Second appeal by unsuccessful plaintiff seeking specific performance based on a 2003 agreement of sale. The High Court found she had never mentioned the agreement in earlier suits despite opportunities, casting doubt on its genuineness, and dismissed the appeal holding no substantial question of law arose.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 272 OF 2019 (SP)
BETWEEN:
SMT DRAKSHAYINI W/O SURESH AGED 56 YEAWRS R/A NO.5636, JANNAKAVI ROAD, KUVEMPUNAGAR EXTENSION, CHANNARAYAPATNA TOWN, HASSAN DISTRICT 573116.
…APPELLANT
(BY SRI. K.N.NITISH, ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
…RESPONDENTS
(BY SRI. NARAJJI DEEPAK, ADVOCATE, FOR C/R2)
NC: 2024:KHC:15618 RSA No. 272 of 2019
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD 27.11.2018 PASSED IN RA.NO.35/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.08.2017 PASSED IN OS.NO.419/2009 ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC., CHANNARAYAPATNA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the unsuccessful plaintiff, who is before this Court being aggrieved by the judgment and decree dated 18.08.2017, passed in O.S.No.419/2009, on the file of Principal Civil Judge and J.M.F.C., Channarayapatna, ('trial Court' for short), which is confirmed by judgment and decree dated 27.11.2018, passed in R.A.No.35/2017, on the file of Senior Civil Judge and J.M.F.C., Channarayapatna.
NC: 2024:KHC:15618 RSA No. 272 of 2019
well acquainted with the plaintiff. That the plaintiff has been residing in a house existing on the suit schedule property along with her family for more than fifteen years as a tenant under the defendant No.1. That in the month of November 2003, the defendant No.1 expressed his desire to sell the suit property including the house situated therein for his legal necessities. After negotiations, the price was fixed at Rs.80,000/- and on 20.11.2003, an Agreement of Sale was executed by defendant No.1 in favour of the plaintiff agreeing to convey the suit property.
The plaintiff paid Rs.50,000/- by way of cash and adjusted Rs.10,000/- towards advance, which was paid under the tenancy and agreed to execute the Sale Deed by receiving the balance sale consideration of Rs.20,000/-.
NC: 2024:KHC:15618 RSA No. 272 of 2019
plaintiff thereafter got issued a notice dated 19.04.2008 calling upon the defendant No.1 to receive the balance sale consideration and to execute the Sale Deed. Since there was no response, the present suit for specific performance of the contract was filed by the plaintiff.
The case of the defendants is that defendant No.1 is no more the owner of the suit property as on the date of filing the suit as he had already sold the property in favour of defendant No.2. Denying the averments of the plaint, it is contended that the present suit is filed based on a Sale Agreement, which is a created and fabricated document and is vitiated by fraud. It is contended that the recitals of the plaint in O.S.No.99/2005 and the recitals of the
plaint in the present suit are entirely different from each other. That defendant No.1 had issued a befitting reply to
NC: 2024:KHC:15618 RSA No. 272 of 2019
the notice issued by the plaintiff. That the suit is not
maintainable. Hence, sought for dismissal of the suit.
NC: 2024:KHC:15618 RSA No. 272 of 2019
perform her part of the contract would not arise. It is contended that there is also a criminal case filed against the plaintiff in PCR No.16/2012, which is pending for consideration. Hence, sought for dismissal of the suit.
consideration.
Issues :
NC: 2024:KHC:15618 RSA No. 272 of 2019
Additional Issues :
" 1. Whether the plaintiff proves that, sale deed dated 20-11-2003 executed by defendant No.1 in favour of defendant No.2 is null and void and not binding upon plaintiff?
2. Whether the defendant No.2 proves that, he is bona fide purchaser of suit schedule property?"
the trial Court answered issue Nos.1, 2, 3, 4 and 6 and additional issue No.1 in the negative and issue No.5 and additional issue No.2 in the affirmative and consequently dismissed the suit. Aggrieved by the same, plaintiff preferred regular appeal in R.A. No.35/2017. Considering the grounds urged in the memorandum of appeal, the First Appellate Court framed the following points for its consideration.
" 1. Whether judgment and decree passed by trial Court is illegal, perverse, capricious and against principles of nature justice and liable to be interfered by this Court?
2. Whether trial Court has failed to appreciate the oral and documentary evidence adduced by the plaintiff and it has given unwarranted much credence to the Ex.D.1 and it has not taken into consideration of evidentiary value adduced by the plaintiff?
3. Whether appellant has made out grounds for appointment of handwriting expert as Court commissioner for examination of disputed documents?
4. What order or decree?"
NC: 2024:KHC:15618 RSA No. 272 of 2019
He further submits that the first Appellate Court though taken note of this lacuna committed by the trial Court, however, proceeded to appreciate the evidence ignoring the same. Thus, he submits that non-appreciation of this aspect of the matter has given rise to the conclusion arrived at by both the Courts below and submits that an opportunity be given to the appellant/plaintiff in this regard in the interest of justice.
care to bring up the said document on record despite an application having been filed calling upon the plaintiff to
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produce the Agreement of Sale. Thus, he submits that the trial Court and the first Appellate Court after analysing and appreciating the entire evidence placed on record, have come to a just conclusion that the document was got up for the purpose of filing of the suit and declined to grant the relief as sought for. Thus, no substantial questions of
law would arise for consideration. Hence, he seeks dismissal of the appeal.
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that the plaintiff in the said suit in O.S.No.99/2005 has never whispered anything whatsoever with regard to execution of Agreement of Sale dated 20.11.2003, which was purportedly executed by defendant No.1 in favour of plaintiff agreeing to sell the suit schedule property as contended in the plaint of the present suit.
submission of learned counsel for the respondents that though the present suit is ended in dismissal, the plaintiff has been protracting the matter.
NC: 2024:KHC:15618 RSA No. 272 of 2019
illegal interference in her possession and enjoyment of the property by the very same defendants, has not even whispered about the existence of the said Agreement, which according to the plaintiff, was entered into in the year 2003. With respect to execution of above Agreement of Sale, no explanation of any nature is forthcoming in O.S.No.119/2006, which was filed by defendant No.2 and despite an application being made by defendant No.2, the plaintiff has not produced the said document.
NC: 2024:KHC:15618 RSA No. 272 of 2019
credibility and the very genuineness of the said
Agreement. As such, the impugned judgments does not call for interference.
Sd/JUDGE
bk
List No.: 1 Sl No.: 15
2 issues framed by the court
Whether the plaintiff proved the genuineness of the Agreement of Sale dated 20.11.2003 and was entitled to specific performance.
Whether any substantial question of law arose for consideration in the second appeal.
1 provisions across 1 enactments
Smt Drakshayini
Sri Doddegowda
Sri Shivanna
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
