Karnataka High Court
Sri Anjanappa vs Sri Narayanachar on 1 October, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 2000 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 2000 OF 2015 (SP)
BETWEEN
SRI ANJANAPPA
S/O YELLAPPA,
AGED ABOUT 70 YEARS,
R/AT CHIKKABANAVARA VILLAGE
YESHWANTHPUR HOBLI,
BANGALORE NORTH TALUK
BANGALORE-560090
REPRESENTED BY GPA HOLDER
SRI HANUMAPPA
AGED ABOUT 52 YEARS,
S/O LATE YELLAPPA
R/AT NO.396
AKSHAYA NILAYA
6TH MAIN, 5TH A CROSS, MEI LAYOUT
BANGALORE VILLAGE
BANGALORE-560073
Digitally
signed by APPELLANT
PRAKASH N
Location: (BY SRI: M. ASWATHANARAYANA REDDY., ADVOCATE)
HIGH
COURT OF
KARNATAKA AND
1. SRI NARAYANACHAR
S/O HEERANNACHAR
SINCE DEAD BY LR
SRI VASANTH BANAVAR
S/O LATE NARAYANACHAR, MAJOR
SINCE DECEASED BY HIS L.R.'s
a) SMT. PRAMILA
W/O VASANTH BANAVAR
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RSA No. 2000 of 2015
AGED ABOUT 65 YEARS
b) SRI. MANJUANTHA
S/O VASANTH BANAVAR
AGED ABOUT 40 YEARS
c) SRI. MADHAVA
S/O VASANTH BANAVAR
AGED ABOUT 38 YEARS
ALL ARE RESIDING AT NO.53,
ACHARYA COLLEGE ROAD,
GANAPATHI NAGAR,
BANGALORE-560090.
(AMENDED AS PER HON'BLE
COURT ORDER DATED 29.05.2024)
2. SRI KRISHNA MURTHY
S/O SRI LAKKAPPA
AGED ABOUT 55 YEARS,
3. SRI SRINIVASA
S/O SRI CHIKKA CHIKKANNAIAH
AGED ABOUT 45 YEARS,
4. SRI MOHAMMED MUKTHAR
S/O SRI ABDUL GANI,
MAJOR,
ALL ARE R/A CHIKKABANAVARA VILLAGE
YESHWANTHPUR HOBLI
BANGALORE NORTH TALUK,
BANGALORE-560090
...RESPONDENTS
(BY SRI. K. VIJAY KUMAR., ADVOCATE FOR C/R1;
SRI. ABHINAY.Y.T., ADVOCATE FOR;
SMT. SUDHA S.N., ADVOCATE FOR C/R2 R3 & R4)
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
DECREE PASSED IN R.A.NO.169/2009 DATED 15.09.2015 ON THE
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RSA No. 2000 of 2015
FILE OF THE VII ADDL. DISTRICT AND SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE AND THE JUDGMENT
AND DECREE PASSED IN O.S.NO.294/1998 DATED 20.8.2009 ON
THE FILE OF THE I ADDL. CIVIL JUDGE (SR. DV) BANGALORE RURAL
DISTRICT, BANGALORE WITH COURT COST AND GRANT SUCH
OTHER RELIEF OR RELIEFS AS THIS HON'BLE COURT DEEMS FIT IN
THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE
AND ETC.
THIS RSA COMING ON FOR ORDERS AND HAVING BEEN
RESERVED FOR ORDERS ON 18.07.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CAV JUDGMENT
1. The Appellant is before this Court seeking for the
following reliefs:
"Call for the records and set aside the judgment and
decree passed in R.A.No.169/2009 dated 15.09.2015
on the file of the VII Addl. District and Sessions
Judge, Bangalore Rural District, Bangalore and the
judgment and decree passed in O.S.No.294/1998
dated 20.8.2009 on the file of the I Addl. Civil Judge
(Sr. Dv) Bangalore Rural District, Bangalore with
Court cost and grant such other relief or reliefs as
this Hon'ble Court deems fit in the circumstances of
the case in the interest of justice."
2. The Appellant-Plaintiff is on second appeal. The
Appellant had filed a suit in O.S. No.294/1998
seeking for specific performance of an Agreement of
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Sale and a consequential injunction restraining the
Defendants or their agents from interfering with the
peaceful possession and enjoyment of the suit
schedule property, as also restraining the Defendants
from alienating the suit schedule property. The Trial
Court vide its Judgement dated 20.08.2009
dismissed the said suit. Challenging the same, the
Appellant/Plaintiff had filed Regular Appeal No.
