed the suit against defendant. This shows the ignorance of plaintiff. 37 O.S.No.2792/2008 Plaintiff even does not know that she has filed the suit against defendant.
35. Defendant has produced certified copy of judgment and decree passed in O.S.No.5240/1987 as per Ex.D.1 & Ex.D.2, order sheet in Ex.203/1994 from 16/12/2003 till 29/1/2008 as per Ex.D.10. He has also produced his objection statement to the objector application filed by plaintiff in said execution petition as per Ex.D.5 and his objections to I.A. under S.151 CPC as per Ex.D.6 in said suit. He further produced certified copy of application filed by plaintiff in said case under Order XXI R.26 and 29 CPC, affidavit annexed to it, and its objections as per Ex.D.7 to Ex.D.9.
36. Defendant in his affidavit evidence at para No.15 has stated that he has received totally Rs.78,000/- through cheques and these cheques were handed over to defendant by husband of the plaintiff and not the plaintiff and said amounts was paid towards his claim for damages in view of the illegal occupation of his property by plaintiff 38 O.S.No.2792/2008 and her husband and they were not paid in pursuance of any agreement of sale.
37. In the cross-examination, D.W.1 denied the suggestion that said amount was paid towards agreement of sale. He admitted that plaintiff is in possession of suit schedule property. In the further cross-examination held on 20/2/2014, defendant has deposed that plaintiff had asked to pay some damages and to give time and agreed to vacate from the suit schedule property. Husband of plaintiff and plaintiff in other connected cases were present at the time of said discussions regarding vacating of suit schedule property. But said talk was not reduced into writing. He demanded damages of Rs.1,00,000/- from plaintiff and she agreed to pay Rs.50,000/- and subsequently, she paid said amount through cheque and she took one year time to vacate from the suit schedule property. He further deposed that Yogalakshmi (plaintiff) paid another Rs.28,000/- after one year and he had been to the office of plaintiff and collected said amount. It was paid through cheque or DD.
39 O.S.No.2792/2008
38. The above evidence of plaintiff and defendant made it very clear that there is no dispute about payment of Rs.50,000/- and Rs.28,000/- by plaintiff on 2 different occasions. But according to plaintiff, it was towards agreement of sale, whereas according to defendant, it was towards damages. In the further cross-examination on 17/3/2014 at page No.16, defendant has deposed that no rate of damage was fixed and at that time he has deposed that plaintiffs have agreed to vacate their respective premises at the earliest and no time limit was fixed.
39. At one stretch, defendant has deposed that one year time was fixed and plaintiff agreed to vacate the suit schedule property within one year, but at another stretch, he deposed that no time limit was fixed for vacating the property. Even according to him, rate of damage was not fixed. But as per his own evidence, plaintiff of this suit and other connected suits have agreed to pay damages differently.
40 O.S.No.2792/2008
40. In the cross-examination, defendant has deposed that the talk between plaintiff's husband and other plaintiffs pertaining to damages was not reduced in to writing. In the further cross-examination, he has deposed that he believed plaintiff and hence it was not reduced into writing. At another stretch, i.e., in page No.9, he has deposed that all the plaintiffs had agreed to vacate from the suit schedule property by taking some amount and requested some time to vacate from the suit schedule property.
41. Defendant himself has produced the obstructer's application filed by plaintiff and his objections to it. He admitted in the cross-examination that in the said objections, he has not stated that this plaintiff had agreed to vacate the suit schedule property after one year or after some reasonable time. He has also further deposed that he has not issued any notice to plaintiff for vacating the suit schedule property. He has not mentioned that plaintiff agreed to pay damages in said objection 41 O.S.No.2792/2008 statement, though it was filed subsequent to receiving the amount from plaintiff.
42. This defendant is an income-tax assessee. He has stated in his cross-examination at page No.14 that he is getting audited his account through his auditor and submitted his account along with IT returns from 2003-05 and showed the amount received from plaintiff in Income- tax returns, but he does not remember under what head he had shown that amount and he can produce the IT Returns for 2003-2005. Even though he has deposed so on 20/2/2014, he has not produced his IT returns. In the subsequent cross-examination on 17/3/2014, he has deposed that he has not made any efforts to meet his auditor to know whether his entire statement of accounts are available with the auditor for the relevant period or not and he could not produce the same since they are misplaced. Afterwards, plaintiff has filed an application to summon IT returns of defendant, but said application was rejected by this court by passing considered order. If 42 O.S.No.2792/2008 really, defendant has produced his IT returns, that would throw some light on the proceedings to know whether defendant has received the amount towards damages or towards agreement of sale. But, in the absence of same, with the available materials, the defendant has to prove for what purpose, he received said amount from plaintiff.
