Sri Jaswanthkumar Kotari Vs Sri Sakegowda

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 31.1.2013 PASSED IN R.A.NO.54/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, SRIRANGAPATNA, PARTLY ALLOWING AND

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PARTLY DISMISSING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 27.1.2011 PASSED IN OS.NO.227/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE (SR.DN.) AND JMFC, SRIRANGAPATNA.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 31.01.2013 passed in R.A. No.54 of 2011 by the learned District Judge, Fast Track Court, Srirangapatna.

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For convenience, the parties are referred to based on their ranking before the Trial Court. The appellant was the plaintiff, and the respondent was the defendant.

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

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The plaintiff filed a suit against the defendant for

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specific performance of a contract. It is contended that the defendant is the absolute owner of the suit schedule property, and he agreed to sell the said property for a consideration of ₹1,11,000/-. Accordingly, the defendant received a sum of ₹1,00,000/- towards earnest money on 23.02.2006 and executed an agreement of sale. It was agreed that the sale to be concluded after receiving the balance sale consideration amount of ₹11,000 within 3 months by obtaining necessary documents. It is contended that the plaintiff was/is always ready and willing to perform his part of the contract. But, the defendant was not ready to perform his part of the contract.

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Finally, the plaintiff issued a legal notice on 25.04.2007 calling upon the defendant to receive the balance sale consideration amount and execute a registered sale deed. The said notice was duly

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served on the defendant. The defendant neither replied to the legal notice nor came forward to receive the balance sale consideration amount and execute a sale deed. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of the contract. Accordingly, prays to decree the suit.

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The defendant filed a written statement contending that the suit schedule property is not the exclusive property of the defendant. It is contended that the suit schedule property is the ancestral and joint family property of the defendant and his children. The defendant obtained a loan from the plaintiff, as the plaintiff is running a money lending business and the plaintiff by paying ₹95,000/- out of ₹1,00,000/-, deducted ₹5,000/- as a future interest, obtained his signature on the documents. The transaction between the plaintiff and the defendant is a loan transaction and not a sale transaction.

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It is also contented that the family members of the defendant filed a suit in O.S. No.149 of 2007 for partition and separate possession, which is pending for consideration. Hence, prays to dismiss the suit.

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The Trial Court, based on the rival pleadings of the parties, framed the following issues:

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"1. Whether plaintiff proves that, the defendant being the owner of suit land agreed to sell the same to him for Rs.1,11,000/- and has received earnest money of Rs.1,00,000/- and executed agreement of sale to that effect on 23.02.2006?

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Whether plaintiff proves that, he is ever ready and willing to perform his part of contract?

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Whether defendant proves that, he has only received Rs.95,000/- from plaintiff, with no intention to sell suit property to plaintiff?

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Whether defendant proves that, suit of plaintiff is time barred?

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Whether plaintiff is entitled for specific performance of contract?

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What order or decree?"

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The plaintiff to substantiate his case, examined himself as PW-1, examined two witnesses as PW-2 and PW-3 and marked four documents as Exhibits P1 to P4. In rebuttal, the defendant examined himself as DW-1, and marked one document as Exhibit D1.

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The Trial Court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issue Nos.1, 2 and 5 in the affirmative, issue Nos.3 and 4 in the negative and issue No.6 as per the final order. The suit of the plaintiff was decreed vide judgment dated 27.01.2011 and the defendant was directed to execute a registered sale deed regarding the suit schedule property in favour of the plaintiff after receiving the balance sale consideration amount of

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₹11,000/-, at the cost of the plaintiff within two

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months from the date of the judgment.

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The defendant aggrieved by the judgment and decree passed in O.S. No.227 of 2007 preferred an appeal in R.A. No.54 of 2011 on the file of the learned District Judge, Fast Track Court, Shrirangapatna.

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The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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"1. Whether the judgment and decree of the Trial Court requires interference in the appeal ?

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3. What Order ?"

