Karnataka High Court
Smt. Parvathi Ashok vs M/S. Royal Enclave on 17 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17th DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.71/2021 (SP)
BETWEEN:
1. SMT. PARVATHI ASHOK
W/O SRI. S.V. ASHOK
AGED ABOUT 56 YEARS
R/AT NO.125, 6TH CROSS
BAPUJI LAYOUT
VIJAYANAGARA
BENGALURU - 560 040.
... APPELLANT
(BY SRI. PRADEEP NAIK K., ADVOCATE)
AND:
1. M/S. ROYAL ENCLAVE
A REGISTERED PARTNERSHIP FIRM
HAVING ITS BUSINESS OFFICE
AT D.NO.895/1,
SKANDA, 14TH CROSS
MAHALAKSHMI LAYOUT,
BENGALURU - 560 086
REPRESENTED BY ITS PARTNERS
(a) MR. V. BHASKER REDDY
(b) MR. T.R. REDDY.
2. MR. V. BHASKER REDDY
PARTNER OF M/S. ROYAL ENCLAVE
S/O SRI BALAVENKATA REDDY
2
3. MR. T.R. REDDY
PARTNER OF M/S. ROYAL ENCLAVE
R/AT D.NO.895/1
SKANDA, 14TH CROSS
MAHALAKSHMI LAYOUT
BENGALURU - 560 086.
4. MR. U. VENKATA REDDY
S/O RAMIREDDY
AGED ABOUT 38 YEARS
R/AT NO.717, 2ND FLOOR
POORNESHASHI COMPLEX
MODI HOSPITAL ROAD
BENGALURU - 560 086.
5. SRI. K.N. ANIL BABU
S/O LATE K. NARASIMHA MURTHY
AGED ABOUT 60 YEARS
R/AT NO.448, 7TH MAIN
1ST STAGE, HEBBAL
MYSURU - 570 016.
6. SRI. GOVINDRAJ VAMAN RAYABAGI
S/O SRI. V.G.RAYABAGI
AGED ABOUT 44 YEARS,
R/AT NO.614, 12TH CROSS,
DR.SHIVARAM KARANTH NAGAR
BENGALURU - 560 077.
7. SRI. S.M. KARIAPPA
S/O SRI. S.G. MUTHAPPA
AGED ABOUT 50 YEARS,
R/O NAPOKKLU VILLAGE AND POST
KODAGU DISTRICT - 571 214. ... RESPONDENTS
(BY SRI Y.V.PRAKASH & SRI VRATHIN N.K. ADVOCATES FOR R7;
VIDE ORDER DATED 03.06.2025,
NOTICE TO R1 TO R6 DISPENSED WITH)
3
THIS R.S.A. IS FILED UNDER SECTION 100 READ WITH
ORDER XLII RULE 1 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 21.09.2020 PASSED IN R.A.NO.143/2018 ON
THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 16.03.2018 PASSED IN
O.S.NO.158/2013 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE, MYSURU.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.10.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
1. Heard the learned counsel for the appellant and
the learned counsel for the respondents.
2. The second appeal is filed against the divergent
finding of the Courts below. At the first instance, the relief
of specific performance is granted in O.S.No.158/2013
directing the defendants to execute the sale deed and in the
first appeal in R.A.No.143/2018, the Appellate Court
reversed the said judgment of Trial Court and directed to
refund the earnest money of Rs.2,00,500/- with 6%
interest per annum.
