IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE Mr. JUSTICE H.P. SANDESH R.F.A. No. 503/2012 BETWEEN :
Smt. Gowramma W/o. K. Thimmappa Aged about 62 years R/a. Old No. 121/B New Corporation No. 9/3 I Main, I Block, V Cross Gowramma Compound Bangalore. … APPELLANT (By Sri. S. Subramanya, Adv., for M/s. Upasana Associates, Advs.) AND :
1. Smt. M. Nagarathnamma @ Rathna Aged about 49 years D/o. Mise Narayanappa No. 46, I Main, Near Bus stop Byrasandra Bangalore – 560 011.
2. Sri. K. Srinivasa Aged about 40 years No. 10, II Main I Block East Jayanagar Bangalore – 560 011. … RESPONDENTS (By Sri. Ashok T, Adv., for R-1 Sri. H.N.Basavaraju, Adv,. For Sri. M.R. Rajagopal, Adv., for R-2) ---
This R.F.A. is filed under Section 96 of CPC against the judgment and decree dated 09.01.2012 passed in O.S. No. 4841/2005 on the file of V Additional City Civil Judge, Bangalore dismissing the suit for specific performance and permanent injunction and etc.
This R.F.A. coming on for further arguments this day, the Court delivered the following;
J U D G M E N T This appeal is filed challenging the judgment and decree passed in O.S. No. 4841/2005 on the file of V Additional City Civil Judge, Bangalore, dated 09.01.2012 dismissing the suit filed by the appellant/plaintiff with the cost of Rs.5,000/-.
2. Parties are referred as per their ranking before the trial Court.
3. The brief facts of the case in the suit filed by the plaintiff are that No. 1 being the owner of the Corporation property No. 9/3 old number 121/B situated at 5th Cross Road, I Block East, Bangalore measuring East to West 40 feet North to South 14 feet, agreed to sell the same vide agreement dated 30.03.1992 for valuable consideration of Rs.1,00,000/-. On the date of agreement of sale the plaintiff paid an advance sale consideration of Rs.60,000/- and defendant No. 1 agreed to receive the balance sale consideration of Rs.40,000/- at the time of registration of the suit schedule property. The time fixed for completing the sale transaction is 20 years because defendant No. 1 requested the plaintiff to stay in the suit schedule property as she had no accommodation to stay and therefore time was fixed for 20 years from the date of agreement of sale. The plaintiff submits that however symbolic possession of the suit schedule property was handed over to the plaintiff herein. The defendant No. 1, infact, was the owner of another portion of the same property bearing No. 9/3, old No. 121/B, 5th cross Road, I Block, Jayanagar I Main measuring East to West 40 feet and North to South 21 feet has sold the said property in favour of the plaintiff by executing the registered sale deed 30.03.1992, i.e., on the very same day. In fact, defendant No. 1 also executed irrevocable General Power of Attorney empowering the plaintiff to do all acts, deeds and things in respect of the suit schedule property on 30.03.1992.
4. The plaintiff was ready and willing to perform her part of contractual obligation by paying the balance sale consideration to defendant No. 1. Defendant No. 1 was postponing the same and when the plaintiff came to know that defendant No. 1 made an attempt to sell away the suit schedule property resisted the same and issued a legal notice dated 01.06.2005 calling upon defendant No.
1 to come and execute a sale deed in her favor. The said notice was served on defendant No. 1 but, she has not given any reply to the legal notice. In spite of that she sold the suit schedule property in favor of defendant No. 2 on 08.06.2005. Hence the present suit is filed for the relief of the judgment and decree for specific performance of contract, directing defendant No. 1 to execute the sale deed and to pass a judgment and decree of permanent injunction in favor of plaintiff as against defendants.
5. In pursuance of the suit filed by the plaintiff notices are issued against defendant Nos. 1 and 2.
Defendant No. 1 appeared through counsel and filed written statement denying the very execution of sale agreement dated 30.03.1992. Defendant No. 1 also denied the averment made in the plaint that an amount of Rs.60,000/- was paid as advance and balance was payable at the time of registration of the document and the period of agreement was for 20 years. It is contended that defendant No.1 has not entered into any sale agreement with the plaintiff and the time fixed is 20 years is also false. The plaintiff has fabricated, created and concocted the document of sale agreement and GPA.
