Bangalore District Court
Sri. G.Venkatesh vs Smt. Munilakshmamma on 11 January, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 11th day of January 2016.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.4989 of 2007
C.C.H.8
Plaintiff/s: Sri. G.Venkatesh
S/O Gurappa,
aged about 43 years,
R/at No.32, Balaji Layout,
Chikka Banasawadi,
Behind Eerappa Reddy Layout,
Banasawadi Road, Bengaluru-43.
(By Sri. S.M.H.K advocate)
Vs.
Defendant/s: 1. Smt. Munilakshmamma
W/O Late Eeragenchappa,
aged about 50 years,
2. Smt. Sujatha
D/O Late Eeragenchappa,
aged about 36 years,
3. Sri. Mohan,
S/O Late Eeragenchappa,
aged about 32 years,
4. Sri. Bathyappa
S/O Late Eeragenchappa,
aged about 29 years,
2 OS. No.4989 of 2007
All are residing at No.16/3, 1st Main
Road, Marenahalli, Vijayanagar,
Bengaluru-40
(By Advocate Sri. M.J.N )
Date of the institution of suit: 29.6.2007
Nature of the suit: Specific performance
Date of the commencement of 7.9.2009
recording of the evidence :
Date on which the judgment 11.1.2016
was pronounced :
Total duration: Year/s Month/s Day/s
08 06 12
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is a suit filed by the plaintiff against defendant No.1 to 4, who are the LRs of one late Eeragenchappa in respect of specific performance of contract of alleged sale agreement dated 09.12.2005 said to have been executed by deceased Eeragenchappa and present defendant No.1 to 4 in respect of agricultural land measuring 1 acre 35 guntas 3 OS. No.4989 of 2007 including 3 guntas of kharab land situated at Kalkere village, K.R.Puram Hobli, Bengaluru East Taluk.
2. The case of the plaintiff as pleaded in his plaint briefly stated as follows:-
One late Eeragenchappa, the husband of 1st defendant and father of defendant No.2 to 4 and the defendants herein the owners of land bearing Sy.No. 146 measuring 1 acre 35 guntas and 3 guntas karab land situated at Kalkere village,K.R.Puram Hobli, Bengaluru East Taluk , which is morefully described in the plaint schedule and this agricultural land is herein after referred to as suit schedule property. It is alleged by the plaintiff that the deceased Eeragenchappa was suffering from cancer and they were in need of money for his medical treatment and also to meet out their family and their legal necessities, wherein deceased Eeragenchappa and defendants herein have approached him in the month of November 2005 and expressed their need of amount for medical treatment and also for family necessity and they intended to dispose of the suit schedule property and also they expressed their willingness to sell the schedule land to the plaintiff, wherein after sale negotiations held between plaintiff and deceased Eeragenchappa and defendant No.1 to 4 herein, the sale price of schedule property was fixed at the rate of Rs. 41-00 lakhs per acre of land and plaintiff 4 OS. No.4989 of 2007 has accepted the offer of the defendants and as per the oral terms agreed upon, the defendants and late Eeragenchappa have executed sale agreement in favour of plaintiff in writing on 9.12.2005 on such terms and conditions and received cheques for a sum of Rs.1,50,000/- each by way of separate cheques drawn in the name of defendants and late Eeragenchappa, wherein on the same day, defendants and deceased Eeragenchappa have also received a sum of Rs.7,50,000/- by way of cash as agreed upon and defendants and late Eeragenchappa have together received a sum of Rs.15-00 lakhs by way of advance amount as per sale consideration amount in respect of sale agreement dated 09.12.2005 and it was agreed to pay balance sale consideration amount on the date of registration of the sale deed. The defendants also agreed to furnish the necessary documents as mentioned in Clause No.10(2) of the sale agreement and defendants and late Eeragenchappa have also agreed to get the lands surveyed and to produce survey sketch map as actual sale consideration amount is payable on the available actual area as per Clause No. 1(a) of the sale agreement. It is further alleged that in compliance to Clause No.10(2) of the sale agreement by the defendants and late Eeragenchappa, which was condition precedent and which shall be complied by the defendants before the date of registration of sale deed. The time stipulated under the 5 OS. No.4989 of 2007 agreement of sale for the performance of contract obligation for 6 months subject to strict compliance of terms of agreement of sale by the defendants and late Eeragenchappa thus the time stipulated in the agreement of sale is not the essence of contract, wherein defendants and late Eeragenchappa agreed to execute sale deed in the name of plaintiff at his costs and also agreed to deliver possession of the schedule property on the date of execution of sale deed.
The plaintiff started demanding the defendants and late Eeragenchappa within two weeks after the sale agreement was executed to comply the terms of agreement of sale and to execute sale deed in his favour by receiving balance sale consideration amount. But the defendants and late Eeragenchappa expressed their inability to secure the required documents and also to obtain survey sketch map as Eeragenchappa was suffering from cancer and was in critical condition and hence, defendants have sought time to furnish necessary documents and also to obtain survey sketch. The plaintiff apprising the situation decided to wait for some time, wherein late Eeragenchappa, the husband of the 1st defendant and father of defendant No.2 to 4 ultimately died on 14.1.2006 and plaintiff contacted the defendants after the death ceremony of late Eeragenchappa was over and plaintiff requested the defendants to obtain transfer of katha and pahani extracts into their names in respect of suit 6 OS. No.4989 of 2007 schedule property and to furnish necessary documents as mentioned in the agreement of sale. Though defendants assured the plaintiff that they will get change katha transferred in their names and also they will obtain and to furnish all the documents, which are required for registration of sale deed and they will execute sale deed in favour of plaintiff. But defendants as per their assurance and promise, they could not executed the sale deed inspite of plaintiff's repeated request and demands and defendants in one or the other pretext postponed the execution of sale deed in favour of plaintiff by complying the terms of the agreement of sale. The plaintiff also pleaded his readiness and willingness to comply specifically that the terms of the agreement of sale from day one and even as on today at any time hereafter, he is ready to pay balance sale consideration amount and to get sale deed registered at his cost from the defendants. But defendants did not come forward to comply with the terms of agreement of sale with ulterior motives. The plaintiff got issued legal notice dated 28.7.2006 to the defendants calling upon them to execute registered sale deed in favour of plaintiff after receiving balance sale consideration amount, wherein the said notice was sent both by RPAD and also UCP to the address as furnished in the agreement of sale and notice sent under UCP is duly served upon defendants and legal notice sent through RPAD was also served upon 7 OS. No.4989 of 2007 defendant No.3 and 4 and RPAD notice issued to defendants No.1 and 2 returned unserved as door locked. The defendants have sent untenable reply to the legal notice caused by the plaintiff through their counsel vide reply notice dated 2.8.2006. Though defendants have admitted the execution of sale agreement dated 09.12.2005, but defendants in their reply notice stated that they have received advance sale consideration amount of Rs.13,50,000/- only. Thereafter, defendant No.3 approached the plaintiff and requested him to pay cash by returning the cheque bearing No. 257994 dated 30.12.2005 issued in his favour under the agreement of sale on the pretext that he is need of amount to meet his commitments. The plaintiff after collecting the original cheque from defendant No.3 has paid a sum of Rs.1,50,000/- by way of cash to defendant No.3 on 30.12.2005 and plaintiff has denied the contents of reply notice that Rs.10,50,000/- was paid to late Eeragenchappa alone. The sum of Rs.7,50,000/- in cash was paid by plaintiff to all the defendants including late Eeragenchappa on 9.12.2005, which was duly acknowledged by the defendants including late Eeragenchappa by signing the agreement of sale. The plaintiff was shocked and surprised after going through the contents of reply notice that there was a registered partition between the defendants and late Eeragenchappa on 18.2.2005 and that Eeragenchappa was 8 OS. No.4989 of 2007 owning only 14 guntas of land in respect of Sy.No.146 of Kalkere village and that Eeragenchappa utilized Rs.10,50,000/- for himself. Plaintiff alleged that none of the defendants or late Eeragenchappa have disclosed about the fact of partition dated 18.2.2005 and the revenue records in respect of schedule property stood in the name of late Eeragenchappa and thus the plaintiff bonafidely entered into sale agreement with defendants and late Eeragenchappa. Defendants, who have suppressed the fact of partition at the time of agreement of sale and defendants are estopped from taking such contention at later stage, wherein defendants and late Eeragenchappa have jointly executed sale agreement in favour of plaintiff and defendants being the parties to the agreement of sale and as legal heirs of deceased Eeragenchappa are jointly and severally executed the sale deed and to conclude the contract. The plaintiff further alleged that after receipt of legal notice of defendants dated 2.8.2006, wherein defendants personally met the plaintiffs on 20.8.2006 and they informed that sons of Seethappa i.e., elder brother of Eeragenchappa sons have filed suit for partition before City Civil Court and they will settled the matter as early as possible and they will perform their part of contract obligation and for that, plaintiff orally agreed and 6 months time was fixed to the defendants. But defendants have not done any act within this time and again in the 9 OS. No.4989 of 2007 month of May 2007, i.e., on 30.5.2007, plaintiff met defendants and requested them to execute sale deed. But defendants again requested time to perform their part of contract and hence, plaintiff left with no alternative constrained to file the suit for specific performance of contract and plaintiff also alleged that time mentioned in the agreement of sale is not essence of contract and defendants have not complied the terms of agreement of sale and even they have not filed any necessary application for change of katha and not obtained survey sketch as agreed under the terms of sale agreement. Hence, defendants were not ready to perform their part of contract obligation. Hence, defendants being the LRs of deceased Eeragenchappa and defendants have executed sale agreement jointly along with Eeragenchappa. Hence, defendants are liable to execute sale deed and plaintiff also pleaded readiness and willingness to perform his part of contract since the day one of contract entered into as on today and plaintiff also alleged that the defendants are making arrangement to create encumbrance over the schedule property and also to alienate the suit schedule property in favour of 3rd persons with an intention to make unlawful gains and to deprive the plaintiff from obtaining schedule property and to defeat his rights agreed under the agreement of sale. Hence, plaintiff has filed the suit for specific performance of contract and for consequential 10 OS. No.4989 of 2007 relief of injunction to restrain the defendants from alienating or encumbering the suit schedule property.
