Karnataka High Court
Sri.S.P.Rajakumar vs Smt. Devaki on 4 August, 2023
Bench: H.P.Sandesh
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RSA No. 1412 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1412 OF 2017 (SP)
BETWEEN:
1. SRI.S.P.RAJAKUMAR
S/O PUTTEGOWDA
AGED 38 YEARS
R/AT SANGAMAPURA VILLAGE,
BASKAL POST, MUDIGERE TALUK,
CHIKKAMGALURU DISTRICT-577132
...APPELLANT
(BY SRI K.V. NARASIMHAN, ADVOCATE)
AND:
1. SMT. DEVAKI
W/O LATE G.M. JAYAPALA GOWDA
AGED 56 YEARS
Digitally signed
by SHARANYA T 2. SRI J.J. KRUPAL
Location: HIGH S/O LATE G.M. JAYAPALA GOWDA
COURT OF AGED 31 YEARS
KARNATAKA
3. KUMARI. J.J. KRUTHI
D/O LATE G.M. JAYAPALA GOWDA
AGED 27 YEARS
RESPONDENTS ARE R/AT MARKET ROAD
MUDIGERE TOWN, MUDIGERE POST
CHIKKAMAGALURU DISTRICT-577 132.
...RESPONDENTS
(BY SRI N.R. RAVIKUMAR, ADVOCATE FOR R1 to R3)
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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DTD: 22.06.2017 PASSED IN
R.A.NO.41/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC AT MUDIGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DTD: 31.03.2016
PASSED IN O.S.NO.1/2012 ON THE FILE OF THE PRINCIPAL
CIVIL JDUGE AND JMFC, MUDIGERE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission.
2. Heard the learned counsel for appellant and
learned counsel for the respondent.
3. This Second Appeal filed against the concurrent
finding given in OS No.1/2022 and also in RA No.41/2016
praying this Court to set-aside the Judgment and Decree
passed in OS No.1/2022 dismissal of the suit for the relief
of specific performance and also set aside Judgment and
decree passed in RA No.41/2016 confirming the Judgment
and Decree passed by the Trial Court.
4. The factual matrix of the case of
plaintiff/appellant before this Court is that the respondents
entered into agreement of sale on 05.02.2009 where in
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they agreed to sell the property to an extent of 4 acres
and agreeing to receive an amount of Rs.55,000/- per acre
and in all Rs.2,20,000/- for 4 acres and it is also the
contention of the plaintiff that in respect of 2 acres of land
he has already executed sale deed on 08.06.2009 and in
respect of remaining 2 acres of land, they have not
executed the sale deed.
5. It is also the contention of the plaintiff that
while executing the sale agreement, he has received the
part sale consideration of Rs.1,10,000/- and put the
plaintiff in possession of suit schedule property along with
the another 2 acres of land in the very same survey
number.
6. It is also case of the plaintiff that he has paid
balance sale consideration of Rs.1,20,000/- while
executing the sale deed in respect of 2 acres of land as on
08.06.2009. It is also contended that the plaintiff has
always ready and willing to perform his part of contract
from the date of agreement till filing of the suit, the
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defendant has not come forward to execute the same,
when he sought for the relief of specific performance,
based on the sale agreement dated 05.02.2009 .
7. In pursuance of the suit summons, the
defendants appeared and filed written statement stating
that the first defendant's husband is habitual drunked and
the plaintiff taking advantage of the act of his conduct,
created false document as styled as sale agreement and
also took the contention that the plaintiff was giving
torture to the husband of defendant No.1 i.e.,
G.M.Jayapala Gowda and created sale agreement in
respect of survey number 101/1 measuring 4 acre for
Rs.14,00,000/- on 19.01.2009 and paid token money of
Rs.2001/-.
8. It is also the contention that plaintiff has
created sale agreement in order to blackmail the
defendant to make wrongful gain by playing fraud and suit
is also not properly valued.
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9. The Trial Court taking into note of the
averments made in the plaint, framed the issues which are
nine in number and allowed the parties to lead evidence.