6. The averment that symbolic possession of the property was handed over to the plaintiff is utter false. In fact defendant No. 1 and her sister were in possession of the property with a house constructed in the said property until the suit schedule property was sold in favor of defendant No.2. Defendant No. 1 also denied that she is the owner of another portion of suit schedule property. Defendant No. 1 is the absolute owner of the suit schedule property and agreed to sell the same in favor of plaintiff is not correct. Defendant No. 1 also denied the averment that the plaintiff was ready and willing to purchase the property and also denied the issuance of legal notice dated 01.06.2005.
7. Defendant No. 2 who is the purchaser in his written statement has contended that he has purchased the property and he was not having any knowledge about the earlier sale agreement. He is the bonafide purchaser. He further contended that the documents which the plaintiff relies upon are concocted documents. Hence, the relief sought in the suit cannot be granted.
8. Based on the pleadings of plaintiff and defendants the Court below has framed the following issues.
1. Whether the plaintiff proves the due execution of agreement of sale dated 30.03.1992 with respect to sale of suit property for total consideration amount of Rs.1,00,000/- and has paid earnest money of Rs.60,000/-?
2. Whether the plaintiff proves that he is always ready and willing to perform her part of the contract?
3. Whether the second defendant proves that he is a bonafide purchaser for valuable consideration under registered sale deed dated 08.06.2005?
4. Whether the suit is properly valued and Court fee paid is proper and correct?
5. Whether the plaintiff is entitled for relief claimed in the suit?
6. What order or decree?
9. The plaintiff in order to substantiate the case has examined herself as P.W.1 and got marked Ex.P.1 to Ex.P.6. Defendant No. 2 examined himself as D.W.1 and got marked Ex.D.1 to Ex.D.15. The Court below after considering the material on record answered issue Nos. 1 and 2 in negative. The trial Court answered issue No. 3 in affirmative. Hence the present appeal is filed before this Court.
10. The appellant in this appeal has contended that the Court below erred in dismissing the suit without even placing reliance on the documents and further erred in observing that there is no recital in the sale agreement dated 30.03.1992 that time is fixed as 20 years. A reading of sale agreement Ex.P.1 makes it clear that the balance sale consideration of Rs.40,000/- is payable at the time of registration. The Court below did not peruse the agreement of sale which is marked as Ex.P.1 and also dismissed the suit on the ground that the suit is barred by limitation. The very approach of the trial Court that the suit ought to have been filed within three years from the date of agreement of sale is erroneous. The Court below failed to take note of the fact that the other portion of the property was sold on the very same day in favour of the plaintiff, in terms of Ex.P.6 and on the very same day in respect of the other portion i.e., suit schedule property she entered into an agreement of sale and received a sale consideration of Rs.60,000/- and also executed GPA which is marked as Ex.P.2. The Court below while considering issue No. 1 has committed an error that the document Ex.P.1 has not been proved by examining any of the attesting witnesses and also made an observation that the plaintiff was not ready and willing to purchase the suit schedule property by paying the balance sale consideration. The plaintiff has not produced any document to show that she has paid earnest money of Rs.60,000/-. The trial Judge has failed to appreciate the conduct of the parties to the suit. On receipt of legal notice Ex.P.3 defendant No. 1 has neither replied the same nor executed the sale deed in favor of the plaintiff. Hurriedly with an intention to defeat the rights of plaintiff, in collusion with defendant No. 2, defendant No. 1 has executed a registered sale deed in favour of defendant No. 2 on 08.06.2005 i.e., after due receipt of the legal notice. The trial Judge has committed an error in not appreciating the facts of the case and also question of law with regard to law of limitation and also failed to take note of the fact the defendant No. 2 did not make any enquiry before purchasing the property. Hence defendant No. 2 can not contend as a bonafide purchaser. Hence the judgment of dismissal of suit is liable to be set aside.
