Karnataka High Court
Smt Shivamma vs Smt Girija Devi on 5 January, 2021
Author: S.Sujatha And Magadum
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A.No.1337/2011
BETWEEN :
1. SMT.SHIVAMMA
W/O LATE MUDDAPPA
AGED ABOUT 56 YEARS
2. SMT.M.SOMAMMA
D/O LATE MUDDAPPA
AGED ABOUT 35 YEARS
3. SMT.M.PAPAMMA
D/O LATE MUDDAPPA
AGED ABOUT 31 YEARS
4. SHRI M.KODANDA
S/O LATE MUDDAPPA
AGED ABOUT 29 YEARS
5. SHRI M.THULSIRAM
S/O LATE MUDDAPPA
AGED ABOUT 27 YEARS
6. SHRI M.VASU
S/O M.MUDDAPPA
AGED ABOUT 25 YEARS
ALL ARE R/AT NO.32,
1ST CROSS ROAD, GIRIYABAVIPALYA,
-2-
RAGHAVENDRA NAGARA,
NAZARABAD MOHALLA
MYSORE-570010 ...APPELLANTS
(BY SRI G.PAPIREDDY, ADV.)
AND :
SMT.GIRIJA DEVI
W/O JYOTHILINGAIAH
AGED ABOUT 36 YEARS,
R/AT NO.97, 7TH MAIN ROAD,
JAYALAKSHMIPURAM,
DEVARAJA MOHALLA
MYSORE CITY-570001 ...RESPONDENT
(BY SRI M.R.RAJAGOPAL, ADV. FOR C/R.)
THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 R/W
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 23.04.2011 PASSED IN O.S.No.137/2006 ON THE FILE
OF THE I ADDITIONAL CIVIL JUDGE, SMALL CAUSES AND
SENIOR CIVIL JUDGE, MYSORE, DECREEING THE SUIT FOR
SPECIFIC PERFORMANCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
04.11.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, S. SUJATHA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal by the defendants is directed against
the judgment and decree dated 23.04.2011 passed in
O.S.No.137/2006 on the file of the I Addl. Civil Judge,
Small Causes and Senior Civil Judge, Mysuru ['Trial
Court' for short].
2. For the sake of convenience, the parties are
referred to as per their status before the Trial Court.
3. The plaintiff has filed the suit for the relief of
specific of performance of agreement of sale dated
22.03.2004 against the defendants-appellants herein.
The Trial Judge has decreed the suit directing the
defendants to execute the registered sale deed within a
period of three months after receiving the balance sale
consideration amount of Rs.17,64,136/- in terms of the
agreement of sale dated 22.03.2004 and renewed
agreement of sale dated 05.04.2004.
3. The suit schedule property is all that piece
and parcel of the landed property bearing Revenue
Sy.Nos.68/1, 68/2 and 68/3, totally measuring 3 acres
27 guntas of dry land situated at Sathegalli Village,
Kasaba Hobli, Mysore Taluk bounded on the East by:
Land in Sy.No.86, West by: Land in Sy.No.61, South by:
Water-Course and Garden land of Javarappa, North by:
Land in Sy.No.67.
4. Plaint averments in brief are that the
defendants are the absolute owners of the land bearing
Sy.Nos.68/1, 68/2 and 68/3, totally measuring 3 acres
27 guntas of dry land situated at Sathegalli Village,
Kasaba Hobli, Mysore Taluk. The plaintiff has agreed to
purchase the suit schedule property for a valuable sale
consideration of Rs.24,00,000/- and accordingly,
agreement of sale was executed by the defendants. At
the time of the executing the sale agreement, the
plaintiff had paid Rs.50,000/- on 22.03.2004
subsequently, on 05.04.2004, a sum of Rs.4,50,000/-
and on 30.07.2005, a sum of Rs.1,35,864/-, in all
totally a sum of Rs.6,35,864/- and the remaining
balance amount of Rs.17,64,136/- was agreed to be
paid at the time of execution of the registered sale deed.
It was averred that the defendants had agreed to get the
suit schedule property converted into non-agricultural
purposes within a year from 05.04.2004 at their costs.
