Karnataka High Court
Puttappa S/O Kannappa Adakayavar vs Basappa S/O Mallappa Doddamani on 23 May, 2022
Bench: Ravi V.Hosmanipresided Byrvhj
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 23 R D DAY OF MAY, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A. NO.100025/2015 (SP)
BETWEEN
SRI.PUTTAPPA
S/O KANNAPPA ADAKAYAVAR,
AGE: 49 YEARS,OCC: AGRI CULT URE,
R/O. GUDDADA CHANNAPUR,
TQ: SHIGGAON,
DIST: HAVERI-581205.
...APPELLANT
(BY SRI. N.P.VIVEKMEHTA, ADV.)
AND
1 . SHRI.BASAPPA
S/O MALLAPPA DODDAMANI
AGE: 58 YEARS,
OCC: AGRICULT URE,
R/O. GUDDADA CHANNAPUR,
TQ: SHIGGAON,
DIST: HAVERI-581205.
2 . SMT.ANSUYA
W/O DEVAPPA DODDAMANI
AGE: 55 YEARS,
OCC: AGRICULT URE,
R/O. KURUBAR MALLUR,
TQ: SAVANUR,
DIST: HAVERI-581118.
3 . ANAND
S/O DEVAPPA DODDAMANI
AGE: 35 YEARS,
OCC: AGRICULT URE,
R/O. KURUBAR MALLUR,
2
TQ: SAVANUR,
DIST: HAVERI-581118.
4 . MANJAVVA
W/O NINGAPPA RANOJI
AGE: 29 YEARS,
OCC: HOUSE HOLD WORK ,
R/O. KORI PETH STREET,
SAVANUR,
DIST: HAVERI-581118.
5 . YELLAVVA ALIAS RENUKA
W/O PARAMESH SHIGLI
AGE: 31 YEARS,
OCC: HOUSE HOLD WORK ,
R/O. RAJIV GANDHI NAGAR,
SAVANUR,
DIST: HAVERI-581118.
...RESPONDENTS
(RESPONDENTS SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGMENT & DECREE DATED 30.10.2014 PASSED IN R.A.
NO.5/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, HAVERI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 16.12.2013 PASSED IN
O.S. NO.74/2003, ON THE FI LE OF THE CIVIL JUDGE & JMFC.,
SHIGGAON, DISMISSING THE SUIT FILED FOR SPECIFIC
PERFORMANCE OF CONTRACT.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.04.2022, THIS DAY, THE COURT PRONOUCED
THE FOLLOWING:
3
JUDGMENT
Challenging judgment and decree dated 30.10.2014 passed
by Additional Senior Civil Judge, Haveri, in R.A. No.5/2014 and
judgment and decree dated 16.12.2013 passed by Civil Judge and
JMFC, Shiggaon, in O.S. No.74/2003, this appeal is filed.
2. Though appeal is listed for admission, with consent of
learned counsel for appellant, it is taken up for final disposal.
3. Appellant herein was plaintiff in original suit and
appellant in first appeal; while respondents herein were defendants
in suit and respondents in first appeal. For sake of convenience
parties are hereinafter referred as per their ranks in the suit.
4. Brief facts as stated are that O.S.No.74/2003 was filed
by plaintiff seeking relief of specific performance of contract of
agreement of sale dated 09.01.2001 in respect of open land bearing
V.P.C.No.21/1 of Guddada Channapura village comprised of two
portions, first portion measuring East - West 24ft. and North -
South 67 ft. and second portion measuring East - West 39 ft. and
North - South 60 ft., bounded on East by plot of Kotrappa Puttappa
Musari, West by House belonging to Kannappa Mallappa
Adakayavar and Plot belonging to Ramanna Nagappa Adakayavar,
North by Government Road and South by Government Road
(hereinafter referred to as 'suit property' for short).
5. It was stated that during 2001, original defendants
Basappa and Devappa, sons of Mallappa Doddamani and owners of
suit property intended to sell same for family necessity and for
clearing loans. Defendant offered to purchase same for total sale
consideration of Rs.3,300/- which was accepted by plaintiff.
Accordingly, terms were entered into a contract and executed by
both parties. As per terms plaintiff was to pay earnest money of
Rs.2,500/- on date of execution of agreement of sale, defendants
were put in possession of suit land and balance consideration of
Rs.800/- to be payable at time of execution of sale deed and
registration expenses were to be borne by plaintiff. It was further
stated that in pursuance of agreement plaintiff was put in
possession. Whereas plaintiff was ever ready and willing to perform
his part of contract, but defendant failed to perform his part of
contract. This was cause of action for filing of suit.
