Smt Nagarathnamma Vs Smt Nanjamma

2(b) SMT.K.G.SHARADAMMA D/O.LATE K.G.NARAYANAPPA W/O.SRI.NARAYANASWAMY AGED ABOUT 53 YEARS R/AT TAGARAGATTI HORAVANNAHALLI KORATAGERE TALUK TUMKUR DISTRICT

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2(c) SRI K.G.GANGARAJU S/O.LATE K.G.NARAYANAPPA AGED ABOUT 50 YEARS

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2(d) SRI K.G.MALLEGOWDA

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S/O. LATE K.G.NARAYANAPPA AGED ABOUT 48 YEARS

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R-2(c) AND R-2(d) ARE R/AT GANGA NAGAR KALLUDI POST GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT

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2(e) SRI K.G.NANJUNDA SINCE DEAD BY HIS LRS. I.E. R-2(a) TO R-2(d)

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…RESPONDENTS

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(BY SMT.NALINA K. FOR SRI S.K.VENKATA REDDY, ADVOCATES FOR R-2(a) to R-2(d); R-1(b) IS SERVED;

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VIDE ORDER DATED 26.11.2024, R-2(a) to R-2(d) ARE TREATED AS LRS. OF DECEASED R-2(e);

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VIDE ORDER DATED 24.07.2025, APPEAL AGAINST R-1(a) IS DISMISSED AS ABATED)

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HC-KAR

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.01.2012 PASSED IN RA.NO.45/2008 BY THE DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA AND THE JUDGEMENT AND DECREE DATED 29.07.2008 PASSED IN OS.NO.32/2000 BY THE CIVIL JUDGE (SR.DN.) AND CJM, CHIKKABALLAPURA.

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

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This Regular Second Appeal is preferred by the plaintiff being aggrieved by the impugned judgment and decree dated 05.01.2012 passed in RA.No.45/2008 by the District and Sessions Judge, Chikkaballapur (for short, 'the first Appellate Court'), wherein the said appeal was dismissed, confirming the judgment and decree dated 29.07.2008 passed in O.S.No.32/2000 by the Civil Judge (Sr.Dn.) and CJM, Chikkaballapura (for short, 'the trial Court'), dismissing the Suit, but held plaintiff to be entitled to refund of advance earnest deposit amount.

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For the sake of convenience, the parties shall be

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referred to as per their status before the trial Court.

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The appellant is the plaintiff and the respondents

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are the defendants. During the course of this appeal, both

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the respondents died and their legal representatives have been brought on record.

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Brief facts of the case are as under:

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The plaintiff filed a suit in O.S.No.32/2000 against the defendants for the relief of specific performance of agreement of sale dated 05.02.1997.

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4.1 It is the case of the plaintiff that defendant No.1

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being the owner of the suit schedule property, offered to sell the same to the plaintiff for a total sale consideration of Rs.1,75,000/-. Pursuant to execution of the agreement

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of sale on 05.02.1997, the plaintiff paid a sum of Rs.10,000/- as advance and that defendant No.1 put the plaintiff in possession of the suit schedule property and agreed to receive the balance sale consideration amount

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and execute the registered sale deed within three months from the date of sale agreement. It is the further case of the plaintiff that in the month of June, 1997, a sum of Rs.25,000/was paid to defendant No.1 through Mr.A.Raju, who is none other than the grand son-in-law of defendant No.1. It is further case of the plaintiff that after paying further advance of Rs.25,000/-, the plaintiff was always ready and willing to perform her part of contract. However, since defendant No.1 did not perform her part of contract, the plaintiff filed a suit in O.S.No.32/2000 on 27.03.2000.

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4.2 The defendants filed written statements denying

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the averments made in the plaint. However, defendant No.1 admitted the sale agreement dated 05.02.1997 and receipt of Rs.10,000/-. Defendant No.2 filed written statement claiming that he has purchased the suit schedule property from defendant No.1 for a valuable sale consideration of Rs.80,000/- through a registered sale deed dated 18.02.2000. Therefore, he is a bona fide

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purchaser and in possession and enjoyment of the suit

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schedule property.

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4.3 On the basis of the pleadings, the trial Court

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framed the following issues:

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"1. Whether the plaintiff proves that she has paid Rs.35,000/to the defendant towards earnest money apart from the amount shown in the sale agreement entered into between her and the defendant?

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2. Whether the plaintiff proves that she was always ready and willing to perform her part of contract?

