Karnataka High Court
Pawapuri Co-Operative Housing ... vs Gurusingh Bheemsingh Hajeri on 10 June, 2022
Bench: M.G.S. Kamal
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RSA No. 5265 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 10TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 5265 OF 2012 (SP)
BETWEEN:
1. PAWAPURI CO-OPERATIVE HOUSING SOCIETY LTD.,
LINGARAJ NAGAR, HUBLI,
BY ITS CHAIRMAN ASHOK BASAPPA KALBANDI,
AGE: 34 YEARS, OCC: BUSINESS,
AT: LINGARAJ NAGAR (SOUTH),
HUBLI-580031.
...APPELLANT
(BY SRI.SUNIL S DESAI, ADV. FOR
SRI. PRAKASH ANDANIMATH, ADV.)
AND:
1. GURUSINGH BHEEMSINGH HAJERI
SINCE DECEASED BY HIS LRS
GANGAWWA W/O. RAMASINGH HAJERI,
AGE: 57 YEARS, R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOP,
UNKAL, HUBLI-580031.
2. BABUSINGH GUDUSINGH HAJERI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DIBBADA ONI,
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RSA No. 5265 of 2012
BEHIND UNKAL BUS STOPUNKAL,
HUBLI-580031.
3. SHANKARSINGH GUDUSINGH HAJERI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL,
HUBLI-580031.
4. VITHALASING GUDUSINGH HAJERI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL,
HUBLI-580031.
5. BHEEMASINGH GUDUSINGH HAJERI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL,
HUBLI-580031.
6. PARASHURAM GUDUSINGH HAJERI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL,
HUBLI-580031.
7. CHANDRASINGH GUDUSINGH HAJERI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL, HUBLI-580031.
8. SARASAVATI D/O. GUDUSINGH HAJERI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL,
HUBLI-580031.
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RSA No. 5265 of 2012
9. SONUBAI W/O. GUDUSINGH HAJERI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL,
HUBLI-580031.
10. LAXMIBAI W/O. RATNSINGH HAJERI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL, HUBLI-580031.
11. RENUKA D/O. RATNSINGH HAJERI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. DIBBADA ONI,
BEHIND UNKAL BUS STOPUNKAL,
HUBLI-580031.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B HIREMATH, ADV.
FOR R2-R9; R11 & R12;
SRI.A.P.MURARI, ADV. FOR R11 & R12;
APPEAL AGAINST R10 DISMISSED)
THIS RSA IS FILED U/S. 100 OF C.P.C., AGAINST
THE JUDGEMENT & DECREE DTD:03.11.2011 PASSED IN
R.A.N0.100/2007 ON THE FILE OF THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT
HUBLI, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT DTD:07.11.2007 AND THE DECREE PASSED IN
O.S. NO.24/2000 ON THE FILE OF THE FIRST ADDL.
CIVIL JUDGE (SR.DN.) HUBLI, DECREEING THE SUIT
FILED FOR SPECIFIC PERFORMANCE AND POSSESSION.
THIS RSA COMING ON FOR ADMISSION, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5265 of 2012
JUDGMENT
1. This Regular First Appeal by the plaintiff
aggrieved by the judgment and order dated 03.11.2011
passed in Regular Appeal No.100/2007 on the file of the I
Additional District and Sessions Judge, Dharwad sitting at
Hubli (hereinafter referred to as 'the first appellate Court')
by which dismissing the Regular Appeal filed by the
plaintiff, the first appellate Court confirmed the judgment
and decree dated 07.11.2007 passed in O.S.No.24/2000
on the file of the I Additional Senior Civil Judge (Sr.Dn.),
Hubli (hereinafter referred to as 'the trial Court').
2. Brief facts of the case:
The plaintiff-Society filed a suit seeking relief of
specific performance of a contract directing the defendants
to execute deed of sale in respect of the suit properties by
receiving balance sale consideration amount and in the
alternate, for the refund of earnest money contending
inter alia that; the suit properties being the lands bearing
R.S.Nos.555/1 (555A/1), 556/1 (556A/1) and 557/1
RSA No. 5265 of 2012
(557A/1) measuring 1 acre 25 guntas, 22 guntas and 1
acre respectively of Unkal, Hubli belonging to the
defendants and the plaintiff had agreed to purchase the
suit properties for a total consideration of Rs.3,24,500/-
and had paid in all Rs.3,07,500/- towards the sale
consideration; that the defendants agreed initially to sell 5
acres 16 guntas and later the same was reduced to 3
acres 07 guntas; that the plaintiff was liable to pay the
balance amount of Rs.17,000/- only. That the plaintiff-
Society had requested the Government to initiate
acquisition proceedings and alternatively had also sought
permission under the provisions of Karnataka Land
Reforms Act to purchase the lands and on 24.10.1998,
had secured permission. The plaintiff-Society from the
date of agreement till this day was always ready and
willing to perform its part of the contract. That after
obtaining permission from the Government, the plaintiff-
Society got issued a notice on 25.01.1999 to the
defendants to perform their part of contract, which was
RSA No. 5265 of 2012
though served on defendant Nos. 1 and 2, they did not
claim the notice. Since the defendants failed to perform
their part of the contract, plaintiff-Society was constrained
to file the suit for the aforesaid reliefs.
