Dismissed

Sri Sreerama v. Sri R Narayanappa

Karnataka HC15 Nov 2023RFA/928/2021

Case brief

AI extract

What is this about?

The High Court affirmed the trial court's dismissal of a suit for specific performance, holding that the sale agreement was executed by a GPA holder in his personal capacity, not on behalf of the owner, creating no privity of contract and that the plaintiff failed to prove readiness and willingness.

What did the court decide?

Appeal dismissed; trial court's judgment and decree confirmed.

Sri Sreerama Vs Sri R Narayanappa — Specific Performance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 928 OF 2021 (SP)

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BETWEEN:

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SRI SREERAMA S/O LATE CHINNAIAH R/AT SREERAMAPURA VILLAGE JAKKUR POST, YELHANKA HOBLI BANGALORE 560 064.

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…APPELLANT

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(BY SRI. KUMAR K., ADVOCATE) AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SRI. R. NARAYANAPPA AGED ABOUT 63 YEARS S/O RAMAIAH REPRESENTED BY HIS GPA JAYARAM AGED ABOUT 64 YEARS S/O MUNIVENKATAPPA RESIDING AT SREERAMPURA VILLAGE JAKKUR POST, YELAHANKA HOBLI BENGALURU NORTH TALUK – 560 064.

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SMT RENUKA AGED ABOUT 53 YEARS W/O JAYARAM R/AT NO.20, 1^ST CROSS GIRIPYAPPA LAYOUT SREERAMPURA VILLAGE JAKKUR POST, YELAHANKA HOBLI BANGALORE 560 064.

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…RESPONDENTS

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(BY SRI.C. SHANKAR REDDY, ADVOCATE FOR R-1; SRI. A. RAJESH, ADVOCATE FOR R-2)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.04.2021 PASSED IN OS.NO.3315/2008 ON THE FILE OF THE XXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH.31), DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE AND DECLARATION.

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

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.3315/2008 is directed against the impugned judgment and decree dated 03.04.2021 passed by the XXX Addl.City Civil and Sessions Judge, Bangalore, whereby the said suit filed by the appellant – plaintiff against the respondents – defendants for specific performance of the sale agreement dated 31.07.2004 said to be executed by the 1^st defendant in favour of the plaintiff in relation to the suit schedule immovable property and for declaration that the sale deed dated 19.03.2005 executed in favour of 2^nd defendant was not binding upon the appellant – plaintiff was dismissed by the trial court.

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Heard learned counsel for the parties and perused the material on record.

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For the purpose of convenience, the parties are referred to by their respective ranks before the trial court.

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A perusal of the material on record will indicate that the plaintiff instituted the aforesaid suit inter alia contending that the 1^st defendant – R. Narayanappa represented by his GPA Holder Sri.Jayaram had executed a sale agreement dated 31.07.2004 in favour of the plaintiff agreeing to sell the suit schedule property in favour of the plaintiff for a total sale consideration of Rs.2,45,000/and had received an advance amount of Rs.2,00,000/- from the plaintiff and had agreed to complete the sale transaction within 11 months. It was contended that despite the plaintiff repeatedly approaching the 1^st defendant to execute a sale deed in his favour including issuance of a legal Notice dated 22.06.2005, the 1^st defendant instead of complying with the demand made by the plaintiff had already sold the suit schedule property in favour of the 2^nd defendant wife of the GPA Holder Jayaram vide registered sale deed dated 19.03.2005 and as such, the plaintiff instituted the suit seeking the aforesaid reliefs.

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The GPA holder of the 1^st defendant who was arrayed as a sole defendant initially filed his written statement and contested the suit by disputing and denying the claims and contentions of the plaintiff and also contended that prior to institution of the suit itself,

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the said GPA Holder – Jayaram had executed a registered sale deed on 19.03.2005 itself in favour of his wife Smt.Renuka. In view of the said contention urged by the GPA Holder of the 1^st defendant, the said Renuka was impleaded as additional 2^nd defendant to the suit and she also filed her written statement and contested the suit not only refuting the claim of the plaintiff but also contended that she was a bonafide purchaser of the suit schedule property and sought for dismissal of the suit.