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3. Whether the defendant proves that she has incurred heavy loss as plaintiff did not come forward to get the sale deed executed by paying the remaining compensation amount and therefore she sold the property to the another person for lessor consideration amount?

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4. Whether the defendant proves that the suit is bared by time?

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5. Whether the plaintiff is entitling for specific enforcement of agreement of sale entered into between her and the defendant?

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6. To what decree or order the parties entitle to?

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Addl.Issues: -

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1) Whether the plaintiff proves that on the date of agreement of sale 1^st defendant put the plaintiff in possession of suit schedule properties?

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2) Whether the 2^nd defendant proves that he is the bonafide purchaser of the suit schedule properties without the notice of earlier agreement of sale executed by the defendant in favour of the plaintiff?

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4.4 In order to substantiate her case, the plaintiff got

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examined herself as PW.1 and three other witnesses as PWs.2 to 4 and got marked documents as Exs.P1 to P5, whereas defendant No.1 examined herself as DW.1 and defendant No.2 as DW.2 and got marked documents as Exs.D1 to D5.

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4.5 On the basis of the materials placed on record,

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both oral and documentary, the trial Court did not find favour with the contentions put-forth by the plaintiff, the documents and the evidence adduced and accordingly, dismissed the suit. However, the trial Court passed an order that the plaintiff would be entitled to recover a sum of Rs.10,000/- from defendant No.1 as earnest money with interest @ 12% p.a. from the date of execution of the agreement of sale dated 05.02.1997 till the date of filing of the suit and the plaintiff would also be entitled to recover a sum of Rs.10,000/- from defendant No.1 with interest @ 8% p.a. from the date of filing of the suit till realisation of the entire amount.

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4.6 Being aggrieved by dismissal of the suit, the plaintiff preferred an appeal in RA.No.45/2008 before the first Appellate Court on several grounds urged therein.

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4.7 The first Appellate Court, after hearing learned

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counsel for plaintiff as well as learned counsel for

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defendants, formulated the following points for

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consideration:

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"1. Whether the plaintiff has paid Rs.45,000/- as advance for specific performance of the contract?

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2. Whether the plaintiff is always ready and willing to perform her part of contract?

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3. Whether the defendant No.2 is a bonafide purchase of the suit property?

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4. Whether the judgment and decree passed by the lower court is needs to be interfered with by the hands of this court?

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5. What order? "

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4.8 On re-appreciation and re-evaluation of the

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entire evidence, the first Appellate Court did not find favour with the plaintiff and confirmed the sale deed executed by defendant No.1 in favour of defendant No.2 to

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be valid, as defendant No.2 is a bona fide purchaser and consequently, dismissed the appeal filed by the plaintiff and affirmed the judgment and decree passed in O.S.No.32/2000 by the trial Court.

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4.9 The plaintiff is before this Court questioning the concurrent finding rendered by both the Courts in this appeal.

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It is the vehement contention of Sri R.Badrinath, learned counsel for appellant-plaintiff that the trial Court as well as the first Appellate Court have committed an illegality and perversity. Therefore, the judgments and decree rendered by both the Courts require to be set-aside and reversed. Despite the fact that the plaintiff has proved execution of the sale agreement executed on 05.02.1997 at Ex.P1, which is admitted by defendant No.1 including the receipt of advance sale consideration amount of Rs.10,000/-.

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5.1 Learned counsel further contends that both the Courts have committed an error in not appreciating the materials placed on record, both oral and documentary and also the admission of defendant No.1 with regard to execution of the sale agreement and receipt of

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Rs.10,000/- as advance sale consideration amount. It is also contended that both Courts have ignored further part payment made to an extent of Rs.25,000/- to defendant No.1. Therefore, both Courts have committed an error in

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not appreciating these facts. Learned counsel further contends that both the Courts have failed to consider the subsistence of the agreement of sale, during which period, defendant No.1 has sold the suit schedule property to defendant No.2 for a lesser value of Rs.80,000/-, which is nothing but collusive and it is only with an intent to deprive the plaintiff of his valid right and enjoyment of the suit schedule property.

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5.2 It is also contended by learned counsel that both the Courts have failed to take into consideration that during the pendency of the agreement of sale entered into between the plaintiff and defendant, which is not being terminated or cancelled, defendant No.2 had purchased the suit schedule property from defendant No.1. Defendant No.2 cannot be considered to be a bona fide

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purchaser of the suit schedule property. Therefore, he contends that the sale deed executed by defendant No.1 in favour of defendant No.2 is fraudulent and is in collusion only to deprive the plaintiff from enforcing the agreement of sale. Apparently, it is an error committed by both the Courts in not appreciating the fact that defendant No.1 has sold the suit schedule property for lesser value at Rs.80,000/- to defendant No.2, when he already had entered into the agreement of sale with the plaintiff for a sum of Rs.1,75,000/- as per Ex.P1. All these facts have been conveniently ignored by both the Courts and have rendered perverse judgments and decree, which call for interference by this Court.

