Karnataka High Court
Sri. Gayasuddin J vs Sri. M Aditya Dutt on 6 June, 2025
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RFA No. 1618 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL No. 1618 OF 2023 (SP)
BETWEEN:
1. SRI. GAYASUDDIN J.,
S/O MOHAMMAD JAMALUDDIN,
AGED ABOUT 53 YEARS,
PRESENTLY RESIDING AT No. 62,
ROCK ROSE RESIDENCY , B-1,
1ST CROSS, BHEL OFFICERS LAYOUT,
BANNERGHATTA ROAD,
BENGALURU 560041.
...APPELLANT
(BY SRI RAVINDRA V. S., ADVOCATE)
AND:
1. SRI. M. ADITYA DUTT,
Digitally signed S/O M. V. RAMANA RAO,
by CHAITHRA A AGED ABOUT 57 YEARS,
Location: HIGH RESIDING AT No.401,
COURT OF
KARNATAKA SHIVA SAI RESIDENCY,
6TH PHASE, KPHB COLONY,
KUTTAPALLI,
HYDRABAD 560085.
...RESPONDENT
(SERVED AND UNREPRESENTED)
THIS RFA FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
30.06.2023 PASSED IN OS No. 604/2020 ON THE FILE OF THE
II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL,
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RFA No. 1618 of 2023
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DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF
AGREEMENT OF SALE.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
Captioned appeal is by the unsuccessful plaintiff, who
has questioned the judgment and decree rendered in O.S.
604/2020 wherein plaintiff suit seeking relief of specific
performance of contract based on the sale agreement
dated 04.08.2016 is dismissed.
2. For the sake of brevity, the parties are referred
to as per their rank before the trial Court.
3. Facts leading to the case are as under,
Plaintiff filed a suit for specific performance of
contract in O.S. No. 604/2020. Plaintiff claimed that
defendant is the owner of the suit land bearing
Sy.No.156/45 measuring 38 guntas. Plaintiff claimed that
defendant purchased the suit schedule property under
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registered sale deed dated 04.08.2016. Plaintiff further
claimed that the defendant having acquired the property
under registered sale deed, offered to sell 16 guntas, out
of 38 guntas in Sy. No.156/45 and accordingly executed a
registered agreement to sell on 04.08.2016 in favour of
plaintiff. Plaintiff contended that, defendant received an
advance amount of ₹14,00,000/- out of total sale
consideration of ₹15,00,000/-. As per the plaintiff's
version, defendant was required to receive the balance
sale consideration of `1,00,000/- after getting the land
transferred to his name in the revenue records. Plaintiff
specifically asserted that since defendant was required to
get the property transferred in his name, time was not the
essence of the contract. Plaintiff specifically pleaded that
he is willing to pay the balance sale consideration and is
ever ready and willing to perform his part of contract.
4. The plaintiff's grievance is that although the
defendant succeeded in getting the property records
mutated in his name on the strength of a registered sale
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deed dated 04.08.2016, he did not evince any interest in
concluding the transaction pursuant to the agreement to
sell executed in favour of the plaintiff. Despite several
requests made by the plaintiff, the defendant continued to
postpone the execution of the sale deed in favour of the
plaintiff. When contacted telephonically, the defendant
informed the plaintiff that his name was yet to be reflected
in the revenue records based on the sale deed, and
therefore, he sought additional time to complete the
transaction in favour of the plaintiff.
5. The plaintiff has further averred that upon
verifying the revenue records, he discovered that the
defendant had in fact secured an order from the Assistant
Commissioner, and the mutation in the defendant's name
had been effected as early as 20.02.2019. Despite this,
the defendant failed to honour his commitment and
continued to delay execution of the sale deed. Left with no
other option, the plaintiff issued a legal notice dated
17.06.2020, calling upon the defendant to complete the
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sale transaction. However, the said notice was returned
unserved with the postal endorsement "unclaimed" dated
27.06.2020. Consequently, the plaintiff was constrained to
file the present suit seeking specific performance of the
agreement to sell.
6. Since the defendant did not appear before the
trial Court despite service of summons, he was placed ex
parte. In order to establish his claim, the plaintiff entered
the witness box and produced the original agreement to
sell, which was marked as Ex.P1. He also produced the
copy of the legal notice and other supporting documents.
Additionally, the plaintiff placed on record a certified copy
of the registered sale deed executed in favour of the
defendant, marked as Ex.P7. The trial Court, in the
absence of any written statement or defence, framed four
issues for consideration. However, while answering Issue
No.1, the trial Court held that the plaintiff had failed to
prove the execution of the agreement to sell dated
04.08.2016 or that an advance consideration of
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`14,00,000/- had been paid. Consequently, Issues Nos. 2
and 3 were also answered in the negative, and the suit
came to be dismissed.
7. Even before this Court, the defendant has not
chosen to appear or contest the appeal, though notice has
been duly served upon him.
