Karnataka High Court
Smt. Maheshwari vs Basalingappa S/O Basateppa Humberi on 2 July, 2024
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NC: 2024:KHC-D:8988
RSA No. 100362 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100362 OF 2017 (SP-)
BETWEEN:
SMT. MAHESHWARI W/O LAXMAN GOLYALKAR
AGE: ABOUT 44 YEARS
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O ARAVATAGI,
TALUK & DIST: DHARWAD-580007.
...APPELLANT
(BY SRI RAMESH V. ITAGI AND
SRI PRAVEEN G. KULKARNI, ADVOCATES)
AND:
1. BASALINGAPPA S/O BASATEPPA HUMBERI
AGED ABOUT 70 YEARS,
OCC: AGRICULTURE
R/O NARENDRA,
TALUK & DIST: DHARWAD-580005.
Digitally signed
by SAROJA 2. MALLAPPA S/O RANGAPPA GANIGER
HANGARAKI
Location: HIGH AGE: MAJOR, OCC: AGRICULTURE,
COURT OF R/O KUMBARKOPPA,
KARNATAKA
DHARWAD TALUK & DIST. DHARWAD-580006.
BENCH
DHARWAD
3. SHIVANAND S/O RANGAPPA GANIGER
AGE: MAJOR, OCC: AGRICULTURE,
R/O KUMBARKOPPA,
TALUK & DIST. DHARWAD-580006.
4. ADARSHAPPA S/O RANGAPPA GANIGER,
AGE: MAJOR, OCC: AGRICULTURE,
R/O KUMBARKOPPA,
TALUK & DIST. DHARWAD-580006.
...RESPONDENTS
(BY SRI S.K.MALLIGAWAD AND
SRI S.B.MALLIGAWAD, ADVOCATES FOR R1 TO R4)
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NC: 2024:KHC-D:8988
RSA No. 100362 of 2017
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD, IN
R.A.NO.152/2016 DATED 25.10.2016 WITH COSTS CONFIRMING THE
JUDGMENT AND DECREE PASSED BY THE I ADDITIONAL CIVIL
JUDGE (SR.DN.) AND CJM, DHARWAD IN O.S.NO.175/2007 DATED
31.03.2016 AND DECREE THE SUIT O.S.NO.175/2007 BY ALLOWING
THIS APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of Code of Civil Procedure, 19081 by the plaintiff challenging the judgment and decree dated 25.10.2016 passed in RA No.152/2016 by the Court of IV Additional District and Sessions Judge, Dharwad2 and the judgment and decree dated 31.03.2016 passed in OS No.175/2007 by the Court of the I Additional Senior Civil Judge and CJM, Dharwad3, whereunder, the suit for specific performance has been partly decreed by the Trial Court wherein refund of earnest money of ₹1,00,000/- has been ordered together with interest at the rate of 12 % per 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -3- NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 annum which has been affirmed by the First Appellate Court.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that the suit property i.e., an extent of 5 acres 24 guntas of agricultural land in Block No.16/PA of Kumbarkoppa village, Dharwad Taluk was owned by the defendant No.1 who executed a special power of attorney to one Hasan Ali Khan Sardesai of Dasanakoppa, who was managing the suit property. That the defendant No.1 being in need of money, the power of attorney holder of the defendant No.1 was looking for prospective purchasers and accordingly, the plaintiff entered into an agreement of sale dated 25.02.2003 with the power of attorney holder of defendant No.1 to sell the suit property for a total sale consideration of ₹2,25,786/-. That the power of attorney holder of defendant No.1 received an earnest money of ₹1,00,000/- on the date of the agreement.
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NC: 2024:KHC-D:8988 RSA No. 100362 of 2017
4. It is the further case of the plaintiff that out of the remaining sale consideration, a further sum of ₹25,786/- was paid and the balance amount of ₹1,00,000/- was to be paid at the time of the registration of the sale deed. That after the death of the power of attorney holder of defendant No.1, the plaintiff approached the defendant No.1 to execute the sale deed. However, the defendant No.1 was postponing the same. That the plaintiff was ready and willing to perform her part of contract. That without the knowledge and consent of the plaintiff, defendant No.1 has sold the suit property to the defendant Nos.2 to 4 vide registered Sale Deed dated 15.09.2006. That the plaintiff got issued a legal notice calling upon the defendant No.1 to execute the sale deed by receiving the balance sale consideration. That despite service of notice, the defendant No.1 did not reply to the said legal notice. Hence, the plaintiff filed the suit.
