Karnataka High Court
Sri Shivanna vs Smt Sannamma on 24 February, 2023
Bench: H.P.Sandeshpresided Byhpsj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1679/2016 (SP)
BETWEEN:
SRI SHIVANNA
S/O. JAVAREGOWDA,
AGED ABOUT 60 YEARS
R/AT MELLAHALLI VILLAGE,
RAVANDUR HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT-571 569.
... APPELLANT
(BY SRI SANATH KUMARA K.M., ADVOCATE)
AND:
1. SMT. SANNAMMA
W/O. LATE SIDDAPPA @ SIDDEGOWDA,
AGED ABOUT 67 YEARS
HOUSE WIFE,
2. SMT. ASHA
W/O. SHIVAKUMARA,
AGED ABOUT 25 YEARS
HOUSE WIFE,
3. MISS. SWETHA
D/O. CHIKKANNA,
AGED ABOUT 23 YEARS
AGRICULTURIST,
2
ALL ARE R/AT MELLAHALLI VILLAGE,
RAVANDUR HOBLI, PERIYAPATNA TALUK,
MYSORE DISTRICT-571 569. ... RESPONDENTS
(BY SRI ABUBACKER SHAFI, ADVOCATE FOR R1 TO R3)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 12.04.2017
PASSED IN R.A.NO.25/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, PERIYAPATNA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 08.08.2016
PASSED IN O.S.NO.202/2012 ON THE FILE OF THE CIVIL JUDGE
AND JMFC., PERIYAPATNA.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.02.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree
dated 12.04.2017 passed in R.A.No.25/2016 on the file of the
Senior Civil Judge and JMFC, Periyapatna and the judgment and
decree dated 08.08.2016 passed in O.S.No.202/2012 on the file
of the Civil Judge and JMFC, Periyapatna.
2. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of this Court.
3. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of specific performance of
contract is that suit schedule property is an agricultural land
bearing Sy.No.14/1, measuring 1 acre, situate at Mellahalli
Village, Ravandur Hobli, Periyapatna Taluk. It is the case of
the plaintiff that the defendants have approached the plaintiff to
sell the said property, in order to perform the marriage of the
second defendant and agreed to sell the same for a sale
consideration of Rs.2 lakhs and executed the sale agreement
dated 27.02.2012 and received an amount of Rs.1,95,000/- and
balance amount of Rs.5,000/- was payable at the time of
registration of the sale deed and the time fixed for registration is
three months. It is the contention of the plaintiff that he waited
for nearly two months but, the defendants did not come forward
to execute the sale deed and hence, issued notice on 10.05.2012
and an untenable reply was given and hence, the suit is filed for
the relief of specific performance.
4. In pursuance of the suit summons, the defendants
appeared and filed the written statement and denied the
execution of the sale agreement but, contended that defendant
No.1 approached the plaintiff for a sum of Rs.1 lakh, the plaintiff
agreed to pay the amount and asked the defendants to executed
Aadhar pathra (mortgage deed) pertaining to the suit schedule
property, for which the defendants agreed and executed the
Aadhar pathra in favour of the plaintiff and not the sale
agreement as contended by the plaintiff. It is also contended
that they are illiterate persons, the daughter of the first
defendant is no more and therefore, the defendant Nos.2 and 3
are residing with the first defendant and taking advantage of
illiteracy, document of sale agreement has been created by the
plaintiff.
5. Based on the pleadings of the parties, the Trial Court
has framed the issues with regard to whether the sale
agreement was executed by receiving the balance consideration,
whether the defendants failed to execute the sale deed and
whether the plaintiff was ready and willing to get the sale deed
registered in his favour. The Trial Court also framed the issue
with regard to the defence of the defendants whether it was an
Aadhar pathra and not an agreement of sale.
6. The Trial Court, after considering both oral and
documentary evidence placed on record i.e., the evidence of the
witnesses P.Ws.1, 2 and 3 and the documents of Exs.P1 to P7
and evidence of D.W.1, answered issue Nos.1 to 3 and 5 as
'affirmative' and issue No.4 as 'negative', in coming to the
conclusion that the document executed is not an Aadhar pathra
and it was a sale agreement. However, instead of granting the
relief of specific performance, moulded the relief and directed
the defendants to refund the earnest money with interest at
18% p.a., in coming to the conclusion that, except the said
property, there is no other property belonging to the defendants
and hardship is in favour of the defendants.
7. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was filed in R.A.No.25/2016 before the
First Appellate Court and while filing the appeal, an application is
also filed under Order XLI, Rule 27 of C.P.C. seeking to produce
additional documents i.e., the copy of the plaint and also order
sheet to show that the defendants are having other alternative
property and one more suit is also filed by the first defendant.
8. The First Appellate Court, on re-appreciation of both
oral and documentary evidence placed on record, formulated the
points whether the defendants have got other alternative
property for their livelihood and are liable to execute the
registered sale deed and judgment of the Trial Court is perverse,
capricious, arbitrary and illegal and whether it requires
interference. The First Appellate Court, on re-appreciation of
both oral and documentary evidence placed on record, dismissed
the appeal with cost throughout and the application filed under
Order XLI, Rule 27 of C.P.C. was also disposed off confirming the
judgment of the Trial Court. Hence, the present second appeal
is filed before this Court.
9. This Court, while admitting the appeal on hearing the
learned counsel for the appellant, framed two substantial
questions of law as hereunder:
1. Whether the appellate Court is justified in
rejecting application under Order XLI, Rule
27 of CPC when the proposed additional
documents would be necessary for complete
adjudication on the question of hardship as
contemplated under Section 20 of the
Specific Relief Act, 1963 ?
2. Whether the finding by the Courts below
that the respondents would be put to
hardship and therefore, the specific
performance of the agreement dated
27.02.2012 cannot be granted is based on
the evidence on record.
10. Learned counsel appearing for the appellant, in order
to substantiate his argument to prove the substantial questions
of law with regard to rejection of application filed under Order
XLI, Rule 27 of C.P.C., vehemently contend that both the Courts
have failed to exercise the powers under Section 20 of the
Specific Relief Act, when both the Courts comes to the
conclusion that sale agreement was executed and the
defendants received the sale consideration and balance sale
consideration was only Rs.5,000/- out of Rs.2 lakhs. The
counsel also would submit that amount was received for
performing the marriage of second defendant and the same is
admitted and invitation card is also marked as Ex.P7. When the
plaintiff gave a notice, reply was given that it was only a
mortgage and not the sale agreement but, both the Courts
comes to the conclusion that it was a sale agreement but, failed
to exercise the discretion in favour of the appellant-plaintiff,
inspite of the documents being produced before the First
Appellate Court that the defendants are having other alternative
property and the suit is also filed against the plaintiff by the
defendants. The counsel also would vehemently contend that, in
the cross-examination of D.W.1, she admitted that her grand-
mother is having other alternative property but, denies that a
suit is filed by her grand-mother against the plaintiff stating that
she is not aware of the same. But, she has given boundaries in
respect of Sy.No.32. The very approach of the First Appellate
Court in coming to the conclusion that in respect of other
alternative property, there was a dispute is erroneous and the
said suit is also filed against the plaintiff and not against any
other person. Hence, the findings of First Appellate Court that no
other alternative property available with the defendants is
erroneous and ought to have set aside the order of the Trial
Court since, the Trial Court also comes to the conclusion that
there is no other alternative property, except the suit schedule
property. Therefore, the counsel would submit that, when the
documents are placed before the Court to show that the
defendants are having other alternative property, the First
Appellate Court, ought to have granted the relief of specific
performance and no hardship would cause to the defendants.
11. Per contra, learned counsel for the respondents
would vehemently contend that the Trial Court, while rejecting
the relief of specific performance given the reason that the first
defendant is old age lady and no other alternative property
available with the first defendant and First Appellate Court also
comes to the conclusion that, even though the plaintiff has made
out that the defendants are having other alternative property,
given the reason that the same is under litigation and hence,
both the Courts have not committed any error and rightly
rejected the prayer of specific performance and exercised the
discretion judiciously.
