Nanjappa vs Jayalakshmi Sathyanarayana
2021 Latest Caselaw 1192 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 19TH DAY OF JANUARY, 2021

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                RSA NO.1030 OF 2015(SP)

BETWEEN:

1 . NANJAPPA
S/O LATE SRI. KANTAIAH
AGED ABOUT 67 YEARS

2 . SMT.MAHADEVAMMA
W/O NANJAPPA
AGED ABOUT 58 YEARS

3 . NAGARATHANA
D/O NANJAPPA
AGED ABOUT 27 YEARS

4 . NATARAJA
S/O NANJAPPA
AGED ABOUT 27 YEARS

ALL ARE RESIDING AT
BASAVESHWARA TEMPLE ROAD
NEAR LINGAYATH SAMUDAYA BHAVAN
HINKAL, MYSORE - 570 017

                                             ....APPELLANTS

(BY SRI. SYED ABDUL SABOOR, ADVOCATE)
                               2


AND:

JAYALAKSHMI SATHYANARAYANA
W/O S.P SATHYANARAYANA
AGED ABOUT 64 YEARS
R/AT DOOR NO.2
4TH MAIN ROAD
JAYALASKHMIPURAM
MYSORE - 570 012

                                              ....RESPONDENT

(RESPONDENT SERVED AND UNREPRESENTED)

       THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST

THE JUDGMENT & DECREE DATED 13.03.2015 PASSED IN RA

NO.243/2013 ON THE FILE OF THE PRESIDING OFFICER, FAST

TRACK COURT, HUNSUR, MYSURU DISTRICT, DISMISSING THE

APPEAL    AND   CONFIRMING   THE   JUDGMENT   AND   DECREE

DATED:07.06.2013 PASSED IN OS NO.312/2006 ON THE FILE OF

THE SENIOR CIVIL JUDGE, HUNSUR.


       THIS RSA COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
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                          JUDGMENT

The captioned appeal is filed by the unsuccessful

defendants who are questioning the judgment and decree of

the Courts below granting discretionary relief of specific

performance in favour of the plaintiff.

2. The facts leading to the case are as under:

The respondent/plaintiff filed a suit for specific

performance of contract in O.S.No.312/2006 in respect of

agricultural land bearing Sy.No.27/2 which is assigned new

Sy.No.111 totally measuring 4 acres. The respondent/plaintiff

specifically contended that the appellants/defendants are

absolute owners of the suit schedule property. It was also

specifically pleaded in the plaint that the katha and the

revenue records stand in the name of appellant

No.1/defendant No.1. The respondent/plaintiff has further

pleaded that the appellants/defendants offered to sell the suit

schedule property and the respondent/plaintiff agreed to

purchase the same and accordingly, the present

appellants/defendants entered into an agreement for sale on

05.07.2005 for a valuable sale consideration of Rs.1,75,000/-

per acre. The respondent/plaintiff has further pleaded that the

sale consideration was fixed at Rs.7,00,000/- for 4 acres. The

appellants/defendants received an advance amount of

Rs.25,000/- and it was further agreed that the balance

amount would be paid at the time of registration.

The respondent/plaintiff further specifically contended

that the appellants/defendants while executing the suit

agreement assured the respondent/plaintiff that the suit

schedule property is not at all encumbered and thereby agreed

to handover the original title deed at the time of registration.

It was further stated that the transaction was agreed to be

completed within a period of three months. The

respondent/plaintiff has further pleaded that on 02.08.2005,

the appellants/defendants have received a sum of Rs.10,000/-

for legal necessity.

The grievance of the respondent/plaintiff before the

Court below is that inspite of having agreed to sell the suit

schedule property within a period of three months, the

appellants/defendants failed to perform their part of contract

and this compelled the respondent/plaintiff to issue a legal

notice which was served on all the appellants/defendants. The

appellants/defendants have issued a reply notice and by doing

so, the appellants/defendants have stoutly denied the contents

of the legal notice. This compelled the respondent/plaintiff to

file a suit for specific performance in O.S.No.312/2006.

The appellants/defendants, on receipt of summons,

contested the proceedings by filing written statement. The

appellants/defendants stoutly denied the entire averments

made in the plaint. The appellant No.1 specifically contended

that their joint family comprises other members who are not

party to the suit agreement. There was denial of the very

execution of the suit agreement in favour of the defendant

No.1. The appellants/defendants have taken a specific

contention that they have not at all entered into any

transaction with the respondent/plaintiff. The

appellants/defendants have specifically stated in the written

statement that they offered to sell the suit schedule property

to one Chinnabuddi, who has paid a sum of Rs.15,000/- and

Rs.10,000/- on various dates. It was specifically pleaded in

the written statement that since they have not entered into

any transaction with the respondent/plaintiff, they are ready

to repay the amount paid.

