Karnataka High Court
Sri.Kalappa S/O. Chanappa Shirur vs Smt.Basavva W/O. Holappagouda ... on 29 November, 2023
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NC: 2023:KHC-D:14090
RFA No. 100373 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100373 OF 2018 (SP)
BETWEEN:
SRI. KALAPPA S/O. CHANAPPA SHIRUR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: NAGASHETTIKOPPAL, HUBBALLI-580020.
...APPELLANT
(BY SRI. B.S. SANGATI, ADVOCATE)
AND:
SMT. BASAVVA W/O. HOLAPPAGOUDA,
SIDDANAGOUDRA,
AGE: 58 YEARS, OCC: HOUSEWIFE,
R/O: GUDIGERI, TQ: KUNDGOL-581113.
...RESPONDENT
(SMT. G. MEERABAI, ADVOCATE - ABSENT)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF
SAMREEN
AYUB THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE
DESHNUR
JUDGMENT AND DECREE PASSED BY THE COURT OF THE SENIOR
Digitally signed CIVIL JUDGE AND JMFC, KUNDGOL IN O.S NO.27/2017 DATED
by SAMREEN
AYUB DESHNUR
Date: 2023.12.06 30/08/2018 AND ALLOW THE SUIT FILED BY
11:13:06 +0530
APPELLANT/PLAINTIFF, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, HAVING BEEN HEARD AND RESERVED AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 100373 of 2018
JUDGMENT
The appellant-plaintiff has preferred this appeal
being aggrieved by the judgment of dismissal of the suit in
O.S.No.27/2017 by the Senior Civil Judge and JMFC,
Kundgol dated 30.08.2018.
2. The appellant was the plaintiff and respondent
was the defendant before the Trial Court.
3. For the purpose of convenience parties to the
appeal are referred to as per their rank before the Trial
Court.
4. The plaintiff filed a suit against the defendant
seeking relief of Specific Performance of Contract dated
15.09.2016.
5. Facts of the case; That defendant is the owner
of suit schedule residential property bearing VPC
No.740/1A situated at Gudigeri Village, Kundgol Taluk
measuring East-West 33.50 mtr., North-South 4.85 mtr.
According to the plaintiff, the defendant is the absolute
owner of the suit schedule property. As the defendant
expressed to sell the suit schedule property, the plaintiff
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intended to purchase the same. Therefore, he entered
into an agreement of sale dated 15.09.2016 and agreed to
purchase the suit schedule property for a consideration of
Rs.13,00,000/-. To that effect, as part consideration
amount, the plaintiff paid Rs.12,00,000/- to the
defendant. It was agreed to pay balance sale
consideration of Rs.1,00,000/- on the date of execution of
sale deed. The plaintiff was ready to perform his part of
the contract. However, the defendant has failed to
perform her part of the contract. On several occasions,
request was made by the plaintiff to execute of sale deed
on receiving the balance sale consideration, but, the
defendant did not respond to the request of the plaintiff.
Therefore, the plaintiff was constrained to issue notice to
the defendant on 05.06.2017 and called upon the
defendant to execute the sale deed. As the defendant has
not executed the sale deed, the suit was filed by the
plaintiff for the aforesaid relief before the trial Court.
6. After receipt of summons, the defendant
appeared before the trial Court and filed the written
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statement denying the entire allegations made in the
plaint by the plaintiff. It is contended that, the plaintiff is
well acquainted with her son. This suit schedule property
was granted by the Karnataka State Government under
"Ashraya Scheme" to the defendant. There was a
condition imposed by the Government not to alienate the
suit schedule property for a period of 15 years. Therefore,
there was no occasion for the defendant to sell the suit
schedule property at any point of time. She has not
entered any agreement of sale in favour the plaintiff. She
has not received any consideration amount from the
plaintiff.
7. It is contended by the defendant that, her son
is addicted to alcohol and he is gambler. The plaintiff and
her son took the defendant to Sub-Registrar Office,
Kundgol stating that, they will provide her benefits from
the Government and fraudulently got obtained her
signature on agreement of sale. No consideration amount
has been received by the defendant at any point of time.
The allegations so made in the plaint with regard to receipt
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of part of sale consideration amount of Rs.12,00,000/- is
denied by the defendant. Thus, it is contended that, suit
of the plaintiff is not at all maintainable in the eyes of law.
