Karnataka High Court
Basagouda S/O Paragouda Patil vs Yamanappa S/O Lakkappa Mudalagi on 13 January, 2025
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RSA No. 100591 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100591 OF 2022 (SP-)
BETWEEN:
BASAGOUDA
S/O. PARAGOUDA PATIL,
AGE. 54 YEARS, OCC. AGRICULTURE,
R/O. SAVASUDDI- 591235,
TQ. RAIBAG,
DIST. BELAGAVI.
...APPELLANT
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
YAMANAPPA
S/O. LAKKAPPA MUDALAGI,
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O. SAVASUDDI-591235,
TQ: RAIBAG,
DIST: BELAGAVI.
MANJANNA
E
...RESPONDENTS
(BY SRI. CHETAN MUNNOLI AND SMT. SURABHI KULKARNI,
Digitally signed
by MANJANNA
ADVOCATES)
E
Date:
2025.01.24 THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
13:11:54 +0530
SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.04/2019 DATED
30.11.2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC.,
RAIBAG AND ALSO SET ASIDE THE JUDGMENT AND DECREE PASSED
IN O.SNO.662/2011 DATED 23.01.2019 PASSED BY THE
ADDITIONAL CIVIL JUDGE AND JMFC., RAIBAG AND DISMISS THE
SUIT BEARING O.S.NO.662/2011 IN ITS ENTIRETY, IN THE
INTEREST OF JUSTICE AND EQUITY.
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NC: 2025:KHC-D:575
RSA No. 100591 of 2022
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the defendant
challenging the judgment and decree dated 30.11.2021 in
R.A.No.4/2019 on the file of the Senior Civil Judge and
JMFC at Raibag1 dismissing the appeal and confirming the
judgment and decree dated 23.01.2019 in
O.S.No.662/2011 on the file of the Additional Civil Judge
and JMFC at Raibag2 decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case of the plaintiff that the defendant
was the owner in possession of the suit schedule property
and has agreed to sell the suit schedule property as per
the agreement of sale dated 05.11.2008 for a sum of
Rs.4,00,000/- and in this regard received advance of
hereinafter referred to as 'First Appellate Court'
hereinafter referred to as 'Trial Court'
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Rs.3,44,000/- with an understanding to repay the balance
of Rs.56,000/- at the time of execution of the registered
sale deed. It is also stated in the plaint that, the time
stipulated to register the sale deed was on or before
05.11.2011. Since the defendant, prolonged for execution
of the registered sale deed and as such the plaintiff has
caused legal notice dated 18.10.2011 calling upon the
defendant to execute the registered sale deed in respect of
the suit schedule property by receiving balance
consideration of Rs.56,000/-. Since the defendant, failed
to give reply and as such the plaintiff has filed
O.S.No.662/2011 on the file of the Trial Court seeking
relief of specific performance of the agreement dated
05.11.2008.
4. On service of notice, the defendant entered
appearance and filed detailed written statement and took
up a contention that the said agreement is a security deed
for hand loan of Rs.2,00,000/- at the rate of interest at
2% p.m. It is also stated in the written statement that, the
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said agreement is in consonance with the time stipulated
to complete the entered transaction by 05.11.2011 and
accordingly sought for dismissal of the suit.
5. The Trial Court after considering the pleadings
on record has formulated issues for its consideration. In
order to establish their case, the plaintiff has examined
three witnesses as PW.1 to PW.3 and got marked four
documents as Exs.P.1 to P.4. The defendant has examined
three witnesses as DW.1 to DW.3 and got marked 44
documents, which were marked as Exs.D.1 to D.44. The
Trial Court after considering the material on record, by its
judgment and decree dated 23.01.2019 decreed the suit
and also directed the defendant to execute the registered
sale deed within two months by receiving the balance
consideration of Rs.56,000/-. Feeling aggrieved by the
same, the defendant has preferred R.A.No.4/2019 on the
file of the First Appellate Court and same was resisted by
the plaintiff. The First Appellate Court after re-appreciating
the material on record, dismissed the appeal,
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consequently confirmed the judgment passed by the Trial
Court in O.S.No.662/2011. Hence, the present Regular
Second Appeal is filed by the defendant.
6. I have heard Mr.Shriharsh A Neelopant, learned
counsel appearing for the appellant and Mrs.Surabhi
Kulkarni, learned counsel appearing for the respondent.
7. Mr.Shriharsh A Neelopant, learned counsel
appearing for the appellant inviting the attention of the
Court to the agreement dated 05.11.2008 and contended
that the time stipulated in the said agreement for
completion of the transaction was 05.11.2011 which is the
period of three years for repayment of the loan availed by
the defendant from the plaintiff and the said aspect has
not been considered by both the Courts below and
accordingly he submitted that interference is called for
under Section 100 of the Code of Civil Procedure.
8. It is also contended by the learned counsel
appearing for the appellant that, the finding recorded by
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both the Courts below requires interference on the sole
ground that the total extent of the land was 3 acres 15
guntas and therefore the same cannot be sold for a
meager amount of Rs.4,00,000/- and the said aspect
ought to have taken as a judicial notice by both the Courts
below and accordingly sought for interference of this
Court.
9. Per contra, Mrs.Surabhi Kulkarni, learned
counsel appearing for the respondent sought to justify the
impugned judgments passed by the Courts below. She
further contended that the agreement of sale dated
05.11.2008 is a registered document and therefore the
contention raised by the learned counsel for the appellant
herein cannot be accepted.
10. In the light of the submission made by the
learned counsel appearing for parties and on careful
examination of the finding recorded by both the Courts
below, the same would indicate that, the defendant is the
owner of the suit schedule property and has entered into
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registered sale agreement dated 05.11.2008 with the
plaintiff. Copy of Ex.P.1 - registered agreement of sale was
made available by the parties. On careful examination of
the recitals in the said agreement of sale, the plaintiff has
paid sum of Rs.3,44,000/- as advance amount and agreed
to pay the remaining part of sale consideration of
Rs.56,000/- to the defendant at the time of execution of
the registered sale deed. It is also forthcoming from the
recitals in the agreement of sale that, the defendant
intends to sale the schedule property and nothing is stated
in the agreement about the said consideration has been
made in lieu of the loan being availed by the defendant
from the plaintiff. Therefore, the contention raised by the
learned counsel for the appellant cannot be accepted.
11. That apart, the plaintiff has issued legal notice
dated 18.10.2011 calling upon the defendant to execute
the registered sale deed and for the best known to the
defendant, he has not replied to the same, which makes it
clear that the said agreement was executed to sell the suit
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schedule property in favour of the plaintiff. In the
backdrop of these aspects and following the declaration of
law made by the Hon'ble Supreme Court in the cases of
C.S.Venkatesh vs A.S.C.Murthy (D) By Lrs. reported in
(2020) 3 SCC 280 and Sukhwinder Singh vs Jagroop
Singh reported in AIR 2020 SC 4865, wherein the
plaintiff herein has paid more than 80% of the sale
consideration in favour of the defendant and therefore I
find force in the submission made by the learned counsel
for the respondent that both the Courts below have
appreciated the material on record in right perspective and
have exercised discretionary power vested with them
based on the documents on record. Therefore, I am of the
view that no interference is called for in this appeal. The
appellant herein has not made out a case for interference
under Section 100 of the Code of Civil Procedure for
formulation of substantial question of law as required
under law.
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12. In the result, the appeal fails and is accordingly
dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SH, CT:ANB