Accordingly, the plaintiff himself has examined as PW1 and
also examined two witnesses as PW2 and PW3. The
plaintiff has also produced 21 documents which are
marked as Ex.P1 to Ex.P21. The defendant No.1 herself
examined as DW1 and also marked 4 documents as Ex.D1
and Ex.D4. The Trial Court having considered the both oral
and documentary evidence on record has answered Issue
No.1 to 3, 5,7 and 8 in the negative, Issue No.4 and 6
partly in the affirmative and dismissed the suit in coming
to the conclusion that, the document Ex.D1 discloses that
there was an agreement prior to the subsequent
agreement dated 05.02.2009 wherein sale consideration is
shown as Rs.14,00,000/- for 4 acres of land but not 4
acres for Rs.2,20,000/- and also taken note of the
payment made more than the sale consideration as
contended by the plaintiff and dismissed the suit of the
plaintiff.
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10. Being aggrieved by the Judgment and decree of
the Trial Court, the plaintiff/appellant has filed an appeal
RA No.41/2016 and First Appellate Court also on re-
appreciation of both oral and documentary evidence,
accepted the finding of Trial Court on re-appreciating the
evidence of PW2 and extracted the same in the order as
paragraph No.25, 26 and 27 and also extracted the
evidence of PW1 who admitted in cross-examination in
paragraph No.28 and comes to the conclusion that the
Trial Court has not committed an error in declining to
grant the relief of specific performance.
11. Being aggrieved the concurrent finding of the
Trial Court, the appellant/plaintiff in the Second Appeal
mainly contend that the very appreciation of the evidence
of the Courts below is perverse and fail to rely upon the
document of registered agreement dated 05.02.2009
wherein possession was delivered and agreed to sell the
property for an amount of Rs.2,20,000/- .
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12. The learned counsel for appellant vehemently
contends that both the Courts below in placing the reliance
on the alleged agreement of "kraya cheeti" marked as
Ex.D1 which is unstamped and unregistered and
inconclusive and comes to the conclusion that plaintiff is
not entitled for the relief of specific performance. It is also
the contention that even assuming that the Ex.D1 is
existed, the same stood superseded by the registered
agreement. The Courts below have passed impugned
Judgment and decree without regard to the doctrine of
novation and entire sale consideration being paid to the
respondent and possession also delivered in favour of the
appellant and this material has not been considered by
both the Courts.
13. The counsel for the appellant also raised the
substantive question of law contending that when the
delivery of possession to the appellant is evident from the
registered document Ex.P4 dated 05.02.2009 and the
same ought not to have in disbelieved the same by the
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Trial Court and the counsel also contend that there is a
substantive question of law with regard to the agreement
i.e., kraya cheeti marked as Ex.D1 and same is not a
registered document and unstamped the same has been
relied upon and fails to take note of the doctrine of
novation which is applicable to the case on hand. In view
of subsequent agreement, even if assuming the document
Ex.D1 is existed and both the Courts committed an error
in appreciating both oral and documentary evidence which
amounts to a perverse Judgment and this court has to
frame substantive question of law.
14. The counsel in support of his argument has
also filed synopsis contending that property came to one
Jayapalagowda in registered partition on 14.09.1999 and
also another 2 acres of land bequeathed in favour of him
by his father on the very same day. The document Ex.D1
is dated 19.01.2009 and sale agreement is registered on
05.02.2009 and subsequent to the sale agreement, power
of attorney was executed on 15.03.2009 and based on the
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power of attorney only sale deed was executed on
08.06.2009 by the wife of said Jayapala Gowda and
others are confirming parties. The counsel also contend
that another document dated 15.04.2009 has executed as
Munduvarida Oppondada Patra which is marked as Ex.P20
executed by the respondents herein in favour of the
appellant and sale deed is marked as Ex.P2 dated
08.06.2009 and subsequently, said Jayapala Gowda has
also purchased the property to an extent of 4 acres 29
guntas i.e., on 19.02.2010.
15. The counsel for appellant in his argument has
relied upon the Judgment of Prem Singh V/s Birbal
reported in Manu/SC/8139/2006 and brought to
notice of this Court, paragraph No.13 wherein the
discussion with regard to the presumption that registered
document is validly executed. Therefore, a prima facie
would be valid in law. The onus of proof, thus, would be on
a person who leads evidence to rebut the presumption. In
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the instant case, respondent No.1 has not been able to
rebut the said presumption.
