Jayamma vs S V Thimmanna
2022 Latest Caselaw 1965 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF FEBRUARY 2022

                              BEFORE

     THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

         REGULAR FIRST APPEAL No.2103 OF 2006

BETWEEN:

1.     Jayamma
       W/o. Late Ningappa
       Aged about 59 years,

2.     N. Jagadish,
       S/o. Late Ningappa,
       Aged about years,

3.     N. Annapurna
       D/o. Late Ningappa
       Aged about 9 years,

All Resident of
Karuvinakatte,
1st Block, Chitradurga.
                                       .. Appellants
(By Sri.B.M. Siddappa, Advocate)

AND:

1.     S.V. Thimmanna,
       S/o. Erappa,
       Aged about 50 years,
       Employee of Hutty Gold Mines
       (Chitradurga Copper Unit)
       Resident of Unnimutt Road,
       Behind Chikkpinghattamma
       Temple, Chitradurga.
                                                   RFA.No.2103/2006
                                2


2.    Smt. Janaki Parashuram,
      W/o. Parashuramappa,
      Junior Engineer,
      Aged about 33 years,
      R/at Karnataka Housing Board,
      Hassan.

3.    N. Shashikumar
      S/o. Late Ningappa,
      Since Dead by LRs.
      Appellants who are already
      on record as per the order
      dated 12-09-2011.
                                                 .. Respondents
(By Sri.C.H. Jadhav, Sr. Counsel for
M/s. Jadhav Law Associates for R-2;
R-1 served; V/o. dt.29-10-2010, the
Appellants are treated as LRs. of deceased R-3)

                              ****

       This R.F.A. is filed under Order 41 Rule 1 read with
Section 96 of Code of Civil Procedure, praying to set aside
judgment and decree passed by the learned I Additional Civil
Judge (Sr.Dn.) Chitradurga, in O.S.No.15/2002 dated
31-08-2006 and further be pleased to decree the suit of the
plaintiffs in entirety, by allowing this appeal, in the interest of
justice and equity.

      This R.F.A. having been heard through Physical
Hearing/Video Conferencing Hearing and reserved on
30.11.2021 at the Principal Bench, Bengaluru and coming on for
pronouncement of Judgment before Dharwad Bench this day,
the Court delivered the following:

                              JUDGMENT

This is plaintiffs' appeal. The original plaintiff Sri

Ningappa had filed a suit against the present respondent Nos.1

and 2 (arraigning them as defendant Nos. 1 and 2) in O.S. No. RFA.No.2103/2006

15/2002 on the file of I Addl. Civil Judge (Sr.Dn), Chitradurga,

(hereinafter for brevity referred to as 'trial Court') for the relief

of declaration and specific performance of contract.

2. The summary of the case of the plaintiff in the trial

Court is that the defendant No.1 is the owner of the suit

schedule site which is a site bearing No.2 and measuring 48

feet X 44 feet situated at I Block, Ujjinimutt Road, Chitradurga.

The plaintiff and defendant No.1 are own brothers. Since 1976,

the defendant No.1 had permitted the plaintiff to use the

schedule property for the purpose of rearing cattle and

she-buffaloes since the plaintiff was doing a milk vending

business, as such, the plaintiff had put up a temporary shed in

the property and using it for rearing the cattle and

she-buffaloes. The defendant No.1 agreed to sell the suit

schedule property in favour of the plaintiff for a consideration of

a sum of `1,50,000/- and received a sum of `50,000/- as

advance and partial sale consideration from the defendant No.1.

