Karnataka High Court

Mrs. Shahnaz Begum vs V. Liyakath Ali on 17 June, 2025

                                           -1-
                                                        NC: 2025:KHC:21605
                                                       RSA No. 341 of 2013


              HC-KAR




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 17TH DAY OF JUNE, 2025

                                         BEFORE

                  THE HON'BLE MR JUSTICE ASHOK S.KINAGI

               REGULAR SECOND APPEAL NO. 341 OF 2013 (SP)

              BETWEEN:

              MRS. SHAHNAZ BEGUM
              W/O SHABBIR AHMED
              AGED ABOUT 65 YEARS
              R/O NO.226, 6TH MAIN ROAD
              MINAHAJ NAGAR
              J P NAGAR POST
              BANGALORE-78
                                                                ...APPELLANT
              (BY SRI. PURUSHOTHAM G., ADVOCATE FOR
                  SRI. RAMESH M.N., ADVOCATE)

              AND:
Digitally
signed by     V. LIYAKATH ALI
SUNITHA K S   S/O ABDUL FAFTAR
              AGED ABOUT 60 YEARS
Location:
HIGH COURT    R/O NO.1, B N 18TH STREET
OF            CHANDNI CHOWK ROAD CROSS,
KARNATAKA     SHIVAJINAGAR
              BANGALORE-560001
                                                               ...RESPONDENT
              (BY SRI. M.D. RAGHUNATH, ADVOCATE FOR
                  SRI. A.N. PATEL, ADVOCATE)

                     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
              JUDGEMENT     &   DECREE    DTD     16.11.2012    PASSED   IN
              R.A.NO.145/2011 ON THE FILE OF PRESIDING OFFICER, FAST
                              -2-
                                        NC: 2025:KHC:21605
                                       RSA No. 341 of 2013


HC-KAR




TRACK COURT-III, BANGALORE RURAL DISTRICT, BANGALORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DTD 2.12.2010 PASSED IN OS.NO.380/2006 ON
THE   FILE   OF   II   ADDITIONAL   SENIOR   CIVIL     JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE.


      THIS APPEAL, COMING ON FOR ORDERS, 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 16.11.2012,

passed in R.A.No.145/2011 by the Fast Track Court-III,

Bangalore Rural District, Bangalore, and the judgment and

decree dated 02.12.2010 passed in O.S.No.380/2006 by

the learned II Additional Civil Judge (Sr.Dn.) Bangalore

Rural District, Bangalore.

2. For convenience, the parties are referred to based

on their rankings before the trial Court. The appellant was

the plaintiff, and the respondent was the defendant.

NC: 2025:KHC:21605

HC-KAR

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

are as follows:

The plaintiff filed a suit against the defendant for

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

plaintiff that the defendant is the absolute owner of the

suit schedule property. The plaintiff is a pardanashin lady,

and she agreed to purchase the suit schedule property for

a consideration of Rs.9,26,000/- and accordingly, the

plaintiff paid a sum of Rs.5,00,000/- on 23.08.2003, and

the defendant acknowledged receipt of part payment of

consideration under the receipt dated 23.08.2003. It is

contended that the defendant had received a balance sale

consideration of Rs.3,00,000/- on 15.09.2003. The

balance amount of Rs.1,26,000/- was to be paid to the

defendant. In part performance of a contract, the

defendant delivered the possession of the suit schedule

property on 15.09.2003. The plaintiff was/is always ready

and willing to perform her part of the contract. The

plaintiff approached the defendant with a request to

NC: 2025:KHC:21605

HC-KAR

execute the registered sale deed by receiving the balance

consideration, but the defendant refused to execute the

registered sale deed. The plaintiff got issued a legal notice

to the defendant calling upon the defendant to execute the

registered sale deed. The defendant replied to the legal

notice with the untenable grounds. Hence, a cause of

action arose for the plaintiff to file a suit for specific

performance of a contract. Accordingly, prays to decree

the suit.

3.1. The defendant filed a written statement denying

the execution of a sale agreement and agreeing to sell the

suit schedule property in favour of the plaintiff for

consideration of Rs.9,26,000/-. It is contended that the

defendant borrowed a loan from the plaintiff and executed

a receipt in favour of the plaintiff. The defendant has

repaid the loan amount of Rs.8,00,000/- to the plaintiff.

The alleged receipt cannot take the shape of an agreement

of sale and it does not include the description of the

property in Sy.No.45. The plaintiff is not in possession and

NC: 2025:KHC:21605

HC-KAR

enjoyment of the suit schedule property in part

performance of a contract. There is no cause of action to

file a suit. Hence, prays to dismiss the suit.

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

parties, framed the issues and additional issues.

1) Whether the plaintiff proves that defendant has executed the agreement of sale agreeing to sell the suit property and received Rs.3,00,000/- as earnest money?

2) Whether the plaintiff proves that she was always ready and willing to perform her part of the contract?

3) Whether the plaintiff is entitled for relief sought?

4) What order or decree?

Additional Issues:

1) Whether the plaintiff proves that the defendant agreed to sell the suit property for Rs.9,26,000/- orally?

