SRI.SANTOSH S/O SHIVANAND SALAWADAGI @ CHALAWADI vs SMT.KASHIBAI W/O BHIMGOD SUNKOND AND ORS
- Court
- Karnataka High Court
- 1 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
ST
DATED THIS THE 1 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
REGULAR SECOND APPEAL NO. 200020 OF 2015 (SP)
BETWEEN:
SRI. SANTOSH
S/O SHIVANAND SALAWADAGI @ CHALAWADI,
AGED 35 YEARS, OCC: AGRICULTURE,
R/O. AGARKHED, INDI TALUK,
BIJAPUR DISTRICT. -586111.
…APPELLANT
(BY SRI. M. V. V. RAMANA AND
SRI S. B. PATIL, ADVOCATES)
AND:
1. SMT. KASHIBAI W/O BHIMGOND
SUNKOND @ SANAKANNAVAR,
AGED 60 YEARS, OCC: H.H.WORK,
BABALESWAR, BIJAPUR, TQ. AND DIST.-586113.
2. SRI. SHIVAPPA S/O BHIMGOND SANKOND
@ SANAKANNAVAR,
AGED 33 YEARS, OCC: AGRICULTURE,
BABALESWAR, BIJAPUR TQ & DIST- 586 113.
3. SRI. MUTTAPPA S/O BHIMGOND SANKOND
@ SANAKANNAVAR,
AGED 31 YEARS, OCC: AGRICULTURE,
BABALESWAR,
Digitally signed by
VARSHA N
RASALKAR
Location: HIGH
COURT OF
KARNATAKA
- 2 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
BIJAPUR TQ & DIST- 586 113
…RESPONDENTS
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. GANESH S. KALBURGI, ADVOCATE FOR R1 TO R3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO:
(i) CALL FOR RECORDS IN R.A.NO.116
ST
OF 2013 FORM THE HON’BLE 1
ADDL. DISTRICT JUDGE, BIJAPUR,
DATED 23.07.2014 AND IN
O.S.NO.103/2010 FROM HON’BLE I
ADDL. SENIOR CIVIL JUDGE AT
BIJAPUR DATED 12.08.2013.
(ii) SET ASIDE THE JUDGMENT AND
DECREE PASSED IN RA.NO.116 OF
2013 DATED 23.07.2014 PASSED
ST
BY 1 ADDL. DISTRICT JUDGE AT
BIJAPUR.
(iii) ISSUE ANY OTHER ORDER OR
DIRECTION AS THE COURT DEEMS
FIT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
- 3 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
ORAL JUDGMENT
1. This Regular Second Appeal is filed challenging the
judgment and decree passed in R.A. No.116 of 2013
dated 23.07.2014 passed by the First Additional
District Judge, Bijapur (for short, ‘ the First
Appellate Court ’) partly reversing the judgment
and decree dated 12.08.2013 passed in O.S.
No.103/2010 by the learned First Additional Senior
Civil Judge at Bijapur (for short, ‘ the Trial Court’ ).
2. For convenience, the parties are referred to based on
their ranking before the Trial Court: the appellant
was the plaintiff and the respondents were the
defendants.
3. Brief facts leading rise to the filing of this appeal are
as follows:
4. The plaintiff filed a suit for specific performance of a
contract. It is the case of the plaintiff that the
defendant are the absolute owners of the suit
- 4 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
schedule property, and they had agreed to sell the
suit schedule property for a consideration of
Rs.
6,00,000 /- and the plaintiff paid a consideration
amount of Rs.5,80,000/- towards earnest money and
it was agreed that the balance consideration amount
would be paid at the time of execution of the sale
agreement, and the defendants having received an
amount of Rs.5,80,000/- towards the advance sale
consideration amount executed a registered sale
agreement on 04.10.2007.
5. The plaintiff had requested defendant No.1 to
execute a registered sale deed after 15 days in
respect of suit property by receiving remaining
consideration amount of Rs.20,000/-. The defendants
went on postponing same on one or the other
pretext. The plaintiff was and is ever ready and
willing to perform his part of contract.
