Karnataka High Court
Sri Govardhan vs Smt Durgadevi on 1 October, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.1170 OF 2019 (SP)
C/W
REGULAR SECOND APPEAL NOS.1318 OF 2019,
1319 OF 2019 & 1399 OF 2019
IN RSA NO.1170 OF 2019
BETWEEN:
1. SRI. D. JAYARAMAIAH
S/O LATE DODDAMUNINAGAPPA
AGED ABOUT 65 YEARS
R/AT NO.211, GRAPE GARDEN
VISHWANATHANAGENAHALLI
BENGALURU- 560 035.
2. SRI. VENKATESH
S/O LATE DODDAMUNINAGAPPA
AGED ABOUT 52 YEARS
R/AT NO.211, GRAPE GARDEN
VISHWANATHANAGENAHALLI
BENGALURU- 560 035.
...APPELLANTS
(BY SRI. C.M.NAGABHUSHANA, ADVOCATE FOR
SRI. V. VIJAYASHEKARA GOWDA, ADVOCATE)
AND:
1. SMT. DURGADEVI
W/O A.R.K. RAJU
AGED ABOUT 69 YEARS
2
R/AT NO.19/3, 15TH CROSS
VYALIKAVAL
BENGLAURU - 560 003.
2. SRI. D. SOMASHEKAR
S/O LATE DASAPPA
AGED ABOUT 78 YEARS
R/AT NO.20/B. 18TH CROSS ROAD
MALLESHWARAM
BENGALURU-560 055.
D. MUNISWAMAPPA @ CIGARETLAPPA
SINCE DECEASED REP. BY LRS.
3. CHANDRAPPA
SINCE DECEASED REP. BY LRS.
3(a). SMT. ASHWATHAMMA
W/O LATE CHANDRAPPA
AGED ABOUT 56 YEARS
3(b). SRI. MAHENDRA
S/O LATE CHANDRAPPA
AGED ABOUT 35 YEARS
3(c). SRI. RAMANJANAPPA
S/O LATE CHANDRAPPA
AGED ABOUT 33 YEARS
3(d). SRI. GOPALA KRISHNA
S/O LATE CHANDRAPPA
AGED ABOUT 30 YEARS
R3(a) to R3(d) ARE R/AT
CHANNAHALLI VILLAGE
JALA HOBLI, CHIKKA JALA POST
BENGALURU NORTH TALUK-562 157.
3(e). SMT. MANJULA
W/O MUNIRAJU
D/O LATE CHANDRAPPA
AGED ABOUT 27 YEARS
3
R/AT KONAPPALI VILLAGE
AMBAJIDURGA HOBLI
CHINTHAMANI TALUK
CHIKKABALLAPUR DISTRICT-563 125.
4. SRI. NARAYANASWAMY
SINCE DECEASED REP. BY LRS.
4(a). SMT. KANAKAMMA
W/O LATE NARAYANASWAMY
AGED ABOUT 54 YEARS
4(b). SRI. SHIVARAJU
S/O LATE NARAYANASWAMY
AGED ABOUT 32 YEARS
4(c). SRI. RAGHU
S/O LATE NARAYANASWAMY
AGED ABOUT 30 YEARS
R4(a) to (c) ARE R/AT
CHANNAHALLI VILLAGE
JALA HOBLI, CHIKKA JALA POST
BENGALURU NORTH TALUK-562 157.
4(d). SMT. NEELAMBIKA
W/O MANJUNATHA K.C.
D/O LATE NARAYANASWAMY
AGED ABOUT 27 YEARS
R/AT KATAMACHNAHALLI
KASABA HOBLI, CHITHAMANI TALUK
CHIKKABALLAPUR DISTRICT-563 125.
5. SMT. VARALAKSHMAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 48 YEARS
6. SMT. ANUSUYAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 46 YEARS
4
7. SMT. MUNILAKSHMAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 44 YEARS
8. SMT. MANGAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 42 YEARS
RESPONDENTS NO.3 TO 8 ARE
R/AT CHANNAHALLI VILLAGE
JALA HOBLI,
BENGALURU NORTH TALUK-562157.
9. JAYENDRA
SINCE DECEASED REP. BY LRS.
9(a). SMT. H.M. PRABHAVATHI
W/O LATE JAYANDRA
AGED ABOUT 50 YEARS
9(b). SMT. ASVANI
D/O LATE JAYENDRA
AGED ABOUT 27 YEARS
RESPONDENTS NO.9(a) to 9(b)
ARE R/AT NO.217, 3RD MAIN ROAD
MAHALAKSHMI LAYOUT
BENGALURU -560 086.
10. SRI. GOVARDHAN
S/O MUNIYELLAPPA
AGED ABOUT 46 YEARS
R/AT DOOR NO.107,
POST GUDDADAHALLI
R.T. NAGAR
BENGALURU-560 032.
11. SRI. PRAKASH
S/O MUNIYELLAPPA
AGED ABOUT 48 YEARS
R/AT DOOR NO.107,
POST GUDDADAHALLI,
5
R.T. NAGAR,
BENGALURU-560 032.
...RESPONDENTS
(BY SRI. M.S. SHYAMSUNDAR, SENIOR COUNSEL FOR
SRI. SYED KHADER NAWAZ, ADVOCATE FOR R1;
SRI. PAPI REDDY G., SENIOR COUNSEL FOR
SRI. VARUN PAPI REDDY, ADVOCATE FOR R10 AND R11;
NOTICE TO R4(d) HELD SUFFICIENT V/O DATED 29.03.2023;
NOTICE TO R2, R5 TO R8 IS DISPENSED WITH V/O DATED
14.08.2024;
R3(a TO e), R4(a TO c) AND R9(a & b) SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
JUDGMENT AND DECREE DATED 24th APRIL, 2019 PASSED IN
R.A. NO.15055 OF 2018 ON THE FILE OF V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BENGALURU
RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 12TH OCTOBER, 2018
PASSED IN O.S.NO.40 OF 2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, DEVANAHALLI.
IN RSA NO.1318 OF 2019
BETWEEN
1. SRI. GOVARDHAN
S/O MUNIYELLAPPA
AGED ABOUT 46 YEARS
R/AT DOOR NO.107,
POST GUDDADAHALLI
R.T. NAGAR
BENGALURU-560 032.
2. SRI. PRAKASH
S/O MUNIYELLAPPA
AGED ABOUT 48 YEARS
R/AT DOOR NO.107,
6
POST GUDDADAHALLI
R.T.NAGAR POST
BENGALURU - 560 032.
...PETITIONERS
(BY SRI. PAPI REDDY G., SENIOR COUNSEL FOR
SRI. VARUN PAPI REDDY, ADVOCATE)
AND
1. SMT. DURGADEVI
W/O A.R.K. RAJU
AGED ABOUT 69 YEARS
R/AT NO.19/3, 15TH CROSS
VYALIKAVAL
BENGLAURU - 560 003.
2. SRI. D. SOMASHEKAR
S/O LATE DASAPPA
AGED ABOUT 78 YEARS
R/AT NO.20/B. 18TH CROSS ROAD
MALLESHWARAM
BENGALURU-560 055.
MUNISWAMAPPA @ CIGRETLAPPA
SINCE DECEASED REP. BY LRS.
3. CHANDRAPPA
SINCE DECEASED REP. BY LRS.
4. NARAYANASWAMY
SINCE DECEASED REP. BY LRS.
LRS OF R3 AND R4 ARE ALREADY
ON RECORD IN THE CONNECTED MATTER
IN RSA NO.1170 OF 2019.
5. SMT. VARALAKSHMAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 49 YEARS
6. SMT. ANASUYAMMA
D/O LATE D. MUNISWAMAPPA
7
AGED ABOUT 47 YEARS
7. SMT. MUNILAKSHMAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 45 YEARS
8. SMT. MANGAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 43 YEARS
RESPONDENTS NO. 5 TO 8 ARE
R/AT CHANNAHALLI VILLAGE
JALA HOBLI,
BENGALURU NORTH TALUK
BENGALURU-562 157.
9. JAYENDRA
SINCE DECEASED REP. BY LRS.
9(a). SMT. H.M. PRABHAVATHI
W/O LATE JAYANDRA
AGED ABOUT 50 YEARS
9(b). SMT. ASVANI
D/O LATE JAYENDRA
AGED ABOUT 27 YEARS
RESPONDENTS NO.9(a) AND 9(b)
ARE R/AT NO.217, 3RD MAIN ROAD
MAHALAKSHMI LAYOUT
BENGALURU -560 086.
10. SRI. D. JAYARAMAIAH
S/O LATE DODDAMUNINAGAPPA
AGED ABOUT 65 YEARS
R/AT NO.211, GRAPE GARDEN
VISHWANATHANAGENAHALLI
BENGALURU- 560 035.
11. SRI. VENKATESH
S/O LATE DODDAMUNINAGAPPA
AGED ABOUT 52 YEARS
8
R/AT NO.211, GRAPE GARDEN
VISHWANATHANAGENAHALLI
BENGALURU- 560 035.
...RESPONDENTS
(BY SRI. M.S. SHYAMSUNDAR, SENIOR COUNSEL FOR
SRI. SYED KHADER NAWAZ, ADVOCATE FOR R1;
SRI. C.M. NAGABHUSHANA, ADVOCATE FOR
SRI. V. VIJAYASHEKARA GOWDA,ADVOCATE FOR R10
AND R11;
NOTICE TO R2 TO R8 IS DISPENSED WITH V/O DATED
14.08.2024;
R9 (a & b) SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
JUDGMENT AND DECREE DATED 24th APRIL, 2019 PASSED IN
R.A.NO.15055 OF 2018 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BENGALURU
RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 12TH OCTOBER, 2018
PASSED IN O.S.NO.40 OF 2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, DEVANAHALLI.
IN RSA NO.1319 OF 2019
BETWEEN
1. SRI. GOVARDHAN
S/O MUNIYELLAPPA
AGED ABOUT 46 YEARS
R/AT DOOR NO.107,
POST GUDDADAHALLI
R.T. NAGAR
BENGALURU-560 032.
2. SRI. PRAKASH
9
S/O MUNIYELLAPPA
AGED ABOUT 48 YEARS
R/AT DOOR NO.107,
POST GUDDADAHALLI
R.T.NAGAR POST
BENGALURU - 560 032.
...PETITIONERS
(BY SRI. PAPI REDDY G., SENIOR COUNSEL FOR
SRI. VARUN PAPI REDDY, ADVOCATE)
AND
1. SRI. A.V.L.N. RAJU
S/O SRI. A.S.N. RAJU
AGED ABOUT 57 YEARS
R/AT NO.19/3, 15TH CROSS
VYALIKAVAL
BENGALURU-560 003.
2. JAYENDRA
SINCE DECEASED REP. BY LRS.
2(a). SMT. H.M. PRABHAVATI
W/O LATE JAYENDRA
AGED ABOUT 50 YEARS
2(b). SMT. ASHWINI
D/O LATE JAYENDRA
AGED ABOUT 27 YEARS
R2(a) & 2(b) ARE
R/AT NO. 217
3RD MAIN ROAD, MAHALAKSMI LAYOUT
BENGALURU-560 086.
D. MUNISWAMAPPA @
CIGARETLAPPA
SINCE DECEASED REP. BY LRS.
3. CHANDRAPPA
SINCE DECEASED REP. BY LRS.
10
4. NARAYANSWAMY
SINCE DECEASED REP. BY LRS.
LRS OF R3 AND R4 ARE ALREADY
ON RECORD IN THE CONNECTED MATTER
IN RSA NO.1170 OF 2019.
5. SMT. VARALAKSHMAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 49 YEARS
6. SMT. ANASUYAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 47 YEARS
7. SMT. MUNILAKSHMAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 45 YEARS
8. SMT. MANGAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 43 YEARS
RESPONDENTS NO.5 TO 8 ARE
R/AT CHENNAHALLI VILLAGE
JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU DISTRICT.
9. SRI. D. SOMASHEKAR
S/O LATE SRI. DASAPPA
AGED ABOUT 79 YEARS
R/AT NO.20/B, 18TH CROSS
MALLESWARAM
BENGALURU-560 055.
10. SRI. D. JAYARAMAIAH
S/O LATE SRI DODDAMUNINAGAPPA
AGED ABOUT 66 YEARS
R/AT NO.211, GRAPE GARDEN
VISHWANATHANAGENAHALLI
11
BENGALURU-560 035.
11. SRI.VENKATESH
S/O LATE SRI DODDAMUNINAGAPPA
AGED ABOUT 53 YEARS
R/AT NO.211, GRAPE GARDEN
VISHWANATHANAGENAHALLI
BENGALURU-560 035.
