Karnataka High Court

Karnataka Police Employees Housing vs Sri.Puttalingaiah on 9 June, 2025

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                                                   RSA No. 756 of 2016


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              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 9TH DAY OF JUNE, 2025

                                      BEFORE

                     THE HON'BLE MR JUSTICE ASHOK S.KINAGI

                   REGULAR SECOND APPEAL NO. 756 OF 2016 (SP)

              BETWEEN:

              KARNATAKA POLICE EMPLOYEES HOUSING
              BUILDING CO-OPERATIVE SOCIETY LTD.,
              HAVING ITS REGISTERED OFFICE AT:
              C.A.SITE NETAJINAGARA,
              MYSURU CITY-570026
              REPRESENTED BY ITS PRESIDENT
              SRI. NANJUNDE GOWDA
                                                          ...APPELLANT
              (BY SRI. K.R. KRISHNA MURTHY, ADVOCATE)

              AND:
Digitally
signed by     1.    SRI. PUTTALINGAIAH
SUNITHA K S         S/O LATE GANGAIAHNA LINGAIAH
Location:           AGED ABOUT 76 YEARS
HIGH COURT
OF            2.    SRI. L. MAHADEVAPPA
KARNATAKA           S/O LATE GANGAIAHNA LINGAIAH
                    AGED ABOUT 66 YEARS,

              3.    SRI.P. KUMAR
                    S/O PUTTALINGAIAH
                    AGED ABOUT 45 YEARS,

                    RESPONDENTS No.1 TO 3 ARE
                    R/AT LALITHADRIPURA GRAMA,
                    VARUNA HOBLI
                    MYSURU-57
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                                      RSA No. 756 of 2016


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4.   SRI.KEMPARAJE URS
     S/O K. PUTTARAJE URS
     AGED ABOUT 58 YEARS
     R/AT D.NO.191,
     NETAJI NAGAR
     MYSURU-570 026
                                           ...RESPONDENTS

(BY SRI. M.S. BHAGWATH, SR. COUNSEL FOR
    SRI. SATHISH K., ADVOCATE FOR R1, R2 & R4
    R3 SERVED)

     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 30.01.2016 PASSED IN
RA NO.181/2013 ON THE FILE OF THE II ADDL. DISTRICT
JUDGE, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 16.04.2013 PASSED IN
OS NO.816/2006 ON THE FILE OF THE IV ADDL. SENIOR CIVIL
JUDGE, MYSORE.

     THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

                    ORAL JUDGMENT

This Regular Second Appeal is filed by the appellant

challenging the judgment and decree dated 30.01.2016

passed in R.A.No.181/2013 by the learned II Additional

District Judge, Mysuru.

2. For convenience, the parties are referred to

based on their rankings before the trial Court. The

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appellant was the plaintiff and the respondents were the

defendants.

3. Brief facts, leading rise to the filing of this

appeal are as follows:

The plaintiff filed a suit against the defendants for the

specific performance of a contract. It is the case of the

plaintiff that the defendants are the owners of the land

bearing Sy.No.84/1, measuring 2 acres 20 guntas,

situated at Lalitadripura Village, Varuna Hobli, Mysuru

Taluk. It is contended that defendants No.1 to 3 entered

into a sale agreement dated 12.01.2002 with the plaintiff

society for alienating the suit schedule property for the

sale consideration of Rs.2,15,000/- per acre. At the time

of the execution of a sale agreement, defendants No.1 to 3

received a sum of Rs.15,000/- as an advance sale

consideration amount and pleaded that they require one

year time to complete the sale transaction, as there are

valuable Mango and Coconut trees in the said land. After

the execution of the sale agreement, defendants No.1 to 3

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received the further amount of Rs.15,000/- and

Rs.20,000/- on 04.01.2003 and 07.01.2003 respectively

from the plaintiff society as a part consideration amount

and went on dodging the matter on one or the other

pretext. In total, the defendants have received

Rs.50,000/- from the plaintiff society. The plaintiff society

requested defendants No.1 to 3 to receive the balance sale

consideration amount and execute a registered sale deed,

but, defendants No. 1 to 3 did not come forward to

complete the sale transaction. It is contended that

defendants No.1 to 3 have sold the suit schedule property

in favour of defendant No.4 illegally on 25.01.2006 for a

higher price. Hence, a cause of action arose for the

plaintiff to file a suit for the specific performance of a

contract. Accordingly, prays to decree the suit.

4. Defendants No.1 to 3 have filed a written

statement denying the averments made in the plaint

execution of a sale agreement and receiving of part

consideration amount regarding suit schedule property. It

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is contended that the suit property is the joint family

property owned and possessed by the family members of

defendant No.1 and defendants No.1 to 3 have no right to

sell the same in favour of the plaintiff society or execute

any sale agreement. It is contended that the plaintiff

society obtained the signatures of the few members of

defendant No.1 family with a malafide intention. It is

contended that the alleged agreement of sale is

inoperative and not maintainable, as the plaintiff society

has not complied with the terms and the suit filed by the

plaintiff society is barred by limitation. It is contended that

the suit filed by the plaintiff is not maintainable for mis-

joinder and non-joinder of the necessary parties.

