Karnataka High Court
Smt. Vijayalakshmi vs Sri. Devaraju on 3 September, 2024
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NC: 2024:KHC:35970
RSA No. 375 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 375 OF 2022 (SP)
BETWEEN:
SMT. VIJAYALAKSHMI
W/O RANGASWAMY @ PRAKASH
AGED ABOUT 49 YEARS
R/AT NAGAIAHNAKOPPLU VILLAGE
SHRAVANBELAGOLA HOBLI
CHANARAYAPATNA TALUK
HASSAN DISTRICT - 573135.
...APPELLANT
(BY SRI. NARASIMHA PRASAD S.D., ADVOCATE)
AND:
SRI. DEVARAJU
Digitally signed by
S/O PUTTEGOWDA
SHARMA ANAND AGED ABOUT 56 YERS
CHAYA
Location: High Court R/AT NAGAIAHNAKOPPALU VILLAGE
of Karnataka SHRAVANABELAGOLA HOBLI
CHANNARAYAPATNA TALUK
HASSAN - 573135.
...RESPONDENT
(BY SRI. ABHILASH VAIDYANATHAN.,ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
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RSA No. 375 of 2022
JUDGMENT AND DECREE DATED 28.07.2021 PASSED IN
R.A.No.71 OF 2018 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, CHANNARAYAPATNA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
29.06.2018 PASSED IN O.S. No.317 OF 2010 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNARAYAPATNA.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the defendant / appellant in
R.A.No.71/2018, challenging the Judgment and Decree dated
28.07.2021 on the file of Civil Judge (Sr.Dn.),
Channarayapatna, Hassan, confirming the Judgment and
Decree dated 29.06.2018 in O.S.No.317/2010 on the file of
Principal Civil Judge and JMFC, Channarayapatna, decreeing the
suit of the plaintiff.
2. For the sake of convenience, parties are referred as per
their rank before the Trial Court.
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3. It is the case of the plaintiff that the defendant is owner
of suit schedule property and has agreed to sell the suit
schedule property in favour of plaintiff as per the agreement of
sale dated 20.01.2010 for total consideration of Rs.1,31,000/-
and it is further pleaded that, pursuant to the execution of the
agreement of sale dated 20.01.2010, defendant received the
advance amount of Rs.31,000/- and agreed to receive the
balance consideration amount of Rs.1,00,000/- at the time of
registration of the sale deed subject to defendant agreeing to
prepare the sketch in respect of the suit schedule property
within six months. Thereafter the plaintiff approached
defendant and called upon the defendant to execute the
registered sale deed, however, the defendant has not executed
registered sale deed and the plaintiff was always ready and
willing to perform his part of contract and on the other hand, as
the defendant was not ready to perform her part of contract,
the plaintiff has issued the legal notice to defendant calling
upon defendant to execute the registered Sale Deed and as
there is no reply made by the defendant, the plaintiff has filed
O.S.No.317/2010 before the Trial Court, seeking relief of
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specific performance of contract of sale in respect of the suit
schedule property.
4. After service of summons, the defendant entered
appearance and filed detailed written statement contending
that the defendant had acquired the suit schedule property as
per deed of sale dated 28.11.2007 and the defendant has
acquired suit item No.3 through the release deed dated
26.07.2008 executed by the plaintiff. It is also contended by
the defendant that one Srinivas had filed suit against the
plaintiff in O.S.No.233/2007 alleging encroachment of 31/2
guntas in Sy.No.101/5 and seeking delivery of possession of
land in Sy.No.101/5. It is further averred in the written
statement that the defendant and her husband got issued the
legal notice dated 29.04.2010 alleging that this defendant
executed agreement of sale dated 20.01.2010, accordingly, the
case of the defendant is that when the O.S.No.233/2007 was
pending, sought for dismissal of the present suit.
5. The Trial Court based on the pleadings on record, has
formulated issues for its consideration. In order to establish
their case, plaintiff has himself got examined as P.W.1 and
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three more witnesses as P.W.2, P.W.3 and P.W.4, and
produced seven documents and same were marked as Exs.P1
to P7. Defendant herself got examined as D.W.1 and examined
one more witness as D.W.2, and produced seven documents
which were marked as Exs.D1 to D7. The Trial Court, after
considering the material on record, by its Judgment and Decree
dated 29.06.2018, decreed the suit and directed the defendant
to execute registered Sale Deed in respect of the suit schedule
property, in favour of the plaintiff by receiving the balance sale
consideration amount. Feeling aggrieved by the same, the
defendant has filed R.A.No.17/2018 and same was resisted by
the plaintiff. The First Appellate Court, after re-appreciating the
material on record, by its Judgment and Decree dated
28.07.2021, dismissed the appeal, consequently confirmed the
Judgment and Decree in O.S.No.317/2010. Feeling aggrieved
by the same, the defendant has preferred this Second Appeal.
