Karnataka High Court
Smt Lingarajamma vs Smt R S Shobha on 27 February, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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RSA No. 1436 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
REGULAR SECOND APPEAL NO.1436 OF 2017 (SP)
BETWEEN:
1. SMT.LINGARAJAMMA
W/O.SRI N.SRINIVASA
AGED ABOUT 46 YEARS
R/AT SRI VENKATESHWARA NILAYA
S.J.ROAD, JANNAPURA
BHADRAVATHI - 577 301
2. SRI N.SRINIVAS
S/O.LATE NINGAPPA
AGED ABOUT 55 YEARS
R/AT SRI VENKATESHWARA NILAYA
S.J.ROAD, JANNAPURA
BHADRAVATHI - 577 301
...APPELLANTS
(BY SMT.MANJULA D. FOR
SRI L.SRINIVASA BABU, ADVOCATES)
AND:
Digitally SMT.R.S.SHOBHA
signed by B W/O.C.P.NARENDRA
LAVANYA AGED ABOUT 48 YEARS
Location: R/AT NO.10/132
HIGH
COURT OF PAPER TOWN
KARNATAKA BHADRAVATHI - 577 301
...RESPONDENT
(BY SRI LOKANATHA R., ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 27.03.2017 PASSED IN R.A.NO.34/2014
BY IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
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RSA No. 1436 of 2017
SHIVAMOGGA SITTING AT BHADRAVATHI AND THE JUDGMENT
AND DECREE DATED 05.06.2014 PASSED IN O.S.NO.14/2012
BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
BHADRAVATHI.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the defendants
challenging the judgment and decree dated 27.03.2017
passed in R.A.No.34/2014 by IV Additional District and
Sessions Judge, Shivamogga, sitting at Bhadravathi, which
affirmed the judgment and decree dated 05.06.2014
passed in O.S.No.14/2012 by the Principal Senior Civil
Judge and JMFC, Bhadravathi, whereby the trial Court
decreed the suit of the plaintiff and directed the
defendants to execute the registered sale deed in favour of
the plaintiff in terms of the sale agreement dated
16.09.2010 by receiving the balance consideration of
Rs.50,000/- within three months from the date of the
order.
2. Parties shall be referred to as per their status
before the trial Court.
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3. Brief facts of the case are as under:
The suit came to be filed by the plaintiff for the relief
of specific performance of contract of a registered
agreement of sale dated 16.09.2010 against the
defendants. It is the case of the plaintiff that defendant
No.1 was the owner of the suit schedule property and she
had purchased the same vide registered sale deed dated
03.05.2006, but the same was kept under abeyance by
the District Registrar for under valuation of the property
during the sale deed of the vendor of the defendants.
Defendant No.2 is none other than the husband of
defendant No.1. The plaintiff entered into an agreement
of sale with the defendants dated 16.09.2010, wherein
defendant No.1 had agreed to sell the suit schedule
property to the plaintiff for a valuable sale consideration of
Rs.7,05,000/- and received an advance amount of
Rs.6,55,000/- which is acknowledged in the registered
sale agreement and 18 months time was taken by the
defendants to execute the registered sale deed after
clearance of the encumbrances. It is the case of the
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plaintiff that she was always ready and willing to pay the
remaining sale consideration. But, defendant No.2 was
involved in several civil and criminal litigations. In view of
the fact that despite several requests made by the plaintiff
to the defendants to execute the sale deed, they delayed
the same for one or the other reason and did not come
forward to execute the sale deed in respect of the suit
schedule property, hence, left with no other option, the
plaintiff got issued a legal notice to the defendants vide
Ex.P13, which was duly served on the defendants.
However, despite which, the defendants failed to comply
with terms and conditions of the agreement, so also, the
request made by the plaintiff in the legal notice. Hence,
the plaintiff filed a suit seeking to enforce specific
performance of contract of the registered agreement of
sale dated 16.09.2010.
3.1 The defendants, on appearance, filed written
statement denying the averments made by the plaintiff
and took up the plea that the suit is not maintainable and
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the defendants have not entered into any agreement of
sale, but executed a loan agreement and the property
documents were given towards security purpose and that
the market value of the suit schedule property as on that
date was not less than 40 to 45 Lakhs. Hence, agreeing to
sell the suit schedule property for Rs.7,05,000/- is not
acceptable and is misleading, concocted and fabricated.