In that regard, as an agreement to sell came to be executed

between plaintiff and defendant No.1 on 16.07.2001. It was

agreed between them that the vendor had to execute the

registered Sale Deed in favour of the plaintiff/purchaser after RFA.No.2103/2006

receiving balance sale consideration of `1,00,000/- on or before

15.12.2001. Accordingly, when the plaintiff approached the

defendant No.1 with the balance sale consideration of

`1,00,000/- on 15.12.2001, the defendant No.1/vendor told that

he had already sold the suit schedule property in favour of

defendant No.2 for a consideration of `1,75,000/- under a

registered Sale Deed dated 28.11.2001. The plaintiff contended

that the defendant No.1 also had no right to sell the suit

schedule property to the defendant No.2 and that the defendant

No.2 had no right to purchase the suit schedule property from

the defendant No.1, as such, the said Sale Deed has no legal

value in the eye of law. Even after coming to know of the Sale

Deed in favour of the defendant No.2, the plaintiff requested the

defendant No.1 to execute a Sale Deed in his favour, but his

request went in vain. Though the plaintiff was ready and willing

to perform his part of the promise, since the defendant No.1

refused to execute the Sale Deed in his favour, he was

constrained to institute the suit. With this, he prayed for a

declaration to declare the Sale Deed dated 28.11.2001

executed by the defendant No.1 in favour of defendant No.2 as

void and illegal and also for a direction to the defendant No.1 to

execute a registered Sale Deed in favour of the plaintiff in RFA.No.2103/2006

respect of the suit schedule property after receiving the balance

sale consideration. Alternatively, the plaintiff also prayed for

recovery of advance amount of `50,000/- from the defendant

No.1 with the interest at 18% p.a. thereupon.

3. In response to the summons served upon them,

both the defendants appeared through their counsel in the trial

Court and filed their written statement. The defendant No.1 in

his written statement admitted that the plaintiff is his brother

and the suit schedule property had fallen to his share

(defendant No.1) under a Settlement Deed dated 06.07.1976.

However, he denied that since 1976, he has permitted the

plaintiff to use the suit schedule property for the purpose of

rearing the cattle and she-buffaloes. He also denied the alleged

Sale Agreement dated 16.07.2001. He called the Sale

Agreement as a forged document and concocted in collusion

with deceitful friends to make a wrongful gain. He denied that

he had no right to sell the suit schedule property to the

defendant No.2. With this, he prayed for dismissal of the suit.

4. The defendant No.2 in her written statement also

denied the plaint averments by stating that the defendant No.1

is the owner of the suit schedule property and that she is the RFA.No.2103/2006

purchaser of the suit schedule property from the defendant

No.1 under a registered sale deed. She also called the alleged

agreement of sale dated 16.07.2001 between the plaintiff and

the defendant No.1 as a forged and concocted one. She denied

that the suit schedule property is in possession of the plaintiff.

She contended that she being a bona fide purchaser for

valuable consideration, she is in lawful possession of the suit

schedule property as a owner thereof. She also stated that

from the date of the Sale Deed, she is paying municipal taxes

and khatha has been effected in her favour from the date of

purchase. With this, she prayed for dismissal of the suit.

5. Based on the pleadings of the parties, the trial

Court framed the following issues:

"1. Whether the plaintiff proves that, 1st defendant had agreed to sell the suit property for a consideration of `1,50,000/- by executing an agreement of sale on 1-07-01?

2. Whether the plaintiff proved that, 1st defendant had received `50,000/- as part payment and agreed to execute the registered sale deed on or before 15-12-2001 by receiving sale balance consideration amount?

RFA.No.2103/2006

3. Whether the plaintiff proves that, the sale deed executed by 1st defendant in favour of 2nd defendant is illegal, null and void?

4. Whether the plaintiff proves that he was always ready and willing to perform his part of contract?

           5.    Whether    the     plaintiff   is   entitled   for
     specific performance of contract?


           6.    Whether    the     plaintiff   is   entitled   for

recovery of advance amount from defendant No.1?

7. Whether plaintiff is entitled for decree?

8. What decree or order?

6. The original plaintiff Sri Ningappa was examined as

PW-1. After his examination-in-chief, but before his cross-

examination, he passed away. One Sri C.B. Dinesh, an attestor

to the sale agreement was examined as PW-2. The legal

representatives of the deceased original plaintiff Sri Ningappa

were brought on record as plaintiff Nos.1(a),1(b), 1(c) and

1(d) respectively. Among them, plaintiff No.1(b) Sri N. Jagadish,

who is the son of the original plaintiff was examined as PW-3.

The documents from Ex.P1 to Ex.P5 were marked on behalf of RFA.No.2103/2006

the plaintiff. The defendant No.1 was examined as DW-1 and

defendant No.2 was examined as DW-2. One Sri Narasimha

Swamy and Sri B. Hanumantharayappa who were alleged to be

the attestors to the alleged registered Sale Deed dated

28.11.2001 were examined as DW-3 and DW-4 respectively.

The documents from Ex.D1 to ExD9 were marked on behalf of

the defendants.

7. After hearing both sides, the trial Court while

answering issue Nos.1, 2, 4 and 6 in the affirmative, issue No.7

partly in the affirmative, issue Nos. 3 and 5 in the negative,

proceeded to decree the suit of the plaintiff in-part. Though it

held that the plaintiff is entitled to recover the advance amount

of `50,000/- from the defendant No.1 with interest thereupon at

8%p.a., but the plaintiff's prayer for declaration that the

registered Sale Deed dated 28.11.2001 as void and illegal, as

well the plaintiff's prayer for the relief of specific performance of

the contract by executing Sale Deed in his favour by the

defendants, were rejected. Being aggrieved by the said

judgment and decree passed by the trial Court, the plaintiffs in

the trial Court have preferred this appeal.

