Karnataka High Court

Ahalya Bai Since Decd By Her Lrs ... vs Eshwar S/O Sangappa Shiddareddy on 9 June, 2023

Bench: K.S.Hemalekha

                                                      -1-




                                      IN THE HIGH COURT OF KARNATAKA,

                                               DHARWAD BENCH

                                    DATED THIS THE 9TH DAY OF JUNE, 2023

                                                   BEFORE

                                  THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

                                REGULAR SECOND APPEAL NO.539 OF 2005 (SP)
                                                  C/W
                                REGULAR SECOND APPEAL NO. 540 OF 2005 (SP)

                        IN R.S.A. No.539/2005

                        BETWEEN

                        1.     SMT. AHALYA BAI
                               W/O. AMBASA BADI
                               MAJOR BY AGE,
                               SINCE DECEASED BY HER LR's.

                        1(a)   AMBA SA S/O. LAKSHMAN SA BADI
                               MAJOR BY AGE, OCC: BUSINESS,
                               R/O. JAMKHANDI,
                               DIST: BAGALKOT - 587 301.
                               SINCE DECEASED BY HER LR's.

                        (b)    RAM SA S/O. AMBASA BADI
                               MAJOR BY AGE,
           Digitally
YASHAVANT  signed by
NARAYANKAR YASHAVANT           OCC: BUSINESS
           NARAYANKAR
                               R/O. JAMKHANDI,
                               DIST: BAGALKOT - 587 301.

                               (NAME OF 1(a) DELETED AS PER
                               MEMO DATED 20/02/2013)                 ... APPELLANTS

                        (BY SRI V.P. KULKARNI & SRI M.C. HUKKERI, ADVOCATES)

                        AND

                        1.     ESHWAR
                               S/O. SANGAPPA SHIDDAREDDY,
                               AGE: 40 YEARS,
                               OCC: CONTRACTOR & AGRICULTURIST,
                               R/O. JAMKHANDI
                               SINCE DECEASED BY HIS LR's.
                               -2-




1(a)   SMT. KAMALAWWA
       W/O. ESHWAR SHIDDAREDDY,
       AGE: 40 YEARS,

1(b)   SMT. RUPA W/O. RAVI SHIDDAREDDY
       AGE: 27 YEARS,
       SINCE DECEASED BY HER LR's.

1(b)(a) KUMARI. DIVYA
      D/O. LATE RAVI SHIDDAREDDY,
      SINCE MINOR RPT. BY
      HER NATURAL GRAND MOTHER
      SMT. KAMALAWWA
      W/O. ESHWAR SHIDDAREDDY,
      R/O. K.H.B. COLONY JAMKHANDI,
      DIST: BAGALKOT.

       (AMENDED CAUSE TITLE CARRIED OUT
       AS PER ORDER DATED 11/04/2018)

1(c)   SMT. SRIDEVI W/O. GURUNATH PATIL
       AGE: 25 YEARS,

       ALL ARE R/O. VIDHYAGIRI COLONY JAMKHANDI
       TQ: JAMKHANDI, DIST: BAGALKOT.

2.     BABA SA
       S/O. LAKSHMAN SA BADI
       AGE: MAJOR,
       OCC: BUSINESS
       R/O. BADIGALI, JAMKHANDI,
       DIST: BAGALKOT.
       SINCE DEAD BY HER LR's

2(a)   PARASURAM SA S/O. BABASA BADI
       AGE: 40 YEARS,
       OCC: MACHANICAL
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD, TQ. & DIST: GADAG.

2(b)   VISHNU SA S/O. BABASA BADI
       AGE: 38 YEARS,
       OCC: COOLI
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX,
       HUBBALLI ROAD,
       TQ. & DIST: GADAG.
                                 -3-




2(c)   VASANT SA S/O. Babasa BADI
       AGE: 36 YEARS, OCC: COOLI
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD,
       TQ. & DIST: GADAG.

