Karnataka High Court
Savita vs Shankarlinga on 25 July, 2024
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NC: 2024:KHC-K:5314-DB
RFA No. 200086 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200086 OF 2023 (SP)
BETWEEN:
SMT. SAVITA
W/O RAVIKUMAR WALLYAPUR,
AGED ABOUT 32 YEARS,
OCC: AGRICULTURE/HOUSEHOLD,
R/O KEMBHAVI,
TALUK: SHORAPUR
DISTRICT: YADGIR- 585 224.
...APPELLANT
(BY SRI. S. S. MAMADAPUR, ADVOCATE)
Digitally signed by
BASALINGAPPA
SHIVARAJ AND:
DHUTTARGAON
Location: HIGH
COURT OF SRI. SHANKARLINGA
KARNATAKA
S/O MAHADEVAPPA NAIKODI,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
R/O YAKTAPUR,
TALUK: SHORAPUR
DISTRICT: YADGIR- 585 224.
...RESPONDENT
(BY SRI. ARUN CHOUDAPURKAR, ADVOCATE)
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NC: 2024:KHC-K:5314-DB
RFA No. 200086 of 2023
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 20.04.2023 PASSED BY THE HON'BLE SENIOR CIVIL
JUDGE AND JMFC, SHORAPUR IN O.S. NO.121/2021 AND
DISMISS THE SUIT, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI) This regular first appeal is filed challenging the judgment and decree dated 20.04.2023 passed in O.S.No.121/2021 by the Senior Civil Judge and JMFC, Shorapur.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant is the defendant and respondent is the plaintiff.
3. The plaintiff filed a suit for specific performance of contract against the defendant. It is the case of the plaintiff that husband of defendant by name Sri.Ravikumar was the absolute owner in possession of agricultural land in Sy.No.581/1 measuring 6 acres 38 guntas out of which 4 acres -3- NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 situated at Kembhavi village was offered for sale to the plaintiff. On negotiation, finally, the husband of defendant agreed to sell the property in favour of plaintiff for consideration of Rs.20,00,000/- and received the advance consideration of Rs.16,90,000/- and executed a registered agreement of sale in favour of defendant on 23.08.2018 and agreed to receive the balance consideration of Rs.3,10,000/- at the time of execution of sale deed. The plaintiff approached the husband of defendant and requested to receive balance consideration amount and to execute the registered sale deed but he postponed by giving one or the other reason. In the meanwhile, husband of defendant died leaving behind defendant as his legal heir. The plaintiff approached the defendant to execute the registered sale deed but she refused to do the same. The plaintiff having fed up with the attitude of defendant got issued legal notice on 12.07.2021 calling upon defendant to receive balance consideration amount and to execute the registered sale deed. Though notice was duly served on the defendant inspite of service of notice, defendant neither replied to the legal notice nor executed registered sale -4- NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 deed in favour of the plaintiff. Hence, cause of action arose for the plaintiff to file a suit for specific performance of contract.
4. The defendant filed written statement denying the averments made in the plaint. It is denied that husband of defendant had offered to sell the suit property for consideration of Rs.20,00,000/- and received the advance amount of Rs.16,90,000/- and agreed to receive the balance consideration amount at the time of execution of registered sale deed. Further, it is contended that defendant had no knowledge of alleged agreement of sale and she never went to the Sub- Registrar Office and signed on the document. It is also contended that plaintiff got created the said agreement of sale. Hence, on these grounds prays to dismiss the suit. The trial Court on the basis of pleadings of the parties framed the following issues:
i. Whether the plaintiff proves that, the defendant had executed an agreement of sale on 23.08.2018 in respect of suit property in favour of him for a total consideration amount of Rs.20,00,000/- and by receiving an advance consideration amount of Rs.16,90,000/-?-5-
NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 ii. Whether plaintiff proves that, he is ever ready and willing to perform his part of contract?
iii. Whether the defendant proves that, the plaintiff has made false agreement for sale deed using the mental disorder of her husband created this document? iv. Whether the plaintiff is entitled for the relief as sought in the plaint?
v. What order or decree?
5. The plaintiff in order to substantiate his case examined himself as P.W.1 and examined one witness as P.W.2 and marked 08 documents as per Exs.P1 to P8. The defendant herself was examined as DW.1 and got marked 4 documents as Exs.D1 to D4.
