Sri B E Basavarajappa vs Sri M Chandrappa @ Chandrashekar
2022 Latest Caselaw 5232 Kant

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF MARCH, 2022

                          BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.2072 OF 2018 (SP)

BETWEEN:

SRI. B.E. BASAVARAJAPPA
S/O B.ESHWARAPPA,
AGED ABOUT 56 YEARS
AGRICULTURIST,
BARANDUR VILLAGE,
KASABA HOBLI,
BHADRAVATHI.

PRESENTLY RESIDING AT
SHANKARAGHATTA MAIN ROAD,
SHANTHINAGAR,
BHADRAVATHI TALUK,
SHIVAMOGGA DISTRICT - 577 115.
                                            ...APPELLANT

(BY SRI. DAYALU K.N., ADVOCATE)

AND:

1.     SRI M. CHANDRAPPA @ CHANDRASHEKHAR
       S/O. LATE PATEL RUDRAPPA,
       AGED ABOUT 39 YEARS,
       AGRICULTURIST,
       R/O. MALENAHALLI VILLAGE,
       KASABA HOBLI,
       BHADRAVATHI TALUK,
       SHIVAMOGGA DISTRICT - 577 451
                               2


2.    CHI. ANKITH
      S/O. M.R. CHANDRAPPA,
      AGED ABOUT 17 YEARS,
      MINOR,
      REPRESENTED BY NATURAL GUARDIAN
      MOTHER, SMT. PUSHPA,
      W/O M.R. CHANDRAPPA,
      AGED ABOUT 35 YEARS,
      AGRICULTURIST,
      R/O MALENAHALLI VILLAGE,
      KASABA HOBLI,
      BHADRAVATHI TALUK,
      SHIVAMOGGA DISTRICT -577 451.

                                              ...RESPONDENTS

[BY SRI. H.B. RUDRESH AND SRI M. SURENDRA, ADVOCATE
FOR RESPONDENT NOS.1 AND 2 (ABSENT)]

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 31.08.2018
PASSED IN R.A. NO.40/2013 ON THE FILE OF THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA,
SITTING AT BHADRAVATHI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 15.12.2012
PASSED IN O.S.NO.75/2006 ON THE FILE OF C/C THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC., BHADRAVATHI.

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

                        JUDGMENT

This appeal is filed by the unsuccessful plaintiff

challenging the concurrent finding of fact recorded by both

the Courts that the plaintiff is not entitled to the relief of

specific performance of an agreement of sale dated

16.04.2003.

2. The parties will henceforth be referred to 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. No.75/2006 was filed for

specific performance of an agreement of sale dated

16.04.2003 whereunder the defendant No.1 had allegedly

agreed to sell the suit schedule property in favour of the

plaintiff for a total sale consideration of Rs.5,00,000/- and

had received a sum of Rs.2,00,000/- as part of the sale

consideration and also agreed to execute the sale deed by

receiving the balance price of Rs.3,00,000/- within three

years. The plaintiff alleged that he was ready and willing

to perform his part of the contract and despite repeatedly

demanding the defendant No.1 to conclude the

transaction, he did not do so without any justifiable

reason. The plaintiff alleged that the defendant No.1 went

on postponing the execution of the sale deed, which

compelled the plaintiff to issue a notice dated 31.03.2006

calling upon the defendant No.1 to conclude the sale

transaction by receiving the balance sale consideration.

Since the defendant No.1 failed to comply with the

demand, the suit was filed on 15.04.2006 for specific

performance of agreement of sale.

4. The defendant No.1 entered appearance

through counsel and filed his written statement denying

the execution of the agreement of sale and the receipt of a

sum of Rs.2,00,000/- as part of the sale consideration. He

contended that he was related to the plaintiff, who was in

a dominating position. He alleged that he was not worldly

wise and hence, the plaintiff taking undue advantage,

created a document by misrepresenting that the signature

of the defendant No.1 was required as a witness. The

defendant No.1 claimed that out of good faith, he believed

the plaintiff and signed the documents without knowing its

contents. He also claimed that the plaintiff was doing

financial business at Barandur in Bhadravathi. The

defendant No.1 further contended that the plaintiff used to

get thumb impressions and signatures from innocent

borrowers and used to represent to them that they were

required to maintain accounts and to submit financial

returns to the authorities.