3.3. The plaintiff, to prove her case, examined

herself as PW.1, examined 4 witnesses as PWs.2 to 5 and

NC: 2025:KHC:21605

HC-KAR

marked 18 documents as Exs.P1 to P18. In rebuttal, the

defendant examined himself as DW.1 and marked 23

documents as Exs.D1 to D23. The trial Court, after

recording the evidence of the parties, hearing both sides

and after assessing verbal and documentary evidence,

answered issue No.1 partly in the affirmative and partly in

the negative, additional issue No.1 in the negative, issue

No.2 does not survive for consideration, issue No.3 in the

negative and held that the plaintiff is entitled to an

alternative relief of recovery of Rs.8,00,000/- together

with interest @ 10% p.a. Issue No.4 as per the final order.

The suit of the plaintiff was partly decreed with costs in

respect of an alternative relief of recovery of money. It is

ordered and directed the defendant to pay a sum of

Rs.8,00,000/- to the plaintiff together with interest @ 10%

p.a from the date of Ex.P1 untill the date of realization and

the suit for specific performance of a contract was

dismissed.

NC: 2025:KHC:21605

HC-KAR

3.4. The plaintiff, aggrieved by the dismissal of the

suit for specific performance of contract, in

O.S.No.380/2006, preferred an appeal in R.A.No.145/2011

on the file of Fast Track Court-III, Bangalore Rural District,

Bangalore.

3.5. The first Appellate Court, on hearing the

learned counsel for the parties, framed the following points

for consideration.

1) Whether the plaintiff/appellant is entitled for the decree of specific performance of contract in pursuance of the Ex.P1 stamp receipt?

2) Whether the impugned judgment and decree calls for interference by this Court?

3) To what order?

3.6. The first Appellate Court, after reassessing the

verbal and documentary evidence, answered point Nos.1

and 2 in the negative, point No.3 as per the final order.

The appeal was dismissed and the judgment and decree

passed by the trial Court was confirmed vide judgment

NC: 2025:KHC:21605

HC-KAR

dated 16.11.2012. The plaintiff, aggrieved by the

impugned judgments, filed this Regular Second Appeal.

4. Heard the arguments of learned counsel

Sri. Pursushotham G, for Sri. Ramesh M.N, the learned

counsel for the plaintiff and learned counsel Sri. M.D.

Raghunath for Sri. A.N.Patel, learned counsel for the

defendant.

5. Learned counsel for the plaintiff submits that

the defendant agreed to sell the suit schedule property for

consideration of Rs.9,26,000/- and accordingly, as on the

date of the execution of a sale agreement, the plaintiff

paid a sum of Rs.5,00,000/- as advance sale consideration

amount and subsequently, the plaintiff paid Rs.3,00,000/-

to the defendant towards further sale consideration

amount. He submits that the plaintiff has produced the

document marked as Ex.P1, which discloses that the

defendant offered to sell the suit property for

consideration of Rs.9,26,000/-. Ex.P1 proves the

NC: 2025:KHC:21605

HC-KAR

execution of a sale agreement regarding the suit schedule

property in favour of the plaintiff. Both courts below have

not properly considered Ex.P1 and committed an error in

dismissing the suit for specific performance of the

contract. Hence, he submits that the impugned judgments

passed by the courts below are arbitrary and erroneous.

Hence, on these grounds, prays to allow the appeal.

6. Per contra, learned counsel for the defendant

submits that the transaction between the plaintiff and

defendant is a loan transaction and not a sale transaction.

The document produced by the plaintiff is a receipt and

the plaintiff has not produced any records to establish that

the transaction between the plaintiff and the defendant

constitute a sale transaction. Ex.P1 is not a sale

agreement. Both the courts below have rightly appreciated

the evidence on record and have come to a conclusion that

the transaction between the plaintiff and defendant is a

loan transaction and not a sale transaction. Hence, on

these grounds, prays to dismiss the appeal.

- 10 -

NC: 2025:KHC:21605

HC-KAR

7. Learned counsel for the defendant submits that

under the decree passed by the trial Court, the defendant

has deposited the decreetal amount with interest in 2011.

8. This Court vide order dated 22.07.2014,

admitted the appeal to consider the following substantial

questions of law.

1) Whether the finding of the trial Court that Ex.P1 is only a receipt acknowledging money and not an agreement of sale is sustainable when in law there is no prescription of an agreement, which could be either in oral or in writing?

2) Whether the trial Court is justified in denying the relief of specific performance on the ground that Ex.P1 is only a receipt and not an agreement of sale?

3) Was not the appellate Court required to consider the evidence in its totality to decide whether the parties were hit by contract of sale of the property in view of clear evidence from the plaintiff?

- 11 -

NC: 2025:KHC:21605

HC-KAR

9. Reg. Substantial question of law Nos.1 to 3:

Substantial questions of law Nos.1 to 3 are

interlinked, and are taken together for common

discussion, to avoid the repetition of facts.

