Karnataka High Court
Pandurang Laxman Matade vs Dayanand Baburao Hull on 6 November, 2025
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NC: 2025:KHC-D:15237
RSA No. 5057 of 2010
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 6TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 5057 OF 2010 (SP)
BETWEEN:
1. PANDURANG LAXMAN MATADE
AGE: 74 YEARS, OCC. PENSIONER,
R/O. SHAHUNAGAR,
DIST. BELAGAVI-590001.
2. SUBHASCHANDRA LAXMAN MATADE
AGE: 66 YEARS, OCC. PENSIONER,
R/O. KESHWAPUR,
HUBBALLI-580024.
3. VISHWANATH LAXMAN MATADE
AGE: 61 YEARS, OCC. SERVICE,
R/O. 1631, KOPPAD GALLI,
VEGATABLE MARKET,
Digitally
signed by BAILHONGAL-590001.
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date: ...APPELLANTS
2025.11.12
10:43:07
+0530
(BY SRI. RAMESH I. ZIRALI, ADVOCATE)
AND:
1. DAYANAND BABURAO HULL
AGED ABOUT 30 YEARS,
OCC. STUDENT, R/O. KHASBAG,
DIST. BELAGAVI-590001.
2. SMT. SHANTABAI W/O. BABURAO HULL,
AGE: 55 YEARS, OCC. H/W,
R/O. KHASBAG,
DIST. BELAGAVI-590001.
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RSA No. 5057 of 2010
HC-KAR
3. SMT. BASAVANNEWWA @ SUNDANDA
W/O. SHANKAR CHANDU,
AGED ABOUT 46 YEARS, OCC. H/W,
BY HER GPA HOLDER DEFENDANT NO.2.
4. SHIVAJI NAGENDRA PARANDEKAR
AGE: 46 YEARS, OCC. BUSINES,
R/O. 689/C, HULL CHAWL COURT ROAD,
BAILHONGAL,
DIST. BELAGAVI-590001.
5. PADMARAJ NAGENDRA PARANDKAR
AGE: 42 YEARS, OCC. H/W,
R/O. 689/C, HULL CHAWL, COURT ROAD,
BAILHONGAL,
DIST. BELAGAVI-590001.
6. DRAKSHAYINI W/O. SANJU GODAKE,
AGE: 40 YEARS, OCC. H/W,
R/O. 689/C, HULL CHAWL, COURT ROAD,
BAILHONGAL,
DIST. BELAGAVI-590001.
7. TARAMATI W/O. SHANKAR JORAPUR,
AGE: 51 YEARS, OCC. H/W,
R/O. 689/C, HULL CHAWL, COURT ROAD,
BAILHONGAL,
DIST. BELAGAVI-590001.
8. KRISHNABAI W/O. NAGENDRA PARANDEKAR,
AGE: 69 YEARS, OCC. TAILOR,
R/O. HULL CHAWL, R/O. BAILHONGAL,
DIST. BELAGAVI-590001.
9. AJAY KASHINATH MATADE
AGE: 42 YEARS, OCC. SERVICE,
R/O. PLOT NO.6 AND C FLAT NO.3 NAGAR,
NIVARA PARASHAD, GOREGAO (E),
MUMBAI-400008.
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RSA No. 5057 of 2010
HC-KAR
10. SMT. SAROJ W/O. PRAVEEN TALAVALKAR,
AGE: 51 YEARS, OCC. H/W,
R/O. 3. SARASWATI APARTMENTS,
SADAR BAZAR CAMP SATARA,
MAHARASHTRA STATE-415001.
11. SMT. VANDANA @ VASANTI TAMMARAI LONI,
AGE: 63 YEARS, OCC. H/W,
R/O. GAYATRI DASHAN,
THAKUR COMPLEX,
KANDIVALI, MUMBAI-400008.
12. SMT. REKHA W/O. DEEPAK PATIL,
AGE: 61 YEARS, OCC. H/W,
R/O. 3, SARASWATI APARTMENT,
SADAR BAZAR CAMP SATARA,
MAHARASTRA STATE-415001.
...RESPONDENTS
(BY SRI. S.B. NAIK, ADVOCATE FOR R4, R6 AND R8;
R1, R7, R9 TO R12-NOTICE SERVED; R2, R3 AND R5-
ABATED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.10.2009
PASSED IN R.A.NO.46/2003 ON THE FILE OF CIVIL JUDGE
PRESIDING OFFICER FAST TRACK COURT, BAILHONGAL
CONFIRMING THE JUDGMENT AND DECREE DATED 08.09.2003
PASSED IN O.S.NO.154/1989 THE FILE OF PRL. CIVIL JUDGE
(JR.DN.) AND JMFC BAILHONGAL ALLOWING THE TOP NOTED
APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC-D:15237
RSA No. 5057 of 2010
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel for the appellants.