6. This Court, vide order dated 04.04.2022, formulated the
following substantial questions of law:
"Whether the Courts committed an error in not
reading the evidence of P.W.1, which clearly
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indicated that the plaintiff had advanced loan of a
sum of Rs.1,31,000/- out of which Rs.31,000/- was
paid by cash and the remaining sum of Rs.1,00,000/-
was payable on the date of registration of the deed
of absolute sale?
2. Whether the exercise of jurisdiction by the Trial
Court and First Appellate Court is justified?"
7. I have heard Sri. Narasimha Prasad S.D., learned counsel
appearing for the appellant and Sri. Abhilash Vaidyanathan,
learned counsel appearing for the respondent.
8. Sri. Narasimha Prasad S.D., learned counsel for the
appellant/defendant contends that both the Courts below have
failed to consider the fact that the defendant has received loan
from the plaintiff and on the pretext of loan agreement, the
plaintiff has fraudulently got the sale agreement produced at
Ex.P7 and therefore, it is contended by the learned counsel for
the appellant that the finding recorded by both the Courts
below requires to be interfered with in this appeal. It is also
contended by the learned counsel for the appellant/defendant
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that the plaintiff has failed to prove readiness and willingness
on his part to purchase the suit schedule property by producing
the relevant bank statement to enable him to pay the balance
sale consideration amount and accordingly, sought for
interference in this appeal.
9. Per contra, Sri. Abhilash Vaidyanathan, learned counsel
appearing for the respondent/plaintiff submitted that the
defendant had purchased the suit schedule property for
valuable consideration of Rs.46,000/- as per the registered Sale
Deed dated 28.11.2007 and also acquired suit item No.3 as per
the release Deed dated 26.07.2008 from the plaintiff and the
plaintiff has expressed his willingness by issuing legal notice to
the defendant as per Ex.P5 and same was served on the
defendant as the defendant has not come forward to execute
the registered Sale Deed and accordingly, sought to justify the
impugned decree passed by the Courts below.
10. In the light of the submissions made by the learned
counsel appearing for the parties, it is not in dispute that the
defendant is owner of the suit schedule property. It is the case
of the plaintiff that the defendant offered to sell suit schedule
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property for total sale consideration amount of Rs.1,31,000/-
as per the agreement of sale dated 20.01.2020. In order to
establish the execution of the agreement of sale, the plaintiff
has examined P.W.2 and P.W.3 as witnesses to the said
document. The scribe to the said agreement of sale - D. Nagraj
was examined as P.W.4 to establish the execution of
agreement of sale.
11. Having taken note of the evidence on record adduced by
P.W.1 to P.W.4, it is not in dispute that defendant has agreed
to sell the suit schedule property in favour of plaintiff for a sum
of Rs.1,31,000/-, in terms of the agreement of sale produced at
Ex.P7. Though the learned counsel for the appellant/defendant
argued that the plaintiff has not shown his willingness to
purchase the property by producing the bank statement,
however the perusal of the averments made in the legal notice
produced at Ex.P5 makes it clear that plaintiff was ready to get
the registered Sale Deed in his favour and as such, asked the
defendant to receive the balance sale consideration and
execute the sale deed.
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12. In that view of the matter, as the plaintiff has expressed
his willingness by way of issuing a legal notice, which was
served on the defendant, however, the defendant has erred in
not issuing reply to the said notice. In that view of the matter,
the defence raised by the defendant cannot be accepted.
Taking into consideration the finding recorded by both the
Courts below that the suit is filed within eight months from the
date of execution of the agreement of sale dated 20.01.2010, I
am of the view that, the finding recorded by the Trial Court is
just and proper whi ch does not call for interference in this
appeal.
13. In the backdrop of these circumstances, I have carefully
examined the finding recorded by the First Appellate Court.
The First Appellate Court, after re-appreciating the material on
record, particularly the sale agreement produced at Ex.P7, has
rightly come to the conclusion that the defendant has agreed to
sell the suit schedule property in favour of the plaintiff and the
said document cannot be considered as loan agreement. In that
view of the matter, as both the Courts below have concurrently
held against the defendant and directed the defendant to
execute the registered Sale Deed in terms of the agreement of
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sale dated 20.01.2010 (Ex.P7), the substantial question of law
framed above favours the plaintiff and accordingly, the appeal
is dismissed on merits as the defendant / appellant has not
made out a case for interference with the finding of fact
recorded by both the Courts below.
SD/-
(E.S.INDIRESH)
JUDGE
sac
