Manawwa and Others vs Vivekanand and Others

B.V. Nagarathna, J.—1. The defendants in O.S. 152/2006 have preferred this Second Appeal, assailing judgment and decree passed in R.A. No. 81/2011 dated 2.12.2011 passed by the Fast Track Court and Ad-hoc District Judge, Hukkeri, sitting at Gokak, by which, judgment and decree passed by the II Addl. Senior Civil Judge, Gokak, in O.S. No. 152/06 dated 29.01.2011 has been confirmed.

For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial court.

The first respondent is the plaintiff. He filed the suit seeking specific performance of an agreement of sale dated 08.10.2000. That agreement was in respect of immovable property bearing R.S. No. 967/2 comprising of 7 acres 11 guntas of land out of larger extent of land measuring 14 acres 22 guntas of land situated at Yadawad village, Gokak Taluk, Belgaum District. According to the plaintiff, registered agreement to sell the suit property was executed by defendant-1 in favour of plaintiff on 08.10.2000. The sale consideration was Rs. 4,00,000/-. On the said date a sum of Rs. 3,00,000/- was accepted as earnest money. Balance amount of Rs. 1,00,000/- was to be paid at the time of registration of sale deed. Defendant No. 1 had agreed that he had encumbrance to the tune of Rs. 1,60,000/- against the suit property and that he would execute sale deed within three years from 8.10.2000. That the plaintiff had to bear the cost of stamp duty and registration fee. It was agreed that possession would be delivered at the time of execution of the registered sale deed. That the plaintiff was ready and willing to perform his part of the contract. That there was no willful delay or latches on the part of the plaintiff. That the plaintiff approached defendant No. 1 along with elders with the balance sale consideration with a request to defendant-1 to execute registered sale deed. But according to defendant No. 1 he had not cleared encumbrance on the said property and postponed registration of the sale deed. The plaintiff believed the assurance given by the first defendant that he would eventually execute registered sale deed in favour of the plaintiff, but in vain. Plaintiff then got a legal notice issued through his advocate to defendant No. 1. The said notice was returned unserved with an endorsement that the addressee was not in the village. According to the plaintiff, this postal endorsement was made in collusion with the postman although defendant-1 along with his family was residing in the village. That the wife and children of defendant-1 had filed a suit against him in the year 2003 in respect of the suit property. That suit was compromised. The said compromise was made in order to avoid execution of registered sale deed in respect of the suit property in favour of the plaintiff. That the cause of action for the suit arose on 08.10.2000 and on subsequent dates. Hence, suit was filed seeking the relief of specific performance of agreement dated 8.10.2000.

On receipt of suit summons and court notices, defendants 2 to 6 appeared and contended that the suit property is ancestral property of defendants 1 to 6 and one Yallappa Ramappa Mabanur-brother of defendant No. 1. After the death of Ramappa Mabanur all defendants and Yallappa, brother of defendant No. 1 inherited the property. Defendants 1 to 6 have half share in 14 acres 22 guntas of land and the remaining half share belongs to the brother of defendant No. 1. Defendants 1 and 6 are husband and wife and defendants 3 and 5 are their sons and defendants 2 and 4 are their daughters. The suit land is irrigated agricultural land having borewell and adequate water source from a canal. Commercial crops are grown on the suit land. That the land fetches sufficient income. That the defendants were never been in financial crises. The plaintiff has created a false and fabricated document. Neither defendant No. 1 nor his family members received any consideration. Defendants 1 to 6 have a legitimate share in the suit property in terms of the compromise dated 27.2.2004 entered in O.S. No. 211/2003. That the suit was for partition and separate possession of suit properties. That plaintiff''s suit is not maintainable. Therefore, they sought for dismissal of the suit.

Defendant No. 3 was minor and after attaining majority he has filed his written statement. He has stated that suit property is ancestral property of defendants. The brother of first defendant Yallappa has purchased 14 acres 22 guntas of land in suit survey number under a registered sale deed from its original owner Bhimappa Jattennavar and name of Yallappa Ramappa Mabanur was mutated in the revenue records vide M.E. No. 8308. That by virtue of joint waradi, name of first defendant was also mutated along with Yallappa''s name vide M.E. No. 8824. Defendant No. 1 is not the absolute owner of the suit property. Defendant No. 1 has never executed the suit agreement. He has not received Rs. 3,00,000/- from the plaintiff.

