Suit for specific performance of an agreement to sell; defendants' subsequent registered sale during pendency held hit by lis pendens. Second appeal by purchaser dismissed and decrees confirming specific performance in favour of plaintiff confirmed.
Second appeal dismissed; judgment and decree of courts below granting specific performance confirmed.
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NC: 2024:KHC:38906 RSA No. 1164 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.1164 OF 2017 (SP)
BETWEEN:
SRI P. RAMESH, S/O SRI PAPANNA, AGED ABOUT 60 YEARS, R/AT. PETE CHAMANAHALLI, KOLAR CITY, KOLAR DISTRICT-563 101. ... APPELLANT
(BY SRI Y.R. SADASHIVA REDDY, SENIOR ADVOCATE FOR SMT. SUNANDA SARKAR, ADVOCATE)
AND:
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
S/O. SRI. CHICKAVENKATAPPA, AGED ABOUT 60 YEARS, R/A HARALAKUNTE VILLAGE, HUTHURU HOBLI, KOLAR TALUK AND DISTRICT-563 101. ... RESPONDENTS
(BY SRI GAGAN, ADVOCATE FOR SRI. G. A. SRIKANTE GOWDA, ADVOCATE FOR R1; R2 NOTICE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.03.2017 PASSED IN R.A.NO.64/2011 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.03.2011
NC: 2024:KHC:38906 RSA No. 1164 of 2017
PASSED IN O.S.NO.523/2006 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, KOLAR AND ETC.
THIS APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Against the concurrent findings of facts recorded by the Courts below, defendant No.2-purchaser is before this Court in the regular second appeal.
rank before the trial Court for the sake of convenience.
Plaint averments:
sale dated 26.05.2005 in respect of the suit property for
valuable consideration of Rs.1,62,500/-, on the date of the agreement, defendant No.1 received the earnest money of Rs.1,20,000/- and agreed to receive the balance sale consideration of Rs.42,500/- at the time of execution of the sale deed, the time stipulated is 18 months or whenever the plaintiff intimates his readiness and willingness to pay the balance sale consideration amount. The plaintiff issued legal notice on 12.09.2006 directing defendant No.1 to come forward for execution of the sale deed in his favour, notice was served on defendant No.1 on 16.09.2006, defendant No.1 did not reply to the said notice, subsequently, defendant No.1 during the pendency of the suit has sold the suit property in favour of defendant No.2 through a registered sale deed dated 09.01.2007. That defendant No.2 in spite of having knowledge about the earlier sale agreement dated 26.05.2005 in favour of the plaintiff, has purchased the property and the sale deed in favour of defendant No.2 is null and void.
Written statement averments:
his written statement, inter alia, contending that the suit property originally belonged to Subbanna, who had three sons namely, Chikka Venkatappa, Chikka Munivenkatappa and Muniswamappa. Chikka Ventakappa has two sons namely, Venkateshappa and Nagappa(defendant No.1). Chikka Munivenkatappa has a son and five daughters and Muniswamappa is having one daughter Bhagyamma. Defendant No.1 contended that the suit property is the joint family property of the sons of Subbanna and there is no partition effected, it is contended that son of Chikka Munivenkatappa has filed suit seeking for partition against defendant No.1 and other sharers, which includes the suit property, further, as the suit property is not convenient for division among the sharers, they decided to sell the suit property for valuable consideration in favour of defendant No.2 and the possession has been delivered to defendant No.2. It is contended by defendant No.1 that the
agreement of sale dated 26.05.2005 is created by forging the signature of defendant No.1.
1. "¢£ÁAPÀ 26.05.2005 gÀAzÀÄ ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ D¹ÛAiÀÄ£ÀÄß ªÁ¢UÉ gÀÆ. 1,62,500/- UÀ½UÉ ªÀiÁgÁl ªÀiÁqÀ®Ä M¦àPÉÆAqÀÄ gÀÆ. 1,20,000/- UÀ¼À£ÀÄß ªÀÄÄAUÀqÀªÁV ¥ÀqÉzÀÄ
PÀæAiÀÄ PÀgÁgÀÄ¥ÀvÀæªÀ£ÀÄß vÀ£Àß ºÉ¸ÀjUÉ §gÉzÀÄPÉÆnÖzÁÝ£ÉAzÀÄ ªÁ¢AiÀÄÄ ¸Áܦ¸ÀĪÀ£ÉÃ?
