Karnataka High Court
Sadashiv S/O Basappa Hanagoji vs Bolasingh S/O Arjunsingh Rajaput on 7 February, 2024
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RFA No. 100118 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100118 OF 2017 (SP)
BETWEEN:
SADASHIV S/O. BASAPPA HANAGOJI,
AGE:61 YEARS, OCC:AGRICULTURE
R/O: MUDHOL, TQ:MUDHOL
DIST: BAGALKOTE
REPRESENTED BY HIS GPA HOLDER
SRI. KALMESH S/O. SADASHIV HANAGOJI
AGE:39 YEARS, OCC:AGRICULTURE
R/O: MUDHOL TQ:MUDHOL,
DIST:BAGALKOTE-587313.
...APPELLANT
(BY SRI. ARUN NEELOPANT, ADVOCATE)
Digitally signed
AND:
by
SHIVAKUMAR
HIREMATH
Date:
1. BOLASINGH S/O. ARJUNSINGH RAJAPUT
2024.02.21
11:31:51 +0530
AGE:46 YEARS, OCC:AGRICULTURE,
R/O: M.G.ROAD, WARD NO.1,
MUDHOL, TQ:MUDHOL,
DIST:BAGALKOTE-587313.
2. SRIKANT S/O. ARJUNSING RAJAPUT
AGE:43 YEARS, OCC:AGRICULTURE,
R/O: M.G.ROAD, WARD NO.1
MUDHOL, TQ:MUDHOL,
DIST:BAGALKOTE-587313.
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RFA No. 100118 of 2017
3. SMT. MANDAKINI W/O. ARJUNSING RAJAPUT
AGE:61 YEARS,
OCC:AGRICULTURE
R/O: M.G.ROAD, WARD NO.1
MUDHOL, TQ:MUDHOL,
DIST:BAGALKOTE-587313.
4. SLAO / LAND ACQUISITION OFFICER,
JAMAKHANDI,
DIST:BAGALKOTE-587301.
5. DEPUTY COMMISSIONER,
BAGALKOTE,
DIST:BAGALKOTE-587101.
...RESPONDENTS
(BY SRI. ANAND ASTEKAR, ADVOCATE FOR R1 TO R3;
SRI. ASHOK T. KATTIMANI, AGA FOR R4 AND R5)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, PAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 22-02-2017
PASSED IN O.S. NO.42/2011 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC MUDHOL AND DECREE THE
SUIT IN O.S. NO. 42/2011 WITH COSTS THROUGHOUT IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100118 of 2017
JUDGMENT
This appeal is filed by the appellant, challenging the
Judgment and decree dated 22/02/2017 in
O.S.No.42/2011 by the Principal Senior Civil Judge and
JMFC Court, Mudhol.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
appellant is the plaintiff and the respondents are the
defendants.
3. The plaintiffs filed a suit for specific
performance of contract in respect of the suit schedule
properties. It is the case of the plaintiff that, the defendant
Nos.1 and 2 are the owners of the suit schedule
properties. The plaintiff offered to purchase the suit
schedule properties for a sale consideration of
Rs.24,30,000/- and the defendants accepted the same on
03.07.2010. The defendants received a sum of
Rs.2,00,000/- as an advance money from the plaintiff and
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executed an agreement of sale on 03.07.2010 and it was
agreed that the possession of the suit property would be
delivered at the time of the registration of the sale deed. It
was also agreed that, the plaintiffs should pay balance
consideration of Rs.22,30,000/- within six months from
the date of execution of an agreement of sale. It is
contended that, the plaintiff was/is ready and willing to
perform his part of contract, he requested the defendants
to receive balance consideration amount and to execute
the registered sale deed. But the defendants on one or the
other pretext, went on postponing to execute the
registered sale deed by receiving balance sale
consideration amount. In the meantime, an extent of 23
guntas of land out of the suit schedule properties was
proposed to be acquired by the defendant Nos.3 and 4 for
construction of the State Highway. Defendant No.3 issued
preliminary notification under sub-Section 1 of Section 4 of
the Land Acquisition Act, as per direction of defendant
No.4. The said amount was also to be received by the
plaintiff. Hence, the plaintiff issued a legal notice dated
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03.05.2011 calling the defendants to receive the balance
sale consideration amount and to execute the sale deed.
But the defendants prolonged the matter on one or the
other ground and refused to perform their part of contract.
Hence, the plaintiff has filed the suit for specific
performance of contract.
4. In response to the suit summons, the defendant
Nos.1 and 2 filed their written statement, but the
defendant Nos.3 and 4 have not filed written statement.
