Hussainbee W/O Jandi Peer Sab vs Bashasab S/O Khajasab Hulihyder
2022 Latest Caselaw 2053 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 9TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                   RSA.NO.100829/2014 (SP)
BETWEEN

1.    SMT.HUSSAINBEE W/O JANDI PEER SAB,
      AGED ABOUT: 43 YEARS, OCC: HOUSEHOLD,
      R/O. HOSALLI, TQ: GANGAVATHI, DIST: KOPPAL

2.    JANDI PEERSAB S/O HUSSAINSAB
      AGED ABOUT: 48 YEARS, OCC: BUSINESS,
      R/O. HOSALLI, TQ: GANGAVATHI, DIST: KOPPAL
                                                   ... APPELLANTS

(BY SRI.B.SHARANABASAWA, ADV.)

AND

BASHASAB S/O KHAJASAB HULIHYDER
AGED ABOUT: 33 YEARS, OCC: RICE MILL FITTER,
R/O. HOSLLI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL

                                                ... RESPONDENT
(BY SRI.S.H.MITTALKOD, ADV.)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.09.2014
PASSED BY THE SENIOR CIVIL JUDGE AT GANGAVATHI IN
R.A.NO.11/2006 AND THE JUDGMENT AND DECREE DATED
17.10.2005 PASSED BY THE LEARNED ADDL. CIVIL JUDGE (JR.DN.)
GANGAVATHI IN O.S.NO.126/2003 BY ALLOWING THIS APPEAL.

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




                         JUDGMENT

The captioned regular second appeal is filed by

unsuccessful defendants questioning the concurrent

judgment and decree of both the courts below who have

granted discretionary relief of specific performance of

contract in favour of respondent/plaintiff.

2. Respondent/plaintiff filed a suit for specific

performance of contract in O.S.No.126/2003.

Respondent/plaintiff claim that present

appellants/defendants are absolute owners of the suit

schedule property and for family necessity they offered to

sell the suit schedule property for a sale consideration of

Rs.27,500/-. The respondent/plaintiff accepted the offer

and entered into an agreement with the appellants

/defendants. Accordingly, the appellants/defendants have

executed an agreement to sell on 18.03.2003 by receiving

an advance amount of Rs.27,200/-. Respondent/plaintiff

further contended that, it was agreed that physical

possession of the suit schedule property would be handed

over within two months at the time of execution of sale

deed. Respondent/plaintiff claims that though he requested

the present appellants/defendants that he is ever ready

and willing to perform his part of contract and called upon

appellants/defendants to receive balance sale consideration

of Rs.300/- and execute the sale deed, however, the

appellants/defendants went on postponing the same on

one or the other pretext. This compelled

respondent/plaintiff to issue a legal notice on 17.06.2003

calling upon the appellants/defendants to execute the sale

deed. Since the appellants/defendants did not come

forward to perform their part of contract pursuant to legal

notice, the present suit was filed.

3. In response to summons, the present

appellants/defendants tendered appearance, filed written

statement and stoutly denied the entire averments made in

the plaint. There is a total denial in regard to execution of

suit agreement in favour of respondent/plaintiff. The

appellants/defendants also specifically denied the alleged

payment of Rs.27,200/- on 18.03.2003.

Appellants/defendants have further contended that the suit

agreement is created and fabricated document and

therefore, prayed for dismissal of the suit.

4. The trial court having assessed oral and

documentary evidence answered issue No.1 in the

affirmative by holding that respondents/plaintiff has

succeeded in proving that appellants/defendants have

agreed to sell the suit schedule property in his favour and

accordingly executed an suit agreement vide Ex.P1 by

receiving advance amount of Rs.27,200/-. While answering

issue No.3 in the affirmative, the trial court has recorded a

categorical finding that respondent/plaintiff has succeeded

in proving that he is ever ready and willing to perform his

part of contract. While examining issue No.5, the trial court

has answered the same in the negative and has come to

the conclusion that appellants/defendants have failed to

prove that suit agreement was executed only as a security

towards the loan amount received from

respondent/plaintiff. The trial court having examined ocular

and documentary evidence has come to the conclusion that

respondent/plaintiff is entitled for discretionary relief of

specific performance of contract.

5. Feeling aggrieved by the judgment and decree

of the trial court, the present appellants/defendants

preferred an appeal in R.A.No.11/2006. The first appellate

court having independently assessed oral and documentary

evidence has also recorded a finding that

respondent/plaintiff has succeeded in proving that

appellants/defendants offered to sell the suit schedule

property for legal necessity and have accordingly received

earnest money of Rs.27,200/- out of total sale

consideration of Rs.27,500/-. The first appellate court was

also of the view that respondent/plaintiff has succeeded in

establishing his readiness and willingness and therefore,

having negatived the contention of the

appellants/defendants, the first appellate court confirmed

the judgment and decree of the trial court.

6. Heard the learned counsel for the appellants,

learned counsel for the respondent and perused the

judgments under challenged.

7. The defence taken by the present

appellants/defendants is in two folds. At one breath there

is a total denial of execution of suit agreement and at

second breath, a specific contention is taken by

appellants/defendants that their son was partner with the

plaintiff and they were doing business in the suit schedule

property. Having taken the said contention, it was

incumbent on the part of the appellants/defendants to

establish that suit agreement came to be executed only

towards security and there was no intention to sell the suit

schedule property. The clinching evidence on record

adduced by respondent/plaintiff clearly indicates that

appellants/defendants for legal necessity were compelled

to sell the suit property and accordingly, have executed

suit agreement on 18.03.2003 by receiving advance

amount of Rs.27,200/-. The material on record clearly

indicates that substantial portion of sale consideration was

paid. In all probability, two months time was granted only

to enable the appellants/defendants to make arrangements

to shift the business from the suit schedule property. This

inference can be drawn as respondent/plaintiff has virtually

paid the entire sale consideration. Both the courts below

have concurrently held that the suit agreement came to be

executed by appellants/defendants for legal necessity. If

really, the suit agreement was executed for collateral

security, then it was incumbent on the part of

appellants/defendants to adduce cogent evidence. Both the

courts have drawn adverse inference against

appellants/defendants for having failed to examine the

witnesses to the suit agreement. Both the courts below

have concurrently held that respondent/plaintiff is entitled

for discretionary relief of specific performance of contract.

When substantial sale consideration is paid and

respondent/plaintiff has succeeded in proving that he is

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

disputed questions of fact which are now raised before this

court in the form of grounds urged in the second appeal

cannot be entertained under Section 100 of CPC.

8. No substantial question of law arises for

consideration in the present case on hand. Accordingly, the

appeal stands dismissed.

SD/-

JUDGE MBS/-