6. The trial Court after recording the evidence, hearing on both sides and on assessment of the oral and documentary evidence answered issue Nos.1, 2 and 4 in the affirmative, issue No.3 in the negative and issue No.5 as per the final order.
It is ordered that suit of the plaintiff was decreed with cost and directing defendant to execute registered sale deed in favour of plaintiff by receiving balance consideration of Rs.3,10,000/- within 30 days and if the defendant fails to do so, liberty was -6- NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 reserved to the plaintiff to take registered sale deed by appointing Court Commissioner under due process of law. The defendant being aggrieved by the judgment and decree passed by the trial Court in O.S.No.121/2021 filed this Regular First Appeal.
7. Heard the learned counsel for the defendant and also learned counsel for plaintiff.
8. Learned counsel for defendant submits that plaintiff has got created the alleged agreement of sale and filed a false suit against the defendant. He submits that agreement of sale does not bear the signature of husband of defendant and no advance amount was received by the husband of defendant. The said aspect was not considered by the Court below and decreed the suit and he also submits that husband of the defendant was suffering from mental disorder and the plaintiff taking disadvantage of mental disorder got created the said document. He also submits that, the trial Court has not properly considered the material placed on record and committed an error in decreeing the suit of the plaintiff for -7- NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 specific performance of contract. Hence, on these grounds, he prays to allow the appeal.
9. Per contra, learned counsel for defendant submits that, husband of defendant offered to sell the suit land to an extent of 4 acres for consideration of Rs.20,00,000/- and accordingly, plaintiff paid a sum of Rs.16,90,000/- as a token amount and the defendant's husband after receiving the token amount executed the registered agreement of sale and it was agreed that balance consideration to be paid at the time of registration of sale deed. The said agreement of sale was registered and the presumption in regard to the registration of the document, he submits that husband of the defendant was a member of the Municipality, Kembhavi and he was not suffering from any kind of mental disorder. He further submits that defendant has not produced any record to establish that her husband was suffering from mental disorder. Hence, the trial Court considering the evidence of P.W.2 who is said to be a attesting witness to Ex.P.1 has rightly passed the impugned judgment. Hence, he submits that there is no error in the -8- NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 impugned judgment. Hence, on these grounds, he prays to dismiss the appeal.
10. Perused the records, considered the submissions of learned counsel for the parties. The points that arise for our consideration are :
1. Whether the plaintiff proves that the husband of defendant agreed to sell the suit property for consideration of Rs.20,00,000/- and executed a registered an agreement of sale on 23.08.2018?
2. Whether the plaintiff proves that he is/he was ever ready and willing to perform his part of contract?
3. Whether the defendant proves that the judgment and decree passed by the trial Court is perverse and arbitrary?
4. What order or decree?
11. Point Nos.1 and 2: These two points are interlinked with each other hence, they are taken up together for common discussion in order to avoid repetition of facts. -9-
NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023
12. The plaintiff in order to substantiate his case examined himself as P.W.1 and he has reiterated the plaint averments in the examination-in-chief. He deposed that husband of defendant was the absolute owner and in possession of the land bearing Sy.No.581/1 measuring 06 acres 38 guntas out of which he agreed to sell 04 acres of land in favour of plaintiff for consideration of Rs.20,00,000/- and accordingly, plaintiff paid a sum of Rs.16,90,000/- towards advance amount and husband of defendant executed a registered agreement of sale in favour of plaintiff on 23.08.2018 and it was agreed that balance consideration to be paid at the time of execution of registered sale deed. The plaintiff requested the husband of the defendant to receive the balance consideration amount and to execute registered sale deed but the husband of defendant went on postponing to receive the balance consideration amount and to execute the registered sale deed. In the meanwhile, he died leaving behind the defendant as his legal heir. After the demise of her husband, plaintiff approached the defendant and requested her to receive balance consideration amount and to execute the registered sale deed but the defendant has not given heed to