43. The above discussion reveals that defendant failed to prove that the amount received by him from plaintiff is towards damages.
44. It is the initial burden of plaintiff to establish that there is oral agreement between plaintiff and defendant regarding sale of suit schedule property. In this regard, in the above said ruling cited supra by defendant's counsel, unreported judgment in RSA.No.103/2008 at Dharwad Bench in "Albarsab & others v/s Smt.Tippawwa"
wherein, their Lordships held as under:-
"Section 101 of the Evidence Act mandates that, whoever approaches the Court for a particular relief or reliefs, must necessarily discharge the initial burden cast upon him or her. Unless the initial burden 43 O.S.No.2792/2008 is effectively discharged, the onus does not shift on the other side and inconsistencies, if any, in the case of adversary, cannot be taken advantage by the plaintiff. Therefore, unless the initial burden is effectively discharged, plaintiff cannot succeed on the weakness of the defendant, if any. "
45. It is true that always initial burden is on plaintiff to establish her case. However, when once, it is established, then the burden shifts upon defendant to disprove it. Furthermore, the admitted facts need not be proved. When defendant categorically admits the receipt of Rs.78,000/- in all in two occasions from plaintiff, plaintiff need not prove the same. Even otherwise, she has produced her Bank Account extract as per Ex.P.3 to prove it. On perusal of Ex.P.3 coupled with admission of defendant, it is very clear that defendant received Rs.78,000/- from plaintiff. The above discussion further reveals that defendant failed to prove that he received the same as damages from plaintiff.
46. Plaintiff has produced the certified copy of the judgment and decree passed in O.S.No.7364/2007 as per 44 O.S.No.2792/2008 Ex.P.8 to show that the connected cases filed by some other plaintiffs against same defendant were decreed by this court on 13/1/2014. The facts and circumstances of present suit and said suit are little bit different. There was written agreement between plaintiff and defendant in said suit. Said agreement was disputed by defendant in the written statement of said suit. Plaintiff has also produced certified copy of written statement filed in O.S.No.7361/2007, O.S.No.7362/2007 and 7363/2007 Ex.P.9 to 11 to show that defendant has taken the similar plea in those suits also. The written statements in said suit and in present suit are almost similar. Though defendant disputes written agreement of sale with plaintiff in his written statement in said suit, he admitted about the agreement, his signature, conditions mentioned in the agreement in toto in his cross-examination in said suit. Based on said evidence, this court has decreed said suit. Appeal against said judgment and decree is pending in Hon'ble High Court and said judgment has not become final. It is an admitted fact that not only in said suit, 6 45 O.S.No.2792/2008 other suits were also decreed at the time of passing judgment in O.S.No.7363/2007. As there was clear admission about written agreement between parties in those suits, said suits were decreed. However, that is not the situation in present suit, because defendant clearly disputes oral agreement with plaintiff in his written statement and also in his evidence and he reiterates the same in his cross-examination also. Except the admission regarding receipt of money through cheques from plaintiff, defendant has not admitted anything in this suit.
47. As already discussed above, mere payment by plaintiff does not give raise to the presumption that the plaintiff has paid the said amount only towards agreement of sale. In the citation relied by both plaintiff and defendant as discussed above, it is clearly held that to rely upon oral agreement, plaintiff has to produce substantial evidence. In the instant case, as discussed above, though at one stretch, plaintiff deposed the agreement with defendant, at another stretch, plaintiff disputes the 46 O.S.No.2792/2008 ownership of defendant itself over suit schedule property. When plaintiff disputes the ownership of defendant, plaintiff cannot prove oral agreement with defendant. Under these circumstances, it cannot be said that there is oral agreement between plaintiff and defendant and plaintiff has proved it. Hence, the judgment and decree passed in O.S.No.7364/2007 is not helpful for plaintiff to prove it.
