Karnataka High Court
Smt. Shobha W/O Shivaji Alias Shivappa ... vs Smt. Laxmibai W/O Murigeppa Bhanadari on 11 June, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 100225 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 100225 OF 2023 (SP)
BETWEEN:
SMT. SHOBHA
W/O SHIVAJI @ SHIVAPPA POL,
AGE: 58 YEARS,
OCC: HOUSEHOLD WORK,
R/O: ATHANI, TQ: ATHANI,
DIST: BELAGAVI-591 304.
... APPELLANT
(BY SRI. SIDHANTI PRASAD RAMESHRAO, ADVOCATE)
AND:
1. SMT. LAXMIBAI
W/O MURIGEPPA BHANDARI,
AGE: 56 YEARS,
OCC: AGRI. AND HOUSEHOLD WORK,
R/O: KURUBAR GALLI, SANKONATTI,
TQ: ATHANI, DIST: BELAGAVI-591 304.
Digitally signed by
MALLIKARJUN 2. SHRI. MURAGESH
RUDRAYYA KALMATH
Location: HIGH COURT S/O SHIVAPPA @ SHIVAJI POL,
OF KARNATAKA AGE: 41 YEARS, OCC: SERVICE,
DHARWAD BENCH
R/O: ATHANI, TQ: ATHANI,
DIST: BELAGAVI-591 304.
... RESPONDENTS
(BY SRI. H.R. DESHPANDE, ADVOCATE FOR R1;
R2-SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
20.03.2023 PASSED IN O.S.NO.337/2017 ON THE FILE OF PRINCIPAL
SENIOR CIVIL JUDGE, ATHANI.
THIS APPEAL, COMING ON ADMISSION, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
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RFA No. 100225 of 2023
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
This appeal is filed by the plaintiff/appellant questioning
the judgment and decree passed in OS No.337/2017, dated
20.03.2023, by the Prl. Senior Civil Judge, Athani1, thereby,
suit filed by the plaintiff for specific performance of contract is
dismissed.
2. For the sake of convenience and easy reference,
the parties are referred to as per their rankings before the
Trial Court.
Brief facts of the case are as under:
3. The defendant No.1 is owner of the suit schedule
land and according to the plaintiff, the husband of defendant
No.1 had offered the suit schedule land for sale. Accordingly,
an agreement of sale was executed on 29.12.2014 for total
sale consideration amount of Rs.12,90,000/- and a sum of
Rs.1,00,000/- was given as an earnest money to the husband
of defendant No.1. Subsequently, the husband of defendant
Hereinafter referred to as 'trial Court'
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No.1 died in the year 2017. Since, defendant No.1 has not
come forward to execute the sale deed, therefore, the plaintiff
has got issued legal notice on 08.11.2016. Inspite of it, the
defendant No.1 did not turnout to execute registered sale
deed. Therefore, filed a suit for specific performance of
contract.
4. Further it is the case of the plaintiff that during
subsistence of agreement of sale, defendant No.1 has sold
half portion of the suit schedule land in favour of the
defendant No.2. Therefore, filed a suit for specific
performance of contract by impleading defendant No.2 also.
5. On the suit summons issued, the defendant No.1
appeared and filed written statement that her husband had
never executed agreement of sale and the case of the plaintiff
that the husband of defendant No.1 had executed agreement
of sale is false one. Therefore, defendant No.1 denied the
entire agreement of sale. Thus, prays to dismiss the suit.
6. The defendant No.2 had filed written statement by
saying that the husband of defendant No.1 has sold half
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portion of the suit schedule land towards eastern side to the
defendant No.2 for valuable consideration of Rs.8,00,000/-.
Therefore, prays to dismiss the suit.
7. Based on the pleadings, the trial Court has framed
the following issues:
ISSUES
i. Whether the plaintiff proves that the
Murigeppa Mallappa Bhandari was executed
an agreement of sale on 29.12.2014 in her
favour by receiving Rs.1,00,000/- as
earnest money out of Rs.12,90,000/- sale
consideration amount in the presence of
attesting witnesses in respect of suit
schedule property?
ii. Whether the plaintiff proves that she is
ready and willing to perform her part of
contract?
iii. Whether the defendant No.1 proves that the
plaintiff has created the alleged agreement
of sale?
iv. Whether the defendant No.2 proves that he
purchased eastern 1 acre 3 guntas of the
suit land on 17.2.2016 from deceased
Murigeppa Bhandari for valuable
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consideration of Rs.8 lakhs and he is
bonafide purchaser for value?
v. Whether the plaintiff is entitled for the
reliefs as sought for?
vi. What order or decree?
8. The trial Court has dismissed the suit by holding
that the plaintiff has failed to prove that the husband of
defendant No.1 had executed the agreement of sale by
receiving earnest money of Rs.1,00,000/- out of total sale
consideration of Rs.12,90,000/- in the presence of attesting
witnesses. Further observed that, the plaintiff has failed to
prove that the plaintiff is again wiling to perform her part of
contract. The trial Court held that the defendant No.1 proved
the fact that the plaintiff has created alleged agreement of
sale. Further, held that the defendant No.2 failed to prove
that he has purchased eastern half portion measuring 1 acre
03 guntas of land on 17.02.2016 from the husband of
defendant No.1 for sale consideration of Rs.8,00,000/-.