- 5 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
6. The plaintiff issued a legal notice on 23.09.2010
calling upon the defendants to receive the balance
sale consideration amount and to execute a
registered sale deed. Despite service of notice the
defendant did not come forward to receive the
balance sale consideration amount and to execute a
registered sale deed. Hence, a cause of action arose
for the plaintiff to file a suit for specific performance
of a contract. Accordingly, prays to decree the suit.
7. The defendants filed a written statement denying the
averments made in the plaint. It is denied that the
defendants have agreed to sell the suit schedule
property for a consideration of Rs.6,00,000/-, and
received an amount of Rs.5,80,000/-. It is contended
that the defendants have borrowed a sum of
Rs.1,00,000/- from the plaintiff, and as a security for
the repayment of the loan amount, executed a
nominal registered sale agreement. The plaintiff
failed to establish that he was ready and willing to
- 6 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
perform his part of the contract. It is contended that
the husband of the defendant and the defendant,
having been put under compelling circumstances,
have accepted the conditions imposed by the plaintiff
for advancing a loan of Rs.1,00,000/- to them.
Defendant No.1 being an illiterate lady has affixed
her thumb impression. It is contended that the
plaintiff has played a fraud on defendant No.1 and
got executed a registered sale agreement. It is
contended that the said document is a false and fake
document. Hence, prays to dismiss the suit.
8. Defendant Nos.2 and 3 filed a memo adopting the
written statement filed by defendant No.1.
9. The Trial Court, based on the rival pleadings of the
parties, framed the following issues:
1. Whether plaintiff proves that in
pursuance of sale negotiation
between him and defendants in
respect of suit property he agreed
- 7 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
to purchase the same for
Rs.6,00,000/-?
2. Whether plaintiff further proves that
on 04.10.2007 the defendant-1
executed registered agreement of
sale after receiving earnest money
of Rs.5,80,000/- from him and
agreed t execute the registered sale
deed after receiving remaining
consideration amount of
Rs.20,000/-?
3. Whether plaintiff further proves that
he was/is always ready and willing
to perform his part of contract, but
defendant-1 failed to perform his
part of contract?
4. Whether defendants prove that
plaintiff is doing money-lending
business without holding any
license?
5. Whether defendants further prove
that in the 1s t week of October-
2007 husband of defendant-1 was
badly in need of loan of
Rs.1,00,000/-, then they
- 8 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
approached plaintiff, who agreed to
pay the same with interest @ 5%
p.m., on a condition to execute
nominal deed in respect of house
property as a security of loan
before the Sub-Registrar, Bijapur?
6. Whether defendants further prove
that without knowing the contents
of the document and believing the
words of plaintiff defendant-1 has
simply affixed her thumb on the
document and as such document
dated 04.10.2007 is false and
created agreement of sale?
7. Whether defendants further prove
that son of defendant-1 by name
Rachagond is instigated the plaintiff
to create false document and to file
this false suit to gulp the suit
property?
8. Whether defendants further prove
that suit is not in conformity with
provisions of section-47 and 48 of
CPC r/w. 16(c) of Specific Relief Act
and also barred by limitation?
- 9 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
9. What decree or order?”
10. The plaintiff, to substantiate his case, examined
himself as PW1, examined 2 witnesses as PW2 and
PW3, and marked 17 documents as Exhibits P1 to
P17.
11. In rebuttal, defendant No.1 herself examined as
DW1, examined one witness as DW2, and marked 9
documents as Exhibits D1 to D9.
12. The Trial Court, after recording the evidence, hearing
both sides and after assessing the verbal and
documentary evidence, answered issue Nos.1 to 3 in
affirmative, issue Nos.4 to 8 in Negative, issue No.9
as per the final order; the suit of the plaintiff was
decreed with costs and it was decreed that the
defendants are directed to execute a registered sale
deed in respect of the suit schedule property in
favour of the plaintiff after receiving the remaining
Rs.
consideration amount of 20,000/- at the cost of
- 10 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
the plaintiff within 2 months from the date of the
judgment, and if the defendants fail to execute a
registered sale deed within the stipulated period,
plaintiff is at liberty to get the registered sale deed
executed from the defendants, as per the procedure
prescribed under the Law, vide judgment dated
12.08.2013.
