Karnataka High Court
Basavaraj S/O. Neelappa Sannamani vs Smt. Lakshmi W/O Natraj Kadakol on 1 February, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 100841 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 100841 OF 2022 (SP-)
BETWEEN:
BASAVARAJ S/O. NEELAPPA SANNAMANI
AGE. 51 YEARS, OCC. AGRICULTURE,
R/O. HALAGERI VILLAGE 581208,
TQ. RANEBENNUR, DIST. HAVERI.
...APPELLANT
(BY SRI. B C JNANAYYASWAMI, ADV.)
AND:
SMT. LAKSHMI W/O NATRAJ KADAKOL
AGE. 32 YEARS,
OCC. AGRICULTURE/HOUSEWIFE,
R/O. RATTIHALLI VILLAGE 581116,
TQ. RANEBENNUR, DIST. HAVERI.
...RESPONDENT
(BY SMT.PALLAVI S PACHCHAPURE, ADV. FOR
SRI.SHRINAND A PACHCHAPURE &
Digitally signed
by ROHAN
HADIMANI T
SRI.RAJENDRA R.P., ADVS. FOR C/R1 (CP No.20549/21;
ROHAN
HADIMANI
Location: HIGH
COURT OF SRI.C.B.SHAKUNAVALLI, ADV. C/R1 (CP No.22310/21 & 21489/21)
KARNATAKA
T DHARWAD
Date:
2023.02.17
11:40:00 +0530
THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908,
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2020 PASSED
IN R.A.NO.77/2020 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT HAVERI SITTING AT RANEBENNUR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 26.11.2019, PASSED IN O.S. NO.47/2017 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, RANEBENUR, DECREEING THE SUIT
FILED FOR SPECIFIC PERFORMANCE OF AGREEMENT OF SALE.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100841 of 2022
JUDGMENT
1. Present appeal is by the appellant/defendant, aggrieved by the judgment and order dated 30.11.2020 passed in R.A.No.77/2020 on the file of the Addl.Senior Civil Judge & JMFC, Ranebennur (hereinafter referred to as 'the First Appellate Court'), in and by which the First appellant/defendant, confirmed the judgment and decree dated 26.11.2011 passed in O.S.No.47/2017 on the file of the Addl.Senior Civil Judge and JMFC, Ranebennur (hereinafter referred to as 'the Trial Court').
2. The above suit in O.S.No.47/2017 is filed by the respondent/plaintiff seeking relief of specific performance of an agreement of sale dated 22.01.2015 entered into between the respondent/plaintiff and the appellant/defendant, in and by which the appellant/defendant agreed to sell an extent of 1 acre of agricultural land out of 3 acres 10 guntas forming part of land in Sy.No.13/1C situated at Halageri village for an agreed sale consideration of Rs.10,00,100/-. That on the -3- RSA No. 100841 of 2022 date of the agreement, respondent/plaintiff had paid Rs.5 lakhs towards part payment of sale consideration and appellant/defendant had agreed to execute registered deed of sale within three months from the date of agreement by receiving balance sale consideration at the time of execution of deed of sale. That the appellant/defendant had also agreed to obtain and submit PT sheet and E-map regarding the actual measurement of suit property from the competent authority before the stipulated period. That the respondent/plaintiff approached the appellant/defendant on several occasions seeking to execute registered deed of sale. The appellant/defendant did not comply with the request. On the other hand, appellant/defendant caused issue of a notice dated 10.06.2016 to the respondent/plaintiff through his counsel stating that he is not ready to execute the deed of sale. In response thereof, respondent/plaintiff caused issue of a reply calling upon the appellant/defendant to perform his part of contract in terms of agreement of sale dated -4- RSA No. 100841 of 2022 22.01.2016. That since the respondent/plaintiff was ready and willing to perform his part of contract and appellant/defendant failed to perform his part of contract, the respondent/plaintiff was constrained to file a suit for specific performance.
