Karnataka High Court
Savita vs Shankarlinga on 25 July, 2024
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RFA No. 200086 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200086 OF 2023 (SP)
BETWEEN:
SMT. SAVITA
W/O RAVIKUMAR WALLYAPUR,
AGED ABOUT 32 YEARS,
OCC: AGRICULTURE/HOUSEHOLD,
R/O KEMBHAVI,
TALUK: SHORAPUR
DISTRICT: YADGIR- 585 224.
...APPELLANT
(BY SRI. S. S. MAMADAPUR, ADVOCATE)
Digitally signed by
BASALINGAPPA
SHIVARAJ AND:
DHUTTARGAON
Location: HIGH
COURT OF SRI. SHANKARLINGA
KARNATAKA
S/O MAHADEVAPPA NAIKODI,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
R/O YAKTAPUR,
TALUK: SHORAPUR
DISTRICT: YADGIR- 585 224.
...RESPONDENT
(BY SRI. ARUN CHOUDAPURKAR, ADVOCATE)
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RFA No. 200086 of 2023
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 20.04.2023 PASSED BY THE HON'BLE SENIOR CIVIL
JUDGE AND JMFC, SHORAPUR IN O.S. NO.121/2021 AND
DISMISS THE SUIT, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This regular first appeal is filed challenging the judgment
and decree dated 20.04.2023 passed in O.S.No.121/2021 by
the Senior Civil Judge and JMFC, Shorapur.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
appellant is the defendant and respondent is the plaintiff.
3. The plaintiff filed a suit for specific performance of
contract against the defendant. It is the case of the plaintiff
that husband of defendant by name Sri.Ravikumar was the
absolute owner in possession of agricultural land in
Sy.No.581/1 measuring 6 acres 38 guntas out of which 4 acres
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situated at Kembhavi village was offered for sale to the
plaintiff. On negotiation, finally, the husband of defendant
agreed to sell the property in favour of plaintiff for
consideration of Rs.20,00,000/- and received the advance
consideration of Rs.16,90,000/- and executed a registered
agreement of sale in favour of defendant on 23.08.2018 and
agreed to receive the balance consideration of Rs.3,10,000/- at
the time of execution of sale deed. The plaintiff approached the
husband of defendant and requested to receive balance
consideration amount and to execute the registered sale deed
but he postponed by giving one or the other reason. In the
meanwhile, husband of defendant died leaving behind
defendant as his legal heir. The plaintiff approached the
defendant to execute the registered sale deed but she refused
to do the same. The plaintiff having fed up with the attitude of
defendant got issued legal notice on 12.07.2021 calling upon
defendant to receive balance consideration amount and to
execute the registered sale deed. Though notice was duly
served on the defendant inspite of service of notice, defendant
neither replied to the legal notice nor executed registered sale
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deed in favour of the plaintiff. Hence, cause of action arose for
the plaintiff to file a suit for specific performance of contract.
4. The defendant filed written statement denying the
averments made in the plaint. It is denied that husband of
defendant had offered to sell the suit property for consideration
of Rs.20,00,000/- and received the advance amount of
Rs.16,90,000/- and agreed to receive the balance consideration
amount at the time of execution of registered sale deed.
Further, it is contended that defendant had no knowledge of
alleged agreement of sale and she never went to the Sub-
Registrar Office and signed on the document. It is also
contended that plaintiff got created the said agreement of sale.
Hence, on these grounds prays to dismiss the suit. The trial
Court on the basis of pleadings of the parties framed the
following issues:
i. Whether the plaintiff proves that, the
defendant had executed an agreement of
sale on 23.08.2018 in respect of suit
property in favour of him for a total
consideration amount of Rs.20,00,000/- and
by receiving an advance consideration
amount of Rs.16,90,000/-?
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ii. Whether plaintiff proves that, he is ever
ready and willing to perform his part of
contract?
iii. Whether the defendant proves that, the
plaintiff has made false agreement for sale
deed using the mental disorder of her
husband created this document?
iv. Whether the plaintiff is entitled for the relief
as sought in the plaint?
v. What order or decree?
5. The plaintiff in order to substantiate his case
examined himself as P.W.1 and examined one witness as P.W.2
and marked 08 documents as per Exs.P1 to P8. The defendant
herself was examined as DW.1 and got marked 4 documents as
Exs.D1 to D4.
