Dismissed

Shivanna @ v. Nanjegowda

Karnataka HC10 Oct 2023RSA/973/2015

Case brief

AI extract

What is this about?

In this second appeal, the appellant legal representatives challenged the specific performance decree in favor of the plaintiff. The High Court held that the defendants failed to prove hardship or possessance of joint family property rights and that the plaintiff demonstrated readiness, thus dismissing the appeal.

What did the court decide?

Appeal dismissed; judgments and decrees passed by courts below confirmed.

Shivanna @ Vs Nanjegowda — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:36752 RSA No. 973 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 973 OF 2015 (SP)

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BETWEEN:

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SHIVANNA @ SHIVANNA GOWDA, S/O LATE GANGA HONNAIAH, AGED ABOUT 53 YEARS, OCC:AGRICULTURIST R/O. RANGENAHALLI VILLAGE AND POST, LAKKAVALLI HOBLI, TARIKERE TALUK-577 101, CHIKMAGALURU DISTRICT.

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…APPELLANT

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(BY SRI. VIGNESHWARA S. SHASTRY, SR. ADVOCATE FOR SRI. GURURAJ, ADVOCATE)

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Digitally signed by SUNITHA GANGARAJU Location: High Court of Karnataka

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AND:

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NANJEGOWDA

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S/O LATE SHIVANANEGOWDA AGED ABOUT 68 YEARS, OCC:AGRICULTURIST R/O RANGENAHALLI VILLAGE AND PSOT LAKKAVALLI HOBLI, TARIKERE TALUK-577 101 CHIKMAGALURU DISTRICT.

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REVANNA

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S/O LATE GANGA HONNAIAH, AGED ABOUT 54 YEARS, OCC: AGRICULTURIST

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NC: 2023:KHC:36752 RSA No. 973 of 2015

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R/O VENKATAPURA VILLAGE, TARIKERE TALUK-577 101 CHIKMAGALURU DISTRICT.

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KRISHNAPPA,

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S/O LATE GANGA HONNAIAH, AGED ABOUT 46 YEARS, OCC:AGRICULTURIST R/O VENKATAPURA VILLAGE, TARIKERE TALUK-577 101 CHIKMAGALURU DISTRICT.

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…RESPONDENTS

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(BY SRI. H. KANTHARAJ, SR. ADVOCATE FOR SRI. RAVI H K FOR R1., ADVOCATE SRI. H.K. KENCHEGOWDA, ADVOCATE FOR R2 & R3)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 24.04.2015 PASSED IN RA NO.96/2009 ON THE FILE OF THE I ADDL.DISTRICT & SESSIONS JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.09.2009 PASSED IN O.S.NO.97/2005 ON THE FILE OF THE CIVIL JUDGE (Sr.Dn) & PRL. J.M.F.C., AT TARIKERE.

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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 second appeal is filed by the appellant challenging the judgment and decree dated 24.04.2015 passed in R.A.No.96/2009 on the file of I Additional District Court, Chikkamagalur confirming the judgment and decree dated 16.09.2009 passed in O.S.No.97/2005

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NC: 2023:KHC:36752 RSA No. 973 of 2015

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on the file of Civil Judge (Sr.Dn.) and Principal JMFC, Tarikere.

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The parties are referred to as per their ranking before the trial Court. The appellant is one of the legal representatives of the deceased defendant No.1 and respondent No.1 is the plaintiff and respondents No.2 and 3 are the legal representatives of deceased defendant No.1.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiff filed a suit for specific performance of contract against the defendant No.1 in respect of land bearing survey No.85 measuring 2 acres out of 3 acres 16 guntas situated at Shanthipura village, Lakkavalli Hobli, Tarikere Taluk. It is the case of the plaintiff that defendant No.1 is the owner of the suit land. Defendant No.1 agreed to sell the suit schedule property in favour of the plaintiff for consideration of Rs.1,10,000/- in terms of an agreement. The plaintiff paid a sum of Rs.93,000/-

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towards earnest money and defendant No.1 executed a registered agreement of sale dated 27.08.2004. It was agreed between the plaintiff and defendant that the plaintiff should pay the balance consideration amount of Rs.17,000/- on or before one year from the date of agreement and get executed the registered sale deed. The plaintiff called upon the defendant No.1 to receive balance consideration amount and to execute the registered sale deed, but the defendant postponed the execution of the registered sale deed. Thereafter, the plaintiff got issued a legal notice dated 16.07.2005 and the said notice was served on the defendant. Inspite of service of notice, defendant neither replied the legal notice nor executed the registered sale deed. Hence, cause of action arose for the plaintiff to file the suit for specific performance of contract and prays to decree the suit.

