SRI KEMPAIAH vs SMT G GANGABAI
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 9 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 1007 OF 2017 (SP)
BETWEEN:
SRI KEMPAIAH
S/O THIMMAIAH,
AGED 43 YEARS,
R/A GANTIGANAHALLI VILLAGE,
HULIKUNTE POST, KORATAGERE TALUK,
TUMKUR DISTRICT – 572 129
…APPELLANT
(BY SRI. K. N. NITISH, ADVOCATE FOR,
SRI. K. V. NARASIMHAN, ADVOCATE)
AND:
1. SMT G GANGABAI
W/O LOKESH
AGED 47 YEARS,
2. SRI LOKESH H. G.
S/O GANGADHARAPPA
AGED ABOUT 54 YEARS,
BOTH ARE R/O NO.68,
SRINIVASAPURA VILLAGE,
KOGILU MAIN ROAD
YELAHANKA , BANGALORE – 560 064
…RESPONDENTS
(VIDE ORDER DATED 20.07.2026
R1 & R2 ARE SERVED THROUGH PAPER PUBLICATION)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED 29.06.2012 PASSED IN RA NO 102/09 ON THE FILE
OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD
29.06.2009 PASSED IN OS.NO.138/2007 ON THE FILE OF THE CIVIL
JUDGE (JR.DVN) AND JMFC KORATAGERE.
Digitally
signed by
VANDANA S
Location:
High Court
of Karnataka
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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellant was the plaintiff in O.S.No.138/2007 filed by
him against the respondents for specific performance of contract of
sale agreement dated 28.02.2001 said to have been executed in
his favour by the respondents-defendants and for other reliefs. By
common judgment and decree, O.S.No.138/2007 filed by the
appellant-plaintiff was decreed and O.S.No.3/2008 filed by the
respondents-defendants was dismissed.
2. For the purpose of convenience, parties are referred to
as per their rankings before the Trial Court.
3. The said suit contested by the respondents-defendants
culminated in a judgment and decree dated 29.06.2009, whereby
the said suit in O.S.No.138/2007 filed by the appellant-plaintiff
against the respondent-defendant was decreed in favour of the
appellant-plaintiff against the respondent-defendant, thereby
granting the plaintiff a decree for specific performance directing the
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respondents to receive the balance sale consideration and execute
a registered sale deed in favour of the appellant-plaintiff. In addition
thereto, during the pendency of the aforesaid suit in
O.S.No.138/2007, the respondents-defendants instituted a
separate suit in O.S.No.3/2008 against the appellant-plaintiff for
permanent injunction and other reliefs in relation to the very same
suit schedule property. The instant suit in O.S.No.138/2007 was
decreed and the said suit in O.S.No.3/2008 was dismissed by the
Trial Court.
4. Aggrieved by the judgment and decree passed by the
Trial Court decreeing the suit of the appellant-plaintiff in
O.S.No.138/2007 and dismissing the suit filed by the respondents-
defendants in O.S.No.3/2008, the respondents-defendants
preferred two appeals in R.A.No.100/2009 and R.A.No.102/2009
before the First Appellate Court. By the impugned common
judgment and decree dated 29.06.2012, the First Appellate Court
allowed R.A.No.102/2009 filed by the respondents-defendants,
while dismissing R.A.No.100/2009 filed by respondent No.2.
Aggrieved by the impugned judgment and decree dated
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29.06.2012 passed by the First Appellate Court allowing
R.A.No.100/2009, the appellant-plaintiff is before this Court by way
of the present appeal. However, the impugned common judgment
and decree insofar as it relates to dismissing R.A.No.100/2009 filed
by respondent No.2 has attained finality and became binding and
conclusive upon the respondents, who have not challenged the
same. It is needless to state that scope of the present appeal is
restricted to whether the judgment and decree passed by the First
Appellate Court allowing R.A.No.102/2009 filed by the respondents
against the appellant is correct and proper and under these
circumstances, this Court formulated the framed the following
substantial questions of law:
“i) Whether the First Appellate Court was justified in
exercising its discretion against the appellant under
Section 20 of the Specific Relief Act?
ii) Whether the First Appellate Court was justified in
declining to grant the relief of specific performance and
direct refund of the earnest amount without recording any
finding as regards comparative hardship between the
appellant and the respondent in not granting a decree for
specific performance?”