The plaintiff was requesting the defendants to get the
permission from the concerned authority for converting
the suit schedule property into non-agricultural
purpose. It was contended that the plaintiff was always
ready and willing to perform her part of the contract but
the defendants failed to perform their part of the
contract. Hence, a legal notice dated 03.11.2005 was
issued calling upon the defendants to execute the
registered sale deed. In response to the said notice, the
defendants have issued reply notice admitting the
execution of the agreement of sale and the receipt of
earnest deposit amount on 19.11.2005 but denying the
part payment of sale consideration of Rs.4,50,000/-
made on 05.04.2004. Again on 28.11.2005, the plaintiff
has caused another notice dated 28.11.2005 stating
that he is ready and willing to get the registered sale
deed executed in his favour after paying the balance
sale consideration. Despite the same, defendants have
not come forward to execute the registered sale deed. It
was contended that the plaintiff was constrained to file
the suit for the aforesaid reasons.
5. On issue of summons, the defendants
appeared before the Trial Court through their learned
counsel. Written statement was filed denying the plaint
averments. The defence set up was that the husband of
the plaintiff has approached the defendants and forced
them to execute the agreement of sale. Husband of the
plaintiff Sri.Jyothilingaiah got the agreement of sale
dated 22.03.2004 typed and taken the signature of the
defendants after making the payment of Rs.50,000/-
towards the earnest money deposit. The defendants
were ready to execute the registered sale deed but the
plaintiff and her husband for one or the other reason
were protracting the registration. To clear the loan
raised by the defendants from Krishnarajendra Co-
operative Bank, Mysuru, a request was made to the
plaintiff to pay the balance sale consideration amount
and to get the sale deed registered but the plaintiff and
her husband approached the said bank and paid the
amount towards the loan account of the defendants. At
that time, the plaintiff and her husband got the
signature of the defendants on blank stamp papers. The
plaintiff has misused the said blank stamp papers for
her convenience. Thus, the defendants admitting the
agreement of sale dated 22.03.2004 and the payment of
Rs.50,000/- towards earnest money deposit made at the
time of execution of agreement of sale and
Rs.1,35,864/- towards the loan amount discharged
totally amounting to Rs.1,85,864/-, denied the payment
of Rs.4,50,000/- said to have been made on
05.04.2004.
6. On the basis of the pleadings, issues were
framed by the Trial Court as under:
1. Whether the plaintiff proves that
the defendants have entered into an
agreement of sale of schedule property for
valuable consideration of Rs.24,00,000/- on
22.03.2004?
2. Whether plaintiff proves that she
has paid totally Rs.6,35,864/- as part of sale
consideration to defendants?
3. Whether plaintiff proves she
was/is ready and willing to perform her part
of contract?
4. Whether plaintiff proves that
defendants have agreed to sell the schedule
property after converting it into non-
agricultural land?
5. Whether plaintiff is entitled for
specific performance of contract and
possession of schedule property?
6. What order or decree?
7. The husband of the plaintiff was examined
as PW1. One Sri.C.R.Raghunath was examined as PW2.
32 documents were marked as Ex.P1 to P32. The
defendant No.4 was examined as DW1 and seven
documents were marked as Ex.D1 to D7.
8. On appreciation of oral and documentary
evidence, the Trial Court decreed the suit directing the
defendants to execute the registered sale deed after
receiving the balance sale consideration amount of
Rs.17,64,136/- within a period of three months failing
which plaintiff is entitled to get the sale deed registered
through the Commissioner appointed by the Court.
9. Being aggrieved by the said impugned
judgment and decree, the defendants have preferred the
present appeal.
10. The learned counsel for the
defendants/appellants submitted that the Trial Court
failed to appreciate the finding of the Fast Track Court,
Mysuru in R.A.No.53/2002 while setting aside the
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judgment and decree passed in favour of the defendants
in O.S.No.170/1992, that the suit schedule property
has already been acquired by MUDA and the defendants
cannot have any right to get declaration of their
possession over the property confirmed by this Court in
R.S.A.No.3037/2007.