169/2009 which also came to be dismissed vide
Judgment dated 15.09.2015. It is challenging the
said concurrent finding that the above Regular
Second Appeal has been filed.
3. The contention of the Plaintiff is that the first
Defendant had executed an Agreement of Sale in
favour of the Plaintiff on 22.03.1989 agreeing to sell
the suit schedule property and one other property
described as a non-suit property bearing survey no.
196 measuring 1 acre 25 guntas situated at
Chikkabanwara village, Yeshwantpura Hobli,
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Bangalore for a consideration of Rs 2,25,000/- by
receiving a sum of Rs 25,000 as earnest money and
had agreed to receive the balance consideration of
Rs.2 lakhs in four equal installments within a period
of 16 months from the date of the Agreement of
Sale. There being a loan on the property, the
Defendant had also agreed to discharge the said loan
before executing the sale deed.
4. The revenue documents not standing in the name of
the Defendants, Defendant No.1 had agreed to get
the same transferred in his name from that of his
father before the execution of the sale deed. It was
alleged that Defendant No.1 received a further
advance of Rs.25,000/- on 22.06.1989 and a further
amount of Rs.25,000/- on 03.07.1989 which was
endorsed in the Agreement of Sale. There was a
delay in completing the sale transaction on account
of Defendant No. 1 not getting all the revenue
documents in his name.
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5. Defendant No.1 was able to get the documents only
in respect of the non-suit land, namely, survey
number 196 described above, as regards which a
registered sale deed came to be executed on
22.12.1990. Subsequent thereto, it is alleged that
Defendant No.1 on 15.09.1993 received an amount
of Rs 54,900/-, endorsed on the Agreement of Sale.
The time was extended for the completion of the sale
transaction.
6. Despite Defendant No.1 having agreed to execute
the sale deed, the same not having been executed,
the Plaintiff being allegedly ready and willing to
discharge his part of the contract, the Plaintiff
claiming that he had paid the entire amounts due,
the Plaintiff got issued a telegram legal notice on
06.04.1998 calling upon Defendant No.1 to execute a
registered sale deed. The said telegram notice being
duly acknowledged on 06.04.1998. Instead of
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executing the sale deed, a reply was given denying
the claim of the Plaintiff. It is in that background that
the aforesaid suit was filed.
7. The Defendant No.1 having been served with the
notice entered appearance and filed his written
statement.
8. Though the Agreement of Sale dated 22.03.1989 was
admitted, it was contended that the Plaintiff had not
made payment as per the agreement and the
cheques issued by the Plaintiff were dishonoured.
The Defendant No.1 admitted a receipt of a sum of
Rs.30,000/- and denied any obligation to get the
revenue documents in his name.
9. He has further denied that a sum of Rs. 54,900/-
was received on 15.09.1993 as alleged or otherwise
that there is no cause of action for filing of the suit.
Though two properties were agreed to be sold,
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Defendant No.1 contended that since the entire
amount was not paid, the amount paid was adjusted
towards the sale of Survey No.196 measuring 1 acre
25 guntas and as such, only a sale deed as regards
to the said land was executed and it was understood
between the parties that there is no further
obligation to be discharged by Defendant No.1 and in
that background defendant No.1 sold the suit-
schedule property in March 1998 to the knowledge of
the Plaintiff and it is only thereafter that the suit was
filed to harass the Defendants and in that
background Defendant No.1 sought for dismissal of
the suit.
10. Defendants No. 2 to 4 had also filed a written
statement stating that they were bonafide
purchasers for value having purchased the property
on 26.03.1998 having received all the original
documents and possession of the property and as
such, they claimed for dismissal of the suit, further
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contending that the suit was filed post the sale in
favour of defendants No.2 to 4. In the above
background, the Trial Court framed the following
issues:
1) Whether the plaintiff proves that the 1st defendant being
the owner of the suit schedule property agreed to sell the
same for Rs. 2,25,000/- under and agreement of sale
dated:22/03/89 and has received part consideration
amount and also handed over possession of property as
alleged?
2) Whether the plaintiff further proves that he was and is ever
ready and willing to perform his part of the contract as
alleged?
3) Whether the plaintiff further proves that the defendants
no.1 to 4 illegally interfered with his lawful possession as
alleged?
4) Whether the 1st defendant proves that the plaintiff has
breached the contract and as such the contract was
cancelled as alleged in para 13 of the written statement?