3. The defendant No.1 to 4 appeared in response to suit summons issued to them and defendants have filed their written statement to answer the claim of plaintiff, wherein defendant No.1 to4 have filed their common written statement taking various defense and have raised preliminary objections regarding the maintainability of the suit for specific performance of alleged contract of sale dated 09.12.2005 on 4 grounds.
(i) There is no concluded contract entered into between the plaintiff and the defendants and the alleged agreement of sale produced by the plaintiff is not signed by the plaintiff himself and therefore, the same is unenforceable.
(ii) The alleged agreement of sale is opposed to public policy and therefore, the same is void under Sec. 23 of the Contract Act.
(iii) The plaintiff is not an agriculturalist who suffers from the legal disabilities under Sec. 79 A and B under the Karnataka Land Reforms Act and hence, he is not entitled to purchase agricultural lands and therefore, the alleged 11 OS. No.4989 of 2007 agreement of sale dated 09.12.2005 is void under law and therefore, the agreement is unenforceable.
(iv) The suit in O.S. No.4830/2006 filed by Pillaraju and others for the relief of partition in respect of the suit schedule property pending on the file this Hon'ble Court and therefore, the specific performance cannot be ordered.
Apart from these preliminary objections raised in the written statement, the defendants in further written statement at para No.3 contended and denied that defendants late Eeragenchappa were the joint owners of suit schedule property and they contended that the suit schedule property was partitioned amongst deceased Eeragenchappa and defendant No.1 to 4 on 18.2.2005 under registered partition deed whereupon the suit schedule property had been divided among all the co-sharers, whereupon late Eeragenchappa had got 14 guntas of land to his share and defendants also denied that deceased Eeragenchappa was suffering from cancer and defendants were in need of funds for medical treatment and family necessity and they approached the plaintiff in the month of November 2005 and at that time, defendants offered to sell their lands for Rs.41- 00 lakhs per acre and sale agreement negotiations were held and plaintiff accepted the offer and accordingly, sale 12 OS. No.4989 of 2007 negotiations were concluded and defendants offered to sell their lands in favour of plaintiff and defendants also denied that they received a sum of Rs.15-00 lakhs towards advance amount towards sale consideration amount. On the contrary, they admits that late Eeragenchappa had received Rs.7,50,000/- in cash and Rs.3-00 lakhs by way of cheques and in total late Eeragenchappa had received Rs.10,50,000/- only from the plaintiff and the said amount has been utilized by late Eeragenchappa for himself and hence, defendant No.1 to 4 are not beneficiaries of the said amount and defendants contended that the total amount paid by the plaintiff under the alleged agreement of sale is only Rs.13,50,000/- and defendants contended that they have furnished all the necessary documents as mentioned in Clause No.10(2) of sale agreement. But they denied that late Eeragenchappa had agreed to get surveyed the land and to produce survey sketch for the registration of the sale deed and defendants also denied that there is clause or any condition in respect of surveying the land and to produce survey sketch. The time stipulated under the contract of 6 months was condition precedent and there is no rider on Clause No. 1(2), wherein plaintiff had ascertained the title of the defendants and thereafter he had entered into contract for sale and plaintiff himself had collected the title deeds from the defendants and from late Eeragenchappa and plaintiff did never demand any 13 OS. No.4989 of 2007 other additional documents and there was no demand for surveying the land as claimed by the plaintiff and at no point of time, plaintiff had demanded the defendants to execute sale deed and defendants denied the plaintiff's readiness and willingness. The defendants further denied that plaintiff had no funds to make payment of the consideration amount and plaintiff had deliberately delayed the matter and in the process, the stipulated period of 6 months was lapsed and at no point of time, plaintiff had approached the defendants showing his readiness and willingness to obtain sale deed. Hence, defendants have denied the averments as made by the plaintiff regarding his readiness and willingness. The defendants have admitted that they have received the legal notice caused by the plaintiff dated 20.7.2006 and they have replied the notice through their counsel on 2.8.2006 and at the time of issuance of legal notice, the plaintiff has made different statement and after referring to the reply notice, the plaintiff had changed his mind and changed the pleadings in the plaint and thereby made inconsistent pleas and defendants contended that alleged agreement of sale entered into dated 09.12.2005 had been terminated with afflux of time and a feeble attempt is being made by the plaintiff to overcome the lapses on his part and defendants contended that alleged agreement of sale got terminated automatically by afflux of time and hence, plaintiff is not entitled to seek 14 OS. No.4989 of 2007 any relief based upon the said agreement of sale and there is no concluded contract subsisting between them and since plaintiff is not signatory to the alleged agreement of sale is not entitled to seek specific performance of contract and defendants made reference in respect of suit filed by the sons of Seethappa namely Pillaraju and others, who have filed the suit in O.S. No.4830/2006 seeking for partition and separate possession in respect of suit schedule property and therefore,, specific performance cannot be enforced or ordered and defendants contended that the sale transaction could have been concluded on or before 8.6.2006. But transaction could not be completed due to breach of contract by the plaintiff himself, wherein plaintiff himself had pleaded his inability to pay the balance sale price and for that reason, the sale transaction could not be completed. But at the belated stage, plaintiff has come up with this frivolous suit for specific performance, wherein plaintiff had became incapable of performing his part of contract and therefore, he is not entitled to seek any relief of specific performance and plaintiff has no funds even now to pay towards balance sale consideration amount and defendants further contended that if specific performance relief is granted, they would put to greater hardship and on the contrary, no hardship would be caused to the plaintiff, if specific performance is refused and defendants further contended that subsequent events 15 OS. No.4989 of 2007 and the development that have taken place in the matter have made the agreement of sale unenforceable and defendants have denied the cause of action as alleged by the plaintiff. Hence, defendant No.1 to 4 have filed their combined written statement on 7.11.2007 and prays to dismiss the suit filed by the plaintiff.
4. Based upon these rival pleadings, the following issues are framed for trial of the suit on 7.6.2008 and also one additional issue was framed on 2.12.2015:-
1. Whether the plaintiff prove that the defendants and one Late Eeragenchappa agreed to sell the schedule property at the rate of Rs.41-00 lakhs per acre and executed an agreement of sale dt: 9.12.2005 and received the advance amount of Rs.15,00,000/-?
2. Whether the plaintiff proves that he has been always ready and willing to perform his part of the contact?
3. Whether the defendants prove that the alleged agreement of sale dtd 9-12-2005 had been terminated by the efflux of time and alleged?
4. Whether the plaintiff is entitled the relief of Specific Performance of contract and possession of schedule property?
5. What Order or Decree?16 OS. No.4989 of 2007
ADDITIONAL ISSUE
1. Whether the defendants proves that the plaintiff is barred from purchasing the suit schedule property in view of bar under Sec. 79(A) and (B) of Karnataka Land Revenue Act?
5. In order to prove the above issues, parties to the suit have entered the trial, wherein on plaintiff side plaintiff himself is examined as P.W.1 and got marked the documents Ex.P.1 to P.27and also examined one witness P.W.2 and with this evidence, plaintiff side is closed. On behalf of defendants, wherein defendant No.3 is examined as D.W.1 and Ex.D.1 the certified copy of plaint in O.S. No.4830/2006 is marked and further defendants have examined on M.Munaiyappa as witness D.W.2 in this case and with this evidence, defendants evidence is closed. Thereafter, the suit is posted for arguments.
6. Heard the arguments of learned counsel appearing for the plaintiff and heard the arguments of learned counsel for the defendant No. 1 to 4 and apart from oral arguments both the learned counsel have submitted their written arguments /written synopsis and also produced the citations reffered by them in their arguments.
