Vastada Shivamurthappa vs Adhikari Chennabasappa

A.V. Chandrashekara, J.—The lone defendant of an original suit bearing O.S. No. 80/1999 which was pending on the file of Civil Judge (Jr.Dn.), Harapanahalli is before this Court challenging the concurrent finding passed by the Civil Judge (Sr.Dn.) Harihar in R.A. 162/2001.

Suit filed against the defendant for relief of specific performance has been decreed and this appellant has been directed to execute the sale deed in respect of 3.35 acres of land in Sy. No. 457/A of Halavagalu Village, Harapanahalli Taluk.

Suit is in respect of 3.35 acres of land in Sy. No. 457/A, Halavagalu Village, Harapanahalli Taluk. The defendant is stated to have executed an agreement of sale on 12.6.1996 in favour of plaintiff on agreeing to sell the entire suit schedule property for a sum of Rs. 45,000/- and on the same day, he is stated to have been received a sum of Rs. 30,000/- towards the consideration and he had agreed to execute regular sale deed within 3 years from the date of agreement of sale by receiving the balance sale consideration of Rs. 15,000/-. Inspite of several oral admissions, he did not come forward to execute the sale deed. Hence, plaintiff got issued a legal notice calling upon the defendant to execute the regular sale deed in his favour by receiving the balance sale consideration. It is averred that he has been ready and willing to perform his part of contract. With these pleadings, he prayed for decreeing the suit.

The defendant has chosen to deny all the material averments and has called upon the plaintiff to strictly prove the contents of the plaint. He has specifically averred that the alleged agreement of sale is no agreement of sale in the eye of law and that he had financial transaction with the son of the plaintiff, who is a Mandi Merchant at Davanagere and he is due to pay a sum of Rs. 30,000/- to him and that his son has already filed a separate suit to recover the said amount. The material averment of readiness and willingness has been specifically denied. It is also specifically averred that transaction with the plaintiff and that he had not intended to execute sale deed in his favour. According to him, sale consideration is quite inadequate and insufficient when similar lands so placed had greater market value, than the one mentioned in the alleged agreement. With these pleadings, the defendant has prayed for dismissal of the suit.

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

Whether the plaintiff proves that, the defendant had executed the sale agreement dated 12.6.1996 by agreeing to sell the suit schedule properties for valid consideration amount of Rs. 45,000/- by receiving 15,000/- of rupees as a token of advance?

Whether the plaintiff further proves that, the defendant has agreed to execute the sale deed within 3 years from the date of agreement?

Whether the plaintiff proves that, he is ready and willing to take the sale deed?

Whether the defendant prove that, the plaintiff is entitled for relief as the agreement of sale is only nominal one, and not acted upon it?

To what relief the parties are entitled?

To what Order or Decree?"

Plaintiff himself is examined as PW-1, two witnesses and one scribe to the agreement of sale have been examined as PWs-2 to 4 respectively. On behalf of the plaintiff, 4 documents have been marked as Exs. P-1 to 4. On behalf of the defendant, he himself is examined as D.W. -1 and as produced and marked as many as 6 documents.

Ultimately, the suit came to be decreed on 29.8.2001 answering issues Nos. 1 to 3 and 5 in the affirmative and issue No. 4 in the negative directing the defendant to execute the sale deed in favour of the plaintiff by receiving balance sale consideration. It is this judgment, which was called in question in an appeal filed under Section 96 of CPC in R.A. 312/2002. The said regular appeal has been dismissed by judgment dated 24.1.2005.

The following points framed by the First Appellate Court for consideration are as follows:

"1. Whether the Judgment and decree of the Trial Court is arbitrary, capricious, perverse and opposed to principles of law?

Is there any sufficient reasons to interfere in the order of Trial Court?

What Decree or Order?"

The First Appellate Court, after hearing the learned counsel for the parties has answered points Nos. 1 and 2 in the negative and ultimately dismissed the appeal. It is these concurrent judgments, which is called in question on various grounds as set out in the appeal memo.

After hearing the learned counsel for the parties and after perusing the records, the following substantial question of law was framed on 24.1.2008:

"Whether the Courts below were justified in holding that the suit agreement is an agreement of sale and not a document which came into existence in connection with money transaction as pleaded by the defendant?"

