Doddahanamappa S/O Ninganaguod ... vs Bhimappa S/O Yamunappa Walikar
2022 Latest Caselaw 1437 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 1ST DAY OF FEBRUARY 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA NO.552 OF 2006 (S.P)

BETWEEN

1.     DODDAHANAMAPPA
       S/O NINGANAGUODA GOUDAR
       AGE: MAJOR, OCC: AGRICULTURE,
       R/O. CHIKKAYARANKERI - 587131
       TQ. HUNAGUND, DIST BAGALKOT.

2.     SANNAHANAMAPPA
       S/O NINGANAGOUDA GOUDAR,
       AGE: MAJOR, OCC: AGRICULTURE
       R/O. CHIKKAYARANKERI - 587131
       TQ HUNAGUND, DIST BAGALKOT.
                                             ...APPELLANTS

(BY SRI. B. B. BALLARI AND ASSOCIATES
 AND SRI. SIDDAPPA S SAJJAN, ADVOCATE)

AND
1.     BHIMAPPA S/O YAMUNAPPA WALIKAR
       SINCE DECEASED BY LRS.

1A.    MUTTAPPA BHIMAPPA WALIKAR,
       AGE: 45 YEARS,
       OCC: AGRICULTURE,
       R/O: CHIKKAYARANKERI,
       TQ. HUNAGUND, DIST. BAGALKOT

1B.    GYANAPPA BHIMAPPA WALIKAR,
                             2




      AGE: 43 YEARS,
      OCC: AGRICULTURE,
      R/O: CHIKKAYARANKERI,
      TQ. HUNAGUND, DIST. BAGALKOT

1C.   SANGAVVA FAKKIRAPPA YARANAKERI,
      AGE: 47 YEARS,
      OCC: HOUSEHOLD,
      R/O: HONNAKATTI,
      TQ. AND DIST. BAGALKOT

1D.   MUDIYAVVA BHIMAPA WALIKAR,
      AGE: 41 YEARS,
      OCC: HOUSEHOLD,
      R/O: HONNAKATTI,
      TQ. AND DIST. BAGALKOT

1E.   YAMANAVVA BASAPPA NAYAK,
      AGE: 39 YEARS,
      OCC: HOUSEHOLD,
      R/O: AADAGALL, TQ. BADAMI,
      DIST. BAGALKOT

2.    SANNAPPA
      S/O YAMUNAPPA WALIKAR
      AGE: MAJOR,
      OCC: AGRICULTURE,
      R/O. CHIKKAYARANKERI,
      TQ. HUNAGUND, DIST BAGALKOT.

      KONAPPA S/O YAMUNAPPA WALIKAR
      SINCE DEAD BY LRS

3.    LACHAVVA @ LAXMAVVA
      W/O KONAPPAWALIKAR,
      AGE: MAJOR,
      OCC: HOUSEHOLD WORK,
      R/O. CHIKKAYARANKERI,
      TQ. HUNAGUND, DIST. BAGALKOT

4.    BASSAPPA S/O KONAPPA WALIKAR
                                3




     AGE: MAJOR,
     OCC: AGRICULTURE,
     R/O. CHIKKAYARANKERI,
     TQ. HUNAGUND, DIST. BAGALKOT

5.   NEELAGANGAVVA
     D/O KONAPPA WALIKAR,
     AGE: MAJOR,
     OCC: HOUSEHOLD WORK,
     R/O. CHIKKAYARANKERI,
     TQ. HUNAGUND, DIST. BAGALKOT

6.   KASTURAVVA
     D/O KONAPPA WALIKAR
     AGE: MAJOR,
     OCC: HOUSEHOLD WORK,
     R/O. CHIKKAYARANKERI,
     TQ. HUNAGUND, DIST. BAGALKOT.

