IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO REGULAR FIRST APPEAL NO.1924 OF 2006(SP) BETWEEN:
1. MALLURU MALLAPPA S/O SANGAPPA AGED ABOUT 56 YEARS R/O OLD BETHUR ROAD DAVANAGERE-01.
SINCE DEAD BY HIS LR’S 1(a) SMT. BASAMMA W/O MALLAPPA AGED ABOUT 60 YEARS.
1(b) SMT. MAHANTHAMMA.M D/O MALLAPPA AGED ABOUT 35 YEARS 1(c) MANIKYAMMA.M D/O MALLAPPA AGED ABOUT 27 YEARS 1(d) AKKA MAHADEVI.M D/O MALLAPPA AGED ABOUT 24 YEARS 1(e) SRI. SHAMBHULINGAPPA M S/O MALLAPPA AGED ABOUT 42 YEARS 1(f) SRI. MAHANTESH M S/O MALLAPPA AGED ABOUT 33 YEARS 1(g) SRI. SADDASHIVA M. S/O MALLAPPA AGED ABOUT 30 YEARS 1(a) TO (h) ARE RESIDING AT OLD BETHUR ROAD DAVANAGERE.
1(h) SMT. PARVATHI SANGAPPA BIRADHAR W/O SANGAPPA BIRADHAR AGED ABOUT 38 YEARS 1(i) SMT. RENUKA SHIVAPPA BIRADHAR W/O SHIVAPPA BIRADHAR AGED ABOUT 40 YEARS.
1(h) & (i) ARE RESIDING AT No.8 MUDDEBEHAL TALUK NARABENEHI VILLAGE BIJAPURA DISTRICT.
… APPELLANTS (BY SRI.KRISHNA MOHAN VARMA, FOR SRI. PRASANNA B.R., ADVOCATE) AND:
1. KURUVETHEPPA S/O BASAPPA AGED ABOUT 39 YEARS R/O KADLEBALU VILLAGE DAVANAGERE TALUK-577 001.
2. HOLEYAPPA S/O BASAPPA AGED ABOUT 31 YEARS R/O KADLEBALU VILLAGE DAVANAGERE TALUK-577 001.
3. SMT. GANGAMMA W/O H BASAPPA AGED ABOUT 61 YEARS R/O KADLEBALU VILLAGE DAVANAGERE TALUK-577 001.
4. SMT. SIDDAMMA W/O KUDURALU NINGAPPA MAJOR R/O KADLEBALU VILLAGE DAVANAGERE TALUK-577 001.
5. NEELAMMA D/O BASAPPA AGED ABOUT 20 YEARS R/O KADLEBALU VILLAGE DAVANAGERE TALUK-577 001.
6. SMT. SUMITHRAMMA W/O CHANDRAPPA AGED ABOUT 41 YEARS R/O HIREMEGALAGERI HARAPANAHALLI TALUK DAVANAGERE DISTRICT-577 001.
7. SMT. VINODA W/O AJJAPPA AGED ABOUT 31 YEARS R/O HALEKALLU VILLAGE JAGALUR TALUK-577 001.
… RESPONDENTS ( R1 TO R7 ARE SERVED.) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:30.06.2006 PASSED IN OS.No.29/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.) DAVANAGERE, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal is directed against the judgment and decree dated 30.6.2006 passed in O.S.No.29/2005 by the learned Principal Civil Judge (Sr.Dn.) at Davanagere, wherein the suit filed by the plaintiff before the said Court came to be dismissed.
2. In order to avoid the confusion and overlapping, the parties are addressed in accordance with their rankings as held before the trial court.
3. The plaintiff had filed a suit in O.S.No.29/2005 against the defendant one Kuruventhappa and others for the relief of specific performance. The substance of the plaint is that, defendants are all brothers and sisters being the children of Basappa, S/o Holeyappa. Earlier Basappa son of Holeyappa and defendant Nos.
