IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 9 T H DAY OF JUNE, 2020

BEFORE

THE HON’BLE MR.JUSTICE N.S. SANJAY GOWDA

R.S.A.No.6310/2012 (Sp. Perfmnc.)

BETWEEN

BALAPPA S/O KALLAPPA , AGE: 57 YEARS, OCC: AGRICULTURE, R/O.LOLASUR, TQ: , DIST: ...... APPELLANT (BY SRI R H ANGADI, ADV.)

AND

1. RAMAPPA S/O BALAPPA BENCHINMARADI, AGE: 52 YEARS, OCC: AGRICULTURE, RESIDENT OF LALSUR, TQ: GOKAK, DIST: BEGAUM.

2. CHINNAPPA S/O BALAPPA BENCHINMARADI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O. LALSUR, TQ: GOKAK, DIST: BEGAUM.

3. VITTAL S/O SHIDDLINGAPPA METI, SINCE DECEASED BY HIS LRS 3(A) GOURAVVA W/O. VITHAL METI, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O. LOLASUR VILLAGE, TQ: GOKAK, DIST: BELGAUM.

3(B) PUNDALIK S/O. VITHAL METI, AGE: 30 YEARS, OCC: AGRICULTURE, R/O. LOLASUR VILLAGE, TQ: GOKAK, 2

DIST: BELGAUM.

3(C) LAXMI D/O. VITHAL METI, AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O. LOLASUR VILLAGE, TQ: GOKAK, DIST: BELGAUM.

3(D) SIDDAPPA S/O. VITHAL METI, AGE: 21 YEARS, OCC: AGRICULTURE, R/O. LOLASUR VILLAGE, TQ: GOKAK, DIST: BELGAUM.

3(E) KUMARI DEEPA D/O. VITHAL METI, AGE: 19 YEARS, OCC: NIL, R/O. LOLASUR VILLAGE, TQ: GOKAK, DIST: BELGAUM.

3(F) KUMAR BEERAPPA S/O. VITHAL METI, AGE: 17 YEARS, OCC: NIL, R/O. LOLASUR VILLAGE, TQ: GOKAK, DIST: BELGAUM.

RESPONDENT NO.3(A) IS THE MOTHER OF THE RESPONDENT NO.3(F) SINCE HE IS MINOR. HENCE, HE IS REP. BY NATURAL MOTHER ..... RESPONDENTS

(BY SRI B. SHARANABASAWA, ADV. FOR R1 & R2 SRI SANJAY S. , ADV. FOR R-3A TO R-3F)

THIS APPEAL IS FILED U/S. 100 R/O. O.42 RULE 2 OF CPC AGAINST THE JUDGEMENT & DECREE DTD:12-09-2012 PASSED IN R.A.NO.355/2011 ON THE FILE OF THE PRESIDING OFFICER AND ADHOC DISTRICT JUDGE, , SITTING AT GOKAK, DISMISSING THE APPEAL BY CONFIRMING THE JUDGMENT AND DECREE DATED 31-10-2011 PASSED IN OS.NO.257/2005 ON THE FILE OF THE I- ADDL. SENIOR CIVIL JUDGE, GOKAK, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF AN AGREEMENT OF SALE.

3

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

The plaintiff is in second appeal.

2. The plaintiff filed a suit seeking to enforce a registered agreement of sale dated 05.08.2004, whereby the first and second defendants had agreed to sell 36 guntas of land in his favour for an agreed sale consideration of Rs.1,10,000/-, out of which, he had paid a sum of

Rs.1,00,000/- as earnest money deposit.

3. It was his case that the agreement provided for three years time to conclude the sale transaction and to obtain the sale deed. However, according to him, the defendants No.1 and 2, by colluding with the third defendant had entered into a compromise decree in

O.S.No.135/2005, whereby, it had been agreed by the defendants No.1 and 2 that a sale deed be executed in favour of defendant No.3 on the basis of an agreement of sale dated 13.10.1999 said to have been executed by defendants No.1 and 2 in favour of defendant No.3 for an 4

agreed sale consideration of Rs.1,40,000/-, out of which, a sum of Rs.80,000/- has been paid.

4. The Trial Court on appreciation of the evidence came to the conclusion that the registered agreement of sale executed in favour of the first defendant had been proved.

