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2023 DIGILAW 323 (KAR)

Shivanna v. Sannamma

2023-02-24

H.P.SANDESH

body2023
JUDGMENT 1. This appeal is filed challenging the judgment and decree dtd. 12/4/2017 passed in R.A.No.25/2016 on the file of the Senior Civil Judge and JMFC, Periyapatna and the judgment and decree dtd. 8/8/2016 passed in O.S.No.202/2012 on the file of the Civil Judge and JMFC, Periyapatna. 2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of this Court. 3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of specific performance of contract is that suit schedule property is an agricultural land bearing Sy.No.14/1, measuring 1 acre, situate at Mellahalli Village, Ravandur Hobli, Periyapatna Taluk. It is the case of the plaintiff that the defendants have approached the plaintiff to sell the said property, in order to perform the marriage of the second defendant and agreed to sell the same for a sale consideration of Rs.2.00 lakhs and executed the sale agreement dtd. 27/2/2012 and received an amount of Rs.1, 95, 000.00 and balance amount of Rs.5, 000.00 was payable at the time of registration of the sale deed and the time fixed for registration is three months. It is the contention of the plaintiff that he waited for nearly two months but, the defendants did not come forward to execute the sale deed and hence, issued notice on 10/5/2012 and an untenable reply was given and hence, the suit is filed for the relief of specific performance. 4. In pursuance of the suit summons, the defendants appeared and filed the written statement and denied the execution of the sale agreement but, contended that defendant No.1 approached the plaintiff for a sum of Rs.1.00 lakh, the plaintiff agreed to pay the amount and asked the defendants to executed Aadhar pathra (mortgage deed) pertaining to the suit schedule property, for which the defendants agreed and executed the Aadhar pathra in favour of the plaintiff and not the sale agreement as contended by the plaintiff. It is also contended that they are illiterate persons, the daughter of the first defendant is no more and therefore, the defendant Nos.2 and 3 are residing with the first defendant and taking advantage of illiteracy, document of sale agreement has been created by the plaintiff. 5. It is also contended that they are illiterate persons, the daughter of the first defendant is no more and therefore, the defendant Nos.2 and 3 are residing with the first defendant and taking advantage of illiteracy, document of sale agreement has been created by the plaintiff. 5. Based on the pleadings of the parties, the Trial Court has framed the issues with regard to whether the sale agreement was executed by receiving the balance consideration, whether the defendants failed to execute the sale deed and whether the plaintiff was ready and willing to get the sale deed registered in his favour. The Trial Court also framed the issue with regard to the defence of the defendants whether it was an Aadhar pathra and not an agreement of sale. 6. The Trial Court, after considering both oral and documentary evidence placed on record i.e., the evidence of the witnesses P.Ws.1, 2 and 3 and the documents of Exs.P1 to P7 and evidence of D.W.1, answered issue Nos.1 to 3 and 5 as 'affirmative' and issue No.4 as 'negative', in coming to the conclusion that the document executed is not an Aadhar pathra and it was a sale agreement. However, instead of granting the relief of specific performance, moulded the relief and directed the defendants to refund the earnest money with interest at 18% p.a., in coming to the conclusion that, except the said property, there is no other property belonging to the defendants and hardship is in favour of the defendants. 7. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed in R.A.No.25/2016 before the First Appellate Court and while filing the appeal, an application is also filed under Order XLI, Rule 27 of C.P.C. seeking to produce additional documents i.e., the copy of the plaint and also order sheet to show that the defendants are having other alternative property and one more suit is also filed by the first defendant. 8. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, formulated the points whether the defendants have got other alternative property for their livelihood and are liable to execute the registered sale deed and judgment of the Trial Court is perverse, capricious, arbitrary and illegal and whether it requires interference. 8. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, formulated the points whether the defendants have got other alternative property for their livelihood and are liable to execute the registered sale deed and judgment of the Trial Court is perverse, capricious, arbitrary and illegal and whether it requires interference. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal with cost throughout and the application filed under Order XLI, Rule 27 of C.P.C. was also disposed off confirming the judgment of the Trial Court. Hence, the present second appeal is filed before this Court. 