IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA R.S.A. No.2018/2016 BETWEEN:
1. Sharathkumar, S/o. K. Nanjundegowda, Aged about 37 years 2. Bharathakumar, S/o. K. Nanjundegowda, Aged about 43 years.
Both are resident of No.170/2, Shree Nandi Farm House, Rajivanagar, 2nd Stage, Mysuru – 19. ….Appellants (By Sri.P. Mahesha, Advocate) AND:
1. Mr. Althaf Pasha, S/o. late Mr. Shaik Peer, Aged about 46 years, Resident of No.105, 3rd Main, C Layout, Bannimantap Layout, Mysuru – 15.
2. Fazaulla Shariff, S/o. late Buden Shariff, Aged about 54 years, Resident of No.185, 1st Stage, Udayagiri, Mysuru – 19. ….Respondents (Sri. Abubacker Shafi, Advocate) This RSA is filed under Section 100 of CPC against the Judgment and Decree dated 25.08.2016 passed in R.A.No.234/2013 on the file of the VII Addl. District & Sessions Judge, Mysuru, dismissing the appeal and confirming the Judgment and Decree dated 25.02.2013 passed in OS No.55/2006 on the file of the Principal Judge, Court of Small Causes, Mysuru.
This RSA coming on for admission this day, the Court delivered the following:
J U D G M E N T This second appeal is preferred by defendant Nos. 3 and 4 in O.S.No.55/2006 on the file of the Principal Judge, Court of Small Causes, Mysuru, challenging the concurrent judgments and decrees passed by the Courts below, whereby the suit of the plaintiff has been decreed.
2. Facts leading to this appeal are 1st respondent/plaintiff filed a suit in O.S.No.55/2006 against Sri. K. Nanjundegowda and four others for specific performance of contract directing the defendants to execute the registered Sale Deed in favour of plaintiff in respect of the suit schedule property by receiving the balance sale consideration amount. During the pendency of the suit, the 1st defendant Sri. K. Nanjundegowda had sold the suit property in favour of Sri. Fazaulla Shariff and therefore plaintiff got impleaded the said Sri. Fazaulla Shariff as defendant No.5 in the suit. The trial Court after conducting trial and hearing the arguments advanced by the learned counsel appearing for parties decreed the suit of the plaintiff as under:
“Defendants are hereby directed to execute sale deed duly conveying the suit schedule property in favour of the plaintiff in terms of agreement of sale dated 29.01.2004 after receiving balance sale consideration amount within 3 months from the date of this Judgment.
If defendants fails to do so, the plaintiff is at liberty to get it done through the agency of this Court.”
3. Aggrieved by the said judgment and decree of the trial Court, the defendants No.3 and 4 challenged the same by preferring a Regular Appeal in R.A.No.234/2013 before the VII Addl. District and Sessions Judge, Mysuru and it was also dismissed. Challenging these concurrent judgments and decrees of the Courts below defendant Nos.3 and 4 in the suit have preferred this second appeal.
4. Sri. P. Mahesha, learned counsel for the appellants/defendant Nos.3 and 4 submits that in the agreement of sale/Ex.P1 name of the proposed purchaser is not mentioned and therefore, it is not a valid agreement. The courts below without considering this aspect of the matter have committed serious error in decreeing the suit of the plaintiff. He further submits, as per Indemnity Bond/Ex.P2 if the defendant Nos.1, 2 and 3 fail to execute the Sale Deed in favour of the plaintiff in respect of the suit schedule property, the plaintiff is entitled for recovery of the advance sale consideration and they are not entitled for specific performance of contract. The courts below without considering this have committed an error in decreeing the suit of the plaintiff.
Learned counsel further submits that the suit schedule property is ancestral joint family property and the defendant No.4 viz.Bharath Kumar being not party to the agreement of sale/Ex.P1 is not bound by the said agreement. The courts below without considering this have committed an error in decreeing the suit of the plaintiff including the share of defendant No.4 – Bharath Kumar in the suit schedule property. Learned counsel further submits, 2nd respondent who is 5th defendant in the suit has died during the pendency of the appeal and unless his LRs are brought on record, appeal cannot be proceeded. Learned counsel finally submits that there are substantial questions of law, which arise for consideration. Therefore, he prays for admitting the appeal for considering those substantial questions of law.