1 and 2 agreed to sell the schedule property in favour of the plaintiff and executed the agreement of sale agreeing to sell the property for Rs.2,00,000/- and received a sum of Rs.1,00,000/- and undertook that they would collect necessary documents and get the land measured and fixed the time for executing the registered sale deed as 2½ years and that the defendants are bound to get the land demarcated. Later on, the defendants pleaded their inability to register the sale deed in favour of the plaintiff and agreed to extend 11 months time accordingly defendant Nos.1 and 2 and their late father wrote shara and the time was extended and defendants ought to have performed their part of obligation under the contract on or before 6.8.2002. The plaintiff has been ever ready and willing to pay the balance amount of Rs.1,00,000/- and to get the registered sale deed executed in his favour.
4. The defendants appeared and defendant No.1 filed his written statement and it was adopted by defendant Nos. 3 to 7. The defendants took up the contention that they have not agreed along with their father for the extension of the alleged time on 6.9.2001 for execution of the registered sale deed nor they entered into agreement. The defendants further contend that there was no question of extending the time in favour of the plaintiff under the agreement. The endorsement made on 06.09.2001 is a false one and signatures are forged by the plaintiff. Their father died on 29.5.2004 and defendant Nos. 1 and 2 are coparceners and are entitled for share in the suit property and the said agreement of sale is not binding on defendant Nos. 3 to 7 and suit is not maintainable.
5. The learned Trial Judge adjudicated the matter considering aspects on execution of the sale agreement, readiness and willingness of the plaintiff and the relief entitled for. In this connection, the learned Trial Judge was accommodated by the oral evidence of plaintiff Malluru Mallappa PW1, documentary evidence from Ex.P1 following up to Ex.P1(h), the oral evidence of DW- 1 Kuruvatheppa and documentary evidence of Exs.D1 and D.2(a)(b).
6. The learned Trial Judge concluded that the plaintiff had no case and dismissed the suit. It is against the said judgment and decree, the plaintiff is in appeal before this Court. During the pendency of the appeal, plaintiff/appellant died and his LRs are brought on record.
7. In the beginning, the plaintiff claimed that the defendant No.1 and 2 Kuruvethappa and Holeyappa sons of Basappa and late Basappa son of Holeyappa executed the agreement of sale. Insofar as said Basappa who executed the sale agreement in favour of the plaintiff is concerned, is reported dead and defendant No.1 Kuruvethappa and defendant No.2 Holeyappa both are the sons of Basappa and the defendants Gangamma, Siddamma, Neelamma and Sumitramma are the daughters of Basappa.
8. Plaintiffs prayed refund of advance money in case of non-performance of their contract. The amount of total sale consideration is Rs.2,00,000/-. The advance amount paid under the agreement towards the sale price is Rs.1,00,000/- and the balance payable is Rs.1,00,000/- The time fixed for agreement was 2½ years and within the period, the defendants were bound to get the land properly demarcated, measured and for complying the other necessities. It is also stated that the time limit was extended for additional 11 months. The defendant No.1 appeared before the Trial Court and filed his written statement and a memo is also filed by the rest of the defendants i.e. defendant Nos.2 to 7 for adopting the statement of defendant No.1. The plaintiff also claims that there was endorsement on 06.09.2001 made on the original agreement and defendants contends that, it is concocted. In a nut shell, the defendants pray that they are not entitled to execute the sale deed. It is also stated that the schedule property is one of the joint family property and there was no occasion for the defendants to sell the property on their own as any amount of sale would have affected the rules of joint family. Defendants also claim that their signatures are forged and there was no occasion for extending the terms. They also deny the averments of the plaintiff that he was ever ready and willing to perform his part of contract under the agreement.
