Karnataka High Court
Smt Fathima vs Sri S Jayavikram on 11 January, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.1727 OF 2019 (SP)
C/W
REGULAR SECOND APPEAL NO.2030/2018 (SP)
IN RSA NO.1727/2019
BETWEEN:
SMT.FATHIMA
W/O ABDUL RAHEEM
AGED ABOUT 70 YEARS
R/AT: NAWAZ MANZIL
J.M.ROAD, BUNDER
MANGALURU - 575 001
... APPELLANT
(BY SRI.MUNIYAPPA, ADVOCATE)
AND
1. SRI.S.JAYAVIKRAM
S/O LATE S.CHANDRASHEKAR
AGED IN MAJOR
R/AT: KADRI
MANGALURU - 575 002
2. SRI.B.SHESHAPPA
S/O THYAMPANNA POOJARY
AGED ABOUT 80 YEARS
R/AT: ARKULA, MANGALURU TALUK
MANGALURU - 575 001
2
RSA NO.1727/2019
C/W RSA NO.2030/2018
3. SRI.HAROON RASHEED
S/O A.T.GULAM
AGED IN MAJOR
R/AT: THOTA HOUSE
ULLAL, MANGALURU - 575 022
.....RESPONDENTS
(BY SRI.OJASWI, ADVOCATE FOR
SRI.K.V.DHANANJAY, ADVOCATE FOR R.1;
R.2 AND R.3 ARE SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 14.06.2018 PASSED IN R.A.NO.7/2013 ON THE FILE OF
THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DAKSHINA KANNADA, MANGALURU DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
15.12.2012 PASSED IN O.S.NO.20/2001 ON THE FILE OF THE
III ADDL. SENIOR CIVIL JUDGE, MANGALORE D.K AND ETC.
IN RSA NO.2030/2018
BETWEEN:
SRI.B.SESAPPA
S/O LATE THYAMPA POOJARY
79 YEARS, FARANGIPETE POST
RESIDING AT ARKULA
MANGALURU - 574143
... APPELLANT
(BY SRI.VASANTH KUMAR, ADVOCATE)
AND
1. SRI.S.JAYAVIKRAM
S/O LATE S.CHANDRASHEKAR
77 YEARS
3
RSA NO.1727/2019
C/W RSA NO.2030/2018
RESIDING AT KADRI
MANGALURU - 575 002
2. HAROON RASHEED
S/O A.T.GULAM
56 YEARS
THOTA HOUSE
ULLALA
MANGALURU - 575020
3. SMT.FATHIMA
W/O ABDUL RAHEEM
42 YEARS
NAWAZ MANZIL
J.M.ROAD
BUNDER
MANGALURU - 575001
.....RESPONDENTS
(BY SRI.OJASWI, ADVOCATE FOR
SRI.K.V.DHANANJAY, ADVOCATE FOR C/R.1;
SRI.MUNIYAPPA, ADVOCATE FOR R.3;
NOTICE TO R.2 IS H/S V/O/D 27.09.2023)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 14.06.2018 PASSED IN R.A.NO.7/2013 C/W
R.A.NO.19/2013 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSION JUDGE, MANGALURU DISMISSING
THE APPEALS AND CONFIRMING THE JUDGMENT AND DECREE
DATED 15.12.2012 PASSED IN O.S.NO.20/2001 ON THE FILE
OF THE III ADDL. SENIOR CIVIL JUDGE, MANGALORE D.K AND
ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10.01.2024, COMING ON FOR
4
RSA NO.1727/2019
C/W RSA NO.2030/2018
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
These two captioned second appeals are filed by the
defendant No.1 - vendor and defendant No.3 - Pendente
lite purchaser, who have questioned concurrent judgments
rendered by both the Courts, wherein plaintiff's suit
seeking relief of specific performance based on an
agreement dated 20.04.1997 is decreed by both the
Courts granting relief of specific performance of contract.
2. For the sake of brevity, the parties are referred as
they are ranked before the Trial Court.