2(d)   NAGARAJ SA S/O. BABASA BADI
       AGE: 34 YEARS, OCC: COOLI,
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD,
       TQ. & DIST: GADAG.

2(e)   MANJNATH SA S/O BABASA BADI
       AGE: 32 YEARS, OCC: COOLI,
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD,
       TQ. & DIST: GADAG.

2(f)   RAJAKUMAR SA S/O. BABASA BADIS
       AGE: 30 YEARS, OCC: COOLI,
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD,
       TQ. & DIST: GADAG.

2(g)   PRAKASH SA S/O BABASA BADI
       AGE: 28 YEARS, OCC: COOLI,
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD,
       TQ. & DIST: GADAG.

       (AMENDED CAUSE TITLE CARRIED OUT
       AS PER ORDER DATED 30/05/2022)            ... RESPONDENTS

(BY SRI ANIL KALE, ADVOCATE FOR R-1(a & c) & R-1(b)(i);
    R-1(b) - DECEASED
    R-2(a), R-2(b), R-2(d), R-2(e), R-2(f), R-2(g) ARE SERVED;
    R-2(c) - HELD SUFFICIENT)

       THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41 R 1
OF CPC AGAINST THE JUDGEMENT & DECREE DATED 18.12.2004
PASSED IN R.A. NO.177/2001 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT NO.I, BAGALKOT, ALLOWING THE
                               -4-




APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED
20.12.1996 PASSED IN O.S.NO.279/1987 ON THE FILE OF THE
PRL.CIVIL JUDGE, JAMKHANDI TRIAL COURT DECREED THE SUIT.
APPELLATE COURT ALLOWED THE APPEAL.


IN R.S.A. No.540/2005

BETWEEN:

1.     SMT. AHALYA BAI
       W/O. AMBASA BADI
       MAJOR BY AGE,
       SINCE DECEASED BY HER LR's.

1(a)   AMBA SA S/O. LAKSHMAN SA BADI
       MAJOR BY AGE, OCC: BUSINESS,
       R/O. JAMKHANDI,
       DIST: BAGALKOT - 587 301.
       SINCE DECEASED BY HER LR's.

(b)    RAM SA S/O. AMBASA BADI
       MAJOR BY AGE, OCC: BUSINESS
       R/O. JAMKHANDI,
       DIST: BAGALKOT - 587 301.

       (NAME OF 1(a) AMENDED/DELETED
       AS PER MEMO DATED 20/02/2013)          ... APPELLANTS

(BY SRI V.P. KULKARNI & SRI M.C. HUKKERI, ADVOCATES)

AND:

1.     ESHWAR
       S/O. SANGAPPA SHIDDAREDDY,
       AGE: 40 YEARS,
       OCC: CONTRACTOR & AGRICULTURIST,
       R/O. JAMKHANDI
       SINCE DECEASED BY HIS LR's.

1(a)   SMT. KAMALAWWA
       W/O. ESHWAR SHIDDAREDDY,
       AGE: 40 YEARS,

1(b)   SMT. RUPA
       W/O. RAVI SHIDDAREDDY,
       AGE: 27 YEARS,
                              -5-




1(b)(a) KUMARI. DIVYA
      D/O. LATE RAVI SHIDDAREDDY,
      SINCE MINOR RPT. BY
      HER NATURAL GRAND MOTHER
      SMT. KAMALAWWA
      W/O. ESHWAR SHIDDAREDDY,
      R/O. K.H.B. COLONY JAMKHANDI,
      DIST: BAGALKOT.

       (AMENDED CAUSE TITLE CARRIED OUT
       AS PER ORDER DATED 11/04/2018)

1(c)   SMT. SRIDEVI W/O. GURUNATH PATIL
       AGE: 25 YEARS,

       ALL ARE R/O. VIDHYAGIRI COLONY JAMKHANDI
       TQ: JAMKHANDI,
       DIST: BAGALKOT.

