IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER 2017 B E F O R E THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA RSA No.2035/2017 BETWEEN:
1. Sri. M.N. Narasimha Murthy S/o Late Narayanappa Aged about 58 years, 2. Sri. M.N. Prakash S/o Late Narayanappa, Aged about 39 years, Both are Agriculturists, Maripadagu, Nagaragere Hobli, Gowribidanur Taluk – 561213.
3. Smt. Nagarathnamma D/o Late Narayanappa, Aged about 48 years, Agriculturist, Gorapalli Village, Hindupur Taluk, Ananthapur District, Andhra Pradesh – 515201.
(By Sri. Vishwanath R. Hegde, Adv.) AND :
1. Sri. Manjunatha, S/o Late S.N. Nanjundappa, Aged about 42 years, ... Appellants 2. Sri. Jagannatha, S/o Late S.N.Nanjundappa, Aged about 35 years, C/o. Manjunatha Dhaba, N.H.-7, Narepalli, Bagepalli Taluk- 561207.
3. Smt. Radhamma, D/o Late S.N. Nanjundappa, Aged about 37 years, No. 119, Ward No. 16, Near New Horizon School, Bagepalli – 561207.
4. Smt. Shivamma, D/o Late S.N. Nanjundappa, Aged about 39 years, Peresandra Village, Mandikal Hobli, Chickballapur Taluk – 562103.
5. Smt. Ashwathamma, W/o Late S.N. Nanjundappa, Aged about 58 years, Agriculturist, Respondents 1 & 5 are R/at Shampura Village, Manchenahalli Hobli, Gowribidanur Taluk – 561213.
... Respondents ******* This RSA is filed under Section 100 of CPC against the judgment and decree dated 04.09.2017 passed in R.A. No. 40/2016 on the file of the Senior Civil Judge and JMFC., Gowribidanur, dismissing the appeal and confirming the judgment and decree dated 02/08/2016 passed in OS No. 219/2017 on the file of the Civil Judge and JMFC., Gudibande.
This RSA coming on for admission this day, the Court delivered the following: -
JUDGMENT This regular second appeal is filed by the legal representatives of original plaintiff – Narayanappa, since deceased.
2. For the sake of convenience parties shall be referred to in terms of their status before the trial Court.
3. The original plaintiff had filed O.S.No.219/2007 before the Court of Civil Judge and JMFC, Gudibande, seeking the relief of specific performance of agreement of sale dated 26.04.1995. By judgment and decree dated 2.8.2016 the said suit was partly decreed by granting alternative relief to the legal representative of the original plaintiff by directing the defendants – legal representatives of original defendant to refund the advance amount of Rs.28,500/- with interest at 10% p.a. from the date of execution of the agreement of sale, within three months from the date of decree, failing which, the plaintiffs were at liberty to recover the said amount in accordance with law. Being aggrieved by the judgment and decree of the trial Court dated 2.8.2016 plaintiffs preferred R.A.No.40/2016 before the Senior Civil Judge and JMFC at Gowribidanur. By judgment and decree dated 4.9.2017 the First Appellate Court has dismissed the appeal by confirming the judgment and decree of the trial Court. Being aggrieved by the findings as well as the judgments of the Courts below the legal representatives of the deceased original plaintiff, have preferred this regular second appeal.
4. According to the plaintiffs the original defendant S.N. Nanjundappa had executed an agreement of sale in favour of the original plaintiff on 26.4.1995 agreeing to sell suit schedule property being land bearing Sy.No.15/1 measuring an extent of 3 acres 23 guntas situated at Maripadagu Village, Nagaragere Hobli, Gowribidanur Taluk, Chikkaballapur District. That on the very same day, the entire sale consideration of Rs.28,500/- was paid to the defendant, that the defendant also delivered possession of the suit schedule property to the plaintiff, that the plaintiff has invested huge sums on the suit property making it fit for agricultural use, that the original defendant agreed to execute the registered sale deed in favour of the plaintiff, but he did not do so. In June 2007 plaintiff requested the original defendant to execute the sale deed before the Sub-Registrar. But the latter went on postponing and avoiding the same. That the plaintiff has averred that he was ready and willing to perform his part of the contract by paying the registration charges, but the defendant did not execute the sale deed before the Sub-Registrar, finally the plaintiff got issued legal notice dated 20.09.2007 to the original defendant calling upon him to execute the sale deed before the Sub-Registrar, Gowribidanur on 8.10.2007 at 11.00 a.m. and to deliver the documents of title in respect of the suit property. The defendant received the notice and replied to the same on 5.10.2007 which is untenable. Plaintiff got issued another legal notice on 20.9.2007 to the Tahsildar, of Gowribidanur, Deputy Tahsildar of Nagaragere and Village Accoutant of Jeelakunte Revenue Circle requesting them not to entertain any mutation applications from defendant No.1 in respect of the schedule land. Despite that the Revenue officials have mutated the land in favour of one Ashwathamma –in collusion with defendant No.1 and created false records. Therefore, defendant No.2 is also bound to execute the sale deed along with defendant No.1 in favour of the plaintiff. According to the plaintiff, defendant No.1 did not comply with the demand made by the plaintiff in legal notice dated 20.09.2007. Therefore, plaintiff filed suit seeking relief of specific performance of agreement of sale dated 26.04.1995 and for permanent injunction.
5. In response to the suit summons and Court notices defendant Nos.1 and 2 appeared and filed written statement denying the allegations made in the plaint, but admitting the ownership and possession of the land by the defendants. They contended that defendant No.1 did not have the right to deal with the suit property, that the suit is barred by limitation and that the plaintiff is not entitled to any relief. In fact defendant No.1 has contended that he did not execute any agreement of sale in favour of the plaintiff, it is concocted by the plaintiff to knock off valuable property. Plaintiff filed reply as subsequent pleadings as contemplated under Order VIII Rule 9 of the Code of Civil Procedure, 1908 (CPC) denying the averments made in the written statement. He contended that defendant No.1 got the katha mutated in the name of defendant No.2 so as to defraud the plaintiff in respect of the suit schedule property, plaintiff sought for the relief in the suit.