3. On service of summons, defendants appeared
through their advocates. Defendant No.5 filed written
statement which was adopted by defendant Nos. 3, 4, 6 to
12. The defendants while denying the case of the plaintiff
contended that the suit lands are the ancestral properties
and the agreement if any entered into by defendant No.1
was not binding on the other defendants as the same was
not for the benefit of the family. That there was no legal
necessity to enter into such transaction and the plaintiff-
Society having already been wound up was not entitled for
such reliefs. The suit was also not maintainable for delay
and laches, no hardship would be caused to the plaintiff-
Society if the suit was dismissed.
4. Based on the pleadings of the parties, the trial
Court framed the following issues and additional issue:
RSA No. 5265 of 2012
1) Whether plaintiff proves that defendants are
represented that they were the absolute owners of
the suit properties and they have promised to sell
the suit properties to the plaintiff either by giving
consent for acquisition or through private treaty for
a valuable consideration of Rs.3,24,500/- and
defendants had agreed to sell 5 acres 16 guntas and
later it was confined to 3 acres 7 guntas by consent
and defendants have collected a sum of
Rs.3,07,500/- as alleged in the plaint?
2) Whether defendants no.1 and 2 prove that
defendant no. 1 and 2 have been unnecessarily
impleaded and dragged to the court as alleged in
para 2 of the written statement?
3) Whether plaintiff is entitled for reliefs sought for?
4) What order or decree ?
Additional issue:
1) Whether defendant no.5 proves that even
assuming that there was such an agreement, the
same was never kept alive as alleged in para 11 of
the written statement ?
5. The plaintiff examined four witnesses as PWs.1
to 4 and produced 37 documents marked as Exs.P1 to
P37. Defendant No.5 was examined as DW1 and marked
no documents.
6. The trial Court on appreciation of pleadings and
evidences partly decreed the suit of the plaintiff holding it
RSA No. 5265 of 2012
to be entitled for refund of the earnest money of
Rs.3,07,500/- with interest at 6% per annum from the
date of the suit till realization. The suit for specific
performance of the contract was rejected.
7. Being aggrieved by the same, the plaintiff filed
regular appeal in R.A.No.100/2007 before the first
appellate Court. Considering the grounds urged by the
plaintiff, the first appellate Court framed the following
points for its consideration:
1. Whether the impugned judgment and decree
passed by the learned I Additional Civil Judge
(Sr.Dn.), Hubli is unsustainable in law?
2. If so, whether the plaintiff is entitled for the relief
of specific performance of contract as prayed and
not for refund of the earnest money together
with interest as ordered?
3. What order?
8. By the impugned judgment and order dated
03.11.2011, the first appellate Court dismissed the suit of
the plaintiff and confirmed the judgment and decree
RSA No. 5265 of 2012
passed by the trial Court. Being aggrieved by the same,
plaintiff-Society is before this Court.
9. Sri.Sunil Desai, learned counsel reiterating the
grounds urged in the memorandum of appeal submitted
that the trial Court as well as the first appellate Court
erred in holding that there is no agreement specifically
spelling out the terms of contract despite the plaintiff
producing documentary evidences in this regard; that the
trial Court and the first appellate Court erred in holding
that the suit properties were joint family properties and
defendant Nos. 1 and 2 had no authority to enter into the
agreement on behalf of defendant Nos. 3 to 12; that the
trial Court and the first appellate Court erred in not
decreeing the suit, at least to the extent of shares of
defendant Nos. 1 and 2; that the trial Court and the first
appellate Court have not considered the factum of
hardship that would cause to the plaintiff who has paid
Rs.3,07,500/- as earnest money as against the agreed
sale consideration of Rs.3,24,500/-; that there arises
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RSA No. 5265 of 2012
substantial question of law requiring consideration and
sought for allowing of the appeal.