5. During the pendency of the suit, the defendant

No.2, being the son of defendant No.1 was impleaded on

an application filed by his mother and guardian. The

defendant No.2 filed a written statement denying the

execution of the agreement of sale dated 16.04.2003. The

defendant No.2 further contended that the defendant No.1

was addicted to vices and had neglected the welfare of the

defendant No.2 and his mother and borrowed loan for his

illegal and immoral activities. Therefore, defendant No.2

and his mother expressed their intention to separate and

demanded their share in the suit schedule property. The

defendant No.2 had filed O.S. No.17/2008 for partition and

separate possession of their share in the suit property

which was pending consideration before the Court of

Senior Civil Judge, Bhadravathi. It was stated that the

agreement of sale dated 16.04.2003 was neither for any

legal necessity nor for the benefit of the estate and that

the value of the property was worth much more than a

sum of Rs.5,00,000/-. Hence, he claimed that the

agreement of sale for a meagre sum of Rs.5,00,000/- was

unconscionable and unenforceable.

6. After impleadment of defendant No.2 in the

suit, the plaintiff got amended the plaint and contended

that the defendant No.1 had executed an agreement of

sale dated 16.04.2003 on his behalf and also on behalf of

his minor. Defendant No.1 thereafter filed an additional

written statement on 07.06.2011 contending that he had

borrowed loan from the plaintiff and at the request of the

plaintiff, the defendant had executed an agreement of sale

dated 16.04.2003 for security to repay the loan amount.

7. Based on these rival contentions, the Trial

Court framed the following Issues:

"1. Whether the plaintiff proves that on 16.4.2003, defendant no.1 on behalf of himself and on behalf of minor defendant no.2 entered into an agreement of sale of the suit schedule property for consideration of Rs.5,00,000/- as contended in the plaint?

2. Whether the plaintiff proves that on the date of execution of agreement of sale, he had paid Rs.2,00,000/- as advance sale consideration amount to defendant no.1 as contended in the plaint?

3. Whether the plaintiff proves that he is ever ready and willing to perform his part of contract?

4. Whether the plaintiff is entitled for the relief sought for?

5. What Order or decree?"

8. The plaintiff was examined as PW.1 and he

examined two other witnesses as PWs.2 and 3 and marked

documents as Exs.P1 to P15. The defendant No.1 was

examined as DW.1 and two witnesses were examined as

DWs.2 and 3 and marked documents as Exs.D1 to D7.

9. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff had failed to prove

the execution of the agreement dated 16.04.2003. He also

failed to prove the payment of a sum of Rs.2,00,000/- as

advance sale consideration to the defendant No.1 and that

he was ready and willing to perform his part of the

contract.

10. The Trial Court, however, partly decreed the

suit and directed the defendant No.1 to repay a sum of

Rs.2,00,000/- along with interest at 18% per annum from

16.04.2003 till payment in view of his admission in the

additional written statement that he had executed the

agreement of sale dated 16.04.2003 to assure return of a

hand loan taken from the plaintiff.

11. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiff filed Regular Appeal No.40/2013.

12. The First Appellate Court secured the records

of the Trial Court, heard the learned counsel for the parties

and framed the following points for consideration:

"1. Whether the plaintiff has proved that the defendant No.1 personally as well as guardian of defendant No.2, has executed agreement of sale dated: 16.4.2003 agreeing to sell the suit schedule property for Rs.5,00,000/- and received advance sale consideration of Rs.2,00,000/-?

2. Whether the impugned Judgment and Decree is erroneous and unsustainable and calls for interference of this Court, in view of the reasons assigned in the appeal memo?

3. What order?"

The First Appellate Court in terms of the impugned

Judgment and Decree, dismissed the appeal.

13. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed.

