SHIVARAMAIAH vs SRI K RANGASWAMY
- Court
- Karnataka High Court
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R
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 15 DAY OF JUNE, 2026
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL No.139 OF 2020 (SP)
BETWEEN:
SHIVARAMAIAH
S/O LENKAPPA
AGED ABOUT 54 YEARS
R/AT SIDAPURA VILLAGE,
THIPPASANDRA HOBLI,
MAGADI TALUK,
RAMANAGARA DISTRICT-562120.
…APPELLANT
(BY SRI SUNIL S. RAO FOR
SRI. PANCHAM R D, ADVOCATES)
AND:
1. SRI K RANGASWAMY
S/O KEMPANNA
AGED ABOUT 45 YEARS
R/AT KAPINIGOWDANAPALYA VILLAGE,
DODDASOMANAHALLI POST,
KALARI KAVAL DHAKALE,
KASABA HOBLI
MAGADI TALUK
RAMANAGARA DISTRICT-562120.
2. SMT. NEELAMMA
W/O SHIVARAMAIAH
AGED ABOUT 43 YEARS
3. SMT. MANGALA
D/O SHIVARAMAIAH
AGED ABOUT 27 YEARS
Digitally
signed by
MALATESH
K C
Location:
HIGH
COURT OF
KARNATAKA
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4. SMT. PARVATHI
W/O SHIVARAMAIAH
AGED ABOUT 25 YEARS
5. SMT. PADMAVATHI
D/O SHIVARAMAIAH
AGED ABOUT 24 YEARS
RESPONDENT NOS.2 TO 5 ARE
R/AT ANDRA HALLI MAIN ROAD,
HEROHALLI PANCHAYATHI,
BESIDE SYNDICATE BANK LAYOUT,
OPPOSITE WATER TANK,
BENGALURU-560 091.
6. SRI SHIVARAMAIAH
S/O LATE JAVARAPPA
AGED ABOUT 61 YEARS
R/AT VINAYAKA NAGARA,
ANDRA HALLI MAIN ROAD,
HEROHALLI PANCHAYATHI,
BESIDE SYNDICATE BANK LAYOUT,
OPPOSITE WATER TANK,
BENGALURU-560091.
…RESPONDENTS
(BY SRI PREMNATH.T.N, ADVOCATE FOR R1;
R2 TO R6 ARE SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DATED 21.09.2019 PASSED IN R.A
No.12/2018 ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
09.11.2017 PASSED IN O.S.No.64/2014 (OLD
O.S.No.133/2007) ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, MAGADI.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Sunil S.Rao, learned counsel for Sri Pancham
R.D., learned counsel for the appellant/defendant No.5 and Sri
Premnath T.N, learned counsel for respondent No.1/plaintiff.
2. Parties are referred to as plaintiff and defendants as per
their original ranking before the Trial Court, for the sake of
convenience.
3. Defendant No.5 in O.S No.64/2014 (old No.133/2007) is
the appellant before this Court. He was impleaded in the suit
as a party subsequent to filing of the suit.
4. Facts in the nutshell which are utmost necessary for
disposal of the present appeal are as under:
3.1 A suit for specific enforcement of the agreement to sell
dated 19.05.2006 was filed in O.S No.133/2007, on the file of
Senior Civil Judge and JMFC, Magadi. Later on, it is numbered
as O.S. No.64/2014.
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3.2 In the suit, it is contented that defendant Nos.1 to 4 are
the owners of the immovable property which is described
hereunder in detail and hereinafter referred to as the ‘suit
property’.
“ Land bearing Sy.No.151/6 measuring 020 guntas and
land bearing Sy.No.151/7 measuring 030 guntas
including Kharab land totally measuring 1 acre 010
guntas old Kalari Kaval village, Kasaba Hobli, Magadi
Taluk, adjacent to each other having common
boundary:
East by :Land of Kempaiah and Thirumalaiah,
West by :Land of Hanumanthaiah,
North by :Land of Hanumanthaiah,
South by :Garden land of Kempiregowda.”
3.3 Plaintiff contended that, a contract of agreement to sell
got executed by the defendant Nos.1 to 4 with the plaintiff.
Said agreement dated 19.05.2006 is marked as Exhibit P-1
before the Trial Court. Plaintiff further pleaded that defendant
No.1 is the mother and defendant Nos.2 to 4 are her children.
The defendant No.1 is the absolute owner of the suit property.
3.4 It is pleaded by plaintiff that since defendant Nos.1 to 4
were in dire need of money for their legal necessities, they
approached the plaintiff to sell the suit property for a valuable
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consideration of Rs.1,75,000/-. Plaintiff accepted the offer and
suit agreement came into existence.
3.5 At the time of execution of the agreement, amount in a
sum of Rs.50,000/- was tendered as advance sale consideration
by the plaintiff and agreed to pay the balance amount after the
defendants obtain the sketch and necessary revenue records,
to complete the sale transaction.
3.6 It is also contented by the plaintiff that the defendants
agreed to put the plaintiff into possession of the suit property
at the time of execution of the sale deed.
3.7 Plaintiff further contended that he was ready and willing
to perform his portion of the contract and demanded the
defendant Nos.1 to 4 to accept sum of Rs.1,25,000/- which is
the balance sale consideration and to execute the sale deed.
