Mehaboobsab S/O Usmansab ... vs Umansab S/O. Rajaksab Karnulkar
2022 Latest Caselaw 8806 Kant

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                                    RSA No. 100173 of 2017


  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 15TH DAY OF JUNE, 2022

                          BEFORE
            THE HON'BLE MR JUSTICE E.S.INDIRESH
       REGULAR SECOND APPEAL NO. 100173 OF 2017 (SP-)
BETWEEN:

MEHABOOBSAB S/O USMANSAB KARNULKAR
AGE:ABOUT 77 YEARS, OCC:BUSINESS
RESIDENT OF TADAS
TAL:SHIGGAON DIST:HAVERI
SINCE DECEASED BY HIS LRs

1(a)    HALIMBI W/O. MEHABOOBSAB KARNOOLKAR
        AGE: ABOUT 71 YEARS
        OCC: HOUSE HOLD, RESIDENT OF TADAS
        TQ. SHIGGAON, DIST: HAVERI.

1(b)    THAHERA W/O. GOUSAMODIN KARNOOLKAR
        AGE: ABOUT 48 YEARS
        OCC: HOUSE HOLD, RESIDENT OF TADAS
        TQ. SHIGGAON, DIST: HAVERI.

1(c)    MAHAMAD JUBER
        S/O. GOUSAMODIN KARNOOLKAR
        AGE: ABOUT 26 YEARS
        OCC: BUSINESS, RESIDENT OF TADAS
        TQ. SHIGGAON, DIST: HAVERI.

1(d)    MAHAMAD HANEEP
        S/O. GOUSAMODIN KARNOOLKAR
        AGE: ABOUT 33 YEARS
        OCC: BUSINESS, RESIDENT OF TADAS
        TQ. SHIGGAON, DIST: HAVERI.

1(e)    BIBI AISHA D/O. GOUSAMODIN KARNOOLKAR
        AGE: ABOUT 19 YEARS
        OCC: STUDENT, RESIDENT OF TADAS
        TQ. SHIGGAON, DIST: HAVERI.
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                                     RSA No. 100173 of 2017



1(f)   BIBI FATIMA, W/O. NAZEER HAHMAD CHANDAL
       AGE: ABOUT 22 YEARS
       OCC: HOUSE HOLD WORK
       R/O. PLOT NO.46, ALTAF NAGAR
       BEHIND MASGID OLD HUBBALLI

1(g)   JUBEDBI W/O. MAHAMAD BASEER CHANDAI
       AGE: ABOUT 56 YEARS
       OCC: HOUSE HOLD WORK,
       R/O. 194 AFTAF NAGAR
       NA NAGAR, IBRAHIMPUR HUBBALLI

1(h)   FAREED BANU W/O. ABDULKHADAR ANI
       AGE: ABOUT 44 YEARS,
       OCC: HOUSEHOLD WORK
       R/O. KILLA ONI, MUNDAGOLD
       TQ: MUNDAGOD, DIST: UTTAR KANNADA

1(i)   NASEER HAHMAD
       W/O. MEHABOOBSAB KARNULKAR
       AGE: ABOUT 38 YEARS
       OCC: HOUSEHOLD WORK
       RESIDENT OF TADAS
       TQ. SHIGGAON, DIST: HAVERI.

1(j)   MAHAMUDSAB W/O. MEHABOOBSAB
       KARNULKAR, AGE: ABOUT 33 YEARS
       OCC: HOUSEHOLD WORK
       R/O. TADAS, TQ: SHIGGAON, DIST: HAVERI.
                                             ...APPELLANTS
(BY SRI. M. M. HIREMATH, ADVOCATE)
AND:

UMANSAB S/O. RAJAKSAB KARNULKAR
AGE:49 YEARS, OCC:BUSINESS
RESIDENT OF TADAS
TAL:SHIGGAON DIST:HAVERI

                                            ...RESPONDENT

(BY MS DEEPA J., FOR SRI. MRUTYUNJAYA TATA BANGI,
ADVOCATE)
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                                             RSA No. 100173 of 2017


    THIS RSA IS FILED U/S. 100 OF CODE OF CIVIL
PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE
DATED 23.09.2016 PASSED IN RA NO.103/2015 ON THE FILE
OF THE ADDL. SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HAVERI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 19.08.2015 PASSED IN O.S.NO.181/2008 ON THE FILE
OF THE CIVIL JUDGE, JUDICIAL MAGISTRATE FIRST CLASS,
SHIGGAON, DECREEING THE SUIT FILED FOR SPECIFIC
PERFORMANCE.

