1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 28 th DAY OF FEBRUARY, 2013 BEFORE THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA RFA.1135/05 c/w RFA.1136/05 (S P) IN RFA.1135/2005: BETWEEN: SIDDAPPA, S/O. RAYAPPA SHINGANNAWAR, SINCE DECEASED BY LRS: 1A) SMT.DODDAWWA, W/O SIDDAPPA SHINGANNAWAR, MAJOR, OCC: HOUSEHOLD. R/O GUDAKATTI (SALAHALLI), TQ: RAMADURG, DIST: BELGAUM. 1B) SRI.RAYAPPA, S/O SIDDAPPA SHINGANNAWAR, AGE: 44 YEARS, OCC:AGRICULTURE. R/O GUDAKATTI (SALAHALLI), TQ: RAMADURG, DIST: BELGAUM. 1C) PANDAPPA, S/O SIDDAPPA SHINGANNAWAR, AGE: 40 YEARS, OCC:AGRICULTURE. R/O GUDAKATTI (SALAHALLI), TQ: RAMADURG, DIST: BELGAUM. 2 1D) HANAMANTHA, S/O SIDDAPPA SHINGANNAWAR, AGE:38 YEARS, OCC:AGRICULTURE. R/O GUDAKATTI (SALAHALLI), TQ: RAMADURG, DIST: BELGAUM. 1E) SMT.SHANTAVVA, W/O NAGAPPA WADENAVVAR, AGE:37 YEARS, OCC:HOUSEHOLD. R/O CHUNCHANUR, DIST: BELGAUM. 1F) SATYAVVA, D/O SIDDAPPA SHINGANNAWAR, AGE:35 YEARS, OCC:HOUSEHOLD. R/O GUDAKATTI (SALAHALLI) RQ: RAMADURG, DIST: BELGAUM. (AMENDMENT CARRIED OUT AS PER THE ORDER DATED 30/1/2012) ... APPELLANTS (By Sri JAGADISH PATIL, ADV.) AND: 1. MUDAKAPPA GURUBASAPPA MASKI, MAJOR OCC: AGRICULTURE, R/O GUDAKATTI (SALAHALLI) TQ RAMADURG DIST BELGAUM-591123. ... RESPONDENT (By Sri A S PATIL, ADV.) THIS RFA IS FILED U/S 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 21.6.05 3 PASSED IN O.S.NO.152/96 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), SAUNDATTI, AND ETC. IN RFA.1136/05: BETWEEN: HANAMAPPA CHANDRAPPA TIPPANNAWAR, AGED: ABOUT 55 YEARS OCC: AGRICULTURE. R/O KULLUR TALUK RAMADURG, DIST BELGAUM. ... APPELLANT (By Sri JAGADISH PATIL, ADV. ) AND: MUDAKAPPA GURUBASAPPA MASKI, AGE: MAJOR OCC: AGRICULTURE. R/O GUDAKATTI (SALAHALLI), TQ RAMADURG, DIST BELGAUM-591 123. ... RESPONDENT (By Sri A S PATIL, ADV.) THIS RFA IS FILED U/S 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 21.6.05 PASSED IN O.S.NO.145/96 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), SAUNDATTI, AND ETC. THESE RFAs COMING ON FOR HEARING THIS DAY, COURT DELIVERED THE FOLLOWING: 4 JUDGMENT The appellants are the plaintiffs. They have assailed the judgment and decree passed in O.S.No.152/96 and O.S.No.145/96, dated 21.6.2005 by the Civil Judge (Sr. Division) Saundatti. 2. For the sake of convenience the status of the parties shall be in terms of their status before the Trial Court. 3. It is the case of the respective plaintiffs in the two suits that the defendant had executed agreements to sell two distinct portions of R.S.No.187 totally measuring 22 acres 25 guntas on 12.8.1990 to the respective plaintiffs for a valuable consideration of Rs.1,19,306/- in respect of each of the two portions. The Eastern portion of the said survey number is the subject matter of O.S.No.152/96 and the Western portion of the said survey number is the subject matter of O.S.No.145/1996. It is the case of the plaintiffs that the defendant was in need of 5 funds and therefore he agreed to sell the suit schedule lands. That on the date of agreement of sale, namely, 12.8.1990, a sum of Rs.60,000/- was paid as part consideration by each of the plaintiffs to the defendant. That the defendant had agreed to get the land converted into ‘Raitawa land’ and receive the balance consideration of Rs.59,306/- from each of the plaintiffs at the time of registration before the Sub-Registrar, Ramdurga. 4. That the defendant did not keep up his promise as per the agreements to sell despite the plaintiffs’ requesting him to execute the sale deeds. That the plaintiffs have at all times been ready and willing to perform their part of the agreement by paying the balance sale consideration. But the defendant has been evading to perform his part of contract by giving vague excuses. The plaintiffs therefore, got issued their respective legal notices dated 28.7.1993 to the defendant calling upon him to perform his part of the contract and execute registered sale deeds. But there was no reply to the said notices. 6 Under the circumstances, the plaintiffs filed their respective suits seeking the relief of specific performance of their respective agreements. 