The High Court
Case Details
- 1 - NC: 2025:KHC:12242 RSA No. 375 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 375 OF 2016 (SP) BETWEEN: 1. SMT. JAYAMMA D/O NANJAPPA W/O CONSTABLE CHANDRAIAH AGED ABOUT 48 YEARS R/AT B.B.ROAD BEHIND KORACHARA SCHOOL OPPOSITE TO FOREST DEPARTMENT DEVANAHALLI TOWN-562 110. BANGALORE RURAL DISTRICT (BY SRI. K.G. SADASHIVAIAH, ADVOCATE) AND: Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA 1. SRI. H.M. GOPALAPPA S/O DODDA MUNISHAMAPPA AGED ABOUT 70 YEARS R/AT HITHALAHALLI VILLAGE KASABA HOBLI, SIDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT-562 105. …APPELLANT …RESPONDENT (BY SRI. C.M.NAGABHUSHAN, ADVOCATE A/W SRI. P.V. CHANDRASHEKAR, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.02.2016 PASSED IN R.A NO.137/2013 ON THE FILE OF THE I ADDL. DISTRICT AND JUDGE, CHIKKABALLAPUR, DISMISSING THE SESSIONS - 2 - NC: 2025:KHC:12242 RSA No. 375 of 2016 APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.09.2013 PASSED IN O.S NO.196/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SIDLAGHATTA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: 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 15.02.2016 passed in R.A.No.137/2013 by the I Additional District Judge, Chikkaballapur and the judgment and decree dated 07.09.2013 passed in O.S.No.196/2006 by the learned Itinerary Senior Civil Judge and JMFC, Sidlaghatta. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the defendant, and the respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows:
Legal Reasoning
The plaintiff filed a suit against the defendant for
Legal Reasoning
specific performance of the contract. It is contended that - 3 - NC: 2025:KHC:12242 RSA No. 375 of 2016 the plaintiff was the absolute owner of the suit schedule property. He was in dire need of money as a loan in December 2004. He approached the defendant for a loan for which she promised to pay the loan only on the ground of nominal transfer of suit schedule property in her name by way of a registered sale deed. The defendant has promised to reconvey the suit property to the plaintiff after repayment of the loan. Since the plaintiff had no other option and agreed to the same, accordingly, he executed a nominal registered sale deed on 05.01.2004 in favour of the defendant regarding the suit schedule property and received a loan of Rs.2,00,000/- from the defendant, although the sale price mentioned as Rs.2,20,000/- being the guidance value for registration. The market value as on the date of the sale transaction was more than 4,00,000/-. As agreed, the defendant executed a reconveyance agreement on the same day, i.e., on 05.01.2004, agreeing to reconvey the suit schedule property in favour of the plaintiff within two years on payment of the sale price of Rs.2,00,000/- - 4 - NC: 2025:KHC:12242 RSA No. 375 of 2016 together with interest @ 2% p.m. The plaintiff agreed to pay interest at the rate of 2% per month on the said sum of Rs.2,00,000/- till the realisation of amount. The two years mentioned in the agreement was nominal and never intended to be the essence or integral conditions of the said agreement. 3.1. It is further contended that the plaintiff approached the defendant several times to receive and a sale price of Rs.2,00,000/- with interest, but the defendant went on postponing on one or the other pretext. It is contended that the plaintiff was/is always ready and willing to perform his part of the contract. He further contended that he approached the defendant in December 2005 and tendered the sale price with interest, and demanded to execute a registered sale deed regarding the suit schedule property. 3.2. The defendant demanded to pay more money, but the plaintiff declined the offer. There was a Panchayath in October 2006, but the defendant refused to - 5 - NC: 2025:KHC:12242 RSA No. 375 of 2016 abide by the decision of the Panchayathdars, who directed her to receive the consideration amount and reconvey the suit schedule property. As a last attempt, the plaintiff once again approached the defendant during the 3rd week of November 2006, but the defendant refused to comply with the sale agreement and threatened him that she would sell the suit schedule property to third parties. The plaintiff issued a legal notice to the defendant on 30.11.2006, calling upon the defendant to receive the amount with interest and execute the registered sale deed, but the defendant refused to receive the notice. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of the contract. Accordingly, prays to decree the suit. 3.3. The defendant filed a written statement contending that the plaintiff was the absolute owner of the suit schedule property. The plaintiff sold the suit schedule property for the value of consideration of Rs.2,20,000/- and the defendant paid the entire sale consideration - 6 - NC: 2025:KHC:12242 RSA No. 375 of 2016 amount to the plaintiff; the plaintiff executed the registered sale deed on 05.01.2004, and the sale is an out sale but not a nominal sale. It is denied that the defendant executed the deed of reconveyance in favour of the plaintiff, and it is denied that the plaintiff approached the defendant to receive the alleged loan amount and execute the registered sale deed. It is contended that the said sale deed is not a nominal sale deed but an absolute sale deed. Based on the registered sale deed, the name of the defendant was entered in the revenue records. It is contended that the plaintiff has suppressed the material facts and filed a false suit. It is contended that there is no cause of action to file a suit for specific performance of a contract. The cause of action shown in the plaint is false and imaginary. Hence, prays to dismiss the suit. 3.4. The trial Court, based on the pleadings of the parties, framed the following issues. 1) Whether the plaintiff proves that the defendant has executed a reconveyance agreement/agreement of sale on 05.01.2004 - 7 - NC: 2025:KHC:12242 RSA No. 375 of 2016 agreeing to reconvey the suit schedule property in favour of the plaintiff? 2) Whether the plaintiff proves that the defendant has agreed to receive sale price of Rs.2,00,000/- with interest at 2% per month? 3) Whether the plaintiff proves he was ever ready and willing to perform his part of contract? 4) Whether the plaintiff is entitled for the relief claimed? 5) What order or decree? 3.5. The plaintiff to substantiate his case, examined himself as PW.1, examined four witnesses as PWs.2 to 5 and marked 9 documents as Exs.P1 to 9. On the other hand, the defendant examined herself as DW.1 and marked 17 documents as Exs.D1 to 17. The trial Court, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 4 in the affirmative, issue No.5, as per the final order. 3.6. The plaintiff’s suit was decreed with costs, and the plaintiff is entitled to reconvey the suit schedule - 8 - NC: 2025:KHC:12242 RSA No. 375 of 2016 property through a registered sale deed from the defendant. It is directed that the defendant to execute the absolute sale deed in favour of the plaintiff with respect to suit schedule land within two months from the date of the judgment. Further, the plaintiff was also directed to deposit Rs.2,00,000/- with interest at the rate of 6% p.a., from 05.01.2004, to till its realization. It is also held that if the defendant failed to execute the registered reconveyance sale deed, the plaintiff is entitled to get the registered sale deed through the Court commissioner at the cost of the defendant. 3.7. The defendant, aggrieved by the judgment and decree passed in O.S.No.196/2006, preferred an appeal in R.A.No.137/2013 on the file of learned I Additional District Judge, Chikkaballapur. 3.8. The First Appellate Court after hearing the learned counsel for the parties, framed the following points for consideration. - 9 - NC: 2025:KHC:12242 RSA No. 375 of 2016 1) Whether the finding of the trial Court that the plaintiff is entitled for the specific performance of re-conveyance deed is wrong? 2) What order? 3.9. The First Appellate Court, on reassessing the verbal and documentary evidence, answered point No.1 in the negative and point No.2 as per the final order. The appeal filed by the defendant was dismissed, and the judgment and decree passed by the trial Court was confirmed. The defendant, aggrieved by the impugned judgments, filed this regular second appeal. 4. Heard the arguments of the learned counsel for the defendant and the learned counsel for the plaintiff. 5. Learned counsel for the defendant submits that the transaction between the plaintiff and the defendant is an absolute sale transaction, and the defendant did not execute the deed of reconveyance. He submits that the plaintiff created a deed of reconveyance and filed a false suit. He submits that the Courts below, without - 10 - NC: 2025:KHC:12242 RSA No. 375 of 2016 considering the said aspect, have proceeded to pass the impugned judgments. The impugned judgments passed by the Courts below are arbitrary and erroneous. He further submits that PW.1 admitted in the cross- examination regarding the execution of Ex.D1, registered sale deed dated 05.01.2004, and the said Ex.D1 discloses that the plaintiff delivered the possession of the suit schedule property to the defendant on the date of execution of the registered sale deed. He also submits that the plaintiff was/is not ready and willing to perform his part of the contract, so the plaintiff has failed to prove the requirements of Section 16(c) of the Specific Relief Act. Hence, prays to allow the appeal. 