But, defendant Nos.1 to 4 went on postponing the execution of
the sale deed on one pretext or the other which necessitated
the plaintiff to issue legal notice on 11.09.2006. Said notice
was not served on the defendants.
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3.9 Therefore, plaintiff had to again issue one more notice on
04.11.2006 after ascertaining the correct address of the
defendants. The second notice issued to the defendants was
duly served and an untenable reply came to be issued by the
defendant Nos.1 to 4 vide Exhibit D-4 wherein, defendant
Nos.1 to 4 denied the contents of the notice and also denied
the execution of the very suit agreement/Exhibit P-1 and
contended that it is a concocted document.
3.10 Left with no alternative, plaintiff filed the suit for specific
enforcement of agreement to sell.
5. Pursuant to suit summons defendant Nos.1 to 4 entered
appearance and filed a detailed written statement denying the
suit agreement.
6. They denied the contents of the plaint in toto . It is
further contented in the written statement of defendant Nos.1
to 4 that, defendant No.1 is an illiterate and innocent
housewife, having no knowledge of reading and writing. Taking
advantage of her gullible nature Sri Venkatappa, who is the
resident of Hosapalya Village, Magadi Taluk, being the Real
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Estate broker, approached her to secure loans from the
Society, obtained her signature on many blank papers which
has been utilised to concoct the suit document and thus sought
for dismissal of the suit.
7. Defendant No.5(present appellant) and defendant No.6
(husband of first defendant) were impleaded subsequently by
the plaintiff.
8. Defendant No.5 filed written statement stating that first
defendant is the owner of the suit property, but denied the
remaining contents of the plaint including defendant Nos.1 to 4
executing the suit agreement. He also pleaded ignorance about
the exchange of notices between plaintiff and defendants.
9. However, the plaint got amended after impleading of
defendant No.5 wherein it has been contented that defendant
Nos.1 to 4 in collusion with defendant No.5, filed suit in O.S
No.362/2011 and got compromised.
10. In that regard, defendant No.5 denied that there is a
collusion between defendant Nos.1 to 4 and defendant No.5.
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11. On the contrary, defendant No.5 maintained that for the
family necessity, defendant Nos.1 to 4 had already entered into
an agreement to sell with defendant No.5 on 18.03.2005. The
decree passed in O.S No.362/2011 was duly executed by filing
Execution Case No.7/2012 and through Court Commissioner,
sale deed got executed in favour of defendant No.5 and thus,
defendant No.5 is in possession and enjoyment of the suit
property. Therefore, suit of the plaintiff is to be dismissed.
12. Defendant No.6 filed separate written statement
contending that he would adopt the written statement filed by
defendant Nos.1 to 4. He contended that first defendant-
Neelamma is none other than his wife and defendant Nos.2 to 4
are his daughters. He also maintained that the decree in
favour of defendant No.5 is just and proper and sought for
dismissal of the suit.
13. Learned Trial Judge, after raising necessary issues,
recorded the evidence of the parties and by considered
judgment dated 09.11.2017 decreed the suit of the plaintiff.
Operative portion of the Trial Court judgment reads as under:
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“The suit of the plaintiff is hereby decreed.
The plaintiff shall deposit the compensation amount
of Rs.3 lakh within 2 months from this date.
The defendant No.1 to 6 are hereby directed to
execute the sale deed in respect of the suit schedule
properties in favour of plaintiff, within 2 months from
this date by receiving balance amount and
compensation. The plaintiff shall bear all the
expenses of sale deed.
That if the defendants fails to execute the sale deed
within 2 months, the plaintiff is at liberty to take
legal action as per law and get sale deed through
Court.
The decree passed in O.S.No.362/11 and sale deed
executed in E.P.No.7/12 through the Court
Commissioner is not binding on the rights of the
plaintiff.
The parties to bear their own costs.
Draw decree accordingly.”
14. Being aggrieved by the same, defendant Nos.1 to 4 filed
an appeal in R.A No.11/2018. Defendant No.5 filed a separate
appeal in R.A No.12/2018.
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15. Learned Judge in the First Appellate Court, after securing
the records, heard the arguments of the parties and on re-
appreciation of the material on record, dismissed both the
appeals by a common judgment dated 21.09.2019.
16. Being further aggrieved by the same, it is defendant No.5
who has filed the present Second Appeal on the following
grounds:
The judgment and decree passed by the Courts
below are illegal, against the facts and
circumstances of the case and opposed to the
established principles of law, and hence the same
are liable to be set aside.
The courts below have failed to appreciate that even
though the plaintiff has examined himself as P.W-1,
alleged witness as P.W-2 and 3, and the son of K.S.
Shanthaiah who is the alleged scribe of Es.P1, the
sale agreement dated 19.05.2006, their evidence
has not corroborated with each other in proving the
execution of the alleged sale agreement dated
19.05.2006. A careful reading of the entire evidence
of the witnesses examined in support of the case of
the plaintiff, goes to show that the veracity of their
testimony is shaken and cannot be believed at all.