10. On the other hand, Sri.Mallikarjunswamy B.
Hiremath, learned counsel for the respondents submitted
that the trial Court and the first appellate Court have
rightly arrived at the conclusion that there is no
agreement between the plaintiff and the defendants and
even if there were to be one, the same was purportedly
signed by defendant Nos. 1 and 2 and not by defendant
Nos. 3 to 12; that the plaintiff was aware of the rights of
the defendant Nos. 3 to 12 over the suit properties even at
the time of entering into the agreement and has not taken
any steps to get their signatures and that the plaintiff-
Society being an entity, the question of hardship to be
considered in favour of the Society would not arise; that
there is no substantial question of law arising in the
matter. Hence, sought for dismissal of the appeal.
11. Heard the learned counsel for the parties.
Perused the records.
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RSA No. 5265 of 2012
12. From the contents of the pleadings in the plaint
and the written statement as noted in the impugned
judgments, it is clear that the plaintiff had agreed to
purchase 5 acres 16 guntas of land which was later
confined to 3 acres 07 guntas by mutual consent. But
there is no detail regarding this initial agreement. But as
per PW1, the purported agreement of sale is dated
28.02.1990 at Ex.13 which is a cyclostyle format without
any details and Exs.P14 to Ex.P19, Exs.P34, P35, P36, P37
are the alleged continued agreements and there is no
formal agreement entered into between the parties. The
trial Court and the first appellate Court have taken note of
the fact that the said agreement of sale dated 28.02.1990
has been executed only by defendant Nos.1 and 2 and the
other defendants are not party to the same. The trial
Court and the first appellate Court have taken note of the
contents at Exs.P14, 15, 16, 17, 18 and 19 which are
shown as "agreement of sale" and "agreement for
acquiring the lands by giving consent". The trial Court and
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RSA No. 5265 of 2012
the first appellate Court have also taken note of the fact
that till the year 1999, the plaintiff could not obtain
permission from the Government for acquisition of the
lands and only in the year 1999, the plaintiff-Society came
up with the present suit.
13. As seen from the impugned judgment of the
appellate Court, PW1 has in unequivocal terms admitted
that decree for partition had been obtained by the
defendants in respect of the subject matter of the suit and
as such, defendant Nos. 1 and 2 and their children had
specific share in the properties. PW1 has also admitted in
his evidence that at the time of execution of Ex.P13, all
the children were major and their signatures have not
been obtained and that he had knowledge about the rights
of other defendant Nos. 3 to 12 over the suit lands. Since
defendant Nos. 1 and 2 alone had allegedly agreed to sell
the properties over which defendant Nos. 3 to 12 also had
their shares, right, title and interest, the trial Court and
the first appellate Court have rightly concluded that no
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RSA No. 5265 of 2012
such agreement was binding on the defendant Nos. 3 to
12.
14. In the absence of a formal agreement, the
plaintiff sought to establish the terms of contract through
Ex.P13 and series of other documents. The trial Court at
paragraph 13 of its judgment has taken note of the fact
that Ex.P13 is a cyclostyle format with blank space filled in
without providing details of the terms. However in view of
the counterfoil at Exs.P1 to P11 produced by the plaintiff
regarding payment of amount of Rs.3,07,500/- over the
period of time, the trial Court has directed refund of the
amount with interest at 6 % per annum.
15. No infirmity can be found with the reasoning
given by the trial Court and confirmed by the first
appellate Court for the relief of specific performance, is
one of equitable relief to be granted in exercise of its
discretionary jurisdiction. The plaintiff is a Society which
has sought to purchase the lands from defendant Nos. 1
and 2 without specific term, in the year 1990. The
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RSA No. 5265 of 2012
plaintiff-Society has apparently attempted to seek
acquisition of the suit lands through the Government or in
the alternate, to obtain permission to purchase the lands
under the Karnataka Land Reforms Act. Thus, the plaintiff-
Society was aware of the risk and possibility or otherwise
involved in acquisition of the suit lands. Having taken a
chance to have the lands acquired, the unsuccessful
plaintiff-Society claimed to have issued notice on
25.01.1999 to the defendants i.e. after lapse of 9 years
from the date of initial agreement on the premise of
having obtained permission to purchase the land. Suffice
to state, the claim of the plaintiff being ready and willing
to perform its part of the contract, under the
circumstance, cannot be countenanced. Besides the
binding nature of contract is disputed by defendant Nos. 3
to 12, who are admittedly not the signatories, the plaintiff
being aware of these aspects of the matter cannot claim
hardship to be considered in its favour. No substantial
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RSA No. 5265 of 2012
question of law arises for consideration. Appeal is
dismissed.
Sd/-
JUDGE
KGK