5. It is contended that defendants No.1 to 3 have

executed a registered sale deed conveying the other joint

family properties in favour of the plaintiff society. It is

contended that defendants No.1 to 3 have never agreed to

sell the suit schedule property in favour of the plaintiff

society. It is contended that the alleged Oppanda Patra is

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a document that does not cast any liability on defendants

No.1 to 3, nor have defendants No.1 to 3 executed any

such document. Defendants No.1 to 3 have retained the

suit schedule property. No negotiations were held

regarding the suit schedule property. It is contended that

the suit schedule property and the other properties were

notified for acquisition. Defendants No.1 to 3 have not

executed any agreement to facilitate the de-notification of

the acquisition of the schedule property and abutting lands

before the Government. The plaintiff society, with a

malafide intention, included the suit schedule property in

the proceedings initiated before the Government for de-

notification. The suit schedule property was one of the

lands, which was de-notified.

6. The plaintiff society, being a registered society,

is required to obtain necessary permission from the

Deputy Commissioner for purchasing the agricultural land,

as contemplated under Section 109 of the Karnataka Land

Reforms Act, 1961 (for short Act). The plaintiffs have not

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obtained the necessary permission from the Deputy

Commissioner. It is contended that defendants No.1 to 3,

as well as the other coparceners, have sold the suit

property in favour of defendant No.4, on 25.01.2006. The

plaintiff was aware of the execution of the registered sale

deed in favour of defendant No.4. It is contended that the

plaintiff submitted the representation to the Mysuru Urban

Development Authority (MUDA for short) intimating that

several of the lands, which were proposed to be acquired

by the plaintiff society and subsequently, not acquired by

MUDA, Mysuru. The suit schedule property is also listed in

the said communication. It is contended that the suit filed

by the plaintiff is an afterthought and defendant No.4 is a

bonafide purchaser. Hence, prays to dismiss the suit.

7. The trial Court, based on the pleadings of the

parties, framed the following issues and additional issues:

ISSUES

1) Whether plaintiffs prove that defendant No.1 to 3 have entered into an agreement of sale of schedule property on 12.1.2002 for consideration

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of Rs.2,15,000/- per acre and paid Rs.15,000/- as an earnest amount?

2) Whether plaintiffs prove that he has paid Rs.15,000/- on 4.1.2003 to defendant No.1 to 3 as additional advance amount?

3) Whether plaintiff was/is ready and willing to perform his part of contract?

4) Whether defendants prove that the suit is barred by limitation?

5) Whether defendants proves that the plaintiff has obtained their signature indicating that he is going to obtain permission from authorities and concocted the same as sale agreement?

6) Whether suit is bad for non joinder of necessary parties?

7) Whether defendants proves that the suit itself is not maintainable for the reasons stated in para 5 of the written statement?

8) Whether plaintiff is entitled for specific performance of contract?

9) What order or decree?

Additional issues framed on 6.11.2006

1) Whether defendant No.4 proves that he is bonafide purchaser of suit property without notice?

Additional issues framed on 6.2.2013

1) Whether the plaintiff entitle for the relief of declaration for the sale deed dated 25.1.2006 executed by the defendant No.1 to 3 in favour of defendant No.4 is not binding on him?

2) Whether the defendant No.4 proves that the suit is barred by limitation?

8. The plaintiff society, to prove its case,

examined one Nanjundegowda as PW-1, examined one

witness as PW-2 and marked 8 documents Exs.P.1 to P.8.

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On the other hand defendant No.3 was examined as DW-

1, defendant No.2 was examined as DW-2, examined 4

witnesses as DW-3 to DW-6 and marked 33 documents

Exs.D.1 to D.33. The trial Court, after recording the

evidence, hearing both sides and on assessing the verbal

and documentary evidence answered issue Nos.1 to 3, 8

and additional issue No.1 framed on 06.02.2013 in the

affirmative, issues No.4 to 7 and additional issue No.1

framed on 06.11.2006 and additional issue No.2 framed

on 06.02.2013 in the negative and issue No.9 as per the

final order.

9. The suit of the plaintiff was decreed vide

judgment dated 16.04.2013 directing the defendants to

execute a sale deed regarding the suit schedule property

in favour of the plaintiff society by receiving the balance

sale consideration amount within three months from the

date of the judgment. It is further ordered that the sale

deed dated 25.01.2006 obtained by defendant No.4 is null

and void and it is not binding on the plaintiff society. It is

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further ordered that the plaintiff society shall deposit the

balance consideration amount within three months from

the date of the judgment. If the defendants are not ready

to execute the sale deed, the plaintiff society is at liberty

to proceed against the defendants by following due

procedure of law. The defendants, aggrieved by the

judgment and decree passed in O.S.No.816/2006,

preferred an appeal in R.A.No.181/2013 on the file of the

learned II Additional District Judge, Mysuru.

10. The first appellate Court, after hearing the

learned counsel for the parties, framed the following points

for consideration:-

POINTS

1. Whether the lower Court erred in holding that the defendant No.1 to 3 have duly executed Ex.P1 to P3 and had agreed to sell the suit property to the plaintiff?

2. Whether the conduct of the plaintiff is not equitable?

3. Whether the I.A.No.III deserves to be allowed?

4. Whether the I.A.No.IV deserves to be allowed?

5. Whether the defendant No.4 is the bonafide purchaser?

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6. Whether the impugned judgment and decree calls for interference?