13. The defendants, aggrieved by the judgment and
decree dated 12.08.2013 passed in O.S. No.103 of
2010, preferred an appeal in R.A. No.116 of 2013 on
the file of the learned First Additional District Judge,
Bijapur.
14. The First Appellate Court, after hearing the learned
counsel for the parties, framed the following points
for consideration:
1. Whether the plaintiff discharged the
burden of proof sufficiently about
Ex.P-1 to believe by preponderance
- 11 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
of evidence it is an agreement of
sale against the defendants?
2. When point No.1 is held in negative
and then by admission of DW-1 /
defendant-1 that Ex.P-1 is a
document for security of loan in
receipt of Rs.1,00,000/- and then
whether the plaintiff as an
alternative relief entitled or not for
refund from the point of limitation?
3. What order?”
15. The First Appellate Court, after re-appreciating the
entire evidence on record, answered point No.1 in
negative, point No.2 in Affirmative and point No.3 as
per the final order; the appeal was allowed in part
and the judgment and decree passed by the trial
Court was set aside, and consequently, the suit of
the plaintiff for a specific performance of the contract
and alternative relief was partly allowed. The plaintiff
was held entitled to get a refund of Rs.1,00,000/-
with 6% interest per annum from the date of
- 12 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
execution of the agreement of sale as per Exhibit P1,
till realization. It was however directed that the
defendants shall repay the amount of Rs.1,00,000/-
with interest within a period of two months or else,
the plaintiff is entitled to recover the said amount in
accordance with law, vide judgment dated
23.07.2014.
16. The plaintiff, aggrieved by the judgment and decree
passed in R.A. No.116 of 2013, filed this regular
second appeal.
17. Heard the arguments of Sri.M.V.V.Ramana, learned
counsel for the plaintiff and Sri.Amit Kumar
Deshpande, learned Senior Counsel for the
defendants.
18. Learned counsel for the plaintiff submits that the
plaintiff has proved the execution of the sale
agreement, and that the plaintiff was ready and
willing to perform his part of the contract. On the
- 13 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
other hand, the defendants had failed to perform
their part of contract. The plaintiff got issued a legal
notice demanding the defendants to receive the
balance sale consideration amount, and to execute a
register sale deed. The First Appellate Court has
reversed the judgment of the Trial Court solely on
the ground that the plaintiff has failed to prove the
1
requirements of Section 16© of the Specific Relief
Act, 1963. He submits that the plaintiff made a
request on several occasions to receive the balance
sale consideration amount, and to execute a
1
16. Personal bars to relief.—
Specific performance of a contract cannot be enforced in favour of a
person—(a) x x x
(c) who fails to aver and prove that he has performed or has always been
ready and willing to perform the essential terms of the contract which are to
be performed by him, other than terms the performance of which has been
prevented or waived by the defendant.
Explanation.— For the purposes of clause (c),—
(i) where a contract involves the payment of money, it is not essential for
the plaintiff to actually tender to the defendant or to deposit in court any
money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to
perform, the contract according to its true construction.
- 14 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
registered sale deed. The said aspect was not
properly re-appreciated by the First Appellate Court,
and committed an error in dismissing the suit for
specific performance of contract.
19. To buttress his arguments, he has placed reliance on
the judgments of the Hon'ble Apex Court in the case
of Hemalatha (dead) by LRs. v. Tukaram (dead)
2
by LRs and others , and Shanti Devi (since
deceased) through LRs v. Jagan Devi and
3
others and a decision of this Court in the case of
Smt. Anjinamma and others v. Mohammed
4
Sajjad Sait and another .