On the other hand their evidence per se disproves
the very case of the plaintiff regarding the execution
of the document at Ex.P1. The Courts below should
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have been more vigilant in scrutinizing the alleged
sale agreement dated 19.05.2006, the execution of
which was seriously disputed by the defendants. The
alleged sale agreement dated 19.05.2006, alleged to
have been executed by the defendant no.1 to 4 and
6 does not bear their signature on its first page, as
against the normal course of execution of the sale
agreements. Further same does not bear the
signatures at the place of insertion of the additional
line between line 8 and 9 at para no.3 of the alleged
sale agreement dated 19.05.2006. Therefore the
Courts below have erred in not appreciating the
entire oral and documentary evidence in a proper
perspective and the same has resulted in
miscarriage of justice.
The Courts below have failed to appreciate that the
P.W.2 says Rs.3,500/- per Gunta was fixed by
Shanthaiah, scibe on 19.05.2006 whereas P.W.3
says that said price was fixed on 17.05.2006 itself,
and according to P.W3, the sale agreement was
executed on 17.05.2006. Further Courts below have
failed to notice that P.W2 and P.W3 in their chief
examination states that Shanthaih has got the
alleged sale agreement typed, but the cross
examination of P.W2 goes to show that Shanthaiah
has not got the alleged sale agreement typed.
It is submitted that the P.W.2 in his cross
examination states that Shanthaiah has fixed the
price at Rs.3,500/- per Gunta (which is the inserted
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portion between the line 8 and 9 at para 3 in the
alleged sale agreement) before him, plaintiff and the
defendants. Thereafter he also admits that insertion
between line 8 and 9 at para 3 in the alleged sale
agreement was not made before him. Therefore if
the sale agreement was already typed and the said
insertion was already made before the plaintiff,
defendants and Shanthaiah have met P.W-2, the say
of the said witness that Shanthaiah has fixed the
price of Rs.3.500/- per Gunta before him is false.
Therefore the testimony of P.W-2 falsifies the
execution of the sale agreement dated 19.05.2006.
If the entire deposition of the P.W-1 to P.W-3 is read
together, they have failed to prove as to where,
when and by whom the alleged sale agreement was
typed and they would not say that defendant no.2 to
4 have been to Magadi along with defendant no.1
and 6. Further the cross examination of the P.W-3
goes to show that the no monitory transaction was
taken place and the P.W-2 in his cross examination
admits that he does not know what was written in
the stamp paper. All these aspects were not at all
considered by the Courts below.
Both the Courts below have failed to hold that the
sale agreement dated 19.05.2006, vide Ex.P-1 is a
tampered, created and concocted document, which
is the only conclusion that could have been drawn
from the oral and documentary evidence on record.
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It is submitted that one of the issues framed by the
Trial Court is regarding the readiness and willingness
of the plaintiff to perform his part of the contract
and issue no.1 to 4 including the aforesaid issue was
considered together by the Trial Court, and the said
issue was held to be affirmative without formulating
any reasons to that effect. Therefore the judgment
and decree of the Trial Court is liable to be set aside.
The Trial Court has erroneously come to the
conclusion that the contention of the defendants as
per the reply notice dated 13.11.2006 is not
acceptable as the defendants have only denied the
contents of the notice in their reply notice dated
13.11.2006, without stating the creation of the
agreement in collusion with Venkatappa in the reply
notice and also that Venjkatappa has obtained their
signature on so many blank papers. This conclusion
of the Trial Court is wrong for the simple reason that
when the notice is served on the defendants, based
on the alleged sale agreement dated 19.05.2006 and
without furnishing the copy of the same, the
contents of the said agreement are not known to the
defendants, when it was the specific case of the
defendants that the alleged sale agreement was not
executed by them. It is only after the filing of the
suit along with the said documents, the defendants
got to know the contents of the said created sale
agreement and therefore they have written
statement suitably. Had the defendants been
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furnished with the said copy of the sale agreement
along with legal notice, they would have taken all
such contentions which were taken in the written
statement. Therefore the above opinion of the Trial
Court is wrong and hence the judgment and decree
of the Courts below requires interference by this
Hon'ble Court.
The Courts below have failed to consider that the
appellant is a bonafide purchaser of the suit
schedule properties for a valuable consideration, and
his sale agreement dated 18.03.2005 is prior to the
alleged sale agreement dated 19.05.2006, the
specific performance of which was sought by the
plaintiff. The courts below should have held that the
specific performance of the alleged contract was not
possible in view of the property being put into the
hands of the defendant no.5/appellant herein, by
way of execution of the sale deed through the
process of the Court in E.P.No.7/2012.
The Trial Court has held that the judgment and
decree in O.S.No.362/2011 and also the sale deed at
Ex.D10 executed in E.P.No.7/2012 is not binding on
the plaintiff, by simply holding that the defendant
no.5/appellant herein has not got himself impleaded
to the suit in O.S.No.64/2014(Old O.S.No.133/2007)
and has filed the suit in O.S.No.362/2011,
intentionally, by excluding the plaintiff, although the
appellant has satisfactorily established that his
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application for impleading before the Trial Court was
dismissed and thereafter having no other alternative
he has filed the suit in O.S.No.362/2011. The First
Appellate Court has also fallen in error on the same
parlance in endorsing the view of the Trial Court.
Therefore the judgment and decree of the Courts
below ought to have been set aside on this score.