5. The defendants entered appearance through their Advocate. The defendant No.1 has filed his written -5- NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 statement and defendant Nos.2 to 4 have filed their common written statement.
6. The defendant No.1 filed his written statement denying the case of the plaintiff regarding execution of power of attorney and further denied that the power of attorney holder was in possession of the suit property. The defendant No.1 has also denied the execution of the agreement as well as the receipt of the earnest money. The defendant No.1 has admitted that he being the owner of the suit property, and that he sold the same in favour of defendant Nos.2 to 4 vide registered Sale Deed.
7. The defendant Nos.2 to 4 in their written statement have contended that they are the bonafide purchaser for value from the defendant No.1 vide a registered Sale Deed dated 15.09.2006 for a total sale consideration of ₹3,50,000/-. It is further contended that the suit is barred by time and that they had no knowledge of the prior agreement. Hence, the defendants sought for dismissal of the suit.
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NC: 2024:KHC-D:8988 RSA No. 100362 of 2017
8. The Trial Court consequent to the pleadings of the parties, framed the following issues:
"1. Whether the plaintiff proves that the defendant No.1 through his PA holder entered into an agreement of sale for consideration of Rs.2,25,786/- and received Rs.1,00,000/- and 21,786/- on 6/4/2003 as earnest/advance amount as contended and he was put in possession of suit property as on 25/2/2003?
2. Whether plaintiff proves that she is always ready and willing to perform her contract?
3. Whether he proves that after the death of PA holder defendant has sold the property to defendant No.2 to 4 and the said deed are null and void and not binding on plaintiff?
4. Whether the plaintiff is entitled for specific performance of contract?
5. Whether in the alternative petitioner is entitled for Rs.1,25,786/- with interest at 24%?
6. Whether he proves the interference by the defendants?
7. Whether he is entitled for permanent injunction as prayed for?
8. What order or decree?"
9. The plaintiff examined herself as PW.1 and five witnesses as PW.2 to PW.6. Ex.P.1 to Ex.P.12 have been marked in evidence. The defendant No.2 was examined as DW.1 and defendant No.1 was examined as DW.4. Two -7- NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 witnesses have been examined as DW.2 and DW.3. Ex.D.1 has been marked in evidence. The Trial Court vide judgment and decree dated 31.03.2016, partly decreed the suit and passed the following order:
"The suit of the plaintiff as against the Defendant No.1 is decreed in part with costs.
The Suit of the Plaintiff as against the Defendants No.2 to 4 is dismissed.
The Plaintiff is entitled for refund of earnest money of Rs.1,00,000/- from the Defendant No.1 along with interest at the rate of 12% per annum from the date of the Suit Agreement of Sale till the date of realization of the decreetal amount.
The Defendant No.1 shall pay to the Plaintiff an amount of Rs.1,00,000/- (being the earnest money) along with interest at the rate of 12% per annum from the date of the Suit Agreement of Sale till the date of realization of the decreetal amount.
The Plaintiff is not entitled for the reliefs of Specific Performance of Contract, Possession and Perpetual Injunction prayed for."
10. Being aggrieved, the plaintiff preferred RA No.152/2016. The defendants entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:
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NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 "1. Whether the plaintiff/appellant is entitled for the relief of specific performance of contract as sought?
2. Whether the judgment and decree of the trial court needs interference?
3. What order?"
11. The First Appellate Court vide judgment and decree dated 25.10.2016 dismissed the appeal filed by the plaintiff and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
12. Learned counsel for the appellant vehemently contends that the finding of the Trial Court that the plaintiff is not ready and willing to perform her part of the contract is erroneous, in view of the fact that the plaintiff has averred that she was ready and willing to complete the sale transaction in terms of the agreement. It is further contended that despite the notice having been issued, the defendants have not replied to the said notice. That the findings recorded by the Trial Court, which are -9- NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 affirmed by the First Appellate Court are erroneous and liable to be interfered with by this Court.
13. Per contra, learned counsel for the respondent/ defendant Nos.2 to 4 justifies the judgment and decree passed by the Trial Court and First Appellate Court and submits that the defendant Nos.2 to 4 being the bonafiede purchasers for value, the Trial Court is justified in ordering for refund.
