Karnataka High Court
Shri.Basappa S/O Venkanna @ Venkappa ... vs Shri.Lakkappa S/O Shetteppa Payagond on 14 December, 2023
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RSA No. 100410 of 2018
C/W RSA No. 100362 of 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100410 OF 2018 (SP)
C/W
REGULAR SECOND APPEAL NO.100362 OF 2018
IN R. S. A. NO.100410 OF 2018 (SP)
BETWEEN:
1. KUMARI SAVITA
D/O BASAPPA SIMPI,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: BIDARI-587313,
TQ: MUDHOL, DIST: BAGALKOT.
2. KUMARI LALITA
D/O BASAPPA SIMPI,
AGE: 28 YEARS, OCC: AGRICULTURE,
Digitally signed R/O: BIDARI-587313,
by VISHAL
VISHAL NINGAPPA TQ: MUDHOL, DIST: BAGALKOT.
PATTIHAL
NINGAPPA Date:
PATTIHAL 2023.12.22 3. KUMARI REKHA
13:39:27
+0530 D/O BASAPPA SIMPI,
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O: BIDARI-587313,
TQ: MUDHOL, DIST: BAGALKOT.
4. VENKANNA
S/O BASAPPA SIMPI,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O: BIDARI-587313,
TQ: MUDHOL, DIST: BAGALKOT.
5. MAHADEVI
W/O BASAPPA SIMPI,
AGE: 50 YEARS, OCC: AGRICULTURE,
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RSA No. 100410 of 2018
C/W RSA No. 100362 of 2018
R/O: BIDARI-587313,
TQ: MUDHOL, DIST: BAGALKOT.
...APPELLANTS
(BY SMT. DEEPA DODDATTI, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SHRI. LAKKAPPA
S/O SHETTEPPA PAYAGOND
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: AMALZARI-587116,
TQ: BILGI, DIST: BAGALKOT.
2. THE MANAGER
ICICI BANK, BRANCH MUDHOL,
NEAR RANNA CIRCLE, MUDHOL-587313,
DIST: BAGALKOT.
3. SHRI.BASAPPA
S/O VENKANNA @ VENKAPPA SHIMPI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: BIDARI-587313, TQ: MUDHOL,
DIST: BAGALKOT.
...RESPONDENTS
(BY SMT. PADMAJA S.TADAPATRI, ADVOCATE FOR
SRI. K.L. PATIL, ADVOCATE FOR R1;
SRI. SHRIKANT D. BABLADI, ADVOCATE FOR R3;
NOTICE TO R2 IS SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT
AND DECREE DATED 24.3.2018 PASSED IN R.A.NO. 44/2014 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., MUDHOL,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 31.10.2014, PASSED IN O.S.NO. 272/2009 ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE MUDHOL, DECREEING THE
SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.
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RSA No. 100410 of 2018
C/W RSA No. 100362 of 2018
IN R. S. A. NO.100362 OF 2018
BETWEEN:
SHRI. BASAPPA S/O VENKANNA @ VENKAPPA SHIMPI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: BIDARI-587313, TQ: MUDHOL,
DIST: BAGALKOT.
...APPELLANT
(BY SRI. SHRIKANT D.BABLADI, ADVOCATE)
AND:
1. SHRI. LAKKAPPA S/O SHETTEPPA PAYAGOND
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: AMALZARI-587116,
TQ: BILAGI, DIST: BAGALKOT.
2. THE MANAGER,
ICICI BANK, BRANCH MUDHOL,
NEAR RANNA CIRCLE, MUDHOL-587313,
DIST: BAGALKOT.
...RESPONDENTS
(BY SMT. PADMAJA S.TADAPATRI, ADVOCATE FOR
SRI. K.L. PATIL, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT
AND DECREE DATED 24.3.2018 PASSED IN R.A.NO. 43/2014 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., MUDHOL,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 31.10.2014, PASSED IN O.S.NO. 272/2009 ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE MUDHOL, DECREEING THE
SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.
THESE REGULAR SECOND APPEALS, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100410 of 2018
C/W RSA No. 100362 of 2018
JUDGMENT
RSA No.100362/2018 is preferred by defendant No.1
and RSA No.100410/2018 is preferred by the children of
defendant No.1 against the concurrent findings of facts of
the Courts below, whereby, the suit seeking for specific
performance was decreed directing the defendant No.1 to
execute the registered sale deed in favour of the plaintiff by
receiving balance consideration amount.
2. Suit property is an agricultural land bearing RS
No.88/2B measuring 4 acres situated at Bidari village,
Mudhol Taluk, hereinafter referred to as the 'suit land' for
the sake of convenience.