11. Learned counsel appearing for the appellant/plaintiff in his arguments vehemently contended that the document Ex.P.1 - sale agreement clearly shows that the period of agreement is categorically mentioned as 20 years. The Court below while passing the judgment observed that there is no time stipulation in the agreement. The Court below also committed an error in coming to the conclusion that the suit is barred by limitation. The Court below also failed to consider Ex.P.6 - the sale deed executed by the very defendant No. 1 in favour of plaintiff on the date of sale agreement in respect of other portion of the property and also executed GPA in terms of Ex.P.2. Though defendant No. 1 denies the very execution of the sale agreement and GPA, she did not choose to enter into the witness box. Written statement was filed but the defense taken in the written statement has not been proved. The Court below failed to consider the said fact. Instead of considering the evidence of D.W.1 who is the subsequent purchaser, the Court below comes to an erroneous conclusion that D.W. 2 is bona fide purchaser and he was not having any knowledge about the earlier transaction. Hence, the very approach of the trial Court is erroneous and requires interference by this Court.
12. Learned counsel appearing for defendant No. 2 in his argument vehemently contended that defendant No.
2 was not having any knowledge about the earlier sale transaction between the plaintiff and her vendor. In the cross examination of D.W.1 nothing is suggested to him that he was having knowledge of the earlier sale transaction. The other contention of the learned counsel is that legal notice was issued against defendant No.1 and notice was not issued to defendant No. 2 and if notice was issued to defendant No. 2 then there would have been force in the contention of the plaintiff's counsel that he had knowledge and hence defendant No. 2 is the bonafide purchaser for valuable consideration and hence the trial Court considering the material on record rightly appreciated both oral and documentary evidence and rightly comes to the conclusion that defendant No. 2 is the bonafide purchaser of suit schedule property. The learned counsel would also contend that before purchasing the property defendant No. 2 has taken the opinion from the counsel and after making the enquiry only he had purchased the suit schedule property and hence the Court below gave anxious consideration to the evidence available on record. Hence, there are no grounds to interfere with the findings of the trial Court.
13. In support of his arguments the learned counsel relied upon the judgment reported in ILR 2014 Kar. 233 in the case of Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa, since dead by his LRs and others. The learned counsel brought to my notice paragraph Nos. 18 and 61 to 64. By referring to the relevant paragraph the learned counsel would contend that Section 19(b) the specific performance of a contract can be enforced not only on either party thereto, but against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of original contract. Referring to this judgment the learned counsel would submit that defendant No. 2 had no knowledge of earlier transaction and the principles laid down in the judgment referred to supra is applicable to the facts on hand since defendant No. 2 is bonafide purchaser and there is no material to show that defendant No. 2 had any knowledge of earlier transaction and in spite of that he had purchased the property. Further, in support of his argument learned counsel also relied upon the judgment of the Apex Court in the case of Syed Abdul Khader Vs. Rami Reddy and others reported in (1979) 2 SCC 601. In the said judgment the Apex Court relied upon the judgment reported in (1872) 11 Bengal IR 46(PC) and the learned counsel brought to my notice the observations made by Judicial Committee that it is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man whoso allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry, that, if prosecuted, would have led to discovery of it. Relying upon the said judgments, the learned counsel would contend that defendant No. 2 is bonafide purchaser and he purchased the property without any notice and there was no constructive notice and there was no direct notice against him and hence, he is a bonafide purchaser. Further, the learned counsel vehemently contended that the Court below has not committed any error in appreciating the material on record and rightly it comes to the conclusion that defendant No. 2 is a bonafide purchaser. Hence, there is no merit in the appeal.
14. In reply to the arguments of learned counsel for defendant No. 2, learned counsel for the appellant would contend that the subsequent purchaser must substantiate that he purchased the property in good faith and also he was not having any knowledge about the earlier transaction and these two aspects have to be proved by him. The very cross examination dislodges the case of defendant No. 2 that he had purchased the property in good faith, since it is stated that he has not made any enquiry before purchasing the property and hence, the principles laid down in the judgments referred to supra are not applicable to the facts on hand. The plaintiff is also one of the neighbours having purchased the other portion of the property from the same vendor and no enquiry was made with the neighbours and he was also having knowledge about the plaintiff being the owner of the neighbouring land.
15. Having heard the learned counsel appearing for the parties and keeping in view the contentions of the respective learned counsel the points that arise for my consideration are:
I. Whether the Court below committed an error in answering issue Nos. 1 and 2 in negative and coming to the conclusion that the plaintiff has not proved the agreement of sale dated 30.03.1992 and he was not ready to perform his part of contract and it requires interference by this Court?