48. Plaintiff has produced Ex.P.12, Ex.P.13, Ex.P.14 i.e., trade licence, sanction letter for electricity and general licence. They reveal that since from 1994 onwards, plaintiff is in possession of this property. Plaintiff has also produced BESCOM bills and receipts as per Ex.P.15 to 18. Ex.P.19, Ex.P.20 and Ex.P.21 are photographs of suit schedule property. All these documents only establish the possession of plaintiff over suit schedule property sine 1994 onwards. Plaintiff contended that she is in possession of suit schedule property based on GPA and affidavit executed by Smt.Saraswathi and not in pursuance 47 O.S.No.2792/2008 of sale agreement with defendant. Defendant also in his cross-examination admits possession of plaintiff over suit schedule property. Hence, these documents are not helpful for plaintiff to prove oral agreement with defendant.
49. The above discussion reveals that plaintiff has only able to prove the payment to defendant, but failed to prove that it was paid towards advance amount pertaining to agreement of sale and defendant also failed to prove that said amount is received by him by way of damages. Plaintiff also failed to prove that the agreement between parties to sell suit schedule property for a sum of Rs.95/- per Sq.feet. Accordingly, Issue No.1 is answered in NEGATIVE and Issue No.2 is answered PARTLY in AFFIRMATIVE.
ISSUE No.3
50. Plaintiff claims that she was and is ready to perform her part of contract. However, there is no specific plea on this point. Further, while discussing Issue No.1 & 2, this 48 O.S.No.2792/2008 court already held that plaintiff fails to prove the oral agreement with defendant. Hence, question of proving her readiness and willingness does not arise for consideration. Accordingly, Issue No.3 is answered in NEGATIVE.
ISSUE NOs.5 & 6
51. These issues are considered together, as they require common discussion. Learned counsel for defendant vehemently submitted argument that suit is not maintainable and in this regard, she relied on the citation reported in (1998) 4 SCC 543 in "Shreenath and another v/s Rajesh and others" wherein, their Lordships held as under:-
"10. Under sub-clause(1) Order 21 Rule 35, the executing court delivers actual physical possession of the disputed property to the decree holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the 49 O.S.No.2792/2008 occupant by bat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree holder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through the judgment debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree holder, in such a case, may make an application to the executing court complaining such resistance for delivery of possession of the property. Sub-clause(2) after 1976 substitution empowers the executing courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21 Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property evenif obstruction by a stranger is adjudicated and finally given even in the executing proceedings. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus 50 O.S.No.2792/2008 by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger."
52. Learned counsel for defendant further relied on the citation reported in (1968) 3 SCR 158 in "Moti Lal Banker(dead) by his LR v/s Maharaj Kumar Mahmood Hasan Khan" wherein, their Lordships held as under:-
"2. It is open to the parties to enter into a compromise with reference to their rights and obligations under a decree. There is nothing in the Code of Civil Procedure which prevents the parties from entering into such a compromise. If the compromise amounts to an adjustment of the decree, it must be recorded under Order 21, Rule 2 and if not so recorded, it cannot be recognized by any court executing the decree. The compromise of May 29, 1954 was so recorded within the prescribed period of limitation. The compromise was a fair bargain to postpone the execution of the decree on payment of reasonable interest. The terms of the compromise related to the execution of the decree. The executing Court has power to determine all questions arising between the parties to the suit relating to the execution of the decree and to give appropriate relief 51 O.S.No.2792/2008 on such determination. Exclusive power to determine such questions is given to the executing Court by Section 47 of the Code of Civil Procedure. The executing Court can determine all questions relating to the agreement postponing the execution of the decree and the incidental term as to the payment of the higher rate of interest. The agreement to pay the higher interest is enforceable in execution of the decree, See Oudh Commercial Bank Ltd., v. Thakurain Bind Basni Kuer. On the question whether the agreement to pay interest at a rate higher than the rate provided in the decree can be enforced in execution proceedings there was a conflict of judicial opinion. The Privy Council decision settled the law on this point. There was also earlier decisions which held that execution could have issue both for the sum decreed and for the interest promised, see Sreeshteedhur Shaha v. Woomeshnath Roy and Lakshmana v. Sukiya Bai.