9. This Court, while admitting the appeal on hearing the learned counsel for the appellant, framed two substantial questions of law as hereunder: 1. Whether the appellate Court is justified in rejecting application under Order XLI, Rule 27 of CPC when the proposed additional documents would be necessary for complete adjudication on the question of hardship as contemplated under Sec. 20 of the Specific Relief Act, 1963 ? 2. Whether the finding by the Courts below that the respondents would be put to hardship and therefore, the specific performance of the agreement dtd. 27/2/2012 cannot be granted is based on the evidence on record. 10. Learned counsel appearing for the appellant, in order to substantiate his argument to prove the substantial questions of law with regard to rejection of application filed under Order XLI, Rule 27 of C.P.C., vehemently contend that both the Courts have failed to exercise the powers under Sec. 20 of the Specific Relief Act, when both the Courts comes to the conclusion that sale agreement was executed and the defendants received the sale consideration and balance sale consideration was only Rs.5, 000.00 out of Rs.2.00 lakhs. The counsel also would submit that amount was received for performing the marriage of second defendant and the same is admitted and invitation card is also marked as Ex.P7. The counsel also would submit that amount was received for performing the marriage of second defendant and the same is admitted and invitation card is also marked as Ex.P7. When the plaintiff gave a notice, reply was given that it was only a mortgage and not the sale agreement but, both the Courts comes to the conclusion that it was a sale agreement but, failed to exercise the discretion in favour of the appellant-plaintiff, inspite of the documents being produced before the First Appellate Court that the defendants are having other alternative property and the suit is also filed against the plaintiff by the defendants. The counsel also would vehemently contend that, in the cross-examination of D.W.1, she admitted that her grand- mother is having other alternative property but, denies that a suit is filed by her grand-mother against the plaintiff stating that she is not aware of the same. But, she has given boundaries in respect of Sy.No.32. The very approach of the First Appellate Court in coming to the conclusion that in respect of other alternative property, there was a dispute is erroneous and the said suit is also filed against the plaintiff and not against any other person. Hence, the findings of First Appellate Court that no other alternative property available with the defendants is erroneous and ought to have set aside the order of the Trial Court since, the Trial Court also comes to the conclusion that there is no other alternative property, except the suit schedule property. Therefore, the counsel would submit that, when the documents are placed before the Court to show that the defendants are having other alternative property, the First Appellate Court, ought to have granted the relief of specific performance and no hardship would cause to the defendants. 11. Per contra, learned counsel for the respondents would vehemently contend that the Trial Court, while rejecting the relief of specific performance given the reason that the first defendant is old age lady and no other alternative property available with the first defendant and First Appellate Court also comes to the conclusion that, even though the plaintiff has made out that the defendants are having other alternative property, given the reason that the same is under litigation and hence, both the Courts have not committed any error and rightly rejected the prayer of specific performance and exercised the discretion judiciously. 12. 12. Having heard the respective counsel and also on perusal of the material available on record and the substantial questions of law framed by this Court, while admitting the appeal, the question before this Court is whether the First Appellate Court is justified in rejecting the application filed under Order XLI, Rule 27 of C.P.C. when the proposed additional documents are necessary for complete adjudication on the question of hardship, as contemplated under Sec. 20 of the Specific Relief Act. The other substantial question of law framed by this Court is whether the finding by both the Courts that the respondents would be put to hardship and therefore, the specific performance of the agreement dtd. 27/2/2022 cannot be granted based on the evidence available on record. 