2.     BABA SA
       S/O. LAKSHMAN SA BADI
       AGE: MAJOR, OCC: BUSINESS
       R/O. BADIGALI, JAMKHANDI,
       DIST: BAGALKOT.
       SINCE DEAD BY HER LR's

2(a)   PARASURAM SA S/O. BABASA BADI
       AGE: 40 YEARS, OCC: MACHANICAL
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD, TQ. & DIST: GADAG.

2(b)   VISHNU SA S/O. BABASA BADI
       AGE:38 YEARS OCC: COOLI
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX,
       HUBBALLI ROAD, TQ. & DIST: GADAG.

2(c)   VASANT SA S/O. BABASA BADI
       AGE: 36 YEARS, OCC: COOLI
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD, TQ. & DIST: GADAG.

2(d)   NAGARAJ SA S/O. BABASA BADI
       AGE: 34 YEARS, OCC: COOLI,
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD, TQ. & DIST: GADAG.
                                 -6-




2(e)   MANJNATH SA S/O. BABASA BADI
       AGE: 32 YEARS, OCC: COOLI,
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD, TQ. & DIST: GADAG.

2(f)   RAJAKUMAR SA S/O. BABASA BADIS
       AGE: 30 YEARS, OCC: COOLI,
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD,
       TQ. & DIST: GADAG.

2(g)   PRAKASH SA S/O BABASA BADI
       AGE: 28 YEARS, OCC: COOLI,
       R/O. MARUTI AUTO ELECTRICAL
       S.S.K. COMPLEX
       HUBBALLI ROAD,
       TQ. & DIST: GADAG.

       (AMENDED CAUSE TITLE CARRIED OUT
       AS PER ORDER DATED 30/05/2022)            ... RESPONDENTS

(BY SRI ANIL KALE, ADVOCATE FOR R-1(a & c) & R-1(b)(i)
    IN (R.S.A. NO.539/2005);
R-1(b) R-2(a), R-2(b), R-2(d), R-2(e), R-2(f), R-2(g) ARE SERVED;
R-2(c) - HELD SUFFICIENT)

       THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41 R 1
OF CPC AGAINST THE JUDGEMENT & DECREE DATED 18.12.2004
PASSED IN R.A. NO.176/2001 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT NO.I, BAGALKOT, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED
20.12.1996 PASSED IN O.S. NO.49/1985 ON THE FILE OF THE
PRL.CIVIL JUDGE, JAMKHANDI. TRIAL COURT PARTLY DECREED THE
SUIT. APPELLATE COURT ALLOWED THE APPEAL. SUIT FOR SPECIFIC
PERFORMANCE.


       THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
19/04/2023 FOR JUDGMENT AND COMING FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:
                                 -7-




                        JUDGMENT

RSA No.539/2005 is preferred by the plaintiff-Ahalya

Bai against the judgment and decree dated 18.12.2004 in

R.A. No.177/2001 on the file of Fast Track Court-I, Bagalkot

reversing the judgment and decree dated 20.12.1996 in

O.S.No.279/1987 on the file of the Principal Civil Judge,

Jamakhandi.

2. RSA No.540/2005 is preferred by the defendant

No.2-Ahalya Bai assailing the judgment and decree dated

18.12.2004 in R.A.No.176/2001 on the file of Fast Track

Court-I, Bagalkot reversing the judgment and decree dated

20.12.1996 in O.S.No.49/1985 on the file of the Principal

Civil Judge, Jamakhandi.

3. For the sake of convenience, the parties are

referred to as per the ranking before the Trial Court in

O.S.No.49/1985, the plaintiff being one Ishwar and the

defendant No.2-Ahalya Bai.

4. This Court while admitting the appeal in RSA

No.540/2005 on 29.06.2005 has framed the following

substantial questions of law:

"Whether the finding of the 1st appellate Court reversing the judgment and decree passed by the trial Court and ordering specific performance in O.S.No.49/1985 is perverse and arbitrary for non- consideration of the material on record and in view of the finding of the trial Court that the agreement had not been proved?"

