This second appeal challenged a dismissal of a suit for specific performance of a contract of sale. The High Court upheld the lower courts' findings that the appellant failed to prove the execution of the alleged sale agreements or that he was ready and willing to perform the contract, dismissing the appeal.
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.
NC: 2024:KHC-D:10642 RSA No. 274 of 2008
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 274 OF 2008 (SP)
BETWEEN:
SRI L. VENKATESHAPPA S/O OBALESHAPPA, AGED ABOUT 48 YEARS, HINDU, AGRICULTURIST, R/O METRI VILLAGE, HOSPET TALUK, BELLARY DIST-583101.
…APPELLANT
(BY SRI GODE NAGARAJA AND SRI. S.S.GUTTAL, ADVOCATES)
AND:
Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA
SRI K. GULEPPA S/O K. PAMPANNA, AGED ABOUT 59 YEARS, HINDU, AGRICULTURIST, R/O METRI VILLAGE, HOSPET TALUK, BELLARY DIST-583101.
…RESPONDENT
(BY NOTICE ISSUED SOLE RESPONDENT IS HELD SUFFICIENT)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 11.10.2007 PASSED BY THE PRL. CIVIL JUDGE (SR.DN.) AND JMFC, HOSPET IN R.A.NO.16/2007 CNFIRMING THE JUDGMENT AND DECREE DATED 16.11.2006 PASSED BY THE PRL. CIVIL JUDGE (JR.DN.) AND JMFC, HOSPET IN O.S.NO.236/2004 AND DECREED THE SUIT FILED BY THE PLAINTIFF.
THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC-D:10642 RSA No. 274 of 2008
JUDGMENT
The present second appeal is filed under Section 100 of Code of Civil Procedure1 by the plaintiff challenging the judgment and decree dated 11.10.2007 passed in RA No.16/2007 by the Court of Principal Civil Judge (Senior Division) and JMFC, Hospet2 and the judgment and decree dated 16.11.2006 passed in OS No.23/2004 by the Court of the Principal Civil Judge (Junior Division) and JMFC, Hospet3 whereunder, suit for specific performance has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.
1 Hereinafter referred to as ‘CPC’
2 Hereinafter referred to as ‘First Appellate Court’
3 Hereinafter referred to as ‘Trial Court’
consideration of 42,400/- and in that regard, the parties entered into an agreement of sale dated 02.07.1997, wherein, the defendant also received an earnest money of 10,000/- on that date. That it was agreed between the parties that the balance sale consideration of `32,400/should be paid on or before 02.04.1999 and the defendant was required to execute the registered Sale Deed. It is further contended that on the date of sale agreement itself, the defendant has delivered the possession of the suit property in favour of the plaintiff.
ready and willing to get the Sale Deed registered on 21.05.1999 itself. But, the defendant requested for some more time for the purpose of discharging the loans over the suit property and assured that he will execute the registered Sale Deed in favour of the plaintiff and hence, the plaintiff waited for some more time. That the plaintiff is in peaceful possession and enjoyment of the suit property from the date of agreement of sale dated 02.07.1997 without any interference in any manner.
defendant and his wife one Gangamma. But, the defendant alone has put his signature on the document. That the defendant failed to execute the registered Sale Deed, in spite of repeated requests and demands made by the plaintiff. Hence, the plaintiff got issued a legal notice dated 07.10.2004 calling upon the defendant to complete
his part of contract by executing the registered Sale Deed on 25.10.2004 in the office of the Sub-registrar. However, the defendant failed to comply with the demands made in the said notice. Hence, the plaintiff has filed a suit.
10,000/-. The defendant has further specifically denied that he has handed over the possession of the property to the plaintiff. The defendant has further denied that he has received a further sum of 15,000/- on 23.06.1998 and that he received the balance sale consideration on 21.05.1999 by executing another agreement.the land bearing RS No.73/A(P) of Metri village was awarded in favour of the defendant in case No.2034/1974
NC: 2024:KHC-D:10642 RSA No. 274 of 2008
dated 31.04.1989 and since the date of the award, the defendant is in lawful possession and enjoyment of the suit property without any obstruction. That after the award, the defendant has got changed the mutation in his name and the record of rights also stands in his name. The defendant has specifically denied the execution of the agreement of sale as per the case of the plaintiff. It is further contended that the suit is barred by time as also for non-joinder of necessary parties.
the parties framed the following issues:
“1. Whether the Plaintiff proves Defendant had executed an agreement for sale on 02.09.1996 in respect of the suit schedule property and received an advance sale consideration of ` 10,000/- and put the Plaintiff in possession of the suit schedule property?
2. Whether the Plaintiff proves that, the Defendant further received an amount of ` 15,000/- on 23.6.1998 and executed another agreement for sale in favour of the Plaintiff?
3. Whether the Plaintiff was ready and willing to perform his part of contract?
4. Whether the Defendant proves that, the suit is barred by Law of Limitation?
5. Whether the Plaintiff is entitled for the relief of specific performance?
6. What order or decree?”
the CPC for recasting issues and to frame additional issues. The First Appellate Court framed the following points for consideration:
“1. Whether at this stage, it is just and proper to recast the issues and frame additional issue as prayed by the appellant?