3. Suit seeking for specific performance of contract
of the agreement of sale dated 05.09.2006, contending that
defendant No.1 being the owner of the suit land for his
family necessity proposed to offer to sell the suit land for
₹5,00,000/- and executed a registered agreement of sale in
favour of the plaintiff by receiving part sale consideration
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amount of ₹2,00,000/- and remaining sale consideration of
₹3,00,000/- was to be paid within three years at the time
of execution of the sale deed in favour of the plaintiff. The
plaintiff got issued notice to defendant No.1 calling upon
him to come forward to execute the sale deed by
expressing his readiness and willingness to perform his part
of contract, inspite of defendant No.1 having received the
notice, no reply was issued by defendant No.1.
4. Pursuant to the suit summons issued by the trial
Court, the defendant No.1 appeared and filed his written
statement, inter alia contending that defendant No.1 was in
need of money for construction of his house, as such he
requested the plaintiff to give hand loan of ₹1,50,000/- and
wherein, the plaintiff agreed to pay the hand loan and the
agreement entered was towards the security of hand loan.
It is stated that out of ₹1,50,000/-, defendant No.1 has
repaid ₹30,000/- in presence of the witnesses. It is further
averred that the sale agreement was never intended to be
acted upon and no right can be created in favour of the
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plaintiff. It is further averred that the suit land is the joint
family property purchased in the name of defendant No.1,
out of the joint family funds as such defendant No.1 is not
the exclusive owner of the suit land and he had no
exclusive right to alienate the suit land.
5. Defendant No.2 was impleaded in the suit
subsequently, in view of the fact that defendant No.1 had
secured loan of the suit property by mortgaging the suit
land, after the filing of the suit.
6. Defendant No.2 filed objections inter alia
contending that defendant No.2 after verifying the
encumbrance certificate from 01.04.1996 to 25.05.2012
has sanctioned the loan to defendant No.1 on the suit
property. It is contended that defendant No.2 has got
preferential right over the suit land to recover the loan due
of defendant No.1.
7. The trial Court on the basis of the pleadings,
framed the following issues & additional issues:
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"ISSUES
1. Whether the plaintiff proves that, the
defendant had offered to sell suit land for his
family necessity and he had agreed to
purchase it for Rs. 5,00,000/-?
2. Whether the plaintiff further proves that, he
had entered into agreement of sale on 05-09-
2006 by paying Rs.2,00,000/- as earnest
money?
3. Whether plaintiff has proved that he was ready
and willing to offer balance consideration of
Rs.3,00,000/- since June-2009, but defendant
evaded to complete the contract?
4. Whether defendant proves that the agreement
of sale is created for the security of hand loan
of Rs. 1,50,000/- issued by plaintiff to
defendant?
5. Whether defendant proves that, the agreement
of sale dated 05-09-2006 is a sham document
not acted upon?
6. Whether plaintiff is entitled for the relief
claimed?
7. What Order?"
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ADDITIONAL ISSUES
1. Whether the defendant No.2 proves that, the
agreement entered by the defendant No.1 with
plaintiff in respect of suit property will not
come in way of legal right of defendant No.2 to
recover loan from defendant No.1 through the
suit land ?
2. Whether the defendant No.2 further proves
that, it has got preferential right and liability to
recover the loan amount of enforcing the rights
as secure creditor on the suit land?"
8. In order to substantiate their claim, plaintiff got
himself examined as PW.1 and got examined 3 witnesses as
PWs.2 to 4 and got marked documents at Ex.Ps.1 to 7. On
the other hand, defendant No.1 got himself examined as
DW.1 and another witness as DW.2. Defendant No.2 got
himself examined as DW.3 and got marked documents at
Ex.Ds.1 to 16.
9. The trial Court on the basis of the pleadings and
oral and documentary evidence arrived at a conclusion
that:
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i) the plaintiff has proved that the defendant
had offered to sell the suit land for his
family necessity and has agreed to
purchase it for ₹5,00,000/-;
ii) the plaintiff proved that defendant entered
into an agreement on 05.09.2006 by
paying the earnest money of ₹2,00,000/-;
iii) the plaintiff was ever ready and willing to
perform his part of contract and defendant
had refused to complete the contract; &
iv) the defendant failed to prove that the
agreement of sale is created for the
purpose of security towards the hand loan
of ₹1,50,000/-.
By the Judgment and decree, the trial Court decreed the
suit directing the defendant No.1 to execute the registered
sale deed in favour of the plaintiff by receiving the balance
consideration amount.