Defendant No. 1 was addicted to bad vices, such as, drinking alcohol, etc. He was squandering family income for his illegal desires. By taking undue advantage of addiction of first defendant to such bad vices, in active collusion with the scribe and witnesses, plaintiff had got created the suit agreement to make wrongful gain to himself and to cause wrongful loss to the defendants 1 to 6. The suit property fetches market value of more than Rs. 2,00,000/- to 3,00,000/- per acre. Plaintiff has not paid sale consideration of Rs. 3,00,000/- to defendant-1. Plaintiff has knowledge that the suit property is ancestral property of defendants. Defendants 1 and 6 are illiterate and defendants 2 to 5 were minors.

That defendant-1 had taken loan from plaintiff for his cattle business and the plaintiff had hatched a plan to knockoff suit property for a meager amount. The plaintiff had asked defendant-1 to execute a security deed for the said loan. The plaintiff has illegally got created suit agreement in respect of the suit property in active collusion with the witnesses, scribe and revenue authorities. Defendants 2 to 6 were unaware of the illegal acts of the plaintiff till they received suit summons in the case. That the alleged transaction between defendant-1 and plaintiff was a loan transaction and not to sell the property.

Further, the conduct of the plaintiff shows that he was never ready and willing to perform his part of contract and he wanted to take unfair advantage. That no legal notice was issued to defendants 2 to 6 in respect of the suit agreement. That the suit agreement is not binding on them and defendant No. 1 is not heard of since more than 5 years (may be immediately prior to the date of filing of written statement dated 19.12.2009). The suit property is the only source of livelihood for the defendants. The plaintiff has unnecessarily dragged these defendants to court knowing fully well that they are not parties to the suit agreement. Hence, they sought for dismissal of suit with cost of Rs. 5,000/-.

Regarding nature of suit property and compromise decree, defendant No. 3 has taken the same plea as raised in the written statement submitted by defendants 2 to 6.

On the basis of the said pleadings the trial court raised following issues and additional issues for its consideration:

"Issues:

Whether the plaintiff proves that defendant No. 1 has agreed to sell the suit property to him on 30.10.2000 for consideration of Rs. 4,00,000/-?

Whether the plaintiff proves that he has paid earnest money of Rs. 3,00,000/- to the defendant and defendant executed a registered agreement of sale?

Whether the plaintiff was ready and willing to perform his part of the contract?

Whether the alienation of suit property by the defendant No. 1 in favour of defendants 2 to 6 is illegal?

Whether the suit of the plaintiff is not properly valued and court fee paid is insufficient?

Whether this Court has no jurisdiction to try the present suit?

Whether the plaintiff is entitled for specific performance of contract?

What is the effect of compromise decree passed in O.S. No. 211/2003?

What decree or order?

Additional Issues:

Whether the defendant No. 3 proves that the suit property is the joint family ancestral property of defendants?

Whether the plaintiff proves that the defendant No. 1 has executed the alleged agreement for sale dated 30.10.2000 in respect of suit property for his legal necessity?

Whether the suit is barred by time."

In support of his case, the plaintiff examined himself as P.W. 1 and two other witnesses as PWs. 2 and 3. He produced 12 documents which were marked as Ex. P.1 to P.12(a). While the defendant examined two witnesses and relied upon 31 documents which were marked as Ex. D.1 to D.31. On the basis of the said evidence, the trial court answered issue Nos. 1 to 4 and issue No. 7 in the affirmative. Issue Nos. 5 & 6 were answered in the negative. Issue No. 8 was answered by holding that he do not come in the way of granting relief in favour of the plaintiff in the present suit. Additional issue Nos. 1 and 3 were answered in the negative and additional issue No. 2 was answered in the affirmative. The trial court by its judgment and decree dated 29.01.2011 decreed the suit and granted relief of specific performance of Ex. P.1 agreement of sale dated 8.10.2000. The plaintiff was directed to deposit balance sale consideration of Rs. 1,00,000/- in court. Defendants 1 to 6 were directed to hand-over possession of the suit property to the plaintiff and in case they fail to do so, plaintiff was at liberty to recover possession from defendants through process of court. Defendants 1 to 6 were directed to execute registered sale deed in respect of suit property in favour of the plaintiff and on their failure to do so, through process of court.