5) Whether the defendants no. 2 to 4 prove that they are the
bonafide purchasers for valuable consideration of the suit
property from 1st defendant under the registered sale deed
dated:26/03/98 and the plaintiff is aware of the same as
alleged in para 4 and 5 of the written statement?
6) Whether the plaintiff is entitled for the relief of specific
performance of contract as prayed?
7) Whether the plaintiff is entitled for permanent injunction as
sought for?
8) To what relief if any, the parties are entitled?
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11. The Plaintiff through his power of attorney holder led
his evidence and produced 10 documents. The
Defendant neither entered the witness box nor
produced any documents. Arguments were heard of
the Plaintiff, the Defendants not having addressed
any arguments, the Trial Court vide the aforesaid
judgment dismissed the said suit.
12. During the pendency of the suit, a further relief was
sought for by the Plaintiff by way of amendment to
declare the sale deed executed by Defendant No.1 in
favour of Defendants No.2 to 4 to be null and void.
The Trial Court then observed in view of the said
amendment application, as also the arguments made
therein that the suit schedule property had already
been sold by Defendant No.1 in favour of Defendants
No.2 to 4 and as such, there was no cause of action
to seek for specific performance.
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13. The contention of the Plaintiff that he was not aware
of the sale in favour of Defendants No.2 to 4 at the
time of filing of the suit was rejected. The sale
having occurred on 26-03-1998, the suit was filed on
12-05-1998 without seeking for such relief of
declaration of the sale deed as null and void and that
relief was sought for much subsequently by way of
an amendment. On that basis, the Trial Court
concluded that there was no cause of action to file
the suit for specific performance, to say, that the
property had been sold even prior to filing of the
suit. The Trial Court taking into consideration the
admission made by Defendant No.1 as regards
execution of the agreement of sale in favour of the
Plaintiff held that there is nothing which has been
produced by the Plaintiff to establish that the Plaintiff
is in possession of the property or Defendant No.1
has handed over the vacant possession of the
property. The Defendant had specifically contended
that it was the Defendant who was in possession and
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subsequent to the sale in favour of Defendants No.2
to 4, it is Defendants No.2 to 4 who are in possession
of the property. Hence, the Trial Court rejected the
contention of the Plaintiff that he is in possession of
the property.
14. The Trial Court further observed that there is nothing
on record produced by the Plaintiff to establish that
the Plaintiff had made payments of the entire
consideration. Furthermore, the original Agreement
of Sale also not having been produced, the Trial
Court rejected the contentions and dismissed the
claim of the Plaintiff and dismissed the suit.
15. In the appeal filed, the First Appellate Court in R.A.
No. 169/2009 confirmed the Judgment of the Trial
Court. The First Appellate Court observing that only a
photocopy of the agreement of sale had been
produced came to conclusion that the claim of the
Plaintiff has not been proved. The endorsement
made as regards the receipt of consideration of Rs.
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54,900/- on the photocopy was also held not to be
proved. The First Appellate Court came to a
conclusion that the Plaintiff had not proved his case.
There being no evidence on record to establish the
claims made by the Plaintiff, it dismissed the appeal.
It is challenging the said Judgment, the Plaintiff-
Appellant is before this court.
16. The submission of Sri. Ashwath Narayan Reddy,
learned counsel for the Appellant is that,
16.1. Both the Trial Court and the First Appellate
Court have not considered the aspect in the
right perspective. The Defendants not having
led any evidence but only having filed a written
statement, the Defendant not having cross-
examined the Plaintiff, the case of the Paintiff
was required to be held to be proved, there
being no counter to the same.
16.2. In this regard, he relied upon the decision of
the Hon'ble Apex Court in Man Kaur v. Hartar
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Singh Sangha1, more particularly paragraphs
14, 15 and 18 thereof, which are reproduced
hereunder for easy reference:
14. In Vidhyadhar v. Manikrao [(1999) 3 SCC 573] this
Court reiterated the following well-recognised legal
position: (SCC pp. 583-84, para 17)
"17. Where a party to the suit does not appear in the
witness box and states his own case on oath and does
not offer himself to be cross-examined by the other
side, a presumption would arise that the case set up by
him is not correct...."
