Karnataka High Court
Sri S K Revanasiddappa vs Dr Prema Prabhudev on 4 September, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER 2024
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR. JUSTICE C.M.POONACHA
REGULAR FIRST APPEAL NO.297/2007 (SP)
C/W
REGULAR FIRST APPEAL NO.344/2007 (SP)
R.F.A. NO.297/2007
BETWEEN:
1. SRI S.K. REVANASIDDAPPA
S/O SRI SHAMHANNA
SINCE DEAD BY LRS.
1(A). BASAVAMMA
W/O LATE REVANASIDDAPPA
AGED ABOUT 70 YEARS
1(B). BASAVALINGAMMA
D/O LATE REVANASIDDAPPA
AGED ABOUT 52 YEARS
1(C). NALINAKSHI
D/O LATE REVANASIDDAPPA
AGED ABOUT 45 YEARS
1(D). DHANYA KUMARI
D/O LATE REVANASIDDAPPA
AGED ABOUT 43 YEARS
2
ALL ARE RESIDING AT
SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577002.
2. SRI S.R. ESWARAPPA
S/O SRI REVANASIDDAPPA
MAJOR
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577002.
3. SRI S.R. HEMANTHARAJU
S/O SRI REVANASIDDAPPA
MAJOR
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577002.
4. SRI S.R. NAGARAJ
S/O SRI REVANASIDDAPPA
MAJOR
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577002.
... APPELLANTS
(BY SRI. S SREEVATSA SR. ADV. A/W
SRI UDITA RAMESH AND MS. PARVATHY R NAIR, ADVS.
FOR (A1(B-D), A2-14 AND THE SAME ARE LRS OF A1(A)
V/O 05.09.2023))
AND:
1. DR. PREMA PRABHUDEV
W/O SRI PRABHUDEV
MAJOR
R/AT DAVANAGERE-577002.
2. SMT. P.G. KUSUMA
W/O SRI R.G. BASAVARAJ
MAJOR
HOUSEWIFE
R/AT DAVANAGERE-577002.
3
3. SRI G.M. VIRUPAKSHAPPA
S/O MAHESWARAPPA
MAJOR
D.N.384/2, 2ND CROSS
1ST MAIN, K.B. EXTENSION
DAVANAGERE-577002.
4. SMT. HIRIYAMMA
W/O SRI G.R. SHEKHARAPPA
MAJOR
HOUSEWIFE
R/AT DAVANAGERE-577002.
5. SRI V.S. PATIL @ VASANTHAKUMAR S. PATIL
S/O SRI SHIVANAGOWDA PATIL
AGED ABOUT 57 YEARS
BUSINESSMAN
C/O M/S. BYLABASAVA AND CO.,
CHAMARAJAPET
DAVANAGERE-577002.
6. SRI SHANMUKHAPPA S PATIL @ S.S. PATIL
S/O SRI SHIVANAGOWDA PATIL
AGED ABOUT 46 YEARS
BUSINESSMAN
R/AT 12TH CROSS, K.T.J. NAGAR
BYLABASAVA, HADADI ROAD
DAVANAGERE- 577002.
...RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SR. ADV. A/W
SRI RAJATH ARIGA, ADV. FOR
SRI YESHU MISHRA, ADV. FOR R1 TO R4
SRI MADHUSUDHANA RAO, ADV. FOR R5 & R6)
THIS RFA FILED UNDER ORDER 41 RULE SECTION 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.09.2006
PASSED IN O.S NO.61/1998 ON THE FILE OF THE I ADDL. CIVIL
JUDGE (SR.DN.) DAVANGERE, PARTLY DECREEING THE SUIT
FOR DECLARATION AND POSSESSION.
4
R.F.A. NO.344/2007
BETWEEN:
1. MR. V.S. PATIL @ VASANTHAKUMAR S. PATIL
S/O SRI SHIVANAGOWDA PATIL
AGED ABOUT 48 YEARS
BUSINESSMAN
R/AT C/O BYLABASAVA AND CO.,
CHAMARAJAPET
DAVANAGERE-577001.
2. MR. SHANMUKHAPPA S PATIL @ S.S. PATIL
S/O SRI SHIVANAGOWDA PATIL
AGED ABOUT 37 YEARS
R/AT 12TH CROSS, K.T.J. NAGAR
BYLA BASAVA, HADADI ROAD
DAVANAGERE- 577001.
.... APPELLANTS
(BY SRI A MADHUSUDHANA RAO, ADV.)
