RACHOTAYYA MADIWALAYYA HIREMATH vs. BABUSAB S/O AMINSAB CHAPTI

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RFA No. 100033 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF MAY, 2023 PRESENT THE HON'BLE MR JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO. 100033 OF 2016 BETWEEN: SHRI. ABDUL QADIR MOHD. YUSUF KALKUNDRI, AGE: 47 YEARS, OCC: BUSINESS, R/O: 3174, CHHAJJU GALLI, BELAGAVI-590001. …APPELLANT (BY SRI. SANGRAM S. KULKARNI., ADVOCATE) AND: 1. SMT.SHAKUNTALA W/O. ASHOK NAIK, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: SUTGATTI VILLAGE, TALUK & DISTRICT: BELAGAVI-591147. 2. SHRI.APPASAHEB S/O. BASAVAPRABHU NAIK, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: SUTGATTI VILLAGE, TALUK & DISTRICT: BELAGAVI-591147. 3. SMT.VIMAL W/O. VIJAY NAIK, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: SUTGATTI VILLAGE, TALUK & DISTRICT: BELAGAVI-591147. 4. KUMARI.MALAHREE D/O. ASHOK NAIK, AGE: 29 YEARS, OCC: AGRICULTURE, R/O: SUTGATTI VILLAGE, TALUK & DISTRICT: BELAGAVI-591147. GIRIJA A BYAHATTI Digitally signed by GIRIJA A BYAHATTI Location: HIGHCOURT OF KARNATAKA-DHARWAD BENCH Date: 2023.05.30 16:39:16 +0530

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RFA No. 100033 of 2016 5. KUM.SRIDEVI D/O. VIJAY NAIK, AGE: 27 YEARS, OCC: AGRICULTURE, R/O: SUTGATTI VILLAGE, TALUK & DISTRICT: BELAGAVI-591147. 6. SHRI.VIKRAM S/O. VIJAY NAIK, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: SUTGATTI VILLAGE, TALUK & DISTRICT: BELAGAVI-591147. 7. KUMARI.RANU D/O. VIJAY NAIK, AGE: 19 YEARS, OCC: AGRICULTURE, R/O: SUTGATTI VILLAGE, TALUK & DISTRICT: BELAGAVI-591147. 8. SHRI.NANASAHEB S/O. BASAVAPRABHU NAIK, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: SUTGATTI VILLAGE, TALUK & DISTRICT: BELAGAVI-591147. …RESPONDENTS (BY SRI. SANTOSH B. RAWOOT ADVOCATE AND SRI.A. L. SANDRIMANI ADVOCATE FOR R1, R3 TO R8) (R2 SERVED)

RFA FILED UNDER SEC. 96 R/W. ORDER 41 RULE 1 & 2 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:26.09.2015 PASSED IN O.S.NO.224/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:

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RFA No. 100033 of 2016 JUDGMENT This appeal preferred challenging the judgment and decree dated 26.09.2015 passed in OS No.224/2010 on the file of II Additional Senior Civil Judge and CJM, Belagavi. 2. For the sake of convenience the parties are referred as per their rankings before the trial Court appellant is plaintiff and respondents are the defendants. 3. Brief facts of the case are as under:

Plaintiff filed a suit for specific performance of contract. It is the case of the plaintiff that the defendants are the owners of the suit property and they agreed to sell the suit schedule property for consideration of Rs.79,90,000/-. The plaintiff agreed to purchase the same for the said consideration and agreed to pay a sum of Rs.2,00,000/- towards an advance sale consideration amount and agreed to execute the sale deed in his favor. Since the name of Basavaprabhu and Vijay were required to be entered in the revenue records before the sale transaction completed. The Defendants executed an agreement of sale deed dated 06.09.2008 and further after entering the agreement of sale the defendant approached the plaintiff and