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The First Appellate Court, after re-appreciating the

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entire evidence on record, answered point No.1 partly in affirmative and partly in negative and point No.2 as per the final order. The First Appellate Court allowed the appeal in part and partly

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dismissed the appeal vide judgment dated 31.01.2013 and modified the judgment and decree passed by the Trial Court and directed the defendant to execute a registered sale deed in favour of the plaintiff to the extent of his 1/3^rd share in the suit schedule property within three months from the date of the judgment. If the defendant fails to execute a registered sale deed within the period fixed by the Court, then the plaintiff is entitled to get registered the sale deed through the process of Court.

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The plaintiff aggrieved by the judgment and decree passed in R.A. No.54 of 2011, i.e., modifying the judgment of the Trial Court, filed this Regular Second Appeal.

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A notice of this appeal was issued to the defendant. The defendant, despite the service of a notice, remained unrepresented.

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Heard the arguments of the learned counsel for the plaintiff.

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Learned counsel for the plaintiff submits that the

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defendant was the absolute owner of the suit schedule property. He offered to sell the suit schedule property to the plaintiff for a valuable consideration of ₹1,11,000/-, and accordingly, the defendant received a sum of ₹1,00,000/- towards the earnest money, and it was agreed that the balance sale consideration amount was to be paid at the time of registration of the sale deed within three months by obtaining necessary documents. He submits that the defendant executed a sale agreement in favour of the plaintiff on 23.02.2006. However, the defendant committed a breach of contract. Hence, the plaintiff issued a legal notice dated 25.04.2007 calling upon the defendant to receive the balance sale consideration amount and for execution of sale deed. He submits that the

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defendant and his family members colluding with

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each other filed a suit for partition and separate possession in O.S. No.149 of 2007. The decree passed in O.S. No.149 of 2007 is a collusive decree. The First Appellate Court committed an error in modifying the judgment and decree passed by the Trial Court. He submits that the impugned judgment passed by the First Appellate Court is arbitrary and erroneous and accordingly, on these grounds, he prays to allow the appeal.

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This Court admitted the appeal on 21.01.2020 to consider the following substantial questions of law:

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“1. Whether the lower appellate Court was justified in granting specific performance of the agreement dated 23.02.2006 in part in the light of the decree for partition in O.S. No.149/2007 passed in respect of the suit property, notwithstanding the judgment in OS No.149/2007 being set aside in a Regular Appeal No.5003/2013?

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2. In the facts of the case, was the lower appellate Court justified in decreeing specific performance in part or was it required to grant a decree in full and relegating the plaintiff to seek apportionment in final decree proceedings?’’

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Reg. Substantial Question of Law No.1 :

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The plaintiff to prove his case examined himself as

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PW-1. He deposed that the defendant is the absolute owner of the suit schedule property and he agreed to sell the suit schedule property for a consideration of ₹1,11,000/- and received ₹1,00,000/- towards the earnest money and it was agreed that the balance sale consideration was to be paid at the time of registration of sale deed within three months.

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The plaintiff, to show that the he was/is always ready and willing to perform his part of the contract, issued a legal notice dated 25.04.2007 calling upon the defendant to receive the balance sale

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consideration amount and execute a registered sale

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deed, and the said legal notice was duly served. However, the defendant neither replied to the legal notice nor came forward to receive the balance sale consideration amount and execute a registered sale deed.

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The plaintiff, to substantiate his case, produced a documents. Exhibit P-1, is a certified copy of the agreement of sale dated 23.02.2006. It discloses that the defendant agreed to sell the suit schedule property in favour of the plaintiff for a consideration of ₹1,11,000/-. Exhibit P-2 is the RTC extract of the suit schedule property which discloses that the defendant is the owner and in possession of the suit schedule property. Exhibit P-3 is an office copy of the legal notice dated 25.04.2007 which discloses that the plaintiff has issued a legal notice calling upon the defendant to receive the balance sale consideration amount and execute a registered sale

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deed. Exhibit P-4 is the acknowledgment, which discloses that the legal notice was served on the defendant.