11. It was argued that the lands being already
vested with the Government, the Trial Court could not
have declared the defendants as the owners of the
property. The grant of specific performance under the
provisions of Specific Relief Act, 1963 being
equitable and discretionary relief, there was no
circumstances established by the plaintiff to exercise
the discretionary power. The learned Trial Judge
appreciating the endorsement issued by MUDA marked
at Ex.D2 and reversal of the judgment and decree
passed in O.S.No.170/1992 in R.A.No.53/2002 by the
Fast Track Court, Mysore ought to have rejected the
- 11 -
reliefs claimed non suiting the plaintiff. It was
submitted that RSA No.3037/2007 was filed against the
judgment of R.A.No.53/2002 and the same came to be
dismissed by the judgment and decree dated
04.03.2008. The Trial Court cannot grant relief of
specific performance which cannot be acted upon by the
defendants in view of subsequent developments i.e.,
passing of the judgment by the Hon'ble High Court. The
title to the suit property was based on the judgment and
decree passed in O.S.No.170/1992 and once the
judgment and decree has been reversed by the Appellate
Court, the defendants would not get any right to
transfer the suit property in favour of the plaintiff and
cannot execute the sale deed. Thus, it was argued that
unenforceable agreement has been given effect to,
contrary to the judgment of this Court in RSA
No.3037/2007. Learned counsel stoutly denied the
receipt of Rs.4,50,000/- by the defendants as per
Ex.P.3.
- 12 -
12. Learned counsel for the plaintiff/respondent
argued that the Trial Court on analyzing the material
evidence in right perspective has decreed the suit. The
defence of acquisition of suit schedule property by
MUDA is set up to defeat the contractual agreement. No
notification was placed by the defendants in support
their defence, indeed, such defence was not raised in
the written statement. Though the execution of the
registered sale agreement dated 22.03.2004 was
admitted by the defendants in paragraph Nos.6 and 8 of
the written statement, they have denied the terms of the
agreement inasmuch as conversion of agricultural land
to non-agricultural purposes said to have been agreed
upon by the defendants. Further issuing the receipt
dated 05.04.2004 for having received further sum of
Rs.4,50,000/- was denied on the pretext that the
plaintiff had forced to issue a blank stamp paper with
the signature of the defendants at the time of making
- 13 -
payment of Rs.1,35,864/- to the bank which indeed has
not been duly proved. The entire defence taken in the
written statement and the evidence let in before the
Trial Court was altogether on different grounds. It is for
the first time, the defendants have raised the plea that
they are not the owners of the schedule property in view
of acquisition of the same by the MUDA which is not
permissible. Accordingly, learned counsel sought for the
dismissal of the appeal confirming the impugned
judgment and decree.
13. Heard the learned counsel appearing for the
parties and perused the records.
14. The questions that would arise for our
consideration are:-
1) Whether the plaintiff has paid
Rs.6,35,864/- totally towards the part sale
consideration?
2) Whether the agreement of sale
dated 22.03.2004 (Ex.P2) is enforceable
notwithstanding the judgment and decree
- 14 -
passed by this Hon'ble Court in RSA
No.3037/2007?
3) Whether the impugned judgment
and decree passed by the Trial Court is
justifiable?
Re. Point No.1
15. The execution of Ex.P2 - agreement of sale,
agreeing to sell the suit schedule property in favour of
the plaintiff for a sale consideration of Rs.24,00,000/-
receiving the earnest money deposit of Rs.50,000/- is
not in dispute. The payment of Rs.1,35,864/- by the
plaintiff to the Krishnarajendra Co-operative Bank,
Mysuru on 30.07.2005 to clear the loan raised by the
defendants, mortgaging the suit schedule property is
also not in dispute. DW.1-Sri. Kodanda in his evidence
has categorically stated that the plaintiff was required to
get the registered sale deed executed within a period of
three months as per the terms of the agreement to sell
dated 22.03.2004. The defendants were always ready to
receive the balance sale consideration amount.
- 15 -
However, the plaintiff was postponing the same for one
or the other reason. The defendants had raised loan
from Krishnarajendra Co-operative Bank, Mysuru, after
mortgaging the suit property. As the said loan was not
discharged, the bank has issued the notice to take
possession of the suit property vide public notice dated
22.07.2005. At that time, they have requested the
plaintiff to pay the balance sale consideration amount
and to get the sale deed registered in her name.
However, the plaintiff has paid only loan amount of
Rs.1,35,864/- to the bank and has not come forward to
pay balance sale consideration amount and to get the
sale deed registered in her favour. Before making the
payment towards the loan amount of Rs.1,35,864/-, the
plaintiff demanded for a letter to be drafted and for that
purpose, a stamp paper brought earlier by the said
witness was decided to be used. On the said blank
stamp paper, the defendants were forced to sign on the
assurance made by the plaintiff and her husband that
- 16 -
the balance sale consideration amount shall be paid
within a short time. That stamp paper has been
misused by them towards the payment of Rs.4,50,000/-
further amount said to have been paid towards the part
sale consideration in addition to Rs.50,000/- paid at the
time of the execution of the agreement of sale and
Rs.1,35,864/- towards the loan amount discharged.