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5. Heard learned counsel for the appellant and perused
the material on record.
6. The respondents having been served with notice of the
appeal, have chosen to remain unrepresented and have not
contested the appeal.
Re. Substantial Questions of Law No.1 and 2:
7. Since both points are interlinked with each other, they
are taken up together for consideration.
8. A perusal of the material on record will indicate that the
appellant-plaintiff instituted the aforesaid suit in O.S.No.138/2007
against the respondents-defendants inter alia contending that
respondent Nos.1 and 2, who are none other than husband and
wife executed a sale agreement dated 28.01.2007 in favour of the
appellant agreeing to sell the suit schedule property for a total sale
consideration of Rs.2,27,500/-. It was contended that the appellant-
plaintiff paid a sum of Rs.2,00,000/- to the defendants by way of
advance and part of the sale consideration and though a period of
three months was fixed for completion of the sale transaction, time
was not the essence of the contract under the agreement entered
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into between the parties. It was also contended that the plaintiff
repeatedly called upon the respondents-defendants to receive the
balance sale consideration and perform their part of the contract by
rectifying the RTC and survey sketch in relation to the suit schedule
property and since the defendants did not comply with the request
and demands made by the plaintiff, he instituted the aforesaid suit
on 21.09.2007 for specific performance and other reliefs in relation
to the suit schedule property.
9. The defendants entered appearance and filed a written
statement disputing and denying the various allegations and claims
made by the plaintiff, while admitting the agreement of sale dated
28.01.2007 executed in favour of the plaintiff. The defendants took
up various other contentions including lack/want of readiness
willingness on the part of the plaintiff, breach/non performance of
his obligations under the contract as contented by the plaintiff,
defence of limitation etc., and in pursuance of the same, the Trial
Court framed the following issues in O.S.No.138/2007:
“1. Whether the plaintiff proves that he is always ready and
willing to perform his part of obligation under agreement?
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2. Whether the plaintiff further proves the alleged mistake or
wrong entry in R.T.C,. & survey records with respect to
suit schedule property and defendants agreed to get
rectify the said mistake within 3 months as alleged in
plaint?
3. Whether the defendants prove that the forfeiture of
advance amount is sustainable in law?
4. Whether the plaintiff is entitled for sought relief?
5. What Order or decree?”
10. The plaintiff got examined himself examined as PW-1
and two other witnesses as PWs-2 and 3 and documentary
evidence at Exs-P1 to P7 were marked on his behalf. While,
defendant No.2 got examined himself as DW-1 and documentary
evidence at Exs.D-1 to 5 were marked on their behalf.
11. The Trial Court answered all the issues in favour of the
plaintiff and against the defendants and consequently proceeded to
decree the suit in favour of the plaintiff by holding as under:
“ 12. ISSUE NO.1 TO 3 IN O.S.NO.138/07 :- Since
these issues are interconnected, they are taken-up together
for common discussion to avoid repetition of facts and for
better appreciation of evidence.
The fact that defendants have executed agreement to
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sell dtd.28-1-2007 in favour of plaintiff with respect to suit
property for sale consideration of Rs.2,27,500/- and
defendants have received advance amount of Rs.2,00,000/-
are all admitted facts. It is specific case of the plaintiff that
there is a mistake in RTC and survey records with respect to
extent of site property and hence there is a covenant in the
agreement that within 3 months defendant should rectify the
said mistake on the expense of the plaintiff and to execute
regular sale-deed by receiving balance consideration
amount. But the defendants have not come forward to rectify
the revenue records and they have not willing to perform
their part of contract. On the other hand, it is specific defence
of the defendants that there is no mistake in the RTC and
revenue records with respect to extent of suit property.
