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1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 20TH DAY OF JULY, 2021 PRESENT THE HON’BLE MR. JUSTICE R.DEVDAS AND THE HON’BLE MS. JUSTICE J.M.KHAZI RFA NO.100200/2015(SP) BETWEEN:
1 . P MAMATHA W/O P.RAMAKRISHNA AGE:36 YEARS VIANNEY VIDHYALAYA ROAD, INNA REDDY COMPOUND NEAR VASAVI SCHOOL, CANTONMENT BELLARY-583104
2 . P.NIRMALA W/O P.SREENIVASAULU AGE:44 YEARS 2ND CROSS, SOUDAGAR COLONY, OPP TO PARK, VIDHYA NAGAR CANTONMENT BELLARY-583104 ..APPELLANTS (BY SRI.HARSH DESAI, ADV.)
AND:
1 . P RAMASUBBAMMA W/O P.NARAYANAPPA AGE:58 YEARS REP BY HER HUSBAND and GPA-P.NARAYANAPPA AGE:60 YEARS S/O P.NALLAGONDARAYUDU, DOOR NO.8, 2ND CROSS, GANDHI NAGAR BELLARY-583101 R
2 . V.VIJAYALAKSHMI W/O LATE V.LAKSHMINARAYANA AGE:60 YEARS C/O.V.ADISESHU DOOR NO.10/211/2 BEHIND SATHYA SAI TEMPLE OPP TO BIG VEGETABLE MARKET URUVAKONDA 515812 ANANTAPUR DISTRICT ANDHRA PRADESH
3 . P.NAGABHUSHANA S/O P.NARAYANA AGE:52 YEARS VIANNEY VIDHYALAYA ROAD INNA REDDY COMPOUND NEAR VASAVI SCHOOL CANTONMENT BELLARY-583104 …RESPONDENTS (BY SRI.F.V.PATIL, ADV. FOR R1, SRI.ANANT HEGDE, ADV. FOR R2, SRI.R.M.KULKARNI, ADV. FOR R3)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 01.12.2014 PASSED BY THE COURT OF THE FIRST ADDITIONAL SENIOR CIVIL JUDGE AT BELLARY IN O.S.NO.103/2010 AND DISMISS THE SUIT BY ALLOWING THIS REGULAR FIRST APPEAL WITH COSTS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.06.2021 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, R.DEVDAS J., DELIVERED THE FOLLOWING:
3 JUDGMENT R.DEVDAS J:
This Regular First Appeal is filed under Section 96 of CPC assailing the judgment and decree passed by the I Additional Senior Civil Judge, Ballari in O.S.No.103/2010. 2. For the sake of convenience, the parties shall be referred to as per their ranking before the trial court. 3. The suit was filed for specific performance of the contract, viz. agreement of sale dated 12.04.2005. The plaintiff had contended in the plaint that she had entered into an agreement with defendant No.1, to purchase the immovable property bearing Sy.657 measuring 8.55 acres of Kolagal village, Ballari Taluk and District, which is the suit schedule property. The sale consideration was fixed at `29,00,000/-, while advance amount of `20,00,000/- was paid under the agreement. Defendant No.1 had earlier executed a general Power of Attorney in favour defendant No.2. However, defendant No.2 was present when the plaintiff entered into an
4 agreement with defendant No.1. Thereafter, on 25.03.2008 defendant Nos.1 and 2 approached the plaintiff and her husband and sought payment of further amount of `6,00,000/- towards the sale consideration. On 25.03.2008, the plaintiff made further payment of `6,00,000/- and an endorsement was written by defendant No.1 on the agreement, acknowledging the receipt of `6,00,000/-. However, despite repeated requests and demand, defendant No.1 did not execute the sale deed in favour of the plaintiff. The plaintiff and her husband learnt that defendant No.2, had clandestinely executed two sale deeds in favour of defendant Nos.3 and 4, only to defraud the plaintiff. The plaintiff got issued legal notice to the defendants on 17.06.2010 calling upon defendant No.1 to execute the sale deed in her favour by receiving balance sale consideration of `3,00,000/-. It is contended that defendants postponed the execution of the sale deed.