20. He submits that the sale agreement is registered and
as such, there is a presumption under the Evidence
Act regarding the execution of sale agreement, and
the said aspect was not properly considered by the
2
Civil Appeal No.6640 of 2010 decided on 22.01.2026:2026 LiveLaw SC 379
3
Civil Appeal No.11795 of 2025 disposed on 12.09.2025
4
RSA No. 808 of 2023 and connected matters disposed of on 14.12.2023
- 15 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
First Appellate Court. Hence, the impugned judgment
passed by the First Appellate Court is arbitrary and
erroneous. Hence, he prays to allow the appeal, set
aside the judgment and decree passed by the First
Appellate Court, and restore the judgment and
decree passed by the Trial Court.
Per contra
21. , learned Senior Counsel appearing for the
defendants submits that the transaction between the
plaintiff and the defendants is a loan transaction, and
it is not a sale transaction. He submits that the
husband of defendant No.1 made a request to the
plaintiff to advance a hand loan of Rs.1,00,000/-,
and he has put a condition that if the defendants
execute a sale agreement, then only he would
advance the amount of Rs.1,00,000/-. Yielding to the
pressure of the plaintiff, the defendants executed a
sale agreement as a security for the repayment of
the said loan amount.
- 16 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
22. He submits that the alleged sale agreement was
executed on 04.10.2007, however, from 04.10.2007
till 23.09.2010, the plaintiff has not made any
attempts to establish that he was/is ready and willing
to perform his part of the contract. He also submits
that the time was the essence of contract. As per the
terms and conditions of the sale agreement, the sale
was to be concluded within one month days from the
date of execution of sale agreement. He submits
that the First Appellate Court was thus justified in
recording a finding that the plaintiff has failed to
prove the requirements of Section 16(c) of the
Specific Relief Act. Accordingly, on these grounds, he
prays to dismiss the appeal.
23. This Court vide order dated 12.10.2020 admitted the
appeal to consider the following substantial questions
of law:
- 17 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
“(i) Whether the First Appellate Court
has erred in not appreciating the
evidence adduced by the plaintiff,
particularly with reference to
Exhibit P1/sale agreement?
(ii) Whether the findings of the First
Appellate Court is perverse in not
considering the evidence placed
by the parties regarding the
appreciation of evidence in a suit
for specific performance?
Reg. Substantial question of Law Nos.1 and 2:
24. Substantial question of law Nos.1 and 2 are
interlinked. Hence, they are taken together for a
common discussion to avoid the repetition of facts.
25. The plaintiff filed a suit for specific performance of
contract alleging that the husband of defendant No.1
is the absolute owner of the suit schedule property
and he agreed to sell the suit schedule property for a
consideration of Rs.6,00,000/- and accordingly, the
plaintiff paid a sum of Rs.5,80,000/- towards the
- 18 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
advance sale consideration amount and it was agreed
that the balance sale consideration amount was to be
paid within 1 month from the date of execution of a
sale agreement.
26. The plaintiff to substantiate his case examined
himself as PW1 and reiterated the plaint averments
in the examination-in-chief, and the plaintiff has
produced the original registered sale agreement
executed by defendant No.1 in favor of the plaintiff.
The sale agreement is marked as Exhibit P1 and the
plaintiff has produced a copy of the RTC extract
pertaining to the suit schedule property.
27. The plaintiff also examined the attesting witness to
Exhibit P1 and the signature of PW2 was marked as
Exhibit P1(a) and the signature of PW3 was marked
as Exhibit P1(b). The signature of PW4 was marked
as Exhibit P1(c).
- 19 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
28. In rebuttal, defendant No.1 was examined as DW-1
and she has deposed that the transaction between
the plaintiff and defendant No.1 was a loan
transaction and not a sale transaction. The husband
of defendant No.1 was in need of money and
husband of defendant No.1 requested the plaintiff to
Rs.
advance a hand-loan of 1,00,000/-. The plaintiff
imposed a condition to execute a sale agreement as
a security for the repayment of the said loan amount.
Defendant No.1 agreed to execute a sale agreement
as a security towards the loan amount. It is
contended that the said sale agreement was
executed on 04.10.2007. The plaintiff has not taken
any steps till 23.09.2010 and to prove their defence,
the defendant has produced the documents marked
as Exhibits D1 to D9.
