Shivmurthappa S/O ... vs Smt.Kavita W/O Sharanayya Swamy
2022 Latest Caselaw 5240 Kant

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         IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 23RD DAY OF MARCH, 2022

                         BEFORE

    THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

              RSA No.200100/2017 (SP)
Between:
Shivmurthappa S/o
Basavathirthappa Hugar,
Aged: 38 years, Occ: Agriculture,
R/o Kachur, Tq: Sedam,
Dist: Kalaburagi.
                                             ... Appellant
(By Sri.Deepak Vishnu Barad, Advocate)

And:
Smt. Kavita W/o Sharanayya Swamy,
D/o Late Annayya,
Age: 42 years, Occ: Agriculture,
R/o Kachur Village, Tq: Sedam,
Dist: Gulbarga-585 103.
                                           ... Respondent
(By Smt. Hema L.K, Advocate)

      This Regular Second Appeal is filed under Section
100 of the Code of Civil procedure, 1908, praying to allow
the Regular Second Appeal filed by the appellant by setting
aside the judgment and decree dated 11.01.2017 passed
by the Senior Civil Judge at Sedam in R.A.No.27/2015 and
the judgment and decree in O.S.No.10/2012 dated
09.06.2015 passed by Civil Judge & JMFC, Sedam,
consequently pleased to decree suit filed by the appellant
in entirety.
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      This appeal coming on for admission, this day, the
Court delivered the following:-


                     JUDGMENT

This second appeal is filed by the plaintiff

challenging the judgment and decree dated 11.1.2017

passed in R.A.No.27 of 2015 by the Senior Civil Judge

Sedam confirming the judgment and decree dated

9.6.2015 passed in O.S.No.10/2012 by the Senior

Judge, Sedam.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the plaintiff and respondent is the

defendant before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff filed a suit for the relief of specific

performance of contract in respect of the land bearing

Sy.No.38 measuring 4 acres and 20 guntas situated at

Kachur Village, which is the suit property. One

Annayya s/o Sharanayya Swamy was the owner and

possessor of the suit property. The said Annayya was

suffering from ill-health for some months prior to this

death and he was in need of money for medical

treatment and maintenance as there was no earning

member in the family and that in order to clear the

debts incurred has agreed to sell the suit property in

favour of the plaintiff and on 11.6.2010 agreed to sell

the suit schedule property for a consideration of

Rs.2,10,000/- and received Rs.2,00,000/- towards

part consideration amount and accordingly, executed

a registered agreement of sale in the presence of

witnesses. The said Annayya agreed to execute

registered sale deed after preparing 11-E survey

sketch map and obtaining nil encumbrance certificate

within a year by receiving balance consideration of

Rs.10,000/-. In the meanwhile Annayya fell ill and

died on 15.8.2010. The defendant who is claiming to

be the legal heir of the deceased Annayya filed an

application before the Tahsildar for effecting mutation

in her name in respect of the suit property. The

revenue authorities passed an order in favour of the

defendant. The plaintiff got issued a legal notice on

16.8.2011 calling upon the defendant to execute a

registered sale deed in his favour by receiving balance

consideration of Rs.10,000/- and that he is ready and

willing to perform his part of the contract. But the

defendant denied to execute the registered sale deed.

Hence, the plaintiff filed the suit for specific

performance of the contract.

3.1 The defendant filed the written statement

admitting the description of the suit property and also

admitted that she is the legal heir of the deceased

Annaya and she is the co-parcenor with Annayya and

filed the suit for partition in O.S.No.90/2005 on the

file of the Senior Civil Judge, Sedam. It is denied that

Annayya was the absolute owner and possessor of the

suit property. It is contended that the suit filed by the

defendant came to be decreed. The suit transaction is

hit by lis pendence. It is denied that the defendant's

father was suffering from ill-health and that her father

was in need of money for medical treatment and other

necessities. It is denied that Annayya executed a

registered agreement of sale in favour of the plaintiff

in the presence of the witnesses. It is contended that

the plaintiff got issued the legal notice and the

defendant gave the suitable reply to the notice. The

agreement of sale is created in collusion with one

Sharanamma who claims to be her step mother. As

on the date of execution of the alleged agreement of

sale, the value of the property nearby the suit

property is Rs.5,50,000/- per acre and hence some of

the land owners sold the land to Dalmia Factory for

Rs.15,00,00/- per acre. It is further contended that

even after issuance of notice, the plaintiff tried to

extract money by approaching the police when he has

failed in his attempt, he has filed the suit. Hence,

prays to dismiss the suit.

3.2. The Trial Court on the basis of the

pleadings of the parties framed the following issues

and additional issue :

1. Whether the plaintiff proves that, one Annayya S/o Sharanayya Swamy has executed registered agreement of sale document No.1047/10-11 dated 11.06.2010 agreeing to sell suit schedule property in favour of plaintiff?

2. Whether the plaintiff further proves that, said Annayya has executed agreement of sale to sell suit schedule property for valuable consideration amount of Rs.2,10,000/- and paid advance consideration of Rs.2,00,000/-?