17 OS. No.4989 of 2007In support of their case, advocate for plaintiff relied upon the following decisions:-
1. AIR 2013 SC 434 ( Satya Jain Vs. Anis Ahmed Rushdie)
2. AIR 1999 SC 3029(Syed Dastagir Vs. Gopalakrishna Setty)
3. AIR 2006 KAR 273 (Manasa Housing Co-
operative Society Ltd., Vs. Marikellaiah and others)
4. AIR 2001 SC 2446,( V.Pechimuthu Vs. Gowrammal)
5. 2007(4) K.L.J 293(DB)( Smt. M.C.Nagalakshmi and others Vs. M.A.Farook and another)
6. 1988(1) K.L.J 563(Mrs. Sushila A/.Dass Vs. Mrs. Mary Bolgar)
7. 2005(AIR SCW 4789( Aniglase Yohannan Vs. Ramlatha and others)
8. 1979 SC 653 (State of Crissa Vs. Nakula Sahu) In support of their case, the advocate for defendant has relied upon the following decisions:-
18 OS. No.4989 of 20071. AIR 2014 SC 2253 ( Shamsher Singh and others Vs. Rajinder Kumar and others)
2. 2011(2) SCJ 622(Kalyan Singh Chouhan Vs. C.P.Joshi)
3. 2011(5) KLJ 77 SC(Vimaleshwar Nagappa Shet Vs.Noor Ahmed Sheriff and others) 4.2010(7) SCJ 814( Man Kaur(Dead) by LRs Vs, Hartar Singh Sangha)
5. AIR 1984 SC718(1) (A.R. Antulay Vs, Ramdas Sriniwas Nayak and another)
7. After hearing the arguments and on appreciation of the pleadings, oral and documentary evidence placed on record by both the parties and considering the written arguments submitted on both sides and considering the documents submitted by the plaintiff's counsel along with written arguments and considering the written arguments of the defendants and on appreciation of the entire material placed on record I answer the above issues are as follows:-
Issue No.1 In the affirmative;
and 2:
Issue No.3: In negative Issue No.4: Plaintiff is entitled for the relief of specific performance of contract ;19 OS. No.4989 of 2007
Additional In negative Issue No.1: Issue No.5: The suit of the plaintiff deserves to be
decreed with costs for the following reasons:
REASONS
8. Issue No.1 and 3: These two issues are interconnected to each other in view of the rival contention raised by the parties in their pleadings. Hence, the evidence placed on record is common and taken up for appreciation in order to decide these two issues at a stretch. However, separate findings are given on Issue No.1 and 2.
It is the case of the plaintiff that deceased husband of 1st defendant and father of defendant No.2 to 4 namely late Eeragenchappa and these defendant No.1 to 4 together have executed sale agreement dated 9.12.2005 agreeing to convey agricultural land measuring 1 acre 35 guntas in Sy.No.146 of a Kalkere village, K.R.Puram Hobli, Bengaluru East Taluk as deceased Eeragenchappa, who was suffering from cancer disease and he was in need of money for medical expenses and also defendants have got legal necessity and accordingly, they offered to sell the suit schedule property in favour of plaintiff and after sale negotiations, plaintiff accepted the offer put forth by the defendants and deceased Eeragenchappa and after finalization of sale talks, defendants agreed to sell 20 OS. No.4989 of 2007 the agricultural land held by them in Sy.No.146 measuring 1 acre 35 guntas, out of which 3 guntas kharab land at the rate of Rs.41-00 lakhs per acre and sale transaction were concluded, wherein late Eeragenchappa along with defendant No.1 to 4 have executed sale agreement on 9.12.2005 and plaintiff has paid earnest amount of Rs.15-00 lakhs in total consisting of Rs.7,50,000/- by way of cash and had issued 5 cheques for Rs.1,50,000/- each and it is the case of the plaintiff that defendant No.3 by returning one cheque of Rs.1,50,000/- had received cash (amount) of Rs.1,50,000/- and hence, plaintiff alleged that he has paid Rs.15-00 lakhs towards part sale consideration amount out of total consideration agreed for Rs.77,87,500/- and 6 months time was fixed for the execution of sale deed. But defendants have to perform certain acts of measurements of land in order to arrive at correct measurement for calculation of sale consideration amount and to obtain sketch from Revenue Department and to comply the terms of agreement clause 10(2) and as stipulated in the agreement of sale and defendants agreed to furnish the documents as mentioned in agreement Clause No. 10(2) for the purpose of registration. But defendants did not performed their part of contract though plaintiff was ready and willing to obtain sale deed at his expenses and also ready to pay balance sale consideration amount and plaintiff caused legal notice as per 21 OS. No.4989 of 2007 Ex.P.19 dated 28.7.2006 and time stipulated under agreement for execution within 8.6.2006 was not the essence of contract and in view of the circumstances, wherein defendants have failed to perform their part of contract and on the contrary, defendants have issued legal notice denying the execution of sale agreement and defendants have taken up contention of termination of contract by efflux of time in their reply notice dated 2.8.2006 and hence, plaintiff has filed this suit for specific performance of contract based upon sale agreement dated 09.12.2005 relied upon by him as per Ex.P.1. Defendant No.1 to 4, who are the LRs of deceased Eeragenchappa have filed their combined written statement stating that Eeragenchappa died on 14.1.2006 leaving behind defendants No.1 to 4 are as his LRs, wherein defendant No.1 to 4 have admitted the execution of documents in favour of plaintiff and they contended that deceased Eeragenchappa, who was suffering from cancer and he was suffering from cancer disease at 3rd stage and he was in need of medical expenses and he approached the plaintiff for financial assistance and received amount from the plaintiff and defendants contended that they have not received Rs.15- 00 lakhs towards part sale consideration amount. But defendants contended that they have received only Rs.13,50,000/-, wherein deceased Eeragenchappa had received Rs.7,50,000/- and also Rs.3,00,000/- of further 22 OS. No.4989 of 2007 amount and he has spent Rs.10,50,000/- for his expenses during his life time and defendant No.3 denied the receipt of Rs.1,50,000/- paid by the plaintiff by obtaining return of cheque issued in favour of defendant No.3. However, defendants admits the receipt of Rs.13,50,000/- in respect of transaction dated 09.12.2005 entered under Ex.P.1. But defendants in their contention submitted that it is loan transaction obtained by deceased Eeragenchappa, wherein there was partition held between Eeragenchappa and defendants on 18.2.2005, wherein deceased Eeragenchappa was allotted 14 guntas of land and whereas defendant No.3 and 4 are allotted 29 guntas of land respectively and since plaintiff has committed breach of contract and 6 months time was fixed under the contract. Hence, defendants contended that they have replied the notice caused by the plaintiff dated 28.7.2006 by issuance of reply notice on 2.8.2006. Hence, defendants relying upon reply notice dated 2.8.2006 contended that the alleged contract entered into dated 9.12.2005 stands terminated and revoked by efflux of time and the said contract cannot be enforceable under law and as such, Ex.P.2 is unenforceable agreement and further defendants have taken other defense that plaintiff is legally barred from purchasing of agricultural land and in view of bar under Sec. 79 A and B of Karnataka Land Reforms Act and also there is violation of Sec.269(SS) of Income Tax Act in 23 OS. No.4989 of 2007 view of payment of Rs.7,50,000/- to late Eeragenchappa under the suit agreement Ex.P.1. Hence, defendants have denied to execute sale deed contending that there was registered partition deed entered into dated 18.2.2005 and in view of this partition deed, the agreement Ex.P.1 is not enforceable contract. Hence, defendants have contended that the transaction one entered with late Eeragenchappa by the plaintiff was loan transaction and there was no intention to sell the schedule property and also there is variation in the measurement relied in Ex.P.1 and that of plaint schedule and hence, defendant No.1 to 4 have resisted the suit denying the readiness and willingness and also plaintiff was not having any amount to pay towards balance sale consideration amount to conclude the contract. Hence, defendant No.1 to 4 by filing joint written statement denied the case of the plaintiff and also taken plea of revocation of contract. Hence, in view of these rival contention, now it is to be find out whether plaintiff is able to prove Ex.P.1 is enforceable contract against defendants, who are the LRs of deceased Eeragenchappa and also to find out whether defendants defense set up in the suit is proved and established by the defendants.
9. In order to prove the execution and attestation of Ex.P.1, plaintiff himself is examined as P.W.1 in this case, 24 OS. No.4989 of 2007 wherein P.W.1 has filed his affidavit evidence in lieu of examination-in-chief under Order 18 Rule 4 of CPC, wherein P.W.1 in his affidavit evidence deposed that relying upon Ex.P.1 dated 09.12.2005 entered between himself and late Eeragenchappa and present defendant No.1 to 4 and P.W.1 deposed in his evidence by reiterating the facts in respect of execution of sale agreement by late Eeragenchappa and defendant No. 1 and 4 jointly in respect of land Sy.No.146 of Kalkere village, K.R.Puram Hobli, Bengaluru East Taluk in respect of 1 acre 35 guntas less 3 guntas kharab and actual land measuring 1 acre 32 guntas and P.W.1 also deposed regarding payment of earnest money of Rs.15-00 lakhs by way of cash and also by way of issuance of cheque as mentioned in Ex.P.1. Hence P.W.1 has deposed corroborative evidence as per the pleadings filed by him and P.W.1 got marked documents Ex.P.1 to P.27 in his evidence and P.W.1 relying upon these documentary evidence coupled with his evidence, pray for grant of a decree for specific performance of contract.
