Karnataka High Court
Kalakanagouda S/O Parvatagouda ... vs Shivabasappa S/O Sharanabasappa ... on 16 November, 2023
Bench: Anant Ramanath Hegde
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RFA No. 115 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 115 OF 2006 (SP-)
BETWEEN:
1. KALAKANAGOUDA S/O. PARVATAGOUDA DESAI,
AGED ABOUT 61 YEARS, OCCN: AGRI,
R/O. SUDI, TQ: RON, DIST: GADAG,
SINCE DECEASED BY HIS LRS,
1A SMT. ANNAPURNA W/O. KALAKANAGOUDA DESAI
AGED ABOUT 66 YEARS, OCC: HOUSEHOLD.
1B BABUGOUDA S/O. KALAKANAGOUDA DESAI
AGED ABOUT 45 YEARS, OCC: AGRI.
1C MANJULA W/O. BASAVARAJ BUDHIHAL
AGE: 44 YEARS, OCC: HOUSEHOLD.
1D REKHA W/O. MUTTANAGOUDA PATIL
AGE: 43 YEARS, OCC: HOUSEHOLD.
1E LAAXMI W/O. VEERANAGOUDA DESAI
AGED ABOUT 36 YEARS, OCC: HOUSEHOLD.
MOHANKUMAR
B SHELAR
1F RAJESHWARI D/O. VEERANAGOUDA DESAI
Digitally signed by
MOHANKUMAR B
SHELAR
AGED ABOUT 12 YEARS, OCC: STUDENT.
Date: 2023.11.21
13:24:40 +0530
1G GANESHGOUDA S/O. VEERANAGOUDA DESAI
AGED ABOUT 03 YEARS, OCC: STUDENT.
1F AND G ARE MINORS REPRESENTED
BY THEIR NATURAL MOTHER 1E
SMT. LAXMI W/O. VEERANAGOUDA DESAI.
2. MALLANAGOUDA S/O. PARVATAGOUDA DESAI,
AGED ABOUT 48 YEARS, OCC: AGRI,
R/O. SUDI, TQ: RON, DIST: GADAG.
...APPELLANTS
(BY SRI. S. S. BAWAKHAN, ADV. FOR
SRI. SHIVAKUMAR S. BADAWADAGI, ADVOCATE
A2 APPEAL STANDS DISMISSED AS ABATED)
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RFA No. 115 of 2006
AND:
1. SHIVABASAPPA S/O. SHARANABASAPPA BELLAD
AGED ABOUT 40 YEARS, OCC: AGRI,
R/O. SUDI, TQ: RON, DIST: GADAG.
SINCE DECEASED BY HIS LRS
1A CHANDRASHEKHAR SHIVABASAPPA BELLAD
AGED ABOUT 65 YEARS, OCC: BUSINESS,
R/O. BEHIND VENKATESH THEATRE GADAG-BETAGERI,
SINCE DECEASED BY HIS LRS.
1B MAHESH S/O. CHANDRASHEKHAR BELLAD
AGE: 45 YEARS, OCC: NOT KNOWN.
1C SIDDALINGESH S/O. CHANDRASHEKHAR BELLAD
AGE: 43 YEARS, OCC: NOT KNOWN.
1D VANAJAKSHI D/O. CHANDRASHEKHAR BELLAD
AGE: 47 YEARS, OCC: NOT KNOWN.
1E BASAMMA D/O. CHANDRASHEKHAR BELLAD
AGE: 40 YEARS, OCC: NOT KNOWN,
ALL ARE R/O. BEHIND VENKATESH THEATRE
GADAG-BETAGERI, TQ AND DIST: GADAG.
...RESPONDENTS
(BY SRI. S. K. KAYAKAMATH, ADV. FOR R1)
THIS REGULAR FIRST APPEAL IS FILED U/S 96 OF CPC, 1908,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED:
29.11.2005 PASSED BY THE CIVIL JUDGE (SENIOR DIVISION), RON AT
RON IN O.S. NO.162/2004 AND CONSEQUENTLY DISMISS THE SAME IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 115 of 2006
JUDGMENT
The defendants in O.S.No.162/2004 on the file of the
Civil Judge (Sr.Dn.), Ron are before this Court challenging
the decree for specific performance granted in favour of
the plaintiff.
2. In terms of the aforesaid decree, the trial Court
directed the defendants to execute the sale deed in favour
of the plaintiff by receiving Rs.10,000/- as balance sale
consideration amount and directed the defendants to
handover the possession of the suit property within three
months from the date of the decree.
3. The suit is filed to enforce the agreement for
sale dated 07.05.1994. Agreement is registered. The total
extent of land agreed to be sold is 11 acres. Plaintiff
claims to have paid Rs.1,00,000/- towards part of the
consideration amount and the property was agreed to be
sold for Rs.1,10,000/-.
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RFA No. 115 of 2006
4. The defendants disputed the execution of the
agreement for sale and took a defence of total denial.
5. The trial Court concluded that agreement is
proved and has also concluded that plaintiff is entitled for
specific performance of contract as he has established
readiness and willingness to perform his part of contract.