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During the cross-examination of PW-1, it was suggested that the family members of the defendant filed a suit in O.S. No.149 of 2007 for partition and separate possession and the said suit was decreed. The plaintiff herein aggrieved by the judgment and preliminary decree passed in O.S. No.149 of 2007 preferred an appeal in R.A. No.5003 of 2014. The said appeal was allowed and the judgment and preliminary decree passed in O.S. No.149 of 2007 was set aside. PW-1 pleaded ignorance to the said suggestions.

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Further, the plaintiff examined two witnesses i.e., one of the attesting witnesses as PW-2 and the scribe of the agreement of sale dated 23.02.2006 as PW-3. They have deposed in the same line as that of

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PW-1. They have deposed that the defendant is the

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owner of the suit schedule property and he has agreed to sell the suit schedule property to the plaintiff and executed a sale agreement in favour of the plaintiff.

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In rebuttal, the defendant was examined as DW-1. He has deposed that the suit schedule property is the ancestral and joint property of the defendant and his family members and he alone has no right to deal with the suit schedule property. He deposed that the family members filed a suit for partition and separate possession in O.S. No.149 of 2007 and the said suit was decreed. He has produced the judgment and decree passed in O.S. No.149 of 2007 marked as Exhibit D-1.

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From the perusal of the entire evidence on record, it is clear that there is no dispute that the defendant agreed to sell the suit schedule property for a sale

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consideration of ₹1,11,000/- and accordingly, the defendant received ₹1,00,000/- from the plaintiff towards the earnest money and executed a sale agreement marked as Exhibit P-1. The plaintiff requested the defendant to receive the balance sale consideration amount, and execute a registered sale deed however the defendant went on postponing either to receive the balance consideration amount or to execute the registered sale deed.

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The plaintiff, to show that he was/is always ready and willing to perform his part of a contract, issued a legal notice dated 25.04.2007 marked as Exhibit P-3 calling upon the defendant to receive the balance sale consideration amount and to execute a registered sale deed. The said notice was duly served on the defendant, as evidenced by Exhibit P-4 i.e., acknowledgement. The defendant neither

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replied to the legal notice nor came forward to

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receive the balance sale consideration amount and execute a registered sale deed.

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It is contended that the plaintiff by producing Exhibit

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P-1 and by examining one of the attesting witnesses as PW-2 and the scribe of the agreement of sale dated 23.02.2006 as PW-3, has proved that the defendant has agreed to sell the suit schedule property for a total sale consideration of ₹1,11,000/and the defendant received ₹1,00,000/- towards the earnest sale consideration amount.

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The defendant contended that the transaction between the plaintiff and the defendant is a loan transaction and not a sale transaction. The oral evidence of DW-1 is inadmissible as per Section 92¹

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1 92. Exclusion of evidence of oral agreement. –– When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

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of the Evidence Act, 1872, which deals with

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exclusion of evidence of oral agreement, and according to which, "when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last Section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms".

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The Courts below have concurrently recorded a finding of fact that the defendant has agreed to sell the suit schedule property in favour of the plaintiff, and held that the plaintiff was/is always ready and willing to perform his part of the contract. The Trial Court decreed the suit directing the defendant to receive the balance sale consideration amount and

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execute a registered sale deed, whereas, the First Appellate Court modified the judgment and decree passed by the Trial Court, and directed the defendant to execute a sale deed regarding his onethird share in the suit schedule property.

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The family members of the defendant filed a suit in O.S. No.149 of 2007 for partition and separate possession, and the said suit was decreed. The plaintiff herein, though was not a party to the suit in O.S. No.149 of 2007, preferred an appeal in R.A.

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No.5003 of 2014 seeking leave of the Court. The First Appellate Court allowed the appeal and set aside the judgment and preliminary decree passed in O.S. No.149 of 2007. After the remand, the plaintiff was arrayed as a party to the suit. The plaintiff did not adduce any evidence in O.S. No 149

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of 2007 after the remand.