Heard the learned counsel for the parties and perused the records.

The learned counsel has vehemently argued that the Courts below have adopted wrong approach to the real state of affairs and that they have not assessed the evidence in right perspective on the touch stone of intrinsic probabilities more particularly in a suit when equitable relief of specific performance is sought. It is argued that the findings given by the Trial Court and First Appellate Court are concurrently wrong findings and that glaring infirmities are found in the assessment of the evidence. Perversity is found on the face of the record and therefore the appeal to be allowed. It is further argued that neither the Trial Court nor the First Appellate Court have considered the provisions of Section 20(2) of Specific Relief Act. In this regard, decision in the case of Nirmala Anand Vs. Advent Corporation (P) Ltd. and Others, has been relied.

Per contra learned counsel for the respondent/plaintiff has relied upon the decision of this Court in the case of Vishnu Vs. Abdulgani, to contend that inadequacy in consideration in no ground to of reject the relief of specific performance. He has relied upon another decision of the Hon''ble Apex Court in the case of Narayanan Rajendran and Another Vs. Lekshmy Sarojini and Others, to contend that the scope for interfering with the concurrent findings under Section 100 CPC is very much limited unless perversity or illegality are found on the face of the record.

Relief of specific performance is an equitable relief. Whoever wants the Court to grant equitable relief of specific performance must exercise his/her right within a reasonable point of time. What is reasonable point of time, depends on the facts of each case. In the present case, Ex. P-1 is an agreement of sale said to have been executed by the defendant, which is a registered agreement of sale. What is argued by the learned counsel for the plaintiff is that when Ex. P-1 has been proved in accordance with law to the hilt, there is no scope for this Court to interfere with the finding of the Trial Court as well as First Appellate Court in regard to the nature of the case.

A Division Bench of this Court in the case of Shanthakumari v. V.N. Sathyanarayana (RFA 567/2007 disposed of on 2.12.2013) has held that mere proving of document as agreement of sale is insufficient. It is specifically held that the Court must unequivocally state and give a finding that the said document, though proved, is an out and out agreement. Admittedly, extent of land intended to be sold, according to the respondent-plaintiff, by the defendant is 3.35 acres and total agreed consideration is Rs. 45,000/-. If the value of the land per acre is taken into consideration, it would be below Rs. 15,000/- per acres Defendant has produced two certified copies of sale deed relating to the land in the vicinity of the schedule property. Admittedly, schedule property bearing Sy. No. 457/A of Halavagulu Village, Harapanahalli.

Ex. D-1 is the certified copy of the registered sale deed dated 25.4.1996 relating to sale of 1.25 acres of land in Sy. No. 490 for a sum of Rs. 27,000/-. Another sale deed marked as Ex. D-2 speaks about the sale of 0.66 acres in Sy. No. 466B and 34 cents of land in Sy. No. 457 of the same village is sold for a sum of Rs. 17,000/- on 16.6.1995, long prior to the execution of the sale deed. Inadequacy of consideration will not normally be a ground to reject equitable relief of specific performance but that can be taken as an added ground provided other facts are supporting the case of the defendant to oppose the suit filed for relief of specific performance. In Ex. P-1, time of 3 years is mentioned to pay balance of Rs. 15,000/- to the defendant in order to obtain regular sale deed.

What is argued before this Court is that before expiry of 3 years, plaintiff got issued a notice to the defendant calling upon him to execute the regular sale deed by receiving balance sale consideration. Just because 3 years time is mentioned in Ex. P-1 it would not enable the plaintiff to contend that his suit is free from laches. Though, suit filed in time is in terms of Part-I of Article 54 of Limitation Act, the suit definitely suffers from laches in the sense that the plaintiff did not approach the Court within a reasonable time. What exactly was the obstacle to the plaintiff to pay the balance of Rs. 15,000/- when he obtained a registered agreement of sale, is not forthcoming. What was excepted of the defendant to do in the matter of executing regular sale deed so as to give long time of 3 year for payment of Rs. 15,000/- only is not forthcoming.

In this view of the matter, it can certainly be said that plaintiff did not approach this Court within the reasonable time more particularly to seek equitable relief of specific performance.

