Karnataka High Court
Shri.Tippanna S/O Basappa ... vs Smt.Shivakka W/O Veerappa Benni on 5 July, 2024
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NC: 2024:KHC-D:9470
RSA No. 100970 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100970 OF 2018 (SP-)
BETWEEN:
SHRI TIPPANNA S/O BASAPPA VITTAPPANAVAR
AGE: 72 YEARS, OCC: AGRICULTURIST,
R/O: AMMINBHAVI, TQ: DIST:DHARWAD
...APPELLANT
(BY SRI BALAGOUDA A PATIL, ADVOCATE
THROUGH GPG HOLDER
SRI VISHNU J. VITTAPPANAVAR)
AND:
1. SMT. SHIVAKKA W/O VEERAPPA BENNI
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O AMMINBHAVI, TQ. DIST. DHARWAD.
2. SHRI SHANKREPPA S/O VEERAPPA BENNI
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: AMMINBHAVI, TQ. DIST: DHARWAD.
Digitally signed
by SAROJA 3. SMT. MALLAVVA W/O BASAPPA DHANASHETTY
HANGARAKI
AGE: 27 YEARS, OCC: HOUSEHOLD,
Location: HIGH
COURT OF R/O: AMMINBHAVI, TQ: DIST:DHARWAD.
KARNATAKA ...RESPONDENTS
DHARWAD
BENCH
DHARWAD (BY SRI P.G.CHIKKANARAGUND FOR R1-R3, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO ALLOW
THIS APPEAL AND TO SET ASIDE THE IMPUGNED JUDGMENTS AND
DECREES PASSED IN RESPECT OF THE SPECIFIC PERFORMANCE OF
THE CONTRACT BY THE IV ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, DHARWAD, IN ITS R.A.NO.96/2016 DATED
04.10.2018 AND THEREBY CONFIRMED THE JUDGMENT AND DECREE
PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC,II COURT,
DHARWAD, IN ITS O.S.NO.53/2011 DATED 07.09.2016, IN RESPECT
OF THE SPECIFIC PERFORMANCE OF THE CONTRACT.
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NC: 2024:KHC-D:9470
RSA No. 100970 of 2018
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed by plaintiff under Section 100 of Code of Civil Procedure, 19081 challenging the judgment and decree dated 4.10.2018 passed in RA.No.96/2016 by the IV Additional Senior Civil Judge, & Additional M.A.C.T, Dharwad2 and the judgment and decree dated 07.09.2016 passed in OS No.53/2011 by the II Additional Civil Judge and JMFC II Court, Dharwad3, whereunder the suit for specific performance filed by the appellant/plaintiff was dismissed by the Trial Court and the appeal filed by the plaintiff before the First Appellate Court was partly allowed, directing the defendants to refund the advance amount of ₹1,30,000/- to the plaintiff along with interest at the rate of 18% per annum.
2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
3. The relevant facts necessary for consideration of the present appeal are that the plaintiff filed a suit for specific 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'first appellate Court' 3 Hereinafter referred to as the 'Trial Court' -3- NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 performance contending, inter alia, that the property bearing VPC No.1391/53, which is an open space and house measuring 94 X 34 feet situated at Amminabhavi village, Dharwad4 belonged to one Irappa Benni, who agreed to sell the suit property to the plaintiff for a total sale consideration of ₹1,85,000/- and that they entered into an agreement of sale dated 23.12.20005 in respect of the same and possession of the suit property was also handed over to the plaintiff. That the sale transaction was required to be completed within the year 2001 by receiving the balance sale consideration. That the said Irappa Benni6 died on 24.12.2009.
4. It is further case of the plaintiff that he later came to know that the deceased Irappa Benni has mortgaged the suit property in favour of Karnataka State Khadi Gramodhyog Mandali and obtained loan. That when the plaintiff requested Irappa to execute the registered sale deed, he went on postponing the same and told that after clearing the loan he will execute the same. That after the death of the deceased, the plaintiff approached the defendants who are the legal representatives of the deceased and also issued legal notice to 4 Hereinafter referred to as the 'suit property' 5 Hereinafter referred to as the 'said agreement' 6 Hereinafter referred to as the 'deceased' -4- NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 execute the sale deed. That despite receipt of the said notice, since the defendants have refused to execute the sale deed, the suit was filed.
5. The defendants entered appearance through their counsel. Defendant No.2 filed a written statement, which was adopted by defendants No.1 and 3.
