Beeralingapa vs Sri Siddappa
2023 Latest Caselaw 6777 Kant

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                                                          NC: 2023:KHC:34863
                                                        RSA No. 1555 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 25TH DAY OF SEPTEMBER, 2023

                                            BEFORE
                             THE HON'BLE MR JUSTICE H.P.SANDESH
                        REGULAR SECOND APPEAL NO. 1555 OF 2019 (SP)
                   BETWEEN:

                   1.    BEERALINGAPA
                         S/O. KURUBARALAKKANNA,
                         AGED ABOUT 71 YEARS,
                         R/AT MUDDENA HALLI,
                         KASABA HOBLI,
                         MADHUGIRI TALUK,
                         TUMKUR DISTRICT-572 101.
                                                                  ...APPELLANT

                                 (BY SRI HARISH H.V., ADVOCATE)

                   AND:

                   1.    SRI SIDDAPPA
                         S/O. LATE OBALAPPA,
                         AGED ABOUT 57 YEARS,
Digitally signed
by SHARANYA T      2.    ANJINAMMA
Location: HIGH           D/O. LATE OBALAPPA,
COURT OF
KARNATAKA                AGED ABOUT 67 YEARS,

                   3.    RANGAMMA
                         D/O. LATE OBALAPPA,
                         AGED ABOUT 64 YEARS,

                   4.    NINGAMMA
                         D/O. LATE OBALAPPA,
                         AGED ABOUT 61 YEARS,

                   5.    OBALAMMA
                         D/O. LATE OBALAPPA,
                         AGED ABOUT 58 YEARS,
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                                                NC: 2023:KHC:34863
                                              RSA No. 1555 of 2019




    ALL ARE CHILDREN OF
    LATE OBALAPPA & SAJJAKKA,
    R/AT KRISHNAIAHNAPALAYA,
    KASABA HOBLI,
    MADHUGIRI TALUK,
    TUMKUR DISTRICT-572 101.
                                                   ...RESPONDENTS

      THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 08.03.2019 PASSED IN
R.A.NO.87/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 27.10.2017
PASSED IN O.S.NO.322/2013 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, AT MADHUGIRI.

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

                           JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant.

2. The factual matrix of the case of the plaintiff before

the Trial Court while seeking the relief of specific performance

is that sale agreement was executed in 1987 for sale

consideration of Rs.6,000/- and an advance amount of

Rs.3,500/- was paid and balance amount was payable at the

time of registration. The defendants though served with

summons, did not choose to appear and contest the matter.

NC: 2023:KHC:34863 RSA No. 1555 of 2019

3. The plaintiff, in order to prove his case, examined

himself as P.W.1 and also examined one witness as P.W.2 and

got marked the documents as Exs.P1 to P6(a). The Trial Court,

having considered the grounds urged in the suit, formulated the

points whether the plaintiff has proved the very execution of

sale agreement and the transaction and whether he was always

ready and willing to perform his part of contract. The Trial

Court, having considered both oral and documentary evidence

placed on record, answered the points as 'negative and

dismissed the suit.

4. Being aggrieved by the judgment and decree of the

Trial Court, an appeal is filed before the First Appellate Court in

R.A.No.87/2017 and the First Appellate Court also, having

reassessed the material available on record and also the

grounds urged in the appeal, formulated the points whether the

impugned judgment and decree requires interference. The

First Appellate Court having considered the evidence of P.Ws.1

and 2 as well as the documents which have been produced

before the Court, comes to the conclusion that the Trial Court

has not committed any error since the alleged sale agreement

is of the year 1987 and under the said agreement, 2 acres of

NC: 2023:KHC:34863 RSA No. 1555 of 2019

land was sought to be sold for their family necessities. Having

reassessed the material on record, the First Appellate Court

also comes to the conclusion that the suit is filed after lapse of

26 years and the plaintiff has not made any efforts to pay the

balance amount and kept quiet for a period of 26 years and

filed the suit after a long time and even though the time is not

the essence of the contract, ought to have obtained the sale

agreement within reasonable time and the same has not been

done. Hence, confirmed the judgment of the Trial Court. Being

aggrieved by the judgment and decree of the Trial Court and

the First Appellate Court, the present second appeal is filed

before this Court.

