Sri.Gangabasavaiah Vs Sri Suresh Babu

SRI. SURESH BABU S/O LATE LAKSHMINARAYANA RAO AGED ABOUT 62 YEARS R/AT C/O T.R. ANANDARAO ’RAM KAMAL’ UPSTAIRS 1^ST CROSS, 1^ST BLOCK KUVEMPU NAGAR TUMAKURU-572 103.

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SRI. M.N. SHIVAKUMAR S/O LATE NANJUNDAPPA AGED ABOUT 61 YEARS R/AT MANCHAGONDANAHALLI GULURU HOBLI, TUMAKURU TALUK TUMAKURU DISTRICT-572 118.

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SRI. MANOJ S/O M.N. SHIVAKUMAR AGED ABOUT 28 YEARS

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SRI. MALLESH S/O M.N. SHIVAKUMAR AGED ABOUT 27 YEARS

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RESPONDENTS NO.3 AND 4 ARE SONS OF M.N.SHIVAKUMAR AND SHIVAGANGAMMA.

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RESPONDENTS NO.3 AND 4 ARE R/AT MANCHAGONDANAHALLI FARM HOUSE, GULURU HOBLI TUMAKURU TALUK TUMAKURU DISTRICT-572 118.

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SMT. SHIVAGANGAMMA W/O M.N. SHIVAKUMAR AGED ABOUT 51 YEARS R/AT MANCHAGONDANAHALLI

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HC-KAR

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GULURU HOBLI, TUMAKURU TALUK-572118

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.02.2025 PASSED IN R.A.NO.139/2024 ON THE FILE OF I ADDITIONAL PRL. JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.01.2022 PASSED IN O.S.NO.75/2007 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND CJM, TUMAKURU.

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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 H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard

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learned counsel appearing for the appellants.

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The suit is filed for the relief of specific performance by the respondent No.1 herein seeking to enforce the agreement dated 12.11.2004 and it is also pleaded that he was always ready and willing to perform his part of contract, but the defendants did not come forward to execute the sale deed.

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The defendant Nos.5 and 6 appeared and filed written statement that the plaintiff in collusion with defendant Nos.1 to 4 has created the sale agreement dated 12.11.2004

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and also further contention was taken by defendant No.6 that he is a bonafide purchaser for valuable consideration of portion of the suit schedule property.

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The Trial Court having considered both oral and documentary evidence and also the defence which was taken that document of Ex.P1 was not executed, even sent the same for Handwriting Expert and also report was received. Though, disputed the report, but not proved the same. The Trial Court taking into note of the expert's report and also during the course of cross-examination, D.W.1 admitted his signature and postal acknowledgement that was confronted and got marked at Ex.P6 and his signature that was made in English at Ex.P6(a). In the same line, it is also to be noted that defendant No.2 i.e., wife of defendant No.1, who got examined before the Court as D.W.2 deposed that husband/D.W.1 used to put his signature in Kannada, but not in English. She deposed that there was no necessity to the family to sell the suit schedule property to the plaintiff, but her husband addicted to bad habits. Whereas, she admitted the signature of herself and her husband on summons of this suit that confronted and got

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marked at Ex.P8 and their signatures are marked at ExP8(a) and (b) respectively. The signature of defendant No.1 at Ex.D8(a) is though in English, this D.W.2 denied the same and deposed that her husband used to sign in Kannada, but not in English and in detail discussion was made and the Trial Court comes to the conclusion that the defendants miserably failed to substantiate their case of fraud alleged to be committed by the plaintiff in execution of the registered sale agreement in his favour on 12.11.2007 and also taken note of the fact that same was for the family necessity with an intention to sell the suit property in favour of the plaintiff for their legal necessity to clear the debts and family benefit and have also received the advance sale consideration of Rs.80,000/- from the plaintiff in the presence of the witnesses. So also, the Trial Court taken note of the defence of the defendant Nos.5 and 6 that they have obtained the sale deed from defendant No.1 to 4 during the pendency of this suit and comes to the conclusion that defendants colluded with each other and created the document. Hence, answered issue no.1 in the ‘affirmative’ and additional issue Nos.1 and 2 in the ‘negative’ and accepted the case of plaintiff and granted the relief of specific performance.