                                               ...RESPONDENTS

(BY SRI. VYAS DESAI FOR SRI. JAGADISH PATIL, ADV., FOR R3-
R6 AND R1)

     THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT   AND   DECREE      DATED    28.06.2005   PASSED   IN
R.A.NO.59/2005 (OLD R.A.NO.50/2002) ON THE FILE OF THE
PRESIDING   OFFICER,   FAST    TRACK    COURT-II,   BAGALKOT,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT
AND DECREE DATED 23.07.2002 PASSED IN O.S.NO.190/1993
ON THE FILE OF THE CIVIL JUDGE (JR.DN.) HUNGUND.


     THIS RSA COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                 4




                         JUDGMENT

The captioned regular second appeal is filed by the

plaintiffs questioning the judgment and decree of the First

Appellate Court in reversing the judgment and decree of

the Trial Court in granting lesser relief of refund of

earnest money of Rs.8,000/- with interest at the rate of

6% per annum.

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

The appellants-plaintiffs filed a suit for specific

performance of contract in O.S.No.190/1993. The

appellants-plaintiffs contended that respondent No.1-

defendant No.1 offered to sell his 1/3rd share in the land

bearing Survey No.23/2 for a sale consideration of

Rs.8,000/- and accordingly, executed an agreement on

25.06.1981 by receiving an earnest money of Rs.5,000/-.

The appellants-plaintiffs also contended that the

respondent No.1-defendant No.1 parted with possession

under the said agreement. The parties had mutually

agreed that the sale deed is to be executed after

completion of non-alienation clause of 15 years. The

appellants-plaintiffs have further specifically contended

that on 18.05.1991 respondent No.1-defendant No.1

further received balance sale consideration of Rs.3,000/-

and executed one more agreement vide Ex.P2. The

grievance of the plaintiffs was that having received the

balance sale consideration of Rs.3,000/- and after expiry

of non-alienation clause, the respondent No.1-defendant

No.1 went on postponing and therefore, this compelled

the appellants-plaintiffs to issue a lawyer notice calling

upon respondent No.1-defendant No.1 to perform his part

of contract to execute sale deed, as the entire sale

consideration was already paid. The respondent No.1-

defendant No.1 neither replied to the notice nor came

forward to perform his part of contract and therefore, the

appellants-plaintiffs filed the present suit.

3. On receipt of summons, respondent No.1-

defendant No.1 contested the proceedings and stoutly

denied the entire averments made in the plaint.

Respondent No.1-defendant No.1 stoutly denied the claim

of the appellants-plaintiffs that he offered to sell the suit

land. Respondent No.1-defendant No.1 specifically

contended that he was in need of money and he totally

trusted the present plaintiffs. He approached the present

appellants-plaintiffs to lend money. Therefore, he

contended that two documents dated on 25.06.1981 and

18.05.1991 were executed only as a security to the loan

availed by respondent No.1-defendant No.1. He

specifically contended that sine the suit land is an Inam

land, therefore, any agreement to sell is opposed to

public policy. In the alternative, respondent No.1-

defendant No.1 specifically pleaded that the market value

of 1 acre of land in the year 1981 was between

Rs.10,000/- to Rs.15,000/- and therefore, there was no

question of selling 4 acres 7 guntas of land for negligent

sum of Rs.8,000/-. The appellants-plaintiffs to

substantiate their claim examined plaintiff No.2 as PW1

and also examined both the witnesses to the suit

agreement as PW2 and PW3. The appellant/plaintiffs to

corroborate the pleadings and ocular evidence produced

the agreement to sale dated 25.06.1981 as per Ex.P1 and

second agreement dated 18.05.1991 at Ex.P2 and the

lawyer's notice was also produced at Ex.P4.