AND:
1. DR. PREMA PRABHUDEV
W/O SRI PRABHUDEV
MAJOR
R/AT D.NO.384/2, 2ND CROSS
1ST MAIN, K.B. EXTENSION
DAVANAGERE-577002.
2. SMT. P.G. KUSUMA
W/O SRI R.G. BASAVARAJ
MAJOR
R/AT D.NO.384/2, 2ND CROSS
1ST MAIN, K.B. EXTENSION
DAVANAGERE-577001.
3. SRI G.M. VIRUPAKSHAPPA
S/O MAHESWARAPPA
MAJOR
D.N.384/2, 2ND CROSS
5
1ST MAIN, K.B. EXTENSION
DAVANAGERE-577001.
4. SMT. HIRIYAMMA
W/O SRI G.R. SHEKHARAPPA
SINCE DEAD BY HER LRS.
4(A). SRI POORNA CHANDRA TEJASWI
MAJOR
S/O G.R. SHEKHARAPPA
4(B). KAVITHA
MAJOR
D/O G.R. SHEKHARAPPA
BOTH ARE R/AT DOOR.NO.384/2
2ND CROSS, 1ST MAIN
K.B. EXTENSION
DAVANAGERE.
5. SRI S.K. REVANASIDDAPPA
SINCE DEAD BY LRS.
5(A). BASAVAMMA
W/O LATE REVANASIDDAPPA
AGED ABOUT 70 YEARS
SINCE DEAD BY HER LRS.
5(B). BASAVALINGAMMA
D/O LATE REVANASIDDAPPA
AGED ABOUT 53 YEARS
5(C). SMT. NALINAKSHI
D/O LATE REVANASIDDAPPA
AGED ABOUT 45 YEARS
5(D). SMT. DHANYA KUMARI
D/O LATE REVANASIDDAPPA
AGED ABOUT 43 YEARS
RESPONDENTS 1 TO 4 ARE RESIDING AT
SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577001.
6
6. SRI S.R. ESWARAPPA
S/O SRI REVANASIDDAPPA
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577001.
7. SRI S.R. HEMANTHARAJU
S/O SRI REVANASIDDAPPA
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577001.
8. SRI S.R. NAGARAJ
S/O SRI REVANASIDDAPPA
AGRICULTURIST
R/AT SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-577001
...RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SR. ADV. A/W
SRI RAJATH ARIGA, ADV. FOR
SRI YESHU MISHRA, ADV. FOR R1 TO R4 (A & )
SRI S SREEVATSA, SR. ADV. A/W
SRI UDITA RAMESH, ADV. FOR R5 (B, C, D),
R6-8 AND THE SAME ARE LRS OF R5 (A) V/O
DATED 05.09.2023)
THIS RFA FILED UNDER ORDER 41 RULE SECTION 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.09.2006
PASSED IN O.S NO.61/1998 ON THE FILE OF THE I ADDL. CIVIL
JUDGE (SR.DN.) DAVANGERE, PARTLY DECREEING THE SUIT
FOR DECLARATION AND POSSESSION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.08.2024 COMING ON THIS DAY,
S.G.PANDIT J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
AND
HON'BLE MR JUSTICE C.M. POONACHA
7
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT)
The above appeals are directed against the
judgment and decree dated 30.09.2006 in
O.S.No.61/1998 on the file of I Additional Senior Civil
Judge (Sr.Dn.), Davanagere (for short, 'Trial Court')
whereby respondent Nos.1 to 4/plaintiffs' suit for
specific performance is allowed, directing the
appellants and respondent Nos.5 and 6 to execute
registered sale deed in favour of the plaintiffs in
respect of the 'A' suit schedule land.
2. RFA.No.297/2007 is by defendant Nos.1
to 4 who are said to have executed agreement of sale
in favour of plaintiffs, respondents No.1 to 4 herein,
whereas RFA.No.344/2007 is by defendants No.5
and 6 in the suit, purchasers of 10 guntas each, prior
to filing of the suit.
3. The parties to the appeals would be
referred to as they stood before the Trial Court.
Appellants in both the appeals were defendants and
respondents No.1 to 4 herein were plaintiffs before the
Trial Court.
4. Brief facts of the case are that, plaintiffs
filed suit for specific performance praying to direct the
defendants to receive the balance sale consideration
and to execute the sale deed in respect of the 'A'
schedule property in favour of the plaintiffs and
ancillary relief of cancellation of sale deeds dated
23.12.1996 executed by the defendants No.1 to 4 in
favour of the defendants No.5 and 6 in respect of the
'B' schedule property. Plaint averments would indicate
that defendants No.1 to 4, owners of the 'A' schedule
property executed agreement of sale dated
16.10.1992 agreeing to sell 2 acres of land out of 2
acres 28 guntas for a sale consideration of
Rs.5,35,000/- per acre. The plaintiffs paid an advance
of Rs.2,00,000/- on 16.10.1992 on the date of the
agreement which was acknowledged by defendants
No.1 to 4; paid another sum of Rs.1,00,000/- within
six months from 16.10.1992 and also paid another
Rs.70,000/- and Rs.35,000/-, totally Rs.4,05,000/-.