29. The defendants also examined one Laxman as DW2.
He has deposed that the transaction between the
- 20 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
plaintiff and defendants was a loan transaction and
not a sale transaction.
30. The Trial Court based on the records has held that
the plaintiff has proved that defendant No.1 agreed
to sell the suit schedule property for a consideration
of Rs.6,00,000/- and paid Rs.5,80,000/- towards the
advance sale consideration amount, and the balance
amount was to be paid within 1 month from the date
of execution of sale agreement, and also held that
the plaintiff has proved that he was/is always ready
and willing to perform his part of contract and
consequently, decreed the suit of the plaintiff.
31. However, the First Appellate Court allowed the
appeal filed by the defendants and granted the
alternative relief of refund of amount of
Rs.1,00,000/- on the ground that the plaintiff has
failed to prove that he was ready and willing to
perform his part of contract.
- 21 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
32. From the perusal of the judgment of the First
Appellate Court, it is clear that defendant No.1 has
executed a sale agreement on 04.10.2007 and the
time was the essence of contract i.e., the sale was to
be concluded within 1 month from the date of
execution of sale agreement. The plaintiff has not
produced any material to show that from 03.11.2007
till 22.09.2010, he has made any attempt to
demonstrate that he was/is always ready and willing
to perform his part of contract. As such, there is a
delay of more than 2 years, 11 months.
33. The Hon'ble Apex Court had an occasion to consider
similar set of facts in the case of Pydi Ramana @
5
Ramulu v. Devarasety Manmadhar Rao , wherein
in paragraph Nos.13 and 14, it has been held as
follows:
“ Readiness and Willingness:
5
In Civil Appeal No.434 of 2013 disposed of on 10.07.2024
- 22 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
13. In order to obtain a decree for
specific performance, the plaintiff must
aver and prove that he has performed
his part of the contract and has always
been ready and willing to perform the
terms of the contract which are to be
performed by him. Section 16(c) of the
Specific Relief Act mandates ‘ readiness
and willingness’ of the plaintiff to be
averred and proved and it is a condition
precedent to obtain the relief of specific
performance.
14. There is a distinction between the
terms ‘ readiness’ and ‘ willingness’ .
‘ Readiness’ is the capacity of the
plaintiff to perform the contract which
includes his financial position to pay the
sale consideration. ‘ Willingness’ is the
conduct of the party. In the instant case,
even according to the concurrent
findings recorded by the courts below, it
would emerge that the plaintiff had been
able to successfully prove the sale
agreement dated 07.06.1993 Ex.A1 on
which date Rs.2,005/- was paid by the
plaintiff to the defendant. The evidence
on record tendered by plaintiff came to
- 23 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
be accepted by all the courts and
judgments of courts below would also
indicate that further amount towards
sales consideration in a sum of
Rs.17,000/- was paid by plaintiff to
defendant on 23.06.1993 and same was
endorsed by him. As per the recital in
the agreements, the defendant was His
Holiness Acharya Swami Ganesh
Dassji v Sit ram Thapar (1996) 4
SCC 526 , required to get the suit land
surveyed and as such the total
consideration was agreed to be settled
after such survey. On the one hand, the
plaintiff contends that defendant never
got surveyed the suit land. On the other
hand pleadings and evidence of plaintiff
is silent on steps taken by the plaintiff as
expected of a reasonable person which
has not been taken in the instant case
namely the plaintiff has not produced
any evidence either oral or documentary
to establish that there was any demand
made by him for the land being surveyed
by defendant. No witnesses have been
examined on behalf of the plaintiff to
establish that at any point of time there
- 24 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
has been demand made by the plaintiff
with the defendant by calling upon him
to get the suit land surveyed as agreed
under the agreement of sale Ex.A1. It is
for the first time after a period of 3 years
from the date of agreement Ex.A.1
namely on 30.05.1996 legal notice
(Ex.A3) was got issued or in other words
plaintiff was silent for a period of 3 years
in enforcing of the agreement of sale. It
is for this specific reason the trial court
while rejecting the prayer for decree of
specific performance has recorded a
categorical finding…”
34. Admittedly, in the instant case, the sale agreement
was executed on 04.10.2007 and the legal notice
was issued on 23.09.2010 at the fag end of the
limitation, and further, the plaintiff has also not
established that he has made any attempt by issuing
a notice to defendant No.1 calling for offering the
balance sale consideration amount and demanding to
execute a registered sale deed.