3. The factual matrix of case of the plaintiff/appellant
before the Trial Court while seeking the relief of specific
performance, it is contended that defendant Nos.1 to 3
have agreed to sell the suit schedule property for a total
sale consideration of Rs.8,02,000/- and executed a
registered sale agreement on 17.02.2010 in favour of the
plaintiff by receiving an advance amount of Rs.2,00,500. It
is also the contention of the plaintiff that she was always
ready and willing to perform her part of contract and inspite
of request, defendants did not come forward to execute the
sale deed. It is contended that defendant Nos.1 to 3
through defendant No.4 have executed the sale deed in
favour of defendant Nos.5 to 7 and the same came to the
knowledge of the plaintiff on a verification with the Sub-
registrar and immediately filed a suit for the relief of
specific performance and hence plaintiff is entitled for the
relief of specific performance. It is also contended that sale
deeds executed by defendant Nos.1 to 3 in favour of
defendant Nos.5 to 7 respectively on 04.02.2012,
06.08.2010 and 27.11.2010 are null and void and not
binding on the plaintiff. The defendant Nos.5 and 7 have
filed their written statement contending that they have
purchased the property for sale consideration and only with
an intention to gain wrongfully, suit is filed and possession
has also been delivered in favour of them and they are
enjoying the same. The defendant No.7 also took the
contention that the sale consideration is paid by way of
hard cash. It is also the contention of both defendant Nos.5
and 7 that subsequent to the purchase of the property got
changed khata and regularly paying the tax and plaintiff did
not approach the defendant Nos.1 to 3 and plaintiff was not
ready to perform his part of contract and she was not
diligent to perform her part of obligation to obtain the sale
deed.
4. The Trial Court having considered both oral and
documentary evidence framed the following Issues and
Additional Issue:
ISSUES
1) Whether the plaintiff proves that the
defendant Nos.1 to 3 agreed to sell the suit
schedule property for a total sale
consideration of Rs.8,02,000/- and on
17.02.2010 defendants No.1 to 3 executed
an agreement of sale in favour of the
plaintiff by receiving an advance amount of
Rs.2,00,500/-?
2) Whether the plaintiff proves that she was
always ready and willing to perform her part
of contract?
3) Whether the plaintiff is entitled for specific
performance of contract of an agreement of
sale dt:17.02.2010 in respect of suit
schedule property, as prayed?
4) Whether the plaintiff proves that the Sale
Deeds executed by defendants 1 to 3 in
favour of defendants 5 to 7 respectively
dt:04.02.2012, 06.08.2010 and 27.10.2010
are null and void and not binding on her?
5) What order or decree?
Additional Issue
1) Whether the 7th defendant proves that he is
a bonafide purchaser of the Item No.3 of the
suit schedule property under a registered
Sale Deed dt:27.11.2010?
5. The plaintiff in order to prove the case examined
herself as P.W.1 and got marked Ex.P.1 to Ex.P.7. On the
other hand to substantiate the case of the defendants,
defendant No.7 was examined as D.W.1, but no documents
were placed on behalf of the defendants. The Trial Court
having considered both oral and documentary evidence
placed on record, answered all the Issue Nos.1 to 4 as
affirmative and answered the Additional Issue No.1 as
negative in coming to the conclusion that 7th defendant is a
not bonafide purchaser and granted the relief of specific
performance.
6. Being aggrieved by the judgment and decree of
the Trial Court, an appeal is filed in R.A.No.143/2018 before
the First Appellate Court. The First Appellate Court having
considered the grounds urged in the appeal memo,
formulated the point for consideration as below:
POINTS
1) Whether the plaintiff proves that she was
ever ready and willing to perform her part
of contract?
2) Whether defendant No.7 proves that, he is
a bonafide purchaser of item No.3 of the
plaint schedule property for valuable
consideration without notice of the
Agreement of Sale in favour of the plaintiff ?
3) Whether the findings of the Trial Court are
perverse, capricious accused require
interference by this Court ?
4) What Order ?
7. The First Appellate Court having re-assessed both
oral and documentary evidence, answered the point No.1 as
negative in coming to the conclusion that plaintiff was not
ready and willing to perform her part of contract and on the
other hand, answered point No.2 as affirmative in coming
to the conclusion that defendant No.7 is a bonafide
purchaser of item No.3 of the plaint schedule property for a
valuable consideration without notice of the agreement of
sale in favour of the plaintiff and answered the point No.3
as affirmative in coming to the conclusion that Trial Court
judgment is perverse, capricious and it requires
interference.
8. Being aggrieved by the reversal of finding of the
Trial Court, the present second appeal is filed before this
Court. The main contention of the counsel appearing for the
appellant/plaintiff in this case is that the First Appellate
Court committed an error in appreciating both oral and
documentary evidence and fails to consider the document
of Ex.P.1- registered sale agreement and the same has
been reflected in the encumbrance certificates at Ex.P.5 to
P7 and the respondent No.7/defendant No.7 knowingfully
well colluding with defendant Nos.1 to 3 created the illegal
sale deeds with an intention to deprive the right of the
plaintiff and the said fact has been properly considered by
the Trial Court, but the Appellate Court committed an error.
