Karnataka High Court
Sudha Subhash Anvekar vs Anandu Majalikar Damodar Majalikar on 25 March, 2025
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NC: 2025:KHC-D:5465
RSA No. 5120 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5120 OF 2013 (SP-)
BETWEEN:
SMT. SUDHA W/O. SUBHASH ANVEKAR,
AGED 65 YEARS, OCC: AGRICULTURIST,
PERMANENT R/O. CHITAKULA,
TAL: KARWAR, DIST: KARWAR,
NOW RESIDING AT H.NO.2927,
CHATEGALLI (REDEGALLI),
POST: BARSI, DIST: SHOLAPUR,
MAHARASTRA.
...APPELLANT
(BY SRI. S.B. HEBBALLI, ADVOCATE)
AND:
1. ANANDU MAJALIKAR S/O. DAMODAR MAJALIKAR,
AGE: 70 YEARS,
OCC: AGRICULTURIST AND MILK VENDOR,
R/O. SHIRUVAD, POST: SHIRUVAD,
TAL AND DIST: KARWAR-581407.
2. SMT. CHANDRAKALA @ ANITA NAGEKAR
W/O. ANIL NAGEKAR,
Location:
HIGH AGED 48 YEARS, OCC: HOUSEHOLD,
MOHANKUMAR COURT OF
B SHELAR KARNATAKA
R/O. SHIRUVAD, POST: SHIRUVAD,
DHARWAD TAL AND DIST: KARWAR-581407.
BENCH
...RESPONDENTS
(BY SRI. S.H. MITTALKOD, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE HON'BLE ADDITIONAL CIVIL JUDGE (SR.DN),
KARWAR IN REGULAR APPEAL NO.34/2006, DATED 19.01.2011
ALLOWING THE APPEAL MODIFYING THE JUDGMENT AND DECREE
PASSED BY THE HON'BLE CIVIL JUDGE(JR.DN.), KARWAR PASSED
BIN O.S.NO.99/1996, DATED 14.06.2006. IT IS FURTHER PRAYED
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NC: 2025:KHC-D:5465
RSA No. 5120 of 2013
THAT, THE APPEAL MAY KINDLY BE ALLOWED AND THE SUIT OF THE
APPELLANT MAY KINDLY BE DECREED WITH COST CONFIRMING THE
JUDGMENT AND DECREE OF THE TRIAL COURT PASSED IN
O.S.NO.99/1996, DATED 14.06.2006. SUCH OTHER RELIEF AS THE
HON'BLE COURT DEEMS FIT IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the plaintiff
challenging the judgment and decree dated 19.01.2011 in
R.A.No.34/2006 on the file of the Additional Civil Judge
(Sr.Dn.), Karwar1 allowing the appeal in part and setting
aside the judgment and decree dated 14.06.2006 in
O.S.No.99/1996 with regard to earnest money on the file
of the Civil Judge (Jr.Dn.), Karwar2 decreeing the suit of
the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
hereinafter referred to as 'First Appellate Court'
hereinafter referred to as 'Trial Court'
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3. It is the case of the plaintiff that the defendants
are the owners of the suit schedule property and as such
the plaintiff has agreed to purchase the suit schedule
property as per the agreement of sale dated 05.11.1986
for a total consideration of Rs.20,000/- and the plaintiff
has paid Rs.6,000/- as advance amount. It is also stated
that, the plaintiff has paid part consideration in respect of
the suit schedule property. It is also stated that the
defendants refused to execute the registered sale deed in
favour of the plaintiff and as such the plaintiff has filed
O.S.No.99/1996 seeking relief of specific performance of
the agreement dated 05.11.1986.
4. After service of notice, the defendants entered
appearance and filed detailed written statement denying
the averments made in the plaint. It is the specific case of
the defendants that the defendants have not entered into
any agreement with the plaintiff and accordingly sought
for dismissal of the suit.
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5. The Trial Court based on the pleadings on
record, has framed issues for its consideration. In order to
establish their case, the plaintiff has examined 2 witnesses
as PW.1 and PW.2 and produced 7 documents and same
were marked as Exs.P.1 to P.7. The defendants have
examined 2 witnesses as DW.1 and DW.2 and no
documents were produced by the defendants.
6. The Trial Court after considering the material on
record, by its judgment and decree dated 14.06.2006,
decreed the suit and feeling aggrieved by the same, the
defendants have preferred R.A.No.34/2006 on the file of
the First Appellate Court and same was resisted by the
plaintiff. The First Appellate Court after re-appreciating the
material on record, by its judgment and decree dated
19.01.2011, allowed the appeal in part, and directed the
defendants to refund the earnest money of Rs.6,000/-
with interest. Feeling aggrieved by the same, the plaintiff
has preferred this Regular Second Appeal.
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7. I have heard Sri.S.B.Hebballi, learned counsel
appearing for the appellant and Sri.S.H.Mittalkhod, learned
counsel appearing for the respondents.
8. Learned counsel appearing for the appellant
contended that the plaintiff has proved the execution of
the sale agreement dated 05.11.1986 and further the
independent witnesses have been examined with respect
to the transaction between the plaintiff and the defendants
and therefore the finding recorded by the First Appellate
Court requires to be interfered with in this appeal.
9. Per contra, learned counsel appearing for the
respondents sought to justify the impugned judgment and
decree passed by both the Courts below. It is the specific
contention of the defendants/respondents herein that the
suit land is a tenanted land and same has been granted on
24.06.1980 and the execution of the agreement of sale
dated 05.11.1986, even though the said agreement is
disputed by the defendants, is unenforceable and
accordingly argued for dismissal of the appeal.
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10. In the light of the submissions made by the
learned counsel appearing for the parties, I have carefully
examined the findings recorded by both the Courts below.
It is the case of the plaintiff that the defendants have
agreed to sell the suit schedule property as per the Ex.P.1
- agreement of sale dated 05.11.1986. Undisputedly, the
land is a tenanted land and same was granted to the
defendant on 24.06.1980 (Ex.P.4). In that view of the
matter, following the declaration of law made by the
Hon'ble Supreme Court in the case of Narayanamma and
Another vs. Govindappa and Others reported in
(2019) 19 SCC 42, even if the agreement of sale at
Ex.P.1 is executed and same is within 15 years of the
prohibited period and therefore the agreement of sale at
Ex.P.1 is unenforceable and therefore the First Appellate
Court has rightly refused the agreement of sale and
accordingly, set aside the judgment and decree passed by
the Trial Court favouring the plaintiff for relief of specific
performance.
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11. In the result, the appeal fails.
Sd/-
(E.S.INDIRESH)
JUDGE
SH
CT-MCK
