Mabusab vs Govindappa

B.S. Patil, J.

This appeal is filed challenging the judgment and decree passed by the III Additional Civil Judge (Sr.Dn.), Dharwad, thereby decreeing the suit O.S. No. 275/2004 granting specific performance of the contract with the relief of possession of the suit property in favour of the plaintiff-respondent herein.

Appellant was the defendant before the Trial Court. Plaintiff-respondent herein filed the suit seeking decree of specific performance of the agreement dated 27.09.2001. As per the said agreement, the defendant agreed to sell the suit schedule property bearing R.S. No. 521/B measuring 7 acres situated at Annigeri Village in Navalgund taluk of Dharwad District, for a sum of Rs. 3,50,000/-. An amount of Rs. 3,00,000/- was paid on the date of the agreement. Balance amount of Rs. 50,000/- was agreed to be paid at the time of execution of sale deed. Sale deed had to be executed within three years.

Plaintiff contended that he was the permanent resident of Amalari in Bilagi Taluk of Bagalkot District; the agricultural lands owned by him were submerged in Upper Krishna Project. As he lost his lands, he shifted to Annigeri village and started residing with his relatives. He thought of purchasing immovable property to settle down permanently at Annigeri. As the defendant came forward to sell the suit property, they mutually agreed for the transaction and entered into a registered agreement for sale.

It is his further case that the balance amount of Rs. 50,000/- was arranged by him within a short period and called upon the defendant to receive the same and execute the registered sale deed, but the defendant postponed the same. He got issued a legal notice to the defendant on 02.09.2004 which was met with an untenable reply dated 10.09.2004 whereby the execution of the agreement itself and the payment of Rs. 3,00,000/- was disputed. Hence, the plaintiff instituted the suit.

Defendant appeared and contested the case. He denied the agreement. It was his case that there was drought for 3 to 4 years in Navalgund Taluk as well as in North Karnataka area. He had no source of income except agricultural income; he was in need of Rs. 1,00,000/-; plaintiff insisted that defendant had to execute a registered agreement of sale of the suit property of Rs. 3,50,000/- and only then he would advance the sum of Rs. 1,00,000/- to him. Therefore, the defendant was constrained to execute the registered agreement of sale. He urged that the said document was not intended to be acted upon, but was executed only as a security for the amount of Rs. 1,00,000/- advanced to the defendant. He further urged that possession continued to be with the defendant which was unusual if sale consideration of Rs. 3,00,000/- as asserted by the plaintiff had been already paid. He also contended that he was ready and willing to pay back Rs. 1,00,000/- to the plaintiff. It was urged by him that the suit property was the only source of livelihood for him to support himself and his family and if the suit were to be decreed, it will put him to great hardship and inconvenience.

Based on these pleadings, the Trial Court framed necessary issues. Plaintiff was called upon to prove the execution of the agreement dated 27.09.2001 for the sale consideration of Rs. 3,50,000/- and payment of Rs. 3,00,000/- towards part consideration on the date of agreement and as also his readiness and willingness to perform his part of the contract entitling him for the relief of specific performance. Defendant was called upon to prove his assertion that the agreement was executed by way of security for repayment of the loan of Rs. 1,00,000/- advanced to him.

In support of the case of the plaintiff, plaintiff -Govindappa examined himself as PW-1. Two witnesses who were the witnesses to the registered document were examined as PWs-2 and 3. Exs. P-1 to P-7 were produced and marked. Defendant - Mabusab, son of Imamsab Sangati examined himself as DW-1. Two witnesses were examined as DWs-2 and 3. Exs. D-1 and D-2 were produced and marked.

The Trial Court, on appreciation of the oral and documentary evidence on record, has recorded a finding that plaintiff successfully proved due execution of the registered agreement of sale dated 27.09.2001 wherein the defendant agreed to sell the suit schedule property to the plaintiff for a total consideration of Rs. 3,50,000/- and that on the date of agreement, he received a sum of Rs. 3,00,000/- agreeing to receive the balance of Rs. 50,000/- at the time of registration of sale deed. The Trial Court further found that the plaintiff was ready and willing to perform his part of the contract. It held that defendant failed to establish that he executed the agreement as security for repayment of Rs. 1,00,000/-advanced by the plaintiff as loan to the defendant. Exercising its discretion, the Trial Court decreed the suit for specific performance. Aggrieved by the same, the present Regular First Appeal has been filed by the defendant.

We have heard the learned counsel for the parties. After hearing the matter at length, we deferred the matter for further hearing with a direction to the learned counsel for both parties to keep their parties present, so as to help them to arrive at an amicable settlement of the dispute. But the parties failed to reach any amicable settlement. Plaintiff-respondent has, however, filed a memo stating that he would be satisfied if the defendant-appellant is directed to execute the registered sale deed for an extent of 5 acres of land and the plaintiff is put in possession by clearing all the encumbrances over the same. This proposal was made by the counsel for the plaintiff on condition that the defendant agrees to put an end to the litigation. This proposal is not accepted by the appellant-defendant. He has filed a memo dated 11.03.2015 before the registry, after the matter was reserved for judgment, placing the counter proposal stating inter alia that he is willing to repay the earnest money with 14% interest and to pay Rs. 10,00,000/- as compensation or to give 2 acres of land retaining remaining 5 acres of land for himself. As the parties are not in a position to agree for settling the matter, we have to consider the matter on merits.