14. The learned counsel for the plaintiff/appellant

submitted that the Trial Court misdirected itself in not

framing an issue that arose for consideration, namely,

whether the defendant No.1 proved that the agreement in

question was executed for the purpose of a loan

transaction. The learned counsel contended that without

framing this relevant issue, the Trial Court and the First

Appellate Court returned a finding that the sale agreement

dated 16.04.2003 was for the purpose of securing the

hand loan allegedly raised by the defendant No.1 from the

plaintiff. He also submitted that the Trial Court committed

an error in allowing an additional written statement to be

filed.

15. The learned counsel also submitted that non-

framing of an issue is a substantial question of law that

needs consideration in the present appeal. The learned

counsel, in this regard relied upon the judgment of the

Hon'ble Apex Court in PRAKASH CHANDRA vs.

NARAYAN [(2012) 5 Supreme Court Cases 403]. He also

submitted that it is not necessary for the plaintiff to

demonstrate that he had the entire amount of sale

consideration in his hands. In this regard, he relied upon

the judgment of the Apex Court in AZHAR SULTANA vs.

B. RAJAMANI AND OTHERS [AIR 2009 SC 2157]. He

also relied upon the Judgment of this Court in ALI SAB,

DECEASED BY HIS LRS., vs. MR. MOHIUDDIN

SHARIFF AND ANOTHER [ILR 2012 KAR 6161] and

contended that unless there is specific pleading, the Court

will not be required to summon itself to enquire into facts

which are not disputed or pleaded by the defendant.

16. The learned counsel for the respondent Nos.1

and 2 is absent and hence, this Court could not have the

benefit of his arguments.

17. I have considered the submissions made by

the learned counsel for the plaintiff/appellant. I have

carefully considered the records of the Trial Court.

18. A perusal of the agreement of sale dated

16.04.2003 discloses that the defendant No.1 was the

owner of the suit property, he having derived it as his

share at a partition dated 07.03.1994. The defendant No.1

had purportedly agreed to sell the suit property as the

kartha of the family to meet the legal necessities, namely,

to meet the expenses of raising the defendant No.2. The

total sale consideration was a sum of Rs.5,00,000/- of

which a sum of Rs.2,00,000/- was paid by the plaintiff and

the balance consideration was payable within three years.

This agreement was registered before the Sub-Registrar,

Bhadravathi on the same day i.e., 16.04.2003. The suit

property was 8.24 acres in Sy.No.3/P3 of Thavaraghatta

village, Kasaba hobli, Bhadravathi Taluk, which apparently

lay abutting the village. The plaintiff caused a notice dated

31.03.2006 demanding conclusion of the transaction. This

was replied by the defendant No.1 who claimed that the

plaintiff was closely related to him and claimed that the

plaintiff took his signatures on the pretext that they were

required to attest a document. In the suit filed by the

plaintiff for specific performance, he pleaded that he was

ready and willing to complete his obligation. He contended

that after the execution of the sale agreement, the

defendant No.1 had raised a loan from the State Bank of

India, Shankarghatta, Bhadravathi.

19. In reply, defendant No.1 denied the averments

of the plaint and contended that the plaintiff was closely

related to him and taking advantage of this, he obtained

signatures on documents under the pretext that they were

needed for attesting documents executed by his customers

who had availed loan from the plaintiff. The defendant

No.2 filed a written statement contending that defendant

No.1 was addicted to vices and taking advantage of this,

the plaintiff had created the sale agreement. He alleged

that since defendant No.1 was not looking after him and

his mother, a suit in O.S.No.17/2008 was filed for partition

and separate possession of his share, before the Court of

Civil Judge (Senior Division), Bhadravathi. He claimed that

there was no legal necessity for the family that compelled

the defendant No.1 to allegedly agree to sell the suit

property. He alleged that the plaintiff was a money lender

and concocted the suit agreement to meet his illegal intent

to deprive the defendant No.1 of the suit property.