10. The counsel appearing for defendant No.1 to 4 cross examined P.W.1, wherein he admits that on 9.12.2005, he has issued 5 cheques in the name of defendant No.3 for Rs.7,50,000/- and he has paid Rs.7,50,000/- by way of cash in the hands of defendant No.3 and P.W.1 stated that 25 OS. No.4989 of 2007 out of 5 cheques, 4 cheques have been encashed by defendant No.3 and one cheque was returned by defendant No.3 and he has obtained cash of Rs.1,50,000/- and P.W.1 admits that he has not produced the said cheque returned by defendant No.3 and he do not remember when defendant No.3 has returned the cheque of Rs.1,50,000/-.However, P.W.1 stated that after execution of Ex.P.1 within 15 days, defendant No.3 had returned the cheque and he has received amount of Rs.1,50,000/- and P.W.1 admits that he has not obtained any documents from defendant No.3 regarding return of cheque and P.W.1 stated that he is tracing out the said cheque, which is kept in his house and P.W.1 denied that he has not given Rs.1,50,000/- to defendant No.3 and P.W.1 admits that there is document to show that 4 cheques have been encashed by the defendants and P.W.1 denied that he has issued 4 cheques in favour of defendant No.3 for a sum of Rs.6-00 lakhs and he is deposing falsely and he denied that Ex.P.1, it is not marked that defendant No.3 was given an amount of Rs.7,50,000/- and P.W.1 also denied that he is deposing falsely that defendant No.3 was paid in all Rs.15-00 lakhs towards part consideration amount. P.W.1 admits the suit land Sy.No.146 is agricultural land and he is subjected to payment of income tax as he is paying income tax since 10 years ago and P.W.1 admits that he is doing cement pots, rings and flower pots for the use of open wells 26 OS. No.4989 of 2007 and selling that pots and rings since 25 years ago. But P.W.1 denied that he is debarred from purchasing agricultural land and P.W.1 admits that as per the terms of Ex.P.1, he has to obtain sale deed within 6months and he admits that he has not caused any legal notice to defendants within 6months time. P.W.1 admits that he has not obtained any legal notice from any lawyer prior to purchase of land and P.W.1 admits that he will not enter into any transaction unless and until he verified the documents and P.W.1 admits that he did not disclosed Rs.15,00,000/- amount paid towards advance money in his IT returns.
11. P.W.1 further cross examined by counsel for defendants on 1.8.2011, wherein he admits that he has verified the documents of title prior to enter into Ex.P.1 in respect of schedule property and also ascertained title of defendants and P.W.1 stated that defendants have not given survey documents as per the agreement and P.W.1 denied that he has verified the encumbrance certificate prior to execution of Ex.P.1 and P.W.1 denied that he was aware of the partition held between late Eeragenchappa and his children on 18.2.2005 prior to execution of sale agreement and he denied that in the said partition, late Eeragenchappa was allotted 14 guntas of land only and P.W.1 stated that on the day of execution of sale agreement and prior to 9.12.2005, 27 OS. No.4989 of 2007 there was two sitting held in respect of sale transaction and one time in the house of relative of Eeragenchappa i.e., in the house of one Muniyappa, which is situated by the side of schedule property, sale talks were held. P.W.1 admits that late Eeragenchappa was suffering from cancer and he died on 14.1.2006 and P.W.1 further admits that late Eeragenchappa and one Muniyappa had informed about the cancer disease suffered by late Eeragenchappa and P.W.1 stated that he has paid Rs.7,50,000/- by way of cash and Rs.1,50,000/- by issuance of cheque and P.W.1 stated that except Ex.P.1, he has no other documents to show that he has issued 5 cheques in favour of defendant No.3 and P.W.1 unable to produce bank documents as he did not obtained passbook and P.W.1 denied that in case, he produced passbook in this suit, it would reveal the true falls. Hence, he has suppressed the said documents in this suit and he denied that he has paid an amount of Rs.1,50,000/- to defendant No.3 and 4 and P.W.1 denied his knowledge that since 18.2.2005 late Eeragenchappa and defendant No.2 to 4, who were partitioned and since the date, they were residing separately. P.W.1 denied his knowledge that Eeragenchappa had utilized the amount of Rs.10,50,000/- received by him for his cancer disease and P.W.1 denied that the other defendants did not received any amount out of advance amount paid by him and he admits that he has now shown 28 OS. No.4989 of 2007 any amount Rs.7,50,000/- paid by him in his income tax returns and he admits that he has not obtained encumbrance certificate since the date of Ex.P.1 even as on today. P.W.1 admits that he came to know about the registered partition deed dated 18.2.2005 after he filed the suit against defendants and he did not made efforts to obtain certified copy of partition deed referred by the defendants and P.W.1 denied that he was aware fully about the registered partition dated 18.2.2005 held between late Eeragenchappa and his children and P.W.1 stated that defendants agreed to execute sale deed within 6 months by providing documents as marked in the sale agreement dated 09.12.2005 and P.W.1 denied that defendants have performed their part of contract by handing over all required and necessary documents to his custody and P.W.1 admits that he has not issued legal notice calling upon the defendants to hand over required and necessary documents. However, P.W.1 stated that he has requested the defendants orally to hand over documents and he admits that in Ex.P.19, he did not informed the defendants complaining of non handing of documents by them and he denied that he did not informed the defendants about he kept ready the amount to be paid towards balance sale consideration amount in the legal notice (demand notice) issued to the defendants. However, P.W.1 denied that he has no money available with him to obtain sale deed executed 29 OS. No.4989 of 2007 from defendants within 6 months time and he admits that he was to pay Rs.50,88,000/- towards balance sale consideration amount and P.W.1 stated that he has not shown this amount in his IT returns. But P.W.1 stated that he was having such quantum of money to pay towards balance sale consideration amount and P.W.1 denied that he is deposing falsely that he was having sufficient money at his disposal to pay towards balance sale consideration amount. P.W.1 admits that one Pillaraju and others have filed the suit for partition in O.S. No. 4830/2006 and P.W.1 stated that the said suit was filed at the instigation of defendant No.3. P.W.1 denied that he has no base to support his contention that the partition suit was filed at the instance of defendant No.3 and he admits that defendant No.3 was also one of the defendants in partition suit and P.W.1 denied that as on the date of filing the suit, he was not having amount available with him and P.W.1 admits that after filing of partition suit by one Pillaraju, he has filed this suit and P.W.1 denied that he was not having any sufficient money to pay balance sale consideration amount and also he was not ready and willing to obtain sale deed and hence, due to breach of contract on his part, sale deed could not be executed and P.W.1 denied specifically due to breach of contract obligation on his part. The transaction Ex.P.1 stands cancelled.
30 OS. No.4989 of 200712. P.W.1 further examined on 9.6.2015 and got marked certified copy of judgment and decree passed on O.S. No. 2431/2007 and P.W.1 cross examined in this regard by defendants' counsel , wherein he admits that the suit agreement Ex.P.1 in this case and that of agreement of sale involved O.S. No.2431/2007 are in respect of different properties and P.W.1 denied the suggestion that he has produced Ex.P.26 and P.27 in order to mislead this court and P.W.1 stated that he has not received any notice in the intended RFA preferred by the defendants in O.S. No.2431/2007 .
13. Plaintiff got examined one of the attesting witnesses on Ex.P.1 namely M.Muni Huchappa son of Sri. Muniyappa as agriculturist, who has attested Ex.P.1 and P.W.2 deposed in this case by way of affidavit filed as examination-in-chief, wherein on perusal of the affidavit evidence of P.W.2, wherein he has deposed regarding title of late Eeragenchappa, defendant No.2 to 4 are the owners of land bearing Sy.No.146 of Kalkere village, wherein defendants offered to sell the land as they were in need of money for medical treatment and also for their family and legal necessities and hence, P.W.2 deposed in his affidavit in respect of Ex.P.1 transaction and balance sale consideration amount was payable by the plaintiff to the defendants on the 31 OS. No.4989 of 2007 date of registration of sale deed and P.W.1 stated that plaintiff has paid Rs.15,00,000/- by way of advance amount and P.W.2 identified his signature on Ex.P.1 marked as Ex.P.1(f).
14. The counsel appearing for defendants cross examined P.W.2, wherein he admits that he has studied up to SSLC standard and doing agricultural avocation and he do not English reading and writing and he do not know the contents of Ex.P.1 and P.W.2 stated that on the day of Ex.P.1, the parties to the agreement, himself and one Muniyappa had assembled and held talks in the house of one Muniyappa and P.W.2 admits that he knew plaintiff since 10 years ago as he is doing business in sale of cement rings and P.W.2 stated that he is not doing any real estate business and P.W.2 admits that Eeragenchappa died in the month of January 2006 and P.W.2 further admits that sale talks were held in the house of Muniyappa, wherein Rs.7,50,000/- was received in the form of cash by defendant No.3 on behalf of other defendants and P.W.2 denied the suggestion that he is deposing falsely regarding payment of Rs. 7,50,000/- by way of cash on the date of execution of Ex.P.1 of defendant No.3. However, P.W.2 stated that remaining Rs.7,50,000/- out of total advance was paid in the form of cheques in favour of defendant No.3, but he do not know, who has encahsed the 32 OS. No.4989 of 2007 said cheques and P.W.1 admits that plaintiff was obtained sale deed from the defendants within 6 months time and P.W.2 denied the rest of the cross-examination suggested to him that he has signed Ex.P.1 at the instance of the plaintiff.
