Mudakanagouda Patil S/O Shidlingagouda Vs Sadashivanand Dandin S/O Kashappa

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NC: 2025:KHC-D:7716 RSA No. 100448 of 2020

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16^TH DAY OF JUNE 2025

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BEFORE

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THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100448 OF 2020 (SP)

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BETWEEN:

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MUDAKANAGOUDA S/O. SHIDLINGAGOUDA PATIL, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: KALAKARI-, TQ: MUNDARAGI, DIST: GADAG.

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…APPELLANT

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(BY SRI. C.S. SHETTAR, ADVOCATE)

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AND:

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SADASHIVANAND S/O. KASHAPPA DANDIN, AGE: 50 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: KALASAPUR ROAD, GADAG – 582 101.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

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RAMESH S/O. RANGAPPA KURTAKOTI, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: VAKKALAGERI ONI, GADAG – 583 101.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER 42 RULE 1 OF CODE OF CIVIL PROCEDURE PRAYING TO ADMIT THE APPEAL AND CALL FOR THE RECORDS OF THE COURTS BELOW AND ALLOW THE APPEAL SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.12/2015 DATED 18.02.2020 PASSED BY I ADDITIONAL PRINCIPAL FAMILY COURT, GADAG AND CONFIRMING THE JUDGMENT AND DECREE PASSED BY LEARNED PRL. SENIOR CIVIL JUDGE AND CJM, GADAG IN O.S.NO.49/2007 DATED

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NC: 2025:KHC-D:7716 RSA No. 100448 of 2020

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14.01.2015. AND THEREBY DISMISS THE SUIT OF THE PLAINTIFF AND ETC.,

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is by defendant No.2 aggrieved by the judgment and decree dated 14.01.2015 in O.S.No.49/2007 on the file of Principal Senior Civil Judge and CJM, Gadag (for short, ‘Trial Court’) by which the suit filed by the plaintiff/respondent No.1 herein for relief of specific performance of contract was decreed directing defendant No.1 herein to receive the balance sale consideration of Rs.1,00,000/- and to execute a registered deed of sale in favour of the plaintiff pursuant to the agreement of sale dated 24.09.2004 which is confirmed by

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the judgment and decree dated 18.02.2020 passed in R.A.No.12/2015 on the file of the I Additional Principal Family Court, Gadag (for short, ‘First Appellate Court’).

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NC: 2025:KHC-D:7716 RSA No. 100448 of 2020

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The above suit in O.S.No.49/2007 is filed by the

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plaintiff/respondent No.1 herein seeking relief for specific performance of contract contending inter alia ; (a) that defendant No.1 representing himself to be absolute owner of the suit schedule properties namely land bearing Sy.No.12/2A measuring 14 guntas and Sy.No.12/2B measuring 34 guntas had executed registered agreement of sale agreeing to sell the same in favour of the plaintiff for a total sale consideration of Rs.2,10,000/-,

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(b)Plaintiff having agreed to purchase the property

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had paid a sum of Rs.2,00,000/- towards the sale consideration and had agreed to obtain registered deed of sale by paying the balance sale consideration of Rs.10,000/-,

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(c) That name of the plaintiff was entered in the

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records of rights in respect of the suit properties vide MR No.70 C.E. No.5790 dated 11.04.2005 soon after the registration of the agreement of sale.

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(d) Defendant No.1 who had promised to execute

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the sale deed, protracted the matter on one or the other pretext. Plaintiff caused issuance of notice dated 12.12.2006 calling upon the defendant to execute the deed of sale by receiving the balance of Rs.10,000/- and had also personally visited the defendant No.1 who avoided performance of the contract.

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(e) That despite there being a registered sale agreement and the name of the plaintiff has been reflected in the revenue records, defendant No.2 in collusion with defendant No.1 created a false deed of sale in respect of suit properties in the name of defendant No.2, which is not binding on the plaintiff. That said execution deed of sale is only to deny the rightful entitlement of the plaintiff, hence the suit.

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Defendant No.1 filed written statement denying

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the execution of agreement of sale in favour of the plaintiff and further contended that defendant No.2 is a bona fide purchaser for value without the knowledge of earlier

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NC: 2025:KHC-D:7716 RSA No. 100448 of 2020

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agreement of sale. There was no obligation on defendant No.1 to execute deed of sale as sought for by the plaintiff, as there was no agreement at all. That unless and until the sale deed executed in favour of defendant No.2 was cancelled, the plaintiff could not seek for specific performance of the alleged agreement, hence sought for dismissal of the suit.

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Defendant No.2 filed written statement

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contending that defendant No.1 executed the deed of sale in his favour to meet his family necessity conveying of the suit properties for a total consideration of Rs.2,00,000/by executing sale deed dated 01.06.2006 based on which the name of defendant No.2 has been entered into the revenue records. He further contended that he is in possession of the suit properties. The defendant No.1 had also filed suit in OS No.18/2010 which was dismissed. Hence, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues:

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1. Whether the plaintiff proves that defendant N o.1 agreed to sell suit properties for Rs.2,10,000/-?

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2. Whether plaintiff proves that defendant No.1 received earnest money of Rs.2,00,000/and executed a registered sale deed dated 24.09.2004?

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3. Whether plaintiff proves that defendants No.1 and 2 have colluded and executed a false and bogus sale deed dated 01.06.2006?

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4. Whether plaintiff is ever ready to perform his part of contract?

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5. Whether defendants prove that defendant No.2 is bonafide purchaser for value, without knowledge of earlier agreement?