20. The defendant No.1 filed an additional written

statement on 07.06.2011 after the plaint was amended on

19.04.2011 in terms of the Order of the Trial Court dated

13.04.2011 wherein he contended that he borrowed loan

from the plaintiff and on his request, the defendant No.1

extended the sale agreement as a security for repayment

of the loan.

21. The above pleadings indicate beyond doubt

that the defendant No.1 had indeed executed the

agreement of sale dated 16.04.2003. The defendant No.1

had taken two different defence. At one stretch, he

claimed that he was tricked into executing the agreement

of sale as it was required for the purpose of attestation, on

the other, he claimed that he executed it as a security for

repayment of a loan raised from the plaintiff.

22. In the light of the above, the Trial Court must

have ideally framed an issue, whether the defendant No.1

proved that the agreement of sale was executed as

security for repayment of a loan. However, the evidence of

the plaintiff and his witnesses shows that both the plaintiff

and defendant No.1 proceeded with the trial in the above

backdrop and have understood each others case.

Therefore, the contention of the learned counsel for the

plaintiff that non-framing of the issue is fatal to the case

cannot be accepted. The judgment of the Apex Court in

PRAKASH CHANDRA's case (referred supra) is

distinguishable as in that case, though the vendor had not

pleaded hardship, yet the First Appellate Court reversed

the decree of specific performance on the ground that the

vendor would be rendered landless while the purchaser, a

businessman would not suffer any hardship. It was in that

context that the Hon'ble Supreme Court held that the

question of hardship cannot be considered without framing

an issue and without giving adequate opportunity to the

parties to adduce evidence.

23. The evidence of the plaintiff, which is relevant

for the purpose of this case is extracted as below:

"£Á£ÀÄ ªÀÄvÀÄÛ 1£Éà ¥ÀæwªÁ¢ ¸ÀA§A¢üPÀgÀÄ EgÀÄvÉÛêÉ. F zÁªÉ ºÀÆqÀĪÀ ªÉÆzÀ®Ä £À£Àß ºÁUÀÆ ¥ÀæwªÁ¢AiÀÄ ªÀÄzsÉå C£ÉÆåãÀå

¸ÀA§AzsÀ«zÀÄÝ ºÉÆAzÁtÂPÉ EvÀÄÛ. £À«Ää§âgÀ ªÀÄzsÉå ¸ÀA§AzsÀ ZÉ£ÁßVzÁÝUÀ ¥ÀæwªÁ¢ CªÀ±ÀåPÀvÉ EzÁÝUÀ £À¤ßAzÀ PÉÊ ¸Á® ¥ÀqÉzÀÄ ªÀÄgÀÄ¥ÁªÀw ªÀiÁqÀÄwÛzÀÝ£ÀÄ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."

"¥ÀæwªÁ¢ ¨sÀzÁæªÀw vÁ®ÆQ£À vÁªÀgÀWÀlÖ UÁæªÀÄzÀ ¸À.£ÀA:3:¦-3gÀ°è 8 JPÉæ 24 UÀÄAmÉ d«Ää£À ªÀiÁ°ÃPÀ¤gÀÄvÁÛ£É. ¥ÀæwªÁ¢UÉ ¨ÉøÁAiÀĪÉà DzÁAiÀÄzÀ ªÀÄÆ®ªÁVgÀÄvÀÛzÉ. ¸ÀzÀjà 8 JPÉæ 24 UÀÄAmÉ d«Ää£À°è ¥ÀæwªÁ¢ ªÀļÉUÁ®zÀ°è ¨sÀvÀÛ ªÀÄvÀÄÛ EvÀgÉà ¸ÀªÀÄAiÀÄzÀ°è vÀgÀPÁj ¨É¼ÉAiÀÄÄvÁÛ£É. ±ÀAPÀgÀWÀlÖzÀ°è PÀĪÉA¥ÀÄ «±Àé«zÁå®AiÀÄ DzÀ £ÀAvÀgÀ vÀªÀgÀWÀlÖzÀ d«ÄãÀÄUÀ¼À ¨É¯É KjgÀ§ºÀÄzÁVzÉ. F zÁªÁ ªÀåªÀºÁgÀPÀÆÌ ¥ÀƪÀðzÀ°è ¥ÀæwªÁ¢ £ÀªÉÆäqÀ£É ºÀtPÁ¹£À ªÀåªÀºÁgÀ ªÀiÁrzÀ AiÀiÁªÀÅzÉà zÁR¯É EgÀĪÀÅ¢®è."