Plaintiff has falsely set-up story as he was not ready to
perform his part of contract and he is not in a position to
mobilize balance consideration and get the sale-deed within
3 months by mobilising balance consideration amount and
plaintiff failed to perform his part of obligation under the
agreement. Hence, the plaintiff is not entitle for relief of
specific performance. Further it is specific defence of the
defendants that defendants have also entered into
agreement to purchase suit property at Madhugiri. On the
basis of sale transaction with the plaintiff, the defendants
have also advanced Rs.2 lakhs to their vendor. Since the
plaintiff has not paid the balance consideration amount within
3 months, vendor of the defendants have forfeited
Rs.2,00,000/- advance made by these defendants.
Accordingly, these defendants have suffered a lot. As such,
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they are forfeited advance amount of Rs.2,00,000/- paid by
plaintiff.
13. Now let me see the evidence adduced by
respective parties. Plaintiff has filed chief-examination
affidavit by reiterating the plaint averments. It is contended in
the affidavit of Pw-1 that there is a covenant in the
agreement to sell that defendants should have rectify the
mistake in the RTC and survey records with respect to suit
property within 3 months on the expenses of plaintiff and
then they should execute regular sale-deed in favour of the
plaintiff by receiving balance consideration amount. Further it
is contended that plaintiff is always ready and willing to
perform his part of contract. But the defendants have not
come forward to rectify survey records. Further it is
contended that in the suit agreement defendants have not
given specific residential addres as he was residing at
Bangalore. It is very difficult to the plaintiff to meet the
defendants either personally or in written reference. Further it
is contended that on 8-8-07 defendants have issued lawyer’s
notice and then plaintiff got address of the defendants and
has suitably replied under notice dtd. 27-8-07 and called
upon the defendants to furnish survey sketch and execute
sale-deed within 3 months by receiving balance
consideration. Plaintiff is always ready and willing to perform
his part of contract and he is in a position to mobilize balance
consideration. But the defendants have not come forward to
execute sale-deed.
14. On the otherhand, 2nd defendant has filed chief
examination affidavit by reiterating the written statement
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averments stating that there is no mistakes in the RTC and
survey records with respect to the suit property. Plaintiff has
set-up false story in order to avoid limitation. 2-3 months time
fixed to execute agreement to sell. But the plaintiff has not
come forward to pay the balance consideration within 3
months and he has not get sale-deed. The plaintiff himself is
not ready and willing to perform his part of contract. Further it
is contended that defendants also contracted with one
Sumithra Bai and entered into agreement to purchase a site
at Madhugiri for Rs.2,50,000/- and also advanced
Rs.2,00,000/- to Sumithra bai agreeing to get the sale-deed
within 3 months by paying balance consideration of
Rs.50,000/-. Since the plaintiff has not paid balance
consideration, this defendant is not able to pay balance
consideration to said Sumithra Bai. Accordingly, the said
Sumithra Bai has forfeited advance amount. As such this
defendant has suffered a lot. Since the plaintiff has failed to
get the sale-deed within time limite, the plaintiff is not entitle
for relief of specific performance.
15. The plaintiff has produced original agreement at
Ex.P.1. I have thoroughly perused contents of agreement.
Nodoubt, there is a covenant at page-2 of Ex.P.1 agreement
which reads as under:
"
ಸದ ಜ ೕನ ಾಬು ಫಹ ಾಗೂ ಸ ೆ ೆಾ ಪ ಾರ ೆಚು
ಕ !"ಾ#ದು$ ಈ &ಾಖ(ಾ)ಗಳನು+ ಮ- ಖ. ಂದ ಸ ಪ 0ೊಂಡ ನಂತರ
ೕವ4 ಕ ೆದ ೇ5ೆ6ೆ ಬಂದು ಕ ಮಾದ ಕ ಯಪತವನು+ ಬ ೆ0 ಕ ಯಪತವನು+
”.
8ಸ9: ;ಾ 0 ೊಡು<ೆ ೕೆ
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From this, it is very clear that there is a clear recital in
Ex.P.1 agreement to sell that there is a mistake in RTC and
revenue records with respect to suit property. Added to this,
during the cross-examination at page-2 recorded by Court
Commissioner, the defendant has clearly admitted that
"
=ಾನು ಕ ಯದ ಕ ಾರು ಪತ ಬ ೆದ ನಂತರ ಓ? )@ದು ೊಂಡು ಈ ಎರಡು ಲC
. (2,00,00-00)
ರೂ ಗಳನು+ ಾ?Dಂದ ಪEೆದ ನಂತರ ಕ ಾರು ಪತ ೆF ಸG ;ಾ ರು<ೆ ೕ=ೆ
”.