It is the specific case of the plaintiff that on investigation,
she came to know about illegal sale deeds are executed as
per Ex.P.2 to Ex.P.4 and on verification with the Sub-
Registrar office, she came to know about the fraudulent act
of defendant Nos.1 to 3, during the subsistence of sale
agreement, three sale deeds are executed on 06.08.2010,
27.11.2010 and 04.02.2012 i.e., immediately after the
execution of the sale agreement and the same has not been
considered by the First Appellate Court and the observation
made by the First Appellate Court that notice is mandatory
before filing the suit is not correct and when the plaintiff
came to know about the fraudulent act of execution of sale
deeds in favour of defendant Nos.5 to 7, she was forced to
file a suit and no need to issue any notice since already sale
deeds are executed in favour of third parties i.e., defendant
Nos.5 to 7 and the same is not properly appreciated by the
First Appellate Court.
9. The counsel also would vehemently contend that
even there was no any sale agreement prior to execution of
sale deeds Ex.P.2 to Ex.P.4 in favour of defendant Nos.5 to
7 and hence indicated substantial question of law to be
framed in the second appeal. This Court, while admitting
the second appeal, framed the following substantive
question of law:
1) Whether the First Appellate Court justified in
reversing the Judgment & Decree of the Trial
Court?
2) Whether the First Appellate Court justified in
concluding that plaintiff is not entitled for the
relief of specific performance by observing
that Ex.P.5 to 7 Encumbrance Certificates
are not public notice and plaintiff has failed
to issue notice before filing the suit?
3) Whether the First Appellate Court justified in
concluding that 7th defendant is the bonafide
purchaser ignoring the entries made in
Ex.P.5 to 7?
10. The counsel appearing for the appellant in his
argument brought to notice of this Court that part sale
consideration of Rs.2,00,500/- was paid on the date of sale
agreement i.e., on 17.02.2010 and remaining amount was
paid at the time of registration of the document. The
counsel would contend the defendant No.1 is the
partnership firm and defendant Nos.2 and 3 are the
partners and defendant No.4 is the power of attorney
holder of defendant Nos.1 to 3. The counsel would contend
that in the agreement no time is stipulated for completion
of sale transaction and the very reasoning of the First
Appellate Court is erroneous that the appellant was not
ready and willing to perform her part of contract and there
was no any condition to make any payment and the same is
payable at the time of registration and apart from that fails
to take note of the fact that within a span of 6 months, first
sale deed was executed on the date of sale agreement that
too in the month of August-2010. It is also the contention
that though defendant No.5 filed the written statement did
not choose to enter into the witness box and also counsel
would submits that defendant Nos.5 and 6 have not filed
any appeal against the judgment and decree of the Trial
Court and only defendant No.7 has filed the appeal, but,
Trial Court set aside the entire judgment even in the
absence of any appeal by defendant Nos.5 and 6. The
counsel also brought to notice of this Court that before
executing the sale deeds at Ex.P.2 to Ex.P.4, there was no
any sale agreement and hence it is clear that the very
intention of the defendants in order to deprive the right of
the plaintiff, directly executed the sale deed. The counsel
also vehemently contend that the admission on the part of
D.W.1 is very clear that before purchasing the property, he
has not made any enquiry and even did not obtain
encumbrance certificate and when the sale agreement is
registered, ought to have enquired before purchasing the
property and the principle of caveat emptor is applicable to
the case on hand.