Viewed from any angle the judgment and decree
passed by the Courts below are not sustainable and
liable to be set aside.
The appellant seeks the leave of this Hon'ble Court
to urge any additional grounds during the course of
the above appeal.
The appellant submits that the appellant has not
filed any other appeal, seeking the relief sought in
the present Regular Second Appeal, except filing the
above Regular Second Appeal.”
17. After hearing the parties, co-ordinate Bench of this Court
admitted the appeal on the following substantial questions of
law:
1) Whether the Trial Court and the First Appellate Court
were justified in decreeing the suit for specific
performance without rendering a finding about the
validity of the agreement of sale dated 18.03.2005
executed by defendant Nos.1 to 4 in favour of the
defendant No.5?
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2) Whether the Trial Court and the First Appellate Court
committed an error in considering the agreement of
sale dated 18.03.2005 in favour of defendant No.5
as a subsequent sale and therefore the sale deed
dated 30.05.2013 in favour of the defendant No.5
did not bind the plaintiff?
3) Whether the Trial Court and the First Appellate Court
had committed error in considering the sale in
favour of the defendant No.5 as a pendent-lite
purchaser?
4) Whether the decree passed in O.S. No.362/2011
was binding on the plaintiff in O.S. No.64/2014 as
he was not a party to the said suit?
18. Sri Sunil S. Rao, learned counsel with the permission of
the Court addressed arguments on behalf of the counsel for
appellant.
19. A synopsis is filed on behalf of the appellant along with
citation on which the appellant wants to rely upon.
20. Sri Sunil S. Rao, would contend that the agreement dated
18.03.2005 entered into by defendant Nos.1 to 4 with
defendant No.5 being earlier in time, sale deed executed
through the process of Court in Execution Case No.7/2012
pursuant to the decree passed in O.S No.362/2011 would date
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back to 18.03.2005 and as such, defendant Nos.1 to 4 did not
possess any right, title or interest to enter into an agreement
with the plaintiff on 19.05.2006 which is marked at Exhibit P-1.
Therefore, decreeing of the suit by both the Courts has resulted
in miscarriage of justice.
21. He would further contend that defendant Nos.1 to 4
having entered into an agreement with the fifth defendant on
18.03.2005, were parties in O.S No.362/2011. When their
misdeeds got exposed in entering into one more agreement
suppressing the agreement dated 18.03.2005 executed by
them in favour of defendant No.5, had to compromise the
dispute with the fifth defendant. As such, matter was referred
to Lok Adalat by filing consent memo. Before the Lok Adalat,
matter got compromised whereby defendant Nos.1 to 4 agreed
to sell the suit property in favour of defendant No.5 as is
prayed in O.S No.362/2011.
22. He would further contend that a decree before the Lok
Adalat is not inferior in its applicability and a compromise
entered into before the Lok Adalat and award passed before the
Lok Adalath will partake the nature of a decree passed by a
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competent Civil Court. Therefore it was capable of execution.
When defendant Nos.1 to 4 failed to adhere to the award
passed before the Lok Adalat, fifth defendant had to approach
the jurisdictional Court seeking enforcement of the award
passed before the Lok Adalat, in Execution Case No.7/2012.
23. Since defendant Nos.1 to 4 failed to appear before the
executing Court and execute the decree, defendant No.5 got
appointed a Court Commissioner. The Court Commissioner
executed the award passed before the Lok Adalat by orders of
the Court and sale deed was executed in favour of defendant
No.5 and he was put into the possession of the property and
thus defendant No.5 is the owner of the suit property. As such,
decree granted by both the Courts is against the interest of
defendant No.5 and as such, appeal needs to be allowed.
24. He would also emphasize that given the factual aspects
as referred to supra , all the defence that is available to the
defendant Nos.1 to 4 can be canvassed on behalf of defendant
No.5 dehors the fact that defendant Nos.1 to 4 did not
challenge the judgment passed by the First Appellate Court.
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25. In this regard, he has placed reliance on the following
judgment of the Hon'ble Apex Court:
(i) B.Vijaya Bharathi vs. P.Savitri and others
reported in (2018) 11 SCC 761 .
(ii) Ram Awadh (dead) by LRs and others vs.
Achhaibar Dubey and another reported in
(2000)2 SCC 428 .
26. He invited attention of this Court to paragraphs 12 to 16
of the judgment in the case of B.Vijaya Bharathi supra,
wherein it is held as under:
“12. One crucial fact that stares us in the face is
that on 13-3-1992 the first defendant ran away from
the registering authority making it clear that she did
not want to act in furtherance of the agreement in
executing a general power of attorney in favour of the
plaintiff's husband. The High Court was right in stating
that no prudent person would stay quiet for a period of
one year and eleven months after such an unequivocal
repudiation of the agreement if they were really
interested in going ahead with the sale transaction. The
only inference, therefore, from this is that the plaintiff
cannot possibly be said to be ready and willing
throughout to perform their part of the agreement.
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13. However, Mr Rao has pressed into service a
judgment of this Court in M.M.S. Investments v. V.