The appellants/defendants also contended that since the

suit schedule property is a granted land, there is non-

alienation clause in the grant order and thereby the

respondent/plaintiff cannot enforce the suit agreement in the

background of non-alienation clause still in operation. The

appellants/defendants also contended that the sale price

reflected in the suit agreement is inadequate. They have

specifically contended that one acre of land is worth more than

Rs.25,00,000/-. On these set of defences, the present

appellants/defendants sought for dismissal of the suit.

Based on the rival pleadings, the Trial Court formulated

the following issues:

     1)      Whether    the      plaintiff    proves      that   the
     defendants 1 to 4 have agreed to sell the suit
     schedule       property        in       her       favour    for
     Rs.7,00,000/-         for   their   legal     necessity     on
     5/7/2005      after     receiving       earnest     money    of
     Rs.25,000/- from her?

     2)      Whether    the      plaintiff    proves      that   the
     defendants      have        received      further    sum     of

Rs.10,000/- for their legal necessity on 2/8/2005 from her?

3) Whether the plaintiff proves that she has been ready and ever ready and willing to perform her part of contract from the date of agreement of sale time the date of fling of the suit?

4) Whether the plaintiff is entitled for specific performance of contract?

5) What order or decree?"

The respondent/plaintiff in support of her contention has

lead in evidence through her GPA holder as PW.1. She has

also examined one independent witness who is a signatory to

the suit agreement as PW.2. To corroborate ocular evidence,

the respondent/plaintiff has relied on documentary evidence

vide Exs.P-1 to P-11. The appellants/defendants in support of

their contention have examined the appellant No.1 as DW.1

and by way of rebuttal evidence have relied on documentary

evidence vide Exs.D-1 and D-2.

The Trial Court having examined the oral and

documentary evidence has come to conclusion that the

respondent/plaintiff has proved that the appellants/defendants

agreed to sell the suit schedule property in her favour for a

total consideration of Rs.7,00,000/- and accordingly, she has

paid a sum of Rs.25,000/- as an advance amount. The Trial

Court has further answered issue No.3 in the affirmative by

holding that the respondent/plaintiff has proved that she was

ever ready and willing to perform her part of contract. The

Trial Court has come to conclusion that the

appellants/defendants offered to sell the suit schedule

property for legal necessity. The Trial Court having answered

issue Nos.1 to 3 in the affirmative has negatived the

contention raised by the appellants/defendants in regard to

total denial of execution of suit agreement.

During the pendency of the suit, the respondent/plaintiff

to establish the signatures of the appellants/defendants to the

suit agreement sought to refer the disputed signatures of the

appellant No.1/defendant No.1 on the suit agreement vide

Ex.P-2 with the admitted signatures. The Commissioner

having secured the specimen of the disputed signature of

appellant No.1/defendant No.1 with the admitted signature

has submitted a report and in the said report, it is opined that

the disputed signatures on Exs.D-1 to D-5 and the specimen

signature are made by one and the same person. The learned

Judge having examined the Commissioner's report which was

not at all objected by either parties and in absence of rebuttal

evidence to displace the cogent and clinching evidence lead in

by the respondent/plaintiff in regard to due execution of the

suit agreement for legal necessity and also on readiness and

willingness has come to conclusion that the

respondent/plaintiff proved the due execution of the suit

agreement as per Ex.P-2 and has also come to conclusion that

the respondent/plaintiff has proved her readiness and

willingness to perform her part of contract.

The Trial Court having examined the rebuttal evidence

has further recorded a finding that though

appellants/defendants have taken a alternate plea that the

transaction entered into was with one Chinnabuddi, however,

the same is not at all substantiated by the

appellants/defendants. The Trial Court has also come to

conclusion that the alternate defence that the market value of

one acre of land is Rs.25,00,000/- is also not substantiated by

producing cogent and clinching evidence. In absence of

rebuttal evidence, the Trial Court has answered issue Nos.1 to

3 in the affirmative and thereby has proceeded to decree the

suit granting discretionary relief of specific performance and

thereby directing the appellants/defendants to execute sale

deed in favour of the respondent/plaintiff. The said judgment

and decree passed in O.S.No.312/2006 was questioned by the

appellants/defendants before the Appellate Court in

R.A.No.243/2013.

The Appellate Court being a final fact finding authority

has reassessed the entire oral and documentary evidence on

record. The Appellate Court at para 27 of the judgment has

come to conclusion that the reasons and findings recorded by

the Trial Court are based on proper appreciation of pleadings

and evidence on record and the discretion exercised is based

on sound judicial principles. The Appellate Court was of the

view that the Trial Court exercising discretion in granting

specific performance of contract has not committed any error

or illegality. On these set of reasonings, the Appellate Court

has proceeded to concur with the findings recorded by the

Trial Court and has dismissed the appeal.

The appellants/defendants being aggrieved by the

concurrent findings of the Courts below are before this Court.