5 Finally, the plaintiff filed the suit for specific performance of contract. 4. Defendant No.1 filed written statement, admitted the execution of agreement of sale and she specifically contended that she is ready and willing to perform her part of contract. However, defendant Nos.2 to 4 filed separate written statements and took a common defence that the agreement of sale dated 12.04.2005 is a created document. They contended that Power of Attorney executed by defendant No.1 in favour of defendant No.2 is a registered document and without canceling the registered Power of Attorney and without the knowledge of defendant No.2, defendant No.1 in collusion with the plaintiff has created the agreement of sale. It is contended by defendant Nos.2 to 4 that the agreement of sale dated 12.04.2005 is a bogus document and no sale consideration is paid by the plaintiff. On the basis of the pleadings, the trial court framed following issues.
6 i) Whether the plaintiff proves that on 12.4.2005 defendant No.1 has executed an agreement of sale agreeing to sell the suit property for a total consideration of Rs.29 lakhs? ii) Whether the plaintiff proves that part sale consideration of Rs.26 lakhs has been paid to the defendant No.1? iii) Whether the plaintiff proves that she was always ready and willing to perform her part of duty towards the contract? iv) Whether the plaintiff further proves that with malafide intention and to defeat her right accrued through the sale agreement dated 12.4.2005 defendant No.2 had executed sale deeds dated 3.5.2010 in favour of defendant No.3 and 4 and those sale deeds are nominal sale deeds? v) Whether the defendant No.2 to 4 prove that sale agreement dated 12.4.2005 is a created document and by virtue of the same no consideration had been passed? vi) Whether the plaintiff is entitled for a decree of specific performance of contract? vii) What order or decree? 5. The plaintiff did not enter the witness box. However, her husband was examined as P.W.1 and two more witnesses were examined on behalf of the plaintiff and 9 documents were marked as Exs.P1 to P9. Defendant No.1 was examined as D.W.1, while defendant
7 No.2 was examined as D.W.2, but no documents were marked on behalf of the defendants. 6. The trial court found that defendant No.1 being absolute owner of the suit schedule property admitted the execution of the agreement of sale in favour of the plaintiff and admitted receipt of substantial amount as part of the sale consideration. The trial court held that defendant Nos.2 to 4 are strangers to the contract and therefore, they cannot dispute execution of agreement of sale. The trial court proceeded to hold that the sale deed executed by defendant No.2 in favour of defendant Nos.3 and 4 are not binding on defendant No.1 as well as the plaintiff and therefore, the plaintiff was entitled to the relief of specific performance of contract and to get the vacant possession of the suit schedule property. Consequently, defendant No.1 was directed to execute a sale deed in favour of the plaintiff to be registered, after receiving remaining sale consideration of `3,00,000/-.
8 7. Learned counsel for the appellants/defendant Nos.3 and 4, in whose favour defendant No.2 had executed sale deeds in respect of the suit schedule property, contends that the trial court was not justified in granting a discretionary relief under Section 20 of the Specific Relief Act, when admittedly the Power of Attorney dated 28.01.1997 was executed and registered by defendant No.1, appointing defendant No.2 as his attorney to take care of the property, along with powers to sell the property and to render accounts. It was contended that when the plaintiff had not sought for a relief of setting aside the registered sale deeds, the trial court was not justified in declaring that the registered sale deeds are not binding on defendant No.1. It was further contended that since defendant No.1 had not filed an independent suit seeking cancellation of sale deeds or declaration that they are not binding on defendant No.1, by the conduct of waiver on the part of defendant No.1, she is estopped from commenting about the validity of
