Dismissed

Sri. Manjappa v. Smt. K. R. Gowramma

Karnataka HC23 Mar 2023RSA/1588/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a second appeal by defendants challenging the decree of specific performance granted in favour of a plaintiff claiming land purchased orally in 1984 and later affirmed by a written agreement in 2000.

What did the court decide?

The second appeal was dismissed, thereby affirming the lower courts' decree granting specific performance of the sale agreement.

Sri. Manjappa Vs Smt. K. R. Gowramma — Specific Performance | Karnataka HC (2023)

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1 - RSA No. 1588 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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REGULAR SECOND APPEAL NO. 1588 OF 2014 (SP)

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BETWEEN:

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SRI. MANJAPPA S/O LATE SIDDAPPA AGED ABOUT 50 YEARS RESIDING AT CHANNAGIRI TOWN CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 213.

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Digitally signed by YASHODA KRISHNAPPA Location: HIGH COURT OF KARNATAKA

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SRI NAGARAJ S/O LATE SIDDAPPA AGED ABOUT 45 YEARS RESIDING AT CHANNAGIRI TOWN CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 213.

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…APPELLANTS

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(BY SRI. SIDDAMALLAPPA P M, ADVOCATE - V.C)

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AND:

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SMT. K. R. GOWRAMMA W/O K RUDRAPPA AGED ABOUT 65 YEARS RESIDING AT CHANNAGIRI TOWN CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 213.

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…RESPONDENT

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(BY SMT. PHILOMENA ROSS, ADVOCATE C/R)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 14.8.14 PASSED IN R.A.NO.27/2014 ON THE FILE OF SENIOR CIVIL JUDGE AND

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RSA No. 1588 of 2014

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JMFC, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING JUDGEMENT AND DECREE DTD 13.1.2014 PASSED IN OS.NO.49/2001 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI.

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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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Defendant Nos.2 and 3 have filed this appeal against the plaintiff, praying to set-aside the judgment and decree dated 14.08.2014, passed by the Senior Civil Judge and J.M.F.C, Channagiri in R.A.No.27/2014 and the judgment and decree dated 13.01.2014 passed in O.S.No.49/2001, by the Principal Civil Judge and J.M.F.C, Channagiri, dismissing the suit.

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Appellant Nos.1 and 2 were defendant Nos.2 and 3 and the respondent was the plaintiff in O.S.No.49/2001. Defendant No.1 – Smt.Ningamma died during the pendency of the suit, leaving behind her, defendant Nos.2 and 3, who are the appellants herein. The respondent – plaintiff filed the suit against defendant Nos.1 to 3 seeking relief of specific performance of the contract.

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3 - RSA No. 1588 of 2014

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It is the case of the plaintiff that, one Sri.Siddappa,

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husband of defendant No.1 and father of defendant Nos.2 and 3 was granted with the land in Sy.No.17 of Laxmisagara village, to an extent of 4 acres by the Government during 1962 under Dharkhasth, with non alienation condition for fifteen years. Thereafter, he continued with the possession of the same till his death. He died in the year 1975, leaving behind defendant Nos.1 to 3. During his lifetime, he has not maintained the said property in a good condition for cultivation.

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During the year 1984, defendant No.1 decided to sell the suit property for her family necessity and the plaintiff being the close relative of defendant No.1, has put her offer to purchase the suit property for a valuable consideration. The sale talks took place in the presence of one Sri.Maharudrappa and Sri.Bannihatti Chikkappa and they concluded for sale of the property in favour of the plaintiff for a consideration of Rs.5,000/- per acre. As the

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RSA No. 1588 of 2014

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defendants and the plaintiff were close relatives, the contract of sale was not reduced into writing.

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As the Khata was standing in the name of the deceased Sri.Siddappa, defendant No.1 agreed to receive the advance consideration of Rs.18,000/- from the plaintiff and to hand over possession of the suit property to the plaintiff. Defendant No.1 has received Rs.18,000/- from the plaintiff on 10.02.1984 and handed over possession of the suit property in favour of the plaintiff in part performance of the sale agreement, entered into between them in the presence of the said witnesses.