Veerappan [M.M.S. Investments v. V. Veerappan,
(2007) 9 SCC 660] . While stating the background
facts, the learned Judges referred to a suit for specific
performance which resulted in a decree passed by the
trial court. After the decree was passed, the defendants
through their power of attorney sold a large extent of
properties, including the subject-matter of the suit, in
favour of certain other persons, who happened to be
the appellants before this Court. In that case, the High
Court held [M.M.S. Investments v. V. Veerappan, 2000
SCC OnLine Mad 69 : (2000) 2 LW 15] that there would
be no bar for the appellant to raise any issue on merits
of the appeal on the facts of that case except the
defence of readiness and willingness as provided under
Section 16(c) of the Specific Relief Act.
14. This Court went on to distinguish a three-Judge
Bench judgment in Ram Awadh v. Achhaibar
Dubey [Ram Awadh v. Achhaibar Dubey, (2000) 2 SCC
428] and held as follows: (M.M.S. Investments
case [M.M.S. Investments v. V. Veerappan, (2007) 9
SCC 660] , SCC p. 662, para 6)
“6. Questioning the plea of readiness and
willingness is a concept relatable to an
agreement. After conveyance the question of
readiness and willingness is really not
relevant. Therefore, the provision of the
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Specific Relief Act, 1963 (in short “the Act”) is
not applicable. It is to be noted that the
decision in Ram Awadh case [Ram
Awadh v. Achhaibar Dubey, (2000) 2 SCC
428] relates to a case where there was only an
agreement. After the conveyance, the only
question to be adjudicated is whether the
purchaser was a bona fide purchaser for value
without notice. In the present case the only
issue that can be adjudicated is whether the
appellants were bona fide purchasers for value
without notice. The question whether the
appellants were ready and willing is really of
no consequence. In Ram Awadh case [Ram
Awadh v. Achhaibar Dubey, (2000) 2 SCC
428] the question of the effect of a completed
sale was not there. Therefore, that decision
cannot have any application so far as the
present case is concerned. Once there is a
conveyance the concept would be different and
the primary relief could be only cancellation.”
15. Ram Awadh [Ram Awadh v. Achhaibar Dubey,
(2000) 2 SCC 428] is a judgment by three Judges of
this Court overruling Jugraj Singh v. Labh Singh [Jugraj
Singh v. Labh Singh, (1995) 2 SCC 31] , in which it was
held that the plea that the plaintiff is not ready and
willing to perform the contract is personal only to the
seller defendant. Subsequent purchasers cannot take
this plea. This was stated to be an erroneous view of
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the law by the three-Judge Bench, and the judgment
in Jugrag Singh [Jugraj Singh v. Labh Singh, (1995) 2
SCC 31] was set aside as follows: (Ram Awadh
case [Ram Awadh v. Achhaibar Dubey, (2000) 2 SCC
428] , SCC p. 431, para 6)
“6. The obligation imposed by Section 16 is
upon the court not to grant specific performance
to a plaintiff who has not met the requirements
of clauses (a), (b) and (c) thereof. A court may
not, therefore, grant to a plaintiff who has failed
to aver and to prove that he has performed or
has always been ready and willing to perform his
part of the agreement the specific performance
whereof he seeks. There is, therefore, no
question of the plea being available to one
defendant and not to another. It is open to any
defendant to contend and establish that the
mandatory requirement of Section 16(c) has not
been complied with and it is for the court to
determine whether it has or has not been
complied with and, depending upon its
conclusion, decree or decline to decree the suit.
We are of the view that the decision in Jugraj
Singh case [Jugraj Singh v. Labh Singh, (1995) 2
SCC 31] is erroneous.”
16. In the facts of M.M.S. Investments case [M.M.S.
Investments v. V. Veerappan, (2007) 9 SCC 660] ,
after the trial court decreed the suit, the property was
conveyed to the plaintiff. It is only thereafter that the
appellants in that case purchased the property. In the
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facts of the present case, Defendants 2 and 3
purchased the property even before the suit for specific
performance was filed. In the present case there is no
conveyance in favour of the plaintiff after which
Defendants 2 and 3 purchased the property. The ratio
of M.M.S. Investments [M.M.S. Investments v. V.
Veerappan, (2007) 9 SCC 660] would therefore be of
no assistance to the appellant herein. On the other
hand, the three-Judge Bench decision in Ram
Awadh [Ram Awadh v. Achhaibar Dubey, (2000) 2 SCC
428] would apply on all fours.”
27. Further, since all the defences that are available to the
defendant Nos.1 to 4 could be urged by the appellant herein
being the fifth defendant, he would contend that both the
Courts did not choose to record any finding on the validity of
the agreement to sell dated 18.03.2005 executed by defendant
Nos.1 to 4 in favour of defendant No.5 and as such, decreeing
the suit of the plaintiff for specific performance is bad in law.
28. He would also contend that First Appellate Court
committed an error in considering the agreement to sell dated
18.03.2005 executed by defendant Nos.1 to 4 in favour of
defendant No.5 as a subsequent sale. Therefore, the sale deed
executed by the Court Commissioner on 30.05.2013 in
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Execution Case No.7/2012 did not bind the plaintiff is incorrect
as ‘doctrine of relation back’ is ignored by the First Appellate
Court.