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Defendant No.1 filed written statement

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admitting the execution of registered agreement of sale dated 27.08.2004. It is contended that said transaction is

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a loan transaction and not a sale transaction. For the purpose of security, defendant executed an agreement of sale and the said agreement of sale is a nominal and it was agreed, not to be acted upon. It is contended that defendant No.1 has no other property except the suit schedule property. Further, it is contended that plaintiff was/is not ready and willing to perform his part of contract and further submits that the suit schedule property is the joint family property of the defendant. During the pendency of the suit, the defendant died leaving behind the legal representatives, who were brought on record and

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filed an additional written statement contending that except the suit schedule property, legal representatives of defendant are not possessing any other property. Hence, if specific performance of contract is granted, the legal representatives the defendant will be put to hardship. On these grounds, they sought for dismissal of the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiff proves that defendant being owner of plaint schedule properties agreed to sell the same to plaintiff for a sale consideration of Ra.1,10,000/and accordingly executed registered agreement of sale dated 27.08.2004 by receiving a sum of Rs.93,000/- as part sale consideration?

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2. Whether the plaintiff further proves that the balance sale consideration of Rs.17,000/was agreed to be paid on or before one year from the date of agreement of sale and get the sale deed registered in the name of plaintiff at his cost?

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3. Whether the plaintiff further proves that he is always ready and willing to perform his part of the contract as stated in para 5 of the plaint?

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4. Whether the plaintiff further proves that he is entitled for the relief of specific performance of the contract from the defendant and also entitle for possession of the plaint schedule property from the defendant?

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5. Whether the plaintiff further proves in the alternate that if specific performance is not possible then entitle for recovery of a sum of Rs.93,000/- along with interest at the rate of 24% p.a. from the defendant by creating charge over the suit schedule property as prayed?

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6. Whether the defendant proves that he borrowed only a sum of Rs.50,000/- from plaintiff about 3 years back and already paid a sum of Rs.9,000/- to the plaintiff towards interest?

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7. Whether the defendant further proves that the registered agreement of sale in question has been executed only as a security for there payment of the said loan amount and further proves that no amount was paid to the defendant under the said agreement on that day as contended in para 4(1) of written statement?

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8. whether the defendant further proves that he is liable to pay only a sum of Rs.50,000/- to the plaintiff along with interest only at the rate of 6% p.a. as contended?

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9. Whether the defendant further proves that the market value of the plaint schedule properties was Rs.3 lakh as on the date of agreement in question and the actual market value is not shown in the said agreement?

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10. What order and what decree ?

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Plaintiff in order to substantiate his case, examined himself as PW-1 and examined one witness as PW-2 and got marked 6 documents as Exs.P1 to P6. Original defendant was examined as DW-1 and examined 3 witnesses as DW.2 to DW.4 and no documents were marked. The trial Court after considering oral and documentary evidence, answered issue Nos.1 to 4 in the affirmative, issue Nos.5 and 8 does not arise for

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consideration and issue Nos.6, 7 and 9 in the negative and consequently decreed the suit of the plaintiff with costs and directed the legal representatives of defendant to execute the registered sale deed in favour of plaintiff in respect of suit schedule property after receiving the balance consideration amount of Rs.17,000/-. Further ordered that if the legal representatives of defendant did not come forward to execute registered sale deed in favour of the plaintiff, the plaintiff is at liberty to approach the Court to work out remedy and consequently, the alternative remedy sought by the plaintiff to refund earnest money of Rs.93,000/- with interest at 24% p.a. from the date of payment creating charge over the suit schedule property was rejected.

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The legal representatives of defendant,

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aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.96/2009 on the file of I Additional District Court, Chikkamagaluru. During the pendency of the appeal, legal representatives of defendant

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filed an application for amendment of written statement and also filed an application for production of additional evidence. The said applications came to be allowed by the First Appellate Court. The plaintiff aggrieved by the orders passed by the First Appellate Court on the applications, for amendment of written statement and also for production of additional evidence, preferred the writ petitions in W.P.Nos.32111/2012 and 35812/2012 which came to be dismissed. Inspite of granting an opportunity, legal representatives of defendant have not led any evidence on the additional documents.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1. Whether the trial Court erred in appreciating the fact that agreement was executed only towards security purpose?

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2. Whether the learned trial judge failed to note that the market value of the suit property is more than what is mentioned in the agreement?

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3. Whether the learned trial judge erred in appreciating the oral and documentary evidence adduced by both the parties?

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4. Whether the judgment of the trial Court calls for interference by this Court?

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5. What order?