5. After receipt of suit summons, the defendant appeared and filed his written statement in each of the suits, denying the execution of the agreement of sale deeds and stating that the defendant has not received any earnest money. That the property bearing RS.No.187 measuring 22 acres 26 guntas is a fertile agricultural land. It is the ancestral joint family property and that there was no legal necessity to alienate the schedule lands. The agreements dated 12.8.1990 are bogus and without consideration. That no agreement to sell the lands which are not converted into ‘Raitawa land’ is permissible. The defendant therefore sought for dismissal of the suits. 6. Based on the rival pleadings, the Trial Court framed the following issues in both the suits: 7 Issues in O.S.no.152/1996: 1. Whether the plaintiff proves that the defendant agreed to sell the suit land for Rs.1,19,306/- on 12.8.90 and executed an agreement of sale as alleged? 2. Whether the plaintiff proves that he paid advance amount of Rs.60,000/- to defendant on 12.8.1990 under agreement of sale as alleged? 3. Whether the plaintiff prove that he was/is ever ready and willing to perform his part of the contract as alleged? 4. Whether the suit of the plaintiff is premature as contended in para No.7 of the written statement? 5. Is plaintiff entitled for specific performance of Agreement of Sale as sought for? 6. Is plaintiff in the alternative entitled for refund of earnest money plus damages of Rs.60,000/- as sought for? 7. To what order or decree? 8 In O.S.No.145/1996: 1. Whether plaintiff proves that the defendant has agreed to sell the suit land for Rs.1,19,306 and received a sum of Rs.60,000/- as earnest money towards sale consideration by executing agreement of sale dated 12.8.1990? 2. Whether plaintiff further proves that he is all along ready and willing to perform his part of contract to the said agreement of sale? 3. Whether defendant proves that the suit of the plaintiff is not maintainable without converting the suit land into Raitawa land as contended in para-13 of the WS? a. Whether plaintiff is entitled for Specific Performance of Contract under the said agreement? b. Whether in the alternative the plaintiff is entitled for refund of earnest money of Rs.60,000/- with interest at 18% p.a. and damages of Rs.10,000/- from the defendant? 4. What Decree or Order? 9 7. In support of his case, the plaintiff in O.S.152/1996 examined two witnesses and produced five documents which were marked as Ex.P.1 to Ex.P.5. While the defendant examined one witness. In O.S.145/1996 the plaintiff examined two witnesses and produced ten documents which were marked as Ex.P.1 P.10. No documents were marked on behalf of the defendant. 8. On the basis of the said evidence, the Trial Court answered issue Nos.1 and 2 in the affirmative, issue Nos.3 and 6 partly in the affirmative and issue Nos.4 and 5 in the negative in O.S.No.152/1996. As far as O.S.No.145/1996 is concerned, issue No.1 was answered in the affirmative. Issue Nos.2 and 3(b) were answered partly in the affirmative. Issue No.3(a) in the negative. Issue No.7 in O.S.152/96 and Issue NO.4 in O.S.145/96 were answered in terms of their final order, stating that the suits filed by the plaintiffs for specific performance are dismissed and in the alternative both the 10 plaintiffs are entitled to receive back their earnest money of Rs.60,000/- each from the defendant. 9. Being aggrieved by the said judgment and decree the plaintiffs have filed these appeals. 10. I have heard the learned Counsel for the appellants and the learned Counsel for the respondent and perused the material on record as well as the lower court records. 11. It is contended on behalf of the appellants that the Trial Court has rightly answered issue Nos.1 and 2 in the affirmative in O.S.152/96. But it was not right in answering issue No.3 partly in the affirmative and issue No.4 in the negative by holding that the suit filed by the plaintiff is premature in terms of what is stated in para-7 of the written statement. Similarly, in O.S.145/96 the Trial Court was right in answering issue No.1 in the affirmative, but was not right in answering issue No.2 partly in the affirmative and negativing issue No.3 by 11 holding that the suit was not maintainable and thereby declining to grant the relief of specific performance in both the suits and by directing the plaintiffs to receive their advance consideration from the defendant. 12. Drawing my attention to the factual Matrix of the case, he contended that the plaintiffs have purchased the two respective portions of R.S.No.187, totally measuring 22 acres 05 guntas. That the sale was on account of legal necessity as the defendant was in need of funds.