53. The learned counsel for the defendant relied on the decision reported in AIR 1997 SC 1006 in Sultana Begum Vs. Prem Chand Jain in para 16 of the judgment, the Hon'ble Supreme Court has held as under;
"Order 21 Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the nature of decree, a such money is paid out of court, the decree holder has to certify such payment to the court whose duty it is 52 O.S.No.2792/2008 to execute the decree ad that court has to record the same accordingly. Similarly if a decree, irrespective of its nature, is adjusted in whole or in part to the satisfaction of the decree holder, the decree holder has to certify such adjustment to that court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree holder, the judgment debtor has been given the right to inform the court of such payment or adjustment and to apply to that court for certifying that payment or adjustment after notice to the decree holder. Then comes Sub-rule (3) which provides that a payment or adjustment which has not been certified or recorded under Sub-rule (1) or (2), shall not be recognised by the court executing the decree."
54. The learned counsel for the defendant also relied on the decision reported in 2000 SC 2757 in Lakshmi Narayanan Vs. S.S.Pandian which reads as;
"Tenancy - eviction - section 47 and Order 21 Rule 2 of CPC, 1908 - whether compromise entered into between parties executing new lease deed extinguishes previously grated decree for eviction - effect of compromise on executability of decree depends upon intention of parties - intention being mixed question of fact ad law is to be determined by executing court under section 47 on interpretation of decree and compromise in light of fact and 53 O.S.No.2792/2008 circumstances - previously granted decree does not extinguish automatically in wake of compromise for fresh lease deed unless same is established from it."
55. The learned counsel for the defendant also relied upon the decision reported in AIR 1959 KAR 155 in K.C.Pillappa Vs. M.Munireddy, wherein it reads as;
"Secondly once it is conceded, as it has to be, that the question raised by the application is one relating to satisfaction of a decree, section 47(1) expressly requires that it shall be determined by the executing court and not by a separate suit. When, therefore, an executing court finds that it is prevented from recognizing an uncertified satisfaction of the decree by reason of Order 21 Rule 2(3), all that it can do is to refuse to recognize the satisfaction and dismiss the application."
56. The learned counsel for the defendant also relied on the decision reported in AIR 1991 Calcutta 402 in Nebubala Sardar Vs. Abdul Aziz Baidya and para 6 of the judgment reads as follows:
"This second appeal has been
preferred by the defendant, being
aggrieved by the judgment and decree of the lower court. The concurrent findings 54 O.S.No.2792/2008 of fact cannot be challenged in this court of appeal. As a matter of fact, Mr.Bagchi, appearing for the appellant, does not assail any of the findings of the two courts below. He takes a very short and interesting point in this second appeal. His contention is that the suit for specific performance of contract is barred under section 47 of the C.P.Code and therefore, any decree that may be passed in this suit by the court is void. In other words, he means to say that execution ought to have been levied to reap the benefit under the decree in title suit No.313 of 1971, and an independent suit would not lie. In support of his contention reliance is placed upon two decisions, namely, (1) Rabindra Nath Vs.Dhirendra Nath, reported in MANU/WB/0026/1939: AIR 1940 Cal82 and (2) Sadananda V. Union of India, reported in MANU/WB/0106/1956: AIR 1956 Cal
317. I have gone through those decisions. Those decisions squarely uphold the views expressed by Mr.Bagchi. The decree in the instant suit is void. The plaintiff could not institute the suit to enforce the terms of 55 O.S.No.2792/2008 compromise which was incorporated in a decree. In other words, a suit for specific performance of contract would not lie to enforce the terms of the compromise decree. The result under the compromise decree could be achieved only by way of execution. Mr.Chakraborty, appearing for the respondent, relied upon another division bench decision in Charu Ch. V. Birendra Nath, reported in MANU/WB/0005/1970: AIR 1970 Cal 34.
What is spelt out in this decision is that in case of a decree of dismissal in terms of compromise a separate suit for specific performance of contract would lie.