... RESPONDENTS
(BY SRI. JAYANT K. MEHTA, SENIOR COUNSEL A/W
SRI. SUKANT VIKRAM, ADVOCATE FOR
SRI. SYED KHADER NAWAZ, ADVOCATE FOR R1;
NOTICE TO R3 TO R11 IS DISPENSED WITH V/O DATED
04.12.2023;
R2 (a & b) SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
JUDGMENT AND DECREE DATED 24th APRIL, 2019 PASSED IN
R.A.NO.15054 OF 2018 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BENGALURU
RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 12TH OCTOBER, 2018
PASSED IN O.S.NO.41 OF 2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, DEVANAHALLI.
IN RSA NO.1399 OF 2019
BETWEEN:
1. SRI. D. JAYARAMAIAH
S/O LATE DODDAMUNINAGAPPA
AGED ABOUT 65 YEARS
R/AT NO.211, GRAPE GARDEN
VISHWANATHANAGENAHALLI
12
BENGALURU- 560 035.
2. SRI. VENKATESH
S/O LATE DODDAMUNINAGAPPA
AGED ABOUT 52 YEARS
R/AT NO.211, GRAPE GARDEN
VISHWANATHANAGENAHALLI
BENGALURU- 560 035.
...APPELLANTS
(BY SRI. C.M.NAGABHUSHANA, ADVOCATE FOR
SRI. V. VIJAYASHEKARA GOWDA, ADVOCATE)
AND:
1. SRI. A.V.L.N. RAJU
S/O SRI. A.S.N. RAJU
AGED ABOUT 57 YEARS
R/AT NO.19/3, 15TH CROSS
VYALIKAVAL
BENGALURU-560 003.
2. JAYENDRA
SINCE DECEASED REP. BY LRS.
2(a). SMT. H.M. PRABHAVATI
W/O LATE JAYENDRA
AGED ABOUT 50 YEARS
2(b). SMT. ASVANI
D/O LATE JAYENDRA
AGED ABOUT 27 YEARS
R2(a) & 2(b) ARE
R/AT NO. 217
3RD MAIN ROAD, MAHALAKSMI LAYOUT
BENGALURU-560 086.
D. MUNISWAMAPPA
@ CIGARETLAPPA
SINCE DECEASED REP. BY LRS.
13
3. CHANDRAPPA
SINCE DECEASED REP. BY LRS.
3(a). SMT. ASHWATHAMMA
W/O LATE CHANDRAPPA
AGED ABOUT 56 YEARS
3(b). SRI. MAHENDRA
S/O LATE CHANDRAPPA
AGED ABOUT 35 YEARS
3(c). SRI. RAMANJANAPPA
S/O LATE CHANDRAPPA
AGED ABOUT 33 YEARS
3(d). SRI. GOPALA KRISHNA
S/O LATE CHANDRAPPA
AGED ABOUT 30 YEARS
R3(a) to R3(d) ARE R/AT
CHANNAHALLI VILLAGE
JALA HOBLI, CHIKKA JALA POST
BENGALURU NORTH TALUK-562 157.
3(e). SMT. MANJULA
W/O MUNIRAJU
D/O LATE CHANDRAPPA
AGED ABOUT 27 YEARS
R/AT KONAPPALI VILLAGE
AMBAJIDURGA HOBLI
CHINTHAMANI TALUK
CHIKKABALLAPUR DISTRICT-563 125.
4. NARAYANSWAMY
SINCE DECEASED REP. BY LRS.
4(a). SMT. KANAKAMMA
W/O LATE NARAYANASWAMY
AGED ABOUT 54 YEARS
14
4(b). SRI. SHIVARAJU
S/O LATE NARAYANASWAMY
AGED ABOUT 32 YEARS
4(c). SRI. RAGHU
S/O LATE NARAYANASWAMY
AGED ABOUT 30 YEARS
R4(a) TO 4(c) ARE R/AT
CHANNAHALLI VILLAGE
JALA HOBLI, CHIKKA JALA POST
BENGALURU NORTH TALUK-562 157.
4(d). SMT. NEELAMBIKA
W/O MANJUNATHA K.C.
D/O LATE NARAYANASWAMY
AGED ABOUT 27 YEARS
R/AT KATAMACHNAHALLI
KASABA HOBLI
CHITHAMANI TALUK
CHIKKABALLAPURA DISTRICT-563 125.
5. SMT. VARALAKSHMAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 49 YEARS
6. SMT. ANASUYAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 47 YEARS
7. SMT. MUNILAKSHMAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 45 YEARS
8. SMT. MANGAMMA
D/O LATE D. MUNISWAMAPPA
AGED ABOUT 43 YEARS
RESPONDENTS NO.5 TO 8 ARE
R/AT CHENNAHALLI VILLAGE
JALA HOBLI
BENGALURU NORTH TALUK
15
BENGALURU DISTRICT.
9. SRI. GOVARDHAN
S/O MUNIYELLAPPA
AGED ABOUT 46 YEARS
R/AT DOOR NO.107,
POST GUDDADAHALLI
R.T. NAGAR
BENGALURU-560 032.
10. SRI. PRAKASH
S/O MUNIYELLAPPA
AGED ABOUT 48 YEARS
R/AT DOOR NO.107,
POST GUDDADAHALLI
R.T. NAGAR
BENGALURU-560 032.
11. SRI. D. SOMASHEKAR
S/O LATE SRI. DASAPPA
AGED ABOUT 79 YEARS
R/AT NO.20/B, 18TH CROSS
MALLESWARAM
BENGALURU-560 055.
... RESPONDENTS
(BY SRI. JAYANT K. MEHTA, SENIOR COUNSEL A/W
SRI. SUKANT VIKRAM, ADVOCATE FOR
SRI. SYED KHADER NAWAZ, ADVOCATE FOR R1;
NOTICE TO R2(a & b), R3(a TO e), R4(a TO c) R5, R6,
AND R11 ARE SERVED AND UNREPRESENTED;
NOTICE TO R4(d) AND NOTICE TO R9 AND R10 IS HELD
SUFFICIENT V/O DATED 29.03.2023 AND 16.01.2023
RESPECTIVELY;
NOTICE TO R7 AND R8 IS DISPENSED WITH
V/O DATED 29.03.2023)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
16
JUDGMENT AND DECREE DATED 24th APRIL, 2019 PASSED IN
R.A.NO.15054 OF 2018 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BENGALURU
RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 12TH OCTOBER, 2018
PASSED IN O.S.NO.41 OF 2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, DEVANAHALLI.
THESE REGULAR SECOND APPEALS HAVING BEEN
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, E.S. INDIRESH J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE E.S. INDIRESH) Regular Second Appeal Nos.1170 of 2019 and 1318 of 2019 are arising out of judgment and decree dated 24th April, 2019 passed in Regular Appeal No.15055 of 2018 on the file of the V Additional District and Sessions Judge, Devanahalli, Bengaluru Rural District (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 12th October, 2018 passed in Original Suit No.40 of 2006 (Old OS.No.358/1997) on the file of the Senior Civil Judge and JMFC., Devanahalli (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiff came to be decreed in-part. 17
2. Regular Second Appeal Nos.1319 of 2019 and 1399 of 2019 are arising out of judgment and decree dated 24th April, 2019 passed in Regular Appeal No.15054 of 2018 on the file of the V Additional District and Sessions Judge, Devanahalli, Bengaluru Rural District (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 12th October, 2018 passed in Original Suit No.41 of 2006 (Old No.OS No.449/1997) on the file of the Senior Civil Judge and JMFC., Devanahalli (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiff came to be decreed in-part.
3. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.
FACTS OF THE CASE:
4. The relevant facts for adjudication of Regular Second Appeal Nos.1170 of 2019 and 1318 of 2019 are that:
4.1. The plaint averments in Original Suit No.40 of 2006 are that the defendant No.1-D. Somashekar was owner in possession of the land bearing Survey No.25 of Bayanahalli Village, measuring 5 acres and Survey No.6 of Chokkanahalli 18 Village, Jala Hobli, Bengaluru North Taluk measuring 7 acres. It is the case of the plaintiff that land bearing Survey No.25 of Bayanahalli Village was totally measuring 12 acres and same was Phoded and accordingly, new survey number was assigned as Survey Nos.24, 25 and 25/6 and thereafter, reassigned new Survey Nos.64, 65 and 66 (plaint schedule properties). It is averred in the plaint that the defendant No.1 and his brother viz. D. Chandrashekar had purchased the land to an extent of 14 acres and as per the partition effected between them, suit schedule property had fallen to the share of the defendant No.1.
The suit schedule property is measuring 5 acres in Survey No.25 of Bayanahalli Village and 2 acres in Survey No.6 of Chokkanahalli Village. It is further stated in the plaint that the plaintiff came to know from the defendant No.2 that the defendant No.1 has offered to sell the suit schedule property and as such, the plaintiff and defendant No.1 have entered into an Agreement of Sale dated 03rd April, 1988, in which, the plaintiff agreed to purchase the suit schedule property for a total consideration of Rs.1,54,000/- within ninety days from the date of performance of the obligation by the defendant No.1. 19
4.2. It is also stated in the plaint that the plaintiff agreed to purchase the portion of 7 acres from D. Chandrashekar, brother of the defendant No.1 and as such, Agreement of Sale dated 09th July, 1988 was entered into between the said D. Chandrashekar and A.V.L.N. Raju (G.P.A. Holder of the plaintiff). It is the case of the plaintiff that the defendant No.1 had received sum of Rs.10,000/- on the date of Agreement of Sale and thereafter received Rs.40,000/- from the plaintiff. It is also stated in the plaint that the defendant No.1 has received Rs.1,05,000/- by cash. It is further pleaded that the aforementioned payments are duly endorsed in the Agreement of Sale. It is also stated that the defendant No.2 was instrumental in bringing about the execution of Agreement of Sale. It is further stated that the revenue entries particularly mutation was not properly effected in the revenue documents as it stands in the name of one Muniswamppa @ Cigaretlappa (defendant No.3). It is further stated that the defendants 1 and 2 and the brother of defendant No.1 viz., D. Chandrashekar promised the plaintiff to get appropriate mutation entries into their name by clearing the name of Muniswamappa @ Cigaretlappa (defendant No.3) in the revenue records. Despite 20 the request made by the plaintiff, defendant No.1 and his brother D. Chandrashekar have not made any effort to change the mutation entries into their name and as such, the plaintiff has requested the defendants 1 and 2 to perform their obligation as per the Agreement of Sale.
4.3. It is also stated in the plaint that the plaintiff had paid a sum of Rs.1,15,000/- under the Agreement of Sale and she is always willing and ready to perform her part of the contract, however, the defendants 1 and 2 postponed the execution of registered Sale Deed. Thereafter, at the request made by the defendant No.1, the plaintiff has paid 30,000/- by cash on various dates and further paid Rs.10,000/- during the year March-1994. Subsequently, the plaintiff came to know that the defendants 1 and 2 have lost the trust and as such, plaintiff issued Telegram through her counsel to the defendant No.1, calling upon him to execute the registered sale deed on or before 26th February, 1995. Though the defendant No.1 received the Telegram, has not made any effort to execute the registered sale deed. Thereafter, the plaintiff came to know from her Power of Attorney viz., A.V.L.N. Raju, that the defendants 1 and 2 and brother of the defendant No.1 viz., D. 21 Chandrashekar have removed name of the defendant No.3 from the R.T.C./Pahani records and sold the portion of suit schedule property in favour of the defendants 4 to 7 as per two registered Sale Deeds dated 25th July, 1994. It is the grievance of the plaintiff that the defendants 1 and 2, having received the substantial sale consideration to an extent of 1,45,000/-, however, in order to defeat the claim of the plaintiff, have colluded with the defendants 4 to 7. Therefore, it is the case of the plaintiff that the defendants 4 to 7 have not acquired any independent right in respect of the suit schedule property. Hence, plaintiff filed suit in Original Suit No.358 of 1997 (New O.S. No.40/2006) before the Trial Court and sought for decree of specific performance of contract against the defendants.
4.4. After service of summons, defendants 1 and 4 to 8 entered appearance and filed detailed separate written statement. Defendant No.2 died and his legal representatives were not brought on record. Defendant No.3 died and his legal representatives were brought on record. Defendant No.1 denied the averments made in the plaint, however, admits the sale of the suit schedule property made in favour of defendants 4 to 7. Defendant No.1 also pleaded that the suit is barred by 22 limitation. Defendants 4 and 5 have filed separate written statement, denying the averments made in the plaint and took- up a contention that the suit is bad for mis-joinder of parties and barred by the limitation. It is the specific contention of defendants 4 and 5 that, they are the bonafide purchasers of the suit schedule property as per paragraph 3 of the written statement. It is also stated by defendants 4 and 5 that the revenue entries stands in the name of defendants 4 and 5 and they have availed loan from the Bank to develop the suit schedule property and change the dry land into an irrigated land by growing vegetables, grapes and other commercial crops as per the RTC extracts. Accordingly, sought for dismissal of the suit.
