Karnataka High Court
Sri.Gangabasavaiah vs Sri Suresh Babu on 7 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 417 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.417 OF 2025 (SP)
BETWEEN:
1. SRI.GANGABASAVAIAH
S/O LATE DODDABASAVAIAH
AGED ABOUT 56 YEARS
R/AT KESARAMADU
URDIGERE HOBLI
TUMAKURU TALUK
TUMAKURU DISTRICT-572140.
2. SMT. ROOPASHREE
W/O LATE DIWAKAR
AGED ABOUT 46 YEARS
3. KUM. SHRUTHI D @ DIVYASHREE
D/O LATE DIWAKAR AND ROOPASHREE
Digitally signed
by DEVIKA M AGED ABOUT 27 YEARS
Location: HIGH
COURT OF 4. SRI DEEPANKAR
KARNATAKA S/O LATE DIWAKAR AND ROOPASHREE
AGED ABOUT 24 YEARS
5. SRI HAMPA
S/O LATE DIWAKAR AND ROOPASHREE
AGED ABOUT 21 YEARS
APPELLANTS NO.2 TO 5 ARE R/AT NO.1064,
GOWDARABEEDI, CHICKPET, TUMAKURU CITY,
TUMAKURU-571 218.
...APPELLANTS
(BY SRI. N. KUMAR, ADVOCATE)
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RSA No. 417 of 2025
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AND:
1. SRI. SURESH BABU
S/O LATE LAKSHMINARAYANA RAO
AGED ABOUT 62 YEARS
R/AT C/O T.R. ANANDARAO
'RAM KAMAL' UPSTAIRS
1ST CROSS, 1ST BLOCK
KUVEMPU NAGAR
TUMAKURU-572 103.
2. SRI. M.N. SHIVAKUMAR
S/O LATE NANJUNDAPPA
AGED ABOUT 61 YEARS
R/AT MANCHAGONDANAHALLI
GULURU HOBLI, TUMAKURU TALUK
TUMAKURU DISTRICT-572 118.
3. SRI. MANOJ
S/O M.N. SHIVAKUMAR
AGED ABOUT 28 YEARS
4. SRI. MALLESH
S/O M.N. SHIVAKUMAR
AGED ABOUT 27 YEARS
RESPONDENTS NO.3 AND 4 ARE
SONS OF M.N.SHIVAKUMAR AND
SHIVAGANGAMMA.
RESPONDENTS NO.3 AND 4 ARE
R/AT MANCHAGONDANAHALLI
FARM HOUSE, GULURU HOBLI
TUMAKURU TALUK
TUMAKURU DISTRICT-572 118.
5. SMT. SHIVAGANGAMMA
W/O M.N. SHIVAKUMAR
AGED ABOUT 51 YEARS
R/AT MANCHAGONDANAHALLI
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RSA No. 417 of 2025
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GULURU HOBLI,
TUMAKURU TALUK-572118
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 07.02.2025
PASSED IN R.A.NO.139/2024 ON THE FILE OF I ADDITIONAL
PRL. JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 31.01.2022 PASSED IN O.S.NO.75/2007 ON THE FILE
OF PRL. SENIOR CIVIL JUDGE AND CJM, TUMAKURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel appearing for the appellants.
2. The suit is filed for the relief of specific performance
by the respondent No.1 herein seeking to enforce the
agreement dated 12.11.2004 and it is also pleaded that he was
always ready and willing to perform his part of contract, but the
defendants did not come forward to execute the sale deed.
3. The defendant Nos.5 and 6 appeared and filed
written statement that the plaintiff in collusion with defendant
Nos.1 to 4 has created the sale agreement dated 12.11.2004
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and also further contention was taken by defendant No.6 that
he is a bonafide purchaser for valuable consideration of portion
of the suit schedule property.
4. The Trial Court having considered both oral and
documentary evidence and also the defence which was taken
that document of Ex.P1 was not executed, even sent the same
for Handwriting Expert and also report was received. Though,
disputed the report, but not proved the same. The Trial Court
taking into note of the expert's report and also during the
course of cross-examination, D.W.1 admitted his signature and
postal acknowledgement that was confronted and got marked
at Ex.P6 and his signature that was made in English at
Ex.P6(a). In the same line, it is also to be noted that defendant
No.2 i.e., wife of defendant No.1, who got examined before the
Court as D.W.2 deposed that husband/D.W.1 used to put his
signature in Kannada, but not in English. She deposed that
there was no necessity to the family to sell the suit schedule
property to the plaintiff, but her husband addicted to bad
habits. Whereas, she admitted the signature of herself and her
husband on summons of this suit that confronted and got
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marked at Ex.P8 and their signatures are marked at ExP8(a)
and (b) respectively. The signature of defendant No.1 at
Ex.D8(a) is though in English, this D.W.2 denied the same and
deposed that her husband used to sign in Kannada, but not in
English and in detail discussion was made and the Trial Court
comes to the conclusion that the defendants miserably failed to
substantiate their case of fraud alleged to be committed by the
plaintiff in execution of the registered sale agreement in his
favour on 12.11.2007 and also taken note of the fact that same
was for the family necessity with an intention to sell the suit
property in favour of the plaintiff for their legal necessity to
clear the debts and family benefit and have also received the
advance sale consideration of Rs.80,000/- from the plaintiff in
the presence of the witnesses. So also, the Trial Court taken
note of the defence of the defendant Nos.5 and 6 that they
have obtained the sale deed from defendant No.1 to 4 during
the pendency of this suit and comes to the conclusion that
defendants colluded with each other and created the document.
