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Karnataka High Court
Basavanneppa S/O Mahadevappa ... vs Subhas S/O Shivaji Jadhav on 18 December, 2025
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RSA No. 5398 of 2011
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 18TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.5398 OF 2011 (SP)
BETWEEN:
SRI. BASAVANNEPPA
S/O. MAHADEVAPPA GUMMAGOLA,
AGE: 69 YEARS, OCC: PENSIONER,
R/O. HULAKOPPA, TQ. KALGHATAGI,
DIST. DHARWAD-580001.
...APPELLANT
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
1. SUBHAS S/O. SHIVAJI JADHAV,
AGE: 56 YEARS, OCC. AGRICULTURE,
R/O. HULAKOPPA, TQ. KALGHATAGI,
DIST. DHARWAD-580001.
Digitally
signed by 2. MANJUNATH S/O. HANAMANTAPPA JADHAV,
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
AGE: 43 YEARS, OCC. AGRICULTURE,
2025.12.19
12:12:36
R/O. HULAKOPPA, TQ. KALGHATAGI,
+0530
DIST. DHARWAD-580001.
...RESPONDENTS
(BY SRI. K.L. PATIL, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 28.01.2011 IN
R.A.NO.93/2007 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE,
DHARWAD, ITERINARY COURT AT KALGHATAGI, REVERSING THE
JUDGMENT AND DECREE DATED 20.08.2007 IN O.S.NO.73/2005 ON
THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC, KALGHATAGI, IN
THE INTEREST OF JUSTICE AND EQUITY.
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RSA No. 5398 of 2011
HC-KAR
THIS RSA APPEAL HAVING BEEN HEARD AND RESERVED
ON 03.12.2025, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, COURT DELIVERED THE FOLLOWING:
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Being aggrieved by the judgment of the First Appellate
Court in R.A.No.93/2007, whereby the judgment of the Trial
Court in O.S.No.73/2005 was partially modified, the plaintiff is
before this Court in appeal.
2. The factual aspect that is necessary for the purpose
of this appeal is as below:
a. The plaintiff and the defendants are hailing from the
same village i.e., Hulkoppa of Kalghatagi Taluk. The plaint avers
that the defendants were in need of money for payment of their
family debts and therefore, they offered to sell the suit schedule
property, for which the plaintiff made an offer for Rs.35,000/-.
The defendants found that the said offer was highest and
therefore, they agreed to sell the suit schedule property to the
plaintiff for a consideration of Rs.35,000/-. Out of the said
amount, a sum of Rs.30,000/- was paid by the plaintiff to the
defendants on 02.05.1996 and an agreement was executed on
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the same day. In the said agreement, it was stated that the
defendants would execute the sale deed as and when the plaintiff
would call them for such execution, after receiving the sum of
Rs.5,000/- which was in balance. It was also agreed that the
possession of the property has to be handed over to the plaintiff
at the time of the execution of the registered sale deed.
b. Thereafter, the plaintiff had kept the balance sale
consideration ready and on several occasions, requested the
defendants to execute the sale deed. However, the defendants
went on postponing on one or the other pretext and even the
efforts by the elders did not yield any result. It was stated that
the plaintiff was always ready and willing to perform his part of
contract and he had kept the balance sale consideration ready.
c. It is alleged that the defendant in order to defraud the
plaintiff, were trying to sell the suit schedule property to third
parties and therefore, the plaintiff issued a legal notice to the
defendants on 27.06.2005 and called upon the defendants to
execute the sale deed within seven days by receiving the balance
sale consideration amount. Since, the defendants did not give
any reply, the plaintiff was constrained to file the suit seeking
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specific performance of the contract of agreement of sale. The
plaintiff prayed that the defendants be directed to execute the
sale deed as per the agreement and for any reason if the Court
comes to the conclusion that the plaintiff is not entitled for the
specific performance, then the plaintiff be awarded the refund of
the amount along with damages and interest.
3. The suit schedule property is described to be the
house property bearing VPC No.64, present No.94 situated in
ward No.1 of Hulkoppa village.
4. On service of summons, the defendants appeared
before the Court and defendant No.1 filed the written statement.
The defendant No.1 denied the plaint averments and set up the
contentions as below:
a. The allegations of the plaintiff that the defendants
were in need of money for settlement of family debts is not
correct. They also denied the facts that the agreement of sale
executed between the plaintiff and the defendants and that the
defendants had went on postponing the execution of the sale
deed.
