Shri. Bhimaraddi S/O. Krishnaraddi Kurtakoti Vs Sri. Mustaq S/O. Rehman Daragad

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NC: 2025:KHC-D:5071 RSA No. 100639 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19^TH DAY OF MARCH, 2025 BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100639 OF 2022 (SP-)

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BETWEEN:

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SHRI. BHIMARADDI S/O. KRISHNARADDI KURTAKOTI, AGE: 65 YEARS, OCC: BUSINESS, R/O. REDDY COLONY, SARSWATPUR, DHARWAD-580002.

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&APPELLANT

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(BY SRI. ANOOP G. DESHPANDE, ADVOCATE)

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AND:

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SRI. MUSTAQ S/O. REHMAN DARAGAD, AGE: MAJOR, OCC: BUSINESS, R/O. MARADAGI, TQ: DHARWAD-580112.

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SRI. USUFF S/O. REHMAN DARAGAD, AGE: MAJOR, OCC: BUSINESS, R/O. MARADAGI, TQ: DHARWAD-580112.

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 15:55:19 +0530

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SRI. HUSSEIN S/O. REHMAN DARAGAD, AGE: MAJOR, OCC: BUSINESS, R/O. MARADAGI, TQ: DHARWAD-580112. NOW RESIDING AT SHIVAGIRI MAIN ROAD, DHARWAD.

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(BY SRI. K.L. PATIL, ADVOCATE FOR C/R1)

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&RESPONDENTS

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 23.01.2018 PASSED BY THE I-ADDITIONAL SENIOR CIVIL JUDGE, DHARWAD IN O.S. NO.167/2009 AND THE PRINCIPAL DISTRICT JUDGE, DHARWAD DATED 11.02.2021 IN R.A.NO.40/2018 WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

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NC: 2025:KHC-D:5071 RSA No. 100639 of 2022

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

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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 plaintiff assailing the judgement and decree dated 11.02.2021 in R.A.No.40/2018 passed by the Principal District Judge, Dharwad (for short <the First Appellate Court=) dismissing the appeal with costs and confirming the judgment and decree dated 23.01.2018 in O.S.No.167/2009 passed by the I-Additional Senior Civil Judge and CJM, Dharwad (for short <the Trial Court=) dismissing the suit of the plaintiff.

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For the sake of convenience, the parties are

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referred as per their rank before the Trial Court.

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The plaint averments in nutshell are that the plaintiff and defendants have together purchased the suit property for a consideration of ¹5,00,000/- and in this connection, registration of the sale deed was made in the name of the defendants. It is also averred in the plaint that there was

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an agreement between the plaintiff and the defendants to convert the land for non-agricultural purpose and the object of purchasing the suit schedule property was to form plots in the suit schedule property. It is the case of the plaintiff that the defendants were unable to spend money for remaining development work and as such, the plaintiff and defendants have valued the suit schedule property at ¹6,25,000/-, out of which as the plaintiff has already paid ¹5,00,000/- to the defendants at the time of purchase of the suit schedule property and as such the defendants have executed an agreement of sale dated 30.05.2007 intending to sell the suit property in favour of the plaintiff after receiving ¹1,00,000/- by way of part consideration of amount as well as the remaining amount of ¹25,000/- at the time of registration of the sale deed. It is also stated in the plaint that the defendants have refused to execute registered sale deed in favour of the plaintiff pursuant to the execution of agreement of sale dated 30.05.2007. Hence, the plaintiff filed O.S.No.167/2009 before the Trial Court seeking relief of specific performance of agreement.

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3.1. After service of notice, the defendants entered appearance and filed detailed written statement denying execution of agreement of sale. It is the specific case of the defendants that the defendants have purchased the suit schedule property from their own funds as per the registered sale deed dated 09.05.2005 and the plaintiff is only an attesting witness to the registered sale deed and therefore, denied the averments made in the plaint. It is also the case of the defendants that the plaintiff is no way concerned to the suit schedule property. Hence, sought for dismissal of the suit.

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3.2. The Trial Court, based on the pleadings of the parties, formulated issues for its consideration. In order to establish their case, the plaintiff himself was examined as PW1 and got marked 7 documents as Ex.P1 to Ex.P7. The defendants have examined one witness as DW1 and got marked 12 documents as Ex.D1 to Ex.D12.

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3.3. The Trial Court, after considering the material on record, by its judgment and decree dated 23.01.2018 dismissed the suit and feeling aggrieved by the same, the plaintiff filed R.A.No.40/2018 before the First Appellate Court

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and same was resisted by the defendants. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 11.02.2021 dismissed the appeal with costs and confirmed the judgment and decree in O.S.No.167/2009. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal.

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I have heard Sri. Anoop G Deshpande, learned counsel appearing for the appellant and Sri. K. L. Patil, learned counsel appearing for the caveator-respondent.

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Sri. Anoop G Deshpande, learned counsel appearing for the appellant, contended that the consideration with regard to purchase of suit schedule property was paid by the plaintiff and same is reflected in the sale deed with respect to the transfer of amount from the account of the plaintiff as per Ex.P7 and the said aspect of the matter was not considered by both the Courts below and accordingly, sought for interference of this Court. He also refers to the agreement of sale dated 30.05.2007 and submitted that the total sale consideration amount to an extent of ¹6,25,000/- was fixed and thereby after deducting ¹5,00,000/-, which has already been paid to the

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defendants, the plaintiff has paid ¹1,00,000/- to the defendants as advance and remaining sale consideration amount is only ¹25,000/-, which has to be payable at the time of the registration of the sale deed and therefore, he sought for interference of this Court stating that both the Courts below have ignored the factual aspects on record.