5. This Court while admitting the appeal in RSA

No.539/2005 on 18.02.2008 has held that relief of

possession in the present appeal is depending upon the relief

of specific performance, if at all to be granted in the

connected appeal and hence, this appeal is admitted to be

heard along with the connected appeal.

6. This Court while hearing the appeal, learned

counsel for the appellant sought to raise the additional

substantial question of law and by separate order an

additional substantial question of law has been framed by

this Court on 19.04.2023, which reads as under:

"1. Whether the First Appellate Court was justified in reversing the judgment and decree of the trial Court merely because an other view was possible and without recording finding that the order of the trial Court was neither illegal or capricious?

2. Whether the First Appellate Court was justified in holding that the appellants are not bonafide purchaser in view of the public notice issued vide Ex.P.4 which is inadmissible in evidence?

3. Whether the First Appellate Court was justified in holding that the appellants are not entitled for possession of the property on the ground that the plaintiff was in possession of the property prior to the agreement of sale?"

7. Learned counsel for the appellants and learned

counsel for the respondent have been heard on the

substantial questions of law framed by this Court.

8. Brief facts of the case are that, O.S.No.49/1985

was filed by one Ishwara seeking for specific performance of

the agreement of sale executed by defendant No.1 dated

12.05.1985. It is averred in the plaint that the consideration

at the time of execution of the agreement of sale was

Rs.65,000/- and earnest money of Rs.10,000/- was paid to

defendant No.1 and the time stipulated in the agreement

was by end of 31.07.1985. It is averred that the plaintiff-

Ishwar was in possession as lessee of the suit schedule

property has been confirmed by way of part performance

- 10 -

under the agreement of sale. It is averred that defendant

No.1 in collusion with the husband of defendant No.2, who is

none other than the brother of defendant No.1 managed to

get two sale deeds in the name of defendant No.2 in respect

of the suit schedule property for consideration of Rs.35,000/-

on 22.05.1985. It is stated that even before the execution of

the sale deed in favour of defendant No.2 the plaintiff-

Ishwar has filed an application to the Sub-Registrar,

Jamakhandi intimating the transaction of agreement of sale

in his favour and requesting not to register or make any

entries in the city survey records in favour of any other

person and also by way of precaution had issued a public

notice in the weekly newspaper. It is further averred that

defendant Nos.1 and 2 in order to deprive the right of the

plaintiff have created the alleged sale deed and hence,

prayed for directing the defendants to execute the sale deed

in respect of the suit schedule property in terms of the

agreement of sale.

9. Pursuant to the summons issued by the Trial

Court, defendants appeared and filed their written

statement.

- 11 -

10. Defendant No.1 filed written statement inter alia

contending that the suit schedule property is not in

possession of the plaintiff as a lessee. It is further stated

that defendant No.1 was in need of money and hence, has

borrowed a sum of Rs.5,000/- from the plaintiff and the

plaintiff insisted to execute the agreement of sale in respect

of suit schedule property and the alleged the agreement of

sale is nothing but a security towards the loan amount. It is

further stated that the suit schedule property has been sold

to defendant No.2 for valuable consideration vide registered

sale deed.

11. Defendant No.2 contended that she has

purchased the suit schedule property for valuable

consideration of Rs.70,000/- under two different registered

sale deeds and she is a bonafide purchasers without notice of

the agreement of sale in favour of plaintiff.

12. The plaintiff-Ahalya Bai in O.S.No.279/1987

sought for possession and for damages taking the similar

contention as taken in the written statement filed in

O.S.No.49/1985 and the plaintiff-Ishwara in O.S.No.49/1985

- 12 -

contested the suit defendant in O.S.No.279/1987 and denied

the allegations raising the same pleadings as stated in

O.S.No.49/1985.

13. The Trial Court on the basis of the pleadings,

framed the following issues:

"Issues in O.S.No.49/85:

(1) Whether the Plaintiff proves that the defendant No.1 agreed to sell the suit property to him for Rs.65,000/- as alleged ?