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10. Feeling aggrieved by the Judgment and decree of
the trial Court, defendant No.1 preferred an appeal in RA
No.43/2014 and the wife and children of defendant No.1
preferred an appeal in RA No.44/2014 before the first
appellate Court. The first appellate Court while re-
appreciating and reconsidering the entire oral and
documentary evidence independently concurred with the
Judgment and decree of the trial Court. Against the
concurrent findings of facts of the Courts below, the present
second appeals by defendant No.1 and the wife and
children of defendant No.1 who were not parties in the
original suit.
11. Heard the learned counsel for the appellant Shri
Shrikant Babaladi in RSA NO.100362/2018 & Smt. Deepa
Doddatti in RSA No.100410/2018 and the learned counsel
for the respondent Smt Padmaja S.Tadapatri for Shri K.L.
Patil in both the appeals.
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12. Learned counsel for the appellants would
contend that the Courts below have failed to consider that
the plaintiff has failed to prove his readiness and
willingness to perform his part of contract and the plaint
averments does not even whispers about the said aspect,
and in the absence of the same, the Courts below were
justified in decreeing the suit of the plaintiffs granting
specific performance in favour of the plaintiff. Learned
counsels would also contend that the suit land is the
ancestral joint family property of the defendant No.1 having
acquired in a partition and the right to the wife and children
of defendant No.1 are co-parceners having interest in the
suit land and the Courts below were not justified in arriving
at a conclusion that the suit land were the self-acquired
property of defendant No.1. Learned counsel in RSA
No.100410/2018 would contend that the suit for partition in
O.S. No.347/2012 was filed by the wife and children of
defendant No.1 and the said suit came to be decreed
holding that they are entitled for 5/6th share in the suit land
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and alienation of the suit land by defendant No.1 is void
and bad in law.
13. In support of his contention, learned counsel in
RSA No.100362/2018 has placed his reliance on the
decision of the Apex Court in the case of
U.N.Krishnamurthy Vs. A.M.Krishnamurthy1, in the
case of Santosh Hazare Vs. Purushottam Tiwari
(Deceased) by L.Rs.2 and the decision of the Coordinate
Bench of this Court in the case of Nishanth D. Shekar
and Another Vs. M.C.Dayashekar and Others3.
14. Per contra, learned counsel appearing for the
respondents would justify the Judgment and decree of the
Courts below and would contend that the plaintiff has
clearly in unequivocal terms at para No.4 in his plaint, has
stated about his readiness and willingness to perform his
part of contract and the trial Court has framed necessary
issues regarding the said aspect and the trial Court has
2022 SCC Online 840
(2001) 3 SCC 179
2023(1) KCCR 381
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rightly arrived at a conclusion that the plaintiff is ever ready
and willing to perform his part of contract. Learned counsel
would contend that the first appellate Court being the last
fact finding Court has concurred with the Judgment and
decree of the trial Court on the question of fact, which is
regarding the readiness and willingness. Learned counsel
has taken this Court to the admission of DW.1, who has
categorically stated about the partition between his family
members and the suit land having fallen to his share in a
partition between himself and his brothers and would
contend that if the suit land is a character of the joint
family property, then the very contention of the defendant
is that the suit land was agreed to be sold to the plaintiff
for his legal necessity. Learned counsel would contend that
the Courts below have clearly held that the plaintiff was
ever ready and willing to perform his part of contract and
the suit property is the self-acquired property of defendant
No.1 and the reasoning assigned by the Courts below does
not warrant any interference by this Court under Section
100 CPC.
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15. This Court has carefully considered the rival
contentions urged by the learned counsel appearing for the
parties and perused the Judgment and decree of the Courts
below including the original records.
16. The appellants in RSA No.100410/2018 were not
parties in the original suit, they are the wife and children of
defendant No.1 and before the first appellant Court they
contended that suit in O.S. No.347/2012 for partition and
separate possession was filed by them against defendant
No.1 and the said suit came to be decreed awarding 5/6th
share in the suit land and as such defendant No.1 alone had
no right, title and interest to sell the property. The said suit
was filed during the pendency of the present suit for
specific performance and the appellants are unable to
substantiate the right over the suit land and the suit
initiated by the wife and children of defendant No.1 is by
colluding with each other with an intention to defeat the
rights of the intending purchaser.
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17. Ex.P4 is the sale registered sale agreement.
