K N Parmesh vs Nagaraja
2022 Latest Caselaw 3581 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 3rd DAY OF MARCH, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE R. NATARAJ

     REGULAR SECOND APPEAL No.2958/2010 (SP)

BETWEEN:

K.N.PARMESH
S/O G.NANJAPPA
AGED ABOUT 50 YEARS
R/AT KERAGODU VILLAGE
HALLYMYSORE HOBLI
HOLENARSIPUR TALUK
HASSAN.                                   ...APPELLANT
(BY SRI. B.ROOPESHA, ADVOCATE)

AND

1.     NAGARAJA
       S/O.KALAIAH
       SINCE DEAD REP BY LRs

1(a)   GEETHA
       W/O LATE NAGARAJA
       AGED ABOUT 33 YEARS

1(b)   HARSITH
       S/O LATE NAGARAJA
       AGED ABOUT 11 YEARS

1(c)   MEGANA
       D/O LATE NAGARAJA
       AGED ABOUT 09 YEARS
       ALL ARE R/AT KERAGODU VILLAGE
       HALLYMYSORE HOBLI
       HOLENARSIPUR TALUK
       HASSAN - 573 211
                            2


2.   THAYAMMA
     W/O.KALAIAH
     AGED ABOUT 59 YEARS
     R/AT KERAGODU VILLAGE
     HALLYMYSORE HOBLI
     HOLENARSIPUR TALUK,
     HASSAN-573 211

3.   SHAMAIAH
     S/O.BHADRAIAH
     AGED ABOUT 65 YEARS
     R/AT KERAGODU VILLAGE
     HALLYMYSORE HOBLI
     HOLENARSIPUR TALUK,
     HASSAN-573 211
                                          ...RESPONDENTS

[NOTICE SERVED ON RESPONDENT NOs.2 AND 3 AND
UNREPRESENTED,
 NOTICE SERVED ON RESPONDENT NO.1(a) AND
 UNREPRESENTED,
 RESPONDENT NO.1(b & c) ARE MINORS REPRESENTED BY
 RESPONDENT NO.1(a)]

     THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT   AND   DECREE   DATED   24.09.2010   PASSED   IN
R.A.NO.103/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HOLENARASIPURA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED: 17.11.2007 PASSED IN
O.S.NO.116/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN) &
JMFC., HOLENARASIPURA. TRIAL COURT DISMISSED THE SUIT,
APPELLATE COURT DISMISSED THE APPEAL. THE SUIT FOR
SPECIFIC PERFORMANCE OF AGREMENT.

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


                            JUDGMENT

This appeal is filed by the unsuccessful plaintiff

challenging the concurrent finding of fact recorded by the

Court of the Civil Judge (Jr. Dvn.) and JMFC, Holenarsipura

(henceforth referred to as 'Trial Court') in

O.S.No.116/2003 dated 17.11.2007 and the Court of the

Senior Civil Judge at Holenarispura (henceforth referred to

as 'First Appellate Court') in R.A.No.103/2007 dated

24.09.2010, refusing to grant the relief of Specific

Performance to enforce an Agreement of Sale dated

02.11.2001.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court. The appellant

herein was the plaintiff while the respondents herein were

the defendants before the Trial Court.

3. The suit in O.S.116/2003 is filed to enforce

part of an agreement of sale dated 02.11.2001 executed

by the defendant No.1 agreeing to sell 30 guntas of land in

survey No.155/3 in Keragodu Village, Hallymysore Hobli,

Holenarsipura Taluk, Hassan District. The plaintiff claimed

that the defendant No.1 had agreed to sell the aforesaid

land for a total sale consideration of Rs.35,000/- of which

he received a sum of Rs.20,000/- and it was agreed that

the defendant No.1 would execute a sale deed as and

when desired by the plaintiff. Subsequent thereto, the

defendant Nos.1 and 2 had executed a sale deed on

04.09.2002 in respect of 15 guntas of land. Thereafter the

defendants without the notice, knowledge and consent of

the plaintiffs sold the remaining 15 guntas of land in favour

of the defendant No.3 on 07.10.2003. The plaintiff

therefore filed a suit on 18.10.2003 for enforcement of the

sale agreement regarding the remaining 15 guntas of land.

