Sri. H. Vishwanatha vs Smt. Ramakka and Others

A.V. Chandrashekara, J.—This appeal filed by the plaintiff u/s 96 of CPC is directed against the judgment and decree passed by the learned II Additional Senior Civil Judge, Bangalore in O.S. 903/2004. Suit filed by the plaintiff for the relief of specific performance of the contrary has been dismissed by considered judgment passed on 2.7.2012. It is this judgment and decree, which is called in question on various grounds as set out in the appeal memo. Appellant herein is the plaintiff in the suit. Respondents herein were defendant Nos. 1 to 6. Defendant Nos. 1 to 3 are the absolute owners of agricultural land bearing Sy. No. 15/3 measuring 2.30 acres inclusive 16 guntas of Kharab land. The said land is situated at Pillaganahalli Village, Uttarahalli Hobli, Bangalore South Taluk and the same is described in the schedule appended to the plaint. The suit schedule property was purchased by A.G. Ramaiah, husband of respondent No. 1/defendant No. 1 under a registered sale deed dated 6.12 1990 and after his death, defendant Nos. 1 to 3 have succeeded to the estate and therefore, they are the joint owners of the suit schedule property.

According to the plaintiff, defendant Nos. 1 to 3 were in financial crisis and hence they decided to sell the suit schedule property and in this regard, they approached plaintiff with an offer to sell the schedule property. After due deliberation, sale consideration was fixed at Rs. 26,50,000/- and accordingly, Agreement of Sale was entered into between plaintiff and defendant Nos. 1 to 3 on 25.11.2002. The defendant Nos. 1 to 3 had agreed to get the land converted to residential purposes at their costs and in case any acquisition proceedings were to be initiated, the plaintiff would get the same cleared. Out of the agreed sale consideration of Rs. 26,50,000/-, Rs. 10,00,000/- was paid to the defendants as advance is the averment.

The defendant Nos. 1 to 3 had agreed to get the conversion order from the Deputy Commissioner and in this regard, they approached the plaintiff on 22.2.2003 stating that conversion charges of Rs. 1,53,235/- had to be paid. Accordingly, plaintiff paid a sum of Rs. 2,50,000/- to the defendant Nos. 1 to 3. After conversion order was issued, the plaintiff paid another sum of Rs. 10,00,000/- and in all the plaintiff paid a sum of Rs. 20,00,000/- to the defendant Nos. 1 to 3 out of agreed sale consideration.

The plaintiff came to know that KIADB was intending to acquire the suit schedule property and hence, defendant Nos. 1 to 3 postponed the execution of the sale deed in the favour of the plaintiff. Defendant No. 1 challenged the acquisition in W.P. 34734/2003 to quash the acquisition proceedings. In this regard, plaintiff is stated to have paid a sum of Rs. 2,00,000/- towards the litigation expenses. Inspite of executing the sale deed as agreed, the defendant executed a sale deed in favour of defendant Nos. 4 to 6 and the said sale deed is stated to be sham and collusive.

With the above pleadings, the suit for specific performance of contract came to be filed with a request to direct all the defendants to execute the sale deed in his favour by receiving the balance sale consideration of Rs. 6,50,000/-.

Defendant Nos. 4 & 5 alone have filed written statement denying all the averments. The averment that defendant Nos. 1 to 3 had agreed to execute the sale deed in favour of plaintiff for a sum of Rs. 26,50,000/- and that in all a sum of Rs. 20,00,000/- had been received as advance sale consideration has been specifically denied. They have been called upon to prove the execution of the sale agreement and receipt of the advance amount.

The alleged Agreement of Sale relied upon by the plaintiff is stated to have been fabricated. It is the case of the defendant Nos. 4 and 5 that defendant Nos. 1 to 3 have entered into an sale agreement with defendant No. 6 and one Nagabhushan had applied for the conversion of land bearing Sy. No. 15/3. After obtaining the order, defendant No. 6 and 1 to 3 approached defendant Nos. 4 and 5 and offered to sell 1.04 acres of land bearing Sy. No. 15/3 for Rs. 13,20,000/-. On 11.4.2003, defendant Nos. 1 to 3 sold 1.04 acres of land in favour of defendant No. 4. Defendant No. 6 was also a party to the sale deed.