6. Aggrieved by the aforementioned judgment and
decree, the defendants are in appeal.
7. The learned counsel Sri.S.S.Bawakhan
appearing for the appellants would contend that trial Court
erred in holding that agreement is proved. It is his
contention that agreement is hurriedly entered into
between the parties and fraud was committed on the
appellants and the appellants did not intend to execute the
sale deed in respect of the aforementioned property. Thus,
he would urge that finding relating to proof of agreement
of sale is erroneous. He would also submit that plaintiff
has not established his readiness and willingness to
perform his part of the contract and in the alternative, he
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would contend that, assuming that agreement is proved
and the plaintiff has established his readiness and
willingness to perform his part of contract, the trial Court
could not have granted decree for specific performance in
terms of Section 20 of the Specific Relief Act, 1963
(hereinafter referred to as 'the Act' for short), which
disentitles the plaintiff to insist for specific performance
under certain circumstances. He would submit that
circumstances available for refusing decree for specific
performance were established by the defendants in the
cross-examination of the plaintiff. Thus, he would urge
that judgment and decree are to be set aside and the suit
of the plaintiff is to be dismissed.
8. Sri.S.K.Kayakamath appearing for the
respondent/plaintiff would urge that agreement for sale is
duly registered and the consideration amount agreed to be
paid is Rs.1,10,000/-. Out of the same, Rs.1,00,000/- is
already paid towards advance consideration amount and
the balance consideration amount is Rs.10,000/- and the
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plaintiff was always ready and willing to perform his part
of contract. He would further submit that evidence on
record would clearly establish that agreement for sale is
duly proved and the plaintiff established his readiness and
willingness to perform his part of contract as he had paid
nearly 90% of the sale consideration at the time of
agreement for sale. The trial Court has rightly decreed the
suit.
9. Referring to the contentions raised with
reference to Section 20 of the Act, he would urge that, no
case is made out to exercise the discretion in favour of the
defendants who disputed the registered agreement for
sale in toto and the defendants have not led any evidence
to accept contention that decree for specific performance
would be onerous to the defendants. He would further
submit that in the absence of specific plea to attract
Section 20 of the Act, the discretion cannot be exercised in
favour of the defendants and against the plaintiff to refuse
the decree for specific performance of contract.
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10. This Court has considered the contentions
raised at the bar. The following points would arise for
consideration.
i) Whether the appellants establish that agreement
for sale is not proved?
ii) Whether the appellants establish that finding on
plaintiff's readiness and willingness to perform his
part of contract is erroneous?
iii) Whether the appellants are able to establish that a
case is made out to exercise discretion under
Section 20 of the Specific Relief Act in favour of
the defendants and against the plaintiff to decline
the relief of specific performance of contract?
11. Admittedly, agreement for sale is duly
registered. Though defendants disputed the signatures on
the agreement for sale, which is duly registered, in the
cross-examination, the defendants confronted the
signatures on the written statement and the vakalath, one
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of the defendants disowned his own signature on the
vakalath and another defendant disowned his own
signature on the written statement. The trial Court
compared the admitted signature (other than one
disputed) on the written statement and the vakalath filed
by the defendants with the signatures on the registered
agreement for sale. The trial Court has concluded that
signatures found on the registered agreement for sale are
the signatures of the defendants.
12. Apart from taking a defence of total denial, a
specific positive defence is not raised by the defendants as
to under what circumstances the registered agreement for
sale was entered into between the parties. They have not
explained as to under what circumstances they went to the
office of the Sub-Registrar for the purpose of registration.
On re-appreciating the evidence on record, this Court is of
the view that there are no materials to show that
agreement for sale is not executed by the defendants.
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13. It is also relevant to note that scribe to the
registered agreement for sale is examined and hardly
anything is elicited in the cross-examination of P.W.3 to
disbelieve the registered agreement for sale.
14. This being the position, the trial Court is
justified in holding that agreement for sale is duly proved.
15. As far as plea relating to readiness and
willingness is concerned, it is to be noticed that there is a
pleading in the plaint in compliance of requirement of
Section 16(c) of the Act. As far as proof is concerned, it is
very must be noticed that sale consideration amount is
Rs.1,10,000/- agreed under the agreement for sale. Out
of the said amount, Rs.1,00,000/- is paid on the date of
registration. Since this Court has concluded that
agreement for sale is proved, there is no difficulty in
holding that Rs.1,00,000/- is paid to the defendants in
terms of the agreement for sale and what is required to be
paid is only Rs.10,000/-. It is not the case of the
defendants that plaintiff was not in a position to pay
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Rs.10,000/- in terms of the condition imposed in the
agreement for sale.
16. It is required to be noticed that agreement for
sale stipulates the time for the plaintiff/respondent to pay
balance consideration amount and thereafter defendants
were required to execute registered sale deed in favour of
the plaintiff. Two years' time stipulated in the agreement,
expired on 06.05.1996. The plaintiff/respondent in his
plaint stated that he has been repeatedly requesting the
defendants/appellants to execute sale deed in favour of
the plaintiff by receiving balance consideration amount and
defendants went on postponing the execution of sale deed.