2. vÁ£ÀÄ PÀæAiÀÄ PÀgÁgÀÄ¥ÀvÀæzÀ ¥ÀæPÁgÀ £ÀqÉzÀÄPÉƼÀî®Ä ¸ÀzÁ ¹zÀݤzÉÝãÉAzÀÄ ªÁ¢AiÀÄÄ ¸Áܦ¸ÀĪÀ£ÉÃ?
3. vÀ£Àß ¸À»AiÀÄ£ÀÄß ªÁ¢AiÀÄÄ £ÀPÀ®Ä ªÀiÁr ¸ÀļÀÄî zÁR2ÉAiÀÄߣÀÄ ¸ÀȶֹzÁÝ£ÉAzÀÄ ¥ÀæwªÁ¢AiÀÄÄ ¸Áܦ¸ÀĪÀ£ÉÃ?
4. vÁ£ÀÄ PÉýzÀ ¥ÀjºÁgÀUÀ¼À£ÀÄß ¥ÀqÉAiÀÄ®Ä ªÁ¢AiÀÄÄ CºÀð¤gÀĪÀ£ÉÃ?
5. AiÀiÁªÀ rQæ, AiÀiÁªÀ DzÉñÀ?
Additional issue dated 04.11.2009:
1. Whether the 2nd defendant proves that the 1st defendant along with his sons has sold the suit schedule property in his favour for valuable consideration under the Registered Sale Deed dated 09.01.2007 for legal necessities and put him in possession of the suit schedule property?"
documentary evidence, by the judgment and decree, decreed the suit of the plaintiff directing defendant Nos.1
and 2 to execute the sale deed in favour of the plaintiff and put the plaintiff in possession of the suit property.
NC: 2024:KHC:38906 RSA No. 1164 of 2017
9. Aggrieved, the defendants preferred appeal
before the First Appellate Court, the First Appellate Court while re-appreciating and reconsidering the entire oral and documentary evidence, concurred with the judgment and decree of the trial Court. Aggrieved, defendant No.2 has approached this Court in regular second appeal.
Counsel for Smt Sunanda Sarkar, learned counsel for the appellant and Sri Gagan, learned counsel for Sri G. A. Srikante Gowda, learned counsel for respondent No.1.
following grounds:
NC: 2024:KHC:38906 RSA No. 1164 of 2017
defendant No.1, and defendant No.1 has no
competence to enter into an agreement of sale of the suit property with the plaintiff.
iii. That in O.S.No.579/2007 filed by Sharadamma and others children of Chikka Venkatappa and children of Nagappa, for partition and separate possession, the concerned Court has arrived at a conclusion that defendant No.2 is a bonafide purchaser of the suit property in light of the sale deed executed by Nagappa in his favour and would contend that defendant No.2 has held to be a bonafide purchaser, having purchased the suit property on 09.01.2007 for valuable consideration and in light of the finding recorded in O.S.No.579/2007.
NC: 2024:KHC:38906 RSA No. 1164 of 2017
1963, and held that the Ex.P1 is proved by the plaintiff and is entitled for specific performance.
iii. That defendant Nos.1 and 2 had knowledge about the suit in light of the legal notice, which was issued to defendant No.1 on 12.09.2006 and the notice was duly served on 16.09.2006, and after the acknowledgment of legal notice, the alleged sale deed has been executed in favour of defendant No.2 on 09.01.2007, which is during the pendency of the suit and defendant No.2 is not entitled for any relief in the hands of this Court.
iv. Learned counsel for the respondents brings to the notice of this Court through a memo that the execution petition No.8/2018 levied by a decree holder has been closed as fully satisfied and the
registered sale deed is executed in favour of the decree holder in respect of the schedule property through a Court Commissioner and the revenue entries have been effected in the name of respondent No.1.