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Pursuant to the pleadings of the parties, the trial court

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framed the following issues and additional issues:-

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“ 1. Whether the plaintiff proves that the defendant had executed a registered General Power of Attorney in favour of one Sri. Jayaram, S/o. Munivenkatappa and the said Jayaram on behalf of the defendant executed an agreement of Sale in his favour on 31.07.2004 for valuable consideration of Rs.2,45,000/-?

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2. Whether the plaintiff further proves that he has paid Rs. 2,00,000/- as advance sale consideration amount to defendant?

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3. Whether the plaintiff proves that he was ever ready and willing to perform his part of contract, but defendant failed to perform his part of contract?

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4. Whether the defendant proves that he has not executed any agreement of sale in favour of the plaintiff?

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5. Whether the defendant proves that he is not the owner of the suit schedule property, it is owned by his wife Renuka?

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6. There is no cause of action for the suit? To be read as under:-

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Whether there is no cause of action for this suit?

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7. Whether the suit is properly valued and the Court Fees paid is sufficient?

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8. Whether the plaintiff is entitled to the reliefs sought for?

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9. What order or decree?

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ADDITIONAL ISSUES

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1. Whether the plaintiff further proves that he Sale deed dated: 19.03.2005 executed in favour of 2^nd defendant by the 1^st defendant through his General Power of Attorney holder is not binding on him?

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2. Whether the defendant No.2 proves that she is a bonafide purchaser for valuable consideration without notice?

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3. Whether the suit is bad for mis-joinder of parties?

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4. Whether the suit is barred by limitation?”

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The plaintiff examined himself as PW-1 and two attesting

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witnesses to the sale agreement as PW-2 and PW-3 and documentary evidence at Exs.P1 to P18, while the aforesaid

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Jayaram – GPA Holder of 1^st defendant was examined as DW-1 and Exs.D1 to D23 were marked on his behalf.

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After hearing the parties, the trial court proceeded to dismiss the suit by passing the impugned judgment and decree, which is assailed in the present appeal.

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The following points arise for consideration in the present appeal:-

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(i) Whether the trial court committed an error in dismissing the suit filed by the plaintiff?

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(ii) Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeal?

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Since the both the points are interlinked, they are taken up together for consideration.

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A perusal of the impugned judgment and decree will indicate that issue Nos. 1, 2 and 4 framed by the trial court related to execution and validity of the sale agreement dated 31.07.2004 executed by Jayaram, GPA Holder of 1^st defendant – Narayanappa and payment of advance of Rs.2 lakhs by the plaintiff to 1^st

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defendant. While dealing with the said issues, the trial court held as under:-

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“13. ISSUES NO.1, 2 & 4:- Since these issues are interconnected with each other, to avoid repetition of averments and appreciation of evidence, these issues are taken up together for discussion.

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14. It is an admitted fact that originally the suit schedule property was owned by the 1^st defendant R.Narayanappa which is a revenue site said to have been formed by him in a land bearing Sy.No. 48/1 in an extent of 9 guntas of land situated at Srirampura Village, Yelahanka Hobli, Bengaluru North Taluk measuring east to west 35 ft. and north to south 40 ft. It is also not in dispute that he had executed a registered GPA dtd.11-08-1997 in favour of Jayaram S/o Munivenkatappa who is contesting this case as his GPA holder. Original GPA has been produced and marked by the GPA holder of the defendant No.1 as per Ex.D. 3 and certified copies of the said GPA have also been produced and marked as Ex.P. 2 and P.2(a).

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Though the site number has not been mentioned in the said GPA, it is an admitted fact that defendant No.1 R.Narayanappa had executed Ex.D. 3 only in respect of one site which according to the plaintiff is Site No.1 and according to defendants No. 1 and 2 is Site No.6. However, the boundaries described in Ex.D. 3 GPA, Ex.D. 5 Sale Deed executed by defendant No.1 in favour of defendant

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No.2 through his GPA holder and the boundaries described in the plaint schedule makes it clear that both the properties are one and the same.