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6. Whether suit in this present form is not maintainable as stated in para 17 of W.S.?

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7. Whether suit is barred by time?

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8. Whether Court Fee paid is correct and proper?

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9. Whether plaintiff is entitled to the relief of Specific Performance?

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10. Whether plaintiff is entitled for alternative relief for refund of earnest money?

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11. Whether plaintiff is entitled for relief of declaration?

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Additional issue:

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1. Whether defendant No.2 prove that defendant No.1 by receiving sale consideration from him and paid to the plaintiff as pleaded in para 10 of his W.S.?

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6. Plaintiff examined himself as PW1 and produced

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10 documents marked at Ex.P1 to P.10. No evidence has been laid on behalf of the defendants. On appreciation of evidence, the Trial Court answered issue Nos.1, 2, 4, 8, 9 and 11 in the affirmative and the remaining issues in the negative and consequently, decreed the suit. Being aggrieved by the same, the defendant No.2 filed regular appeal in RA No.12/2015 on the file of First Appellate Court. On consideration of the grounds urged, the First Appellate Court framed the following points for its consideration:

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1. Whether the documents produced by the appellant under I.A.2 and 3 are material for the purpose of the above case?

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2. Whether the appellant proves that he is bonafide purchaser of the suit schedule property?

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3. Whether the appellant further proves that judgment and decree passed by the trial court in favour of the plaintiff is perverse and capricious?

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4. Whether the judgment and decree of the trial court calls for interference by the hands of this court?

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5. What order or decree?

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On re-appreciation of the evidence, the First

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Appellate Court answered the point Nos.1, to 4 in the negative and consequently, dismissed the appeal by confirming the judgment and decree passed the Trial Court. Being aggrieved by the same, defendant No.2 is before this Court.

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Sri. C. S. Shettar, learned counsel appearing for the appellant reiterating the grounds urged in the memorandum of appeal submits that the Trial Court without providing sufficient opportunity to the defendants to examine and lead evidence in justification of their claim, has proceeded to pass the judgment and decree in the suit. Even the First Appellate Court without considering the request of the defendant No.2 to lead additional evidence, rejected the appeal depriving the right of being heard to the defendant No.2.

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8.1. He further submits that the Trial Court and the First Appellate Court have not taken into consideration that the plaintiff was required to prove his readiness and

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willingness to perform the contract and merely because a meager sum of Rs.10,000/- was outstanding to be paid, the Trial Court and the First Appellate Court have over looked statutory requirement of proof of readiness and willingness. If the defendants were given opportunity to lead evidence, the matter would have gone against the plaintiff.

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8.2. He further submits that the Trial Court and the

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First Appellate Court have committed illegality in decreeing the suit of this nature without affording opportunity to the

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defendant No.2 to justify his claim over the property resulting in perversity in the judgments impugned giving rise to substantial question of law.

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9. Heard and perused the records.

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The plaintiff claims his right to seek relief for Specific Performance based on a registered agreement of sale dated 24.09.2004 by which the defendant No.1 had agreed to convey the suit property in favour of the plaintiff for a total consideration of Rs.2,10,000/-. The payment

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and receipt of Rs.2,00,000/- is reflected in the said

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agreement, balance payable was only Rs.10,000/-.

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Though in the written statement defendant No.1 has denied the execution of agreement; evidence of

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the plaintiff has remained unchallenged. Since the agreement is registered it was incumbent upon the defendant No.1 to have rebutted the presumption regarding the correctness of contents of the registered document or with regard to the allegation of the same having been brought up by illegal means. Both not having been done by the defendant No.1, as rightly taken note of

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by the First Appellate Court the execution of the agreement of sale in question stands proved with the contents thereof remaining unchallenged.

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The defendant No.2 claims to have purchased

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the suit properties in terms of deed of sale dated 01.06.2006. The sale consideration shown is

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Rs.2,00,000/- which is lesser than the sale consideration agreed to be paid by the plaintiff.

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Granting relief of Specific Performances is an equitable relief. No plea of hardship is taken. In the absence of defendant No.1 disproving either the execution of agreement, or the receipt of Rs.2,00,000/- and the agreement of the plaintiff which was executed and registered prior in time than the purported deed of sale by defendant No.1 in favour of defendant No.2, the Trial Court and the First Appellate Court have arrived just and proper conclusion of decreeing the suit in favour of the plaintiff and the same therefore, cannot be found fault with.

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As regards the submission of defendants not being provided with sufficient opportunity, it is seen that the Trial Court after the completion of plaintiff’s evidence closed the matter on 04.12.2014 and posted for evidence of defendants on 06.12.2014. Again on 06.12.2014 certain applications came to be filed by the plaintiff seeking production of additional documents which were allowed upon no objection indicated by the learned counsel for the

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defendants. Thereafter, upon the request made by the parties, matter was referred to Lok Adalath on 09.12.2014 for settlement, if any, and since settlement could not be arrived, the matter was referred back to the Court. Thereafter, matter was called on 09.12.2014 for evidence of the defendants and again thereafter, on 10.12.2014, 12.01.2015 and 13.01.2015. The Trial Court taking note of the absence on the part of the defendants in examining themselves proceeded to pass the judgment and decree as prayed for.

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In the light of the aforesaid developments, it cannot be said that the defendant were not given sufficient opportunity in the matter. Even the defendant No.2 who claims to purchase the property and being a bonafide purchaser has not been diligent in prosecuting the matter. Notwithstanding the same, no substantial question of law would arise for consideration. Therefore, the appeal is dismissed.

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