Being aggrieved by judgment and decree of the trial court dated 29.01.2011, plaintiffs preferred R.A.81/2011 before the I Appellate Court, which on hearing respective parties framed following points for its consideration:

"1. Whether the appellants prove that there are just and reasonable grounds to allow I.A. No. II and permit him to produce the documents under list by way of additional evidence?

Whether the appellants prove that the judgment and decree passed by learned II Addl. Senior Civil Judge, Gokak, in O.S. No. 152/2006 dated 29.01.2001 is suffering from any irregularities or illegalities and calls for interference by this court in this appeal?

Whether the appellants prove that the suit property is the joint family property of them and Yallappa and the defendant No. 1 has no saleable interest in the suit property?

Whether the respondent No. 1 proves that the respondent No. 2 being the owner of suit property has executed registered Sale Agreement Deed agreeing to sell the same for Rs. 4,00,000/- on 30/10/2000 and received part consideration of Rs. 3,00,000/- ?

What order?"

It answered points 1 to 3 in the negative and point No. 4 in the affirmative and dismissed the appeal by confirming the judgment and decree of trial court.

Being aggrieved by the judgment and decree of the I Appellate Court the defendants have preferred this second appeal.

I have heard learned Counsel for appellants and the learned Counsel for respondent-1. Notice to respondent-2 is dispensed with by order dated 10.09.2015. I have perused the material on record.

It is contended on behalf of appellants that the courts below have seriously erred in granting specific performance of the agreement to sell dated 8.10.2000 vide Ex. P.1. He contended that the said agreement no doubt is a registered agreement, but it was executed as a security for a loan transaction. Defendant No. 1 required certain funds for his cattle business and he had availed credit from the plaintiff and had other loans. That in order to discharge those loans he had availed loan from the plaintiff. There was no intention on the part of defendant No. 1 to sell the suit property and in order to repay earlier loan he had availed further loan. Ex. P.1 was executed only as security for the loan transaction. That Ex. P.1 is not at all an agreement to sell the suit property as defendant No. 1 had no intention to do so. He further contended that with an ulterior motive the plaintiff got Ex. P.1 registered although it was not necessary to get the said document registered. It is further contended that the plaintiff was not ready and willing to perform his part of contract. That the balance sale consideration of Rs. 1,00,000/- was not tendered to defendant No. 1 and that the trial court as well as the I Appellate court have erroneously concluded that the plaintiff was ready and willing to perform his part of contract. It was next contended that both the courts below were not right in exercising their discretion in favour of the plaintiff. That the exercise of said discretion is not judicious and is contrary to settled principles of law. This was a case where courts below ought to have ordered refund of advance sale consideration with interest and not a case where decree of specific performance could have been granted. He therefore contended that substantial questions of law would arise in this appeal calling for admission of the matter for a detailed hearing.

Per contra, learned Counsel for respondent-1 supporting the judgment of the trial court contended, that both the courts have exercised discretion in favour of the plaintiff and that this court may not sit in judgment over the discretion exercised by the courts below in Second Appeal. Elaborating the said contention, he stated that the agreement to sell dated 8.10.2000 was a registered instrument, defendant-1- the executant got the said agreement registered before the Sub-Registrar. The said agreement clearly stipulates that the sale consideration was Rs. 4,00,000/-. Advance sale consideration of Rs. 3,00,000/- was accepted by him. Balance sale consideration of Rs. 1,00,000/- was to be paid. That the plaintiff was ever ready and willing to tender the said amount. But defendant No. 1 did not come forward to register the sale deed. Instead, defendants 2 to 6 herein filed OS. No. 211/2003 against defendant-1 and obtained a collusive decree incorporating the suit schedule property also only to defeat Ex. P.1 agreement. He also contended that on account of financial necessity defendant-1 agreed to sell the suit property and when 75% of the sale consideration was accepted by him on the date of the agreement, defendant No. 1 or his family members could not resile from the said agreement. He finally submitted that no substantial question of law would arise in this appeal and that the appeal may be dismissed in limine.