7. What order?

11. The first appellate Court, on reassessing the

verbal and documentary evidence, answered points No.1,

2, 5 and 6 in the affirmative, points No.3 and 4 in the

negative and point No.7 as per the final order. The appeal

filed by the defendants was allowed. The judgment and

decree passed in O.S.No.816/2006 was set aside. The suit

of the plaintiff was dismissed vide judgment dated

30.01.2016. The plaintiff, aggrieved by the judgment and

decree passed in R.A.No.181/2013, filed this Regular

Second Appeal.

12. Heard the learned counsel, Sri. S.R.

Krishnamurthy for the plaintiff and the learned Senior

Counsel Sri. M.S. Bhagwat for the defendants.

13. Learned counsel for the plaintiff submits that

defendants No.1 to 3 are the owners of the suit schedule

property. They have sold 10 acres and 13 guntas to the

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plaintiff. Before, defendants No.1 to 3 executed the

Oppanda Patra on 12.01.2001, expressing their consent to

sell 5 properties to an extent of 10 acres 13 guntas. They

have executed a sale deed regarding other lands, except

the suit schedule property, i.e., land bearing Sy.No.84/1.

He submits that the defendants received Rs.50,000/-

towards an advance sale consideration amount and agreed

to execute a registered sale deed, after receiving the

balance consideration amount.

14. He submits that the Government had proposed

to acquire suit land and the other lands. The plaintiff got

de-notified the suit land. He submits that the plaintiff

requested defendants No.1 to 3 to execute a registered

sale deed by receiving the balance sale consideration

amount, but defendants No.1 to 3 refused to execute a

registered sale deed by receiving the balance sale

consideration amount. He submits that the first appellate

Court committed an error in coming to a conclusion that

the plaintiff has not called for, "Oppanda Patra" from the

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Government and the plaintiff society has not paid the part

consideration amount and the developer paid it and the

plaintiff society has not produced any book of accounts to

prove the payment of advance sale consideration amount.

The said conclusion of the first appellate Court is contrary

to the records.

15. He further submits that the suit filed by the

plaintiff is well within time. He submits that the plaintiff

society has proved that the plaintiff society was/is ready

and willing to perform its part of the contract. He submits

that defendants No.1 to 3 have admitted their signatures

on Ex.P.1 and defence of defendants No.1 to 3 is that the

signatures were obtained by playing fraud and further

submits that no complaint was lodged and there is no

pleading regarding the alleged fraud. He submits that the

defendants have raised a defence that the plaintiff society

obtained signatures on blank paper and the burden is on

the defendants to establish the fraud.

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16. To buttress his arguments, he has placed

reliance on the judgments of the Hon'ble Apex Court, in

the case of P. Daivasigamani Vs. S. Sambanadan

reported in (2022) 14 SCC 793, and K. Prakash Vs.

B.R. Sampath Kumar reported in (2015) 1 SCC 597.

He submits that the impugned judgment passed by the

first appellate Court is arbitrary, perverse and erroneous

and the same is liable to be set aside. Accordingly, prays

to allow the appeal.

17. Per contra, the learned Senior Counsel Sri. M.S.

Bhagawat submits that there is no privity of a contract

between the plaintiff society and defendants No.1 to 3

regarding the suit schedule property. He submits that

defendants No.1 to 3 executed a registered sale deed in

favour of defendant No.4 on 25.01.2006 and plaintiff

society filed an application seeking amendment to the

plaint challenging the registered sale deed dated

25.01.2006 on 04.01.2013 after seven years from the

date of execution of the registered sale deed. Hence, the

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suit filed by the plaintiff society for declaring the

registered sale deed executed by defendants No.1 to 3 in

favour of defendant No.4 as null and void and is barred by

limitation. He also submits that the alleged 'sale

agreement' was executed on 12.01.2002 and the suit was

filed on 20.07.2006. The plaintiff has failed to prove that

the plaintiff society was/is ready and willing to perform its

part of the contract.

18. He also submits that the suit filed by the

plaintiff is not maintainable for non-joinder of the

necessary parties. He submits that the suit schedule

property is the joint family property of defendants No.1 to

3 and the other coparceners. He also submits that the trial

Court answered issue No.4 in the negative. The plaintiff

has not challenged the findings recorded on issue No.4. He

submits that when the trial Court records a finding that

the suit is barred by limitation, the trial Court ought to

have dismissed the suit on the ground that the suit is

barred by limitation, on the contrary, decreed the suit of

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the plaintiff. The trial Court committed an error in

decreeing the suit.

19. He also submits that the plaintiff society has

not paid the alleged advance sale consideration amount to

defendants No.1 to 3. He submits that it is the case of the

plaintiff that payment of advance sale consideration

amount was paid by the developer. The said pleading is

sufficient to hold that the plaintiff has not paid an advance

sale consideration amount. He also submits that

defendants No.1 to 3 have sold other lands except the suit

land in favour of plaintiff society by executing a registered

sale deed, but while executing the registered sale deed,

the plaintiff society has taken the signatures of defendants

No.1 to 3 on the blank paper, misused the blank papers

and created Ex.P.1 to Ex.P.3.

