S M Kumar vs Smt Nagamma
2025 Latest Caselaw 10249 Kant

Karnataka High Court

S M Kumar vs Smt Nagamma on 14 November, 2025

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                                  RSA No. 2327 of 2018



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 14TH DAY OF NOVEMBER, 2025

                         BEFORE

       THE HON'BLE DR. JUSTICE K.MANMADHA RAO

     REGULAR SECOND APPEAL NO. 2327 OF 2018 (SP)
BETWEEN:

S M KUMAR
S/O MALLAPPA,
AGED ABOUT 70 YEARS,
AGRICULTURIST,
R/O ASHOKA ROAD,
SAGAR TOWN,
SAGAR-577401
                                          ...APPELLANT
(BY SRI. B.N. SHETTY, ADVOCATE)

AND:

1.    SMT. NAGAMMA
      W/O LATE NEELAKANTAPPA,
      AGED ABOUT 63 YEARS,

2.    SHRI.MANJUNATHA
      S/O LATE NEELAKANTAPPA,
      AGED ABOUT 43 YEARS,

3.    SHRI.MOHANA
      S/O LATE NEELAKANTAPPA,
      AGED ABOUT 38 YEARS,

4.    SMT JAYALAKSHMI
      D/O LATE NEELAKANTAPPA,
      AGED ABOUT 38 YEARS,

5.    SMT.SHASHIKALA
      D/O LATE NEELAKANTAPPA,
      AGED ABOUT 38 YEARS,
                                 -2-
                                            RSA No. 2327 of 2018



      ALL ARE AGRICULTURISTS
      R/O BHEEMANAKONE ROAD,
      GANDHINAGARA, SAGAR TOWN,
      SAGAR-577401.
                                                    ...RESPONDENTS
(R-1, R-2, R-3, R-4 AND R-5 -
ARE SERVED AND UNREPRESENTED)



      THIS   REGULAR    SECOND        APPEAL   IS    FILED    UNDER
SECTION 100 OF CPC, PRAYING TO ALLOW THE APPEAL AND
SET ASIDE THE JUDGMENT AND DECREE DATED 20.08.2018 IN
R.A.NO.2/2018 ON THE FILE OF THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE AND JMFC, SAGAR AND CONFIRM THE
JUDGMENT AND DECREE OF THE TRIAL COURT, IN THE
INTEREST OF JUSTICE AND EQUITY.

       THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT     ON    28.10.2025         AND   COMING       ON     FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:

CORAM:    HON'BLE DR. JUSTICE K.MANMADHA RAO


                       CAV JUDGMENT

The present Regular Second Appeal is filed assailing

the judgment and decree dated 20.08.2018, in

R.A.No.2/2018, passed by the Additional Senior Civil

Judge & JMFC, Sagar (hereinafter referred to as 'the first

appellate Court' for short) and confirm judgment and

decree dated 06.10.2016, passed in O.S.No.124/2012,

passed by the Principal Civil Judge & JMFC, Sagar

(hereinafter referred to as 'the trial Court' for short).

2. The appellant herein is the respondent No.1

before the first appellate Court and plaintiff before the trial

Court. Respondents No.1 & 2 herein are the appellants

No.1 & 2 before the first appellate Court and Defendants

No.1 & 2 before the trial Court and respondents No.3, 4

and 5 herein are the respondents No.2, 3 and 4 before the

first appellate Court, defendants No.3, 4 and 5 before the

trial Court.

3. For convenience of reference, the parties herein

are referred to as per their rankings before the trial Court.

4. The suit is instituted by the plaintiff seeking

specific performance of the sale agreement allegedly

executed by the defendants in respect of the suit schedule

property, directing the defendants to execute the sale

deed in favour of the plaintiff and deliver possession

thereof, or in the alternative, for execution of the sale

deed through the Court at the plaintiff's cost, and for

recovery of a sum of Rs.50,000/- from the defendants with

interest at 12% per annum from the date of the suit until

realization, with costs.

5. The brief facts of the case are that:-

The plaintiff instituted the suit seeking specific

performance of a registered sale agreement dated

02.04.2008 allegedly executed by late Neelakantappa, the

then manager of a Joint Hindu Family consisting of

himself, his wife, two sons, and two daughters, in respect

of the suit schedule property measuring 1 acre 03 guntas

in Sy. No. 29/3, Sagar Taluk, Shimoga District. The

plaintiff contended that the said property originally

belonged to one Thippappa, who upon his death left two

sons--Neelakanta and Nagaraja--who divided the property

equally, whereby Neelakanta became the owner of the

southern portion comprising the suit property. During

2006, Neelakantappa borrowed a hand loan of Rs.10,000/-

from the plaintiff by cheque bearing No.002165 drawn on

Sri Ganapathi Urban Co-operative Bank, Sagar.