4. The respondents-defendants in support of

their contention examined defendant No.1 as DW1 and

one witness as DW2 and also relied on documentary

evidence vide Ex.D1 to Ex.D12. The Trial Court having

meticulously examined the oral and documentary

evidence on record, answered issue No.1 to 4 in the

affirmative and recorded a finding that the appellants-

plaintiffs have succeeded in proving that defendant No.1

had agreed to sell his 1/3rd share totally measuring 4

acres 7 guntas in Survey No. 23/2 and received an

earnest money of Rs.5,000/- on 25.06.1981 and in terms

of agreement delivered possession. The Trial Court has

also recorded a finding that respondent No.1 has also

received balance consideration of Rs.3,000/- on

18.05.1991. The Trial Court while answering issue No.1

has held that the respondent No.1-defendant No.1 has

refused to perform his part of contract and on these set

of reasons, the Trial Court has held that the appellants-

plaintiffs are entitled to discretionary relief of specific

performance of contract. The Trial Court having examined

the clinching evidence on record has come to the

conclusion that respondent No.1-defendant No.1 having

taken a stand that both the agreements were executed

only by way of security and there was no intention to sell

the land has failed to prove the same by adducing

rebuttal evidence.

5. The First Appellate Court on re-appreciation of

oral and documentary evidence on record has reversed

the findings of the Trial Court. The First Appellate Court

on re-appreciation of oral and documentary evidence was

of the view that the appellants-plaintiffs have utterly

failed to prove due execution of Ex.P1 and P2

agreements. The First Appellate Court has also come to

conclusion that the evidence on record does not indicate

that the appellants-plaintiffs were put in possession. The

First Appellate Court was also of the view that, the

appellants-plaintiffs have not examined any of the

neighboring land owner nor produced any documents to

prove that they were put in possession pursuant to sale

agreements vide Exs.P1 and P2.

6. The First Appellate Court while dealing with

point Nos.4 & 5 has come to conclusion that evidence on

record does not indicate that the appellants-plaintiffs

were ready and willing to perform his part of contract.

The First Appellate Court has recorded a finding that the

stand taken by respondents-defendants that they had

obtained hand loan of Rs.8,000/- from the appellants-

plaintiffs is taken as an admission and therefore the First

Appellate Court was of the view that when respondent

No.1/defendant No.1 was willing to repay the amount,

appellants-defendants are only entitled for refund of

earnest money and therefore was of the view that the

present case on hand, discretionary relief of specific

performance cannot be granted.

7. While dealing with point No.5, the First

Appellate Court has come to conclusion that there are

variation in the pleadings and proof of appellant's case.

The First Appellate Court was of the view that admittedly

the suit land is an Inam land and there is a prohibition for

alienating of the land. The First Appellate Court has also

come to conclusion that since the suit land is a joint

family ancestral property, respondent No.1-defendant

No.1 has no right to sell away portion of undivided share

and therefore First Appellate Court was of the view that

the suit suffers from non-joinder of necessary parties. On

these set of reasonings, the First Appellate Court was of

the view that the Trial Court has not taken note of all the

significant details and therefore has come to conclusion

that the finding and conclusion arrived at by the Trial

Court suffers from perversity and therefore has

proceeded to allow the appeal and thereby modifying the

decree of the Trial Court has ordered for refund of

earnest money of Rs.8,000/- along with interest at the

rate of 6% p.a.

8. This appeal was admitted to consider the

following substantial questions of law.

"1. Whether the lower appellate court was justified in reversing the judgment and decree of the trial court by ignoring Exs.P1 and P2 and the evidence on record?

2. Whether the lower appellate court was justified in not considering the admission of receipt of amount by defendants?

3. Whether the findings of the lower appellate court are in consonance with the evidence on record?

9. Heard learned counsel appearing for the

appellants-plaintiffs and learned counsel appearing for

the respondents-defendants. Perused the judgments

under challenge and I have also bestowed my anxious

consideration to the Trial Court Records.

10. The Trial Court on appreciation of oral and

documentary evidence has come to conclusion that the

appellants/plaintiffs have succeeded in proving due

execution of suit agreements vide Exs.P1 & 2. The Trial

Court has also taken note of the fact that the appellants-

plaintiffs have examined both the witnesses to the suit

agreement who have withstood the test of cross-

examination and no material contradictions are elicited in

the cross-examination. The Trial Court having taken note

of the fact that entire sale consideration was paid under

both the agreements has come to conclusion that the

appellants-plaintiffs are entitled for discretionary relief of

specific performance of contract.