9 the sale deeds. It was contended that the trial court was not justified in granting the relief of specific performance overlooking relevant admissions and contradictions in the evidence of P.Ws.1, 2 and 3 in the cross-examination with regard to the alleged unregistered agreement of sale. It was contended that the trial court was not justified in granting the relief of specific performance though the suit was filed beyond the prescribed period of limitation, when admittedly the agreement of sale is said to have been executed on 12.04.2005. It was lastly contended that the trial court was not justified in granting the relief of specific performance against defendant Nos.3 and 4 who are bonafide purchasers. 8. Learned counsel for the appellants placed reliance on the decision of the Hon’ble Supreme Court in the case of Bachhaj Nahar Vs Nilima Mandal and Another (2008) 17 SCC 491 to contend that, when there is no prayer for a particular relief and no pleadings
10 to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Further, it was contended that in the case of I.S.Sikandar (dead) by Legal representatives Vs K.Subramani and Others (2013) 15 SCC 27, a similar declaration of law has been made by the Hon’ble Supreme Court that, when the plaintiff had not sought for relief of declaration that termination of agreement of sale is bad in law, the original suit filed by the plaintiff for grant of decree for specific performance on the basis of the agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law. 9. Per contra, learned counsel Sri.F.V.Patil, appearing on behalf of the plaintiff (agreement holder) contends that the trial court is right in declaring that the sale deeds executed by defendant No.2, as Power of Attorney holder for defendant No.1, in favour of
11 defendant Nos.3 and 4 are not binding on defendant No.1, even if there was no prayer at the hands of the plaintiff, agreement holder seeking such a declaration. It is firstly contended that such a contention was not raised in the written statement filed on behalf of defendant Nos.2 to 4 and no issue in this regard has been framed by the trial court. In this regard, learned counsel seeks support of the decisions in the case of R.Rudrappa Vs Smt.Parvatamma (2001) 3 Kar.L.J. 566 and in the case of Mudanna Virayya Vs Mudanna Adenna and Others (AIR 1930 PC 18) to contend that when a contention is not raised in the written statement and no issue is framed by the trial court, the question cannot be raised for the first time in the appellate court. 10. It is further contended by the learned counsel for the plaintiff that issue No.4 is framed by the trial court whether the plaintiff proves that with malafide intention and to defeat her right, defendant No.2 had executed sale deeds dated 03.05.2010 in favour of defendant
12 Nos.3 and 4 and those sale deeds are nominal sale deeds? The learned counsel submits that on the admission of defendant No.1 that he has not received any sale consideration from his agent-defendant No.2 under the sale deeds dated 03.05.2010, the plaintiff established before the trial court that the sale deeds are nominal in nature. Learned counsel would therefore submit that a further relief of cancellation of the sale deeds dated 03.05.2010 was not necessary as the plaintiff was not a party to the sale deeds dated 03.05.2010. 11. Reliance is placed on the decision in the case of Durga Prasad and Another Vs Deep Chand and Others (AIR 1954 SC 75) to contend that the provision of Section 27 of the Specific Relief Act (now Section 19), fell for consideration while analyzing the question as to who should join the execution of a sale deed in a suit for specific performance. It was pointed out from para 41 of the judgment that, if the subsequent purchaser alone is directed to execute the conveyance, no doubt it would
13 have the effect of vesting the title of the property to the plaintiff but it might be inequitable to compel the subsequent transferee to enter into terms and covenants in the vendor’s agreement with the plaintiff to which he would never have agreed had he been a free agent. It was opined that proper form of decree was to direct specific performance of contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. This submission is made by the learned counsel since the plaintiff had prayed in the suit that defendants may be directed to execute the sale deed in favour of the plaintiff. 12. Learned counsel Sri.Anant Hegde, appearing for defendant No.1 (previous owner) submits that it is on record, in the pleadings of defendant No.1 that she had contemplated instituting a suit against defendant No.2, her agent, Power of Attorney holder, seeking declaration that the dealings between defendant Nos.2 to 4 are