(2) Whether he further proves that Deft.1 took Rs.10,000/- from him as earnest money as alleged?

(3) Whether the Plaintiff proves that he was in possession of the suit property as a lessee and from the date of agreement he is in possession of the suit property in part performance of the agreement of sale as alleged ?

(4) Whether the Plff. proves that the Deft.2 and her husband knew the suit transaction, as such, the sale deed dated: 21-5-85 and 22-5-85 executed in favour of Deft.No.2 in respect of a suit property are not binding on him as alleged ?

- 13 -

(5) Whether the Plff. proves that he was ready and willing to perform his part of contract as alleged ?

(6) Whether deft.1 proves that the description of the suit property is not correct as stated in his W.S.?

(7) Whether the valuation made and Court fee paid is not correct ?

(8) Whether the Plff. is entitled to get the reliefs claimed ?

Additional Issues:-

(1) Whether Deft.2 proves that she is bonafide purchaser of the suit property for valuable consideration without notice of alleged agreement set-up by the Plaintiff ?

(2) Whether this suit, without the prayer for declaration, that the two sale-deeds dated: 21-5- 85 and 22-5-85 by Deft.1 in favour of Deft.2 are binding on the Plaintiff is not tenable ?

(3) Is Plff. entitle in the alternative for refund of earnest money of Rs.10,000/- allegedly paid to defendant No.1 under the agreement of sale and damages to the tune of Rs.55,000/-? If yes, against whom ?

- 14 -

Issues in O.S.No.279/1987

(1) Does Plaintiff prove that she is bonafide purchaser of suit property for valuable consideration without notice of any transaction between Defendant No.1 and defendant No.2 ?

(2) Does Plaintiff prove that deft. No.1 gain access to the suit property clandestinely, illegally and high handedly after suit in O.S.No.49/85 on the strength of order of maintaining status-quo ?

(3) Whether Plaintiff proves that she is entitled to damages of Rs.300/- per month ?

(4) Whether Plaintiff is entitled to mandatory injunction directing Deft.1 to remove all his belongings, vacate and put : Plaintiff in possession of the suit property ?"

14. The Trial Court partly decreed the suit in

O.S.No.49/1985 and granted alternative prayer directing

refund of earnest money of Rs.10,000/- with interest at the

rate of 12% p.a. and the prayer for specific performance was

dismissed.

15. The O.S.No.279/1987 for possession is filed by

Ahalya Bai was decreed directing the defendant No.1-

- 15 -

Ishwara therein to hand over the vacant possession of the

suit schedule property.

16. Aggrieved by the judgment of the Trial Court,

R.A. Nos.176/2001 and 177/2001 were preferred by the

plaintiff in O.S.No.49/1985 and defendant in

O.S.No.279/1987.

17. The first appellate Court framed the following

points for consideration:

"1) Whether the plaintiff Shidaraddi in O.S.No.49/85 proves that defendant No.1 has executed the suit agreement and agreed to execute the registered sale deed on or before 31-7-1985 in respect of the suit property for Rs.65,000/- and put him in possession of the suit property by receiving the earnest money of Rs.10,000/- ?

2) Whether the plaintiff Smt. Ahalyabai in O.S.No.279/87 proves that on 15-3-1985, defendant No.2 executed the agreement as per Exh.D-1 and agreed to sell the suit property for Rs.70,000/- by receiving earnest money of Rs.20,000/- and executed the registered sale deeds dated 21-5-1985 and 22-5-1985 ?

- 16 -

3) Whether the plaintiff in O.S.No.279/87 proves that she is a bonafide purchaser for valid consideration and without the knowledge of transaction between Iswar Sangappa Shidaraddi plaintiff in O.S.No.49/85, and defendant No.1 Babasa Laxmanasa Badi ?

4) Whether the plaintiff in O.S.No.49/85 was always ready and willing to purchase the suit property by paying the remaining balance consideration and to obtain the registered sale deed?

5) Whether the plaintiff in O.S.No.49/85 is entitled for specific performance ?