5. Per contra, Sri. Abubacker Shafi, learned counsel for the contesting 1st respondent/plaintiff submits that defendants have categorically admitted the execution of agreement of sale/Ex.P1 by defendant Nos.1 to 3 in favour of plaintiff and therefore, there is no merit in the contention of the appellants that the name of the purchaser is not mentioned in the agreement Ex.P1. Learned counsel further submits that the Indemnity Bond Ex.P2 executed by defendant Nos.1 to 3 in favour of the plaintiff is to the effect that, if for any reason defendant Nos.1 to 3 have failed to execute the sale deed in favour of the plaintiff within 6 months from the date of agreement they would compensate/refund the advance sale consideration of Rs.1,20,000/- with any damages as to be claimed by the plaintiff.
6. Learned counsel submits that the suit property is a self acquired property of the 1st defendant and therefore, there is no merit in the contention of the appellants that 4th defendant is not a signatory to the agreement of sale. Therefore, he was not necessary party to the agreement. Accordingly, he has not signed it. However, he submits that the 1st defendant had alone sold the suit property in favour of 5th defendant in violation of the interim order granted by the trial Court in the suit. He submits there is no substantial question of law that arises for consideration and therefore, he prays for dismissal of the appeal.
7. The plaintiff in support of his case that defendant Nos.1 to 3 executed an agreement of sale/Ex.P1 dated 29.01.2004 agreeing to sell the suit property in favour of plaintiff for Rs.3,20,000/- and has received Rs.1,20,000/- towards advance sale consideration on the date of agreement itself and thereafter have postponed to execute the sale deed on one or the other reason and also on the ground that there is notification issued by the MUDA for acquisition of the said property and he has challenged it by preferring Writ Petition before this Court and even after disposal of the Writ Petition, defendants have not come forward to execute and register the sale deed in favour of the plaintiff in spite of repeated requests and issuance of notice and therefore, he filed the suit for specific performance of contract has examined himself as PW1. PW1 by reiterating the averments made in the plaint has produced the original Agreement of Sale and Indemnity Bond executed by defendant Nos.1 to 3 in favour of the plaintiff and they were marked as Ex.P1 and Ex.P2 respectively. Notice issued by the plaintiff calling upon defendant Nos.1 to 3 to execute the sale deed in his favour was produced and marked as Ex.P3. Reply notice issued by the defendant was also produced by the plaintiff and it was marked as Ex.P4 and another notice issued by the plaintiff was also produced by him and marked as Ex.P5. He has also produced Paper Publication, Application and Encumbrance Certificate regarding suit land which were marked as Ex.P6, P7 and Ex.P8, respectively. Though defendants denied the execution of agreement of sale Ex.P1 in their written statement, DW1 in his cross-examination clearly admitted the execution of Agreement of Sale/Ex.P1 and Indemnity Bond/Ex.P2 in favour of the plaintiff. He has further admitted the receipt of advance sale consideration of Rs.1,20,000/-. Hence, the Court held that plaintiff has proved that defendants have duly executed the agreement of sale dated 29.01.2004 and Indemnity Bond agreeing to sell the suit property for Rs.3,20,000/- and have received advance sale consideration of Rs.1,20,000/-. Considering this the trial Court was justified in answering issue No.1 in the affirmative.
8. Plaintiff in order to prove that he was ready and willing to perform his part of the contract, has not only averred to its effect in the plaint but has also stated so in his evidence. Apart from that he has produced Legal Notice issued by him at Ex.P3 and another Notice at Ex.P5 calling upon the 1st defendant to execute the sale deed in his favour. He has also produced copy of the Writ Petition filed by the defendants challenging the Notification issued by MUDA for acquisition of the suit land. Considering this the trial Court was justified in answering issue No.2 in the affirmative and holding that plaintiff has proved that he is ready and willing to perform his part of the contract and defendant Nos.1 to 3 were not in a position to execute the sale deed in his favour within 6 months time as agreed in the agreement of sale in view of the notification issued by the MUDA for acquisition of the suit property.
