Karnataka High Court
B G Lingegowda vs Siddesha on 1 August, 2024
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RSA No. 481 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.481 OF 2016 (SP)
BETWEEN:
1. B.G. LINGEGOWDA
AGED ABOUT 58 YEARS,
2. B.G. MANJEGOWDA
AGED ABOUT 50 YEARS,
3. B.G. BASAVEGOWDA
AGED ABOUT 47 YEARS,
4. B.G. HALLAPPA
AGED ABOUT 41 YEARS,
ALL APPELLANTS S/O. JAVAREGOWDA,
RESIDING AT BETTALADUR VILLAGE,
HAGARE POST, MADIHALLY POST,
BELUR TALUK - 573 216. ... APPELLANTS
(BY SRI SREEKANTHA K.S., ADVOCATE)
Digitally signed AND:
by SHYAMALA
Location: HIGH 1. SIDDESHA
COURT OF S/O. SIDDEGOWDA,
KARNATAKA AGED ABOUT 38 YEARS,
2. DHARMANAYAKA
AGED ABOUT 54 YEARS,
BOTH RESPONDENTS ARE
R/AT BETTALADUR VILLAGE,
MADIHALLY POST,
BELUR TALUK - 573 216. ... RESPONDENTS
(BY SRI A.S. MAHESHA, ADVOCATE FOR R-2;
R-1 IS SERVED & UNREPRESENTED)
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RSA No. 481 of 2016
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 05.11.2015 PASSED IN
R.A.NO.115/2010 ON THE FILE OF 5TH ADDL. DISTRICT AND
SESSIONS JUDGE, HASSAN, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 06.07.2010
PASSED IN O.S.NO.86/2008 ON THE FILE OF CIVIL JUDGE (SR.DN.),
JMFC, BELUR.
THIS APPEAL COMING ON FOR DISMISSAL, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Against the concurrent finding of facts recorded by
the Courts below, the plaintiffs are before this Court in the
regular second appeal.
2. Parties herein are referred to as per their rank
before the trial Court for the sake of convenience.
3. Suit for specific performance of contract and
permanent injunction. The plaintiffs have stated as under:
(i) That the suit property belongs to one K.S.
Veeregowda and he mortgaged the suit property in favour
of the plaintiffs' father Javaregowda under the
unregistered mortgage deed dated 10.08.1970 for
Rs.300/- and handed over the possession to his father and
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the plaintiffs' father was in possession and enjoyment of
the suit property, after his death, the plaintiffs are in
possession and enjoyment of the same. The further claim
of the plaintiffs is that the said K.S.Veeregowda alienated
the suit property in favour of the mother of defendant
No.1 under the registered sale deed dated 01.05.1972,
but possession had not been handed over to the mother of
defendant No.1 and the plaintiffs continued to be in
possession of the suit property. Gangamma, mother of
defendant No.1 died 20 years ago and defendant No.1 is
the sole legal heir of deceased Gangamma. It is further
averred that defendant No.1 had instituted the suit in
O.S.No.155/2002 against the plaintiffs for permanent
injunction over the suit property with an intention to take
possession of the suit property and the suit was decreed
and aggrieved plaintiffs preferred appeal before the first
appellate Court, Hassan, in R.A.No.31/2005 which came to
be allowed and the matter was remitted back to the trial
Court for fresh disposal.
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(ii) It is averred that defendant No.1 was
interfering with the plaintiffs' peaceful possession and
enjoyment of the suit property and the plaintiffs had filed
O.S.No.111/2004 for declaration and permanent injunction
and during the pendency of the suit, defendant No.1
borrowed loan from Rural Bank, Hagare, and his wife also
borrowed loan from Sthree Sahaya Sangha, hence,
defendant No.1 decided to alienate the suit property in
favour of plaintiff No.3 for sale consideration of
Rs.1,30,000/- for discharging the said loan. Plaintiff No.3
had paid Rs.1,00,000/- as part sale consideration in favour
of defendant No.1 and defendant No.1 has agreed to
execute the registered sale deed by receiving the
remaining sale consideration amount of Rs.30,000/- and
executed an agreement of sale on 30.11.2006.
(iii) That defendant No.2, knowing about the
agreement between defendant No.1 and plaintiff No.3,
purchased the suit property under the registered sale deed
dated 03.01.2007 and defendant No.2, on the strength of
the registered sale deed got changed the katha of the suit
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property and the plaintiff filed an application in
O.S.No.111/2004 and sought to restrain defendant No.1
from alienating the suit property during the pendency of
the said suit. The plaintiffs withdrew the said suit after
alienation of the suit property to defendant No.2 and filed
a suit for specific performance of agreement based on the
agreement of sale dated 30.11.2006.
4. On notice, the defendants appeared before the
Court and only defendant No.2 filed written statement
5. Defendant No.2 contended that he is a bona
fide purchaser for a valuable consideration under a
registered sale deed from defendant No.1-the lawful owner
and he is in possession and enjoyment of the suit
property. The mortgage by K.S.Veeregowda, as
contended by the plaintiffs, is denied contending that the
alleged mortgage deed is unregistered and created for the
purpose of proving that they are in possession of the suit
property. Further, contended that the alleged agreement
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of sale dated 30.11.2006 is also created to gain
unlawfully.
6. The trial Court, based on the pleadings framed
the following issues:
"ISSUES
1) Whether the Plaintiffs prove that the 1st
defendant has executed sale agreement in
favour of 3rd plaintiff by agreeing to sell the
suit schedule property for Rs.1,30,000-00 and
received part consideration amount of
Rs.1,00,000-00 on 30.11.2006?
