Smt. Siddaramakka vs R.V. Krishnamurthy
2025 Latest Caselaw 4765 Kant

Karnataka High Court

Smt. Siddaramakka vs R.V. Krishnamurthy on 6 March, 2025

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                             NC: 2025:KHC:9517
                                                         RSA No. 945 of 2015



                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 6TH DAY OF MARCH, 2025
                                              BEFORE
                         THE HON'BLE MR JUSTICE RAVI V HOSMANI
                       REGULAR SECOND APPEAL NO. 945 OF 2015 (SP)
                 BETWEEN:
                       SMT. SIDDARAMAKKA,
                       W/O LATE PUTTAIAH,
                       AGED ABOUT 70 YEARS,
                       REP BY HER GRA HOLDER,
                       B.P.LOKESH,
                       S/O LATE PUTTAIAH,
                       AGED ABOUT 40 YEARS,
                       R/O HEGGERE VILLAGE,
                       SRIRAMPURA HOBLI - 577 542,
                       HOSADURGA TALUK,
                       CHITRADURGA DISTRICT.
                                                                   ...APPELLANT
                 [BY SRI VIJAYA KUMAR S.C., ADVOCATE (PH)]
                 AND:
                 1.    R.V. KRISHNAMURTHY
                       S/O VENKATAPPA,
                       AGED ABOUT 70 YEARS,

                 2.    H.K. DEEPAK
Digitally signed by    S/O R.V.KRISHNAMURTHY,
GEETHAKUMARI           AGED ABOUT 50 YEARS,
PARLATTAYA S
Location: High         BOTH ARE AGRICULTURISTS,
Court of Karnataka     R/O SRIRAMPURA,
                       HOSADURGA TALUK,
                       CHITRADURGA DISTRICT.

                 3.    H.G.VENKATESHAPPA
                       S/O GUDDADARANGAPPA,
                       AGED ABOUT 53 YEARS,
                       R/O HEGGERE VILLAGE,
                       SRIRAMPURA HOBLI - 577 542,
                       HOSADURGA TALUK,
                       CHITRADURGA DISTRICT.
                                                                ...RESPONDENTS
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                                                           NC: 2025:KHC:9517
                                                        RSA No. 945 of 2015



      THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 20.02.2015 PASSED IN
R.A.NO.9/2010 ON THE FILE OF THE ITINERARY SENIOR CIVIL
JUDGE AT HOSADURGA, DISMISSING THE APPEAL, AND
CONFIRMING THE JUDGMENT AND DECREE DATED 27.01.2010
PASSED IN O.S.NO.215/2005 ON THE FILE OF THE PRL.CIVIL JUDGE,
(JR.DN) & JMFC AT HOSADURGA.

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

CORAM:         HON'BLE MR JUSTICE RAVI V HOSMANI


                              ORAL JUDGMENT

Challenging judgment and decree dated 20.02.2015

passed by Itinerary Senior Civil Judge, Hosadurga, in

R.A.no.9/2010 and judgment and decree dated 27.01.2010

passed by Prl. Civil Judge (Jr.Dn.) & JMFC., Hosadurga, in

O.S.no.215/2005, this appeal is filed .

2. Brief facts as stated are that, appellant herein filed

O.S.no.215/2005 for relief of specific performance and

permanent injunction in respect of a vacant site bearing no.217

(new), 208 (old) ('suit property' for short) situated at Heggere

village, Sriramapura Hobli, Hosadurga Taluk. In plaint, it was

stated defendants no.1 and 2 were owners of Mangalore tiled

house in suit property. On 08.12.2003, they executed

agreement of sale after receiving Rs.25,000/- as advance sale

consideration and agreeing to execute registered sale deed by

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receiving balance amount out of total sale consideration of

Rs.95,000/- as and when called upon by plaintiff. Agreement

also mentioned about delivery of possession.

3. It was further stated, on 14.07.2005, defendants

no.1 and 2 executed registered sale deed in favour of plaintiff's

son in respect of Mangalore Tiled house bearing new no.214

(old no.208) and agreed to execute registered sale deed in

respect of vacant site as and when called by plaintiff. But, failed

to execute sale deed, when called upon during first week of

August, 2005. When they failed to comply even after receipt of

legal notice dated 12.08.2005, got issued by plaintiff and were

trying to alienate suit property and interfering with possession,

suit was filed.

4. On appearance, defendant no.2 filed written

statement. Same was adopted by defendant no.1. They

admitted being owners of suit property and execution of

agreement of sale in favour of plaintiff on 08.12.2003. Even

execution of registered sale deed in respect of Mangalore tiled

house in favour of plaintiff's son was also admitted. But,

contended suit was bad for non-joinder/mis-joinder of

necessary parties as purchaser of suit property was not arrayed

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as party to suit. It was stated suit property was sold to

defendant no.3 under registered sale deed dated 24.08.2004

for Rs.16,000/- and delivered possession. It was contended

that plaintiff had concocted agreement of sale by altering

measurements and boundaries without their knowledge to grab

same. Therefore, prayed for dismissing suit.

5. During pendency of suit, purchaser of suit property

from defendant no.1 and 2 was impleaded as defendant no.3.

He filed separate written statement, denying entire plaint

averments and contending that after purchasing suit property

from defendants no.1 and 2 on 24.08.2004, he had got khata

mutated in his name and was in possession from date of

purchase. Hence, prayed for dismissal of suit.

6. It was submitted, defendant no.3 had filed

O.S.no.81/2006 against present plaintiff for permanent

injunction against interference in respect of suit property. Said

suit was clubbed with present suit. Based on contention, trial

Court framed separate issues as follows:

ISSUES: in O.S.215/2005:

1. Whether the plaintiff proves that the defendants no.1 and 2 have executed an agreement of sale in her favour on 08.12.2003 with respect to schedule

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properties by receiving advance amount of Rs.25,000/-?