29. He further emphasizes that in the event, the sale
executed on 30.05.2013 through the process of Court pursuant
to the decree passed in O.S No.362/2011 is incorrect, then the
appellant is to be considered as a pendente lite purchaser.
Therefore, all available defences of defendant Nos.1 to 4 that
plaintiff was not ready and willing to perform his portion of the
contract needs to be re-appreciated before this Court.
30. Insofar as the fourth substantial question of law is
concerned, even though plaintiff is not a party to the suit in O.S
No.362/2011, since the rights that were considered in the said
suit were pursuant to the agreement dated 18.03.2005 which is
the prior agreement than the suit agreement, it binds the
plaintiff and therefore, decree passed by both the Courts needs
to be set aside.
31. Per contra, Sri Premnath, learned counsel for respondent
No.1/plaintiff would support both the judgments.
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32. He would further contend that in the case on hand, in the
written statement filed by the defendant Nos.1 to 4, they deny
the very agreement dated 19.05.2006/Exhibit P-1 itself.
Therefore, they cannot plead any other defence and as such,
appellant/defendant No.5 cannot also plead any defence that is
available to a normal defendant who has accepted the
agreement to sell.
33. Sri Premnath, would further contend that pertinently in
the second notice, a reply is caused by defendant Nos.1 to 4
marked vide Exhibit D-13. There is no mention of Venkatappa
playing fraud on defendant Nos.1 to 4 in concocting the sale
agreement marked at Exhibit P-1.
34. He would further emphasize that payment of Rs.50,000/-
under Exhibit P-1 is proved by the plaintiff not only by placing
Exhibit P-1 on record, but also by examining the witnesses viz.,
Venkatappa, Narasimhaiah and Jagadeesh as P.W-2, P.W-3 and
PW-4 respectively. Therefore, defendant Nos.1 to 4, in order to
avoid the agreement to sell/Exhibit P-1, have taken an indirect
method of creating one more agreement by ante-dating it as
18.03.2005 and obtaining the decree suppressing the pendency
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of suit in O.S No.133/2007 renumbered as O.S.No.64/2014 in
O.S No.362/2011 and without impleading the plaintiff as a
party itself shows the cunning nature of defendant Nos.1 to 4
and malafide method that defendant Nos.1 to 4 and 5 have
adopted in getting the sale in favour of defendant No.5
pursuant to the alleged agreement of 18.03.2005.
35. As such, viewed from any angle, defendant No.5 cannot
be treated as a bonafide purchaser for value and even if he is
treated as a pendente lite purchaser simpliciter , in view of the
fact that defendant Nos.1 to 4 have denied the agreement/
Exhibit P-1, defendant No.5 cannot advance any other defence
which were available to defendant Nos.1 to 4 and as such
sought for dismissal of the appeal.
36. Having heard the arguments of both sides this Court
perused the material on record meticulously, in the light of the
substantial questions of law that were raised at the time of
admitting the appeal.
37. In the case on hand, Exhibit P-1 is the agreement that is
entered into by defendant Nos.1 to 4 with the plaintiff.
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Issuance of notice before filing the suit is proved by placing
copy of the notice and returned covers. Issuance of second
notice by the plaintiff before filing the suit is established by
placing the copy of the second notice and the postal
acknowledgments.
38. According to plaintiff, he did not receive any reply. But,
copy of the reply is marked by the defendants as Exhibit D-13.
39. Pertinently, in the Exhibit D-13, defendants Nos.1 to 4
have taken up the contention that Exhibit P-1 is not executed
by them.
40. Pertinently, in the said reply, there is no mention as to
Venkatappa having concocted the suit agreement in the guise
of getting loan to defendant No.1 through Society and obtaining
her signature on the blank paper.
41. Further, Exhibit D-5 is the copy of the plaint filed on the
file of Civil Judge, Magadi in O.S No.362/2011. Admittedly,
Plaintiff is not arrigned as a party in the said suit.
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42. Pertinently, by then, defendant No.5 knew about
pendency of suit in O.S No.133/2007, re-numbered as
O.S.No.64/2014 filed by the plaintiff, having approached the
Court with an application under Order I Rule 10 of the Code of
Civil Procedure, which came to be dismissed.
43. Non impleading the plaintiff in O.S No.362/2011, i.e., four
years after the suit came to be filed by the plaintiff in
O.S.No.133/2007(re-numbered as O.S.No.64/2014), speaks
volumes about the intention of the parties in suppressing the
material fact before the Civil Judge, Magadi.
44. Admittedly, suit in O.S No.64/2014 (Old
O.S.No.133/2007) is filed on the file of Senior Civil Judge,
Magadi and it was being tried before the said Court. Valuation
of the second suit is also important in this regard in filing the
suit clandestinely before the Civil Judge Court.
45. Exhibit D-6 is the joint memo filed in O.S.No.362/2011
wherein the parties wanted the matter to be referred to Lok
Adalat. In other words, if the material evidence were to be
recorded by the parties, necessarily the pleadings and the
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evidence that is placed before the Court of Senior Civil Judge,
Magadi, in O.S No.133/2007 would have been made known to
the Court.
46. Before the Lok Adalat, defendant Nos.1 to 4 and
defendant No.5 filed an application under Order XXIII Rule 3 of
the Code of Civil Procedure which is marked at Exhibit D-8.