RFA.No.2103/2006

8. The plaintiff No.1 (c) in the trial Court has been

arrayed as respondent No.3 in this appeal. However, during the

pendency of the appeal, he was reported to be dead and the

appellants who were already on record are shown as legal

representatives. The cause title of the memorandum of appeal

came to be amended accordingly.

9. In response to the notice served upon the

respondents, the respondent No.2 is appearing through his

learned Senior Counsel. The respondent No.1 though served

with the notice, has remained absent.

10. Records from the trial Court are called for and the

same are placed before the Court.

11. For the sake of convenience, the parties would be

referred to as per their rank before the trial Court.

12. Heard the arguments from both side. Perused the

materials placed before this Court.

13. The points that arise for my consideration are,

1. Whether the respondent No.2 who is admittedly is not a party to the alleged RFA.No.2103/2006

agreement of sale dated 16.07.2001 can challenge the finding of the trial Court made in favour of the plaintiff on Issue No.1 regarding the execution of the agreement of sale dated 16.07.2001 between the plaintiff and the defendant No.1 under Order XLI Rule 22 of Code of Civil Procedure, without filing either an appeal or a cross-objection?

2. Whether the plaintiffs have proved that the defendant No.1 had agreed to sell the suit schedule property for a consideration of `1,50,000/- to the original plaintiff by executing an agreement of sale dated 16.07.2001?

3. Whether the plaintiffs prove that they were ready and willing to perform his part of the contract?

4. Whether the plaintiffs are entitled for the relief of declaration that the registered sale deed dated 28.11.2001 executed by the defendant No.1 in favour of defendant No.2 is not binding on the plaintiffs?

5. Whether the plaintiffs are entitled for the relief of specific performance of contract?

RFA.No.2103/2006

6. Whether the judgment and decree under appeal warrants any interference at the hands of this Court?

14. The original plaintiff-Sri Ningappa got himself

examined as PW-1, who in his examination-in-chief filed in the

form of affidavit evidence has reiterated the contentions taken

up by him in his plaint. In support of his contention, he got

produced and marked the alleged agreement of sale said to

have been executed by the defendant No.1 in his favour on

16.07.2001 at Ex.P1. He produced two colour photographs with

their negatives stating them to be the photographs pertaining

to the suit schedule property and got the photographs marked

at Ex.P2 and Ex.P3 and negatives at Ex.P2(a) and Ex.P3(a)

respectively. A bill said to have been issued by the

photographer is marked at Ex.P4. The certified copy of the

registered Sale Deed said to have been executed by defendant

No.1 in favour of defendant No.2 and dated 28.11.2001 was

marked at Ex.P5. However, as already observed above, before

his cross-examination, PW-1 passed away.

One Sri C.B.Dhanesh in his examination-in-chief as PW-2 stated that

the agreement at Ex.P1 was witnessed by him and the transaction RFA.No.2103/2006

under the agreement had taken place in his presence and has

identified his signature therein at Ex.P1(c).

The plaintiff No.1(b) Jagadish who is the son of the plaintiff

was examined as PW-3, who also in his examination-in-chief

filed in the form of affidavit evidence has reiterated the

contentions taken up by the plaintiff in the plaint.

Both PW-2 and PW-3 were subjected to a detailed

cross-examination from the defendant's side.

15. The defendant No.1 as DW-1, in his examination-in-

chief filed in the form of affidavit evidence has reiterated the

contentions taken up by him in his written statement. He denied

that he had entered into an agreement of sale of the suit

schedule property with his brother who is the original plaintiff

under an alleged agreement of sale dated 16.07.2001 and had

received any amount as a partial sale consideration from the

plaintiff. He also stated that he had been in possession in the

suit schedule property until he sold and delivered his possession

to defendant No.2 for a valuable consideration. He specifically

stated that he had sold the suit schedule property to the

defendant No.2 under a registered Sale Deed.

RFA.No.2103/2006

16. The defendant No.2 as DW-2 has also reiterated the

summary of her written statement, even in her examination-in-

chief filed in the form of affidavit evidence. The alleged

registered Sale Deed dated 28.11.2001 said to have been

executed by the defendant No.1 was got marked by her as

Ex.D1. The certified copy of khatha certificate and certified

copy of the Tax Assessment extract with respect to the suit

property were got marked by her as Ex.D2 and Ex.D3

respectively. Two endorsements said to have been issued by

the City Municipality, Chitradurga were marked as Ex.D4 and

Ex.D5 respectively. Three tax paid receipts were got marked as

Exhibits-D6, D8 and D9 respectively. The registration fee

receipt issued by the Sub-Registrar, Chitradurga was marked at

Ex.D7.