2. None appears for the respondents.
3. This is the second appeal filed by the appellants/plaintiffs in O.S No.154/1989 and R.A.No.46/2003 assailing the concurrent judgments of the Trial Court and the First Appellate Court. The appellants herein are the legal heirs of the original plaintiff-Pralhad. The said Pralhad was the tenant in the premises owned by defendant Nos.1 to 3. Out of them, defendant Nos.1 and 3 were minors and were represented by defendant No.2 their mother. The defendant Nos.1 to 3 were in requirement of money for their education and other purposes and since the property was in the name of the minors, defendant No.2 filed G & W.C. Nos.8, 9 and 10 of 1988 before the learned Principal Civil Judge, Bailhongal seeking permission to sell the tenanted premises to the respective tenants indicating the sale consideration amount. The G & W.C. Court had granted the permission to sell the tenements as per order dated 06.09.1988 -5- NC: 2025:KHC-D:15237 RSA No. 5057 of 2010 HC-KAR as per Ex.P.2. The said order was preceded by an agreement of sale by defendant No.2 in favour of the plaintiff on 12.02.1988. After the permission was granted by the G & W.C. Court, the plaintiff got prepared the sale deed, draft of the sale deed and along with the balance consideration amount of ₹23,000/-, approached defendant No.2 to come to the sub-registrar's office. At the office of the sub-registrar, defendant No.4 came into picture saying that the sale deed has to be executed by defendant No.2 in the joint name of the plaintiff and himself. The plaintiff denied for the same and therefore, he returned back with the draft sale deed which is at Ex.P.3. Thereafter, defendant No.2 executed a sale deed on the same day i.e. on 13.10.1988 in favour of defendant No.4. Thereafter, the plaintiff filed the present suit before the Trial Court on 14.11.1988 seeking a decree of specific performance of contract of agreement of sale.
4. In the said suit, defendant No.4 appeared before the Court and contented that he was also residing in the tenements as a tenant since more than 20 years and therefore, the elders who were instrumental in achieving the sale of the tenements to the respective tenants had insisted that the name of defendant -6- NC: 2025:KHC-D:15237 RSA No. 5057 of 2010 HC-KAR No.4 also to be included in the sale deed jointly with the plaintiff and the plaintiff having denied the same, the sale was executed in his favour. It was contended that it was the plaintiff who was not ready to enter into the sale deed along with defendant No.4 and therefore, defendant No.2 on behalf of herself and defendant Nos.1 and 3 has executed the sale deed in favour of the defendant No.4.
5. On the basis of the above contentions, issues were framed by the Trial Court and the evidence was led. The following issues were framed by the Trial Court.
"1) Do plaintiffs prove that the defendant Nos. 1 to 3 have agreed to sell the suit property for a consideration of Rs 23.000/- in favour of deceased Pralhad Laxman Matade on 12.2.1988 and executed agreement in writing?
2) Do plaintiffs prove that deceased Pralhad has given an advance amount of Rs 1000/-?
3) Do plaintiffs prove that deceased Pralhad was ready and willing to perform his contract?
4) Do plaintiffs prove that, after the death of deceased they are ready and willing to perform their part of contract?
5) Do plaintiffs prove that they were in possession of the suit property?
6) Whether the plaintiffs are entitled for relief of Specific Performance of Contract?-7-
NC: 2025:KHC-D:15237 RSA No. 5057 of 2010 HC-KAR 6(a) In the alternative, whether the plaintiffs are entitled for refund of earnest money?
7) Does defendant No.4 prove that he has purchased the suit property from the defendant Nos.1 to 3 on 13.3.1988 and he is not liable to execute the sale deed in favour of plaintiffs?
8) Do plaintiffs prove that they were dispossessed by the defendants after the sale deed of defendant No.4 on 13.10.1988?
9) Whether the plaintiffs are entitled for relief of possession?
10) What order or decree?"
6. During pendency of the suit, the original plaintiff died and his legal heirs were brought on record. The son of the plaintiff was examined before the Trial Court as PW.1 and one witness was examined as PW.2. Defendant No.4 was examined as DW.1 and two witnesses were examined as DW.2 and DW.3. Ex.P.1 to 46 and Ex.D.1 to 11 were marked in evidence.
7. After hearing the arguments, the Trial Court came to the conclusion that though the agreement between the plaintiffs and defendant Nos.1 to 3 is proved, the ready and willingness of the plaintiff was not proved and therefore, it declined to grant the relief of specific performance but ordered the refund of the -8- NC: 2025:KHC-D:15237 RSA No. 5057 of 2010 HC-KAR earnest money of ₹1,000/- along with interest at the rate of 6% per annum.
8. Being aggrieved, the legal heirs of the plaintiff approached the First Appellate Court in R.A.No.46/2003 and by the impugned judgment, the First Appellate Court has confirmed the judgment of the Trial Court.
9. Being aggrieved by the same, the appellants have approached this Court and on hearing, the following substantial questions of law were framed by this Court on 06.01.2016.
"1) Whether the Courts below were justified in holding that the plaintiff had not proved his case under Section 16(c) of the Specific Relief Act, 1963?
2) Whether the Courts below were justified in not exercising discretion in favour of the plaintiff for the purpose of granting relief of specific performance of agreement to sell dated 12.02.1988?"