15. Defendant No.3 is examined as D.W.1 on his behalf and also on behalf of other defendants 1, 2 and 4 and D.W.1 has filed his affidavit evidence in lieu of examination- in-chief and on perusal of his evidence, wherein D.W.1 stated that his fathe Eeragenchappa had got 14 guntas of land by virtue of partition dated 18.2.2005 under registered partition deed and they did not approached the plaintiff in the month of November 2005 with an offer to sell the property at Rs.41- 00 lakhs per acre and hence, D.W.1 in his evidence contended that Rs.7,50,000/- by way of cash and Rs.3,00,000/- in cheque was received by late Eeragenchappa. D.W.1 admits that Rs.10,50,000/- was received by Eeragenchappa, who was suffering from cancer and he was a patient at that time and amount paid by the plaintiff was spent by Eeragenchappa for himself and for his medical expenses and other necessities and hence, other defendants are not beneficiaries in that amount and D.W.1 stated that the total amount paid by the plaintiff under alleged agreement Ex.P.1 is only Rs.13,50,000/- and D.W.1 stated that plaintiff was aware about partition deed dated 18.2.2005, 33 OS. No.4989 of 2007 which is evidenced in the encumbrance certificate maintained in respect of schedule property. Hence, on perusal of evidence of D.W.1, wherein he has deposed corroborative evidence as per the defense taken by the defendants in their written statement and D.W.1 stated that they have replied the notice on 2.8.2006 to the notice caused by plaintiff dated 28.7.2006 and in the reply notice they have made clear their stand as per Ex.P.25 and hence, D.W.1 in his evidence stated that the agreement of sale Ex.P.1 already terminated by efflux of time automatically and plaintiff cannot seek any relief on the said agreement of sale and D.W.1 also stated that time fixed under the contract was the essence of the contract and plaintiff, who was not ready and willing to obtain sale deed and in view of suit filed by one Pillaraju in O.S. No.4830/2006, wherein by that time, the contract under Ex.P.1 itself had been rescinded by efflux of time on 8.6.2006 and plaintiff does not have the funds even now. Hence, D.W.1 pleaded hardship in case of grant of decree for specific performance and even D.W.1 stated that value of the property has also not been shot up considerably during the subsequent period with the becoming prices of land value in and around the area of the schedule property and D.W.1 stated that if decree for specific performance is rejected, no hardship would be caused to the plaintiff and D.W.1 stated in his evidence that subsequent events and developments taken 34 OS. No.4989 of 2007 place are also factors to be considered in the matter of grant of specific performance. Hence, D.W.1 has filed his affidavit evidence by way rebuttal evidence to that of P.W.1 and P.W.2 and no documents were marked. Hence, D.W.1 by his oral evidence, pray for dismissal of the suit.
16. The counsel for the plaintiff cross examined D.W.1, wherein D.W.1 admits that defendant No.3 and other defendants are his mother, sister and younger brother respectively and D.W.1 further admits that there was partition prior to filing of the suit. Defendants and late Eeragenchappa between defendants and late Eeragenchappa and after partition was effected, they were residing separately, wherein D.W.1 admits that defendant No.1, 2 and 4 have not executed any power of attorney in his favour to depose on his behalf in this suit and D.W.1 admits that defendants No.1, 2 and 4 are not authorized him to file written statement in this suit and D.W.1 stated that he has not stated in his evidence that there was prohibition for entering into contract and execution of sale agreement under the provisions of Karnataka Land Reforms Act and he admits that one Pillaraju has filed the suit in O.S. No.4830/2006 for partition relief in respect of suit schedule property and D.W.1 denied that he has suppressed the fact of partition and also Pillaraju filed the suit for partition relief on the pretext of he instigated 35 OS. No.4989 of 2007 Pillaraju to file a suit for partition at the time of execution of sale agreement and he also denied that he has instigated to file partition suit through Pillaraju in O.S. No.4830/2006. On the contrary, D.W.1 stated that plaintiff has instigated said Pillaraju to file a suit for partition. He admits that O.S. No.4830/2006 is still pending for adjudication and D.W.1 stated that he received summons issued in this suit and then only, he came to know about suit filed by Pillaraju for the relief of partition and D.W.1 admits that there is no reference in Ex.P.1 regarding registered partition dated 18.2.2005, wherein witness confronted with Ex.P.1 and asked to identify his signature, wherein D.W.1 admits his signature that of himself and also defendant No.4 on Ex.P.1 and signature of D.W.1 and defendant No.4 are marked in this agreement Ex.P.1 as per Ex.P.1(a) and defendant No.1(b) and he also identified signature of defendant No.2 is marked at Ex.P.1(i) and he denied that as per Clause No.10 of Ex.P.1, they have agreed to give document as mentioned in the agreement of sale and on the contrary, D.W.1 stated that they have already given all the necessary documents as marked in Ex.P.2 prior to execution of agreement of sale Ex.P.1 and he admits regarding issuance of Ex.P.19 the prior suit notice dated 28.7.2006 by the plaintiff and D.W.1 stated that they have replied notice as per Ex.P.5 through their counsel and D.W.1 admits that in the reply notice they 36 OS. No.4989 of 2007 have admitted regarding tendering of documents prior to execution of sale deed and he admits that Ex.P.2 to P.14 are tendered by them when Ex.P.1 was came to be executed and these documents are in the custody of plaintiff and D.W.1 denied that plaintiff has made payment of Rs.1,50,000/- by way of cheque as on the date of agreement of sale and D.W.1 admits that he has not mentioned in is reply notice regarding non receipt of part sale consideration amount mentioned in Ex.P.1. On the contrary, D.W.1 stated that he approached the plaintiff and orally complained of regarding non receipt of part consideration amount stated in Ex.P.1 and he admits that he has not issued any legal notice to plaintiff complaining of non receipt of part sale consideration amount and even he has not filed any complaint against plaintiff alleging that he has obtained agreement of sale without paying any earnest amount and had obtained their signatures and D.W.1 denied that he has received earnest money once recited in Ex.P.1. He admits that his father late Eeragenchappa was suffering from cancer disease and at that time, they are in need of money for his medical treatment and D.W.1 denied that they offered to sell the schedule property for their need of finance and for family and legal necessity in favour of plaintiff. On the contrary, plaintiff himself approached the defendants for the purchase of land and D.W.1 stated that prior to execution of Ex.P.1, they have 37 OS. No.4989 of 2007 got surveyed the suit land and sketch prepared after survey of the land was given to plaintiff. But D.W.1 denied that they have got measured the land through Survey Department and any sketch was handed over to the plaintiff and D.W.1 denied that the suggestion that they have returned the cheque issued by the plaintiff on 30.12.2005 and instead of that they insisted for payment of amount by way of cash from the plaintiff. D.W.1 posed with question regarding readiness and willingness, wherein D.W.1 stated that plaintiff has committed breach of contract terms as stated in Ex.P.1 and they are not ready to execute sale deed.
17. In the further cross-examination held on 2.1.2014, wherein it is admitted by D.W.1 that in Ex.P.1, they have not stated that late Eeragenchappa was allotted with 14 guntas of land to his share as per the alleged partition dated 18.2.2005 and D.W.1 denied that they have not stated about alleged partition when Ex.P.1 was executed . Hence, in the agreement Ex.P.1 entire extent of land measuring 1 acre 35 guntas is shown as property to be re-conveyed and he admits regarding issuance of legal notice Ex.P.19 issued by the plaintiff and they have replied the notice under Ex.P.25 dated 2.8.2006 and the rest of the cross-examination directed to D.W.1, wherein he denied that part of the cross- examination and D.W.1 stated that the plaintiff in O.S. 38 OS. No.4989 of 2007 No.4830/2006 are the sons of his senior father and D.W.1 admits that in the year 2006 his father late Eeragenchappa and his senior father were not living in joint family and he admits that there is no nexus between suit schedule property shown in partition suit and that of schedule property involved in the suit and there is no impediment to execute sale deed in favour of plaintiff even if there is pendency of O.S. No.4830/2006 and D.W.1 denied that they are denying to execute sale deed based upon Ex.P.1 in favour of plaintiff as the value of the land have gone hike and to deprive the plaintiff of his legitimate claim of specific performance based upon Ex.P.1 and D.W.1 denied that in case suit is decreed in favour of plaintiff, the defendants will not be put to any hardship.