15. We may next refer to two decisions of this Court
which considered the evidentiary value of the
depositions of the attorney-holders. This Court in Janki
Vashdeo Bhojwani v. Indusind Bank Ltd. [(2005) 2 SCC
217] held as follows: (SCC pp. 222-24, paras 13, 17-18
& 21)
"13. Order 3 Rules 1 and 2 CPC empower the holder of
power of attorney to 'act' on behalf of the principal. In
our view the word 'acts' employed in Order 3 Rules 1
and 2 CPC confines only to in respect of 'acts' done by
the power-of-attorney holder in exercise of power
granted by the instrument. The term 'acts' would not
include deposing in place and instead of the principal. In
other words, if the power-of-attorney holder has
rendered some 'acts' in pursuance of power of attorney,
he may depose for the principal in respect of such acts,
but he cannot depose for the principal for the acts done
by the principal and not by him. Similarly, he cannot
depose for the principal in respect of the matter of which
(2010) 10 SCC 512 | 2010 INSC 672
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only the principal can have a personal knowledge and in
respect of which the principal is entitled to be cross-
examined.
***
17. ... In Shambhu Dutt Shastri v. State of Rajasthan
[(1986) 2 WLN 713 (Raj)] it was held that a general
power-of-attorney holder can appear, plead and act on
behalf of the party but he cannot become a witness on
behalf of the party. He can only appear in his own
capacity. No one can delegate the power to appear in
the witness box on behalf of himself. To appear in a
witness box is altogether a different act. A general
power-of-attorney holder cannot be allowed to appear
as a witness on behalf of the plaintiff in the capacity of
the plaintiff.
18. The aforesaid judgment was quoted with approval in
Ram Prasad v. Hari Narain [AIR 1998 Raj 185] . It was
held that the word 'acts' used in Rule 2 of Order 3 CPC
does not include the act of power-of-attorney holder to
appear as a witness on behalf of a party. Power-of-
attorney holder of a party can appear only as a witness
in his personal capacity and whatever knowledge he has
about the case he can state on oath but be cannot
appear as a witness on behalf of the party in the
capacity of that party. If the plaintiff is unable to appear
in the court, a commission for recording his evidence
may be issued under the relevant provisions of CPC.
***
21. We hold that the view taken by the Rajasthan High
Court in Shambhu Dutt Shastri [(1986) 2 WLN 713
(Raj)] followed and reiterated in Ram Prasad [AIR 1998
Raj 185] is the correct view."
(emphasis supplied)
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18. We may now summarise for convenience, the
position as to who should give evidence in regard to
matters involving personal knowledge:
(a) An attorney-holder who has signed the plaint and
instituted the suit, but has no personal knowledge of the
transaction can only give formal evidence about the
validity of the power of attorney and the filing of the
suit.
(b) If the attorney-holder has done any act or handled
any transactions, in pursuance of the power of attorney
granted by the principal, he may be examined as a
witness to prove those acts or transactions. If the
attorney-holder alone has personal knowledge of such
acts and transactions and not the principal, the
attorney-holder shall be examined, if those acts and
transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence
in place of his principal for the acts done by the principal
or transactions or dealings of the principal, of which
principal alone has personal knowledge.
(d) Where the principal at no point of time had
personally handled or dealt with or participated in the
transaction and has no personal knowledge of the
transaction, and where the entire transaction has been
handled by an attorney-holder, necessarily the attorney-
holder alone can give evidence in regard to the
transaction. This frequently happens in case of principals
carrying on business through authorised
managers/attorney-holders or persons residing abroad
managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted
through a particular attorney-holder, the principal has to
examine that attorney-holder to prove the transaction,
and not a different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the
matter at different stages of the transaction, if evidence
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has to be led as to what transpired at those different
stages, all the attorney-holders will have to be
examined.
(g) Where the law requires or contemplated the plaintiff
or other party to a proceeding, to establish or prove
something with reference to his "state of mind" or
"conduct", normally the person concerned alone has to
give evidence and not an attorney-holder. A landlord
who seeks eviction of his tenant, on the ground of his
"bona fide" need and a purchaser seeking specific
performance who has to show his "readiness and
willingness" fall under this category. There is however a
recognised exception to this requirement. Where all the
affairs of a party are completely managed, transacted
and looked after by an attorney (who may happen to be
a close family member), it may be possible to accept the
evidence of such attorney even with reference to bona
fides or "readiness and willingness". Examples of such
attorney-holders are a husband/wife exclusively
managing the affairs of his/her spouse, a son/daughter
exclusively managing the affairs of an old and infirm
parent, a father/mother exclusively managing the affairs
of a son/daughter living abroad.