11. The counsel in support of his argument relied
upon the judgment of the Apex Court reported in AIR 1994
Supreme Court 1200 in case of Smt.Kaulashwari Devi
and another V/s Nawal.K.Kishore and another wherein
Apex Court held in this judgment that raising of new plea
and permissibility in a case of decree for specific
performance based on plea of unwillingness to perform
contract on part of Vendee raised by the purchaser
pendente lite and Vendee instead of depositing balance
amount with Vendor in the Court and procuring sale deed
within the period prescribed by Trial Court, denial of specific
performance based on new plea is not sustainable. The
counsel brought to notice of this Court discussion made in
paragraph No.8 of the judgment that the first defendant
has not chosen to file an appeal against the decree of the
Trial Court. Even the second appeal is filed only by the
second defendant. The second defendant cannot claim any
right of his own. He is bound by the decree passed against
the first defendant. An observation is made that the
contention for the first time was urged at the time of
hearing of the second appeal and once it is held that the
plaintiff did pay the amount and obtained the sale deed
within the period prescribed by the Trial Court, the main
ground upon which the High Court had dismissed his suit
becomes untenable.
12. The counsel also relied upon the judgment
reported in (2000) 2 Supreme Court Cases 428 in case
of Ram Awadh(Dead) By Lrs. & Ors. Vs Achhaibar
Dubey & Anr. and brought to notice of this Court the
discussion in paragraph No.3 wherein case of 'Jugraj Singh'
was extracted.
13. Per contra, the counsel appearing for the
respondents in his argument would vehemently contend
that the First Appellate Court rightly comes to the
conclusion that the plaintiff was not ready and willing to
perform his part of contract and he kept quite and rightly
comes to the conclusion that that she was not ready and
willing and though counsel contend that in paragraph No.8
of the plaint has pleaded that he wrote the letters to the
defendants after the sale agreement, but categorically
admitted in the cross-examination that no such letters are
written and hence, it is clear that she was not ready and
willing to perform her part of contract. The counsel also
would vehemently contend that no notice was issued before
filing of suit and the same is also taken note of by the First
Appellate Court and hence contend that the Appellate Court
has not committed any error and it does not require any
interference.
14. The counsel in support of his argument he relies
upon judgment reported in 2021 SCC Online SC 365 in a
case of Kadupugotla Varalakshmi V/s Vudagiri
Venkata Rao and Others and brought to notice of this
Court paragraph Nos.7 and 8 wherein an observation is
made that the judgment of 'Jugraj Singh' case is erroneous
referring the constitutional bench judgment.
15. The counsel also relied upon the judgment of
Supreme Court reported in (2000) 2 SCC 428 in case of
Ram Awadh(Dead) By Lrs. & Ors. Vs Achhaibar Dubey
& Anr. and the same judgment is also relied upon by the
counsel appearing for the appellant and brought to notice of
this Court, the discussion made in paragraph No.6. The
obligation imposed by Section 16 is upon the Court not to
grant specific performance to a plaintiff who has not met
the requirements of clauses (a), (b) and (c) thereof and
counsel referring these two judgments would also
vehemently contend that even if the executants of the sale
agreement did not contest the matter subsequent
purchaser can raise the said contention.
16. The counsel also relied upon the judgment of
this Court reported in AIR Online 2024 KAR 1766 in case
of Bylamurthy late Siddappa V/s
M.G.Gangalakshmamma wherein also this Court referring
Section 16(c) made an observation that no effort was made
from date of sale agreement till filing of suit except making
additional payment and notice was given after 5 years of
execution of sale agreement and hence, held that not
entitled for the relief of specific performance.
17. The counsel also brought to notice of this Court
the Judgment of the Apex Court reported in AIR Online
2019 SC 1072 in case of Ritu Saxena V/s J.S.Grover
wherein also discussion was made with regard to Section 20
readiness and willingness, self-serving statement without
any proof of financial resources cannot be relied upon to
consider that appellant was ready and willing to perform
her part of contract and brought to notice of this Court
paragraph Nos.15 and 16 of the judgment.
18. The counsel also relied upon the judgment
reported in AIR 2022 Supreme Court 3361 in case of
U.N.Krishnamurthy(Since deceased) Thr Lrs' V/s
A.M.Krishnamurthy wherein also discussion was made
with regard to Section 16(c) and an observation is made
that acceptable evidence not placed on record to prove his
readiness and willingness, plaintiff not entitled for the relief
of specific performance and brought to notice of this Court
paragraph Nos.47 and 48. The plaintiff has failed to prove
his readiness to perform his part of contract from the date
of execution of the agreement till date of decree.