5. However, the Trial Court exercised its discretion under Section 20 of the Specific Performance Act and came to the conclusion that it was not a fit case to grant the relief of specific performance in favour of the plaintiff, since, the Trial Court had found that defendant No.3 was the holder of an earlier agreement of sale dated

13.10.1999.

6. The Trial Court accordingly refused to grant the relief of specific performance. However, the Trial Court granted alternative relief sought by the plaintiff for refund of Rs.1,00,000/- along with interest at 12% per annum.

7. The plaintiff, being aggrieved by the refusal of the decree for specific performance, preferred an appeal. 5

8. The Appellate Court on re-appreciation of the evidence, concurred with the discretion exercised by the

Trial Court and proceeded to dismiss the appeal.

9. It is against this exercise of discretion by the

Trial Court as well as by the appellate Court, this second appeal is preferred.

10. Learned counsel for the appellant, basically

contended, that the Trial Court as well as the Appellate

Court had seriously erred in refusing the decree for specific

performance when the earlier agreement of sale dated

13.10.1999 Ex.D-4 had not been proved. According to him,

as per Ex.P-3, the defendants No.1 and 2 had executed

another agreement of sale dated 08.06.2001 whereby the

defendants No.1 and 2 had agreed to sell the suit property

in favour of the third defendant for a sale consideration of

Rs.95,000/- out of which a sum of Rs.65,000/- had been

paid.

11. The contention of the learned counsel was that

this agreement of sale was handed over to his client by

defendants No.1 and 2 after he contacted them to enquire 6

as to whether the agreement of sale had been entered into by them and which was referred to by his witness PW-2 during the course of cross-examination. According to the learned counsel, since the agreement of sale dated

08.06.2001 Ex.P-3 did not contain any reference to the agreement of sale dated 13.10.1999 (Ex.D-4) and since the third defendant in his suit for specific performance did not mention anything about this agreement of sale dated

08.06.2001, it will have to be held that the decree obtained by the third defendant was a collusive decree and ought to be ignored. He further stated that since Ex.D-2 was executed in favour of the deceased third defendant, the right of the third defendant could not have been said to exist so as to entitle the Courts to exercise discretion under

Section 20 of the Specific Performance Act.

12. I have considered the submissions of the learned

counsel for the appellant and also perused the entire

material on record.

13. Both the Courts while holding that agreement of

sale has been proved have come to the conclusion that they

were inclined to exercise the power vested in them under 7

Section 20 of the Specific Performance Act to refuse the relief of specific performance. The reason given by the

Trial Court as well as the Appellate Court to invoke their discretion under Section 20 of the Act is that the third defendant had an agreement of sale dated 13.10.1999 in his favour and if a decree for specific performance were to be granted in favour of the plaintiff, he would be seriously prejudiced.

14. It is to be noticed here that the plaintiff himself

sought for amendment of his plaint, which was, in fact,

refused by the Trial Court. A perusal of the said application

would go to show that plaintiff himself stated that in the

year 2004, the defendants No.1 and 2 had approached him

and stated that they had taken an advance of Rs.1,00,000/-

from the plaintiff for the execution of Ex.P-1, and they had

paid the same amount of Rs.1,00,000/- to defendant No.3

and they had secured back the agreement of sale dated

08.06.2001. As far as the earlier agreement dated

13.10.1999 was concerned, they stated that the third

defendant had informed them that it was torn up and

therefore it could not be returned. 8

15. In the light of this plea of the plaintiff that

defendants No.1 and 2, (who had chosen to remain ex parte) had themselves admitted to the plaintiff that they had entered into an agreement of sale dated 13.10.1999 and 08.06.2001, it is inevitable that an inference will have to be drawn that the third defendant had indeed secured a right over the property under those agreements of sale dated 13.10.1999 and 08.06.2001 (Exs.D-1 and D-2). In my view, the exercise of discretion by the Trial Court as affirmed by the Appellate Court regarding the existence of right in favour of the third defendant on the basis of the earlier agreement of sale, in order to refuse a decree of specific performance in favour of the plaintiff, cannot be found fault with.

16. I find no question of law, much less, a substantial question of law arising for consideration in this appeal and the same is accordingly dismissed.

Sd/- JUDGE

Naa