Shivappa S/O Bailappa Holer vs Yamanappa
2023 Latest Caselaw 3546 Kant

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                                                         NC: 2023:KHC-K:1362
                                                          RSA No. 200214 of 2017




                                 IN THE HIGH COURT OF KARNATAKA,

                                         KALABURAGI BENCH

                               DATED THIS THE 21ST DAY OF JUNE, 2023

                                               BEFORE
                             THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA


                           REGULAR SECOND APPEAL NO. 200214 OF 2017 (SP)
                      BETWEEN:

                      SHIVAPPA S/O BAILAPPA HOLER
                      @ HADMANI, AGE:50 YEARS,
                      OCC: AGRICULTURE,
                      R/O YARAGALL,
                      TQ : MUDDEBIHAL,
                      NOW AT C/O BAILAPPA DEVUR,
                      NEAR MANGALADEVI TEMPLE,
                      RAMANAGAR, HUBLI, DIST. DHARWAD.

                                                                    ...APPELLANT

                      (BY SRI NEEVA M. CHIMKOD, ADVOCATE)

Digitally signed by
SACHIN
                      AND:
Location: HIGH
COURT OF
KARNATAKA             1.     YAMANAPPA
                             S/O NARAYANAPPA HOLER,
                             SINCE DECEASED BY HIS LRS

                      1A.    SMT YALLAMMA @ LALITA
                             W/O YAMANAPPA HOLER @ YERAGAL
                             AGE: 55 YEARS, OCC: HOUSEHOLD
                             R/O BASAVANAGAR, YARAGAL,
                             TQ. MUDDEBIHAL,
                             DIST. VIJAYAPUR.
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                                   NC: 2023:KHC-K:1362
                                     RSA No. 200214 of 2017




1B.   SHASHIKANT
      S/O YAMANAPPA HOLER @ YERGAL,
      AGE: 36 YEARS, OCC: AGRICULTURE,

1C.   SHAMSUNDAR
      S/O YAMANNAPPA HOLER @ YERGAL,
      AGE: 30 YEARS, OCC: PVT. SERVICE,
      R/O BASAVANAGAR, YARAGAL
      TQ. MUDDEBIHAL, DIST : VIJAYAPUR.

1D.   SUJATA @ REKHA
      W/O HANAMANTH CHALAWADI,
      AGE: 34 YEARS, OCC: HOUSEHOLD,
      R/O JALAPUR, TQ : MUDDEBIHAL,
      DIST : VIJAYAPUR.

                                             ...RESPONDENTS

(BY SRI AMIT KUMAR DESHPANDE, SENIOR COUNSEL FOR
    SRI G.B.YADAV, ADVOCATE FOR R1(A) TO R1(D))
     THIS RSA ID FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE PRAYING TO ALLOW THE APPEAL AND TO
SET ASIDE THE JUDGEMENT AND DECREE DATED 18.03.2017
PASSED IN R.A. NO.18/2015 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC AT MUDDEBIHAL, CONFIRMING THE
JUDGEMENT AND DECREE DATED 30.10.2015 PASSED IN
O.S.NO.26/2012 BY THE COURT OF THE CIVIL JUDGE,
MUDDEBIHAL AND CONSEQUENTLY THE SUIT OF           THE
PLAINTIFF BE DISMISSED IN THE INTEREST OF JUSTICE AND
EQUIYT.

     THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

1. Yemanappa, the plaintiff instituted the suit seeking to

enforce an agreement of sale dated 27.05.2005

NC: 2023:KHC-K:1362 RSA No. 200214 of 2017

which had been executed by Shivappa, the

defendant.

2. It was his case that he had agreed to purchase the

agricultural land bearing Sy.No.122/2 measuring 03

acres 34 guntas situate at Yaragal Village for a total

sale consideration of `1,45,000/- and he had paid a

sum of `70,000/- as on the date of the execution of

agreement of sale and despite several requests to

execute a sale-deed, Shivappa had been evasive.

3. He stated that on 05.10.2009, Shivappa had

approached him and informed him that his brother

had filed a suit for partition and he required the

balance amount of `75,000/- immediately and in

view of this request, he had also paid the balance

sale consideration of `75,000/- and Shivappa had

also executed a receipt for having received the

balance sale consideration.

NC: 2023:KHC-K:1362 RSA No. 200214 of 2017

4. He stated that despite receipt of the entire sale

consideration, Shivappa did not execute a sale-deed

and when he approached him on 03.01.2012, he

started demanding more money and showed an

hostile attitude indicating that he was not ready to

execute the sale-deed and in the light of this

attitude, the suit was filed.

5. Shivappa entered appearance and took-up the

defence of complete denial for the agreement of sale.