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The Trial Court decreed the suit for partition and separate possession and held that the defendant is entitled to one-third share. The First Appellate Court, considering the judgment and decree passed in O.S. No.149 of 2007 held that the suit schedule property is an ancestral and joint family property of the defendant and his family members, and the defendant is entitled to one-third share only. Admittedly, the family members of the defendant

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are not parties to the sale agreement. The sale agreement executed by the defendant is not binding on the shares of the family members of the defendant i.e., the plaintiffs in O.S. No.149 of 2007.

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When a specific query was put to the learned counsel for the plaintiff as to whether the plaintiff has challenged the judgment and decree passed in O.S. No.149 of 2007, he submitted that the plaintiff has not challenged the judgment and decree passed in O.S. No.149 of 2007 after a remand. The judgment

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and preliminary decree passed in O.S. No.149 of 2007 has attained finality. The First Appellate Court, considering the entire evidence on record, has rightly modified the judgment and decree passed by the Trial Court, based on the judgment and preliminary decree passed in O.S. No.149 of 2007. I do not find any error in modifying the judgment and decree passed by the trial Court.

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In view of the above discussion, the substantial question of law No.1 is answered in the affirmative .

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Reg. Substantial Question of Law No.2 :

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Admittedly, the family members of the defendant filed a suit in O.S. No.149 of 2007 seeking partition and separate possession, and the judgment and decree passed in O.S. No.149 of 2007 has attained a finality. In the said suit, it is declared that the defendant/the plaintiff herein is entitled to his onethird share in the suit schedule property, and the

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defendant is entitled to enter into a sale agreement to the extent of his share, however, he has no right to execute the sale agreement on behalf of others, as they have not authorized the defendant to execute a sale agreement. The sale agreement executed by the defendant is not binding on the family members of the defendant i.e., the plaintiffs in O.S. No.149 or 2007.

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The First Appellate Court, taking into consideration the judgment and preliminary decree passed in O.S. No.149 of 2007, has rightly passed a decree for specific performance directing the defendant to execute a registered sale deed to the extent of 1/3^rd share in the suit schedule property.

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Admittedly, no sale deed is executed as of today. Hence, the question of decreeing the entire suit for specific performance would not arise.

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Insofar as relegating the plaintiff to seek apportionment in the final decree proceeding, it arises only after the execution of a registered sale deed by the defendant. The said aspect cannot be considered until the registered sale deed is executed by the defendant. If the registered sale deed is executed, then the plaintiff could seek equity in the final decree proceedings.

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In view of the above discussion, I answer substantial question No.2 in the affirmative .

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The plaintiff has filed I.A. No.1 of 2024 for production of additional documents. In support of the application, he has filed an affidavit stating that the plaintiff being aggrieved by the judgment and preliminary decree passed in O.S. No.149 of 2007 preferred an appeal in R.A. No.5003 of 2014. The said appeal was allowed and the judgment and decree passed in O.S. No.149 of 2007 was set aside

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and the matter was remitted to the Trial Court. The

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plaintiff has produced a certified copy of the judgment and decree passed in R.A. No.5003 of 2014.

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After remand, the Trial Court has decreed the suit in O.S. No.149 of 2007 and held that the defendant therein is entitled to his one-third share in the suit schedule property. Even if the plaintiff is permitted to produce the said document, it does not make any difference.

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Even after the remand, the Trial Court has confirmed the judgment passed by it before the remand. Hence, I.A. No.1 of 2024 is liable to be rejected.

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In the result, I proceed to pass the following order:

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ORDER

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(i) The Regular Second Appeal is dismissed ;

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(ii) The judgment and decree dated 31.01.2013 passed in R.A. No.54 of 2011 by the learned District Judge, Fast Track Court, Srirangapatna is hereby confirmed;

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(iii) I do not find any grounds to allow I.A. No.1 of 2024. Accordingly, I.A. No.1 of 2024 is rejected .

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(iv) No order as to the costs;

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(v) In view of the dismissal of the appeal, pending interlocutory applications, if any, do not survive for consideration. Accordingly they stand disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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RK List No.: 2 Sl No.: 8

Sri Jaswanthkumar Kotari v. Sri Sakegowda

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Sri Jaswanthkumar Kotari v. Sri Sakegowda

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