[Cites 3, Cited by 0]
Karnataka High Court
Smt H S Sulochana vs Gaviyappa on 29 January, 2026
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 2195 of 2023
C/W RSA No. 345 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 2195 OF 2023 (SP)
C/W
REGULAR SECOND APPEAL NO. 345 OF 2024 (SP)
IN RSA NO.2195/2023:
BETWEEN:
SMT.BELLAMMA
W/O GAVIYAPPA @ BELLAPPA,
AGED ABOUT 42 YEARS,
BELAVADI VILLAGE,
HANGALAGA HOBLI,
GUNDLUPETE TALUK,
CHAMARAJANAGAR
DISTRICT - 571 440.
Digitally signed
by ANUSHA V ...APPELLANT
Location: High
Court of (BY SRI SHANTKUMAR NAGAYYA, ADVOCATE)
Karnataka
AND:
1. SRI GAVIYAPPA
S/O PINNAPPA
AGE: 64 YEARS
R/AT BELAVADI VILLAGE
HANGALA HOBLI,
GUNDLUPET TALUK,
CHAMARAJANAGAR
DISTRICT - 571 440.
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RSA No. 2195 of 2023
C/W RSA No. 345 of 2024
HC-KAR
2. SMT.HS SULOCHANA
W/O SHANKARAPPA
AGE MAJOR
3. S. RAJESHA
S/O SHANKARAPPA
AGE MAJOR
RESPONDENTS NO.2 & 3 ARE
R/AT SRI VIJANARAYANA
TEMPLE STREET,
GUNDLUPETE TALUK,
CHAMARAJANAGAR
DISTRICT - 571 440.
...RESPONDENTS
(BY SRI SOMASHEKAR KASHIMATH, ADVOCATE FOR R1;
SRI MR HIREMATHAD & SRI N. RAMAKRISHNA, ADVS. FOR
R2 & R3)
IN RSA NO.345/2024:
BETWEEN:
1. SMT. H S SULOCHANA
W/O LATE SHANKARAPPA
AGED ABOUT 64 YEARS
OCC: HOUSEWIFE
2. S RAJESH
S/O LATE SHANKARAPPA
AGED ABOUT 64 YEARS
OCC: EMPLOYEE
BOTH ARE RESIDENTS OF
SRI VIJAYANARAYANASWAMY
TEMPLE STREET,
GUNDLUPET TOWN
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RSA No. 2195 of 2023
C/W RSA No. 345 of 2024
HC-KAR
CHAMARAJANAGARA DISTRICT 571 111.
...APPELLANTS
(BY SRI SARVAMANGAL CHIKKANAGOUDAR, ADVOCATE FOR
SRI HIREMATHAD MAHESHIAH RUDRAYYA, ADVOCATE)
AND:
1 . GAVIYAPPA
S/O PINNAPPA
AGED ABOUT 66 YEARS
R/A BELAVADI VILLAGE
GUNDLUPET TOWN
CHAMARAJANAGARA
DISTRICT 570 018.
2 . BELLAMMA
W/O LATE GAVIYAPPA @ BELLAPPA
AGED ABOUT 50 YEARS
GUNDLUPET TOWN
CHAMARAJANAGARA
DISTRICT 570 018.
.... RESPONDENTS
(BY SRI SOMASHEKAR KASHIMATH, ADVOCATE FOR R1;
SRI SHANTKUMAR, ADVOCATE FOR R2)
THIS RSA NO.2195/2023 IS FILED U/S 100 CPC AGAINST
THE JUDGMENT AND DECREE DATED 26.09.2023 PASSED IN
RA NO.66/2010 ON THE FILE OF ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHAMARAJANAGARA, (SITTING AT
KOLLEGALA), DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 26.10.2010 PASSED IN OS
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RSA No. 2195 of 2023
C/W RSA No. 345 of 2024
HC-KAR
NO.100/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND CJM,
CHAMARAJANAGARA.