Under the provisions of Legal Services Authorities Act, no such
compromise petition can be accepted before the Lok Adalat, as
the members of the Lok Adalat are only conciliators and no
judicial act can be performed by them. Thus, they could not
have exercised any judicial power in entertaining the
application under Order XXIII Rule 3 of the Code of Civil
Procedure and accept the satisfaction as to the compromise
between the parties.
47. Be that what it may. Before the Lok Adalat, application
under Order XXIII Rule 3 of the Code of Civil Procedure is
accepted and an award came to be passed, which is per se
incorrect.
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48. If there is a true compromise as is enunciated by the
defendant Nos.1 to 4 and defendant No.5 in the Lok Adalat,
there was no necessity for the defendant No.5 to file an
execution petition before the Civil Judge Court to execute the
award passed before the Lok Adalat.
49. Only to give a colour of Court decree and to get
insulation from further Court proceedings, and to take shelter
under the Court proceedings, a show of non-adherence to the
terms of the award has taken place and defendant No.5 has
approached the Executing Court to get the award executed.
50. Even in the execution proceedings, defendant Nos.1 to 4
remained as silent and mute spectators. Therefore, Executing
Court appointed a Court Commissioner to execute the award
passed by the Lok Adalat.
51. Court Commissioner, thereafter executed the sale deed in
favour of defendant No.5 and put him into the possession of
the suit property.
52. The entire exercise in filing the suit in OS No.362/2011
culminating in filing of the execution petition and getting the
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sale deed executed through the process known to law is
nothing but a clandestine method of denying the right to the
plaintiff is the finding recorded by both the Courts, if not in so
many happy words.
53. Material evidence on record would support the fact that
defendants Nos.1 to 4 and defendant No.5 colluded with each
other in short-circuiting the law. Method adopted by appellant
(defendant No.5) and defendant Nos.1 to 4 and 6 not only
resulted in short-circuiting law, but to deny the legitimate relief
to the plaintiff by undertaking to file a fresh suit in O.S
No.362/2011.
54. It is needless to emphasize that a decree passed against
a person who is not a party, especially when the parties to the
subsequent decree knew that plaintiff already had a subsisting
right in the pending suit, would not bind the plaintiff of that suit
in the subsequent decree.
55. Therefore, defendant No.5 cannot plead that he is a
bonafide purchaser of the property for value. However, since
he is a purchaser during pendency of the suit, he has to be
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treated as a pendente lite purchaser. There cannot be any
dispute that in a given set of circumstances, whatever defences
that were available to defendant Nos.1 to 4 could be advanced
by the defendant No.5 as well.
56. In this regard, the principles of law enunciated by the
Hon'ble Apex Court in the case of supra ,
B.Vijaya Bharathi
would be applicable and as such, defendant No.5 may canvass
all points that are available to defendant Nos.1 to 4.
57. Alas!.., Defendant Nos.1 to 4 did not have any defence
at all. Therefore, whether defendant No.5 can canvass
defences which were available to defendant Nos.1 to 4 is a
question that remains unanswered on behalf of the
appellant/defendant No.5.
58. On the contrary, defendants Nos.1 to 4 having denied the
suit agreement/Exhibit P-1, were debarred from taking any
defence before the Court that are available to a normal prudent
defendant in a suit for specific performance of a contract.
59. Defendant Nos.1 to 4 are the persons who knew very well
that they have executed an agreement in favour of the plaintiff.
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They took up the plea in the reply notice that they did not
execute Exhibit P-1 at all. But, when the signatures in the
agreement marked at Exhibit P-1 could not be digested by the
defendant Nos.1 to 4, in the written statement as an
afterthought they brought the theory of Venkatappa playing
fraud on defendant Nos.1 to 4.
60. Venkatappa is not cited as a witness by the defendant
Nos.1 to 4. On the contrary, Venkatappa is examined on behalf
of the plaintiff. Cross-examination of Venkatappa did not yield
any result whatsoever for the defendant Nos.1 to 4 to advance
their case that Exhibit P-1 was a concocted document.
61. On the contrary, when defendant Nos.1 to 4 realized that
they cannot avoid the decree of specific enforcement,
clandestinely they have entered into another agreement by
ante-dating the same and getting a decree through the process
known to law as referred to supra.
62. Such a person who has meddled with the Court
proceedings, not true to the Court proceedings and during
pendency of the suit, takes short circuit method of filing one
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more suit, suppressing the material fact of earlier suit, non
impleading the plaintiff in the subsequent suit, is debarred from
taking any defence whatsoever. A person who seeks equity
must do equity.
63. In this regard, this Court gainfully places reliance on
judgment in the case of
Major Ger. Darshan Singh (D) by
LRs and another vs. Brij Bhushan Chaudhary (D) by LRs
passed in Civil Appeal No.9360/2013 dated 01.03.2024.
Relevant portion of the said judgment is culled out hereunder
for ready reference:
“9. Under Section 20 of the 1963 Act, the grant of a
decree for specific performance is always
discretionary. The exercise of discretion depends on
several factors. One of the factors is the conduct of
the plaintiff. The reason is that relief of a decree of
specific performance is an equitable relief. A person
who seeks equity must do equity.”