5. Learned counsel for the appellant would vehemently

contend that both the Courts have not considered the material

on record in a proper perspective. The counsel also would

contend that even though the defendants have not contested

the matter, even if the Court comes to the conclusion that the

plaintiff was not ready and willing to perform his part of the

contract, ought to have ordered for refund of the amount and

the same has not been done. Learned counsel would further

contend that both the Courts erroneously comes to the

NC: 2023:KHC:34863 RSA No. 1555 of 2019

conclusion that plaintiff has failed to prove the sale agreement

and payment of sale consideration, especially when the same is

not denied and the plaintiff failed to prove the same in

accordance with law inspite of P.W.2 has been examined to

prove the sale agreement. The evidence of P.W.2 has not been

weighed properly and ought to have exercised the discretion in

favour of the plaintiff. Hence, this Court has to admit the

appeal and frame substantial question of law.

6. Having heard the learned counsel for the appellant

and also on perusal of the material available on record, no

doubt, the defendants have not contested the matter, but the

plaintiff examined himself as P.W.1 and also examined one

witness as P.W.2 and got marked the documents as Exs.P1 to

P6(a) and relied upon legal notice and postal acknowledgement

which are marked as Exs.P3, P4 and P5 respectively, sale

agreement which is marked as Ex.P6 and RTC extracts which

are marked as Exs.P1 and P2. Both the Courts have taken note

of the fact that the agreement is of the year 1987 and also the

fact that plaintiff kept quiet for a period of 26 years and the

recitals in Ex.P6 discloses that sale consideration is Rs.6,000/-

for 2 acres of land and paid only a sum of Rs.3,500/- and not

NC: 2023:KHC:34863 RSA No. 1555 of 2019

paid the balance amount and also taken note of discrepancy in

Exs.P1 and P2 i.e., RTC Extracts. As per Ex.P1, 2 acres of land

is standing in the name of plaintiff and remaining 37 guntas is

standing in the name of defendant No.1. In Ex.P2, in respect

of item No.2 of the suit schedule properties, the same is

standing in the name of Sajjakka, W/o. Ganjappa. The

defendant Nos.2 to 5 are the daughters of Sajjakka and

Obalappa and the same is mentioned in the plaint and the

plaintiff also did not make any enquiry with regard to the rights

of the other family members. The First Appellate Court also

taken note of the Limitation Act and an observation is also

made that though agreement is of the year 1987 and time is

not the essence of contract, ought to have obtained the sale

agreement within reasonable time and the plaintiff kept quiet

for a period of 26 years.

7. Hence, having taken note of all these materials on

record, the Trial Court comes to the conclusion that it is not a

fit case to grant the relief as sought by the plaintiff. The

learned counsel for the appellant would vehemently contend

that since the Trial Court comes to the conclusion that the

plaintiff was not ready to perform his part of contract, ought to

NC: 2023:KHC:34863 RSA No. 1555 of 2019

have ordered for refund of money and both the Courts comes

to the conclusion that the plaintiff failed to prove the execution

of sale agreement in the year 1987 and passing of sale

consideration and not accepted the evidence of P.Ws.1 and 2

with regard to execution of the document and even though the

defendants not contested the matter, the evidence of plaintiff

must inspire the confidence of the Court to grant the relief of

specific performance. When such being the case, I do not find

any error committed by the Trial Court in dismissing the suit

and confirming the same by the First Appellate Court on re-

appreciation of both oral and documentary evidence placed on

record and hence, the question of invoking Section 20 of the

Specific Relief Act does also not arise and the Court can

exercise the discretion under Section 20 of the Specific Relief

Act, even if the agreement is genuine and enforceable and the

Court has to evaluate the material available on record and

when there is a delay on the part of the plaintiff in approaching

the Court and waited for 26 years and did not pay the balance

sale consideration and both the Courts have also taken note of

Article 54 of the Limitation Act, I do not find any ground to

admit the appeal and frame substantial question of law.

NC: 2023:KHC:34863 RSA No. 1555 of 2019

Accordingly, the appeal is dismissed. In view of dismissal

of the appeal, I.As if any do not survive for consideration and

the same stand disposed of.

Sd/-

JUDGE

ST