P Mastan Sab S/O Khasim Sab Vs Smt Gouramma W/O Rudraiah Swamy

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, 1908 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED PRL. SENIOR CIVIL JUDGE AND CJM, BALLARI IN R.A.NO.06/2020 DATED 01.12.2022 & THE JUDGMENT AND DECREE PASSED BY THE III ADDITIONAL CIVIL JUDGE AND J.M.F.C, BALLARI, DATED 21.11.2019, PASSED IN O.S. NO.592/2011 AS IT IS ILLEGAL AND DECREED THE SUIT OF THE PLAINTIFF AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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This appeal is preferred by the defendant

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challenging the judgment and decree dated 01.12.2022 in R.A.No.6/2020 on the file of the Principal Senior Civil Judge and CJM at Ballari¹ dismissing the appeal and confirming the judgment and decree dated 21.11.2019 in O.S.No.592/2011 on the file of the III Additional Civil Judge and JMFC at Ballari² decreeing the suit of the plaintiff.

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For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

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It is the case of the plaintiff that the defendant

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is the absolute owner of the suit schedule property and the defendant offered to sell the suit schedule property for a total sale consideration of a sum of Rs.5,00,000/- and as such, the plaintiff has paid Rs.4,90,000/- towards advance amount and agreed to pay balance sale consideration of

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1 hereinafter referred to as ‘First Appellate Court’

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2 hereinafter referred to as ‘Trial Court’

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Rs.10,000/- as on the date of execution of registered sale

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deed. In these terms, a registered agreement of sale dated 02.12.2008 was entered into between the plaintiff and defendant. It is also stated in the plaint that the plaintiff was ready and willing to perform his part of contract, however, the defendant has postponed execution of the registered sale deed and as such the plaintiff caused legal notice dated 23.06.2011, calling upon the defendant to perform his part of obligation to complete the registered sale deed. However, the said notice was not replied by the defendant. Hence, the plaintiff filed O.S.No.592/2011 before the Trial Court seeking relief of specific performance of contract.

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On service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the contention of the defendant that the agreement of sale is forged and concocted document to file the present suit. It is also contended by the defendant that, there was no free will or

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consent for execution of the registered agreement of sale and accordingly sought for dismissal of the suit. It is also stated in the written statement that the defendant married one Smt.Beebi 13 years back and in their wedlock two children were born and there is family dispute between the defendant and his wife - Smt.Beebi. It is also stated that, he has voluntarily executed an agreement in favour of his wife on 25.07.2007 and accordingly sought for dismissal of the suit.

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The Trial Court based on the pleadings on

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record, has framed issues and additional issues for its consideration. In order to establish their case, the plaintiff has examined three witnesses as PW.1 to PW.3 and produced 5 documents and same were marked as Exs.P.1 to P.5. On the other hand, the defendant has examined four witnesses as DW.1 to DW.4 and got marked 11 documents as Exs.D.1 to D.11.

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The Trial Court after considering the material on record, by its judgment and decree dated 21.11.2019

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decreed the suit and as such directed the defendant to execute the registered sale deed in favour of the plaintiff. Feeling aggrieved by the same, the defendant has preferred R.A.No.6/2020 on the file of the First Appellate Court and same was contested by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 01.12.2022, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.592/2011. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal.

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I have heard Sri.Narayan V Yaji, learned

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counsel appearing for the appellant and Sri.Ganapati M Bhat, learned counsel appearing for the respondent caveator.

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Sri.Narayan V Yaji, learned counsel appearing for the appellant argued that there was an agreement on 18.01.2008 and the property in question was the subject matter in the said agreement between the respondent and

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his wife and same was ignored by both the Courts below and accordingly sought for interference of this Court. It is also argued by the learned counsel appearing for the appellant that mere issuance of legal notice is not enough to prove the readiness and willingness on the part of the plaintiff to pay the balance consideration and therefore sought for interference of this Court.

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Per contra, Sri.Ganapati M Bhat, learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by both the Courts below.

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Having heard the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. It is not in dispute that the plaintiff has entered into a registered agreement of sale dated 02.12.2008 (Ex.P.1), in respect of the suit schedule property, agreeing to purchase the suit schedule property for a sum of Rs.5,00,000/- and in this regard, plaintiff has paid Rs.4,90,000/- as advance amount to the defendant.

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It is also not in dispute that the balance sale consideration is Rs.10,000/- only. The plaintiff has caused legal notice dated 23.06.2011 (Ex.P.3) calling upon the defendant to execute the registered sale deed, however, same was not replied by the defendant, and therefore having taken note of the judgment of the Hon’ble Supreme Court in the case of C.S.Venkatesh vs A.S.C.Murthy (D) By Lrs reported in (2020) 3 SCC 280, I am of the view that as the plaintiff has caused legal notice as per Ex.P.3 and conveyed to the defendant to execute the registered sale deed, however, the defendant has not replied to the said notice makes it clear that the plaintiff was ever ready and willing to conclude the registration of the sale deed as required under Section 16(c) of the Specific Relief Act.

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Insofar as the submission made by the learned

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counsel appearing for the appellant with regard to due execution of the agreement of sale, the plaintiff has examined PW.2 and PW.3 who were the witnesses to the registered agreement of sale, have deposed about the

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execution of the registered agreement of sale. In that view of the matter, taking into consideration that the plaintiff has completed his part of obligation and on the other hand, the defendant has not only failed to reply to the legal notice issued at Ex.P.3, however, taken up a plea in the written statement that the registered agreement of sale itself is forged and therefore the said contention cannot be accepted in view of the judgment of the Hon’ble Supreme Court referred to above.

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Insofar as the submission made by the learned counsel appearing for the appellant relating to agreement between the defendant and his wife, however, the said petition was compromised as per Ex.D.9 and also it is forthcoming from the finding recorded by the Courts below that the defendant in order to defeat the right of the plaintiff has filed a suit against his wife urging false grounds and same was compromised as per Ex.D.9.

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In that view of the matter, taking into consideration the finding recorded by both the Courts

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below, I am of the view that as the plaintiff has paid more than 95% of the sale consideration amount as on the date

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of the execution of the registered agreement of sale and therefore, the finding recorded by both the Courts below requires to be confirmed in this appeal as the appellant herein has not made out a case for formulation of substantial question of law as required under Section 100 of CPC.

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Accordingly, the appeal is dismissed.

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Sd/(E.S.INDIRESH) JUDGE

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SH CT-MCK List No.: 1 Sl No.: 28

P Mastan Sab S/O Khasim Sab v. Smt Gouramma W/O Rudraiah Swamy

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P Mastan Sab S/O Khasim Sab v. Smt Gouramma W/O Rudraiah Swamy

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