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b. The defendants contended that in the year 1996, the
defendant No.1 was in need of money and therefore, when he
requested the plaintiff, a sum of Rs.9,000/- was paid by the
plaintiff to the defendant as a loan. As a security to the said
loan, the plaintiff got the signatures of the defendants. The
defendant No.1 had paid a sum of Rs.9,000/- to the son of the
plaintiff i.e., Maliikarjun on 24.06.1998 and the said Mallikarjun
has issued a receipt regarding the same. When the defendant
demanded the return of the blank stamp paper signed by him,
the said Mallikarjun had assured that he would inform his father
to tear off the signed stamp papers. It is contended that the
defendants are living happily and out of jealousy, the plaintiff
has misused the signed stamp papers and has concocted a false
agreement of sale and has filed this suit. The written statement
also states that the defendants do not have any other house
property and therefore, defendants selling the suit property to
anybody else do not arise. For these reasons, the defendants
contended that the suit be dismissed with compensatory costs of
Rs.2,000/-.
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5. On the basis of the above pleadings, the following
issues were framed by the Trial Court:
ISSUES
1. Whether the plaintiff proves that the defendants
have duly executed the agreement dated
02.05.1996?
2. Whether the plaintiff further proves that he is
ready and willing to perform his part of the
contract?
3. Whether the defendants proves that the suit is
barred by limitation?
4. Whether the Court has pecuniary jurisdiction to
try the suit?
5. Whether the plaintiff is entitles for the suit
relief?
6. What order or decree?
6. The Trial Court recorded the testimonies of the
plaintiff as PW1 and two witnesses as PW2 and PW3. Exs.P1 to
P17 were marked in evidence. The defendant No.1 was examined
as DW1 and one witness was examined as DW2. Ex.D1 was
marked on behalf of the defendants.
7. After hearing the arguments by both the sides, the
Trial Court answered issue No.1, 2, 4 and 5 in the 'affirmative',
issue No.3 in the 'negative' and decreed the suit directing the
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defendants to execute the sale deed in respect of the suit
schedule property in favour of the plaintiff by receiving a sum of
Rs.5,000/-.
8. Being aggrieved, the defendants approached the First
Appellate Court in R.A.No.93/2007.
9. After hearing the arguments by both the sides, the
First Appellate Court held that the Trial Court had not exercised
the discretion in a proper manner and therefore, it held that the
agreement has been proved and it was for specific performance
of the contract. It further held that the defendants had no other
house property to reside and therefore, the Trial Court had not
exercised judicial discretion in a proper way and as such, it
interfered with the judgment of the Trial Court directing the
refund of the sum of Rs.30,000/- along with interest at 6% per
annum from the date of suit till realisation.
10. Being aggrieved, the plaintiff is before this Court in
second appeal.
11. This Court while admitting the appeal has framed
following substantial question of law on 01.03.2017:
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"Whether the Lower Appellate Court is right in
holding that the discretionary power exercised by
the trial Court is not in terms of principles of undue
hardship or advantage to the plaintiff as per Sec.20
of the Specific Relief Act?"
12. Heard the arguments by learned counsel Sri. Chetan
Munnoli appearing for the appellant and the arguments of the
learned counsel Sri. K.L. Patil for the respondents.
13. The learned counsel appearing for the
appellant/plaintiff submits that the contention of the defendant
that the agreement was a security for the loan was ignored by
the First Appellate Court. When the agreement is held to be
proved, there was no other option than to decree the suit. He
submits that when there is an agreement to sell the suit
schedule property, the terms of the agreement have to be
adhered to. The evidence does not show any circumstance which
entitles the defendant to exercise discretion in their favour.
There was no reason for the First Appellate Court to interfere
with the judgment of the Trial Court when the agreement is held
to be proved and the contention of the defendant that it was a
money transaction was not acceptable. Therefore, it is contended
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that the exercise of the discretion by the First Appellate Court is
erroneous.
14. Per contra, learned counsel appearing for the
respondents submits that the evidence on record clearly show
that the defendants do not have any property to reside except
the suit schedule property. This aspect is stated by them in the
written statement also. The evidence of the defendants shows
this aspect. The cross-examination of the plaintiff and his
witnesses show that the defendants have landed properties,
there is no evidence to show that they have any alternate
residential premises to stay. Therefore, it is contended that the
discretion exercised by the First Appellate Court in favour of the
defendants is to be sustained. Hence, they have sought for
dismissal of the appeal.
15. It is pertinent to note that under Section 20 of the
Specific Relief Act, even though the plaintiff is entitled for a
decree for specific performance, it is a discretionary remedy.
Such discretionary remedy has to be exercised in a judicious
manner. The discretion is circumscribed by the judicially
acceptable principles. The mitigating circumstances and hardship
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are to be balanced by the Court while exercising the
discretionary jurisdiction. Now, the exercise of such discretion by
the Trial Court as well as the First Appellate Court needs to be
considered. It may be noted that the Trial Court as well as the
First Appellate Court have come to the conclusion that the
agreement between the plaintiff and the defendants has been
proved. Both the Courts below have also given a categorical
finding that though the defendant contends that it was a
transaction of loan, even though there is an alleged repayment
of Rs.9,000/- by the defendant, such contention of the defendant
is not proved. The Ex.D1, which is the receipt, stated to be
issued by the son of the plaintiff is not accepted by both the
Courts to be pertaining to the suit transaction. This aspect
cannot be gone into, since, it is a concurrent question of fact
determined by the Courts below.
