Karnataka High Court
Digambar S/O. Narayanarao ... vs Abdulnazeer @ Abdulsammad on 9 January, 2023
Bench: M.G.S. Kamal
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RSA No. 5964 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 5964 OF 2013 (SP)
BETWEEN:
1. DIGAMBAR S/O. NARAYANARAO DESHPANDE,
AGE: 56 YEARS, OCC: AGRICULTURE AND
DEED WRITER,
R/O.NEAR RAGHAVENDRA SWAMY MATH,
HANGAL, TQ: HANGAL,
DIST: HAVERI.
1.A SMT. DEEPA W/O. DIGAMBAR DESHPANDE,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEAR RAGHAVENDRA SWAMY MATH,
HANGAL, TQ: HANGAL, DIST: HAVERI.
...APPELLANTS
(BY SRI. ARUN L.NEELOPANT AND
SRI. SHRIHARSH A.NEELOPANTH, ADVOCATES FOR A1[A])
AND:
1. ABDULNAZEER @ ABDULSAMMAD,
Digitally signed
S/O. HAMEEDSAB UPPIN,
by ROHAN
ROHAN HADIMANI T
Location: HIGH
HADIMANI COURT OF
KARNATAKA
AGE: MAJOR, OCC: AGRICULTURE,
T
R/O. KHADAR BHAG ONI, FLOOR MILL,
DHARWAD
Date: 2023.01.13
11:50:03 +0530
SAVANUR, TQ: SAVANUR,
DIST: HAVERI.
2. MAKABULHAMMED S/O. HAMEEDSAB UPPAIN,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. JOLAD ONI, SAVANUR,
TQ: SAVANUR DIST: HAVERI.
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RSA No. 5964 of 2013
3. SUNANDA W/O. MAHADEVAPPA GAMANAGATTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. NEAR MOTTON MARKET,
HANGAL, TQ: HANGAL,
DIST: HAVERI.
4. SMT. KAMALVVA W/O. HANUMANTAPPA MALLIGAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. GEJJIHALLI, TQ: HANGAL,
DIST: HAVERI.
RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 12.09.2013
PASSED IN R.A.NO.17/2008 ON THE FILE OF THE DISTRICT
JUDGE AT HAVERI, DISMISSING THE APPEAL, FILED AGAINST
THE JUDGMENT AND DECREE DATED 30.11.2007 AND THE
DECREE PASSED IN O.S.NO.40/01 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) AND JMFC., HANGAL, DISMISSING THE SUIT
FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the unsuccessful
plaintiff aggrieved by the judgment and decree dated
30.11.2007 passed in O.S.No.40/2001 on the file of the
Civil Judge (Sr.Dn.) and JMFC, Hangal (hereinafter
referred to as the 'Trial Court') in and by which the suit for
specific performance filed by the appellant herein came to
be dismissed with cost and the said judgment and decree
RSA No. 5964 of 2013
has been confirmed by the judgment and order dated
12.09.2013 passed in R.A.No.17/2008 on the file of the
District Judge, Haveri (hereinafter referred to as the 'First
Appellate Court'). Being aggrieved by the same, the
plaintiff is before this Court.
2. The case of the plaintiff is that the suit property
in Sy.No.329A of Halekoti village measuring 1 acre 24
guntas was agreed to be sold by defendants No.1 and 2 in
favour of the plaintiff for a sale consideration of
Rs.80,000/-. Accordingly on 18.08.1995 defendants No.1
and 2 by receiving a sum of Rs.30,000/- executed an
agreement of sale in favour of the plaintiff. That the
defendants had agreed and undertaken to execute deed of
sale in favour of the plaintiff by receiving the balance sale
consideration.