14 illegal, however, since the plaintiff filed the suit, defendant No.1 was advised to assist the court in the said suit itself and to avoid multiplicity of proceedings. Learned counsel submits that defendant No.1 had clearly stated in her written statement that sale deeds dated 03.05.2010 executed by defendant No.2 in favour of defendant Nos.3 and 4 is a nominal sale as defendant Nos.3 and 4 are the sisters-in-law of defendant No.2 and no sale consideration is passed from defendant Nos.3 and 4 under the sale deeds to defendant No.2 or original owner defendant No.1. It is pointed out that in both the sale deeds the sale consideration of `19,35,000/- each is said to have been paid by the purchasers by way of cash. 13. Learned counsel would further contend that the plaintiff is permitted to maintain the suit against defendant Nos.2 to 4 in view of Section 19(b) of the Specific Relief Act, 1963. It is submitted that, when once defendant Nos.2 to 4 are impleaded as defendants, as per the said provision, it was for defendant Nos.2 to 4 to
15 prove that they were transferees for valuable consideration and that money is paid in good faith and without notice to the original contract. 14. On the question of termination of the General Power of Attorney executed by defendant No.1 in favour of defendant No.2, learned counsel submits that as per Section 207 of the Indian Contract Act, revocation or renunciation may be expressed or implied in the conduct of the principal or agent respectively. Learned counsel submits that defendant No.2 had handed over the original General Power of Attorney dated 28.01.1997 to the plaintiff during the negotiations and at the time of execution of the agreement of sale dated 12.04.2005 which clearly shows that the agency was terminated impliedly. The original of the General Power of Attorney has been produced and marked on behalf of the plaintiff as Ex.P6. Learned counsel therefore submits that the trial court has rightly appreciated the evidence on record and come to a conclusion that sale deeds dated 03.05.2010
16 are nominal sale deeds and therefore, although the plaintiff had prayed that all the defendants may be directed to execute a sale deed in favour of the plaintiff, the trial court found it unnecessary to direct defendant Nos.2 to 4 to join in the execution of the sale deed in favour of the plaintiff. 15. Both the learned counsels for the plaintiff and defendant No.1 who are sailing together, have placed reliance on a decision of a Coordinate Bench of this Court in the case of Smt.Padmini Raghavan Vs. Mr.H.A.Sonnappa, since dead by his legal representatives accused Others (ILR 2014 KAR 233). At paragraphs 61 to 64, the scope and ambit of Section 19 of the Specific Relief Act, 1963 has been considered. Learned counsels would submit that the Coordinate Bench has held that, when once the subsequent purchasers are impleaded as defendants in the suit for specific performance of a contract, it is for the transferees to prove that they have purchased the
17 property for valuable consideration and that they have paid money to the vendor in good faith and that they had no notice of earlier contract for sale between defendant No.1 and the plaintiff. 16. We have heard the learned counsel for the parties and perused the trial court records. 17. This court finds that this case presents a peculiar set of facts inasmuch as, subsequent sale transactions are made at the hands of defendant No.2 who is the Power of Attorney holder of defendant No.1. The Power of Attorney is a registered document, empowering the agent to take care of the property, power to alienate and to render accounts. The Power of Attorney was executed on 28.01.1997 and registered in the office of the Sub-Registrar, Ballari, on 28.01.1997. It is the contention of the plaintiff that she entered into an agreement with defendant No.1 on 12.04.2005, agreeing to purchase the property for a sum of `29,00,000/-. A sum of `20,00,000/- is said to have been paid by cash as
18 advance amount on the date of the agreement. The balance sale consideration of `9,00,000/- was required to be paid at the time of registration of the sale deed. No time frame is fixed for execution of the sale deed. The vendor agrees to officially get the property surveyed. There is an endorsement on the hind page of page No.1 of the agreement stating that on dated “nil” of March 2008, the vendor has received a further sum of `6,00,000/- from the purchaser. The suit is filed on 02.08.2010. It is averred in the plaint that the plaintiff and her husband were continuously requesting defendant Nos.1 and 2 to get the schedule land sub-divided by getting the same surveyed by the survey authorities and to execute the sale deed after receiving balance sale consideration. However, the plaintiff came to know that defendant No.2 has executed two nominal sale deeds in favour of defendant Nos.3 and 4 on 03.05.2010. When enquired, defendant No.1 pleaded her ignorance about the execution of the sale deeds by defendant No.2.
