Smt. Kempamma Vs Smt Subhadramma

1(a) SMT.K.JAYALAKSHMI D/O LATE KEMPAMMA W/O UMENDRA KUMAR AGED ABOUT 59 YEARS R/AT NO.20/1, 3^RD CROSS KALIDASA LAYOUT, SRINAGAR BANGALORE SOUTH BANGALORE – 560 050

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1(b) SMT.PADMAVATHI K. D/O LATE KEMPAMMA W/O LATE HARIPRASAD AGED ABOUT 59 YEARS R/AT NO.21/1/D, 3^RD CROSS KALIDASA LAYOUT, SRINAGAR BANGALORE SOUTH BANGALORE – 560 050

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1(C) SRI.MANJUNATHA K. S/O LATE KEMPAMMA AGED ABOUT 45 YEARS R/AT NO.25, 5^TH B MAIN

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10^TH C CROSS, BEHIND MODI HOSPITAL, NAGAPURA MAHALAKSHMI LAYOUT BANGALORE NORTH BANGALORE – 560 086

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1(d) SMT. K.SARASWATHI D/O LATE KEMPAMMA W/O RAMACHANDRAI AGED ABOUT 47 YEARS R/AT NO.20/1, 3^RD CROSS KALIDASA LAYOUT, SRINAGAR BANGALORE SOUTH BANGALORE – 560 050 … APPELLANTS

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(BY SRI.NAIK N.R., ADV. FOR LRS. OF DECEASED APPELLANT A(a) TO 1(d))

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AND:

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SMT.SUBHADRAMMA W/O H.GOVINDA RAO

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SINCE DECEASED BY HER L.R.’S

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SRI. G. LAKSHMAN

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S/O LATE GOVINDA RAO

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AGED ABOUT 70 YEARS

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SRI.G.SURESH S/O LATE GOVINDA RAO AGED ABOUT 66 YEARS

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SRI.G.BHIMESH S/O LATE GOVINDA RAO AGED ABOUT 63 YEARS

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SMT.G.N.MANI D/O LATE GOVINDA RAO AGED ABOUT 60 YEARS

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SMT.CHAYA D/O LATE GOVINDA RAO AGED ABOUT 57 YEARS

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SRI. DWARAKI S/O LATE GOVINDA RAO AGED ABOUT 55 YEARS

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SRI.JAGANNATH S/O LATE GOVINDA RAO AGED ABOUT 53 YEARS

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SRI.SHANTHARAJU S/O LATE GOVINDA RAO AGED ABOUT 50 YEARS

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ALL ARE R/AT NARASIMHASWAMY NILAYA, HOUSE NO.20/1, NO.5 3^RD CROSS, KALIDASA LAYOUT SRINAGAR, BENGALURU – 560 050

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SRI.SRINIVASA MURTHY S/O H.V.SUBBA RAO R/AT NO.642, GODAVARINADI ROAD 5^TH MAIN ROAD, PIPELINE SRINAGAR, BENGALURU – 560 050 …RESPONDENTS

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(BY SRI.PRADEEP H.S., ADV. FOR R1; R2-R8 IS SERVED AND UNREPRESENTED; R9 SERVICE HELD SUFFICIENT VIDE ORDER DATED 13.03.2024)

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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 10.01.2020 PASSED IN OS.NO.6838/2006 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 07.07.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE S RACHAIAH

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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The suit was filed by the plaintiff Smt.Kempamma seeking for the relief of specific performance and for permanent injunction based on the unregistered sale agreement dated 26.05.1991. The suit came to be dismissed. As against the said impugned judgment and decree, the plaintiff is before this Court seeking relief of setting aside the judgment and decree passed by the Trial Court.

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The ranks of the parties henceforth will be considered as per their rankings before the Trial Court, for convenience.

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Factual matrix of the case:

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It is the case of the plaintiff that defendant No.1 is the absolute owner of the suit schedule property bearing site No.10 formed out of Sy.No.20/1, Division No.31, Gavipura Village, Bengaluru. The husband of defendant No.1 formed sites in the land bearing Sy.No.20/1. The

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defendant No.2 is the GPA holder of defendant No.1. Defendant No.2 on behalf of defendant No.1 as a GPA holder, entered into a sale agreement with the plaintiff on 26.05.1991 for a sale consideration of Rs.1,71,000/-. On the same day, the defendant No.2 had received a sum of Rs.70,000/- by way of cheque. The remaining balance had to be paid within 90 days from 26.05.1991. On the date of its execution, the plaintiff was handed over copy of the power of attorney and a receipt for having paid the amount to defendant No.2.