II. Whether the Court below committed an error in answering issue No. 3 in affirmative in coming to the conclusion that defendant No. 2 is the bonafide purchaser and it requires interference by this Court?
III. What order?
Point No. I 16. It is the case of plaintiff that defendant No.1 has executed an agreement of sale dated 30.03.1992 with respect to suit schedule property for sale consideration of Rs.1,00,000/- and she has paid an amount of Rs.60,000/- and remaining amount was payable at the time of registration of the document. She was always ready and willing to perform her part of agreement. The time fixed in the agreement is 20 years as per Ex.P.1 and during the subsistence of agreement of sale defendant No. 1 has executed the sale deed in favor of defendant No. 2. When plaintiff came to know that defendant No. 1 is making her efforts to sell the property to some other person she got issued the legal notice. Defendant No.1 did not give any reply to the notice and instead of giving reply she executed the sale deed in favour of different No. 2 to defeat the rights of plaintiff.
17. Defendant No. 1 appeared and filed written statement before the Court denying the execution of the sale agreement and also GPA. She also denied very execution of Ex.P.6 dated 30.03.1992. Defendant No. 1 did not choose to enter into the witness box and also did not choose to cross examine the witness P.W.1. Defendant No. 2 took up the defense that there was no such sale agreement and he is bonafide purchaser and it was not in the knowledge of defendant No. 2 that there was a sale transaction between plaintiff and defendant No. 1.
18. Plaintiff in order to substantiate the claim made in the suit examined herself as P.W. 1 and got marked Ex.P.1 to Ex.P.6. Plaintiff relied upon Ex.P.1 - sale agreement, Ex.P.2 – GPA, Ex.P.3 – copy of notice dated 01.06.2005, Ex.P.4 – certificate of posting, Ex.P.5 – postal acknowledgement and Ex.P.6 – certified copy of the sale deed dated 30.03.1992. In the cross examination of P.W.1 learned counsel appearing for defendant No. 2 elicited that the period is not mentioned in the agreement and denied the suggestion that no such agreement was executed by defendant No. 2. Except executing the agreement defendant No. 1 has not executed any other documents. It is also elicited that she cannot tell after how many years of executing the sale agreement in her favour the property was sold. However defendant No. 1 admits that now defendant No. 2 is collecting the rent. It is also her evidence that one Rajanna, Advocate brought the stamp paper and got typed the agreement. It is suggested that the said counsel did not prepare the agreement and the same was denied. It is also elicited that for paying the balance amount, she has not produced any document. It is suggested that both herself and defendant No. 1 have joined together and filed the present suit in order to extract the money from defendant No. 2 and the same is denied. Defendant No. 2 in his affidavit in lieu of his chief examination narrated the defence taken in the written statement and got marked Ex.D.1 to Ex.D.15. He was subjected to cross- examination. In the cross examination he admits that he has purchased the site through a broker. Before purchasing he has ascertained from the neighbouring owners regarding pendency of dispute and other cases. He does not know names of neighbouring owners. He has stated that he has enquired with the broker and not enquired any neighbours. He has stated that he has also taken opinion from the advocate, but he has not produced the said document before the Court. It is elicited that before purchasing he has not given any paper publication. He knows that there is site of plaintiff Gowramma towards southern side of his property. It is suggested that Gowramma is the first agreement holder and inspite of knowing that he purchased the disputed site and the same was denied. He does not know before he purchased the property that plaintiff has issued any notice to defendant No. 1 with an intention to purchase the site as per the agreement. He admits that he has not stated in his written statement regarding the enquiry made by him with the neighbouring site owners and also taken any legal opinion. It is suggested that he is not a bonafide purchaser and the plaintiff has got right over the property and the same was denied.
19. Having considered the answers elicited from the mouth of P.W.1 and also from the mouth of D.W.1 and keeping in view the contentions of both the respective counsel in the appeal this Court has to re-appreciate the evidence available on record. This Court has to consider the question of fact and question of law and first appellate Court has to re-appreciate both. Keeping in view the scope of this appeal this Court has to reconsider the material on record.
