Karnataka High Court
Sri S V Govindaraju S/O Late Venkataraju vs Sri Huchappa S/O Late Kollisiddappa on 6 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:19939
RSA No. 441 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 441 OF 2013 (SP)
BETWEEN:
SRI. S.V. GOVINDARAJU,
S/O LATE VENKATARAJU,
AGE: 64 YEARS,
R/AT FORT, KANAKAPURA TOWN,
RAMANAGARA DISTRICT - 571 511.
...APPELLANT
(BY SRI. K.P. BHUVAN, ADVOCATE)
AND:
1. SRI. HUCHAPPA,
S/O LATE KOLLISIDDAPPA,
AGED ABOUT 63 YEARS,
R/AT KALLAHALLI VILLAGE,
KASABA HOBLI, KANAKAPURA TALUK,
RAMANAGARA DISTRICT - 571 511.
Digitally signed
by 2. SMT. USHA PRASAD,
NARAYANAPPA SINCE DEAD BY HER LR'S,
LAKSHMAMMA
Location: HIGH 2(A). SMT. PREETHI,
COURT OF
KARNATAKA D/O USHA PRASAD,
AGED ABOUT 35 YEARS,
R/AT D.NO. 431, "PREETHI" 1ST CROSS
3RD BLOCK, JAYANAGAR EAST,
BANGALORE - 560 011.
...RESPONDENTS
(BY SRI. G. SRIDHAR, ADVOCATE FOR R2(A);
R1 - SERVED AND UNREPRESENTED)
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NC: 2024:KHC:19939
RSA No. 441 of 2013
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGMENT & DECREE DATED 16.10.2012 PASSED IN
R.A.NO.93/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT, KANAKAPURA, RAMANAGARA DISTRICT, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
23.10.2010 PASSED IN OS.NO.49/1999 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE, RAMANAGARA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant is before this Court seeking for the
following reliefs:
(a) Call for the records in O.S.No.49/1999 on the file of
the Additional Senior Civil Judge, Ramanagara and
also that of the records in R.A.No.93/2010 on the file
of the Fast Track Court, Kanakapura.
(b) Set-aside the portion of the Judgment and Decree dt:
16.10.2012 in R.A.No.93/2010 passed by the Learned
Presiding Officer, Fast Track Court, Kanakapura and
also that of the Judgment and Decree dt: 23.10.2010
in O.S.No.49/1999 passed by the Learned Additional
Senior Civil Judge, Ramanagara.
(c) Pass a Judgment and Decree, directing the
respondent No.1 to execute the registered Sale Deed
in respect of the suit schedule property in favour of
the appellant and also declare that the registered Sale
Deed dt: 30.09.1996 executed by respondent No.1 in
favour of respondent No.2 is not binding upon the
appellant.
2. The appellant was a plaintiff in O.S.No.49/1999 in a suit
filed for specific performance, which came to be partly
allowed on 23.10.2010 dismissing the claim for specific
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performance of the appellant and granted refund of the
earnest money along with 18% interest.
3. On an appeal being filed by the plaintiff, the First
Appellate Court, vide its judgment dated 16.10.2012 in
R.A.No.93/2010 dismissed the appeal and confirmed the
judgment and decree passed by the Trial Court. It is
challenging the same that the appellant is before this
Court.
4. The contention of Sri K.P.Bhuvan, learned counsel for the
appellant/plaintiff, is that the appellant had entered into
an agreement of sale with defendant No.1 on 07.03.1996
for sale of the suit schedule property. Despite repeated
follow up by the appellant for execution of a sale deed,
more particularly by way of legal notice dated 31.07.1996
and 27.12.1996, defendant No.1 did not execute a sale
deed, nor did he reply to the notice. The fact that the
appellant had issued such notices establishes the
readiness and willingness on part of the appellant. This
aspect has not been taken into consideration.