6. The trial Court after recording the evidence, hearing
on both sides and on assessment of the oral and documentary
evidence answered issue Nos.1, 2 and 4 in the affirmative,
issue No.3 in the negative and issue No.5 as per the final order.
It is ordered that suit of the plaintiff was decreed with cost and
directing defendant to execute registered sale deed in favour of
plaintiff by receiving balance consideration of Rs.3,10,000/-
within 30 days and if the defendant fails to do so, liberty was
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reserved to the plaintiff to take registered sale deed by
appointing Court Commissioner under due process of law. The
defendant being aggrieved by the judgment and decree passed
by the trial Court in O.S.No.121/2021 filed this Regular First
Appeal.
7. Heard the learned counsel for the defendant and
also learned counsel for plaintiff.
8. Learned counsel for defendant submits that plaintiff
has got created the alleged agreement of sale and filed a false
suit against the defendant. He submits that agreement of sale
does not bear the signature of husband of defendant and no
advance amount was received by the husband of defendant.
The said aspect was not considered by the Court below and
decreed the suit and he also submits that husband of the
defendant was suffering from mental disorder and the plaintiff
taking disadvantage of mental disorder got created the said
document. He also submits that, the trial Court has not
properly considered the material placed on record and
committed an error in decreeing the suit of the plaintiff for
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specific performance of contract. Hence, on these grounds, he
prays to allow the appeal.
9. Per contra, learned counsel for defendant submits
that, husband of defendant offered to sell the suit land to an
extent of 4 acres for consideration of Rs.20,00,000/- and
accordingly, plaintiff paid a sum of Rs.16,90,000/- as a token
amount and the defendant's husband after receiving the token
amount executed the registered agreement of sale and it was
agreed that balance consideration to be paid at the time of
registration of sale deed. The said agreement of sale was
registered and the presumption in regard to the registration of
the document, he submits that husband of the defendant was a
member of the Municipality, Kembhavi and he was not suffering
from any kind of mental disorder. He further submits that
defendant has not produced any record to establish that her
husband was suffering from mental disorder. Hence, the trial
Court considering the evidence of P.W.2 who is said to be a
attesting witness to Ex.P.1 has rightly passed the impugned
judgment. Hence, he submits that there is no error in the
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impugned judgment. Hence, on these grounds, he prays to
dismiss the appeal.
10. Perused the records, considered the submissions of
learned counsel for the parties. The points that arise for our
consideration are :
1. Whether the plaintiff proves that the
husband of defendant agreed to sell the
suit property for consideration of
Rs.20,00,000/- and executed a registered
an agreement of sale on 23.08.2018?
2. Whether the plaintiff proves that he is/he
was ever ready and willing to perform his
part of contract?
3. Whether the defendant proves that the
judgment and decree passed by the trial
Court is perverse and arbitrary?
4. What order or decree?
11. Point Nos.1 and 2: These two points are
interlinked with each other hence, they are taken up together
for common discussion in order to avoid repetition of facts.
