Karnataka High Court
Bheemanagowda Ninganagouda Patil vs Smt Gangavva W/O Bharamanagouda Patil on 24 September, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DAT ED THIS T HE 24 T H DAY OF SEPTEMBER, 2020
BEFORE
THE H ON'BLE MR. JUST ICE M .NAGAP RASANNA
R.S.A .N O.193/2006 (S.P)
BETWEEN :
1. BHEEMANAGOWDA NINGANAG OUDA PATIL,
AGED AB OUT 79 YEARS,
RESIDING AT NUGGIKERI VILLAGE,
TALUK & DIST RICT DHARWAD-58 0001.
(a) ULAVAVVA
W/OSHIVAPPA S HIRAGUPPI,
AGE : 56 YEARS, OCC: HOUSEHOLD WORK.
(b) MANJANAGOUDA
S/O BHIMANAGOUDA PATIL,
AGE : 54 YEARS, OCC: AGRICULT UR E.
(c) NINGANAGOUDA
S/O BHIMANAGOUDA PATIL,
AGE : 51 YEARS, OCC: AGRICULT UR E.
(d) NINGAVVA
D/O BHIMANAG OU DA PATIL ,
AGE : 47 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/ O NUGGIKERI VILLAGE,
TQ: & DIST: DHAR WAD.
... AP PELLANT S
(BY SRI SU RESH P.HUDEDAGADDI, A DVOCATE)
AN D :
1. SMT.GANGAVVA
W/O BHARAMANAGOUDA PATIL ,
AGE MAJOR, OCC: HOUSE HOLD WOR K,
RESIDING AT NAY AKANAHULIKAT TI,
TALUK & DISTRICT : DHARWAD- 5 80 001.
2
2. CHIKKANAGOUDA
BHARAMANAGOUDA PATIL ,
AGED ABOUT 44 YEARS,
OCC: AGRICULT UR E,
RESIDING AT NAY AKANAHULIKAT TI,
TALUK & DISTRICT : DHARWAD- 5 80001.
3. SMT.CHANNABASAVVA
W/O BASAVANTA P PA BIJ APUR ,
AGED ABOUT 46 YEARS,
OCC: HO USEH OLD WORK,
RESIDING AT GAMBY APUR ,
TALUK KALA GHATA GI,
DISTRICT DHARWAD-281204.
4. SMT.KAMALAVVA
W/O MANINGAPPA MUNAVALLI,
AGED ABOUT 34 YEARS,
OCC: HO USEH OLD WORK,
RESIDING AT KYA RAKOPPA,
NOW AT NAYAKANAHULIKATTI,
TALUK & DISTRICT DHARWAD-580001.
5. SMT.SHANTAVVA
W/O NINGA PPA JO DALLI,
AGED ABOUT 40 YEARS,
OCC: HO USEH OLD WORKS,
RESIDING AT HULIKOP PA,
TALUK KALA GHATA GI- 581204.
... RES PONDENT S
(NOTICE T O R 1 T O 3 AND R 5 IS SER VED)
(VIDE ORDER DAT ED 02.11.2009 NO TICE TO R 4 BY
WAY OF PAPER P UBLICATION IS ACCEPTED)
THIS REGULAR SECOND AP PEAL IS FILED UNDER
SECTION 100 OF T HE CODE OF CIVIL PR OCED UR E,
PRAYING T HIS COURT TO SET ASIDE T HE JUDGMENT
AND DECREE DATED 16.09.2005 PASSED IN
R.A.NO .50/ 2004 BY THE III ADDITIONAL CIVIL J UDGE
(SR.DVN), DHAR WAD, UPHOLD T HE JUD GMENT A ND
DECREE DAT ED 03.02.2004 IN O.S .N O.279/ 2002
PASSED BY THE PRINCIPAL CIVI L JUDGE (JR .DN.),
DHARWAD IN TH E INT EREST OF JUST ICE AND EQUITY.