6. Yemanappa examined himself and also the two

attesting witnesses to the agreement of sale and also

the scribe and got 11 documents admitted into

evidence and marked as exhibits.

7. Shivappa chose not to lead any evidence. However,

two documents were admitted into evidence and

marked as exhibits.

NC: 2023:KHC-K:1362 RSA No. 200214 of 2017

8. The Trial Court on consideration of the evidence

came to the conclusion that the agreement of sale,

being unregistered could not be looked into and it

accordingly proceeded to refuse the prayer for

specific performance. It however proceeded to order

refund of a sum of `1,45,000/- that had been paid to

Shivappa along with interest at the rate of 6% per

annum.

9. Being aggrieved, Yemanappa preferred an appeal.

The Appellate Court on re-appreciation of the

evidence came to the conclusion that the view taken

by the Trial Court that the unregistered agreement of

sale could not be looked into was incorrect, in light of

the proviso to Section 49 of the Registration Act and

it went on to hold that since the agreement of sale

had been executed, Yemanappa was entitled to a

decree of specific performance. It accordingly,

allowed the appeal and granted a decree of specific

performance in favour of Yamanappa in respect of

NC: 2023:KHC-K:1362 RSA No. 200214 of 2017

Shivappa's half share in the land bearing

Sy.No.122/2 measuring 03 acres 34 guntas.

10. The Appellate Court also granted liberty to

Yemanappa to apply for partition of the property for

getting his share demarcated, either by filing a suit

or by way of settlement amongst the co-sharers.

11. Being aggrieved by the judgment of the Appellate

Court, Shivappa is in second appeal.

12. Learned counsel for the appellant, Smt.Neeva

M.Chimkod contended that the view of the Appellate

Court that the unregistered, agreement of sale could

be looked into was improper and the consequential

decree was also improper. She contended that unless

the agreement was registered, on a conjoint reading

of Sections 17(1A) and 49 read with Section 53(A) of

the Transfer of Property Act, the agreement of sale

was inadmissible in evidence and as a further

NC: 2023:KHC-K:1362 RSA No. 200214 of 2017

consequence, no decree for specific performance

could be granted on such an inadmissible document.

13. Learned counsel for the appellant placed reliance on

the decision of the Hon'ble Apex Court in the case of

R.Hemalatha vs. Kashthuri1 to contend that an

unregistered agreement of sale was inadmissible in

evidence.

14. Para 10 of the said judgment reads as under :-

"10. Thus, as per proviso to Section 49, an unregistered document affecting the immovable property and required by Registration Act to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered document."

AIR 2023 Supreme Court 1895

NC: 2023:KHC-K:1362 RSA No. 200214 of 2017

15. As could be seen from the said passage, the Hon'ble

Supreme Court has in fact stated that an

unregistered document affecting the immovable

property could be received as evidence of a contract

in a suit for specific performance. In light of this

particular proposition of law stated by the Hon'ble

Apex Court, the argument of the learned counsel

would be untenable.

16. This argument of the learned counsel for the

appellant that the unregistered agreement of sale

cannot be admissible in evidence in fact runs counter

to the exception provided for admissibility of the

agreement of sale in the proviso to Section 49 of the

Registration Act.

17. It is to be stated that the proviso categorically states

that in a suit for specific performance, an

unregistered document affecting the immovable

property can be received as evidence. Thus, the

NC: 2023:KHC-K:1362 RSA No. 200214 of 2017

entire argument in this regard would have to be

rejected.

18. It is also to be stated here that the law does not

require an agreement of sale to be compulsorily

registerable. However, if an agreement of sale is

registered, the prospective purchaser gets the benefit

of protection of part performance, if he has been put

in possession pursuant to the agreement of sale.

Conversely, if the agreement of sale is not

registered, he cannot claim the protection afforded

by Section 53A of the Transfer of Property Act.

19. In the instant case, admittedly the plaintiff did not

claim that he had been put in possession pursuant to

the agreement of sale and he was therefore not

obviously entitled to seek for protection under

Section 53(A) of the Transfer of Property Act. In my

view the entire argument that an unregistered

agreement of sale cannot be admitted into evidence,

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NC: 2023:KHC-K:1362 RSA No. 200214 of 2017

as it had been executed after 2001 in this case

completely misconceived.

20. I am of the view that the finding of both the Courts

that the agreement of sale was in fact executed and

the entire sale consideration had been paid is

essentially a question of fact which has been arrived

at after a proper consideration of the evidence and

does not deserve any interference in the second

appeal.

21. I find no substantial question of law arising for

consideration in this appeal and the second appeal is

therefore dismissed.

Sd/-

JUDGE

SN