18. D.W.1 further cross examined on 2.7.2014, wherein D.W.1 got marked the documents by further examination-in-chief. The certified copy of plaint in O.S. No.4830/2006 is marked at Ex.D.1 and in the cross- examination D.W.1 admits that he is arrayed as defendant No.3 and the suit filed by Pillaraju and he has filed the written statement in that suit and it is kept in the stage of evidence and in the pleadings of O.S. No.4830/2006 is pleaded that there was registered partition deed held between Eeragenchappa and others dated 18.2.2005 and he 39 OS. No.4989 of 2007 also admits that as per the registered partition deed , the respective sharers have got their share separated and enjoying their shares respectively from 18.2.2005 and D.W.1 stated that he came to know about the said suit filed by Pillaraju and others in the month of August 2007 and he admits that he has not stated in his written statement filed in the partition suit about Ex.P.1, suit agreement dated 9.12.2005 and D.W.1 denied that at the time of filing written statement by him in the partition suit, he was not knowing about the existence of sale agreement dated 09.12.2005 in favour of plaintiff and D.W.1 stated that he was not knowing the fact that Eeragenchappa was given property through a "Will" and D.W.1 admits that in the said "Will", late Eeragenchappa has referred regarding execution of that "Will" in his favour and D.W.1 admits that he has not challenged the "Will" executed in favour of his father in any proceedings and even D.W.1 admits that he has not challenged the validity of "Will" in O.S. No.4830/2006 and there is no panchayath conveyed in respect of their family properties in respect of partition of properties and D.W.1 admits that the production of Ex.D.1 in the suit is his own decision and he is contesting the suit filed for partition as he has filed written statement in this suit.
40 OS. No.4989 of 200719. Defendants have got examined one of the attesting witness of Ex.P.1 namely M.Muniyappa, son of Late Munishamappa as D.W.2 , wherein this witness deposed through affidavit evidence stating that in the month of December 2005 late Eeragenchappa was suffering from cancer last stage and this witness is residing at Horamavu village being an agriculturalist, wherein on perusal of his affidavit evidence, he has deposed that late Eeragenchappa was in need of money for medical expenses and he pleaded inability to meet medical expenses and due to his financial position, he agreed to get the loan as security of schedule property and to get the best possible medical treatment of cancer disease and he was knowing plaintiff, who used to come over to his village in connection with purchase of land in the village and he approached the plaintiff and requested to advance loan a sum of Rs.15,00,000/- and plaintiff had advanced an amount of Rs.13,50,000/- out of which Eeragenchappa has spent Rs.10,50,000/- for medical expenses. Hence, D.W.2 stated in his affidavit that the transaction entered into under Ex.P.1 is loan transaction on the security of the land bearing Sy.No.146 of Kalkere village and he identified his signature on Ex.P.1 at sl. No.2 of attesting witness marked at Ex.P.1(e).
41 OS. No.4989 of 200720. The learned counsel for the plaintiff cross examined D.W.2, wherein he admits that he knew about 10 to 12 years ago, wherein plaintiff had purchased the land belongs to his brother Cauverappa and he also admits that plaintiff has filed this suit in O.S. No.372/2008 against his brother Cauverappa and in that suit, he has been arrayed as one of the defendants and he also admits that his brother had filed R.A.No.157/2014-2015 before the Asst., Commissioner against revenue entries in respect of land Sy.No. 72/1 and D.W.2 admits that the defendant No.3 has related to him, wherein he identified the signature signed as attesting witness and he do not know the contents of Ex.P.1 even as on today as he has not read over the contents of Ex.P.1 and D.W.2 admits that late Eeragenchappa affixed his signature on Ex.P.1 and he also admits that he knew plaintiff purchasing the lands and also dealing in loan transaction and witness after perusal of Ex.P.1 stated that it is the document, which plaintiff obtained at the time of lending the loan to defendants and witness further identified his signature signed on Ex.P.1 and plaintiff has paid loan to the defendants in the year 2006 to the tune of Rs.13,50,000/- by way of cash and also under cheque transaction and plaintiff had lent loan of quantum of amount as demanded by the defendants and he admits that he has mediated for this transaction held on 9.12.2005 and D.W.2 stated that there 42 OS. No.4989 of 2007 was no agreement between plaintiff and defendants to pay any interest on the loan amount and there was no fixed period agreed between plaintiff and defendants for the payment of the loan amount and he do not know what are the documents obtained by the plaintiff from defendants and he do not know if any further transaction that have transpired between plaintiff and defendants in respect of loan transaction and he denied that the transaction one entered under Ex.P.1 is out right sale transaction executed by defendants in favour of plaintiff and that transaction never be a loan transaction and D.W.2 denied that he is deposing false evidence as he has been arrayed as defendant in O.S. No.372/2008 against plaintiff herein.
21. On appreciation of the oral evidence placed on record that of P.W.1 and 2 and that of D.W.1 and 2, wherein the defendants have taken specific plea that they have received only part sale consideration amount of Rs.13,50,000/- paid from the plaintiff, but whereas Ex.P.1 reveals that there is payment of Rs.7,50,000/- by way of cash on the date of execution of Ex.P.1 on 9.12.2005 and payment of 5 cheques remaining Rs.7,50,000/- and out of which, cheque dated 13.12.2005 appears to have been returned by defendant No.3 and he has received Rs.1,50,000/- from plaintiff by returning the said cheque and 43 OS. No.4989 of 2007 D.W.2 also stated that Rs.15,00,000/- was entirely paid by the plaintiff under Ex.P.1 transaction and hence, the defendants have not taken up this contention by specific denial regarding receipt of money from the plaintiff and on the contrary, there is reference to Ex.P.1 regarding payment of earnest money and hence, considering the execution of Ex.P.1, wherein plaintiff has proved that he has paid earnest amount of Rs.15,00,000/- to defendants and also to late Eeragenchappa under transaction Ex.P.1 on 9.12.2005 and hence, the contention of defendants that they have received Rs.13,50,000/- as earnest money is not proved in the facts and circumstances and apart from that the defendants have taken up plea of cancellation of sale agreement in the reply notice dated 2.8.2006. But the defendants cannot unilaterally terminated or revoke the contract and on the contrary, the payment of 6 months entered in Ex.P.1 is not the essence of the contract, wherein there is pendency of suit in O.S. No.4830/2006 as per Ex.D.1 filed by one Pillaraju and also it is immovable property , wherein the defendants have to survey the land to ascertain actual measurement and to obtain sketch map from the Survey Department and to produce the same for plaintiff to obtain sale deed. Hence, the transaction one entered under Ex.P.1 is not loan transaction, wherein there is no agreement for payment of interest and also there is no specific agreement of loan, 44 OS. No.4989 of 2007 wherein a prudent business cannot advance Rs.15,00,000/- by obtaining Ex.P.1, without agreeing to the payment of interest, if it is in reality in loan transaction. On the contrary, the terms of Ex.P.1 and also Ex.P.2 to P.14, wherein defendants have given title deeds and other documents along with Ex.P.1 and terms of Ex.P.1 clearly depicts that the transaction is one for sale agreed by the defendants, wherein deceased Eeragenchappa, who was party to the agreement Ex.P.1 was suffering from cancer last stage and he was in need of money as necessity for his medical treatment, who died on 14.1.2006 leaving behind defendant No.1 to 4, who are the wife and children of late Eeragenchappa and even though there is partition deed dated 18.2.2005 and now after demise of late Eeragenchappa, the said partition will not come in the way of defendants succeeding the land measuring 1 acre 32 guntas including 3 guntas of kharab land measuring 1 acre 35 guntas , wherein the defense taken by defendants in respect of Ex.D.1 is also not tenable, wherein there is no interim order passed restraining the defendants from alienating the schedule property. On the contrary, the said partition suit filed as per Ex.D.1 will not create any hindrance or impediment to consider Ex.P.1 in this suit. Hence, I hold that plaintiff has proved execution of Ex.P.1 as sale agreement and plaintiff also proved that he has paid Rs.15,00,000/- under Ex.P.1 transaction as earnest money 45 OS. No.4989 of 2007 and plaintiff by issuance of notice has proved his readiness and willingness and made demand notice to the defendants and after demise of late Eeragenchappa, the defendants have falsely taken up defense of pendency of partition suit and even defendants have not made attempt to refund the earnest amount received by them along with reply notice and defendants have falsely taken up the contention of revocation/cancellation of agreement of contract and as such, the defense taken by defendants does not stand legally and on the contrary, plaintiff proved execution of Ex.P.1 by defendants and also late Eeragenchappa, wherein defendants are being joint family members, wherein after demise of Eeragenchappa, they are the owners of 1 acre 35 guntas of land and as such, plaintiff has proved Ex.P.1 one executed by defendants and late Eeragenchappa and it is admitted fact that part sale consideration amount was utilized by the defendants for the medical expenses of late Eeragenchappa, who was his joint family member having interest in the property and time stipulated under Ex.P.1 was not the essence of contract since it is immovable property. Hence, relying upon the Apex Court decision, wherein in case of immovable property, time was not the essence of contract and as such, I hold that plaintiff has proved Issue No.1 and 2. But defendants failed to prove Issue No.3 as against plaintiff and considering the citations, referred by the plaintiffs, 46 OS. No.4989 of 2007 wherein the plaintiff is admittedly business man dealing in sale and manufacture of cement pots and rings used for the well and he is acquainted with defendants and D.W.2 and plaintiff approaching to village of defendants and D.W.2 himself admits that plaintiff has already purchased the land belongs to his brother Cauverappa and even as per Ex.P.26, wherein plaintiff has purchased certain agricultural lands and produced sale deeds as referred in Ex.P.26 ( Judgment in O.S. No.2431/2007) and as such, plaintiff being business man having financial capacity to pay balance sale consideration amount out of total sale consideration amount and hence, plaintiff has proved his readiness and willingness in compliance to Sec.16(c) of Specific Relief Act and as such, I hold that plaintiff has proved that Ex.P.1 transaction is out right sale transaction entered into by the defendants along with late Eeragenchappa in sale of Sy.No.146 of Kalkere village measuring 1 acre 35 guntas at the agreed price of Rs.41,00,000/- per acre and hence, there is concluded contract existed between the parties and hence, plaintiff right from the date of agreement, he has shown his readiness and willingness and though defendants have denied the plaintiff's financial capacity to pay balance sale consideration amount. But considering the evidence of P.W.1 and also as per the defense own pleadings and admissions, wherein P.W.1 is doing business since last 25 years having capacity of paying 47 OS. No.4989 of 2007 balance sale consideration amount. Hence, with these observations, I hold that plaintiff has proved Issue No.1 and 2, but the contention of defendants that alleged agreement of sale as per Ex.P.1 is terminated by efflux of time and as such, the defense set up by the defendants is not proved on record, wherein defendants have used the earnest amount or their dire need to spent the said amount for medical expenses of late Eeragenchappa, who was suffering from cancer disease and the said amount was utilized by the family for their need at that time and as such, the amount was spent for legal and family necessities paid by the plaintiff and Ex.P.1 terms are very much clear and handing over Ex.P.2 to P.14 on the day of execution of Ex.P.1 clearly demonstrates that it is out right sale transaction entered into under Ex.P.1. Hence, the contention of defendants regarding termination of contract by efflux of time is not tenable and the same is rejected in this case and as such, I hold that Issue No.3 is answered in negative against defendants and Issue No.1 and 2 in affirmative.