8. The learned counsel appearing for the appellant
reiterated the grounds urged in the appeal memorandum
and contended that the trial Court, despite there being no
contest or defence, has erroneously proceeded to doubt
the transaction in question. The trial Court, according to
him, was unduly influenced by the fact that both the
registered sale deed in favour of the defendant and the
plaintiff's suit agreement bear the same date, i.e.,
04.08.2016. On that basis, the trial Court concluded that
there was no obstacle for the plaintiff to obtain either an
agreement or a registered sale deed directly from the
original owner. It is his submission that such a finding, in
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the absence of any rebuttal or denial by the defendant, is
wholly unsustainable. He further submitted that the
plaintiff has discharged his burden by producing the
registered agreement and supporting documents, and in
the absence of any contest, the trial Court ought to have
granted the relief of specific performance. The learned
counsel also challenged the reasoning of the trial Court
regarding non-examination of attesting witnesses,
contending that such a requirement is not absolute and
cannot be made a ground to disbelieve the plaintiff's
evidence, especially when the agreement is a registered
document. He urged this Court to set aside the erroneous
findings of the trial Court and allow the appeal.
9. Heard the counsel for plaintiff. This Court has
carefully examined the pleadings in the plaint and this
Court has also meticulously examined the suit agreement
marked at Ex.P1.
10. Following points would arise for consideration:
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1. Whether the trial Court was justified in holding that
the plaintiff failed to prove the execution of the suit
agreement dated 04.08.2016, and whether such a
finding is perverse, contrary to the material on record,
and warrants interference by this Court?
2. Whether the trial Court committed a serious error in
disbelieving the plaintiff's case, particularly in the
absence of any contest by the defendant, by solely
relying on the fact that the suit agreement by plaintiff
and the registered sale deed in favour of the defendant
are of the same date, and further, in placing undue
emphasis on the non-examination of attesting
witnesses?
Finding on point Nos.1 and 2.
11. The plaintiff has instituted the present suit
seeking specific performance of the agreement to sell
dated 04.08.2016, purportedly executed by the defendant
in his favour. In support of his claim, the plaintiff has
produced the original registered agreement to sell, which
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is marked as Ex.P1. A careful perusal of Ex.P1 reveals that
it is a registered document, executed before the
jurisdictional Sub-Registrar, and it bears the photographs
and signatures of both the plaintiff and the defendant on
the reverse side of the second page of the non-judicial
stamp paper. The registration of the document before the
Sub-Registrar, coupled with the identification of the parties
through their photographs and thumb impressions, lends
authenticity and evidentiary weight to the agreement.
12. It is not in dispute that prior to institution of the
suit, the plaintiff issued a legal notice dated 17.06.2020,
calling upon the defendant to execute the sale deed. The
said notice, marked as Ex.P2, was returned with the postal
endorsement "unclaimed" dated 27.06.2020. The core
issue for determination in this appeal is whether the
genuineness of the suit agreement can be doubted merely
because the defendant acquired title to the property under
a registered sale deed on the same day, i.e., 04.08.2016,
when he executed the agreement to sell a portion of the
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property (16 guntas out of 38 guntas) in favour of the
plaintiff. While it is a well-settled principle that even in the
absence of contest, the plaintiff carries the initial burden of
establishing the execution and validity of the agreement,
the fact that the suit agreement is a registered document
assumes critical importance. Under Section 114(e) of the
Indian Evidence Act, 1872, there is a presumption that
official acts have been regularly performed. This includes
the registration of documents by a public authority, such
as the Sub-Registrar. Consequently, Ex.P1, being a
registered agreement to sell, is entitled to a statutory
presumption of genuineness, unless rebutted by cogent
evidence.
13. The trial Court, however, erroneously
proceeded to doubt the transaction solely on the basis that
the agreement was executed on the same day as the
registered sale deed obtained by the defendant. This
approach, in the absence of any contest or plea of fraud,
coercion, or misrepresentation from the defendant, is
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unsustainable. There can be several legitimate reasons
why the defendant, upon acquiring title to the property,
chose to enter into an agreement to sell a portion of it on
the same day. Merely because the transaction took place
on the same date does not, ipso facto, render it
suspicious. Importantly, the defendant, who alone could
have explained the circumstances or raised any objection
to the transaction, has chosen not to contest either the
suit or the appeal. In such circumstances, the trial Court's
conclusion that the transaction is doubtful is speculative
and unsupported by any evidence or legal basis.
