Karnataka High Court
Smt B K Manjula vs Sri Chandrappa Setty on 27 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 2249 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2249 OF 2011 (SP)
BETWEEN:
1. SMT. B.K.MANJULA
D/O B.M.KRISHNEGOWDA,
W/O K.C.PRASAD
AGED ABOUT 37 YEARS
R/O.NO.1828,
ADARSHA NILAYA
CAMPING GROUNDS
BANGARPET
KOLAR DISTRICT.
...APPELLANT
[BY SRI V.VINOD REDDY, ADVOCATE]
AND:
1. SRI CHANDRAPPA SETTY
S/O LATE MUNISWAMY SETTY,
Digitally signed
by SHARANYA T AGED ABOUT 40 YEARS,
Location: HIGH R/O. CHAMANAHALLI VILLAGE
COURT OF KAMASAMUDRAM HOBLI
KARNATAKA
BANGARPET TALUK
KOLAR DISTRICT.
2. SRI NARAYANA SETTY
S/O LATE THIMMARAYA SETTY
AGED ABOUT 65 YEARS
R/O BATHALAHALLI VILLAGE
KAMASAMUDRAM HOBLI
BANGALORE TALUK,
KOLAR DISTRICT.
SINCE DEAD BY LRS
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RSA No. 2249 of 2011
2(a) SMT. JAYAMMA
D/O NARAYANA SETTY
W/O R.VENKATARAMA SETTY
AGED ABOUT 56 YEARS
R/AT MUTHAGADHALLI VILLAGE
KAIWARA HOBLI,
CHINTAMANI TALUK
CHIKKABALLAPUR DISTRICT.
2(b) SMT.RANIAMMA
D/O NARAYANA SETTY
W/O R.VENKATARAYA SETTY
AGED ABOUT 54 YEARS
R/AT SRINIVASANAGARA MARIDA VILLAGE
KAMASAMUDHRAM HOBLI
BANGARPET TALUK
KOLAR DISTRICT.
2(c) SMT.PADMA
D/O NARAYANA SETTY
W/O VENKATARATHANAM
AGED ABOUT 50 YEARS
KUPPAM TALUK
CHITTOOR DISTRICT
ANDHRA PRADESH
2(d) SMT.GOWRAMMA
D/O NARAYANA SETTY
W/O BABU
AGED ABOUT 46 YEARS
R/AT DIBBUR VILLAGE
KASABA HOBLI
CHIKKABALLAPUR TALUK AND DISTRICT
(AMENDED VIDE COURT ORDER DATED 11.04.2019)
...RESPONDENTS
[BY SRI. M.B.CHANDRA CHOODA, ADVOCATE FOR C/R1;
SRI VEERANNA G. TIGADI, ADVOCATE FOR R2(b to d);
R2(a) SERVED BUT UNREPRESENTED]
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RSA No. 2249 of 2011
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.6.2011 PASSED IN
R.A.NO.111/2010 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT, KGF, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED2.7.2010
PASSED IN O.S.NO.62/2006 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE JMFC, KGF.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
ORDER
Heard the learned counsel for the appellant and also
the learned counsel appearing for the respondent No.2(b)
to (d). Though the appeal is listed for admission, the
matter is taken up for disposal.
2. The learned counsel appearing for the appellant
would vehemently contend that the First Appellate Court
committed an error in reversing the finding of the Trial
Court and already he had purchased the property vide sale
deed dated 19.10.2005 in terms of Ex.P2. The counsel also
submits that the First Appellate Court has not discussed
with regard to the earlier sale agreement is concerned and
the documents Ex.D1 and Ex.D16 are the documents
which clearly discloses that there was an agreement and in
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pursuance of the said sale agreement, sale deed was
executed and the Trial Court having considered the
material on record comes to the conclusion that there was
a sale agreement but though it is the contention of
defendant No.2 that he entered into an agreement of sale
of the suit schedule property for valuable consideration of
Rs.1,90,000/- with defendant No.1 by receiving an
advance amount of Rs.90,000/- and also the Trial Court
rightly accepted the evidence of the witnesses and comes
to the conclusion that already there was an agreement of
sale and sale consideration is the amount of Rs.1,90,000/-
and an advance of Rs.90,000/- was paid and there no any
privity of contract between the plaintiff and defendant
No.1 as alleged by the plaintiff and the Trial Court also
considering the material available on record with regard to
the defence, which has been taken, though comes toth e
conclusion that there was an agreement but having
considered the material directed to refund Rs.60,000/- to
the plaintiff with interest at the rate of 8% per annum
from the date of suit till realization. However, the First
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Appellate Court committed an error in reversing the
finding of the Trial Court with regard to the specific
performance is concerned and erroneously comes to the
conclusion that the finding of the trial court is perverse,
capricious and arbitrary and it calls for interference. The
counsel would vehemently contend that where there was a
sale agreement dated 01.10.2005 and subsequent sale
deed is dated 19.10.2005 and execution of the document
is not in dispute and he had purchased the property by
paying sale consideration and the same was not taken
note of by the Trial Court.