16.3. By relying on Man Kaur's case, he submits
that where a party to the suit does not enter
the witness box, lead evidence and subject
himself for cross-examination, the pleadings
filed by such a party cannot be considered.
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16.4. He relies upon the decision of the Hon'ble Apex
Court in Vidhyadhar v. Manikrao2, more
particularly Para nos. 15 and 16 thereof, which
are reproduced hereunder for easy reference:
15. Even while the plaintiff was in the witness-box,
Defendant 2 declined to cross-examine the plaintiff
which shows that Defendant 2 after admitting the case
of the plaintiff, had no interest in the litigation
particularly as he had already transferred the property
in favour of the plaintiff.
16. It was Defendant 1 who contended that the sale
deed executed by Defendant 2 in favour of the plaintiff
was fictitious and the whole transaction was a bogus
transaction as only Rs 500 were paid as sale
consideration to Defendant 2. He further claimed that
payment of Rs 4500 to Defendant 2 at his home before
the registration of the deed was wholly incorrect. This
plea was not supported by Defendant 1 as he did not
enter the witness-box. He did not state the facts
pleaded in the written statement on oath in the trial
court and avoided the witness-box so that he may not
be cross-examined. This, by itself, is enough to reject
the claim that the transaction of sale between Defendant
2 and the plaintiff was a bogus transaction.
16.5. By relying on Vidhyadhar's case, he submits
that where a party to the suit does not enter
the witness box and states his own case on
AIR 1999 SC 1441 | 1999 INSC 112
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oath and does not offer himself to be cross-
examined by the other side, a presumption
would arise that the case set up by him is not
correct.
16.6. He also relies upon the decision of the Hon'ble
Apex Court in Maharaj Singh and others v.
Karan Singh (Dead) & Ors3, more
particularly Para nos. 14 and 15 thereof, which
are reproduced hereunder for easy reference:
14. Now, we deal with another argument that the
plaintiffs ought to have prayed in the suit to cancel
the subsequent sale deeds executed by the first
defendant. On this aspect, the law has been laid
down by a Bench of three Hon'ble Judges of this
Court in the case of Lala Durga Prasad & Ors. v.
Lala Deep Chand & Ors.4,. Paragraphs 40 to 42 of
the said decision read thus:
"40. First, we reach the position that the title
to the property has validly passed from the
vendor and resides in the subsequent
transferee. The sale to him is not void but
only voidable at the option of the earlier
"contractor". As the title no longer rests in
the vendor it would be illogical from a
conveyancing point of view to compel him to
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convey to the plaintiff unless steps are taken
to revest the title in him either by
cancellation of the subsequent sale or by
reconveyance from the subsequent purchaser
to him. We do not know of any case in which
a reconveyance to the vendor was ordered
but Sulaiman, C.J. adopted the other course
in Kali Charan Singh v. Janak Deo Singh [Kali
Charan Singh v. Janak Deo Singh, AIR 1932
All 694 : 1932 SCC OnLine All 154] . He
directed cancellation of the subsequent sale 4
(1953) 2 SCC 509 Civil Appeal No. 6782 of
2013 Page 13 of 24 and conveyance to the
plaintiff by the vendor in accordance with the
contract of sale of which the plaintiff sought
specific performance. But though this sounds
logical the objection to it is that it might
bring in its train complications between the
vendor and the subsequent purchaser. There
may be covenants in the deed between them
which it would be inequitable to disturb by
cancellation of their deed. Accordingly, we do
not think that is a desirable solution.
41. We are not enamoured of the next
alternative either, namely, conveyance by the
subsequent purchaser alone to the plaintiff. It is
true that would have the effect of vesting the
title to the property in the plaintiff but it might
be inequitable to compel the subsequent
transferee to enter into terms and covenants in
the vendor's agreement with the plaintiff to
which he would never have agreed had he been
a free agent; and if the original contract is
varied by altering or omitting such terms the
court will be remaking the contract, a thing it
has no power to do; and in any case it will no
longer be specifically enforcing the original
contract but another and different one.
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42. In our opinion, the proper form of decree is
to direct specific performance of the contract
between the vendor and the plaintiff and direct
the subsequent transferee to join in the
conveyance so as to pass on the title which
resides in him to the plaintiff. He does not join
in any special covenants made between the
plaintiff and his vendor; all he does is to pass on
of 24 to the plaintiff. This was the course
followed by the Calcutta High Court in Kafiladdin
v. Samiraddin [Kafiladdin v.Samiraddin, AIR
1931 Cal 67 : 1930 SCC OnLine Cal 46] and
appears to be the English practice. See Fry on
Specific Performance, 6th Edn., p.90,
Para207;also Potter v. Sanders [Potter v.
