Dismissed

Sri N Chandrappa S/O Thimmappa Dead by Lrs Smt Umadevi v. Smt Champa

Karnataka HC1 Jun 2023RSA/310/2023

Case brief

AI extract

What is this about?

In this regular second appeal, the appellant challenged the dismissal of a suit for specific performance of a sale agreement. The court held that no substantial question of law arose, as the lower courts correctly found the plaintiff failed to prove the execution of the agreement. The appeal was dismissed at the admission stage.

What did the court decide?

The appeal is dismissed at the stage of admission with no order as to costs.

Sri N Chandrappa S/O Thimmappa Dead by Lrs Smt… — Specific Performance | Karnataka HC (2023)

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RSA No. 310 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.310 OF 2023 (SP)

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BETWEEN:

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SRI N CHANDRAPPA S/O THIMMAPPA DEAD BY LR'S

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SMT. UMADEVI W/O LATE CHANDRAPPA, AGED ABOUT 59 YEARS,

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SMT. SOWMYA W/O PRADEEP AGED ABOUT 30 YEARS,

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KUM. RAMYA D/O LATE CHANDRAPPA, AGED ABOUT 28 YEARS,

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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ALL ARE R/O MALLAPURA VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 213.

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…APPELLANTS

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(BY SRI. SANTOSH.R.NELKUDRI., ADVOCATE)

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AND:

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SMT. CHAMPA W/O K LOKESH, HOUSE WIFE, AGED ABOUT 51 YEARS, R/O SANTHEBENNUR VILLAGE, CHANNAGIRI TALUK, DAVANGERE DISTRICT - 577 213.

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RSA No. 310 of 2023

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AJJAIAH S/O MAHESHWARAPPA, AGED ABOUT 37 YEARS, R/O MALLAPURA VILLAGE, CHANNAGIRI TALUK, DAVANGERE DISTRICT - 577 213.

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…RESPONDENTS

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.

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

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JUDGMENT

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Sri. Santosh R.Nelkudri., learned counsel for appellants has appeared in person.

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This appeal is from the Court of Senior Civil Judge & JMFC, Channagiri.

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For the sake of convenience, the parties are referred to as per their status & ranking before the Trial Court.

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4. The brief facts are these:

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It is the case of the plaintiff that the first defendant is the absolute owner and in possession and enjoyment of the suit

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schedule property. She offered to sell the same in favor of the plaintiff for a total consideration amount of Rs.2,60,000/-

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RSA No. 310 of 2023

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(Rupees Two Lakh Sixty Thousand only) and accordingly, the sale agreement was executed on 28.12.2004 in favor of the plaintiff before the attesting witnesses. It is said that the possession of the property was delivered to the plaintiff. It was mutually agreed that time was not the essence of the contract. The defendant expressed her inability to execute the sale deed. Hence, the plaintiff was constrained to take shelter under the Court of law and filed a suit for specific performance.

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After service of the suit summons, the first defendant appeared through counsel and filed a written statement, and denied the plaint averments in toto. she specifically denied the execution of the agreement. It is contended that land-bearing Sy.No.102/2 measuring 1 Acre 20 Guntas situated at Doddamallapura Village, Channagiri Taluk, Davanagere District which originally belonged to one Murthappa, Ajjaiah, and Basavarajappa of Mallapura Village and the first defendant purchased the suit schedule property under the registered sale deed dated:21.08.2002. It is also contended that from the date of purchase, she has become the owner of the property and she continued to remain in possession of the property and the Revenue Entries also stands in her name as per

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RSA No. 310 of 2023

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MR.No.11/2003-2004. She also contended that the alleged sale agreement dated 28.12.2004 is a concocted, created, and forged document. Among other grounds, she prayed for the dismissal of the suit.

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The second defendant also filed a written statement and prayed for the dismissal of the suit.

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Based on the above pleadings, the Trial Court

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framed the following:

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ISSUES

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Whether the plaintiff proves that the defendant executed the sale agreement dated 28.12.2004 in favor of the plaintiff by receiving the entire sale consideration amount of Rs.2,60,000/-?

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Whether the plaintiff proves that he is ever ready and willing to perform his part of the contract?

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Whether the defendant proves that the suit is barred by law of limitation?

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Whether the plaintiff is entitled for decree the to the relief as prayed for?

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What order or decree?

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RSA No. 310 of 2023

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ADDITIONAL ISSUE

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Whether the defendant No.2 proves that he is

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the bonafide purchaser of suit schedule property?

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To substantiate the claim, the plaintiff examined himself as PW1 and two more witnesses as PW2 & 3 and produced six documents which were marked at Exs.P.1 to P6. On the other hand, the first defendant examined herself as DW1, and during the cross-examination of PW1, six RTC extracts of Sy. No.102/1A were confronted and marked as Exs.D.1 to D6 and got marked other documents as Exs.D.7 to D19.

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On the trial of the action, the Trial Court dismissed the plaintiff's suit. On appeal, the Appellate Court confirmed the Judgment and Decree of the Trial Court. Hence, this Regular Second Appeal is filed under Section 100 of CPC.