13. It has to be noted that, it is not the case of the defendants that suit schedule property not belongs to them and also not the case of the defendants that they have not received the amount. However, the defendants claim that they have only received an amount of Rs.1.00 lakh and not Rs.1, 95, 000.00 as contended by the plaintiff. It is also contended in reply as well as before the Trial Court that, it was only an Aadhar pathra and not the sale agreement. On perusal of the document at Ex.P2, it is seen that the same is a sale agreement and the same also registered and all the defendants i.e., defendant Nos.1 to 3 were present at the time of executing the sale agreement. The Trial Court also comes to the conclusion that it was a sale agreement and not an Aadhaar pathra as contended by the defendants while answering issue Nos.1 to 3 and also comes to the conclusion that an amount of Rs.1, 95, 000.00 was received but, the Trial Court, while rejecting the relief of specific performance, given the reason that the first defendant was an aged lady and no other property available with the first defendant, except the suit schedule property. The plaintiff also produced the document before the First Appellate Court to show that the defendants are having other alternative property also which has not been denied by the defendants before the First Appellate Court and the First Appellate Court comes to the conclusion that there is a litigation in respect of the said property. The plaintiff also produced the document before the First Appellate Court to show that the defendants are having other alternative property also which has not been denied by the defendants before the First Appellate Court and the First Appellate Court comes to the conclusion that there is a litigation in respect of the said property. When an application is filed under Order XLI, Rule 27 of C.P.C. and when germane issues are involved between the parties, the First Appellate Court ought to have considered the application, in order to arrive at a just conclusion. However, the application was disposed off, in coming to the conclusion that there is a litigation in respect of other property. But, the fact is that the very first defendant herself has filed a suit against the plaintiff in respect of other property of the defendants is also not in dispute. 14. It has to be noted that the first defendant did not enter into witness box and instead, examined the grand- daughter, who is a power of attorney holder as D.W.1. It is her claim in the evidence that, they have only received an amount of Rs.1.00 lakh. But, in the cross-examination, she says that she has studied upto 4th standard and she is also not aware of her date of birth. It has to be noted that, in the cross-examination, a suggestion was made to the witness that she has studied up to 8th standard and the same was denied. But, she admits that, at the time of studying, she was residing at Mellahalli Village and school certificate was also confronted to the witness and the witness admits the same, which is marked as Ex.P8, wherein it is clear that she has studied up to 8th standard. Hence, it is clear that, D.W.1 is deposing falsely before the Court and this aspect has not been considered by the Trial Court. 15. It is also important to note that, she admits in the cross-examination that, her grand-mother is having 1 acre of land. But, in the further cross-examination, she admits that she is aware of the fact that her grand-mother is having other property other than 1 acre of subject matter of the dispute. D.W.1 also admits that survey number of the suit schedule property is 1-2 and she also admits that she is having knowledge about the transaction of her grand-mother. But, in the further cross-examination, she admits that she is aware of the fact that her grand-mother is having other property other than 1 acre of subject matter of the dispute. D.W.1 also admits that survey number of the suit schedule property is 1-2 and she also admits that she is having knowledge about the transaction of her grand-mother. It is suggested that, her grand-mother also filed suit in respect of Sy.No.32 against one Shivanna but, she denies the same saying that she is not aware of it. Hence, suggestion was made that, knowing fully well about the same she is denying and the said suggestion was denied. It is also elicited that, defendant No.2 got married on 1/3/2012. It is suggested that, in order to perform the marriage of defendant No.2, they offered to sell the suit schedule property and the same was denied. However, she volunteers to state that, they offered to mortgage the property, but, she claims that only on receipt of notice, they came to know that the plaintiff got it registered the same as sale agreement and not as an Aadhar pathra but, categorically admits that, when they came to know about the same, they did not give any complaint and there was no any difficulty to give the complaint. She also admits that, she went along with her grand-mother to execute the document and when the suggestion was made that she knows to read and write Kannada, she gives an answer that she is not fully acquainted. But, admits that, she read the contents of the chief affidavit. These are the aspects which were not taken note of by the Trial Court as well as the First Appellate Court. The admissions given by D.W.1 with regard to the transaction is evasive in nature but, she categorically admits that, in Ex.P2, her grand-mother photo, her sister photo and her photo are found. It is her claim that the plaintiff given an amount of Rs.1.00 lakh often and often and not at a time. But, she cannot tell when they gave Rs.5, 000.00 and Rs.10, 000.00. But, she categorically admits that the transaction took place two months prior to the marriage of her sister. 