Sanders, (1846) 6 Hare 1 : 67 ER 1057] . We
direct accordingly."
(emphasis added)
15. Reliance is placed by the appellants on the
decision of this Court in the case of B. Vijaya
Bharathi3. In paragraph 17 of the said decision,
this Court held thus:
"17. It must also be noted that though aware of
two conveyances of the same property, the
plaintiff did not ask for their cancellation. This
again, would stand in the way of a decree of
specific performance for unless the sale made
by Defendant 1 to Defendant 2, and thereafter
by Defendant 2 to Defendant 3 are set aside,
no decree for specific performance could
possibly follow. While Mr Rao may be right in
stating that mere delay without more would not
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disentitle his client to the relief of specific
performance, for the reasons stated above, we
find that this is not such a case. The High Court
was clearly right in finding that the bar of
Section 16(c) was squarely attracted on the
facts of the present case, and that therefore,
the fact that Defendants 2 and 3 may not be
bona fide purchasers would not Civil Appeal No.
6782 of 2013 Page 15 of 24 come in the way of
stating that such suit must be dismissed at the
threshold because of lack of readiness and
willingness, which is a basic condition for the
grant of specific performance."
(emphasis added)
A bench of two Hon'ble Judges has rendered
this decision. Unfortunately, the attention of
the Bench was not invited to binding precedent
in the form of a decision of a larger bench in
the case of Lala Durga Prasad & Ors.4. Hence,
the decision in the case of B. Vijaya Bharathi3
is not a binding precedent. Therefore, there
was no requirement to make a prayer in the
plaint for cancellation or setting aside the
subsequent sale deeds.
16.7. By relying on the decision in Maharaj Singh's
case, his submission is that when a person
were to seek for specific performance, it is not
required to seek for cancellation of a sale deed
executed after the agreement of sale, subject
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matter of the suit for specific performance and
as such, the finding of both the Trial Court and
First Appellate Court that no such relief has
been sought for would disentitle the Plaintiff
from equitable relief for specific performance
are not correct.
16.8. On the above grounds, he submits that there
are substantial questions of law that arise for
consideration in the above appeal and as such,
the above appeal needs to be admitted by
framing suitable substantial questions of law.
17. Sri. Abhinay. Y.T., learned Counsel appearing for
Respondents No.2 to 4 would submit that,
17.1. Respondents No.2 to 4 are bona fide purchasers
for value, they having purchased the property
by making payment of valuable consideration
and the sale in their favour having been
executed under a registered sale deed, he
submits that the Trial Court and the First
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Appellate Court have rightly come to a
conclusion that without the original agreement
having been produced, no relief for specific
performance could be granted. Both the courts
having appreciated the factual matrix of the
matter in dispute have held against the
Plaintiff, that too, when the Defendants did not
lead their evidence. There is no case
established by the Plaintiff for grant of the
reliefs as sought for.
17.2. The factual aspects have been examined by
both, the Trial Court and the First Appellate
Court, there is no requirement to frame any
substantial question of law and the above
appeal would be required to be dismissed at the
stage of admission itself.
17.3. As regards the aspect of readiness and
willingness, he refers to the decision of the
Hon'ble Apex Court in B. Vijaya Bharathi v.
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P. Savitri4 more particularly paragraph 17
thereof, which is reproduced hereunder for easy
reference:
17. It must also be noted that though aware of
two conveyances of the same property, the
plaintiff did not ask for their cancellation. This
again, would stand in the way of a decree of
specific performance for unless the sale made by
Defendant 1 to Defendant 2, and thereafter by
Defendant 2 to Defendant 3 are set aside, no
decree for specific performance could possibly
follow. While Mr Rao may be right in stating that
mere delay without more would not disentitle his
client to the relief of specific performance, for the
reasons stated above, we find that this is not
such a case. The High Court was clearly right in
finding that the bar of Section 16(c) was squarely
attracted on the facts of the present case, and
that therefore, the fact that Defendants 2 and 3
may not be bona fide purchasers would not come
in the way of stating that such suit must be
dismissed at the threshold because of lack of
readiness and willingness, which is a basic
condition for the grant of specific performance.