The agreement required the parties to complete the
sale transaction within 20 months. The possession of
the suit schedule property was handed over to the
plaintiffs. Further, it is stated that defendants No.1 to
4 also executed a registered power of attorney in
favour of the third plaintiff on 28.10.1992 authorizing
him to do all acts necessary for the purpose of
conversion of the 'A' schedule property for formation
of sites. Later, plaintiffs found that 'A' schedule
property was kept aside for public purpose i.e., for
park and other public purpose in the CDP and ODP
published by Davanagere Urban Development
Authority (for short "DUDA"). Plaintiffs approached
defendants No.1 to 4, demanded explanation for
suppression of fact of land being reserved for public
purpose. It is stated that to compensate the plaintiffs,
defendants agreed to sell the entire property
measuring 2 acres 28 guntas for the original sale
consideration of Rs.10,70,000/- in all, instead of
Rs.5,35,000/- per acre. The plaintiffs and defendants
No.1 to 4 accordingly entered into a fresh agreement
of sale dated 12.05.1993 wherein defendants No.1 to
4 agreed to sell entire 2 acres 28 guntas for sale
consideration of Rs.10,70,000/-. Further, it was
agreed that plaintiffs shall get the entire land
converted for non-agricultural purpose and after
formation of sites, plaintiffs should give six sites each
measuring 30 X 40 feet to the defendants, free of
cost. The balance sale consideration of Rs.7,00,000/-
was required to be paid by the plaintiffs within 2 years
from the date of the agreement. It is stated that the
Government was taking its own time to take a
decision on the application of plaintiffs for conversion
of land, plaintiffs decided that irrespective of the fact
that permission is granted or not, to use the suit
schedule property for residential purpose. Hence,
plaintiffs who were always ready and willing to
perform their part of the contract approached
defendants No.1 to 4 requesting to receive the
balance sale consideration and to execute the sale
deed, but the defendants No.1 to 4 were avoiding the
plaintiffs. Thereafter, plaintiffs got issued legal notice
to defendants No.1 to 4 who failed to comply with the
issued a paper publication canceling the power of
attorney executed in favour of third plaintiff and also
filed O.S.No.426/1995 to restrain the plaintiffs from
interfering with their peaceful possession and
enjoyment of 'A' schedule property. There was an
order of status quo in the said suit. The defendants
No.1 to 4 executed two sale deeds in respect of 'B'
schedule property in favour of defendants No.5 and 6
respectively on 23.12.1996. The suit was filed on
18.04.1998. The suit property measures 2 acres 28
guntas in Sy.No.197/1 of Shamanur Village,
Davanagere Taluk.
5. Defendant No.1 filed written statement
admitting execution of agreement dated 16.10.1992
and also receiving advance amount of Rs.2,00,000/-
on the date of execution of the agreement, but denied
execution of second agreement dated 12.05.1993.
Further, denied receiving any sale consideration in
pursuance to second agreement dated 12.05.1993.
Defendant No.1 also denied handing over possession
of the suit schedule property to the plaintiffs. Further,
it is averred that the plaintiffs have committed breach
of the terms and conditions of agreement dated
16.10.1992 and in order to bring the said document
within the period of limitation, plaintiffs have resorted
to another agreement purporting to have been
executed by defendants No.1 to 4. Further, defendant
No.1 denied receipt of Rs.4,05,000/-. First defendant
further stated that the suit schedule property is the
ancestral property and to meet dire need for money,
the plaintiffs prevailed over him and succeeded in
getting the first agreement. Further, he admits selling
of 10 guntas of each under registered sale deed dated
23.12.1996 in favour of defendants No.5 and 6. The
first defendant also contended that plaintiffs have not
taken any steps for conversion of land; plaintiffs were
not ready and willing to get the sale deed executed;
and plaintiffs have not proved that they had sufficient
money and their financial capacity to pay the balance
sale consideration and to get the sale deed executed.
6. The defendants No.5 and 6 in their written
statement contended that they are the bonafide
purchasers for valuable consideration and that
they were not aware of the unregistered
agreement entered into between plaintiffs and
defendants No.1 to 4.