20. He also submits that a written statement was

filed on 20.10.2006 wherein, defendants No.1 to 3 have

pleaded regarding the execution of a registered sale deed

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in favour of defendant No.4 and the plaintiff has filed an

application to amend the plaint seeking the relief of

declaration regarding the registered sale deed as null and

void on 04.01.2013 and the said application was allowed

by the trial Court, vide order dated 29.01.2013. Hence,

the relief of declaration sought by the plaintiff is barred by

limitation. A suit for declaration is to be filed within 3

years from the date of the cause of action occurs, as per

Article 58 of the Limitation Act, 1963. The sale deed was

executed on 25.01.2006. When an instrument is

registered, it gives knowledge to the world, as per Section

3 of the Transfer of Property Act, 1882.

21. To buttress his arguments, he has placed

reliance on the judgment of the Hon'ble Apex Court in the

case of Umadevi and others Vs. Anand Kumar in

SLP(C) 2137/2025 dated 02.04.2025. He submits that

in a suit for specific performance of a contract, the initial

burden is on the plaintiff to prove the execution of a sale

agreement. The plaintiff has failed to discharge the burden

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of proof. He submits that the first appellate Court has

considered the evidence on record meticulously and

passed impugned judgment.

22. To buttress his arguments, he has also placed

reliance on the judgment of Hon'ble Apex Court in the case

of P. Ravindranath and another Vs. Sasikala and

others reported in 2024 SCCOnline SC 1749, L.C.

Hanumanthappa (since dead) rep. by his L.Rs. Vs.

H.B. Shivakumar reported in (2016) 1 SCC 332, R.

Nagaraj (dead) through LRs. And another Vs.

Rajmani and others in Civil Appeal No.5131/2025

arising out of SLP (C)No.36/2021. Hence, on these

grounds he prays to dismiss the appeal.

23. The appeal was admitted, to consider the

following Substantial Question of Law:

1. Whether the First Appellate Court was right in holding that Exs.P.1 to 3 do not seem to be genuine though the plaintiff has proved the due execution of the said documents by the defendants No.1 to 3 in his favour and the defendants has failed to establish their claim of misrepresentation on the part of plaintiff?

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2. Whether the First Appellate Court was right in refusing the relief for specific performance of contract in the light of plaintiff proving the due execution of the documents at Exs.P.1 to 3, including the readiness and willingness on the part of the plaintiff to perform the Contract?

3. Whether the First Appellate Court was right in coming to the conclusion that the 4th defendant was a bonafide purchaser in the light of the fact that the 4th defendant had purchased the said property having full knowledge of execution of the Exs.1 to 3 between the plaintiff and the defendants No.1 to 3?

4. Whether the First Appellate Court was right in coming to the conclusion that documents at Exs.P.1 to 3 do not seem to be genuine in the absence of a foundation being laid by the defendants, who are attacking the said documents?

5. To consider any other question of law which may arise for consideration while hearing the appeal.

Reg: Substantial Questions of Law No.1, 2 and 4:

24. Substantial Questions of Law No.1, 2 and 4 are

interconnected and hence, they are taken together for

common discussion, to avoid the repetition of facts.

25. The plaintiff society examined its Secretary as,

PW-1, who deposed that the plaintiff society is a registered

housing cooperative society and its objective is to acquire

lands, form layouts of residential sites and thereafter allot

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sites to its employees. The plaintiff society, after

successfully completing its projects at Allanahalli, Nandana

Halli village took up its 3rd project for the formation of

sites and residential layouts for the benefits of its

members in Lalithadripura Village. The plaintiff society

undertook the project in Lalithadripura village, comprising

the formation of a huge residential layout comprising

about 1200 sites. The society identified the lands for

acquisition and formation of residential layout measuring

123 g and acres 8 guntas in Lalithadripura village, Varuna

Hobli, Mysuru District, the following survey numbers were

identified:

Sy.Nos.19/1, 19/3, 20/1, 22/2, 22/3, 28/39, 52/1 & 2, 53, 55, 68/2, 70/1, 2, 8, 4, 5, 71/1, 2, 3, 4, 73, 74, 75, 76/1, 76/2, 77/1, 77/2, 78, 79, 80, 81, 82/1, 82/2A, 82/2B, 83/1, 2, 84/1, 2, 85, 86, 88/1, 82/2, 89/1&2 in total 123 acres 8 guntas.

26. The suit schedule property in Sy.No.84/1 was

also one of the identified lands for acquisition. The said

lands were identified and acquired on the basis of mutual

agreements with the land owners. The plaintiff society

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approached the Government for de-notifying the lands as

MUDA had proposed to acquire the aforesaid lands. The

State Government considering the request of the plaintiff

society de-notified lands including the suit land by the

order dated 08.11.2001.

27. Defendants No.1 to 3 owned the lands to the

extent of 10 acres and 13 guntas and the same was sold

in favour of the plaintiff society on mutual understanding.

An agreement dated 12.01.2001, styled as 'Oppanda

Patra' was executed by defendants No.1 to 3 in favour of

the plaintiff agreeing to sell the lands owned and

possessed by them and the plaintiff society has also taken

possession of 5 items measuring 10 acres 13 guntas. The

'Oppanda Patra' was surrendered to the Government of

Karnataka at the time the de-notification order was

passed. Defendants No. 1 to 3 agreed to sell the suit land

in favour of the plaintiff society and executed a sale

agreement on 12.01.2002 for a sale consideration of

Rs.2,15,000/- per acre and on the date of execution of the

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sale agreement defendants No.1 to 3 received Rs.15,000/-

as an advance sale consideration amount. Defendants

No.1 to 3 pleaded that they require one year time to

complete the sale transaction as there are Mango and

Coconut trees in the suit schedule property.

