Karnataka High Court
Shri. Bhimaraddi S/O. Krishnaraddi ... vs Sri. Mustaq S/O. Rehman Daragad on 19 March, 2025
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NC: 2025:KHC-D:5071
RSA No. 100639 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100639 OF 2022 (SP-)
BETWEEN:
SHRI. BHIMARADDI
S/O. KRISHNARADDI KURTAKOTI,
AGE: 65 YEARS, OCC: BUSINESS,
R/O. REDDY COLONY, SARSWATPUR,
DHARWAD-580002.
...APPELLANT
(BY SRI. ANOOP G. DESHPANDE, ADVOCATE)
AND:
1. SRI. MUSTAQ S/O. REHMAN DARAGAD,
AGE: MAJOR, OCC: BUSINESS,
R/O. MARADAGI, TQ: DHARWAD-580112.
2. SRI. USUFF S/O. REHMAN DARAGAD,
AGE: MAJOR, OCC: BUSINESS,
R/O. MARADAGI, TQ: DHARWAD-580112.
3. SRI. HUSSEIN S/O. REHMAN DARAGAD,
AGE: MAJOR, OCC: BUSINESS,
Digitally signed by
ASHPAK
R/O. MARADAGI, TQ: DHARWAD-580112.
KASHIMSA NOW RESIDING AT SHIVAGIRI MAIN ROAD,
MALAGALADINNI
Location: HIGH DHARWAD.
COURT OF ...RESPONDENTS
KARNATAKA
DHARWAD BENCH
Date: 2025.03.22 (BY SRI. K.L. PATIL, ADVOCATE FOR C/R1)
15:55:19 +0530
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 23.01.2018 PASSED BY THE I-ADDITIONAL SENIOR CIVIL
JUDGE, DHARWAD IN O.S. NO.167/2009 AND THE PRINCIPAL
DISTRICT JUDGE, DHARWAD DATED 11.02.2021 IN R.A.NO.40/2018
WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY.
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NC: 2025:KHC-D:5071
RSA No. 100639 of 2022
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the plaintiff assailing the
judgement and decree dated 11.02.2021 in R.A.No.40/2018
passed by the Principal District Judge, Dharwad (for short "the
First Appellate Court") dismissing the appeal with costs and
confirming the judgment and decree dated 23.01.2018 in
O.S.No.167/2009 passed by the I-Additional Senior Civil Judge
and CJM, Dharwad (for short "the Trial Court") dismissing the
suit of the plaintiff.
2. For the sake of convenience, the parties are
referred as per their rank before the Trial Court.
3. The plaint averments in nutshell are that the
plaintiff and defendants have together purchased the suit
property for a consideration of ₹5,00,000/- and in this
connection, registration of the sale deed was made in the name
of the defendants. It is also averred in the plaint that there was
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an agreement between the plaintiff and the defendants to
convert the land for non-agricultural purpose and the object of
purchasing the suit schedule property was to form plots in the
suit schedule property. It is the case of the plaintiff that the
defendants were unable to spend money for remaining
development work and as such, the plaintiff and defendants
have valued the suit schedule property at ₹6,25,000/-, out of
which as the plaintiff has already paid ₹5,00,000/- to the
defendants at the time of purchase of the suit schedule
property and as such the defendants have executed an
agreement of sale dated 30.05.2007 intending to sell the suit
property in favour of the plaintiff after receiving ₹1,00,000/- by
way of part consideration of amount as well as the remaining
amount of ₹25,000/- at the time of registration of the sale
deed. It is also stated in the plaint that the defendants have
refused to execute registered sale deed in favour of the plaintiff
pursuant to the execution of agreement of sale dated
30.05.2007. Hence, the plaintiff filed O.S.No.167/2009 before
the Trial Court seeking relief of specific performance of
agreement.
NC: 2025:KHC-D:5071
3.1. After service of notice, the defendants entered
appearance and filed detailed written statement denying
execution of agreement of sale. It is the specific case of the
defendants that the defendants have purchased the suit
schedule property from their own funds as per the registered
sale deed dated 09.05.2005 and the plaintiff is only an
attesting witness to the registered sale deed and therefore,
denied the averments made in the plaint. It is also the case of
the defendants that the plaintiff is no way concerned to the suit
schedule property. Hence, sought for dismissal of the suit.
3.2. The Trial Court, based on the pleadings of the
parties, formulated issues for its consideration. In order to
establish their case, the plaintiff himself was examined as PW1
and got marked 7 documents as Ex.P1 to Ex.P7. The
defendants have examined one witness as DW1 and got
marked 12 documents as Ex.D1 to Ex.D12.
3.3. The Trial Court, after considering the material on
record, by its judgment and decree dated 23.01.2018
dismissed the suit and feeling aggrieved by the same, the
plaintiff filed R.A.No.40/2018 before the First Appellate Court
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and same was resisted by the defendants. The First Appellate
Court, after re-appreciating the material on record, by its
judgment and decree dated 11.02.2021 dismissed the appeal
with costs and confirmed the judgment and decree in
O.S.No.167/2009. Feeling aggrieved by the same, the plaintiff
has preferred this Regular Second Appeal.
4. I have heard Sri. Anoop G Deshpande, learned
counsel appearing for the appellant and Sri. K. L. Patil, learned
counsel appearing for the caveator-respondent.