9. Learned counsel for appellants/plaintiff Sri.
Krishna Mohan Verma for Sri. Prasanna B.R., would submit that the learned trial Judge gave his finding in the affirmative regarding the defendant Nos. 1 and 2 and their father agreeing to execute the sale deed of the schedule land for Rs.2.00 lakhs. The second issue is regarding readiness and willingness of the plaintiff. The third issue is regarding entitlement of the plaintiff for the relief of specific performance. In the over all circumstances of the case, the suit schedule property is land bearing survey No.103/P measuring 6 acres 31 guntas and assessed at Rs.2.92 paise, out of which northern portion measuring 3 acres. The date of agreement is 11.3.1999 executed by Basappa son of Late Holeyappa and defendant Nos. 1 and 2 namely, Kurvethappa and Holeyappa sons of Basappa son of Hole Basappa.
10. Here is the case that, defendant Nos. 1 and 2 and their father agreed to furnish the documents and revenue records pertaining to schedule property for demarking the land. It is also stated that the schedule property was sold to counter the financial crisis regarding performing of obsequious of the father of the defendant Nos. 1 and 2 and also in extending time of 11 months. After the death of father of defendant Nos. 1 and 2, defendant No. 3 to 7 are entitled to a share in the schedule property accordingly, they are brought in as defendant Nos. 3 to 7.
11. The reasoning of the trial Court is that, the signatures found in the shara is denied by the signatories. PW1 has admitted after 2 ½ years of Ex.P1, he has not issued any notice to the defendants. Learned trial Judge also found the admission of the plaintiff that from the date of execution of Ex.P1 till the filing of the suit, he has not produced any documents that he is having Rs.1.00 lakh with him. In the over all context and circumstances of the case, the learned trial Judge has applied emphasis on readiness and willingness. However, it is to be seen that the events of are as under:
(i) The date of sale agreement is 11.3.1999;
(ii) Total sale consideration is stated to be Rs.2.00 lakh and amount of Rs.1.00 lakh is paid as advance on the date of the agreement and balance amount of Rs.1.00 lakh was payable within 2 ½ years from the date of sale agreement for getting the registered sale deed. The plaintiff claims that time limit was extended for 11 months from 6.9.2001. The suit was filed on 27.1.2005.
12. By looking at the endorsement dated 6.9.2001, the agreement was entered into to sell the property for 2.00 lakh, plaintiff pays 1.00 lakh by way of advance and time of 2 ½ years is mentioned for the payment of balance amount. Further on 6.9.2001 the extension of 11 months time is made wherein, it is stated the defendants have sought for extension of time of 11 months that means 11 months plus and the suit is filed on 27.1.2005. Thus the due date fixed under the endorsement according to the plaintiff is 11 months from 6.9.2001 which expires exactly on 5.8.2002. Further, if three years period is recommended from that date, i.e. 5.8.2002 and the suit is filed on 27.1.2005. Nodoubt, defendant Nos. 1 and 2 are served and remained absent in the present appeal.
13. In the over all circumstances of the case, I find that the extension of agreement though denied by defendant Nos. 1 and 2, their denial is not firm and unambiguous and they are not certain with their denial. When the appellants/plaintiff has challenged the dismissal order that came to be made appreciating the denial and accepting the stance of defendant Nos. 1 and 2. Defendants have not placed their appearance to contest the matter before this Court with that, I do not find any lacuna in establishing the signatures or the execution of the sale agreement or the endorsement. But equally I strongly find that the explanation given by the plaintiff regarding readiness and willingness does not appears to be reliable or acceptable. In the circumstances, plaintiff is not entitled for the specific performance of agreement dated 11.3.1999 in its strict form. However, he is entitled for the refund of advance amount. Further, it is to be mentioned regarding the sale agreement dated 11.3.1999 and the manner in which the endorsement is written as if time as sought to have been extended on behalf of defendant Nos. 1 and 2. Further in view of non- contest by the defendants in this appeal, I find the plaintiff/appellants are not entitled for interest on the said amount.
14. In the result, the appeal is partly allowed.
The judgment and decree dated 30.6.2005 passed in OS No.29/2005 by the trial Judge is set aside and the suit of the plaintiff in respect of specific performance is rejected. However, defendant Nos. 1 and 2 are directed to refund the advance amount of Rs.1.00 lakh to the plaintiff now represented by his legal representatives.
Sd/- JUDGE RV/tsn*