Karnataka High Court
Anupkumar S/O Shankarappa Bijwad vs Smt. Shameena Shaheen W/O Hameed Koppad on 18 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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RFA No.100053 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 18TH DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO.100053 OF 2023 (SP-)
BETWEEN:
ANUPKUMAR
S/O. SHANKARAPPA BIJWAD,
AGE: 43 YEARS, OCC: BUSINESS,
R/O. BEHIND YARADETTINAMATH,
VEERAPUR ONI, HUBBALLI-580024.
...APPELLANT
(BY SRI. B.S. KAMATE, ADVOCATE)
AND:
1. SMT. SHAMEENA SHAHEEN
W/O. HAMEED KOPPAD,
YASHAVANT
NARAYANKAR AGE: 54 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
Digitally signed by
YASHAVANT
NARAYANKAR
R/O. KULKARNI HAKKAL,
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
GOODSHED ROAD, HUBBALLI-580020.
DHARWAD
2. JAFFARSAB PACHMIYA KHAZI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O. SHARAVATI NAGAR,
OLD HUBBALLI-580024.
...RESPONDENTS
(BY SRI. M.R. MULLA, SRI. VISHWANATH S. BICHAGATTI &
SRI. PARASHURAM C. SAJJANAR, ADVOCATES FOR R1;
SRI. R.H. ANGADI & SRI. V.K. PATIL, ADVOCATES FOR R2)
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RFA No.100053 of 2023
HC-KAR
THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED
02.01.2023 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE,
HUBBALLI IN O.S.NO.203/2017 AND TO DISMISS THE SUIT
O.S.NO.203/2017 BY ALLOWING THIS R.F.A. WITH COSTS IN
THE INTEREST OF JUSTICE.
THIS APPEAL IS COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)
This appeal is by the defendant No.2 directed against
the impugned judgment and decree dated 02.01.2023
passed by the Principal Senior Civil Judge, Hubballi in OS
No.203/2017 whereby the said suit by the respondent No.1-
plaintiff against the appellant-defendant No.2 and
respondent No.2-defendant No.1 for specific performance
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and other reliefs in relation to the suit schedule immovable
property was decreed in favour of the respondent No.1-
plaitniff against the respondent No.2-defenant No.1 and
appellant-defendant No.2 by the trial Court.
2. In the present appeal, the appellant-defendant
No.2 prays for the following reliefs:
"For the reasons stated above it is humbly prayed
that after calling for the records and proceeds of the
case this Hon'ble Court be pleased to set aside the
impugned Judgment and Decree dated 02.01.2023
passed by Principal Senior Civil Judge, Hubballi in
O.S.No.203/2017 and to dismiss the suit
O.S.No.203/2017 by allowing this R.F.A. with costs
in the interest of justice."
3. For the purpose of convenience parties will be
referred as per their respective ranks before the trial Court.
4. Briefly facts giving raise to the present appeal as
borne out from the pleadings of the parties are as under:
The defendant No.1 is the absolute owner of the suit
schedule immovable landed property described in
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paragraph No.3 of the plaint. On 14.03.2005, the defendant
No.1 executed an unregistered sale agreement in favour of
defendant No.2 and after having received certain sum of
advance towards the sale transaction, the defendant No.2
made subsequent payments during the period 2005 to 2011
to the defendant No.1 towards the sale transaction. The
defendant No.2 instituted a suit in OS No.247/2014 against
the defendant No.1 for specific performance of the said
agreement dated 14.03.2005 and the said suit in OS
No.247/2014 culminated in a compromise decree dated
23.07.2014 under which the defendant No.1 undertook to
execute a sale deed in favour of defendant No.2 in
pursuance of which the defendant No.1 executed a
registered sale deed dated 04.05.2017 in favour of the
defendant No.2 and put him in actual physical possession
and enjoyment of the suit schedule property.
5. Subsequently, the plaintiff instituted the present
suit in OS No.203/2017 on 01.09.2017 inter alia contending
that the defendant No.1 had executed a sale agreement
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dated 28.07.2007 for a total sale consideration of ₹
20,00,000/- and had received an advance consideration of ₹
3,00,000/- and additional payments, in the total sum of ₹
12,00,000/- from the defendant No.1 and since the
defendant No.1 did not comply with the requests and
demands made by the plaintiff to execute and register the
sale deed in his favour, the plaintiff instituted the present
suit for specific performance of contract and for other
reliefs.