2. Whether the plaintiff/appellant proves that the defendant has agreed to sell the suit property for a consideration amount of _42,400/- and executed an agreement of sale on 2.7.1997 by receiving an earnest money of_ 10,000/-?
3. Whether the plaintiff/appellant further proves that the defendant has received an amount of ` 15,000/- out of sale consideration on 23.6.98 and accordingly, it is endorsed on the agreement?
4. Whether the plaintiff appellant proves that on 2.7.99, the defendant has received the remaining balance consideration amount and executed another document accordingly?
5. Whether the trial court has committed an error in holding that the plaintiff has failed to prove that he was not ready and willing to perform his part of contract and suit is barred by limitation?
6. Whether the impugned judgment and decree requires any interference by this Court?
7. What Order?”
1. ‘‘Whether both the Courts below are right in holding that the appellant has failed to prove execution of agreements of sale, i.e., Ex.P.1 and Ex.P.2 by comparing the signature of the defendants on the vakalath filed in the present suit?
2. Whether the Courts below are justified in not considering the evidence of PW.2 - an attesting witness to the agreement of sale in proper perspective?’’
Ex.P.1 and Ex.P.2 and despite the testimony of PW.2 that,
the consideration in terms of what is stated in the agreements Ex.P.1 and Ex.P.2 has been made, both the Courts have concurrently erred in dismissing the suit of the plaintiff. Hence, he seeks for allowing of the above appeal and granting of the relief sought for. In support of his contentions he relies on the judgment of the Hon’ble Supreme Court in the case of K.S.Satyanarayana Vs. V.R.Narayana Rao4 .
4 AIR SC 2544
NC: 2024:KHC-D:10642 RSA No. 274 of 2008
i) Ex.P.1 is the agreement dated 02.07.1997 and Ex.P.2 is the agreement dated 21.05.1999. However, nowhere in Ex.P.2 reference is made to the agreement marked as Ex.P.1. Under Ex.P.2 nowhere it is mentioned that it is in continuation of agreement Ex.P.1;
ii) Plaintiff has not adduced the evidence of the Thimmareddy and Malleshappa who have put their signatures as Ex.P.2. Further, the plaintiff has not adduced the evidence of scribe of Ex.P.2;
iii) Nowhere in Ex.P.2 it is mentioned that, on 21.05.1999 the plaintiff has paid `17,400/- to the defendant. On the contrary, it is mentioned that plaintiff has paid the remaining balance sale consideration to the defendant;
vi) PW.2 has deposed Ex.P.1 is containing 20/two stamps and 10/- one stamp. But, PW.1 in his cross-examination has deposed that there are two stamp papers of 50/- each and 3 stamp papers of 20/- each.
- 13 - NC: 2024:KHC-D:10642 RSA No. 274 of 2008
earnest money. Further plaintiff has failed to prove that defendant has further received `15,000/- on 23.06.1998 and he has executed another agreement as per Ex.P.2.
ix) Defendant in his evidence has specifically deposed that at no point of time he has executed the agreement of sale in favour of the plaintiff either on 02.07.1997 or 21.05.1999;
pertinent to note here that in Ex.P.1, nowhere it is mentioned that the defendant has handed over the possession of the suit schedule property;
xii) Even it is not the case of the plaintiff that he has requested or got issued the legal notice calling upon the defendant to execute the registered sale. The plaintiff has miserably failed to prove that he was ready and willing to perform his part of the contract;
xiii) Plaintiff has issued a legal notice on 07.10.2004 and the notice came to be served on the defendant on 11.10.2004. Plaintiff has not produced any cogent and material evidence to show that between 02.07.1997 to 07.10.2004 he had requested the defendant or he got issued a legal notice to the defendant calling upon him to execute the registered Sale Deed;
xiv) Admittedly, in the present case in Ex.P.1 date is fixed that Sale Deed has to be executed on or before 02.07.1999. Therefore the limitation starts from 02.07.1999 and 3 years expired on 02.07.2002. It is not the case of the plaintiff that prior to 02.07.2002, he had requested the defendant to execute the registered Sale Deed. Hence, the plaintiff has miserably failed to prove issue Nos.3 and 4 in his favour.
i) On going through the recitals of Ex.P.1 dated 02.07.1997, it is clear that nowhere it is mentioned that on the date of agreement of sale the defendant has handed over the possession of the suit property in favour of the plaintiff. But, the scribe of the plaintiff has contended that on the date of agreement itself, the defendant has delivered the possession of
- 16 - NC: 2024:KHC-D:10642 RSA No. 274 of 2008
the suit property. But, the documentary evidence produced by the plaintiff himself marked at Ex.P.1 falsifies the contention of plaintiff with respect to the delivery of possession;
ii) PW.2 in his cross-examination has clearly admitted that the plaintiff was working in his house and he has faith on the plaintiff. So, it goes to show that PW.2 is a interested witness.