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RFA No. 100033 of 2016 requested to pay an amount of Rs.8,55,000/- and unable to pay the bank dues and other dues, since the plaintiff had agreed and accordingly paid a sum of Rs.8,50,000/- to the defendants. The plaintiff in total paid a sum of Rs.13,00,000/- to the defendant from time to time towards advance sale consideration amount and the plaintiff was ready and willing to pay the balance consideration amount. Plaintiff requested the defendant to receive the balance consideration amount and execute a registered sale deed but the defendants declined to execute a registered sale deed in favor of the plaintiff. The plaintiff got issued a legal notice dated 22.09.2010 calling upon the defendants to receive the balance consideration amount and to execute a registered sale deed inspite of service of notice the defendant did not execute the registered sale deed in favor of the plaintiff. Hence, cause of action arises for the plaintiff to file a suit for specific performance of contract. 4. The defendants filed a written statement denying the execution of agreement for sale and also receiving the part consideration amount and it is contended that the defendants have inherited the suit property from Basavaprabhu Annappa Naik and defendant No.1 Shakuntala has purchased the RS

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RFA No. 100033 of 2016 No.50/1, measuring 4 acres 15 guntas and her name was entered in both the owners and the cultivator column and late Vijay Basavaprabhu Naik was allotted RS No.50/3 toward his share and accordingly his name was entered in the revenue records relating to RS No.42/6 and name of defendant No.2 was entered in the revenue records of RS No.50/2 and defendants have clear and marketable title over the suit property and defendant Nos.3 to 7 are the legal heirs of late Basavaprabhu Naik. It is denied that the defendants have agreed to sell the suit scheduled property in favor of the plaintiff in order to clear their dues and he is offering the defendants to accept the bid on 06.09.2009 and it is also denied that the defendants received a sum of Rs.2,00,000/- as an advance sale consideration by cash and agreed to a execute the registered sale deed in favor of the plaintiff and since the names of all legal heirs Basaprabhu Naik and Vijay was required to be entered in the revenue records before the sale transaction could be completed. It is denied that the defendants specifically agreed under the agreement of sale deed to obtain survivorship/ heirship certificate and to get their names entered in the revenue records. It is also denied that the

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RFA No. 100033 of 2016 defendants have received a sum of Rs.8,50,000/- from time to time to unable them to clear the bank dues and other private dues with an agreement of sale. It is mentioned that the property belongs to the joint family and it was found necessary that the consent of family members of Basaprabhu Naik and namely Smt. Sumitra and Smt. Suvarna Yallappa, Smt. Gangawwa and Smt. Gourawwa and Smt. Renuka Suresh Naik were required for completion of the sale deed and in order to obtain the consent of family members and to complete the said transaction they executed a power of attorney in favor of Ashok S/o. Basavaprabhu Naik and further denied that the plaintiff in order has paid a sum of Rs.13,00,000/- to the defendant from time to time and he has liable to pay the balance consideration amount of Rs.66,90,000/-. It is denied that the plaintiff was and is always ready and willing to perform his part of contract and get the sale deed executed in his favor. It is submitted that the defendants never executed the agreement of sale deed in favor of the plaintiff. The question of providing the documents executed at the time of registration of a sale deed in favor of the plaintiff by receiving the balance consideration amount does not arise at all and further it is

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RFA No. 100033 of 2016 denied that the plaintiff got issued the legal notice dated 22.09.2010. It is contended that the father of defendant No.2 i.e., Basavaprabhu Naik and father of the plaintiff was having good relationship between them. Since the father of defendant No.2 was the leader of Naik Community and he was having the good image in the Community and he was the Class-1 contractor of Forest Wood. Therefore there was a money transaction between the plaintiff and the defendant for the purpose of fire wood purchase. It is contended that neither the father of the plaintiff nor the plaintiff was an agriculturist hence, the question of purchasing the agricultural land from the defendant does not arise. Hence, the cause of action shown in the plaint is false and imaginary one. Further it is contended that the land is a granted land and the agreement of sale is created and it is hit by Sections 4 and 5 of P.T.C.L Act. Hence, the suit filed by plaintiff is not maintainable. Hence, cause of action shown in the plaint is false and imaginary and hence he prays to dismiss the suit. 5. On the basis of the pleadings of the parties framed the following:

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RFA No. 100033 of 2016

ISSUES 1) Does the plaintiff proves that in respect of suit schedule properties he entered into an agreement of sale dated 06.09.2008 with the defendants for a total consideration of Rs.79,90,000/-? 2) Does the plaintiff proves that he paid an advance amount of Rs.2,00,000/- under the agreement dated 06.09.2008 to the defendants and further has made part payment of Rs.11,00,000/- to the defendants? 3) Does the defendants prove that they have borrowed Rs.5,50,000/- from the plaintiff and the transaction between them was only a loan transaction? 4) Does the plaintiff proves that he was and is always ready and willing to perform his part of the agreement of sale and that the defendants have committed the default?