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15. According to the plaintiff, the GPA holder of the defendant No.1 Jayaram by representing himself to be the GPA Holder of the 1^st defendant had executed an agreement of sale dtd.31-07-2004 in his favour in respect of the suit schedule property agreeing to sell the same for a total sale consideration of Rs. 2,45,000/- and has received an advance sale consideration of Rs. 2,00,000/- by way of cheque bearing No.525491 dtd.31-07-2004 drawn on Vijaya Bank, Byatarayanapura, Bengaluru which was issued in the name of GPA holder of the defendant No.1 named Jayaram and further agreed to execute Sale Deed in his favour within 11 months by receiving balance sale consideration of Rs. 45,000/-. To prove the said fact, the plaintiff has examined himself as P.W. 1 and reiterated the plaint averments and got marked 18 documents as Ex.P. 1 to P.18, out of which he mainly relied on Ex.P. 1 sale agreement dtd.31-07- 2004, Ex.P. 2 and P.2(a) the certified copies of GPA dtd.11-08-1997, some revenue documents pertaining to suit schedule property marked as Ex.P. 7 to P.13 and P.15 the bank pass book and also examined two attesting witnesses of the said sale agreement dtd.31-07-2004 as P.Ws. 2 and 3 who have also stated that the GPA holder of the defendant No.1 named Jayaram approached them with a proposal to sell the suit

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schedule property and to find out any prospective purchasers and they in turn approached the plaintiff and conveyed the said proposal which was accepted by him and on negotiations, a sale agreement came to be executed on 31-07-2004 by the GPA holder of defendant No.1 named Jayaram in favour of plaintiff, wherein he agreed to execute the Sale Deed in respect of the suit schedule property for a sale consideration of Rs. 2,45,000/- within 11 months from the said date and received a sum of Rs. 2 lakhs by way of cheque bearing No.525491 dtd. 31-07-2004 and further agreed to receive a balance sale consideration amount at the time of execution of registered sale deed and they have also affixed their signatures to Ex.P. 1 sale agreement and they have identified their respective signatures.

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They have further stated that in the agreement, it has been mentioned that advance sale consideration of Rs. 2,00,000/- is paid by way of cash, but at the time of executing the sale agreement, the GPA holder of the defendant No.1 refused to receive the cash and demanded for payment through cheque and as such, the plaintiff paid the cheque for a sum of Rs. 2 lakhs instead of cash and since the document was already prepared, taking into consideration that both plaintiff and GPA holder of the defendant No.1 are the residents of same village and are related to each other, the contents of Ex.P. 1 sale agreement was not rectified to that effect.

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16. Per contra, GPA holder of the defendant No.1 has denied the execution of the said sale agreement marked as Ex.P. 1 and also the receipt of advance sale consideration as stated by the plaintiff and P.Ws. 2 and 3 and he further stated that at no point of time, he had offered the plaintiff to sell the suit schedule property nor the plaintiff had agreed to purchase the same and he has not executed any sale agreement in favour of plaintiff on 31-07-2004 nor has he received the said advance sale consideration and the said payment of Rs. 2,00,000/- made through account payee cheque was not towards the suit transaction, but the same was relating to some other transaction and the plaintiff by taking advantage of the close relationship with him might have misused the said payment received by him to suit his convenience. To prove the defence set up by him, he has examined himself as D.W. 1 and reiterated the said averments and got marked the documents as Ex.D. 1 to D.23 and closed his side evidence.

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17. A perusal of the recitals found in Ex.P. 1 sale agreement discloses that the same was executed by GPA holder of the defendant No.1 named Jayaram in favour of the plaintiff not as an agent of the defendant No.1 herein, but in his individual capacity by representing himself to be the absolute owner of the suit schedule property. No where in the said Ex.P. 1, he has stated that the defendant No.1 R.Narayanappa is the absolute owner of the suit schedule property and he has executed

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Ex.D. 3 GPA in his favour authorizing him to sell the suit schedule property to anybody and based on the said GPA marked as Ex.P. 3 {Ex.P. 2 and P.2(a)}, he has executed the said sale agreement as the power of attorney holder of defendant No.1. Hence, at any stretch of imagination, it cannot be held that Ex.P. 1 sale agreement was executed by the GPA holder of the defendant No.1 named Jayaram for and on behalf of defendant No.1 in favour of plaintiff on 31- 07-2004 agreeing to sell the same for valuable consideration of Rs. 2,45,000/- in spite of proving the payment of the said advance sale consideration amount of Rs. 2,00,000/- and also the execution of Ex.P. 1.