4.5. On the basis of rival pleadings, the Trial Court has formulated the issues for its consideration.
4.6. In order to establish their case, plaintiff examined three witnesses as PW1 (A.V.L.N. Raju-Power of Attorney Holder of the plaintiff), PW2-B.A. Sanjeevappa (defendant No.2) and PW3-D. Somashekar (defendant No.1) and got marked 7 documents as Exhibits P1 to P7. On the other hand, defendants examined two witnesses as DW1 and DW2 and got marked 101 23 documents as Exhibits D1 to D101. Court documents were marked as Exhibits C1 and C1(a).
4.7. The Trial Court, after considering the material on record, by its judgment and decree dated 12th October, 2018, decreed the suit of the plaintiff in-part and directed the defendants 1 and 4 to 8 to execute the registered Sale Deed in favour of the plaintiff within two months, however, dismissed the suit of plaintiff in respect of relief of injunction. Being aggrieved by the same, the defendants 4 to 7 have preferred Regular Appeal No.15055 of 2018 on the file of First Appellate Court. The said appeal was resisted by the respondents therein. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 24th April, 2019, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in Original Suit No.40 of 2006.
4.8. Being aggrieved by the judgment and decree passed by the Courts below, defendants 6 and 7 have preferred Regular Second Appeal No.1170 of 2019 and defendants 4 and 5 have preferred Regular Second Appeal No.1318 of 2019 before this Court under Section 100 of the Code of Civil Procedure.
24
5. The relevant facts for adjudication of Regular Second Appeal Nos.1319 of 2019 and 1399 of 2019 are that:
5.1. The plaint averments in Original Suit No.41 of 2006 are that the defendant No.1 was owner in possession of the land bearing Survey No.25 of Bayanahalli Village, measuring 5 acres and Survey No.6 of Chokkanahalli Village, Jala Hobli, Bengaluru North Taluk measuring 7 acres. It is the case of the plaintiff that land bearing Survey No.25 of Bayanahalli Village was totally measuring 12 acres and same was Phoded and accordingly, new survey numbers was assigned as Survey Nos.24, 25 and 25/6 and thereafter, reassigned as new Survey Nos.64, 65 and 66 (plaint schedule properties). It is averred in the plaint that, D. Chandrashekar, father of the defendant No.1 had purchased the land to an extent of 14 acres, with his brother D. Somashekar and as per the partition effected between them, suit schedule property had fallen to the share of D. Chandrashekar, father of the defendant No.1. The suit schedule property is measuring 5 acres in Survey No.25 of Bayanahalli Village and 2 acres in Survey No.6 of Chokkanahalli Village. It is further stated in the plaint that the plaintiff came to know from the defendant No.2 that, D. Chandrashekar-father of 25 the defendant No.1 has offered to sell the suit schedule property and accordingly, the plaintiff and D. Chandrashekar, father of the defendant No.1 have entered into an Agreement of Sale dated 09th July, 1988, in which, the plaintiff agreed to purchase the suit schedule property for a total consideration of Rs.2,05,000/- within 120 days from the date of execution of the agreement of Sale.
5.2. It is also stated in the plaint that the plaintiff agreed to purchase the portion of 7 acres from D. Somashekar (defendant No.8), brother of D. Chandrashekar and as such, Agreement of Sale dated 09th July, 1988 was entered into between the father of the defendant No.1 and the plaintiff. It is the case of the plaintiff that, D. Chandrashekar, father of defendant No.1 had received sum of Rs.25,000/- on the date of execution of Agreement of Sale dated 09th July, 1988 and thereafter received Rs.50,000/- from the plaintiff. It is further pleaded that the aforementioned payments are duly endorsed in the Agreement of Sale. It is also stated that the defendant No.2 was instrumental in bringing about the Sale Agreement. It is further stated that the revenue entries particularly mutation was not properly effected in the revenue documents as it stands 26 in the name of one Muniswamppa @ Cigaretlappa (defendant No.3). It is further stated that the father of defendant No.1 and defendant No.2 promised the plaintiff to get the appropriate mutation entries into their name by clearing the name of Muniswamppa @ Cigaretlappa (defendant No.3) in the revenue records. It is further pleaded that, despite the request made by the plaintiff, father of the defendant No.1 and uncle of the defendant No.1 have not made any effort to change the mutation entries into their name and as such, the plaintiff has requested the father of the defendant No.1 and defendant No.2 to perform their obligation as per the Agreement of Sale dated 09th July, 1988.
5.3. It is also stated in the plaint that the plaintiff had paid a sum of Rs.75,000/- by cash to the father of the defendant No.1 under the Sale Agreement and was always ready and willing to perform his part of the contract, however, the father of the defendant No.1 and defendant No.2 postponed the execution of registered Sale Deed. Thereafter, the plaintiff came to know that the father of defendant No.1 and defendant No.2 have lost the trust of the plaintiff and as such, plaintiff issued Telegram through his counsel to D. Chandrashekar, 27 father of the defendant No.1, calling upon him to execute the registered sale deed. It is the case of the plaintiff that, though the father of the defendant No.1 received the Telegram, has not made any effort to execute the registered sale deed. Thereafter, the plaintiff came to know that the defendants 1 and 2; and D. Somashekar (defendant No.8), uncle of the defendant No.1 have, removed the name of the defendant No.3 from the R.T.C./Pahani records and sold the portion of suit schedule property in favour of the defendants 4 to 7 as per two registered Sale Deeds dated 25th July, 1994. It is the grievance of the plaintiff that the father of the defendant No.1 and defendant No.2 having received the substantial sale consideration to an extent of 1,75,000/-, in order to defeat the claim of the plaintiff, have colluded with each other and sold the suit schedule property in favour of defendants 4 to 7. Therefore, it is the case of the plaintiff that the defendants 4 to 7 have not acquired any independent right in respect of the suit schedule property. It is also stated that the father of the defendant No.1-D. Chandrashekar died on 11th January, 1993. Hence, plaintiff filed Original Suit No.449 of 1997 (New OS.28
NO.41/2006) before the Trial Court and sought for decree of specific performance of contract against the defendants.
5.4. After service of summons, defendants 4 to 8 entered appearance and filed detailed written statement. Defendant No.2 died and his legal representatives were not brought on record. Suit against Defendant No.3(b) was dismissed.
5.5. Defendant No.8 denied the averments made in the plaint, however, admits the sale of the suit schedule property made in favour of defendants 4 to 7. He also pleaded that the suit is barred by limitation. Defendants 4 and 5 have filed separate written statement denying the averments made in the plaint and took-up a contention that the plaintiff has no locus standi to file suit against these defendants and suit is bad for mis-joinder of parties and barred by the limitation. It is the specific contention of defendants 4 and 5 that they are the bonafide purchasers of the suit schedule property as per paragraph 3 of the written statement. It is also stated by defendants 4 and 5 that the revenue entries stands in the name of defendants 4 and 5. It is further stated in the written statement that they have developed the suit schedule property and changed the dry land into an irrigated land by growing 29 vegetables, grapes and other commercial crops and accordingly, sought for dismissal of the suit.
5.6. Defendants 6 and 7 have filed separate written statement and took up the contentions in similar lines as per defendants 4 and 5 and further submitted that the defendants 6 and 7 are the bonafide purchaser, having purchased 2 acres of land in Survey No.66 of Bayanahalli Village as per registered Sale Deed dated 25th July, 1994 and further 1 acre 20 guntas in Survey No.6 of Chokkanahalli Village as per registered Sale deed dated 04th August, 1994. It is further stated in the written statement that the defendant No.7 had purchased 2 acres in Survey No.65 of Bayanahalli Village as per registered Sale Deed 25th July, 1994 and land to an extent of 01 acre 20 guntas in Survey No.6 of Chokkanahalli Village as per registered Sale Deed dated 04th August, 1994 and accordingly, it is the contention of defendants 6 and 7 that they have developed the land in question and they are in cultivation of the same. Accordingly, sought for dismissal of the suit.
5.7. On the basis of the rival pleadings, the Trial Court has formulated the issues and additional issue for its consideration.
30
5.8. In order to establish their case, plaintiff examined five witnesses as PW1 to PW5 and got marked 7 documents as Exhibits P1 to P7. On the other hand, defendants examined two witnesses as DW1 and DW2 and got marked 85 documents as Exhibits D1 to D85.
5.9. The Trial Court, after considering the material on record, by its judgment and decree dated 12th October, 2018, decreed the suit of the plaintiff in-part and directed the defendants 1 and 4 to 8 to execute the registered Sale Deed in favour of the plaintiff within two months, however, dismissed the suit of the plaintiff seeking, relief of injunction. Being aggrieved by the same, the defendants 4 to 7 have preferred Regular Appeal No.15054 of 2018 on the file of First Appellate Court. The said appeal was resisted by the respondents therein. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 24th April, 2019, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in Original Suit No.41 of 2006.
5.10. Being aggrieved by the judgment and decree passed by the Courts below, defendants 4 and 5 have preferred Regular Second Appeal No.1319 of 2019 and defendants 6 and 31 7 have preferred Regular Second Appeal No.1399 of 2019 before this Court under Section 100 of the Code of Civil Procedure.
6. This Court, by order dated 18th January, 2024, framed the following substantial question of law in Regular Second Appeal Nos.1170 of 2019 and 1318 of 2019:
(1) Whether in the facts and circumstances of the case the trial Court and the first appellate Court are justified in decreeing the suit of specific performance ignoring the time for performance specified under Ex.P.2?
(2) Whether the trial Court and the first appellate Court are justified in not appreciating the admissibility of Ex.P.7, a purported telegram allegedly issued by the plaintiff?
(3) Whether the trial Court and the first appellate Court have properly appreciated the facts and circumstances required to be considered for the purpose of Section 16(c) of the Specific Relief Act?
7. This court by order dated 20th September, 2023, framed the following substantial question of law in Regular Second Appeal Nos.1319 of 2019 and 1399 of 2019: 32
(1) Whether the Courts below have committed an error in coming to the conclusion that the plaintiff was always ready and willing to perform his part of contract ignoring Section 16(c) of the Specific Relief Act?
(2) Whether the Courts below have committed an error in relying upon the document at Ex.P6 alleged telegram and the same amounts to perversity in giving the finding amounts to perversity in giving the finding that the plaintiff has proved his case?
(3) Whether the Courts below have committed an error in entertaining the suit for specific performance in coming to the conclusion that the suit is within time within Article 54 of Limitation Act?
(4) Whether the Courts below have committed an error in ignoring the endorsement available on Ex.P1 with regard to issuance of two Cheques and also a reference in the document in Ex.P1 that if any of the Cheques are dishonored the very contract is rescinded and the same has not been considered by both the Trial Court as well as the First Appellate Court?
8. Heard Sri. C.M. Nagabhushana, learned counsel on behalf of Sri. V. Vijayashekara Gowda, appearing for appellants in R.S.A. Nos.1170 of 2019 and 1399 of 2019 and respondents 33 10 and 11 in R.S.A. No.1318 of 2019; Sri. G. Papi Reddy, learned Senior Counsel on behalf of Sri. Varun Papi Reddy, appearing for appellants in R.S.A. Nos.1318 of 2019 and 1319 of 2019 and respondents 10 and 11 in R.S.A. No.1170 of 2019; Sri. M.S. Shyamsundar, learned Senior Counsel on behalf of Sri. Syed Khader Nawaz, appearing for the respondent No.1 in R.S.A. Nos.1170 of 2019 and 1318 of 2019; Sri. Jayant K. Mehta, learned Senior Counsel and Sri. Sukant Vikaram, learned counsel on behalf of Sri. Syed Khader Nawaz, appearing for the respondent No.1 in R.S.A. Nos.1319 of 2019 and 1399 of 2019.
CONTENTIONS:
9. Sri. G. Papi Reddy, learned Senior Counsel appearing for appellants in R.S.A. Nos.1318 of 2019 and 1319 of 2019 contended that the Original Suit No.40 of 2006 has been filed by the plaintiff, seeking relief of specific performance of contract, however, the General Power of Attorney Holder of the plaintiff Sri. A.V.L.N. Raju deposed as PW1 and in a suit for specific performance, the PW1 has no personal knowledge about the factual aspects on record particularly, to depose 34 relating to readiness and willingness. Accordingly, questioned the veracity of the PW1 in his arguments.
