Karnataka High Court
Basanna S/O Chanabasappa Biradar vs Roshanbi W/O Mammadhaneef Tambe on 8 January, 2024
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RSA No. 200464 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200464 OF 2022 (SP)
BETWEEN:
BASANNA S/O CHANABASAPPA BIRADAR,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O. MADARI, TQ. SINDAGI,
DIST. VIJAYAPURA- 586 129.
...APPELLANT
(BY SRI. D.P. AMBEKAR, ADVOCATE)
AND:
ROSHANBI W/O MAMMADHANEEF TAMBE,
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O. MADARI, TQ. SINDAGI,
Digitally signed NOW RESIDING AT MALAGHAN-586 129.
by SACHIN
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 42
RULE 1 OF THE CPC, PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE JUDGMENT AND DECREE DATED 19.04.2022
PASSED BY THE ADDL. SR. CIVIL JUDGE & JMFC, SINDAGI AT
SINDAGI, DISMISSING R.A. NO.21/2022 AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 09.04.2021, PASSED BY
THE ADDL. CIVIL JUDGE, SINDAGI AT SINDAGI, PARTLY
DECREEING O.S.NO.183/2015 AND FURTHER DECREE THE
SAID O.S.NO.183/2015 ON THE FILE OF THE ADDL. CIVIL
JUDGE & JMFC AT SINDAGI IN FULL WITH COSTS
THROUGHOUT.
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RSA No. 200464 of 2022
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the plaintiff/appellant,
challenging the judgment and decree dated 19.04.2022 in
R.A. No.21/2022 on the file of Addl. Senior Civil Judge and
JMFC, Sindagi, confirming the judgment and decree dated
09.04.2021 in O.S. No.183/2015 on the file of Addl. Civil
Judge at Sindagi, decreeing the suit of the plaintiff in part,
rejecting the relief of specific performance.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, defendant is
the owner in possession of the land bearing Sy.No.74/1B
of Madari village, Sindagi, measuring to an extent of 5
acres 21 guntas. It is stated by the plaintiff that, the
plaintiff and defendant have entered into an agreement of
sale dated 13.04.2011 and in furtherance of the same,
plaintiff has paid Rs.3,90,000/- as advance amount as
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against the total sale consideration of Rs.4,00,000/-. It is
stated by the plaintiff that, the plaintiff has issued legal
notice dated 16.04.2015, calling upon the defendant to
execute the registered sale deed. Hence, the plaintiff has
filed O.S. No.183/2015 before the Trial Court, seeking
relief of specific performance of contract.
4. After service of notice, the defendant entered
appearance and filed written statement, denying the
agreement of sale dated 13.04.2011 and it is the specific
case of the defendant that, she has borrowed
Rs.1,81,000/- from the plaintiff as hand loan and
thereafter, she has executed a nominal agreement in
respect of the loan availed by her. Thereafter, the
defendant has discharged the said loan on 13.04.2011 and
the cancellation agreement was made thereunder. Hence,
the defendant has took up a contention that, the
agreement of sale dated 13.04.2011 is a sham document
and accordingly, sought for dismissal of the suit.
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5. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
6. In order to substantiate their case, plaintiff has
examined 4 witnesses as PW.1 to PW.4 and got marked 5
documents as Exs.P1 to P5. The defendant has examined
herself as DW.1 and got marked 2 documents as Exs.D1
and D2.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 09.04.2021,
dismissed the suit of the plaintiff for specific performance,
however, decreed the suit insofar as directing the
defendant to pay the advance amount of Rs.3,90,000/-
paid by the plaintiff to the defendant. Feeling aggrieved by
the same, the plaintiff has preferred R.A. No.21/2022
before the First Appellate Court and the appeal was
contested by the defendant.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
19.04.2022, dismissed the appeal and as such confirmed
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the judgment and decree passed by the Trial Court.
Feeling aggrieved by the same, the plaintiff has preferred
this Regular Second Appeal.
9. I have heard Sri D.P. Ambekar, learned counsel
appearing for the appellant.
10. Sri D.P. Ambekar, learned counsel appearing for
the appellant contended that, both the Courts below have
not properly assessed the agreement of sale dated
13.04.2011 and he further contended that, even if there is
a delay in filing the suit, the same would not adversely
affect the rights of the parties, as the major portion of the
amount has been paid to the defendant by the plaintiff and
therefore, he sought for interference of this Court.
11. Having heard the learned counsel appearing for
the appellant, it is the case of the plaintiff that he has
entered into an agreement of sale with the defendant on
13.04.2011 and in furtherance of the same, plaintiff has
paid Rs.3,90,000/- as advance amount and the total
consideration is Rs.4,00,000/- to sell the subject land.
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The said aspect has been resisted by the defendant,
saying that the said document is not an agreement of sale
and she had availed loan of Rs.1,81,000/- from the
plaintiff and thereafter, she has discharged the said loan
and as such, executed the deed of cancellation produced
at Anneure-D2 dated 13.04.2011. It is pertinent to
mention here that even if Ex.P1 - agreement of sale is
registered, the plaintiff has issued legal notice on
16.04.2015 as per Ex.P2. Though the learned counsel
submitted that the major portion of the sale consideration
is paid, nothing is produced before the Courts below to
substantiate why the plaintiff has slept for more than four
years after execution of the agreement produced at Ex.P1.
It is the duty of the agreement holder to compel the land
owner - defendant herein to execute the registered sale
deed and in this regard, no explanation is made by the
plaintiff neither in the plaint, nor in the evidence. In that
view of the matter, following the declaration of law made
by Hon'ble Apex Court in the case of C.S. VENKATESH VS.
A.S.C. MURTHY (DEAD) BY LEGAL REPRESENTATIVES
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AND OTHERS reported in (2020) 3 SCC 280, wherein it is
stated that it is the duty of the plaintiff to show that he
was always ready and willing to complete the entire
transaction, which is a continuous process and condition
precedent to grant relief of specific performance and
applying the principle of law made by the Hon'ble Apex
Court in the above case, to the case on hand, I am of the
view that both the Courts below after appreciating the
material on record have rightly rejected the claim made by
the plaintiff, seeking relief of specific performance.
Accordingly, the plaintiff has not made out a case for
interference in the concurrent findings recorded by the
Courts below and also for framing substantial question of
law required under Section 100 of CPC.
In the result, the appeal fails and is accordingly is
dismissed.
Sd/-
JUDGE
LG