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RFA No. 100033 of 2016 5) Is the agreement of sale hit by Sections 4 and 5 of P.T.C.L Act? 6) Is the plaintiff entitled to the relief of specific performance of contract as prayed for? 7) What order or decree? 6. The plaintiff in order to prove his case examined himself as PW.1 and got marked documents as Ex.P.1 to Ex.P 42. Defendant No.8 was examined as DW.1 and got marked documents as Ex.D1 and Ex.D2. The trial Court after recording the evidence of the parties and considering the oral and documentary evidence answered issue No.1 in affirmative and issue No.2 partly affirmative and issue No.4 and 5 are answered in negative Accordingly decreed the suit in part and held that the plaintiff is entitled for refund of Rs.4,50,000/- from the defendant with future interest at the rate of 8% per annum on the aforesaid amount from the date of Ex.P.21 till the realization. In so far as the relief of specific performance of contract is dismissed. The plaintiff aggrieved by the judgment and decree passed by the trial Court dismissing the suit for relief of specific performance has filed this appeal.

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RFA No. 100033 of 2016 7. Heard the learned counsel for the appellant and the learned counsel for defendant. 8. The learned counsel for plaintiff submit that the plaintiff has paid the consideration amount of Rs.13,00,000/- but the trial Court has recorded the finding that the plaintiff has paid an amount advance sale consideration amount of Rs.4,50,000/- which is contrary to Ex.P.42. He submit that the defendant executed the sale deed in favor of Smt. Aisha W/o. Shahnawaz Khan and there is a recital in Ex.P.42 wherein it is stated that the plaintiff has paid a sum of Rs.13,00,000/- for which the defendant has admitted the same. He submit that the trial Court has over looked contents of the Ex.P.42 and came to a wrong conclusion that the plaintiff has paid a sum of Rs.4,50,000/-. He further submits that when the trial Court has answered issue No.1 in the affirmative, the trial Court would have granted a relief of decree of specific performance of contract. He submits that the trial Court has committed an error in recording the finding that the plaintiff was and is ready and willing to perform his part of contract hence, he submit that the trial Court has committed an error in passing

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RFA No. 100033 of 2016 impugned judgment and decree. Hence, on these grounds he prays to allow the appeal.

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RFA No. 100033 of 2016 plaintiff himself has committed a breach of contract, when the plaintiff has committed the breach of contract, the plaintiff is not liable for the relief claimed in the suit. Hence, he submits that the impugned judgment and decree passed by the trial Court is just and proper and does not call for interference of this Court, he prays to dismiss the appeal. 10. Heard and perused the records and submissions of the learned counsel for the parties the points that would arise for our consideration are as under: POINTS 1) Whether the plaintiff proves that the defendants have executed an agreement of sale in favor of plaintiff on 06.09.2008 for total consideration of Rs.79,90,000/- ? 2) Whether the plaintiff proves that he was and is ready and willing to perform his part of contract ? 3) Whether the plaintiff proves that the plaintiff has paid a sum of Rs.13,00,000/- towards

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RFA No. 100033 of 2016 advance sale consideration amount to the defendants ? 4) Whether the trial Court was justified in passing the judgment and decree ? 5) What order or decree ? 11. Heard and perused the records.