10. Sri. G. Papi Reddy, learned Senior Counsel further contended that, both the Courts below relied upon the Telegram said to have been issued by the counsel for the plaintiff marked as Exhibit P7 to prove the readiness and willingness and the said Telegram has not reached the defendant No.1-D. Somashekar and that apart, the said Exhibit P7 is the office copy of the advocate, which cannot be a basis to prove the readiness and willingness of the plaintiff and as such, both the Courts below misread the documents produced by the parties and committed an error in decreeing the suit of the plaintiff in-
part..
11. Nextly, it is contended by learned Senior Counsel Sri. G. Papi Reddy that the R.T.C. Extracts produced at Exhibit D53 to D69 stands in the name of the purchasers (defendants 4 to
7), which makes it clear the purchasers of the land are in possession of the suit schedule property and therefore, there is no probative value attached to Exhibit P7-Telegram and that apart, the General Power of Attorney Holder of the plaintiff-PW1 has no personal knowledge on the documents produced before 35 the Trial Court. Accordingly, he contended that there is perversity in the judgment and decree passed by the Courts below.
12. Sri. G. Papi Reddy, learned Senior Counsel invited the attention of the Court to Paragraph 9 of the plaint and the Agreement of Sale dated 03rd April, 1988 and argued that the suit is hopelessly barred by time and there was no cause of action for the plaintiff to prefer the suit and therefore, as the plaintiff has failed to comply with the conditions stipulated in the Agreement of sale dated 03rd April, 1988, the finding recorded by both the Courts below requires to be set-aside in the appeals.
13. In respect of Regular Second Appeal Nos.1319 of 2019, Sri. Papireddy, learned Senior Counsel argued on similar lines in Regular Second Appeal No.1318 of 2019, however, in addition to the same, he invited the attention of the Court to Agreement of Sale dated 09th July, 1988 and referred to Shara made therein, whereby, its is mentioned that two Cheques have been issued to D. Chandrashekar (father of the defendant No.1) by the plaintiff which came to be dishonored and therefore, the said aspect of the matter was not considered by both the Courts 36 below as the Agreement itself is cancelled on account of dishonoring of Cheques referred to in Exhibit P1-Agreement of Sale Dated 09th July, 1988. It is also the submission of Sri. G. Papi Reddy, learned Senior Counsel that, both the Courts below have failed to consider that the plaintiff was not financially potential to pay the balance consideration and therefore, on account of dishonoring of Cheques issued by the plaintiff itself shows that the plaintiff has failed to prove the readiness and willingness to perform obligation under the Agreement of Sale.
14. Nextly, it is contended by Sri. Papi Reddy, learned Senior Counsel that the suit is filed beyond the limitation period and no notice was issued to prove the readiness and willingness to the father of the defendant No.1 and these aspects have not been appreciated by both the Courts below. Accordingly, sought for interference of this Court.
15. To buttress his arguments, Sri. Papireddy, learned Senior Counsel places reliance on the following judgments:
1) SRI. PUNNY AKAT PHILIP RAJU, SINCE DEAD BY HIS LRs. VS. SRI. DINIESH REDDY reported in ILR 2016 KAR 2252.
2) K. KUGASHANKAR vs. SUBHASH CHAND GOEL AND OTHERS reported in ILR 2006 KAR 3689.37
3) MANJUNATH ANANDAPPA URF SHIVAPPA HANSI vs. TAMMANASA AND OTHERS reported in AIR 2003 SC 1391.
4) SARASWATHI AMMAL vs. V.C. LINGAM reported in ILR 1993 KAR 427.
5) V.S. MUNIRATHNAM (D) BY L.Rs vs. P. SUNDARAM (D) BY LRs reported in AIR 2004 KAR
383.
6) PADMAKUMARI AND OTHERS vs. DASAYYAN AND OTHERS reported in (2015) 8 SCC 695.
7) RAMNATH EXPORTS PRIVATE LIMITED vs. VINITA MEHTA AND ANOTHER reported in (2022) 7 SCC 678
16. Referring to the aforementioned judgments, Sri. Papi Reddy, learned Senior Counsel submits that the plaintiffs have failed to prove their readiness and willingness to perform their part of contract and the plaintiffs have utterly failed to establish to fulfill their part of obligation in the Agreement of Sale, despite the suit is filed belatedly and barred by time. The said aspect of the matter has not been considered by both the Courts below and as such, learned Senior Counsel appearing for appellants, sought for interference of this Court. 38
17. Sri. C.M. Nagabhushana, learned counsel appearing for the appellants in R.S.A. Nos.1170 of 2019 and 1399 of 2019 submitted that the appellants adopt the arguments addressed by learned Senior Counsel Sri. G. Papi Reddy appearing for the appellants in the connected appeals and in addition to the same, he argued that the finding recorded by both the Courts below is solely relying upon the Telegram (Exhibit P7 in OS NO.40/2006) and Telegram (Exhibit P6 in OS NO.41/2006) and the said Telegrams are the office copies of the counsel who had sent the same to the defendant No.1 and the plaintiff has not produced the postal acknowledgement for having sent the said Telegrams and that apart, author of the said Telegram-counsel was not examined to prove the authenticity of the document and therefore, he pleaded that both the Courts below have committed an error in decreeing the suit of plaintiffs in-part. It is also the submission of learned counsel Sri. C.M. Nagabhushana that, both the Courts below have not properly appreciated both oral and documentary evidence on record and further no explanation has been given by the plaintiff for delay of nine years in filing the suit from the date of the execution of the Agreement of Sale and the said aspect of matter was not 39 considered by both the Courts below. Therefore, by referring to Paragraph 4 of the plaint in Original Suit No.41 of 2006, it is contended by the learned counsel Sri. C.M. Nagabhushana that the plaintiff had the knowledge of the fact that the schedule property has been sold by the defendant No.1 (owner of the suit schedule property) in favour of defendants 4 and 5 in R.S.A. Nos.1318 of 2019 and defendants 6 and 7 in R.S.A. No.1170 of 2019 and therefore the said aspect has not been properly considered by both the Courts below and as such sought for setting aside the impugned judgment and decree in both the appeals.
18. In order to buttress his arguments, Sri. C.M. Nagabhushana, learned counsel placed reliance on the following judgments:
1) RAM AWADH (DEAD) BY LRs. AND OTHERS vs. ACHHAIBAR DUBEY AND ANOTHER reported in (2000) 2 SCC 428.
2) KOLLI SATYANARAYANA (DEAD) BY LRS.vs. VALURIPALLI KESAVA RAO CHOWDARY (DEAD) THR. LRS. AND OTHERS reported in (2022)7 SCR
330. 40
3) USHA DEVI AND OTHERS vs. RAM KUMAR SINGH AND OTHERS reported in (2024) 8 SCR
501.
4) SMT. PUSHPALATHA AND ANOTHER vs. D.R.
SADANANDA MURTHY reported in AIR ONLINE
2019 KAR 1552.
5) SIDDAGANGAIAH (DEAD) THROUGH LEGAL
REPRESENTATIVES vs. N.K, GIRIRAJA SHETTY (DEAD) THROUGH LEGAL REPRESENTATIVES reported in (2018) 7 SCC 278.
6) RAJESH KUMAR vs. ANAND KUMAR AND
OTHERS reported in 2024 LiveLaw (SC) 407.
7) SRI. BYLAMURTHY vs. SMT. M.G.
GANGALAKSHMAMMA AND OTHERS made in
Regular Second Appeal No.1457 of 2022 decided on 10th July, 2024.
19. Per contra, Sri. Jayant K. Mehta, learned Senior Counsel appearing for the respondent No.1 in R.S.A. Nos.1319 of 2019 and 1399 of 2019 argued that, as both the Courts below concurrently on facts held in favour of the plaintiffs that the plaintiffs have proved the Agreement of Sale as well as issue relating to readiness and willingness to perform their part of the Agreement and as such, this Court is having limited jurisdiction to interfere with the finding of fact by both the 41 Courts below, unless the appellants made out a extraordinary case that there is perversity in the judgment and decree passed by both the Courts below. Accordingly, he sought for dismissal of appeals.
20. To buttress his arguments, Sri. Jayant K. Mehta, learned Senior Counsel refers to the judgment of Hon'ble Supreme Court in the case of NARAYANAN REAJENDRAN AND ANOTHER vs. LEKSHMY SAROJINI AND OTHERS reported in (2009)5 SCC 264.
21. Sri. Jayant K. Mehta, learned Senior Counsel further argued that the plaintiff-A.V.L.N. Raju had remitted substantial consideration towards sale consideration to the defendant No.1 (owner of the schedule property) and also that the condition has been stipulated in the Agreement of Sale directing to remove the name of the defendant No.3 in the R.T.C. extracts/revenue records and as such, as the defendant No.1 (owner of the schedule property) has not taken any steps during the subsistence of the Agreement of Sale, the finding recorded by both the Courts below is just and proper. He also submitted that the deletion and insertion of the name of the vendor was effected during the year-1993 and the said aspect 42 of change of revenue entry was not made known to the plaintiff by the defendant No.1 (owner of the schedule property) and therefore, the defendant No.1 has committed breach on his obligation as stipulated in the Agreement of Sale. Accordingly, he submitted that, the conduct of the parties has to be considered in a suit for specific performance and that apart, the plaintiff has shown his readiness and willingness to perform his part of the obligation, continuously and consistently paid advance amount towards the sale consideration and same was endorsed in the Agreement of Sale. Therefore, as both the Courts below have recorded the malicious conduct of the defendant No.1, learned Senior Counsel refuted the contention raised by learned counsel appearing for appellants. Accordingly, he sought for dismissal of the appeals.
22. Nextly, in respect of arguments advanced on Exhibit P6-Telegram said to have been sent by the counsel for the plaintiff, Sri. Jayant K. Mehta, learned Senior Counsel argued that, as the father of the defendant No.1 had failed to honour the condition stipulated in the Agreement of Sale by removing/deleting the name in the revenue records and as the plaintiff came to know about the steps taken by the defendant 43 No.1 to sell the suit schedule property in favour of defendants 5 and 6, the plaintiff got issued Telegram through his counsel and the said aspect has been properly appreciated by both the Courts below. Therefore, it is contended by learned Senior Counsel that the finding recorded by both the Courts below supports the plaintiff that the plaintiff was cautious about the terms and conditions stipulated in the agreement of sale and as such, sought for dismissal of the appeals.
23. Sri. Jayant K. Mehta, learned Senior Counsel contended that, time has never been the essence of contract and 120 days time stated in the Agreement of Sale for completion of sale transaction was subject to the vendors to make out marketable title of the suit schedule property and as the name of the defendant No.1 was not mutated in the suit schedule property and as the revenue entries stood mutated in the name defendant No.1 only during the year-1993, after five years of execution of Agreement of Sale and as such, supports the reasoning of both the Courts below. Therefore, he contended that arguments advanced by learned counsel appearing for the appellants on limitation cannot be accepted and the suit is filed within time as per Article 54 of the 44 Limitation Act. Accordingly, he sought for dismissal of the appeals.
24. Sri. Jayant K. Mehta, learned Senior Counsel appearing for respondent No.1/plaintiff by referring to the endorsement available on Exhibit P1-Agreement of Sale with regard to issuance of two Cheques and the reference made thereunder, argued that, even if the Cheques were dishonored, the contract cannot be rescinded on the sole ground as the plaintiff has paid the substantial sale consideration to the defendant No.1 (owner of the suit schedule property) and that apart, the Exhibit D4-Copy of Sale Deed dated 04th August, 1994 (Xerox copy) was produced at the time of evidence by subsequent purchasers and not the defendant No.1 (Vendor) and the said aspect was assessed by both the Courts below in the right perspective and as the said xerox copy of the document is a secondary evidence, inadmissible in evidence. In this regard he refers to judgment of Hon'ble Supreme Court in the case of J. YASHODA vs. K. SHOBHA RANI reported in (2007)5 SCC 730. Therefore, it is the contention of learned Senior Counsel Sri. Jayant K. Mehta that, both the Courts below have properly appreciated the material on record and rightly 45 decreed the suit of the plaintiff. It is also submitted by learned Senior Counsel that, even if the Telegram is not issued by the plaintiff to the father of the defendant No.1 that itself is not a ground to reject the relief of specific performance and same will not disprove the execution of Agreement of Sale. Accordingly, he sought for dismissal of the appeals and places reliance on the judgment of Hon'ble Supreme Court in the case of GADDIPATI DIVIJA AND ANOTHER vs. PATHURI SAMRAJYAMA AND OTHERS reported in 2023 SCC OnLine SC 442 and submitted that the time is not the essence of the contract and as such, learned Senior Counsel submitted that the appeals deserves to be dismissed.