ಎನು+ವ4ದು ಸ
From this, it is clearly goes to show that defendants
have known the recitals of Ex.P.1 agreement and they are
also having knowledge about the covenant mentioned in
page-2 of Ex.P.1 agreement. When such being the case,
defence taken by the defendants that there is no mistake in
the RTC and revenue records with respect to the suit
property on the date of agreement is not acceptable.
16. Further it is specific defence of the defendants that
plaintiff is not ready and willing to perform his part of
contract. But the defendants always ready and willing to
perform their part of contract under agreement. Nodoubt,
plaintiff has clearly stated in the plaint as well as chief-
examination affidavit stating that defendants have furnished
incomplete address in the agreement. Hence, it is not
possible to the plaintiff to approach the defendants at
Bangalore. When the defendants issued legal notice to the
plaintiff, then only they get correct address of the defendants
and they have issued reply notice to the defendants' counsel
calling upon the defendants to execute regular sale-deed by
furnishing survey sketch and other documents. Nodoubt, as
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per Land Revenue Act, survey sketch is very essential to
register the sale-deed pertaining to the agricultural land.
Admittedly, 2nd defendant is the owner of the suit property.
When such being the case, it is the duty of the 2nd
defendant to get the survey sketch by survey department.
Though the defendants have clearly taken defence that they
are always ready and willing to perform their part of contract,
but they have not produced survey sketch before the Court
to show that they have obtained survey sketch of the suit
property by survey department in order to execute regular
sale-deed. Ex.P.4 is the office copy of legal notice issued by
the plaintiff to the defendants' counsel which reveals that on
22-8-07 the plaintiff has called upon the defendants to
furnish survey sketch and rectified revenue records with
respect to suit property and to execute sale-deed in favour of
plaintiff by receiving balance consideration amount and he
has also clearly stated in the notice that he is always ready
and willing to perform his part of contract. On the otherhand,
defendant who is DW-1 in his cross-examination before the
Court deposed that
"
Hೆಬ ವ )ಂಗಳIJ =ಾನು ಮತು ಾ? Kೇ ಸ ೆ ಇ(ಾMೆ6ೆ ಅಳ<ೆ ;ಾಡಲು
. .
ಅ8 ೊO9&ೆ$ೕೆ ಆ ಬ6ೆQ &ಾಖ(ಾ) ಇ&ೆ ಅದಲJ&ೆ ಾ?ಯ ೈಯIJ =ಾನು ಅಳ<ೆ
3000 . ,
;ಾ ಸಲು ಪತ ಬರಹ6ಾರರ ಸಮCಮದIJ ರೂ ಗಳನು+ ೊO9&ೆ$ೕ=ೆ ನನ+ ೆಲಸದ
”.
ಒತ ಡ?ಂದ ಅಳ<ೆ ಾಯ ಏ=ಾD<ೆಂದು =ಾನು )@ದು ೊಳUಲು ಆಗIಲJ
As per contents of Ex.P.1, survey sketch and revenue
records should be rectified by the defendants at the expense
of plaintiff. But before the Court defendants deposed that he
himself has paid Rs.3000/- to the plaintiff to rectify survey
records. But he is not able to follow-up survey work. It is very
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clear that in the written statement defendant has nowhere
stated that he was paid Rs.3000/- to the plaintiff. Further it is
not stated that plaintiff and defendants have filed applications
to measure the suit land. Further during the cross-
examination recorded by the Court Commissioner, he has
stated that
" schedule
=ಾನು ಕ ಾರು ಪತ ಆದ ನಂತರ ಕ ಾರು ಸVತ ನು+ ಅಳ<ೆ ;ಾ 0
………... :28-1-2007
ಸ ೆ KೆFW ;ಾ 0ರು<ೆ ೕ=ೆ =ಾನು ಕ ಾರು ಪತ ವನು+ ? ರಂದು
-2007 ".
