Mohammedhanif S/O Makabul Bagwan Vs Abdulgafur S/O. Abdulkhadar Parathanahalli

SHRI ABDULGAFUR S/O ABDULKHADAR PARATHANAHALLI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: JAKANUR ROAD, PARATHANAHALLI GARDEN, JAMAKHANDI-587 301, TQ: JAMAKHANDI, DIST: BAGALKOT.

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… APPELLANT

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(BY SRI VADIRAJA PADAKANDLA, ADVOCATE.)

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AND:

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH 1. SHRI MOHAMMADHANIF Location: HIGH COURT OF S/O MAQABOOL BAGWAN, KARNATAKA DHARWAD BENCH AGE: 57 YEARS, OCC: AGRICULTURE, R/O: NERLI-591 340, TQ: HUKKERI, DIST: BELAGAVI. 2. SHRI AHAMAD S/O MAQABOOL BAGWAN, AGE: 49 YEARS, OCC: AGRICULTURE, R/O: NERLI-591 340, TQ: HUKKERI, DIST: BELAGAVI. 3. SHRI SALEEM S/O MAQABOOL BAGWAN, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: NERLI-591 340, TQ: HUKKERI, DIST: BELAGAVI.

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HC-KAR

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SMT. MASABI W/O MAQABOOL BAGWAN, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O: NERLI-591 340, TQ: HUKKERI, DIST: BELAGAVI. SINCE DECEASED BY HER LR’S.,

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RESPONDENTS NO.1 TO 3 AND 5 TO 7 ARE LEGAL HEIRS OF R4.

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SMT. DILBHAR INAYATULLA BAGWAN, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAGAVI-590 001, TQ: AND DIST: BELAGAVI.

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SMT. JANNATABI W/O SIRAJ BAGWAN, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: NIPPANI-591 114, TQ: CHIKODI, DIST: BELAGAVI.

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SMT. CHANDABI D/O MAQABOOL BAGWAN, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: NERLI-591 340, TQ: HUKKERI, DIST: BELAGAVI.

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… RESPONDENTS

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(BY SMT. P.G.NAIK, ADVOCATE FOR R1-R3 AND R5-R7.)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 02.08.2016 PASSED IN O.S. NO.05/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AT HUKKERI, INSOFAR AS REFUND OF EARNEST MONEY OF RS.3,50,000/- WITH INTEREST AT THE RATE OF 18% P.A. FROM THE DATE OF SUIT TILL ITS REALIZATION BY ALLOWING THIS APPEAL BY PASSING A DECREE FOR SPECIFIC PERFORMANCE OF CONTRACT DIRECTING THE RESPONDENTS TO EXECUTE REGISTERED SALE DEED IN FAVOUR OF APPELLANT IN RESPECT OF SUIT LAND BY RECEIVING THE BALANCE CONSIDERATION AMOUNT OF RS.7,25,000/- FROM THE APPELLANT AND ETC.,.

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HC-KAR

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IN RFA CROSS OBJ NO. 100002 OF 2022:

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BETWEEN:

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SHRI MOHAMMEDHANIF S/O MAKABUL BAGWAN, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: NERLI VILLAGE-591 340, TQ: HUKKERI, DIST: BELAGAVI.

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SHRI AHAMAD S/O. MAKABUL BAGWAN, AGE: 53 YEARS, OCC: AGRICULTURE, R/O: NERLI VILLAGE-591 340, TQ: HUKKERI, DIST: BELAGAVI.

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SHRI SALEEM S/O. MAKABUL BAGWAN, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: NERLI VILLAGE-591 340, TQ: HUKKERI, DIST: BELAGAVI.

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SMT. DILBHAR INAYATULLA BAGWAN, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: 2715, KINEKAR GALLI, NIPPANI-591 237, DIST: BELAGAVI.

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SMT. JANNATABI W/O. SIRAJ DONI, AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: 2777, TENGINAKERI GALLI, BELAGAVI-590 001.

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SMT. CHANDABI D/O. MAKABUL BAGWAN, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: NERLI VILLAGE-591 340, TQ: HUKKERI, DIST: BELAGAVI.

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…CROSS OBJECTORS

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(BY SMT. P.G. NAIK, ADVOCATE) AND:

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SHRI ABDULGAFUR S/O. ABDULKHADAR PARATHANAHALLI, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: JAKANUR ROAD, PARATHANAHALLI GARDEN, JAMAKHANDI-587 301, DIST: BAGALKOT. … RESPONDENT

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(BY SRI VADIRAJA PADAKANDLA, ADVOCATE.)

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HC-KAR

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THIS CROSS OBJECTION IN RFA NO.100245/2016 IS FILED UNDER ORDER XLI RULE 22 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 02.08.2016, PASSED IN O.S.NO.05/2012, ON THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI, IN RESPECT OF FINDING ON ISSUE NOS.1 AND 2, AND ETC.,.