25. Sri. M.S. Shyamsundar, learned Senior Counsel appearing for the respondent No.1/plaintiff in R.S.A Nos.1170 of 2019 and 1318 of 2019 contended that, as both the Courts below arrived at a conclusion on facts and concurred that the plaintiff has proved the Agreement of Sale and therefore same cannot be reassessed under Section 100 of the Code of Civil Procedure on factual aspects on record. It is the submission of learned Senior Counsel Sri. M.S. Shyamsundar that the appellants have not made out a case for formulation of 46 substantial question of law as required under Section 100 of the Code of Civil Procedure and as such, he sought for dismissal of the appeals.
26. It is the specific contention of learned Senior Counsel Sri. M.S. Shyamsundar, appearing for the respondent No.1/plaintiff that, as the defendants have filed written statement, however, not taken any notable defence against the execution of the Agreement of Sale and also not countered about the readiness and willingness as pleaded by the plaintiff and therefore, the defendants 4 to 7, who were the subsequent purchasers have no authority to deny grant of relief of specific performance in favour of the plaintiff. He also submitted that the defendants 4 to 7 are not the bonafide purchasers for value as the Agreement of Sale was subsisting and was not cancelled by the defendant No.1 at any point of time and therefore, he argued that the contentions raised by learned counsel appearing for appellants cannot be accepted.
27. Nextly, Sri. M.S. Shyamsundar, learned Senior Counsel appearing for the respondent No.1/plaintiff contended that, Article 54 of the Limitation Act, 1963 mandates filing of suit within three years from the date fixed for performance of 47 the contract or if no such date is fixed, when the plaintiff has noticed that performance is refused. Emphasising on these aspects, it is contended by the learned Senior Counsel that the time was not essence in the contract and as per the terms and conditions of Agreement of Sale, as the revenue records stands in the name of the defendant No.3 and unless the name of the defendant No.3 is removed from the revenue records, it is impermissible for the defendant No.1 to execute the registered Sale Deed. Therefore, as the plaintiff came to know that the defendant No.1 is trying to alienate the suit schedule property in favour of defendants 4 to 7 and immediately steps were taken by the plaintiff to issue Telegram to the defendant No.1 through her counsel. In this regard, he further contended that the issuance of the Telegram was not denied by the defendant No.1 in his cross-examination, which fortifies the fact that the plaintiff was ever ready and willing to perform her part of the obligation and therefore, the suit filed is within time. Accordingly, he refuses the contentions of the learned counsel appearing for the appellants.
28. Nextly, it is contended by Sri. M.S. Shyamsundar, learned Senior Counsel that the plaintiff has specifically pleaded 48 the readiness and willingness to perform her part of the obligation under the Agreement of Sale and conduct of the parties has to be weighed before granting of relief of specific performance and as the defendant No.1 in his evidence admits the execution of Agreement of Sale and identified his signature on the Agreement of Sale, so also, receiving the consideration amount made thereunder makes it clear that the plaintiff has proved the requirement of Section 16(c) of the Specific Relief Act and that apart, the plaintiff has paid substantial amount as per the Agreement of Sale. Therefore, learned Senior Counsel appearing for respondent/plaintiff sought for dismissal of the appeals.
29. Lastly, Sri. M.S. Shyamsundar, learned Senior Counsel appearing for the respondent/plaintiff argued that the defendants 4 to 7 have not made any enquiry before purchasing the schedule property and none of the competent witnesses had entered the witness box to testify that they are the bonafide purchasers and therefore, the question relating to the performance of the obligation on the part of the plaintiff and defendants, to honour the Agreement of Sale or refuse for specific performance of contract is only by the defendant No.1 49 and therefore, defendants 4 to 7, who are the subsequent purchasers have no authority to question the veracity of the recitals in the Agreement of Sale. In this regard, he submitted that the First Appellate Court, after re-appreciating the material on record as required under Order XLI Rule 31 of Code of Civil Procedure, rightly confirmed the judgment and decree passed by the Trial Court and therefore, no interference be called for in these appeals.
ANALYISIS:
30. Having heard the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the original records.
31. In Original Suit No.40 of 2006 (Old OS No.358/1997), the plaintiff is Smt. A. Durga Devi and she was represented by her G.P.A. Holder-Sri. A.V.L.N. Raju, who is the plaintiff in Original Suit No.41 of 2006 (Old OS No.449/1997). In Original Suit No.40 of 2006, it is the case of the plaintiff that the plaintiff had entered into an Agreement of Sale with the defendant No.1 dated 03rd April, 1988 (Exhibit P2), agreeing to purchase the suit schedule property for a total sale 50 consideration of Rs.1,54,000/-. It is the grievance of the plaintiff that the plaintiff was always ready and willing to perform her part of the contract, however, the defendant No.1 had alienated the suit schedule property in favour of defendants 4 to 7 through Sale Deeds dated 25th July, 1994 (Exhibit D49 and D51) and 04th August, 1994 (Exhibit D50 and D52). It is pleaded that she has paid substantial amount to the defendant No.1, i.e., sum of Rs.1,15,000/- under the Agreement of Sale, however, the execution of sale deed was postponed on account of rectification of revenue records which stands in the name of the defendant No.3. In this regard, the recital in the Agreement of Sale (Exhibit P2) provides that the defendant No.1 shall deliver all the title deeds to the plaintiff within 90 days provided a good marketable title is made out and the defendant No.1 shall make the property free from all encumbrances. The contention of the plaintiff that the R.T.C. Extracts in respect of suit schedule property stands in the name of the defendant No.3 and therefore, sought for rectification of the revenue records. Perusal of the Exhibit P2-Agreement of Sale dated 03rd April, 1988 would indicate that the last payment made by the plaintiff to the defendant No.1 was on 28th November, 1989. It 51 is averred at Paragraph 11 of the plaint that the Power of Attorney Holder of the plaintiff viz., Sri. A.V.L.N. Raju noticed the presence of strangers in the suit schedule property and thereafter, came to know that the suit schedule property was sold in favour of defendants 4 to 7 as per registered Sale Deeds dated 25th July, 1994 and 04th August, 1994. It is also stated in the plaint that the plaintiff has issued Telegram (Exhibit P7) through her counsel, calling upon the defendant No.1 to execute the registered Sale Deed in terms of Agreement of Sale dated 03rd April, 1988 (Exhibit P2). Undisputedly, Exhibit P7- Telegram is the office copy of the file of the counsel of the plaintiff. The subject in the Telegram (Exhibit P7) reads as under:
"To, Somashekhar S/o Dasappa, 20/B, 18th cross road, Malleshwarm, Bangalore - 560 005.
MY CLIENT READY AND WILLING TO PERFOM HIS/HER PART OF THE OBLIGATION UNDER THE AGREEMENT OF SALE DATED THIRD APRIL EIGHTY EIGHT (.) PLEASE COME FORWARD WITH THE NECESSARY PERMISSIONS AND REGISTER THE SALE DEED AT MY CLIENT'S COST ON OR BEFORE TWENTY SIXTH FEBRUARY 1995.
--K.S. RAMAESH, ADVOCATE"52
32. Perusal of the record would indicate that, the Power of Attorney Holder of plaintiff viz., Sri. A.V.L.N. Raju was examined as PW1, defendant No.2-B.A. Sanjeevappa was examined as PW2 and defendant No.1-D. Somashekar was examined as PW3. Perusal of the written statement filed by the defendant No.1 consists of only one page. Power of Attorney Holder of the plaintiff admits in the cross-examination dated 17th July, 2010 that he has paid entire amount under the Agreement of Sale. PW3 (defendant No.1) was not cross- examined by the plaintiff nor defendants 4 to 7. In the backdrop of these aspects, though the Agreement of Sale was executed on 03rd April, 1988, till the filing of the suit in Original Suit No.40 of 2006 (Old OS No.358/1997) on 07th June, 1997, nothing has been produced by the plaintiff to establish that she was ready and willing to perform her obligation in terms of the Agreement of Sale. It is also to be noted that, though the Exhibit P7-Telegram has been produced, which is extracted above, the said Telegram is the office copy of the counsel Sri. K.S. Ramesh, who appears to have sent to the defendant No.1- D. Somashekar. Nothing is stated in the Telegram as to, on behalf of the Telegram is being sent nor refers to agreement of 53 sale between the parties to the suit and no description of the property is mentioned. The original copy of the Telegram is not produced nor any material is produced to substantiate the same with seal of the Post office. In fact, the plaintiff has not sent any Telegram and the typed copy of the letter is produced to derail the trial and has falsely stated in the case. The plaintiff has falsified in the plaint as well as evidence in connivance with the defendant No.1 (owner of the property) and committed a fraud against the Court. If the said Telegram has been sent to the defendant No.1 as stated in the plaint, the plaintiff ought to have marked the document which is having the seal of Post office and adduced the evidence of the said Advocate to prove the Exhibit P7-Telegram. It is very pain to say, how come, both the Courts below have lost sight of it. It is also to be noted that, as per the Agreement of Sale (Exhibit P2), the last date of payment made by the plaintiff to the defendant No.1 was 28th November, 1989 and thereafter, no steps have been taken by the plaintiff, calling upon the defendant No.1 to execute the registered Sale Deed. With this aspect, the finding recorded by both the Courts below that the plaintiff was ever ready and willing to register the Sale Deed is contrary to the records and 54 requires interference by this Court under Section 100 of the Code of Civil Procedure as, both the Courts below have ignored the settled principle in law that the plaintiff has to prove readiness and willingness to perform her obligation through out from the date of execution of Agreement of Sale till refusal made by the owner of the property (defendant No.1) and therefore, both the Courts below committed serious error in appreciating the evidence and impugned judgments are liable to be set-aside.
33. At this juncture, it is relevant to cite the judgment of Hon'ble Supreme Court in the case of VIJAYKUMAR AND OTHERS vs. OMPRAKSH reported in AIR 2018 SC 5098, wherein, paragraphs 7 and 8 reads as under:
7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondent-plaintiff has filed the suit for specific performance on 29 th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs.22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondent-
plaintiff has stated that he has borrowed the amount 55 from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs.22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.
8. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside.
56
34. Following the law declared by Hon'ble Supreme Court and this Court referred to above and applying the principles to the case on hand, nothing has been produced by the plaintiff regarding steps taken to get registered the sale deed from the last day of endorsement dated 28th November, 1989 in Exhibit P2-Agreement of Sale dated 03rd April, 1988. In order to overcome the said defect of settled principles under Section 16(c) of the Specific Relief Act and the limitation to file a suit for specific performance, plaintiff has committed a fraud by producing the Exhibit P7-Telegram, which never been sent to the defendant No.1. In this regard, the finding recorded by the Trial Court on issue No.2 is contrary to records and therefore, same is required to be set-aside in these appeals. It is also to be noted that the First Appellate Court, without re-appreciating the material as required under Order XLI Rule 31 of Code of Civil Procedure and in derogance of the law declared by Hon'ble Supreme Court in the case of SANTHOSH HAZARI vs. PURUSHOTTAM TIWARI (DECEASED) BY LRS reported in AIR 2001 SC 965, has passed the impugned judgment and decree, which requires to be set-aside in these appeals. 57
35. It is also to be noted that, if the period is specified in the Sale Agreement between the parties, they have to respect the same and to conclude the terms and conditions scrupulously without further delay, though time is not essence of contract and parties can not be permitted to accomplish the terms to conclude the period unreasonably. In this regard Hon'ble Supreme Court in the case of KOLLI SATYANARAYANA (DEAD) BY LRS vs. VALURIPALLI KESAVA RAO CHOUWDARY (DEAD) THROUGH LRS. AND OTHERS reported in (2022) 7 SCR 330 at paragraphs 10 to 12 held as under;
"10. Upon interpretation of the aforesaid clauses, the learned Single Judge of the High Court came to a conclusion that a reading of the said clauses made it clear that the parties intended that the permission should be obtained by the defendant within 75 days. It held that in the event the permission was not obtained by the defendant within the stipulated time, the plaintiff was entitled to get back his advance money. It has found that under the agreement of sale, even for the said purpose, the limit of 90 days was fixed. After the said period of 90 days, the plaintiff was not even 58 entitled to get back the advance money and the defendant was entitled to forfeit the same.