Mr.Bagchi submits that there is no real conflict between the decisions cited by him and the decision relied upon by Mr.Chakraborty. The most distinguishable feature of the two sets of decisions is that while a decree in terms of compromise can only be satisfied by means of execution of a decree, a decree of dismissal in terms of compromise cannot be so satisfied. In order to enforce a term of a decree of compromise which ended in dismissal it 56 O.S.No.2792/2008 can only be satisfied by means of an independent suit unless, of course, in the said terms of compromise it is stated that the term so stipulated in the compromise petition is enforceable by means of an execution despite a decree of dismissal. In the instant case, therefore, the suit filed by Mr.Chakraborty's client can, by no means, succeed since the earlier suit being Title Suit No.313 of 1971 had ended in a decree by compromise. Therefore, the plaintiff ought to have levied execution in order to satisfy the terms of decree instead of maintaining an independent suit for specific performance of contract. I quite agree with Mr.Bagchi in this behalf."
57. The learned counsel for the defendant also relied on the decision reported in AIR 1955 Bom 64 in Ganpatrao Sitaram Borlikar Vs. Shridhar Mukund Polekar, and para 4 of the judgment which reads as follows:
"But there is another difficulty in the way the plaintiff which is equally serious, 57 O.S.No.2792/2008 difficult it is difficult to understand, again with respect to the learned judge, how he could have investigated to the issue as to the agreement relied - upon by plaintiff. That issue was the subject - matter the proceedings pending in the small cause court, and it is unnecessary to state that proceeding for the adjustment or compromise a decree can only be initiated under see-in 47 of the Civil P.C. and not by abstansive suit. The learned Judge attempt-to decide an issue which could only have been decided by the executing court and which infact as pending before the executing court.
The reason that the learned judge gives why he went into this matter and why according to him section 47, Civil P.C. was not made applicable was that the relief as to declaration that the plaintiff was a tenant could not have been given by the small cause court. Obviously, with respect, the learned judge has fallen into an error. It is the sole right of the executing court to try an issue as to 58 O.S.No.2792/2008 whether a decree has been adjusted or not. It is for the executing court to decide what the adjustment is and to record that adjustment of the decree. To that extent that the executing court can give relief to that adjustment, the executing court will give it. To the extent it cannot, it may be that the judgment debtor might become entitled to file a suit or take other proceedings for enforcing the part of the adjustment in respect of which the executing court could not give any relief."
58. The learned counsel for the defendant also relied on the decision reported in CS(OS)No.1358/2005 of Hon'ble High Court of Delhi in CE Construction Ltd. and another Vs. Durga Builders Pvt. Ltd. and others, and para 11 of the judgment reads as follows:
"In the execution petition apart from seeking the execution, registration of the documents, custody of the original title documents, warrants of possession in respect of the entire first floor were also prayed for. A bailiff was sought for the 59 O.S.No.2792/2008 said purpose with police aid. It was at that stage seeking execution that judgment debtors being defendants 1 to 3 herein filed objections under Order 21 Rule 58 CPC alleging that they have not violated the terms of the compromise decree and that the original title documents had been misplaced for which police report had been lodged. In respect of the first floor, it was stated that the same was in possession of occupants under them who were now refusing to vacate. It was in these circumstances that a Local Commissioner was appointed vide order dated 17/1/2004 to make a report about the identity of the occupants on the first floor who submitted the report. The objections were thereafter filed by M/s. CE Construction Limited, plaintiff No.1."
59. In all the above said rulings, it is categorically held that if a person claims right through judgment debtor of any decree, then such rights should be decided only in execution case and not otherwise. It is further held in those rulings that if part of the decree is satisfied, then it is 60 O.S.No.2792/2008 to be reported to the executing court and decree holder has to certify such adjustment in said executing court. In the instant case, plaintiff claims that to have peace and to end litigation, plaintiff agreed to purchase suit schedule property from defendant or from his father at the rate of Rs.95/-per sq.f.t. The word "litigation" used in these pleadings is referred to Ex.No.203/94 and not to any other litigation. Because, that is the only pending case pertaining to suit schedule property. Hence, plaintiff ought to have reported settlement between parties in Ex.No.203/94 and she is not supposed to file separate suit. Even plaintiff made efforts to make such report in Ex.Petition by filing I.A. under S.151 CPC praying for dismissal of execution petition as parties have arrived at settlement. However, plaintiff herself got dismissed said application for the best reasons known to her. As discussed above, defendant has filed objections to said I.A. as per Ex.D.6. Even in said objections also, defendant disputes agreement with plaintiff. Even if any compromise entered between parties, it should be reported to executing court and filing of 61 O.S.No.2792/2008 separate suit is barred as per the principles laid down in all the above said citations. Under these circumstances, filing separate suit by plaintiff is not maintainable. Accordingly, issue Nos.5 & 6 are answered in affirmative.