The plaintiff claimed that he was ready and willing to

perform his part of the contract but it was the defendant

No.1 who was protracting the conclusion of the

transaction.

4. Per contra, the defendant Nos.1 and 2 denied

the execution of the sale agreement dated 02.11.2001 but

admitted the fact that the defendant Nos.1 and 2 had

executed a sale deed dated 04.09.2002 and conveyed the

northern half of the land in Sy.No.155/3 in Keragodu

Village in favour of the plaintiff. They contended that the

plaintiff had created the agreement dated 02.11.2001 to

knock off their property. They claimed that the total extent

of land in Sy.No.155/3 of Keregodu village was 1-28 acres

which was their ancestral property. Out of the above, 28

guntas was sold to Yogaswamy S/o Kallegowda of

Keregodu village and another 20 guntas was sold to the

plaintiff on 07.02.2001. Thereafter, another extent of 15

guntas was sold to the plaintiff on 04.09.2002. They

however contended that the remaining 15 guntas was not

agreed to be sold to the plaintiff.

5. The defendant No.3 contended that he had

purchased the 15 guntas of the land from the defendant

Nos.1 and 2 and was in possession of the suit property.

6. Based on these rival contentions, the Trial

Court framed the following issues:

"1. ¢£ÁAPÀ: 2-11-2001 gÀAzÀÄ MAzÀ£Éà ¥ÀæwªÁ¢AiÀÄÄ ªÁ¢UÉ PÉgÉUÉÆÃqÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA§æ: 155:3 gÀ°è£À 30 UÀÄAmÉ d«ÄãÀ£ÀÄß 35,000-00 gÀÆ¥Á¬ÄUÀ½UÉ ªÀiÁgÁl ªÀiÁqÀ®Ä M¦à, CzÀgÀAvÉ 20,000-00 gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ªÀÄÄAUÀqÀªÁV ¥ÀqÉ¢zÀÝgÀÄ J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

2. PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæzÀAvÉ MAzÀ£Éà ¥ÀæwªÁ¢¬ÄAzÀ PÀæAiÀÄ ¥ÀvÀæªÀ£ÀÄß §gɹPÉƼÀî®Ä ªÁ¢AiÀÄÄ ¸ÀzÁ ¹zÀݤzÀÝ£ÀÄ J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

3. MAzÀÄ ªÀÄvÀÄÛ JgÀqÀ£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ ªÀÄÆgÀ£Éà ¥ÀæwªÁ¢UÉ ¢£ÁAPÀ: 7-10-2003 gÀAzÀÄ §gÉzÀÄ PÉÆnÖgÀĪÀ PÀæAiÀÄ ¥ÀvÀæªÀÅ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁVzÉ J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

4. ªÁ¢AiÀÄÄ F zÁªÁzÀ°è PÉýgÀĪÀ ¥ÀjºÁgÀUÀ½UÉ CºÀðgÉÃ?

5. ºÁUÁzÀgÉ K£ÀÄ DzÉñÀ CxÀªÀ rQæAiÀiÁUÀ¨ÉÃPÀÄ?"

7. The Plaintiff was examined as PW1 and a

witness as PW2 and marked documents as Exs.P1 to P.11

while the defendant Nos.1 and 3 were examined as DW1

and DW2 and two other witnesses were examined as DW3

and DW4 and no documents were marked on behalf of the

defendants.

8. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff had proved the

execution of the agreement dated 02.11.2001 but was not

entitled to the suit reliefs on following grounds:

(i) that the plaintiff had not established that he had the

funds and that he had offered it to the defendant

No.1 to conclude the sale transaction.