- 25 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
35. The judgment referred above is aptly applicable to
the case on hand.
36. The Hon'ble Apex Court in the case of Kalawati
6
(dead) through LRs v. Rakesh Kumar has held
that non-grant of specific performance - when the
party seeking a specific performance, is not ready
and willing to perform his part of obligation i.e.,
inability of the party seeking a specific performance
to pay the balance consideration amount, is not
entitled for relief of specific performance of a
contract.
37. Thus, the First Appellate Court was justified in
recording a finding that the plaintiff has not
established that he was/is always ready and willing
to perform his part of contract and as such, has
rightly reversed the judgment and decree passed by
the Trial Court for the relief of specific performance
6
(2018) 3 SCC 658
- 26 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
of a contract, and rightly passed a decree for
alternative relief of refund of the amount.
38. The ratio laid down in the judgment relied upon by
the learned counsel for the plaintiff in the case of
Shanti Devi (supra) is, in case if the sale deed is
executed, and part of the consideration amount is
paid and remaining is not paid, then the sale deed is
said to be void.
39. Admittedly, in the instant case, there is no sale deed
executed in favour of the plaintiff. There is no
dispute regarding the proposition of law laid down by
the Hon'ble Apex Court in the said case; however,
the said judgment is not applicable to the case on
hand.
40. Learned counsel for the plaintiff has also relied upon
the judgment of the Hon'ble Apex Court in the case
of Hemalata (Dead) by LRs v. Tukaram (Dead)
by LRs (supra) , wherein the Hon'ble Apex Court
- 27 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
held that presumption regarding the validity of the
registered Sale Deed and also regarding Section 92
of the Evidence Act; that to contradict the terms and
conditions of an instrument is inadmissible in
evidence as per Section 92 of the Evidence Act.
41. Admittedly, defendant No.1 executed a registered
sale agreement in favour of the plaintiff wherein
there is a recital in the sale agreement that
defendant No.1 has received a sum of Rs.5,80,000/-.
But, defendant No.1 has pleaded in the written
statement that defendant No.1 has received a sum of
Rs.1,00,000/-. There is a recital regarding the receipt
of Rs.5,80,000/- as a sale consideration amount.
42. Thus, to that extent, the First Appellate Court has
committed an error in directing the defendants to
refund the amount of Rs.1,00,000/-, which is
contrary to the recital in Exhibit P1.
- 28 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
43. In view of the above discussion, I answer substantial
question of law No.1 in negative, and, substantial
question of law No. 2 partly in the affirmative
44. In the result, I proceed to pass the following order:
ORDER
(i) The Regular Second appeal is
allowed in part ;
(ii) The impugned judgment and
decree passed in R.A. No.116 of
2013 dated 23.07.2014 passed
by the First Additional District
Judge, Bijapur is modified .
(iii) The plaintiff is entitled to get a
refund of Rs.5,80,000/- with
interest at the rate of 6% per
annum from the date of
execution of the said agreement
till its realization.
(iv) The defendants are directed to
repay Rs.5,80,000/- with interest
within a period of 2 months,
failing which the plaintiff is
- 29 -
HC-KAR
NC: 2026:KHC-K:10742
RSA No. 200020 of 2015
CNR: KAHC030014262015
entitled to recover the said
amount in accordance with law.
(v) Pending IAs, if any, shall stand
disposed of.
(vi) No order as to costs.
Sd/-
(ASHOK S. KINAGI)
JUDGE
RK
List No.: 1 Sl No.: 4
Ct:pk