11. The First Appellate Court has reversed the

findings of the Trial Court. Therefore, the question that

needs to be examined by this Court is, whether the

findings recorded by the First Appellate Court while

reversing the conclusion and finding recorded by the Trial

Court on Issue Nos.1 to 4 suffers from any perversity.

The First Appellate Court has made following observation

which has ultimately led to reversal of the decree of the

Trial Court. The First Appellate Court has taken

cognizance of the ocular evidence of PW2, who is one of

the attesting witnesses to Ex.P1-suit agreement. The First

Appellate Court has drawn an adverse inference against

PW2, who has deposed to the effect that he cannot

recollect the denomination of currency notes that were

used to make payment.

a) The First Appellate Court has discarded the

evidence of PW.2 on the ground that he is

close relative of appellants-plaintiffs.

b) The First Appellate Court has laid more

emphasis and given weightage to the Ex.D2 to

D11 which are revenue paid receipts coupled

with these documents the First Appellate

Court has also given credence to the ocular

evidence of DW2 and therefore has come to

conclusion that the possession was never

parted pursuant to execution of Exs.P1 & P2.

c) An adverse inference was also drawn by the

First Appellate Court while examining Exs.P1 &

P2. While referring Ex.P2, the First Appellate

Court has come to the conclusion that it is

totally fresh agreement and does not speak

about earlier transactions. In both the

agreements there is a reference that the

possession was delivered.

d) The First Appellate Court has come to

conclusion that, if possession was already

delivered under Ex.P.1-suit agreement, which

is of the year 1981, then question of again

delivering possession under second agreement

which is of the year 1991 would clearly

establish the inconsistencies in the documents

on which appellants-plaintiffs have placed

reliance. Therefore, having examined Exs.P1 &

2, the First Appellate Court has also come to

conclusion that the documents are

inconsistence to the pleadings of appellants-

plaintiffs' case.

e) The First Appellate Court has also come to

conclusion that the suit land, which was

agreed to be sold is admittedly Walikar Inam

land and since there is a prohibition to sell

land, the First Appellate Court has come to

conclusion that it is opposed to public policy

and therefore the First Appellate Court has

come to conclusion that the suit agreement

cannot be enforced.

f) The First Appellate Court has also come to

conclusion that the appellant-plaintiff failed to

prove his readiness and willingness as there

are no pleadings in this regard in the plaint.

g) The First Appellate Court has reversed the

finding of the Trial Court in regard to grant of

discretionary relief of specific performance of

contract on the ground that the suit land

admittedly is joint family ancestral property

and therefore respondent No.1-defendant

No.1 had no right to sell undivided share in

favour of appellants-plaintiffs and therefore

suit suffers from non-joinder of necessary

parties.

h) The First Appellate Court has recorded a

categorical finding that the above said

significant details are not at all considered by

the Trial Court.

12. Now I would like to record my reasons on the

findings recorded by the First Appellate Court as stated

supra at (a) to (h) in the context of substantial question

of law framed by this Court on 26.11.2012.

13. Respondent No.1-defendant No.1 has admitted

in an unequivocal terms that he has executed Ex.P1 & P2.

However, his defence is that these documents were

executed towards security for having availed hand loan.

Having taken such defence, on perusal of the materials

on record this Court would find that there is absolutely no

evidence to substantiate his defence in the written

statement. Nothing is elicited in cross-examination of

both the witnesses who are examined on behalf of

appellants-plaintiffs and they have not at all supported

the case of respondent No.1-defendant No.1.

14. This Court has to examine whether the finding

of the First Appellate Court that the relief of specific

performance cannot be granted as the agreement to sell

was executed in respect of Inam land as there is a

prohibition is sustainable. My answer is 'no' to this

finding. It is a trite law that non-alienation clause in a

grant order is not relevant question, while examining the

controversy between the parties in a suit for specific

performance of contract. Whether alienation is barred

under particular Act cannot be a subject matter of a suit

filed for specific performance of contract. In a suit for

specific performance, Court has to examine whether

agreement is proved as held by this Court in the case of

Mrs.Sushila A.Dass Vs. Mrs.Mary Bolger1. Therefore,

this finding is perverse, palpably erroneous and contrary

to the settled proposition of law.