7. Based on the pleadings of the parties, the
Trial Court framed as many as 10 issues at the first
instance and two additional issues subsequently on
10.07.2006. The issues framed by the Trial Court are
as follows:
"1. Whether the plaintiffs prove that, on
16.10.1992 defendants 1 to 4 agreed
to sell suit 'A' schedule property and
executed agreement on 16.10.1992
and received an amount of
Rs.2,00,000/-?
2. Whether the plaintiffs further proves
that, on 12.05.1993 under the
changed circumstances the
defendants agreed to sell the entire
suit 'A' schedule property measuring 2
acres 28 guntas for valuable
consideration of Rs.10,70,000/- and
on that day they have received an
amount of Rs.3,70,000/- and
acknowledged to that effect?
3. Whether the plaintiffs further prove
that after the conversion of land for
non agriculture purpose and for
residential purpose six sites are to be
allotted to defendants 1 to 4?
4. Whether the plaintiffs further prove
that defendants violated the terms
and conditions, where as plaintiffs
were all along ready and willing to
perform their part of obligation?
5. Whether the plaintiffs are entitled for
the decree sought?
6. Whether the 1st defendant proves the
contentions of para-10 of the written
statement?
7. Whether 1st defendant proves that
suit is not maintainable for non-
joinder of necessary parties?
8. Whether the suit of the plaintiffs is hit
by Doctrine of estoppel, acquiescence,
delay, latches, misrepresentation and
fraud?
9. Whether the defendants 5 and 6
proves that they are bonafide
purchasers without notice?
10. What decree or order?
Additional Issues framed on 10.07.2006
1. Whether the suit is barred by
limitation?
2. Whether the suit is properly valued
and Court fee paid is sufficient?"
8. Heard learned senior counsel Sri.Seevatsa
for Smt.Udita Ramesh and Smt.Parvathy R. Nair,
learned counsel for the appellants/defendants No.1
to 4 in RFA.No.297/2007, learned counsel
Sri.A.Madhusudhana Rao for appellants/defendant
Nos.5 and 6 in RFA.No.344/2007 and learned senior
counsel Sri.Ashok Haranahalli for Sri.Rajath Ariga,
learned counsel for plaintiffs/respondent Nos.1 to 4.
Perused the entire appeal papers as well as original
Trial Court Records.
9. Learned senior counsel Sri.Sreevatsa for
appellants/defendants No.1 to 4 would submit that the
judgment and decree under challenge is opposed to
the material on record and further he submits that the
Trial Court failed to appreciate the facts by applying
proper proposition of law. It is submitted that
defendants No.1 to 4 admit execution of Ex.P1
agreement dated 16.10.1992 and deny the execution
of agreement dated 12.05.1993. Learned senior
counsel would submit that agreement dated
12.05.1993 is concocted to overcome limitation as the
suit is filed on 18.04.1998 in respect of agreement
dated 16.10.1992. Learned senior counsel would
submit that defendants No.1 to 4 admit having
received Rs.3,70,000/-, but denies handing over
possession to the plaintiffs. It is further submitted that
there is breach of terms and conditions of agreement
dated 16.10.1992 (Ex.P1) by the plaintiffs. Learned
senior counsel would submit that the agreement
required the plaintiffs to take steps for conversion of
land for residential purpose, but the plaintiffs have not
taken any steps for conversion of land. It is submitted
that by order dated 30.10.1995, request for
conversion of land for residential purpose was
rejected, which was suppressed. It is further
submitted that the request for conversion was refused
on the ground that the land is reserved for park and
other public purpose in the CDP. As the plaintiffs failed
to get the conversion of land, the contract got
frustrated. The suit filed on 18.04.1998 to enforce the
agreement dated 16.10.1992 is barred by time and as
such the suit was liable to be dismissed.
10. Learned senior counsel would further
submit that the plaintiffs have paid only Rs.3,70,000/-
in pursuance of Ex.P1 - agreement dated 16.10.1992
and the plaintiffs never came forward to pay the
balance sale consideration and to get the sale deed
executed in their favour. The plaintiffs were not ready
and willing to get the sale deed executed in their
favour and also failed to establish their readiness and
willingness by getting the land converted to get the
sale deed executed. Further, it is submitted that
plaintiffs also failed to establish their financial capacity
to pay the balance sale consideration. No material
whatsoever to establish their financial capacity is
placed on record, except stating that they had cash
with them. Further, learned senior counsel would
submit that Ex.P1 - agreement dated 16.10.1992
required the parties to complete the transaction within
two years, but the plaintiffs have not come forward
within two years to get the land converted and to pay
the balance sale consideration. The plaintiffs have not
taken any steps in that regard and after expiry of two
years for the first time, Ex.P6 - notice dated
08.09.1995 was issued calling upon the defendants to
receive the balance sale consideration and to execute
sale deed.