6. It was contented that the plaintiff was ready and
willing to perform this part of the contract and since the
defendant No.1 did not come forward to execute a sale
deed, the plaintiff instituted the instant suit seeking the
aforesaid reliefs.
7. The defendant Nos.1 and 2 filed their separate
written statement, disputing and denying the various
allegations and claims made by the plaintiff. The defendant
No.2 inter alia also contended that he was a bonafide
purchaser for value from the defendant No.1 without notice
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of the earlier unregistered agreement said to have been
executed by defendant No.1 in favour of the plaintiff. Both
the defendants contended that the plaintiff was never ready
and willing to perform his part of the contract and that the
suit was barred by limitation and as such the suit was liable
to be dismissed.
8. Based on the aforesaid pleadings, the trial Court
framed the following issues and additional issue:
1. Whether plaintiff proves that defendant No.1 being
a owner of suit schedule property has executed a
agreement of sale on 28.07.2011 for ₹20,00,000/- by
receiving advance sale consideration of ₹3,00,000/-
and agreed to execute a sale deed as pleaded in the
plaint?
2. Whether plaintiff proves that defendant No.1h as
executed another agreement of sale on 05.12.2011
by receiving further earnest money of ₹5,00,000/- as
pleaded in the plaint?
3. Whether plaintiff proves that defendant No.1 again
received ₹2,50,000/- on 11.05.2012, on 11.05.2012
₹25,000/- on 04.08.2013 and 17.09.2013 received
₹25,000/- and ₹ 1,00,000/- as pleaded in the plaint?
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4. Whether the plaintiff proves that she is always
ready and willing to perform her part of contract?
5. Whether defendants prove that suit is barred by
limitation?
6. Whether defendants prove that suit is not
maintainable?
7. Whether defendant No.2 proves that he is a
bonafide purchaser of suit property as contended in
the written statement?
8. Whether plaintiff is entitled the relief as sought
for?
9. What order or decree?
ADDITIONAL ISSUE
Whether plaintiff is entitle for refund of earnest
money of ₹12,00,000/- along with interest at the rate
of 18% p.a.?
9. Plaintiff examined her husband/GPA holder as
PW1 and exhibits P1 to P20 were marked in his evidence,
while exhibits P21 to P23 were marked by confronting the
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same to defendant No.1(DW.1) in his cross examination.
The defendant No.1 examined himself as DW1 and
defendant No.2 as DW2 and exhibits D1 to D7 were marked
on their behalf.
10. The trial Court answered issue Nos.1 to 3 in
favour of the plaintiff thereby holding issue Nos.1 and 2 in
the affirmative in favour of the plaintiff and issue No.3
partly in the affirmative, thereby coming to the conclusion
that as against the claim of the plaintiff that he had paid a
total sum of ₹ 12,00,000/- towards advance and part of the
sale consideration, the plaintiff had established that he had
paid ₹ 11,00,000/- which was received by the defendant
No.1 from the plaintiff. The trial Court also answered issue
No.4 in the affirmative by holding that the plaintiff was
always ready and willing to perform his part of the contract
and that the suit was not barred by limitation and was
maintainable and issue Nos.5 and 6 were answered in
favour of the plaintiff. So also the trial Court answered issue
No.7 against the appellant-defendant No.2 by holding that
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he was not a bonafide purchaser for value without notice of
the sale agreement dated 28.07.2011 executed by
defendant No.1 in favour of the plaintiff.
11. A perusal of the impugned judgment and decree
will indicate that after having answered all the issues in
favour of the plaintiff, the trial Court proceeded to answer
issue No.8 as regards the relief to be granted in favour of
the plaintiff and the additional issue as in relation to the
alternative prayer for refund of earnest money of
₹ 12,00,000/- together with interest and held that since
the relief of specific performance was to be granted in
favour of the plaintiff, the question of granting the
alternative relief of refund of the advance amount paid by
the plaintiff would not arise in the facts and circumstances
of the instant case.
12. Heard the learned counsel for respondent No.1
and learned counsel for respondent No.2 and perused the
material on record.
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13. The points that arise for consideration of this
Court are :
i) Whether the trial Court was justified in
passing the impugned judgment and decree
granting specific performance in favour of the
plaintiff against the defendants?
ii) Whether the impugned judgment and
decree passed by the trial Court warrants
interference in the present appeal?