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12. The plaintiff in order to substantiate his case
examined himself as P.W.1 and he has reiterated the plaint
averments in the examination-in-chief. He deposed that
husband of defendant was the absolute owner and in
possession of the land bearing Sy.No.581/1 measuring 06 acres
38 guntas out of which he agreed to sell 04 acres of land in
favour of plaintiff for consideration of Rs.20,00,000/- and
accordingly, plaintiff paid a sum of Rs.16,90,000/- towards
advance amount and husband of defendant executed a
registered agreement of sale in favour of plaintiff on
23.08.2018 and it was agreed that balance consideration to be
paid at the time of execution of registered sale deed. The
plaintiff requested the husband of the defendant to receive the
balance consideration amount and to execute registered sale
deed but the husband of defendant went on postponing to
receive the balance consideration amount and to execute the
registered sale deed. In the meanwhile, he died leaving behind
the defendant as his legal heir. After the demise of her
husband, plaintiff approached the defendant and requested her
to receive balance consideration amount and to execute the
registered sale deed but the defendant has not given heed to
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the request made by the plaintiff. The plaintiff having fed up
with the delaying attitude of the defendant got issued a legal
notice on 12.07.2021. The said notice was duly served with
defendant. But the defendant neither replied to the legal notice
nor came forward to receive balance consideration amount and
execute the registered sale deed. In order to substantiate the
case of the plaintiff, the plaintiff has produced agreement of
sale executed by husband of defendant in favour of plaintiff
marked as Ex.P.1. From the perusal of Ex.P.1, it discloses that
the husband of defendant agreed to sell the suit property for
consideration of Rs.20,00,000/- and the plaintiff paid a sum of
Rs.16,90,000/- as an advance amount. The said agreement of
sale was duly registered and the signature of the husband of
defendant is marked as Ex.P.1(a-d). The defendant has affixed
her signature as an attesting witness to Ex.P.1 and her
signature is marked as Ex.P.1(e). The signature of other
attesting witness marked as Ex.P.1(f). Further the plaintiff in
order to establish that, the plaintiff was/is ready and willing to
perform his part of contract, he got issued a legal notice
marked as Ex.P.2 which discloses that plaintiff was/is ready and
willing to perform his part of contract. Plaintiff has also pleaded
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in the plaint and also proved by leading evidence by producing
Ex.P.2. The plaintiff has complied the ingredients of Section
16(c) of the Specific Relief Act. Further, the plaintiff in order to
establish that the husband of defendant has executed a
registered agreement of sale also examined the attesting
witness as P.W.2 who has deposed in similar lines with P.W.1.
Nothing has been elicited in the course of cross-examination of
P.W.2.
13. In rebuttal, the defendant examined herself as
DW.1. She has reiterated the written statement averments in
the examination-in-chief and denied the execution of
agreement of sale and also signature on Ex.P.1 and deposed
that her husband was suffering from mental disorder and the
plaintiff taking disadvantage of the mental disorder got created
Ex.P.1. Though, defendant in order to substantiate the defence
of the defendant in regard to alleged mental disorder of
husband of defendant, except leading oral evidence, the
defendant has not produced any record to establish that the
husband of defendant was suffering from mental disorder.
Further, in the course of cross-examination, she has clearly
admitted that her husband was elected as member of
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Municipality, Kembhavi in the year 2015 and the transaction
between plaintiff and husband of defendant was of the year
2018. The defendant has failed to establish that her husband
was suffering from mental disorder. Further, defendant has
affixed her signature as an attesting witness to Ex.P.1 and her
signature is marked as Ex.P.1(e). From the perusal of evidence
of DW.1, it shows the conduct of defendant and the defence
taken by the defendant in the written statement is not
bonafide. The defendant has denied the registered agreement
of sale only with an intention to deprive the legitimate right of
the plaintiff. Considering the oral evidence of P.Ws.1 and 2,
evidence of DW.1 and documents produced by the plaintiff
Ex.P.1 and Ex.P.2, the plaintiff has proved that the husband of
defendant agreed to sell the suit property in favour of plaintiff
and accordingly, executed Ex.P.1 in favour of plaintiff. Thus, in
view of the above discussion, we hold that plaintiff has proved
execution of agreement of sale by husband of defendant and
also proved that the plaintiff was/is ever ready and willing to
perform his part of contract. On the contrary, the husband of
defendant committed a breach of contract. Thus, in view of the
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above discussion, we answer point Nos.1 and 2 in the
affirmative.
14. Point No.3: The trial Court after considering the
entire material was justified in passing the impugned judgment.
We do not find any error in the impugned judgment. However,
the agreement of sale is of the year 2018. Though the plaintiff
has paid an amount of Rs.16,90,000/-, considering escalation
of price, we are of the view that if a direction is issued to the
plaintiff to pay additional amount of consideration of a sum of
Rs.10,00,000/-, no injustice would cause to plaintiff. Hence, in
view of the above discussion, we answer point No.3 in the
negative.
15. Point No.4: In view of our answer to point Nos.1
to 3 above, we proceed to pass the following:
ORDER
i. The Regular First Appeal is dismissed.
ii. The judgment and decree dated 20.04.2023 passed
by the Senior Civil Judge and JMFC, Shorapur in
O.S.No.121/2021 is confirmed.
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iii. Plaintiff is directed to deposit additional
consideration amount of Rs.10,00,000/- (Rupees
Ten Lakhs only) in addition to the balance
consideration amount before the trial Court within a
period of two months from today.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
VNR
CT;BN