Hence, it is prayed to dismiss the suit.
8. Based upon the rival pleadings, learned trial
Court framed the following issues:
"ISSUES
1. Whether the plaintiff proves that the
defendant executed an agreement of sale on
15.09.2016 and received Rs.12,00,000/- as
advance sale consideration?
2. Whether the plaintiff proves that the
plaintiff is always ready and to perform his part of
contract?
3. Whether the plaintiff is entitled for
advance money of Rs.12,00,000/- with interest the
rate of 18% p.a. from the date of sale agreement
dated 15.09.2016 as alternative relief?
4. Whether the plaintiff is entitled for the relief
as prayed in the plaint?
5. What order or decree?"
9. Before the trial Court, plaintiff entered the
witness box and was examined as PW.1. He also examined
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two witnesses in the shape of PWs.2 and 3 by name
Basavaraj Dyapayi and Praveen Timmanagoudar
respectively who are the witnesses to the agreement of
sale and got marked Exs.P.1 to P.10 and closed the
plaintiff's evidence.
10. To rebut the evidence of the plaintiff, defendant
herself entered the witness box as DW.1 and got marked
Exs.D.1 to D.5 and closed the defendant's evidence.
11. The learned trial Court, on hearing the
arguments and on perusal of the records, answered all the
issues in the negative and ultimately dismissed the suit of
the plaintiff.
12. It is submitted by the counsel for the plaintiff
that, from the evidence of PWs.1 to 3, it is proved that,
there was an agreement of sale between the plaintiff and
the defendant in respect of suit schedule property. It was
registered document signed by the defendant on the date
of agreement of sale. The plaintiff has paid
Rs.12,00,000/- to the defendant as earnest money and
the balance sale consideration amount of Rs.1,00,000/-
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was agreed to be paid on the date of execution of sale
deed. Though plaintiff requested the defendant on several
occasions to execute the sale deed and receive the
balance consideration amount but, the defendant did not
respond to his request, hence the suit was filed. It is
prayed to allow the appeal and decree the suit.
13. In this appeal, though the matter is adjourned
on several occasions for representation on behalf of the
defendant, the defendant's counsel has appeared but not
present on several occasion.
14. Having heard the arguments of learned counsel
for the appellant-plaintiff and in view of the rival pleadings
so pleaded by both sides, the following points are arise for
my consideration:
i) Whether the learned trial Court has
committed factual or legal error in refusing to
grant the relief so claimed?
ii) If so, whether the judgment and
decree passed by the trial Court requires
interference by this Court?
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Point Nos. 1 and 2 are discussed together:
15. Plaintiff sought relief of specific performance of
agreement of sale dated 15.9.2016 on the ground that,
defendant being the absolute owner of the suit schedule
property executed the said agreement of sale to sell the
same for a consideration of Rs.13 lakhs. It is his specific
allegation that, on the date of agreement of sale, he paid
Rs.12 lakhs as earnest money. It was agreed between the
plaintiff and defendant that on the date of registration of
sale deed, he would pay Rs.1 lakh balance consideration.
But the defendant has denied the very agreement of sale.
According to her defence, she had no intention to execute
the agreement of sale in respect of the suit schedule
property on 15.9.2016. She never agreed to sell the said
property or agreed to execute the sale deed so stated by
the plaintiff. She has not received Rs.12 lakhs as advance
consideration. She never agreed to receive Rs.13 lakhs.
The said agreement of sale is not proper and valid
document. It is averred that as her son is a drunkard and
addicted to bad vices, taking advantage of his drunkarness
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and bad habits, the plaintiff has taken advantage to get
the signature of the defendant on the papers stating that
she would get the benefits from the Government Schemes.
16. To substantiate the plea of agreement of sale so
stated by the plaintiff, PW.1 being the plaintiff has
reiterated the plaint averments and has spoken about the
agreement of sale between himself and the defendant.
PW.1 has relied upon the documents produced by him as
per Ex.P1. With regard to agreement of sale, he identified
his signature and according to him, eight persons have put
their signatures including the family members of the
defendant.