12. Having heard the respective counsel and also on
perusal of the material available on record and the substantial
questions of law framed by this Court, while admitting the
appeal, the question before this Court is whether the First
Appellate Court is justified in rejecting the application filed under
Order XLI, Rule 27 of C.P.C. when the proposed additional
documents are necessary for complete adjudication on the
question of hardship, as contemplated under Section 20 of the
Specific Relief Act. The other substantial question of law framed
by this Court is whether the finding by both the Courts that the
respondents would be put to hardship and therefore, the specific
performance of the agreement dated 27.02.2022 cannot be
granted based on the evidence available on record.
13. It has to be noted that, it is not the case of the
defendants that suit schedule property not belongs to them and
also not the case of the defendants that they have not received
the amount. However, the defendants claim that they have only
received an amount of Rs.1 lakh and not Rs.1,95,000/- as
contended by the plaintiff. It is also contended in reply as well
as before the Trial Court that, it was only an Aadhar pathra and
not the sale agreement. On perusal of the document at Ex.P2, it
is seen that the same is a sale agreement and the same also
registered and all the defendants i.e., defendant Nos.1 to 3 were
present at the time of executing the sale agreement. The Trial
Court also comes to the conclusion that it was a sale agreement
and not an Aadhaar pathra as contended by the defendants
while answering issue Nos.1 to 3 and also comes to the
conclusion that an amount of Rs.1,95,000/- was received but,
the Trial Court, while rejecting the relief of specific performance,
given the reason that the first defendant was an aged lady and
no other property available with the first defendant, except the
suit schedule property. The plaintiff also produced the document
before the First Appellate Court to show that the defendants are
having other alternative property also which has not been denied
by the defendants before the First Appellate Court and the First
Appellate Court comes to the conclusion that there is a litigation
in respect of the said property. When an application is filed
under Order XLI, Rule 27 of C.P.C. and when germane issues are
involved between the parties, the First Appellate Court ought to
have considered the application, in order to arrive at a just
conclusion. However, the application was disposed off, in
coming to the conclusion that there is a litigation in respect of
other property. But, the fact is that the very first defendant
herself has filed a suit against the plaintiff in respect of other
property of the defendants is also not in dispute.
14. It has to be noted that the first defendant did not
enter into witness box and instead, examined the grand-
daughter, who is a power of attorney holder as D.W.1. It is her
claim in the evidence that, they have only received an amount of
Rs.1 lakh. But, in the cross-examination, she says that she has
studied upto 4th standard and she is also not aware of her date
of birth. It has to be noted that, in the cross-examination, a
suggestion was made to the witness that she has studied up to
8th standard and the same was denied. But, she admits that, at
the time of studying, she was residing at Mellahalli Village and
school certificate was also confronted to the witness and the
witness admits the same, which is marked as Ex.P8, wherein it is
clear that she has studied up to 8th standard. Hence, it is clear
that, D.W.1 is deposing falsely before the Court and this aspect
has not been considered by the Trial Court.
15. It is also important to note that, she admits in the
cross-examination that, her grand-mother is having 1 acre of
land. But, in the further cross-examination, she admits that she
is aware of the fact that her grand-mother is having other
property other than 1 acre of subject matter of the dispute.
D.W.1 also admits that survey number of the suit schedule
property is 1-2 and she also admits that she is having knowledge
about the transaction of her grand-mother. It is suggested that,
her grand-mother also filed suit in respect of Sy.No.32 against
one Shivanna but, she denies the same saying that she is not
aware of it. Hence, suggestion was made that, knowing fully
well about the same she is denying and the said suggestion was
denied. It is also elicited that, defendant No.2 got married on
01.03.2012. It is suggested that, in order to perform the
marriage of defendant No.2, they offered to sell the suit
schedule property and the same was denied. However, she
volunteers to state that, they offered to mortgage the property,
but, she claims that only on receipt of notice, they came to know
that the plaintiff got it registered the same as sale agreement
and not as an Aadhar pathra but, categorically admits that, when
they came to know about the same, they did not give any
complaint and there was no any difficulty to give the complaint.