22. Additional Issue No.1 framed on 2.12.2015:-
Defendants in their written statement filed in this case have taken up specific contention stating that the plaintiff is not an agriculturist, who suffers from legal disability under Sec. 79 A and B under the Karnataka Land Reforms Act. The 48 OS. No.4989 of 2007 learned counsel for the defendants in support of his arguments relied upon a decision reported in AIR 1984 SC 718(1) and contended regarding interpretation of statutes -
Penal Laws and Rule of Constitution, wherein as per the citations it is recited that it is well established canon of construction that the Court should read the section as it is and cannot rewrite it to suit is convenience; nor does any canon of construction permit the Court to read the section in such manner as to render it to some extentotiose and relying upon this Apex Court decision, the counsel for the defendants contended that since plaintiff is a business man and he is an agriculturist and hence, the agreement Ex.P.1 entered into by the plaintiff with defendants in respect of agricultural land and as such, Ex.P.1 is unenforceable contract and he has also relied upon the specific provision contained in Karnataka Land Reforms Act Sec.79 A and B of the Act.
23. The learned counsel appearing for the plaintiff in his arguments relied upon three decisions in support of Sec.79A and B of Karnataka Land Reforms Act i.e., 1988(1) KLJ 563, 2005 AIR SCW 4789 and 1979 SC page 653 and relying upon these decisions. The counsel appearing for the plaintiff contended that in view of division bench decision of Karnataka High Court, wherein there is specific provision contained in Sec.83 of Karnataka Land Reforms Act to go into 49 OS. No.4989 of 2007 the aspect of validity of agreement and as per Sec.83 of Karnataka Land Reforms Act 1974, there is prescribed authority as constituted under the said Act to hold an enquiry regarding illegal transaction in violation of the provision of Sec.79 A and B of Karnataka Land Reforms Act. But this Civil Court has no authority to hold an enquiry regarding the permission to be obtained from the competent authority in order to purchase agricultural land by non agriculturist and hence, learned counsel for the plaintiff in support of additional Issue No.1 relying upon these two decisions submitted that in view of the decision rendered by Karnataka High Court reported in 1988(1) K.L.J. 563, wherein in this decision, the Hon'ble High Court has held ratio that Civil Court will not come in the way of to hold an enquiry regarding the validity of agreement in respect of non obtaining of permission under Sec. 79 A and B. After hearing the arguments of both sides, wherein the defendants have taken up this contention in para No.2(3) of their written statement contending that the agreement Ex.P.1 is void in view in view of bar created under Sec. 79A and B of Karnataka Land Reforms Act. After considering the citations rendered by the plaintiff herein, wherein our own High Court in a decision reported in KLJ 1988(1) page 563 in the case of Mrs. Sushila A Dass Vs. Mrs. Mary Bolger , wherein in this decision, Sec.90(b) and also Sec.79A and B has been clearly 50 OS. No.4989 of 2007 discussed along with Sec.20 of Specific Relief Act, wherein in this decision, Sec.79 A and B, Sec.80 and 83 of Karnataka Land Reforms Act have been discussed, wherein as per Sec.83, there is prescribed authority constitutes under the Act vested with power under the Karnataka Land Reforms Act to examine the legality of the transaction and it is not the jurisdiction of the Civil Court to go into the aspect of that matter. However, the defendants have taken specific contention raising bar by the plaintiff to enter into contract as he being the non agriculturist. But as admitted by D.W.2 himself, wherein plaintiff approaching the village for purchase of agricultural lands and in this regard, it is admitted fact that plaintiff has already purchased the land of brother of D.W.2 namely Cauverappa and by considering Ex.P.26, wherein in this case also a similar contention was raised by the defendants, wherein in Ex.P.26 the contention of defendants raised regarding the suit is barred under Sec. 79 A and B of Karnataka Land Reforms Act, which has been discussed in para No.54 and 55 of this judgment marked at Ex.P.26, wherein in this judgment Ex.P.26, a decision reported in ILR 1980 Karnataka page 702 in the case of Shivannappa Sidramappa Prantur Vs. Virupaxappa Allappa Bagi is relied upon, wherein as per Sec.80(1) of Karnataka Land Reforms Act , there is provision to obtain permission from the competent authority, who is not an agriculturalist 51 OS. No.4989 of 2007 to purchase an agricultural land and in Ex.P.6 , the contention of defendants has been negatived by the concerned court and accordingly, it is held that the defendants have failed to prove that Ex.P.1 in that suit is unenforceable contract and accordingly, I answer Additional Issue No.1 in negative. Hence, in view of admission of D.W.2 that plaintiff has already filed a suit against the brother of D.W.2 in O.S. No.372/2008, wherein the present plaintiff has already purchased the land of brother of D.W.2 namely Cauverappa in respect of land Sy.No.72/1. Hence, considering the reported decision of our own High Court reported in 1988(1) KLJ 563 and coupled with other two decisions relied by the counsel for the plaintiff, wherein I hold that Ex.P.1, which is valid and legal agreement of sale executed between plaintiff and defendants and Ex.P.1 is valid contract under Sec. 23 of Indian Contract Act and as such, the said agreement of sale is enforceable contract before Civil Court and on the contrary, the Civil Court is barred from holding any enquiry in respect of Sec.79A and B of Karnataka Land Reforms Act and on the contrary, in a suit for specific performance, the court must hold an enquiry, whether there is valid and enforceable contract exists between the parties and as per Sec.16(c) and 20 of Specific Relief Act, whether the plaintiff, who was approached court of law in seeking specific performance of contract has 52 OS. No.4989 of 2007 approached the court with clean hands and has performed his part of obligation and court of specific performance shall consider other aspects of the matter regarding conduct of the parties, hardship plea, if pleaded by the parties and then to exercise discretion under Sec. 20 of Specific Relief Act and then to grant relief after exercise of such discretion exercising some judicial and not arbitrarily or capriciously. But in the present case, the plaintiff, who has pad the court with all fairness and has produced Ex.P.1 and proved the said agreement and already paid an amount of Rs.15,00,000/- to the defendants, wherein defendants have utilized the said amount for incurring amount towards medical expenses of late Eeragenchappa, who was suffering from cancer disease and as such, defendants have utilized the said amount for their legal and family necessities and Ex.P.1 already held to be sale transaction and not loan transaction by this court and hence, in view of Sec.83 contemplated under Karnataka Land Reforms Act, this court cannot hold an enquiry in respect of Sec.79 A and B and also Sec.80(1) of Karnataka Land Reforms Act . On the contrary, there is sufficient proof as admitted by D.W.2 coupled with Ex.P.26 judgment, wherein plaintiff has purchased several landed properties of agricultural lands under sale deeds and as such, this contention of defendants is not tenable in the eyes of law and as such, I hold that Ex.P.1 is enforceable contract and 53 OS. No.4989 of 2007 defendants have failed to prove their contention raised in para No.2(3) of written statement and accordingly, Additional Issue No.1 is answered in negative against defendants.