Having heard learned Counsel for the parties and on perusal of the material on record, it is noted that Ex. P.1 is not disputed by defendants. That document is a registered instrument dated 8.10.2000. A reading of that document which is submitted to the court during the course of submission would disclose that defendant No. 1 agreed to sell the suit land for a total consideration of Rs. 4,00,000/- and he had accepted earnest money of Rs. 3,00,000/- and the balance consideration of Rs. 1,00,000/- was to be paid at the time of execution of the sale deed. Defendant No. 3 in his written statement has stated that 14 acres 22 guntas of land in R.S. No. 960/2 was purchased in the name of Yallappa brother of defendant No. 1 and that the name of defendant No. 1 was also included in the revenue records. Thus, it implies that defendant No. 1 had half share in 14 acres 22 guntas and exactly half share i.e. 7 acres 11 guntas has been agreed to be sold by defendant No. 1 to the plaintiff. This property cannot in fact be held to be joint family property. It is the self-acquired property of defendant-1. Further, defendant No. 3 has categorically admitted in his written statement that defendant-1 was addicted to certain vices and he was squandering the family income for his illegal desires. Whatever may be the reason for sale of suit schedule property, the fact remains that on reading of certified copy of Ex. P.1, clearly indicates that defendant-1 intended to sell the suit property so that he could discharge his financial obligations. It is particularly mentioned that he had a loan of Rs. 1,60,000/- due to Primary Agricultural Bank to be discharged. Therefore, the fact that first defendant intended to sell this property so as to see that ultimately the loan with the bank is discharged is established. The transaction cannot be held to be a simple transaction for a loan and Ex. P.1 was given as a security for a loan is not established.

As far as readiness and willingness of plaintiff to discharge his obligation is concerned, it is noted that he had to pay balance sale consideration of Rs. 1,00,000/- to defendant-1. The sale agreement Ex. P.1 is dated 8.10.2000. The plaintiff offered balance sale consideration to defendant-1 requesting him to execute the registered sale deed. When defendant-1 did not accede to his request, legal notice was also sent. But the legal notice was not served probably because defendant No. 1 was not residing in the village at that point of time. However, from the material on record, it is noted that on issue No. 3 the trial court as well as the First Appellate Court have held that plaintiff was ready and willing to perform his part of agreement.

The trial court on going through the evidence on record and also on the basis of certain decisions has granted a decree of specific performance to plaintiff. The first appellate court while reconsidering the matter in appeal has come to a conclusion that the judgment and decree of the trial court did not suffer from any irregularity or illegality. That the suit schedule property was not the joint family property of defendant-1 and Yallappa. That defendant No. 1 had a saleable interest in the suit property. That plaintiff had proved that defendant-1 had executed registered sale agreement on 8.10.2000. That he had also proved that advance sale consideration of Rs. 3,00,000/- was received by defendant -1 and therefore, it confirmed the judgment and decree of the trial court by granting the relief of specific performance.

On considering the aforesaid aspects of the matter it is noted that the courts below on the basis of evidence on record have exercised discretion in favour of the plaintiff. Before this Court, no circumstance has been pointed out to take a different view in the matter. No reference to Section 20 of the Specific Relief Act, 1963, has been made to take a view that the courts below ought not to have been exercised discretion in favour of the plaintiff. When two courts on considering evidence on record, have concurrently exercised discretion in favour of plaintiff, I do not think that in second appeal a different view can be taken in the absence of any reason to do so.

I do not find any infirmity in the judgment and decree of the court below which has confirmed by judgment and decree of the trial court. No substantial question of law would arise in this appeal.

Appeal is dismissed.

Parties to bear their respective costs.