Point No.1: 12. It is the case of the plaintiff that the defendants are the owners of the suit scheduled property and agreed to sell the suit scheduled property in favor of the plaintiff for consideration of Rs.79,90,000/- and accordingly the plaintiff paid a sum of Rs.2,00,000/- towards advance sale consideration. Accordingly an agreement of sale was executed in favor of plaintiff and further it was agreed that the plaintiff should pay 50% of the balance sale consideration amount within 15 days and the defendants are required to comply the terms and conditions and that they should get entered their name in the revenue records. The defendants did not get entered their names in the revenue records. Hence, for the said

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RFA No. 100033 of 2016 reason the plaintiff did not pay 50% of the balance sale consideration amount as per the terms and conditions of agreement of sale. Plaintiff requested the defendants to receive the balance sale consideration amount and to execute a registered sale deed the defendants did not gave any heed to the request made by the plaintiff. The plaintiff got issued a legal notice on 22.09.2010 to the defendants calling upon the defendants to receive the balance consideration amount and to execute a registered sale deed in favor of the plaintiff. In spite of service of notice the defendants did not reply to the said notice hence, cause of action arises for the plaintiff to file the suit. The plaintiff in order to prove his case he has examined himself as PW.1, he has reiterated the plaint averments in the examination-in-chief and further the plaintiff has produced a copy of agreement of sale marked as Ex.P.21. Further the plaintiff has produced the certified copy of registered sale deed executed by defendants in favor of Aisha W/o. Shahnawaz. The plaintiff has consented for execution of registered sale deed in favour of Aisha W/o. Shahnawaz. He has affixed his signature to Ex.P.1 as a contesting witness. From the perusal of Ex.P.1 it clearly indicates that plaintiff is not interested in

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RFA No. 100033 of 2016 purchasing the suit property. In Ex.P.1 there is a recital that the defendants have received a sum of Rs.13,00,000/- from the plaintiff towards the sale consideration amount. Further it is also admitted that the defendants have executed an agreement of sale in favour of plaintiff. Though the defendants denied the agreement of sale in favor of the plaintiff but in the course of cross-examination the DW.1 has clearly admitted that the execution of agreement of sale in favor of the plaintiff and also having received an amount of Rs.2,00,000/- towards advance sale consideration amount. Further DW.1 has also stated that he has given a evidence not only on behalf of himself but also the remaining defendants. In view of the admission of DW.1 in the cross-examination regarding the execution of sale and receiving of sum of 4,50,000/- towards advance sale consideration amount. This Court is of the view that the plaintiff has proved the execution of agreement of sale. 13. In view of the above discussion we answer point No.1 in the affirmative holding that the plaintiff has proved that the defendants have executed an agreement of sale deed in favor of plaintiff.

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RFA No. 100033 of 2016

Point No.2: 14. In so far as point No.2 is concerned it is the case of the plaintiff that the plaintiff was and is always ready and willing to perform his part of contract but the defendants has denied that the plaintiff was is ready and willing to perform his part of contract. Though the defendants have admitted about the execution of an agreement of sale as per Ex.P.21. As per the terms and conditions of the Ex.P.21 the plaintiff is required to pay 50% of the balance consideration amount to the defendants within 15 days from the date of execution of agreement of sale. Though the agreement of sale was executed on 06.09.2008 and the plaintiff has not paid the 50% of the balance consideration amount as agreed between the parties. PW.1 in teh course of cross-examination has admitted that as per condition No.2 of Ex.P.21, 50% of the total consideration amount had to be paid within 15 days fromt eh dat eof execution of Ex.P.21. He also admitted that he has not paid 50% of the total sale consideration amount, but he has given explanation that the defendants have not completed formalities and agreed, hence he has not paid the amount. From the perusal of Ex.P.21 the defendants did not comply conditions

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RFA No. 100033 of 2016 and there is no condition that the defendants has to comply the conditions and further he also admitted that he has not produced the documents to show that he was possessing a sufficient funds. When the defendants have denied that the plaintiff was not ready and willing to perform his part of contract the onus is on the plaintiff to establish that the plaintiff was ready and willing to perform his part of contract. The plaintiff except producing the legal notice has not produced any records to show that since from the date of execution of agreement of sale till the date of issuance of the legal notice, the plaintiff was and is ready and willing to perform his part of contract. The plaintiff has failed to establish that the plaintiff was ready and is willing to perform his part of contract, on the other hand, at the instance of plaintiff the defendants executed a registered of sale deed in favor of Smt. Aisha W/o. Shahnawaz Khan and the plaintiff is the consenting witness to the Ex.P.42. When the plaintiff himself consented for the execution of registered sale deed in favor of Smt. Aisha W/o. Shahnawaz Khan as per Ex.P.2 the plaintiff has given up his right in regard to the execution of the registered sale deed. Hence, the plaintiff has no right to claim a relief of specific

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RFA No. 100033 of 2016 performance of contract. In view of the above discussion we answer point No.2 in the negative holding that the plaintiff has failed to prove that was and is ready and willing to perform his part of contract.