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18. No doubt, the GPA holder of the defendant No.1 named Jayaram who has examined himself as D.W. 1, has clearly admitted that he had executed Ex.P. 1 sale agreement by admitting his signature found on Ex.P. 1 as his signature and also the receipt of a sum of Rs. 2,00,000/- by way of cheque which has been realized by him as found in Ex.P. 15 bank pass book of plaintiff on 03-08-2004 itself, which clearly establishes that Ex.P. 1 sale agreement was executed by the GPA holder of the defendant No.1 named Jayaram in favour of plaintiff agreeing to sell the suit schedule property for a sale consideration of Rs. 2,45,000/- and had received an advance sale consideration of Rs. 2,00,000/- agreeing to receive the balance balance sale consideration amount of Rs. 45,000/- at the time of execution of

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Sale Deed, but as per the recitals found in Ex.P. 1, the same was executed by representing himself to be the absolute owner of the suit schedule property and not as a GPA holder of defendant No.1 for and on behalf of the defendant No.1.

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19. Even P.Ws.1, 2 and 3 have also clearly admitted that GPA holder of defendant No.1 representing himself as owner of suit schedule property had executed Ex.P. 1 by receiving the said cheque towards the advance sale consideration and not as an agent of the defendant No.1 herein and that there are no recitals to the effect that Ex.P. 1 was executed as GPA holder of defendant No.1. Therefore, this Court is of the opinion that even though the plaintiff has proved the due execution of Ex.P. 1 sale agreement dtd.31-07-2004 by the GPA holder of the defendant No.1 named Jayaram and also the receipt of advance sale consideration of Rs. 2 lakhs through cheque, he has thoroughly failed to prove that the said sale agreement Ex.P. 1 was executed by the GPA holder of the defendant No.1 named Jayaram on behalf of the defendant No.1.

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20. Similarly, this Court is of the further opinion that the GPA holder of the defendant No.1 has also failed to prove that he has not executed any agreement of sale in favour of plaintiff as contended by him as he has clearly admitted that he had executed Ex.P. 1 sale agreement and the signature found in Ex.P. 1 is his signature. Admittedly, the defendant No.1 R.Narayanappa has not executed

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Ex.P. 1 sale agreement nor it is the case of the plaintiff that the GPA holder of the defendant No.1 after executing Ex.P. 1 sale agreement and receiving advance sale consideration of Rs. 2,00,000/-, has transferred the said amount of Rs. 2,00,000/- to the defendant No.1 and the defendant No.1 has ratified the said act of his GPA holder. Even otherwise, the defendant No.1 who is not a party to Ex.P. 1 cannot be held bound by the Ex.P. 1 for want of privy of contract. As such, this Court is of the opinion that the plaintiff has thoroughly failed to prove issues No.1 and 2 and similarly the GPA holder of the defendant No.1 has also failed to prove issue No.4. Hence, I answer issues No.1, 2 and 4 in the negative.

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As can be seen from the aforesaid findings, the trial court has come to the conclusion that the sale agreement does not state that the GPA Holder Jayaram was executing the same as GPA Holder of 1^st defendant – Narayanappa and instead, the said Jayaram portrayed himself to be the owner of the suit schedule property. The trial court also noticed that there was no reference to the GPA in the sale agreement at Ex.P1 dated 31.07.2004 executed in favour of the plaintiff and as such, the plaintiff had failed to prove the due execution of the sale agreement by Jayaram on behalf of the 1^st defendant. It was also held by the trial court

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that the advance sale consideration of Rs.2 lakhs vide cheque No.525491 dated 31.07.2004 drawn on Vijaya Bank, Byatarayanapura Branch, Bengaluru, had been issued by the plaintiff in favour of the aforesaid GPA holder Jayaram and not in favour of the vendor / owner Narayanappa – 1^st defendant herein and since he had neither executed the sale agreement nor received sale consideration from the plaintiff, there was no privity of contract between the plaintiff and 1^st defendant – Narayanappa who was not bound by the sale agreement executed by Jayaram, his GPA Holder in favour of the plaintiff. Under these circumstances, the trial court answered issue Nos. 1, 2 and 4 against the plaintiff and rejected his claim. I do not find any illegality or infirmity in the said finding recorded by the trial court warranting interference in the present appeal and the same is accordingly confirmed.