19. The counsel also relied upon the judgment
reported in AIR 2024 Supreme Court 3242 in case of
Pydi Ramana alias Rumulu V/s Davarasety
Manmadha Rao wherein also Section 16(c) is discussed in
detail and brought to notice of this Court paragraph Nos.11
and 12 with regard to the readiness and willingness to
perform the contract. The counsel referring these
judgments would vehemently contend that even
subsequent purchaser also can raise the issue of readiness
and willingness and unless plaintiff proves that he was
always ready, question of granting the specific performance
does not arise. Hence, prayed the Court to dismiss the
appeal.
20. Having heard the learned counsel for the
appellant and the learned counsel for the respondents and
in consideration of the substantive question of law framed
by this Court which have been referred above, this Court
has to analyze the material available on record.
21. It is the specific case of the plaintiff that she had
entered into an agreement of sale with defendant Nos.1 to
3 on 17.02.2010. It is important to note that sale
agreement is marked as Ex.P.1 and the same is a
registered sale agreement. It is important to note that
specific case of the plaintiff that out of sale consideration of
Rs.8,02,000/- an amount of Rs.2,00,500/- was paid as
earnest money. It is the case of the plaintiff that she was
always ready and willing to perform her part of contract. It
is also the specific case of plaintiff before the Trial Court in
the suit that she was always ready and willing to perform
her part of contract and also in the paragraph No.4 of the
plaint, the silent features of agreement of sale dated
17.02.2010 has been narrated. Having considered the
contents of the document of Ex.P.1, it is clear that sale
consideration is Rs.8,02,000/- and on the date of execution
of the registered sale agreement, an amount of
Rs.2,00,500/- was paid and remaining amount was payable
at the time of registration of the sale deed.
22. It is also important to note that no time
stipulation is made for execution of the sale deed and in the
plaint, it is narrated that the assurance given by the
defendant Nos.1 to 3 that soon after certain formalities are
completed, they would immediately execute the sale deed.
It is also important to note that defendant Nos.1 to 3
assured that schedule property is free from encumbrances,
attachments or any charge and in paragraph No.5, specific
averment is made that she is always ready and willing to
perform her part of contract and plaintiff repeatedly
requested defendant Nos.1 to 3 to execute the registered
sale deed conveying the suit schedule properties in her
favour by receiving the balance consideration, but
defendant Nos.1 to 3 assured the plaintiff that they would
execute registered deed of sale conveying the suit schedule
properties in favour of the plaintiff and believing the words,
the plaintiff kept quiet, but defendant Nos.1 to 3
conveniently dodged the execution of the sale deed under
the one pretext or the other by giving false impression that
they would execute the sale deed but, when the plaintiff
doubted the very conduct of the defendants, did not
respond and immediately made an enquiry in the office of
the Sub-registrar and came to know that the defendants
Nos.1 to 4 have executed the sale deed in favour of
defendant Nos.5 to 7. Hence, filed the suit immediately.
23. It is important to note that when these pleadings
are made in the plaint that original owners of the property
i.e., defendant Nos.1 to 3 have not filed their written
statement and contested the same, but defendant No.7
only took the contention that plaintiff was not ready and
willing, but on perusal of material available on record, in
the evidence of P.W.1, he also categorically deposed before
the Court that he went and met the defendant No.2 who is
having authorization to deal with the matter and requested
5-6 times to execute the sale deed, but he did not come
forward to execute the sale deed and he categorically made
the submission that he met him 5-6 times, but in the cross-
examination though the defendant took the contention that
plaintiff was not ready and willing, but the evidence of
P.W.1 was not denied and that answer was even extracted
in the cross-examination by the defendant No.7 and when
the P.W.1 has given such evidence, even did not put any
question that she did not met Prathap Reddy 5-6 times, but
only answer elicited from the cross examination that she
has not sent any letters and no doubt the counsel appearing
for the respondent brought to notice of this Court in
paragraph No.8, it is stated that they have written letter,
but that will not take away the case of the plaintiff
regarding readiness and willingness is concerned since the
readiness and willingness is elicited by the counsel for
defendant No.7 during cross-examination and not denied
the same.