6. On the basis of the rival pleadings, the trial Court framed the following issues for its consideration :-
“1. Whether the plaintiff proves that, the defendants have executed the sale agreement dated 26.4.1995 agreeing to sell the suit schedule property to the plaintiff for consideration of Rs.28,500/- ?
2. Whether the plaintiff further proves that, he paid the entire sale consideration amount of Rs.28,500/- to the defendants on the date of sale agreement ?
3. Whether the plaintiff further proves that, he is always ready and willing to perform his part of contract?
4. Whether the defendant proves that, the alleged sale agreement is created ?
5. Whether the defendant proves that, the suit is barred by limitation ?
6. Whether the plaintiff is entitle for the relief of specific performance of contract ?
7. What order or decree ? ”
7. In support of his case plaintiff No.1 (1) the legal representative of original plaintiff examined himself as PW.1 and two other witnesses were examined as PWs.2 and 3. Plaintiffs got marked documents as Exs.P1 to P28. The defendants examined three witnesses and got marked 15 documents Exs.D1 to D15. On the basis of the said evidence, the trial Court answered issue Nos.1 and 2 in the affirmative, issue No.6 as partly in the affirmative and issue Nos.3 to 5 in the negative and decreed the suit in part by declining the relief of specific performance and by directing the defendants to refund the sale consideration of Rs.28,500/- with interest at 10% p.a. from the date of execution of agreement of sale within a period of three months from the date of decree.
8. Being aggrieved by the judgment and decree of the trial Court, plaintiffs preferred R.A. No.40/2016 before the 1st appellate Court, which, on hearing learned counsel for the respective parties, framed the following points for its consideration:
1. Whether the plaintiffs established his lawful possession and enjoyment of the suit schedule property as on the date of filing of suit?
2. Whether the plaintiffs proved before the trial Court as entitle for specific relief of contract and by showing his ready and willingness to perform his part of contract?
3. Whether the Judgment and Decree of the trial Court is pervasive, frivolous and opposed to principles of law?
4. Whether the Judgment and Decree of the trial Court calls for interference by this Court?
5. What order?
It answered point Nos.1 to 4 in the negative and dismissed the appeal by confirming the judgment and decree of the trial Court.
9. Being aggrieved by the concurrent findings of the Courts below, plaintiffs have preferred this second appeal.
10. I have heard learned counsel for the appellants and perused the materials on record.
11. He contended that the Courts below were not right in dismissing the suit for the relief of specific performance to the plaintiffs. Drawing my attention to the issues raised by the trial Court, he submitted that the plaintiffs had proved that the 1st defendant had executed the sale agreement dated 26.04.1995 and that the entire sale consideration of Rs.28,500/- had been paid on that day itself. They were also put in possession of the suit land on the said date. Only what was required to be done was execution of the sale deed by the defendants. Since the plaintiffs were in possession of the suit schedule land, they continued to enjoy the same, there being no interference on the part of the defendants. But when the defendants did not execute sale deed, legal notice was issued on 24.09.2007 and in the face of an untenable reply the suit was filed on 22.11.2007. Learned counsel for the appellants submitted that the Courts below have not appreciated the fact that there was nothing on the part of the plaintiffs which had to be done and the Courts below have failed to exercise discretionary power to grant relief of specific performance thereby answering issue No.3 in the negative. He submitted that substantial questions of law would arise in this appeal and therefore, the appeal be admitted for a detailed hearing.
12. It is no doubt true that the appellant-plaintiffs have proved that the original defendant had executed agreement to sell dated 26.04.1995 and that the entire sale consideration was paid by the original plaintiff to them. Thereafter, an obligation was cast on the original defendants to execute the sale deed. The same was not done within a reasonable time. But the original plaintiff did not take any step to demand execution of the sale deed. The question that arises is, as to whether despite payment of the entire sale consideration the appellants were willing to get the title conferred in his name or not. It is only after twelve years of the execution of the agreement to sell that the plaintiffs issued legal notice to the original defendant to execute the sale deed. The long lapse of twelve years has not been explained by the plaintiffs. This is not a case where there is a delay in the filing of the suit for specific performance and that the said suit is hit by the law of limitation, but this is a case where the plaintiffs have failed to prove that they were willing to perform their part of the contract in the sense that they did not demand or insist upon the defendants to execute the sale deed in their favour within a reasonable time. There being no explanation on the part of the plaintiffs as to what has transpired in these twelve years that lapsed from the date of agreement to sell till the date of issuance of legal notice, the Courts below have concurrently held in the negative as far as issue No.3 is concerned. In the circumstances, the Courts below have refused to exercise discretion in favour of the plaintiffs and have granted only the alternative relief. In this regard one could advert to Section 20 of the Specific Relief Act, 1963, wherein, under Sub Clause (1) it is stated that “the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of corrections by a court of appeals”.
13. In the instant case, while answering the issue with regard to readiness and willingness, the Courts below have also taken into consideration Section 20 Sub Section (1) of the Act and have held that the plaintiffs are not entitled to discretionary relief of specific performance of contract, but only entitled to recover the advance sale consideration amount of Rs.28,500/- with interest at the rate of 10% per annum. I do not find any reason to interfere with the non-exercise of discretion by the Courts below in favour of the plaintiffs. There is no substantial question of law which would arise in this second appeal. The regular second appeal is hence dismissed.
Sd/- JUDGE NG*prg.5/SBS CT -pgg