v. That the concurrent findings of facts recorded by the Courts below does not warrant any interference under Section 100 CPC and there arises no substantial question of law to be dealt with in the present second appeal.
nothing worthwhile is elicited from the cross-examination of the PW1 to disbelieve his contentions. The plaintiff examined the witness PW2 to Ex.P1, who categorically stated about the execution of the agreement and part sale consideration of Rs.1,20,000/being paid to the respondent No.1, PW3 -scribe of Ex.P1 was examined, and his evidence stands in line with PW2, nothing worthwhile was elicited from the cross-examination of PW2 and PW3 to disbelieve their version. On the other hand, defendant No.1 examined himself as DW1, DW1 disputed his signature on Ex.P1 and also took up a contention that the
suit property is the joint family property of Chikka Venkatappa. DW1 deposed that the suit property has been sold to defendant No.2 for sale consideration, one material aspect that needs to be considered here is that the children of Chikka Venkatappa and defendant No.1 Nagappa instituted a suit in O.S.No.579/2007, after the present suit was instituted for specific performance of contract, the said suit came to be dismissed and defendant Nos.1 and 2 herein were arrayed as party to the
said suit, neither the defendants did not bring to the notice of the Court about the pendency of the present suit for specific performance and in the said suit, defendant No.4 (defendant No.2 herein and appellant before this Court) contended that he is a bonaifdie purchaser having purchased the property from Nagappa for family necessity and the Concerned Court in the said circumstances, held that he is a bonafide purchaser, the plaintiff was not a party to the said suit, and the findings recorded in the said suit in O.S.No.579/2007 is not binding on the plaintiff.
NC: 2024:KHC:38906 RSA No. 1164 of 2017
(D) Through Lr. Sher Singh Vs. Mukhtiar Singh and
Others1 held at paragraph Nos.21 and 22 as under:
“ 21. Once it has been held that the transactions executed by the respondents are illegal due to the doctrine of lis pendens the defence of the respondents 1-2 that they are bonafide purchasers for valuable consideration and thus, entitled to protection under Section 41 of the Act of 1882 is liable to be rejected.
22. We are presently not getting into the deposition of PW-7 though it is unusual and also whether respondents 1-2 had knowledge of the injunction, even though we find no substantial reasons for the High Court to base its entire decision on the deposition of this witness (PW-7). We are going by the settled position that subsequent purchasers will be bound by lis pendens and cannot claim they are bonafide purchasers because they were not aware of the injunction order, looking at the peculiar facts of the present case.”
17. The law is well settled that once an interim
order is granted by the Court, it par takes the character of
1 2024 SCC Online SC 761.
restraining the opposite party from doing any action, mere non-communication of the interim order on the other party would not make the interim order passed by the Court in effective, the plaintiff had issued a legal notice to defendant No.1 which is marked at Ex.P4 and the postal acknowledgement for having served on defendant No.1 is
at Ex.P5, defendant No.1 had knowledge about the plaintiff’s intention to file the suit, the suit was filed on 06.12.2006 and the alleged sale in favour of defendant No.1 is 09.01.2007, the sale deed so executed is a nullity and non-est .
NC: 2024:KHC:38906 RSA No. 1164 of 2017
assessed and exercised its discretion of granting specific performance of contract in favour of the plaintiff, this Court is of the considered view that the same does not warrant any interference under Section 100 CPC and no substantial questions of law would arise for consideration and this Court pass the following:
ORDER
Sd/(K.S. HEMALEKHA) JUDGE
AT List No.: 1 Sl No.: 17
2 issues framed by the court
Whether the concurrent findings on the agreement of sale Ex.P1 warranted interference under Section 100 CPC.
Whether defendant No.2 was a bona fide purchaser despite the sale deed executed during the pendency of the suit and interim injunction.
Colour shows how this judgement treated each authority
Chander Bhan (D) Through Lr. Sher Singh Vs. Mukhtiar Singh and OthersRelied on¶16
2024 SCC Online SC 761 · Who else cites this
3 provisions across 3 enactments
Sri P. Ramesh
Sri Venkatesh
Sri Nagappa
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