16. It is her claim that the plaintiff given an amount of Rs.1.00 lakh often and often and not at a time. But, she cannot tell when they gave Rs.5, 000.00 and Rs.10, 000.00. But, she categorically admits that the transaction took place two months prior to the marriage of her sister. 16. It is also important to note that, there is no difference in the evidence of D.W.1 and the witnesses, who have been examined and she also admits that she knows the boundaries of Sy.No.32. But, she claims that amount was given in her village but, she has signed the document in Sub-registrar office and further admits that, all of them have signed together. When these are the admissions elicited from the mouth of D.W.1 and when the plaintiff examined himself as P.W.1 and also examined two witnesses with regard to the sale transaction i.e., P.Ws.2 and 3, they also categorically deposed for having made the payment of Rs.1, 95, 000.00 in their presence and also, when the D.W.1 is deposing falsely that she has studied only up to 4th standard when she has studied up to 8th standard and also when specific suggestion was made to D.W.1 that her grand-mother is having other property and also admitted the same and when the suggestion was made that her grand-mother has also filed the suit against the plaintiff in respect of Sy.No.32 but, only she claims that she is not aware of the same. But, in the cross- examination, she admits that, she can tell the boundary in respect of Sy.No.32 also and inspite of these admissions on the part of D.W.1, the Trial Court comes to the conclusion that the plaintiff has not produced any document with regard to the alternative property of the defendants. 17. But, in the cross- examination, she admits that, she can tell the boundary in respect of Sy.No.32 also and inspite of these admissions on the part of D.W.1, the Trial Court comes to the conclusion that the plaintiff has not produced any document with regard to the alternative property of the defendants. 17. It is also important to note that, when an application is filed before the First Appellate Court along with certified copy of the order sheet, plaint as well as the document in respect of other alternative property in respect of Sy.No.32, the First Appellate Court committed an error in coming to the conclusion that the said property is under litigation and when the appellant- plaintiff has made out a case that the defendants are also having other alternative property other than the suit schedule property and when the Trial Court has given the finding that no other property, the First Appellate Court ought to have allowed the application and taken note of the documents produced by the plaintiff and the very first defendant herself filed the suit against the plaintiff in O.S.No.68/2014 and though the same is discussed in Para No.17 of the judgment, but erroneously comes to the conclusion that the said property is also not free from litigation and the very approach of the First Appellate Court is erroneous. 18. No doubt, the Court has to exercise the discretion under Sec. 20 of the Specific Relief Act, when the material is placed before the Court, both before the Trial Court as well as the First Appellate Court regarding other property in existence, particularly in respect of Sy.No.32 and when the D.W.1 given categorical admission that her grand-mother is having other alternative property and she is also able to give boundaries to the said property, only on the ground of mere denial that she is not aware of filing of the suit by the first defendant, the Trial Court ought not to have granted the relief of refund of money, in coming to the conclusion that no other property, except the suit schedule property. The First Appellate Court also, committed an error in confirming the judgment of the Trial Court, inspite of the fact that the documents are placed before the First Appellate Court to show that the defendants are having other property bearing Sy.No.32 measuring 1 acre, 5 guntas. 19. The First Appellate Court also, committed an error in confirming the judgment of the Trial Court, inspite of the fact that the documents are placed before the First Appellate Court to show that the defendants are having other property bearing Sy.No.32 measuring 1 acre, 5 guntas. 