Full Judgment Text
- 1 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 6 DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1919 OF 2016 (SP)
BETWEEN:
1. MOHAMMED YUSUFF
S/O. ABDUL KAREEM SAB,
AGED ABOUT 45 YEARS,
2. MOHAMMED SAMIULLA
S/O. ABDUL KAREEM SAB,
AGED ABOUT 42 YEARS,
Digitally signed
by KIRAN
KUMAR R
Location: HIGH
COURT OF
KARNATAKA
3. MOHAMMED MUBARAK
S/O. ABDUL KAREEM SAB,
AGED ABOUT 38 YEARS,
4. MUNNA
S/O. ABDUL KAREEM SAB,
AGED ABOUT 48 YEARS,
R/AT NEAR AUTO WORKS,
- 2 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
D. RAJAGOPALA ROAD,
NAGASHETTIHALLI,
BENGALURU-560 094.
…APPELLANTS
(BY SRI. KEMPANNA., ADV.)
AND:
1. T. RANGASWAMY
S/O. LATE PARVATHAMMA,
AGED ABOUT 65 YEARS,
2. T. S. NARAYANAIAH
S/O. LATE PARVATHAMMA,
AGED ABOUT 62 YEARS,
3.
CHANDRASHEKARA
S/O. LATE PARVATHAMMA,
AGED ABOUT 59 YEARS,
4. BHOJAIAH
S/O. LATE PARVATHAMMA,
AGED ABOUT 56 YEARS,
5. T. S. ARUN KUMAR
S/O. LATE PARVATHAMMA,
AGED ABOUT 53 YEARS,
- 3 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
ALL ARE RESIDING AT
BANADAPALYA,
HAMLET OF TAVAREKERE,
HEBBUR HOBLI,
TUMKUR TALUK,
TUMKUR DISTRICT572113
…RESPONDENTS
(BY SRI. J.ARAVIND BABU, ADV. FOR R1 TO R5)
RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 17.8.2016 PASSED IN
R.A.NO.247/2006 ON THE FILE OF VI ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT TUMAKURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 20.4.2002 PASSED IN O.S.NO.843/1993 ON THE FILE
OF II ADDITIONAL CIVIL JUDGE (JR.DN.) AND JUDICIAL
MAGISTRATE FIRST CLASS, TUMKUR, AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
- 4 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed by the appellants
challenging the judgment and decree dated 17.08.2016
passed in R.A.No.247/2006 by the learned VI Additional
District and Sessions Judge, Tumakuru, and the
judgement and decree dated 20.04.2002 passed in
O.S.No.843/1993 by the learned II Additional Civil Judge
(Jr. Dvn.) and JMFC, Tumkuru.
2. For convenience, the parties are referred to,
as per their ranking before the trial Court. The
appellants were the defendants, and the respondents
were the plaintiffs.
3. Brief facts, leading rise to filing of this appeal
are as follows:
The plaintiffs filed a suit against the defendants for a
specific performance of the contract. It is the case of the
- 5 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
plaintiffs that, Kareem Sab and his wife Shahajad were the
joint owners of the suit schedule properties and they
agreed to sell the suit schedule properties to the plaintiffs’
mother, for a consideration of Rs.10,000/- and
accordingly, the defendants have received a sum of
Rs.8,000/- towards the earnest money and put the mother
of the plaintiff in possession of the suit schedule properties
by executing the agreement of sale dated 14.02.1986. It
is contended that the balance sale consideration amount to
be paid at the time of the registration of the sale deed and
after removal of the obstruction of Fragmentation Act. The
mother of the plaintiffs was in possession and enjoyment
of the suit schedule property till her death from the date of
sale agreement. After her demise, the plaintiffs are in
peaceful possession and enjoyment of the suit schedule
property. It is contended that the plaintiffs were/are ready
and willing to perform their part of a contract however
Kareem Sab and his wife did not perform their part of
contract. The plaintiffs issued a legal notice on 15.09.1993
- 6 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
calling upon the defendants to receive the balance sale
consideration amount and to execute a registered sale
deed. The defendants replied to the legal notice denying
the execution of the sale agreement and receipt of
Rs.8,000/- for the advance sale consideration amount.