THIS APPEAL COM ING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE F OLLOWING:
3
: JUDGMENT :
Being aggrieved by the judgment of the First Appellate Court remanding the matter back to the hands of the Trial Court for consideration afresh, the plaintiff has preferred the subject appeal.
2. Parties will be referred to as per their ranking before the Trial Court.
3. Brief facts leading to filing of the appeal is as follows:
The suit property was owned by the husband of defendant No.1 and father of defendant Nos.2 to 5 in block No.54 measuring 18 guntas and block No.49 measuring 9 gutnas situated in Nuggikeri village, Dharwad Taluka. Out of legal and family necessities husband of defendant Nos.1 and father of defendant Nos.2 to 5 entered into an agreement to sell of the suit properties on 10.08.1994 for a total sale consideration of Rs.15,000/- and in terms of the agreement to sell 4 the plaintiff was put in possession of the suit schedule property.
4. The plaintiff claiming to have sought the execution of sale deed by defendant No.1 and on not yielding to execute the sale deed, filed suit for specific performance of contract dated 10.08.1994 and also claimed a consequential relief of permanent injunction restraining the other defendants from causing obstruction to the peaceful possession and enjoyment of the property as he was in possession of the properties pursuant to the agreement to sell dated 10.08.1994.
5. Upon issuance of notice the defendants appeared and defendant No.4 filed the written statement and other defendants adopted the written statement filed by defendant No.4. Defendant Nos.4 denied the very execution of alleged agreement to sell and payment of earnest money and also the handing over of possession of 5 suit property in favour of the plaintiff and further contended that the claim of the plaintiff was imaginary and had no proof.
6. On the basis of the pleadings of the parties, the Trial Court famed the issues and thereafter recorded evidence.
7. In order to prove the case, the plaintiff examined himself as PW.1 and examined other three independent witnesses as PWs.2 to 4 and also marked 23 documents as Exs.P.1 to P.23. On the other hand defendant No.4 examined herself as DW.1 and another independent witness as DW.2 but did not produce any documentary evidence.
8. The Trial Court based upon the pleadings and evidence let in, partly decreed the suit directing the registration of sale deed in favour of the plaintiff within two months from the date of order.
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9. The defendants being aggrieved by the judgment and decree of the Trial Court filed appeal before the First Appellate Court in R.A.No.50/2004. The First Appellate Court while accepting the agreement to sell entered into between defendant No.1 and also accepting that the plaintiff was in possession of the property from the date of agreement declined to accept the fact that, he was ready and willing to perform his part of contract of getting the sale deed executed. But on that ground did not consider the appeal in its entirety but remanded the matter back to the hands of the Trial Court directing the plaintiff to amend the plaint and seek a lesser relief of refund of amount, in its prayer, without there being any submission or prayer to that effect by way of an application before the Court.
10. Being aggrieved by the order passed by the First Appellate Court, the plaintiff-agreement holder preferred the subject appeal. 7
11. Heard learned Counsel Sri Suresh P.Hudedagaddi, appearing for the appellant.
12. Respondent Nos.1, 2, 3 and 5 were served way back in the year 2017 and are unrepresented even as on today. Notice to respondent No.4 is held sufficient by order dated 02.11.2009 on acceptance of paper publication. Hence, the counsel for the appellant was alone heard.
13. While admitting the appeal for its hearing, this Court has formulated the following substantial question of law.
"Whether the lower app ellate Court was right and justified in disallowing the relief of sp ecific performance granted by the Trial Court on the ground that the plaintiff had failed to plead readiness and willingness to perform, ignoring the averments mad e in p ara 11 of the plaint?"8
14. In order to consider afore stated substantial question of law, certain undisputed facts are required to be noticed. The agreement between the parties namely the husband of the 1 s t defendant and father of defendant Nos.2 to 5 was executed between the parties and in terms of the recitals of the said documents it is clear that the plaintiff was put in possession of the property from the date of the agreement itself. Notwithstanding the possession of the property and readiness and willingness of the plaintiff to execute the sale deed, the defendant started interfering with the possession of the property of the plaintiff which necessitated the plaintiff to institute a suit for specific performance and consequential relief of permanent injunction restraining the defendants from causing any obstruction to peaceful possession of the plaintiff.