6. It is contended by the defendants in the written statement that the defendant No.1 is the wife and defendants No.2 and 3 are the children of the deceased and that the suit property is the property of the defendants. However, the rest of the case of the plaintiff has been denied. It was further contended that the deceased had no necessity to sell the suit property and he never executed any agreement of sale. That the suit property is the ancestral property of the defendants family and the deceased had no exclusive right to sell the suit property. That the defendants have not received any legal notice issued by the plaintiff. That the plaintiff by creating a false agreement had filed the suit. Hence, the defendants prayed for dismissal of the suit.
7. Consequent to the pleadings of the parties, the Trial Court framed the following issues:
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NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 i. "Whether the plaintiff proves that, the deceased Erappa S/o. Basappa Benni executed sale agreement pertaining to suit property in his favour for a valuable consideration of Rs.1,85,000/- on dated:23/12/2000? ii. Whether the plaintiff further proves that, on the same day he has paid an earnest money of Rs.1,30,000/- towards part performance of his contract and the balance consideration was agreed to be paid at the time of execution of regular sale deed? iii. Whether the plaintiff proves that, he is ready and willing to perform his part of contract? iv. Whether the defendants prove that, the suit property is their ancestral property and as such deceased Erappa had no exclusive right to execute all agreement in favour of the plaintiff? v. Whether the defendants prove that, suit is barred by law of limitation?
vi. Whether the plaintiff is entitled for the relief of specific performance as sought for? vii. In the alternative, whether the plaintiff is entitled for the refund of earnest money with interest as claimed? viii. What order or decree?"
8. The plaintiff examined himself as PW.1 and two witnesses as PW.2 and PW.3. Ex.P1 to Ex.P17 has been marked in evidence. The defendant No.2 examined himself as DW.1. No documents have been marked in evidence.
9. The Trial Court upon an appreciation of the oral and documentary evidence has recorded a finding that the plaintiff -6- NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 has failed to prove the execution of the said agreement. Further, the Trial Court noticed that the agreement has been executed on 23.12.2000 and the sale transaction was agreed to be completed on or before the Ugadi festival of the year 2001, the legal notices produced by the plaintiff as Ex.P2, Ex.P3 and Ex.P4, which were issued on 25.10.2010 i.e., nearly 10 years after the date of the agreement(Ex.P14). Hence, the Trial Court recorded a finding that between the years 2002 to 2010, the plaintiff did not make any attempt to take any legal action. Hence, the Trial Court also recorded a finding that the suit is barred by time, since it was filed only in the year 2011. The Trial Court has also held that the plaintiff did not prove his readiness and willingness to perform his part of the contract.
10. Being aggrieved, the plaintiff preferred R.A No.96/2016. The defendants entered appearance before the First Appellate Court and contested the same. The plaintiff filed I.A Nos.II and III in R.A No.96/2016 under Order 41 Rule 27 of the CPC. The First Appellate Court framed the following points for consideration:
i. "Whether the Learned Counsel for Appellant has made out sufficient grounds to allow I.A No.II & III filed -7- NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 under Order 41 Rule 27 R/w Sec.151 of CPC respectively?
ii. Whether the Trial Court was justified in dismissing the Suit of the plaintiff?
iii. Whether the findings given by the Trial Court on various issues are in accordance with law? iv. Whether the plaintiff proves that he is ready and willing to perform his part of contract? v. Whether the judgment and decree of the Trial Court needs interference by this Court? vi. What order?"
11. The First Appellate Court by its judgment dated 04.10.2018, partly allowed the appeal and passed the following order:
"I.A No.II & III filed by the Learned Counsel for the Appellant under Order 41 Rule 27 R/w Sec.151 of CPC respectively is hereby dismissed.
The Regular Appeal filed by the Appellant under Order 41 Rule 1 of CPC is hereby allowed.
The judgment and decree dated:07.09.2016 passed by the court of Learned II Addl. Civil Judge, Dharwad in O.S No.53/2011 is hereby set aside.
Suit of the plaintiff is partly decreed with cost.
Suit of the plaintiff in respect of Specific Performance of Contract is dismissed.
The defendants/Respondents are directed to refund Rs.1,30,000/- to the Plaintiff along with -8- NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 interest at the rate of 18% p.a., from the date of filing the Suit till realization.
Draw decree accordingly.
Transmit a copy of this judgment and decree to the trial Court along with LCR."
12. Being aggrieved, the present second appeal is filed by the plaintiff.
13. Learned counsel for the appellant vehemently contends that the First Appellate Court, having held that the agreement has been proved, having regard to the fact that the major portion of the sale consideration was already paid by the plaintiff, ought to have ordered for specific performance of the said agreement. Hence, he seeks for allowing of the appeal and for decreeing the suit of the plaintiff.
