Annappa Topaji Kalal vs Sushilabai W/O Rajanna ...
2022 Latest Caselaw 331 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 10TH DAY OF JANUARY 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.5676/2013 (S.P)

BETWEEN

ANNAPPA TOPAJI KALAL,
AGE: 54 YEARS, OCC: BUSINESS,
R/O YADWAD, GOKAK-591037
BELGAUM DIST.
                                           ... APPELLANT
(BY   SRI VINAY S.KOUJALAGI,
      SMT. VIJAYLAXMI AND SRI KUSHAL BOLMAL, ADVTS)

AND

SUSHILABAI,
W/O RAJANNA PAWADSHETTI,
SINCE DECEASED BY HER LRS.

UMESH S/O RAJANNA PAWADSHETTI
@ DHARWADKAR,
SINCE DECEASED BY HIS LRS.

1.    SMT.SHASHIKALA
      W/O UMESH PAWADSHETTI,
      @ DHARWADKAR AGE: 41 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O BASAVESHWAR CIRCLE YADWAD,
      GOKAK-591307.

2.    Sri MANOJKUMAR
      S/O UMESH PAWADSHETTI,
      @ DHARWADKAR,
      AGE: 41 YEARS
                            2




     OCC: BUDINESS,
     R/O BASAVESHWAR CIRCLE YADWAD,
     TQ: GOKAK-591307.

3.   KUMARI REKHA
     D/O UMESH PAWADSHETTI,
     @ DHARWADKAR, AGE: 23 YEARS,
     OCC: AGRIL. AND HOUSEHOLD WORK,
     R/O BASAVESHWAR CIRCLE YADWAD,
     TQ: GOKAK-591307.

4.   BASAWWA
     D/O UMESH PAWADSHETTI
     @ DHARWADKAR, AGE: 27 YEARS
     OCC: HOUSEHOLD WORK,
     R/O BASAVESHWAR CIRCLE YADWAD,
     TQ: GOKAK-591307.

5.   SIDRAMAYYA MAHANTAYY CHATTIMATH
     AGE: MAJOR OCC: AGRICULTURE,
     R/O BASAVESHWAR CIRCLE YADWAD,
     TQ: GOKAK-591307.
                                           ... RESPONDENTS

(THE APPEAL AGAINST RESPONDENT NOS.1TO4: DISMISSED)

(BY SRI DINESH M.KULKARNI, ADV. FOR R.5)

     THIS RSA IS FILED U/S.100 R/W. ORDER 41 RULE 1 OF
CPC, PRAYING THIS COURT TO SET ASIDE THE JUDGEMENT &
DECREE DATED 27.04.2013 PASSED IN R.A.NO.16/2010 ON THE
FILE OF THE II ADDL. SENIOR CIVIL JUDGE, GOKAK AND THE
JUDGMENT   AND   DECREE   DATED   17.03.2010   PASSED   IN
O.S.NO.332/1999 ON THE FILE OF THE ADDL. CIVIL JUDGE,
GOKAK.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                  3




                       : JUDGMENT :

The captioned second appeal is filed by

unsuccessful plaintiff who is challenging the

concurrent judgments and decrees of the Courts

below who have refused to grant discretionary relief of

specific performance of contract and have ordered for

refund with interest at the rate of 18%.

2. Facts leading to the above stated case are

as follows:

The appellant/plaintiff filed a suit for specific

performance of contract by contending that

respondent No.1/defendant No.1 offered to sell the

suit property in his favour and accordingly entered

into an agreement by executing an agreement to sell

on 05.06.1996 for a sale consideration of Rs.20,000/-.

The appellant/plaintiff has further contended that

pursuant to the said agreement to sell, he paid an

earnest money of Rs.15,000/- and that he was ever

ready and willing to perform his part of contract. It

was also contended that respondent No.1/defendant

No.1 delivered possession as per the recitals in the

agreement to sell. The present suit in

O.S.No.332/1999 was filed on 16.10.1999 after

issuing legal notice when appellant/plaintiff found that

the 1st defendant has sold the suit schedule property

under a registered sale deed dated 26.04.1999.

3. Respective parties have let in ocular and

documentary evidence in support of their contentions.