24. It is also important to note that sale agreement
came into existence on 17.02.2010 and First Appellate
Court fails to take note of the very conduct of defendant
Nos.1 to 3 executing the sale deed in favour of defendant
Nos.5 to 7 within a span of even not completion of 6
months of the said agreement, first sale deed was executed
in the month of August-2010 itself, then another sale
agreement executed in favour of defendant No.7 on
27.11.2010 and another sale deed in the year 2012
suppressing the earlier agreement. But, the evidence of
plaintiff is very specific that when the plaintiff approached
the defendants, they assured that they are going to execute
the sale deed, but they did not come forward and the
plaintiff immediately having doubted the conduct of the
defendants, went and enquired in the Sub-Registrar Office,
then came to know about the registration of these three
sale deeds and the said pleadings is not denied and nothing
is elicited in the cross-examination. The Court while
considering the material on record, ought to have taken
note of fraudulent act of defendant Nos.1 to 3 executing the
sale deed in favour of defendant Nos.5 to 7 within a span of
6 months i.e., 17.02.2010 is the sale agreement and first
sale deed was executed on 06.08.2010 and question of
readiness and willingness does not arise when the sale
agreement does not stipulate any time is the essence of the
contract and the same is lost sight by the First Appellate
Court.
25. It is also important to note that while granting
the relief of specific performance and rejecting the same,
Court has to take note of conduct of the parties. In the case
on hand, no denial of execution of sale agreement dated
17.02.2010 by the defendant Nos.1 to 4. Apart from that
even subsequent purchaser, defendant Nos.5 to 7 not
denies the execution of sale agreement and also the
document of Ex.P.5 to Ex.P.7 encumbrance certificates
which is very clear that encumbrance certificates are
standing in the name of the plaintiff that there was a sale
agreement in favour of the plaintiff. The First Appellate
Court also committed an error in coming to the conclusion
that defendant No.7 is the bonafide purchaser and the said
finding is erroneous against the admission on the part of
D.W.1 and D.W.1 categorically admits in the cross-
examination that he is claiming right in respect of only one
of the site and categorically admitted that he is not having
any acquaintance with the plaintiff and even after filing of
the suit also, he did not made any enquiry and even did not
look into the documents which have been filed by the
plaintiff and no effort was made to look into the document
and this admission at paragraph No.2 was extracted in the
judgment of the Trial Court. It is also important to note that
the Trial Court even extracted the admission on the part of
the defendant which is elicited in paragraph No.3 of the
cross-examination and he came to know that property is for
sale which is noticed in the paper, but he is not having that
paper, but he had informed his counsel about the said
publication and before purchasing the property he has not
given any application to the defendant No.1. Further, he
categorically admits that he obtained the sale deed directly
without any sale agreement and this fact is also lost sight
by the First Appellate Court that there was no any sale
agreement in favour of defendant Nos.5 to 7. Apart from
that though he contend that he had paid the sale
consideration of Rs.8,00,000/-, but all the sale deeds
including the sale deed of D.W.1, sale consideration is
shown as Rs.2,25,800/- and the said amount was paid by
way of cash, but he claims that remaining amount was paid
by way of Cheque, but nothing is placed on record and
though he claims that before purchasing the property he
verified the documents, but nothing is placed on record with
regard to the same and categorically admits that he did not
obtain encumbrance certificate before purchasing of the 3rd
item of the suit schedule property, but Appellate Court
magnified the admission that he enquired with the
defendant No.1 about the encumbrance, but they replied
that no problem, but, the person who sells the property if
any enquiry is made with him, normally he would makes
such statement. But, First Appellate Court taken this
answer and highlighted the same while reversing the
finding of the Trial Court and when he categorically admits
that he did not obtain any encumbrance certificate prior to
purchasing of the property ought to have taken note of the
said fact into consideration. The Trial Court has given the
reasoning that no such enquiry was made before
purchasing the property and also taken note of the fact that
directly obtained the sale deed and when this type of
transaction was taken place, i.e., subsequent to the sale
agreement, it is nothing but a collusive act of the defendant
Nos.1 to 7 in creating of documents with an intention to
prevent the legal right of the plaintiff who entered into an
agreement and the sale agreement is also registered and
the same is also reflected in Ex.P.5 to Ex.P.7. All these
factors were not taken note of by the First Appellate Court
and lost sight of all these factors into consideration and
even payment of consideration only by way of cash and the
consideration is lesser the amount of sale consideration
mentioned in the agreement of plaintiff.