11. Learned senior counsel referring to Ex.P2 -
alleged agreement dated 12.05.1993 would submit
that the said agreement is concocted; it would not
indicate or no mention about Ex.P1 - agreement
dated 16.10.1992 and the amount received
thereunder. It would also not indicate on what date or
dates, sum of Rs.3,70,000/- is paid. Further, learned
senior counsel would point out that under Ex.P1 -
agreement dated 16.10.1992, defendants agreed to
sell 2 acres of land at Rs.5,35,000/- per acre and for a
total sum of Rs.10,70,000/- however under Ex.P2 -
agreement dated 12.05.1993, the sale consideration is
shown as Rs.10,70,000/- for total extent of land of 2
acres 28 guntas. It is submitted that there is no
reason for the defendants No.1 to 4 to sell more
extent of land for the same price and submits that,
that itself would be sufficient to establish that the said
agreement at Ex.P2 is concocted. Thus, he prays for
allowing the appeal by setting aside the judgment and
decree under appeal.
12. Learned counsel Sri.A.Madhusudhan Rao
for appellants in RFA.No.344/2007 and defendants
No.5 and 6 would submit that they are bonafide
purchasers of 10 guntas of land each out of 2 acres 28
guntas under two separate registered sale deeds
dated 23.12.1996 for valuable consideration. Further,
it is submitted that sale deeds are prior to filing of the
suit, but admits that those sale deeds are subsequent
to Ex.P1 and Ex.P2 - unregistered agreements. It is
submitted that defendants No.5 and 6 bonafide
purchasers were not aware of the alleged unregistered
agreements at Ex.P1 and Ex.P2. It is contended that
no material is placed on record to show that
defendants No.5 and 6 were aware of the agreements
at Ex.P1 and Ex.P2. Learned counsel
Sri.A.Madhusudjan Rao referring to evidence on
record would submit that the plaintiffs have not
established their readiness and willingness to get the
sale deed executed by paying balance of sale
consideration. As such, he request for allowing the
appeal.
13. Per contra, learned senior counsel
Sri.Ashok Haranahalli for plaintiffs/respondents No.1
to 4 supports the impugned judgment and decree and
submits that the plaintiffs have proved Ex.P1 and
Ex.P2 agreements of sale executed by defendants
No.1 to 4, as such he submits that the Trial Court is
justified in decreeing the suit. Learned senior counsel
would submit that the defendants No.1 to 4 would not
dispute execution of agreement at Ex.P1 and the
dispute is only with regard to Ex.P2 agreement dated
12.05.1993 which according to learned senior counsel,
plaintiffs have successfully proved. Learned senior
counsel referring to Ex.P1 and Ex.P2 would submit
that the signatures on those documents are not
disputed and PW.4 - typist and PW.2 - Commissioner
of DUDA support the case of the plaintiffs. Further,
learned senior counsel would submit that the amount
mentioned in Ex.P2 tallies with the amount mentioned
in Ex.P1. Further, learned senior counsel would submit
that the request of the plaintiffs for conversion is not
rejected and on the other hand, the request of
plaintiffs for conversion was recommended for change
of land use and the file was forwarded to the Director
of Town Planning. Therefore, he submits that it cannot
be said that the plaintiffs have not taken any steps for
conversion of land. Learned senior counsel would refer
to Ex.P6 - legal notice dated 08.09.1995 and would
submit that to the said legal notice, no reply is issued
and the defendants have not come forwarded to
execute the sale deed. Further, learned senior counsel
would submit that the suit is filed within three years
from thereafter and the suit filed is within the period
of limitation. Learned senior counsel invites attention
of this Court to cause of action stated at paragraph 9
of the plaint and submits that when the defendants
No.1 to 4 refused to comply the demand made under
notice dated 06.09.1995 and when the defendants
No.1 to 4 executed sale deed dated 23.12.1996 in
favour of defendants No.5 and 6, the cause of action
to file the suit arose. Further, he submits that time is
not the essence of the contract and time starts from
the date of refusal. Moreover, he submits that the sale
deed dated 23.12.1996 in favour of defendants No.5
and 6 is executed at Rs.40,000/- for 10 guntas, which
is far less than the market value and the price agreed
under Ex.P1 and Ex.P2 agreements. Therefore, he
submits that those sale deeds are executed only to
frustrate the agreement which was executed in favour
of the plaintiffs. The plaintiffs were always ready and
willing to pay the balance sale consideration and to
get the sale deed executed in their favour. Further,
referring to evidence of PW1 learned senior counsel
would submit that PW1 has made it clear that they
had cash with them and they had requested
defendants No.1 to 4 to receive the balance sale
consideration and to get the sale deed executed in
their favour. Thus, learned senior counsel would pray
for dismissal of the appeals.