17.4. By relying on Vijaya Bharthi's case, his
submission is that the Plaintiff being aware of
the conveyance of the property, the Plaintiff
having not sought for cancellation, the same
AIR 2017 SC 3934 | 2017 INSC 734
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standing in the way of a decree for specific
performance, the Plaintiff not having filed any
proceeding before such sale, but feigning
ignorance of the execution of the sale, cannot
be said to be ready and willing to perform his
part of the contract.
17.5. He relies upon the decision of this court dated
11.09.2000 in CRP No. 4268 of 1998, a
Judgment rendered by this court in the present
dispute itself, which Revision Petition was filed
by the Plaintiff after the amendment application
filed seeking for challenging the sale deed in
favour of Respondents No.2 to 4 had been
rejected, the revision petition was also
dismissed on the ground that the amendment
sought for would change the nature of the suit
and as such, the order passed by the Trial
Court was upheld by this court in CRP No.4268
of 1998.
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17.6. There being no relief challenging the sale deed
executed in favour of Defendants No.2 to 4, the
order dated 11.09.2000 in CRP No.4268/1998
having attained finality by even the dismissal of
the Special Leave to Appeal (Civil)
No.1732/2001 by the Hon'ble Apex Court vide
its order dated 16.06.2001 at the admission
stage itself, the Plaintiff cannot now again re-
agitate the issue as regards the sale in favour
of Respondents No.2 to 4 and as such, the
decision in Maharaj Singh's case would not be
applicable, this aspect having already been
decided interse between the parties in the
aforesaid said proceedings.
17.7. He relies upon the decision of the Hon'ble Apex
Court in Rajesh Kumar v. Anand Kumar and
others5, more particularly Para nos. 12 and 13
thereof which are reproduced hereunder for
easy reference:
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12. Having noticed the three judgments of this
Court in Janki Vashdeo Bhojwani (supra), Man
Kaur (supra) & A.C. Narayanan (supra), we are of
the view that in view of Section 12 of the Specific
Relief Act, 1963, in a suit for specific performance
wherein the plaintiff is required to aver and prove
that he has performed or has always been ready
and willing to perform the essential terms of the
contract, a Power of Attorney Holder is not entitled
to depose in place and instead of the plaintiff
(principal). In other words, if the Power of
Attorney Holder has rendered some 'acts' in
pursuance of power of attorney, he may depose for
the principal in respect of such acts, but he cannot
depose for the principal for the act done by the
principal and not by him. Similarly, he cannot
depose for the principal in respect of the matter of
which only the principal can have personal
knowledge and in respect of which the principal is
entitled to be cross-examined. If a plaintiff, in a
suit for specific performance is required to prove
that he was always ready and willing to perform
his part of the contract, it is necessary for him to
step into the witness box and depose the said fact
and subject himself to cross-examination on that
issue. A plaintiff cannot examine in his place, his
attorney holder who did not have personal
knowledge either of the transaction or of his
readiness and willingness. The term 'readiness and
willingness' refers to the state of mind and conduct
of the purchaser, as also his capacity and
preparedness, one without the other being not
sufficient. Therefore, a third party having no
personal knowledge about the transaction cannot
give evidence about the readiness and willingness.
13. In the light of above settled legal position, we
are of the view that in the instant case, the
plaintiff/appellant has failed to enter into the
witness box and subject himself to cross-
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examination, he has not been able to prove the
prerequisites of Section 12 of the Specific Relief
Act,1963 and more so, when the original
agreement contained a definite time for
registration of sale deed which was later on
extended but the suit was filed on the last date of
limitation calculated on the basis of the last
extended time.
17.8. By relying upon the same, he submits that the
Plaintiff himself did not lead evidence, but the
Plaintiff was represented by a power of attorney
holder who had no knowledge of the subject
matter of the dispute. The Plaintiff was required
to examine himself to establish readiness and
willingness on part of the Plaintiff which is
personal to the Plaintiff. The settled legal
position being as such, his submission is that if
the evidence of the power of attorney holder is
eschewed, there is no evidence led by the
Plaintiff which could be considered by the Trial
Court or the First Appellate Court, let alone this
Court and as such, he submits that the finding
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of the Trial Court and the first Appellate Court
being proper, are not required to be disturbed.
18. Heard Sri. Ashwath Narayan Reddy, learned counsel
for the appellant, Sri. K. Vijay Kumar, learned
counsel for Respondent No.1 and Sri. Abhinay. Y.T,
learned counsel for Smt. Sudha S.N, learned counsel
for Respondents No.2 to 4. Perused papers.