ಬ ೆದುೊO9ದು$ =ಾನು KೆFಚ ನು+ Hೆಬ ವ ರ ೊ=ೆ ಾರದIJ ;ಾ 0ರು<ೆ ೕ=ೆ
Further in another stretch he deposed that
" ,
ಕ ಾರು µÉqÀÆå¯ï ಸV) ನ ಸ ೆ KೆFWನ &ಾಖ(ೆಯನು+ =ಾX"ಾಲಯ ೆF
. schedule .
ಾಜರುಪ 0ಲJ ಅಳ<ೆ ;ಾ 0ದ ಕ ಾರು ಸV) ನ ಸ ೆ KೆFW &ಾಖ(ೆ ಇ&ೆ
, ,
KಾYಯು ಮುಂದುವ ೆದು ಸದ ಅಳ<ೆ ;ಾ 0ದ ಸ ೆ KೆFW ಸ ೆ ಆZೕ0ನIJ ಇ&ೆ ಎಂದು
".
ೇ@ರು<ಾ ೆ
From this it is very clear that defendants have not
received survey sketch from the survey department. Further
he clearly admitted that due to rush of work he is not able to
follow-plaintiff survey work of the suit land. Admittedly, sale
transaction between plaintiff and defendants is relating to
agricultural land. In order to register the sale-deed, survey
sketch with respect to the suit land is very much essential. In
this case, defendant is the owner of the suit property and it is
his duty to obtain survey sketch and other any rectified
revenue records. In this case the defendant has taken
defence that at the time of agreement to sell, there is no
mistake in the RTC or in the survey sketch with respect to
suit property. In this regard, I have perused RTC produced
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by the defendants for the year 2005 to 2008 at Ex.D.4 and
D.5 with respect to suit schedule property. On perusing the
same, which reveals that Sy.No.6 of Harapagondanahalli,
Holavanahalli hobli, Koratagere taluk is totally measuring 9
Acres 6 gts. including 3 gts. kharab and cultivable land
available in the said Sy.No. is 9 Acres 34 gts. Whereas in
Col.No.9, 2 Acres is standing in the name of one Yallappa
S/o.Earamuddaiah and 1 Acre 30 gts. in the name of Dodda
yallakka W/o.Dodda Papaiah and 1 Acre 30 gts. in the name
of Sarasanna S/o. Obalaiah, 3 Acres 26 gts. in the name of
2nd defendant H.G.Lokesh. On totaling all the extent, it is
found that totally 9 Acres 6 gts. is standing in the name of
above said persons. But it is not clarified that 3 gts. of kharab
whether it comes in the land of plaintiff or other persons.
Because only 9 Acres 3 gts. is cultivable land. But 9 Acres 6
gts. is made khatha in the name of totally 5 sons. But 3 gts.
kharab belongs to whom is not clarified. When such being
the case, measurement of the suit land is very much
essential to identify the fact that whether there is kharab land
in the suit property or entire 3 Acres 26 gts. is cultivable land.
Added to this, as I have already stated above that there is a
clear recital in Ex.P.1 agreement to sell that there is
difference in the RTC and survey record with respect to suit
property. In this regard, I seek to cite the following citation
reported in AIR 1930 P.C. 287 in case of Motilal Vs. Nanhelal
wherein the Hon'ble Supreme Court held that
“When a person having agreed to transfer the
cultivating rights in land, there is an implied covenant
on his part to do all things necessary to effect such
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transfer which would include an application to the
Revenue Officer to get sanction according to act”.