17. One Sri N.S Narasimhaswamy and one Sri B.

Hanumanthappa were examined as DW-3 and DW-4

respectively from the defendants' side. Both of them in their

examination-in-chief have stated that they were present at the

time of execution of the Sale Deed with respect to the suit

schedule property by the defendant No.1 in favour of defendant

No.2 at Ex.D1 and that they have put their signatures in the RFA.No.2103/2006

said Sale Deed as witnesses. Both of them have identified their

signatures in Ex.D1. They further stated that by virtue of the

said sale in favour of the defendant No.2, the possession of the

suit schedule property was delivered by the defendant No.1 to

the defendant No.2. As such, she has been in possession of the

said property.

All the four witnesses examined for the defendants were

subjected to the cross-examination from the plaintiffs' side.

18. In the light of the above pleadings and evidence of

the parties and the impugned judgment, the arguments of the

learned counsel for the appellants was that the defendants

without filing a Cross-objection or an appeal, cannot challenge

the finding given by the trial Court on the issue No.1. In that

regard, the learned counsel for the appellants relied upon a

judgment of the Hon'ble Apex Court in Banarasi and others -

Vs- Ram Phal reported in (2003) 3 SCC 606.

He further submitted that the very purpose for which the

defendant No.1 agreed to sell the suit schedule property in

favour of the plaintiff was that the plaintiff had been in RFA.No.2103/2006

possession of the suit schedule property and using it for rearing

the cattle and she-buffaloes, however, the said fact was ignored

by the trial Court. He further submitted that the trial Court did

not exercise its discretion appropriately and in a just manner

and it failed to notice that greater hardship would be caused to

the plaintiff if relief for specific performance was denied to the

plaintiff. In that regard, the learned counsel for the appellants

relied upon the judgment of the Hon'ble Apex Court in P.C

Varghese -vs- Devaki Amma Balambika Devi and others

reported in AIR 2006 SC 145 and also the judgment of the

Hon'ble Apex Court in Devalsab -Vs- Ibrahimsab F.Karajagi

reported in (2005) 3 SCC 342. These judgments would be

referred here afterwards at the appropriate places.

19. As already observed, the respondent No.1 though

has been served, but, has remained absent in this appeal.

20. Learned Senior Counsel appearing for the

respondent No.2 in his arguments submitted that, since the

finding of the trial Court on Issue No.1 regarding the existence

of the alleged agreement dated 16.07.2001 between the

plaintiff and the defendant No.1 affects the interest of RFA.No.2103/2006

respondent No.2, the said respondent No.2 can question the

finding given on the said issue by the trial Court under Order

XLI Rule 22 of Code of Civil Procedure, 1908 (hereinafter for

brevity referred to as `CPC'), without even filing a cross-

objection or an appeal. He further submitted that in view of the

fact that PW-1 was dead before his cross-examination, his

evidence would have least probative value, as such, it has to be

eschewed. He also submitted that with respect to the

possession of the suit property, PW-2 has expressed his

ignorance. He was also not present at the time of execution of

alleged agreement of sale dated 16.07.2001. Further, PW-3

who is none else than the son of the plaintiff has also stated

that he was not present at the time of preparation of the Sale

Deed and has expressed his ignorance about the possession of

the suit schedule property by defendant No.2. Therefore, when

the plaintiffs are not in possession of the suit property and

defendant No.2 is a bona fide purchaser and in possession of

the suit schedule property and also when the very alleged

agreement at Ex.P1 could not be proved, the trial Court has

rightly denied the relief of specific performance in favour of the

plaintiff. In his support, the learned Senior Counsel relied RFA.No.2103/2006

upon the judgment reported in the case of Abdul Rashid V/s

Smt. Suganda Kamalakar Kudtarkar reported in 2006 SCC

Online Kar 590.

21. It is an admitted fact that the original plaintiff-Sri

Ningappa and defendant No.1 were own brothers. According to

the plaintiff, his brother who is defendant No.1 had executed an

agreement of sale with respect to the suit schedule property in

his favour as per Ex.P1 on 16.07.2001 agreeing to sell the suit

schedule property to him for a total sale consideration of a sum

of `1,50,000/-, in which, he had received a sum of `50,000/- as

an advance amount. The original plaintiff though was examined

as PW-1, but he died before he could face the cross-

examination from the defendant.