11. The learned Single Judge further found that the conduct of the parties to the contract was also significant. It found that both the parties tried to get the exemption from the Government of Andhra Pradesh under Section 20 of the ULC Act for about a year after the agreement of sale dated 29th July 1978. It is further to be noted that though the defendant had communicated to the plaintiff on 12th April 1982 that, since the requisite permission from the ULC Authorities could not be obtained and as such, she had cancelled the agreement, the plaintiff did not file any proceeding against the defendant. It was only after a period of almost 2 years when the defendant obtained the permission after cancellation of the earlier agreement, the plaintiff chose to file the suit.
12. In the case of K.S. Vidyanadam and Others v. Vairavan this Court has held that the court should look at all the relevant circumstances including the time limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. It has been held that in case of urban properties, the prices have been rising sharply. It has been held that while exercising its discretion, the court should 59 bear in mind that when the parties prescribe certain time limit(s) for taking steps by one or the other party, it must have some significance and that the said time limit(s) cannot be ignored altogether on the ground that time is not the essence of the contract."
36. It is also pertinent to mention here that the Power of Attorney Holder of the plaintiff Sri. A.V.L.N. Raju was examined as PW1 and his evidence cannot be accepted on the sole ground that he himself admitted in the evidence that he has paid the entire advance amount to the defendant No.1 at the time of execution of Agreement of Sale (Exhibit P2) and as per the deposition dated 17th July, 2010 and if such, being the case, the said Agreement of Sale cannot be construed as consensus ad idem between the plaintiff and the defendant No.1 and in this regard, I find force in the submission made by the learned Senior Counsel appearing for the appellants as the Power of Attorney Holder (PW1) of the plaintiff has no personal knowledge to depose about the financial capacity of the plaintiff to pay the sale consideration amount as well as PW1 is an incompetent person to prosecute the case on behalf of the plaintiff to make unjust gain by colluding with the defendant No.1, who deposed as PW3 to help the Power of Attorney Holder 60 of the plaintiff and this aspect of the matter and evidence has been ignored by both the Courts below.
37. It is also pertinent to mention here that, learned counsel appearing for appellants submitted that, PW1 being a Power of Attorney Holder of the plaintiff in Original Suit No.40 of 2006 and as such that the Power of Attorney Holder cannot give his evidence on the readiness and willingness of the plaintiff to perform her part under the Agreement and in this regard, this Court in the case of Smt. PUSHPALATHA vs. D.R. SADANANDA MURTHY reported in AIR OnLine 2019 KAR 1552 at paragraph 23 to 25 held as follows:
"23. At this juncture, another leg of argument of the learned counsel for the defendant also requires to be considered. It was his further argument that PW-1 being only a Power of Attorney for the plaintiffs cannot give his evidence on the readiness and willingness of the plaintiffs to perform their part of the promise under the agreement.
In his support, he relied upon the judgment of the Hon'ble Apex Court in the case of Hartar Singh Sangha (supra) wherein at paragraph 10 of its judgment, referring to its judgment in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. reported in 2005 R.F.A.No.174/2014 61 C/W (2) Supreme Court Cases 217 had extracted a part of the said judgment as below:-
"Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2, CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal in entitled to be cross-examined"
R.F.A.No.174/2014 C/W In the case of Mrs. Saradamani Kandappan Vs. Mrs. S. Rajalakshmi and others; Mrs. S. Rajalakshmi and others vs. Mrs. Saradamani Kandappan and another reported in AIR 2011 Supreme Court 3234, after referring to its judgment in Hartar Singh Sangha (supra), the Hon'ble Apex Court at paragraph 47 of its judgment was pleased to observe as below:-
"47. xxx xxx xxx It is an admitted position that the entire transaction was done on behalf of the defendants 1, 2 and 3 by defendant No.4 who alone had complete knowledge of the entire transaction. Fourth defendant has given evidence on behalf of all 62 other defendants. When one of the defendants who is conversant with the facts has given evidence, it is not necessary for the other defendants to be examined as witnesses to duplicate the evidence. The legal position as to who should give evidence in regard to the matters involving personal knowledge have R.F.A.No.174/2014 C/W been laid down by this court in Man Kaur (dead) by L.Rs. V. Hartar Singh Sangha (2010) 10 SCC 512 : (2010 AIR SCW 6198). This court has held that where the entire transaction has been conducted through a particular agent or representative, the principal has to examine that agent to prove the transaction; and that where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by the agent, necessarily the agent alone can give evidence in regard to the transaction. xxx xxx xxx."
In the instant case, as observed above, the plaintiffs in person have not entered the witness box, but it is their General Power of Attorney holder, Sri. G.S. Panesh who has entered the witness box and led evidence as PW-1. Nowhere the said witness in his R.F.A.No.174/2014 C/W evidence has stated that, he has a personal knowledge about the readiness and willingness of the plaintiffs to perform their part of the obligation under the agreement.
24. As held by this Court in Padmini Raghavan's case (supra), the readiness may mean the capacity of the 63 plaintiffs to perform their part of obligation under a contract which includes their financial position to pay the purchase price, whereas, the willingness reflects the mental attitude of the plaintiffs to part with or pay the balance sale consideration agreed to be paid.
Interestingly, in the case on hand, even though it is taken that a Power of Attorney holder can give his evidence on behalf of the plaintiffs, even in a suit for specific performance, still, PW-1 though in his evidence has stated that the plaintiffs were always R.F.A.No.174/2014 C/W ready and willing to pay the remaining consideration amount, but, has not produced any documents to show that the plaintiffs had any financial capacity too, to pay the balance amount or that the funds to pay the balance amount was available with them.
Learned counsel for the plaintiffs in his argument submitted that the legal notice at Ex.P-2 goes to show that the plaintiffs were ready and willing to perform their part of promise under the agreement. But mere stating that the plaintiffs were ready and willing, in their legal notice, cannot be construed that the plaintiffs have proved their readiness and willingness.
25. In Padmini Raghavan's case (supra), the Division Bench of this Court while setting aside the judgment of the Trial Court which had decreed the suit R.F.A.No.174/2014 C/W for specific relief and while negating the finding of the Trial Court on the point of readiness and willingness, has observed that the Trial 64 Court failed to notice that mere assertion in the witness box and issuance of a legal notice is not a proof of readiness and willingness to pay the balance sale consideration.
It was further observed that the plaintiff has to produce before the Court such evidence so as to satisfy the Court that, he was ready with the balance sale consideration and he was willing to part with the balance sale consideration.
In the instant case, the evidence of PW-1 though in his capacity as a Power of Attorney holder, even if considered, still, it is clear that except stating in a sentence that the plaintiffs were ready and willing to R.F.A.No.174/2014 C/W perform their obligation, the witness has not produced any material to prove the alleged readiness and willingness to perform their part of obligation to the satisfaction of the Court. He has not produced before the Court any such evidence so as to satisfy the Court that the plaintiffs were ready with the balance sale consideration and were willing to part with the balance sale consideration. Nothing had prevented the plaintiffs from producing the bank statements or any other document to show that they had the balance amount at their disposal or were able to pool the funds and pay-off the balance amount to the defendant as a part of dischargal of their obligation under the agreement. In the absence of the same, the Trial Court has rightly held that the plaintiffs have failed to prove that they were ready and willing to perform R.F.A.No.174/2014 C/W their part of 65 the obligation under the Agreement to Sell dated 30- 06-1993. I do not find any error in the said finding of the Trial Court."
(emphasis supplied)
38. It is also argued by learned Senior Counsel Sri. Jayant K. Mehta that defendants 4 to 7 have produced Xerox copy of Sale Deed dated 04th August, 1994 which is inadmissible in evidence, however, the Sale Deed dated 04th August, 1994 is a public document and the copy of registered Sale Deed and said document cannot be basis for granting relief of specific performance to the plaintiff in the absence of material to prove the readiness and willingness on the part of the plaintiff and therefore, the said arguments cannot be accepted. Insofar as the arguments of learned Senior Counsel Sri. Jayant K. Mehta on Telegram, the said arguments cannot be accepted in the light of the judgment of Hon'ble Supreme Court in the case of BALASUBRAMANIAN (infra).
39. Applying the above principles to the case on hand, the plaintiff has not approached the Court with clean hands and has not proved the facts as narrated in the plaint with cogent reasons and laid foundation to seek the discretionary and 66 equitable remedy. In respect of Original Suit No.41 of 2006 (Old OS No.449/1997), the plaintiff-A.V.L.N. Raju is the Power of Attorney Holder of plaintiff in Original No.40 of 2006. It is the case of the plaintiff that the plaintiff has entered into an Agreement of Sale dated 09th July, 1988 (Exhibit P1) with one D. Chandrashekar (father of the defendant No.1). In the present suit, defendant No.8-D. Somashekar has been arraigned as defendant No.1 in Original Suit No.40 of 2006. As per the Agreement of Sale, the defendant No.8, agreeing to sell the suit schedule property in favour of the plaintiff for a total consideration of Rs.2,05,000/- and pursuant to execution of the Sale Agreement, the plaintiff has paid Rs.75,000/- by way of cash to D. Chandrashekar, father of the defendant No.1. It is also stated in the Agreement of Sale that the entire transaction has to be completed within 120 days from the date of execution of Agreement of Sale provided a good marketable title is made out by the vendor (father of the defendant No.1). It is further stated in the plaint that, since the name of the defendant No.3 was reflecting in the R.T.C. extracts/revenue records and therefore, the father of defendant No.1 was instructed to 67 remove the entries in the R.T.C. extracts/revenue records to execute the registered Sale Deed in favour of the plaintiff.
40. It is the grievance of the plaintiff that the plaintiff was always ready and willing to perform his part of the contract, however, father of the defendant No.1 died on 11th January, 1993. It is also stated that the defendant No.1 was aware about the execution of Agreement of Sale dated 09th July, 1988. It is the case of the plaintiff that the plaintiff had approached the defendant No.1 and has paid Rs.10,000/- by cash to the defendants 1 and 2 and further contended that the plaintiff has paid 1,75,000/- towards the sale consideration under the Agreement of Sale produced at Exhibit P1. It is the grievance of the plaintiff that the defendant No.1 had executed the registered Sale Deed dated 25th July, 1994 and 04th August, 1994 in favour of defendants 4 to 7 and therefore, committed fraud on the plaintiff. It is the case of the plaintiff that the plaintiff came to know about the execution of the registered Sale Deeds only on 18th May, 1997 and immediately, filed the suit. It is further stated that the plaintiff has sent Telegram (Exhibit P6) to the father of the defendant No.1 (D. Chandrashekar) as stated in the plaint that the Telegram was 68 sent during the year February-1995. In the backdrop of these facts as narrated in the plaint, I have carefully examined the records and the said aspect of the matter proves the falsity on the part of the plaintiff in approaching the court with clean hand as the father of the defendant No.1 (D. Chandrashekar) died on 11th January, 1993 (as per paragraph 10 to the plaint) and in such an event, there was no necessity for the plaintiff issuing Telegram to a dead person during the year February-1995 (as per paragraph 17 of the plaint). If such being the case, the plaintiff never contacted the father of the defendant No.1 during his life time after the execution of Agreement of Sale dated 09th July, 1988, as the plaintiff was unaware about the death of the father of the defendant No.1 and was under impression that the father of the defendant No.1 was alive even during the year- 1995 as per paragraph 17 of the plaint and the said fact would makes it clear that the plaintiff has not approached the Court by making true facts and has suppressed true facts before the Court and therefore, as this aspect of the matter has been considered by both the Courts below, which requires interference under Section 100 of the Code of Civil Procedure. 69
41. I have also noticed from Exhibit P6-Telegram, which reads as under:
"To, D. Chandrashekar S/o Dasappa, No.217, Mahalakshmi Layout, Rajajinagar, Bangalore - 560 010.
MY CLIENT READY AND WILLING TO PERFOM HIS/HER PART OF THE OBLIGATION UNDER THE AGREEMENT OF SALE DATED NINETH APRIL EIGHTY EIGHT (.) PLEASE COME FORWARD WITH THE NECESSARY PERMISSIONS AND REGISTER THE SALE DEED AT MY CLIENT'S COST ON OR BEFORE TWENTY SIXTH FEBRUARY 1995.
--K.S.RAMAESH, ADVOCATE"
42. Perusal of the same would indicate that the plaintiff has stated that the notice was sent to the father of the defendant No.1 (perhaps not known as the father of the defendant died two years ago), calling upon him to execute the registered Sale Deed on or before 26th February, 1995, however, father of the defendant No.1 died on 11th January, 1993 (as per paragraph 10 of the plaint). Therefore, both the Courts below have committed serious error in decreeing the suit of the plaintiff without considering these relevant documents before adjudicating the suit in favour of the plaintiff. Therefore, 70 I am of the opinion that the finding recorded by both the Courts below requires to be set-aside in these appeals.
