Karnataka High Court
Pandurang Laxman Matade vs Dayanand Baburao Hull on 6 November, 2025
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RSA No. 5057 of 2010
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 6TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 5057 OF 2010 (SP)
BETWEEN:
1. PANDURANG LAXMAN MATADE
AGE: 74 YEARS, OCC. PENSIONER,
R/O. SHAHUNAGAR,
DIST. BELAGAVI-590001.
2. SUBHASCHANDRA LAXMAN MATADE
AGE: 66 YEARS, OCC. PENSIONER,
R/O. KESHWAPUR,
HUBBALLI-580024.
3. VISHWANATH LAXMAN MATADE
AGE: 61 YEARS, OCC. SERVICE,
R/O. 1631, KOPPAD GALLI,
VEGATABLE MARKET,
Digitally
signed by BAILHONGAL-590001.
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date: ...APPELLANTS
2025.11.12
10:43:07
+0530
(BY SRI. RAMESH I. ZIRALI, ADVOCATE)
AND:
1. DAYANAND BABURAO HULL
AGED ABOUT 30 YEARS,
OCC. STUDENT, R/O. KHASBAG,
DIST. BELAGAVI-590001.
2. SMT. SHANTABAI W/O. BABURAO HULL,
AGE: 55 YEARS, OCC. H/W,
R/O. KHASBAG,
DIST. BELAGAVI-590001.
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3. SMT. BASAVANNEWWA @ SUNDANDA
W/O. SHANKAR CHANDU,
AGED ABOUT 46 YEARS, OCC. H/W,
BY HER GPA HOLDER DEFENDANT NO.2.
4. SHIVAJI NAGENDRA PARANDEKAR
AGE: 46 YEARS, OCC. BUSINES,
R/O. 689/C, HULL CHAWL COURT ROAD,
BAILHONGAL,
DIST. BELAGAVI-590001.
5. PADMARAJ NAGENDRA PARANDKAR
AGE: 42 YEARS, OCC. H/W,
R/O. 689/C, HULL CHAWL, COURT ROAD,
BAILHONGAL,
DIST. BELAGAVI-590001.
6. DRAKSHAYINI W/O. SANJU GODAKE,
AGE: 40 YEARS, OCC. H/W,
R/O. 689/C, HULL CHAWL, COURT ROAD,
BAILHONGAL,
DIST. BELAGAVI-590001.
7. TARAMATI W/O. SHANKAR JORAPUR,
AGE: 51 YEARS, OCC. H/W,
R/O. 689/C, HULL CHAWL, COURT ROAD,
BAILHONGAL,
DIST. BELAGAVI-590001.
8. KRISHNABAI W/O. NAGENDRA PARANDEKAR,
AGE: 69 YEARS, OCC. TAILOR,
R/O. HULL CHAWL, R/O. BAILHONGAL,
DIST. BELAGAVI-590001.
9. AJAY KASHINATH MATADE
AGE: 42 YEARS, OCC. SERVICE,
R/O. PLOT NO.6 AND C FLAT NO.3 NAGAR,
NIVARA PARASHAD, GOREGAO (E),
MUMBAI-400008.
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10. SMT. SAROJ W/O. PRAVEEN TALAVALKAR,
AGE: 51 YEARS, OCC. H/W,
R/O. 3. SARASWATI APARTMENTS,
SADAR BAZAR CAMP SATARA,
MAHARASHTRA STATE-415001.
11. SMT. VANDANA @ VASANTI TAMMARAI LONI,
AGE: 63 YEARS, OCC. H/W,
R/O. GAYATRI DASHAN,
THAKUR COMPLEX,
KANDIVALI, MUMBAI-400008.
12. SMT. REKHA W/O. DEEPAK PATIL,
AGE: 61 YEARS, OCC. H/W,
R/O. 3, SARASWATI APARTMENT,
SADAR BAZAR CAMP SATARA,
MAHARASTRA STATE-415001.
...RESPONDENTS
(BY SRI. S.B. NAIK, ADVOCATE FOR R4, R6 AND R8;
R1, R7, R9 TO R12-NOTICE SERVED; R2, R3 AND R5-
ABATED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.10.2009
PASSED IN R.A.NO.46/2003 ON THE FILE OF CIVIL JUDGE
PRESIDING OFFICER FAST TRACK COURT, BAILHONGAL
CONFIRMING THE JUDGMENT AND DECREE DATED 08.09.2003
PASSED IN O.S.NO.154/1989 THE FILE OF PRL. CIVIL JUDGE
(JR.DN.) AND JMFC BAILHONGAL ALLOWING THE TOP NOTED
APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel for the appellants.