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On 01.09.1991, the defendant No.2 had received a sum of Rs.25,000/by endorsing the agreement. On 22.09.1991, the defendant No.2 had received a sum of Rs.25,000/- by a cheque on executing an endorsement. On 11.09.1991, on the request of the defendants, the plaintiff paid a sum of Rs.48,000/- through cheque and endorsements were executed in the presence of witnesses, namely, Venkategowda, Suryanarayana Rao and Krishnappa. On the same day, the property was delivered to the plaintiff. During 1991, as there was a

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restriction for the registration of revenue sites, the

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defendants had failed to execute the sale deed.

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In the year 2006, the children of defendant No.1 tried to dispossess the plaintiff from the suit schedule property stating that defendant No.1 had executed a gift deed in favour of G.Lakshman on 07.03.2006. Further, contended that defendant No.1 had never executed any GPA or any other documents to substantiate the sale agreement. Therefore, the plaintiff filed a suit seeking for specific performance.

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Heard Sri.Naik N.R, learned counsel for the appellants and Sri.Pradeep.H, learned counsel for the respondent No.1.

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SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANTS

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Sri.Naik N.R, learned counsel for the appellants submitted that the judgment and decree passed by the Trial Court is opposed to the law, facts, materials and probabilities of the case. Therefore, the same has to be set aside.

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It is further submitted that the plaintiff had produced 54 documents and got them marked as Exs.P1 to P54. The original agreement of sale, water bills, electricity bills, post office passbook and other relevant documents, including gas connection bills were produced to demonstrate that the plaintiff is in possession of the suit schedule property from 11.11.1991.

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It is further submitted that the substantial amount has been paid and took the possession of the property, however, due to the order of the Government, there was no registration for revenue sites and they did not get the sale deed executed. Therefore, the delay had been occurred in filing the suit for specific performance. The plaintiff had paid a substantial amount towards the sale agreement and the remaining balance of Rs.3,150/- had to be paid at the time of registration. Therefore, it cannot be held that the delay has been caused in filing the suit. Hence, the appeal has to be allowed by setting aside the judgment and decree. Making such submissions, learned counsel for the appellants prays to allow the appeal.

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SUBMISSIONS OF LEARNED COUNSEL FOR RESPONDENT NO.1

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Sri.Pradeep.H, learned counsel for respondent No.1 justified the findings of the Trial Court in rejecting the suit of the plaintiff and further submitted that, assuming that the said agreement has been executed by defendant No.2, the fact remains that, the time stipulated in the agreement for the purpose of getting the sale deed executed was three months from the date of said agreement. However, the plaintiff had never issued notice to the defendants seeking for execution of the sale deed.

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It is further submitted that the plaintiff had to establish that she was ready and willing to perform her part of the contract. The agreement dated 26.05.1991 and the possession stated to have taken place on 11.11.1991. Whereas the suit came to be filed for specific performance on 29.07.2006. Such being the fact, the plaintiff is not only entitled for dismissal of the plaint, and also had to pay mense profits.

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It is further submitted that the defendant No.2 had not produced any documents to show that he had authorized to execute the sale agreement. Therefore, the alleged sale agreement has been rightly dealt with by the Trial Court. Hence, it is not appropriate to interfere with the said findings. Making such submissions, learned counsel for the respondent No.1 prays to dismiss the appeal.

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Having heard the learned counsel for parties and also perused the findings of the Trial Court, the points which arise for my consideration are:

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i) Whether the appellants /plaintiff proves that the sale agreement dated 26.05.1991 has been executed by the person who is competent to execute the same?

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ii) Whether the findings of the Trial Court in dismissing the suit is justified?

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iii) What order?

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As regards point No.1 is concerned, the plaintiff had entered into an agreement with defendant No.2 on 26.05.1991 for sale consideration of Rs.1,71,000/-. The said defendant No.2 was GPA holder of defendant No.1. Further, the plaintiff submitted that she had taken the

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possession of the property on 11.11.1991 by way of endorsement of possession of the suit property. The defendant No.2 though has appeared in person, had not chosen to contest the suit. The defendant No.1 filed her written statement denying the execution of sale agreement in favour of the plaintiff and about the receipt of sale consideration as contended in the plaint. Further, the defendant No.1 contended that she had not executed GPA in favour of defendant No.2.