19 Defendant No.1 informed the plaintiff that she would file objections for mutations and take all necessary steps to get the sale deeds cancelled. Nevertheless, the plaintiff got issued legal notice dated 17.06.2010 calling upon the defendants to cancel the sale deeds dated 03.05.2010 within one week on receipt of the notice and to execute sale deed in favour of the plaintiff on 12.07.2010 during the office hours, in the office of the Sub-Registrar, Ballari. However, it is stated that despite the notice, the defendants did not turn up on 12.07.2010 and therefore, the plaintiff proceeded to file the instant suit. 18. What is noticeable is that no material is placed on record to show the preparedness of plaintiff, like documentation made on requisite stamp paper is placed on record. It is noticeable that the plaintiff was aware that defendant No.1 had executed a Power of Attorney which was duly registered. Although it is contended that defendant No.2 also was privy to the agreement of sale, and that the stamp paper on which the agreement is
20 written was purchased in the name of defendant No.2, the agreement does not contain the signature of defendant No.2. There can be no denial that stamp paper could be purchased by the plaintiff in the name of defendant No.2. It is not forthcoming as to why the agreement is prepared on a stamp paper purchased in the name of defendant No.2. Nothing is said about the Power of Attorney in the agreement of sale. There is no condition imposed that defendant No.1 should get the Power of Attorney cancelled in accordance with law. It is neither stated that defendant No.2 could execute the sale deed in favour of the plaintiff on the strength of the Power of Attorney executed by defendant No.1 in favour of defendant No.2. 19. On the other hand, the original Power of Attorney has been produced by the plaintiff and the same is marked on behalf of the plaintiff as Ex.P8. Though it is stated on behalf of defendant Nos.2 to 4 in the deposition that original Power of Attorney was torn after the
21 execution of the sale deeds in favour of defendant Nos.3 and 4, the said statement has been proved wrong since the original of the General Power of Attorney has been produced by the plaintiff before the court. 20. The contention of the learned counsel for defendant No.1 that in terms of Section 207 of the Indian Contract Act, the deliverance of the original of the Power of Attorney to the plaintiff or defendant No.1 would imply revocation of the power granted by defendant No.1 in favour of defendant No.2, cannot be countenanced. Generally, a registered instrument can be cancelled or revoked only by a deed of revocation or cancellation duly executed and registered. This submission could have been considered if defendant No.2 had joined the execution of the agreement of sale by defendant No.1 in favour of the plaintiff. That not being so, the argument of the learned counsel is required to be rejected. 21. As regards, passing of the sale consideration, under both the sale deeds dated 03.05.2010, it is said to
22 have been paid by way of cash. Similarly in the agreement of sale `26,00,000/- is said to have been paid by cash by the plaintiff to defendant No.1. The relationship between defendant No.2 and defendant Nos.3 and 4 has not been denied. On the other hand, it has been admitted by P.W.1, i.e., husband of the plaintiff during the cross-examination that he is the cousin brother of defendant No.2. P.W.1 has admitted that there were several business transactions between himself and defendant No.2. The admission of defendant No.1 that he has received the advance amount from the plaintiff cannot be accepted on face value. In this regard, we have to express our doubt about the genuinity of the transactions surrounding the sale deeds as well as the agreement of sale. 22. Nevertheless, we are also of the opinion that the plaintiff cannot succeed on the weakness of the defendants’ case. If at all, the plaintiff has to succeed, more so, under Section 20 of the Specific Relief Act,
23 which is a discretionary relief, the plaintiff can do so only on the strength and merits of her case. In this regard, we will have to consider whether the trial court was justified in declaring that the sale deeds dated 03.05.2010 are nominal sale deeds and they are not binding on defendant No.1. In this regard, it is relevant to notice the provision of Section 34 of the Specific Relief Act, 1963. Section 34 reads as follows: “34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”
24 23. It is by now well settled that, when a plaintiff seeks to establish a title in himself and cannot establish that title without removing as insuperable obstacle such as a decree or deed to which he has been a party or by which he is otherwise bound, then quite clearly he must get that decree or deed cancelled or declared void. Such a prayer would be a prayer for cancellation of the decree or deed. However, on the other hand, when the plaintiff is seeking to establish a title finds himself threatened by a decree or deed, the proper remedy in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned, and therefore, he may sue for a declaration to that effect and not for the cancellation of the decree or the deed. 24. However, as rightly pointed out by the learned counsel for the appellants/defendant Nos.3 and 4, in the case of Bachhaj Nahar(supra), it has been held that, when the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint,
25 the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result, the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case putforth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. 25. Similarly, in the case of I.S.Sikandar (supra), while dealing with a suit for specific
26 performance of contract, it was held that the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law. Further, in the case of B.Vijaya Bharathi Vs P.Savitri and Others ((2018) 11 SCC 761), which again deals with a suit for specific performance, it was held that, it must be noted that though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the sale made by defendant No.1 to defendant No.2, and thereafter by defendant No.2 to defendant No.3 are aside, no decree for specific performance could possibly follow.