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It was also agreed that defendant No.1 had to get the change of Khata of the suit property in her name and to execute regular sale deed in favour of the plaintiff by receiving the balance consideration. There was no time fixed for performance of the sale contract and therefore, time was not the essence of the contract.

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5 - RSA No. 1588 of 2014

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Defendant No.1 handed over the original grant certificate to the plaintiff. The plaintiff continued in possession of the suit property and she was ready to perform her part of the contract by paying the balance sale consideration and to get the sale deed executed in her name. But, the defendants postponed the demands of the plaintiffs, on one of the other pretext and the Khata of the suit property has not been changed into their names. The defendants have not taken the steps to get the Khata changed to their names till the end of July, 2000. Thereafter, the plaintiff demanded the defendants to execute the documents regarding confirmation of prior sale agreement, which took place during 1984. Therefore, defendant Nos.1 to 3, on 10.09.2000, executed the sale agreement, confirming the receipt of part of the sale consideration of Rs.18,000/- and also confirming handing over possession of the suit property in favour of the plaintiff and agreed to execute the regular sale deed by receiving the balance consideration from the plaintiff after

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6 - RSA No. 1588 of 2014

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getting the change of Khata of the suit property into their names.

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The plaintiff and her husband made efforts in changing the Khata of the suit property in the name of defendant No.1 during October, 2000. Subsequently, the plaintiff and her husband have put forward the demands to the defendants for executing the sale deed, by receiving the balance consideration of Rs.2,000/-. The defendants initially took time to comply the demands of the plaintiff and thereafter, the defendants have tried to give evasive answers to the plaintiff. The plaintiff and her husband have demanded the defendants to execute the sale deed on 09.01.2001 at Channagiri, but, the same has been avoided by the defendants and they did not come forward to execute the sale deed. Therefore, the plaintiff filed a suit against the defendants seeking specific performance of the sale agreement.

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Earlier, defendant Nos.1 to 3 did not appear before

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the Court and an exparte judgment and decree came to be

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RSA No. 1588 of 2014

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passed and the same has been challenged before the Principal Senior Civil Judge, Davanagere in M.A.No.16/2006 and it came to be allowed by setting aside the judgment and decree dated 11.01.2012. Thereafter, the defendants appeared through their counsel and defendant No.2 filed the written statement and defendant No.3 filed a memo adopting the written statement filed by defendant No.2.

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In the written statement, defendant No.2 denied the plaint averments and contended that the suit is barred by limitation. They denied having received Rs.18,000/- on 10.02.1984 and denied having talks between them and the plaintiff regarding sale of suit property. They contended that the plaintiff is literate and the defendants are illiterates and they have no knowledge and might have created a false document, only with an intention to gain wrongfully. They contended that the defendants have not thought of selling the suit property for a meagre amount, an extent of 4 acres of land at Laxmisagara village. They

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RSA No. 1588 of 2014

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contended that it is a fertile land having more market value and contended that in the year 1984, the value of the land per acre was more than Rs.50,000/-. They denied that the plaintiff is in possession of the suit property and prayed to dismiss the suit.

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The Trial Court initially framed the following issues;

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“ 1. Whether the plaintiff proves that the defendants had agreed to sell the suit property for Rs.20,000-00 in favour of plaintiff executed the sale agreement on 10.02.1984?(deleted)

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2. Whether the plaintiff further proves that the defendants by receiving the sale consideration of Rs.18,000-00 on the date off sale agreement had agreed to execute sale deed by receiving the remaining sale consideration?

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3. Whether the plaintiff further proves that the defendants had hand over the possession of suit property as on the date of sale agreement?

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4. Whether the plaintiff further proves that she is always ready and willing to perform her part of contract?

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RSA No. 1588 of 2014

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5. Whether defendants the sale agreement dated:10.02.1984 is created one? (deleted)

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What order or decree?”