20. The very case of the plaintiff is that she has entered into an agreement of sale with the defendant No. 1 in respect of suit schedule property. It is her case that the southern portion of the property was purchased by her from the same vendor, i.e., defendant No. 1 on the very same day, i.e, 30.03.1992. To substantiate the same the plaintiff has relied upon sale deed, which is marked as Ex.P.6. It is the case of plaintiff that on the very same day defendant No. 1 has executed the sale agreement in terms of Ex.P.1. It is also the case of plaintiff that GPA was executed on the very same day in terms of Ex.P.2. It is also the case of plaintiff that when she came to know about defendant No.1 is making efforts to sell the property to defeat the right of plaintiff she caused a legal notice in terms of Ex.P.3. The same was sent under UCP Ex.P.4 and registered postal acknowledgement is Ex.P.5. The notice issued against defendant No. 1 was served in terms of Ex.P. 5. dated 01.06.2005. It has to be noted that it is the case of plaintiff that she entered into agreement with defendant No. 1 in terms of Ex.P.1. Defendant No. 1 appeared through counsel and filed written statement denying the execution of sale agreement. It has to be noted that though defendant No.1 filed written statement counsel appearing for defendant No. 1 did not choose to cross examine P.W.1 to dispute the documents which have been relied by plaintiff. It is also important to note that defendant No.1 did not choose to enter into the witness box to substantiate the contentions taken in the written statement. The Court below while considering the documents produced by the plaintiff made erroneous observation that there was no time stipulation in the agreement. Perusal of Ex.P.1 indicates that the period is specifically mentioned as 20 years and plaintiff has also given the reason as to why 20 years of period is mentioned in the document Ex.P.1. No doubt in the cross- examination P.W.1 has admitted that no time is stipulated in Ex.P.1. The Court below failed to take note of the fact that documentary evidence excludes the oral evidence and erroneously carried away in taking note of the admission of P.W.1 in the cross-examination that there is no time stipulation.
21. The Court below even without any issue with regard to limitation and when no such specific defence was taken as to the suit is barred by limitation, while discussing in paragraph No. 9 of the judgment, answered issue numbers 1 and 2 made an observation that suit is barred by limitation. When once the suit is barred by limitation, the suit of the plaintiff is not maintainable. It has to be noted that time is the essence of contract and Ex.P.1 is denied by defendant No. 1 in the written statement and did not cross-examine the witness P.W.1 with regard to Ex.P.1 and also did not stepped into witness box to substantiate the contention. It is also pertinent to note that in Ex.P.1 time is stipulated as 20 years. Sale deed was executed in favor of defendant No. 2 within a period of 12 years from the date of sale agreement. It is the case of plaintiff that when she came to know that defendant No. 1 is making efforts to sell property in favour of third person immediately caused notice in terms of Ex.P.3 on 01.06.2005. The certificate of posting which is marked as per Ex.P.4 discloses that the notice was dispatched on 01.06.2005. The postal acknowledgement Ex.P.5 discloses that the same was delivered on 03.06.2005. Though the date is not mentioned, the postal acknowledgement discloses date as 03.06.2005. It is also important to note that immediately after receipt of notice from plaintiff defendant No. 1 did not choose to give any reply and instead of giving reply either admitting or denying the very execution of Ex.P.1 and Ex.P.2 executed the sale deed in favor of defendant No. 2 in a hurried manner on 08.06.2005. The Court below failed to consider all these factors and when the defendant No. 1 though took defence of non execution of Ex.P.1 and Ex.P.2 in the written statement, did not cross-
examine P.W.1 and also not led any evidence and not disputed execution of Ex.P.1 and Ex.P.2 but the Court below made an observation that plaintiff did not choose to examine any witness to prove the execution of the document Ex.P.1. First of all no reply was given to Ex.P.3 notice. Instead of giving reply defendant No. 1 executed sale deed and did not choose to cross examine the witness P.W.1 and also did not choose to enter into the witness box. It is further important to note that sale deed is executed within four days of receipt of notice and there is no any sale agreement and defendant No.1 executed sale deed and it shows that defendant No. 1 and defendant No.
2 in order to defeat the right of the plaintiff created the sale deed. When such being the case, the trial Court ought to have considered both oral and documentary evidence available on record before recording a finding. The trial Court erroneously proceeded to answer issue No. 1 in negative.