"±ÀAPÀgÀWÀlÖzÀ°è PÀĪÉA¥ÀÄ «±Àé«zÁå®AiÀÄ 87-88£Éà ¸Á°£À°è §A¢zÉ. PÀĪÉA¥ÀÄ «±Àé«zÁ央AiÀÄ DzÁV¤AzÀ ±ÀAPÀgÀWÀlÖ ªÀÄvÀÄÛ ¸ÀÄvÀÛ ªÀÄÄvÀÛ®Æ gÀ¸ÉÛ C©üªÀÈ¢Þ DVzÉ. DzÀgÉ vÁªÀgÀWÀlÖzÀ°è gÀ¸ÉÛ C©üªÀÈ¢Þ DV®è. vÁªÀgÀWÀlÖ-±ÀAPÀgÀWÀlÖUÀ¼À ªÀÄzsÉå PÉêÀ® MAzÀÄ d«ÄãÀÄ ºÁAiÀÄÄÝ ºÉÆÃUÀÄvÀÛzÉ. vÁªÀgÀWÀlÖ UÁæªÀÄzÀ°è UÁæªÀÄPÉÌ ºÀwÛgÀªÁV ¤ªÉñÀ£ÀUÀ¼ÀÄ, ªÀÄ£ÉUÀ¼ÀÄ DUÀÄwÛªÉ."

"£À£ÀUÉ zÁªÁ ¸ÉÆvÀÛ£ÀÄß ªÀiÁgÁl ªÀiÁqÀ®Ä M¦àzÀ ¸ÀAzÀ¨sÀðzÀ°è ¥ÀæwªÁ¢ PÀĨÉÃgÀ¥Àà ©£ï F±ÀégÀ¥Àà¤UÉ zÁªÁ ¸ÉÆvÀÛ£ÀÄß ¨sÉÆÃUÀåPÉÌ ºÁQzÀÄÝ ©r¹PÉƼÀî®Ä ºÀt ¨ÉÃPÁzÀ PÁgÀt £À£ÀUÉ zÁªÁ ¸ÉÆvÀÛ£ÀÄß ªÀiÁgÁl ªÀiÁqÀ®Ä M¦àzÀÝ£ÀÄ. ¥ÀæwªÁ¢ PÀĨÉÃgÀ¥Àà¤UÉ zÁªÁ ¸ÉÆvÀÛ£ÀÄß gÀÆ.80000PÉÌ ¨ÉÆÃUÀå ºÁQzÀÝ£ÀÄ. PÀĨÉÃgÀ¥Àà¤UÉ ¥ÀæwªÁ¢ zÁªÁ ¸ÉÆvÀÄÛ ¨ÉÆÃUÀå ºÁQzÀÝ PÀÄjvÀÄ zÁR¯É £ÉÆÃrzÉÝãÉ."