Hence, answered issue no.1 in the 'affirmative' and additional
issue Nos.1 and 2 in the 'negative' and accepted the case of
plaintiff and granted the relief of specific performance.
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5. Being aggrieved by the said judgment and decree of
the Trial Court, an appeal is filed before the First Appellate
Court in R.A.No.139/2024 and First Appellate Court also
considering the grounds urged in the appeal memo formulated
the points whether the Trial Court has erred in holding that
defendant No.1 had executed sale agreement dated 12.11.2004
for himself and on behalf of defendant No.3 and 4 agreeing to
sell the suit schedule property, whether Trial Court has erred in
holding that plaintiff was ready and willing to perform his part
of contract, whether Trial Court has erred in overlooking the
judgment in O.S.No.188/2009 and proceedings in Execution
No.60/2014, whether Trial Court has erred in holding that
defendant Nos.5 and 6 are not the bonafide purchasers of suit
schedule property for valid consideration, whether the suit filed
by the plaintiff in O.S.No.75/2007 is hit under the principles of
res-judicata, whether judgment and decree dated 31.01.2022
in O.S.No.75/2007 is erroneous, illegal and against the
evidence placed on record and whether the impugned judgment
and decree passed by the Trial Court requires to be interfered.
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6. The First Appellate Court having reassessed the
material available on record, considered the evidence of the
plaintiff as well as defendants and comes to the conclusion that
Trial Court has not committed any error in coming to such a
conclusion and comes to the conclusion that there was collusion
between defendant Nos.1 to 6 and also taken note of sale
agreement dated 12.11.2004, legal notice dated 03.11.2006
before filing the earlier suit and also the reply notice and comes
to the conclusion that, if really there was a sale agreement as
per Ex.P21, atleast defendant No.1, who is the Executant of
agreement at Ex.P21 would have been aware of the said fact
and he would have pleaded the same in his written statement
filed in O.S.No.19/2007. Ex.P5 contains the contents of written
statement of defendant No.1 and present defendant No.1 has
not taken the contention that he has already executed the sale
agreement in favour of third person i.e., defendant No.5 and
detailed discussion was made and the First Appellate Court
comes to the conclusion that there was collusiveness between
defendant Nos.1 to 4 and defendant No.5 and 6 and comes to
the conclusion that the Trial Court based on the evidence on
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record, given sound reasoning and granted the relief of specific
performance and it does not require any interference.
7. Learned counsel appearing for the appellants in his
argument would vehemently contend that the agreement in
favour of the appellants is dated 22.01.2003 and the same is
prior to 12.11.2004 and both the Courts failed to consider the
same and erroneously proceeded to grant the relief of specific
performance. The counsel vehemently contend that there was
no readiness in compliance of Section 16(c) of the Specific
Relief Act and even both the Courts failed to take note of said
fact into consideration and committed an error in coming to the
conclusion that defendant Nos.1 to 4 colluded with each other
only with an intention to deny the sale agreement dated
12.11.2004 executed in favour of the plaintiff and the very
conclusion that plaintiff is a bonafide purchaser under the
agreement of sale dated 22.01.2003 is not considered by both
the Courts and the same is an erroneous approach. Hence, this
Court has to frame substantial question of law.
8. Having heard learned counsel appearing for the
appellants and also the reasoning of the Trial Court, though
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there was an agreement dated 22.01.2003, the Trial Court
comes to a conclusion that defendants Nos.1 to 4 in collusion
with defendant Nos.5 and 6 created the document of sale
agreement and sale deed and also taken note of admission and
even though there was denial of sale agreement, the same was
also taken note of and even expert opinion was also taken note
of in respect of earlier sale agreement and comes to the
conclusion that defendant Nos.1 to 4 colluded with defendant
Nos.5 and 6 and created the document and there cannot be
any conclusion that they are the bonafide purchasers. Having
considered both oral and documentary evidence, the earlier
defence which was taken was also considered by the First
Appellate Court while confirming the judgment of the Trial
Court. Having considered the evidence on record, it clearly
indicates that proceedings in O.S.No.19/2007 before the II
Additional Senior Civil Judge, Tumakuru was a collusive suit
between defendant Nos.1 to 4. Further, the proceedings in O.S.
No.188/2009, Execution No.60/2004 before the I Additional
Civil Judge, Tumakuru is a collusive proceedings between
defendant Nos.1 to 5. Moreover, O.S.No.188/2009 is a
proceedings instituted after institution of the present suit in
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O.S.No.75/2007. Hence, comes to the conclusion that sale deed
at Ex.D6 is a document executed during the pendency of the
suit is hit by doctrine of lis-pendence and therefore, comes to
the conclusion that defendant No.5 cannot be called as
bonafide purchaser. Similarly, defendant No.6, who has
purchased the portion of suit schedule property during the
pendency of this litigation also cannot be considered as
bonafide purchaser and taken the note of very conduct of the
defendants and filing of suit when the suit was pending before
the Court. Having considered the material and record, I do not
find any error in the finding of the First Appellate Court also
and the First Appellate Court also in detail considered the
material on record and formulated the points with regard to
readiness, agreement as well as judgment in O.S.No.188/2009
and O.S.No.75/2007 and also the principles of res-judicata is
also taken note of and detailed order has been passed. When
such being the case, I do not find any ground to admit the
second appeal and frame any substantial question of law as
contended by learned counsel appearing for the appellants and
in the absence of any ground, question of admitting and
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framing substantial question of law in the second appeal does
not arise.
9. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