It is not in dispute that the defendant is the absolute

owner of the suit schedule property. It is the case of the

plaintiff that the defendant agreed to sell the suit schedule

property for consideration of Rs.9.26,000/- and

accordingly, the plaintiff paid a sum of Rs.5,00,000/-

towards the advance sale consideration amount and

agreed to pay the balance sale consideration amount at

the time of registration of sale deed. The plaintiff had paid

another sum of Rs.3,00,000/-, and the plaintiff is liable to

pay Rs.1,26,000/- towards the balance sale consideration

amount. The defendant executed the receipt of part

payment of consideration on 23.08.2003 in the presence

of witnesses.

10. To prove the execution of a sale agreement, the

plaintiff placed reliance on the receipt marked as Ex.P1. I

- 12 -

NC: 2025:KHC:21605

HC-KAR

have perused the recital of Ex.P1, which discloses that the

defendant is the sole and absolute owner of the property

bearing Sy.No.45 situated at Belahalli village, Yelahanka,

Bangalore North Taluk, and the defendant offered to sell

the suit schedule property for consideration of

Rs.9,26,000/- and accordingly, the plaintiff paid

Rs.5,00,000/-. The plaintiff has also produced documents.

Ex.P2 and 3 are the postal covers. Ex.P4 is the copy of

the legal notice dated 23.08.2005 issued by the plaintiff to

the defendant, calling upon the defendant to receive the

balance sale consideration amount and execute the

registered sale deed and Ex.P5 is the correction letter

dated 03.09.2005, as there was a typographical mistake in

the 16th line of the Ex.P4, which was typed as 22.08.2003

instead of 23.08.2005, Exs.P6 and 7 are the postal covers.

Ex.P8 is another copy of the legal notice dated

25.10.2005; Ex.P9 is the under certificate of posting, and

Ex.P10 is the reply issued to the legal notice dated

19.12.2005. Ex.P11 is the copy of the legal notice dated

- 13 -

NC: 2025:KHC:21605

HC-KAR

05.12.2005. Ex.P12 is the receipt for having paid

Rs.10,000/- on 10.10.2003 and Ex.P13 is the receipt for

having paid Rs10,000/- on 20.12.2003, Ex.P14 is a receipt

for having paid Rs.15,000/- on 08.11.2003, Ex.P15 is the

receipt for having paid Rs.10,000/- on 10.12.2003, Ex.P16

are photographs, Ex.P16(a) to 18(a) are the negatives.

11. On the other hand, the plaintiff also examined

attesting witnesses to Ex.P1. The defendant examined

himself as DW.1 and deposed that the transaction between

the plaintiff and defendant was a loan transaction and not

a sale transaction, and the defendant never agreed to sell

the suit schedule property in favour of the plaintiff, and

the defendant had borrowed a sum of Rs.8,00,000/- from

the plaintiff and the defendant had repaid the said loan

amount. Ex.P1 is concocted by the plaintiff to sue his

illegal claim, and to prove the defence, the defendant had

produced the document Ex.D1 is the original registered

sale deed, which discloses that the defendant had

purchased the said suit schedule property from one Bakery

- 14 -

NC: 2025:KHC:21605

HC-KAR

Syed Ameer on 02.01.1993 and Exs.D2 to 10 are the RTC

extracts stands in the name of the defendant, Exs.D11 to

20 are tax paid receipts, Ex.D21 is the patta receipt,

Exs.D22 and 23 are the photographs.

12. From the perusal of the entire evidence on

record, the plaintiff has contended that the defendant

agreed to sell the suit schedule property and produced

Ex.P1. From the perusal of Ex.P1, it is a receipt and the

plaintiff, to substantiate that a sale agreement was

executed by the defendant in favour of the plaintiff, the

plaintiff has not produced any documents. Further, Ex.P1

does not disclose when the sale agreement was executed

between the plaintiff and defendant. The defendant had

taken a defence that the transaction between the plaintiff

and the defendant was a loan transaction, not a sale

transaction. The document produced by the plaintiff

marked as Ex.P1 is vague and does not disclose when the

sale agreement took place. Merely, based on the said

receipt, this Court cannot hold that Ex.P1 is the agreement

- 15 -

NC: 2025:KHC:21605

HC-KAR

of sale. The plaintiff has failed to prove that the defendant

agreed to sell the suit schedule property for consideration

of Rs.9,26,000/- and paid Rs.5,00,000/- as an advance

sale consideration amount. Both courts below, considering

Ex.P1, have rightly held that Ex.P1 is not a sale agreement

and the transaction between the plaintiff and the

defendant is a loan transaction and rightly passed the

impugned judgments.

13. Both courts below have entirely considered the

evidence of the witnesses and passed the impugned

judgments. Further, it is not the case of the plaintiff that

the agreement between the plaintiff and defendant is oral,

and there is no specific pleading or record to the date of

the alleged sale transaction entered into between the

plaintiff and defendant. Ex.P1 is the only receipt and not

an agreement of sale. In view of the above discussion, I

answer the substantial questions of law Nos.1 and 2 in the

affirmative. Substantial question of law No.3 in the

negative.

- 16 -

NC: 2025:KHC:21605

HC-KAR

14. Accordingly, I proceed to pass the following:

ORDER

i. The Regular Second Appeal is dismissed.

ii. The judgments and decrees passed by the

courts below, are hereby confirmed.

iii. No order as to the costs.