43. It is also to be noted that, the endorsement appended to the Agreement of Sale dated 09th July, 1988 (Exhibit P1), wherein, it is stated that, father of the defendant No.1 has received Cheque bearing No.0644479 dated 20th August, 1991 for sum of Rs.40,000/- drawn on Canara Bank, Vyalikaval, Bengaluru (Exhibit D2) and the said Cheque came to be dishonored as per the endorsement dated 20th August, 1991. The said aspect would makes it clear that the plaintiff has no financial capacity to pay the sale consideration amount and further to complete the entire sale transaction. The recital in the endorsement of the Agreement of Sale (Exhibit P1) reads as under:
"In case any of the cheques are not honoured for any reason, this agreement stands cancelled amount paid will be forfeited, registration should be completed after honoring the cheques."
(emphasis supplied)
44. The aforementioned endorsement appended to the Agreement of Sale (Exhibit P1) substantiate the fact that the Agreement of Sale would not be given effect to in the event if 71 the Cheque being dishonored on presentation. On perusal of the evidence of PW1, the deposition would makes it clear that, PW1 has failed to establish before the Trial Court that he had requisite amount to satisfy the sale consideration amount mentioned in the Agreement of Sale.
45. The Hon'ble Supreme Court in the case of C.S. VENKATESH v. A.S.C. MURTHY (DEAD) BY LRs and OTHERS reported in (2020)3 SCC 280 at paragraphs 14 and 16, has observed thus:
"14. It is settled that the real character of the transaction has to be ascertained from the provisions of the documents view in the light of surrounding circumstances. ...
*** *** ***
16. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to 72 pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was already ready to perform his contact."
46. Hon'ble Supreme Court in the case of JAYAKANTHAM AND OTHERS vs. ABAYKUMAR reported in (2017) 5 SCC 178 has held that the conduct of the parties is to be considered in the light of the facts of each case indicating the intending potentiality of the purchaser showing readiness and willingness to execute the registered Sale Deed. It is also to be noted that, granting of relief of specific performance is discretionary in nature and equity plays vital role in the light of the conduct of the parties to the Agreement of Sale. Hon'ble Supreme Court in case of JAYAKANTHAM (supra) at paragraph 9 held as follows:
"9. The precedent on the subject is elucidated below:
9.1. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son [Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's 73 Son, 1987 Supp SCC 340 : AIR 1987 SC 2328] , this Court held that : (SCC p. 345, para 14) "14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
9.2. A similar view was adopted by this Court in Sardar Singh v. Krishna Devi [Sardar Singh v. Krishna Devi, (1994) 4 SCC 18] : (SCC p. 26, para 14) "14. ... Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."
9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd. [K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 SCC 77] , this Court held thus : (SCC p. 91, para 29) "29. ... Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such 74 hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [Lourdu Mari David v. Louis Chinnaya Arogiaswamy, (1996) 5 SCC 589] by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court."
9.4. These principles were followed by this Court in A.C. Arulappan v. Ahalya Naik [A.C. Arulappan v. Ahalya Naik, (2001) 6 SCC 600] , with the following observations : (SCC pp. 604 & 606, paras 7 &
15) "7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific 75 relief, then also the court would desist from granting a decree to the plaintiff.
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15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. ..." 9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand v. Advent Corpn. (P) Ltd. [Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146] , and held thus : (SCC p. 150, para 6) "6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship 76 that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."
47. Hon'ble Supreme Court in the case of SUKHWINDER SINGH vs. JAGROOP SINGH AND ANOTHER reported in AIR Online 2020 SC 88 at paragraph 9 held as follows:
"9. The suit being the one for specific performance of the contract on payment of the balance sale consideration, the readiness and willingness was required to be proved by the plaintiff and was to be considered by the Courts below as a basic requirement if a decree for specific performance is to be granted. In the instant case though the defendant No.2 had denied the agreement as also the receipt of the earnest money, the same would not be of consequence as the agreement claimed by the plaintiff is with the defendant No.1 and the contention of the defendant No.2 to deny the same is without personal knowledge on that aspect. However, even in the absence of the defence put forth, the plaintiff was required to prove his readiness and willingness and that aspect of the matter was to be considered by the Courts below. In the present case though the plaintiff examined himself as PW1, as also PW2 and PW3, the document writer, and the witness to the agreement who stated with regard to the execution of the agreement, the evidence to prove the readiness and willingness with regard to the resources to pay the 77 balance sale consideration is insufficient. In the absence of denial by the defendant No.1, even if the payment of Rs.69,500/- and the claim by the plaintiff of having gone to the office of Sub Registrar on 15.06.2004 is accepted, the fact as to whether the plaintiff had notified the defendant No.1 about he being ready with the balance sale consideration and calling upon the plaintiff to appear before the Sub Registrar the execute the Sale Deed was required to be proved. From among the documents produced and marked as Exhibit P1 to P9 there is no document to that effect, more particularly to indicate the availability of the balance sale consideration as on 15.06.2004 and as on the date of filing the suit. Despite the same, merely based on the oral testimony of PW1, the Courts below have accepted the case put forth by the plaintiff to be ready and willing to complete the transaction."
48. It is also relevant to cite the judgment of Hon'ble Supreme Court in the case of VIJAY KUMAR AND OTHERS vs. OM PARKASH reported in (2019) 17 SCC 429. At paragraphs 6 and 7 , it is held as follows:
"6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. In the case in hand, though the respondent-plaintiff has filed the suit for specific performance on 29-4-2008, the respondent-78
plaintiff has not shown his capacity to pay the balance sale consideration of Rs 22,00,000 (Rupees twenty-two lakhs). In his evidence, the respondent-plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the trial court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs 22,00,000 (Rupees twenty-two lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money.
Furthermore, as rightly pointed out by the trial court, the respondent-plaintiff could have placed on record his accounts book, passbook or the statement of accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the trial court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.
7. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the first appellate court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the first appellate court as well as the High Court have not properly appreciated the evidence and the conduct of the parties. The first appellate court as well as the High Court, in our view were not right in 79 reversing the judgment of the trial court and the impugned order cannot be sustained and is liable to be set aside."
49. Hon'ble Supreme Court in the case of SHENBAGAMAND OTHERS vs. K.K. RATHINAVEL reported in AIR 2022 SC 1275 at paragraphs 28 to 36 held as follows:
"28. Having said that, the terms of the agreement stipulated that the respondent was to pay the balance consideration within a period of six months and "on receipt of the balance consideration", the appellants were to execute the sale deed "pertaining to the property free from all encumbrances". It is evident from the agreement that the liability to deliver the property free from any encumbrance was on the appellants. However, this obligation is prefaced by the condition that the appellants would be required to execute the sale deed free from encumbrance on the receipt of the balance consideration. Thus, the agreement did not specify when the appellants should discharge their mortgage-before the expiry of six months, after receipt of the advance amount, or after receipt of the balance consideration. It only obligated them to ensure that after the balance consideration is received, the sale deed executed should be free from encumbrances. Based on a plain reading of the agreement, we are unable to accept the respondent's plea that he was willing to perform his obligations under the contract. It is evident that he was required to pay the remaining 80 consideration (or indicate his willingness to pay) and only then could have sought specific performance of the contract. The respondent has also urged that the additional amount of Rs. 10,000 was paid to the appellants to discharge the mortgage. The acknowledgment signed by the appellants indicates that the money was to meet urgent family expenses. Since no further details have been provided and no evidence has been adduced by the respondent-plaintiff, we cannot conclude that the money was for discharge of the mortgage. Even assuming that the respondent is correct, the agreement still required the respondent to pay the balance consideration. In this regard, the High Court, while holding in favour of the respondent, has noted that the appellants were free to demand a further amount for discharging the mortgage. This finding ignores the plain terms of the contract. The agreement clearly provided that the balance consideration would be paid and then the sale deed would be executed. How the appellants chose to discharge the mortgage was for them to decide. The respondent had to prove his readiness and willingness to perform the contract.
29.We shall now advert to the respondent's conduct throughout the sale transaction. The respondent has failed to provide any documents or communication which would indicate that he called upon the appellants to perform their obligations or discharge the mortgage within the time period stipulated in the contract. Even after the expiry of the six months, the respondent did not reach out to the appellants. It is only in response to 81 the appellants' legal notice that the respondent demanded performance of their obligations. Merely averring that he was waiting with the balance consideration and believed that the appellants would clear the encumbrance is insufficient to prove that the respondent-plaintiff was willing to perform his obligations under the contract.
30. Further, in 1991 the respondent instituted a suit for mandatory injunction for restraining the appellants from alienating the suit property. He did not however, institute a suit for specific performance of the contract until 17 June 1993. The respondent has taken the plea that he was waiting for the appellants to discharge the mortgage to file a suit for specific performance. We are unable to accept this submission. By extending the respondent's argument, if the appellants had failed to discharge the mortgage, the respondent would not have filed a suit for specific performance of the contract at all. We also note that the respondent has withdrawn the balance consideration deposited by him before the trial court in 2001. The inconsistency in the respondent's conduct, the lack of communication with the appellants urging them to discharge the mortgage and showing his willingness to pay the balance consideration, and the delay of about three years from the date fixed for performance of the contract in filing a suit, are all indicative of the respondent's lack of will to perform the contract.82
31. The 'readiness' of the respondent to perform his obligations refers to whether he was financially capable of paying the balance consideration. Both the trial court and the first appellate court have observed that the respondent was ready to pay the balance consideration as (i) he was paying income tax since 1988 and (ii) his bank passbooks indicate that he had sufficient funds. The payment of income tax by itself does not show that the respondent had sufficient resources to pay for the suit property. Moreover, the bank passbooks submitted in evidence by the respondent were for accounts opened on 11 March 1992 and July 1994, that is, after the expiry of the period written in the contract. The first appellate court despite noting this, has chosen to hold that the respondent was ready and willing to perform the agreement. The respondent however did not lead any evidence to indicate that in the year 1990 he had the money to pay the balance consideration. The first appellate court shifted the burden on the appellants to prove that the respondent-plaintiff was incapable of paying the balance consideration. It is an established principle of law that the plaintiff must prove that he is ready and willing to perform the contract. The burden lies on the plaintiff. The respondent has not led any evidence that he was ready or willing to perform his obligations under the agreement.
32. Even assuming that the respondent was willing to perform his obligations under the contract, we must decide whether it would be appropriate to direct the specific performance of the contract in this case. In 83 Zarina Siddiqui v. A. Ramalingam, a two -judge Bench of this Court while dealing with a suit for specific performance of a contract regarding the sale of immovable property observed that the remedy for specific performance is an equitable remedy and Section 20 of the Specific Relief Act confers a discretion on the Court. The Court held:
13. (2015)1 SCC 705: (AIR 2015 SC 580.
"24. It is well settled that remedy for specific performance is an equitable remedy. The court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that the Court's discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles."
33. In the context of the discretion under Section 20 of the Specific Relief Act, several decisions of this Court have considered whether it is appropriate to direct specific performance of a contract relating to the transfer of immovable property, especially given the efflux of time and the escalation of prices of property. In Satya Jain v. Anis Ahmed Rushdie, this Court held:
14. (2013) 8 SCC 131: (AIR 2013 SC 434.
"39. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no 84 way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the plaintiffs to have the agreement enforced in law.
40. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. [...]
41. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour."
(emphasis supplied) 85 In directing specific performance of the agreement, this Court in Satya Jain (supra) held that sale deed must be executed for the current market price of the suit property.
34. In Nirmala Anand v. Advent Corporation (P.) Ltd.15, a three-judge Bench of this Court observed that in case of a phenomenal increase in the price of the land, the Court may impose a reasonable condition in the decree such as payment of an additional amount by the purchaser. In decreeing the suit for specific performance, the Court observed:
15. (2002) 8 SCC 146: (AIR 2002 SC 3396) "6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation.
That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific 86 performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen." (emphasis supplied)
35. In KS Vidyanadam v. Vairavan16, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant-seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance. The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half. years seeking performance of the contract. The Court held:
16. (1997) 3SCC 1: (AIR 1997 SC 1751) "10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to 87 immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing.
In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15 -6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? [...] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months', he purchased 88 the stamp papers and offered to pay the balance consideration. [...]
13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices -- according to the defendants, three times -- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."
(emphasis supplied)
36. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his 89 willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum."