In this case, getting survey sketch of suit property to
get sale-deed registered is very much essential and it is the
liability cast on the defendants to obtain survey sketch. As I
have already stated above that defendants have not made
any efforts to obtain survey sketch and same is clearly
admitted by him in his cross-examination stating that he is
not able to follow up survey work due to rush of work. Further
he has also clearly admitted that still survey sketch is in the
survey department and he has not obtained. As per covenant
between the parties, within 3 months defendants should
rectify the mistake in RTC and survey records and to obtain
survey sketch and offer the plaintiff to get sale-deed
registered by paying balance consideration. No doubt, in this
case the readiness and willingness of the plaintiff to pay the
balance of sale consideration and to have sale-deed
registered in his name depending more on the defendants
producing the survey sketch after surveying the suit land by
survey Department. In the absence of any documentary
evidence to show that defendants have secured survey
sketch from the survey department in the suit schedule
property subsequent to the agreement to sell, it cannot be
said that plaintiff has failed to perform his part of contract
under the agreement to sell. Further it is also very clear that
subsequent to the agreement to sell defendants have not
intimated the plaintiff in writing intimating that they should
rectify survey sketch and survey records of suit property.
Therefore, it is not open to the defendants to take defence
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that plaintiff was not ready and willing to pay balance
consideration. Having gone through the entire materials
available on record, pleadings and materials on record
clearly indicates that it is the defendants who failed to
perform their part of obligation under agreement to sell in not
securing survey sketch and rectified RTC and survey records
of the suit schedule property by measuring by survey
department. Hence, I am of the clear view that it is a failure
on the part of defendants in not performing their part of
obligation, the sale transaction was not completed.
17. Learned counsel for defendants vehementally
argued stating that plaintiff has clearly admitted in his cross-
examination that he is having agricultural income of
Rs.3000/- only per year. When such being the case, plaintiff
is not in a position to mobilize remaining balance
consideration. Hence mere contending in the pleading that
he is ready and willing to perform his part of contract is not
sufficient. Even the plaintiff has not deposited balance
consideration amount to the Court. In support of his
arguments, he has also relied on many of the citations as
contended above. It is pertinent to note that citation relied by
the learned counsel for defendant is relating to ready and
willingness of the plaintiff and plaintiff must be always ready
with necessary financial resources and must have mental
attitude to perform his part of contract. The law laid-down in
the above said citations are relied by the defendants counsel
is relating to ready and willingness of the plaintiff. As I have
already opioned hereinabove that in this case performance
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of agreement is more depended on the defendants in
obtaining survey sketch and other rectified survey records
with respect to the suit property. When the defendants have
not completed their obligation in the agreement, question of
plaintiff is not ready and willing to perform his part of contract
does not arise. Further it is pertinent to note that the entire
sale consideration amount is Rs.2,27,500/- and plaintiff has
already paid Rs.2,00,000/- at a time on the date of
agreement and remaining balance consideration is
Rs.27,500/-. It is very clear that plaintiff has already paid
7/8th portion of consideration amount and remaining
consideration is only 1/8th portion and it cannot be said that
it is very difficult to the plaintiff to mobilize only 1/8th portion
of sale consideration as he has already paid 7/8th portion of
the sale consideration to the defendants. Hence the
arguments advanced by learned counsel for defendants that
plaintiff is not in a position to mobalise balance consideration
amount is not acceptable.
18. Further the defendant has taken specific defence
that since the plaintiff has agreed to pay balance
consideration within 3 months, defendant also entered into
agreement with one sumithra bai to purchased the site
belongs to her and also sale consideration was fixed for
Rs.2,50,000/- and defendant has paid advance amount of
Rs.2,00,000/- and agreed to pay balance consideration of
Rs.50,000/- within 3 months. Since the plaintiff has not paid
the balance consideration within 3 months, defendant is also
not able to pay balance consideration amount of Rs.50,000/-
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to SumithraBai. Hence she was terminated agreement
between herself and defendant and also forfeited advance
amount of Rs.2,00,000/-. Thereafter, defendants have
convened panchayath and then said Sumithra Bai returned
only Rs.1,00,000/- advance money out of Rs.2,00,000/-. In
order to prove the said fact, defendant also examined said
Sumithra bai at DW-2. No doubt, she has stated in her chief-
examination affidavit as per defence taken by the
defendants. Further she has clearly stated that she was
entered into agreement with the defendants on 10-2-2007.