6. Per contra, learned counsel for the plaintiff submits that the plaintiff was the absolute owner of the suit schedule property. He was in need of money, so he approached the defendant, and the defendant informed the plaintiff to execute the nominal registered sale deed in favour of the defendant, regarding the suit schedule - 11 - NC: 2025:KHC:12242 RSA No. 375 of 2016 property as a security for the repayment of the loan. The plaintiff executed the registered sale deed dated 05.01.2004, and on the same day, the defendant agreed to reconvey the suit schedule property for Rs.2,00,000/-. It is contended that the plaintiff approached the defendant and requested to receive the loan amount with interest and execute the reconveyance deed, but the defendant went on postponing on one pretext or the other. The plaintiff, having fed up with the delaying attitude, issued a legal notice calling upon the defendant to receive the loan amount and execute the reconveyance deed. The defendant did not come forward to receive the loan amount and execute the reconveyance deed. The plaintiff is constrained to file a suit for specific performance of a contract. He submits that the Courts below have appreciated the entire evidence on record and have rightly passed the impugned judgments. He also submits that due to the price escalation, the plaintiff is ready to pay an additional consideration amount of Rs.40,00,000/-. The impugned judgments passed by the Courts below are just - 12 - NC: 2025:KHC:12242 RSA No. 375 of 2016 and proper and do not call for interference. Hence, on these grounds, he prays to dismiss the appeal. 7. This Court, on 23.08.2017, admitted the appeal to consider the following substantial questions of law. 1) Whether the courts below erred in holding that the respondent (plaintiff) has proved the execution of agreement of sale (Ex.D1) by the appellant in his favour? 2) Whether the findings of the courts below that the sale taken place under Ex.D1 is not an out and out right sale and it is a nominal sale with an understanding that on repayment of loan by the respondent to the appellant, the appellant has to reconvey the suit property in favour of the respondent are sustainable in law? 3) Whether the judgments and decrees passed by the courts below are contrary to the material evidence on record and are liable to be set aside? 8. Re-Substantial questions of law: Substantial questions Nos.1 to 3 are interlinked, hence, are taken - 13 - NC: 2025:KHC:12242 RSA No. 375 of 2016 together for a common discussion to avoid the repetition of facts. The plaintiff, to prove his case, examined himself as PW.1. He has deposed that the plaintiff was the absolute owner of the suit schedule property, and the plaintiff was in dire need of money, and he approached the defendant to advance a loan of Rs.2,00,000/-. The defendant agreed to advance the money, subject to the condition that the plaintiff should execute the registered sale deed as a security for the repayment of the loan amount. The plaintiff agreed to execute the nominal registered sale deed in favour of the defendant and accordingly executed the nominal sale deed in favour of the defendant on 05.01.2004. After executing the registered sale deed dated 05.01.2004, the defendant agreed to reconvey the suit schedule property after the repayment of the loan amount, and the period for repayment of the loan amount was two years. The plaintiff, approached the defendant and requested, to accept the loan amount with interest - 14 - NC: 2025:KHC:12242 RSA No. 375 of 2016 and execute a reconveyance deed, but the defendant went on postponing on one or the other pretext. 9. The plaintiff issued a legal notice to establish that he was/is always ready and willing to perform his part of the contract. He called upon the defendant to receive the loan amount with interest and execute the reconveyance deed. The notice was served, the defendant did not reply to the legal notice. The plaintiff, to prove his case, has produced the documents. Ex.P1 is the original reconveyance agreement executed by the defendant in favour of the plaintiff to convey the suit schedule property after payment of Rs.2,00,000/-. It is stated that the defendant can retain the possession of the suit schedule property. Ex.P2 is the office copy of the legal notice, which discloses that the plaintiff got issued a legal notice to the defendant to receive the loan amount and to execute the registered sale deed. Ex.P3 is the certificate of posting and postal receipt. Ex.P4 is the postal cover, Ex.P4(a) is the notice. Ex.P5 is the certified copy of the sale deed - 15 - NC: 2025:KHC:12242 RSA No. 375 of 2016 which discloses that the plaintiff executed the registered sale deed regarding the suit schedule property in favour of the defendant. Ex.P6 is the certified copy of the mahazar, Ex.P7 is the tax paid receipt, Exs.P8 and 9 are the pahanis. 