16. The counsel for appellant also relied upon
Judgment of Vimal Chand Ghevarchand Jain and
others V/s Ramakant Ekanath Jajoo reported in
Manu/SC/0441/2009 and brought to notice of this
Court, paragraph No.13 wherein it is held that the deed of
sale dated 29.06.1978 was a registered one. It, therefore,
carries a presumption that the transaction was a genuine
one.
17. The counsel for appellant also relied upon
Judgment of Shivaji Yallappa Patil V/s Ranajeet
Appasaheb Patil and others reported in 2018(16)
SCC 725 and brought to notice of this Court, paragraph
No.16,17,18,19 and 20 wherein it is discussed with regard
to the Issue involved between revolving around question
whether the respondent Nos.1 and 2 got the possession of
the entire suit land, in order to bring the suit within
Section 53A of Transfer of Property Act, 1882 and in terms
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of the sale agreement which is marked as Ex.P4,
possession has been delivered in part performance of
contract and Court has to take note of possession
delivered by the respondent.
18. The learned counsel for appellant in his
argument has relied upon the Judgment of A.Kanthamani
V/s Nasreeen Ahamed reported in 2017(4) SCC 654
and brought to notice of this Court at paragraph No-32.4
and 32.8 and also paragraph No.34 wherein the discussion
is with regard to the amount was paid to the defendant
prior to the execution of sale deed in terms of the
agreement and also when the defendant committed breach
in avoiding to execute the agreement, Court has to take
note of plaintiff has performed part of agreement and also
in paragraph No.34 it is held that when the plaintiff did not
come to the Court with clean hands and hence the suit is
liable to be dismissed and observed that both the Courts
below rightly rejected the submission, there is no
evidence to substantiate the submission, on the other
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hand, find that the defendant who despite in accepting the
substantial money towards sale consideration from the
plaintiff, avoided executing sale deed on one or other false
pretext.
19. The counsel for appellant also relied upon
Judgment of this Court reported in B.S.Kashinath V/s
Smt. Padmini Ramanath reported in ILR 2013 KAR
607 wherein also held the 90% of the amount was paid by
the plaintiff to the defendant, Court has to take note of the
conduct of defendant having later found that the
escalation in the market, despite several oral request
made by the plaintiff, did not come forward to execute the
sale deed and relied upon paragraph No.12 to 14, wherein
discussed with regard to the escalation of price amount.
20. The counsel for appellant has also relied upon
the Judgment of Alaka Bose V/s Paramatma Devi
reported in 2009(2) SCC 582 and brought to notice of
this Court at paragraph No.18, in any agreement of sale,
the terms are always negotiated and thereafter reduced in
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the form of an agreement of sale and signed by both
parties or the vendor alone (unless it is by a series of
offers and counter-offers by letters or other modes of
recognized communication). In India, an agreement of
sale signed by the vendor alone and delivered to the
purchaser, and accepted by the purchaser, has always
been considered to be a valid contract.
21. The counsel for appellant has also relied upon
the Judgment of this Court reported in ILR 2008 KAR
3500 wherein this Court discussed with regard to the
admission is concerned and brought to notice of this Court
at paragraph No.7 wherein it is held that there cannot be
any dispute that an admission is the best evidence against
the party making it and though not conclusive, shift the
onus to the maker on the principle that what a party
admits must be true or may be reasonably presumed to be
true so that until the presumption is rebutted, the fact
admitted must be taken to be true. An admission must be
examined as a whole and not in parts. It is settled law that
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an admission of any party has to be read in its entirety
and no statement out of context can constitute admission
on any fact. The Court may reject the admission, if it is
satisfied from other surrounding circumstances that it is
untrue. The admission must be used either as a whole or
not at all. It is also equally settled that the stray sentence
elicited in the cross-examination could hardly be construed
as admission.