14. On hearing the learned counsel appearing
for the parties and on perusal of the Trial Court
Records, the following points would arise for our
consideration:
1) Whether the plaintiffs have proved
Ex.P1 and Ex.P2 agreements dated
16.10.1992 and 12.05.1993?
2) Whether the plaintiffs have proved
their readiness and willingness to get
the sale deed executed in their favour?
3) Whether the impugned judgment and
decree requires interference?
15. Answer to point Nos.1 and 3 would be in
the Affirmative and point No.2 would be in the
Negative for the following reasons:
16. It is the case of the plaintiffs that the
defendants No.1 to 4 executed an agreement dated
16.10.1992, agreeing to sell 2 acres out of 2 acres 28
guntas of 'A' schedule property for a sale
consideration of Rs.5,35,000/- per acre by accepting
the advance amount of Rs.2,00,000/- on the date of
agreement. Further, the plaintiffs state that due to
compelling circumstances, defendants No.1 to 4
executed another agreement dated 12.05.1993,
agreeing to sell entire 2 acres 28 guntas of land for
total consideration of Rs.10,70,000/-. In the written
statement of defendant No.1, defendant No.1 admits
execution of agreement dated 16.10.1992 (Ex.P1) by
accepting a sum of Rs.2,00,000/- as advance, but
denies handing over possession to the defendants.
Under Ex.P1 agreement dated 16.10.1992, defendants
No.1 to 4 had also agreed to execute General Power of
Attorney for the purpose of getting the land converted
for non-agricultural purpose in respect of the entire
land measuring 2 acres 28 guntas and also to take
permission from the Urban Development Authority
and Mandal Panchayath. Accordingly, Ex.P19 -
General Power of Attorney was executed by
defendants No.1 to 4 in favour of third plaintiff. There
is no dispute with regard to execution of Ex.P19 -
General Power of Attorney. The Trial Court has rightly
held issue No.1 with regard to execution of agreement
dated 16.10.1992 in the affirmative and has rightly
come to the conclusion that defendants No.1 to 4
executed agreement dated 16.10.1992 on receiving
Rs.2,00,000/- on the said date. Though, defendants
No.1 to 4 deny the execution of Ex.P2-agreement
dated 12.05.1993, they have failed to establish non-
execution of agreement dated 12.05.1993. On the
other hand, plaintiffs have succeeded in establishing
execution of agreement dated 12.05.1993. The case
of the defendants No.1 to 4 is that Ex.P2 -
agreement dated 12.05.1993 is concocted and
fraudulent one, but there is no dispute with regard to
the signatures on Ex.P2. PW1 - third plaintiff has
denied the suggestion of defendants that the
document is created one and further DW1 in his
evidence has denied the execution of agreement. But,
the evidence of other witnesses would support the
case of the plaintiffs. PW4 - Hatheem Thaj is the
Typist who typed Ex.P2 and he has identified the said
document and stated that he has typed the said
document. He also states that Revanasiddappa -
defendant No.1 instructed him to type the said
document. In his cross-examination, he has denied
the suggestion that he was not working as Typist in
his Typing shop. PW5 - A.Theerthappa, brother-in-law
of first defendant is the witness to both Ex.P1 and
Ex.P2. With regard to Ex.P2, PW5 states that in
addition to agreement dated 16.10.1992 (EX.P1),
defendants No.1 to 4 executed one more agreement
dated 12.05.1993. Further, he states that at the time
of discussion with regard to Ex.P2 agreement, he was
present and he has signed the said agreement as
witness. Ex.P1 contains endorsement for having
received a sum of Rs.50,000/- on 27.04.1993 and also
a sum of Rs.45,000/- on 04.05.1993 and the
endorsement contains the signatures of defendant
No.1 - Revanasiddappa, defendant No.2 - Eswarappa
and defendant N.4 - Nagaraj. Those signatures are
not denied and not disputed. Therefore, it cannot be
said that defendant Nos.1 to 4 have not executed
Ex.P2 - agreement dated 12.05.1993. Under Ex.P2,
total consideration is mentioned as Rs.10,70,000/-
and it also states that defendants have received a sum
of Rs.3,70,000/- as advance and balance sum of
Rs.7,00,000/- is to be paid within two years from the
date of the agreement. From the material on record, it
is seen that defendants have received a total sum of
Rs.4,05,000/- i.e., a sum of Rs.2,00,000/- as on the
date of execution of agreement dated 16.10.1992,
Rs.1,00,000/- within six months from 16.10.1992 and
also another sum of Rs.70,000/- and Rs.35,000/-.