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

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

5. What order or decree?

Addl. Issue No.1:

1. Whether the defendant proves that, suit is hit by principle of pendente-lite?

3.3. The plaintiff in order to prove his case,

examined himself as PW1 and examined two

witnesses as PWs 2 and 3 and got marked exhibits P1

to P4. The defendant examined herself as DW1 and

got marked documents exhibits D1 and D2. The Trial

Court after recording the evidence and considering the

material on record recorded a finding that the plaintiff

has failed to prove that Annayya s/o.Sharanayya

Swamy has executed registered agreement of sale

dated 11.06.2010 agreeing to sell suit schedule

property in favour of plaintiff and also failed to prove

that said Annayya has executed agreement of sale to

sell suit schedule property for valuable consideration

amount of Rs.2,10,000/- and paid advance

consideration of Rs.2,00,000/- and further held that

the plaintiff was not ready and willing to perform his

part of contract and also held that the plaintiff is not

entitled to the relief sought for and further framed

issues and additional issue and held that the

defendant has proved that the suit is hit by the

principles of pendente lite accordingly, dismissed the

suit of the plaintiff vide judgment and decree dated

9.6.2015.

3.4. The plaintiff aggrieved by the judgment and

decree passed by the Trial Court preferred appeal in

R.A.No.27/2015 before the Senior Civil Judge, Sedam.

The Appellate Court framed the following points for

consideration :

i) Whether trial Court has committed an error in dismissing the suit without considering the Ex.P-1 and oral evidence on record?

ii) Whether the judgment and decree under appeal is illegal, capricious and against the facts of the case thereby warranting interference by this Court?

iii) What order?

and after re-appreciation of the material on record has

confirmed the judgment and award passed by the

Trial Court and consequently dismissed the appeal.

The plaintiff aggrieved by the judgment and decree

passed by the courts below has filed this second

appeal.

4. Heard the learned counsel for the appellant.

5. Learned counsel for the plaintiff submits that

the courts below have committed an error in

dismissing the suit of the plaintiff. He further submits

that there is a presumption in regard to the registered

agreement of sale. Further he submits that the courts

below have committed an error in recording a finding

that the suit transaction is hit by pendente lite.

Further the courts below have not properly

appreciated the material on record. Hence. On these

grounds he prays to allow the appeal.

6. Perused the records and considered the

submissions of the learned counsel for the appellant.

7. It is the case of the appellant that Annayya

s/o.Sharanayya Swamy was the owner and possessor

of the suit land and he was suffering from illness and

he was in need of money for his treatment and he has

agreed to sell the suit property in favour of the

plaintiff and got executed a registered agreement of

sale dated 11.6.2010 agreeing to sell the suit property

for a consideration of Rs.2,10,000/-. Out of

Rs.2,10,000/-, the plaintiff has paid Rs.2,00,000/-

towards part consideration amount and the plaintiff

agreed to execute registered sale deed in favour of

the plaintiff within a period of one year after obtaining

certified sketch map and nil encumbrance. In the

meanwhile, Annayya died due to ill-health on

15.2.2010. The plaintiff examined himself as PW1.

He has reiterated the averments made in the plaint in

his examination-in-chief. Further in order to prove

the execution of agreement of sale-Ex.P1, the plaintiff

examined the attesting witness as PW2 and scribe as

PW3. PW2-Smt.Sharanamma has deposed that

Annayya had offered to sell the suit schedule property

to the plaintiff for a consideration of Rs.2,10,000/- as

he was in need of money for his medical expenses as

he was suffering from ill-health. In the course of

cross examination, she has admitted that the

defendant has filed a suit for partition against her and

Annayya and she has appeared in the said suit and

further she has stated that she does not know that

sale talks took place as per Ex.P1. But she has stated

that her husband participated in the negotiation.

Further PW2 claims to be the wife of Annayya and the

said fact was denied by the defendant in the previous

suit filed by the defendant for partition. The judgment

and decree passed in the said suit was affirmed by the

Appellate Court in appeal. The defendant has pointed

out that PW2 is deposing against the defendant with

an ill-motive as PW2 has suffered a decree in the suit

filed by the defendant and PW2 has played a major

role in creating Ex.P1.

8. Further, the plaintiff in order to prove the

execution of Ex.P1 examined the scribe as PW3. He

has deposed that Annayya has requested him for

registration of agreement of sale in respect of the

schedule property and has instructed him to draft the

agreement of sale. As per the instructions of Annayya

he has drafted the agreement of sale and the same

was registered in the office of Sub Registrar Sedam in

the presence of witnesses. In the course of cross

examination, he has stated that at the time of

executing Ex.P1, PW3 has stated that he do not

remember about the registration of document when

Ex.P1 is prepared.

9. Further, the defendant in order to prove his

defence, examined herself as DW1 and reiterated the

averments made in the written statement in the

examination in chief. Nothing is elicited in the mouth

of DW1. Ex.P1 is prepared on 11.6.2010 and the said

document was registered on 28.7.2010.

10. Further, the plaintiff has not explained the

reason for the delay in registering the agreement of

sale. If at all Annayya has agreed to sell the suit

schedule property and if the plaintiff has paid

substantial portion of the consideration amount.

Nothing prevented the plaintiff from getting the

registered sale deed during the life time of Annayya.

The suit is filed more than 15 months after the death

of Annayya. The plaintiff has not explained the delay

in filing the suit.

Further, in order to establish that the plaintiff

has paid earnest money of Rs.2,00,000/-, he has not

produced any receipt for having paid the alleged part

consideration amount. In the absence of the

document, both the courts below are justified in

recording a finding that the plaintiff has failed to prove

that Annayya has executed the registered agreement

of sale on 28.7.2010 and further have recorded a

finding that the plaintiff has failed to prove that he has

paid part consideration amount of Rs.2,00,000/- to

the said Annayya. Both the courts below have

concurrently recorded a finding of fact against the

plaintiff. From the perusal of the records, I do not

find any substantial question of law in the present

case.

11. In view of the above discussion, the

following order is passed :

ORDER

Appeal is dismissed.

Sd/-

JUDGE

rs