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While dealing with issue No.3 relating to readiness and willingness on the part of the plaintiff to perform his part of the contract and pay the balance sale consideration of Rs.45,000/- and obtain a sale deed from 1^st defendant, the trial court held as under:-

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21. ISSUE No.3:- Though the plaintiff has contended that he was always ready and willing to perform his part of contract by keeping balance sale

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consideration amount of Rs. 45,000/- ready with him and the GPA holder of the defendant No.1 has not come forward to perform his part of contract and has led evidence to that effect, since the plaintiff has thoroughly failed to prove the due execution of the sale agreement by the GPA holder of the defendant No.1 on behalf of the defendant No.1 and payment of advance sale consideration to defendant No.1 as contended by him, and since this Court has already answered issues No.1 and 2 in the negative, question of considering the readiness and willingness of plaintiff to perform his part of contract does not arise at all. Even if it is presumed that plaintiff had proved the due execution of sale agreement by the GPA holder of the defendant No.1 for and on behalf of the defendant No.1 as contended by the plaintiff and also the receipt of the said advance sale consideration of Rs. 2,00,000/- for an on behalf of defendant No.1, then also a perusal of the evidence placed on record discloses that plaintiff was not ready and willing to perform his part of obligation of contract and had kept balance sale consideration ready with him at any point of time and he himself had delayed the performance of his part of obligation under the contract as could be seen from the very conduct of the plaintiff who has approached this Court at the fag end of lapse of 3 years limitation from the date of expiry of 11 months after the execution of Ex.P.1.

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22. Admittedly, on 22-06-2005 itself he had issued a legal notice as per Ex.P. 3 to the GPA

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holder of the defendant No.1 and the GPA holder of the defendant No.1 had also caused reply dtd.11- 072005 marked as Ex.P. 4, wherein he has denied the very execution of Ex.P. 1 sale agreement and also made allegations against the plaintiff of creating some false documents, which clearly shows that the GPA holder of the defendant No.1 had refused to execute the Sale Deed in favour of plaintiff way back in the year 2005 itself i.e. on 11- 7-2005 itself. If at all the plaintiff was diligent and was ready and willing to perform his part of contract, he ought to have filed this suit within one or two months from the date of receipt of said reply notice. But, admittedly he has filed this suit on 26- 05-2008 almost nearing to 3 years from the date of receipt of the said reply notice which clearly demonstrates that plaintiff was neither diligent nor ready and willing to perform his part of contract. As such, there is no hesitation for this Court to answer issue No.3 in the negative. Accordingly, I answer issue No.3 in the negative.

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As can be seen from the aforesaid findings, the trial court came to the conclusion that the plaintiff was not ready and willing to perform his part of the contract. In this context, the trial court took note of the fact that as per the sale agreement dated 31.07.2004, the time fixed for performance of the contract was 11 months from that day which expired on 30.06.2008 and the suit

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filed on 26.05.2008 at the fag end prior to expiry of the period of limitation prescribed under Article 54 of the Limitation Act demonstrated that the plaintiff was not ready and willing to perform his part of the contract. So also, the trial court noticed that the plaintiff had not adduced any evidence to show either his capacity to pay the balance sale consideration or that the same was available with him. Further, the trial court held that on 22.06.2005 itself, the plaintiff had issued a legal notice at Ex.P3 to Jayaram – GPA Holder of 1^st defendant who had issued a reply at Ex.P4 on 11.07.2005 itself repudiating and denying the claim of the plaintiff despite which, the plaintiff had kept quiet for almost 3 years up to 26.05.2008 when he instituted the suit. Under these circumstances, having regard to the conduct of the plaintiff who was not diligent in putting forth his claim and filing the suit, the trial court came to the correct conclusion that the plaintiff was not ready and willing to perform his part of the contract and accordingly, answered issue No.3 against him. I do not find any illegality or infirmity in the said finding recorded by the trial court warranting interference in the present appeal and the same is accordingly confirmed.