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THIS APPEAL AND CROSS OBJECTION COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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The appeal is filed by the plaintiff and cross objection is filed by the defendants challenging the judgment and decree dated 02.08.2016, passed by the Senior Civil Judge, Hukkeri, in O.S.No.5/2012, thereby, the suit for specific performance of contract is dismissed, and decree is granted only for refund of earnest amount.

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Heard the arguments addressed by the learned counsels appearing for respective parties and perused the material placed before the Court.

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For the purpose of convenience and easy

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reference, ranking of the parties is referred to as per their status before the trial Court.

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HC-KAR

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It is the case of plaintiff that the defendants are

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owners of the suit property and have offered for sale intending to give share to plaintiff for total sale consideration amount of Rs.10,75,000/- and the plaintiff has paid earnest amount of Rs.3,50,000/- and executed an agreement of sale on 13.12.2010. Further it is agreed that at the time of registration of sale deed the balance sale consideration amount would be paid. But thereafter the defendants have failed to execute the registered sale deed. Therefore, the plaintiff has got issued legal notice calling upon the defendants to execute the sale deed but the defendants refused to execute the sale deed. Hence,

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the plaintiff was constrained to file a suit for specific performance of contract.

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Upon receipt of summons, the defendants No.1 to 7 have appeared and defendant No.1 has filed the written statement which is adopted by defendants No.2 to 7 and it is defence of the defendants in the written statement that the defendants have not at all executed

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HC-KAR

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any agreement of sale and have never intended to sell the

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land. When the defendants were in need of financial crunch, therefore, approached the plaintiff and availed hand loan of Rs.3,50,000/- from the plaintiff and the document executed for security purpose for hand loan, it was falsely forged into agreement of sale. Therefore, denied the entire case of the plaintiff. Therefore, prays to dismiss the suit.

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Upon pleadings, the trial Court has framed the

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following:

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ISSUES

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Whether the plaintiff proves that the defendant Nos. 1 to 3 and their father Maqabool Bagwan have agreed to sell the suit property in his favour, executed an agreement of sale on 13.12.2010 by receiving an earnest money of Rs.3,50,000/-?

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Whether the plaintiff proves that he is ever ready and willing to perform his part of contract?

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Whether the plaintiff is entitled for alternative relief as sought for?

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HC-KAR

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What order or decree?

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On behalf of plaintiff, the plaintiff No.1 was

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examined as PW.1 and three witnesses as PW.2 to PW.4 and got marked documentary evidence as Exs.P.1 to P.9. On behalf of defendants, defendant No.3 was examined as DW.1 and one witness is examined as DW.2 and got marked documentary evidence as Exs.D.1 and D.2.

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The trial Court has decreed the suit in part by directing defendants No.1 to 3 to pay an amount of Rs.3,50,000/- to the plaintiff along with interest at the rate of 18% p.a. from the date of suit till realization. But the said suit is dismissed for the main relief of specific performance of contract.

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The trial Court assigned reasons while answering issues, holding that the plaintiff proved that defendant Nos.1 to 3 and their father have agreed to sell the suit property by executing an agreement of sale by receiving earnest amount of Rs.3,50,000/- and also

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HC-KAR

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observed that the plaintiff proves that he is ever ready and willing to perform his part of contract, but declined to exercise the power to grant relief of specific performance according to discretion exercised by the Trial Court as per Section 20 of the Specific Relief Act.

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The Trial Court assigned reasons that the suit property is the only land for the livelihood of the defendants and if the decree is passed to sell the land for the plaintiff, then that would deprive the livelihood of the defendants. Therefore, declined to grant relief of specific performance hence decreed the suit for alternative relief as stated above.

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Learned counsel for the appellant/plaintiff argued that the plaintiff proves that defendant Nos.1 to 3 and their father have executed the agreement of sale as per Ex.P-1 and have intended to sell the land. Therefore, the discretion for grant of specific performance ought to have been granted, but not for alternative relief.

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HC-KAR

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Therefore, prays to allow the appeal and dismiss the cross objection.

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Further, argued that the plaintiff has paid substantive part of the amount and execution of agreement is proved therefore, decree for specific relief ought to have been granted. Hence, prays to allow the appeal and dismiss the cross objection.

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On the other hand, learned counsel for the respondents/defendants submitted that the defendants have never executed agreement of sale and whatever agreement of sale-Ex.P-1 is created and concocted one. The defendants have received amount as a financial help from the plaintiff, but never intended to sell the land and have not executed agreement of sale. Therefore, the findings given on issue Nos.1 and 2 given by the Trial Court are perverse. Therefore, justifying the judgment and decree for refunding of earnest amount to the plaintiff, but prays to set aside the findings on issue Nos.1 and 2.

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HC-KAR

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Hence, the cross objection is filed to this effect. Therefore,

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prays to dismiss the appeal and allow the cross objection.