Regarding Point No(i):
14. A perusal of the material on record including the
impugned judgment and decree will indicate that on
14.03.2005, the defendant No.1 executed a sale agreement
in favour of defendant No.2 by receiving advance sale
consideration towards part and parcel of the sale
transaction and after having paid additional amounts during
the period 2005 to 2011, the defendant No.2 instituted a
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suit in OS No.247/2014 against the defendant No.1, which
culminated in a compromise decree dated 23.07.2014
pursuant to which a registered sale deed dated 04.05.2017
was executed by defendant No.1 in favour of defendant
No.2. In this context, it is pertinent to note that as per the
terms and conditions stipulated in the sale agreement at
exhibit P7 dated 28.07.2011 executed by the defendant
No.1 in favour of the plaintiff, the time fixed for
performance of the contract was a period of 6 months from
the date of the sale agreement.
15. On 29.01.2014, the defendant No.1 got issued a
notice at exhibit P13 cancelling the sale agreement
executed by him in favour of the plaintiff on the ground that
the plaintiff had not come forward to perform his part of the
contract and had not fulfilled the obligations cast upon him
in the sale agreement and called upon the plaintiff to pay
the balance sale consideration of ₹8,00,000/- and get the
sale deed registered within a period of 7 days, failing which
the agreement would stand automatically cancelled. The
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plaintiff-respondent replied/responded to the aforesaid legal
notice at exhibit P13 dated 29.01.2014 by issuing a reply at
exhibit P14 dated 31.01.2014 specifically stating that the
defendant No.1 had failed to subdivide the property and
separate the property standing in the name of the
defendant from the other co-owners and delete the bank
encumbrance and thereafter to proceed for register a sale
deed in favour of the plaintiff. It is an undisputed fact and a
matter of record that the suit was filed more than 3 years
thereafter on 01.09.2017.
16. The plaintiff has not placed any legal or
acceptable material to establish that during the period from
31.01.2014 till 01.09.2017 i.e., for more than a period of 3
and half year, he did any act, deed or thing pursuant to the
sale agreement or the communication between the parties
for the purpose of completing the sale transaction. In fact,
there is complete inaction on the part of the plaintiff from
the date of the agreement dated 28.07.2011 till the date of
institution of the suit.
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17. It is trite law that in order to obtain a decree for
specific performance, it is incumbent upon the plaintiff to
prove continuous readiness and willingness from the date of
the agreement till the date of decree and even subsequently
till the entire sale consideration is paid/deposited by him. It
is equally well settled that willingness implies acts, deeds
and things done by the plaintiff pursuant to the sale
agreement, the readiness implies the capacity to pay the
balance sale consideration or the proof of capacity to pay
the balance sale consideration. Even according to the
plaintiff, the last instalment of advance sale consideration of
₹ 50,000/- was paid by him only on 17.09.2013 and
nothing was paid thereafter till the date of institution of the
suit on 01.09.2017.
18. As stated supra, the defendant No.1 in his notice
at exhibit P13 dated 29.01.2014 categorically stated that if
the plaintiff does not come forward and pay the balance
sale consideration within a period of one week from that
day, the sale agreement would stand automatically
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rescinded/cancelled/revoked without any further notice.
Despite the specific stance/stand of the defendant No.1,
except issuing the reply dated 31.01.2014, at exhibit P14,
the plaintiff does not take any steps either to institute a suit
or do any other act, deed or thing including issuing any
further notice so as to prove his readiness and willingness
to complete the sale transaction.
19. Even before the trial Court, the plaintiff has not
placed any material to prove that he had the balance sale
consideration of ₹ 8,00,000/- available or he had the
capacity to raise the balance sale consideration of ₹
8,00,000/- so as to establish his readiness to complete the
sale transaction in terms of Section 16(c) of the Specific
Relief Act. Similarly, the complete inaction on the part of
the plaintiff in remaining silent at least from 31.01.2014 up
to 02.09.2017 is also point to be noticed that the plaintiff
had not established his continuous willingness to perform
his part of the contract as mandatorily required under
Section 16(c) of the Specific Relief Act.