PW2, PW3 & PW4 have been examined to prove the
agreement of sale on part of the plaintiff. PW2 is the
attesting witness to Ex.P4, who has categorically stated
about the agreement entered by defendant No.1 and the
sale talks having taken place, amount of Rs.2,00,000/-
having been paid as the defendant No.1 had loan in the
Bank and Society and for his family necessity had entered
into an agreement of sale with the plaintiff. PW3 the
another attesting witness has categorically stated in terms
with PW2, nothing material is elicited from the mouth of
PW2 or PW3 to disbelieve the agreement of sale. The
another witness is the scribe who has been examined as
PW4 and he has categorically stated about the writing of
Ex.P4 the presence of the witnesses, plaintiff and defendant
No.1. The trial Court held that the plaintiff has proved the
due execution of Ex.P4 by defendant and his necessity to
sell the property.
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18. The question regarding readiness and willingness
to perform the part of contract on part of the plaintiff needs
to be gathered from the plaint averments and the evidence
to that effect . The burden is on the plaintiff to prove the
readiness and willing to perform his part of contract.
Section 16(c) of the Specific Relief Act, 1963 envisages that
the plaintiff must aver and prove the readiness and
willingness to perform his part of contract.
19. The plaint averments more particularly, at para
Nos.4 and 5 reads as under:
"4) Being this fact the plaintiff has asked the
defendant to execute the sale deed by offering
balance consideration amount of Rs 3,00,000/- since
June 2009 and the defendant has postponed to
execute the sale deed on one or the other reason
and then the plaintiff got issued legal notices calling
upon the defendant to execute the sale deed within
seven days expressing his ready and willingness to
perform his part of contract, but for which answer is
given by defendant.
5) The plaintiff has performed his part
performance of contract by offering balance
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consideration of Rs.3,00,000/- to defendant and
requested to execute the sale deed. Not only that
since June 2009 the plaintiff was ready and willing to
perform his part of contract but the defendant has
evaded to complete the contract."
20. The plaintiff issued legal notice to the defendant
calling upon the defendant No.1 to come forward to execute
the sale deed in his favour, defendant No.1 did not replied
to the said notice and suit was initiated by the plaintiff for
specific performance and after filing of the suit, I.A. No.3
was filed seeking permission to deposit the balance sale
consideration amount of Rs.3,00,000/-. The plaintiff has
averred in his plaint regarding his readiness and willingness
to perform his part of contract and his financial capacity to
pay the consideration amount has been established by the
material more particularly I.A. No.3 filed seeking to deposit
the sale consideration amount. All these aspects clearly
established that the plaintiff was all along ready to perform
his part of contract and thus, the contention of the
appellant in RSA No.100362/2018 that the plaintiff has
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failed to prove the readiness and willingness is
unsustainable. The trial Court and the first appellate Court
have concurrently held that the plaintiff has proved his
readiness and willingness to perform his part of contract
and his entitlement for specific performance of contract.
The concurrent findings of fact regarding readiness and
willingness cannot be a ground to be urged in second
appeal to be dealt with under Section 100 of CPC to be a
substantial question of law.
21. The defendant No.1 in his written statement has
not denied the agreement of sale what is contended by
defendant No.1 is that hand loan of ₹1,50,000/- was
availed from the plaintiff and the agreement of sale was
executed towards the security and the averments of the
defendant No.1 is at para Nos.8 and 9 which reads as
under:
"8. That in fact the defendant took the hand
loan of Rs. 1,50,000/- from the plaintiff and for the
security purpose of the said loan, plaintiff got
executed document showing the earnest money of
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Rs. 2,00,000/- out of the said hand loan of Rs.
1,50,000/- the defendant has repaid Rs. 30,000/- in
presence of witnesses.
9. That this defendant has not put the suit land
for sale at any time much-less on- 5.9.2006. The suit
land is the only land for the livelihood of defendants
family."
22. The averment in the written statement having
taken hand loan of Rs.1,50,000/- and repayment of
Rs.30,000/- in the presence of witness and examined
Mallappa S/o. Ningappa to prove the aspect of the loan
transaction between the plaintiff and defendant No.1. The
witness other than orally stating about the amount of
Rs.1,50,000/- and repayment of Rs.30,000/- by defendant
No.1 after one year, no documentary evidence is placed
before the Court to prove the said aspect. The averment
and the evidence of the witness as contended by the
defendant No.1 is just a make belief contention and the
trial Court has rightly held that the defence taken by the
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defendant No.1 is to overcome the agreement of sale
executed by him in favour of the plaintiff.