THIS RSA NO.345/2024 IS FILED U/S 100 CPC AGAINST
THE JUDGMENT AND DECREE DATED 26.09.2023 PASSED IN
RA NO.66/2010 ON THE FILE OF ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHAMARAJANAGARA, (SITTING AT
KOLLEGALA), DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 26.10.2010 PASSED IN OS
NO.100/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND CJM,
CHAMARAJANAGARA.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 23.01.2026, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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RSA No. 2195 of 2023
C/W RSA No. 345 of 2024
HC-KAR
CAV JUDGMENT
Challenging judgment and decree dated 26.09.2023
passed by Additional District and Sessions Judge,
Chamarajanagar, (Sitting at Kollegala), in R.A.no.66/2010 and
judgment and decree dated 26.10.2010 passed by Senior Civil
Judge and C.J.M., Chamarajanagar, in OS no.100/2007, RSA
no.2195/2023 is filed by defendant no.4; while RSA
no.345/2024 is by defendants no.2 and 3. For sake of
convenience, parties are referred to as per their ranks before
trial Court.
2. Sri Shantkumar N, learned counsel for appellant in
RSA no.2195/2023 and Smt.Sarvamangal Chikkanagoudar,
learned counsel appearing for Sri MR Hiremathad, advocate for
appellants in RSA no.345/2024 submitted, appeals arose out of
OS no.100/2007 filed by Gaviyappa (plaintiff) for specific
performance of Agreement of Sale ('AoS', for short) dated
23.06.2006 in respect of two lands bearing Sy.no.86/1
measuring 02 Acres 23 guntas and Sy.no.86/2 measuring 32
guntas of Belavadi village, Hangala Hobli, Gundlupet Taluk,
Chamarajanagar District ('Suit Properties', for short) and for
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directing defendants no.1 to 3 to execute registered sale deed
in favour of plaintiff and deliver possession of suit properties
and declare sale deed dated 07.07.2006 executed by defendant
no.1 in favour of defendant no.4 as null and void etc.
3. In plaint, it was stated that defendants no.1 to 3
were owners of suit properties and had executed AoS agreeing
to sell them for total sale consideration of Rs.3,95,000/- by
receiving Rs.25,000/- towards part sale consideration and
agreeing to receive balance at time of registration of sale deed.
It was stated, though plaintiff was always ready and willing to
pay balance have sale deed registered and expressed it to
defendants no.1 to 3 on several occasions, they kept
postponing on some pretext. Ultimately, plaintiff got issued
legal notice on 24.07.2006 calling upon them to come forward
to perform their part of contract. On service of said notice,
defendants no.2 and 3 got issued false reply claiming that
defendant no.1 had executed registered sale deed in favour of
defendant no.4 on 07.07.2006, behind their back. On receipt of
reply, plaintiff realized that defendants no.1 to 3 had colluded
with each other to defraud him. He also got issued legal notice
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to defendant no.4 on 21.08.2006. Despite service of notice,
there was no reply by defendant no.4. It was stated that
defendant no.4 being fully aware of AoS in favour of plaintiff
had purchased suit properties illegally. Collusion was evident
from fact that defendant no.4 was none other than sister of
defendant no.1 and was not a bonafide purchaser and
therefore, plaintiff was entitled for relief.
4. On service of summons, defendants entered
appearance and filed written statement. In written statement,
in addition to denying plaint averments, defendant no.1
admitted execution of AoS on receipt of Rs.25,000/- advance
amount, but claimed that time was essence of contract as
period of five months was stipulated in said agreement for
completion of transaction, since its execution was to mobilize
funds to meet urgent family necessities, such as to discharge
loans etc. It was stated that plaintiff refused to pay balance
amount even after repeated request by defendant no.1. It was
alleged that plaintiff was not ready and willing to perform his
part of agreement. Therefore, after forfeiting advance amount
received and since defendant no.1 was in need of money
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urgently, he sold suit properties to defendant no.4 on
07.07.2006 for Rs.1,00,000/-. It was also stated that
possession of suit properties was with BK Kalasappa under
registered Mortgage Deed executed for period of five years.