17. In the further examination-in-chief, it is stated
by him that, prior to execution of the so called agreement
of sale as per Ex.P1, the defendant had entered into
similar agreement of sale with Sri Praveen
Thimmanagoudra and the same came to be cancelled. He
has produced the document to show about cancellation of
the agreement of sale made in favour of Sri Praveen
Thimmanagoudra. It is marked at Ex.P5. Further, he has
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produced pass book issued by Syndicate Bank, Hubballi
Branch vide Ex.P7 with regard to his financial capacity to
pay the sale consideration amount. He has produced Ex.P8
RTC Extract to show that he is owning property at
Sy.No.402/1B, Gudageri Village. He has produced notice
issued prior to filing of the suit.
18. It is elicited in the cross-examination that the
plaintiff is resident of Nagashetti Koppa Village of Hubbali
Tq., and is not possessing house property in Gudageri
Village, but, he is having landed property measuring 6
acres 12 guntas. Further he has stated in his cross-
examination that, son of defendant Sri Basanagouda is
doing business in crops like ground nut, cotton, chilli etc.,
by growing crops in his landed property. He denies other
suggestions.
19. To show that the plaintiff is having agricultural
income, he has stated in his cross-examination at Page.15
that except agricultural income, he is not having any other
income. He is not having any family income to adjust the
sale consideration amount of Rs.12 lakhs. He states that
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at Gudigeri Bank, he has raised loan of Rs.3 lakhs from
Gudigeri Branch. His father-in-law has given him Rs.3
lakhs and he had Rs.6 lakhs with him which he has
contributed. These amounts were paid towards the said
sale consideration amount. According to his evidence, in
the house nobody keeps such a big amount. He also
admits that, if the amount is more than Rs.50,000/- it has
to be paid through cheque only. Ex.P17 bank pass book is
produced by him. He denies the non-alienation clause with
regard to the suit schedule property being imposed by the
granting authority.
20. On reading the documents produced by the
plaintiff, they do show that, without taking possession of
the property, the agreement of sale was entered into by
the plaintiff as per his own version. To show that one
Praveen Thimmanagouda also entered into sale agreement
and it was cancelled, he has produced the document as
per Ex.P6.
21. On reading the contents of Ex.P7, the pass
book, as rightly observed by the trial Court that, except
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Rs.1,07,187.67 as balance in the bank account of the
plaintiff, there is no evidence placed on record by the
plaintiff that, he was really possessing an amount of Rs.12
lakhs and paid to the defendant. Thus, as rightly observed
by the trial Court, the plaintiff has not proved his financial
capacity to pay Rs.12 lakhs.
22. PW.2 Basavaraj Dyapayi is a witness to Ex.P1
and according to his evidence, he has signed Ex.P1 as a
witness. But, in the cross-examination he has stated in
favour of the defendant. According to him, defendant's son
is doing chilli business and therefore he knows him. He
admits that, all the defendant's children are having right in
the suit schedule property. He states that, defendant has
received Rs.5.5 lakhs towards agreement entered into
between someother person earlier. Subsequently, said
agreement of sale entered into with him by the defendant
is cancelled and defendant has executed agreement of sale
with the plaintiff. In page-8 of the cross-examination,
PW.2 categorically admits as under:
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NC: 2023:KHC-D:14090
"ªÁ¢ ¥ÀæwªÁ¢ PÀqɬÄAzÀ ¸Á® ¥ÀqÉ¢zÀÝgÀÄ, ¸Á®
¥ÀqÉzÀ ¸ÀA§AzsÀ Rjâ PÀgÁgÀÄ §gÉzÀÄPÉÆnÖzÁÝgÉ JAzÀÄ ªÁ¢
ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è ºÉýzÁÝgÉ JAzÀgÉ ¸Á® ¥ÀqÉ¢zÀÝgÀÄ ¸Á®
¥ÀqÉ¢zÀÝPÉÌ ¸ÀAZÀUÁgÀ §gÉzÀÄPÉÆnÖzÁÝgÉ".
23. Thus, the evidence of PW.2 shows that
defendant had raised loan from the plaintiff and because
of that, defendant has executed the agreement of sale. To
show that plaintiff has raised loan, no document is
produced. Further, the plaintiff had made transaction with
the son of defendant. Defendants transactions are being
done by her son only. He denied the suggestion that
defendant's son and plaintiff created the said agreement of
sale.
24. PW.3 Praveen Thimmanagoudra is examined by
the plaintiff to prove the said sale agreement produced at
Ex.P1. He is also signatory to Ex.P1 as witness but, in the
cross-examination, it is stated by him that, from him
defendant's son Basanagouda raised loan as he was not
possessing any property through Ex.P.6 which came to be
executed in his favour. He categorically admits that, Ex.P1
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agreement was entered into between the parties as per
the evidence of PW.3.
