Nagappa Ramappa Jopadi vs Madiwalappa Shivappa Shiddapur
2022 Latest Caselaw 1542 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 02ND DAY OF FEBRUARY, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100528/2014 (SP)

BETWEEN

NAGAPPA RAMAPPA JOPADI,
AGE : 60 YEARS, OCC: AGRICULTURE,
R/O KALLAPUR, POST: RAMAPUR,
TQ: DIST: DHARWAD-580001.
                                            ...APPELLANT
(BY   SRI NAGARAJ C.KOLLOORI,)
      SRI D.B.KALLANAGOUDA,
      SRI M.B.MADANALLI, ADVOCATES)
AND

MADIWALAPPA SHIVAPPA SHIDDAPUR,
AGE : 75 YEARS, OCC: AGRICULTURE,
R/O KALLAPUR, POST: RAMAPUR,
TQ: DIST: DHARWAD-580001.
                                          .... RESPONDENT
(BY SRI B.M.ANGADI, ADVOCATE)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 28.02.2014 PASSED
IN R.A.NO.280/2012 BY THE II ADDITIONAL DISTRICT JUDGE,
DHARWAD AND CONFIRM THE JUDGMENT AND DECREE DATED
17.09.2012 PASSED IN O.S.NO.273/2004 BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, DHARWAD AND PASS SUCH
OTHER ORDER AS THIS HON'BLE COURT DEEMS FIT IN THE
FACTS AND CIRCUMSTANCES OF CASE IN THE INTEREST OF
JUSTICE AND EQITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                  2




                       : JUDGMENT :

     The      captioned   second          appeal       is     filed   by

unsuccessful     defendant       who      has    questioned           the

judgment and decree of the First Appellate Court

wherein the appeal is allowed and the suit filed by

respondent/plaintiff is decreed granting discretionary

relief of specific performance of contract.

2. The facts leading to the above said case are

as follows:

Respondent-plaintiff filed a suit for specific

performance of contract in O.S.No.272/2004 by

specifically contending that the present appellant/

defendant agreed to sell the suit schedule property for

sale consideration of Rs.65,000/- and received a sum

of Rs.60,000/- as an advance sale consideration. The

respondent/plaintiff further contended that on the

same day, an agreement was executed and it was

agreed that the balance sale consideration would be

paid at the time of execution of registered sale deed.

Respondent-plaintiff further contended that the

possession was handed over pursuant to execution of

suit agreement. Respondent-Plaintiff further

contended that he was ever ready and willing to

perform his part of contract. Though several demands

were made, the appellant-defendant did not come

forward to perform his part of contract. Therefore a

legal notice was issued on 11.07.2004 calling upon the

appellant-defendant accept the balance sale

consideration and execute registered sale deed. The

appellant-defendant refused to accept the notice and

therefore the respondent-plaintiff filed present suit.

3. The appellant-defendant on receipt of

summons contested the proceedings and stoutly

denied the entire averments made in the plaint. There

is totally denial insofar as execution of suit agreement

is concerned. The appellant-defendant has also

specifically contended that actual market value of the

suit schedule property is more than Rs.2,00,000/-.

Further contention was also taken that he is not the

absolute owner of the suit schedule property and the

subject matter of suit agreement is a joint family

ancestral property and therefore requested the Court

to dismiss the suit.

4. The Trial Court having assessed oral and

documentary evidence, answered Issue No.1 to 4 in

the affirmative by holding that respondent-plaintiff has

proved due execution of agreement dated 10.08.2001

and payment of earnest money of Rs.60,000/-. The

Trial Court also recorded a finding that the appellant-

defendant delivered possession pursuant to receipt of

earnest money of Rs.60,000/- on 10.08.2001. The

Trial Court has also recorded a categorical finding that

respondent-plaintiff has proved that he was always

ready and willing to perform his part of contract.

However, while dealing with issue No.5, the Trial Court

was of the view that the suit schedule property

admittedly is the joint family ancestral property and

therefore has come to conclusion that relief of specific

performance cannot be granted, as that would affect

the rights of other family members of appellant-

defendant. Therefore, the Trial Court has proceeded to

order for refund of earnest money and has refused to

grant discretionary relief of specific performance.

5. Respondent-plaintiff feeling aggrieved by

the judgment and decree of the Trial Court preferred

an appeal before the First Appellate Court. The First

Appellate Court having independently assessed the

oral and documentary evidence has concurred with the

findings of the Trial Court recorded on Issue Nos.1 to

4. However, while examining Issue No.5 has come to

conclusion that the Trial Court erred in getting swayed

away by the fact that the suit schedule property is the

joint family ancestral property and more hardship

would be caused to the appellant-defendant in the

event, the relief of specific performance is granted.

The First Appellate Court on re-appreciation of

material on record was of the view that the appellant-

defendant has not produced any documentary

evidence indicating that the suit schedule property is a

joint family ancestral property. The Appellate Court

was also of the view that it is a respondent-plaintiff

would be put to more hardship as possession was

already delivered and substantial sale consideration

was paid by respondent-plaintiff. On these set of

reasonings the First Appellate Court has reversed the

finding of the Trial Court rendered on Issue No.5 and

has allowed the appeal by decreeing the suit.

6. Heard learned counsel appearing for the

appellant-defendant. Perused the judgment under

challenge.

7. Both the Courts below have concurrently

held that respondent-plaintiff has proved due

execution of suit agreement 10.08.2001 and payment

of earnest money of Rs.60,000/-. Both the Courts

have further concurrently held that the respondent-

plaintiff has proved his readiness and willingness to

perform his part of contract. The Trial Court has

proceeded to grant lesser relief i.e., refund of earnest

money on the premises that the suit schedule property

is joint family ancestral property and therefore if the

relief of specific performance is granted that would

virtually affect the rights of other non-alienating

members. This finding appears to be palpably

erroneous and perverse. In a suit for specific

performance, the question as to whether property

which was agreed to be alienated is joint family

ancestral property or not, is not at all relevant. All that

the Courts are required to examine in a suit for

specific performance of contract is, whether there is a

due execution of suit agreement and whether

respondent-plaintiff has succeeded in establishing his

readiness and willingness to perform his part of

contract. The Courts are further required to examine

even if these two contentions are satisfied, whether

the material on record would still make out a case for

plaintiff and is entitled for discretionary relief of

specific performance. The Courts can refuse to grant

discretionary relief of specific performance. If it is

found that the owner would be put to greater hardship

compared to that of plaintiff. In the present case on

hand there is absolutely no material on record

indicating that more hardship would be caused to the

appellant-defendant. The only contention taken by the

appellant to resist the present agreement is that, it is

a joint family ancestral property. In fact there is a

total denial of the very execution of suit agreement by

appellant-defendant. When there is a total denial,

question of examining comparative hardship would not

arise at all. The respondent-plaintiff who was put in

possession pursuant to suit agreement is compelled to

file a suit in O.S.No.203/2004. Material on record

would indicate that the substantial sale consideration

of Rs.60,000/- was already paid way back in the year

2001. Therefore, the Appellate Court was justified in

recording a finding that if relief of specific performance

is refused, infact it is respondent who would be put to

greater hardship. The judgment and decree passed by

the First Appellate Court based on the legal evidence

on record. The finding of the Trial Court that since it is

ancestral property, relief of specific performance

cannot be granted, is perverse and beyond the scope

of enquiry contemplated in a suit for specific

performance of contract.

8. In that view of the matter no substantial

question of law arises. The appeal is devoid of merits.

Accordingly the same stands dismissed.

SD/-

JUDGE EM