Therefore, in the light of the above discussion, point
No.1 is held in the Affirmative.
17. Point No.2 is with regard to readiness and
willingness of the plaintiffs to get the sale deed
executed in their favour. Trial Court has come to the
conclusion that plaintiffs have proved that they were
always ready and willing to perform their part of the
obligation to get the registered sale deed from
defendants No.1 to 4.
18. In a suit for specific performance, the
burden is always on the plaintiffs to aver and prove
that they were ready and willing to perform their part
of the contract throughout, by placing on record the
acceptable evidence. The specific performance cannot
be enforced in favour of a person, who fails to prove
that he has performed or was always ready and willing
to perform terms of contract. Even in the absence of
defense put forth, the plaintiff is required to prove his
readiness and willingness to perform his part of the
contract. It is also incumbent upon the plaintiff to
prove his financial capacity i.e., to garner balance sale
consideration for payment on the agreed date and
when the demand notice was issued or on the date of
filing the suit. Even if the plaintiff has failed to
establish possessing the balance sale consideration
throughout, it would be sufficient that, if he
establishes his capacity to generate the finance or
balance sale consideration when demanded.
19. In the case on hand, on careful scrutiny of
the material on record and on appreciating the
contentions of the parties, we are of the opinion that
plaintiffs have utterly failed to prove their readiness
and willingness to perform their part of the contract
and to get the sale deed registered in their favour.
Ex.P1 is the agreement dated 16.10.1992 and in
terms of the said agreement, defendants No.1 to 4
executed General Power of Attorney in favour of
plaintiff No.3 on 28.10.1992 (EX.P19) so as to enable
the plaintiffs to get the suit land converted for non-
agricultural/residential purpose and also to get
conversion from Urban Development Authority.
Plaintiffs also ought to have obtained permission from
Mandal Panchayath with regard to door numbers by
forming sites in respect of the entire extent of 2 acres
28 guntas of land. Under Ex.P2 agreement dated
12.05.1993, on formation of sites, plaintiffs were
required to hand over six sites measuring 30 X 40 feet
each, free of cost to the defendants. It was also
agreed that if the conversion is not permitted, except
six sites area, defendants agreed to register the
balance land in favour of the plaintiffs. Therefore,
there was an obligation on the plaintiffs to get the
land converted from agricultural to non-agricultural
purpose and also to get the land released from the
land use prescribed under the CDP.
20. The plaintiffs examined P.W.2-K.G.Thimma
Reddy; an official from the Town Planning Department
and P.W.3-A.R.Ujjinappa, Secretary of Panahcyat.
P.W.2 was working as Commissioner, DUDA and in his
evidence, he has made it clear that 2 acres 28 guntas
of land in Sy.No.197/1 of Shamanur village was
earmarked for park in the CDP (Ex.P20(A)). Further,
he stated that, on behalf of defendant No.1-
Revanasiddappa, GPA holder had submitted an
application dated 25.12.1993 seeking conversion of
land from park to residential purpose. He further
deposed that the said application was considered and
resolution was passed and forwarded to the
Government for taking a decision, as the Government
is the appropriate authority to change of land use
under CDP. In his cross-examination, he had
admitted that on 31.10.1995, an endorsement was
issued to the GPA holder of defendant No.1 stating
that it would not be possible to convert the land which
is earmarked for park to residential purpose. From
the evidence of P.W.2 it is clear that as on the date of
filing the suit, as required under Ex.P1 and Ex.P2, the
land was not got converted for residential purpose and
the plaintiffs had failed in their obligation to get the
land converted from the competent authorities.
Therefore, it cannot be said that the plaintiffs were
ready and willing to perform their part of the contract.
21. In terms of Ex.P2, the plaintiffs were
required to pay balance sale consideration of
Rs.7,00,000/- and at paragraph 7 of the plaint, the
plaintiffs have averred that they were ready and
willing to perform their remaining part of the contract,
by getting the sale deed executed in their favour by
paying balance sale consideration.
22. P.W.1 in his evidence has stated that
before expiry of 24 months, they requested the
defendants to receive the balance sale consideration
and to execute the sale deed, but has admitted that
before expiry of 24 months, no notice was issued.