26. It is also important to note that within a span of
6 months, first sale deed was registered and subsequently
two registered sale deeds are executed. When the plaintiff
specifically pleaded in the plaint that when the defendants
did not come forward to execute the sale deed on her
request and when she enquired and verified with the Sub-
registrar office, then she came to know about the creation
of three sale deeds in favour of defendant Nos.5 to 7 and
then filed the suit. The First Appellate Court committed an
error in reversing the finding in entirety of the judgment of
the Trial Court. It is important to note that the defendant
No.6 who had purchased one of the scheduled property, he
did not come forward to contest the suit and also he did not
file any written statement, he was placed ex-parte. It is
important to note that defendant No.5 though filed the
written statement, he did not step into the witness box. It
is important to note that defendant Nos.5 and 6 have not
challenged the judgment and decree of the Trial Court and
only defendant No.7 had challenged the decree. But, the
Appellate Court lost sight that there was no any challenge
by defendant Nos.5 and 6 in respect of two items of the
scheduled property. But, only considering the appeal filed
by the defendant No.7, reversed the judgment of the Trial
Court in entirety, the same is also an erroneous approach.
The First Appellate Court committed an error in considering
both oral and documentary evidence placed on record and
finding of the First Appellate Court is perverse and
capricious and not the finding of the Trial Court is perverse
and capricious as observed. The Trial Court even extracted
the admission on the part of D.W.1 while passing the
judgment and granting the relief of specific performance.
The very approach of the Appellate Court is erroneous and
perverse since the material available on record was not
considered in a proper perspective instead of answered the
point No.1 erroneously in coming to the conclusion that
plaintiff was not ready and willing to perform her part of
contract. The specific case and evidence of the plaintiff-
P.W.1 is very clear that she had approached the defendant
No.2 to execute the sale deed 5 to 6 times and the same is
elicited from the mouth of P.W.1 by the counsel for
defendant No.7 in the cross-examination and after the
answer given by the plaintiff-P.W.1 in the cross-
examination, even did not suggest that never approached
the defendant and inspite of it the Appellate Court
answered the point No.1 as negative in coming to the
conclusion that not ready. The question of expecting the
Court that readiness of plaintiff within a span of 6 months
when the time is not stipulated for the execution of the sale
deed is also erroneous and when the time is not the
essence of the contract, fails to take note of conduct of
defendant Nos.1 to 7 in selling the very same property
which was agreed in favour of the plaintiff within a span of
6 months and thereafter subsequently executed the sale
deed in respect of other 2 items. When the plaintiff came to
know about the same, filed the suit immediately. It is also
very clear that under Article 54 of Limitation Act, suit ought
to have been filed within 3 years from the date of refusal,
but, in the case on hand, when the plaintiff came to know
about there were 3 sale deeds, He had immediately filed
the suit.
27. The Appellate Court also committed an error in
making an observation that no notice was issued before
filing of suit for specific performance and no need to give
any notice and Court has to take note of facts of each case
and circumstances and in the case on hand when the sale
already made in favour of defendant Nos.5 to 7, question of
issuing the notice against the defendant Nos.1 to 3 does not
arise for execution of sale deed. The same is also unwanted
since third party right has already been created by the
defendant Nos.1 to 3 in favour of defendant Nos.5 to 7 and
no meaning in issuing of notice and filing of the suit. When
the plaintiff came to know about the sale was made and
filed the suit, that itself is clear that plaintiff is ready and
willing to have the sale deed in favour of her and the same
is also lost sight of by the First Appellate Court. The First
Appellate Court also fails to take note of Ex.P.2 to Ex.P.4
wherein sale consideration is only Rs.2,25,800/- in Ex.P.2,
in Ex.P.3 sale consideration is Rs.2,29,600/- and in Ex.P.4
sale consideration is Rs.2,28,000/- and the same is less
than the sale consideration mentioned in the sale
agreement. The very agreement of sale in favour of the
plaintiff is for Rs.8,02,000/-. Hence, it is very clear that
lesser amount is shown in Ex.P.2 to Ex.P.4 with an intention
to defraud the plaintiff. Apart from that though D.W.1
claims that he made the payment through Cheque, nothing
is placed on record and no documentary evidence is also
placed on record by the defendant No.7 except oral
testimony before the Court that he paid the balance amount
by way of cheque and First Appellate Court accepted the
evidence of D.W.1 and fails to consider the both oral and
documentary evidence available on record and committed
an error. Hence, the very approach of the First Appellate
Court is erroneous.