3. Appellant/defendant in his written statement, admitted the plaint averment to the effect that he had agreed to sell 1 acre of land out of 3 acres 10 guntas in Sy.No.13/1C in terms of agreement of sale dated 22.01.2015. He also admitted to have received Rs.5 lakhs from the respondent/plaintiff towards part payment of sale consideration. It is contended that the Tahasildar and the survey department upon the application filed by the appellant/defendant for survey of 1 acre of agricultural land, informed that it was not possible to prepare PT sheet of the said property due to technical defects and that he had intimated the same to the respondent/plaintiff. That in a settlement arrived at between the parties in a panchayat, the appellant/defendant agreed to return the -5- RSA No. 100841 of 2022 sum of Rs.5 lakhs received by the respondent/plaintiff. That the respondent/plaintiff having agreed to receive the said amount in settlement of his claim, has filed the suit. Hence, sought for dismissal of the suit.
4. The Trial Court based on the pleadings, framed the following issues:
"1.Whether the respondent/plaintiff proves her readiness and willingness to perform her part of contract?
2. Whether the respondent/plaintiff is entitled for the relief of specific performance of contract or alternative relief of refund of earnest money with interest?
3. What order or decree?"
5. The respondent/plaintiff examined herself as PW1 and another witness as PW2 and exhibited 7 documents marked as Exs.P1 to P7.
6. On appreciation of evidence and the admission made by the parties, the Trial Court held that the agreement of sale dated 22.01.2015 and also payment of sale consideration of Rs.5 lakhs, was proved. But however, the Trial Court declined to accept the contention raised by the appellant/defendant that it was not possible to prepare PT sheet and measurement of the property due to -6- RSA No. 100841 of 2022 technical defect and consequently, held that the respondent/plaintiff had proved her readiness and willingness to perform her part of contract and directed the appellant/defendant to execute deed of sale in favour of the respondent/plaintiff conveying the suit property, within two months from the date of the judgment.
7. Aggrieved by the aforesaid judgment and decree of the Trial Court, the appellant/defendant filed regular appeal in R.A.No.77/2020. Considering the grounds urged in the memorandum of the appeal, the First Appellate Court framed the following points for its consideration:
"1. Whether the judgment and decree dated 26.11.2019 in O.S.No.47/2017 on the file of Addl.Senior Civil Judge and JMFC, Ranebennur is wrong, perverse and liable to be set aside?
2. Whether there are any grounds to interfere with the judgment of the trial court?
3. What order?"
8. On re-appreciation of material evidence, the First Appellate Court answered issue Nos.1 and 2 in the Negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial -7- RSA No. 100841 of 2022 Court. Being aggrieved by the same, appellant/defendant is before this Court.
9. Sri.B.C.Jnanayyaswami, learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submitted that the Trial Court and the First Appellate Court failed to appreciate the fact of appellant/defendant causing issue of notice much prior to respondent/plaintiff filing the suit expressing difficulty in performing her part of contract in the nature of obtaining measurement and PT sheet from the concerned authority. He further submits that the appellant/defendant with bonafide intention has offered to repay sum of Rs.5 lakhs paid by the respondent/plaintiff. That despite the said offer being made by the appellant/defendant, the respondent/plaintiff did not come forward to receive the amount paid by him, on the other hand, respondent/plaintiff rushed to the Court in filing the above suit. It is also contended that the First Appellate Court and this Court without adverting to the hardship that might be -8- RSA No. 100841 of 2022 caused to the appellant/defendant have decreed the suit and dismissed the appeal causing injustice to the appellant/defendant. Hence, submits that substantial question of law arises in the matter requiring consideration.