On these grounds, sought for dismissal of the suit.
3.2 Based on the pleadings of both the parties,
learned trial Judge framed the following issues for
consideration:
"1. Whether plaintiff proves that defendants
executed agreement of sale dated:
16.9.2010 agreeing to sell the suit property
for a sum of Rs.7,05,000/-?
2. Whether the plaintiff proves that on 16.9.2010
he paid advance amount of Rs.6,55,000/- to
defendants towards sale consideration?
3. Whether defendants prove that 2nd defendant
borrowed a sum of Rs.2,00,000/- from
plaintiff and agreement of sale dated:
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16.9.2010 was made as a security for
repayment of loan amount?
4. Whether the plaintiff proves that he ever
ready and willing to perform his part of the
contract?
5. Whether the plaintiff is entitled for the relief of
specific performance?
6. What decree or Order?"
3.3 On the basis of pleadings and issues, the plaintiff
examined herself as PW.1 and two witnesses as PWs.2 and
3 and got marked documents as Exs.P1 to P16, whereas
defendants examined a witness as DW.1 and got marked a
document as Ex.D1.
3.4 After hearing learned counsel for plaintiff as well
as learned counsel for defendants, on the basis of the
pleadings, material evidence, both oral and documentary,
the trial Court being satisfied with the materials placed on
record by the plaintiff, answered issue Nos.1, 2, 4 and 5 in
the affirmative and issue No.3 in the negative. The
defendants pleaded that defendant No.2 borrowed a sum
of Rs.2,00,000/- from the plaintiff and the agreement of
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sale was made as security for repayment of the said loan
amount. Therefore, the trial Court decreed the suit with
costs and directed the defendants to execute the
registered sale deed in favour of the plaintiff in terms of
sale agreement dated 16.09.2010 by receiving the balance
consideration of Rs.50,000/- within three months from the
date of the order.
3.5 Being aggrieved by the judgment and decree
passed by the trial Court, the defendants preferred an
appeal before the first appellate Court, wherein the
defendants took up a similar plea by contending that
defendant No.2 was a business man. Since he was unable
concentrate in agricultural and other activities, he
requested the document writer one, Govinda to arrange
certain amount as loan. The said Govinda introduces
defendant No.2 to the plaintiff and the plaintiff informed
that unless security is given to him, he will not pay any
loan. Accordingly, agreement of sale was executed.
Though it is styled as 'agreement of sale', it was executed
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as a security document. It was also contended by the
defendants before the first Appellate Court that the market
value of the suit schedule property was not less than 40 to
45 Lakhs. Even as on the date of alleged agreement of
sale, the suit schedule property was valued more than 30
to 35 Lakhs. Hence, the defendants venturing into selling
the suit schedule property for Rs.7,05,000/- is out of the
question and the same cannot be believed. The plaintiff
has misused confidence and trust of the defendants by
registering the security document as agreement of sale to
knock-off the property.
3.6 The first Appellate Court, after hearing learned
counsel for plaintiff as well as learned counsel for
defendants, formulated the following points for
consideration:
"1. Whether appellants prove that trial court has
not properly exercised its discretion for
granting relief of Specific Performance of
Contract based on Ex.P1 in favour of
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respondent, as contemplated under Sec.20 of
the Specific Relief Act.
2. Whether the impugned judgment and decree
passed by the trial court is against the
material on record and needs intervention by
this court?
3. What Order?"
3.7 The first Appellate Court, on re-appreciation
and re-analysation of the entire materials on record, both
oral and documentary, came to the conclusion that there
was absolutely no dispute with regard to the defendants
being the owner of the suit schedule property, initial
execution and registration of agreement of sale dated
16.09.2010 in favour of the plaintiff and advance amount
received in a sum of Rs.6,55,000/- by the defendants out
of the alleged sale consideration amount of Rs.7,05,000/-.
Therefore, it concurred with the finding arrived at by the
trial Court rejecting the contention of the appellants-
defendants with regard to Ex.P1-registered sale
agreement issued for security purpose being a fictitious
document and dismissed the appeal preferred by the
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appellants-defendants by answering points for
consideration against them, there by confirming the
judgment and decree passed by the trial Court in
O.S.No.14/2012.
