Karnataka High Court
Smt. Maheshwari vs Basalingappa S/O Basateppa Humberi on 2 July, 2024
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RSA No. 100362 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100362 OF 2017 (SP-)
BETWEEN:
SMT. MAHESHWARI W/O LAXMAN GOLYALKAR
AGE: ABOUT 44 YEARS
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O ARAVATAGI,
TALUK & DIST: DHARWAD-580007.
...APPELLANT
(BY SRI RAMESH V. ITAGI AND
SRI PRAVEEN G. KULKARNI, ADVOCATES)
AND:
1. BASALINGAPPA S/O BASATEPPA HUMBERI
AGED ABOUT 70 YEARS,
OCC: AGRICULTURE
R/O NARENDRA,
TALUK & DIST: DHARWAD-580005.
Digitally signed
by SAROJA 2. MALLAPPA S/O RANGAPPA GANIGER
HANGARAKI
Location: HIGH AGE: MAJOR, OCC: AGRICULTURE,
COURT OF R/O KUMBARKOPPA,
KARNATAKA
DHARWAD TALUK & DIST. DHARWAD-580006.
BENCH
DHARWAD
3. SHIVANAND S/O RANGAPPA GANIGER
AGE: MAJOR, OCC: AGRICULTURE,
R/O KUMBARKOPPA,
TALUK & DIST. DHARWAD-580006.
4. ADARSHAPPA S/O RANGAPPA GANIGER,
AGE: MAJOR, OCC: AGRICULTURE,
R/O KUMBARKOPPA,
TALUK & DIST. DHARWAD-580006.
...RESPONDENTS
(BY SRI S.K.MALLIGAWAD AND
SRI S.B.MALLIGAWAD, ADVOCATES FOR R1 TO R4)
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RSA No. 100362 of 2017
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD, IN
R.A.NO.152/2016 DATED 25.10.2016 WITH COSTS CONFIRMING THE
JUDGMENT AND DECREE PASSED BY THE I ADDITIONAL CIVIL
JUDGE (SR.DN.) AND CJM, DHARWAD IN O.S.NO.175/2007 DATED
31.03.2016 AND DECREE THE SUIT O.S.NO.175/2007 BY ALLOWING
THIS APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100
of Code of Civil Procedure, 19081 by the plaintiff
challenging the judgment and decree dated 25.10.2016
passed in RA No.152/2016 by the Court of IV Additional
District and Sessions Judge, Dharwad2 and the judgment
and decree dated 31.03.2016 passed in OS No.175/2007
by the Court of the I Additional Senior Civil Judge and
CJM, Dharwad3, whereunder, the suit for specific
performance has been partly decreed by the Trial Court
wherein refund of earnest money of ₹1,00,000/- has been
ordered together with interest at the rate of 12 % per
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
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annum which has been affirmed by the First Appellate
Court.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that the suit
property i.e., an extent of 5 acres 24 guntas of agricultural
land in Block No.16/PA of Kumbarkoppa village, Dharwad
Taluk was owned by the defendant No.1 who executed a
special power of attorney to one Hasan Ali Khan Sardesai
of Dasanakoppa, who was managing the suit property.
That the defendant No.1 being in need of money, the
power of attorney holder of the defendant No.1 was
looking for prospective purchasers and accordingly, the
plaintiff entered into an agreement of sale dated
25.02.2003 with the power of attorney holder of defendant
No.1 to sell the suit property for a total sale consideration
of ₹2,25,786/-. That the power of attorney holder of
defendant No.1 received an earnest money of ₹1,00,000/-
on the date of the agreement.
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4. It is the further case of the plaintiff that out of
the remaining sale consideration, a further sum of
₹25,786/- was paid and the balance amount of
₹1,00,000/- was to be paid at the time of the registration
of the sale deed. That after the death of the power of
attorney holder of defendant No.1, the plaintiff approached
the defendant No.1 to execute the sale deed. However,
the defendant No.1 was postponing the same. That the
plaintiff was ready and willing to perform her part of
contract. That without the knowledge and consent of the
plaintiff, defendant No.1 has sold the suit property to the
defendant Nos.2 to 4 vide registered Sale Deed dated
15.09.2006. That the plaintiff got issued a legal notice
calling upon the defendant No.1 to execute the sale deed
by receiving the balance sale consideration. That despite
service of notice, the defendant No.1 did not reply to the
said legal notice. Hence, the plaintiff filed the suit.