The Trial Court having perused the oral and

documentary evidence has answered Issue Nos.1 to 3

in the affirmative by holding that the

appellant/plaintiff has proved due execution of suit

agreement and payment of earnest money of

Rs.15,000/-. The Trial Court has also recorded a

finding that the appellant/plaintiff has proved his

readiness and willingness. However, the Trial Court

has answered Issue Nos.4 & 7 in the affirmative by

holding that the suit filed by the appellant/plaintiff is

barred by limitation and has further held that the 2nd

defendant is a bonafide purchaser without notice and

has proceeded to dismiss the suit filed by the

appellant/plaintiff.

4. The appellant/plaintiff preferred regular

appeal in R.A.No.16/2010 before the II Additional

Senior Civil Judge, Gokak. The First Appellate Court on

re-appreciation of oral and documentary evidence has

concurred with the findings recorded by the Trial Court

on Issue No.6 and thereby point No.4 is answered in

the negative. The First Appellant Court while

answering point No.4 has come to conclusion that

except bald allegations, the appellant/plaintiff has not

placed on record any clinching evidence to

demonstrate that the transaction between defendant

No.1 and 2 is a collusive transaction and that the 2nd

defendant is not bonafide purchaser for valuable

consideration. On these set of reasons, the First

Appellate Court has concurred with the findings of the

Trial Court and has dismissed the appeal. The

appellant is before this Court questioning the

concurrent judgment and decree of the Courts below.

5. Heard learned counsel for the appellant and

learned counsel for the respondents.

6. The appellant/plaintiff has filed a suit for

specific performance of contract. The agreement is

dated 05.06.1996. The appellant/plaintiff claims that

he was put in possession by the 1st respondent/ owner

who has delivered possession pursuant to the

agreement after receipt of Rs.15,000/- as earnest

money. The records clearly reveals that the

agreement to sell dated 05.06.1996, whereas the suit

is filed on 16.10.1999. Though, time is not stipulated

in the suit agreement. However, this Court would find

that there is a laxness on the part of appellant/plaintiff

in not enforcing his right on the basis of suit

agreement. The second defendant has succeeded in

establishing that he is a bonafide purchaser of the suit

schedule property for valuable consideration.

7. It is a trite law that the purchaser is

required to make appropriate enquiry and burden is

on the purchaser to establish his bonafides. Since

subsequent purchaser is deemed to have notice under

Explanation-II of Section 3 of Transfer of Property Act,

the purchaser has to make enquiries about nature of

possession and title. If such an enquiry is not made, it

would mean that the purchaser willfully refrained from

making the enquiry or grossly neglected to do so.

Protection under Section 19(b) of the Specific Relief

Act is only available if the transferee is able to

establish that he is bonafide purchaser for value

without notice, which is in fact in the nature of an

explanation to the general rule. Good faith is a

question of fact, which must be considered and

decided on the facts of each case. Both the Courts

have concurrently held that defendant

No.2/respondent No.2 is a bonafide purchaser for

valuable consideration without notice. Though burden

is on the 2nd defendant as the onus of proof lies upon

the 2nd defendant so as to defeat the prior contract, it

is also a trite law that the burden is light and he may

discharge it by merely denying the factum of notice on

oath. In any case, a little evidence is required on his

part to prove this fact in negative. If both the Courts

have concurrently held that defendant

No.2/respondnet No.2 is bonafide purchaser, which is

based on legal evidence, this Court under Section 100

of CPC cannot re-appreciate the evidence, which is

impermissible under law. Both the Courts have

concurrently held that the plaintiff has failed to

establish that the transaction between defendant

Nos.1 and 2 is collusive. Admittedly, the suit

agreement is dated 05.06.1996. Under the

agreement, appellant/plaintiff is asserting that he was

delivered possession by respondent/ defendant. The

amendment to Stamp Act was brought on 01.04.1995

and the suit agreement is executed after amendment

to the Stamp Act and therefore any agreement

indicating delivery of possession would amount to

conveyance and therefore, requires registration.

8. Admittedly, the suit agreement is

unregistered document and therefore the recital in

regard to delivery of possession cannot be looked into.

In fact both the Courts have not examined the

admissibility of suit agreement itself. However, since

there is a concurrent finding that the 2nd defendant is

a bonafide purchaser, the Trial Court exercising

judicial discretion has rightly ordered for refund of

earnest money with 18% interest and the same is

confirmed by the First Appellate Court. I do not find

any infirmities or illegalities in the judgments under

challenge. No substantial question of law arises for

consideration and accordingly the appeal stands

dismissed.

Sd/-

JUDGE EM