25. In page-9 of the cross-examination, it is stated
by PW.3 that, if defendant's son had paid the money to
the plaintiff, this plaintiff would not have filed the suit.
26. Thus, evidence of PWs 2 and 3 as rightly
pointed out by the trial Court, the transaction was in
between the son of the defendant Basanagouda with the
plaintiff but, defendant has been brought in picture and
from her there was an agreement of sale. In the cross-
examination dated 13.4.2018, it is stated by PW.3 as
under:
"¤±Á£É ¦-6£ÀÄß ¸ÁQëUÉ vÉÆÃj¹zÉ. ¤±Á£É ¦-6 ¥ÀæwªÁ¢
ªÉÆzÀ®Ä £ÀªÀÄä PÀqɬÄAzÀ ºÀt ¥ÀqÉzÀ §UÉÎ Rjâ PÀgÁgÀÄ ¥ÀvÀæ
§gÉzÀÄPÉÆnÖzÁÝgÉ. £À£Àß §½¬ÄAzÀ ¥ÀæwªÁ¢AiÀÄ ªÀÄUÀ §¸À£ÀUËqÀ
¸Á® ¥ÀqÉ¢zÀÝgÀÄ. §¸À£ÀUËqÀgÀ §½ AiÀĪÀÅzÉà D¹Û E®èzÉÃ
EzÀÄÝzÀjAzÀ CªÀgÀ vÁ¬ÄAiÀÄ PÀqɬÄAzÀ ¤±Á£É ¦-6£ÀÄß
§gɹPÉÆnÖzÀÝgÀÄ. £À£Àß PÁUÀzÀzÀ jÃwAiÀÄ°èAiÉÄà ªÁ¢ PÀÆqÁ
PÁUÀzÀ ªÀiÁr¹PÉÆArzÁÝgÉ. ¢£ÁAPÀ: 26-6-2015gÀAzÀÄ £À£Àß
PÀqɬÄAzÀ ªÀÄ£É Rjâ ¸ÀA§AzsÀ ¸ÀAZÀUÁgÀ ¥ÀvÀæ
§gÉzÀÄPÉÆnÖzÀÝgÀÄ. ¤±Á£É ¦-6gÀ°è Rjâ ¸ÀAZÀUÁgÀzÀ CªÀ¢ü 1
ªÀµÀð JAzÀÄ §gÉ¢zÉ JAzÀgÉ ¸Àj. (FUÀ ¸ÁQëUÉ ¥ÀvÀæªÀ£ÀÄß
vÉÆÃj¸À®Ä C£ÀĪÀÄw PÉÆÃjzÁÝgÉ C£ÀĪÀÄw ¤ÃrzÉ) ¢£ÁAPÀ
8-6-16 gÀAzÀÄ ¥ÀæwªÁ¢UÉ £Á£ÀÄ ¸ÀévÀB £ÉÆÃnøÀÄ ¤ÃrzÉÝãÉ
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NC: 2023:KHC-D:14090
JAzÀÄ ¸ÁQëUÉ ¥ÀvÀæªÀ£ÀÄß ¤ÃrzÁÝgÉ. ¸ÁQëAiÀÄÄ ¥ÀvÀæªÀ£ÀÄß N¢ EzÀÄ
£À£ÀßzÉà ¥ÀvÀæ J£ÀÄßvÁÛgÉ. ¸ÁQëUÉ vÉÆÃj¹zÀ zÁR¯ÉAiÀÄ£ÀÄß ¤±Á£É
r-1JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ.
ªÁ¢ K£ÀÄ ¸ÁQë £ÀÄr¢zÁÝgÉ JA§ÄzÀÄ £À£ÀUÉ w½¢zÉ.
ªÁ¢¬ÄAzÀ ¥ÀæwªÁ¢ ¸Á® ¥ÀqÉ¢zÀÝgÀÄ. ¸Á® ¥ÀqÉzÀ ¸ÀA§AzsÀ
Rjâ PÀgÁgÀÄ §gÉzÀÄPÉÆnÖzÁÝgÉ JAzÀÄ ªÁ¢ ªÀÄÄRå
«ZÁgÀuÉAiÀÄ°è ºÉýzÁÝgÉ JAzÀgÉ ¸Àj.
