Dismissed

Shivanna Dead by Lrs v. Sri Puttaswamy S/O Beeregowda

Karnataka HC9 Jan 2020RSA/1019/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal filed by legal representatives of plaintiffs challenging the dismissal of a suit for specific performance. The court upheld the finding that the agreement of sale was not proved and facts were unlikely given existing disputes and mortgage possession, declining to interfere with concurrent factual findings.

What did the court decide?

The Regular Second Appeal was dismissed with no order as to costs.

Shivanna Dead by Lrs Vs Sri Puttaswamy S/O Beeregowda — Specific Performance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JANUARY 2020

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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REGULAR SECOND APPEAL NO.1019 OF 2012 (SP)

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BETWEEN

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SHIVANNA DEAD BY LRs.,

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SMT. JAYAMMA AGED ABOUT 55 YEARS, W/O LATE SHIVANNA

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SRI. KUMARA, AGED ABOUT 41 YEARS, S/O LATE SHIVANNA

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SRI. RAMESH, AGED ABOUT 39 YEARS, S/O LATE SHIVANNA

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NINGEGOWDA SINCE DEAD BY LRs.

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SMT. JAVARAMMA, AGED ABOUT 84 YEARS, W/O LATE NINGEGOWDA

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SRI. LAKSHMANNA AGED ABOUT 64 YEARS, S/O LATE NINGEGOWDA

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6. SRI. JAVAREGOWDA, AGED ABOUT 59 YEARS, S/O LATE NINGEGOWDA

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ALL ARE RESIDENTS OF MENAGANAHALLY VILLAGE, HALLYMYSORE HOBLI, HOLENARASIPUR TALUK-577 101.

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…APPELLANTS

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(BY SRI. M. VIJAY KRISHNA BHAT, ADVOCATE) AND SRI. PUTTASWAMY, AGED ABOUT 47 YEARS, S/O BEEREGOWDA, RESIDENT OF MENAGANAHALLY VILLAGE, HALLYMYSORE HOBLI, HOLENARASIPUR TALUK-577 101. NOW RESIDING IN THE HOUSE OF S.G.SOMEGOWDA, ADVOCATE, HOLENARASIPUR AS WATCHMAN.

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…RESPONDENT

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(SRI. PUTTASWAMY - RESPONDENT SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 07.09.2011 PASSED IN REGULAR APPEAL No.18/1997 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., HOLENARASIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.02.1997 PASSED IN O.S. No.153/1994 ON THE FILE OF MUNSIFF, HOLENARASIPURA. TRIAL COURT DISMISSED THE SUIT. APPELLATE COURT

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DISMISSED THE APPEAL SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.

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THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This Regular Second Appeal is filed by the unsuccessful plaintiffs challenging the Judgment and Decree dated 22.02.1997 passed by the Court of Munsiff at Holenarasipura in O.S.No.153/1994, which was confirmed by the Senior Civil Judge, Holenarasipura, in R.A. No.18/1997 in terms of the judgment and decree dated 07.09.2011.

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2. The plaintiffs filed Original Suit No.153/1994

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for specific performance of an agreement of sale dated 09.07.1994 purportedly executed by the sole defendant in the suit. It is stated that 01 Acre 11 guntas in Sy. No.119/4B of Menaganahalli, Hallimysore hobli, Holenarasipura Taluk, was agreed to be sold by the defendant in favour of the plaintiffs for a total sale

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consideration of Rs.8,000/- and that the plaintiffs had paid the entire sale consideration consequent to which the defendant had placed the plaintiffs in possession of the suit schedule property. It is stated that on the failure of the defendant to execute the sale deed despite several requests, the plaintiff was constrained to file a suit for specific performance.

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The defendant entered appearance and claimed that the agreement of sale was fabricated and his signature was forged on the alleged agreement. He also contended that the said property was the subject matter of a mortgage dated 28.10.1988 and therefore possession of the suit property could not been handed over to plaintiffs as alleged. It is also contended that there was an ongoing dispute between the plaintiffs and the defendant in O.S. No.16/1992 and thus, it was improbable that the defendant could have executed an agreement of sale in favour of the plaintiff.

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The Trial Court based on the aforesaid rival contentions, framed the following issues:

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“1. Whether the plaintiffs prove

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that the defendant has executed an agreement to sell the suit schedule property for Rs.8,000/and paid Rs.8,000/- on 9.7.94 ?

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2. Whether the plaintiffs prove that they were put in possession of the suit schedule property in pursuance of the agreement ?

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plaintiffs entitled ?

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4. What decree or order ?”

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Before the Trial Court, the plaintiff No.1 was

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examined as PW.1 and three other witnesses were examined as PWs.2, 3 and 4 and they marked Exs.P1 and P2 while the defendant was examined as DW.1 and he got

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marked Ex.D1, which is the certified copy of the order sheet in O.S. No.16/1992.

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The Trial Court after considering the pleadings and the evidence on record, in terms of its judgment and decree dated 22.02.1997, dismissed the Suit. Feeling aggrieved, the legal representatives of the plaintiffs filed appeal in R.A. No.18/1997 before the lower appellate Court. The lower appellate court framed the points for consideration and considered the evidence on record and held that execution of the agreement was not proved by the plaintiffs. It is against this concurrent findings of fact that the legal representatives of the plaintiffs have filed this Regular Second Appeal.

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Heard the learned counsel for the appellants. Perused the Lower Court Records and the Judgments of the Courts below.

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The execution or otherwise of the alleged agreement of sale dated 09.07.1994 is considered by the

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Courts below and they have consistently held that the defendant had not executed the agreement. This being a question of fact, in the absence of any other material to show that the defendant had executed the said agreement and in the light of the contention that there was an on going dispute between the plaintiffs and the defendant in O.S. No.16/1992 and coupled with the fact that the possession of the suit property was handed over to the mortgagee in terms of a mortgage dated 28.10.1998, it is improbable that the defendant could have executed the agreement of sale in respect of the suit property in favour of the plaintiffs. Yet another circumstance is the fact that the total extent of the land in Sy. No.119/4B is 28 guntas but the agreement in question indicates that 01 Acre 11 guntas in the very same survey number was sought to be sold. Thus execution of agreement of sale (Ex.P.1) being a question of fact, I do not find it necessary to interfere with the reasonings of the Trial Court and the lower appellate

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Court. Consequently, this Regular Second Appeal is liable to be dismissed. Hence, the following :

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ORDER

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The Regular Second Appeal is dismissed. No order

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as to costs.

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Sd/JUDGE

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sma

Shivanna Dead by Lrs v. Sri Puttaswamy S/O Beeregowda

Case brief

What is this about?

What did the court decide?

Shivanna Dead by Lrs v. Sri Puttaswamy S/O Beeregowda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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