10. Smt.Pallavi Pachchapure, learned counsel for the respondent on the other hand submits that the execution of agreement of sale dated 22.01.2015 is not in dispute. However, referring to the contents of the notice at Ex.P5, she submits that by issuing said notice and by expressing his in-ability to obtain 11-E sketch and certificate, the appellant/defendant himself has committed breach of agreement and as such appellant/defendant cannot be allowed to take undue advantage of his own conduct. She submits that the respondent/plaintiff had paid Rs.5,00,000/- and has always been ready and willing to perform his part of contract. She submits that the appellant/defendant on account of his own conduct constrained the respondent/plaintiff to approach the Court. -9- RSA No. 100841 of 2022 The Trial Court and the First Appellate Court having taken note of all these aspects of the matter and evidence placed on record, came to just conclusion warranting no interference. She submits that no substantial question of law would arise in the matter for consideration and seeks for dismissal of the appeal.
11. Heard the learned counsel for the parties. Perused the records.
12. Admitted facts are that, the suit schedule property which is the subject matter of agreement of sale dated 22.01.2015, belong to the appellant/defendant. It is also not disputed by the appellant/defendant of he executed agreement of sale at Ex.P1 dated 22.01.2015 agreeing to sell 1 acre of land out of 3 acres 10 guntas in Sy.No.13/1C of Halageri village is in favour of the respondent/plaintiff. Appellant/defendant has also not disputed the receipt of Rs.5,00,000/- towards part payment of sale consideration. Thus, the Trial Court and the First Appellate Court have come to just conclusion
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RSA No. 100841 of 2022 regarding proof of agreement and payment of earnest money.
13. As regards readiness and willingness of the respondent/plaintiff is concerned, the appellant/defendant himself caused issue of notice dated 18.06.2016 expressing his inability to obtain PT sheet and 11-E sketch on the premise that authority had informed him that there was some technical defect due to which they could not obtain survey. It is also evident from the contents of the notice at Ex.P6 that the appellant/defendant had also contended that in view of his inability to execute deed of sale by obtaining necessary documents, he was ready and willing to pay back Rs.5,00,000/- to the respondent/plaintiff. It is also contended that a meeting was conveyed in the presence of panchas in terms of which apparently respondent/plaintiff had agreed to receive sale consideration of Rs.5,00,000/- paid by her. However, the appellant/defendant retracted from the said commitment.
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RSA No. 100841 of 2022
14. The Trial Court has taken note of the aforesaid contention of the appellant/defendant to hold that the issuance of said notice by the respondent/plaintiff would prove that the respondent/plaintiff cannot be held guilty of lack of readiness and willingness to perform her part of contract as the appellant/defendant himself has expressed inability to execute deed of sale which constituted breach of terms of the agreement. However, in the absence of any other material evidence placed on record for non- execution of deed of sale, the Trial Court and the First Appellate Court has also taken into consideration that it is the appellant/defendant who himself has raised objection for not preparing PT sheet in respect of suit property. Taking into consideration the deposition of appellant/defendant, the Trial Court and the First Appellate Court have held that the conduct of the appellant/defendant clearly indicates that he had made all efforts to avoid execution of sale in favour of the respondent/plaintiff.
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RSA No. 100841 of 2022
15. The appellant/defendant himself having opted to issue notice expressing inability to execute deed of sale, cannot be now turned around to say that there was lack of readiness and willingness on the part of the respondent/plaintiff in obtaining deed of sale. In view of the admission regarding execution of agreement of sale dated 22.01.2015 and also in view of the receipt of said payment of Rs.5 lakhs and in view of the notice having been issued by the appellant/defendant himself, which has been considered by the Trial Court, the First Appellate Court, this Court is of the considered view that no substantial question of law would arise for consideration.
16. It is brought to the notice of this Court by the learned counsel for the respondent that the judgment and decree which is impugned in this appeal has already been given effect to by executing deed of sale through the Court in favour of the respondent/plaintiff and respondent/plaintiff has been in possession of the property. For the aforesaid reasons, the following:
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ORDER Appeal is dismissed. Judgment and order dated 30.11.2020 passed in R.A.No.77/2020 on the file of the Addl.Senior Civil Judge & JMFC, Ranebennur is confirmed.
Pending IAs, if any, do not survive for consideration.
Sd/-
JUDGE KGK List No.: 1 Sl No.: 23