22. The counsel also relied upon the Judgment of
the Hon'ble Supreme Court decided on 19.06.2017 and
Civil Appeal No.1168/2007 and brought to notice of
this Court paragraph No. 21 and 22 contending that the
novation of a contract could take place sub silentio was
also noticed wherein paragraph No.45 of the Judgment in
BSNL V/s BPL Mobile Cellular Ltd., also extracted and
counsel by referring this Judgment contend that when
there was a novation of contract, the Trial Court ought not
to have relied upon the earlier sale agreement and earlier
document of Ex.D1.
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23. The counsel also relied upon the Judgment of
Apex Court in case of Sughar Singh V/s Hari Singh
decided on 26.10.2021, Civil Appeal No. 5110/2021
and brought to notice of paragraph No.10 by contending
that even amendment to the Specific Relief Act, 1963, the
Apex Court has taken note of legislature made an
amendment to Section 10(a) and inserted Section 10(a)
and now the specific performance is no longer as
discretionary relief and also discussed with regard to
guiding factor to consider the discretion.
24. The counsel for appellant has also relied upon
the Judgment of the Supreme Court in case of Basavva
and others V/s Special Land Acquisition officer and
others decided on 15.03.1996 in Civil Appeal 2209-2012
of 1993 and in this Judgment also on those finding the
High Court held that the market value under Ex.P10
cannot form the sole basis but keeping in view the
developments the lands are capable to fetch compensation
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at the rate of Rs.56,000/- after deducting 65% and the
same is with regard to the escalation of price.
25. The counsel for appellant has also relied upon
the Judgment in case of J.R.Shanmukhappa V/s
Jyothiba and other reported in
MANU/KA/1724/2023 decided in 11.07.2023 and
brought to notice of paragraph No.21 wherein the Court
has observed that from the perusal of the written
statement filed by the defendant, the defendant has
neither pleaded nor led any evidence that in case if suit for
specific performance is decreed the defendant will be put
to hardship. In the absence of pleadings and proof the
contrary dismissed the suit.
26. The counsel for appellant has also relied upon
the Judgment reported in (2002) 8 SCC 146 wherein the
Apex Court has discussed with the price escalation and
passing conditional decree for specific performance
wherein also observed that in cases of phenomenal
increase in price of land during pendency of litigation held,
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plaintiff would not be denied the relief of specific
performance only for that reason. The counsel by relying
upon this Judgment has also vehemently contend that
even considering the defence taken by the defendants that
the sale consideration is Rs.3,50,000/- per acre, Court can
mould the relief since appellant has already deposited an
amount Rs.7,00,000/- before this Court. Considering the
given escalation and prayed this Court to admit and frame
the substantive question of law.
27. Per Contra the learned counsel appearing for
the respondents has vehemently contend that by taking
advantage of the conduct of husband of first defendant as
he was drunked, the appellant has obtained the document
and also counsel for respondents has vehemently contend
that in the plaint nothing is averred with regard to the
earlier agreement which is confronted to PW1 in his cross-
examination, he admitted the same that he has signed the
agreement and same is marked as Ex.D1 and the same is
suppressed and nothing is averred with regard to the
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earlier agreement wherein sale consideration was fixed as
Rs.3,50,000/- but subsequently, the plaintiff had managed
to obtain the sale agreement on 05.02.2023 and though
the document is registered agreement and very admission
given by PW1 to PW3 with regard to very existence of
Ex.D1, both the Courts come to the conclusion by
appreciating the oral and documentary evidence that the
plaintiff has suppressed the real facts before the Court and
taken an advantage of subsequent sale agreement and
sought for an order of decree for sale consideration of
Rs.55,000/- per acre.
28. The counsel for respondent has also brought to
notice of this Court that even assuming that if agreed to
sell the property at the rate of Rs.55,000/-, it amounts to
only Rs.2,20,000/-, but an amount of Rs.5,35,000/- was
paid and PW1 categorically admitted in the cross
examination for having paid the more amount and no
explanation to that aspect and this also been considered
by the Trial Court as well as the First Appellate Court. The
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concurrent finding given by the Trial Court and also by the
First Appellate Court considering the material on record
and unless the material available on record is not
considered by both the Courts, the question of admitting
the Second Appeal does not arise. The Court can exercise
the power under Section 100 of Code of Civil Procedure,
only if material placed by the parties has not been
considered by both the Courts and no case is made out to
admit the Second Appeal.