P.W.1 has also admitted in his cross-examination that
there is no document to prove that they had
possessed Rs.7,70,000/-. No material or evidence is
placed on record to establish the plaintiffs financial
capacity or to establish that they had possessed
balance sale consideration throughout from the date
of execution of Ex.P1 and Ex.P2 till the conclusion of
the suit. It is settled position of law that the plaintiffs
need not show that they had cash or amount in their
hand, but at least it is for them to establish their
financial capacity to garner or generate the balance
sale consideration when demanded. In the instant
case, there is no evidence or materials to establish
their financial capacity or to establish that they had
balance sale consideration throughout.
23. Ex.P2/agreement dated 12.05.1993 states
that balance sale consideration of Rs.7,00,000/- to be
paid within two years and to get the sale deed
registered in their favour. Ex.P6/legal notice is dated
08.09.1995 wherein the defendants were called upon
to receive the balance sale consideration of
Rs.7,00,000/- and to execute the sale deed. The said
notice is subsequent to 24 months from the date of
Ex.P2. Therefore, it would also suggest that plaintiffs
were not eager to get the sale deed executed by
paying balance sale consideration.
24. Insofar as the contention of the appellants
in RFA No.344/2007, it is to be noted that the sale
deeds in favour of purchasers i.e., defendants No.5
and 6 are executed by defendants No.1 to 4 on
23.12.1996 to an extent of 10 guntas each. The
contentions of defendants No.5 and 6 need not be
gone into, since we have come to the conclusion that
plaintiffs have not established their readiness and
willingness to perform their part of contract.
25. Learned senior counsel for the
appellants/defendants No.1 to 4 also contended that
the suit filed on 18.04.1988 is barred by limitation,
but we are unable to agree with the said contention.
Ex.P2 - agreement is dated 12.05.1993. The plaintiffs
had time up to two years to pay the balance amount
and to get the sale deed executed which would be up
to May, 1995. Thereafter, notice at Ex.P-14 dated
08.09.1995 is issued to the defendants calling upon
them to receive the balance sale consideration and to
execute the sale deed. In the meanwhile, defendants
under registered sale deed dated 23.12.1996.
Thereafter, the suit is filed on 18.04.1998, which is
within three years from the date of cause of action. It
is well settled position of law that the cause of action
is a bundle of facts. Taking note of the above factual
position, it can be safely said that suit filed on
18.04.1998 is not barred by limitation, as contended.
26. Learned senior counsel Sri.Ashok
Haranahalli for respondents/plaintiffs placed reliance
on the decision of Honb'le Apex Court in PRAKASH
CHANDRA VS. ANGADLAL AND OTHERS1 to contend
that ordinarily specific performance shall be granted;
decision in the case of ZARINA SIDDIQUI VS.
A.RAMALINGAM ALIAS R. AMARNATHAN2 to
contend that the equitable discretion to grant or not to
grant a relief for specific performance also depends
upon the conduct of the parties and if the defendants
do not come with clean hands and suppressed
material facts and evidence and misleads the Court,
then such discretion should not be granted by refusing
to grant specific performance. The decisions or
precedents shall be applied depending on the facts of
each case. The principles laid down by Honb'le Apex
Court particularly in the matter of suit for specific
performance would mainly depend on facts of each
case, wherein the parties have to prove the
AIR 1979 SC 1241
(2015) 1 SCC 705
agreement and mainly it is for the parties to establish
or prove their readiness and willingness by producing
cogent material evidence on record. The material
evidence on record would decide the issues. It is true
that, ordinarily if the above stated principles are
established, normally specific performance should not
be refused. But, if the parties failed to establish any
one of the above stated principles in a suit for specific
performance, the parties would not be entitled for
specific performance. Only on the ground that
defendants have not come to the Court with clean
hands and have suppressed the material facts and
evidence, the suit cannot be decreed in favour of the
plaintiffs. As held by the Honb'le Apex Court, even in
the absence of defence with regard to readiness and
willingness to perform his part of contract, it is for the
plaintiff to aver and prove his readiness and
willingness (SUKHWINDER SINGH V. JAGROOP
SINGH AND ANOTHER3).
27. For the reasons recorded above, both the
appeals are allowed. Judgment and decree dated
30.09.2006 in O.S.No.61/1998 on the file of I
Additional Senior Civil Judge (Sr.Dn.), Davanagere is
set aside.
SD/-
(S.G.PANDIT)
JUDGE
SD/-
(C.M. POONACHA)
JUDGE
NC/MPK
CT: bms
(2021) 20 SCC 245
(2023) 3 SCC 714