What is argued before this Court by the learned counsel for the appellant is that readiness and willingness will have to be read as mandated under Section 16(c) of Specific Relief Act. Mere issuing of notice just prior to expiry of 3 years and filing of suit that the limitation period was expired cannot be considered as favourable circumstances.

Readiness means financial capacity of the person and willingness means eagerness to have the sale deed executed as early as possible. If plaintiff had kept Rs. 15,000/- with him, he could not have kept quiet for 3 years and he would have definitely approached the defendant calling upon him to execute a regular sale deed by receiving balance sale consideration.

What is argued by the learned counsel for the plaintiff/respondent is that defendant utterly has failed to prove that the suit relates to financial assistances availed by him from the son of plaintiff who is a Mandi Merchant at Davanagere and therefore, this Court cannot interfere with the concurrent findings of those issues. Whatever may be the nature of substantial questions of law framed by this, Court and ultimately it boils down the defence taken up by the defendant that he had availed Rs. 30,000/- from the family of the plaintiff. Though plaintiff has feigned ignorance about the suit filed by his son for recovery of Rs. 30,000/-, he has not placed any evidence to that effect. Mere feigning ignorance to the suggestion put on behalf of the defendant would come to the rescue of defendant.

As rightly pointed by the learned counsel for the appellant, property in question is an agricultural property of the defendant. PW-1 has admitted that property in question is the ancestral property of the defendant and that defendant had 3 sons. Having known that the property is an agricultural property and that defendant has 3 sons, plaintiff should not have ventured to purchase the entire property of 3.35 acres without his sons joining him in executing the agreement of sale.

In a suit filed for relief of specific performance, Court is expected to apply the provisions of Section 20(2) of Specific Relief Act as the equities will have to be worked out by the Court. Admittedly, relief of specific performance is discretionary relief and Courts should be cautious to exercise such discretion in favour of the party relying upon execution of the sale agreement.

Trial Court as well as the First Appellate Court have been persuaded to accept to Ex. P-1 as an out and out agreement of sale on the ground that it is a registered agreement of sale. Registration of document will not further support the case of the plaintiff who has relied upon Ex. P-1. Even otherwise plaintiff has not produced certified copy of the mutation or copy of the ROR, Gheni, Patrika as per mandate provisions of Land Revenue Act. Trial Court as well as First Appellate Court have committed a serious error in not noticing the mandatory provisions of Section 132(3) Karnataka Law Revenue Act 1964. The Trial Court should have given some time to the plaintiff to produce the certified copy of the mutation or certified copy of RTC. Inspite of giving time and if the same was not produced, plaint should have been returned for presentation after the compliance of the same. Even otherwise, this is very much important to know as to the exact title that the defendant had in respect of land bearing 457/A.

What is agued before this Court by the learned counsel for the plaintiff is that normal rule to be adopted in a case of specific performance is to grant relief of specific performance and rejection is exception to the same. To this effect, he has relied upon the decision of Vishnu''s case stated supra. In the said case, purchaser had paid the entire sale consideration to the seller and was expected to obtain registered sale deed. As per the facts of the case, plaintiff had been put in possession of the property agreed to be sold in his favour and he had spent huge and had also got the land converted form agricultural land to non-agricultural land and had been even earned our few sites. Hence the said decision is of no assistance being distinguishable on facts.

In the light of the same, the approach adopted by the Trial Court as well as First Appellate is incorrect. Judgments of both the Courts suffers from illegality and perversity.

In this view of the matter, decision referred supra is quite distinct and distinguishable viz-a-viz the facts of the present case and hence it is not applicable to the facts of the present case. The approach is not consistent with the mandatory provisions of law relating to grant relief of specific performance which is an equitable relief and thus substantial questions of law will have to be answered in the negative.

In the light of the same, appeal will have to be allowed by dismissing the suit filed for relief of specific performance consequently and the defendant, who has taken Rs. 30,000/- is bound to return the same with interest from the date of filing of the suit till realization.

ORDER

Appeal is allowed. Judgment of the First Appellate Court is set aside and judgment of the Trial Court is modified directing the defendant/appellant to return Rs. 30,000/- (Rupees Thirty Thousand only) to the plaintiff with reasonable interest at 12% p.a. from the date of filing of the suit till realization with proportionate costs of the Trial and First Appellate Court.

This appeal is allowed with costs payable to the appellant by the plaintiff-respondent.