Karnataka High Court
Sri C Papaiah vs Sri.C.Arasappa on 6 December, 2023
-1-
NC: 2023:KHC:44103
RSA No. 1119 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1119 OF 2016 (SP)
BETWEEN:
SRI. C. PAPAIAH,
S/O LATE CHICKKANARASIMHAIAH,
AGED ABOUT 65 YEARS,
R/O BIDARAGUTTE, SEETHAKAL POST,
KOLALA HOBLI, KORATAGERE TALUK,
TUMKUR DISTRICT.
...APPELLANT
(BY SRI. SHIVASHARANAPPA. M, ADVOCATE)
AND:
SRI. C. ARASAPPA,
S/O LATE CHIKKANARASIMAIAH,
AGED ABOUT 57 YEARS,
Digitally signed R/O SRIRAMANAHALLY,
by CHAITHRA P
Location: High DODDABALLAPURA TALUK,
Court of
Karnataka BANGALORE RURAL DISTRICT - 561 203.
...RESPONDENT
(BY SRI. H.N. BASAVARAJU, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 01.03.2016 PASSED IN
RA.NO.5023/2016 (OLD RA.NO.71/2006) ON THE FILE OF THE
4th ADDL. DISTRICT AND SESSIONS JUDGE, MADHUGIRI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 10.04.2006 PASSED IN OS.NO.3/2004 ON
-2-
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RSA No. 1119 of 2016
THE FILE OF THE CIVIL JUDGE (J.D.) AND J.M.F.C
KORATAGERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful plaintiff, wherein plaintiff's suit seeking relief
of specific performance of contract is dismissed by both
the Courts.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. Facts leading to the case are as under:
The plaintiff has instituted a suit for specific
performance of contract. Plaintiff has alleged that
defendant agreed to sell the suit property and executed an
agreement to sell on 19.06.1985 and the sale
consideration was fixed at Rs.2,000/-. The plaintiff further
alleged that, as per the conditions enumerated in the sale
agreement, plaintiff was required to pay the entire
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mortgage amount to one K.S.Aswathanarayana and get
the property redeemed. The present suit is filed by the
plaintiff, alleging that he has got the property redeemed
by paying the entire mortgage amount and that he is ever
ready and willing to perform his part of contract and
defendant has not come forward to comply his part of
contract.
4. Defendant on receipt of summons, tendered
appearance, filed written statement and stoutly denied the
entire averments made in the plaint. The defendant has
also denied the execution of suit agreement in favour of
plaintiff. Defendant claimed that suit properties are joint
family ancestral property and that there is no partition by
metes and bounds in the family. Defendant also contended
that plaintiff and defendant are undivided joint family
members and the suit properties are joint family ancestral
properties and hence prayed for dismissal of the suit.
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5. Plaintiff to substantiate his claim, has let in oral
and documentary evidence and produced in all eleven
documents. The defendant, except leading oral evidence,
has not produced any documentary evidence.
6. The Trial Court, though answered issue Nos. 1
and 2 in the affirmative, however answered issue No.5 in
the negative. While answering issue No.5 in the negative,
the Trial Court held that plaintiff has failed to prove his
readiness and willingness to perform his part of contract.
Having answered issue No.5 in the negative, the Trial
Court, while answering issue No.6 in the negative, held
that the discretionary relief of specific performance of
contract cannot be granted having regard to the facts and
circumstances of the case. The Trial Court doubted the
alleged payment of Rs.2,000/-, which is a mortgage
amount, bearing in mind the relationship of plaintiff and
defendant, who are admittedly full brothers. It is in this
background, the Trial Court doubted the payment of
Rs.2,000/-. If the properties are joint family ancestral
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properties, the Trial Court held that no explanation is
forthcoming by the plaintiff as to why defendant alone is
bound to pay the entire mortgage amount. It is in this
background, the Trial Court was of the view that plaintiff is
not entitled for discretionary relief of specific performance.
The suit is dismissed.
7. Plaintiff feeling aggrieved by the judgment and
decree of the Trial Court, preferred an appeal before the
appellate Court in R.A.No.5023/2016. The Appellate Court,
while re-assessing the entire evidence on record, was also
not inclined to accept the contention of the plaintiff that
plaintiff has got the property redeemed by paying the
entire mortgage amount. The payment of entire mortgage
amount to one K.S.Aswathanarayan is also doubted by the
Appellate Court. Consequently, appeal is dismissed. These
concurrent judgments are under challenge by the plaintiff.
8. The plaintiff instituted a suit on 07.01.2004 to
enforce an agreement dated 19.06.1985; the suit is filed
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after 19 years. Both the Courts have concurrently held
that plaintiff has failed to prove his readiness and
willingness. To secure discretionary relief of specific
performance on contract, the plaintiff is bound to comply
the requisite ingredients of Section 16(c) of the Specific
Relief Act. Unless plaintiff establishes and substantiates his
readiness and willingness, he is not entitled for
discretionary relief of specific performance of contract.
9. Be that as it may. The alleged payment
pursuant to the suit agreement is not substantiated by the
plaintiff. Though plaintiff has claimed that he has got the
property redeemed, both the Courts have rightly taken
note of the fact that since plaintiff and defendant are
brothers and suit properties are joint family ancestral
properties, the defendant alone was not liable to seek
redemption by paying the entire mortgage amount. It is in
this background, both the Courts doubted the alleged
payment of Rs.2,000/- by plaintiff. Even on this count,
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both the Courts have concurrently held that plaintiff is not
entitled for relief of specific performance of contract.
10. In the light of discussion made supra, no
substantial question of law would arise for consideration.
The regular second appeal is devoid of merits and
accordingly stands dismissed.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