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

                                JUDGMENT

This Regular Second Appeal is filed by the defendant,

challenging the judgment and decree dated 23.09.2016 passed by

the Addl. Senior Civil Judge and JMFC, Haveri (hereinafter referred

to as 'the First Appellate Court', for brevity), in R.A.No.103/2015,

confirming the judgment and decree dated 19.08.2015 passed by

the Civil Judge and JMFC, Shiggaon (hereinafter referred to as 'the

trial Court', for brevity) in O.S.No.181/2008, decreeing the suit of

the plaintiff.

2. For the sake of convenience, the parties to this appeal

shall be referred to in terms of their status and ranking before the

trial Court.

RSA No. 100173 of 2017

3. The relevant facts for adjudication of this appeal are

that, the plaintiff has stated that he has entered into an agreement

of sale dated 11.12.2007 with the defendant to purchase the suit

schedule property bearing Survey No.253/1B/1 measuring 2 acres

23 guntas situated at Tadas village, Shiggaon Taluk, Haveri Dist for

a valuable consideration of Rs.3,64,000/- and pursuant to the

same, plaintiff has paid an advance amount of Rs.2,00,000/- to the

defendant. It is also agreed by the parties that remaining

Rs.1,64,000/- will be paid at the time of registration of the Sale

Deed. It is also agreed by the parties that, the defendant had to

clear the bhoja created on the suit schedule property. It is further

stated in the plaint that, despite the request made by the plaintiff for

execution of the sale deed, defendant was postponing the terms as

stipulated in the agreement and as such, the plaintiff caused a legal

notice dated 22.07.2008 calling upon the defendant to execute the

sale deed by receiving the balance sale consideration. The said

notice was replied by the defendant on 07.08.2008 by evincive

reply. Hence the plaintiff filed a suit seeking specific performance

of the contract.

RSA No. 100173 of 2017

4. After service of notice, defendant entered appearance

and filed detailed written statement denying the averments made in

the plaint. It is the case of the defendant that, the plaintiff is the

money lender and he had received Rs.1,50,000/- from the plaintiff

as loan and also the plaintiff insisted for signature on the blank

papers and the same has been converted into agreement of sale.

Accordingly, it is the case of the defendant that, the agreement of

sale dated 11.12.2007 is a sham document and not binding on the

plaintiff and accordingly, sought for dismissal of the suit.

5. The trial Court based on the pleadings on record

formulated the issues for its consideration.

6. In order to establish his case, plaintiff has examined

three witnesses as PWs.1 and 3 and produced 5 documents and

the same were marked as Exs.P1 to P5. Defendant has examined

5 witnesses as DWs.1 to 5 and produced 4 documents and the

same were marked as Exs.D1 to D4. The trial Court after

considering the material on record by its judgment and decree

dated 19.08.2015, decreed the suit of the plaintiff and thereby

directed the defendant to execute the registered sale deed in

favour of the plaintiff in respect of the suit schedule property.

RSA No. 100173 of 2017

Feeling aggrieved by the same, defendant has preferred

R.A.No.103/2015 before the First Appellate Court and the same

was resisted by the plaintiff. The first Appellate Court after

considering the material on record, by its judgment and decree

dated 23.09.2016, dismissed the appeal, consequently, confirmed

the judgment and decree passed in O.S.No.181/2008 dated

19.08.2015. Feeling aggrieved by the same, defendant has

presented this Regular Second Appeal.

7. I have heard Sri.M. M. Hiremath, learned counsel

appearing for the appellants and Ms. Deepa J., learned counsel

appearing for the respondent.