(ii) that the defendant Nos.1 and 2 had executed a sale

deed in respect of 15 guntas of the land soon after

receiving a notice from the plaintiff demanding

conclusion of the transaction. Hence, if the plaintiff

had the funds, he could have obtained a sale deed in

respect of the entire property on the same day.

(iii) that the property was the ancestral property of the

defendant No.1 where the defendant No.2 and her

daughters were entitled to a share and that they had

not executed the agreement of sale dated

02.11.2001.

(iv) that the defendant Nos.1 and 2 for their legal

necessity had sold the property to the defendant

No.3 and therefore it was not equitable to compel

him to convey the property.

9. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiff filed a first appeal, which was also

dismissed. Hence, he has filed the present Regular Second

Appeal.

10. The learned counsel submitted that when the

plaintiff had proved the lawful execution of the agreement

and when the defendant Nos.1 and 2 had conveyed portion

of the land, the Trial Court must have granted specific

performance to compel conclusion of the transaction. He

submitted that the defendant No.1 had taken a totally

destructive defence that he had not executed the sale

agreement, while the sale deed executed by him on

04.09.2002 referred to the agreement dated 02.11.2001

and also the fact that a sum of Rs.20,000/- was paid there

under. The learned counsel therefore submitted that the

defendant No.1 was not honest in the transaction but had

unlawfully sold the property to the defendant No.3, without

the notice/knowledge of the plaintiff. He therefore

contended that the Courts below committed an error in not

considering the case pragmatically as the defendant No.3

was also a resident of the same village and knew about the

agreement executed by the defendant No.1 in favour of

the plaintiff. He submitted that both the Courts arbitrarily

exercised the discretion to reject the suit reliefs. He also

contended that the defendant No.1 had executed the sale

deed dated 04.09.2002 for a sum of Rs.12,000/- and

therefore the Courts must have at least ordered refund of

Rs.8000/- along with interest.

11. I have considered the submission of the

learned counsel for the plaintiff/ appellant and I have

perused the Judgments of both the Courts.

12. As rightly contended by the learned counsel for

the plaintiff, the defendant No.1 even after executing the

agreement of sale dated 02.11.2001 had backtracked and

claimed that he had not executed such an agreement. This

claim of the defendant Nos.1 and 2 was falsified by the

recitals in the sale deed dated 04.09.2002, which referred

to the agreement of sale dated 02.11.2001 as well as the

receipt of a sum of Rs.20,000/-. However, what needs to

be noticed is that the plaintiff issued a notice dated

22.08.2002 calling upon the defendant No.1 to conclude

the sale transaction in respect of the entire extent by

receiving the balance sale consideration. The defendant

Nos.1 and 2 thereafter executed a sale deed dated

04.09.2002 conveying 15 guntas of the land against sale

consideration of Rs.12,000/- that was received under the

agreement dated 02.11.2001. There is no evidence

whether the plaintiff had kept his right alive to claim the

remaining 15 guntas of land. Be that as it may, nothing

happened thereafter until the defendant Nos.1 and 2 sold

the remaining 15 guntas of land in favour of the defendant

No.3 on 07.10.2003. The plaintiff then woke up and filed

the present suit for specific performance on 18.10.2003.

The plaintiff was not able to demonstrate his preparedness

to conclude the transaction between 04.09.2002 till

07.10.2003. The defendant Nos.1 and 2 had no intention

to retain the property to themselves but had a clear

intention to dispose it off since they did so by executing a

sale deed in favour of the defendant No.3.

13. The claim for refund of Rs.8000/- is also not

justified since the plaintiff did not establish that he had

kept his rights alive under the agreement of sale dated

02.11.2001 and he had also not sought for refund in the

original suit.

14. The Trial Court and the First Appellate Court

have carefully considered the oral and documentary

evidence and recorded a finding of fact that the plaintiff

was never ready and willing to conclude his part of the

contract. This Court did not find any substantial question

of law in the case that required consideration.

Hence, this appeal lacks merit and is dismissed.

Sd/-

JUDGE SKS/HDK