6. Subsequently, as Neelakantappa had

mortgaged the family house to the same bank and the

property was brought to public auction in the year 2008

for recovery of dues, the family required Rs.1,85,000/- to

save the house and decided to sell the suit schedule

property. Pursuant to negotiations, the plaintiff agreed to

purchase the property for a total sale consideration of

Rs.1,10,000/-, of which Rs.90,000/- was paid as advance

on 02.04.2008 under the registered sale agreement and

the balance was agreed to be paid at the time of execution

of the sale deed.

7. After the execution of registered sale

agreement, i.e., on 02.04.2008, the defendants further

borrowed Rs.60,000/- from the plaintiff through cheque

No.003286 of the same bank, agreeing to adjust

Rs.20,000/- therein towards the balance sale consideration

and to repay the remaining Rs.40,000/- along with the

earlier hand loan of Rs.10,000/- at the time of execution

of the registered sale deed. However, despite repeated

requests, Neelakantappa and his sons failed to execute the

sale deed on the pretext of delay in obtaining NOC from

the Tahasildar. During this period, Neelakantappa expired,

leaving behind his wife, two sons, and two daughters as

his legal heirs. Consequently, the plaintiff has impleaded

them as defendants and instituted the suit for specific

performance of the said contract or, in the alternative, for

execution of the sale deed by Court on behalf of the

defendants at the plaintiff's cost, together with recovery of

Rs.50,000/- from the defendants along with interest at

12% per annum from the date of suit till realization, and

for costs.

8. Per contra on receipt of suit summons, the

defendants appeared through their counsels. Inspite of

giving sufficient opportunities to the defendants, they have

not filed their written statement.

9. Based on the pleadings, the trial Court has

framed following issues for consideration:-

(i) Whether the plaintiff proved the execution of sale agreement dated 02.04.2008 as contended by him?

(ii) Whether the plaintiff proved that he has been and still ready and willing to perform his part of contract?

(iii) Whether the plaintiff is entitled for recovery of sum of Rs.50,000/- along with interest at the rate of 12% p.a. from the date of suit until its realization?

(iv) What Order

10. In order to prove the case of the plaintiff, he

himself has been examined as PW1 and got marked 11

documents at Ex.P1 to P11. Inspite of giving sufficient

opportunities to the defendants, they have neither cross

examined the PW1 nor adduced their evidence. Trial court

has taken the cross-examination of PW1 by the defendants

and the evidence of the defendants as nil.

11. The trial Court, upon appreciation of the oral

and documentary evidence held as under:-

The suit of the plaintiff is hereby decreed with costs.

The defendants are directed to execute a registered sale deed in favour of the plaintiff in respect of suit schedule property at the cost of plaintiff.

On failure of the defendants to comply the above order, plaintiff is entitled to get the

decree to be executed through the process of the Court.

The defendants are also jointly and severally liable to repay a sum of Rs.50,000/- along with interest at the rate of 12% p.a. from the date of suit until its realization.

12. Assailing the said Judgement and decree of the

trial Court, the plaintiff has preferred an appeal in

R.A.No.2/2018. The first appellate Court has framed

following issues for consideration:-

(i) Whether the trial court has committed error in granting the relief of specific performance of contract in respect of the plaint schedule property in favour of the plaintiff?

             (ii)     Whether the rate of interest of
     12%     p.a.     awarded     by       the   trial     Court    is
     reasonable?
             (iii)    Whether the judgment and decree
     dated     06.10.2016       passed       by      the    learned
     Principal       Civil   Judge     and        JMFC.,      Sagar

O.S.No.124/2012 are contrary to law, facts and materials on record?

(iv) Are there any grounds to interfere in the impugned judgment and decree of the trial court?

(v) What Order?

13. The first appellate Court after considering the

facts and circumstances passed the following Order:-

This regular appeal filed by the appellants against the respondents is allowed in part without cost.