27 26. Moreover, as noticed earlier, the peculiar facts and circumstances obtained in this suit is that the allegation of the plaintiff is not against the vendor (defendant No.1) and on the other hand, the allegation is against defendant No.2, the Power of Attorney holder who has executed sale deeds in favour of defendant Nos.3 and 4. Going by the provision of Section 34 of the Specific Relief Act, it was for defendant No.1 to have initiated proceedings by filing a suit and seeking appropriate relief, whether it is a declaration that the sale deeds are void or seeking cancellation of the sale deeds. Defendant No.1 has not thought it fit to file a counter claim in the suit filed by the plaintiff, if it was so permitted instead of filing a separate suit. The proviso to Section 34 makes it very clear that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. No doubt, it was open for the plaintiff to seek a mere declaration in terms of Section 34 of the Specific
28 Relief Act, and justify restricting his prayer only for seeking a declaration and not seeking cancellation of the sale deeds. But, as noticed earlier, there was no prayer in the instant suit seeking a declaration that sale deeds dated 03.05.2010 are void or they are not binding since they are nominal sale deeds etc. Therefore, as held in the case of Bachhaj Nahar(supra), when there was no prayer seeking declaratory relief and when there was no issue framed in that regard, no opportunity was available to defendant Nos.2 to 4 to show that the relief proposed by the court could not be granted. Therefore, when there is no prayer for a particular relief and no pleadings to support such a relief, and that the defendants had no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. 27. On facts, it is also required to notice that as per the plaint averments, the agreement of sale was entered into on 12.04.2005 between the plaintiff and
29 defendant No.1. No time frame was fixed for execution of the sale deed. It is only stated that defendant No.1 is required to be get the survey conducted officially. On 25.03.2008, just before expiry of three years, an endorsement is made on the agreement showing that defendant No.1 has received additional advance amount of `6,00,000/-. There is no endorsement specifically extending the period for completion of the contract. The suit is filed on 02.08.2010, more than five years after the execution of the contract. In the meanwhile, on 03.05.2010, defendant No.2, on the strength of the registered Power of Attorney, proceeds to execute the sale deeds in favour of defendant Nos.3 and 4. `26,00,000/- is said to have been paid by the plaintiff to defendant No.1 by way of cash, under the agreement. The defendants have confronted P.W.1 in the cross- examination regarding bank statement and income tax assessments of the plaintiff and P.W.1 admits that
30 plaintiff has not produced any documentary evidence in this regard. 28. In the light of the above discussion and having regard to the fact that Section 20 of the Specific Relief Act vests a discretionary power in the court to grant a decree of specific performance and the court is not bound to grant such a relief merely because it is liable to do so, for the very same reason, owing to the peculiar facts and circumstances of the instant case, we proceed to hold that the impugned judgment and decree declaring that the sale deeds dated 03.05.2010 is not binding on defendant No.1 and further directing defendant No.1 to execute a sale deed in favour of the plaintiff was not warranted. It is also not a case whether defendant No.1 could be directed to refund the advance amount to the plaintiff. 29. During the course of proceedings, it was brought to our notice that on the strength of the judgment and decree passed by the trial court, defendant
31 No.1 has executed a sale deed in favour of the plaintiff. Defendant Nos.2 to 4 have challenged the execution of the sale deed by filing a civil revision petition. This act on the part of the plaintiff and defendant No.1 would also throw light on the conduct of the parties which needs to taken note of. 30. Accordingly, we proceed to allow the appeal and set aside the impugned judgment and decree dated 01.12.2014 passed by the First Additional Senior Civil Judge, Ballari in O.S.No.103/2010. Consequently, the suit filed by the plaintiff stands dismissed. 31. It is ordered accordingly.
Sd/- JUDGE
Sd/- JUDGE
MBS/-