Allowed

R. Gavirangappa v. M/S Manju Ani Exports

Karnataka HC4 Sept 2024RFA/129/2015

Case brief

AI extract

What is this about?

Defendant's legal representatives appealed a decree for specific performance of an unregistered agreement to sell. The High Court held the agreement required proof by an attesting witness under Section 68 Evidence Act, set aside the decree and remanded for fresh disposal.

What did the court decide?

Appeal allowed; decree in O.S.No.8571/1999 set aside; matter remitted to trial court for fresh disposal on or before 31.03.2025, with liberty to tag with O.S.No.9899/2015.

R. Gavirangappa Vs M/S Manju Ani Exports — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:36231 RFA No. 129 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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REGULAR FIRST APPEAL NO. 129 OF 2015 (SP)

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BETWEEN:

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R. GAVIRANGAPPA, S/O LATE SRI.RANGADAMAPPA, (SINCE DECEASED)

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a) SMT.V. SRIDEVI

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W/O LATE GAVIRANGAPPA, AGED ABOUT 65 YEARS, R/AT NO.15, VENKATASWAMAPPA LAYOUT, 11^TH CROSS, NEAR SBM ATM, ITTAMADU, AG’S LAYOUT, BENGALURU – 560 061.

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b) SMT.VASANTHA. G

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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W/O SATHYARAJ, D/O C. LATE GAVIRANGAPPA, AGED ABOUT 38 YEARS, R/AT NO.78/6 A, OUT HOUSE, 1^ST FLOOR, 2^ND MAIN, GOVINDARAJANAGARA, BENGALURU – 560 040.

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c) SMT.KUSUMA. G

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W/O NAVEEN KUMAR G.S, D/O C. LATE GAVIRANGAPPA, AGED ABOUT 36 YEARS, R/AT NO.12/1, 8^TH MAIN, SAMPANGIRAMANAGARA, BENGALURU – 560 027.

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2 - NC: 2024:KHC:36231 RFA No. 129 of 2015

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d) SMT. KOMALA. G @ DEEPA. G W/O THILAK KUMAR, D/O C. LATE GAVIRANGAPPA, AGED ABOUT 36 YEARS, R/AT NO.41, MATHRUSHRI NILAYA, KRISHNAIAH LAYOUT, BANASHANKARI, 3^RD STAGE, BENGALURU – 560 085.

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e) SMT. RANJITHA. G W/O LOKESH. N D/O C. LATE GAVIRANGAPPA, AGED ABOUT 34 YEARS, R/AT NO.26/2,3^RD CROSS, 3^RD MAIN, SAMPANGIRAMANAGARA, BENGALURU- 560 027.

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f) SMT. HEMALATHA. G W/O SHASHANK, D/O C. LATE GAVIRANGAPPA, AGED ABOUT 30 YEARS, R/AT NO.62/2, 2^ND FLOOR, KAVERAPPA LAYOUT, AREHALLI, BENGALURU – 560 061.

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g) SMT. VIDYA. G W/O MOHANKUMAR G, D/O C. LATE GAVIRANGAPPA, AGED ABOUT 29 YEARS, R/AT NO.15, VENKATASWAMYAPPA LAYOUT, 11^TH CROSS, NEAR SBM ATM, ITTAMADU, AG’S LAYOUT, BENGALURU – 560 061. …APPELLANTS

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(BY SRI. MURALIDHAR S R.,ADVOCATE)

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AND:

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M/S MANJU ANI EXPORTS NO:42, K.R.SETTYPET, PAPANNA GALLE, AVENUE ROAD CROSS, BANGALORE - 560 002. REPRESENTED BY ITS PARTNERS:

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NC: 2024:KHC:36231 RFA No. 129 of 2015

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SHRI. B.T.MALLIKARJUNA, S/O LATE DR.N.THIMMIAH, AGED ABOUT 48 YEARS,

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SHRI. S.SHIVABALAK, S/O.SRI.NARAYAN,

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AGED ABOUT 29 YEARS.

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…RESPONDENTS

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(BY SRI. H V SUBRAMANYA.,ADVOCATE FOR R1 & R2)

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THIS RFA FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.3.2014 PASSED IN O.S.NO.8571/1999 ON THE FILE OF THE XI ADDL. CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

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THIS RFA COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.Muralidhar S.R., learned counsel for the appellants and Sri.H.V.Subramanya., learned counsel for the respondents.

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Appeal is by the defendant challenging the

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judgment and decree passed in O.S.No.8571/1999 on the file of the XI Additional City Civil Judge, Bangalore, whereby the suit of the plaintiff came to be decreed.