5. The defendants entered appearance through
their Advocate. The defendant No.1 has filed his written
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statement and defendant Nos.2 to 4 have filed their
common written statement.
6. The defendant No.1 filed his written statement
denying the case of the plaintiff regarding execution of
power of attorney and further denied that the power of
attorney holder was in possession of the suit property. The
defendant No.1 has also denied the execution of the
agreement as well as the receipt of the earnest money.
The defendant No.1 has admitted that he being the owner
of the suit property, and that he sold the same in favour of
defendant Nos.2 to 4 vide registered Sale Deed.
7. The defendant Nos.2 to 4 in their written
statement have contended that they are the bonafide
purchaser for value from the defendant No.1 vide a
registered Sale Deed dated 15.09.2006 for a total sale
consideration of ₹3,50,000/-. It is further contended that
the suit is barred by time and that they had no knowledge
of the prior agreement. Hence, the defendants sought for
dismissal of the suit.
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8. The Trial Court consequent to the pleadings of
the parties, framed the following issues:
"1. Whether the plaintiff proves that the defendant
No.1 through his PA holder entered into an
agreement of sale for consideration of
Rs.2,25,786/- and received Rs.1,00,000/- and
21,786/- on 6/4/2003 as earnest/advance
amount as contended and he was put in
possession of suit property as on 25/2/2003?
2. Whether plaintiff proves that she is always ready
and willing to perform her contract?
3. Whether he proves that after the death of PA
holder defendant has sold the property to
defendant No.2 to 4 and the said deed are null
and void and not binding on plaintiff?
4. Whether the plaintiff is entitled for specific
performance of contract?
5. Whether in the alternative petitioner is entitled for
Rs.1,25,786/- with interest at 24%?
6. Whether he proves the interference by the
defendants?
7. Whether he is entitled for permanent injunction as
prayed for?
8. What order or decree?"
9. The plaintiff examined herself as PW.1 and five
witnesses as PW.2 to PW.6. Ex.P.1 to Ex.P.12 have been
marked in evidence. The defendant No.2 was examined as
DW.1 and defendant No.1 was examined as DW.4. Two
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witnesses have been examined as DW.2 and DW.3.
Ex.D.1 has been marked in evidence. The Trial Court vide
judgment and decree dated 31.03.2016, partly decreed
the suit and passed the following order:
"The suit of the plaintiff as against the
Defendant No.1 is decreed in part with costs.
The Suit of the Plaintiff as against the Defendants
No.2 to 4 is dismissed.
The Plaintiff is entitled for refund of
earnest money of Rs.1,00,000/- from the
Defendant No.1 along with interest at the rate of
12% per annum from the date of the Suit
Agreement of Sale till the date of realization of the
decreetal amount.
The Defendant No.1 shall pay to the Plaintiff
an amount of Rs.1,00,000/- (being the earnest
money) along with interest at the rate of 12% per
annum from the date of the Suit Agreement of Sale
till the date of realization of the decreetal amount.
The Plaintiff is not entitled for the reliefs of
Specific Performance of Contract, Possession and
Perpetual Injunction prayed for."
10. Being aggrieved, the plaintiff preferred RA
No.152/2016. The defendants entered appearance before
the First Appellate Court and contested the same. The First
Appellate Court framed the following points for
consideration:
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"1. Whether the plaintiff/appellant is entitled for
the relief of specific performance of contract
as sought?
2. Whether the judgment and decree of the trial
court needs interference?
3. What order?"
11. The First Appellate Court vide judgment and
decree dated 25.10.2016 dismissed the appeal filed by the
plaintiff and confirmed the judgment and decree passed by
the Trial Court. Being aggrieved, the present second
appeal is filed.
12. Learned counsel for the appellant vehemently
contends that the finding of the Trial Court that the
plaintiff is not ready and willing to perform her part of the
contract is erroneous, in view of the fact that the plaintiff
has averred that she was ready and willing to complete
the sale transaction in terms of the agreement. It is
further contended that despite the notice having been
issued, the defendants have not replied to the said notice.
That the findings recorded by the Trial Court, which are
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affirmed by the First Appellate Court are erroneous and
liable to be interfered with by this Court.
13. Per contra, learned counsel for the respondent/
defendant Nos.2 to 4 justifies the judgment and decree
passed by the Trial Court and First Appellate Court and
submits that the defendant Nos.2 to 4 being the bonafiede
purchasers for value, the Trial Court is justified in ordering
for refund.
14. The submissions of both the learned counsels
have been considered and the material on record have
been perused.