3.8 Being aggrieved by the concurrent finding of the
trial Court as well as the first Appellate Court, the
appellants-defendants are before this Court in this appeal
raising substantial questions of law. This Court, vide order
dated 19.12.2019, formulated the following substantial
question of law to be considered in this appeal:
"Whether the finding by the Courts below
that the appellants have executed sale
agreement dated 16.09.2010 intending to
transfer the subject property and the
respondent-plaintiff has established ready and
willingness is based on the evidence on
record?"
4. Learned counsel for defendants has vehemently
contended that the plaintiff was unable to establish and
prove Ex.P1-agreement of sale and that she was ready
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and willing to perform remaining part of contractual
obligation of payment of Rs.50,000/-. She has further
contended that the entire agreement of sale is a sham
document, which is created by the plaintiff to knock off the
property of the defendants, which was valued at Rs.30 to
40 Lakhs as on the said date, whereas the sale agreement
came to be registered for a total sale consideration of
Rs.7,05,000/-. This itself goes to show that it was a sham
document and the document prepared was only for the
purpose of security for repayment of loan by the
defendants.
4.1 It is her further contention that the plaintiff has
failed to prove or establish that the defendants were the
absolute owners as on the date of execution of the sale
agreement and therefore, having not produced the sale
deed of the vendor of the defendants, the plaintiff has
failed to prove that there was title to the defendants to sell
the suit schedule property to the plaintiff.
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4.2 It is further contention of learned counsel for
defendants that since the market value of the suit
schedule property as on the date of execution of the sale
agreement itself was more than sale consideration amount
as shown in the agreement of sale, the question of
defendants agreeing to sell the suit schedule property to
the plaintiff for a lesser value cannot be believed. On these
grounds, she contends that the substantial question of law
framed by this Court requires to be answered in her
favour.
5. Per contra, learned counsel for plaintiff contends
that the trial Court as well as the first Appellate Court
have considered the case of the plaintiff in detail
appreciating the evidence on record including the
documents exhibited at Exs.P1 to P16 and found favour
with the plaintiff for having substantiated the issues and
rightly negatived the plea and the contention taken by the
defendants with regard to Ex.P1 being a sham document
and that it was executed only for the purpose of security
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for repayment of loan, which has been reconsidered, re-
appreciated and re-analysed by the first Appellate Court
and affirmed the judgment and decree of the trial Court,
which does not call for interference at the hands of this
Court.
5.1 It is also vehemently contended by learned
counsel for plaintiff that the substantial question of law so
framed by this Court also would have to be answered in
the negative as records by itself establish that even
according to the defendants, the agreement of sale dated
16.09.2010 is a registered document, which will have to
be presumed to be true unless otherwise proved on the
contrary. The question of readiness and willingness does
not arise for the reason that the total sale consideration of
suit schedule property is Rs.7,05,000/- and as on the date
of registered agreement of sale dated 16.09.2010, the
plaintiff had paid Rs.6,55,000/- and the balance amount
remained to be paid was only Rs.50,000/- at the time of
registration of the sale deed, which was a nominal amount
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and the plaintiff was ready with the said amount. Despite
several requests and legal notice, the defendants did not
come forward to execute the sale deed. Therefore, the suit
came to be instituted by the plaintiff. On these grounds,
he seeks to dismiss the appeal.
6. I have heard learned counsel for appellants and
learned counsel for respondent and perused the impugned
judgment and decree.
7. Now adverting to the merits of the matter and to
find out as to whether the substantial question of law
framed by this Court has been established or made-out in
favour of the appellants, it is necessary to understand
certain admitted facts. It is not in dispute that the
agreement of sale came to be executed and registered on
16.09.2010. Though the appellants have contended that it
is styled as agreement of sale, it was intended as a loan
agreement for security purpose, whereas in the written
statement filed by the appellants, the relationship of the
appellants as husband and wife, the ownership of property
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of appellant No.1 and the impounding of the sale deed of
the vendor of appellant No.1 due to deficit stamp duty and
khatha standing in the name of appellant No.1, are all
admitted. The trial Court and the first Appellate Court
have come to the conclusion that Ex.P1 executed by the
appellants has been proved by the respondent. The issues
framed by the trial Court have been substantiated by the
respondent. It is borne from Ex.P1 that out of sale
consideration of Rs.7,05,000/-, an advance amount of
Rs.6,55,000/- was already paid and the same was
acknowledged in the registered agreement of sale. The
remaining balance amount that was to be paid was only
Rs.50,000/-.