64. Applying the above principles, it is crystal clear that
defendants Nos.1 to 4 having been debarred from pleading
equity, defendant No.5 stepping into the shoes of the
defendant Nos.1 to 4 could not also plead equity as a pendente
lite purchaser as well.
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65. Rights of pendente lite purchaser and his impleadment
into the suit, his role in the pending suit and what are the
guiding principles to deal with rights of such pendente lite
purchaser is no longer res integra.
66. In a recent pronouncement of the Hon’ble Apex Court in
the case of H.Anjanappa and others vs. A.Prabhakar and
others reported in 2025 SCC Online SC 183 at paragraph 58,
it has been held as under:
“58. From a conspectus of all the aforesaid judgments,
touching upon the present aspect, broadly, the following
would emerge:
i. First, for the purpose of impleading a
transferee pendente lite, the facts and
circumstances should be gone into and basing on
the necessary facts, the Court can permit such a
party to come on record, either under Order I Rule
10 CPC or under Order XXII Rule 10 CPC, as a
general principle;
ii. Secondly, a transferee pendente lite is not entitled
to come on record as a matter of right;
iii. Thirdly, there is no absolute rule that such a
transferee pendente lite, with the leave of the
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Court should, in all cases, be allowed to come on
record as a party;
iv. Fourthly, the impleadment of a
transferee pendente lite would depend upon the
nature of the suit and appreciation of the material
available on record;
v. Fifthly, where a transferee pendente lite does not
ask for leave to come on record, that would
obviously be at his peril, and the suit may be
improperly conducted by the plaintiff on record;
vi. Sixthly, merely because such transferee pendente
lite does not come on record, the concept of him
(transferee pendente lite) not being bound by the
judgment does not arise and consequently he
would be bound by the result of the litigation,
though he remains unrepresented;
vii. Seventhly, the sale transaction pendente lite is hit
by the provisions of Section 52 of the Transfer of
Property Act; and,
viii. Eighthly, a transferee pendente lite, being an
assignee of interest in the property, as envisaged
under Order XXII Rule 10 CPC, can seek leave of
the Court to come record on his own or at the
instance of either party to the suit.”
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67. Keeping in view the aforesaid principles, when the
material on record is analyzed, even though the fifth defendant
can take the defence that is available to defendant Nos.1 to 4,
as noticed supra, defendant Nos.1 to 4 had no defence
whatsoever to oppose the suit as they are parties to agreement
with plaintiff as well as defendant No.5. The clandestine nature
in which the agreement that has been entered into by
defendant Nos.1 to 4 with defendant No.5 as discussed supra
would thus kill the case of defendant No.5 in all respects.
68. Insofar as the finding regarding the agreement dated
18.03.2005 entered into between defendant Nos.1 to 4 and
defendant No.5 by both the Courts, that was not the subject
matter before the Trial Court or before the First Appellate
Court, as parties did not join any issue with regard to the said
agreement.
69. Nevertheless, since the plaintiff is not included as a party
in O.S No.362/2011 and the said suit being filed before the
Court of Civil Judge, it is crystal clear that defendant Nos.1 to 5
did not want any finding to be recorded on the validity of
agreement to sell dated 18.03.2005 said to have been executed
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by defendant Nos.1 to 4 in favour of the fifth defendant in the
suit on hand. They were sure that if any such enquiry had
taken place in the present suit, they were in weak position.
70. Further, since by operation of law, a sale deed executed
subsequently will relate back to the date of agreement on
account of ‘doctrine of relation back’, in the normal
circumstances if the agreement dated 18.03.2005 was held to
be valid after contest by impleading the plaintiff as well, such
defence was always available to defendant No.5.
71. But, in the case on hand, the conduct attributable to the
parties in non impleading the plaintiff to the suit in O.S
No.362/2011 and getting the decree through Lok Adalath
award as referred to supra in detail, even though the legal
position is in favour of the fifth defendant, same cannot endure
to his benefit.
72. Sri Sunil S. Rao, lastly made a feeble attempt that
already a sale deed is executed in favour of defendant No.5 and
therefore, decree passed by the Trial Court as well as the First
Appellate Court is incapable of execution.
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73. Such an argument would not hold water in view of the
fact that by action of the Court if something has happened
which is against the spirit of a duly constituted Court's decree,
by resorting to Section 144 of the Code of Civil Procedure,
restitution is permissible. As such, the decree passed by the
Trial Judge confirmed by the First Appellate Court is capable of
execution.
74. From the above discussion, this Court is of the considered
opinion that none of the substantial questions of law raised at
the time of admission of the appeal sans merit.
75. As such, they are to be held against the appellant and
accordingly they are answered.
76. In view of the foregoing discussion, following:
ORDER
(i) Appeal dismissed .
(ii) No order as to costs.
(iii) Consequently, the decree dated 09.11.2017
passed in O.S.No.64/2014 (Old O.S.No.133/
2007) on the file of the Senior Civil Judge and
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JMFC, Magadi, confirmed in R.A.No.12/2018
dated 21.09.2019 on the file of the I Additional
District and Sessions Judge, Ramanagara, is
upheld and can be executed in accordance with
law.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
List No.: 1 Sl No.: 86