50. Applying the aforementioned principles to the case on hand and having taken note of the dictum of Hon'ble Supreme Court referred to above, it is not in dispute that the suit is filed by the plaintiff seeking relief of specific performance and therefore, the plaintiffs have to approach the Court with clean hands seeking discretionary power of the Court to grant relief of specific performance. If such being the case, it is the duty of the Court to exercise its jurisdiction reasonably in accordance with sound judicial principles on meticulous consideration of all facts and circumstances so that, grant of decree may not be used as a instrument of oppression to have unfair advantage of parties. With the backdrop of these aspects and on thorough analysis of the finding recorded by both the Courts below and the evidence on record, where both the Courts below have committed error in granting relief of specific performance and therefore, the judgments referred to by the learned counsel appearing for the respondents are not applicable to the case on hand, as the plaintiff has filed suit 90 with untrue facts as narrated above, the respondents have not made out a case to justify the impugned judgments of the Courts below. I am well aware of the fact that, this Court while exercising jurisdiction under Section 100 of Code of Civil Procedure has limited scope of interference on facts, unless both the Courts below misconstrued the evidence and ignored the settled principles laid down by this Court and Hon'ble Supreme Court. This is one such case where both the Courts below have not analysed evidence on record and appreciated the material on record in the right perspective and further deviated from all settled principles. In this regard, it is relevant to cite the judgment of Hon'ble Supreme Court in the case of BALASUBRAMANIAN AND ANOTHER vs. M. AROCKIASWAMY (DEAD) THROUGH LEGAL REPRESENTATIVES reported in (2021) 12 SCC 529. At paragraph 13 to 16 and 21 reads as under:
"13. In the light of the rival contentions, before adverting to the fact situation herein it is to be stated at the outset that on the general principles of law laid down in the decisions referred to by the learned Senior Counsel for the appellant, there can be no quarrel whatsoever.91
13.1. In Gajaraba Bhikhubha Vadher v. Sumara Umar Amad [Gajaraba Bhikhubha Vadher v. Sumara Umar Amad, (2020) 11 SCC 114 : (2021) 1 SCC (Civ) 529] the fact situation arising therein was referred to and having taken note that five substantial questions of law had been framed, this Court had arrived at the conclusion that such substantial questions of law which arose therein had not been dealt with appropriately since it had not been considered in the light of the contentions. It is in that circumstance, this Court was of the view that the judgment of the High Court is to be set aside and the matter is to be remitted to the High Court.
13.2. In Ramathal v. Maruthathal [Ramathal v. Marut hathal, (2018) 18 SCC 303 : (2019) 2 SCC (Civ) 681] , the issue considered was as to whether the High Court was wrong in interfering with the question of fact in the second appeal. It was a case where both the courts below had arrived at a concurrent finding of fact and both the courts had disbelieved the evidence of witnesses. In such a case where such concurrent factual finding was rendered by two courts and in such situation, it had been interfered by the High Court in a second appeal, this Court was of the view that the interference was not justified. However, it is appropriate to notice that in the said decision this Court had also indicated that such restraint against interference is not an absolute rule but when there is perversity in findings of the court which are not based on any material or when appreciation of evidence suffers from material 92 irregularity the High Court would be entitled to interfere on a question of fact as well.
13.3. The decision in Ram Daan v. Urban Improvement Trust [Ram Daan v. Urban Improvement Trust, (2014) 8 SCC 902 : (2014) 4 SCC (Civ) 669] , is a case, where in a suit for permanent injunction the plaintiff had pleaded possession from the year 1942 and the defendant had admitted the possession of the plaintiff from 1965 though it was contended that they had re-entered the property after being evicted in 1965. It is in that circumstance that the case of the plaintiff seeking to protect the possession was accepted and the necessity for seeking declaration did not arise as the defendant did not assert its right of ownership which is not so in the instant case.
13.4. In P. Velayudhan v. Ayammad [P. Velayudhan v. Ayammad, 1990 Supp SCC 9] and in Tapas Kumar Samanta v. Sarbani Sen [Tapas Kumar Samanta v. Sarbani Sen, (2015) 12 SCC 523 : (2016) 1 SCC (Civ) 482] , the decisions are to the effect that in a second appeal the High Court would not be justified in interfering with the finding of fact made by the first appellate court since such finding rendered would be based on evidence. On this aspect there can be no doubt that the same is the settled position of law but it would depend on the fact situation and the manner in which the evidence is appreciated in the particular facts.93
13.5. In Ramji Rai v. Jagdish Mallah [Ramji Rai v. Jagdish Mallah, (2007) 14 SCC 200] though it is held that there was no need to seek for declaration and suit for possession alone was sustainable, it was held so in the circumstance where injunction was sought in respect of the disputed land which was an area appurtenant to their building in which case possession alone was relevant and restraint sought was against preventing construction of compound wall.
14. In the background of the legal position and on reasserting the position that there is very limited scope for reappreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate court in a second appeal under Section 100 of the Civil Procedure Code, it is necessary for us to take note as to whether in the instant facts the High Court has breached the said settled position. To that extent the factual aspects and the evidence tendered by the parties has already been noted above in brief. Further, what is distinct in the present facts of the case is that the finding rendered by the learned Munsif (trial court) and by the learned District Judge (first appellate court) are divergent. The trial court on taking note of the pleadings and the evidence available before it was of the opinion that the plaintiff has failed to prove exclusive possession and, in such light, held that the entitlement for permanent injunction has not been established. While arriving at such conclusion the trial court had taken note of the right as claimed by the plaintiff and in that background had arrived at the 94 conclusion that except for the say of the plaintiff as PW 1 there was no other evidence. On the documentary evidence it was indicated that the kist receipts at Ext. A- 5 series would not establish possession merely because the name has been subsequently substituted in the patta records and the kist had been paid.
15. As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property. When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.
16. In view of the above, although the counsel for the appellant may be technically correct in his submission that the High Court erred in not clearly answering the question of law framed by it under Section 100CPC, the High Court was still within its jurisdiction to determine whether the reading of the evidence on record by one of the courts below was perverse. Question of law for consideration will not arise 95 in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a straitjacket formula. Therefore, merely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated. As already noted, the divergent view of the courts below on the same set of facts was available before the High Court.
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21. That apart, though the lower appellate court had reversed the judgment of the trial court, this aspect of the matter relating to the grievance of the plaintiff that he had been dispossessed had not been addressed and despite the plaintiff not being in possession the injunction being granted by the lower appellate court would not be justified. On the other hand a perusal of the judgment passed by the learned District Judge and the observations contained therein to the effect that the defendant has not produced any documentary evidence to show that Arockiammal is the only heir of deceased Marimuthu Kudumban and also that Defendant 1 alone is the legal heir of deceased Arockiammal, daughter of Marimuthu Kudumban and the conclusion that there is no clinching proof on behalf of the defendant that he has paid kist to the suit property as also the observation that the defendant has miserably failed to prove his possession over the suit property, on the face of it indicate that the learned District Judge has misdirected himself and proceeded at a tangent by placing the burden on the defendant. Though there was no issue to 96 that effect before the trial court, the learned District Judge with such conclusions has ultimately set aside the well-considered judgment and decree dated 13-4-1993 passed by the trial court in OS No. 769 of 1987, which will indicate perversity and material irregularity in misdirecting itself in wrongly expecting the defendant to discharge the burden in a suit for bare injunction and arriving at a wrong conclusion.
51. Applying the aforementioned principles to the case on hand, whether both the Courts below have exercised the discretion in accordance with law is to be assessed in the light of the finding recorded by the Courts below based on the evidence on record as well as pleadings set forth therein and also the observation made by Hon'ble Supreme Court in the case of K. PRAKASH vs. B.R. SAMPATH KUMAR reported in (2015)1 SCC 597. At paragraph 13 to 16 reads as under:
"13. Indisputably, remedy for specific performance is an equitable remedy. The court while granting relief for specific performance exercises discretionary jurisdiction. Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles.97
14. The King's Bench in Rooke's case [(1598) 5 Co Rep 99b : 77 ER 209. Ed. : As per the English Reports:"... and notwithstanding the words of the Commission give authority to the Commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections; for as one saith, talis discretio discretionem confundit."] said:
"Discretion is a science, not to act arbitrarily according to men's will and private affection : so the discretion which is exercised here, is to be governed by rules of law and equity, which are not to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others, allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with."
15. The Court of Chancery in Attorney General v. Wheate [(1759) 1 Eden 177 : 28 ER 652] followed Rooke's case [(1598) 5 Co Rep 99b : 77 ER
209. Ed. : As per the English Reports:"... and notwithstanding the words of the Commission give 98 authority to the Commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections; for as one saith, talis discretio discretionem confundit."] and observed : (ER p. 666) "... the law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui consulta patrum, qui leges juraque servat. And as it is said in Rooke's case [(1598) 5 Co Rep 99b : 77 ER 209. Ed. : As per the English Reports:"... and notwithstanding the words of the Commission give authority to the Commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections; for as one saith, talis discretio discretionem confundit."] , that discretion is a 99 science not to act arbitrarily according to men's wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every Judge."
16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance : that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion 100 against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance."
52. It is also pertinent to mention here that the judgments referred to by the learned counsel appearing for respondent/Plaintiff are analysed in the light of the facts and circumstances of the case, wherein there is a dispute with regard to the principles laid down in these judgments, however, same is not applicable to the present case, as the plaintiff approached the court with untrue facts and the plaintiff has connived with the father of the defendant No.1-D. Chandrashekhar, and defendant No.8-D. Somashekar examined as PW4 and on assessment of the evidence on record, the entire aspect of the matter makes it clear that, though the PW4 and PW5 have executed the registered Sale Deeds in favour of defendants 4 to 7 on 25th July, 1994 (Exhibits D3 and D5) and 04th August, 1994 (Exhibits D4 and 101 D6), have deposed in favour of the plaintiff. Be that as it may, they have been arraigned as defendants and therefore, both the Courts below have misread the entire evidence on record and have not applied their mind and failed to arrive at a conclusion that the plaintiff is of such a nature in committing fraud on the Court as well as on the defendants entitled for equitable relief of specific performance, which is discretionary in nature. It is well settled principle of law that, if the wrong finding is stem out of a complete misreading of evidence or is based on conjectures and surmises and further the finding recorded by both the Courts below is found to be perverse, under such circumstances, this Court shall exercise jurisdiction under Section 100 of Code of Civil Procedure to interfere with the concurrent findings of both the Courts below. At this juncture, it is relevant to cite the judgment of Hon'ble Supreme Court in the case of DAMODAR LAL vs. SOHAN DEVI AND OTHERS reported in (2016) 3 SCC 78, wherein, it is held that the safest approach on perversity is the classic approach on the reasonable man's inference on the facts. Applying the aforementioned principle to the case on hand, a reasonable man cannot be silent on the finding recorded by both the 102 Courts below in decreeing the suit of specific performance based on no evidence inter alia misreading of documents by both the Courts below and at no stretch of imagination, equitable relief could be granted in the facts and circumstances of the case. Therefore, the finding recorded by both the Courts below is contrary to law as well as the law declared by this Court and Hon'ble Supreme Court and that apart, both the Courts below have forgotten the basic principles of law to deal with the suits seeking specific performance.
53. In view of arriving at a conclusion that, though the Agreement of Sale are executed during the year-1988 and the suits are filed during the year-1997, whereby, the plaintiffs have not produced any cogent evidence showing their readiness and willingness from the date of execution of Agreement of Sale till filing of the suit and as per the discussion made above on the finding recorded by both the Courts below in the light of settled principle of law by this Court and Hon'ble Supreme Court referred to above, the plaintiffs have utterly failed to prove the requirement of Section 16(c) of the Specific Relief Act. Therefore, I find force in the submission made by learned counsel appearing for appellants. 103 Accordingly,, the substantial question of law framed above favours the appellant/defendants 4 to 7 in these appeals and the plaintiff/respondent No.1 have not made out a case for granting relief of specific performance of the Agreement as prayed in the plaint. In the result, I pass the following:
ORDER
1) Regular Second Appeal Nos.1170, 1318, 1319 and 1399 of 2019 are allowed;
2) Judgment and decree dated 24th April, 2019 passed in Regular Appeal Nos.15055 and 15054 of 2018 on the file of the V Additional District and Sessions Judge, Devanahalli, Bengaluru Rural District are hereby set-aside;
3) Judgment and decree dated 12th October, 2018 passed in Original Suit Nos.40 and 41 of 2006 on the file of the Senior Civil Judge and JMFC., Devanahalli are hereby set-aside;
4) Original Suit No.40 and 41 of 2006 filed by the plaintiffs are hereby dismissed.
SD/-
(E.S.INDIRESH) JUDGE ARK