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Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.139/2024 and First Appellate Court also considering the grounds urged in the appeal memo formulated the points whether the Trial Court has erred in holding that defendant No.1 had executed sale agreement dated 12.11.2004 for himself and on behalf of defendant No.3 and 4 agreeing to sell the suit schedule property, whether Trial Court has erred in holding that plaintiff was ready and willing to perform his part of contract, whether Trial Court has erred in overlooking the judgment in O.S.No.188/2009 and proceedings in Execution No.60/2014, whether Trial Court has erred in holding that defendant Nos.5 and 6 are not the bonafide purchasers of suit schedule property for valid consideration, whether the suit filed by the plaintiff in O.S.No.75/2007 is hit under the principles of res-judicata, whether judgment and decree dated 31.01.2022 in O.S.No.75/2007 is erroneous, illegal and against the evidence placed on record and whether the impugned judgment and decree passed by the Trial Court requires to be interfered.

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The First Appellate Court having reassessed the material available on record, considered the evidence of the plaintiff as well as defendants and comes to the conclusion that Trial Court has not committed any error in coming to such a conclusion and comes to the conclusion that there was collusion between defendant Nos.1 to 6 and also taken note of sale agreement dated 12.11.2004, legal notice dated 03.11.2006 before filing the earlier suit and also the reply notice and comes to the conclusion that, if really there was a sale agreement as per Ex.P21, atleast defendant No.1, who is the Executant of agreement at Ex.P21 would have been aware of the said fact and he would have pleaded the same in his written statement filed in O.S.No.19/2007. Ex.P5 contains the contents of written statement of defendant No.1 and present defendant No.1 has not taken the contention that he has already executed the sale agreement in favour of third person i.e., defendant No.5 and detailed discussion was made and the First Appellate Court comes to the conclusion that there was collusiveness between defendant Nos.1 to 4 and defendant No.5 and 6 and comes to the conclusion that the Trial Court based on the evidence on

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record, given sound reasoning and granted the relief of specific performance and it does not require any interference.

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Learned counsel appearing for the appellants in his argument would vehemently contend that the agreement in favour of the appellants is dated 22.01.2003 and the same is prior to 12.11.2004 and both the Courts failed to consider the same and erroneously proceeded to grant the relief of specific performance. The counsel vehemently contend that there was no readiness in compliance of Section 16(c) of the Specific Relief Act and even both the Courts failed to take note of said fact into consideration and committed an error in coming to the conclusion that defendant Nos.1 to 4 colluded with each other only with an intention to deny the sale agreement dated 12.11.2004 executed in favour of the plaintiff and the very conclusion that plaintiff is a bonafide purchaser under the agreement of sale dated 22.01.2003 is not considered by both the Courts and the same is an erroneous approach. Hence, this Court has to frame substantial question of law.

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Having heard learned counsel appearing for the

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appellants and also the reasoning of the Trial Court, though

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there was an agreement dated 22.01.2003, the Trial Court comes to a conclusion that defendants Nos.1 to 4 in collusion with defendant Nos.5 and 6 created the document of sale agreement and sale deed and also taken note of admission and even though there was denial of sale agreement, the same was also taken note of and even expert opinion was also taken note of in respect of earlier sale agreement and comes to the conclusion that defendant Nos.1 to 4 colluded with defendant Nos.5 and 6 and created the document and there cannot be any conclusion that they are the bonafide purchasers. Having considered both oral and documentary evidence, the earlier defence which was taken was also considered by the First Appellate Court while confirming the judgment of the Trial Court. Having considered the evidence on record, it clearly indicates that proceedings in O.S.No.19/2007 before the II Additional Senior Civil Judge, Tumakuru was a collusive suit between defendant Nos.1 to 4. Further, the proceedings in O.S. No.188/2009, Execution No.60/2004 before the I Additional Civil Judge, Tumakuru is a collusive proceedings between defendant Nos.1 to 5. Moreover, O.S.No.188/2009 is a proceedings instituted after institution of the present suit in

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O.S.No.75/2007. Hence, comes to the conclusion that sale deed at Ex.D6 is a document executed during the pendency of the suit is hit by doctrine of lis-pendence and therefore, comes to the conclusion that defendant No.5 cannot be called as bonafide purchaser. Similarly, defendant No.6, who has purchased the portion of suit schedule property during the pendency of this litigation also cannot be considered as bonafide purchaser and taken the note of very conduct of the defendants and filing of suit when the suit was pending before the Court. Having considered the material and record, I do not find any error in the finding of the First Appellate Court also and the First Appellate Court also in detail considered the material on record and formulated the points with regard to readiness, agreement as well as judgment in O.S.No.188/2009 and O.S.No.75/2007 and also the principles of res-judicata is also taken note of and detailed order has been passed. When such being the case, I do not find any ground to admit the second appeal and frame any substantial question of law as contended by learned counsel appearing for the appellants and in the absence of any ground, question of admitting and

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