15. The First Appellate Court has also refused to

grant relief of specific performance on the ground that

respondent No.-defendant No.1 has agreed to sell

undivided share in favour of appellants-plaintiffs and

other co-owners are not arrayed as parties. Therefore

suit is bad for non-joinder of necessary parties. This

finding is also perverse, palpably erroneous and contrary

to the settled proposition of law that in a suit for specific

performance, the other co-owners-joint family members

are not at all necessary parties.

ILR 1988 KAR 1413

16. The findings of the First Appellate Court that

undivided share cannot be sold is also perverse and

contrary to the provisions of Hindu Law. From careful

examination of Section 19(a) to (e) of Specific Relief

Act, I am of the view that the persons seeking

addition in suit for specific performance of contract

for sale, who are not claiming under vendor but are

asserting right independently do not fall in any of the

categories enumerated in Sub-Section (a) to (e) of

Section 19 of the Specific Relief Act. The Full Bench

judgment of Madya Pradesh High Court in Panne

Kushali's case, has been approved by the Apex Court

in Kasiuri's case. Therefore, the non alienating

members of a joint family are neither necessary nor

proper party in a suit for specific performance of

contract. Therefore, for effective adjudication of

controversy involved in suit for specific performance,

presence of such parties cannot be said to be

necessary at all. Even if the suit property is joint family

property, what was agreed to be sold is only 1/3rd share

of respondent No.1-Defendant No.1. Since property being

divisible, a decree of specific performance to the extent of

1/3rd share of Vendor can be enforced on the doctrine of

part performance. It is also trite law that purchaser in

terms of decree for specific performance, can file suit for

general partition. It is a trite law that coparcener has got

every right to sell his undivided share and therefore he

does not need the consent of the other coparceners.

Therefore this finding is also perverse and is not at all

sustainable.

17. If actually it was a loan transaction,

respondent No.1-defendant No.1 would not have further

received balance sale consideration of Rs.3,000/- in the

1991. This receipt of Rs.3,000/- in the year 1991 would

totally demolish the defence set up by respondent No.1-

defendant No.1. The fact that he received balance sale

consideration of Rs.3,000/- in the year 1991 would clinch

the issue and establish that the suit agreement which was

executed in the year 1981 as per Ex.P1 was with an

intention to sell the land and not towards security for

having received the hand loan of Rs.5,000/-. This

material aspect was totally lost sight of by First Appellate

Court.

18. The finding of the First Appellate Court that

the appellants-defendants failed to prove that he was

ever ready and willing to perform his part of contract, is

not only perverse but the same is contrary to clinching

evidence on record and also categorical admissions given

by respondent No.1/defendant No.1. The due execution

of both the agreements vide Exs.P1 & 2 are established

by appellants-plaintiffs. If the due execution is

established coupled with admission by respondent No.1-

defendant No.1 admitting that he has executed both the

agreements towards security, would clearly establish that

the appellants-plaintiffs have paid entire sale

consideration under both the suit agreements vide Exs.P1

& P2. If sale consideration is paid under two agreements

and if there is a gap of 10 years between first agreement

and second agreement and the parties have clearly

stated under the agreements that the sale deed would be

executed after expiry of non-alienation clause, the second

payment which is made in the year 1991 would clearly

establish that the appellants-plaintiffs were ready and

willing throughout. The fact that the entire sale

consideration is paid as on 1991, the finding of the First

Appellate Court that the readiness and willingness is not

established and the same is not pleaded in the plaint is

contrary to clinching evidence on record and the said

finding is also contrary to the principles laid down by the

Apex Court in the case of Sugani (MST) Vs. Rameshwar

Das and another

19. This Court would also take strong exception in

the manner in which the First Appellate Court has

assessed the evidence of witnesses. This Court is not

convinced as to how the First Appellate Court could

discard the evidence of PW2 merely on the ground that

he is a relative of appellants/plaintiffs.