Therefore, plaintiff was not entitled for relief and prayed for
dismissal of suit.
5. Defendants no.2 and 3 filed separate written
statement opposing suit, even they admitted execution of AoS
on receipt of advance amount of Rs.25,000/-. They also stated
that time was essence of contract and period of five months
was stipulated in agreement for completion of sale transaction.
They denied receipt of legal notice got issued by plaintiff and
alleged lack of readiness and willingness on part of plaintiff and
sought dismissal of suit.
6. In his separate written statement, defendant no.4
opposed suit by claiming to be bonafide purchaser of suit
properties. It was stated, defendant no.1 - her brother had
informed about AoS and failure of plaintiff to come forward and
have sale deed executed within stipulated period of five
months. Only after ascertaining that plaintiff was not ready and
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willing as per AoS, defendant no.4 purchased suit properties. It
was stated, possession was delivered and since then she was in
possession and enjoyment of suit properties and despite having
knowledge of above facts, plaintiff had filed frivolous suit by
concocting a story and after issuing untenable legal notice.
7. Based on pleadings, trial Court framed following:
ISSUES:
1. Does the plaintiff prove that, he is ready and
willing to perform his part of contract?
2. Does the defendant No. 4 prove that she is the
bonafide purchase of suit property for valuation
consideration without notice?
3. Does the plaintiff proves that he is entitle for
the receipt of specific performance of contract?
4. What order?
8. In trial, plaintiff examined himself and two others
as PWs.1 to 3 and got marked Exhibits-P1 to P13. While
defendants no.1, 2 and 4 examined themselves and two others
as DWs.1 to 5 and got marked Exhibits-D1 to D2.
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9. On consideration, trial Court answered issue no.1
and 3 in affirmative; issue no.2 in negative and answering issue
no.4 in decreeing suit with costs.
10. Aggrieved, defendants no.1 and 4 preferred
R.A.no.66/2010 on various grounds, based on which first
appellate Court framed following:
POINTS:
1. Whether the trial Court judgment is not based
on facts and law?
2. Whether the appellant proves that the judgment
and decree passed by the learned trial judge is
illegal and perverse?
3. Whether the judgment and decree of the trial
Court requires for interference?
4. What order?
11. After answering points no.1 to 3 in negative, it
answered point no.4 by dismissing appeal.
12. Learned counsel for defendant no.4 submitted that
on 23.06.2006, defendants no.1 to 3 executed Ex.P1 - AoS in
favour of plaintiff agreeing to sell suit properties for total sale
consideration of Rs.3,95,000/- by receiving Rs.25,000/- as
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advance and agreeing to receive balance amount within five
months and execute registered sale deed. It was submitted,
time was essence of contract. And since, plaintiff did not come
forward to pay balance sale consideration and have sale deed
executed, on 07.07.2006, defendants no.1 to 3 sold suit
schedule lands to defendant no.4 executing Ex.P13 registered
sale deed for total sale consideration of Rs.1,50,000/-. It was
submitted, though plaintiff claimed to have got issued Ex.P2 -
legal notice on 24.07.2006, same was duly replied as per
Exs.P6 and 7 on 31.07.2006. It was submitted, even filing of
suit only on 01.09.2007 would indicate lack of readiness and
willingness. Despite same, first appellate Court dismissed
appeal.
13. It was submitted, advance amount paid by plaintiff
under AoS was only Rs.25,000/- out of total agreed sale
consideration of Rs.3,95,000/-. Reason mentioned in AoS for
sale was urgent need of funds to clear debts etc. corroborated
by production of Ex.D1 - mortgage deed. And though plaintiff
was also resident of same village, issuance of legal notice only
after purchase of suit properties by defendant no.4 and filing of
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suit more than a year later would clearly establish lack of
readiness and willingness on part of plaintiff. Without giving
specific finding on same, first appellate Court dismissed appeal.