She also admits that, she went along with her grand-mother to
execute the document and when the suggestion was made that
she knows to read and write Kannada, she gives an answer that
she is not fully acquainted. But, admits that, she read the
contents of the chief affidavit. These are the aspects which were
not taken note of by the Trial Court as well as the First Appellate
Court. The admissions given by D.W.1 with regard to the
transaction is evasive in nature but, she categorically admits
that, in Ex.P2, her grand-mother photo, her sister photo and her
photo are found. It is her claim that the plaintiff given an
amount of Rs.1 lakh often and often and not at a time. But, she
cannot tell when they gave Rs.5,000/- and Rs.10,000/-. But,
she categorically admits that the transaction took place two
months prior to the marriage of her sister.
16. It is also important to note that, there is no
difference in the evidence of D.W.1 and the witnesses, who have
been examined and she also admits that she knows the
boundaries of Sy.No.32. But, she claims that amount was given
in her village but, she has signed the document in Sub-registrar
office and further admits that, all of them have signed together.
When these are the admissions elicited from the mouth of D.W.1
and when the plaintiff examined himself as P.W.1 and also
examined two witnesses with regard to the sale transaction i.e.,
P.Ws.2 and 3, they also categorically deposed for having made
the payment of Rs.1,95,000/- in their presence and also, when
the D.W.1 is deposing falsely that she has studied only up to 4th
standard when she has studied up to 8th standard and also when
specific suggestion was made to D.W.1 that her grand-mother is
having other property and also admitted the same and when the
suggestion was made that her grand-mother has also filed the
suit against the plaintiff in respect of Sy.No.32 but, only she
claims that she is not aware of the same. But, in the cross-
examination, she admits that, she can tell the boundary in
respect of Sy.No.32 also and inspite of these admissions on the
part of D.W.1, the Trial Court comes to the conclusion that the
plaintiff has not produced any document with regard to the
alternative property of the defendants.
17. It is also important to note that, when an application
is filed before the First Appellate Court along with certified copy
of the order sheet, plaint as well as the document in respect of
other alternative property in respect of Sy.No.32, the First
Appellate Court committed an error in coming to the conclusion
that the said property is under litigation and when the appellant-
plaintiff has made out a case that the defendants are also having
other alternative property other than the suit schedule property
and when the Trial Court has given the finding that no other
property, the First Appellate Court ought to have allowed the
application and taken note of the documents produced by the
plaintiff and the very first defendant herself filed the suit against
the plaintiff in O.S.No.68/2014 and though the same is discussed
in Para No.17 of the judgment, but erroneously comes to the
conclusion that the said property is also not free from litigation
and the very approach of the First Appellate Court is erroneous.
18. No doubt, the Court has to exercise the discretion
under Section 20 of the Specific Relief Act, when the material is
placed before the Court, both before the Trial Court as well as
the First Appellate Court regarding other property in existence,
particularly in respect of Sy.No.32 and when the D.W.1 given
categorical admission that her grand-mother is having other
alternative property and she is also able to give boundaries to
the said property, only on the ground of mere denial that she is
not aware of filing of the suit by the first defendant, the Trial
Court ought not to have granted the relief of refund of money, in
coming to the conclusion that no other property, except the suit
schedule property. The First Appellate Court also, committed an
error in confirming the judgment of the Trial Court, inspite of the
fact that the documents are placed before the First Appellate
Court to show that the defendants are having other property
bearing Sy.No.32 measuring 1 acre, 5 guntas.
19. It is also important to note that, on perusal of
document Ex.P2, it is very clear that property was offered to
perform the marriage of the second defendant. It has also
emerged during the course of evidence that the sale
consideration was also received for performing the marriage of
the second defendant. It is also important to note that, Ex.P7
clearly discloses that marriage was performed on 01.03.2012
which was confronted to D.W.1 and sale agreement was
executed two days prior to the marriage i.e., on 27.12.2012 and
when the amount was received for performing the marriage of
the second defendant and the document of Ex.P2 is also very
clear that the property was offered to perform the marriage in
the family i.e., defendant No.2, wherein it is specifically
mentioned that they are going to sell the property to perform
the marriage of said Asha and they were not having any other
source of income to perform the marriage and this fact has not
been properly appreciated by the Trial Court as well as the First
Appellate Court while exercising the discretion under Section 20
of the Specific Relief Act.