28. After the execution of a sale agreement dated

12.01.2002, defendants No.1 to 3 vide communication

dated 04.01.2003 sought for an extension of time for

another 8 months for the completion of sale transaction.

On 01.07.2003 the plaintiff paid an additional advance sale

consideration and sought for extension of time by another

six months. Thus, the plaintiff society paid Rs.50,000/-

towards the advance sale consideration amount. It is

contended that the plaintiff society was/is always ready

and willing to perform its part of the contract but

defendants No.1 to 3 have not performed their part of

contract. Defendants No.1 to 3 executed a registered sale

deed in favour of defendant No.4 on 25.01.2006, thereby

depriving the legitimate rights of the plaintiff.

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29. The plaintiff society to substantiate its case

produced the documents. Ex.P.1 is the sale agreement

dated 12.01.2002 executed by defendants No.1 to 3 in

favour of the plaintiff society agreeing to sell suit schedule

property at the price of Rs.2,15,000/- per acre, the

plaintiff society paid a sum of Rs.50,000/- as an advance

sale consideration amount and agreed to pay the balance

sale consideration amount at the time of registration of

sale deed. Ex.P.2 is the communication dated 01.07.2003

issued by defendants No.1 to 3 in favour of the plaintiff

acknowledging the receipt of Rs.50,000/- as an advance

sale consideration amount, and requested the time of six

months to execute a registered sale deed. Ex.P.3 is the

letter dated 04.01.2003 issued by defendants No.1 to 3 in

favour of the plaintiff society acknowledging the receipt of

Rs.30,000/- as the further consideration amount and

sought a time of 8 months to execute a registered sale

deed. Ex.P.4 is the copy of the order of denotification,

wherein the Government of Karnataka identified the lands,

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including the suit schedule property. Ex.P.5 is the certified

copy of the registered sale deed dated 25.01.2002

executed by defendants No.1 to 3 in favour of defendant

No.4. Ex.P.6 is the copy of the record of rights regarding

the suit property standing in the name of Puttalingaiah.

Ex.P.7 is the copy of the record of rights standing in the

name of defendant No.4. Ex.P.8 is the copy of the layout

plan.

30. During the cross-examination, it was elicited

that defendants No.1 to 3 have not executed any sale

agreement in favour of the plaintiff society and also admit

that the plaintiff society has not approached the Deputy

Commissioner seeking permission under Section 109 of

the Karnataka Land Reforms Act. He also admits that

before filing the suit, the plaintiff society had not issued a

notice or paper publication and that he had not obtained a

consent letter before the "Oppanda Patra" dated

12.01.2001. The plaintiff society examined one Thomas as

PW-2 who deposed that he is working with M/s. S.R.

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Constructions, Mysuru which is indulged in the

development of layouts. The said M/s. S.R. Constructions

has undertaken several projects of the plaintiff society for

the development of layouts.

31. On 12.01.2002, he went to the office of the

plaintiff society, where defendants No.1 to 3 were present.

PW-1 was also present and another person by name

Somashekhar was also present. Defendants No.1 to 3

executed a sale agreement in his presence and a sum of

Rs.15,000/- was paid by cash to defendants No.1 to 3 by

PW-1 and defendant No.1 signed the agreement.

Subsequently, defendants No.2 and 3 affixed their

signatures on the sale agreement in his presence and he

affixed his signature as an attesting witness on Ex.P.1. The

defendants sought an extension of the time and the

plaintiff society has paid Rs.20,000/- in his presence and

he has attested letters dated 01.04.2003 and 01.07.2003.

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32. During the cross-examination, he pleads

ignorance regarding the survey number of land owned by

defendant No.1 and elicits that the sale talks took place

only regarding the suit land and Exs.P.1 to P.3 were

written by the clerk. He does not know the contents of

Exs.P.1 to P.3. He pleads ignorance as to the consideration

amount agreed by the parties and he does not remember

that there was any agreement between the parties and it

is elicited that he does not remember for which survey

number Exs.P.2 and P.3 were executed.

33. In rebuttal defendant No.3 was examined as

DW-1. He has reiterated the written statement averments

in the examination-in-chief. He has denied regarding the

"Oppanda Patra", receipt of Rs.50,000/- as well as the

execution of Exs.P.1 to P.3. He deposed that the plaintiff

obtained signatures on the blank papers and misused

them. Defendants No.1 to 3 have not received any amount

as alleged by the plaintiff society in the plaint. Defendants

No.1 to 3 sold the suit schedule property in favour of

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defendant No.4 by executing a registered sale deed on

25.01.2006. The suit filed by the plaintiff is barred by

limitation. During the cross examination, it was suggested

that defendants No.1 to 3 executed Exs.P.1 to P.3. The

said suggestion was denied by DW-1. Defendant No.2 was

examined as DW-2. Examination-in-chief of the DW-2 is

the replica of the examination-in-chief of DW-1. The

defendant also examined the Officials of the Deputy

Commissioner, who have deposed that the plaintiff has not

obtained a permission under Section 109 of the Karnataka

Land Reforms Act.