16. Thus, the defendants have denied the
payment of Rs.4,50,000/- by the plaintiff towards
additional part sale consideration as per Ex.P3 dated
05.04.2004. It is hard to believe the defence of the
defendants in this regard since the burden which lies on
the defendants to establish the factum of taking
signatures of the defendants on the blank papers has
not been discharged except the ipse dixit statement of
the DW1. In this regard, it is beneficial to refer to the
evidence of DW1. The relevant portion of which is
extracted hereunder:
- 17 -
".....DzÀgÉ ªÁ¢AiÀÄÄ ¨ÁåAQUÉ ¥ÁªÀw
ªÀiÁqÀ¨ÉÃQgÀĪÀ ªÉÆvÀÛªÀ£ÀÄß ªÀiÁvÀæªÉà ¥Àæ¸ÀÄÛvÀ ¥ÁªÀw
ªÀiÁqÀ®Ä ¸ÁzsÀåªÉAzÀÄ C£ÀAvÀgÀ G½PÉ ºÀtªÀ£ÀÄß
¥ÁªÀw¹ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß §gɹPÉƼÀÄîªÀÅzÁV ¨sÀgÀªÀ¸É
¤ÃrzÀgÀÄ. £ÀªÀÄä ¥ÀgÀªÁV ¨ÁåAQUÉ ¥ÁªÀw
ªÀiÁqÀĪÀÅzÀPÉÌ ªÀÄÄAZÉ MAzÀÄ ¥ÀvÀæ §gÉzÀÄPÉÆqÀ¨ÉÃPÉAzÀÄ
MvÁÛAiÀÄ ªÀiÁrzÀgÀÄ. D ¸ÀAzÀ¨sÀðzÀ°è £Á£ÀÄ »AzÉ
AiÀiÁªÀÅzÉÆà ªÀåªÀºÁgÀPÉÌAzÀÄ vÀA¢zÀÝ bÁ¥Á
PÁUÀzÀUÀ¼À£ÀÄß G¥ÀAiÉÆÃV¸À®Ä wêÀiÁð£ÀªÁ¬ÄvÀÄ.
¨ÉgÀ¼ÀZÀÄÑ ªÀiÁr¸À®Ä £ÀqɬÄj JAzÁUÀ ¸Àé®à
¢£ÀUÀ¼À°èAiÉÄà £ÉÆÃAzÁ¬ÄvÀ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß
ªÀiÁr¹PÉƼÀÄîªÀÅzÀjAzÀ K£À£ÀÆß ¨ÉgÀ¼ÀZÀÄÑ ªÀiÁr¸ÀĪÀÅzÀÄ
¨ÉÃqÀªÉAzÀÄ ªÁ¢ ªÀÄvÀÄÛ DPÉAiÀÄ ¥Àw MvÁÛAiÀÄ
ªÀiÁrzÀgÀÄ. ¨ÁåAQ£À ¸Á®ªÀ£ÀÄß vÀÄvÁðV ªÀÄgÀÄ ¥ÁªÀw
ªÀiÁqÀ¢zÀÝ°è ªÀģɬÄAzÀ £ÀªÀÄä£ÀÄß ºÉÆgÀ ºÁPÀĪÀ
¸ÀAzÀ¨sÀð EzÀÝ PÁgÀt £ÁªÀÅ ªÁ¢ ªÀÄvÀÄÛ DPÉAiÀÄ ¥Àw
ºÉýzÀAvÉ SÁ° PÁUÀzÀPÉÌ ¸À» ªÀiÁrPÉÆmÉÖªÀÅ. D£ÀAvÀgÀ
ªÁ¢ ªÀÄvÀÄÛ DPÉAiÀÄ ¥Àw £ÀªÀÄä ¥ÀgÀªÁV ²æÃ
PÀȵÀÚgÁeÉÃAzÀæ ¨ÁåAQ£À°è ¢: 30-07-2005 gÀ°è
gÀÆ.1,35,864-00 UÀ¼À£ÀÄß ¥ÁªÀw ªÀiÁrzÀgÀÄ. DzÀgÉ
D£ÀAvÀgÀªÀÇ ¸ÀºÀ ªÁ¢AiÀĪÀgÀÄ PÀæAiÀÄzÀ G½PÉ ºÀtªÀ£ÀÄß
¥ÁªÀw¹ ±ÀÄzÀÞ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß §gɹPÉƼÀî®Ä
ªÀÄÄAzÁUÀ°®è."