6. After service of suit summons defendants no.1 and 2
appeared through counsel, but failed to file written statement. They
were placed ex-parte. However, as plaintiff failed to lead evidence,
case was dismissed for non-prosecution. Upon its restoration, a
memo was filed by learned counsel for plaintiff that legal
representatives of defendant no.2 are already on record. In the
written statement, it was contended that suit schedule property did
not belong to defendant no.1, as it stood in the name of other three
family members of defendant and they were in possession of suit
property. It was further stated that suit property was measuring 10
to 12 guntas which they were using as a shed for sheep, storage of
cow dung and haystack. It was further contended that plaintiff
being financially sound and politically influential, in order to knock
away property had created an agreement of sale and filed O.S.
No.97/2003. Upon knowing that he would lose same, suit was got
dismissed as withdrawn. Therefore, as instant suit was filed at the
instigation of plaintiff's father, he sought for dismissal of suit.
7. Based on pleading, trial Court framed following issues:
1. Whether plaintiff proves that
defendants no.1 and 2 have executed
an agreement of sale dated
09.01.2001 by agreeing to sell the
suit property and receive token
advance of Rs.2,500/-?
2. Whether plaintiff further proves that
he is always ready and willing to
perform his part of contract?
3. Whether plaintiff further proves that
defendants no.1 and 2 have failed to
perform their part of contract?
4. Whether plaintiff is entitled for relief
as prayed for?
5. What order or decree?"
8. Plaintiff got himself examined as PW-1. He also
examined two other witnesses as PWs-2 and 3. Exhibits P.1 to P.7
were marked. On behalf of defendants, defendant no.1 was
examined as DW-1. Exhibits D.1 to D.3 were marked.
9. On consideration, trial Court answered issues no.1 to 3
in negative, issue no.4 partly in affirmative and issue no.5 by
dismissing suit insofar as relief of specific performance of contract,
but passed decree by holding plaintiff is entitled for refund of
earnest money with interest at 6% per annum from date of suit till
realization.
10. Aggrieved by rejection of relief of specific performance,
plaintiff filed appeal in R.A.No.5/2014 on several grounds. It was
contended that judgment and decree of trial Court was contrary to
law, illegal and against facts and circumstances of case. It was also
contended that trial Court grossly erred in understanding points
involved in suit and by discussing irrelevant matter passed
impugned judgment. It was contended that Ex.P.7 - agreement of
sale was proved beyond doubt, however, trial Court failed to grant
decree of specific performance. Without any justification, it
discussed measurement of suit schedule property and its number as
21/1 and 21/2, which were not disputed by defendant. It was also
contended that findings of trial Court regarding readiness and
willingness of plaintiff was contrary to law.
11. Based on above contentions, first appellate Court
framed following points for consideration:
"1. Whether appellant/plaintiff proves
that defendants no.1 and 2 have executed
agreement of sale dated 09.01.2001
wherein agreed to sell suit schedule
property and received Rs.2,500/- as earnest
money?
2. Whether appellant/plaintiff is entitled
for relief of specific performance of
contract?
3. Whether appellant/plaintiff proves
that judgment and decree of trial court is
illegal and against the provisions of law and
one sided and it needs interference by the
hands of this Court?
4. What order?"
12. First appellate Court answered point nos.1 to 3 in
negative and point no.4 by dismissing appeal. Aggrieved by same,
plaintiff is in second appeal.
13. Sri.N.P.Vivek Mehta, learned counsel for appellant
submitted that impugned judgment and decree passed by both
Courts was contrary to facts of case and evidence on record and
law. He contended that defendant admitted his signature on
agreement of sale. Plaintiff had also examined attested witnesses.
Based on same, trial Court had passed decree for refund of earnest
money. However, first appellate Court was in error in holding that
execution of agreement of sale was not duly established by plaintiff.
It was further submitted though there was clear description of suit
property as per Ex.P.7, therefore failure of trial Court to decree suit
was erroneous. It was further submitted that defendants neither
pleaded hardship nor led any evidence to establish same.
14. Learned counsel further submitted that following
substantial questions of law would arise for consideration:
"1. Whether denial of specific
performance even when defendant
admitted signature on agreement
of sale is justified? And
2. Whether judgment and decree
passed by both courts calls for
interference?"
15. Defendants though served with notice have remained
ex-parte.
16. Heard learned counsel, perused impugned judgment
and decree.
17. From above, it is not in dispute that defendant is owner
of suit schedule property; while plaintiff alleged that defendant had
executed agreement of sale dated 09.01.2001 and by receiving
earnest money of Rs.2,500/- put plaintiff in possession of suit
property, agreed to execute registered sale deed by receiving
balance sale consideration of Rs.800/-. But defendant had refused
to execute sale deed. Even after issuance of legal notice dated
25.03.2003 defendants denied such agreement of sale and also
plaintiff being in possession of suit property. It was also contended
that along with defendants, few other family members were also
owners of suit property, but plaintiff had failed to array them as
parties to suit. Therefore, there was non-joinder of necessary
parties. It was also contended that except suit property, they did
not own any other immovable property and claimed hardship.