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The Trial Court thereafter, deleted issue Nos.1 and 5 and recasted the issues on 18.12.2013 which are as under;

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“1. Whether plaintiff proves that the defendants have agreed to sell the suit schedule property to plaintiff on 10.02.1984 and executed the sale agreement on 10.08.2000?

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2. Whether defendants prove that sale agreement dated:10.08.2000 is created one?”

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The plaintiff has examined as PW1 and got marked Exs.P1 to P5 and two witnesses were examined on behalf of the plaintiff as PWs.2 and 3. Defendant No.2 has examined himself as DW1 and got marked Exs.D1 and D2 and later, he did not turn up for cross examination and his evidence came to be discarded and thereafter, defendant

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No.3 has been examined as DW2.

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RSA No. 1588 of 2014

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During the pendency of the suit, defendant No.1 reported dead and defendant Nos.2 and 3 are treated as legal representatives of defendant No.1.

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The Trial Court after hearing the arguments and appreciating the evidence on record, has answered issue Nos.2 to 4 and recasted issue No.1 in the affirmative and recasted issue No.2 in the negative and decreed the suit.

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Defendant Nos.2 and 3 challenged the said judgment and decree in R.A.No.27/2014 before the Senior Civil Judge and J.M.F.C, Channagiri. The First Appellate Court, after hearing the arguments on both sides, has formulated the following points for consideration:

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“1. Whether the plaintiff proves that the defendants have greed to sell the suit schedule property on 10.02.1984 for a sum of Rs.20,000/by receiving part consideration of Rs.18,000/and agreed to receive the balance of Rs.2,000/at the time of execution of the sale deed and executed the agreement of sale on 10.08.2000?

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RSA No. 1588 of 2014

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2. Whether the plaintiff proves that she is ever ready and willing to perform her part of contract?

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3. Whether the plaintiff proves that the defendants have handed over the possession of suit schedule property on 10.02.1984 itself?

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4. Whether the appellants prove that the trial court has not properly appreciated the oral and documentary evidence and the judgment and decree is arbitrary and not in accordance with law?

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5. Whether the appellants prove that interference of this court is required to the judgment and the decree of the trial court?

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6. What order or decree?”

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The First Appellate Court answered point Nos.1 to 3

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in the affirmative and point Nos.4 and 5 in the negative and dismissed the appeal confirming the judgment and decree passed by the Trial Court.

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RSA No. 1588 of 2014

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Challenging the judgment and decree passed by both the Courts in O.S.No.49/2001 and R.A.No.27/2014, defendant Nos.2 and 3 have preferred this second appeal.

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In the second appeal, learned counsel for the appellants has proposed the following substantial questions of law;

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“(1) Whether the courts below are justified in passing impugned judgment and decree decreeing the suit of the respondent by granting decree of specific performance in the absence of ready and willingness on the part of the plaintiff wherein the plaintiff assertion alleging that there was a oral agreement of 1984 and after lapse of 16 years, the alleged suit document dated 10-9-2000 Ex.P.3 and that though the said document was not proved with cogent material evidence?

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(2) Whether the courts below are justified in decreeing the suit of the respondent based on rear admission of DW-2 though the said alleged admission not substantially acceptable in proof of suit document Ex.P.2?

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RSA No. 1588 of 2014

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(3) Whether the courts below are justified in passing the impugned judgment and decree by accepting the evidence of PW-1 who is not a party to Ex.P.2?

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(4) Whether the court below are justified in passing the impugned judgment and decree decreeing the suit as the evidence of PW-1 to 3 and Ex.P.2 stands uncorroborated and stands with full of contradictions?”

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Heard the learned counsel for the appellants on admission.

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As per the case of the plaintiff, there was an oral sale agreement on 10.02.1984 between defendant No.1 and the plaintiff, whereunder, defendant No.1 agreed to sell the suit property in favour of the plaintiff for a sale consideration of Rs.20,000/- and paid Rs.18,000/- and agreed to pay the balance of Rs.2,000/- at the time of execution of the sale deed. Under the said oral agreement, defendant No.1 had handed over the possession of the suit schedule property to the plaintiff.

