The High Court
Case Details
- 1 - NC: 2025:KHC:15255 RSA No. 57 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 57 OF 2025 (SP) …APPELLANT BETWEEN: M. GOVINDA GOWDA S/O MUNE GOWDA AGED ABOUT 73 YEARS, R/AT. KODIGENAHALLI VILLAGE MAJARA DASENAHALLI, VENGASANDRA POST KYASAMBALLI HOBLI KGF TALUK, KOLAR DIST. 563 113. (BY SRI. B R VISWANATH, ADVOCATE) AND: 1. SRI. NARAYANAPPA AGED ABOUT 55 YEARS S/O LATE. VENKATARAME GOWDA @ CHICKVENKATARAME GOWDA R/AT KODIGENAHALLI VILLAGE MAJARA DASENAHALLI VENGASANDRA POST KYASAMBALLI HOBLI K.G.F. TALUK – 563 113 SRI. SIDDAPPA (DEAD BY LRS) 2. SMT. PARVATHAMMA W/O. LATE. SIDDAPPA AGED ABOUT 60 YEARS Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:15255 RSA No. 57 of 2025 3. SRI. VENKATARAMAPPA S/O. LATE. SIDDAPPA AGED ABOUT 42 YEARS RESPONDENT Nos.2 AND 3 ARE R/AT DASAPALLI VILLAGE VENGASANDRA POST KYASAMBALLI HOBLI KGF TALUK. KOLAR DIST. – 563 113
Legal Reasoning
4. SMT. ROOPA W/O VISHWANATHA AGED ABOUT 33 YEARS R/AT BOOMAKAHALLI VILLAGE VALAGAMADI POST BANGARAPET TALUK. KOLAR DIST. – 563 113 5. SRI. RAMAKRISHNAPPA S/O LATE. VENKATARAME GOWDA @ CHICKVENKATARAME GOWDA AGED ABOUT 49 YEARS R/AT KODIGEHALLI VILLAGE MAJARA DASENAHALLI VENGASNDRA POST KYASAMBALLI HOBLI K.G.F. TALUK – 563 113 …RESPONDENTS (BY SMT. P.C. SUNITHA, ADVOCATE FOR C/R1) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.11.2024 PASSED IN RA NO.185/2023 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR (SITTING AT KGF), ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 06.10.2023 PASSED IN OS NO.579/2013 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, KGF. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:15255 RSA No. 57 of 2025 CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 21.11.2024 passed in R.A.No.185/2023 by the learned III Additional District and Sessions Judge, Kolar (Sitting at KGF) reversing the judgment and decree dated 06.10.2023 passed in O.S. 579/2013 by the learned II Additional Civil Judge and JMFC, KGF. 2. For convenience, the parties are referred to, based on their rankings before the trial court. The appellant was the plaintiff, and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for relief of specific performance of a contract. It is the case of the plaintiff that the defendants are the children of Munemma and Venkatarame Gowda @ - 4 - NC: 2025:KHC:15255 RSA No. 57 of 2025 Chickavenkataramane Gowda. Venkatarame Gowda acquired the suit property under a family partition. The Plaintiff’s father is the elder brother of Venkatarame Gowda and the plaintiff’s properties are situated towards the south and west of the suit property. It is contended that after the death of Venkatarame Gowda, the defendants agreed to sell the suit property to the plaintiff and executed the sale agreement on 15.04.1984 for a total consideration of Rs.6000/-. It is contended that the Plaintiff had paid the entire sale consideration amount, reposing the confidence in the defendants. The possession of the suit property was delivered to the plaintiff under the sale agreement, and the plaintiff is in possession of the suit property in part performance of the contract. It is contended that after the execution of the sale agreement, the defendants’ mother died and Defendant No.3 attained the majority, who was minor at the time of execution of the sale agreement. The plaintiff is/was always ready and willing to perform his part of the contract. The plaintiff requested the defendants to execute the sale deed, but - 5 - NC: 2025:KHC:15255 RSA No. 57 of 2025 the defendants kept postponing the same on one or the other pretext. 