Since the defendant has not paid balance consideration
amount within 3 months from the date of agreement, she has
terminated agreement and forfeited advance money. On
perusing Ex.P.7 copy of legal notice issued by the
defendants to the plaintiff, nodoubt, he has issued notice on
8-8-2007. But he has not stated anything regarding sale
transaction between defendants and DW-2 Sumithra Bai and
cancellation of agreement to sell and forfeited advance
amount of Rs.1,00,000/- by DW-2 and the loss sustained by
the defendants. If really defendants were entered into
agreement with the DW-2 Sumithra Bai and if she was
forfeited advance amount paid by these defendants,
definitely defendants should mention the said fact in the
notice issued by him to the plaintiff as per Ex.P.7. But he did
not contend anything regarding forfeiture of advance amount
to DW-2 belongs to plaintiff. Further more, in Ex.P.7
defendant has specifically stated that since the plaintiff has
not performed his part of contract within 3 months, he has
terminated agreement and also asked the plaintiff to receive
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back advance amount of Rs.2,00,000/-. Added to this,
defendant has not produced any agreement executed
between himself and DW-2. In the absence of documentary
evidence and in the averments of Ex.P.7 notice, I am of the
clear view that there is no agreement between the
defendants and DW-2 Sumithra bai. As stated by the
defendant it is falsely set up for the present case. Further
during the cross-examination of DW-1, 2nd defendant has
clearly admitted that
" 3 26
ನನ+ [ಾ6ಾಂಶದ ಎಕ ೆ ಗುಂ]ೆ ^0 ೕಣ ಜ ೕನನು+ ಾಜನುಗುಂ]ೆ
,
=ಾ ಾಯಣಪ`ನವ6ೆ ಕ ಯ ಕ ಾರು ;ಾ ೊO9&ೆ$ೕ=ೆ ಎನು+ವ4ದು ಸ ಯಲJ ಆದ ೆ
. 28-1-2007
;ಾತುಕ<ೆ ಆ#ದು$ ಅದು ರ&ಾ$#ರುತ &ೆ ?ಃ ರ ಕ ಯದ ಕ ಾನIJ ಅಂದ ೆ &ಾವ
”.
KಾV)ನ ಕ ಾನIJ =ಾ ಾಯಣಪ`ನ ಸG ಇ&ೆ ಎನು+ವ4ದು ಸ
From this, it is clearly goes to show that subsequent to
the suit agreement, this defendant had negotiated with one
Narayanapa to sell suit property in his favour. The said
Narayanappa is none other than one of the attesting witness
to suit agreement. This will goes to show that subsequent to
the agreement in favour of the plaintiff, defendant is trying to
again alienate the suit property in favour of somebody.
Hence he is not trying to obtain survey sketch and other
rectified revenue records with respect to suit property.
Defendant is only interesting to receive balance
consideration amount from the plaintiff. But intentionally he
has not made efforts to take survey sketch by surveying suit
land by survey department. This will goes to show that
defendants with malafide intention only to receive balance
consideration amount from the plaintiff he has not performed
his part of contract and the defence set-up by the defendants
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are false one. It is the defendants who are not ready and
willing to perform their part of contract. When the defendants
failed to obtain survey sketch and rectified revenue records,
how it is possible to the plaintiff to get sale-deed registered.
Hence, I am of the clear view that plaintiff has clearly
contended in his plaint as well as chief-examination affidavit
and in the reply notice issued by the plaintiff as per Ex. P.4 to
the defendants that plaintiff is always ready and willing to
perform his part of contract under suit agreement and plaintiff
also called the defendants under Ex.P.4 reply notice to
furnish survey sketch and rectified survey records and to
execute sale-deed by receiving balance consideration
amount. All these facts are clearly goes to show that plaintiff
is always ready and willing to perform his part of obligation
under the suit agreement and it is the defendants who have
not performed their part of their obligation. When such being
the case, defendants cannot forfeit advance amount of
Rs.2,00,000/- paid by the plaintiff. Further, time is not the
essence of contract in this case. As the burden is upon the
defendants to furnish survey sketch and other revenue
documents and to execute sale-deed. When the defendants
have failed to obtain necessary documents from the revenue
department, it cannot be said that plaintiff is not ready and
willing to perform his part of contract. For all these reasons, I
answer issue No.1 and 2 in the Affirmative and issue No.3 in
the Negative.
