Sri N Vishakantegowda Vs Smt Gayathramma

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.03.2023 PASSED IN RA.NO.35/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT PANDAVAPURA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.04.2022 PASSED IN O.S.NO.255/2022 ON THE FILE OF THE C/c. ADDITIONAL CIVIL JUDGE AND JMFC, PANDAVAPURA.

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NC: 2026:KHC:768 RSA No. 1130 of 2023

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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 RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 17.03.2023 passed by Additional Senior Civil Judge and JMFC, at Pandavapura, in R.A.no.35/2022 and judgment and decree dated 16.04.2022 by Additional Civil Judge and JMFC, Pandavapura, in O.S.no.255/2015, this second appeal is filed.

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Sri Akshay S., learned counsel appearing for Sri Srinivasa D.C., advocate for appellant submitted that appeal was by defendant no.1 in suit for specific performance. It was submitted, O.S.no.255/2015 was filed by respondent no.1 herein (plaintiff) seeking for decree of specific performance on Agreements of Sale dated 20.07.2012, 20.10.2012 and 12.02.2013, whereunder defendant no.1 agreed to sell immovable property measuring 18 guntas of land bearing Old Sy.no.354/2B (New Sy.no.354/4) situated at Thonnur village, Kasaba Hobli, Pandavapura Taluk in favour of plaintiff for total sale consideration of Rs.3,24,000/and by receiving Rs.1,62,000/- as advance under Agreement of Sale dated

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NC: 2026:KHC:768 RSA No. 1130 of 2023

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20.07.2012; Rs.1,00,000/- under Agreement of Sale dated 20.10.2012 and Rs.12,000/- under Agreement of Sale dated 12.02.2013 leaving balance sale consideration of Rs.50,000/to execute sale deed by receiving balance amount, within three months.

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It was stated that though plaintiff had called upon defendants to perform their part of obligation, defendants had failed to do so. Therefore, legal notice was issued on 22.07.2015 to appear before Sub-Registrar, Pandavapura, for receiving balance sale consideration and to execute sale deed. Despite receipt of notice, there was no reply, giving rise to cause of action for filing suit.

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It was submitted, on receipt of summons, defendant no.1 entered appearance and filed written statement denying execution of Agreements of Sale. On other hand, it was contented that defendant no.1 had borrowed sum of Rs.1,00,000/- from plaintiff agreeing to repay with interest at rate of 1.50% per month. At that time, plaintiff had obtained signatures of defendant no.1 on blank documents and which by colluding with scribe and witnesses, utilized for preparation of

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NC: 2026:KHC:768 RSA No. 1130 of 2023

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false Agreements of Sale and it was asserted that defendant no.1 had replied to plaintiff’s legal notice on 06.08.2015. Besides it was claimed that suit property was ancestral property and never intended to be sold.

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Defendants no.2 and 3 filed separate written statement denying plaint averments. It was contented that suit property was ancestral property of defendants and defendant no.1 had misused entries in revenue records exclusively in name of defendant no.1 for depriving interests of defendants no.2 and 3. It was contended that defendant no.1 had no exclusive right to sell suit property which was joint family property and sought for dismissal of suit.

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Based on pleadings, trial Court framed following:

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ISSUES

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1) Whether plaintiff proves that, the defendant has executed sale agreement in respect of suit schedule property on 20.07.2012 in favour of plaintiff, for sale consideration of Rs.3,24,000/out of which the defendant has received Rs.1,62,000/as advance?

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2) Whether the plaintiff proves that, the defendant have agreed to execute final sale deed in respect of suit schedule property within three months

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NC: 2026:KHC:768 RSA No. 1130 of 2023

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from the date of execution of sale agreement?

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3) Whether the plaintiff proves that, the plaintiff has performed his readiness and willingness his part of contract?

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4) Whether defendant proves that, the plaintiff has obtained the signature of the defendant on the blank paper for the purpose of loan advanced by the plaintiff as contended in para No.3 of the written statement?

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5) Whether plaintiff proves that, the plaintiff is entitle for the relief of specific performance of contract as sought in the plaint?

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6) What order or decree?

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ADDITIONAL ISSUES DATED 26.03.2021

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1) Whether defendant No.2 and 3 proves that, suit property is ancestral joint family property of defendant?

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Thereafter, plaintiff examined herself, scribe and

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witnesses to Agreements of Sale as PW.1 to PW.3 and got marked Exhibits-P1 to P17. Rebuttal evidence was led by defendant no.1 examining himself as DW.1 and defendant no.3 as DW.2 and got marked Exhibits-D1 to D7.

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On consideration, trial Court answered issues no.1

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to 3, 5 and additional issue no.1 in negative; issue no.4 in

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NC: 2026:KHC:768 RSA No. 1130 of 2023

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affirmative and issue no.6, dismissing suit by imposing cost of Rs.1,000/-.