"PÀæAiÀÄPÀgÁgÀÄ ¥ÀvÀæzÀ°è ¥ÀæwªÁ¢ ªÀÄUÀ£À «zÁå¨sÁå¸À ¯Á®£É¥Á®£ÉUÉAzÀÄ d«ÄãÀÄ ªÀiÁgÁl ªÀiÁqÀĪÀ PÀÄjvÀÄ §gɹzÉ JAzÀÄ ¸ÀļÀÄî ºÉüÀÄvÉÛÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¤¦-1gÀ ¸ÁQëzÁgÀ ¥ÀgÀªÉÄñÀégÀ¥Àà £À£ÀUÉ ºÉtÄÚ PÉÆlÖ ªÀiÁªÀ¤gÀÄvÁÛ£É. E£ÉÆߧ⠸ÁQëzÁgÀ ¥ÉæêÀiï PÀĪÀiÁgï ¸ÀºÁ £À£Àß ¸ÀA§A¢üPÀ¤gÀÄvÁÛ£É. ¤¦-1£ÀÄß §gÉAiÀÄ®Ä £ÀgÀ¹AºÀAiÀÄå J£ÀĪÁvÀ ªÀiÁ»w PÉÆnÖzÁÝ£É. ¸ÀzÀjà £ÀgÀ¹AºÀAiÀÄå£À vÀAzÉ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ «¼Á¸À UÉÆwÛgÀĪÀÅ¢®è. ¤¦-1 gÀ°è ZÀPÀÄ̧A¢ ¨sÁUÀzÀ°è zÀQëtPÉÌ AiÀiÁªÀ ¸ÉÆvÀÄÛ EzÉ JAzÀÄ PÉʧgÀºÀzÀ°è £ÀgÀ¹AºÀAiÀÄå §gÉ¢gÀÄvÁÛ£É. ¸ÀzÀjà ¨sÁUÀzÀ°è UÁæªÀÄoÁuÁ JAzÀÄ £ÀgÀ¹AºÀAiÀÄå£Éà §gÉzÀ §UÉÎ AiÀiÁªÀÅzÉà µÀgÁ, ¸À» EgÀĪÀÅ¢®è."

"£Á£ÀÄ ¨ÁgÀAzÀÆj£À°èzÁÝV¤AzÀ®Æ gÉÊvÀjUÉ CªÀ±Àå EzÁÝUÀ ºÀt ¸Á® PÉÆqÀĪÀÅzÀÄ C®èzÉà UÉƧâgÀ EvÁå¢ ªÀiÁgÁl ªÀiÁqÀÄvÉÛãÉ. 1983 jAzÀ 97 gÀªÀgÉUÉ £Á£ÀÄ UÉƧâgÀzÀ CAUÀr ElÄÖ ªÀåªÀºÁgÀ ªÀiÁqÀÄwÛzÁÝUÀ D jÃw ªÀåªÀºÁgÀ ªÀiÁrgÀÄvÉÛãÉ."

24. PW.2 deposed that himself and his wife had

executed an agreement of sale on 31.07.2004 (Ex.D5) in

favour of the plaintiff herein agreeing to sell his land

measuring 20 guntas in Sy.No.153/P for Rs.1,05,000/- and

received advance of Rs.40,000/-. He claimed that this was

a loan transaction. He deposed that later, the agreement

was cancelled on 18.07.2007 and a sum of Rs.40,000/-

was repaid by him to the plaintiff.

25. PW.3 deposed that he is the owner of 01 acre

11 guntas of land in Sy. No.25/1 of Baranduru village and

that the plaintiff had desired to purchase this land and

consequently, an agreement of sale was executed on

14.08.2003 was registered at the office of the Sub-

Registrar. He stated that the plaintiff thereafter cancelled

this agreement and he returned the advance amount

received under the agreement of sale dated 14.08.2003.

PW.3 denied the fact that the plaintiff was into money

lending business and feigned ignorance about it. PW.2 and

PW.3 are not the attesting witnesses to the agreement of

sale (Ex.P1).

26. The evidence of DWs.2 and 3 is clinching in so

far as the money lending business that was undertaken by

the plaintiff. The plaintiff had filed a suit for specific

performance against DW.2 to enforce an agreement of sale

which he had executed as security for repayment of a hand

loan. He deposed that the Court had ordered him to refund

the amount received from the plaintiff. This fact was not

disputed by the plaintiff.

27. DW.2 deposed that the defendant No.1 had

approached the plaintiff for a hand loan and that he had

executed an agreement of sale which was duly registered

on 16.04.2003 and thereafter, the same was cancelled

after he repaid the amount to the plaintiff. That was again

reiterated by DW.3 who also deposed that the defendant

No.1 had raised a loan from the plaintiff and that he had

witnessed the transaction. He deposed that he had seen

the defendant receiving a sum of Rs.2,00,000/- from the

plaintiff as hand loan.