22. Learned Senior Counsel for the respondent No.2 in

his argument submitted that in view of the death of PW-1

before his cross-examination, his entire evidence loses its

probative value, as such, his evidence is required to be

eschewed.

23. Section 33 of the Indian Evidence Act, 1872 reads

as below:

RFA.No.2103/2006

"Section 33. Relevancy of certain evidence for

proving, in subsequent proceeding, the truth of facts therein stated. - Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided -

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding."

A reading of the above Section would go to show that the

evidence given by the witness in a judicial proceeding would be

relevant for the purposes of proving in a later stage of the same

judicial proceeding, the truth of the facts which it states, when

the witness is dead, however, subject to certain proviso.

RFA.No.2103/2006

24. In Food Inspector, Thodupuzha Circle Vs. James

N.T. and another reported in 1998 Cri.L.J 3494, with

respect to the admissibility of evidence of a deceased witness,

who died before his cross-examination, it was observed in

paragraph 13 of the judgment that the evidence of a witness

who could not be subjected to cross-examination due to his

death before he could be cross-examined, in evidence, though

the evidentiary value will depend upon the facts and

circumstances of the case.

25. In Somagutta Sivasankara Reddy and others Vs.

Palapandla Chinna Gangappa and others reported in

MANU/AP/1284/2001 with respect to evidentiary value of a

evidence given by a witness who could not be cross-examined,

it was held in paragraph 7 of the judgment that the evidence

given by a witness, although he had not been cross-examined,

may be admissible in evidence. However, the weight or the

probative value attached to such evidence would depend upon

facts and circumstances of each case. Whether such evidence

should be taken or not would depend upon the fact as to how

far and to what extent the deposition has been made. Whether RFA.No.2103/2006

the witness has spoken about the relevant fact at the stage of

examination-in-chief is also relevant.

26. In the case of Smt. Vanajakshi Vs B. Ningappa

and Others reported in 2021(4) KCCR 3115, a Co-ordinate

Bench of this Court on a similar point was pleased to rely upon

the Commentary and the Law of Evidence in Sarkar's Law of

Evidence, 18th Edn. LexisNexis in Chapter X, after surveying

several English and Indian Decisions extracted a portion of it

which reads as below:

" When a witness dies after examination-in-chief and before cross-examination, the evidence is admissible, but its probative value may be very small and may even be disregarded .... If the examination is substantially complete and the witness is prevented by death, sickness and other causes (mentioned in Sec.33) from finishing his testimony, it ought not be rejected entirely. But if not so far advanced as to be substantially complete, it must be rejected. Deposition of a witness whose cross- examination became impossible can be treated as evidence and the Court should carefully see whether there are indications that by a completed cross- examination the testimony was likely to be seriously shaken or his good faith to be successfully impeached. ... Evidence is admissible if cross-examination is not evaded or deliberately prevented. Death or illness before cross- examination makes the evidence-in-chief admissible RFA.No.2103/2006

though its weight may be slight. But absence from the country, or temporary illness, has been held insufficient, the proper course being to adjourn the trial or issue a commission; .... Farwell. J., rejected in to the evidence of a plaintiff who fainted and was unable to be cross- examined...."

After analysing the law on the point, it was held in the

said case that, in such an event, the evidence is admissible,

provided, the cross-examination is not evaded as deliberately

prevented. However, it was cautioned that the Court to be

careful in adjudging the credence of the witness and the

probative force of his deposition if the subject deposition of the

deceased witness cannot be excluded from record of case.

27. In the light of the above decision, it is clear that

merely because a witness is said to be dead without facing the

cross-examination or in the middle of his cross-examination and

if the facts show that the said witness did not evade or

deliberately prevented his cross-examination in the matter,

then his evidence cannot be eschewed. However, in such a

case, the Court appreciating the evidence of such a witness has

to be careful in adjudging the credence of the witness and the

probative force of his deposition. As such, merely because RFA.No.2103/2006

PW-1 in the instant case died after his examination-in-chief and

before his cross-examination and also when the trial Court

record shows that he did not evade his cross-examination, his

evidence cannot be excluded or eschewed. However, the

probative value of his evidence has to be appreciated and

analysed in the light of the evidence of PW-2 and PW-3.