Thus, a cause of action arose for the plaintiffs to file a suit
for specific performance of a contract. Accordingly, prays
to decree the suit.
3.1. Defendant No.2 filed a written statement, and
other defendants filed a memo adopting the written
statement filed by defendant No.2.
3.2. Defendant No.2 filed a written statement
denying the averments made in the plaint and it is also
denied that Kareem Sab and his wife had agreed to sell
the suit schedule properties in favour of the plaintiff’s
mother on 14.02.1986 by executing sale agreement, and
also denied that they have received the earnest money of
- 7 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
Rs.8,000/-, and also denied regarding the delivery of
possession in favour of the plaintiff’s mother. It is
contended that the plaintiffs have created the sale
agreement and the suit filed by the plaintiffs is barred by
limitation. Hence, it is contended that the plaintiffs have
locus standi
no to file a suit for specific performance of
contract. Accordingly, prays to dismiss the suit.
3.3. The Trial Court, based on the above said
pleadings, framed the relevant issues.
3.4. The plaintiffs, to substantiate their case,
plaintiff No.1 was examined as PW1, examined three
witnesses as PW.2 to PW.4, and marked 15 documents as
Exs.P1 to P15. In rebuttal, Munna was examined as DW.1,
defendant No.3 was examined as DW.2, examined one
witness as DW.3 and marked 8 documents as Exs.D1 to
D8. The trial Court, after recording the evidence, hearing
both sides, and after assessing the verbal and
- 8 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
documentary evidence, decreed the suit of the plaintiffs
vide judgment dated 20.04.2002 and directed defendant
Nos.2 to 6 to execute the registered sale deed in favour of
the plaintiffs regarding the suit schedule properties after
receiving the balance sale consideration amount of
Rs.2,000/- within 3 months from the date of passing the
judgment.
3.5. Defendant Nos.3, 5, 6 and Munna, aggrieved by
the judgment and decree passed in O.S.No.843/1993,
preferred an appeal in R.A.No. 247/2006 on the file of the
VI Additional District and Sessions Judge, Tumakuru.
3.6. The First Appellate Court, after re-appreciating
the entire evidence on record, dismissed the appeal vide
judgment and decree dated 17.08.2016.
3.7. Defendant No.3, 5, 6 and Munna, aggrieved by
the impugned judgments, filed this Regular Second
Appeal.
- 9 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
4. Heard the arguments of the learned counsel for
defendant Nos.3, 5, 6 and Munna.
5. Learned counsel for the defendants submits
that, the mother of the plaintiffs created the alleged
agreement of sale. He submits that Kareem Sab, and his
wife never agreed to sell the suit schedule properties in
favour of plaintiff's mother, and they have not received
any sale consideration amount as alleged in the agreement
of sale. He also submits that the suit filed by the plaintiffs
is not maintainable for non-joinder of necessary parties.
The plaintiffs have not arrayed the wife of the deceased
Kareem Sab as party in the suit. He submits that the
deceased Kareem Sab died, however the plaintiffs have
not brought the legal representatives of the deceased
Kareem Sab. Hence, the suit filed by the plaintiffs is
abated. The said aspect was not considered by the Courts
below, and committed an error in passing the impugned
- 10 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
judgments. Hence, on these grounds, he pray to allow the
appeal.
6. Perused the records and considered the
submissions of the learned counsel for the parties.
7. It is an undisputed fact that Kareem Sab and
his wife were the owners of the suit schedule properties.
