Karnataka High Court
B Sharanappa vs M Janardhana Rao on 30 June, 2023
Bench: Jyoti Mulimani
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NC: 2023:KHC:22563
RSA No. 1141 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.1141 OF 2016 (SP)
BETWEEN:
1. B.SHARANAPPA
S/O B. CHANNAPPA,
AGED ABOUT 67 YEARS,
R/O 4TH CROSS, B BLOCK,
DEVARAJ URS LAYOUT,
DAVANAGERE - 577 006.
2. SMT. V.SHANTAMMA
W/O VATLAHALLI KOTRAPPA,
AGED ABOUT 77 YEARS,
R/O NEAR RAM & CO. CIRCLE,
P.J.EXTENSION, DAVANGERE,
PIN - 577 002.
3. BASAVARAJ
S/O VATLAHALLI KOTRAPPA,
AGED ABOUT 52 YEARS,
Digitally signed by
THEJASKUMAR N R/O NEAR RAM & CO. CIRCLE,
Location: HIGH P.J.EXTENSION, DAVANGERE,
COURT OF PIN - 577 002.
KARNATAKA
4. SMT. KOTRAMMA
D/O VATLAHALLI KOTRAPPA,
AGED ABOUT 46 YEARS,
R/O NEAR RAM & CO. CIRCLE,
P.J.EXTENSION, DAVANGERE,
PIN - 577 002.
5. V.K.MALLIKARJUNA
S/O VATLAHALLI KOTRAPPA,
AGED ABOUT 41 YEARS,
R/O NEAR RAM & CO. CIRCLE,
-2-
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RSA No. 1141 of 2016
P.J.EXTENSION, DAVANGERE,
PIN - 577 002.
APPELLANT NO.2 TO 5 ARE
REPRESENTED BY THEIR GPA
HOLDER APPELLANT NO.1
B.SHARANAPPA, S/O B.CHANNAPPA,
AGED ABOUT 67 YEARS,
R.O 4TH CROSS, B BLOCK,
DEVARAJ URS LAYOUT,
DAVANAGERE - 577 006.
...APPELLANTS
(BY SMT.AZRA.J.DUNDGE., ADVOCATE FOR
SRI.SANTHOSH.R.NELKUDRI., ADVOCATE)
AND:
M.JANARDHANA RAO
SINCE DECEASED BY HIS LR'S
1. SMT. M. SUSHEELA
W/O LATE M.JANARADHANA RAO,
AGED ABOUT 80 YEARS,
R/A NO.396, 2ND CROSS,
K.B.EXTENSION,
DAVANAGERE - 577 002.
2. M.J.VISHWANATH
S/O LATE M. JANARADHANA RAO,
AGED ABOUT 55 YEARS,
R/A NO.396, 2ND CROSS,
K.B.EXTENSION,
DAVANAGERE - 577 002.
3. M.J.ANURADHA
W/O VENKATESHWARA RAO,
AGEDA BOUT 40 YEARS,
R/A NO.396, 2ND CROSS,
K.B.EXTENSION,
DAVANAGERE - 577 002.
...RESPONDENTS
(BY SRI.L.M.RAMAIAH GOWDA., ADVOCATE FOR R1 TO 3)
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NC: 2023:KHC:22563
RSA No. 1141 of 2016
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Smt.Azra J.Dundge., learned counsel on behalf of
Sri.Santhosh R.Nelkudri., for the appellants, and
Sri.L.M.Ramaiah Gowda., learned counsel for respondents have
appeared in person.
2. This is an appeal from the Court of I Addl. District &
Sessions Judge, Davanagere.
3. For the sake of convenience, the status of the
parties shall be referred to as per their ranking before the Trial
Court.
4. The plaintiff filed a suit seeking the relief of specific
performance of an agreement to enforce the contract dated
28.11.2002 executed by defendant No.1 in his favor. The
plaintiff contended that defendants 2 to 5 are the owners of
agricultural land bearing Sy.No.11/2B measuring to an extent
of 04 Acre 04 Guntas and 01 Acre and 16 Guntas situated at
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RSA No. 1141 of 2016
Karur Village, Davanagere Taluk. It is said that they executed a
General Power of Attorney in favor of defendant No.1 on
07.11.1984. By virtue of the said power of attorney, the first
defendant got converted the agricultural land for non-
agricultural purposes and formed sites. After the formation of
sites, the first defendant agreed to sell three properties i.e.,
Sites No.13 & 21 and 49 to the plaintiffs. Hence, an agreement
for the sale of three sites was entered into between the plaintiff
and defendant No.1 on 08.03.2000. For some reason, the
agreement was canceled on 04.12.2002. Later, there was
another agreement for the sale of sites bearing No.13 & 49 on
28.11.2002. The plaintiff contended that he was ever ready and
willing to perform his part of the contract and he issued a letter
on 11.11.2003 and notice on 28.10.2006 to the first defendant
to execute the sale deed but in vain. Hence, the plaintiff -
initiated action.