The defendant Nos.1 and 2 admitted that, they and their
sons are the exclusive owners of the suit properties and
with regard to the alleged agreement said to has taken
place between the plaintiff and defendants was denied. It
is contended that, the suit schedule properties are the
joint family properties of the defendants' families and the
family of the defendants includes two major sons and two
married sons and they are in joint possession and
enjoyment of the suit schedule properties. The defendant
Nos.1 and 2 alone are not exclusive owners of the suit
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schedule properties. They have no right to execute an
agreement of sale in favour of the plaintiff and hence,
prayed to dismiss the suit of the plaintiff.
5. The trial Court on the basis of the pleadings of
the parties framed the following issues:
(i) Whether the plaintiff proves that, defendant
No.1 and 2 agreed to sell the suit properties to
the plaintiff and executed an agreement of sale
on 03.07.2010 by accepting earnest money of
Rs.2,00,000/- as contended in the plaint?
(ii) Whether plaintiff further proves that, he is
ready and willing to perform his part of contract
all along?
(iii) Whether the plaintiff is entitled for the
alternative relief as sought in the plaint?
(iv) Whether plaintiff is entitled for the relief of
injunction as against defendant No.3 and 4 as
sought?
(v) Whether the suit of the plaintiff is time barred?
(vi) Whether the plaintiff is entitled for the relief of
specific performance of contract as prayed?
(vii) What order or decree?
6. The plaintiff in support of his case examined his
power of attorney holder as P.W.1 and examined four
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witnesses as P.W.2 to P.W.5 and got marked 20
documents as Ex.P.1 to Ex.P.20. In rebuttal, the defendant
No.2 examined himself as D.W.1 and got marked three
documents i.e. Ex.D.1 to Ex.D.3.
7. The trial Court on the assessment of the oral
and documentary evidence, answered issue Nos.1 to 3 in
the affirmative and issue Nos.4 to 6 in the negative and
issue No.7 as per the final order. The suit of the plaintiff
came to be decreed with costs. It is ordered and decreed
that, the defendant Nos.1 and 2 are directed to refund the
advance money of Rs.2,00,000/- obtained from the
plaintiff with interest at the rate of 12% per annum from
the date of receipt i.e. 03.07.2010 to till repayment of
entire due amount. The plaintiff aggrieved by the
Judgment and decree of the trial Court filed this appeal.
8. Heard Sri. Arun Neelopant, learned counsel for
the appellant, Sri. Anand Astekar, learned counsel for
respondent Nos.1 to 3, Sri. Ashok T. Kattimani, learned
AGA for respondent Nos.4 and 5 and perused the records.
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9. Learned counsel for the plaintiff submits that,
the trial Court has answered issue Nos.1 to 3 in the
affirmative, but the trial Court could have granted relief of
specific performance of contract. He submits that, the trial
Court has not properly exercised the judicial discretion
vested under Section 20 of the Specific Relief Act. She also
submits that, the trial Court has declined to grant relief of
specific performance of contract, solely on the ground that
the defendants are in possession of the suit schedule
properties. If the relief of specific performance is granted,
more hardship would cause to the defendants. Hence, he
submits that the plaintiff has filed an application for
production of additional evidence which discloses that the
defendant's son has got landed property and in order to
substantiate their claim, the plaintiff has produced
photocopy of the registered sale deed which discloses that
the son of the plaintiff had purchased adjoining land of the
suit schedule property for Rs.14,79,000/- and further she
submits that the trial Court has committed an error in
passing the impugned Judgment.
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10. Learned counsel for the plaintiff submits that,
the trial Court has declined to grant the relief of specific
performance only on the ground of hardship. He further
submits that, the defendant has neither pleaded nor
deposed in the evidence of D.W.1 regarding hardship. The
trial Court without there being pleading has recorded a
finding on hardship at paragraph No.31 of the impugned
Judgment. He submits that, the finding recorded at
paragraph No.31 of the Judgment is without pleading.
Hence, the trial Court has committed an error in
dismissing the suit for the relief of specific performance on
the ground of hardship. Hence, on these grounds he prays
to allow the appeal.
11. Per contra, learned counsel for the defendants
submits that, the defendants have not executed an
agreement of sale and further contended that Ex.P.1 does
not bear the signature of defendant. He also submits that,
the trial Court has committed an error in recording the
finding on issue No.2 in favour of the plaintiff that the
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plaintiff was ready and willing to perform his part of
contract. He submits that, the Judgment and decree
passed by the trial Court is just and proper and does not
call for interference. Hence, on this ground, he prays to
dismiss the appeal.