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5.3 Learned counsel contends that the substantial questions of law are required to be framed for consideration of this appeal and he has a very good case on merits. Therefore, he pleads before this Court to formulate substantial questions of law and consequently, to allow the appeal in his favour.

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Per contra, Smt.Nalina K., learned counsel for defendants contends that there is absolutely no illegality or perversity in the judgments and decree rendered by both the Courts. It is contended that it is not in dispute that defendant No.1 was in the need of money due to financial difficulties, she intended to sell the suit schedule property to the plaintiff. Therefore, defendant No.1 entered into an agreement of sale with the plaintiff to sell the suit schedule property by fixing the time period therein. However, the plaintiff did not come forward to pay the balance sale consideration amount and perform her part of contract to register the sale deed in her favour. Defendant No.1 admits that she has received a sum of Rs.10,000/- in the month of June, 1997. However, since

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the plaintiff did not come forward to perform her part of contract, defendant No.1 sold the suit schedule property to defendant No.2.

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6.1 It is contended that the say of the plaintiff that

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the part amount of Rs.25,000/- was paid to defendant No.1 through one, A.Raju, who is said to be the grand son-in-law of defendant No.1, is absolutely false and denied and defendant No.1 also denied the relationship with the said A.Raju.

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6.2 It is contended that since the plaintiff did not

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come forward to perform her part of contract, nothing prevented defendant No.1 to sell the suit schedule property in favour of the third party after completion of the time period mentioned in the agreement of sale and since she was in urgent financial requirement, she registered the sale deed in respect of the suit schedule property in favour of defendant No.2 for a lesser value, despite incurring heavy loss. However, it is also contended that defendant No.1 was ready to refund the advance sale consideration amount of Rs.10,000/- to the plaintiff.

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6.3 Learned counsel for respondent Nos.2(a) to 2(d)

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denied the averments made in the plaint and contended that defendant No.2 purchased the suit schedule property for a valuable sale consideration of Rs.80,000/- under the

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sale deed dated 18.02.2000 and therefore, he is a bona fide purchaser of the suit schedule property. It is contended by learned counsel that since defendant No.1 was in urgent financial requirement for her medical expenses and to discharge her legal debts, she sold the suit schedule property and received sale consideration amount from defendant No.2. The possession of the suit schedule property was handed over to defendant No.2 and he is in peaceful possession and enjoyment of the same from the date of registration of the sale deed i.e. 18.02.2000.

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6.4 Learned counsel for respondents-defendants

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sustain the impugned judgments and decree passed by both the Courts and contends that no case is made out by the appellant-plaintiff for entertainment of this appeal for

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formulating any question of law much less any substantial

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question of law. It is contended by learned counsel that considering all the materials produced by the plaintiff and the defendants, oral and documentary evidence relied

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upon by all the parties, the trial Court has rightly come to the conclusion in dismissing the suit of the plaintiff and the first Appellate Court affirming the same. Therefore, it is contended that this appeal requires to be dismissed at the initial stage of the admission itself without framing any question of law as no such substantial question of law arises for consideration before this Court.

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I have heard Sri R.Badrinath, learned counsel

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appearing on behalf of Sri A.Shivarama and Associates for appellant-plaintiff and Smt.Nalina K., learned counsel appearing on behalf of Sri S.K.Venkata Reddy for respondent Nos.2(a) to 2(d)-defendant Nos.2(a) to 2(d). Perused the records. The impugned judgments and decree of both Courts.

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There is no dispute with regard to defendant No.1

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being the owner of the suit schedule property, agreed to sell the same to the plaintiff and entered into an agreement of sale dated 05.02.1997 for a total sale consideration amount of Rs.1,75,000/- and in performance of the same, received an advance amount of Rs.10,000/and that the sale deed was to be registered within three months from the date of the said agreement of sale. There is no material placed before the Court to show that the plaintiff had paid more than Rs.10,000/- to defendant No.1 in performance of the agreement of sale. Though it is claimed by the plaintiff that she had paid part payment of Rs.25,000/- to one A.Raju, the grand son-in-law of defendant No.1, the said fact has been denied by defendant No.1. The plaintiff has examined the said Raju as PW.4. However, nothing cogent has been produced to

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show the payment of Rs.25,000/- being made to defendant No.1. Therefore, in the absence of cogent material to show that the plaintiff had paid an amount of

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Rs.25,000/- to defendant No.1, the trial Court as well as

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the first Appellate Court disbelieved the version of the plaintiff. Therefore, the trial Court as well as the first Appellate Court disbelieved the evidence of the plaintiff, PW.4 and other witnesses led in support of the plaintiff.