2. Whether the plaintiff further proves that the defendants no.1 and 2 had also received the remaining balance amount of Rs.70,000/- from her on 19.12.2003?

3. Whether the plaintiff further proves her readiness and willingness to perform her part of contract to purchase the suit schedule property?

4. Whether the plaintiff proves her possession over the suit schedule property as on the date of the suit?

5. Whether the plaintiff further proves the alleged refusal of defendant no.1 and 2 to execute registered sale deed in her favour with respect to the suit schedule property?

6. Whether the plaintiff proves the alleged interference of the defendants and their attempt of alienation of the suit property illegally as alleged?

7. Whether the defendants prove that the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties?

8. Whether the plaintiff is entitled to the reliefs claimed?

9. What decree or order?

1. Whether the plaintiff proves that he is in exclusive possession and enjoyment of the suit schedule property as on the date of suit?

2. Whether the plaintiff proves the alleged interference of the defendant?

3. Whether the plaintiff is entitled for the relief as sought?

4. What decree or order?

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7. On behalf of plaintiff, her power of attorney holder

and two others were examined as PWs.1 to 3 and got marked

Exhibits P1 to P6. In rebuttal, defendants examined DWs.1 to 3

and got marked Exhibits D1 and D2.

8. On consideration, trial Court answered issues no.1

to 7 in negative and issue no.9 by dismissing O.S.no.215/2005.

It answered issues no.1 to 3 in affirmative and issue no.4 by

decreeing O.S.no.81/2006 and permanently restraining present

plaintiff from interfering with peaceful possession and

enjoyment of suit property by defendant no.3.

9. Aggrieved, plaintiff filed R.A.no.9/2010 on various

grounds. Based on same, first appellate Court framed following:

POINTS:

1. Whether the plaintiff proves that the defendants no.1 & 2 have executed an agreement of sale in her favour on 08.12.2003 in respect of suit schedule property after receipt of advance amount of Rs.25,000/- and delivered the possession of the suit schedule property?

2. Whether the plaintiff further proves that, the defendants no.1 & 2 have received remaining balance amount of Rs.70,000/- from the plaintiff on 19.12.2003?

3. Whether the plaintiff proves that, she is always ready and willing to perform her part of contract?

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4. Whether the plaintiff proves the alleged interference made by the defendants in alienation of the suit schedule property illegal?

5. Whether the plaintiff is entitled for the relief of specific performance of contract as prayed for in the plaint?

6. Whether the appellant/plaintiff has made out a grounds to interference in the judgment and decree passed by the trial Court by this Court?

7. What order or decree?

10. On consideration, it answered points no.1 to 6 in

negative and point no.7 by dismissing appeal. Aggrieved,

plaintiff had filed this appeal.

11. Sri Vijaya Kumar S.C., learned counsel for appellant

submitted that impugned judgment and order passed by both

Courts were contrary to law and passed without proper

appreciation of evidence on record. It was submitted, plaintiff

had filed suit for specific performance of Ex.P1 - agreement of

sale dated 14.07.2005. Defendants contended agreement was

not in respect of land, but, only in respect of building and suit

was filed by altering boundaries of suit property.

12. Therefore, to prove agreement, he examined its

scribe as PW.3, who deposed in favor of plaintiff. Thus,

execution of agreement of sale was admitted. Such being case,

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dismissal of suit on ground of failure of plaintiff to prove

execution of agreement of sale was not justified. It was

submitted, both Courts failed to order for return of earnest

money paid. Therefore, proposed following substantial

questions of law:

a. Whether the judgment and decree passed by the Courts below is sustainable in law when the same were passed without verifying the document on record, particularly Ex.P1 and Ex.D1 and D2?

b. whether the Courts below were justified in not ordered for refund of the excess money paid by the plaintiff to the defendants?

13. Heard learned counsel and perused judgment and

decree.

14. This is plaintiff's second appeal against concurrent

dismissal of suit for specific performance.

15. Admittedly, plaintiff's suit for specific performance

of Ex.P1 - agreement of sale was clubbed with suit for

permanent injunction filed by defendant no.3, purchaser of suit

property from present plaintiff's vendors namely defendants

no.1 and 2. Thus, both suits were in respect of same suit

property.

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16. Indisputably, plaintiff's suit for specific performance

was dismissed, while suit for permanent injunction filed by

defendant no.3 against present plaintiff came to be decreed.

Though, present plaintiff appears to have questioned both

decrees in R.A.no.9/2010, on its dismissal, present second

appeal is filed challenging concurrent decree of dismissal of suit

for specific performance. Thus, decree of permanent injunction

protecting possession of suit property by defendant no.3,

against present plaintiff has attained finality and thereby raising

questions about maintainability of present appeal.

17. Besides, while passing impugned decree, trial Court

specifically held that plaintiff had created Ex.P1 document with

regard to suit property, by referring to overwriting on Ex.P1 so

as to include vacant land in addition to house property, apart

from referring to oral evidence of plaintiff and defendant

witnesses.

18. Appellate Court on re-appreciation concurred with

findings and fact that Ex.P1 - agreement of sale, based on

which suit filed for specific performance was tampered and as

such unenforceable. Besides, decree of permanent injunction

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granted in favour of defendant no.3 against plaintiff in respect

of suit property has attained finality.

19. Under above circumstances, no substantial

questions of law arise for consideration. Consequently, appeal

is dismissed.

Sd/-

(RAVI V HOSMANI) JUDGE

GRD