14. The submissions of both the learned counsels have been considered and the material on record have been perused.
15. It is forthcoming that the Trial Court has held that the plaintiff has proved the execution of the agreement of sale dated 25.02.2003 (Ex.P.2). It is further held that the plaintiff has paid an earnest money of ₹1,00,000/-. The Trial Court, noticing the contention of the plaintiff that she has paid a further sum of ₹25,786/- to the defendant No.1, has recorded a finding that the said
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NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 amount is not payment made as advance sale consideration. Thereafter, considering the contention of the defendants that the suit is barred by limitation, the Trial Court held that there is no time stipulated for performance of the contract, and having regard to Article 54 of the Limitation Act, 1953, which describes the limitation of three years to file the suit and the said period of three years was to commence from the date when the performance was refused, it has noticed that the suit has been filed on 12.04.2007 after the plaintiff got issued a legal notice to defendant No.1 and the same not having been responded, the suit was filed within the period of limitation.
16. With regard to the contention of defendant Nos.2 to 4, that they are the bonafiede purchasers for valuable consideration, the Trial Court has noticed that in the cross-examination of DW.1, there is not even a suggestion made by the plaintiff that he was aware of the agreement of sale. After an adequate appreciation of the
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NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 oral and documentary evidence available on record, the Trial Court has recorded a finding that the defendant Nos.2 to 4 are the bonafiede purchasers of the suit properties for valuable consideration.
17. With regard to the contention regarding the readiness and willingness, it has been noticed by the Trial Court that the agreement of sale was executed on 25.10.2003 and the earnest money of ₹1,00,000/- was paid. It has been further held that, although the plaintiff has averred that she was ready and willing to perform her part of contract, the plaintiff despite being aware of the death of the power of attorney holder of defendant No.1 on 27.06.2004, did not take any steps to call upon defendant No.1 to execute the sale deed for more than 2 ½ years. It is further noticed that the defendant No.1 sold the suit property to defendant Nos.2 to 4 vide registered sale deed dated 15.09.2006. Thereafter, after issuance of notice, the plaintiff has filed a suit after lapse a of 6 to 7 months. Hence, the Trial Court has recorded a finding that
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NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 there is total inaction on the part of the plaintiff for 2 ½ years and the delay which is attributed to the plaintiff, it would be inequitable to grant the relief of specific performance.
18. The First Appellate Court, considering the appeal filed by the plaintiff and upon a re-appreciation of the oral and documentary evidence on record, has noticed that the relief of specific performance being a discretionary power, the discretion exercised by the Trial Court was just and proper and the same has been exercised judiciously. Hence, the said findings were not interfered with by the First Appellate Court.
19. It is clear and forthcoming from the aforementioned that the agreement was executed on 25.06.2003. The power of attorney holder of the defendant died on 27.06.2004. The defendant No.1 sold the suit property in favour of defendant Nos.2 to 4 vide registered Sale Deed dated 15.09.2006. The plaintiff has failed to demonstrate what steps he took to call upon the
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NC: 2024:KHC-D:8988 RSA No. 100362 of 2017 defendant No.1 to complete the sale transaction between the period 27.06.2004 to 15.09.2006. Further, consequent to the Sale Deed dated 15.09.2006, the plaintiff got issued a legal notice on 23.02.2007 (Ex.P.7) and thereafter filed the suit on 12.04.2007.
20. It is further relevant to note that although no time is stipulated under the agreement for completion of the sale transaction, the plaintiff has failed to demonstrate as to what steps he took to call upon the defendant No.1 or his power of attorney holder to complete the sale transaction between 25.03.2003 to 15.09.2006.
21. Keeping in mind the aforementioned factual situation and having regard to the fact that the plaintiff has not produced any material to demonstrate his readiness and willingness, as noticed above, the Trial Court has rightly recorded a finding that it would be inequitable to grant the relief of specific performance.
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NC: 2024:KHC-D:8988 RSA No. 100362 of 2017
22. The said aspect of the matter has been adequately re-appreciated by the First Appellate Court, which has refused to interfere with the discretion exercised by the Trial Court.
23. The appellants have failed in demonstrating that the said findings recorded by the Trial Court as affirmed by the First Appellate Court are contrary to any specific oral or documentary evidence on record. Hence, no substantial question of law arises for consideration in the present appeal. In view of the aforementioned, the above appeal is dismissed as being devoid of merit at the stage of admission itself.
24. In view of the dismissal of the above appeal, IA No.2/2017 for stay and 3/2017 for temporary injunction also stand dismissed.
Sd/-
JUDGE PJ CT:GSM List No.: 1 Sl No.: 27