28. Learned Senior Counsel for the respondent No.2 in

his arguments submitted that the finding given by the trial

Court on Issue No.1 about the alleged agreement of sale dated

16.07.2001 between the plaintiff and the defendant No.1 is an

erroneous finding. He submitted that without even filing a

cross-objection, he can oppose the said finding given by the

trial Court under Order XLI Rule 22 of CPC. Learned counsel for

the appellants, vehemently opposed the said argument of the

learned Senior Counsel for respondent No.2 and submitted that

the said finding on Issue No.1 by the trial Court is in no way

concerned with the respondent No.2 and that it would not affect

the alleged right, if any, of the respondent No.2 He further

submitted that even under Order XLI Rule 22 of CPC, the

respondent No.2, if at all entitled to challenge the said finding,

ought to have filed a cross-appeal or cross-objection which RFA.No.2103/2006

admittedly the respondent No.2 has not filed in the instant

case.

29. Order XLI Rule 22 of Code of Civil Procedure reads as

under:

" Rule 22 - Upon hearing, respondent way object to decree as if he had preferred a separate appeal-

1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit it allow.

30. The Hon'ble Apex Court in Banarsi and Others V/s

Ram Phal, reported in (2003) 9 Supreme Court Cases 606, was

pleased to hold that after the 1976 amendment to the Code of

Civil Procedure, the respondent could file cross objection

against the findings of the lower Court, while previously cross

objections could only be filed when the decree of the lower was RFA.No.2103/2006

partly against the respondent. In paragraph 11 of its judgment,

the Hon'ble Apex Court was pleased to observe as below:

" xxx xxx xxx Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenging to any of finding adverse to him as the decree is entirely in his favour and he may support the decree without cross- objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue."

The Hon'ble Apex Court in Saurav Jain and Another

v/s A.B.P. Design and Another reported in 2021 SCC Online

SC 552, after referring to its various previous judgments

including the one in Banarasi case (supra). In Para 29 of its

judgment, the Hon'ble Apex Court, with respect to Order XLI

Rule 22 of CPC was pleased to observe as below:

" 29. It is apparent from the amended provisions of Order XLI Rule 22 of CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing a cross- objection was enhanced substantively to include objections against 'findings' of the lower court; second, different forms of raising cross-objections RFA.No.2103/2006

were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" from "may also take any cross-objection to the decree" with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection."

Thus, from a reading of Order XLI Rule 22 of CPC in the

light of the above referred judicial precedents, it is clear that

the respondent in an appeal apart from having an opportunity

to file a cross-objection to the decree, may also state that the

finding against him in the Court below in respect of any issue

ought to have been in his favour. Accordingly, though a

respondent in an appeal may object to the finding given on an

issue before filing a counter objection or a cross-appeal,

however, he should first satisfy the Court that the said finding is

against him.

RFA.No.2103/2006

31. In the instant case, as held by the trial Court, the

agreement of Sale dated 16.07.2001 was between the plaintiff

and the defendant No.1. The defendant No.1 though has been

served with the notice, for the reasons best known to him did

not choose to appear in this appeal through his counsel. As

such, he has chosen not to contest the decree under appeal.

He has not contended that the finding on Issue No.1 and 2

given by the trial Court is not acceptable to him. The said

finding is only against the defendant No.1 and it cannot be held

that the same is against the defendant No.2 in the original suit

which defendant No.2 claims herself to be a subsequent

purchaser of the suit schedule property from defendant No.1.

Therefore, since the finding on Issue No.1 and 2 cannot be held

as directly against the defendant No.2 or her interest, she

cannot challenge those finding without filing a cross-objection

or a cross-appeal.

32. The proven fact being that the respondent No.2

herein being the subsequent purchaser of the suit schedule

property from the respondent No.1 on 28.11.2001 and since

the plaintiff is proved to be a holder of an agreement of sale in

his favour with respect to the very same property under an RFA.No.2103/2006

agreement dated 16.07.2001 entered with defendant No.1,

then the point to be considered is whether the

appellant/plaintiff is entitled for the relief of specific

performance.

33. Learned counsel in his arguments submitted that in

case, the specific performance is not granted in favour of the

plaintiff, he would be put to greater hardship. He submitted

that the plaintiff has been in possession of the suit schedule

property and eaking his livelihood by rearing cattle in the said

vacant site, as such, if he is not granted with the relief as

prayed, he would suffer an irreparable injury. The learned

counsel relied upon two judgments of the Hon'ble Apex Court in

his support which are as below:

(i) In Devalsab (dead) by LRs.Vs Ibrahimsab F.Karajagi

reported in (2005) 3 Supreme Court Cases 342, the

question before the Hon'ble Apex Court was regarding the

exercisal of discretionary power under Section 20 of 'the

Act' and the equity. The facts in the said case was that

the agreement of sale of the suit property was first

entered into by the defendant No.2 with the plaintiff.