Point No.3: 15. It is the case of the plaintiff that the plaintiff has paid a total sum of Rs.13,00,000/- out of the 79,90,000/-. Though the plaintiff has not produced any records to establish that the plaintiff has paid a sum of Rs.8,50,000/- but the facts that considering the records produced by the plaintiff shows that the plaintiff has paid a sum of Rs.4,50,000/- to the defendants on different dates but declined to accept the contention of the plaintiff regarding the payment of Rs.8,50,000/-. Thus in all it is the contention of the plaintiff that the plaintiff has paid a total sum of Rs.13,00,000/-. Though the defendants have executed a registered sale deed in favor of the Smt. Aisha W/o. Shahnawaz Khan as per Ex.P.42. We have perused Ex.P.42. In Ex.P.42 there is a recital in the sale deed which reads as under:

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RFA No. 100033 of 2016

ANDWHEREAS, the vendor and other family members had availed huge loans from various banks and private parties and they were unable to repay the said loans. And therefore in order to clear the dues they all jointly decided to sell their properties bearing RS No.50/1, 50/2, 50/3, 50/4 & 42/6. The properties are not fetching any income to the vendor and o9ther members of family. The agricultural produced from the property is very less and therefore the Vendor and other family members are facing financial difficulties. The consenting party had offered to purchase the properties bearing RS No.50/1, 50/2, 50/3, 50/4 and 42/6 for valuable consideration of Rs.79,90,000/-. The vendor and others family members have accepted the offer and executed a agreement of sale dated 06/09/2008 in favor of the consenting & confirming party and obtained an advance amount of Rs.2,00,000/- by cash. The Vendor and other family members have agreed to execute the sale deed in pursuance of the agreement of sale dated 06/09/2008 in favour of the consenting party after getting their names entered in the records of rights extracts of RS No.42/6, which is standing in the name of their deceased father and also to clear the

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RFA No. 100033 of 2016 encumbrances entered in the record of rights of the properties. The Vendor and other family members have further received amounts from the consenting party from time to time by cash and cheque. They have in all received Rs.13.00 lakhs as advance sale consideration from the consenting party.

(Emphasis supplied) From the perusal of Ex.P.42 the defendants have clearly admitted that they have received the sale consideration amount of Rs.13,00,000/- wherein the trial Court has over looked the admission of defendants in Ex.P.42 and came to the wrong conclusion that the plaintiff has paid a sum of Rs.4,50,000/-. The said finding recorded by the trial Court is contrary to the said fact of Ex.P.42. The plaintiff has proved that the plaintiff in all has paid a sum of Rs.13,00,000/- to the defendants towards the said part of a sale consideration. In view of the above decision we answer point No.3 in the affirmative holding that the plaintiff has paid the total part consideration amount of Rs.13,00,000/- out of 79,90,000/-.

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RFA No. 100033 of 2016

Point No.4: 16. From the perusal of the records the trial Court has recorded the finding that the plaintiff has proved that the defendants have executed an agreement of sale in favor of plaintiff but trial Court has committed an error in recording a finding that the plaintiff has paid only a sum of Rs.4,50,000/- instead of Rs.13,00,000/-. In view of the above we answer point No.4 partly in the affirmative and partly negative.

Point No.5: 17. In view of the above discussion we proceed to pass the following: ORDER i) Appeal is allowed in part with cost. ii) The judgment and decree passed by the trial Court is modified. iii) The defendants are directed to refund the amount of Rs.13,00,000/- to the plaintiff with interest at the rate of 8% from the date of execution of Ex.P.21, till the realization

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RFA No. 100033 of 2016 amount, within a period of three months from the date of the receipt of copy of this order. SD/- JUDGE SD/- JUDGE PJ List No.: 1 Sl No.: 1