2) Whether the plaintiffs prove that they are
ready and willing to perform their part of
obligation?
3) Whether the Plaintiffs prove their possession
and enjoyment of the suit schedule property
as on the date of suit??
4) Whether the Plaintiffs prove the intervention
of the defendants over the suit schedule
property?
5) Whether the plaintiffs are entitled for the relief
as claimed in the suit?"
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7. In order to substantiate their claim, plaintiff
No.3 examined himself as PW.1 and three witnesses as
PWs.2 to 4 and marked documents at Exs.P-1 to P-19. On
the other hand, defendant No.2 examined himself as DW.1
and marked documents at Exs.D-1 to D-26.
8. The trial Court, on the basis of pleadings, oral
and documentary evidence had arrived at a conclusion
that the plaintiffs have failed to prove that defendant No.1
has executed an agreement of sale in favour of plaintiff
No.3 by agreeing to sell the suit property for a valuable
consideration of Rs.1,30,000/- and has received
Rs.1,00,000/- towards the part performance of agreement
dated 30.11.2006. The plaintiffs have failed to prove that
they are ready and willing to perform their part of the
agreement of sale and they are in possession of the suit
property as on the date of the suit. By the judgment and
decree, the trial Court dismissed the suit of the plaintiffs
with cost.
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9. Aggrieved, the plaintiffs preferred appeal before
the first appellate Court in RA.No.115/2010, the first
appellate Court, while re-appreciating and reconsidering
the entire oral and documentary evidence, framed the
following points for consideration:
(1) Whether the plaintiffs have proved that
defendant No.1 has executed an agreement to
sell in favour of plaintiff No.3 on 30.11.2006
agreeing to sell the suit schedule property and
the 1st defendant received the part
consideration of Rs.1,00,000/-?
(2) Whether the plaintiffs have proved that they
were ever-ready and willing to perform their
part of the obligation?
(3) Whether the plaintiffs have proved their
possession over the suit property and the
interference by defendants?
(4) Whether the judgment and decree of the trial
court requires interference by the court?
10. The first appellate Court, while reconsidering
the entire oral and documentary evidence, concurred with
the judgment and decree of the trial Court. Aggrieved, the
plaintiffs are before this Court in the second appeal.
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11. Heard Sri Sreekantha K.S., learned counsel for
the appellants and Sri A.S. Mahesha, learned counsel for
respondent No.2 and perused the material on record
including the judgment and decree of the trial Court.
12. It is the contention of the plaintiff that he is in
possession of the suit property under the unregistered
mortgage deed dated 10.08.1970 executed in the name of
plaintiffs' father. The other contention of the plaintiffs is
that, the plaintiffs have instituted a suit against defendant
No.1 in O.S.No.111/2004 for declaration and injunction
during the pendency of the suit, as defendant No.1 was in
need of money, agreed to sell the suit property by
executing the agreement of sale dated 30.11.2006 in
favour of plaintiff No.3 for a valuable consideration of
Rs.1,30,000/-.
13. The plaintiffs contended that the plaintiffs are in
possession of the suit property pursuant to the mortgage
deed at Ex.P-7 and during the pendnecy of the suit in
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O.S.No.111/2004, defendant No.1 agreed to sell the suit
property under the agreement to sell at Ex.P-3. Defendant
No.1 has sold the suit property in favour of defendant No.2
on 03.01.2007, defendant No.2 contended that the
agreement to sell at Ex.P-3 is concocted only to defeat the
right of defendant No.2. The plaintiffs relied upon the two
witnesses, who were said to be the witnesses to Ex.P-3,
PWs.2 and 3, other than stating that there was an
agreement entered by the defendant No.1 in favour of
plaintiff No.3, the witnesses are unable to state as to the
financial crisis of defendant No.1 at the time of executing
Ex.P.3 and for them to sell the suit property. Other than
the self serving statement, nothing is forthcoming for
execution of Ex.P-3. The trial Court by framing issue No.1
and casting the burden on the plaintiff to prove the sale
agreement in favour of plaintiff No.3 by considering the
evidence of PWs.2 and 3, corroborating with the
documentary evidence at Ex.P.3 arrived at a conclusion
that the plaintiff has failed to prove Ex.P.3 and the
readiness and willingness on part of the plaintiff to seek
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for specific performance. The first appellate Court while
re-appreciating the entire oral and documentary evidence
and while answering point No.1 held that the plaintiffs
have not come forward to show their readiness and
willingness to perform their part of obligation.
14. The second aspect of the mortgage as
contended by the plaintiffs to state that, they are in
possession. EX.P-7 is an unregistered mortgage deed and
bereft of Ex.P-7, there are no documents forthcoming to
establish or substantiate their case that they are in
possession of the suit property. The vendor-
K.S.Veeregowda has alienated the suit property in favour
of Gangamma - mother of defendant No.1 under the
registered sale deed dated 01.05.1972 and the suit
instituted by defendant No.1 in O.S.No.155/2002 has been
decreed holding that defendant No.1 is in possession of
the suit property.
15. The manner in which the Courts below have
assessed the entire oral and documentary evidence, this
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Court is of the view that no substantial question of law to
be dealt with under Section 100 CPC and this Court pass
the following:
ORDER
(i) Regular second appeal is hereby dismissed.
(ii) The judgment and decree of the Courts below stand
confirmed.
Sd/-
(K.S. HEMALEKHA)
JUDGE
S*