3.1. It is contended that the plaintiff got issued a legal notice on 15.10.2013 calling upon the defendants to execute the registered sale deed, but the defendants did not heed the request of the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for the specific performance of the contract. Accordingly, he prays to decree the suit. 3.2. The Defendants filed a written statement denying the averments made in the plaint. It is contended that the defendants’ mother and the defendants have not executed any sale agreement in favour of the plaintiff. The plaintiff is claiming the specific performance of a contract after the lapse of 30 years, based on the unregistered sale agreement. The plaintiff had created the alleged sale agreement with the help of a scribe and witnesses by manipulating the signatures. It is contended that the plaintiff is not in the possession of the suit property. The - 6 - NC: 2025:KHC:15255 RSA No. 57 of 2025 plaintiff approached the defendants requesting to sell the suit property, but the defendants denied the proposal. Hence, the plaintiff created the alleged sale agreement to grab the said property illegally. Accordingly, prays to dismiss the suit. 3.3. The trial court, based on the parties pleadings, framed the relevant issues. 3.4. After recording the evidence, hearing both sides, and assessing the verbal and documentary evidence, the trial court decreed the suit of the plaintiff with cost, vide judgment dated 06.10.2023. The trial court directed the defendants to execute the sale deed in favour of the plaintiff regarding the suit property as per the sale agreement dated 15.04.1984, and if the defendants fail to do so, the plaintiff is at the liberty to execute the decree by seeking appointment of the Court Commissioner to execute the sale deed on behalf of the defendants. - 7 - NC: 2025:KHC:15255 RSA No. 57 of 2025 3.5. The defendants, aggrieved by the judgment and decree passed by the trial court, preferred an appeal in R.A.No.185/2023 on the file of III Additional District and Sessions Judge, Kolar. The First Appellate Court, on reassessing the verbal and documentary evidence, allowed the appeal by setting aside the judgment and decree passed by the trial court in O.S.No.579/2013. Consequently, the plaintiff’s suit was dismissed. The plaintiff, aggrieved by the judgment and decree passed by the First Appellate Court, filed this Regular Second Appeal. 4. Heard the arguments of the learned counsel for the plaintiff. 5. Learned counsel for the plaintiff submits that the defendants agreed to sell the suit property for consideration of Rs.6000/-. Accordingly, the plaintiff paid the entire consideration and in part performance of a contract, the defendants delivered the possession of the suit property to the plaintiff. He submits that the time was not the essence of the contract. In 2006, a panchayat was - 8 - NC: 2025:KHC:15255 RSA No. 57 of 2025 conveyed, and despite holding panchayat, the defendants did not execute a registered sale deed. He submits that the plaintiff got issued a legal notice on 15/10/2013 calling upon the defendants to execute a registered sale deed. The plaintiff filed a suit within 3 years from the date of denial of execution of a registered sale deed. Hence the suit filed by the plaintiff is well within time. He submits that the First Appellate Court committed an error in passing the impugned judgment. Accordingly, prays to allow the appeal. 6. Perused the records and considered the submissions of the learned counsel for the plaintiff. 7. To prove his case, the plaintiff examined himself as PW.1. He reiterated the plaint averments in the examination-in-chief. To substantiate the claim of the plaintiff, he has produced 6 documents. The original sale agreement marked as Ex.P1, Ex.P2: Office copy of the legal notice, Ex.P3: Postal envelope cover, Ex.P4: Reply Notice, Ex.P5: Photo and Ex.P6: sale deed. During the - 9 - NC: 2025:KHC:15255 RSA No. 57 of 2025 cross-examination of Pw.1, it was suggested that the defendants never executed a sale agreement and delivered the possession of suit property in part of performance; the said suggestion was denied. 8. On the other hand defendant No.2 was examined as Dw.1. He reiterated the written statement averments in the examination-in-chief. He deposed that the suit filed by the plaintiff is barred by limitation. The defendants have produced 4 documents as Exs.D1 to 4. The defendants also examined one witness, Dw.2. 