RFA.No.2103/2006

Though the plaintiff was ready and willing to perform his

part of the contract, the defendant No.1 instead of

executing sale deed in his favour, entered into another

agreement of sale with defendant No.2 who got a sham

suit filed against defendant No.1 and obtained a

compromise decree on the same day, by virtue of which

defendant No.2 obtained a sale deed in his favour from

defendant No.1 in respect of the same property. This

High Court in RSA No.68/1994 with a view to grant a

discretionary relief under Section 20 of the 'Act' held that

as defendant No.2 was in possession of the property prior

to the agreement of sale with plaintiff, in case of his

eviction from the property, he would lose money as well

as long possession and that therefore, on consideration of

hardship which was likely to be caused to defendant No.2,

the decree for specific performance of the sale agreement

in favour of plaintiff passed by the trial Court and first

Appellate Court was not confirmed in second appeal.

However, the High Court directed that the plaintiff would

be entitled to refund of money with costs. In appeal, the

Hon'ble Apex Court held that the High Court erred in RFA.No.2103/2006

granting the discretionary relief in favour of the defendant

No.2. It observed that there was not much equity left in

favour of the defendant No.2 as the suit filed by him was

a pre-arrangement and pre-conceived arrangement with

the defendant No.1 in order to cheat the plaintiff. Hence

the plaintiff was held to be entitled to a decree for specific

performance of the agreement of sale against the

defendant No.1.

(ii) In P.C. Varghese V/s Devaki Amma Balambika

Devi and others reported in AIR 2006 SC 145,

with respect to Section 20 of 'the Act', the Hon'ble

Apex Court was pleased to observe that alternate

plea for refund of earnest amount and damage

cannot itself be barred to claim decree for specific

performance of the contract

34. In Devalsab's case (supra), the Hon'ble Apex

Court reversed the judgment of this Court passed in RSA

No.68/1994 and decreed the suit of the plaintiff by granting the

relief of specific performance mainly for the reason that the

alleged subsequent sale by the defendant No.1 in favour of RFA.No.2103/2006

defendant No.2 and the defendant No.2 filing a suit against the

defendant No.1 for the specific performance was proved to be a

pre-arranged and pre-conceived agreement only to cheat the

plaintiff and the suit was also observed to be a sham suit filed

by the defendant No.2 against the defendant No.1. It is in that

circumstances of the case, the Hon'ble Apex Court held that

exercising equity in favour of the defendant No.2 was uncalled

for. Whereas in the case on hand, it is not at all the contention

of the plaintiff that the defendant No.2 purchased the property

knowing fully well about the existence of agreement of sale

between the plaintiff and the defendant No.1. Further the

pleading as well as the evidence of defendant No.2 throughout

is that she has been a bonafide purchaser for a valuable

consideration who purchased the property without the notice of

the previous alleged agreement of sale by her vendor in favour

of the plaintiff. The evidence of defendant No.2 is also on the

similar lines which could not be shaken in her cross-

examination. Even DW-3 and DW-4 have also supported the

case of the defendant No.2. Hence the judgment in

Devalsab's case (supra) would not be of much helpful to the

appellant/plaintiff.

RFA.No.2103/2006

35. Under Section 20 of the Specific Relief Act, 1963,

the jurisdiction to decree the suit for specific performance is

discretionary and the Court is not bound to grant such relief

merely because it is lawful to do so; but the discretion of the

Court is not arbitrary but sound and reasonable, guided by

judicial principles and capable of correction by a Court of

appeal. Section 20 (2) (b) of the same Act mentions that,

where the performance of the agreement would involve some

hardship on the defendant which did not foresee, whereas its

non-performance would involve no such hardship on the

plaintiff, the Court may exercise its discretion in not decreeing

the suit for specific performance.

36. In the instant case, the plaintiff in the plaint has

contended that the very purpose of entering into an agreement

was to continue his rearing of the cattle in the suit property

which he was doing earlier and to eak his livelihood. To that

extent, a recital can also be found in the agreement. However,

the defendant No.1 in his written statement has specifically

denied the same and categorically denied that the plaintiff has

been in possession of the suit schedule property.

RFA.No.2103/2006

37. PW-1 in his examination-in-chief has stated that at

the permission of the defendant No.1 to use the suit schedule

property for the purpose of rearing the cattle and she-buffaloes,

he constructed a temporary shed over the suit schedule

property. In that regard, he has also got produced two

photographs and marked them at Ex.P2 and Ex.P3 respectively.