34. From the perusal of the entire evidence on

record, it is noted that it is the case of the plaintiff society

that defendants No.1 to 3 executed a sale agreement

agreeing to sell the suit schedule property in favour of the

plaintiff society for a price of Rs.2,15,000/- per acre and

the plaintiff society paid a sum of Rs.15,000/- on the date

of the execution of the sale agreement. Defendants No.1

to 3 executed Ex.P.1 and defendants No.1 to 3 issued an

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acknowledgement for having received the advance

consideration amount as per Ex.P.2 and P.3. Though, it is

the case of the plaintiff society that the plaintiff society

has paid a consideration amount, PW-1 in the evidence

has deposed that plaintiff society has not paid the advance

sale consideration amount to defendants No.1 to 3, but

M/s. S. R. Constructions/developer paid the advance sale

consideration amount. However, PW-2 has not stated that

the said amount was paid by M/s. S.R. Constructions. PW-

2 is working in M/s. S.R. Constructions company. PW-2

has also not produced any account books to

show/establish that the sale advance consideration

amount of Rs.50,000/- was paid by M/s. S.R. Construction

Company.

35. Further I have perused Ex.P.1. The contents of

Ex.P.1 is reproduced here as under:

d«ÄÃ£ÀÄ M¥ÀàAzÀzÀ PÀgÁgÀÄ ¥ÀvæÀ "¸À£ï JgÀqÄÀ ¸Á«gÀzÀ JgÀqÀ£ÉÃ E¸À« d£ÀªÀj ªÀiÁ»AiÀÄ vÁjÃRÄ ºÀ£ßÉ gÀqÀgÀ°è.

1. ªÉÄÊ¸ÀÆgÀÄ ¹n £Àdgï¨Ázï ªÉÆºÀ¯Áè £ÉÃvÁf£ÀUÀgÀzÀ°ègÀÄªÀ PÀ£ÁðlPÀ ¥ÉÆ°Ã¸ï £ËPÀgÀgÀ UÀÈºÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀ

- 29 -

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(¤) PÁAiÀÄðzÀ²ð ºÁUÀÆ ¸ÀAWÀzÀ ¥Àæw¤¢üAiÀiÁzÀ ¯ÉÃmï ªÀiÁ½UÉÃUËqÀgÀ ªÀÄUÀ ²æÃ. £ÀAdÄAqÉÃUËqÀgÀªÀjUÉ

2. ªÉÄÊ¸ÀÆgÀÄ vÁ®ÆèPï, ªÀgÀÄuÁ ºÉÆÃ§½ ®°vÁ¢æ¥ÄÀ gÀ UÁæªÄÀ zÀ°è ªÁ¸ÀªÁVgÀÄªÀ ¯ÉÃmï UÀAUÀAiÀÄå°AUÀAiÀÄå£À ªÀÄPÀÌ¼ÁzÀ 1 ²æÃ. ¥ÀÄlÖ°AUÀAiÀÄå 55 ªÀµÀð, ºÁUÀÆ £À£ßÀ ªÀÄUÀ ²æÃ ¦. PÀÄªÀiÁgÀ 24 ªÀµÀð 2 ²æÃ. J¯ï ªÀÄºÀzÉÃªÀ¥àÀ 45 ªÀµÀð DzÀ £ÁªÀÅUÀ¼É®ègÆÀ ¸ÉÃj §gÉzÄÀ PÉÆlÖ d«ÄÃ£ÀÄ M¥ÀàAzÀªÉÃ£ÉAzÀgÉ.