3. Learned counsel appearing for the

appellants/defendants would vehemently argue and contend

before this Court that both the Courts below grossly erred in

non-examining the suit agreement as per Ex.P-2. He would

submit to this Court that the suit agreement is incomplete and

all the appellants/defendants have not signed the suit

agreement. This material aspect is not at all considered by

the Courts below. Learned counsel would also submit to this

Court that both the Courts below erred in granting

discretionary relief of specific performance ignoring the fact

that the contract itself is not enforceable since there is a non-

alienation clause prohibiting the appellants/defendants from

alienating the suit schedule property for a period of 15 years.

4. Learned counsel would further submit to this Court

that there is absolutely no evidence adduced by the

respondent/plaintiff to establish that the suit agreement was

executed by the appellants/defendants for legal necessity. All

these significant details are totally ignored and thereby the

conclusion arrived at by the Courts below suffers from serious

perversity and would give rise to substantial questions of law.

To buttress his argument, learned counsel has relied on the

judgment rendered in Jayakantham & Others vs.

Abaykumar (Civil Appeal No.3049 of 2017).

5. Heard the learned counsel appearing for the

appellants/defendants and perused the records.

6. The respondent/plaintiff has filed the present suit

seeking enforcement of contract. It is the specific case of the

respondent/plaintiff that the appellants/defendants agreed to

sell the suit schedule property for a sale consideration of

Rs.7,00,000/- and accordingly, have received a sum of

Rs.25,000/- as an advance sale consideration. The

respondent/plaintiff to prove that the appellants/defendants

have executed the present suit agreement as per Ex.P-2 for

legal necessity has lead in evidence through her GPA holder-

PW.1 and has also examined one witness as PW.2. Since the

appellants/defendants have totally denied the execution of the

suit agreement, the respondent/plaintiff was compelled to

seek an expert opinion to verify the disputed signatures of

appellant No.1/defendant No.1 and the same was referred to

fingerprint expert who has compared the admitted signature

with the disputed signature and has submitted a report. The

report clearly indicates that the appellant No.1/defendant No.1

has executed the suit agreement.

7. The ocular evidence of PW.1 and PW.2 coupled with

the Commissioners report as per Ex.C-1 would clearly

establish that the appellants/defendants for legal necessity

entered into an agreement for sale and have accordingly

received a sum of Rs.25,000/- as advance amount. The Trial

Court has meticulously dealt with the ocular evidence of rival

parties and having appreciated the documentary evidence on

record has also recorded a finding that the agreement was

executed by the appellants/defendants for legal necessity.

The Trial Court has also recorded a finding that the

respondent/plaintiff has proved that she was ever ready and

willing to perform her part of contract.

8. Both the Courts below have recorded a categorical

finding that the appellants/defendants having taken a plea

that they have not entered into transaction with the

respondent/plaintiff have failed to produce clinching evidence

to substantiate their case. Both the Courts have also come to

conclusion that the alternate defence that the market value of

suit schedule property is Rs.25,00,000/- per acre is also not

substantiated. The appellants/defendants have failed to

establish the defence set up in the written statement. Both

the Courts on meticulous examination of oral and

documentary evidence have come to conclusion that the

respondent/plaintiff is entitled for discretionary relief and

specific performance.

9. Further, the Appellate Court having examined the

records more particularly Ex.D-1 has recorded a categorical

finding that the non-alienation clause prohibiting the

appellants/defendants from dealing with the suit schedule

property for a period of 15 years is in fact completed and

there is no impediment for the appellants/defendants to

execute sale deed by receiving the balance sale consideration.

This defence which was set up by the appellants/defendants is

also dealt with by the Courts below holding that there is no

prohibition from alienating the suit schedule property. The

material on record shows that plaintiff's conduct was

blemishless throughout entitling him to specific relief. The

plaintiff has succeeded in establishing the necessary

ingredients enabling the Court to exercise discretion in his

favour judiciously. The defendant No.1 having received the

sale consideration on behalf of the family for legal necessity

has set up a false defence by totally denying the very

execution of the suit agreement. He has also set up a defence

that he is not the absolute owner and that their family

members have also got interest in the suit schedule property.

The material on record also indicates that the defendants does

not come up with clean hands. All these material aspects are

dealt with by the Courts below. The trial Court has exercised

discretion and has proceeded to grant the relief of specific

performance. The findings arrived at by the trial Court is

concurred with by the appellate Court. The concurrent findings

of fact in regard to due execution of the suit agreement and

readiness and willingness are dealt by the Courts below. This

Court while exercising jurisdiction under Section 100 of CPC

cannot reassess the findings of fact recorded by the Courts

below. In that view of the matter, the grounds urged in the

appeal memo would not give raise to any substantial questions

of law.

10. Accordingly, the appeal being devoid of merits is

dismissed. No order as to costs.

Sd/-

JUDGE

CA