23. The first appellate Court, while re-appreciating
the entire oral and documentary evidence in the appeal
preferred by the wife and children of defendant No.1 who
were invariably not a party to the suit in OS No.272/2009
has held that the suit property is the absolute property of
the defendant No.1 and the loan transaction taken place by
defendant No.1 in his individual capacity and in order to
discharge the said loan, the suit land was offered for sale.
The first appellate Court, disbelieved the contention raised
by the wife and children of defendant No.1 and dismissed
the appeal and held that there was an agreement of sale in
favour of plaintiff as the defendant No.1 did not dispute
about the execution. The Apex Court in the case of
U.N.Krishnamurthy stated supra has thrown light on the
concept of readiness and willingness and at para Nos.30 &
44 has held as under:
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"30. This Court, in effect, held that for
determining whether the Plaintiff was ready and
willing to perform his part of the agreement it is
necessary for the Court to consider the conduct of the
Plaintiff prior and subsequent to filing the suit for
specific performance. The relevant part of the
judgment is extracted hereinbelow:-
"5. ...Section 16(c) of the Act envisages
that plaintiff must plead and prove that he had
performed or has always been ready and willing
to perform the essential terms of the contract
which are to be performed by him, other than
those terms the performance of which has been
prevented or waived by the defendant. The
continuous readiness and willingness on the part
of the plaintiff is a condition precedent to grant
the relief of specific performance. This
circumstance is material and relevant and is
required to be considered by the court while
granting or refusing to grant the relief..."
"44. In Atma Ram v. Charanjit Singh20 Justice
V. Ramasubramanian speaking for this Court made
the following pertinent observation:-
"9... No explanation was forthcoming from
the petitioner for the long delay of three years,
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in filing the suit (on 13.10.1999) after 20 (2020)
3 SCC 311 issuing a legal notice on 12.11.1996.
The conduct of a plaintiff is very crucial in a suit
for specific performance. A person who issues a
legal notice on 12.11.1996 claiming readiness
and willingness, but who institutes a suit only on
13.10.1999 and that too only with a prayer for a
mandatory injunction carrying a fixed court fee
relatable only to the said relief, will not be
entitled to the discretionary relief of specific
performance."
24. The Apex Court held that the readiness by
adducing evidence has to be determined by considering all
circumstances including the willingness on the part of the
plaintiff to perform his part of contract. The plaintiff issued
the notice to the respondent in the year 2009 before the
completion of the time stipulated in the agreement of sale.
The notice issued by the plaintiff was not replied by
defendant No.1. Thus the crucial facet about the readiness
and willingness on part of the plaintiff is duly proved in the
present facts including the availability of funds on part of
the plaintiff. The trial Court has considered the said aspect
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and has rightly arrived at a conclusion that the plaintiff was
ever ready and willing to perform his part of contract. The
first appellate Court has concurred and has given a detailed
reasoning at para No.19 holding that the defendant No.1
has agreed to sell the suit land in favour of the plaintiff
under the registered agreement of sale and in light of the
categorical deposition on the part of PWs.2 and 3, the
attesting witnesses to the registered agreement of sale and
PW.4 the scribe.
25. In so far as the contention of the learned counsel
for the appellant that the suit land was not the self-
acquired property of defendant No.1 but, it acquires the
status of the joint family, in light of the decision of this
Court in the case of Nishant D. Shekhar stated supra this
Court has absolutely no quarrel about the said preposition
of law, however, in the present facts the defendant No.1
has categorically stated that this property was purchased in
his name and in the absence of any other material
forthcoming, the Courts below have concurrently held that
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it is the self-acquired property of defendant No.1 and
collusive decree has been obtained by the wife and children
of defendant No.1 after the suit for specific performance
was initiated by the plaintiff. Even assuming that the
property is not a self-acquired property of defendant No.1,
the main contention of the defendant No.1 is that the suit
property was sought to be agreed to be sold to the plaintiff
for the legal necessity, which can be gathered from the
averment in the written statement. The Courts below have
rightly assessed and arrived at a conclusion that the
plaintiff is entitled for specific performance. The manner in
which, the Courts below have assessed the entire oral and
documentary evidence, this Court is of the considered view
that no substantial question of law arises for consideration
in the present second appeals.
26. Accordingly, this Court pass the following:
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ORDER
i) The regular second appeals are hereby
dismissed.
ii) The Judgment and decree of the Courts
below stands confirmed.
Learned counsel for the appellant at this
stage request this Court to defer the execution
to be levied by the respondent by another three
months, the said request falls outside the
purview of this Court. Hence, the request is
rejected.
Sd/-
JUDGE
PJ / CT:UMD