Learned Counsel for the appellant has contended that the agreement was indeed executed as security for repayment of loan amount of Rs. 1,00,000/- to the plaintiff. This contention of the appellant cannot be accepted. We have perused Ex. P-1 which is a registered agreement for sale executed by the defendant. In fact, defendant does not deny the execution of this document. His stand is that he executed the said document by way of security for repayment of loan of Rs. 1,00,000/- advanced by the plaintiff. Terms of Ex. P-1 are clear and unambiguous. It is an agreement of sale. Payment of Rs. 3,00,000/- towards advance sale consideration has been mentioned. Both parties have agreed that the remaining sum of Rs. 50,000/- shall be paid within three years and the sale deed shall be got registered within three years. The signature of the defendant on this document is not denied. Plaintiff has examined PWs-2 and 3. PW-2 is one Basavaraj Shivappa Haltotad. He has clearly spoken about the sale transaction and the execution of the agreement. He has stated that he was present before the Sub-Registrar, Navalgund and in his presence, on instructions of both parties, the agreement was drafted and after the contents were read over, both parties agreed to the terms and thereafter, the defendant signed the agreement. PW-2 further states that himself and another attesting witness by name Shanmukhappa Basalingappa Yalavatti - PW-3 also signed the document. He has also spoken about the payment of Rs. 3,00,000/- to the defendant by the plaintiff as earnest money. Nothing is elicited in the cross-examination to discredit the version of this witness. His version is consistent with the terms and conditions of the registered document.

Similarly, PW-3 who is another attesting witness has also spoken to the due execution of the agreement in his presence. Nothing worthwhile is elicited from this witness also. Plaintiff, who has examined himself as PW-1 has spoken in detail regarding the transaction and the circumstances in which the same was executed. The Trial Court has rightly appreciated the evidence of these three witnesses.

On re-appreciation of the evidence and on careful perusal of the registered agreement of sale - Ex. P-1, we find that the plaintiff has proved due execution of the agreement, whereas the defendant having taken upon himself the onus of proving that the registered agreement was indeed in the nature of a security for repayment of loan of Rs. 1,00,000/- has failed to adduce any legally acceptable evidence to prove his version. It is well established that oral evidence to contradict the terms of the written document is impermissible. Admittedly, Ex. P-1 is the registered agreement of sale. Evidence of DWs-1 to 3 will not establish any such loan transaction between the plaintiff and the defendant. The Trial Court has rightly disbelieved their version. DW-1 is none other than the defendant himself. His self-serving evidence adduced contrary to the terms of the registered document, even if supported by the oral evidence of other two witnesses will not result in establishing such a loan transaction.

Stipulation of 3 years period by the plaintiff for completion of sale transaction has been explained by PW-1. In his cross-examination, he has explained the circumstances under which he was constrained to come over to Annigeri and purchase the land. His lands measuring 6 acres 31 guntas had been submerged in Upper Krishna Project which made him to migrate to Annigeri where his son-in-law was residing. He has denied the suggestion that he was carrying on money lending business on behalf of his son-in-law. He has stated that as his land had been submerged, if he purchased another land, Government would exempt payment of stamp duty and registration fee for such transaction and that the State Government was to issue a certificate in that regard, hence, he had agreed for the stipulation that sale deed would be got registered within three years because issue of certificate by the Government would take its own time. Merely because possession of the land was not handed over to the purchaser, the registered document Ex. P-1 cannot be disbelieved.

Legal notice issued and the evidence on record clearly disclose that the plaintiff was ready and willing to perform his part of the contract and it was the defendant who had come up with an assertion that he had not agreed to sell the property, but had only availed loan of Rs. 1,00,000/-.

Coming to point No. 2, the Trial Court has exercised its discretion and has decreed the suit for specific performance. Learned Counsel for the appellant has vehemently contended that the defendant is a poor agriculturist having a large family to support and that except the land in question, he has no other source of livelihood and therefore, the decree under challenge may be modified and he may be directed to refund the amount along with reasonable interest. In fact, keeping in mind such submission made by the Counsel for the defendant, we made sincere efforts to help the parties to arrive at an amicable settlement, so that the defendant retains portion of the land and executes registered sale deed in respect of substantial portion involved. Plaintiff-respondent agreed to put an end to the litigation by consenting to have only 5 acres of land registered leaving the remaining 2 acres to the defendant, but the defendant did not agree for the same. In fact, plaintiff-respondent has filed a memo in this regard before the Court which is taken on record. We also find that this is a case where specific performance cannot be denied to the plaintiff as there are no such circumstances which would disentitle the plaintiff to have the decree of specific performance. The defendant has also not come out with true facts and has taken a defence contrary to the registered document. The attesting witnesses have not supported his stand. However, having due regard to the condition and situation of the defendant who appears to possess the suit agricultural land as only piece of land for his sustenance, we find that ends of justice will be met, if the judgment and decree passed by the Court below is modified and the appellant-defendant is directed to execute the registered sale deed in respect of 5 acres of land out of 7 acres leaving the remaining 2 acres of land to be retained by the defendant-appellant, for his sustenance.

In the result and for the foregoing reasons, this appeal is partly allowed. The judgment and decree passed by the Trial Court is modified. Appellant-defendant is directed to execute the registered sale deed for 5 acres of land comprised in the suit survey number. Respondent-plaintiff is entitled to choose the portion of 5 acres of land out of total extent of 7 acres. Defendant shall hand over possession of the same to the plaintiff within one month from the date of receipt of a copy of this judgment, failing which plaintiff would be at liberty to have the sale deed registered through court and to secure actual possession. Plaintiff-respondent is not liable to pay any further amount towards sale consideration to the defendant-appellant.

Both parties shall bear their respective costs.