6) Whether the plaintiff in O.S.No.279/87 is entitled for the relief of vacant possession of the suit property as prayed for ?

7) Whether the appellant/plaintiff Iswar Sangappa Shidaraddi proves that the judgment of the trial Court is erroneous, illegal, contrary to established principle's of law, facts, oral and documentary evidence on record and it requires interference by this Court ?"

18. The first appellate Court on re-appreciation of the

material on record, held that the plaintiff in O.S.No.49/1985

has proved the execution of the agreement of sale by

- 17 -

defendant No.1 and directed defendant No.1 to execute the

sale deed in favour of the plaintiff. Further held that the

plaintiff in O.S.No.279/1987 has failed to prove that on

15.03.1985, defendant No.1 executed the agreement and

accordingly, a registered sale deed was executed in favour of

Ahalya Bai and that the plaintiff-Ahalya Bai in

O.S.No.279/1987 has failed to prove that she is a bonafide

purchaser for valuable consideration. Accordingly, decreed

the suit in O.S.No.49/1985 filed by Iswara for specific

performance and dismissed O.S.No.279/1987 filed by Ahalya

Bai for possession. During the pendency of the appeals,

Ahalya Bai and her legal representatives were brought on

record. Aggrieved by the reversal by the first appellate

Court, the present appeal by the legal representatives of

Ahalya Bai.

19. Sri. V.P. Kulkarni, learned counsel for the

appellant would contend that the order of the first appellate

Court is not justified as the first appellate Court while

reversing the judgment of the Trial Court has not stated as

to how the order of the Trial Court was capricious and illegal.

Learned counsel would further contend that Ex.P.4-the public

- 18 -

notice is inadmissible in evidence and placing reliance on the

public notice, by the first appellate Court to come to a

conclusion that the appellants are not bonafide purchasers is

not justifiable. Learned counsel would further contend that

the entire approach of the first appellate Court while

reversing the judgment of the Trial Court is on the face of it

is unsustainable and liable to be set-aside. It is further

contended that the first appellate Court has failed to consider

that before execution of the sale deeds in favour of

defendant No.2, there was an agreement of sale dated

31.07.1985 which is prior to the agreement of sale executed

in favour of the plaintiff-Ishwar.

20. Learned counsel would emphasize that the first

appellate Court has not framed points for consideration in

consonance with the order 41 Rule 31 of CPC. Learned

counsel would further contend that the first appellate Court

has assigned no reasons while re-appreciating the evidence

and comes to a different conclusion. The appellate Court has

not exercised the scope as enunciated under Section 96 of

CPC. Learned counsel would further contend that the first

appellate Court for reversal of the Trial Court is on two

- 19 -

counts: i.e., Ex.P.4-the public notice is not in accordance

with law and that Ahalya Bai is not a bonafide purchaser of

suit schedule property for valuable consideration. Stating

these grounds learned counsel would contend that the

substantial question of law needs to be answered in favour of

the appellant. In support of his contention, learned counsel

has relied upon the following judgments:

1) Santosh Hazari vs. Purushottam Tiwari,

reported in (2001) 3 SCC 179 [Santosh Hazari]

to contend that the first appellate Court did not

discharge the duty cast on it as the Court of first

appeal.

2) Laliteshwar Prasad Singh vs. S.P. Srivastava,

reported in (2017) 2 SCC 415 [Laliteshwar

Prasad Singh] in regard to the powers and duties

of the first appellate Court.


     3)    The judgment of the Co-Ordinate Bench of this

           Court     in     RSA            No.100824/2014      dated

           13.07.2016        in     the     case   of   Mallavva   vs.

Chandra Bai [Mallavva] to contend that the

approach of the first appellate Court cannot be

cryptic and perverse.