10. The question that arises in this appeal is whether the plaintiff has proved his ready and willingness to perform his part of the contract and the Trial Court and the Appellate Court did not exercise discretion in favour of the plaintiff. -9-
NC: 2025:KHC-D:15237 RSA No. 5057 of 2010 HC-KAR
11. It is worth to note that the execution of the agreement of sale dated 12.02.1988 is admitted. Defendant Nos. 1 to 3 have not denied the said agreement. Therefore, there cannot be any doubt about the proof of the agreement of sale dated 12.02.1988, which is produced at Ex.P.1.
12. The evidence on record would show that when the plaintiff along with the draft sale deed as per Ex.P.3 went to the sub-registrar's office, defendant No.4 had accompanied defendant No.2 and according to the evidence of defendant No.4 and his witnesses, the elders who were there and who were instrumental in selling the tenements to the respective tenants, insisted that the name of defendant No.4 also to be included in the sale deed. On that ground, in Ex.P.3 the name of defendant No.4 was also included along with the plaintiff. But the plaintiff did not agree that the name of defendant No.4 also to be included. It is pertinent to note that the plaintiff did not enter the witness box since he was no more. It is evident that PW.1 was not present at the time of the incident which took place at the sub-registrar's office. Therefore, his testimony so far as the
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NC: 2025:KHC-D:15237 RSA No. 5057 of 2010 HC-KAR event which occurred at the sub-registrar's office may not be of much relevance.
13. When we examine the testimony of DW.2 and DW.3, who are the witnesses who were present at that time, they say in their examination-in-chief that the elders who were there insisted that the name of defendant No.4 also to be included in the sale deed and for which, the plaintiff did not agree. Curiously, in the cross-examination of DW.2 and DW.3, no question is put to them to elicit who were those elders who insisted for the inclusion of the name of defendant No.4. The cross-examination goes on the footing that it was the defendant No.4 who started insisting for inclusion of his name.
14. It is relevant to note that the suit schedule property is one of the tenement in a chawl and there were several of the tenants occupying it. The perusal of the order in G & W.C.No.10/1988 Ex.P.2 shows the same. There were as many as more than ten tenants in the premises and since defendant Nos.1 to 3 were not interested in staying at Bailhongal and as such they wanted to sell it for the benefit of the minors. When the events are examined in the above backdrop, the
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NC: 2025:KHC-D:15237 RSA No. 5057 of 2010 HC-KAR involvement of the so-called elders as contended by DW.1 to 3 plays a vital role and it is not known what had transpired between the plaintiff, defendant Nos.1 to 3 and the elders who all finalized with the agreement. In that view of the matter, seeking the details of those elders was one of the crucial requirements in the cross-examination of DW.2 and DW.3. Therefore, from the perusal of the testimony of the witnesses, it is evident that when the plaintiff was asked to include defendant No.4 also, he had withdrawn and thereafter, they proceeded with executing the sale deed on the same day.
15. The testimony of PW.1 shows that subsequent to death of the original plaintiff, defendant No.4 has occupied the suit premises which was a tenanted premises. Therefore, the present appellants also do not have the possession over the property. In the light of this, the discretion exercised by the Trial Court and the First Appellate Court in coming to the conclusion that the plaintiffs are not entitled for the relief of specific performance appears to be proper. Secondly, the ready and willingness as deciphered and understood by the Trial Court and the First Appellate Court appears to be that when the elders who
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NC: 2025:KHC-D:15237 RSA No. 5057 of 2010 HC-KAR were there, offered the plaintiff to include the name of defendant No.4 also, he had refused and withdrawn. It may be an afterthought of the plaintiff that he was insisting for the performance of the contract as per Ex.P.1. When we examine the views of the Trial Court and the First Appellate Court, it appears that both the Courts have come to the same conclusion after appreciating the evidence on record. In second appeal, this Court cannot unsettle the appreciation of the evidence made by both the Trial Court and the First Appellate Court concurrently, unless it is established that such appreciation is perverse. Therefore, when the testimony on record is closely examined, it is not possible to differ with the views taken by the Trial Court and the First Appellate Court. Of course the room for concluding that the plaintiff was not ready and willing to perform his part of the contract is involved in a very short span of time, but ultimately the discretion which was available under Section 20 was also a subject matter and therefore, when the legal heirs of the plaintiffs had lost the possession over the property, the discretion leans in favour of defendant No.4. Moreover the sale consideration which was agreed at ₹24,000/- and out of it, only a sum of ₹1,000/- was paid by the plaintiff.
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16. It is pertinent to note that the agreement was entered into on 12.02.1988, permission by the G & W.C. Court was granted on 06.09.1988 and the sale deed was executed on 13.10.1988 and on the same day, the sale deed in favour of the plaintiff could not be executed. Keeping in view the turn of events and the quantum of the earnest money which was paid, this Court is of the view that the rate of interest of 6% imposed by the Trial Court and the First Appellate Court while returning the earnest money is not proper and as such the same has to be enhanced to 12%. Under these circumstances, the appeal deserves to be allowed in part while answering the substantial questions of law Nos.1 and 2 in the affirmative. The judgment of the First Appellate Court stands modified accordingly.
SD/-
(C M JOSHI) JUDGE SSP CT:PA LIST NO.: 1 SL NO.: 37