However, as observed above, PW-1 died before his cross-

examination. As such, his statement on those lines cannot be

accepted, but requires to be evaluated in the light of the other

evidence available on record.

PW-2 who was examined after the evidence of PW-1 and

who claims to be a witness to the agreement of sale at Ex.P1

has no where in his evidence stated that the suit schedule

property either was in possession of the plaintiff since prior to

the date of the agreement or was delivered to the possession of

the plaintiff on the date of the agreement. On the other hand,

in his cross-examination, he has expressed his ignorance in that

regard by stating that he does not know whether the suit

schedule property was in possession of the defendant No.1 at

the time of the agreement.

RFA.No.2103/2006

PW-3 who is none else than the son of the original

plaintiff (PW-1), though in his examination-in-chief in the form

of affidavit evidence has reiterated the contentions taken up by

his father as PW-1 in his examination-in-chief, even with

respect to the alleged possession of the suit schedule property

by stating the same was with the plaintiff, but, in his cross-

examination, stated that he does not know that presently the

defendant No.2 is in possession of the suit schedule property.

Had really the plaintiff or his family members were in

possession of the suit schedule property, then definitely PW-2

and more particularly, PW-3 were required to state that it is the

plaintiff and his family who are in the possession of the suit

schedule property and that the said suit schedule property was

very much required to eak out their livelihood, otherwise, they

would be put to greater hardship. PW-3 being the legal

representative of the deceased original plaintiff has nowhere

stated that the possession of the suit schedule property with

them is very much required and that denying them the relief of

specific performance would put them to a greater hardship.

RFA.No.2103/2006

38. On the other hand, the defendant No.1 as DW-1 has

not admitted that the photographs at Ex.P2 and Ex.P3 are of

suit schedule property. DW-1 and DW-2 have specifically

stated that the suit schedule property was with the possession

of defendant No.1 as at the time of its sale in favour of

defendant No.2 and the possession was delivered to the

defendant No.2 under the Sale Deed by defendant No.1. Even

DW-3 and DW-4 also have stated that prior to the date of sale

in favour of the defendant No.2, the suit schedule property was

in the possession of defendant No.1. The evidence of DW-1 to

DW-4 on this point could not be shaken even in their cross-

examination. As such, the evidence led from the defendants'

side would go to show that the possession of the suit schedule

property was with the defendant No.1 till he executed Sale

Deed in favour of the defendant No.2 on 28.11.2001 and at the

time of executing the said Sale Deed in favour of the defendant

No.2, the possession of the suit schedule property was also

delivered by the defendant No.1 to defendant No.2. Therefore,

the contention of the learned counsel for the appellant that the

family of the plaintiffs are in possession of the suit schedule

property is not acceptable.

RFA.No.2103/2006

39. Some details were elicited in the cross-examination

of DW-2 to show that since her husband is working in a place

called Hassan, she does not require the suit schedule property

which is at Chitradurga. However, the witness denied that she

is residing at Hassan and that she has no connection with

Chitradurga. On the other hand, she stated in her evidence

that her place of birth is Chitradurga and very recently, she has

gone to Hassan. Therefore, when the plaintiff could not able to

show and establish that he would be put to greater hardship if

the specific performance is denied to him, on the other hand,

since the defendant No.2 has shown that it was for her

necessity she has purchased the suit schedule property in her

home town where she has been living since her childhood,

except for a recent few years, when she has gone to Hassan to

join her husband who is working there, it cannot be held that

the plaintiff would be put to greater hardship if the relief of

specific performance is not granted to him. On the other hand,

the defendant No.2 who is a bona fide purchaser of the suit

schedule property under a registered Sale Deed would be put to

greater hardship, if the specific performance is granted in

favour of the plaintiff. Though the trial Court has not analysed RFA.No.2103/2006

these aspects in detail, however has observed that the

defendant No.2 would be put to greater hardship, if the specific

performance is ordered in favour of the plaintiff. In view of the

analysis made above, I do not find any reason to interfere in

the finding of the trial Court on that issue. As such, the

impugned judgment and decree does not warrant any

interference at the hands of this Court.

40. Accordingly, I proceed to pass the following order:-

ORDER

The Regular First Appeal is dismissed.

In view of the disposal of the main appeal itself,

IA.No.1/2021 stands dismissed as rendered infructuous.

Registry to transmit a copy of this judgment along with

trial Court records to the concerned trial Court without any

delay.

Sd/-

JUDGE

mbb