3. Brief facts leadings to the case are as under;
Plaintiff has instituted a suit in O.S.No.20/2001 to
enforce the agreement dated 20.04.1997. The plaintiff
claimed that the suit property was granted to 1st
defendant. The plaintiff has specifically pleaded that 1st
defendant filed Form No.7 before the Land Tribunal,
Bengaluru and the Tribunal, on enquiry, has granted
occupancy rights to defendant No.1 vide order dated
17.09.1980. The plaintiff's case is that defendant No.1
after expiry of the non-alienation period offered to sell the
property on account of financial distress and plaintiff
readily agreed to purchase the suit schedule property at
Rs.5,000/- per cent subject to actual measurement as
there was a proposal to acquire portion of the land by the
National Highway. The plaintiff further claimed that on the
date of agreement, he paid an advance amount of
Rs.25,000/- and the 1st defendant - vendor was required
to furnish a copy of Form No.10 issued by the competent
Authority and simultaneously, he was also required to get
the land converted for non-agricultural purpose. The
plaintiff further pleaded that he paid further sum of
Rs.25,000/- on 20.05.1997 and Rs.25,000/- on
28.07.1997 respectively and 1st defendant has
acknowledged subsequent payments by endorsing on suit
agreement vide Ex.P.1.
4. Plaintiff has filed present suit alleging that inspite
of notice issued by plaintiff on 14.01.2000 calling upon the
1st defendant to execute and register the sale deed,
1st defendant has failed to comply his part of contract and
therefore, the present suit is filed. The plaintiff has also
alleged in the plaint that after portion of the land was
acquired by the Authorities, he applied for RTC and found
that 1st defendant has sold suit properties to defendant
Nos.2 and 3. Item No.1 of the plaint schedule is sold to 2nd
defendant under registered sale deed dated 04.10.2005
and Item Nos.2 and 3 are sold to 3rd defendant under
registered sale deed dated 30.09.2005. On these set of
pleadings, the plaintiff sought for enforcement of the
agreement for sale dated 20.04.1997.
5. 1st defendant - vendor on receipt of summons
tendered appearance and filed written statement and
stoutly denied entire averments made in the plaint.
1st defendant on the contrary claimed that suit is barred
by limitation. 1st defendant also claimed that description in
the plaint schedule is wrong and therefore, contended that
no decree can be granted under Order 7 Rule 3 of Civil
Procedure Code. 1st defendant, while countering
allegations made against him, claimed that he had
absolutely no obligation to be discharged except
registering sale deed on receipt of entire sale
consideration. 1st defendant claimed that neither he has
offered or agreed to sell 1.53 acres of land excluding the
road margin, which was proposed to be acquired by the
Authority. 1st defendant also seriously disputed the alleged
subsequent payments made on 20.05.1997 and
28.07.1997. 1st defendant claimed that plaintiff was never
ready and willing to perform his part of contract.
1st defendant has filed additional written statement and
claimed that the Court Fee paid by the plaintiff is not
proper and therefore, suit filed by the plaintiff is liable to
be dismissed on that count also.
6. Defendant Nos.2 and 3, who are pendent lite
purchasers, have filed written statement and stoutly
denied the entire averments made in the plaint.
Defendant Nos.2 and 3 claimed to be bonafide purchasers
for valuable sale consideration without notice and
therefore, sought for dismissal of the suit. 3rd defendant
apart from claiming to be a bonafide purchaser for
valuable sale consideration also claimed that she had
gifted properties to her daughter under registered gift
deed dated 24.08.2006 and therefore, claimed that
plaintiff has no right to question the sale deed or
subsequent documents.
7. Plaintiff and defendants to substantiate their
respective claims have let in oral and documentary
evidence.
8. The Trial Court having examined pleadings and
evidence let in by both parties answered issue Nos.1 to 4
in the Affirmative. The Trial Court has also answered
Additional Issue Nos.1 and 2 framed on 05.10.2009 in the
Affirmative, while Additional Issue No.1 framed on
16.08.2011 is answered in the Negative. While answering
Additional Issue Nos.1 and 2 in the Affirmative, the Trial
Court held that the plaintiff has succeeded in
substantiating that defendant No.1 has sold suit schedule
properties to defendant Nos.2 and 3 during pendency of
the suit and therefore, held that the transaction in favour
of defendant Nos.2 and 3 is subject to the rights of the
plaintiff under suit agreement dated 20.04.1997. While
answering issue Nos.1 and 2 in the Affirmative, the Trial
Court held that the plaintiff has succeeded in not only
substantiating the agreement to sell dated 20.04.1997 but
by leading cogent evidence, plaintiff has succeeded in
proving the subsequent payments made on 20.05.1997
and 28.07.1997.
