Smt Malathiyamma Vs S Sreenivas Yadiyal

BHAGEERATHAMMA W/O IMMADI VENKATAGIRIAPPA AGED ABOUT 88 YEARS, R/O BEDUR VILLAGE, POST: KALMANE, ANANDAPURAM HOBLI, SAGAR TALUK, SHIVAMOGGA DISTRICT-577412

¶23

JAYARAMA S/O IMMADI VENKATAGIRIAPPA AGED ABOUT 67 YEARS R/O SUCHETHANA AGRAHARA MAIN ROAD, SAGAR TOWN, SHIVAMOGGA DISTRICT-577401

¶24

GANGABHAVANAMMA W/O VENKATACHALA AGED ABOUT 59 YEARS C/O KRISHNAMOORTHY, BEDUR VILLAGE, POST: KALMANE, ANANDAPURAM HOBLI, SAGAR TALUK, SHIVAMOGGA DISTRICT-577412

¶25

3 - NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶26

HC-KAR

¶27

5. SAVITHRI

¶28

W/O SUBRAYA AGED ABOUT 65 YEARS C/O KRISHNAMOORTHY, BEDUR VILLAGE, POST: KALMANE, ANANDAPURAM HOBLI, SAGAR TALUK, SHIVAMOGGA DISTRICT-577412

¶29

GANAPATHI S/O IMMADI VENKATAGIRIAPPA AGED ABOUT 56 YEARS R/O BSNL EMPLOYEE TELEPHONE EXCHANGE SAGARA, SHIVAMOGGA DISTRICT-577401

¶30

KRISHNAMOORTHY

¶31

S/O IMMADI VENKATAGIRIAPPA AGED ABOUT 57 YEARS, R/O BEDUR VILLAGE, POST: KALMANE, ANANDAPURAM HOBLI, SAGAR TALUK, SHIVAMOGGA DISTRICT-577412

¶32

8. B.V. SREEPADA

¶33

S/O IMMADI VENKATAGIRIAPPA AGED ABOUT 51 YEARS, R/O MATTIKOPPA VILLAGE, ANANDAPURAM HOBLI, SAGAR TALUK SHIVAMOGGA DISTRICT-577412

¶34

…RESPONDENTS

¶35

(BY SRI HARISH BHANDARY.T, ADVOCATE FOR R1; R2, R3, R4, R5 R6 AND R8 ARE SERVED;

¶36

VIDE ORDER DATED 06.12.2024, APPEAL AGAINST R7 IS DISMISSED AS ABATED)

¶37

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 24.02.2015 PASSED IN R.A.NO.6/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, SAGAR, ALLOWING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED

¶38

4 - NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶39

HC-KAR

¶40

10.11.2011 PASSED IN O.S.NO.41/2004 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, SAGAR.

¶41

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

¶42

ORAL JUDGMENT

¶43

This regular second appeal is filed by the appellants challenging the judgment and decree dated 24.02.2015, passed in R.A.No.6/2012 by the learned Fast Track Judge, Sagar and the judgment and decree dated 10.11.2011, passed in O.S.No.41/2004 by the learned Senior Civil Judge and JMFC., Sagar.

¶44

For convenience, the parties are referred to based on their rankings before the Trial Court. The appellants were the defendants No.1 (a) to 1(e), respondent No.1 was the plaintiff and the other respondents were the other defendants.

¶45

Brief facts leading rise to the filing of this appeal are as follows:

¶46

5 - NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶47

HC-KAR

¶48

The plaintiff filed a suit against the defendants for specific performance of a contract. It is the case of the plaintiff that the defendants are the owners of the suit schedule property and agreed to sell the suit schedule property for consideration of Rs.4,00,000/and accordingly, the plaintiff paid an advance sale consideration amount of Rs.3,00,000/- to defendant No.1 and defendant No.1 executed a sale agreement on 11.04.2001. It was agreed that the balance sale consideration would be paid at the time of execution of the registered sale deed, but defendant No.1 did not come forward to execute the sale deed by receiving balance consideration amount.

¶49

The original defendant No.1 did not perform his part of the contract. The plaintiff issued a legal notice calling upon the defendant No.1 to receive the balance consideration amount and execute the registered sale deed. Defendant No.1 replied to the legal notice denying the execution of the sale agreement and receipt of

¶50

6 - NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶51

HC-KAR

¶52

advance sale consideration of Rs.3,00,000/- and sold the suit property in favour of defendants No.2 and 3 vide sale deed dated 26.06.2003. Hence, the cause of action arose for the plaintiff to file a suit for the specific performance of a contract. Accordingly, prays to decree the suit.

¶53

Defendant No.1 filed a written statement

¶54

denying the plaint averments except that defendant No.1 sold suit property to defendants No.2 and 3.

¶55

It is contended that the plaintiff has concocted the sale agreement and filed a false suit. It is contended that the plaintiff is a neighbouring landowner, had an intention to grab the land belonging to defendant No.1, for a meagre amount, and he had refused the same. Hence, prays to dismiss the suit against defendant No. 1.

¶56

The written statement filed by defendant No.3 is the replica of the contents of the written statement of defendant No.1 and prays to dismiss the suit against defendant No.3.

¶57

7 -

¶58

NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶59

HC-KAR

¶60

The Trial Court, based on the pleadings of the parties, framed the relevant issues.