ISSUE No.4
60. When plaintiff failed to prove the oral agreement with defendant, there is no question of consideration of the fact that whether defendant failed to execute the regular sale deed or not. Accordingly, this issue is answered in negative.
ISSUE No.7
61. Learned counsel for plaintiff submitted that suit is not barred by limitation and in this regard, he relied on the citation reported in AIR 2006 SC 40 in "S.Brahmanand and others v/s K.R.Muthugopal(D) and others"
wherein, their Lordships held as under:-
"Limitation Act (36 of 1963), Art.54 - Specific Relief Act (47 of 1963), S.16 - Contract Act (9 of 1872), S.63 - Suit for specific performance of contract - Limitation - Expression 'date' occurring in Art.54, from which time begins to run - Not suggestive of specific calendar date -62 O.S.No.2792/2008
Original agreement had 'fixed date' for performance - But, by subsequent letter defendant requested for postponing performance to future date without fixing any further date for performance - Plaintiffs by their act of forbearance and not insisting on performance forthwith accepted postponing performance - Time for performance stands extended - Case covered by second part of Art.54 - Plaintiffs realized that there was refusal to perform, when they were forcibly evicted from the godown- Counted from this date of refusal suit filed within 15 days was perfectly within period of limitation."
62. Learned counsel for plaintiff further relied on the citation reported in (2009) 5 SCC 462 in "Ahmadsahab Abdul Mulla (2)(Dead) by proposed LRs v/s Bibijan and others" wherein, their Lordships held as under:-
"B. Limitation Act, 1963 - Art.54 - Limitation period for suit for specific performance - Plaintiff whether had notice of refusal of performance, and date of refusal - Determination of - Materials to be considered - Held, to be established with reference to materials and evidence to be brought on record."
63. Learned counsel for plaintiff further relied on the citation reported in ILR 1989 KAR 2408 in "Ameer 63 O.S.No.2792/2008 v/schandrasekharappa" wherein, their Lordships held as under:-
"Specific Relief Act, 1963 (Central Act No.47 of 1963) - Section 10 - Parties not precluded from reducing agreement on plain paper and later get it validated - If time not essence of contract, failure to stipulate does not render contract void - Vendor not sole owner of property, does not absolve him from liability under agreement."
64. Learned counsel for plaintiff further relied on the citation reported in ILR 2010 KAR 765 in "Syed Zaheer and others v/s C.V.Siddaveerappa"
"(A) Limitation Act, 1961 - Article 54 - Suit for specific performance of contract - Period of Limitation - Time from which period begins to run - HELD, Article 54 of the Limitation Act specifies two points of time from which time begins to run for the purpose of computing the period of three years limitation with regard to filing suits for specific performance of contract. One, is the date fixed for the performance of the contract and two, if no such date is fixed then when the plaintiff has notice of the performance being refused."
65. Learned counsel for plaintiff further relied on the citation reported in 2010(3) KLJ 80 in "K.S.Srinivasiah 64 O.S.No.2792/2008 and another v/s Munivenkatamma" wherein, their Lordships held as under:-
"Specific Relief Act, 1963, Section 20
- Agreement of sale - Prohibition of registration by Government - Parties agreed to complete sale upon such ban being lifted - Notwithstanding lifting ban entire sale consideration was to be paid within the agreed date - Entire sale consideration was not paid but position of consideration was paid after the expiry period of agreed date - Then plaintiff filed suit for specific performance - Court below held plaintiff entitled to decree - Aggrieved party questioned the relief in second appeal - Held - Entire sale consideration was unpaid - Did not indicate readiness and willingness in the performance of contract by defendants - Court below were not justified in exercising discretion under Section 20 - Receipt of money by defendants was in violation of condition imposed by them - Indicate waiver of condition of performance of agreement within time fixed - defendants not taken steps to terminate contract or claim that there was breach of contact - Hence Court below were not required to treat time as being essence of contract - Appeal rejected."