19. As afore observed, the above appeal has been filed
challenging the concurrent findings of both the Trial
Court and the First Appellate Court. The statement of
facts, submission and the finding rendered by both
the Courts would indicate that finding of the Trial
Court and the First Appellate Court is on the basis of
facts, namely, the pleadings, evidence on record and
the documents placed on record.
20. Shockingly, a suit for specific performance has been
filed by the Plaintiff without even producing the
original agreement of sale. Without such original
agreement of sale being produced, it cannot be
ascertained as regards the validity and veracity of
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the claims made by the Plaintiff, more so, when in
the present case, the Agreement of Sale, according
to the Plaintiff, is as regards two properties, certain
amounts having been paid by the Plaintiff, a sale
deed came to be executed as regards one of the
properties and not as regards the other property and
it is contended that it was agreed that there was no
requirement to execute a sale Deed as regards the
property subject matter of the present suit.
21. Defendant No. 1 in his written statement claiming
that the consideration which had been paid was
adjusted towards the property which has been sold
and a sale deed executed and there is no
consideration paid as regards the second property,
which is subject matter of the above suit.
22. It was but required for the Plaintiff to have placed
necessary evidence on record indicating and
establishing these facts, more so as regards the
payment of consideration as regards the second
property subject matter of the suit to make out a
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case for specific performance. The Plaintiff admittedly
has done nothing in this regard. He has not even
examined himself but a power of attorney has
tendered evidence who cannot have any knowledge
of the transaction, more so as regards readiness and
willingness of the Plaintiff.
23. It is trite law that the Power of Attorney holder can
lead evidence on behalf of the Plaintiff but such
evidence can only be on the basis of records and or
as regards aspects personally known to the power of
attorney holder. Readiness and willingness cannot be
said to be known to a power of attorney holder, the
same being inherent and personal to the Plaintiff.
24. As aforesaid the original of the agreement of sale has
not been produced. The alleged endorsement as
regards payment of Rs.54,900/- endorsed on the
Agreement of Sale has been denied by the Defendant
to be false and fabricated. Despite such denial, the
burden of proof having shifted to the Plaintiff, the
Plaintiff has not led any evidence to establish this
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endorsement in the Agreement of Sale as regards
the payment of the said sum of Rs.54,900/-. The
Endorsement also being in the nature of a photocopy
and no original of the endorsement having been
produced. The same alleged to have been paid by
cash, there are no details as to how the Plaintiff
came about with such an amount and how and when
the said payments were made to Defendant No.1.
There is absolutely no evidence on record as regards
this aspect for consideration by the trial court or the
first appellate court.
25. The Plaintiff had filed the suit against Defendant No.1
to 4 originally. Defendants No.2 to 4 were not
brought on record by way of a subsequent
amendment. It has not been explained by the
Plaintiff as to how he came to know about the
existence of Defendants No.2 to 4 when the Plaintiff
denied knowledge of the sale executed by Defendant
No.1 in respect of Defendants No.2 to 4 and it is
much subsequently that relief for declaration of the
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sale deed executed by Defendant No.1 in favour of
Defendants No.2 to 4 was sought for which has been
adverted to hereinabove. The amendment was
rejected by the Trial Court, the Civil Revision Petition
has been dismissed, the Special Leave Petition also
came to be dismissed.
26. The fact that the Plaintiff has made Defendants No.2
to 4 as parties to the suit for specific performance
along with the Vendor-Defendant No.1 would
categorically indicate the knowledge on part of the
Plaintiff about the transaction between Defendant
No.1 and Defendants No. 2 to 4 which has been
deliberately suppressed by Defendant No.1. The suit
for specific performance being a discretionary relief,
such suppression of material facts would go to the
root of the matter depriving the Plaintiff of any
equitable consideration at the hands of this Court.
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27. Looked at from any angle, all the aspects have been
considered by the Trial Court and the First Appellate
Court, the aspects argued before this Court are all
related to factual aspects which have been rightly
considered by the Trial Court and the First Appellate
Court, more so, when the original Agreement of Sale
itself has not been produced and the Plaintiff did not
lead evidence on his own behalf, I do not find any
substantial questions of law which would arise to be
considered in the present matter.
28. The Judgment of the Trial Court and First Appellate
Court being on facts and being proper and correct,
cannot be re-appreciated in a second appeal. No
grounds having been made out, the above appeal
stands dismissed at the stage of admission itself.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