The plaintiffs, to prove that they have agreed to sell the
suit schedule property, plaintiff No.1 was examined as
PW.1 and he reiterated the plaint averments in the
examination-in-chief, and to prove that Kareem Sab and
his wife had executed the sale agreement, produced a
copy of the original agreement of sale marked as Ex.P1,
Exs.P2 to P9 are the RTC extracts, Ex.P10 is the mutation
register extract, Ex.P11 is the copy of legal notice, which
discloses that the plaintiffs are/were ready and willing to
perform their part of a contract, wherein they issued a
legal notice calling upon the defendants to receive the
- 11 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
balance consideration amount and execute a registered
sale deed. Exs.P12 to P14 are the postal
acknowledgements. The defendants replied to the legal
notice marked as Ex.P15. The plaintiff also examined the
witnesses as PW2 to PW4, who are the attesting witnesses
and scribe to Ex.P1 respectively. They have deposed that
Kareem Sab and his wife agreed to sell the suit schedule
properties for a sale consideration of Rs.10,000/- and
accordingly, they have received Rs.8,000/- towards the
advance sale consideration amount, and it was agreed that
the balance sale consideration amount to be paid at the
time of registration of the sale deed, and the sale deed to
be registered after the repealing of Fragmentation Act.
8. In rebuttal, Munna was examined as DW.1, who
is the son of defendant No.1, and he reiterated the written
statement averments filed by defendant No.2. To prove
the defence of the defendants, they have produced the
documents marked as Exs.D1 to D8. Defendant No.3 was
- 12 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
examined as DW.2, who has deposed in the same line of
DW.1 and they also examined Abdul Karim as DW.3. The
witnesses have deposed that the Kareem sab and his wife
never agreed to sell the suit schedule properties in favour
of the plaintiff's mother.
9. From the perusal of the entire evidence on
record, it is evident that the plaintiffs have produced the
original agreement of sale executed by Kareem Sab and
his wife in favour of plaintiff’s mother. The summons was
issued to defendant No.1, but he did not participate in the
suit, and he has not filed any written statement denying
the execution of sale agreement in favour of the mother of
plaintiffs. Defendant No.3 was examined as DW.2, who
has deposed that he has no documents to establish his
possession over the suit properties.
10. The First Appellate Court has extracted the
portion of the deposition of DW.1 in para 18 of the
- 13 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
judgment of the first appellate court. From the perusal of
the cross-examination of DW.1, it is clear that DW.1 has
no knowledge about the transaction entered between the
plaintiff’s mother, his father and mother. If really Abdul
Kareem Sab had not executed the sale agreement, the
defendants would have taken any steps to refer the
signature appearing on Ex.P1 to the handwriting expert.
However, the defendants have not taken such steps. The
plaintiffs have produced the agreement of sale at Ex.P1
and also examined the attesting witnesses have proved
that defendant No.1 and his wife have executed the sale
agreement in favour of the plaintiff’s mother and she was
put in possession of the suit schedule properties. The
plaintiffs, to prove that they are/were ready and willing to
perform their part of contract, have issued a legal notice
marked as Ex.P11, by producing Ex.P11. A perusal of the
same disclosed that the plaintiffs are/were ready and
willing to perform their part of a contract. On the other
hand, the defendants have failed to establish that the
- 14 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
plaintiffs have created the sale agreement and they have
not received the advance consideration amount of
Rs.8,000/- from the plaintiff’s mother. Both the Courts
below have concurrently recorded the finding of facts
against the defendants. Both the courts below have rightly
appreciated and re-appreciated the entire evidence on
record, and have rightly passed the impugned judgments.
Hence, I do not find any error in the impugned judgments,
and any substantial question of law that arises for
consideration in this appeal.
11. Accordingly, I proceed to pass the following:
ORDER
dismissed
i. The Regular Second Appeal is .
ii. The judgments and decrees passed by the
Courts below are hereby confirmed.
iii. No order as to the costs
- 15 -
NC: 2026:KHC:774
RSA No. 1919 of 2016
HC-KAR
iv. Pending applications, if any, stand disposed
off accordingly.
Learned counsel for the plaintiffs submits that the
plaintiffs are ready to pay additional amount of
Rs.4,00,000/-.
The submission is placed on record.
The plaintiffs are directed to deposit the additional
amount of Rs.4,00,000/- before the trial Court within three
weeks from the date of the receipt of a copy of this
judgement.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SSB