3. £ÁªÀÅ F »AzÉ ¢£ÁAPÀ: 12.1.2001 gÀAzÀÄ §gÉzÀÄPÉÆlÖ M¥ÀàAzÀzÀ ¥ÀæPÁgÀ ¸ÀzÀj ¸ÀévÛÀ£ÄÀ ß ¸ÀAWÀPÌÉ ©lÄÖPÆ É qÀ®Ä ¸ÀPÁðgÀzÀ DzÉÃ±À ¸ÀASÉå: £ÀCJ246:ªÉÄÊC¥Áæ:2000 ¨ÉAUÀ¼Æ À gÀÄ ¢£ÁAPÀ: 8.11.2001 gÀ ªÉÄÃgÉ ¸ÀPÁðgÀªÅÀ ªÉÄÊ¸ÀÆgÀÄ £ÀUÀgÀ ¥Áæ¢üPÁgÀzÀ GzÉÝÃ²vÀ ®°vÁ¢æ£ÀUÀgÀ ªÀ¸Àw ªÀ®AiÀÄ §qÁªÀuÉ AiÉÆÃd£É¬ÄAzÀ ºÉÆgÀvÄÀ ¥Àr¹ ¸ÀAWÀPÌÉ ªÀ¸Àw AiÉÆÃd£ÉUÁV ©lÄÖPÆ É nÖgÄÀ ªÀ DzÉÃ±ÀzÀ C£ÀéAiÀÄ FUÁUÀ¯ÉÃ LzÀÄ LlA ¸ÀªÉð £ÀA.UÀ¼À°è 10 JPÀgÉ 13 UÀÄAmÉ d«ÄÃ£À£ÄÀ ß vÀªÄÀ ä ¸ÀAWÀPÌÉ PÀæAiÀÄzÀ M¥ÀàAzÀzÀ PÀgÁgÀÄ §gÉzÄÀ PÉÆnÖgÄÀ vÉÛÃªÉ. G½zÀ ¸ÀªÉð £ÀA.84:1 gÀ°è EgÀÄªÀ 2 JPÀgÉ 20 UÀÄAmÉAiÀÄ°è ¨É¯É¨Á¼ÀÄªÀ ªÀiÁ«£À ªÀÄgÀ vÉAV£ÀªÄÀ gÀUÀ½zÀÄÝ, CªÀÅUÀ¼À£ÄÀ ß PÀmÁªÀÅ ªÀiÁrPÉÆAqÀ ªÉÄÃ¯É vÀªÄÀ UÉ PÀæAiÀÄ ¥Àvæª À À£ÄÀ ß §gÉzÄÀ PÉÆqÀÄvÉÛÃªÉ. PÀæAiÀÄ¥ÀvæÀ ªÀiÁrPÉÆqÀ®Ä MAzÀÄ ªÀµÀð PÁ¯ÁªÀPÁ±À PÉÃ½PÉÆqÀÄvÉÛÃ£É. AiÀiÁªÀÅzÉÃ PÁgÀt¢AzÀ F d«ÄÃ£À£ÄÀ ß ¥ÀgÀ¨ÁgÉ ªÀiÁqÀÄªÀÅ¢®è. FUÀ £ÁªÀÅ ¸ÀAWÀPÌÉ PÉÆnÖgÄÀ ªÀ d«ÄÃ£ÀÄ JPÀgÉ 1PÉÌ gÀÆ.2,15,000-00 gÀÆ£ÀAvÉ ¸ÀªÉð £ÀA84:1 gÀ d«ÄÃ£À£ÄÀ ß ¸ÀºÁ ¸ÀAWÀPÌÉ ªÀiÁgÀ®Ä M¦àgÄÀ vÉÛÃ£É. F ¢£À ªÀÄÄAUÀqÀªÁV gÀÆ. £ÀUÀzÄÀ 15,000-00 (gÀÆ¥Á¬Ä ºÀ¢£ÉÊzÀÄ ¸Á«gÀ ªÀiÁvÀæ) gÀÆUÀ¼À£ÄÀ ß ¸ÁQëUÀ¼À gÀÆ§Ä gÀÆ§Ä ¥ÀqÉzÄÀ PÉÆArgÀÄvÉÛÃ£É.

µÉqÆÀ å¯ï ¸ÀéwÛ£À «ªÀgÀ ªÉÄÊ¸ÀÆgÀÄ vÁ¯ÉÆèÃPï ªÀgÄÀ uÁ ºÉÆÃ§½ ®°vÁ¢æ¥ÄÀ gÀ UÁæªÄÀ PÉÌ ¸ÉÃjzÀ ¸ÀªÉð uÉÆ.84:1 (JA¨sÀvÛÀ £Á®ÄÌ MAzÀ£ÉÃ ¥ÉÆÃqÀÄ) G¼Àî d«ÄÃ¤UÉ ZÀPÄÀ Ì§A¢ü.


                 ¥ÀÆªÀðPÉÌ         : ¸ÀªÉð £ÀA.73gÀ ¸ÀAWÀzÀ d«ÄÃ£ÀÄ
                 ¥À²ÑªÄÀ PÉÌ       : ¸ÀPÁðj ºÀ¼îÀ
                 GvÀÛgÀPÌÉ         : ¸ÀªÉð £ÀA.704 ¤ªÀÄä ¸ÀAWÀzÀ d«ÄÃ£ÀÄ
                 zÀQëtPÉÌ          : 84:2 gÀ d«ÄÃ£ÀÄ
                                       - 30 -
                                                           NC: 2025:KHC:19463



HC-KAR

F ªÀÄzsåÉ EgÀÄªÀ RÄ¶Ì «¹ÛÃtð 2 JPÀgÉ 20 UÀÄAmÉ d«ÄÃ£ÀÄ ªÀiÁvÀæ F M¥ÀàAzÀzÀ PÀgÁgÀÄ ¥ÀvæPÀ ÌÉ M¼À¥n À ÖgÄÀ vÁÛVgÀÄvÀÛzÉ."

36. Further to prove the contents of Ex.P.1, the

plaintiff society has not produced any Oppanda Patra. It is

the case of the plaintiff that the said document was

produced before the Government in the denotification

proceedings. When the defendants filed a written

statement denying the execution of "Oppanda Patra", the

burden was on the plaintiff to call for the said "Oppanda

Patra" from the Government. The plaintiff society has not

taken any steps to secure "Oppanda Patra" from the

Government. The entire case of the plaintiff stands on the

Oppanda Patra which is not produced before the Court.

37. Further, the plaintiff has not examined

Somashekar, who was present at the time of the alleged

sale talks. For the non-production of Oppanda Patra, an

adverse inference has to be drawn under Section 114(g) of

the Indian Evidence Act, 1872. The first appellate Court

has rightly drawn an adverse inference against the plaintiff

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society for the non-production of "Oppanda Patra" and

further PW-1, in the course of cross-examination has

stated that the defendants have not executed an

agreement of sale regarding the said property. Further,

PW-1, also admitted that before the filing of the suit they

have not issued any legal notice. The said admission of

PW-1 clearly falsifies the case of the plaintiff regarding the

execution of the sale agreement regarding the suit

schedule property by defendants No.1 to 3 in favour of the

plaintiff society.