18. Trial court while decreeing suit in part, referred to
Ex.P.7- agreement of sale executed by Basappa and Devappa, sons
of Mallappa. Agreement disclosed that out of total sale
consideration of Rs.3,300/-, plaintiff paid advance amount of
Rs.2,500/- and was put in possession. Attesting witnesses PW-1
and PW-3 identified their signatures on agreement of sale as per
Exs.P.7(d) and (e). Trial Court also referred to contention of
defendant that suit property was their only immovable property
which was being used by them for keeping sheep, storing haystack
and cow dung.
19. Admittedly, suit is for specific performance of
agreement of sale, therefore, burden is on plaintiff to prove
agreement. As per trial Court, defendants had executed agreement
of sale on receiving a sum of Rs.1,500/- by defendant no.1 and
Rs.1,000/- by defendant no.2. But as per contents of legal notice
Ex.P.1, agreement of sale was executed on 09.08.1996 after
receiving Rs.1,000/- and again on 09.01.2001 by receiving
Rs.1,500/-. Averments in legal notice would indicate that there
were two agreements of sale, which would be contrary to deposition
of PW-1. During cross-examination, PW-1 stated that khata of suit
property was in name of two defendants. He denied suggestion that
with regard to suit schedule property, his father had earlier filed
suit in O.S. No.97/2003 for specific performance against defendants
20. PW-1 further stated that he was unaware about total
extent of property bearing V.P.C.no.21 and also remaining extent.
He denies suggestion that there was no partition between
defendants no.1 and 2. It was also elicited that on date of execution
of agreement of sale, he paid advance money of Rs.2,500/- by way
of currency notes of Rs.100/- denomination. However, as noted by
trial Court, PW-2 - one of attesting witness stated that suit
property was standing in the name of four brothers and other two
brothers were not present at the time of preparing agreement of
sale in the house of DW-1. Even PW-2 stated that plaintiff paid
Rs.2,500/- to defendants on same day. PW-3 however, stated that
transaction took place about two to four days prior to date of
execution of agreement and plaintiff paid Rs.1,500/- to defendant
no.1 and Rs.1,000/- to defendant no.2. Thus, there is discrepancy
regarding date of agreement and execution of agreement of sale.
There is also discrepancy regarding sale consideration paid.
21. As per Ex.P.1 - legal notice, plaintiff had paid
Rs.1,000/- on 09.08.1996 and Rs.1,500/- was paid on 09.01.2001,
on which date agreement of sale was executed. As per oral
evidence of PW-1 advance amount of Rs.2,500/- was paid in
currency notes of Rs.100/- denomination on the date of execution
of agreement of sale. Deposition of PW-3 contradicts evidence of
PW-1. It is also inconsistent with contents of Ex.P.1 - legal notice.
Besides above, admittedly, suit property is standing in the name of
defendants and two other persons, who have not signed
agreement. Therefore, there are material inconsistencies
surrounding agreement of sale.
22. Trial Court, however, taking note of entry of plaintiff's
name as Bhogwatedar in respect of suit and lack of serious contest
about receipt of sum of Rs.2,500/- by defendants from plaintiff
proceeded to decree suit for refund of amount received by
defendants with interest.
23. However, defendants did not challenge decree. Only
plaintiff filed appeal. Consequently, direction issued to defendant to
repay amount has attained finality as against defendants. After
going through pleadings and evidence on record, first appellate
Court, concurred with findings of trial Court. While coming to said
conclusion, it took note of discrepancy regarding earnest money as
stated in agreement, plaint and deposition of PW-1 from contents of
Ex.P.1 - legal notice. First appellate Court has taken note of denial
of PW-1 about contents of legal notice - Ex.P.1. Firstly, there was
no pleading about previous agreement dated 09.08.1996; secondly,
PW-1 pleaded ignorance about O.S.no.96/2003 filed by his father
against defendants in respect of very same property. Therefore, it
concluded that agreement of sale was shrouded in doubt. It also
took note of deposition of DW-1, wherein he stated that about 15
years prior to filing of suit, when he was working in house of
plaintiffs, his signature was taken on blank stamp paper, while he
was in drunken stupor. Ex.P7 - agreement of sale was not
established by plaintiff. On said finding, it upheld denial of relief of
specific performance by trial Court.
24. Insofar as direction issued to defendant to refund
amount, received with interest, it observed that defendant had not
challenged said decree either by filing appeal or cross-objection.
Decree for refund was confirmed on this ground.
25. On a bare perusal of impugned judgment and decree, it
is evident that both Courts have duly appreciated facts and
circumstances of case as well as evidence on record. First appellate
Court upon due re-appreciation of evidence as well as reasons
assigned by trial Court confirmed same. Said conclusions being
neither capricious nor perverse or suffering from any material
irregularity, do not call for interference in second appeal. No
substantial questions of law arise for consideration. Hence, I pass
following:
ORDER
Appeal is dismissed.
No order as to costs.
Sd/-
JUDGE
BVK/RSH