2. None appears for the respondents.
3. This is the second appeal filed by the
appellants/plaintiffs in O.S No.154/1989 and R.A.No.46/2003
assailing the concurrent judgments of the Trial Court and the
First Appellate Court. The appellants herein are the legal heirs of
the original plaintiff-Pralhad. The said Pralhad was the tenant in
the premises owned by defendant Nos.1 to 3. Out of them,
defendant Nos.1 and 3 were minors and were represented by
defendant No.2 their mother. The defendant Nos.1 to 3 were in
requirement of money for their education and other purposes
and since the property was in the name of the minors, defendant
No.2 filed G & W.C. Nos.8, 9 and 10 of 1988 before the learned
Principal Civil Judge, Bailhongal seeking permission to sell the
tenanted premises to the respective tenants indicating the sale
consideration amount. The G & W.C. Court had granted the
permission to sell the tenements as per order dated 06.09.1988
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as per Ex.P.2. The said order was preceded by an agreement of
sale by defendant No.2 in favour of the plaintiff on 12.02.1988.
After the permission was granted by the G & W.C. Court, the
plaintiff got prepared the sale deed, draft of the sale deed and
along with the balance consideration amount of ₹23,000/-,
approached defendant No.2 to come to the sub-registrar's office.
At the office of the sub-registrar, defendant No.4 came into
picture saying that the sale deed has to be executed by
defendant No.2 in the joint name of the plaintiff and himself. The
plaintiff denied for the same and therefore, he returned back
with the draft sale deed which is at Ex.P.3. Thereafter, defendant
No.2 executed a sale deed on the same day i.e. on 13.10.1988 in
favour of defendant No.4. Thereafter, the plaintiff filed the
present suit before the Trial Court on 14.11.1988 seeking a
decree of specific performance of contract of agreement of sale.
4. In the said suit, defendant No.4 appeared before the
Court and contented that he was also residing in the tenements
as a tenant since more than 20 years and therefore, the elders
who were instrumental in achieving the sale of the tenements to
the respective tenants had insisted that the name of defendant
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No.4 also to be included in the sale deed jointly with the plaintiff
and the plaintiff having denied the same, the sale was executed
in his favour. It was contended that it was the plaintiff who was
not ready to enter into the sale deed along with defendant No.4
and therefore, defendant No.2 on behalf of herself and defendant
Nos.1 and 3 has executed the sale deed in favour of the
defendant No.4.
5. On the basis of the above contentions, issues were
framed by the Trial Court and the evidence was led. The
following issues were framed by the Trial Court.
"1) Do plaintiffs prove that the defendant Nos. 1 to 3 have
agreed to sell the suit property for a consideration of Rs
23.000/- in favour of deceased Pralhad Laxman Matade
on 12.2.1988 and executed agreement in writing?
2) Do plaintiffs prove that deceased Pralhad has given an
advance amount of Rs 1000/-?
3) Do plaintiffs prove that deceased Pralhad was ready
and willing to perform his contract?
4) Do plaintiffs prove that, after the death of deceased
they are ready and willing to perform their part of
contract?
5) Do plaintiffs prove that they were in possession of the
suit property?
6) Whether the plaintiffs are entitled for relief of Specific
Performance of Contract?
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6(a) In the alternative, whether the plaintiffs are
entitled for refund of earnest money?
7) Does defendant No.4 prove that he has purchased the
suit property from the defendant Nos.1 to 3 on
13.3.1988 and he is not liable to execute the sale deed
in favour of plaintiffs?
8) Do plaintiffs prove that they were dispossessed by the
defendants after the sale deed of defendant No.4 on
13.10.1988?
9) Whether the plaintiffs are entitled for relief of
possession?
10) What order or decree?"
6. During pendency of the suit, the original plaintiff
died and his legal heirs were brought on record. The son of the
plaintiff was examined before the Trial Court as PW.1 and one
witness was examined as PW.2. Defendant No.4 was examined
as DW.1 and two witnesses were examined as DW.2 and DW.3.
Ex.P.1 to 46 and Ex.D.1 to 11 were marked in evidence.
7. After hearing the arguments, the Trial Court came to
the conclusion that though the agreement between the plaintiffs
and defendant Nos.1 to 3 is proved, the ready and willingness of
the plaintiff was not proved and therefore, it declined to grant
the relief of specific performance but ordered the refund of the
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earnest money of ₹1,000/- along with interest at the rate of 6%
per annum.
8. Being aggrieved, the legal heirs of the plaintiff
approached the First Appellate Court in R.A.No.46/2003 and by
the impugned judgment, the First Appellate Court has confirmed
the judgment of the Trial Court.
9. Being aggrieved by the same, the appellants have
approached this Court and on hearing, the following substantial
questions of law were framed by this Court on 06.01.2016.
"1) Whether the Courts below were justified in holding
that the plaintiff had not proved his case under
Section 16(c) of the Specific Relief Act, 1963?
2) Whether the Courts below were justified in not
exercising discretion in favour of the plaintiff for the
purpose of granting relief of specific performance of
agreement to sell dated 12.02.1988?"
10. The question that arises in this appeal is whether the
plaintiff has proved his ready and willingness to perform his part
of the contract and the Trial Court and the Appellate Court did
not exercise discretion in favour of the plaintiff.