8. The appellants took up a plea in the written
statement that the amount of Rs.2,00,000/- was borrowed
by the respondent as loan and as security purpose, an
agreement was executed and it is styled as agreement of
sale dated 16.09.2010 for repayment of the said loan.
Though it was an issue framed by the tribunal, the same
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was not substantiated by the appellants before the trial
Court and it came to be negatived after a detailed trial.
9. The first Appellate Court, on re-appreciation and
reconsideration of entire materials on record and on
hearing the submissions of learned counsels at length did
not find favour with the appellants and therefore, it
negatived the contentions of the appellants and confirmed
the judgment and decree passed by the trial Court in
favour of the respondent.
10. Under the circumstances, the present appeal
which is filed to consider the substantial questions of law
has to be seen by this Court to decide as to whether the
question of law framed by this Court as stated earlier is to
be answered in the affirmative or negative. This Court
sitting in the second appeal is required to consider the
substantial question of law under Section 100 of the CPC,
which is limited in scope to decide not only mere question
of law but substantial question of law, hence, it will have
to be very circumspect and careful in not venturing into
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analysing or re-appreciating the question of fact which has
already been decided by the first appellate Court, which is
the last Court for appreciation of question of facts and
analysation of the evidence and unless there is a grave
error committed by the first appellate Court in not
appreciating any evidentiary matter which are placed by
the parties before both the Courts and having not
considered the same which are admitted by the parties
available on record, this Court would not interfere in the
judgment passed by the Court below on the question of
fact. When two Courts have already considered the
question of fact and the question of law to a large extent
in detail, even if this Court finds third opinion on the
opinions already expressed concurrently by both Courts, it
is a general Rule that this Court should refrain from
imposing its third opinion merely for the sake of
interference when there is no cogent material placed on
record as regards substantial question of law. Therefore,
the question of readiness and willingness whether proved
or not has already been cogently established before the
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trial Court and the first Appellate Court. The next issue is
the question of law to be considered by this Court. The
trial Court and the first Appellate Court have dealt in detail
considering the materials on record, both oral and
documentary with regard to execution of Ex.P1.
11. The respondent-plaintiff, by issuing a legal
notice, has made all possible efforts to request the
appellants-defendants to come forward to register the sale
deed by receiving balance sale consideration amount, but
all her efforts have gone in vain. Hence, as a last resort,
left with no other alternative, she filed a suit for
enforcement of agreement of sale. On appreciation of the
materials placed on record, the trial Court and the first
Appellate Court decreed the suit in favour of the
respondent and negatived the contentions of the
appellants with regard to Ex.P1 being a sham document.
12. Under the circumstances, the appellants have
neither made out a good case or given cogent reason or
placed any material to consider the substantial question of
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law framed by this Court in their favour. Having given my
thoughtful consideration to the entire materials placed on
record and the submissions of learned counsel for
appellants as well as the respondent, I do not find any
good ground to consider the question of law in favour of
the appellants by disturbing the concurrent finding of fact
arrived at by the trial Court and the first Appellate Court.
Accordingly, this appeal does not deserve any meritorious
consideration of the substantial question of law, the
respondent has proved the agreement of sale and so also,
her readiness and willingness to perform the remaining
part of the contract. Accordingly, I proceed to pass the
following:
ORDER
The appeal preferred by the appellants is dismissed.
Pursuant to the judgment and decree rendered by
the trial Court, the execution petition came to be filed by
the respondent in Ex.Petition No.68/2017 and by virtue of
the execution petition, the sale deed came to be executed
in favour of the respondent dated 15.11.2018 and the
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property has been conveyed in favour of the respondent.
The respondent has deposited the balance sale
consideration amount of Rs.50,000/- before the Executing
Court vide CCD.No.53/2018-19 dated 04.07.2018. Since
the present appeal was filed, the said amount has not
been withdrawn by the appellants. Therefore, the
appellants are permitted to withdraw the said amount. The
said amount shall be released in favour of the appellants
upon proper identification.
SD/-
JUDGE
LB