66. The above said citations produced by plaintiff's counsel to show that suit filed by plaintiff for specific performance of the agreement is not barred by limitation. 65 O.S.No.2792/2008 However, when plaintiff failed to prove the oral agreement with defendant, consideration of the principles narrated in these citations is not required.
67. Learned counsel for defendant relied on the citation reported in 1969(2) SCC 539 in "Ouseph Varguese v/s Joseph Aley and others" wherein, their Lordships held as under:-
"9. ............A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement."
68. Learned counsel for defendant further relied on the citation reported in (1995) 5 SCC 115 in "N.P.Thirugnanam(dead) by LRs v/s Dr.R.Jagan 66 O.S.No.2792/2008 Mohan Rao and others" wherein their Lordships held as under:-
"The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
69. Learned counsel for defendant further relied on the citation reported in (2003) 10 SCC 390 in "Manjunatha Anandappa URF Shivappa v/s Tammanasa and others" wherein, their Lordships held as under:- 67 O.S.No.2792/2008
"30. There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on record to show that he had ever asked defendant 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief."
"32. In Lourdu Mari David v/s Louis Chinnaya Arogiaswamy this Court observed: (SCC p.590 para 2) "2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."
70. Learned counsel for defendant relied on above citations only to say that plaintiff has no readiness and willingness to get sale deed from defendant and there is 68 O.S.No.2792/2008 delay on part of plaintiff to file the suit. However, while discussing issue No.1, 2, 5 and 6, this court already held that plaintiff has not proved the agreement with defendant as per law. Hence, consideration of the fact whether there was readiness and willingness on the part of plaintiff or not and whether there is delay on the part of plaintiff is not required. Hence, consideration of the principles narrated in these citations is not required.
71. In view of findings on issue Nos.1 to 6, and for the above reasons, this court holds that plaintiff is not entitled for the relief of specific performance as prayed for. Accordingly, this issue is answered in negative.
ISSUE No.8
72. In view of findings on issue Nos.1 to 7, this court proceeds to pass the following:-
69 O.S.No.2792/2008
ORDER Suit is dismissed.
Under facts and circumstances of the case, parties are directed to bear their own costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 10th day of September, 2015).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt.Yogalakshmi
b) Defendant's side :
D.W.1 - N.S.Suresh Babu II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 GPA executed by Smt.Saraswathi & others Ex.P.2 Affidavit sworn to by Smt.Saraswathi & others Ex.P.3 True copy of statement of account of Corporation Bank Ex.P.4 Certified copy of I.A. and affidavit field U/O 21 R.97 CPC in Ex.203/1994 70 O.S.No.2792/2008 Ex.P.5 Copy of legal notice Ex.P.6 Certificate of posting Ex.P.8 Certified copy of judgment in O.S.NO.7364/2007 Ex.P.9 to Certified copy of written statement Ex.P.11 filed in O.S.No.7361/2007, O.S.No.7363/2007 and O.S.No.7364/2007 Ex.P.12 Certified copy of trade licence Ex.P.13 Sanction letter issued KEB Ex.P.14 General licence issued by Pattanagere Panchayath Ex.P.15 to 2 electricity bills and 2 receipts Ex.P.18 Ex.P.19 to 3 photographs of suit schedule Ex.P.21 property Ex.P.22 CD pertaining to suit schedule property
(b) Defendants' side : -
Ex.D.1 Certified copy of judgment in O.S.No.5240/1987 Ex.D.2 Certified copy of decree in O.S.No.5240/1987 Ex.D.3 Certified copy of I.A. No.36 filed by plaintiff in Ex.No.203/1994 Ex.D.4 Certified copy of the affidavit filed in support of I.A.No.36 Ex.D.5 Certified copy of the objections filed to I.A.No.36 in Ex.No.203/1994.
Ex.D.6 Certified copy of the objections filed to I.A.No.49 in Ex.No.203/1994 Ex.D.7 Certified copy of the I.A.No.78 in Ex.No.203/1994 71 O.S.No.2792/2008 Ex.D.8 Certified copy of the affidavit filed in support of I.A.No.78 in Ex.No.203/1994 Ex.D.9 Certified copy of the objections to I.A.No.78 in Ex.No.203/1994 Ex.D.10 Certified copy of the order sheet for the period 2004 to 2008 in Ex.No.203/1994.
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-