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Upon hearing arguments of both the learned

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counsel appearing for the parties, the following points would arise for my consideration:

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i. Whether, under the facts and circumstances involved in the case, the plaintiff proves that defendant Nos.1 to 3 and their father have executed the agreement of sale dated 13.02.2010 and agreed to sell suit property and receive advance amount of Rs.3,50,000/-?

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ii. Whether, under the facts and circumstances involved in the case, as per Section 20 of the Specific Relief Act, a decree for specific performance to be granted in this case by directing the defendants to receive balance sale consideration amount and to execute registered sale deed?

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HC-KAR

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iii. Whether, the judgment and decree passed by the Trial Court requires interference?

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It is the case of the plaintiff that the defendants

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have executed agreement of sale intending to sell the suit property in favour of plaintiff. Thus, an agreement of sale was executed between the plaintiff and defendants. On the other hand, it is the case of the defendants that defendant Nos.1 to 3 and their father have never executed agreement of sale but have received an amount of Rs.3,50,000/- from the plaintiff as a financial help and whatever alleged agreement of sale is created one as it was converted into as paper given for security purpose.

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When this being the rival claim, Ex.P-1-

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agreement of sale and quite naturally PW-1 stated that regarding execution of agreement of sale. PW-2 and PW-3 are the witnesses who have witnessed the execution of the agreement of sale; there is no rebuttal evidence to negate the execution of agreement of sale. The defendants have

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HC-KAR

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admitted that they have received an amount of Rs.3,50,000/-, as a financial help from the plaintiffs but not in pursuance to transaction of sale of the suit property.

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Upon considering all the evidence on all its preponderance of probabilities, there is no evidence on the defendants’ side as to what was the necessity for the defendants to seek financial help from the plaintiffs. If anybody asks for financial help other than banks and financial institutions, then there must have been some closeness between the lender and lendee. Therefore, under what circumstances, the defendants have received earnest amount of Rs.3,50,000/- is not forthcoming in the evidence.

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It is the case of the plaintiff that defendant Nos.1 to 3 and their father have executed agreement of sale, which is corroborated by the witness of PWs-2 to PW-4. Though, PW-2 is the witness stating that there is no

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talk of conduct of sale transaction and has never executed

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HC-KAR

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Ex.P-1-agreement of sale is proved. In this regard, the

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Trial Court has correctly answered issue No.1 in the affirmative, but there is no evidence that the plaintiff was ever ready and willing to perform his part of contract. Therefore, the plaintiff has failed to prove that he was ever ready and willing to perform his part of contract and to get execution of registered agreement of sale. Accordingly, I answer point No.(i) in the Affirmative.

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Point Nos.(ii) and (iii)

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Section 20 of the Specific Relief Act (before amendment), reads as follows:

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“20. Discretion as to decreeing specific performance.—(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

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(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--

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(a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other

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circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

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(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

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(c) Where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

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(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

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(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.“

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In the present case, the alleged agreement of

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sale was dated 13.12.2010. Section 20 of the Specific Relief Act (before amendment) is a discretionary relief. Just because an agreement of sale is proved and granting of decree is lawful to do so, still the Courts have discretionary power whether to grant or not to grant

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HC-KAR

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decree for specific performance. There are parameters

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that how to exercise discretion as per Section 20 of the Specific Relief Act. Therefore, granting of decree causes unfair advantage over the defendants by the plaintiff would mean a decree for specific performance could not be granted. Further, if there would be hardship in granting decree for specific performance, then also the discretion shall not be exercised for the main relief of specific performance, but order for refund of earnest amount.

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In the present case, the defendants have pleaded that the suit property is the only land for livelihood of them and their family. The defendants are agriculturists by profession. Therefore, if the suit land, which is agricultural land, is sold out to the plaintiff on the guise of decree for specific performance, then there would be more hardship to the defendants than the plaintiff. The plaintiff has failed to prove that the defendants have also some other land for their livelihood; therefore, from the evidence on record, it is proved that the suit schedule land

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is the only land for source of livelihood of the defendants

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and their family members. Therefore, a comparison of hardship arises between the defendants and plaintiff; the plaintiff would be safeguarded by an order of directing to refund of earnest amount with interest that what is ordered by the Trial Court. Also considering the comparative of hardship, the Trial Court is correct in declining grant of specific performance of relief.

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Though execution of agreement of sale is proved, because of the factors that the defendants would be put into more hardship compared to the plaintiff if the land is sold away, the Trial Court has correctly appreciated evidence on record and with all its judicious consciousness has declined to grant main relief of specific performance and accordingly, the Trial Court is justified for refund of earnest amount. Hence, the judgment and decree passed by the Trial Court is justified, which needs no interference. Therefore, both the appeal and cross objection are liable to be dismissed confirming the judgment and decree

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