29. The counsel also submits that the possession is
concerned, a suit was filed in OS No.83/2017 and temporary
injunction was granted in the said suit in favour of the
respondent/defendant. But, the counsel for the appellant
made submission before the Trial Court that the R.S.A is
pending before this Court. The counsel for appellant in
support of his argument, he relied upon the judgment of the
Apex Court 2008(7) SCC 310 the very said Judgment is
also considered by the First Appellate Court i.e., jurisdiction
held is discretionary, plaintiff's conduct plays an important
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role in the exercise of discretion, plaintiff must approach
the Court with clean hands-equity.
30. The counsel for appellant has also relied upon
the Judgment (2011) 9 Supreme Court Cases 147
wherein also the Hon'ble Supreme Court held that
Contract and Specific Relief-Specific performance of
Contract-Discretion and power of Court-Suppression of
material facts-Held, disentitles party from getting relief-
when discretionary remedy is prayed for, party must come
to court on proper disclosure of facts-plaint, in such cases,
must state all facts with sufficient candour and clarity-
plaintiff had returned earnest amount of Rs.10 Lakhs
which it refused to accept prior to discretionary remedy of
Specific Performance of contract-Specific relief Act, 1963.
31. Having heard the learned counsel for the
appellant and learned counsel appearing for the
respondents and also considering principles laid down in
the Judgments referred supra and the material on record,
the defendants denied the very execution of sale
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agreement dated 05.02.2009 alleging that since the
husband of the first defendant was drunked and
plaintiff has taken the advantage. The Court has to take
note of the fact that subsequent to the sale agreement,
the power of attorney has also executed on 15.03.2009
and also sale deed was executed on 08.06.2009. It is also
important to note that in the sale agreement dated
05.02.2009, agreed to sell the both the properties and no
dispute that 2 acres of land, sale deed was executed on
08.06.2009 and in respect of remaining 2 acres of land,
the sale deed was not executed. But, it is the case of the
plaintiff before the Trial Court that based on the document
of sale agreement dated 05.02.2009 sale consideration
was agreed only Rs.55,000/- per acre and sought for the
relief of Specific Performance based on said sale
agreement. The sale consideration is Rs.55,000/-, not
more than that. But, during the cross examination, the
PW1 has categorically admitted that he has paid an
amount of Rs.1,10,000/- as well as Rs.2,40,000/-. It is the
case of the defendant that an amount Rs.5,35,000/- was
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paid but, PW1 admitted Rs.3,50,000/-was paid and not
Rs.5,35,000/- and if the sale consideration is
Rs.2,20,000/- for all the 4 acres, what made him to make
more amount, no explanation was given by the plaintiff.
But, the same was considered by the Trial Court as well as
the First Appellate Court and apart from that during the
course of cross-examination, PW1 was confronted the
document of Ex.D1 wherein amount of Rs.3,50,000/- is
mentioned in the document and plaintiff had also signed
the said document, but the contention of the counsel for
appellant that it bears only the signature of the first
defendant and not the signature of the husband
G.M.Jayapala Gowda who got the property i.e., both the
items by partition as well as in terms of the testamentary
document. But, the fact is that the plaintiff has
categorically admitted the document and signature, but
contend that it is unstamped and unregistered. But in
order to prove the defence of the defendant which has
been taken in the written statement that it was agreed for
Rs.3,50,000-/ per acre, the said document was confronted
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and same was admitted and proved the defence of the
defendant by confronting that document. Apart from that
the PW2 has also categorically admitted the same and
discussed the same in paragraph No.25 and 26, the
Appellate Court has also considered the same, when such
being the case, it has to be noted that when the plaintiff
has approached the Court by suppressing the real fact
before the Court contending that only sale consideration is
Rs.55,000-/ per acre, but Ex.D1 though not a registered
document, that document came into existence prior to the
Ex.P4 dated 05.02.2009 and Ex.D1 is in the month of
January 2009 and specific defence of the defendants also
that sale consideration is of Rs.3,50,000/- and the same is
not whispered in the plaint and specific case by the
plaintiff by seeking the relief of Specific Performance
based on the sale agreement dated 05.02.2009
contending that sale consideration only for Rs.55,000/-
per acre. Hence, both the Courts comes to the conclusion
by considering the oral and documentary evidence that the
plaintiff has suppressed the true fact before the Court and
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no doubt the principles laid down in the Judgments
referred supra by the counsel for the appellant is with
regard to the presumption is concerned and no doubt the
document Ex.P4 is registered document and no dispute
with regard to the presumption. But here it is a case of
seeking the relief of specific performance when the party
comes to the Court and seeks for the relief of specific
performance, Court has to take note of the conduct of the
plaintiff also and plaintiff wanted to have the specific
performance based on the sale agreement dated
05.02.2009 and agreed to pay Rs.3,50,000/- per acre in
terms of the document of Ex.D1 and hence while
considering the discretionary relief under Section 20 of
Specific Relief Act, Court has to take note of the conduct of
the parties and conduct of the plaintiff is very clear he
wanted to have the property only at the rate of the
Rs.55,000/- per acre and nothing is stated with regard to
earlier document and he has suppressed the true facts.