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NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 the request made by the plaintiff. The plaintiff having fed up with the delaying attitude of the defendant got issued a legal notice on 12.07.2021. The said notice was duly served with defendant. But the defendant neither replied to the legal notice nor came forward to receive balance consideration amount and execute the registered sale deed. In order to substantiate the case of the plaintiff, the plaintiff has produced agreement of sale executed by husband of defendant in favour of plaintiff marked as Ex.P.1. From the perusal of Ex.P.1, it discloses that the husband of defendant agreed to sell the suit property for consideration of Rs.20,00,000/- and the plaintiff paid a sum of Rs.16,90,000/- as an advance amount. The said agreement of sale was duly registered and the signature of the husband of defendant is marked as Ex.P.1(a-d). The defendant has affixed her signature as an attesting witness to Ex.P.1 and her signature is marked as Ex.P.1(e). The signature of other attesting witness marked as Ex.P.1(f). Further the plaintiff in order to establish that, the plaintiff was/is ready and willing to perform his part of contract, he got issued a legal notice marked as Ex.P.2 which discloses that plaintiff was/is ready and willing to perform his part of contract. Plaintiff has also pleaded
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NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 in the plaint and also proved by leading evidence by producing Ex.P.2. The plaintiff has complied the ingredients of Section 16(c) of the Specific Relief Act. Further, the plaintiff in order to establish that the husband of defendant has executed a registered agreement of sale also examined the attesting witness as P.W.2 who has deposed in similar lines with P.W.1. Nothing has been elicited in the course of cross-examination of P.W.2.
13. In rebuttal, the defendant examined herself as DW.1. She has reiterated the written statement averments in the examination-in-chief and denied the execution of agreement of sale and also signature on Ex.P.1 and deposed that her husband was suffering from mental disorder and the plaintiff taking disadvantage of the mental disorder got created Ex.P.1. Though, defendant in order to substantiate the defence of the defendant in regard to alleged mental disorder of husband of defendant, except leading oral evidence, the defendant has not produced any record to establish that the husband of defendant was suffering from mental disorder. Further, in the course of cross-examination, she has clearly admitted that her husband was elected as member of
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NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 Municipality, Kembhavi in the year 2015 and the transaction between plaintiff and husband of defendant was of the year 2018. The defendant has failed to establish that her husband was suffering from mental disorder. Further, defendant has affixed her signature as an attesting witness to Ex.P.1 and her signature is marked as Ex.P.1(e). From the perusal of evidence of DW.1, it shows the conduct of defendant and the defence taken by the defendant in the written statement is not bonafide. The defendant has denied the registered agreement of sale only with an intention to deprive the legitimate right of the plaintiff. Considering the oral evidence of P.Ws.1 and 2, evidence of DW.1 and documents produced by the plaintiff Ex.P.1 and Ex.P.2, the plaintiff has proved that the husband of defendant agreed to sell the suit property in favour of plaintiff and accordingly, executed Ex.P.1 in favour of plaintiff. Thus, in view of the above discussion, we hold that plaintiff has proved execution of agreement of sale by husband of defendant and also proved that the plaintiff was/is ever ready and willing to perform his part of contract. On the contrary, the husband of defendant committed a breach of contract. Thus, in view of the
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NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 above discussion, we answer point Nos.1 and 2 in the affirmative.
14. Point No.3: The trial Court after considering the entire material was justified in passing the impugned judgment. We do not find any error in the impugned judgment. However, the agreement of sale is of the year 2018. Though the plaintiff has paid an amount of Rs.16,90,000/-, considering escalation of price, we are of the view that if a direction is issued to the plaintiff to pay additional amount of consideration of a sum of Rs.10,00,000/-, no injustice would cause to plaintiff. Hence, in view of the above discussion, we answer point No.3 in the negative.
15. Point No.4: In view of our answer to point Nos.1 to 3 above, we proceed to pass the following:
ORDER i. The Regular First Appeal is dismissed.
ii. The judgment and decree dated 20.04.2023 passed by the Senior Civil Judge and JMFC, Shorapur in O.S.No.121/2021 is confirmed.
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NC: 2024:KHC-K:5314-DB RFA No. 200086 of 2023 iii. Plaintiff is directed to deposit additional consideration amount of Rs.10,00,000/- (Rupees Ten Lakhs only) in addition to the balance consideration amount before the trial Court within a period of two months from today.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(RAJESH RAI K) JUDGE VNR List No.: 1 Sl No.: 10 CT;BN