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The trial court had framed issue No.5 and additional issue No.1 which dealt with the sale of the suit schedule property in favour of 2^nd defendant on 19.03.2005. The said issues were answered by the trial court against the plaintiff by holding as under:-

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23. ISSUE NO.5 & ADDL.ISSUE NO.1:-

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The GPA holder of the defendant No.1 has also contended that he is not the owner of the suit schedule property and it was owned by the defendant No.1 who had executed Ex.D. 3, GPA in his favour pursuant to the execution of another GPA by the father of defendant No.1 named Ramaiah in favour of his other Smt.Papamma dtd.26-04-1990 as per Ex.D. 1 and also the affidavit dtd.26-04-1990 sworn to by the said Ramaiah stating that he had entered into an agreement of sale with the said Papamma by receiving the total sale consideration of Rs. 8,000/in respect of the site formed in land bearing Sy.No. 48/1 and since the said site was utilized by the said Ramaiah for the purpose of formation of a Road, he had agreed to execute another sale agreement in respect of the suit schedule property along with the power of attorney and since he died before executing the said documents, the defendant No.1 being his successor, executed Ex.D. 3 GPA dtd.11-08-1997 and Ex.D. 4 Sale

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Agreement dtd.11-08-1997 in favour of himself by receiving additional sale consideration from him and he in turn executed the Sale Deed in favour of his wife the 2^nd defendant herein as per Ex.D. 5 (Ex.P.14) Sale Deed dtd.19-03-2005 and put her in possession of the suit schedule property based on Ex.D. 3 GPA and ever since the said date, she is in possession and enjoyment of the same by recording the katha in her name as per Ex.D. 7 and D.8 Property Register extract and paying tax as per Ex.D. 9 to D.12 SAS Forms and various tax paid receipts marked as Ex.D. 13 to D.17 and D.19. He has also got marked the encumbrance certificate as per Ex.D. 18. All these documents clearly show that as on the date of filing this suit, neither the defendant No.1 nor his GPA holder Jayaram were the owners of the suit schedule property and the same vested with defendant No.2. Though plaintiff has contended that the said Sale Deed dtd.19-03- 2005 executed by defendant No.1 through his GPA holder in favour of defendant No.2 during the existence of Ex.P. 1 is not binding on him and though the said Sale Deed was executed in favour of defendant No.2 by the GPA holder of the defendant No.1 during the existence of Ex.P. 1 Sale Agreement dtd.31-07-2004, since the plaintiff has failed to prove that Ex.P. 1 sale agreement was executed by the GPA holder of the defendant No.1 on behalf of defendant No.1, Ex.P. 1 cannot be said to be binding on either defendant

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No.1 or the defendant No.2 as none of them are parties to Ex.P. 1 and there is no privity of contract between plaintiff and defendants No.1 and 2. Hence, Ex.P. 14 (Ex.D. 5) Sale Deed dtd.19-032005 certainly binds the plaintiff. As such, this Court is of the opinion that the GPA holder of the defendant No.1 has proved that he is not the owner of the suit schedule property as on the date of filing the suit and the same was owned by the defendant No.2 and plaintiff has failed to prove that Sale Deed dtd.19-03-2005 executed by defendant No.1 through his GPA holder in favour of defendant No.2 is not binding on him. Accordingly, I answer issue No.5 in the affirmative and additional issue No.1 in the negative.

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So also, while dealing with issue No.6, the trial court held as under:-

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24. ISSUE NO.6:- The GPA holder of the defendant No.1 has specifically contended that there is no cause of action for the plaintiff to file this suit as against the defendant No.1 as the defendant No.1 was not a party to Ex.P. 1 Sale Agreement nor the said Sale Agreement was executed by him on behalf of the defendant No.1 and since, he has not been made as party to this suit, the suit as framed does not disclose any cause of action either against him or against defendant No.1. Though the plaintiff has arrayed