Therefore, it is the observation of the trial Court that the
husband of defendant No.1 has never executed agreement of
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sale and also has not sold half of the suit land in favour of the
defendant No.2. Thus, the trial Court has dismissed the suit.
9. Being aggrieved, the plaintiff has preferred the
appeal by raising various grounds in the memorandum of
appeal.
10. Learned counsel for the appellant/plaintiff
submitted that the husband of defendant No.1 had executed
agreement of sale in presence of attesting witnesses and this
is not correctly appreciated by the trial Court. Hence,
submitted that the finding given by the trial Court is
erroneous. Further submitted that the plaintiff was never
willing to perform her part of contract. Further submitted that,
since the husband of defendant No.1 had sold half portion of
the land in favour of defendant No.2 but denied to execute
the sale deed in favour of the plaintiff. So it is the malafide
intention of defendant No.1. Therefore, under these grounds
prays to allow the appeal and decree the suit as prayed for.
11. On the other hand, learned counsel for defendant
No.1 submitted that the husband of defendant No.1 has never
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executed agreement of sale. The defendant No.2 is none
other than the son of the plaintiff. Therefore, both the plaintiff
and defendant No.2 colluded each other to knock off the
entire property. Therefore, the suit filed is frivolous one and
which is rightly appreciated by the trial Court. Hence,
dismissal of suit need not be interfered with. Hence, prays to
dismiss the appeal.
12. Upon hearing arguments on both sides, the
following points arise for consideration:
i. Whether, under the facts and circumstances
involved in the case, plaintiff proves that the
husband of defendant No.1 had executed
agreement of sale dated 29.12.2014 at
Rs.12,90,000/- and defendant No.1 has
received earnest amount of Rs.1,00,000/-
from the plaintiff?
ii. Whether, under the facts and circumstances
involved in the case, defendant No.2 proves
that the husband of defendant No.1 had
executed registered sale deed in favour of
defendant No.2 to the extent of half portion
of the suit schedule land by virtue of sale
deed dated 17.02.2016?
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iii. Whether, the judgment and decree passed
by the Trial Court requires interference by
this Court?
13. Admittedly, the defendant No.1 and her deceased
husband are the owners of the suit schedule land. It is the
case of the plaintiff's that the husband of defendant No.1
during his lifetime has executed an agreement of sale dated
29.12.2014 for total sale consideration amount of
Rs.12,90,000/- and out of which, he has received
Rs.1,00,000/- as earnest money. The trial Court has
disbelieved the execution of agreement of sale upon
appreciating the evidence on record. The trial Court has
observed that upon cross-examination of PWs-1 to 4, they
have failed to demonstrate as to for what necessity the
husband of defendant No.1 had intended to sell half portion of
the suit schedule property. PW-2 is not attesting witness to
the Ex.P3-agreement of sale. PW-3 is stated to have been as
attesting witness to Ex.P3-agreement of sale, but deposed
that he does not know the persons who have put the
signatures as witnesses to the Ex.P3. Therefore, the execution
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of agreement of sale is proved to be doubtful one. Further,
the evidence appreciated to the aspect that in Ex.P3-
agreement of sale at Sl.No.2 of the witness is kept blank. The
trial Court has observed that during the lifetime, the thumb
impression of the husband of defendant No.1 was obtained on
the blank paper. Therefore, it was created as an agreement of
sale. The trial Court appreciated the contents in agreement of
sale along with the alleged signature and thumb impression
and formed opinion that Ex.P3 is the created one.
14. It is proved that the defendant No.2 is none other
than son of the plaintiff. It is the defence of the defendant
No.2 that the husband of defendant No.1 has sold half portion
of the suit schedule land towards eastern side in favour of
defendant No.2 on 17.02.2016 to the extent of 1 acre 23
guntas but the defendant No.2 has not produced any
documents to prove that the husband of defendant No.1 had
sold 1 acre 23 guntas in favour of the defendant No.2.
15. Though the defendant No.2 who is examined as
DW-3 had stated that the husband of defendant No.1 had
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executed registered sale deed, which is produced as per
Ex.P5, admittedly, in the cross-examination, DW3 had stated
that, he does not know who has produced Ex.P5-sale deed.
The defendant No.2 being DW-3 as a witness had admitted
that the defendant No.1 has not signed to Ex.P5. The trial
Court appreciated the evidence on record that the defendant
No.2 is son of the plaintiff. They have pleaded the ignorance
in their evidence regarding the transactions held between the
husband of defendant No.1 and the plaintiff and the
transactions between the plaintiff and defendant No.2.
Therefore, on all preponderance of probabilities, it is proved
that the plaintiff and defendant No.2 being mother and son
have colluded each other to knock off the entire property.
Thus, the defendant No.2 has taken pleading in the written
statement that the husband of defendant No.1 had executed
sale deed.
16. The plaintiff admittedly is a home maker. The
plaintiff has not proved what is her source of income so as to
purchase the land. It is stated that the husband of plaintiff is
an agriculturist. But the plaintiff being home maker what was
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her source of income to purchase the land to pay earnest
amount of Rs.1,00,000/-, there is no evidence by the plaintiff.
Therefore, the trial Court is correct in dismissing the suit.
Therefore, there is no good ground made out to entertain the
appeal. Thus, the appeal is liable to be dismissed.
Accordingly, I answer points No.(i), (ii) and (iii) in the
'negative'.
17. In the result, I proceed to pass the following:
ORDER
i. The appeal is dismissed.
ii. No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
RKM
CT:BCK