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The First Appellate Court, on re-appreciating

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the oral and documentary evidence, answered points No.1 to 4 in the negative and consequently dismissed the appeal, confirming the judgment and decree passed by the trial Court vide judgment dated 24.04.2015.

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One of the legal representatives of the defendant, aggrieved by the judgments and decrees passed by the Courts below, has filed this second appeal.

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Heard Sri. Vighneshwara S. Shastry, learned

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Senior counsel appearing for the legal representatives of defendant /appellant.

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Learned senior counsel for the legal representatives of defendant/appellant submits that the defendant has taken a specific defence in the written statement that if the decree for specific performance of

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contract is granted, the legal representatives of defendant No.1 will be put to hardship. The trial Court has not framed issues on the point of hardship and he further submits that the plaintiff was/is not ready to perform his part of contract as required under Section 16(c) of Specific Relief Act. He further submits that suit schedule property

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is the joint family property of the deceased defendant No.1, and all these aspects were not considered by the Courts below. In order to buttress his arguments, he has placed reliance on the judgment of Hon'ble Apex Court in the case of C.S.Venkatesh Vs. A.S.C. Murthy(dead) by

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LRs and others reported in 2020 SCC Online SC 143 . He also submits that as on the date of execution of agreement of sale, market value of suit land was more than 3 lakhs per acre and the consideration amount mentioned in the agreement of sale is meager. Hence, on these grounds, he prays to allow the appeal.

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NC: 2023:KHC:36752 RSA No. 973 of 2015

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Perused the records and considered the submissions of learned senior counsel for legal

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representative of defendant No.1/appellant.

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It is the case of the plaintiff that the original defendant was the absolute owner of the suit schedule property. He approached the plaintiff and offered to sell the suit schedule property for consideration of Rs.1,10,000/-. The plaintiff agreed to purchase the suit land for consideration of Rs.1,10,000/- and paid a sum of Rs.93,000/- as an earnest money out of Rs.1,10,000/-. The defendant executed an agreement of sale on 27.08.2004 in favour of plaintiff. It was agreed that the defendant to execute the registered sale deed, after receiving the balance consideration amount of Rs.17,000/-. It was agreed that to execute the registered sale deed the plaintiff has to pay the balance consideration amount of Rs.17,000/- to the defendant No.1, within one year from the date of execution of agreement of sale. The plaintiff before the expiry of one year, issued a legal notice

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on 16.07.2005 calling upon the defendant to accept the balance consideration amount and to execute the registered sale deed. The said notice was served on the defendant. Inspite of service of notice, the defendant neither replied the legal notice nor executed the registered sale deed.

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The plaintiff in order to prove his case, examined himself as PW.1 and produced the documents and marked as exhibits. Ex.P.1 is the registered original sale agreement executed by defendant in favour of plaintiff in respect of suit schedule property; Ex.P.2 is the RTC extract in respect of suit schedule property; Ex.P.3 is the mutation register extract, it discloses that the plaintiff after execution of registered agreement of sale, submitted an application to the revenue authorities to enter the name of plaintiff in the revenue records. On the basis of said application, the revenue authorities passed an order mutating the name of the plaintiff in respect of suit schedule property; Ex.P.4 is the copy of legal notice got

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NC: 2023:KHC:36752 RSA No. 973 of 2015

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issued by the plaintiff to the defendant, calling upon the defendant to receive the balance consideration amount to execute the registered sale deed and copies of postal receipt and postal acknowledgment are marked as Ex.P.5 and Ex.P.6.

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Though it is suggested to the PW.1 that, the defendant has executed an agreement of sale, it is a nominal and said transaction is not a sale transaction, but it is a loan transaction. The said fact has been denied by the plaintiff in the course of cross examination. Further, in order to prove the Ex.P.1, the plaintiff examined one attesting witness as PW.2, who has deposed that the defendant agreed to sell the suit schedule property in favour of plaintiff for the consideration of Rs.1,10,000/and accordingly, the plaintiff paid Rs.93,000/- towards earnest money and it was agreed that the defendant No.1 to receive the balance consideration amount and execute registered sale deed within one year from the date of execution of the registered agreement of sale. Further, in

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the course of cross examination, nothing has been elicited from the mouth of this witness in regard to Ex.P.1. In rebuttal, defendant was examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief. He admits that he had executed an agreement of sale in respect of suit schedule property in favour of plaintiff, but it is contended that the said transaction is a loan transaction and not a sale transaction and agreement of sale was executed as a security for the purpose of repayment of loan. The evidence of DW.1 in respect of loan transaction cannot be considered in view of Section 91 of the Evidence Act 1872, which reads as

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under:

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'Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.