5. Sri. Anoop G Deshpande, learned counsel appearing
for the appellant, contended that the consideration with regard
to purchase of suit schedule property was paid by the plaintiff
and same is reflected in the sale deed with respect to the
transfer of amount from the account of the plaintiff as per
Ex.P7 and the said aspect of the matter was not considered by
both the Courts below and accordingly, sought for interference
of this Court. He also refers to the agreement of sale dated
30.05.2007 and submitted that the total sale consideration
amount to an extent of ₹6,25,000/- was fixed and thereby after
deducting ₹5,00,000/-, which has already been paid to the
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defendants, the plaintiff has paid ₹1,00,000/- to the defendants
as advance and remaining sale consideration amount is only
₹25,000/-, which has to be payable at the time of the
registration of the sale deed and therefore, he sought for
interference of this Court stating that both the Courts below
have ignored the factual aspects on record.
6. Per contra, Sri. K. L. Patil, learned counsel
appearing for the caveator-respondent, sought to justify the
impugned judgment and decree and further contended that the
plaintiff has not proved the agreement of sale dated
30.05.2007 by examining the witnesses/attesters to Ex.P2. It is
also contended by the learned counsel appearing for the
respondents that both the Courts below, after considering the
entire material on record, have concurrently held against the
plaintiff and therefore, no interference is called for in this
appeal.
7. Sri. K. L. Patil, learned counsel appearing for the
respondent No.1 has produced a copy of Ex.P2 and refers to
the recitals in the document and submitted that nothing has
been paid by the plaintiff to the defendants to purchase the suit
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schedule property and that apart, no notice has been issued to
prove the readiness and willingness, which is essential
ingredient to prove in a suit for specific performance and
therefore, sought for dismissal of the appeal.
8. In the light of the submissions made by the
learned counsel appearing for the parties, the essential
document to consider whether the specific relief of agreement
has to be accepted as per Ex.P2-Agreement of Sale dated
30.05.2007. It is not in dispute that the defendants have
purchased the suit schedule property as per the registered sale
deed dated 09.05.2005 from their vendors. Undisputedly, the
plaintiff is not purchaser of the suit schedule property and he is
only a witness to the said registered sale deed dated
09.05.2005. I have carefully examined the sale agreement
dated 30.05.2007 wherein the recital in the agreement of sale
reads as under:
"¥Ánð £ÀA.1 ªÀÄvÀÄÛ 2 £ÉÃzÀªÀgÀÄ M¦àUÉ ªÉÄÃgÉUÉ Rjâ
d«Ää£À QªÀÄävÀÄÛ 6,25,000=00 (gÀÆ¥Á¬Ä DgÀÄ ®PÀë E¥ÀàvÉÊÛzÀÄ
¸Á«gÀ gÀÆ¥Á¬Ä) UÀ½UÉ PÀgÁgÀ ªÀåªÀºÁgÀªÁVzÀÄÝ, ¸ÀzÀgÀ gÀPÀA
¥ÉÊQ gÀÆ¥Á¬Ä 5,00,000-00 (LzÀÄ ®PÀë gÀÆ¥Á¬Ä) £ÁªÀÅ
Rjâ¸ÀĪÀ PÁ®PÉÌ ªÀÄÄnÖ¸ÀÄvÉÛêÉ.
NC: 2025:KHC-D:5071
F d«Ää£À Rjâ ¨Á§vÀÄÛ G½zÀ gÀÆ. 1,25,000=00
(gÀÆ¥Á¬Ä, MAzÀÄ ®PÀë E¥ÀàvÉÊÛzÀÄ ¸Á«gÀ) UÀ¼À£ÀÄß ¥Ánð £ÀA.
2£ÉÃzÀªÀgÀÄ ¥ÀqÉzÀÄPÉÆAqÀÄ ¥Ánð £ÀA. 1 £ÉÃzÀªÀgÀÄ PÀgÉzÁUÀ
zsÁgÀªÁqÀ »jAiÀÄ G¥À£ÉÆÃAzÀt PÀZÉÃjAiÀÄ°è ¥ÀPÁÌ Rjâ
£ÉÆÃAzÀªÀiÁrPÉÆqÀĪÀ PÀgÁgÀÄ DVgÀÄvÀÛzÉ."
9. A perusal of the agreement of sale dated
30.05.2007 makes it clear that the plaintiff has agreed to
purchase the suit schedule property for a sum of ₹6,25,000/-
however, nothing has been stated in the agreement with regard
to payment of advance amount as well as remaining amount
that may be payable at the time of registration of the sale
deed. In that view of the matter, taking into consideration the
declaration of law made by the Hon'ble Supreme Court in the
case of C.S.Venkatesh v. A.S.C.Murthy1 the plaintiff has not
proved the agreement of sale in a manner known to law by
examining the witnesses to the said document independently
and that apart, if at all the plaintiff has really interested to
purchase the suit schedule property and has paid ₹5,00,000/-,
as argued by the learned counsel appearing for the appellant,
there was no impediment for the plaintiff to issue legal notice
calling upon the defendants to execute the registered sale deed
(2020) 3 SCC 280
NC: 2025:KHC-D:5071
pursuant to agreement of sale dated 30.05.2007. In the
absence of the same, both the Courts below, having taken note
of the said factual aspect of the matter, rightly dismissed the
suit, which requires to be confirmed in this appeal as the
appellant has not made out a case for interference under
Section 100 of CPC and accordingly, the appeal stands
dismissed at the stage of admission itself.
10. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
CT-MCK