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In this context, it is appropriate to mention that whether the plaintiff has proved that the defendant No.2 had valid right over the property to execute the sale agreement. In fact, the GPA allegedly executed by defendant No.1 in favour of defendant No.2 has not been produced. However, in the cross-examination of D.W.1, the photocopy of general power of attorney had been confronted. The signature of the said document has been admitted and also identified the said signature. Therefore, the signature on the said document has been marked as Ex.P54(a).

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On conjoint reading of Ex.P54 and Ex.P2, the defendant No.2 had no authority or title to execute Ex.P2 in favour of the plaintiff. In fact, the plaintiff has neither produced GPA nor the receipts for having paid the part of sale consideration. Therefore, I am of the considered opinion that the findings of the Trial Court that defendant No.2 had no title or authority to execute the sale agreement has to be upheld.

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Even assuming that, the defendant No.2 had executed the sale agreement is proper, the plaintiff has not proved that, she was ready and willing to perform part of her contract, which is essential ingredients to get the order of specific performance.

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In this context, it is appropriate to refer the judgment of the Hon'ble Supreme Court in the case of VIJAY KUMAR AND OTHERS V. OM PRAKASH¹ wherein the Hon'ble Supreme Court held that the plaintiff has to prove his readiness and willingness to perform his part of contract throughout and has to establish by the plaintiff.

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1 AIR 2018 SC 5098

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18(a). On careful reading of the dictum of the Hon'ble Supreme

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Court, it makes it clear that the plaintiff has to prove the readiness and willingness to perform the contract. In the present case, no attempts have been made to bring the suit within the stipulated time to substantiate the readiness and willingness. Hence, the suit of the plaintiff deserves to be dismissed. Hence, the point No.1 is justified.

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In addition to the above said proposition of law, it is appropriate at this stage to refer the Article 54 of the Limitation Act, which read thus:

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Description of suit	Period of Limitation	Time from which period begins to run
		The date fixed for the
For specific performance of a contract	Three years	performance, or, if no such date is fixed, when the plaintiff has notice
		that performance is refused.

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On reading of the above said provision, it makes it clear that, in a case of an agreement of sale relating to immovable property, the limitation begins to run from the date fixed for performance. In the present case, three

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months time was fixed from the date of execution of the alleged agreement of sale, however, the suit has been filed on 29.07.2006, which is beyond the period of limitation. Therefore, the appeal has to be dismissed on that ground. Merely because, the plaintiff is in possession of the property by virtue to Ex.P2 that does not mean that she is the owner of the property and part performance has to be upheld. In the present case, since the plaintiffs are stated to be in possession of the property by virtue of sale agreement, now, they have to vacate the premises as the sale agreement is held to be void and the relief sought for is barred by limitation. Further, the plaintiffs had never showed readiness and willingness, which is sine-qua-non for the relief under specific performance. Therefore, a separate suit for possession is not required to be filed in such a case. If suitable order is passed by this Court in order to minimize the litigation, the Court can mould the relief. If it is in consonance with the written statement of the defendants. Hence, I am of the considered opinion that the point No.(ii) has to be answered in the affirmative.

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In the light of the observations made above, the points

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which arose for my consideration are answered as:

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Point No.(i) in the “ Negative ”

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Point No.(ii) in the “ Affirmative ”

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Point No.(iii) “as per final order”.

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Hence, I proceed to pass the following:

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ORDER

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i) The appeal stands dismissed.

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ii) The Registry is directed to send the Trial Court records to the Trial Court forthwith.

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iii) In case, if the Court fee is paid in respect of possession of the property, the relief of possession may be granted without insisting to file separate suit.

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iv) It is directed the plaintiff to vacate the premises within a period of six months from the date of receipt of certified copy of this judgment.

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v) In case, if the plaintiff has not vacated the premises, the defendant – Lakshman is entitled to file execution for taking necessary action for possession of the property.

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Sd/(S RACHAIAH) JUDGE

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UN

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List No.: 3 Sl No.: 3

Smt. Kempamma v. Smt Subhadramma

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Smt. Kempamma v. Smt Subhadramma

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