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Aggrieved, plaintiff preferred appeal in

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R.A.no.35/2022 on various grounds. Based on which, first appellate Court framed following points for its consideration:

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1) Does plaintiff, before trial Court, established that 1^st defendant by agreeing to sell schedule property, executed three sale agreements dated 20.07.2012, 20.10.2012 and 12.02.2013 and received total advance consideration of Rs.2,74,000/- and agreed to receive balance consideration of Rs.50,000/on the date of execution of sale deed?

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2) Does, before trial Court, plaintiff established that she was ever ready and willing to perform her part of contract?

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3) Does, judgment and decree of trial Court requires interference of this Court?

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4) What order or decree?

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On consideration, it answered points no.1 to 3 in

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affirmative and point no.4 by allowing appeal, setting aside judgment and decree passed by trial Court and decreeing suit directing defendant no.1 to execute sale deed in favour of plaintiff within three months by receiving balance sale

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consideration. Aggrieved thereby, defendant no.1 preferred this second appeal.

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It was submitted that judgment of first appellate

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Court suffered from perversity, insofar as ignoring fact that as per Agreements of Sale, time of three months was fixed for payment of balance sale consideration, whereas Exhibit-P4 - legal notice was got issued by plaintiff on 22.07.2015 beyond said period. It was submitted, plaintiff had admittedly filed suit for recovery of money against defendants and having failed to secure repayment, resorted to creating Agreements of Sale and filing suit for specific performance.

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It was submitted, while dismissing suit, trial Court had taken note of admission elicited in cross-examination of PW.1 that he did not know particulars of property in relation to which Agreements of Sale were executed, which would amount to contradicting plaint averments. Under such circumstances, reversal of trial Court decree by first appellate Court would be contrary to material on record and therefore substantial question of law about erroneous approach of first appellate

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NC: 2026:KHC:768 RSA No. 1130 of 2023

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Court arose for consideration and sought for admitting and allowing appeal.

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Heard learned counsel and perused impugned judgment and decree.

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This second appeal is by defendant no.1 challenging judgment and decree passed by first appellate Court decreeing suit for specific performance. Main grounds of challenge urged are that when defendant no.1 had clearly denied/disputed intention to sell and there were loan transactions between parties for which plaintiff had earlier filed suit for recovery of money, contention of concoction of Agreements of Sale was probablized. Without proper appreciation of same, first appellate Court allowed appeal. Secondly, issuance of legal notice was beyond time stipulated in agreements establishing lack of readiness and willingness.

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While passing impugned judgment, first appellate Court re-appreciated pleadings and deposition of parties along with documents to evidence. It has assigned reasons for arriving at its conclusions on points framed for consideration.

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Thus there is compliance with requirements of Order XLI Rule 31 of Code of Civil Procedure, 1908. And while arriving at its finding about plaintiff establishing execution of Agreements of Sale, it referred to deposition of plaintiff as PW.1, deed writer as PW.2 and witness to Exhibits-P1 to P3 - Agreements of Sale as PW.3 and observed that deposition of plaintiff, deed writer and attesting witnesses were consistent with plaintiff's assertions. It also specifically noted that despite detailed crossexamination nothing is elicited to controvert suit claim.

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Insofar as contention denying execution of Agreements of Sale or lack of intention to sell, it noted that Exhibit-P1 was a registered Agreement of Sale recording receipt of advance sale consideration of Rs.1,62,000/- out of total sale consideration of Rs.3,24,000/- and agreeing to convey suit property in favour of plaintiff. Thus, Exhibit-P1 being registered document and attracting presumption weighed with first appellate Court. It also observed there were no pleadings alleging fraud in execution of Agreements of Sale nor any evidence led to substantiate same. It further observed that defendant no.1 was a retired teacher and deemed to be well

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NC: 2026:KHC:768 RSA No. 1130 of 2023

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aware of consequences of execution of deeds and cannot claim to be ignorant/innocent. On said ground, it held Agreements of Sale as having been established.

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Insofar as contention about defendant no.1 having borrowed loan and executing documents as guarantee for said loan, it observed trial Court had proceeded on assumptions and presumptions which were beyond pleadings. Insofar as dispute about financial capacity of plaintiff i.e. readiness and willingness, it noted receipt of payment of further sale consideration under ancillary Agreements of Sale i.e. ExhibitsP2 and P3 as well as payment of Court Fee before trial court as well as first appellate Court substantiated financial capacity and readiness and willingness on part of plaintiff. On said reasoning, it decreed suit for specific performance. It is seen that there is some basis for first appellate Court to have arrived at conclusion. In other words, it cannot be said that findings of first appellate Court are without any basis nor can it be said that there is no re-appreciation of material on record. Consequently, no case of perversity in findings is made out. No

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