Smt Sakamma Vs Jayarama Shetty

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.03.2025 PASSED IN R.A.NO.15/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.12.2022 PASSED IN O.S.NO.59/2019 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, GUBBI.

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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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Heard the learned counsel for the appellants.

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This matter is listed for admission.

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This appeal is filed against the concurrent finding and O.S.No.59/2019 is filed before the Trial Court for the relief of specific performance wherein the plaintiff categorically contended that defendants have agreed to sell the suit schedule property to the plaintiff for total sale

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NC: 2025:KHC:39618 RSA No. 900 of 2025

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HC-KAR

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consideration of amount of Rs.3,50,000/-. In pursuance of registered agreement of sale in favour of plaintiff on 12.09.2016 by receiving advance consideration of Rs.3,00,000/- and balance payable is only a sum of Rs.50,000/- and defendants have appeared through counsel and filed written statement wherein categorically admitted that they have executed the sale agreement and also received the sale consideration of Rs.3,00,000/-. However, they contend that they are ready to repay the advance amount received by them from the plaintiff together with bank interest and hence taken note of the admission on the part of the plaintiff and answered the issue No.1 that there is a sale agreement and also taken note of the oral and documentary evidence available on record and answered the issue No.2 also answered as affirmative. Issue No.3 is whether the defendant Nos.1 and 4 prove that, the plaintiff is running money lending business at his locality by taking these kind of documents as a security and in order to substantiate the same,

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NC: 2025:KHC:39618 RSA No. 900 of 2025

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HC-KAR

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nothing is placed on record before the Trial Court by adducing any rebuttal evidence against the evidence of plaintiff and hence answered the same as negative and granted the relief of specific performance.

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The learned counsel for the appellants would submits that an appeal is filed before the First Appellate Court. The First Appellate Court having re-assessed the material available on record, when there was a delay in filing the appeal also, the same was considered and condoned the delay. However, the First Appellate Court committed an error in not reversing the finding of the Trial Court and erroneously comes to the conclusion that there was a sale agreement and plaintiff was always ready and willing to perform his part of contract and comes to the conclusion that not requires any interference and confirmed the judgment of the Trial Court. Hence, present second appeal is filed before this Court.

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The counsel would vehemently contend that

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this property is the only property belongs to the family and

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5 - NC: 2025:KHC:39618 RSA No. 900 of 2025

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the Trial Court has not considered the hardship and counsel also would contend that there are other sharers and other two daughters have filed the suit for the relief of partition and contend that though suit was filed for the relief of partition which was dismissed at the first instance, subsequently, an appeal was filed before the Appellate Court and the same was remanded to the Trial Court for fresh consideration in R.A.No.22/2023.

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Having taken note of the submission of the counsel appearing for the appellants and also reasoning given by the Trial Court and categorically admitted before the Trial Court that they have executed the sale agreement and also received the sale consideration of Rs.3,00,000/as against Rs.3,50,000/-, but only contention was taken that they are ready to repay the amount with interest and also when the counsel would contend that hardship is not considered by the Trial Court but, appellants have not led any evidence before the Trial Court with regard to the hardship is concerned and except

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NC: 2025:KHC:39618 RSA No. 900 of 2025

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taking the defence for repayment is concerned, nothing is placed on record before the Trial Court to substantiate the contention by the counsel appearing for the appellant and when the sale agreement is admitted and also receipt of sale consideration of Rs.3,00,000/as against Rs.3,50,000/- is admitted, the very contention of the counsel that other two daughters have filed the suit cannot be a ground since O.S.No.59/2019 is filed for the relief of specific performance, apart from that registered sale agreement dated 12.09.2016 and only after filing of the suit for the relief of specific performance in O.S.No.59/2019, it is very clear that other two daughters have been set up in filing a suit for the relief of partition and the same is nothing but an off-shoot as against the relief of the specific performance. Hence, I do not find any ground to comes to a conclusion that both the Trial Court and Appellate Court have committed an error and when the mother as well as other two sons have executed the sale deed, nothing is also placed before the Trial Court

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NC: 2025:KHC:39618 RSA No. 900 of 2025

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HC-KAR

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that it is an ancestral property. When there is no such issue before the Trial Court also and even in the Appellate Court also and when such material is not placed before the Court, question of admitting the second appeal does not arise. Hence, I do not find any substantive question of law to admit the second appeal.

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