28. The Trial Court has considered this oral

evidence and held that it was probable that the agreement

in question was executed to secure the hand loan that the

defendant No.1 had raised from the plaintiff. Hence, it

held that the plaintiff had failed to prove that the

defendant No.1 had agreed to sell the suit property in

terms of the agreement of sale dated 16.04.2003 and that

he had received Rs.2,00,000/- as part of the agreed sale

consideration. In view of the above, the Trial Court held

that the question of considering the issue regarding

readiness and willingness of the plaintiff to conclude the

transaction did not arise. Nonetheless, it observed that the

plaintiff caused a notice to the defendant No.1 on

31.03.2006 (Ex.P3) almost at the end of three years from

the date of agreement. He failed to demonstrate the steps

taken by him to obtain a conveyance from the defendant

No.1. The Trial Court, therefore, partly decreed the suit

and directed the defendant No.1 to refund the plaintiff a

sum of Rs.2,00,000/- along with interest at 18% per

annum from 16.04.2003 till the date of payment.

29. The First Appellate Court considered the oral

and documentary evidence and held that under Ex.D3

(agreement dated 14.08.2003), the land measuring 01

Acre 11 guntas was agreed to be sold by PW.3 and another

in favour of the plaintiff for a sum of Rs.1,60,000/- and 20

guntas of land was agreed to be sold by PW.2 and his wife

in favour of the plaintiff for Rs.1,05,000/- under Ex.D5.

However, in terms of the agreement in question (Ex.P1),

the suit property measuring 08 acres 24 guntas, was

agreed to be sold in favour of the plaintiff at a sum of

Rs.5,00,000/-. The First Appellate Court, therefore, held

that the evidence of PWs.2 and 3 coupled with the

insufficient consideration agreed upon by the plaintiff

under Ex.P1 created a doubt about the legitimacy of the

agreement of sale.

30. The First Appellate Court, therefore, did not

proceed further to adjudicate upon the issue regarding

readiness and willingness on the part of the plaintiff to

perform his part of the contract and went on and held that

the defendant No.1 was liable to pay a sum of

Rs.2,00,000/- in view of the statement made by him that

Ex.P1 was executed towards security for the hand loan he

took from the plaintiff. The First Appellate Court therefore

confirmed the Judgment and Decree of the Trial Court.

31. Though as rightly contended by the learned

counsel for the plaintiff/appellant that the Trial Court must

have framed an issue based on the contentions urged by

the defendant No.1 in his written statement, but yet the

evidence on record clearly indicated that the plaintiff was a

money lender and that the evidence of PW.2, DW.2 and

DW.3 made it more than apparent that the plaintiff was in

the habit of obtaining agreements of sale to secure hand

loans. In the case on hand, as rightly observed by the

Trial Court, the suit property lay very close to Kuvempu

University and therefore, it was impossible that the same

could have been sold at a sum of Rs.5,00,000/- which is

less than about Rs.50,000/- per acre. Even otherwise, it is

seen from the records that the plaintiff except producing

the documents such as notice calling upon the defendant

No.1 to comply his part of the contract and a gazette

notification indicating the guidance value of the property in

Thavaraghatta village, did nothing to establish his

willingness to complete his part of the contract. The land

in question measures 08 acres 24 guntas and the

consideration that was allegedly agreed upon by the

plaintiff under Ex.P1 in the year 2003 was Rs.5,00,000/-.

The plaintiff made no attempt to pay a sum of

Rs.3,00,000/- from the year 2003 till date and therefore,

compelling the defendant No.1 to conclude the sale

transaction by receiving a sum of Rs.3,00,000/- now would

be causing hardship to the defendant No.1.

32. In that view of the matter, even if discretion

under Section 20 of the Specific Relief Act, 1923 is

exercised, the plaintiff is not entitled to the relief of

specific performance. There is no substantial question of

law that arises for consideration in this appeal.

Hence, this Appeal fails and is accordingly dismissed.

The pending interlocutory application stands

disposed off.

Sd/-

JUDGE

sma