9. The contention of 1st defendant that plaintiff
under the suit agreement is only entitled to purchase
agricultural land and not a converted land was also
negatived by the Trial Court. The Trial Court while
examining as to whether there is a breach on the part of
defendant No.1 found that 1st defendant has admitted
during trial that he furnished copy of Form No.10 only
after seven months of executing the suit agreement. While
examining suit agreement, the Trial Court has held that
the 1st defendant having admitted his signatures on the
suit agreement, the evidence let in by plaintiff coupled
with admissions elicited in the cross-examination of D.W.1
and D.W.2 clearly substantiates that plaintiff has paid in all
amount of Rs.75,000/- pursuant to the suit agreement
executed by the 1st defendant vide Ex.P.1.
10. Exercising judicial discretion in favour of the
plaintiff, the Trial Court decreed the suit granting
discretionary relief of specific performance of contract and
consequently, 1st defendant was directed to execute the
registered sale deed in respect of suit schedule properties
in favour of plaintiff within three months. The Trial Court
has also issued a direction to defendant Nos.2 and 3 to
join 1st defendant and execute the sale deed, failing which,
liberty was reserved to the plaintiff to get the sale deed
executed through due process of law.
11. Aggrieved by judgment and decree rendered by
the Trial Court, 3rd defendant preferred an appeal in
R.A.No.7/2013, while 1st defendant preferred an appeal in
R.A.No.19/2013. The Appellate Court as a final fact finding
Authority has independently assessed entire evidence on
record. While independently assessing the evidence on
record, the Appellate Court has in fact culled out relevant
clauses of the agreement, which are found at paragraph
No.23. While meticulously examining clauses of the
agreement, Appellate Court was also not inclined to
entertain the contention of the 1st defendant that plaintiff
has unilaterally restricted his claim to 90 cents, while
agreement to sell under Ex.P.1 was for 1.53 acres.
Referring to clause No.7 of the agreement, which is culled
out by the Appellate Court, it was held that as per clause
No.7 of the suit agreement, both parties had agreed that
the sale consideration would be paid on the actual extent
of the land found on measurement after giving up road
margin for National Highway. The Appellate Court also
found that actual extent of the land was to be ascertained
only after getting the land surveyed by 1st defendant.
Therefore, Appellate Court while accepting contention of
the plaintiff that after acquisition by the National Highway,
the portion, which is retained by defendant No.1, is now
sought to be enforced under the suit agreement vide
Ex.P.1.
12. Appellate Court, while examining payment made
by the plaintiff under agreement, was also not inclined to
entertain the defence set up by the 1st defendant in the
written statement. The plea set up by 1st defendant that
the sale transaction is not completed within a period of
180 days was outrightly rejected by the Appellate Court.
Under the agreement, as per clause No.5, the Appellate
Court found that it was for the 1st defendant to get the
land converted, while the cost of conversion was to be
borne by the plaintiff. Referring to these significant
details, the Appellate Court was also of the view that
plaintiff has invested substantial amount and at the
instance of plaintiff's investment, 1st defendant has got the
land converted. Therefore, Appellate Court was also of the
view that plaintiff having proved the agreement and
payment made on the date of agreement and subsequent
dates has successfully substantiated his case.
Consequently, the appeal filed by the defendant No.1 -
vendor and defendant No.3 - pendent lite purchaser was
dismissed by the Appellate Court.
13. These two second appeals are filed by defendant
No.3 and defendant No.1.
14. Heard learned counsel appearing for the
defendant No.1 and learned counsel appearing for
defendant No.3 and learned counsel appearing for the
plaintiff. Perused the concurrent findings recorded by both
the Courts.
15. On meticulous examinations of the findings
recorded by both the Courts, what emerges is that
1st defendant having taken financial assistance from
plaintiff pursuant to execution of the suit agreement vide
Ex.P.1 has got the land converted. The 1st defendant has
not seriously disputed the transaction. The 1st defendant
has selectively questioned subsequent payments made on
20.05.1997 and 28.07.1997. The plaintiff on the date of
the transaction i.e., 20.04.1997 has paid advance amount
of Rs.25,000/- and on two subsequent dates, he has paid
an amount of Rs.25,000/- and there is an endorsement by
the 1st defendant on Ex.P.1 acknowledging the subsequent
payments. Both the Courts referring to evidence on record
have concurrently held that payment of Rs.75,000/- made
by the plaintiff is successfully substantiated by the plaintiff
by leading cogent evidence. Defendant No.1 has resisted
the suit by contending that under the suit agreement, it
was agreed between the parties to sell the agricultural
land and not the converted land. This stand runs contrary
to clause No.5 of the agreement under which 1st defendant
has agreed to get the land converted for non-agricultural
purpose and the cost was agreed to be borne by the
plaintiff - agreement holder. The fact that plaintiff has
paid an amount of Rs.50,000/- in all post the agreement
for sale dated 20.04.1997 clearly establishes that plaintiff
has borne the cost of conversion.