Failure to consider above facts and circumstances led to
passing of impugned judgment and decree, calls for
interference.
14. It was contended that finding of Court about sale
deed in favour of defendant no.4 was not bonafide and without
any basis or material on record and thus perverse. Hence,
following substantial questions of law would arise for
consideration:
1. Whether both Courts erred in allowing suit
without plaintiff establishing readiness and
willingness?
2. Whether both Courts erred in holding that
defendant no.4 was not bonafide purchaser?
15. Learned counsel for defendants no.2 and 3xxxxx
while reiterating narration of facts similar to learned counsel for
defendant no.4, added that on 04.06.2003, husband of
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defendant no.2 had mortgaged suit properties in favour of one
BK Kalasappa for Rs.1,00,000/- for period of five years.
16. It was further submitted that on 26.03.2012, RA
no.66/2010 came to be allowed in part and judgment and
decree passed by trial Court was modified, directing refund of
earnest money of Rs.25,000/- with interest at 9% p.a. from
date of suit till realization. It was submitted, defendants
complied with same on 06.06.2012 by paying Rs.35,875/- i.e.
Rs.25,000/- towards refund of earnest money and Rs.10,875/-
towards 9% interest from 01.09.2007 till said date, which was
acknowledged by plaintiff as per Affidavit and Receipt dated
06.06.2012 executed by plaintiff. It was submitted, suppressing
same, plaintiff filed RSA no.1311/2012 before this Court and
that came was allowed by judgment dated 31.03.2023,
remanding matter back to first appellate Court.
17. It was submitted, after remand, first appellate
Court hurriedly passed impugned judgment dismissing appeal
and confirming trial Court judgment. Producing copies of
receipt and affidavit dated 6.06.2012, learned counsel sought
for allowing appeal on ground of suppression of material fact.
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In light of above, following substantial questions of law would
arise for consideration:
1. Whether both Courts erred in decreeing suit for
specific performance, without plaintiff
establishing readiness and willingness?
2. In view of compliance with judgment and
decree passed by first appellate Court on earlier
occasion and repaying earnest money with
interest to plaintiff, whether AoS stood
rescinded as per Section 62 of Indian Contract
Act, 1872?
3. Whether both Courts erred in exercising
discretion vested in them contrary to Section 20
of Specific Relief Act?
18. On other hand, learned counsel for plaintiff opposed
Appeals. It was submitted, there was no dispute about
execution of AoS, on receipt of part sale consideration. There
was also no dispute about stipulation of period of five months
for plaintiff to pay balance sale consideration and have sale
deed executed by defendants no.1 to 3. It was submitted, AoS
was executed on 23.06.2006. But in less than a month
thereafter defendant no.1 sold suit properties to defendant
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no.4, who was none other than his sister and resident of same
village. It was submitted, even defendant no.4 in written
statement admitted knowledge of AoS. Though failure to
perform obligation under AoS was alleged, no notice calling
upon plaintiff to perform his obligation under AoS or
termination of AoS was given. Thus, first appellate Court was
justified in holding defendant no.4 as not bonafide purchaser
and setting aside of sale.
19. It was submitted, even alleged compliance with
judgment and decree of first appellate Court on earlier occasion
modifying decree and directing refund of earnest money with
interest, was contrary to record and without any basis. It was
submitted, such contention was not urged before this Court in
RSA no.1311/2012 till its disposal or before first appellate
Court on remand. Therefore, said claim was liable to be
rejected. Fact that no attempt was made even in these appeals
would establish same was without basis. It was therefore
submitted, no substantial questions of law would arise for
consideration.
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20. Heard learned counsel, perused impugned
judgment and decree of both Courts.