After the service of the suit summons, the defendants
appeared before the Court. Defendant No.1 filed his written
statement and denied the agreement. He specifically contended
that he needed money. Hence, he approached the plaintiff
through a common friend Veeraiah and the plaintiff advanced a
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RSA No. 1141 of 2016
sum of Rs.50,000/- (Rupees Fifty Thousand only) as a loan,
and as security, the plaintiff obtained the agreement of sale in
respect of three sites. He also contended that he was regular in
paying the interest. It is said that he suffered a loss in the
business hence he was forced to sell site No.21 and paid the
interest to the plaintiff. The agreement dated 08.03.2000 came
to be canceled. Among other grounds, he prayed for the
dismissal of the suit.
During the pendency of the suit, the original plaintiff died,
and his legal representatives were brought on record.
5. Based on the above pleadings, the Trial Court
framed Issues. The respective parties led evidence to
substantiate the claim, and documents were marked. On the
trial of the action, the Trial Judge decreed the suit. Aggrieved
by the Judgment and Decree of the Trial Court, the defendants
preferred an appeal before the First Appellate Court. On appeal,
the First Appellate Court confirmed the Judgment and Decree of
the Trial Court. Hence, this Regular Second Appeal is filed by
the defendants under Section 100 of CPC.
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Learned counsel for the respective parties urged several
contentions. Heard the contentions and perused the records
with utmost care.
The facts have been sufficiently said and the same does
not require reiteration. The suit giving rise to this appeal was
filed by the plaintiff seeking the relief of specific performance.
The person, seeking specific performance of the contract,
must file a suit wherein he must aver and prove that he has
performed or has been ready and willing to perform the
essential terms of the contract, which are to be performed by
him. The words 'ready and willing' imply that the plaintiff was
prepared to conduct those parts of the contract to their logical
end as far as they depend upon his performance.
To substantiate the contention, Smt.Susheela the wife of
original plaintiff M.Janardhana Rao was examined as PW1, and
the first defendant was examined as DW1. It is pivotal to note
that the first defendant has admitted that after the cancellation
of the first agreement he executed a second agreement on
28.11.2002 for the sale of two sites in favor of the plaintiff.
Based on the material evidence on record, the Trial Judge held
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that the plaintiff has proved the agreement and hence he is
entitled to the relief of specific performance.
6. Smt.Azra J.Dundge., learned counsel for the
appellants in presenting her arguments vehemently contended
that defendant No.1 needed money. Hence, he borrowed the
amount from the plaintiff. She argued by saying that there is a
loan transaction between the plaintiff and defendant No.1 and
both Courts did not appreciate the same and erroneously
decreed the suit for specific performance. She also submitted
that DW2 is a scribe, and his cross-examination has not been
appreciated properly.
7. In reply, Sri.L.M.Ramaiah Gowda., learned counsel
appearing on behalf of respondents submits that the suit is one
for specific performance and it is a discretionary relief. The Trial
Court and the First Appellate Court considered the material
evidence on record and rightly decreed the suit.
This Court considered the submission made on behalf of
the respective parties. I may venture to say that the contention
about the loan transaction must necessarily fail since the first
defendant himself has admitted the execution of the agreement
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dated 28.11.2002. Hence, the said contention is satisfactorily
hopeless.
8. The law is well settled that the grant of decree for
specific performance is not automatic. The plaintiff must prove
that he is entitled to the relief of specific performance. In the
present case, the plaintiff has proved the execution of the
agreement and both Courts concurrently concluded that he is
entitled to the relief of specific performance.
It is pivotal to note that the Trial Court in extenso
referred to the material on record and decreed the suit. The
First Appellate Court re-appraised the material evidence on
record. I am satisfied that it has been appreciated from the
correct perspective. The concurrent finding of facts, however
erroneous, cannot be disturbed by the High Court in the
exercise of the power under section 100 of CPC. The substantial
question of law must be distinguished from a substantial
question of fact. In my view, the findings recorded by both
courts are either vitiated by non-consideration of relevant
evidence or by a mistaken approach to the matter.
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It is perhaps well to observe that after the 1976
amendment, the scope of section 100 of the CPC has been
drastically curtailed and narrowed down. Under section 100 of
the Code of Civil Procedure 1908 (as amended in 1976) the
jurisdiction of the High Court to interfere with the judgment of
the court below is confined to hearing substantial questions of
law. Interference with a finding of a fact by the High Court is
not called for if it involves re-appreciation of the evidence.
9. No substantial question of law arises for
consideration in this appeal. As a result, I find no merit in this
appeal, and so, it is dismissed at the stage of admission.
Sd/-
JUDGE
TKN