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the defendant No.1 as party to this suit, admittedly he has not made the GPA holder of 1^st defendant as party to this suit. Merely because, this Court has issued summons to the GPA holder of the defendant No.1 in the capacity as an agent of defendant No.1 and the said GPA holder of the defendant No.1 appeared before this Court and contested the case, it cannot be said that the said GPA holder of the defendant No.1 has contested the above case in his individual capacity despite he contesting this case. Since the plaintiff has thoroughly failed to prove that the GPA holder of the defendant No.1 had executed Ex.P. 1 sale agreement in his favour on behalf of the defendant No.1, admittedly, there is no privity of contract between defendant No.1 and the plaintiff herein and as such, at any stretch of imagination based on Ex.P. 1, the plaintiff could not have brought this suit against defendant No.1 as there was no cause of action against defendant No.1. At the most he could have brought this suit against the GPA holder of the defendant No.1 by arraying him as party defendant to this suit, which he has not made. Hence, this Court is of the opinion that there is no cause of action for the plaintiff to file this suit against defendant No.1. Similarly, no cause of action also arose as against defendant No.2 who is the purchaser of the suit schedule property. Hence, there is no hesitation for this Court to answer issue No.6 in the affirmative.

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Accordingly, I answer issue No.6 in the affirmative.

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The undisputed material on record, in particular, the cause title to the plaint will indicate that the plaintiff had not impleaded the owner / vendor – Narayanappa in his individual capacity as 1^st defendant; on the other hand, the said Narayanappa is described as 1^st defendant represented by his GPA Holder Jayaram with his address shown in the cause title; further, the said Narayanappa was never served with suit summons / court notice which were served only upon Jayaram, who entered appearance and contested the suit; in other words, the actual vendor / owner – Narayanappa against whom, the relief of specific performance was sought was merely described formally as 1^st defendant while, it was his GPA Holder – Jayaram who was actually impleaded as a party

¶123

– 1^st defendant to the suit, in which, Narayanappa was neither notified nor called upon to put forth his defence, thereby indicating that in reality, the said Narayanappa was never impleaded as a party to the suit. Further, the 2^nd defendant Renuka was impleaded as a party during the pendency of the suit, pursuant to which, the plaintiff merely sought for declaration that the sale deed dated

¶124

23 - NC: 2023:KHC:40749 RFA No. 928 of 2021

¶125

19.03.2005 executed in her favour was not binding upon him; in this context, upon impleadment of the said 2^nd defendant Renuka, who was undisputedly a pre-suit purchaser of the suit schedule property vide sale deed dated 19.03.2005 much prior to the suit being instituted on 26.05.2008, it was incumbent upon the plaintiff to seek the relief of specific performance as against 2^nd defendant

¶126

– Renuka also by directing her to join Narayanappa in execution of the sale deed in favour of the plaintiff; to put it differently, in the plaint, the plaintiff had not sought for the relief of specific performance either against the vendor / owner Narayanappa (who was not a party in his individual capacity) or against the pre-suit purchaser, Renuka – 2^nd defendant and consequently, the trial court answered issue No.5 and additional issue No.1 by coming to the conclusion that the suit schedule property had already been sold on 19.03.2005 in favour of Renuka which was binding upon the plaintiff who was accordingly not entitled to any relief in the suit.

¶127

The aforesaid facts and circumstances clearly establish that the trial court was fully justified in answering issue Nos. 5 and 6 and additional issue No.1 against the plaintiff and thereby, came to the conclusion that he was not entitled to any relief sought for in

¶128

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¶129

the suit, which was bad for non-joinder of parties, inasmuch as the original vendor / owner Narayanappa having not been made a party to the suit in his individual capacity, the question of seeking the relief of specific performance would not arise. I do not find any illegality or infirmity in the said findings also warranting interference by this Court in the present appeal.

¶130

Accordingly, Point Nos.1 and 2 are answered against the appellant.

¶131

Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered opinion that the trial court was fully justified in rejecting the claim of the plaintiff and the impugned judgment and decree passed by the trial court cannot be said to suffer from any illegality or infirmity warranting interference by this Court in the present appeal.

¶132

In view of the aforesaid discussion, I do not find any merit in the appeal and the same is hereby dismissed.

¶133

SV/SRL

¶134

Sd/JUDGE

Sri Sreerama v. Sri R Narayanappa

Case brief

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Sri Sreerama v. Sri R Narayanappa

Case brief

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