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NC: 2024:KHC:36231 RFA No. 129 of 2015

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The facts in brief which are utmost necessary

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for disposal of the present appeal are as under:

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3.1. Plaintiff being the tenant in respect of the suit property, entered into Agreement to Sell with the owner on 22.11.1996. The suit agreement is an unregistered agreement and thereafter, plaintiff claimed that he is occupying the suit property as an agreement holder and not as a tenant. According to the plaintiff, plaintiff paid the further advance sale consideration and obtained receipt vide Exs.P.2 to P4. Amongst them, a sum of Rs.60,000/(Rupees Sixty Thousand only) paid by the plaintiff to the defendant is through a account payee cheque which has been encashed by the defendant. When all efforts of the plaintiff failed to get the sale deed executed, a legal notice was caused by the plaintiff calling upon the defendant to execute the sale deed in pursuance of the suit agreement marked at Ex.P.1. An untenable reply was sent by the defendant which necessitated the plaintiff to file a suit for Specific Performance of Agreement to Sell vide Ex.P.1.

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NC: 2024:KHC:36231 RFA No. 129 of 2015

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3.2. Pursuant to the suit summons, defendant

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appeared before the court and emphatically denied the suit agreement and maintained that the plaintiff is continuing in respect of the suit property as a tenant and the receipts marked at Exs.P2 to P4 are towards the further advance amount towards the rental agreement and therefore, the suit is to be dismissed.

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3.3. The learned Trial Judge after raising necessary issues, recorded the evidence of the parties and decreed the suit of the plaintiff.

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Being aggrieved by the same, defendant is in

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appeal. Original defendant died and legal representatives of the defendant is pursuing the appeal.

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Learned counsel for the legal representatives of the original defendant Sri.Muralidhar S.R., contended that since the suit agreement is an unregistered sale agreement, as per proviso to section 68 of the Indian Evidence Act, 1872, at least one attesting witness should

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NC: 2024:KHC:36231 RFA No. 129 of 2015

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have been examined to prove the suit agreement and in the case on hand, except examining the plaintiff, no other witness is examined. Therefore, the learned Trial Judge erred in recording a finding that the suit agreement stands proved and decreeing the suit has resulted in miscarriage of justice.

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He further contended that the amount said to have been received by the defendant is towards the further advance of the rental agreement and therefore, the finding recorded by the learned Trial Judge that the advance sale consideration has been proved by the plaintiff is also incorrect and sought for allowing the appeal.

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Per contra, Sri.H.V.Subramanya, learned

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counsel for the contesting respondent/plaintiff supported the impugned judgment.

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Having heard the parties, this court perused the material on record meticulously. On such perusal of the

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NC: 2024:KHC:36231 RFA No. 129 of 2015

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material on record, admittedly Ex.P1 is an unregistered document. Therefore, the suit agreement ought to have been proved by examining at least one of the attesting witnesses. Such a course has not been taken by the plaintiff in the Trial Court.

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At this stage, Sri.H.V.Subramanya contended that the matter may be remitted to the Trial Court for fresh disposal and permit the plaintiff to examine the attesting witnesses, if available or place such other proof to prove the Agreement to Sell. Accordingly, a case is made out by the appellants to remit the matter to the Trial Court for fresh disposal, in accordance with law.

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Learned counsel Sri.H.V.Subramanya at this stage also submits that there is another suit filed by the L.Rs of the original defendant which is pending in O.S.No.9899/2019. The present suit may also be tagged along with the said suit wherein, the plaintiff is a party and

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NC: 2024:KHC:36231 RFA No. 129 of 2015

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has obtained some admissions from the witnesses of the

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L.Rs of the defendant.

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Since the said suit is for partition, tagging on the present suit along with the suit in O.S.No.9899/ *2015 would meet the ends of justice. Accordingly, the following:

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ORDER

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[i] Appeal is allowed; impugned judgment and decree passed in O.S.No.8571/1999 on the file of the XI Additional City Civil Judge, Bangalore, is hereby set-aside.

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[ii] Matter is remitted to the Trial Court for fresh disposal in accordance with law.

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[iii] Parties are at liberty to file necessary memo before the learned Principal District Judge, City Civil Court, Bangalore, for allocating

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the present suit to be tried along with O.S.No.9899/ *2015 to avoid multiplicity of proceedings.

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*Corrected vide Court order dated 24.01.2025.

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NC: 2024:KHC:36231 RFA No. 129 of 2015

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[iv] Copy of this order shall also be sent to the learned Principal District Judge, City Civil Court, Bangalore, for necessary action at his end.

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[v] Having regard to the fact that the suit is of the year 1999, the Trial Court shall expedite the hearing and conclude the suit afresh, in accordance with law on or before 31.03.2025.

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Sd/(V.SRISHANANDA)

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JUDGE

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cbc List No.: 1 Sl No.: 56

R. Gavirangappa v. M/S Manju Ani Exports

Case brief

What is this about?

What did the court decide?

R. Gavirangappa v. M/S Manju Ani Exports

Case brief

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