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2019 DIGILAW 1407 (KAR)

Dadamahaboobsab v. Hajiabdulgani

2019-06-24

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. Defendant Nos.3 and 4 being aggrieved by the judgment and decree dated 29/11/2010 passed in RA No.208/2003 setting aside the judgment and decree passed by the II Additional Civil Judge (Sr.Dn), Dharwad, in O.S.No.73/1995 dated 28/8/2003 have filed this regular second appeal. 2. The status of the parties is referred to as per their ranking before the trial Court. 3. The plaintiff filed the above said suit initially for specific performance in respect of R.S.No.120A measuring 21 guntas and 13 annas of Anniggeri village, taluk Navalgund out of which 10 gunta 13 annas is the subject matter of the suit. 4. The plaintiff alleged that defendant Nos.1 and 2 are the owners in possession of the said land and they have executed an agreement of sale on 6/7/1994 agreeing to sell the suit property in favour of the plaintiff at the rate of Rs.8.00 per sq.ft. on the date of agreement of sale, a sum of Rs.20,000/- was paid as earnest money and unregistered agreement of sale was executed by defendant Nos.1 and 2 in favour of the plaintiff. It was also agreed to complete the sale transaction within a period of three months from the date of agreement of sale. Since defendant Nos.1 and 2 did not execute the sale deed as agreed upon, plaintiff insisted them to execute the sale deed as per the agreement of sale, as he was ever ready and willing to perform his part of contract. Since defendant Nos.1 and 2 did not execute the sale deed, the plaintiff got issued legal notice dated 7/6/1995 against defendant Nos.1 and 2, which was falsely replied by them. The plaintiff left with no other alternative filed the suit for specific performance of the sale agreement dated 6/7/1994. 5. Defendant Nos.1 and 2 in pursuance of summons, appeared before trial Court and filed written statement. It is the case of the defendants that the description of suit properties is not legal and proper and the same is not inconsonance with Order VII Rule 3 of CPC. The agreement of sale set up by the plaintiff is disputed in entirety. The document in question is not a legally executed document. There is no previty of contract between the parties and that the agreement set up by the plaintiff is false and concocted. The agreement of sale set up by the plaintiff is disputed in entirety. The document in question is not a legally executed document. There is no previty of contract between the parties and that the agreement set up by the plaintiff is false and concocted. The plaintiff was believed to be a Holy man as he returned from Haj and defendant signed on a blank paper for sub-division of suit properties, he created false and bogus agreement to suit his purpose. Therefore, the suit is liable to be dismissed. 6. During the pendency of the proceedings defendant Nos.1 and 2 sold the suit properties i.e. 6 gutnas of Eastern portion in favour of defendant Nos.3 and 5 guntas of Western portion in favour defendant No.4 through a registered sale deed dated 21/1/1997. Thereafter, the plaintiff got impleaded defendant Nos.3 and 4 as parties. Defendant Nos.3 and 4 appeared through their counsel and filed written statement stating that the suit of the plaintiff is not maintainable against them. They also contended that unless the plaintiff gets a decree for specific performance against defendant Nos.1 and 2, he cannot seek a decree for specific performance against defendant Nos.3 and 4. They further contended that the agreement of sale set up by the plaintiff against defendant Nos.1 and 2 is disputed. They have further contended that on 22/10/1993, defendant Nos.3 and 4 agreed to purchase the suit properties from defendant Nos.1 and 2 for valuable consideration of Rs.1,11,111/- and out of that Rs.60,000/- was paid as earnest money on the date of agreement of sale, the actual possession of the property in dispute was handed over to defendant Nos.3 and 4 by defendant Nos.1 and 2. On 21/1/1997 a regular sale deed was executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4. They have also further stated that they had filed O.S.No.143/1997 against the plaintiff seeking for declaration and consequential injunction which was later withdrawn. Defendant Nos.3 and 4 further contended that they are the bona fide purchasers for value without notice. Therefore, the suit of the plaintiff is liable to be dismissed. 7. On the basis of pleadings of the parties, the trial Court framed the issues. 8. In support his case plaintiff herself got examined as PW-1 and got examined 2 witnesses and got marked 9 documents as Ex.P1 to Ex.P9. Therefore, the suit of the plaintiff is liable to be dismissed. 7. On the basis of pleadings of the parties, the trial Court framed the issues. 8. In support his case plaintiff herself got examined as PW-1 and got examined 2 witnesses and got marked 9 documents as Ex.P1 to Ex.P9. However, the defendants have not produced any oral or documentary evidence. 9. The trial Court after hearing both the parties dismissed the suit of the plaintiff. 10. The plaintiff being aggrieved by the said judgment and decree filed regular appeal No.208/2003 on the file of the Fast Track Court III, Dharwad. The Appellate Court secured the LCRs. Heard the learned counsel for the parties and passed the impugned judgment on 29/11/2010 thereby the above appeal was allowed and the judgment and decree passed by the trial Court was set aside and the suit of the plaintiff was decreed. The defendant were directed to execute the sale deed in favour of the plaintiff as per the agreement dated 6/7/1994 by receiving the balance consideration amount. 11. Defendant Nos.3 and 4 have filed this regular second appeal being aggrieved by the impugned judgment passed in Regular Appeal No.208/2003. The appellants have urged that the First Appellate Court erroneously accepted the description of the property in dispute and that readiness and willingness on the part of the plaintiff was not considered and no proper findings are given. The appellants have also filed IA No.1/2018 under Order XLI Rule 27 r/w 127 of CPC seeking permission to produce additional documents before this Court. 