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11. It is worth to note that the execution of the
agreement of sale dated 12.02.1988 is admitted. Defendant Nos.
1 to 3 have not denied the said agreement. Therefore, there
cannot be any doubt about the proof of the agreement of sale
dated 12.02.1988, which is produced at Ex.P.1.
12. The evidence on record would show that when the
plaintiff along with the draft sale deed as per Ex.P.3 went to the
sub-registrar's office, defendant No.4 had accompanied
defendant No.2 and according to the evidence of defendant No.4
and his witnesses, the elders who were there and who were
instrumental in selling the tenements to the respective tenants,
insisted that the name of defendant No.4 also to be included in
the sale deed. On that ground, in Ex.P.3 the name of defendant
No.4 was also included along with the plaintiff. But the plaintiff
did not agree that the name of defendant No.4 also to be
included. It is pertinent to note that the plaintiff did not enter the
witness box since he was no more. It is evident that PW.1 was
not present at the time of the incident which took place at the
sub-registrar's office. Therefore, his testimony so far as the
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event which occurred at the sub-registrar's office may not be of
much relevance.
13. When we examine the testimony of DW.2 and DW.3,
who are the witnesses who were present at that time, they say
in their examination-in-chief that the elders who were there
insisted that the name of defendant No.4 also to be included in
the sale deed and for which, the plaintiff did not agree.
Curiously, in the cross-examination of DW.2 and DW.3, no
question is put to them to elicit who were those elders who
insisted for the inclusion of the name of defendant No.4. The
cross-examination goes on the footing that it was the defendant
No.4 who started insisting for inclusion of his name.
14. It is relevant to note that the suit schedule
property is one of the tenement in a chawl and there were
several of the tenants occupying it. The perusal of the order
in G & W.C.No.10/1988 Ex.P.2 shows the same. There were as
many as more than ten tenants in the premises and since
defendant Nos.1 to 3 were not interested in staying at Bailhongal
and as such they wanted to sell it for the benefit of the minors.
When the events are examined in the above backdrop, the
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involvement of the so-called elders as contended by DW.1 to 3
plays a vital role and it is not known what had transpired
between the plaintiff, defendant Nos.1 to 3 and the elders who
all finalized with the agreement. In that view of the matter,
seeking the details of those elders was one of the crucial
requirements in the cross-examination of DW.2 and DW.3.
Therefore, from the perusal of the testimony of the witnesses, it
is evident that when the plaintiff was asked to include defendant
No.4 also, he had withdrawn and thereafter, they proceeded with
executing the sale deed on the same day.
15. The testimony of PW.1 shows that subsequent to
death of the original plaintiff, defendant No.4 has occupied the
suit premises which was a tenanted premises. Therefore, the
present appellants also do not have the possession over the
property. In the light of this, the discretion exercised by the Trial
Court and the First Appellate Court in coming to the conclusion
that the plaintiffs are not entitled for the relief of specific
performance appears to be proper. Secondly, the ready and
willingness as deciphered and understood by the Trial Court and
the First Appellate Court appears to be that when the elders who
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were there, offered the plaintiff to include the name of defendant
No.4 also, he had refused and withdrawn. It may be an
afterthought of the plaintiff that he was insisting for the
performance of the contract as per Ex.P.1. When we examine the
views of the Trial Court and the First Appellate Court, it appears
that both the Courts have come to the same conclusion after
appreciating the evidence on record. In second appeal, this Court
cannot unsettle the appreciation of the evidence made by both
the Trial Court and the First Appellate Court concurrently, unless
it is established that such appreciation is perverse. Therefore,
when the testimony on record is closely examined, it is not
possible to differ with the views taken by the Trial Court and the
First Appellate Court. Of course the room for concluding that the
plaintiff was not ready and willing to perform his part of the
contract is involved in a very short span of time, but ultimately
the discretion which was available under Section 20 was also a
subject matter and therefore, when the legal heirs of the
plaintiffs had lost the possession over the property, the
discretion leans in favour of defendant No.4. Moreover the sale
consideration which was agreed at ₹24,000/- and out of it, only
a sum of ₹1,000/- was paid by the plaintiff.
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16. It is pertinent to note that the agreement was
entered into on 12.02.1988, permission by the G & W.C. Court
was granted on 06.09.1988 and the sale deed was executed on
13.10.1988 and on the same day, the sale deed in favour of the
plaintiff could not be executed. Keeping in view the turn of
events and the quantum of the earnest money which was paid,
this Court is of the view that the rate of interest of 6% imposed
by the Trial Court and the First Appellate Court while returning
the earnest money is not proper and as such the same has to be
enhanced to 12%. Under these circumstances, the appeal
deserves to be allowed in part while answering the substantial
questions of law Nos.1 and 2 in the affirmative. The judgment
of the First Appellate Court stands modified accordingly.
SD/-
(C M JOSHI)
JUDGE
SSP
CT:PA