- 18 -
In the cross-examination, it is admitted by DW1 as
under:
".....ªÁ¢AiÀÄ UÀAqÀ £Á£ÀÄ ªÀÄwÛvÀgÀÄ ¸ÉÃj
ZÀ£ÀߥÀlÖtzÀ°ègÀĪÀ ªÁ¢AiÀÄ ªÀÄ£ÉAiÀÄ ºÀwÛgÀ ºÉÆÃV
UÀ¯ÁmÉ ªÀiÁqÀÄwÛzÉÝÃ£É JAzÀÄ ZÀ£ÀߥÀlÖtzÀ ¥ÉÆðøï
oÁuÉUÉ zÀÆgÀÄ PÉÆnÖgÀĪÀÅzÀÄ ¤d.
...............ªÁ¢ PÀæAiÀÄ ¥ÀvÀæ §gÉzÀÄPÉÆqÀ®Ä £ÉÆÃnøï
PÉÆqÀĪÀÅzÀQÌAvÀ ªÉÆzÀ®Ä £Á£ÀÄ ªÁ¢UÉ SÁ° ¥ÉÃ¥Àgï
ªÉÄÃ¯É ¸À» ªÀiÁr¹PÉÆArzÁÝgÉAzÀÄ ªÁ¢AiÀÄ ªÉÄïÉ
£Á£ÀÄ ¥ÉÆðøÀjUÉ zÀÆgÀÄ PÉÆnÖgÀĪÀÅ¢®è, £Á£ÀÄ
ZÉ£ÀߥÀlÖt £ÉÆÃrgÀÄvÉÛãÉ."
17. It is apparent that Ex.P3, receipt dated
05.04.2004 consists of 2 pages, typed on stamp papers
of Rs.100/- each issued by State Bank of Mysuru on
behalf of Government of Karnataka dated 29.03.2004 in
the name of Sri.Kodanda M. Muddappa. In the first
page, no signatures are found. All the six defendants
have subscribed their signatures in the second page in
the presence of two witnesses. The said deed has been
drafted by Sri.B.Krishnappa, Advocate, Abbur Village,
- 19 -
Channapatna Taluk. One of the witness to the said
Ex.P3, Sri.G.R.Raghunath has been examined as PW2
who has categorically stated that on 05.04.2004, the
defendants have received Rs.4,50,000/- from the
plaintiff at the residence of the plaintiff, Channapatna.
Nothing is elicited from the mouth of this witness - PW2
to discredit his evidence. The defendants having
admitted their signatures on Ex.P3 have contended that
the signatures were taken by the plaintiff on the blank
stamp papers. The onus shifts on them to prove the
same. Purchasing the stamp papers in the name of DW1
on 29.03.2004 and subscribing the signatures on only
one stamp paper would suggest the receipt of the
amount of Rs.4,50,000/- since ordinarily no prudent
person would hand over a blank stamp paper
purchased by him without signature and one stamp
paper with signatures of all the defendants.
- 20 -
18. The attendant circumstances would indicate
that the plaintiff has proved the payment of
Rs.6,35,864/- towards the part sale consideration
under the agreement of sale at Ex.P2. On re-
appreciation of evidence, we do not find any reason to
interfere with the finding of the Trial Judge on this
aspect.
Re. Point No.2:
19. It is depicted from the records that at the
time of execution of Ex.P2 dated 22.03.2004,
R.A.No.53/2002 filed by MUDA challenging the
judgment and decree dated 16.10.2002 passed in
O.S.No.170/1992 was pending before the Court of
FTC-III, Mysuru C/C FTC-I, Mysuru with respect to the
suit properties. It is the case of the defendants that
Sri.Muddappa, father of defendant Nos.2 to 6 and the
husband of defendant No.1 purchased the suit schedule
properties under the registered sale deed dated
- 21 -
05.10.1936 from one Shivabaktara Madaiah. After his
death, the defendants were in possession and
enjoyment of the said properties. Due to some
interference relating to the suit properties by the
members of the joint family, O.S.No.680/1986 was filed
by late Muddappa for partition and separate possession
of his share in all the joint family properties. The said
suit was compromised and the suit schedule properties
were fallen to the share of late Muddappa in the said
partition. Late Muddappa made an application to get the
katha changed in his name on the basis of the decree
passed in O.S.No.680/1986, the same was declined on
the ground that one Manchaiah has sold the property to
the CITB, Mysuru. Thereafter, he issued a legal notice to
CITB but in vain. Being aggrieved by the interference of
the CITB with his peaceful possession and enjoyment of
the suit properties, late Muddappa had filed
O.S.No.170/1992 seeking for the relief of declaration of
title and for permanent injunction as well as to quash
- 22 -
the acquisition proceedings, if any, issued by the CITB,
Mysuru. In the said proceedings, Manchaiah and others
were also impleaded as defendant Nos.2, 3 and 4.