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Per contra, Sri. K. L. Patil, learned counsel appearing for the caveator-respondent, sought to justify the impugned judgment and decree and further contended that the plaintiff has not proved the agreement of sale dated 30.05.2007 by examining the witnesses/attesters to Ex.P2. It is also contended by the learned counsel appearing for the respondents that both the Courts below, after considering the entire material on record, have concurrently held against the plaintiff and therefore, no interference is called for in this appeal.

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Sri. K. L. Patil, learned counsel appearing for the respondent No.1 has produced a copy of Ex.P2 and refers to the recitals in the document and submitted that nothing has been paid by the plaintiff to the defendants to purchase the suit

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schedule property and that apart, no notice has been issued to prove the readiness and willingness, which is essential ingredient to prove in a suit for specific performance and therefore, sought for dismissal of the appeal.

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In the light of the submissions made by the learned counsel appearing for the parties, the essential document to consider whether the specific relief of agreement has to be accepted as per Ex.P2-Agreement of Sale dated 30.05.2007. It is not in dispute that the defendants have purchased the suit schedule property as per the registered sale deed dated 09.05.2005 from their vendors. Undisputedly, the plaintiff is not purchaser of the suit schedule property and he is only a witness to the said registered sale deed dated 09.05.2005. I have carefully examined the sale agreement dated 30.05.2007 wherein the recital in the agreement of sale reads as under:

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<¥Ánð £ÀA.1 ªÀÄvÀÄÛ 2 £ÉÃzÀªÀgÀÄ M¦àUÉ ªÉÄÃgÉUÉ RjÃ¢ d«ÄÃ¤£À QªÀÄävÀÄÛ 6,25,000=00 (gÀÆ¥Á¬Ä DgÀÄ ®PÀë E¥ÀàvÉÊÛzÀÄ ¸Á«gÀ gÀÆ¥Á¬Ä) UÀ½UÉ PÀgÁgÀ ªÀåªÀºÁgÀªÁVzÀÄÝ, ¸ÀzÀgÀ gÀPÀA ¥ÉÊQ gÀÆ¥Á¬Ä 5,00,000-00 (LzÀÄ ®PÀë gÀÆ¥Á¬Ä) £ÁªÀÅ RjÃ¢¸ÀÄªÀ PÁ®PÉÌ ªÀÄÄnÖ¸ÀÄvÉÛÃªÉ.

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F d«ÄÃ¤£À RjÃ¢ ¨Á§vÀÄÛ G½zÀ gÀÆ. 1,25,000=00 (gÀÆ¥Á¬Ä, MAzÀÄ ®PÀë E¥ÀàvÉÊÛzÀÄ ¸Á«gÀ) UÀ¼À£ÀÄß ¥Ánð £ÀA. 2£ÉÃzÀªÀgÀÄ ¥ÀqÉzÀÄPÉÆAqÀÄ ¥Ánð £ÀA. 1 £ÉÃzÀªÀgÀÄ PÀgÉzÁUÀ zsÁgÀªÁqÀ »jAiÀÄ G¥À£ÉÆÃAzÀtÂ PÀZÉÃjAiÀÄ°è ¥ÀPÁÌ RjÃ¢ £ÉÆÃAzÀªÀiÁrPÉÆqÀÄªÀ PÀgÁgÀÄ DVgÀÄvÀÛzÉ.=

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A perusal of the agreement of sale dated 30.05.2007 makes it clear that the plaintiff has agreed to purchase the suit schedule property for a sum of ¹6,25,000/however, nothing has been stated in the agreement with regard to payment of advance amount as well as remaining amount that may be payable at the time of registration of the sale deed. In that view of the matter, taking into consideration the declaration of law made by the Hon9ble Supreme Court in the case of C.S.Venkatesh v. A.S.C.Murthy¹ the plaintiff has not proved the agreement of sale in a manner known to law by examining the witnesses to the said document independently and that apart, if at all the plaintiff has really interested to purchase the suit schedule property and has paid ¹5,00,000/-, as argued by the learned counsel appearing for the appellant, there was no impediment for the plaintiff to issue legal notice calling upon the defendants to execute the registered sale deed

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1 (2020) 3 SCC 280

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pursuant to agreement of sale dated 30.05.2007. In the absence of the same, both the Courts below, having taken note of the said factual aspect of the matter, rightly dismissed the suit, which requires to be confirmed in this appeal as the appellant has not made out a case for interference under Section 100 of CPC and accordingly, the appeal stands dismissed at the stage of admission itself.

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In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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Sd/(E.S.INDIRESH) JUDGE

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YAN CT-MCK List No.: 1 Sl No.: 20

Shri. Bhimaraddi S/O. Krishnaraddi Kurtakoti v. Sri. Mustaq S/O. Rehman Daragad

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Shri. Bhimaraddi S/O. Krishnaraddi Kurtakoti v. Sri. Mustaq S/O. Rehman Daragad

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