£À£Àß eÉÆvÉ ¥ÀæwªÁ¢AiÀÄ ªÀÄUÀ ªÀåªÀºÁgÀzÀ ¸ÀA§AzsÀ ¤±Á£É
¦-6£ÀÄß §gÉzÀÄPÉÆlÖ ºÁUÉ, ¥ÀæwªÁ¢AiÀÄÄ ¥ÀæwªÁ¢AiÀÄ ªÀÄUÀ£À
ªÀåªÀºÁgÀzÀ ¸ÀA§AzsÀ ªÁ¢AiÀÄ ºÉ¸Àj£À°è ¸ÀAZÀUÁgÀ ¥ÀvÀæ ¤±Á£É
¦-1£ÀÄß §gÉzÀÄPÉÆnÖzÁÝgÉ".
27. Thus, from the evidence of PW.3, it is very
much clear that, as Basanagouda was not possessing any
property therefore, there was agreement of sale in his
favour. That means, transaction was between plaintiff and
son of defendant. The defendant being illiterate lady
believed the words of her son and the plaintiff, went to the
office of Sub-Registrar and signed the agreement of sale
on the hope of getting benefits from the Government but,
the said document is styled as agreement of sale.
Therefore, on reading of the entire evidence placed on
record by the plaintiff, it shows that, there was no privity
of contract of agreement of sale in between plaintiff and
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defendant. Evidently, defendant is not the exclusive owner
of the suit schedule property. The defendant and her
children are owners of the schedule property. There was
no agreement of sale directly by the plaintiff with the
defendant as per the evidence of PWs 2 and 3. Therefore,
there was no privity of contract between the plaintiff and
defendant. May be because of the loan which was raised
by the defendant's son from the plaintiff, the said
documents styled as "agreement by sale" must have come
into existence. Therefore, the evidence of the plaintiff
cannot be accepted that there was agreement of sale in
respect of suit schedule property executed by the
defendant in his favour.
28. DW.1 being the defendant has spoken in her
evidence that, she never agreed to sell the suit schedule
property and she has not received any sale consideration
amount. She is not the exclusive owner of the suit
schedule property. She has denied all suggestions
directed to her. When the suggestions are denied, they
have no evidentiary value.
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29. The learned trial Court, considering the
evidence of PWs.1 to 3 and the evidence of DW.1 has
come to a definite conclusion that, while considering the
agreement of sale, the Court has to look into the entire
pith and substance of the document. Further observed
that the nomenclature of the document alone will not
decide the nature of document. The evidence stated by
PWs 2 and 3 and creation of said agreement at the
instance of the son of the defendant itself goes to establish
that, there was no privity of contract between the
defendant and the plaintiff to execute the sale deed. The
person who has given him the hand loan was not
examined. To show that, he was really possessing 12 lakhs
rupees on the date of agreement of sale and paid the
same, except self serving testimony of PW.1, no
documents are produced.
30. The evidence of PWs 2 and 3 and their
respective cross-examination falsify the case of the
plaintiff and proves the defence of the defendant.
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31. In view of the facts and circumstances of the
case, there would not have been any agreement of sale in
respect of house property owned by defendant and her
children. Such a vague and false evidence is rightly not
accepted by the Trial Court.
32. When the learned trial Court has given the
sound reasons for dismissal of the suit, I do not find any
factual or legal infirmity in the dismissal of the suit of the
plaintiff. It is prayed by the plaintiff to decree the suit for
refund of earnest money. When the transaction itself is not
duly proved in accordance with law about execution of
agreement of sale and receipt of Rs.12 lakhs by the
defendant, the plaintiff cannot maintain the present suit
even for recovery of alleged earnest money much less,
claimed in the plaint. If really he had advanced the loan
amount to the son of the defendant Basanagouda, the
remedy is elsewhere. Therefore, the points for
consideration so raised are to be answered in the
negative. Resultantly, the appeal filed by the appellant-
plaintiff fails and is liable to be dismissed.
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33. Accordingly, the following:
ORDER
(i) Appeal is dismissed.
(ii) Consequently, the judgment and decree
passed in OS 27/17 dated 30.8.2016 by
the Sr.Civil Judge, Kundagol is hereby
confirmed.
(iii) Send back the trial Court records along
with a copy of this judgment.
Sd/-
JUDGE
SMM,SK