8. Sri.M. M. Hiremath, learned counsel appearing for the

appellants contended that, both the Courts below have not

considered the oral and documentary evidence on record. It is the

submission of Sri. Hiremath that, the plaintiff had admitted in the

examination that he had drawn money from the bank on the date of

the execution of the agreement of sale dated 11.12.2007.

However, the plaintiff has not produced any document with regard

to the same and therefore, the finding recorded by the Courts

below requires to be interfered in this appeal. He further

RSA No. 100173 of 2017

contended that, the plaintiff was having money lending business in

the village and therefore, the said aspect has not been properly

appreciated by the Courts below. Therefore, learned counsel

appearing for the appellant sought for interference of this court.

9. Per contra, Ms. Deepa J., learned counsel appearing

for the respondent invited the attention of this Court to the finding

recorded by the trial Court with regard to issue Nos.3 and 4 and

submitted that, the defendant has not placed any material before

the trial Court to establish that the plaintiff was doing money

lending business and that apart, witnesses and scribe to the said

agreement were examined before the court as PWs.2 and 3 and

therefore, she contended that, the finding recorded by both the

Courts below is just and proper and does not call for any

interference in this appeal.

10. In the light of the submissions made by the learned

counsel appearing for the parties, the factual aspects are that, the

plaintiff had entered into an agreement of sale with the defendant

on 11.12.2007 (Ex.P1) to purchase the suit schedule property for a

total consideration of Rs.3,64,000/-. In this regard, the witness and

scribe to the agreement of sale dated 11.12.2007 (Ex.P1) deposed

RSA No. 100173 of 2017

that, the agreement was executed in their presence and the plaintiff

received advance sale consideration of Rs.2,00,000/- from the

plaintiff with an assurance to execute registered sale deed within

the stipulated time. Though the learned counsel appearing for the

appellant argued that the defendant had received Rs.1,50,000/- as

loan amount since the plaintiff was having money lending business

and in this regard, evidence of DW4 itself would indicate that, the

plaintiff was not doing money lending business. Perusal of the

evidence of DW5, would substantiate the fact that the plaintiff is an

agriculturist and therefore, the contentions raised by learned

counsel appearing for the appellant cannot be accepted that the

defendant had received Rs.1,50,000/- towards availing loan from

the plaintiff.

11. In this regard I have also carefully considered the fact

that, on perusal of Ex.P2 - legal notice dated 22.07.2008, the

plaintiff had expressed his readiness and willingness to purchase

the suit schedule property and the reply dated 07.08.2008 by the

defendant as per Ex.P5 would indicate that the defendant has

breached the agreement of sale dated 11.12.2007. Therefore, I am

of the view that the trial Court after considering the material on

RSA No. 100173 of 2017

record rightly come to the conclusion that the agreement of sale

dated 11.12.2007 is valid and pursuant to the same, directed the

defendant to execute the registered sale deed. Therefore, I do not

find any fault with the finding recorded by the trial Court. I have

also noticed that the First Appellate Court analysed the facts in the

right perspective as required under Order 41 Rule 31 of Code of

Civil Procedure, wherein the First Appellate Court taking into

consideration the entire material on record and on appreciating the

same, had come to the conclusion that the defendant has pleaded

that the plaintiff was doing money lending business, however, the

same was not proved with cogent evidence on record.

12. In that view of the matter, I am of the view that both the

Courts below have rightly decreed the suit of the plaintiff and in that

view of the matter, I do not find any material illegality in the

impugned judgment and decree passed by the Courts below and

appellant has not made out a case for framing of substantial

question of law as required under Section 100 of Code of Civil

Procedure and following the law declared by the Hon'ble Apex

Court in the case of C. S. Venkatesh Vs. A. S. c. Murthy (D) by

Lrs. And others reported in AIR 2020 SC 930, the plaintiff has

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RSA No. 100173 of 2017

proved all the ingredients to be required for proving the agreement

of sale dated 11.12.2007 (Ex.P1) and both the Courts below have

concurrently held against the defendant. Therefore, I am of the

view that no substantial question of law is required to be framed in

this appeal and accordingly the appeal is dismissed as devoid of

merits.

Sd/-

JUDGE

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