10. During the cross-examination, it is suggested to PW.1 that the transaction between the plaintiff and the defendant is an absolute sale and not a nominal sale. The suggestion was denied by PW.1. Further, the plaintiff, to prove the execution of Ex.P1 by the defendant in favour of the plaintiff, examined attesting witnesses to the Ex.P1. PWs.2 to 5 have deposed that the plaintiff has executed the registered sale deed in favour of the defendant as security of loan obtained from the defendant on 05.01.2004. The defendant agreed to reconvey the suit schedule property in favour of the plaintiff after receiving Rs.2,00,000/- from the plaintiff, by executing the reconveyance deed. Further, nothing has been elicited from the mouths of these witnesses to disbelieve their evidence. Further, the defendant has not shown why - 16 - NC: 2025:KHC:12242 RSA No. 375 of 2016 PWs.2 to 5 have deposed against the defendant. The defendant has not deposed that there is enmity between PWs.2 to 5 with the defendant. PWs.2 to 5 are the independent witnesses; they have no personal interest in the suit schedule property. On the other hand, the defendant examined herself as DW.1. She has deposed that she had purchased the suit schedule property from the plaintiff on 05.01.2004 for consideration of Rs.2,20,000/- and the plaintiff delivered the possession of the suit schedule property in favour of the defendant. She has denied the execution of Ex.P1. 11. During cross-examination, she stated that her husband is a Head Constable working at Sulibele Police Station. She knows Gopalappa, the plaintiff for the last 12 years and intended to purchase the site for which some of the persons instructed her to approach Gopalappa. Further, the defendant, to prove her defense, has produced the documents Ex.D1 is the original registered sale deed (Ex.P5), which discloses that the plaintiff has - 17 - NC: 2025:KHC:12242 RSA No. 375 of 2016 sold the suit schedule property in favour of the defendant for consideration of Rs.2,20,000/-. Ex.D2 is the tax paid receipt, Exs.D3 to 9 are the pahanis, which disclose that the name of the defendant is appearing in the revenue records. Ex.D10 is the original sale deed, Exs.D11 to 13 are the mutation extracts, and Exs.D14 to 17 are the pahanis. 12. From the perusal of the entire evidence on record, it is clear that the plaintiff was the absolute owner of the suit schedule property. The plaintiff was in need of money, and he approached the defendant and requested to advance the loan of Rs.2,00,000/- and accordingly, the defendant agreed to advance the loan of Rs.2,00,000/- subject to the condition that the plaintiff to execute the nominal registered sale deed in favour of the defendant. Accordingly, the plaintiff executed the registered nominal sale deed in favour of the defendant on 05.01.2004. On the same day, the defendant agreed to reconvey the suit schedule property in favour of the plaintiff by receiving - 18 - NC: 2025:KHC:12242 RSA No. 375 of 2016 Rs.2,00,000/-. Accordingly, the defendant executed the reconveyance agreement, which is marked as Ex.P1. The plaintiff approached the defendant with a request to receive the amount with interest, but the defendant went on postponing on one or the other pretext. The plaintiff, to establish that the plaintiff was/is always ready and willing to perform his part of the contract, issued a legal notice as per Ex.P2, which discloses that the plaintiff was/is always ready and willing to perform his part of the contract. Despite service of notice, the defendant did not come forward to receive the loan amount with an interest and execute the reconveyance deed. 13. From the perusal of the entire evidence, the plaintiff has proved that the defendant agreed to reconvey the suit schedule property by executing Ex.P1, and the plaintiff has proved the execution of a sale agreement by examining attesting witnesses and a scribe. Thus, the plaintiff has established that the plaintiff was/is always ready and willing to perform his part of contract. Further, - 19 - NC: 2025:KHC:12242 RSA No. 375 of 2016 the defendant has not denied her signature on Ex.P1. Thus, the Courts below, considering the entire evidence on record, have rightly held that the plaintiff has proved the execution of a sale agreement dated 05.01.2004 and was/is always ready and willing to perform his part of the contract. The plaintiff has fulfilled the requirements of Section 16(c) of the Specific Relief Act of 1963. Hence, both the Courts below were justified in passing the impugned judgments. In view of the above discussion, I answer substantial questions Nos.1 to 3 in the negative. 14. On instructions, learned counsel for the plaintiff submits that the plaintiff is ready to pay an additional amount of Rs.40,00,000/-. 15. Submission is placed on record. The plaintiff is directed to deposit Rs.40,00,000/- in addition to what the plaintiff has already deposited. The plaintiff is directed to deposit the said amount before the trial Court within two months from today. - 20 - NC: 2025:KHC:12242 RSA No. 375 of 2016 16. The learned counsel for both the parties submitted that the executing Court has executed the registered sale deed and delivered the possession of the suit schedule property in favour of the plaintiff. 17. Submission is placed on record. Accordingly, I proceed to pass the following:
Decision
ORDER i. The appeal is dismissed. ii. The judgments and decrees passed by the Courts below are hereby confirmed. iii. The plaintiff is directed to deposit Rs.40,00,000/- (Rupees Forty Lakhs) before the trial Court within two months from the receipt of copy of this judgment. No order as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE SKS