Karnataka High Court
Smt Susheela vs Sri Kumar on 28 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:17836
RSA No. 735 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.735 OF 2022 (SP)
BETWEEN:
SMT. SUSHEELA
W/O RENUKA PRASAD,
AGED ABOUT 56 YEARS,
R/AT NO 1012, 7TH CROSS,
K R PURAM, HASSAN 573201
...APPELLANT
(BY SRI K P BHUVAN, ADVOCATE FOR
SRI K P RAJU, ADVOCATE)
AND:
Digitally signed SRI KUMAR
by DEVIKA M S/O MANJEGOWDA,
Location: HIGH
COURT OF SINCE DEAD BY HIS LRS
KARNATAKA
1. AVINASH,
S/O LATE KUMAR
AGED ABOUT 30 YEARS,
2. ABHISHEK
S/O LATE KUMAR,
AGED ABOUT 28 YEARS,
BOTH ARE R/AT HEGGADIHALLI VILLAGE,
DODDAGENIGERE POST,
-2-
NC: 2024:KHC:17836
RSA No. 735 of 2022
SHANTHIGRAMA HOBLI,
HASSAN TALUK 573220
3. SMT. NAGARATHNA
W/O KUMAR, MAJOR,
R/AT HEGGADIHALLI VILLAGE,
DODDAGENIGERE POST,
SHANTHIGRAMA HOBLI,
HASSAN TALUK 573220
...RESPONDENTS
(BY SRI B N SURESH BABU, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 25.01.2022
PASSED IN RA.No.55/2017 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN
AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the respective parties.
2. The factual matrix of the case of the plaintiff
before the Trial Court that the defendants have acquired
the suit schedule property from the Government by grant
certificate dated 24.05.1995 and the defendants are
NC: 2024:KHC:17836
enjoying the suit schedule property as absolute owners
with possession. Subsequently, during 1997, both the
defendants approached the plaintiff with the publicizing
their intention to sell the suit schedule property for family
needs, to clear the hand loan and to maintain two minor
children. The plaintiff accepted the proposal of the
defendants to purchase the suit schedule property for a
sum of Rs.25,000/-. Accordingly, the defendants have
executed the agreement of sale dated 12.11.1997 and
received the entire sale consideration of Rs.25,000/- from
the plaintiff. As the suit schedule property is a granted
land, there is a time restriction that the suit schedule
property should not be sold for a period of 15 years from
the date of grant. Hence, the defendants have agreed to
execute the registered sale deed in favour of the plaintiff
after completion of restricted period of 15 years that
means after 24.05.2010. After the restricted period of 15
years, the plaintiff approached the defendants to execute
the registered sale deed but the defendants did not come
forward to perform their part of contract. Hence, the
NC: 2024:KHC:17836
plaintiff had issued legal notice and the defendants replied
to the said notice denying entire contentions of the
plaintiff. Hence, the suit is filed for the relief of specific
performance. The plaintiff also claimed the damages at the
rate of 18% per annum. The defendants appeared and
filed the written statement contending that the document
which was executed is only for as a security for the loan
since the plaintiff demanded to mortgage the said property
and there is no any sale transaction.
3. In order to prove the case of the plaintiff, she
herself examined as PW1 and also examined one witness
as PW2 and got marked the documents at Ex.P1 to P10.
On the other hand, defendant No.1 examined himself as
DW1 but no documents are marked on behalf of the
defendants. The Trial Court having considered both oral
and documentary evidence placed on record answered
Issues No.1 to 3 as affirmative in coming to the conclusion
that the plaintiff has proved that the defendants have
executed the agreement of sale on 12.11.1997 receiving
NC: 2024:KHC:17836
entire sale consideration of Rs.25,000/- and she is every
ready and willing to perform her part of contract and
answered Issue No.4 as negative in coming to the
conclusion that defendants have failed to prove that they
availed loan of Rs.25,000/- from the plaintiff and put their
signatures on the blank stamp papers and ordered the
defendants to repay the advance amount of Rs.25,000/-
with interest of 18% per annum from the date of
agreement till filing of the suit and 14% interest from the
date of filing of the suit till the decree and 6% interest
from the date of decree till realization of the decreetal
amount and declined to grant the relief of specific
performance. Being aggrieved by the judgment and decree
of the Trial Court, an appeal was preferred by the plaintiff.
The First Appellate Court having reassessed the material
on record confirmed the judgment and decree of the Trial
Court. Hence, the present second appeal is filed by the
plaintiff before this Court.
NC: 2024:KHC:17836
4. The learned counsel for the appellant would
vehemently contend that both the Courts have committed
an error in looking into the recitals of document at Ex.P1.
Admittedly, the suit schedule property was a granted land
and there was a condition that not to alienate the same for
a period of 15 years from the date of grant. Only after 15
years of grant, defendant No.1 had executed the sale deed
and within a period of three years, notice was issued
calling upon the defendants to execute the sale deed but
the defendants failed to do so. The counsel further
submits that when both the Courts have accepted the case
of the plaintiff with regard to the agreement of sale, ought
to have granted the relief of specific performance but
committed an error in exercising the discretion under
Section 20 of the Specific Relief Act. Hence, this Court has
to frame the substantial questions of law.
5. Per contra, the learned counsel appearing for
the respondents would vehemently contend that it is a
clear case of loan transaction and even answer is elicited
NC: 2024:KHC:17836
from the mouth of PW1 that she did not visit the land
before the payment of sale consideration. Hence, it is
clear that it was only a loan transaction and not a sale
transaction. An ordinary prudent man will not accept the
proposal for purchase the property without making any
inspection of the property. Hence, the Trial Court has not
committed any error in not granting the relief of specific
performance and the First Appellate Court also reassessed
the material on record in a proper perspective.
6. Having heard the learned counsel appearing for
the respective parties and on perusal of the material on
record, it is not in dispute that the land was granted in the
year 1995 and also sale agreement came to be signed in
the year 1997 and non-alienation clause will be elapsed in
the year 2010. No doubt, legal notice was issued within a
period of three years after the expiry of restricted time
and hence, the suit is in time. The Trial Court comes to
the conclusion that there was an agreement. Having
taken note of the admission on the part of PW1 wherein
NC: 2024:KHC:17836
she has categorically admitted that she did not visit the
spot and advanced the amount and she is a government
employee and the answer elicited in the cross-examination
was extracted in paragraph 23 of the judgment of the Trial
Court. In paragraph 25, the Trial Court extracted the
answer elicited from the mouth of PW1 that she does not
have any intention to purchase the property. All these
aspects were taken note of by the Trial Court while
declining to grant the relief of specific performance. The
First Appellate Court also while reassessing the evidence
on record, in paragraph 23 taken note of the admission
given by PW1 during the cross-examination that based on
the believe and trust, she did not visit the spot and also
taken note of further statement made by PW1 that she
does not have any intention to purchase the property.
When such admissions are available on record, it takes
away the case of the plaintiff. Thus, both the Courts
declined to grant the relief of specific performance.
Hence, it is not a fit case to invoke Section 100 of CPC to
NC: 2024:KHC:17836
frame the substantial questions of law against the
concurrent finding given by both the Courts.
7. In view of the discussions made above, I pass
the following:
ORDER
The Regular Second Appeal is dismissed.
Sd/-
JUDGE
SN