21. These appeals are by defendants no.2 to 4 against
concurrent findings in suit for specific performance. From above
submissions, following admitted facts would emerge. Firstly
about defendants no.1 to 3 being owners of suit properties and
execution of AoS in favour of plaintiff by receiving advance sale
consideration of Rs.25,000/- out of total sale consideration of
Rs.3,95,000/-. There is also no dispute about stipulation of
period of five months for payment of balance sale consideration
and execution of sale deed. Likewise there is also no dispute
about defendant no.1 selling suit properties to defendant no.4
his sister on 07.07.2006 for sale consideration of Rs.1,00,000/,
which would be less than one month from date of AoS dated
23.06.2006. And about trial Court decreeing suit and first
appellate Court confirming same.
22. While defendants contend that plaintiff's suit was
decreed even though there was no material to establish
readiness and willingness on part of plaintiff as well as on
ground that plaintiff's claim for specific performance would not
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subsist in view of plaintiff acknowledging refund of entire
earnest money with interest in compliance of decree passed by
first appellate Court on earlier occasion, plaintiff denies and
disputes receipt of refund and contends sale of suit properties
by defendant no.1 to defendant no.4 before expiry of period
fixed for performance of obligations under AoS by itself would
establish breach of terms of AoS and failure to execute sale
deed even after receipt of legal notice about plaintiff being
ready and willing to perform his part of contract would establish
that no substantial questions of law would arise for
consideration and seeks for dismissal.
23. Thus two contentions require examination, firstly,
whether finding of both Courts about readiness and willingness
on part of plaintiff is without any basis and whether plaintiff is
disentitled for specific relief on account of receipt of refund of
earnest money paid with interest.
24. It is not in dispute about execution of AoS on
23.06.2006 by defendants no.1 to 3 by receiving Rs.25,000/-
as advance amount out of total sale consideration of
Rs.3,95,000/- with stipulation that plaintiff was to have sale
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deed executed within five months by paying balance amount of
Rs.3,70,000/-. Admittedly, about 15 days thereafter defendant
no.1 sold suit properties to defendant no.4, who is none other
than sister of defendant no.4, that too for sale consideration of
Rs.1,00,000/-, which is nearly 1/4th agreed sale consideration
under AoS and with defendant no.4 having knowledge of AoS in
favour of plaintiff. It is also not in dispute that on sale in favour
of defendant no.4 coming to knowledge of plaintiff, he got
issued Ex.P2 - notice to defendants no.1 to 3 and Ex.P8 - notice
to defendant no.4.
25. While passing impugned judgment and decree, both
Courts have observed that defendants failed to test readiness
and willingness on part of plaintiff either awaiting expiry of
duration or by issuing notice to perform his part of agreement.
On said reasoning, issue about plaintiff being ready to perform
his part of contract was answered in favour of plaintiff. It is
seen findings of both Courts are based on appreciation of
material on record. Same cannot be stated to be without any
basis or contrary to material on record.
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26. As noted above, fact that defendants no.2 and 3 are
none other than wife of son of defendant no.1 and defendant
no.4 - sister of defendant no.1 and sale in favour of defendant
no.4 being for a much smaller sale consideration that AoS
would indicate alienation of suit properties under Ex.P13 - sale
deed in favour of defendant no.4, even when defendant no.4
was aware of AoS in favour of plaintiff, without issuing notice to
plaintiff or after cancellation of AoS, would leave no doubt that
same was not bonafide.
27. Insofar as contention based on alleged Receipt and
Affidavit dated 06.06.2012, about repayment of earnest money
with interest as per decision of first appellate Court on earlier
occasion, disentitling plaintiff to relief, it is seen that same is
sought to be substantiated by production of mere photocopies
of affidavit and receipt that too along with synopsis at time of
argument without any effort either for urging said contention
before first appellate Court after remand by this Court, leading
evidence on same or by filing application for additional evidence
before this Court. In absence of same, there would be no other
go than to draw adverse inference and reject said contention.
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28. Thus, findings of both Courts would be in
accordance with law and no substantial question of law much
less ones proposed for consideration would arise for
consideration.
29. Consequently, both appeals are dismissed.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
List No.: 1 Sl No.: 60