Judgment and decree dated 06.10.2016 passed by the learned Principal Civil Judge and JMFC, Sagar O.S.No.124/2012 are hereby partly set aside in respect of the granting of relief of specific performance of contract and the percentage of rate of interest awarded by the trial court and the said judgment and decree are modified as the defendants are jointly and severally liable to pay a sum of Rs.1,60,000/-

     with interest at the       rate of 9% p.a.        on
     Rs.10,000/-      from     28.12.2006       and    on

Rs.1,50,000/- from 02.04.2008 till realization to the plaintiff. Liability of the defendant Nos.4 and 5 to pay the aforesaid amount is restricted only to the extent of the assets of the deceased by name Neelakantappa S/o Guthyappa, which have come to their hands from the aforesaid deceased.

Draw decree accordingly.

14. The learned counsel appearing fort the

appellant would contend that the first appellate Court has

gravely erred in setting aside the well-reasoned judgment

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and decree of the Trial Court dated in O.S.No.124/2012,

on erroneous, untenable, and extraneous grounds without

proper appreciation of the documentary and oral evidence

that clearly established the plaintiff's entitlement to

specific performance of the registered sale agreement

dated 02.04.2008. The first appellate Court has further

committed a serious error in modifying the decree by

reducing the rate of interest from 12% per annum to 9%

per annum, despite the Trial Court having rightly exercised

its discretion in accordance with the evidence on record.

The said modification and partial allowance of the appeal

are contrary to the facts, material evidence and settled

principles of law.

15. It is further contended that the first appellate

Court has also failed to appreciate that the defendants had

neither disputed the material facts pleaded by the plaintiff

nor controverted the specific issues framed by the Trial

Court. It has exceeded its jurisdiction by relying on

irrelevant and extraneous documents which were neither

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pleaded nor subjected to adjudication during the trial.

Hence, the present appeal.

16. Heard learned counsel appearing on either side.

17. Having considered the grounds urged in the

appeal and submissions made by learned counsel, this

second appeal was admitted vide order dated 02.09.2021

and framed the substantial question of law as under:-

(i) Whether the finding recorded by the First Appellate Court with regard to execution of the Agreement of sale dated 02.04.2008 is just and proper?

18. On hearing the submissions of the counsel for

the appellant as well as the respondents, it appears that at

the outset, it has to be noticed that this being a second

appeal, it is only substantial question of law which gives

raise for this Court to clutch the jurisdiction and answer

the said question of law as otherwise, this Court would

lack jurisdiction to entertain second appeal.

19. In the present case, the substantial question of

law for consideration relates to the correctness of the

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conclusion of the first appellate Court on the question of

execution of the sale agreement.

20. In determining the substantial question of law

framed by this Court, it is pertinent to examine whether

the first appellate Court had applied correct legal principles

and whether its conclusion is supported by the record.

21. On careful consideration appreciation of the

material placed on record and submissions made by the

counsel for both the parties, it is apparent that the trial

Court passed judgment and decree only relying on the oral

and documentary evidence adduced by the plaintiff.

Though the opportunity was given to the defendants to file

Written Statement, the defendants failed file a written

statement before the trial Court and did not lead any

evidence to defend their case in hand. Further, that the

first appellate Court, without remitting the matter to the

trial Court for fresh adjudication and without providing

cogent reasons based on the record, altered the decision

of the trial Court.

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22. In light of the above discussions, this Court is of

the opinion that the judgment and decree of the first

appellate Court cannot be allowed to stand without

affording the parties the opportunity to place all relevant

material before the proper forum. The substantial question

of law is therefore answered against the first appellate

Court's interference with the trial Court's judgment and

decree.

23. In view of the foregoing discussions, this Court

proceed to pass the following:

ORDER

(i) The present appeal is disposed of.

(ii) The judgment and decree dated

20.08.2018 in R.A. No.2/2018 passed by the

Additional Senior Civil Judge and JMFC,

Sagar, insofar as it set aside and modified the

trial Court's decree dated 06.10.2016 in O.S.

No.124/2012, is set aside.

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(iii) The matter is remitted back to the

learned Principal Civil Judge and JMFC, Sagar

for fresh adjudication on merits.

(iv) The Trial Court is directed to

reopen the case within two weeks from the

date of receipt of the copy of this Judgment.

(v) The parties are hereby directed to

appear before the trial Court without waiting

to receive the notice in accordance with law.

(vi) Trial Court is directed to give an

opportunity to file their written statement,

within 30 days from the date of reopening of

the matter.

(vii) The Trial Court is directed to

decide the matter as expeditiously as possible

i.e., within a period of four months from the

date of receipt of the copy of this order.

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(viii) There shall be no order as to costs

in this Second Appeal.

Accordingly, the present appeal is hereby disposed

of with the above directions.

Sd/-

(DR.K.MANMADHA RAO) JUDGE

BNV