12. Perused the records and considered the
submissions of the learned counsel for the parties. The
point that would arise for our consideration are:
(i) Whether the plaintiff proves that, the trial
Court has committed an error in dismissing
the suit for the relief of specific performance
of contract when the trial Court has answered
issue Nos.1 and 2 in favour of the plaintiffs?
(ii) Whether the plaintiff proves that, the trial
Court was justified in recording the finding on
the point of hardship in the absence of plea?
(iii) Whether the plaintiff has made out a ground to
allow the application for production of
additional evidence?
(iv) What order or decree?
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13. Point Nos.(i) and (ii) are interlinked with each
other, hence, they are taken together for common
discussion in order to avoid repetition of facts.
14. In order to prove the case, the plaintiff himself
examined as PW-1 and he reiterated the plaint averments
in his examination-in-chief and further in order to prove
the execution of the document, has produced documents
marked as, Ex.P-1- is agreement of sale dated 03.07.2010
executed by defendant Nos.1 and 2 in favour of the
plaintiff; Exs.P-2 is the RTC extract of R.S.
No.189/1+2/A/2, Ex.P-3 is the RTC extract of R.S
No.190/2B+K, Ex.P-4 is the RTC extract of R.S.
No.190/2B, Ex.P-5 is the RTC extract of R.S. No.190/2K,
Ex.P-6 is the legal notice dated 03.05.2011 got issued by
the plaintiff to the defendants calling upon the defendant
to receive the balance consideration amount and execute a
registered sale deed in favour of the plaintiff, Exs.P-7 and
8 are the postal acknowledgments which disclose that the
plaintiff got issued a legal notice as per Ex.P-6 through
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RPAD, Exs.P-9 and 10 are the postal acknowledgements
which disclose that the defendants have received the legal
notice as per Ex.P-6, Ex.P-11 is the Preliminary
Notification issued under sub-section(1) of Section 4 of
the Land Acquisition Act on 17.02.2011. Ex.P-12 is the
GPA of Sadashiv Basappa Hanagoji, Ex.P-13 is the
mutation extract, ExP-14 is the RTC of R.S.
No.189/1+2A/1, Exs.P.15 to P.18 are the statement of
accounts, which disclose that the son of the plaintiff was
possessing sufficient funds for purchasing the said land
and to show that the plaintiff has got financial capacity to
purchase the said land, Ex.P-19 is the Form No.24 in
respect of house No.189/1+2+2A of Junjarakoppa village,
Ex.P-20 is the RTC extract of R.S. No.189/1+2A+1. In the
cross examination, the counsel for the defendants has
suggested that defendant Nos.1 and 2 have taken loan
but they never agreed to execute the registered sale deed
and they never agreed to sell the suit schedule properties.
The said suggestion was denied by PW-1. The plaintiff has
also stated regarding payment of consideration amount
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and receipt executed by defendant Nos.1 and 2 and in
order to prove the execution of the agreement of sale by
defendant Nos.1 and 2 in favour of the plaintiff, the
plaintiff examined attesting witness to Ex.P-1 i.e. PW-2
namely Sadashiv. He has deposed with regard to the
transaction took place between the plaintiff and the
defendants and he has identified his signature on Ex.P-1
marked as Ex.P-1(c). He has also deposed that the
plaintiff had paid the consideration amount in the presence
of PW.2 and the bond writer.
15. Except denying that PW.2 was not present at
the time of alleged execution of agreement, nothing has
been elicited from the mouth of this witness and further,
plaintiff also examined another attesting witness to Ex.P.1
namely Shreeshail Teli, who has deposed in the same
manner of PW.2 and he also identified his signature as per
Ex.P.1(d). From the perusal of the evidence of PW.3, it
clearly discloses that PW.3 was present at the time of
execution of the document i.e., Ex.P.1 and he had affixed
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his signature on Ex.P.1 and marked as Ex.P.1(d). Further,
also examined one Chandrashekar S/o. Bhimappa Kulali as
PW.5, he has identified his signature over Ex.P.1 which is
marked as Ex.P.1(f). PW.5 is a scribe who drafted the
Ex.P.1. From perusal of the evidence of PW.1 to PW.5 and
Ex.P.1 it clearly discloses that the defendant Nos.1 and 2
were agreed to sell the suit schedule properties in favour
of the plaintiff and received the part consideration amount
from the plaintiff and executed an agreement of sale
marked as Ex.P.1. Further, the plaintiff in order to
establish that he was/is ready and willing to perform his
part of contract, he got issued a legal notice on
03.05.2011 as per Ex.P.6 and the said notice was served
on the defendants but, the defendants did not reply the
legal notice dated 03.05.2011. Immediately, after the
expiry of period mentioned in the legal notice when the
defendants have failed to execute a registered sale deed,
the plaintiff filed a suit for specific performance of contract
on 28.05.2011. From the perusal of the records i.e.,
Ex.P.6, the plaintiff has proved that he was/is ready and
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willing to perform his part of contract. The trial Court has
answered issue Nos.1 and 2 in the affirmative holding that
the plaintiff has proved that the defendant Nos.1 and 2
have executed Ex.P.1 and received the part consideration
amount and also the plaintiff was/is ready and willing to
perform his part of contract. The defendants have not
challenged the findings on issue Nos.1 and 2. The said
finding has attained finality.