Defendant No. 4 had received a notice by the KIADB about the acquisition of the land and at instance of defendant No. 4, the lands were de-notified. Defendant Nos. 1 to 3 and 6 tried to interfere with his possession and as such, he filed a suit in O.S. 887/2004 for relief of permanent injunction. Similarly, defendant No. 5 is the absolute owner of 1.04 acres of the converted land in Sy. No. 15/3 and has built a compound wall in her property. The KEB had sanctioned power to the premises constructed by defendant No. 5 and hence she has filed a suit for permanent injunction in O.S. 859/2004 and plaintiff was never ready and willing to perform his part of the contract. The suit is bad for non-joinder of necessary parties.

Defendant Nos. 1 to 3 have not filed any written statement.

On the basis of the above pleadings the, following issues came to be framed by the Trial Court:

Whether the plaintiff proves that the defendant No. 1 to 3 entered into an agreement with him to sell the suit property for Rs. 25,50,000/-?

Whether the plaintiff further proves that the defendant No. 1 to 3 received in all Rs. 20,00,000/- as advance and executed an agreement of sale on 25-11-2002?

Whether the plaintiff further proves that he is ever ready and willing to perform his part of contract?

Whether the defendant No. 4, 5 proves that the defendant No. 5 purchased Sy. No. 15/3 measuring 1 acre 4 guntas under sale deed dt. 11-4-2003?

Whether the plaintiff is entitled for the relief of specific performance as sought?

What order or decree?

The plaintiff has been examined as PW-1 and one Sri. Lokanath K, the 6th defendant has been examined as PW-2. Eight exhibits have been got marked on behalf of the plaintiff. The defendant No. 4 has been examined as DW-1 on behalf of the defendants and has got marked in all 41 exhibits.

After hearing the arguments and perusing the records, the learned judge has answered issue Nos. 1, 2, 3 and 5 in the negative and has answered issue No. 4 in the affirmative and held that additional issue No. 1 does not survive for consideration. Accordingly, the learned Judge dismissed the suit without costs. It is this judgment and decree which is called in question on various grounds urged in the appeal memo.

It is contended that the Trial Court has not properly analysed the oral and documentary evidence in right perspective and that the plaintiff did not have adequate financial capacity to purchase the suit schedule property. When the defendant Nos. 1 to 3 did not dispute the payment of sale consideration, the Trial Court could not have refused to direct the defendant Nos. 1 to 3 to refund Rs. 20,00,000/-. It is contended that the Trial Court could not have disbelieved the case of Lokanath and he could not have been considered as collusive witness. The Trial Court is stated to have erred in holding that there is prior agreement dated 25.11.2002 to which defendant Nos. 4 and 5 are not parties. The judgment and decree passed by the Trial Court is stated to have been opposed to law, facts and probabilities.

After going through the records and hearing the arguments at the time of admission, following points arise for consideration:

Whether the case on hand is fit to be admitted.

The fact that G.A. Ramaiah was the absolute owner of the property is not in dispute. After his death, defendant Nos. 1 to 3 succeeded to the property. It is the case of the plaintiff, examined as PW-1 that defendant Nos. 1 to 3 agreed to sell suit schedule property for total sale consideration of Rs. 26,50,000/- and a sum of Rs. 10,00,000/- was received as advance. It is further deposed that a sum of Rs. 1,53,235/-, Rs. 2,50,000/- and Rs. 2,00,000/- were paid to the defendant Nos. 1 to 3 for paying conversion charges and other incidental expenses. Ex. P-2 is stated to be affidavit executed by defendant Nos. 1 to 3.

During the course of examination, plaintiff has deposed that he has capacity to pay advance sale consideration to the defendant Nos. 1 to 3 as he had sufficient money by alienating 3 acres of land in Sy. No. 26/2 of Kodichikkanahalli for a sum of Rs. 40,00,000/-. It is curious to note that the plaintiff has not produced any material to show that he was the owner of land bearing Sy. No. 26/2 or he had alienated the said land for Rs. 40,00,000/-. Apart from this, plaintiff has sworn that he is an income tax assessee and to that effect he has not produced any document.

These aspects has been taken note of by the learned Judge to hold that plaintiff did not have sufficient financial capacity and about the amount having been paid to defendant Nos. 1 to 3 though they have not contested the suit.

Defendant No. 6 himself is examined as PW-2. The suit came to be dismissed as against defendant No. 6 as the plaintiff did not take necessary steps for service of summons to defendant No. 6. On the other hand, deleted defendant No. 6, who has supported the plaintiff by examining himself as PW-2. Defendant No. 6 is a consenting witness to Ex. P-1, alleged agreement of sale. PW-2 has deposed that defendant Nos. 1 to 3 have executed the sale agreement dated 25.11.2002 in favour of the plaintiff and received a sum of Rs. 20,00,000/- as advance. He has further stated that defendant No. 4 is the husband of defendant No. 5 and he promised to get the suit property denotified and get the land converted for residential purposes.