iii) The defendant and 2 independent witnesses have clearly deposed that till today, the defendant is in actual possession of the property. The record of rights produced by the plaintiff himself goes to show that the defendant is in possession of the suit property;
- 17 - NC: 2024:KHC-D:10642 RSA No. 274 of 2008
alleged agreement of sale (Ex.P.1), the
possession was delivered;
10,000/- on 02.07.1997 under the agreement of sale and thereafter, he has received 23,698/- and under Ex.P.2, the defendant has received the remaining balance sale consideration amount of `17,400/-;NC: 2024:KHC-D:10642 RSA No. 274 of 2008
vii) In Ex.P.2 there is a recital that prior to the execution of the document, possession was handed over to the plaintiff. But in that document, no date is mentioned on which date the possession was delivered;
viii) Admittedly, there is no signature of the defendant’s wife Gangamma on Ex.P.2, but she was a party to the said document;
ix) PW.1 in the cross-examination has stated that he has purchased two stamp papers of 50/each and 3 stamp papers of 20/- each. He further stated that he had purchased 3 stamps
on 02.07.1997 and 2 stamp papers on 25.05.1997. But, admittedly, no document was executed on 25.05.1997;
x) The evidence of PW.1 and PW.2 are contradictory to each other;
xi) The pleadings, the oral evidence of the plaintiff and witness are not as per the recitals in the alleged agreements marked at Ex.P.1 and Ex.P.2;
xii) No doubt on perusal of the admitted signature of the defendant with the disputed signatures on Ex.P.1 and Ex.P.2, it appears that they are similar. But that aspect itself alone does not suffice to hold that the defendant has executed the alleged agreements marked at Ex.P.1 and Ex.P.2 after knowing the contents of the said documents;
xiii) The evidence of PW.1 and PW.2 with respect to the timing of the execution of the document is contrary to each other;
xiv) The plaintiff has not taken any pain to lead the evidence of other alleged witnesses and the
NC: 2024:KHC-D:10642 RSA No. 274 of 2008
scribe of Ex.P.1 and Ex.P.2 to prove those documents;
xvii) The time fixed for performance under Ex.P.1 i.e., on or before 02.07.1999. So, as per Ex.P.1, time was the essence of the contract. But it is the contention of the plaintiff that on 23.06.1998, the defendant has received `15,0000/- as a part of consideration and again on 21.05.1999, the defendant has received the
- 21 - NC: 2024:KHC-D:10642 RSA No. 274 of 2008
remaining entire consideration amount and executed another document, wherein it was agreed that, the Sale Deed should be executed as and when the plaintiff calls;
xviii) The document marked at Ex.P.3 goes to show that the plaintiff has issued notice to the defendant on 07.10.2004 and the said notice is served on the defendant. This suit is filed on 21.11.2004. So, considering these materials, I hold that, the suit is not barred by limitation. But, the findings given by the Trial Court that the plaintiff has failed to prove the alleged agreements marked at Ex.P.1 and Ex.P.2 is proper and correct.
42,000/- and that he has received an advance of 10,000/- on the saiddate. That the balance sale consideration of 32,400/- was required to be paid on or before 02.07.1999. It is the further case of the plaintiff that, the defendant has received a sum of 15,000/- on 23.06.1998 and the balance consideration has been paid on 21.05.1999, when the defendant has executed another agreement (Ex.P.2). However, as rightly noticed by both the Courts, in Ex.P.2 there is no reference to the earlier agreement (Ex.P.1).
that the defendant has executed the alleged agreements as per Ex.P.1 and Ex.P.2.
- 25 - NC: 2024:KHC-D:10642 RSA No. 274 of 2008
is an interested one as noticed above. Both the Courts have rightly held that the testimony of PW.2 is that of an interested witness and the same cannot be considered while examining whether the plaintiff has proved the agreements.
remaining consideration on 21.05.1999 wherein Ex.P.2 was executed, it is relevant to note that PW.2 has merely stated that the plaintiff has paid the entire sale consideration to the defendant. However, PW.2 has admitted that he does not know the denominations of the payment of the balance sale consideration.
ORDER
i) The above appeal is dismissed .
ii) The judgment and decree dated 11.10.2007 passed in RA No.16/2007 by the Court of the Principal Civil Judge (Senior Division) and JMFC, Hospet, and the judgment and decree dated 16.11.2006 passed in OS No.236/2004 by the Court of the Principal Civil Judge (Junior Division) and JMFC, Hospet, are affirmed.
Sd/JUDGE
PJ CT:GSM List No.: 1 Sl No.: 44
3 issues framed by the court
Whether both Courts below were right in holding that the appellant failed to prove execution of the alleged agreements of sale?
Whether the Courts below were justified in not considering the evidence of the attesting witness in proper perspective?
Whether the suit is barred by law of limitation?
Colour shows how this judgement treated each authority
K.S. Satyanarayana Vs. V.R. Narayana RaoReferred¶72
K.S.Satyanarayana Vs. V.R.Narayana Rao
1 provisions across 1 enactments
SRI L. VENKATESHAPPA S/O OBALESHAPPA
SRI K. GULEPPA S/O K. PAMPANNA
C.M. POONACHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court