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When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence

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is admissible under the provisions hereinbefore contained.'

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Admittedly, the agreement of sale was reduced into writing and there is no recital in the agreement of sale stating the said transaction as a loan transaction and not as the sale transaction. Hence, the contention of the defendant that it is a loan transaction does not hold water.

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Learned counsel for the legal representative of defendant / appellant submits that defendants have taken a specific defence in the written statement that the decree for specific performance of contract is granted, the defendants will be put to hardship and the trial Court has not framed issues on that ground. Further, I would like to place reliance on the judgment of Co-ordinate bench of this Court in the case of M.C.Suresh Vs. Sri. B.Srinivas

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Naik and others reported in ILR 2009 KAR 3897 , wherein the Co-ordinate bench held that "Mere omission to frame an issue is not fatal to the trial of the suit unless it has affected disposal on the merits" and further held that

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"though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the Court and the Court decides the point as if there was an issue framed on it, the discussion will not be set aside in appeal on the ground that no issue was framed".

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Admittedly, in the instant case, the First Appellate Court in para 24 of the impugned judgment has discussed about the issue on the point of hardship. Hence, in view of the above discussion, the contention of the learned counsel for the legal representatives of defendant/appellant that trial Court has not framed the issues is not a ground to set aside the impugned judgment and decree. Now the legal representatives of deceased defendant are estopped to contend that no issue was framed on the ground of hardship. The parties having understood the pleadings, who went for a trial, now the legal representatives of defendant are contending that the trial Court has not framed issues on the ground of hardship. Neither the original defendant nor his legal heirs filed an application for framing additional issues. Further, the legal representatives

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of the defendant filed an application for amendment of written statement and also filed an application for production of additional documents before the First Appellate Court. The said applications came to be allowed by the First Appellate Court. The plaintiff aggrieved by the orders passed on the said applications, preferred writ petitions in W.P.Nos.32111/2012 and 35812/2012. The said writ petitions came to be dismissed. The legal representatives of the defendant did not lead the evidence on the additional documents. The first appellate Court considering the oral evidence placed on record by the parties has rightly held that the legal representatives of defendant have not led any evidence to prove that they will be put to hardship and further it is the case of the legal representatives of defendant that except the suit schedule property, the legal representatives of defendant is not possessing any other property. But the legal representatives of defendant have not placed on record that except the suit property, they do not possess any other property.

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NC: 2023:KHC:36752 RSA No. 973 of 2015

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In the absence of evidence this Court is of the opinion that legal representatives of defendant have failed to establish hardship. The trial Court as well as First Appellate Court have considered the issue of hardship and have rightly come to a conclusion that if the decree for specific performance of contract is not granted in favour of plaintiff, the plaintiff will be put to more hardship, than the legal representatives of defendant.

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Learned senior counsel for the legal

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representatives of defendant submits that suit schedule property is the joint family property of defendant and defendant alone has no right to execute agreement of sale in favour of the plaintiff. On the said fact the legal representatives of defendant taken the contention, but have not produced any document to show that the suit schedule property is the ancestral property of defendant. In the absence of material on record, legal representatives of defendant have failed to prove that the suit schedule property is the ancestral property of defendant. He further

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submits that plaintiff was not ready and willing to perform his part of contract and in support of his contention he has placed reliance on the judgment in the case of C.S.Venkatesh referred (supra). In the instant case, the agreement of sale was executed on 27.08.2004. The plaintiff paid an earnest amount of Rs.93,000/- to the defendant No.1 and it was agreed that the sale deed to be executed within one year from the date of execution of agreement of sale before the expiry of one year. The plaintiff got issued a legal notice dated 16.07.2005 as per Ex.P.4 and the said legal notice was served on the defendant. Inspite of service of notice, neither the defendant No.1 gave any reply nor received balance consideration amount and executed the registered sale deed. The plaintiff has shown that the plaintiff was/is ready and willing to perform his part of contract by issuing legal notice as per Ex.P.4.

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Further, both the Courts below have

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concurrently recorded the finding of fact that the plaintiff

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was/is ready and willing to perform his part of contract.

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Thus, the Courts below have justified in passing the impugned judgments and decrees. Hence, I do not find any substantial question of law that arises for consideration in this appeal.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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The judgments and decrees passed by the

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Courts below are hereby confirmed.

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No order as to the costs.

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In view of disposal of the appeal, pending IAs, if any, do not survive for consideration and are accordingly disposed of .

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SD/JUDGE

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sks

Shivanna @ v. Nanjegowda

Case brief

What is this about?

What did the court decide?

Shivanna @ v. Nanjegowda

Case brief

What is this about?

What did the court decide?

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