38. The plaintiff contended that the plaintiff society

had paid a sum of Rs.50,000/- towards the advance sale

consideration amount and received acknowledgement

marked as Ex.P.2 and P.3. To corroborate Exs.P.2 and P.3

the plaintiff society has not produced any records to

demonstrate regarding the payment of an advance sale

consideration amount. On the other hand, the plaintiff

contended that the developer paid the said amount.

However, the plaintiff examined the official of the

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M/s. S.R. Constructions as PW-2, PW-2 has not produced

any records to show that he was the employee of the

M/s. S.R. Constructions and M/s. S.R. Constructions has

paid the advance sale consideration amount. M/s.S.R.

Constructions has not produced any books of account to

establish that they have paid the advance sale

consideration amount. The plaintiff has failed to establish

the payment of the sale consideration amount.

39. Though, according to the case of the plaintiff,

the alleged sale agreement was executed on 12.01.2002.

The plaintiff has not issued any legal notice to defendants

No.1 to 3, calling upon them to receive the balance

consideration amount and execute a registered sale deed.

To prove readiness and willingness, the plaintiff has not

produced any statement of accounts to establish that the

plaintiff society possessed the sufficient funds for the

payment of the balance sale consideration amount. The

suit was filed in 2006. The plaintiff has not explained the

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cause for filing the suit in 2006. Thus, the plaintiff society

has failed to establish its readiness and willingness.

40. Further, the first appellate Court has also

recorded its finding regarding the genuineness of Exs.P.1

and P.2. That in Exs.P.2 and P.3, a large space is left at

the top. The seal and signature of the Secretary is put at

the extreme bottom portion of the Ex.P.2 and in Ex.P.3,

which finds its place in a narrow space and there was no

reason to leave the space at the top of Exs.P.2 and P.3

and if the said documents were to be typed from the top

there was no necessity of the Secretary of the plaintiff to

put his seal and signature in a congested space and

further, PW-1 has stated that documents were got typed

by defendants No.1 to 3. There is time gap of six months

in between Exs.P.2 and P.3.

41. As observed above, the suit is one for the

specific performance of a contract. The initial burden is on

the plaintiff to prove the execution of the sale agreement

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and the payment of the advance sale consideration

amount. If the plaintiff discharges the burden of proof, the

burden shifts to the defendants. Admittedly, in the instant

case, the plaintiff has failed to prove the execution of the

sale agreement and the payment of consideration amount.

Hence, the question of the defendants establishing the

claim of misrepresentation does not arise. Thus,

documents Ex.P.1 to P.3, as produced by the plaintiffs

society, are concocted and created to suit its illegal claim.

In view of the above discussion, I answer substantial

questions of law Nos.1, 2 and 4 in the affirmative.

Reg: Substantial question of law No.3:

42. The trial Court answered issue No.4 in the

negative holding that the defendants have proved that the

suit is barred by limitation. The trial Court ought to have

dismissed the suit on the ground of limitation, instead it

decreed the suit. The finding recorded on issue No.4 was

not challenged by the plaintiff. The said finding has

attained finality.

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43. Learned counsel for the plaintiff relied upon the

judgment of the Hon'ble Apex Court in the case of P.

Daivasigamani (supra) the Hon'ble Apex Court has held

that mere delay alone in filing a suit for specific

performance without reference to the conduct of a vendee,

cannot be ground for refusing the relief, when the suit is

filed within statutory time-limit by the vendee. Admittedly,

the plaintiff has failed to prove the execution of a sale

agreement and the suit was filed more than 5 years after

the date of execution of the sale agreement. The suit is

not filed within the statutory time and the plaintiff sought

for an amendment seeking a relief of declaration after 7

years from the date of filing of the written statement by

the defendants. The relief of declaration that the

registered sale deed, is null and void and not binding, is

barred by limitation as per Article 58 of the Limitation Act,

1963. The plaintiff has not filed an application for an

amendment to the plaint within three years from the date

of filing the written statement. Hence, the judgment relied

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upon by the learned counsel for the plaintiff does not apply

to the case on hand. He also placed reliance on the

judgment of Hon'ble Apex Court in the case of K.

Prakash (supra). There is no dispute regarding the

exercise of discretion under Section 20 of the Specific

Relief Act.

44. As observed in substantial questions of law

No.1, 2 and 4, since the plaintiff has failed to prove the

execution of a sale agreement, payment of a sale

consideration amount to defendants No.1 to 3. Defendants

No.1 to 3 executed a registered sale deed in favour of

defendants No.4 on 25.01.2006. Defendant No.4, after

verifying the entire records had purchased the suit

schedule property. Defendant No.4 is a bonafide purchaser

for a value, without notice. The first appellate Court was

justified in recording its finding that defendant No.4 is a

bonafide purchaser. In view of the above discussion, I

answer substantial question of law No. 3 in the affirmative.

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45. Accordingly, I proceed to pass the following:

ORDER

The Appeal is dismissed.

The judgment and decree dated 30.01.2016 passed

by the first appellate Court in RA.No.181/2013 by the

learned II Additional District Judge, Mysuru is confirmed.