9. From the perusal of the material on records, the plaintiff contended that the defendants and their mother executed a sale agreement dated 15/04/1984 and paid the entire consideration amount to the defendants and their mother. In part performance of a contract, the defendants and their mother delivered the possession of the suit property to the plaintiff. The plaintiff is in possession of the suit property in part performance of contract. On the other hand, the defendants denied the execution of the - 10 - NC: 2025:KHC:15255 RSA No. 57 of 2025 sale agreement and delivery of the suit property’s possession to the plaintiff. The defendants are in possession of the suit property. If, the defendants and their mother executed the alleged sale agreement in favour of the plaintiff and he had paid the entire consideration amount, there was no legal impediment in executing a registered sale deed. The plaintiff has not examined any attesting witnesses to establish the execution of the alleged sale agreement by the defendants and their mother. The burden of proof is on the plaintiff to prove that the defendants and their mother executed Ex.P1. The Pw.2 during his evidence, admitted that one attesting witness, Sri. Venkateshappa is alive. The plaintiff has not examined the said witness. An adverse inference has to be drawn against the plaintiff for withholding the said witness as per Section 114 (g) of the Indian Evidence Act. Thus the plaintiff has failed to prove the execution of the sale agreement. - 11 - NC: 2025:KHC:15255 RSA No. 57 of 2025 10. The alleged sale agreement was executed on 15/04/1984; according to the plaintiff, time was not the essence of the contract. If time was not the essence of the contract, the plaintiff ought to have enforced the sale agreement within a reasonable time. The defendants filed a caveat petition in 2013. Further, according to the case of the plaintiff, the panchayat was held in 2006, and the defendants did not execute the register sale deed. The plaintiff ought to have issued a legal notice immediately, but the plaintiff issued a legal notice on 15/10/2013. Even from 2006, when the alleged panchayat was held, the plaintiff should have filed the suit within 3 years, but the plaintiff filed a suit against the defendants on 18.11.2013, for specific performance of contract. The Plaintiff has not explained why he has not taken steps to enforce the sale agreement within the reasonable time. At the cost of repetition, the plaintiff should have enforced the sale agreement within a reasonable time. The plaintiff has filed the suit after 29 years from the execution of the alleged sale agreement. Thus, 29 years is not a reasonable time - 12 - NC: 2025:KHC:15255 RSA No. 57 of 2025 for enforcement of the sale agreement. The Hon’ble Apex court in the case of ChandRani (dead) by L.rs V/s KamalRani(dead) by L.rs reported in (1993) 1 SCC 519 held as under: “ 25. From an analysis of the above case law it is clear that in the case of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the court may infer that it is to be performed in a reasonable time, if the conditions are evident: i. From the terms of the contract, ii. From the nature of the property,and iii. From the surrounding circumstances, for example: the object of making the contract. 11. The parties never intended to act upon the alleged sale agreement. Thus, the suit filed by the plaintiff is barred by limitation. The First Appellate court, considering the entire evidence on record, has rightly passed the impugned judgment. I do not find any error in - 13 - NC: 2025:KHC:15255 RSA No. 57 of 2025 the impugned judgment or any substantial questions of law that arise for consideration. 12. Accordingly, I proceed to pass the following:
Decision
ORDER i. The Regular Second Appeal is dismissed. ii. The judgment and decree dated 21/11/2024 passed in R.A No.185/2023 by the Learned III Additional District and Sessions Judge, Kolar ( Sitting at KGF) is hereby confirmed. No order as to the costs. In view of the dismissal of the appeal, I.A.No.1/2025, does not survive for consideration and is accordingly disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SKS