- 20 -

21. Per contra, Sri Anil Kale, learned counsel

appearing for the respondent would contend that the first

appellate Court has passed a well considered order and point

No.7 framed by the first appellate Court evidences that the

point framed for consideration is whether the judgment of

the Trial Court is erroneous, illegal and contrary and would

answer the contention of the appellants that the first

appellate Court has exercised the powers conferred upon the

fact finding Court. Learned counsel would further contend

that the first appellate Court has rightly held that defendant

No.2- Ahalya Bai in O.S.No.49/1985 has failed to prove that

she is a bonafide purchaser for valuable consideration and

without the knowledge of the transaction between the

plaintiff in O.S.No.49/1985 and defendant No.1. Learned

counsel would contend that the substantial question of law

needs to be answered against the appellants.

22. This Court has carefully considered the rival

contention urged by the learned counsel for the parties on

the substantial question of law framed by this Court and

perused the entire material on record.

- 21 -

23. The plaintiff-Ishwar filed a suit for specific

performance against defendant No.1 in respect of the

agreement of sale dated 31.07.1985. Defendant No.1-the

owner of the suit schedule property admitted about the

execution of the sale however contended that the agreement

of sale was executed towards the security of loan amount

having been taken by defendant No.1 from the plaintiff.

Defendant No.2 contended that she is a bonafide purchaser

for a valuable consideration for having purchased the suit

schedule property under the registered sale deeds dated

21.05.1985 and 22.05.1985. The plaintiff in order to prove

the agreement of sale has got examined himself as P.W.1

and got marked document Ex.P.1-the agreement of sale

dated 12.05.1985 Ex.P.4-the paper publication and the

property extracts.

24. The defendant on the other hand, examined

himself as D.W.1 and got marked document as Ex.D.1-the

agreement of sale executed by defendant No.1 in favour of

defendant No.2 and Ex.D2-the registered sale deeds.

Defendant No.2 is none other than the wife of brother of

defendant No.1, defendant No.2 has not entered the witness

- 22 -

box. The Trial Court holds that the plaintiff in

O.S.No.49/1985 has failed to prove that defendant No.1 has

agreed to sell the suit schedule property and holds that

defendant No.2 is a bonafide purchaser.

25. The first appellate Court while answering the

point for consideration has held that the agreement of sale in

favour of the plaintiff is proved and as on the date of

agreement and during the subsistence of the agreement, the

vendor has sold the property to Ahalya Bai. The said Ahalya

Bai is the wife of brother of defendant No.1 and is/are

residing at Jamakhandi. Ex.P.4 is the paper publication

having issued in respect of agreement of sale executed in

favour of the plaintiff. Materials also reveal that the plaintiff

had informed the Sub-Registrar about the execution of the

agreement of sale in favour of the plaintiff. It is very unlikely

that defendant No.2 gets a sale deed executed in her favour

without getting possession and without enquiring about the

earlier transaction when admittedly the plaintiff is in

possession of the suit schedule property. In a suit for specific

performance when the sale deed executed by the vendor in

favour of 3rd person the plaintiff only needs to seek for

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specific performance of contract and defendant No.2 needs

to join along with defendant No.1 for the execution of the

sale deed.

26. Though the learned counsel for the appellant

would vehemently contend that the first appellate Court

while reversing the judgment of the Trial Court has not

appreciated the evidence and no reasons have been given

while reversing the judgment of the Trial Court. Point No.7

framed by the first appellate Court under the points for

consideration, which reads as under:

"7) Whether the appellant/plaintiff Iswar Sangappa Shidaraddi proves that the judgment of the trial Court is erroneous, illegal, contrary to established principle's of law, facts, oral and documentary evidence on record and it requires interference by this Court ?"

27. While answering the points raised, the first

appellate Court has held that the judgment and decree of the

Trial Court is erroneous and illegal and requires to be

interfered. The other contention of the learned counsel is

that the first appellate Court has not framed proper points

for determination is not acceptable since the first appellate

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Court has carefully considered and re-appreciated the entire

material and evidence on record and rightly come to the

conclusion that the plaintiff is entitled for specific

performance of contract and defendant is not a bonafide

purchaser of suit schedule property for valuable