¶61

The plaintiff, to substantiate his case, examined himself as P.W.1, examined one witness – V. Hoysala, as P.W.2 and marked seven documents as Ex.P1 to P7. On

¶62

the other hand, defendant No.2 (b) was examined as D.W.1, defendant No.1 (b) was examined as D.W.2 and marked thirteen documents as Ex.D1 to D.13.

¶63

The Trial Court, on the assessment of verbal and documentary evidence, decreed the suit of the plaintiff with cost by granting the alternate relief to the plaintiff and declared that the defendants are jointly and severally liable to pay a sum of Rs.3,00,000/- to the plaintiff with interest at the rate of 18% per annum from the date of the agreement dated 11.04.2001 until the payment of the entire amount.

¶64

8 - NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶65

HC-KAR

¶66

The defendants, aggrieved by the judgment and

¶67

decree passed in O.S.No.41/2004, preferred two separate appeals in R.A.Nos.6/2012 and 9/2012 on the file of Fast Track Court, Sagar.

¶68

The First Appellate Court, on reassessing the verbal and documentary evidence, dismissed the appeals filed by the defendants vide judgment dated 24.02.2015.

¶69

The legal representatives of defendant No.1, aggrieved by the judgments and decrees passed in R.A.No.6/2012 and O.S.No.41/2004, preferred this regular second appeal.

¶70

Heard the arguments of learned counsel for legal representatives of defendant No.1.

¶71

The learned counsel for legal representatives of defendant No.1 submits that defendant No.1 neither executed any sale agreement in favour of the plaintiff nor received any advance sale consideration amount. It is

¶72

9 - NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶73

HC-KAR

¶74

contended that defendant No.1 replied to the legal notice, denying the execution of the sale agreement. The said aspect was not adequately considered by both Courts below, and they committed an error in decreeing the suit for a refund of the earnest money. Hence, on these grounds, he prays to allow the appeal.

¶75

Perused the records and considered the submissions of the legal representatives of defendant No.1.

¶76

It is the case of the plaintiff that defendant No.1 agreed to sell the suit schedule property for consideration of Rs.4,00,000/- and accordingly, the plaintiff paid a sum of Rs.3,00,000/- to defendant No.1 as an advance sale consideration amount and defendant No.1 executed a sale agreement on 11.04.2001. It was agreed that the balance sale consideration amount would be paid at the time of registration of the sale deed.

¶77

10 -

¶78

NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶79

HC-KAR

¶80

The plaintiff, to show that he was/is always ready and willing to perform his part of the contract, got issued a legal notice, marked at Ex.P7 and also to establish that defendant No.1 has executed the registered sale agreement, the said sale agreement is produced and marked as Ex.P1. Though, the time is not the essence of the contract, the plaintiff, by issuing the legal notice as per Ex.P7 on 13.11.2003, has proved that he was/is ready and willing to perform his part of the contract. Defendant No.1 had sold the suit schedule property in favour of defendant Nos.2 and 3.

¶81

The legal representative of defendant No.1, Sri C.R. Subramanya – defendant No.1 (b) was examined as D.W.2. Sri Jayarama - Defendant No. 2 (b) was examined as D.W.1. They have reiterated their written statement averments in the examination-in-chief, and further, D.W.1 has produced the original sale deed executed by defendant No.1 in favour of defendant Nos.2 and 3 and produced the RTC extracts which disclose that based on Ex.D1, the

¶82

11 -

¶83

NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶84

HC-KAR

¶85

names of defendant Nos.2 and 3 are entered in the revenue records. Though, both Courts below have concurrently recorded a finding of fact that the plaintiff has proved the execution of the sale agreement by defendant No.1 in favour of the plaintiff, declined to grant a relief of specific performance of the contract on the ground that defendant No.1 has already sold the property in favour of defendant Nos.2 and 3 and based on the registered sale deed, names of defendant Nos.2 and 3 are entered in the revenue records. Further, as the plaintiff has claimed an alternative relief of refund of the earnest money, the Trial Court decreed the suit in part and granted an alternative relief of refund of earnest money. The First Appellate Court, on reassessing the verbal and documentary evidence, has confirmed the judgment and decree passed by the Trial Court.

¶86

Granting the relief of a specific performance is discretionary under Section 20 of the Specific Relief Act. Both Courts below have judicially exercised the discretion

¶87

12 - NC: 2025:KHC:19794 RSA No. 1206 of 2015

¶88

HC-KAR

¶89

power under Section 20 of the Specific Relief Act. However, the plaintiff did not challenge the dismissal of the suit for the specific performance of the contract. The said finding has attained finality. The plaintiff has proved that he paid the advance sale consideration of Rs.3,00,000/- and both Courts below have rightly decreed the suit for refund of amount i.e., the grant of an alternative relief. Hence, I do not find any error in the impugned judgments or any substantial questions of law that arises for consideration in this appeal. Accordingly, I proceed to pass the following:

¶90

ORDER

¶91

The appeal is dismissed .

¶92

The judgments and decrees passed by the Courts below are hereby confirmed.

¶93

No order as to the costs.

¶94

Pending consideration application if any, stands disposed of.

¶95

Sd/(ASHOK S.KINAGI) JUDGE