15. It is forthcoming that the Trial Court has held
that the plaintiff has proved the execution of the
agreement of sale dated 25.02.2003 (Ex.P.2). It is further
held that the plaintiff has paid an earnest money of
₹1,00,000/-. The Trial Court, noticing the contention of
the plaintiff that she has paid a further sum of ₹25,786/-
to the defendant No.1, has recorded a finding that the said
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amount is not payment made as advance sale
consideration. Thereafter, considering the contention of
the defendants that the suit is barred by limitation, the
Trial Court held that there is no time stipulated for
performance of the contract, and having regard to Article
54 of the Limitation Act, 1953, which describes the
limitation of three years to file the suit and the said period
of three years was to commence from the date when the
performance was refused, it has noticed that the suit has
been filed on 12.04.2007 after the plaintiff got issued a
legal notice to defendant No.1 and the same not having
been responded, the suit was filed within the period of
limitation.
16. With regard to the contention of defendant
Nos.2 to 4, that they are the bonafiede purchasers for
valuable consideration, the Trial Court has noticed that in
the cross-examination of DW.1, there is not even a
suggestion made by the plaintiff that he was aware of the
agreement of sale. After an adequate appreciation of the
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oral and documentary evidence available on record, the
Trial Court has recorded a finding that the defendant
Nos.2 to 4 are the bonafiede purchasers of the suit
properties for valuable consideration.
17. With regard to the contention regarding the
readiness and willingness, it has been noticed by the Trial
Court that the agreement of sale was executed on
25.10.2003 and the earnest money of ₹1,00,000/- was
paid. It has been further held that, although the plaintiff
has averred that she was ready and willing to perform her
part of contract, the plaintiff despite being aware of the
death of the power of attorney holder of defendant No.1
on 27.06.2004, did not take any steps to call upon
defendant No.1 to execute the sale deed for more than 2
½ years. It is further noticed that the defendant No.1 sold
the suit property to defendant Nos.2 to 4 vide registered
sale deed dated 15.09.2006. Thereafter, after issuance of
notice, the plaintiff has filed a suit after lapse a of 6 to 7
months. Hence, the Trial Court has recorded a finding that
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there is total inaction on the part of the plaintiff for 2 ½
years and the delay which is attributed to the plaintiff, it
would be inequitable to grant the relief of specific
performance.
18. The First Appellate Court, considering the
appeal filed by the plaintiff and upon a re-appreciation of
the oral and documentary evidence on record, has noticed
that the relief of specific performance being a discretionary
power, the discretion exercised by the Trial Court was just
and proper and the same has been exercised judiciously.
Hence, the said findings were not interfered with by the
First Appellate Court.
19. It is clear and forthcoming from the
aforementioned that the agreement was executed on
25.06.2003. The power of attorney holder of the
defendant died on 27.06.2004. The defendant No.1 sold
the suit property in favour of defendant Nos.2 to 4 vide
registered Sale Deed dated 15.09.2006. The plaintiff has
failed to demonstrate what steps he took to call upon the
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defendant No.1 to complete the sale transaction between
the period 27.06.2004 to 15.09.2006. Further, consequent
to the Sale Deed dated 15.09.2006, the plaintiff got issued
a legal notice on 23.02.2007 (Ex.P.7) and thereafter filed
the suit on 12.04.2007.
20. It is further relevant to note that although no
time is stipulated under the agreement for completion of
the sale transaction, the plaintiff has failed to demonstrate
as to what steps he took to call upon the defendant No.1
or his power of attorney holder to complete the sale
transaction between 25.03.2003 to 15.09.2006.
21. Keeping in mind the aforementioned factual
situation and having regard to the fact that the plaintiff
has not produced any material to demonstrate his
readiness and willingness, as noticed above, the Trial
Court has rightly recorded a finding that it would be
inequitable to grant the relief of specific performance.
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22. The said aspect of the matter has been
adequately re-appreciated by the First Appellate Court,
which has refused to interfere with the discretion exercised
by the Trial Court.
23. The appellants have failed in demonstrating
that the said findings recorded by the Trial Court as
affirmed by the First Appellate Court are contrary to any
specific oral or documentary evidence on record. Hence,
no substantial question of law arises for consideration in
the present appeal. In view of the aforementioned, the
above appeal is dismissed as being devoid of merit at the
stage of admission itself.
24. In view of the dismissal of the above appeal, IA
No.2/2017 for stay and 3/2017 for temporary injunction
also stand dismissed.
Sd/-
JUDGE
PJ
CT:GSM