20. When the D.W.1 tried to give false evidence that she
has studied up to 4th standard and when a document was
confronted to D.W.1 that she has studied up to 8th standard
which is marked as Ex.P8, ought not to have accepted the
evidence of D.W.1 when D.W.1 is lying before the Court. The
amount was received and marriage was performed in the month
of March and the defendants turned hostile in the month of May
itself, in not coming forward to execute the sale deed and these
are the factors which have to be considered by the Trial Court as
well as the First Appellate Court when the suit is filed for the
relief of specific performance and ought to have exercised the
discretion judiciously and not arbitrarily. The defendants, having
received the money and performed the marriage, when the
demand was made to execute the sale deed within the time
stipulated in the agreement at Ex.P2, the defendants have given
untenable reply in terms of Ex.P5 stating that it was only a
mortgage and not the sale agreement though, all of them have
went to Sub-registrar office and executed the sale agreement in
terms of Ex.P2 and their respective photos are also identified
while cross-examining D.W.1. Hence, the Trial Court, instead of
granting the relief of specific performance, moulded the relief
and passed an order to refund the earnest money with interest
at 18% per annum and failed to take note of the fact that almost
entire amount was received by the defendants and the balance
payable was only Rs.5,000/- and not granted the relief of
specific performance, inspite of property was offered to perform
the marriage of second defendant.
21. The First Appellate Court also, inspite of the
documents being produced by the plaintiff and on re-
appreciation of the evidence available on record, committed an
error in coming to the conclusion that other property is under
litigation and the litigation is also against the plaintiff and the
first defendant has filed the suit against the plaintiff and though
in the evidence of D.W.1 also, a suggestion was made that suit
was filed against the plaintiff in respect of other property bearing
Sy.No.32 and D.W.1 has given the reply that she is aware that
her grand-mother is having other property and admitted that
she is able to give boundaries of the said property, the First
Appellate Court erroneously comes to the conclusion that the
defendants are having only the suit schedule property and
comes to the conclusion that hardship will be caused to the
defendants. Hence, I answer both the substantial questions of
law as 'affirmative' that the First Appellate Court committed an
error in rejecting the application filed under Order XLI, Rule 27
of C.P.C. When the proposed additional documents would be
necessary for complete adjudication on the question of hardship,
the First Appellate Court committed error in exercising the
discretion under Section 20 of the Specific Relief Act. The
findings of both the Courts that defendants would be put to
hardship and specific relief cannot be granted is not based on
the evidence available on record and the very approach of both
the Trial Court as well as the First Appellate Court is erroneous.
Hence, it requires interference of this Court to set aside the
judgment of the Trial Court as well as the First Appellate Court
decreeing the suit granting the relief of refund of money and
denying the specific relief. Having re-appreciated the material
on record and the substantial questions of law framed by this
Court, the suit filed by the plaintiff requires to be allowed and
the plaintiff is entitled for the relief of specific performance.
Hence, the findings of the Trial Court as well as the First
Appellate Court requires to be reversed.
22. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed with cost throughout.
(ii) The impugned judgment and decree dated
12.04.2017 passed in R.A.No.25/2016 on the
file of the Senior Civil Judge and JMFC,
Periyapatna and the impugned judgment and
decree dated 08.08.2016 passed in
O.S.No.202/2012 on the file of the Civil
Judge and JMFC, Periyapatna are set aside.
(iii) The defendants are directed to execute the
sale deed in terms of Ex.P2 in favour of the
plaintiff within a period of two months from
today, receiving the balance sale
consideration of Rs.5,000/-.
(iv) If the defendants fail to execute the sale
deed, the appellant-plaintiff is at liberty to
approach appropriate Court to obtain the sale
deed under due process of law.
(v) Registry is directed to send the records to the
concerned Court, forthwith.
Sd/-
JUDGE
ST