3. Per contra, the learned counsel appearing for
respondent No.1 vehemently contends that the sale
agreement was executed on 10.10.2005 and time is fixed
for three months and within a span of 9 days a sale deed
was executed with an intention to defeat the sale
agreement entered on 10.10.2005. The counsel also
vehemently contends that even a time of three months
was fixed, notice was given on 25.11.2005 itself and
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always he was ready and willing to perform the part of his
contract and the Trial Court committed an error in passing
an order for refund of earnest money and ought to have
granted the relief of specific performance. The First
Appellate Court having considered the material both the
oral and documentary evidence and comes to the
conclusion that the Trial Court has rightly given the finding
on issue No.1 in the affirmative holding that the defendant
No.1 has entered into an agreement of sale dated
10.10.2005 with the plaintiff by agreeing to sell the suit
schedule property and sale consideration of Rs.1,15,000/-
on receiving the advance amount of Rs.60,000/-, but the
Trial Court finding on issue No.2 is not sustainable and
also committed an error in answering issue No.5 and 6 in
the affirmative and the same is also perverse and illegal.
4. The Trial Court, while answering issue No.2,
committed an error and the same is not sustainable. On
perusal of Ex.P1, the alleged agreement of sale executed
by the defendant No.1 in favour of the plaintiff, it clearly
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reveals that date was fixed for execution of sale deed and
the plaintiff within the prescribed time with the balance
sale consideration of Rs.55,000/- requested the first
defendant to execute the sale deed in his favour, but the
defendant No.1 has given an evasive answer and instead
of selling the property to plaintiff, he had sold the same in
favour of the defendant No.2. The counsel also would
vehemently contend that, in Para Nos.14 and 15 of the
judgment, the First Appellate Court in detail discussed the
same and in Para No.15 of the judgment, made an
observation that Ex.D1 does not reveal about the earlier
agreement of sale alleged to be executed by the defendant
No.1 in favour of father of the defendant No.2. The First
Appellate Court, while reversing the judgment and decree
of the Trial Court has assigned reasons, hence, the First
Appellate Court has not committed any error.
5. Learned counsel appearing for the respondent
No.2(b) to (d) submits that there was an agreement of
sale and sale deed was also executed in favour of the
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appellant herein and submits that he is also sailing with
the appellant.
6. Having heard the learned counsel for the
appellant and learned counsel for the respondent No.2(b)
to (d), it is not in dispute that there are two sale
agreements i.e., one in favour of the respondent No.1
herein i.e., dated 10.10.2005 and another agreement in
favour of the father of the appellant i.e., 01.10.2005 and
sale deed was also executed on 19.10.2005 in favour of
the appellant. Learned counsel appearing for the appellant
would vehemently contend that the First Appellate Court
not discussed with regard to the document of sale
agreement dated 01.10.2005 and sale deed dated
19.10.2005 and the fact that documents of Ex.D1 and
Ex.D16 i.e., sale deed and sale agreement are in favour of
the father of the appellant is not in dispute. The counsel
also would vehemently contend that the First Appellate
Court while granting the relief of specific performance not
discussed the evidence of P.Ws.1 to 3 and P.W.10-
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agreement holder. The witnesses P.Ws.2 and 3 are the
witnesses to the said agreement and committed an error
in not discussing the evidence of these material witnesses.