16. As noted supra, the averment of the plaint shows
that the defendants were in need of money and therefore, the
plaintiff was approached by the defendants offering these suit
schedule property. The plaintiff contend that a sum of
Rs.30,000/- was paid by him and an agreement of sale was
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entered into between the parties. It is also worth to note that the
written statement of the defendant in paragraph No.4
categorically states that the defendants do not have any other
residential house except the suit schedule property and
therefore, they selling the suit schedule property to somebody
else do not arise. This contention in the written statement
becomes the foundation for considering the discretion to be
exercised by the Court.
17. In paragraph No.11 of the judgment of the First
Appellate Court, it is observed that the repayment of Rs.9,000/-
by the defendants to the plaintiff is not established and the one
depicted in Ex.D1 appears to be in respect of some other
transaction. Moreover, the Ex.D1 was held to be not proved.
After coming to such conclusion, the First Appellate Court
observes that PW1 had stated that the defendant has properties
in Hulkoppa village. On a perusal of the entire deposition of PW1,
it appears that there is an error in recording the cross-
examination. The suggestions to PW2 and PW3 have been
extracted by the First Appellate Court in its judgment and there
is a suggestion to PW2 and PW3 that defendant do not have any
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other property than the suit schedule property at Hulkoppa
village. The elicitation from PW2 and PW3 that the defendants do
not have any house property at Hulkoppa village gains
importance in view of the pleadings that may be found in the
written statement. The say of PW1 that the defendants do not
have any property in Hulkoppa, cannot be accepted to be a
suggestion made to him by the defendants.
18. The First Appellate Court also observes that the
agreement at Ex.P3 clearly states that the possession has not
been handed over to the plaintiff. This reiterates the contention
of the defendants that they do not have any other property than
the suit schedule property at Hulkoppa.
19. On the other hand, it is not the contention of the
plaintiff that he does not have any other property than the suit
schedule property at Hulkoppa.
20. The First Appellate Court also observes that though
the plaintiff had stated that he was always ready and willing to
perform his part of the contract, he had not placed any other
material than his oral testimony. The details as to when the
plaintiff had demanded execution of the sale deed were not
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brought on record. The First Appellate Court also takes a view
that due to lapse of more than ten years from the date of the
agreement, there is huge increase in the value of the property.
Therefore, it holds that direction to execute the sale deed would
cause undue hardship to the defendants, particularly when the
defendants are staying in the suit schedule property.
21. The First Appellate Court also relies on the judgment
in the case of Suresh Narayan Gulawani and Others V/s.
Smt. Vimalabai1, where the factors which need to be
considered while exercising the judicial discretion has been laid
down. It also relies on another judgment in the case of S. Abdul
Khader V/s. Abdul Wajid and Others2, where again, the
scope and ambit of Section 20 and 21 of the Specific Relief Act,
1963 were considered.
22. When we examine the above reasoning by the First
Appellate Court, it is evident that it had considered all the
circumstances that were available in the present case. A perusal
of the judgment of the Trial Court shows that there is nothing
ILR 2005, Karnataka 3555
(2008) 9 SCC 522
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mentioned as to why it is exercising the discretion in favour of
the plaintiff. Though the Trial Court considers all the issues which
were raised, it do not consider as to why the discretion has to be
exercised in terms of Section 20 of the Specific Relief Act in
favour of the plaintiff. The reasons as to why discretion has to be
exercised in favour of the plaintiff was essential for a decree for
specific performance to sustain. Under these circumstances, it is
not possible for this Court to hold that the Trial Court had
considered the circumstances which require exercise of the
discretion in favour of the plaintiff.
23. In view of the above, the First Appellate Court was
justified in holding that the discretion exercised by the Trial
Court is not in terms of the principles of undue hardship or
advantage to the plaintiff as per Section 20 of the Specific Relief
Act. Consequently, the substantial question of law is held in the
'affirmative'.
24. As a result of the above, the appeal is unmerited and
hence the following:
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ORDER
i. The appeal is dismissed.
ii. The judgment and decree passed by the First
Appellate Court directing the refund of the sum of
Rs.30,000/- along with interest at the rate of 6%
per annum is hereby confirmed.
iii. Until the decree is satisfied, there shall be charge
over the suit schedule property.
SD/-
(C M JOSHI)
JUDGE
RKM
CT:PA
List No.: 1 Sl No.: 56