Admittedly, defendant No. 4 got the land denotified and obtained conversion order. Defendant Nos. 4 & 5 were already aware of the sale transaction between plaintiff and defendant Nos. 1 to 3.

PW-2 has further deposed that along with Nagabhushan, he had entered into an agreement with defendant Nos. 1 to 3 and Ex. D-1 is the certified copy of the agreement sale dated 25.11.2002 i.e., few days prior to the suit agreement. This goes to show that prior to the alleged suit document Ex. P-1, defendant Nos. 1 to 3 had executed sale agreement as per Ex. D-1.

Nagabhushan had filed a suit in O.S. 16529/2004 against defendant Nos. 1 to 3 and 6 for recovery of advance amount made under the sale agreement dated 25.11.2002. Ex. D-2 is the certified copy of the plaint and Ex. D-3 is the judgment and decree passed in O.S. 16529/2004. Ex. D-3 discloses that the suit came to be decreed in favour of Nagabhushan.

PW-2 was also agreement holder as per Ex. D-1 and it is curious to note that he has deposed in the Court below that he is an attesting witness to Ex. P-1. Therefore, reasonable inference has been drawn by the Trial Court is that PW-2 was very much aware of Ex. D-1, as on the date of alleged execution of suit document Ex. P-1. Admittedly, Ex. P-1 and Ex. D-1 relates to the same suit schedule property and executed by the same persons i.e., defendant Nos. 1 to 3. Therefore, the Trial Court has held that plaintiff and defendant Nos. 1 to 3 have manipulated Ex. P-1 with an intention to defraud subsequent purchaser i.e., defendant Nos. 4 and 5. This is evident from the fact that defendant Nos. 1 to 3 though appeared before the Trial Court, failed to contest the suit filed against them. This reasonable inference so drawn is based on factual assessment of the oral and documentary evidence. On the other hand, Ex. P-3 is the certified copy of the sale deed dated 11.4.2003 executed by defendant Nos. 1 to 3 in favour of defendant No. 4 and they have sold 1.04 acres of land in Sy. No. 15/3. Ex. P-4 is the certified copy of the sale deed dated 11.4.2003 executed by defendant Nos. 1 to 3 in favour of defendant No. 5 regarding 1.04 acres of land in Sy. No. 15/3.

It is evident that portions of land in Sy. No. 15/3 came to be sold in favour of defendant Nos. 4 and 5 separately through separate sale deeds. The judgment and decree passed in C.S. 887/2004 is marked as Ex. D-11 and Ex. D-21 is the certified copy of the judgment and decree passed in O.S. 859/2004. In fact these suits have been filed by defendant Nos. 4 and 5 against the plaintiff and defendant Nos. 1 to 3 for the relief of permanent injunction in respect of the same property and they have been decreed. Defendant Nos. 4 and 5 are the owners in possession of the respective properties purchased under the valid sale deeds and they have been accepted and mutations have also been carried out by the revenue authorities. Infact, the original sale deeds executed in favour of Ramaiah by one G.A. Narayana had been handed over to defendant Nos. 4 and 5 at the time of execution of sale deeds. On the basis of the sale deeds, defendant No. 4 has discharged the loan amount of Rs. 34,34,000/- to Union Bank of India which war, the loan amount due to Bank by defendant No. 1. Infact, the Union Bank of India has issued a certificate stating that entire loan amount has been repaid. All these documents have clearly established that defendant No. 4 has discharged the loan borrowed by defendant No. 1 and he has purchased the suit schedule property, as rightly opined by the Trial Court. The plaintiff did not have requisite financial capacity to pay the alleged agreement amount as per Ex. P-1. There is collusion between PW-1 and 2. Ex. P-1 cannot be considered as an out and out agreement of sale by any stretch of imagination, moreso, when defendants No. 1 to 3 have executed valid sale deeds in favour of Ex. P-4 and 5, who are bonafide purchasers for value without notice. Hence, the Trial Court has refused to grant the equitable relief of specific performance and we do no find any reason to interfere with the well reasoned judgment passed on proper evaluation of oral and documentary evidence. Hence, the appeal is liable to be dismissed at the threshold.

ORDER

a) The appeal is dismissed as not fit for admission.

b) The judgment and decree passed by the II Addl. Sr. Civil Judge, Bangalore in O.S. 903/2004 dated 2.7.2012 is confirmed.

c) Parties to bear their own costs.