7. It is not in dispute that while granting the relief
of specific performance, the Court has to take note of the
fact whether there was a sale transaction between the
parties. Admittedly, to prove the sale agreement in
O.S.No.62/2006, the plaintiff examined the witness P.W.2,
who is the one of the witness and in his evidence,
particularly in the cross-examination, when he attested
the document, he categorically admits that there was no
talks between the plaintiff and the defendants prior to the
agreement and only his father-in-law came and requested
him to come and sign the document and hence, at the
instance of his father-in-law, after he came to Bangarpet,
the plaintiff has informed him about the agreement. He
also admits that, his daughter is given to the plaintiff and
plaintiff is his son-in-law. The Trial Court has also taken
note of the said fact and the First Appellate Court failed to
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consider this admission on the part of P.W.2, who is an
interested witness, who is none other than the son-in-law
of P.W.1. Apart from that, he categorically says that there
was no discussion prior to execution of sale agreement,
but he only signed the document. No doubt, he speaks
about the execution of the document and the amount paid
in favour of the defendant No.1, he also speaks that he
was not aware of the survey number, but only says that
Narayanashetty has signed the said document and hence,
he also signed the same.
8. The other witness is P.W.3. In his evidence
also, it is elicited that he did not accompany the plaintiff
and other persons, but only says that Narayanashetty
called him and he came at around 11.30 a.m. and he
cannot say at what time they boarded the bus and also he
did not see any documents in respect of the said property
and sale transaction and says that 5 persons have affixed
the signature and all of them have signed in the very same
pen when Ramakrishna gave the pen. But in the further
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cross-examination, he admits that the signatures are in
different ink and also says that he does not know the
value of the property when suggestion was made that
property is worth about Rs.3,00,000/-.
9. Having considered the evidence of P.Ws.1 to 3,
though the Trial Court comes to the conclusion that there
was an agreement, but with regard to the sale transaction,
there is no positive evidence before the Court and the
evidence of P.W.3 with regard to affixing of signature is
concerned is contrary to the material on record, but there
is an agreement. Learned counsel for the respondents
brought to notice of this Court that in the cross-
examination of D.W.1, he admits his signature in the
agreement and though he admits that the value of the
property is Rs.1,15,000/-, the Court while exercising the
discretion, particularly while granting the relief of specific
performance, has to look into the material available on
record. Even assuming that there was a sale agreement,
the Court has to exercise its discretion judiciously and the
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land to the extent of 5 acres, 17 guntas was agreed to be
sold for Rs.1,15,000/-. It is also important to note that
sale deed was executed within 10 days for Rs.1,90,000/-.
According to the plaintiff, the sale agreement was for
Rs.1,15,000/- and sale deed has been executed within 9
days of the document at Ex.P1 dated 10.10.2005 and sale
deed is dated 19.10.2005 and difference sale
consideration is Rs.75,000/- and all these factors have to
be taken note while granting the relief of specific
performance and the same has not been considered by the
First Appellate Court.
10. No doubt, a discussion was made in the
judgment with regard to the document of Ex.D1, but it
does not contain any recital as to earlier sale agreement,
though it is contended that there was sale agreement
dated 01.10.2005 and in terms of the document at
Ex.D16, the sale agreement is in favour of the father of
the appellant, but sale deed was executed in favour of the
appellant in terms of Ex.P2. I have already pointed out
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that while granting the relief of specific performance,
though sale agreement is proved, other factors have to be
considered. When such material is available on record and
transaction has taken place within a span of 9 days of the
agreement dated 10.10.2005 and consideration paid is
also more i.e., Rs.75,000/- than the agreed amount in the
agreement dated 10.10.2005, the Court has to take note
of the relationship between the plaintiff and P.W.2, who is
none other than the son-in-law, who speaks that the Trial
Court has taken note of all these factors into consideration
and rightly ordered for refund of the amount with interest
at 8% and the First Appellate Court committed an error in
reversing the judgment of the Trial Court granting the
relief of specific performance and failed to consider the
factors to be considered while granting the relief of specific
performance. Hence, it requires interference of this Court
to modify the judgment and decree of the First Appellate
Court.
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11. In view of the discussion made above, I pass
the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree of
the First Appellate Court in
R.A.No.111/2010 dated 27.06.2011 is set
aside and the judgment and decree of the
Trial Court in O.S.No.62/2006 is restored.
Sd/-
JUDGE
SS,ST