9. In view of the admission made by DW1 that defendant Nos.1 to 3 have entered into an agreement of sale/Ex.P1 with the plaintiff agreeing to sell the suit property in favour of the plaintiff, there is no merit in the contention of the learned counsel for the appellant that the name of the purchaser is not mentioned in the agreement of sale.
10. Learned counsel for the appellants does not dispute the fact that the trial Court had granted an order of temporary injunction restraining the defendants No.1 to 4 from alienating the suit schedule property in favour of any person during the pendency of the suit. It is also not in dispute that the 1st defendant alone had sold the suit property in favour of the 5th defendant on 17.07.2006 through a registered sale deed dated 17.07.2006, which was produced and marked as Ex.D13, in violation of the order of temporary injunction granted by the trial Court. It is also observed by the trial Court that 5th defendant in turn sold the suit property in favour of one Aslam Ahmed through registered sale deed dated 19.12.2006, which was produced and marked as Ex.D12.
11. The 4th Defendant Bharath Kumar who contends that the suit schedule property is an ancestral joint family property and he is not signatory to the agreement of sale-Ex.P1 and therefore, the said agreement is not binding on him, has not chosen to challenge the sale deed executed by 1st defendant in favour of 5th defendant and the sale deed executed by 5th defendant in favour of one Aslam Ahmed.
13. Whereas it is the case of the plaintiff that the suit property was the self acquired property of 1st defendant, as recited in the agreement of sale/Ex.P1, wherein it was mentioned that the suit property was bequeathed by Basavegowda in favour of 1st defendant Nanjundegowda. As such, there is no merit in the contention of the learned counsel for the appellants that 4th defendant is not a party to the agreement of sale-Ex.P1 and therefore, agreement of sale executed by defendant Nos.1, 2 and 3 is not binding on him. Lastly, as already stated 1st defendant had sold the suit property in favour of 5th defendant in violation of the order of temporary injunction granted by the trial Court in the suit through registered sale deed dated 17.07.2006 and in turn 5th defendant had sold the suit property to one Aslam Ahmed through the registered sale deed dated 19.12.2006 which were produced and marked as Ex.D13 and D12, respectively. The 4th defendant has not challenged the said sale transactions.
In view of sale of suit schedule property by first defendant - the father of the appellants namely K.Nanjundegowda, the appellants have no subsisting interest in the proceedings and have been unnecessarily harassing the plaintiff who under agreement of sale Ex.P1 had paid Rs.1,20,000/- towards advance sale consideration, because of rise in the value of the property and this is evident from the fact that defendant Nos.1 to 3 under the agreement of sale Ex.P1 had agreed to sell the suit property in favour of plaintiff for Rs.3,20,000/- whereas 1st defendant alone had sold the suit property to 5th defendant for Rs.5,00,000/-.
Considering the above material aspects of the matter, the trial Court was justified in decreeing the suit of the plaintiff by directing the defendants to execute the registered sale deed in favour of plaintiff in respect of the suit schedule property by receiving the balance sale consideration. The First Appellate Court after re- appreciating the entire oral and documentary evidence on record was justified in dismissing the appeal and confirming the judgment and decree passed by the trial Court. As already stated though defendant Nos.3 and 4 have no subsisting interest in the suit property and knowing fully well their father had sold the suit property in favour of 5th defendant and 5th defendant in turn sold the suit property in favour of one Aslam Ahmed still continued the litigation only with an intention to harass the 1st respondent/plaintiff. I have carefully gone through the judgments and decrees passed by the Courts below and do not find any illegality or infirmities warranting interference of this Court and further there is no any substantial question of law which arises for consideration. Therefore, the appeal is liable to be dismissed.
Accordingly, appeal is dismissed as devoid of merits with cost of Rs.25,000/-. It is made clear that the 1st respondent / plaintiff can recover the cost of Rs.1,00,000/- by filing an Execution Petition against the appellants / 3rd and 4th defendants. Appellants have no locus standi to defend this case.
In view of disposal of the main appeal I.A.No.1/2016 for stay does not survive for consideration. Accordingly, I.A.No.1/2016 is rejected.
SD/- JUDGE SV