14. The trial Court has also taken exception to the
fact that the plaintiff did not examine any of the attesting
witnesses to the suit agreement. This finding, too, is
clearly flawed. Under Section 68 of the Indian Evidence
Act, the requirement to examine at least one attesting
witness applies only to documents required by law to be
attested, such as wills and gift deeds of immovable
property under Section 123 of the Transfer of Property
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Act, 1882. An agreement to sell immovable property is not
a document which, under law, is mandatorily required to
be attested. Therefore, the provisions of Section 68 are
not attracted to the present transaction. The mere
absence of examination of an attesting witness does not,
in law, vitiate the proof of a registered agreement to sell,
particularly when the defendant has neither denied the
execution nor appeared to contest the same. In such
circumstances, no adverse inference can be drawn against
the plaintiff.
15. Further, the plaintiff has placed reliance
on Ex.P7, the certified copy of the registered sale deed
executed in favour of the defendant, which evidences that
the defendant acquired title to the suit property on
04.08.2016. This corroborates the plaintiff's case that the
defendant had the legal authority and competence to
execute the agreement to sell in his favour on the very
same date. Ex.P1 also recites that a sum of `14,00,000/-
was paid as advance consideration, a recital which carries
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evidentiary weight under Section 91 and 92 of the
Evidence Act, and in the absence of contest or rebuttal,
the same stands uncontroverted.
16. The Hon'ble Supreme Court, in a catena of
judgments, has consistently held that although the relief
of specific performance is discretionary in nature
under Section 20 of the Specific Relief Act, 1963, such
discretion must be exercised judiciously and not arbitrarily
or capriciously. Once the plaintiff establishes the execution
of a valid and enforceable agreement, and there is no
inequity or hardship demonstrated by the defendant, the
Court must ordinarily decree specific performance. In the
present case, the plaintiff has discharged the initial burden
of proof by producing the registered agreement, and the
defendant has not appeared to rebut the same or to
demonstrate any hardship or inequity that would justify
denial of relief.
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17. In the absence of any defence, rebuttal, or
explanation by the defendant, the equities clearly weigh in
favour of the plaintiff. His consistent assertion that the
defendant executed the agreement to sell and received a
substantial advance consideration has remained
unchallenged. The trial Court, in venturing to disbelieve
the transaction on its own assumptions, without any
supporting material or pleading, has clearly committed a
manifest error. This Court, therefore, finds that the
findings recorded by the trial Court while answering Issue
No.1 are perverse, unsupported by the record, and
contrary to settled principles of law. The approach of the
trial Court in casting doubts on a registered transaction in
the absence of any contest is wholly unsustainable and
warrants interference. Accordingly, the judgment and
decree passed by the trial Court is liable to be set aside,
and the suit for specific performance deserves to be
decreed in favour of the plaintiff.
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18. CONCLUSIONS
I. The trial Court has committed a serious error in
disbelieving the plaintiff's case despite the production of
a registered agreement to sell (Ex.P1), which enjoys a
statutory presumption of authenticity under Section
114(e) of the Indian Evidence Act, 1872. The Court failed
to appreciate that registration before a public authority,
coupled with the parties' photographs and signatures,
adds considerable evidentiary weight to the document.
II. The trial Court has erroneously cast doubt on
the transaction solely on the ground that the suit
agreement and the registered sale deed in favour of the
defendant were executed on the same date. Such
reasoning is purely speculative and unsupported by any
evidence or legal prohibition. The defendant, who could
have clarified the nature of the transaction, chose not to
contest the suit or the appeal. In the absence of any
rebuttal, the Court's suspicion is misplaced.
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III. The finding of the trial Court that the plaintiff
failed to examine attesting witnesses is legally
unsustainable. An agreement to sell is not a document
that is required by law to be attested, and
therefore, Section 68 of the Evidence Act has no
application. The Court's reliance on this ground to discard
the plaintiff's evidence reflects a clear misapplication of
law.
IV. The trial Court misdirected itself by applying a
standard of proof higher than what the law requires in civil
proceedings. Once the plaintiff had discharged his initial
burden by producing a registered agreement and leading
uncontroverted evidence, the Court ought to have drawn a
presumption in his favour, especially when the defendant
failed to enter appearance or file any written statement.
V. The trial Court ignored well-settled principles
governing the grant of specific performance, particularly
the settled law that in the absence of contest, and where
no inequity or hardship is demonstrated, the relief ought
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not to be denied arbitrarily. The discretionary relief
under Section 20 of the Specific Relief Act, 1963 was
wrongly refused based on conjectures and surmises.
VI. In totality, the findings recorded by the trial
Court are perverse, contrary to the evidence on record,
and vitiated by legal error. The judgment and decree
passed by the trial Court is therefore liable to be interfered
with and set aside.
19. For the above reasons, this Court passes the
following:
ORDER
(i) Appeal is allowed.
(ii) The judgment and decree rendered by the trial
court is hereby set aside.
(iii) Suit of the plaintiff is decreed with cost.
(iv) Defendant is hereby directed to execute sale
deed in favour of plaintiff within a period of
three months.
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(v) Plaintiff shall deposit the balance sale
consideration of ₹1,00,000/- within a period of
eight weeks from the date of receipt of order
copy.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
VBS