22. Issue No. 2 was with regard to readiness and willingness on the part of plaintiff. In the instant case time stipulated in the agreement is 20 years. It is not the case of defendant No. 1 that the plaintiff did not come forward to have the sale deed within the stipulated time. Immediately when the plaintiff came to know that defendant No. 1 is making efforts to sell the property, she has caused the legal notice. The same is served on defendant No. 1. Limitation is three years from the date of refusal. But in the case on hand time stipulated in the agreement is 20 years and the sale deed is executed within a span of 12 years during the subsistence of the contract. All these aspects have not been considered by the trial Court and the Court passed an order holding that the suit is barred by limitation coming to the conclusion that suit ought to have been filed within three years and when time is 20 years and when there is no denial for execution of sale deed by defendant No. 1 the trial court committed an error in coming to the conclusion that the suit of the plaintiff is barred by limitation and hence the suit is not maintainable. The readiness and willingness does not arise when the time is stipulated as 20 years and it is not the case of the defendants that the plaintiff did not come forward to pay the balance amount. Hence, the Court below committed an error in answering issue No. 2 also. In view of the above, I answer point No. 1 in affirmative holding that Court below failed to consider the material on record and proceeded erroneously.
Point No. II 23. The main contention of defendant No. 2 is that he is bona fide purchaser of suit schedule property and he was not having any knowledge about the earlier sale transaction. He has paid the amount in good faith and hence the Court below rightly appreciated both oral and documentary evidence. Learned counsel appearing for plaintiff would contend that the answer elicited from the mouth of D.W.1 clearly shows that he is not a bona fide purchaser and at the instance of defendant No. 2 only defendant No. 1 has executed the sale deed hurriedly immediately after receipt of notice Ex.P.3. A perusal of notice dated 01.06.2005 clearly discloses that the plaintiff called upon defendant No. 1 to execute the sale deed and the same was served on defendant No. 1. Sale deed in favour of defendant No. 2 came into existence on 08.06.2005 within a span of four days from the date of receipt of legal notice. Learned counsel appearing for defendant No. 2 relied upon the judgment in the case of Syed Abdul Khader Vs. Rami Reddy and others reported in (1979) 2 SCC 601 and also judgment reported in ILR 2014 Kar. 233 in the case of Smt. Pramila Raghavan Vs. Mr.
H.A. Sonnappa, since dead by his LRs. Having considered the principles laid down in the judgments referred supra, there is no dispute with regard to the fact that if the purchaser purchases the property without any knowledge about the earlier transaction and invested the money and purchased the same with good faith, the interest of the subsequent purchaser has to be protected. It is also important to note that in paragraph No. 64 this Hon’ble Court in the case of Smt. Pramila Raghavan Vs. Mr. H.A. Sonnappa, since dead by his LRs and others reported in ILR 2014 Kar. 233 has observed that it is the bounden duty of the purchaser to make all such necessary enquiries and to ascertain all the facts relating to the property to be purchased prior to committing in any manner and hence they cannot simply come forward to put up the general plea that they are the bona fide purchasers for value and without notice. Explanation II appended to the interpretation clause in Section 3 of Transfer of Property Act says, “Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.”