During the course of evidence it has emerged before the
Court that earlier there was document of Ex.D1, when
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such being the case, the Appellate Court has also having
considered the principles laid down in the Judgment
referred supra 2008 (7) SCC 310 and 2011 (9) SCC
147 wherein the Apex Court held that discretionary relief
cannot be granted in favour of a person who wants to take
the advantage of the document which he relies upon
suppressing the true fact before the Court and discretion
should not be exercised in favour of the plaintiff.
32. The appellant has suppressed the earlier
agreement and sale consideration as agreed and by
suppressing the Ex.D1, filed the suit based on subsequent
agreement and the same not amounts to novation as
contended by the appellant. Since there is no changes in
terms of the agreement except showing the reduced sale
consideration and the same is registered only for the
purpose to save the stamp duty.
33. The counsel appearing for the appellant has
also vehemently contended that this Court can mould the
relief in the Second Appeal. Considering the Judgment of
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the Apex Court in 2002 (8) SCC 146 with regard to the
price escalation and pass a conditional decree for specific
performance since the appellant has deposited an amount
of Rs.7,00,000/- before this Court. The said contention
also cannot be accepted for the reason that the Court has
to take note of the conduct of the plaintiff and plaintiff
nothing averred in the plaint with regard to the fact that
he has agreed to purchase the property at the rate of
Rs.3,50,000/- per acre in total consideration of
Rs.14,00,000/- he had approached the Court by relying
upon the subsequent sale agreement dated 05.02.2009
and though the same is registered document and mere
considering the presumption and also the very contention
in the Second Appeal that he intend to pay the amount in
terms of the document of Ex.D1, this Court cannot mould
the relief as contended by him. The Court has to take note
of the conduct of the plaintiff and he made an attempt
before the Trial Court to have the sale deed only at the
rate of Rs.55,000/- per acre and discretion should not be
exercised in favour of such a person as he has not
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approached the Court with a clean hands and suppressed
the real material facts before the Trial Court and made an
attempt to have the decree based on only the Ex.P4 and
the said material is considered by both the Trial Court as
well as the First Appellate Court and hence, I do not find
any perversity in finding of the Trial Court as well as the
First Appellate Court. In the absence of any perversity in
considering the oral as well as documentary evidence, the
question of framing any substantive question of law as
contended by the counsel for the appellant does not arise
and not a case for framing any substantive question of law
and material has been considered by the Trial Court as
well as the First Appellate Court and the material has not
been ignored while appreciating the case of the plaintiff
and hence I do not find any ground to frame any
substantive question of law as contended by the
appellant's counsel invoking section 100 of Code of Civil
Procedure.
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34. In view of the discussions made above, I pass
the following:
ORDER
The Second appeal is dismissed.
In view of dismissal of Second Appeal, the
other I.As filed by the counsel does not survive for
consideration.
The Registry is directed to return the DD in
favour of the appellant's counsel on proper
identification.
Sd/-
JUDGE
RHS