2.1 That again defendants No.1 and 2 had
approached the plaintiff expressing their financial need
to start a flour mill and had requested for a payment of
Rs.40,000/- out of the balance sale consideration which
RSA No. 5964 of 2013
was purportedly paid by the plaintiff on 26.04.1996 to
which the defendants No.1 and 2 had executed a
receipt dated 26.04.1996. That the plaintiff was
however ready and willing to get the deed of sale
executed in his favour by paying a balance sale
consideration of Rs.10,000/-. The plaintiff had
requested the defendants to execute the deed of sale
and had even issued a notice dated 08.05.1996 calling
upon them to execute the deed of sale. Defendants
neither replied nor complied the demand made by the
plaintiff.
2.2 Later the plaintiff learned that the defendants
No.1 and 2 had already executed a deed of sale in
favour of defendants No.3 and 4 conveying the
property. That the defendants No.3 and 4 being aware
of the agreement of sale executed by the defendants
No.1 and 2 in favour of the plaintiff, have purchased
the same with an intention to cause loss to the plaintiff.
RSA No. 5964 of 2013
Hence, the suit for specific performance and in the
alternate for the refund of the amount.
3. Defendants No.1 and 2 in their written
statement denied the averments and allegations made.
3.1 It is specifically contended by the defendants
that defendants No.3 and 4 had originally entered into
an agreement and the husbands of defendants No.3
and 4 were working in the sub-registrar office where
the plaintiff was working as a Stamp Vendor. The
plaintiff was requested by the defendants to make
necessary arrangements and to effect necessary entries
in the revenue records. The plaintiff had in furtherance
to rendering the said service had obtained thumb
impression of defendants No.1 and 2 on various blank
papers and had also obtained the signatures of the
defendants on the premise of the same require for
carrying out necessary entries in the office of the
Tahashildar.
RSA No. 5964 of 2013
3.2 That in view of the agreement between the
defendants No.1 and 2 and the husbands of defendants
No.3 and 4, the defendants No.1 and 2 had sold the
property in favour of defendants No.3 and 4 for a
valuable sale consideration and all these facts were
known to the plaintiff who had rendered necessary
services in the transaction as a stamp vendor. Hence,
sought for dismissal of the suit.
4. Defendants No.3 and 4 also filed written
statement in the line of the written statement filed by the
defendants No.1 and 2 specifically contending that the
plaintiff has taken active role in the transaction between
the defendants No.1 and 2 and defendants No.3 and 4.
There was no transaction between the plaintiff and the
defendants No.1 and 2. That the deed of sale executed by
the defendants No.1 and 2 in their favour was thus valid
and subsisting. Hence, sought for dismissal of the suit.
RSA No. 5964 of 2013
5. Based on the pleadings, the Trail Court framed
following issues and recorded the evidence:
"1) Whether plaintiff proves that defendants 1 & 2 have
executed agreement of sale in his favour on 18-8-95
agreeing to sell suit property for Rs.80,000/- by
receiving earnest amount of Rs.30,000/-?
2) Does plaintiff further proves that defendants 1 and 2
have further received Rs.40,000/- on different dates in
respect of sale transaction and executed an receipt
dated 26.4.96?
3) Whether plaintiff proves that he is ever ready and
willing to perform his part of contract?
4) Whether plaintiff is entitle for specific performance of
contract?
5) Whether suit is barred by time?
6) Whether alternatively plaintiff is entitle for
Rs.70,000/- paid as earnest amount with damage of
Rs.10,000/- as contended?
7) What order or decree?"
6. Plaintiff examined himself as PW.1 and two
additional witnesses as PWs.2 and 3 and exhibited 11
documents marked as Exs.1 to 11. Defendants No.1 and 2
examined as DWs.1 and 2 and exhibited 8 documents
marked as Exs.1 to 8.
RSA No. 5964 of 2013
7. On appreciation of the evidence, the Trial court
answered issues No.1 to 6 in negative and dismissed the
suit with costs. Being aggrieved by the same, the plaintiff
filed an appeal in R.A.No.17/2008 on the file of the District
Judge, Haveri.
8. Considering the grounds urged in the
memorandum of appeal, the First Appellate Court framed
the following points for its consideration:
"1. Whether the court below has erred in coming to
conclusion that plaintiff has not proved the very
execution of the sale agreement by defendants No.1
and 2?