12. Heard the learned counsel for the appellants and respondents on admission. 13. Learned counsel for the appellants submitted that defendant Nos.1 and 2 had entered in to an agreement of sale with defendant Nos.3 and 4 prior to the agreement in favour of the plaintiff and that the sale deed was executed during the pendency of the suit. The learned counsel further submitted that neither the property in dispute is properly described nor the total sale consideration is stated in the alleged agreement of sale in favor of the plaintiff. The learned counsel further submitted that the original agreement and other documents could not be produced by the appellant-defendant Nos.3 and 4 before the trial Court and the First Appellate Court and therefore, they have sought for permission to produce the said documents before this Court. 14. The learned counsel further submitted that the original agreement and other documents could not be produced by the appellant-defendant Nos.3 and 4 before the trial Court and the First Appellate Court and therefore, they have sought for permission to produce the said documents before this Court. 14. Per contra, the learned counsel for the respondents submitted that the appellants have not entered the witness box nor produced the so called documents before the trial Court or before the First Appellate Court even though they had all the opportunity to produce the said documents. Further, it was submitted that defendant Nos.3 and 4 have purchased the suit properties during the pendency of the suit proceedings and also in violation of the order of temporary injunction operating against defendant Nos.1 and 2 from alienating the suit schedule properties. Therefore, defendant Nos.3 and 4 cannot be held as bona fide purchasers for valuable consideration. 15. The learned counsel further submitted that the appellants have no locus standi to deny the transaction between the plaintiff and defendant Nos.1 and 2 and when defendant Nos.1 and 2 have not joined the appellants in filing this appeal, the appeal itself is not maintainable. The present appellants have to join with defendant Nos.1 and 2 to execute the sale deed in favour of the plaintiff and therefore, no substantial question of law arise in the present appeal 16. It is seen from the record that the plaintiff filed the suit initially against defendant Nos.1 and 2 seeking the relief of specific performance of agreement of sale dated 6/7/1994. It is also admitted that an order of temporary injunction was passed in the said suit against defendant Nos.1 and 2 restraining them from alienating the suit schedule properties during the pendency of the said suit. It is further admitted that defendant Nos.1 and 2 executed the sale deed in favour of defendant Nos.3 and 4 on 21/1/1997 during the pendency of the suit and in violation of order of temporary injunction. Therefore, the sale deed executed in favour of defendant Nos.3 and 4 are hit by section 52 of Transfer of Property Act. Despite this is the legal position, the appellants-defendant Nos.3 and 4 contend that they are the bona fide purchasers of the suit properties for valuable consideration. Therefore, the sale deed executed in favour of defendant Nos.3 and 4 are hit by section 52 of Transfer of Property Act. Despite this is the legal position, the appellants-defendant Nos.3 and 4 contend that they are the bona fide purchasers of the suit properties for valuable consideration. The very fact that defendant Nos.3 and 4 purchased the suit properties from defendant Nos.1 and 2 during the pendency of the suit and in violation of order of temporary injunction goes to show that they are not bona fide purchasers and there is no bona fides in the said transaction. Therefore, the contention of appellants-defendant Nos.3 and 4 that they are the bona fide purchasers of the suit properties is liable to be rejected and the First Appellate Court has properly rejected the said contention. 17. So far as proof of the agreement of sale, description of property, sale consideration agreed under the agreement are all considered by the First Appellate Court which is the final court of facts. This Court cannot consider the question of fact, therefore, the arguments advanced by the learned counsel for the appellants that the description of the suit properties is not properly mentioned and that the total consideration amount is not mentioned in the agreement and on that ground, the suit of the plaintiff ought to have been dismissed cannot be accepted. The appellants for the first time have filed application under Order XLI Rule 27 of CPC, seeking permission to produce the additional documents before this Court. The documents sought to be produced are the original agreement executed by defendant Nos.1 and 2 in their favour on 22/10/1993 and the related documents. It is not the case of the appellants-defendant Nos.3 and 4 that these documents were not available when the suit was heard before the trial Court or when the appeal was heard before the First Appellate Court. of course, the appellants had no opportunity to produce these documents before the Appellate Court as the appeal was filed by the plaintiff. However, the appellants herein had all the opportunity to produce these documents before the trial Court when they were impleaded in the said suit. On the other hand, the appellants have neither produced the documents before the trial Court nor entered the witness box to depose against the plaintiff. However, the appellants herein had all the opportunity to produce these documents before the trial Court when they were impleaded in the said suit. On the other hand, the appellants have neither produced the documents before the trial Court nor entered the witness box to depose against the plaintiff. Absolutely, there is no reason or grounds for permitting the appellants to produce the documents as additional evidence under Order XLI Rule 27 of CPC. 18. Under these circumstances, this Court holds that the appellants have not at all made out any substantial question of law for consideration in the appeal. Therefore, the appeal being devoid of merits is liable to be dismissed. Accordingly, it is dismissed. 19. The parties are directed to bear their own costs.