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On the basis of the materials placed on record, the trial Court and the first Appellate Court have come to the conclusion that the plaintiff has not produced any document to show that she was ready and willing to pay the balance sale consideration amount to defendant No.1 to perform and fulfill the contract with regard to suit schedule property. The aspect of readiness and willingness also was not proved by the plaintiff before both the Courts within a period stipulated in the agreement of sale. Therefore, the trial Court and the first Appellate Court have rightly come to the conclusion that the plaintiff

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having not proved her case of intention, readiness and willingness to perform her part of contract or as claimed,

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having paid part amount to defendant No.1 within the time period specified in the agreement of sale.

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It is seen that defendant No.1 has sold the suit schedule property to defendant No.2 on 18.02.2000 i.e. subsequent to the completion of period of three months stipulated in the agreement of sale. Therefore, there was

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no bar for defendant No.1 to sell the suit schedule property to defendant No.2 and so also defendant No.2 to purchase the same from defendant No.1. No material has

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been placed by the plaintiff to show that she was put in possession and enjoyment of the suit schedule property in pursuance to the agreement of sale on the date of payment of Rs.10,000/- as advance amount, which has also been considered by the trial Court and the first Appellate Court. Under circumstances, the trial Court as well as the first Appellate Court, considering all the materials placed before it and the submissions of learned counsel for parties, arrived at well reasoned judgments

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and thereby dismissed the suit and appeal of the plaintiff, which in my opinion, does not call for interference.

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Now coming to the question of substantial question of law pleaded to be framed in this case for consideration. It is a trite law that the substantial question of law would arise for consideration not for a mere asking of it, but the appellant would have to make out a case to frame the substantial question of law which has not been considered by the trial Court or the first Appellate Court and to satisfy this Court with regard to such questions of law, which are substantial in nature.

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At this stage, it is to be stated that Section 100 of the Code of Civil Procedure has got limited and narrow scope for consideration. This Court sitting in the second appeal to consider the substantial questions of law under Section 100 of the CPC, will have to be very circumspect and careful in not venturing into re-analyzing or reappreciating the question of fact which has already been

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decided by the first appellate Court, which is the last Court for appreciation of question of facts and analysation of the evidence and unless there is a grave error committed by the first appellate Court in not appreciating any evidentiary matter which is placed on record causing miscarriage of justice, this Court would not interfere in the judgments passed by the Courts below on the question of fact.

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When two Courts have already considered the question of fact and the question of law to a large extent in detail, even if this Court finds third opinion on the opinions already expressed concurrently by both Courts, it is a general Rule that this Court should refrain from imposing its third opinion merely for the sake of interference when there is no cogent material placed on record as regards substantial questions of law.

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In view of the above, I do not find any good ground or cogent reason to agree with learned counsel for

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appellant-plaintiff to frame substantial question of law in

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the present case, as the questions of law which are pleaded to be framed, in my opinion, are not substantial to be considered in the present facts and circumstances of the case. The trial Court as well as the first Appellate Court have dealt with all the materials placed before the Court, both factually and legally. Hence, nothing remains to be considered in this case, much less the substantial question of law.

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Accordingly, I pass the following:

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ORDER

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i) This Regular Second Appeal is dismissed at the stage of admission itself;

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ii) the impugned judgment and decree dated 05.01.2012 passed in RA.No.45/2008 by the District and Sessions Judge, Chikkaballapur and the judgment and decree dated 29.07.2008 passed in O.S.No.32/2000 by the Civil Judge (Sr.Dn.) and CJM, Chikkaballapura are hereby affirmed;

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iii) The appellant-plaintiff is at liberty to recover the amount paid towards earnest money from defendant No.1 in accordance with law; iv) Costs made easy.

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In view of dismissal of the appeal, pending interlocutory applications, if any, does not survive for consideration and the same pales into insignificance.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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LB

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List No.: 1 Sl No.: 12

Smt Nagarathnamma v. Smt Nanjamma

Case brief

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Smt Nagarathnamma v. Smt Nanjamma

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