2. Whether the court below has erred in decreeing the
suit of the plaintiff and it requires interference by this
Court?
3. To what order?"
And answered the same in negative and dismissed
the appeal and confirmed the judgment and decree passed
by the Trial Court. Being aggrieved by the same, the
appellant is before this Court.
RSA No. 5964 of 2013
9. Sri. Arun L.Neelopant, learned counsel for the
appellant reiterating the grounds urged in the
memorandum of appeal submits that the defendants No.1
and 2 have admitted the agreement which they have
entered into with the plaintiff. That being the primary fact,
there was no reason for the Trial Court and the First
Appellate Court to have declined to grant relief of specific
performance. He also submits that the defendants No.2
and 3 are not the bonafide purchasers as they were aware
of the agreement which was entered into between the
defendants No.1 & 2 and the plaintiff. He further submits
that the transaction between the defendants No.1 & 2 and
defendants No.3 & 4 is hit by provision of Benami
Transactions Act. He relies upon the judgment of the
Division Bench of this Court passed in RFA.No.1133/2005
dated 07.01.2014 in the case of SRI. GOVINDAPPA Vs
SRI. MARIYAPPA and submits that the present matter is
covered by the said judgment giving rise to a substantial
question of law to be considered.
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RSA No. 5964 of 2013
10. Heard and perused records.
11. The Trial Court and the First Appellate Court
taking into consideration of the evidence led by the partes
more particularly with regard to the involvement of the
plaintiff as a stamp vendor in the transaction between
defendants No.1 and 2 on the one part and defendants
No.3 and 4 on the other part. In that Ex.D5 in the
agreement of sale dated 14.08.1995 which was entered
into between defendant No.1 and defendant No.2 and
husbands of defendant No.3 and defendant No.4. The
plaintiff admittedly affixed his signature as witness to said
agreement. The said agreement was prior in time to that
of the agreement claimed by the plaintiff taking into
consideration of the signatures of the plaintiff found as a
witness to the said document namely Ex.D5, has come to
the conclusion that the agreement relied upon by the
plaintiff was not reliable and was not proved. The Trial
Court and the First Appellate Court have even declined the
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RSA No. 5964 of 2013
case of the plaintiff of he having made part of payment the
sale consideration as he failed to prove the same in the
manner known to law and accordingly came to the
conclusion that the plaintiff was not entitled for the relief
of specific performance. The First Appellate Court
re-appreciating the facts and the evidence also came to
the conclusion of plaintiff being not entitled for relief of
specific performance and consequently dismissed the
appeal. The counsel for the appellant relying upon the
judgment of the Division Bench of this Court in the case of
SRI. GOVINDAPPA (supra) referred to paragraph No.37 of
the said judgment which reads as under:
"37. It is an admitted case of the plaintiffs that
defendants 2 to 4 were the owners of the suit land and
agreement of sale dt. 30-9-92 entered between them
and defendant No.1 was virtually by the plaintiffs and
advance sale consideration of Rs.5,00,000/- paid to
defendants 2 to 4 by the defendant No.1 was paid on
behalf of the plaintiffs and suit O.S.No.4/93 instituted
by defendant No.1 against defendants 2 to 4 and Court
fee and other expenses required for instituting the said
suit were met by the plaintiffs. If that is the nature of
transaction then it is directly hit by the provisions of
Benami Transactions (Prohibition) Act."
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RSA No. 5964 of 2013
12. The fact situation of the said judgment is
different and distinct from that of the one involved in the
present case. In that view of the matter, the said
judgment is of no avail. Since the Trial Court and the First
Appellate Court on appreciation of the evidence, facts and
circumstances of the case have come to the conclusion
that relying upon the case of the defendants and accepting
it to be more probable than the case of the plaintiff, this
Court do not find any reason to interfere with the said
factual appreciation of the matter and no substantial
question of law therefore arises for consideration.
13. Appeal is dismissed.
Sd/-
JUDGE
RH