During the said suit proceedings, the original plaintiff
Muddappa died and his legal representatives were
brought on record. The Trial Court held that the suit
properties had fallen to the share of the original plaintiff
- late Muddappa and as such plaintiff was entitled to
the decree of declaration and injunction, dismissing the
relief claimed for quashing the acquisition proceedings
since the Civil Court has no jurisdiction to decide the
validity of acquisition. Being aggrieved by the said
judgment and decree of the Trial Court, MUDA had
preferred R.A.No.53/2002. The First Appellate Court on
re-appreciation of the entire evidence on record, held
that when the suit property was the subject matter of
acquisition and the Trial Court has dismissed the suit
as far as the challenge made to the acquisition
proceedings, it ought to not have granted the relief of
- 23 -
declaration and injunction. Accordingly, the appeal was
allowed setting aside the judgment and decree of the
Trial Court, dismissing the suit holding that it is open to
the plaintiff to agitate his rights before the appropriate
Forum. The defendants had preferred RSA
No.3037/2007 against the said judgment. In the said
proceedings, this Court has observed thus:
"Admittedly, the subject matter of the
suit is the subject matter of acquisition. If the
land is acquired, awards are passed, amount
is paid and a notification is issued under
Section 16 of the Land Acquisition Act,
possession of the land vests with the
Government free from all encumbrances.
These acquisition proceedings relate to 1987.
When the plaintiff filed a suit in 1992 seeking
for declaration of title, lands had already
been vested with the Government and
therefore acting on the sale deed or the
partition deed, the trial court could not have
declared the plaintiff as the owner of the
property. If the acquisition proceedings have
proceeded behind the back of the plaintiff or
- 24 -
he was not shown as the kathedar, the
remedy open to him is to challenge the
acquisition proceedings on the aforesaid
ground and to work out his remedies and not
to seek declaration and injunction in a civil
court. That is precisely what the lower
appellate court has done."
20. Thus, it is clear that the suit properties were
acquired by the CITB, Mysuru and awards were passed,
amount was paid and the notification was issued under
Section 16 of the Land Acquisition Act, for taking over
the possession of the suit properties. The suit properties
thus vests with the Government free from all
encumbrances. It is pertinent to note that this Court
while disposing of the second appeal supra, has
provided liberty to the defendants to agitate their rights
in an appropriate forum challenging the acquisition
proceedings, if they are still aggrieved by the same.
21. The defendants have not placed on record
any proceedings initiated by them challenging the
- 25 -
acquisition proceedings availing the liberty provided by
this Court. In view of the judgment of this Court passed
in RSA No.3037/2007 having reached finality, it cannot
be held that the defendants are in possession of the suit
schedule properties. Learned counsel for the plaintiff
submitted that such defence was not taken in the
written statement, the case adjudicated before the Trial
Court was entirely on different aspects. This argument
of the learned counsel for the plaintiff cannot be
countenanced for the reason that the litigation was
pending in R.A.No.53/2002 at the time of execution of
the agreement of sale [Ex.P2], the same has reached
finality only on 04.03.2008 in terms of the judgment of
this Court passed in RSA No.3037/2007. It is noticed
that the defendants indeed filed the additional written
statement to bring these aspects before the Court, but
the same was dismissed.