It is not the case of the plaintiff that the defendants
refused to execute the sale deed. It is not the case of the
defendants that they refused to execute the sale deed
when it was demanded.
17. The plaintiff is also claiming that he has issued
a notice on 28.04.1997 calling upon the defendants to
execute the sale deed. Copy of the notice is also produced.
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The defendants have not replied to the said notice. Even
to the evidence led by the plaintiff about his willingness to
perform his part of contract by paying balance
consideration amount, there is no cross-examination by
the defendants. In other words, the plea that he was
ready and willing to perform his part of contract is not
seriously disputed by the defendants.
18. Taking into consideration the same, and that
the suit is filed within one year after accrual of cause of
action under the agreement, and also considering the fact
that the plaintiff has paid nearly 90% of the sale
consideration amount agreed to be paid, this Court is of
the view that the finding of the trial Court that plaintiff
was ready and willing to perform his part of contract
cannot be faulted.
19. For the reasons recorded, the finding of the trial
Court on the proof of agreement and also readiness and
willingness on the part of the plaintiff to perform his part
of contract does not call for any interference.
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20. Learned counsel Sri.S.S.Bawakhan for the
defendants/appellants has raised a contention that despite
the Court giving the finding that agreement is proved and
that the plaintiff was ready and willing to perform his part
of contract, the Court is not obliged to grant a decree for
specific performance. The Court is required to consider
whether a case is made out to grant a decree for specific
performance in the agreement by taking into consideration
the relevant materials available on record. To substantiate
his contention, he would refer to the examination-in-chief
of the plaintiff wherein he has claimed that the family
owns 80 acres of land. It is urged that in the year 1994
the market value of the land agreed to be sold was around
15,000/- to 20,000/- per acre and property measuring 11
acres under agreement marked at Annexure-P1 is agreed
to be sold for Rs.10,000/- per acre. It is also his
contention that from the said land, defendants own
remaining 1 acre of land which is not the subject
matter of agreement for sale and under these
circumstances, a decree for specific performance would
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put the defendants in an inequitable position and they will
be left with no other property to sustain themselves.
21. Learned counsel Sri.S.K.Kayakamath appearing
for the plaintiff/respondent would contend that the said
plea is not available to the defendants as the defendants
have not raised any defence in the written statement and
no issue is framed in this regard. He also contends that
had been a proper pleading that the plaintiff would have
responded to the said pleading by filing counter and led
evidence to substantiate their contention.
22. This Court finds some justifications in the
submissions by the learned counsel for the
plaintiff/respondent. It is to be noticed that the defendants
do not avail the opportunity to raise the contention under
Section 20 of the Specific Relief Act and apart from that it
is also required to be noticed that the defence is of total
denial and they have not come out with any positive
version explaining under what circumstances the
agreement for sale was executed. Thus on overall
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appreciation of the facts of the case, this Court is of the
view that this Court need not dwell into the question as to
whether the indulgence can be shown to the defendants
by ordering refund of money.
23. Nevertheless the plaintiff in his examination-in-
chief itself has stated that the family owns 80 acres of
land. The total extent of land in the survey number is 12
acres 30 guntas and out of that, 1 acre 30 guntas is not
part of the agreement for sale and 1 acre 30 guntas is
with the defendants. The Court is taking into consideration
that there is a huge escalation in the market value of the
lands since 1994. On considering aforementioned factors,
in the peculiar facts and circumstances of this case, in the
interest of justice, it would be appropriate to direct the
defendants to execute the sale deed in respect of western
half portion of the property agreed to be sold.
24. Thus, 5 acres 20 guntas in the western portion
in the suit survey number be sold, in favour of the plaintiff
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and remaining 5 acres 20 guntas out of 11 acres agreed in
the eastern side shall be with the defendants.
25. In all, the defendants will have 5 acres 20
guntas + 1 acre 30 guntas on the eastern side in the suit
survey number.
26. It is stated that 10 guntas of land in the suit
survey number is kharab land. It is to be ascertained from
the records as to where exists 10 guntas of pot kharab. If
it all falls in the western half portion of 11 acres agreed to
be sold the plaintiff shall not claim additional 10 gunats.
Likewise if those 10 guntas of kharab lies on the eastern
side in 11 acres agreed to be sold then the defendants
shall not claim additional 10 guntas.
27. For the aforementioned reasons, the appeal is
allowed in part. The judgment and decree dated
29.11.2005 passed in O.S.No.162/2004 by the Civil Judge
(Sr.Dn.) are modified to the above said extent.
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28. The plaintiff shall deposit balance amount of
Rs.10,000/- before the trial Court within one month from
the date of receipt of certified copy of this order and
thereafter the defendants shall execute registered sale
deed in respect of western side of 5 acres 20 guntas on
the Sy.No.79/1 of Sudi village of Ron taluk keeping in
mind the observations made in paragraph No.26 supra.
29. In case defendants do not come forward to
execute sale deed, the plaintiff is at liberty to get the sale
deed executed through the process of the Court by filing
execution petition. In such an event the plaintiff is also
entitled actual vacant possession of the property.
Sd/-
JUDGE
MBS,KGK
CT-an