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RSA No. 1588 of 2014

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The suit schedule property, admittedly granted to the husband of defendant No.1, namely, late Siddappa and it is standing in his name. The defendants did not get the Khata in the name of defendant No.1 after the death of Sri.Siddappa and they did not execute any sale deed in favour of the plaintiff, as orally agreed. The said oral agreement has taken place in the presence of Sri.Maharudrappa (PW2) and Sri.Bannihatti Chikkappa. Thereafter, the defendants in confirmation of the earlier oral agreement, executed sale agreement dated 10.08.2000 in favour of the plaintiff. The said sale agreement dated 10.08.2000 is at Ex.P2. It is stated that it is executed by defendant Nos.1 to 3 in favour of the plaintiff.

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PW2 – Sri.Maharudrappa is one of the attesting witness to the said sale agreement. PW3 – Sri.Dinesh is the scribe of Ex.P2 – sale agreement. Defendant No.2 who is one of the signatory to the said sale agreement – Ex.P2, even though has examined as DW1, did not appear

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RSA No. 1588 of 2014

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for the cross examination and therefore, his evidence came to be discarded.

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Defendant No.3 has been examined as DW2. DW2 has admitted that he has put the signature on Ex.P2 and he has put the said signature about 13 years ago and at that time, the R.T.C was standing in the name of his father. He has also admitted that after he affixed the signature on Ex.P2, after two months, the Khata of the suit schedule property has been changed in the name of his mother. DW2 has also admitted that after passing of the decree in the year 2001, he went to police station for recovery of the possession. DW2 also admitted that except the sale agreement, there was no any other transaction between them and the plaintiff’s husband. Therefore, the said admission of DW2 falsify the contention that he has affixed the signature for change of Khata. The evidence of PWs.2 and 3 establishes the execution of the sale agreement - Ex.P2 by defendant

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RSA No. 1588 of 2014

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Nos.1 to 3 in favour of the plaintiff. DW2 has admitted that there is no animosity between himself and PW3.

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The Trial Court appreciating the evidence of PWs.2, 3 and DW2, has rightly held that the plaintiff has proved the sale agreement executed by defendant Nos.1 to 3. The First Appellate Court on re-appreciation, has affirmed the said finding of the Trial Court.

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Learned counsel for the appellant would contend that the plaintiff has not got issued any notice to the defendants prior to the filing of the suit, demanding execution of the sale, as per the sale agreement dated 10.08.2000. In the plaint averment itself, there is a mention that orally, the plaintiff has asked the defendants to execute the sale deed on 09.01.2001.

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Learned counsel for the appellant further argued that

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the Trial Court and the First Appellate Court have not considered that whether the plaintiff is ready and wiling to

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17 - RSA No. 1588 of 2014

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perform her part of contract. The Trial Court based on the evidence of PW1 and the averments of the plaint, has held that the plaintiff is ready and wiling to perform her part of contract. Even the First Appellate Court has formulated the point for consideration in point No.2 and held that the plaintiff has proved that she is ready and willing to perform her part of contract.

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Learned counsel for the appellant further argued that the Trial Court has not considered the equity. The defendants have not claimed any equity in their pleading. There is no ground urged in challenging the judgment and decree of the Trial Court before the First Appellate Court regarding non consideration on the ground of equity, by the Trial Court. Therefore, the defendants cannot agitate the said aspect of non consideration of equity in this second appeal.

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RSA No. 1588 of 2014

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29. Considering all these aspects, no substantial question

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of law arises for consideration in this appeal. Hence, the

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appeal is dismissed.

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Sd/JUDGE

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GH List No.: 1 Sl No.: 12

Sri. Manjappa v. Smt. K. R. Gowramma

Case brief

What is this about?

What did the court decide?

Sri. Manjappa v. Smt. K. R. Gowramma

Case brief

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