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15. The suit having been decreed on the basis of the evidence and also on the ground that the plaintiff was ready and willing to perform his part of contract by paying balance amount of Rs.8,000/- and it was the defendants who were not ready to execute the sale deed despite repeated requests on the part of the plaintiff, decreed the suit by directing the defendants to execute the sale deed in favour of the plaintiff.
16. Aggrieved by the said order, the defendants preferred appeal before the First Appellate Court in R.A.No.50/2004. The First Appellate Court framed the following points for consideration :
"1. Whether the plaintiff p roves that husband of the deft.no.1 and father of defts.2 to 5 had executed an agreement of sale dtd:10.08.1994 in favour of the plaintiff for total consideration of Rs.15,000/- and received part consideration of Rs.8000?10
2. Whether the plaintiff proves that he is in possession of the suitprop erty ?
3. Whether the plaintiff proves that he was ready and willing to perform his part of the contract?
4. Whether the plaintiff proves that defts., are being the legal heirs of deceased Bharamagoud a Patil have failed to execute the said sale deed in favour of the plaintiff?
5. Whether the plaintiff is entitled for the relief of sought for?
6. What order?
17. While answering the said points, the 1 s t point that fell for consideration for the First Appellate Court was whether the execution of the document was proved, on a elaborate reasoning, it was held that document was executed on 10.08.1994, insofar as 2 n d point for consideration was, whether the plaintiff had proved that he was in possession of the suit property. Again on elaborate reasoning on the 2 n d point also, the 11 First Appellate Court held that the plaintiff was put in possession on the date of the agreement and was in possession of the property through out. Having held so, the First Appellate Court fell in error in answering other points for consideration in the negative.
18. The 3 r d point that was considered by the First Appellate Court was whether the plaintiff proved that he was ready and willing to perform his part of contract, this was held in the negative by the First Appellate Court on an evidence that completely runs counter to what was held by the Trial Court on readiness and willingness of the plaintiff to perform his part of contract and the 4 t h point for consideration was, whether the legal heirs of the deceased- executant of the document, namely the agreement to sell, had failed to execute the sale deed in favour of the plaintiff. The First Appellate Court held this point also in the negative 12 completely ignoring the evidence before the Trial Court with regard to the legal heirs not willing to execute the sale deed.
19. Afore stated consideration on the points formulated by the First Appellate Court, the First Appellate Court ought to have dismissed the appeal but has allowed the appeal and remitted the matter back to the Trial Court directing amendment of the plaint by the plaintiff to seek a lesser relief of refund of the amount of the part consideration that was received by the executant of the document namely defendant No.1.
20. In my considered view. the order of the First Appellate Court is completely contrary to the evidence and reasoning given and also contrary to the points formulated by it. The answers given to the points run contradictory to each other and there could not have been a remand to the Trial Court to seek amendment of the plaint with the formulated points. 13
Hence, substantial questions of law framed by this Court is answered in favour of the plaintiff holding that the plaintiff was ever ready and willing to perform his part of the contract and it was the defendants who did not come forward to execute the sale deed in favour of the plaintiff and that the First Appellate Court has fell in error in reversing the finding of the Trial Court. Hence the following;
: ORDER :
a. The appeal is allowed.
b. The judgment and decree dated
16.09.2005 passed by the First
Appellate Court in R.A.No.50/2004 is set aside.
c. The judgment and decree dated 03.02.2004 passed by the Trial Court in O.S.279/2002 is restored.
Sd/-
JUDGE EM/-