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5. However, the Trial Court considering that respondent
No.1 has sold the property, which was the subject matter
of the agreement of sale deed dated 07.03.1996 on
30.09.1996, came to the conclusion that the appellant
has not established any knowledge on part of the
purchaser, respondent No.2 of the agreement dated
07.03.1996 has denied the relief of specific performance,
which it ought not to have done. His submission is that
the appellant having entered into an agreement to sell on
07.03.1996, the sale consideration having been agreed
upon being for Rs.15,100/-, an advance amount of
RS.5,000/- was paid, which indicates the bonafides on
the part of the appellant and this aspect ought to have
been taken into consideration by the Trial Court and also
the First Appellate Court for grant of relief of specific
performance.
6. The last submission of Sri. K.P.Bhuvan, learned counsel
for the plaintiff, is that defendant No.1 did not lead
evidence by herself, but evidence was submitted through
her power of attorney, who did not have any knowledge
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of the transaction and as such, the evidence led by
defendant No.1 through her power of attorney could not
be accepted by the Court.
7. Sri. G.Shridhar, learned counsel for the legal
representatives of defendant No.2 who is respondent
No.2(a) in the present appeal, submits that respondent
No.2 at the time when she purchased the property on
30.09.1996, was not aware of any agreement entered
into between plaintiff and defendant No.1. Defendant
No.2 is a bonafide purchaser for a value, having made
payment of the market value of the property, and was
put in possession thereof on the 30.09.1996 and has
continued in possession thereafter. As such, defendant
No.2 being a bona fide purchaser, the Trial Court, as also
the First Appellate Court has rightly rejected the claim of
the appellant. Any claim that the plaintiff may have is
against the vendor, defendant No.1 and not against
defendant No.2.
8. Heard learned counsel for the appellant, respondents and
perused papers.
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9. Having gone through the judgments of the Trial Court,
the First Appellate Court as also having heard both the
counsels, the finding of both the Courts is on an issue of
fact and not on issue of law. Inasmuch as it was for the
plaintiff to have established by cogent evidence that the
subsequent purchaser of the property during the
subsistence of an earlier agreement was knowledgeable
about the said agreement and despite being so
knowledgeable, has purchased the property. No evidence
has been placed on record by the plaintiff to establish this
fact.
10. The contention of Sri K.P.Bhuvan, learned counsel for the
appellant that the power of attorney holder was not
aware of the transaction would be immaterial inasmuch
as it was for the plaintiff to have established that
defendant No.2 was knowledgeable about the earlier
transaction between the plaintiff and defendant No.1 on
07.03.1996, defendant No.2 was only required to
establish bonafide purchase by making payment of
valuable consideration, being the market value which has
been so established. As such, the evidence led by the
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power of attorney holder cannot be discarded solely for
the reason that he was not aware of the transaction
between the plaintiff and defendant No.1, which the
obvious contention taken is that defendant No.2 was not
aware of.
11. The plaintiff not having established the above fact of
knowledge on part of defendant No.2 of the agreement of
sale entered into with the plaintiff prior to the purchase,
whether the power of attorney holder of defendant No.2
has knowledge of the agreement of sale or not is
immaterial, so as to upset the title of defendant No.2 in
the property.
12. Furthermore, the agreement of sale is dated 07.03.1996
notice is claimed to have been issued on 31.07.1996 and
27.12.1996. The sale in favour of respondent No.2 has
occurred on the 30.09.1996. The plaintiff has not been
diligent in prosecuting the matter, despite legal notice
having been issued on 27.12.1996, the suit was filed on
the last day on which the limitation would expire, that is,
06.03.1999 and as such, I am of the considered opinion
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that even on this ground the appellant/plaintiff is not
entitled for any directory relief of specific performance,
the relief of refund of the earnest money, along with
interest, is in the interest of justice, which need not be
disturbed. As such, the appeal stand dismissed.
Sd/-
JUDGE
GJM
CT: BHK