- 26 -
22. As per Sections 56, 74 and 84 of the Indian
Evidence Act, 1872, presumption to the genuineness of
the certified copies of the judgments of the Hon'ble
Courts though noticed and observed by the Trial Court
but proceeded to hold that no evidence was placed on
record by the defendants to prove that they were not the
owners of the suit properties and the agreement to sell
(Ex.P2) is unenforceable contract. The revenue records
which indicates that the defendants are the owners and
in possession of the suit properties relating to the year
2009-10 has the presumptive value until contrary is
proved. It is settled law that revenue entries do not
confer any title to the properties. In view of the
categorical finding of this Court in RSA No.3037/2007,
it cannot be held that the suit properties are still in the
possession of the defendants. Even if any litigation is
pending against Sri. Manchaiah, who is alleged to have
received the compensation amount from CITB, the same
would not invalidate the action of the CITB in taking
- 27 -
possession of the suit properties. Thus, we are of the
considered view that agreement to sell having become
unenforceable by virtue of subsequent judgments of the
Hon'ble Courts, discretionary powers vested under
Section 20 of the Specific Relief Act, 1963 as it stood
during the relevant period has to be exercised
judiciously. Exercise of discretion being equitable,
merely because it is lawful to grant specific
performance, the Court need not grant decree for
specific performance. Such discretion has to be
exercised in sound and judicious manner.
23. Learned counsel for the defendants has
relied upon the judgment of the Hon'ble Apex Court in
Mayawanti vs Kaushalya Devi reported in (1990) 3
SCC 1, wherein the Hon'ble Apex Court has held that
the jurisdiction to order specific performance of a
contract is based on the existence of a valid and
enforceable contract. Where a valid and enforceable
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contract has not been made, the Court will not make a
contract for them and in such circumstances, no
specific performance would be ordered if the contract
itself suffers from some defect which makes the contract
invalid or unenforceable. The contract being the
foundation of the obligation, the order of specific
performance is to enforce that obligation. The specific
performance of a contract is the actual execution of the
contract according to its stipulations and terms, and the
courts direct the party in default to do the very thing
which he contracted to do.
24. This judgment would be squarely applicable
to the facts of the present case. As aforesaid, the
judgments of the Courts passed subsequent to
execution of Ex.P2 would indicate the status of the suit
properties inasmuch as the acquisition and possession
by the MUDA pursuant to which Ex.P2 has rendered
unenforceable.
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25. In the case of K. Narendra vs Riviera
Apartments (P) Ltd., reported in (1999) 5 SCC 77, the
Hon'ble Apex Court has referred to the Constitution
Bench decision in Chand Rani vs. Kamal Rani
reported in (1993) 1 SCC 519. Upon an evaluation of
the totality of the circumstances of the case, it was
opined that the performance of the contract would
involve such hardship on the defendant/appellant as he
did not foresee while the non-performance would not
involve such hardship on the plaintiff/respondent. The
contract though valid at the time when it was entered, is
engrossed in such circumstances that the performance
thereof cannot be secured with precision. Accordingly,
the suit for specific performance of agreement filed by
the respondent/plaintiff was directed to be dismissed.
The defendant was directed to return the amount of
consideration paid by the plaintiff with interest at the
rate of 12% per annum from the date of payment till the
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date of repayment. In addition, the defendant is directed
to pay an amount Rs.3,25,000/- by way of
compensation in view of specific performance to the
plaintiff with interest at the rate of 12% per annum from
the date of decree till realization. The property was
directed to be delivered by the respondent/plaintiff to
the defendant/appellant by demolishing structures, if
any, raised by them.
26. In the light of the aforesaid judgments, we
have no hesitation to hold that the impugned judgment
and decree deserves to be modified. No larger relief of
specific performance could be granted in the facts and
circumstances of the case. This Court having held that
the plaintiff has paid a sum of Rs.6,35,864/- towards
the part sale consideration as discussed above, the
alternative relief of refund of the same with interest at
12% p.a., would be awarded to balance the scale of
justice and equity. Accordingly, we direct the
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defendants/appellants to refund the amount of part sale
consideration of Rs.6,35,864/- paid by the
plaintiff/respondent with interest at the rate of 12% per
annum from the date of suit till its realisation.
27. Hence, the following
ORDER
i) The appeal is allowed.
ii) The impugned judgment and decree passed
in O.S.No.137/2006 granting relief of
specific performance is set aside.
iii) The defendants/appellants shall refund the
amount of Rs.6,35,864/- received towards
part sale consideration to the
plaintiff/respondent with interest at the rate
of 12% per annum from the date of suit till
its realisation, within a period of 90 days
from the date of receipt of the certified copy
of the judgment and order, failing which the
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said amount shall carry interest at the rate
of 18% per annum after 90 days of the
receipt of the certified copy of the judgment
and order till its realization.
iv) Draw modified decree accordingly.
SD/-
JUDGE
SD/-
JUDGE
NC/PMR