24. Keeping in view the principles laid down in the aforesaid decisions this Court has to analyze from the evidence available on record as to whether defendant No. 2 had made any enquiries and whether he acted in good faith and whether he had the knowledge of prior purchase of the property or not. This court would like to refer to the evidence of D.W.1 with regard to whether defendant No. 2 has acted in good faith and made any inquiries before purchasing the property. It has to be noted that no doubt in the written statement he has contended that he is a bona fide purchaser but in the written statement he did not whisper anything as to before purchasing the property he made all enquiries. In the cross examination also he categorically admits that in the written statement he did not mention anything about whether he made enquiry with the neighbouring site owners and also taken legal opinion. Defendant No. 2 in the cross examination says that he has purchased the property through broker and before purchasing the property he has ascertained from the neighbouring site owners regarding pendency of disputes or other cases if any. But categorically admits that he does not know the name of neighboring site owners. It is further admitted that before purchasing the site he has verified the concerned documents and he has also taken opinion from the advocate. But categorically admits that he has not produced any such documents which he verified before the Court and he has not produced the opinion which he had taken from the Advocate prior to purchase of property. It is further important to note that he categorically admits that he has not given any paper publication before purchasing the property. It is pertinent to note that he admits that before purchasing, he knows that there is a site of plaintiff - Gowramma towards the southern side of his site and it has to be noted that the very same property was purchased by plaintiff in terms of Ex.P.6 on the very date of execution of sale agreement dated 30.03.1992 Ex.P.1 and GPA - Ex.P.2. Instead of executing the sale deed in respect of suit schedule property in favour of the plaintiff defendant No. 1 executed sale deed in favour of defendant No. 2. When the defendant No. 2 is aware of the fact that plaintiff is the owner of the southern side of the property and he is the neighbouring owner, he did not make any inquiry with the plaintiff and also with any other neighbours. Though defendant No. 2 claims that he made all efforts and verified the documents before purchasing the property none of the documents are produced before the Court. It is also pertinent to note that the defendant No. 2 cannot contend that he is bonafide purchaser and acted in good faith and also it has to be noted that within four days from the date of receipt of notice issued by plaintiff, he obtained the sale date from the defendant No. 1 and it shows that the defendant No. 1 is hand in glove with defendant No. 2 in having the sale deed in his favor within four days from the date of receipt of notice by defendant No. 1. There is a force in the contention of plaintiff that at the instance of defendant No. 2 only sale deed was executed by the plaintiff within a span of four days from the date of receipt of notice. First of all defendant no. 1 did not deny the execution of agreement in favor of plaintiff and also did not deny the execution of GPA in favour of the plaintiff and also did not deny the execution of sale deed in terms of Ex.P.6 in respect of southern portion of suit schedule property. Though disputed in the written statement that sale agreement and GPA are not executed and same has not been substantiated. When defendant No. 1 did not choose to appear and examine herself denying the documents, the Court below has committed an error in not appreciating both oral and documentary evidence, but also committed an error in coming to the conclusion that suit is barred by limitation without there being any issue before the Court. The Court below also committed an error in coming to the conclusion that defendant No. 2 is the bonafide purchaser. The principles laid down in the judgment referred by learned counsel for defendant No. 2 in ILR 2014 Kar. 233 in the case of Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa, since dead by his LRs and others goes against defendant No. 2 since he did not comply the bounden duty to make an enquiry before purchasing the property and hence now he cannot put up the general plea that he is the bonafide purchaser for value and without notice. It is pertinent to note that there is no any sale agreement before purchasing the property. This Court already pointed out that within span of four days from the date of receipt of notice sale deed came into existence in favour of defendant No. 2. Here there is lack of bonafides on the part of the defendant No. 2 and no enquiry is made prior to purchase of the property. Having nexus with defendant No. 1 he obtained the sale deed from defendant No. 1 in a hurried manner. Having considered the total circumstances of the case it is clear that defendant No. 2 is not the bonafide purchaser. Material discloses that knowing fully well he had purchased the property or otherwise it is clear that defendant No. 1 and defendant No. 2 in order to avoid the sale transaction had the sale deed in favour of defendant No. 2. A suggestion was made to P.W.1 that both P.W.1 and defendant No. 1 colluded with each other to extract money from defendant No. 2 present suit is filed and the same is not substantiated by any other material on record. The finding of the trial Court is not based on material on record and ignored the evidence on record. Hence, the judgment of the trial Court is liable to be set aside and this Court has to reverse the finding of the trial Court. Hence I answer point number 2 as affirmative that Court below has come to an erroneous conclusion that defendant No. 2 is the bonafide purchaser of suit schedule property.
Point No. III 25. In view of the discussion made above, I pass the following;
O R D E R i. Appeal is allowed.
ii. Impugned judgment and decree passed by V Additional City Civil Judge at Bangalore in O.S.
No. 4841/2005 dated 09.01.2012 is hereby set aside.
iii. The suit of the plaintiff is decreed as prayed granting the relief of specific performance. Defendant No. 1 is directed to execute the sale deed in favour of plaintiff within two months from today. If defendant No. 1 fails to execute the sale deed, the plaintiff can obtain the sale deed from the Court depositing the balance amount of Rs.40,000/- before the Court.
Sd/- JUDGE.
LRS.