19. It is also important to note that, on perusal of document Ex.P2, it is very clear that property was offered to perform the marriage of the second defendant. It has also emerged during the course of evidence that the sale consideration was also received for performing the marriage of the second defendant. It is also important to note that, Ex.P7 clearly discloses that marriage was performed on 1/3/2012 which was confronted to D.W.1 and sale agreement was executed two days prior to the marriage i.e., on 27/12/2012 and when the amount was received for performing the marriage of the second defendant and the document of Ex.P2 is also very clear that the property was offered to perform the marriage in the family i.e., defendant No.2, wherein it is specifically mentioned that they are going to sell the property to perform the marriage of said Asha and they were not having any other source of income to perform the marriage and this fact has not been properly appreciated by the Trial Court as well as the First Appellate Court while exercising the discretion under Sec. 20 of the Specific Relief Act. 20. When the D.W.1 tried to give false evidence that she has studied up to 4th standard and when a document was confronted to D.W.1 that she has studied up to 8th standard which is marked as Ex.P8, ought not to have accepted the evidence of D.W.1 when D.W.1 is lying before the Court. The amount was received and marriage was performed in the month of March and the defendants turned hostile in the month of May itself, in not coming forward to execute the sale deed and these are the factors which have to be considered by the Trial Court as well as the First Appellate Court when the suit is filed for the relief of specific performance and ought to have exercised the discretion judiciously and not arbitrarily. The defendants, having received the money and performed the marriage, when the demand was made to execute the sale deed within the time stipulated in the agreement at Ex.P2, the defendants have given untenable reply in terms of Ex.P5 stating that it was only a mortgage and not the sale agreement though, all of them have went to Sub-registrar office and executed the sale agreement in terms of Ex.P2 and their respective photos are also identified while cross-examining D.W.1. Hence, the Trial Court, instead of granting the relief of specific performance, moulded the relief and passed an order to refund the earnest money with interest at 18% per annum and failed to take note of the fact that almost entire amount was received by the defendants and the balance payable was only Rs.5, 000.00 and not granted the relief of specific performance, inspite of property was offered to perform the marriage of second defendant. 21. The First Appellate Court also, inspite of the documents being produced by the plaintiff and on re- appreciation of the evidence available on record, committed an error in coming to the conclusion that other property is under litigation and the litigation is also against the plaintiff and the first defendant has filed the suit against the plaintiff and though in the evidence of D.W.1 also, a suggestion was made that suit was filed against the plaintiff in respect of other property bearing Sy.No.32 and D.W.1 has given the reply that she is aware that her grand-mother is having other property and admitted that she is able to give boundaries of the said property, the First Appellate Court erroneously comes to the conclusion that the defendants are having only the suit schedule property and comes to the conclusion that hardship will be caused to the defendants. Hence, I answer both the substantial questions of law as 'affirmative' that the First Appellate Court committed an error in rejecting the application filed under Order XLI, Rule 27 of C.P.C. When the proposed additional documents would be necessary for complete adjudication on the question of hardship, the First Appellate Court committed error in exercising the discretion under Sec. 20 of the Specific Relief Act. The findings of both the Courts that defendants would be put to hardship and specific relief cannot be granted is not based on the evidence available on record and the very approach of both the Trial Court as well as the First Appellate Court is erroneous. Hence, it requires interference of this Court to set aside the judgment of the Trial Court as well as the First Appellate Court decreeing the suit granting the relief of refund of money and denying the specific relief. Having re-appreciated the material on record and the substantial questions of law framed by this Court, the suit filed by the plaintiff requires to be allowed and the plaintiff is entitled for the relief of specific performance. Hence, the findings of the Trial Court as well as the First Appellate Court requires to be reversed. 22. In view of the discussions made above, I pass the following: ORDER (i) The appeal is allowed with cost throughout. (ii) The impugned judgment and decree dtd. 12/4/2017 passed in R.A.No.25/2016 on the file of the Senior Civil Judge and JMFC, Periyapatna and the impugned judgment and decree dtd. 8/8/2016 passed in O.S.No.202/2012 on the file of the Civil Judge and JMFC, Periyapatna are set aside. (iii) The defendants are directed to execute the sale deed in terms of Ex.P2 in favour of the plaintiff within a period of two months from today, receiving the balance sale consideration of Rs.5, 000.00. (iv) If the defendants fail to execute the sale deed, the appellant-plaintiff is at liberty to approach appropriate Court to obtain the sale deed under due process of law. (v) Registry is directed to send the records to the concerned Court, forthwith.