16. The second limb of defence set up by the
1st defendant is that plaintiff was not ready and willing to
perform his part of contract. On reading clause Nos.4, 5
and 7 together, it is clearly evident that the obligations
were obviously on 1st defendant and under the agreement,
the 1st defendant was required to secure Form No.10 and
the same was required to be handed over to plaintiff to
enable the plaintiff to get the sale deed registered. During
trial, plaintiff has succeeded in eliciting in cross-
examination of 1st defendant that Form No.10 was handed
over to plaintiff only after seven months of execution of
the suit agreement. The next clause No.5 would be also
relevant. Under clause No.5, the 1st defendant was
required to get the land converted for non-agricultural
purpose. This was admittedly not secured by
1st defendant within stipulated 180 days period though
plaintiff had paid additional sum of Rs.50,000/- on
subsequent dates.
17. If these significant details are looked into, this
Court is of the view that both the Courts referring to
evidence on record and having taken note of conduct of 1st
defendant, who has meddled with the properties pending
consideration of the suit in favour of defendant Nos.2 and
3, have exercised discretionary power and have granted
relief of specific performance in favour of plaintiff. It is a
trite law that Court can exercise discretion and directs
specific performance unless it should be what is called is
highly unreasonable to do so. In exercising discretion, the
Courts are bound to take note of the circumstances of the
case and conduct of the parties and their respective
interests under the contract. If pursuant to the agreement,
the plaintiff has paid an amount of Rs.75,000/- and this
investment made by the plaintiff has enabled the
1st defendant to get the land converted to be utilized for
non-agricultural purpose, pursuant to the getting the land
converted, 1st defendant cannot sell it to the third parties
to make more money at the cost of the plaintiff.
If pursuant to the agreement the plaintiff has invested
money and discharged his part of contract as indicated in
the clause No.5 of the agreement, this Court is more than
satisfied that both the Courts were justified in granting
discretionary relief of specific performance bearing in mind
that denial of specific performance would inflict more
injury on the plaintiff, who has made substantial
investment and it would give undue advantage to
1st defendant if permitted to sell suit schedule properties
to the third parties to make a wrongful gain.
18. If both the Courts referring to the cogent and
clinching evidence let in by the plaintiff and in absence of
rebuttal evidence have exercised discretion and have
ordered for specific performance and while doing so, both
the Courts have satisfied that circumstances are such that
it is equitable to grant a decree in favour of the plaintiff,
this Court under Section 100 cannot re-assess the entire
evidence on record. Such a recourse is not permissible
under Section 100 of CPC. Both the Courts have taken into
consideration the equities and investment made by the
plaintiff in terms of clause No.5 of the agreement. Both
the Courts have also taken cognizance of the unfair
conduct of the 1st defendant, who has meddled with the
properties pending consideration of the suit and defendant
Nos.2 and 3 are found to be pendete lite purchasers. The
discretion exercised by the Trial Court as well as the
Appellate Court cannot be interfered with. Both learned
counsels appearing for defendant Nos.1 and 3 though tried
to persuade this Court to consider the grounds urged in
the captioned second appeal, however, I would find that
both counsel appearing for defendant Nos.1 and 3 have
failed to make out that the findings and conclusions
recorded by both the Courts are perverse, arbitrary,
capricious, unreasonable and against the judicial
principles. The Trial Court as well as the Appellate Court
have concurrently exercised judicial discretion in granting
specific performance in favour of plaintiff and therefore,
this Court in second appeal is not inclined to interfere with
the concurrent judgments rendered by both the Courts
and the discretion exercised by both the Courts is based
on the legal evidence let in by the plaintiff.
Therefore, no substantial question of law arises for
consideration.
Accordingly, both the appeals are dismissed.
Pending applications, if any, are also dismissed.
Sd/-
JUDGE
NBM