28. The principles laid in the judgments is
concerned, no dispute. The Apex Court in the judgment
referred by the counsel for respondents, comes to the
conclusion that judgment of 'Jugraj Singh' case is erroneous
and no dispute with regard to the principles laid down in the
judgments referred by the counsel for respondents is
concerned regarding subsequent purchaser also can take up
the contention of readiness and willingness, but in the fact
and circumstances of each case also to be taken note of
while applying the principles laid down in the judgments
referred by the counsel for respondents. This Court already
pointed out that when the sale agreement was executed on
17.02.2010 and immediately within a span of 6 months,
when the time stipulation was not their in the agreement,
created a document dated 06.08.2010 and subsequently on
27.11.2010 and 04.02.2012. Hence, it is clear that it is
nothing but collusive act between the defendant Nos.1 to 7
and not cancelled the earlier registered sale agreement and
even subsequent purchasers also not verified the records
and there is a clear admission on the part of D.W.1 i.e.,
defendant No.7 that he did not obtain any encumbrance
certificate and encumbrance certificates at Ex.P.5 to Ex.P.7
are very clear that a sale agreement is created in favour of
the plaintiff on 17.02.2010 and hence the principles caveat
emptor is also applicable to the case on hand. When such
being the case First Appellate Court committed an error in
answering point No.2 that 7th defendant is bonafide
purchaser having not noticed the earlier sale agreement
and ought to have verified before purchasing the property
directly through a sale deed and the fact that no sale
agreements prior to these 3 sale deeds and hence this
conduct is very clear that it is a collusive creation of
document by the defendant Nos.1 to 4 with the defendant
Nos.5 to 7 and when no such enquiry was made and no
effort was made to know about the encumbrance of the
property, the First Appellate Court committed an error in
coming to the conclusion that defendant No.7 is a bonafide
purchaser. The First Appellate Court fails to take note of
conduct of the parties that sale deeds are executed directly.
This Court has already pointed out that defendant Nos.5
and 6 have not filed any appeal as against the judgment
and decree of the Trial Court, but only the defendant No.7
had filed the appeal and the same was allowed erroneously
and hence the very approach of the First Appellate Court is
erroneous and the principles laid down in the judgment
relied upon by the counsel appearing for the respondents
referred supra will not comes to the aid of the respondents
having considered the material on record and each case
facts and circumstances has to be looked into. Hence, I
answered the substantive question of law accordingly that
First Appellate Court not justified in reversing the judgment
and decree and the Appellate Court also committed an error
in coming to the conclusion that plaintiff is not entitled for
the relief of specific performance without observing the
document at Ex.P.5 to Ex.P.7 that there was an
encumbrance certificate and also committed an error in
coming to the conclusion that plaintiff has failed to issue
notice prior to filing of the suit and the same is not
warranted in the case on hand. The approach of the
Appellate Court is also erroneous that defendant No.7 is the
bonafide purchaser and hence answered all the substantive
question of law as negative and Appellate Court not justified
in reversing the finding.
29. In view of the discussions made above, I pass
the following:
ORDER
i) Second appeal is allowed.
ii) The judgment and decree passed in
R.A.No.143/2018 dated 21.09.2020 by
the First Appellate Court is set-aside.
Consequently, the judgment and
decree passed in O.S.No.158/2013
dated 16.03.2018 by the Trial Court is
restored for the relief of specific
performance.
Sd/-
(H.P. SANDESH)
JUDGE
RHS