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20. Under these circumstances, we are of the
considered opinion that the trial Court completely
misdirected itself in recording the erroneous finding that the
plaintiff was ever ready and willing to perform this part of
the contract, without noticing the aforesaid aspects borne
from the material on record and consequently the said
finding recorded by the trial Court on issue No.4 deserves to
be set aside by holding that the plaintiff was never ready
and willing to perform his part of the contract.
21. A perusal of the impugned judgment and decree
would indicate that the trial Court has come to the
conclusion that the defendant No.1 had not obtained the
11E sketch which was required for the purpose of execution
of the registered sale deed in favour of the plaintiff and the
trial Court infers that non-obtaining/production of the 11E
sketch indicates that the plaintiff was ready and willing to
perform his part of the contract. In this context, the trial
Court failed to consider and appreciate the well settled
position of law qua principles contained in Section 16(c) of
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the Specific Relief Act which contemplates that the burden
of proving readiness and willingness rested heavily upon the
plaintiff and irrespective of the defence, non-defence of the
defendant had no nexus or connection whatsoever with the
burden of proving continuous readiness and willingness to
perform his part of the contract as statutorily mandatory
under Section 16(c) of the Specific Relief Act and
consequently the said finding recorded by the trial Court
deserves to be set aside on this ground also.
22. In view of the aforesaid factual circumstances,
we are of the considered opinion that the trial Court clearly
fell in error in granting a decree for the suit performance in
favour of the plaintiff against the defendants by passing the
impugned judgment and decree, which deserves to be set
aside. At this juncture, it is relevant to state that in view of
our finding that the plaintiff had failed to establish his
readiness and willingness in performing his part of the
contract, there is no necessity to render/accord any findings
on issue Nos.5 and 6 urged by the defendants. Point No.(i)
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is accordingly answered in favour of the appellant-
defendant No.2 and against the respondent No.1-plaintiff.
Regarding point No.(ii):
23. While dealing with point No.(i), we have come to
the conclusion that the trial Court committed an error in
granting a decree for specific performance in favour of the
plaintiff against the defendants. As noticed herein before,
having granted a decree for specific performance, the trial
Court deemed it fit not to answer additional issue No.1
relating to refund of advance money. However, having set
aside the finding of the trial Court and the impugned
judgment and decree granting specific performance in
favour of the plaintiff, it would be necessary to adjudicate
the additional issue arising out of the alternative prayer for
refund of the advance amount together with interest as
sought for by the plaintiff.
24. However since, the trial Court did not record any
finding in this regard as can be seen from paragraph No.25
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of the impugned judgment and decree, though several
contentions have been urged by both sides in support of
their respective claims, without expressing any opinion on
the merits/demerits of the rival contentions, we deem it just
and appropriate to set aside the finding recorded by the trial
Court on additional issue No.1 and remit the matter back to
the trial Court to the limited extent of adjudicating the
alternative prayer for refund together with interest sought
for by the plaintiff and additional issue No.1 framed by the
trial Court in this regard by issuing necessary directions to
the trial Court. Point No.(ii) is accordingly anwered.
25. In the result the following:
ORDER
(i) The appeal is hereby partly allowed.
(ii) The impugned judgment and decree insofar as
it grants the decree for relief of specific
performance in favour of the respondent No.1-
plaintiff against the appellant-defendant No.2
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and respondent No.2-defendant No.1 is
hereby set aside. So also the finding recorded
by the trial Court on alternative prayer for
refund together with interest and the
consequent additional issue No.1 is hereby set
aside.
(iii) The suit of the plaintiff insofar as relief of
specific performance is hereby dismissed /
rejected.
(iv) The matter is remitted back to the trial Court
for the limited/restricted purpose of
adjudicating upon the alternative prayer for
refund together with interest and additional
issue No.1 for reconsideration afresh in this
regard.
(v) The appellant and respondents are directed to
appear before the trial Court on 27.10.2025,
without awaiting further notice from the trial
Court.
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(vi) All rival contentions between the plaintiff and
defendants, only in relation to the
question/issue of alternative prayer for refund
of advance amount sought for by the plaintiff
and additional issue No.1 are kept open and
no opinion is expressed on the
merits/demerits of the rival contentions.
(vii) The Registry is directed to refund the entire
Court fee paid on the memorandum of appeal
to the appellant.
(viii) Registry shall transmit the records of the trial
Court to the trial Court forthwith.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
HMB
CT-MCK