24. Issue No.4: The plaintiff has filed the suit for the relief of specific performance of contract and for possession relief in respect of suit schedule property. Since this court has already discussed while considering Issue No.1 to 3 in details in respect of plaintiff performing his part of contract in respect of terms of Ex.P.1 dated 09.12.2005 and held that plaintiff proved his readiness and willingness and also given notice calling upon defendants to execute sale deed dated 28.7.2006 i.e., Ex.P.9 and it is a fact that the defendants have replied the notice as per Ex.P.25, wherein defendants have denied to execute the sale deed by raising several manifold contentions and also raised contentions that there is violation of Sec.269 SS of Income Tax Act and plaintiff is not entitled for specific performance relief. But considering the document Ex.D.1, wherein it is certified copy of the plaint marked through D.W.1, wherein this is a suit filed by one Pillaraju and others in O.S. No.4830/2006 for partition and separate possession against defendant No.3 and others and this suit came to be filed on 22.4.2006 and it appears that late Eeragenchappa died on 14.1.2006 leaving behind defendant No.1 to 4 herein as his LRs and it appears that 54 OS. No.4989 of 2007 defendant No.3 has instigated the plaintiffs in O.S.4830/2006 to file the suit against defendants claiming partition rights in respect of Item No.1 and 2 of schedule properties in O.S. No.4830/2006 in order to defeat the claim of plaintiff herein agreed as per Ex.P.1 and it is a fact that after demise of Eeragenchappa on 14.1.2006, the contention of defendants raised in the suit goes away that Eeragenchappa had allotted 14 guntas of land as per registered partition deed dated 18.7.2005. But it appears that defendants have suppressed the fact of partition under registered deed dated 18.2.2005 at the time when they entered into contract with plaintiff under Ex.P.1 and there is suppression of fact of partition by the defendants when Ex.P.1 was executed. However now after demise of Eeragenchappa, the defendant No.1 to 4, who are members of the same family and defendants are the parties to the agreement in question. Hence, 14 guntas of land fallen to the share of Eeragenchappa is now devolved upon his LRs defendant No.1 to 4, and as such, as per the admission of D.W.1 himself in his cross-examination that there is no impediment for him to execute sale deed even though there is pendency of partition suit and even if considering the pendency of the partition suit, wherein the plaintiffs have to prove their entitlement to share in O.S. No.4830/2006 and there is no injunction order or prohibitory order passed 55 OS. No.4989 of 2007 restraining the defendant No.3 and other defendants from alienation of Item No.2 land granted in that suit, wherein defendant No.3 has not produced order sheet or any documents to show that there is such prohibitory order granted in that suit and hence, no such document is placed before this court, wherein the plaintiff has established his case and also approached the court with clean hands and he also he has proved Ex.P.1 as it is an agreement of sale in respect of schedule property measuring 1 acre 35 guntas as per RTC entries, wherein kharab 3 guntas is also to be considered for the purpose of calculation of measurement and though counsel for defendants much argued contending that there is variation of extent of land as per plaint schedule and schedule appended to Ex.P.1. But as per RTC since it is an agricultural land, the parties have entered into contract, wherein the price is also agreed per acre Rs.41,00,000/- and in case of agricultural land, the total consideration amount has to be arrived only after actual survey of land. However, the measurement appearing in RTC has to be relied upon and it is shown as 1 acre 35 guntas including 3 guntas kharab land and hence, plaintiff has proved his readiness and willingness and on the contrary, defendants have not pleaded any hardship that they are facing in case of sale of land and on the contrary, plaintiff is already invested Rs.15,00,000/- paid under contract in the year 2005 and defendants have 56 OS. No.4989 of 2007 utilized the said amount and plaintiff has waited for nearly 7 to 8 years and he has filed the suit for the specific performance relief and it is also proved on record that plaintiff is having financial capacity to pay the balance amount and there is no much cross-examination by the defendants regarding financial capacity of plaintiff and since plaintiff is business man. He has already agreed to purchase land in the pleadings and he has produced Ex.P.26, wherein he has agreed to purchase the land under agreement of sale involved in O.S. No.2431/2007, wherein plaintiff has succeeded in that suit as per Ex.P.26 in respect of purchase of land bearing Sy.No. 72/2 of Margondanahalli village, Bidrahalli Hobli, Bengaluru East Taluk. Hence, plaintiff being the business man having sufficient nucleus to pay balance sale consideration amount and hence, considering the provision of Sec.20 of Specific Relief Act , wherein after exercise of judicial discretion in this particular case, wherein plaintiff has made out grounds to grant relief of specific performance of contract against defendants and accordingly, I hold that plaintiff is entitled for the relief of specific performance of contract in respect of Ex.P.1 i.e., agreement of sale dated 09.12.2005. Accordingly, considering the citations rendered by the learned counsel for the plaintiff and also by the defendants side, wherein this is a fit case to grant the relief of specific performance of contract in respect of Ex.P.1 57 OS. No.4989 of 2007 transaction and the escalation of price of agricultural land, merely it is not a ground to reject the prayer of the plaintiff. On the contrary, considering the price agreed under Ex.P.1, wherein Rs.41,00,000/- as quoted and agreed by the parties appears to be reasonable price per acre of land in these days. Hence, on that count also, there is no loss or hardship to the defendants in case of grant of specific performance relief. Hence, considering all these aspects, I hold that plaintiff is entitled for the relief of specific performance of contract as against defendants, wherein plaintiff has paid earnest amount of Rs.15,00,000/- already to the defendants and plaintiff shall have to pay balance sale consideration amount at the rate of Rs.41,00,000/- per acre to the extent of 1 acre 35 guntas and as such, I hold that plaintiff is entitled for the relief of specific performance of contract as per Ex.P.1 against defendants. Accordingly, Issue No.4 is answered in affirmative.
25. Issue No.5: In view of my findings submitted on Issue No.1 to 4 and Additional Issue No.1, the suit filed by the plaintiff deserves to be decreed with costs against defendants. Hence, I proceed to pass the following:-
58 OS. No.4989 of 2007OR D E R The suit filed by the plaintiff for the relief of specific performance in respect of Ex.P.1 dated 09.12.2005 is decreed with costs against defendants.
The plaintiff is entitled for the relief of specific performance decree in respect of suit schedule property as marked in Ex.P.1 dated 09.12.2005 and defendants No.1 to 4 are directed to receive balance sale consideration amount to be deposited by the plaintiff in this suit and to execute regular registered sale deed in favour of plaintiff in respect of suit schedule property within 3 months from the date of deposit of amount by the plaintiff and plaintiff is hereby directed to deposit the balance sale consideration amount in this court within two months from the date of drawing decree and to inform the defendants about the deposit of balance sale consideration amount made by him.
In case defendants fails to execute sale deed within the period granted by this court, then plaintiff is at liberty to obtain sale deed through process of law by obtaining the registered sale deed as contemplated under Order 21 Rule 34 of C.P.C .59 OS. No.4989 of 2007
The defendants are restrained from grant of injunction order not to alienate the suit schedule property in any manner known to law to any 3rd parties till plaintiff obtained regular sale deed in respect of suit schedule property.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 11th day of January, 2016.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri. G.Venkatesh P.W.2 Sri.M.Muni Huchappa
List of documents exhibited for plaintiff:-
Ex.P.1 Original agreement of sale dated
09.12.2005 executed by the
defendants and late Eeragenchappa in
favour of the plaintiff
60 OS. No.4989 of 2007
Ex.P.2: Original sale deed dated 31.1.1971
executed by Siddappa in favour of
Nanjappa
Ex.P.3: Original sale deed dated 22.3.1972
executed by Siddappa in favour of
Munimuddappa,
Ex.P.4: Original sale deed dated 17.6.1972exd
by Nanjappa in favour of
Munimuddappa
Ex.P.5: Certified copy of Mutation register
extract bearing M.R.No.14/1995-1996
Ex.P.6 to P.15 Certified copies of RTC extracts for the period from 1974 to 1996-97, 1998-1999 and 2004 to 2007 Ex.P.15 & 16 Certified copy of release deed dated 15.6.1963 and 2.6.1965 Ex.P.17 & 18 Encumbrance certificates Ex.P.19 Legal notice dated 28.7.2006 Ex.P.20 UCP receipt Ex.P.21 and 22 Unserved postal covers Ex.P.23 and 24 Postal acknowledgments for having served the notice to defendant No.3 and 4 Ex.P.25 Reply notice dated 2.8.2006 Ex.P.26 & 27 certified copies of judgment in O.S. No. 2431/2007 dated 31.1.2015 and decree dated 16.2.2015 61 OS. No.4989 of 2007 List of witnesses examined for defendant:
DW.1 Sri. Mohan D.W.2 Sri. M.Muniyappa
List of documents exhibited for Defendant:-
Ex.D.1 Certified copy of plaint in O.S.
No.4830/2006
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
62 OS. No.4989 of 2007
63 OS. No.4989 of 2007