14. Per contra, learned counsel for the respondents/defendants contends that although the Trial Court dismissed the suit, the First Appellate Court ordered for refund of the advance amount, which is just and proper and not liable to be interfered with by this Court in the present second appeal.
15. The submissions of both the learned counsels have been considered and material on record has been perused. -9-
NC: 2024:KHC-D:9470 RSA No. 100970 of 2018
16. As noticed above, the Trial Court dismissed the suit. However, the First Appellate Court, while considering the points framed for consideration has recorded the following findings:
i. "The Trial Court has not noticed the admission and evidence about the execution of the agreement of sale as well as identification of signature by the attesting witnesses. Therefore, the Trial Court has erred in holding the issue Nos.1 to 3 in the negative;
ii. The Trial Court has come to the correct conclusion that the defendants have not produced any documents to show that the suit schedule property is their ancestral property and held issue No.4 in the negative;
iii. The evidence of PW.1 to PW.3 also shows that the plaintiff is ever ready to perform his part of contract and the evidence of DW.1 also shows that in the year 2010 also the plaintiff is ready and willing to perform his part of the contract;
iv. The agreement of sale(Ex.P14) was executed in the year 2000 and the suit was filed in the year
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NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 2011 after more than ten years. According to the plaintiff, he was waited for clearance of loan by the deceased and when he came to know the death of the deceased, he approached the defendants demanding to execute Sale Deed and issued legal notice which was returned as not claimed and thereafter he filed the suit;
v. It is discretionary on the part of the Court to grant decree for Specific Performance. As per the recitals of Ex.P14 and the reasons stated above, in order to prevent the defendants are enriched at the cost of the plaintiff, they are liable to pay ₹1,30,000/- to the plaintiff with interest at 18% per annum."
17. The First Appellate Court has noticed that Ex.P15 goes to show that the deceased has to pay the loan amount along with interest as on the date of the agreement and hence, the same showed the legal necessity of the deceased. Further, it noticed the admission of DW.1 that the plaintiff asked them to execute the Sale Deed in respect of the suit property by receiving the balance sale consideration of ₹55,000/-. Further,
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NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 it was noticed by the First Appellate Court that the legal notice issued by the plaintiff to the defendants was returned as 'unclaimed'. Hence, the First Appellate Court allowed the appeal, set aside the judgment and decree passed by the Trial Court and partly decreed the suit with cost by refusing to order for specific performance and directing the defendants/respondents to refund ₹1,30,000/- together with interest at the rate of 18% per annum.
18. It is forthcoming from the aforementioned that the Trial Court having dismissed the suit for specific performance. The First Appellate Court, upon a re-appreciation of the oral and documentary evidence on record has noticed that the plaintiff has proved the agreement of sale (Ex.P14), having regard to the fact that he has examined the witnesses of the said agreement as PW.2 and PW.3. It is forthcoming that the First Appellate Court has recorded a finding that the testimony of PW.1 to PW.3, corroborated the documentary evidence which proves the execution of the agreement (Ex.P14) by the deceased in favour of the plaintiff. It has further been noticed that the legal necessity as averred by the plaintiff is forthcoming from Ex.P15 i.e., the notice issued by the bank to
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NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 the plaintiff, to clear the loan availed by the deceased. Hence, the finding of the First Appellate Court that the agreement has been proved, has also not been challenged by the defendants.
19. While considering as to whether specific performance is required to be ordered, the First Appellate Court has noticed that by virtue of Section 20 of the Specific Relief Act, 19637, a discretion is required to be exercised by the Court, and taking into consideration of the facts and circumstances of the case, the First Appellate Court has exercised its discretion to decline specific performance and order for refund.
20. It is clear and forthcoming that the exercise of the discretion by the First Appellate Court have been done after taking into consideration all the relevant factual material on record, the appellant has failed in demonstrating that the discretion exercised by the First Appellate Court in refusing specific performance, is contrary to any specific, oral or documentary evidence on record.
21. In view of the aforementioned, the appellant has failed in demonstrating that any substantial question of law 7 Hereinafter referred to as the 'Act of 1963'
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NC: 2024:KHC-D:9470 RSA No. 100970 of 2018 arises for consideration in the above appeal. Hence, the above appeal is dismissed as being devoid of merit at the stage of admission itself.
22. In view of the dismissal of the above appeal, IA.I/2018 filed for stay is also stands dismissed.
Sd/-
JUDGE Pmp CT:GSM List No.: 1 Sl No.: 40