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Sri. Santosh R.Nelkudri., learned counsel for appellants submits that the Judgments and Decrees of the Trial Court and the First Appellate Court are contrary to law, facts, and probabilities of the case on hand and the same is liable to be set aside.

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RSA No. 310 of 2023

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Next, he submits that the Courts have failed to appreciate the pleadings, and oral and documentary evidence placed on record by both the parties in proper perspective.

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A further submission is made that the plaintiff was always ready and willing to perform his part of the contract and also paid the entire sale consideration amount under Ex.P.1. however, the Courts have failed to appreciate the pleadings and erroneously rejected the claim of the plaintiff.

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Learned counsel vehemently contended that the Courts have arrived at an erroneous conclusion that the suit is barred by law of limitation though the time for the execution of the sale deed was not fixed in the sale agreement. It is also submitted that in the written statement, the first defendant has specifically contended that the suit document is a created and forged one. Hence, the Trial court ought to have framed an issue in this regard.

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Lastly, he submits that viewed from any angle, the Judgments and Decrees of the Trial Court as well as the First Appellate Court are erroneous and unsustainable in law. Hence,

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RSA No. 310 of 2023

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this Regular Second Appeal raises substantial questions of law and the same may be admitted.

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Heard the contentions urged on behalf of the learned counsel for the appellant and perused the Judgments and Decrees of the Trial Court and the First Appellate Court and the application filed for the production of additional documents.

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In this case, the plaintiff sued for specific performance. The law is well-settled that specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. The party seeking specific performance must show that an enforceable contract exists; that the contract has been concluded between himself and the defendant, and that the plaintiff is ready and willing at all material times to perform. Unless there is a concluded contract between the parties, the plaintiff is not entitled to a decree for specific performance. Thus, the onus is on the plaintiff to prove his case.

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Reverting to the facts of the case, the first defendant specifically denied the execution of the agreement. Even in the evidence also, the first defendant Smt.Champa has stated that

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RSA No. 310 of 2023

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there was no need for her to sell the suit schedule property in favor of the plaintiff.

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Ex.P.1 is the sale agreement. According to the plaintiff, the defendant agreed to sell the property i.e., Sy.No.102/2 measuring 1 Acre 20 Guntas and the same is mentioned in the sale agreement. In the plaint schedule, the plaintiff has shown the survey number as 102/1A.

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An attempt is made on behalf of the appellant to contend that at the time of the execution of the sale agreement, the survey number was 102/2. It was resurveyed and renumbered as 102/1A.

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I have noted the submission about the change in the survey number. The plaintiff did not produce any document to show that after the resurvey, the survey number was changed to 102/1A. If the contention of the plaintiff is to be accepted regarding change in survey number, nothing prevented the parties to incorporate the said survey number in the sale agreement.

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As already noted above, in the sale agreement, the survey number is shown as 102/2, but what is shown in the

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plaint schedule is 102/1A. Hence, the theory about the change in the survey number is satisfactorily hopeless.

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Since the plaintiff has failed to prove the execution of the sale agreement in respect of plaint schedule property, the question of consideration of the contentions about readiness and willingness does not arise.

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The Trial Court in extenso referred to the material on record and concluded that the plaintiff has failed to establish that the first defendant executed sale agreement in his favor.

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It is pivotal to note that the Trial Court in extenso referred to the material on record and dismissed the suit. The First Appellate Court has examined the evidence on record and re-appreciated it. I am satisfied that it has been appreciated from the correct perspective. The concurrent finding of facts, however erroneous, cannot be disturbed by the High Court in the exercise of the power under Section 100 of CPC. The substantial question of law has to be distinguished from a substantial question of fact. In my view, the findings recorded by both Courts are either vitiated by non-consideration of relevant evidence or by an erroneous approach to the matter.

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10 -

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RSA No. 310 of 2023

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Where based on evidence on record the Trial Court and the First Appellate Court had concurrently arrived at a finding of fact, the High Court in the Second Appeal cannot reverse the said concurrent findings under ordinary circumstances.

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It is perhaps well to observe that after the 1976 amendment, the scope of Section 100 of the CPC has been drastically curtailed and narrowed down. Under Section 100 of the Code of Civil Procedure 1908 (as amended in 1976) the jurisdiction of the High Court to interfere with the judgment of the Court below is confined to hearing substantial questions of law. Interference with a finding of a fact by the High Court is not warranted if it involves re-appreciation of the evidence.

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No substantial question of law arises for consideration in this appeal. As a result, I find no merit in this appeal, and accordingly, it is dismissed at the stage of admission.

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No order as to costs.

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 38

Sri N Chandrappa S/O Thimmappa Dead by Lrs Smt Umadevi v. Smt Champa

Case brief

What is this about?

What did the court decide?

Sri N Chandrappa S/O Thimmappa Dead by Lrs Smt Umadevi v. Smt Champa

Case brief

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What did the court decide?

What the court decided

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