16. Trial Court has dismissed the suit of the plaintiff
for relief of specific performance of contract only on the
ground that if the relief of specific performance of contract
is granted in favour of the plaintiff, the defendants will be
put to hardship. We have perused the written statement
filed by the defendants and also the evidence of DW.1 and
the defendants have not raised a plea in the written
statement in regard to the hardship and further DW.1 has
not deposed regarding the hardship. The trial Court has
committed an error in declining to grant the relief of
specific performance only on the ground of hardship. As
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we have already observed above, the defendants have
neither pleaded, nor proved that in case, if the relief of
specific performance is granted, the defendants would be
put to hardship. The findings recorded by the trial Court at
para No.31 of the impugned Judgment is without the
pleadings of the defendants. Hence, the trial Court has
committed an error in dismissing the suit for relief of
specific performance of contract, when the trial Court has
answered issue Nos.1 and 2 in favour of the plaintiff, the
trial Court could have granted a relief of specific
performance of contract. Hence, the judgment and decree
passed by the trial Court is arbitrary and erroneous.
Hence, we answer Point Nos.1 and 2 in the affirmative.
17. Point No.(iii):The plaintiff has filed an
application for production of additional evidence. The
learned counsel for the plaintiff has produced a copy of a
registered sale deed which discloses that the plaintiff's son
had purchased the property in the same vicinity in the
year 2012-2013. Though, the defendants have taken a
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contention that the market value of the suit schedule
properties was more than what was agreed in the
agreement of sale and in order to falsify the defence of the
defendants, the plaintiff has produced the additional
document. We have perused the Accounts of the GPA
holder of the plaintiff and the said sale deed was executed
during the pendency of the suit. Though, the said
document was in the custody of the plaintiff, the plaintiff
has not produced the said document before the trial Court.
Further, the plaintiff has not explained the reason for non-
production of the said document before the trial Court. The
plaintiff has not fulfilled the requirement of Order XLI Rule
27. Further, the object of Order XLI Rule 27 not fill up the
lacuna. Further the suit was disposed of on 22.02.2017
and the appellant has filed this application in the year
2017.
18. The Hon'ble Apex Court in the case of
N.Kamalam (dead) and Another Vs. Ayyasamy and
Another reported in (2001) 7 SCC 503 held that, the
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Courts must always be cautious about allowing
applications seeking to adduce additional evidence,
particularly in the form of oral evidence after a long
interval between the decree and the application and
further held that, Rule 27 of Order XLI of CPC are not
designed to help parties patch up weak points and make
up for omissions earlier made and the jurisdiction of the
appellate Court is restricted to permitting such additional
evidence as would enable it to pronounce judgment.
19. As we have perused the documents produced
by the plaintiff, it does not require for deciding the matter
in dispute and without the said documents, this Court can
decide the matter on the material available. Accordingly,
we do not find any grounds to entertain the application for
production of additional documents. Accordingly, we
answer Point No.3 in the negative. '
20. Point No.(iv): We proceed to pass the following:
ORDER
i) Appeal is allowed-in-part.
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ii) I.A No.2/2017 is rejected.
iii) The judgment and decree passed
by the trial Court is hereby modified.
iv) The plaintiff is directed to deposit
the balance sale consideration amount
within a period of two months from today,
and from the date of deposit of balance
sale consideration, the defendants are
directed to execute a registered sale deed
in favour of the plaintiff within a period of
two months.
v) The learned counsel for the plaintiff
fairly submits that the plaintiff is ready to
pay the additional consideration amount of
Rs.15,00,000/- for which, the defendants
have refused to accept the additional
consideration amount.
vi) The submissions is taken on record.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/KMV/PJ