20. What the First Appellate Court was required to

examine is that, whether a person being a relative was

totally biased against respondent No.1/defendant. There

is absolutely no cross in that regard by appellant No.1-

defendant No.1. The second reason to discard the

evidence of PW2 that, he is unable to recollect the

denomination that were used while paying Rs.8,000/-.

This view appears to be wholly unintelligible and absurd.

Respondent No.1-defendant No.1 has admitted that he

(2006) 11 Supreme Court Cases 587

has received Rs.8,000/- but however, his defence is, it

was hand loan and by way of security both the

agreements came to be executed. Therefore, the First

Appellate Court has ventured into an unwanted arena

which had no bearing on the conclusions of the suit. The

First Appellate Court has proceeded to reverse the finding

of the Trial Court and has come to conclusion that the

alternative relief of refund has to be granted in the preset

case on hand. This conclusion is arrived at on the

premises that respondent No.1-defendant No.1 is ready

to pay back the earnest money. While ordering for refund

of earnest money, the Court required to assign reason as

to why discretionary relief of specific performance cannot

be granted. While refusing larger relief, the Courts are

required to assign reasons. Though it is a trite law that

even if the suit agreements are proved, the Court can still

refuse to grant discretionary relief of specific

performance. But while doing so, the Courts are bound to

assign reasons for refusing to grant main relief. Merely

because vendor is ready to refund the balance amount,

that in itself would not constitute a reason to order for

refund.

21. The Court has to bear in mind that the

transaction is between poor agriculturists. In the year

1981, respondent No.1-defendant No.1 offered to sell the

land for sale consideration of Rs.8,000/-. Rs.5,000/- was

paid in 1981 towards earnest money and balance of

Rs.3,000/- was paid in the year 1991. If at this stage,

respondent No.1-defendant No.1 is directed to return

Rs.8,000/- with interest at the rate of 8%, the money

value of Rs.8,000/- as on today would be negligible and

the appellant/plaintiff would not be in a position to

purchase even one gunta of land. When defendant No.1

has not proved any of circumstances which would attract

Section 14(1) (a) to (d) or Section 20(2) (a) to (c) of

Specific Relief Act, presumption under section 10 viz.,

that the breach of a contract to transfer immovable

property cannot be adequately relieved by compensation

in money would stand in favour of plaintiff and Trial Court

has rightly exercised judicial discretion and granted

specific performance of agreement. All these significant

details are meticulously examined by the Trial Court. The

judicial discretion exercised by the Trial Court is based on

the legal evidence on record and in absence of rebuttal

evidence to rebut the case of appellant-plaintiff.

Therefore, the judgment and decree of the First Appellate

Court suffers from serious perversity, palpably erroneous

and is contrary to clinching evidence on record.

22. In that view of the matter, I am of the view

that the First Appellate Court has totally misread the

evidence on record. Hence, the substantial question of

law Nos.1 to 3 are answered in the negative by recording

a categorical finding that the First Appellate Court erred

in reversing the judgment and decree of the Trial Court

by ignoring the contents of Exs.P1 & P2. I am also of the

view that the First Appellate Court erred in not

considering the admission in regard to receipt of amount

by respondent No.1-defendant No.1. I am also of the

view that the finding rendered by the First Appellate

Court is not at all in consonance with the evidence on

record. Appellate Court has ignored the weight of

preponderating circumstances and allowed its judgment

to be influenced by inconsequential matter. Accordingly I

proceed to pass the following:

: ORDER :

a. Appeal is hereby allowed.

b. The judgment and decree dated 28.06.2005 passed in R.A.No.59/2005 by the Fast Track Court-II, Bagalkot is hereby set aside.

c. Consequently the judgment and decree dated 23.07.2002 passed in 190/1993 by the Civil Judge (Jr.Dn.), Hungund is hereby confirmed.

Sd/-

JUDGE YAN/EM