19. ISSUE NO.1 IN O.S.NO.3-08: The fact that
defendant Lokesh Rao is in possession and enjoyment of
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suit properties and he is the owner of the same is not
disputed. Further the plaintiff has also admitted that
defendant Lokesh Rao is in possession and enjoyment of the
suit properties. Hence, no much discussion is need to
answer this issue in the Affirmative.
20. ISSUE NO.2 IN O.S.NO.3/08 :- 2nd Defendant in
O.S.138/07 has filed O.S.3/08 for the relief of permanent
injunction stating that there is old tamarind tree in the suit
property and it is fruit yielding tree. Now plaintiffs in
O.S.138/07 are trying to harvest taking advantage of Ex.P.1
agreement to sell. But it is pertinent to note that DW-1
Lokesh Rao has not contended in his chief examination
affidavit regarding interference by the defendant with respect
to the suit schedule property. No doubt, defendant has
examined his father Gangadharappa as DW-3 and he has
filed chief-examination affidavit stating that plaintiff is
interfering with the defendant possession. But he has
contended in his chief-examination affidavit that suit sy.No.
property totally measuring 3 Acres 6 gts. and he has got 2
sons namely Lokesh Rao defendant and one Thulasirao and
they have got divided suit property and they are in separate
possession and enjoyment of the same, Which clearly goes
to show that DW-3 is not in possession and enjoyment of the
suit property. DW-3 is the only witness who deposed in
favour of defendants regarding interference by the plaintiff,
but there is no evidence produced by the defendants. The
pleadings of the defendants is remain as pleading without
proof. Defendant is having ample opportunity to depose
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regarding interference by the plaintiff even at the time of
cross-examination recorded by the Court Commissioner, but
he has not deposed anything regarding interference by the
plaintiff as alleged in O.S.3/08. But on the materials available
on record, I am of the clear view that cause of action shown
by the plaintiff in O.S.No.3/08 is not accruing to them and it is
only fancy suit filed by them since O.S.138/07 is filed against
them for the relief of specific performance. Hence, I answer
this issue in the Negative.
21. ISSUE NO.4 IN O.S.NO.138/07 :- Ordinary rule is
that, specific performance should be granted. It ought to be
denied only when equitable consideration point to its refusal
and circumstances shows that damages would constitute an
adequate relief. In the present case, the conduct of the
plaintiff is not been such as to this disentitle him to relief of
specific performance. He has acted clearly throughout and
there is nothing to show that by any act of omission of
commission he encouraged the defendant to enter into sale
agreement with the plaintiff. There is no evidence that
plaintiff secured an unfair advantage over defendant when
he entered into agreement, nor is there any thing to prove
that the performance of contract would involve the defendant
in some hardship which did not forcible. Added to this, in suit
agreement, it is clearly mentioned that
“
ಆ&ಾ# ಏ=ೆಂದ ೆ ನನ+ ಗೃಹಕೃತXದ ತ ಾ#ಯೂ ಾಗೂ ಜ ೕರುವ ಸcಳಕೂF =ಾವ4
ಾ0ಸುವ ಸcಳಕೂF ಬಹಳ ದೂರ^ದು$ =ಾವ4 ವXವKಾಯ ;ಾಡಲು <ೊಂದ ೆ ಇರುವ4ದ ಂದಈ
………..
ೆಳಕಂಡ ತಪdೕIನIJ ^ವ 0ರುವ ನಮ- ಕ ಯೆF ೊಡಲು ;ಾತ=ಾ ಈ ?ನ ಈ
………….”.
ಪತ ೆF ರುಜು ಾeರುವ
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From this, it is very clear that defendants are residing
far away from the suit schedule property and it is very difficult
to them to cultivate the suit property. Accordingly, they have
entered into sale transaction between the plaintiff. Further it
is also admitted fact that suit land of the plaintiff is also
abutting to the suit property and it is very convenient to the
plaintiff to cultivate the suit land along with his other
properties. As such, he has come forward to purchase the
suit property. Further it is also to be noticed that there is no
specific defence taken by the defendants in the written
statement that if the decree for specific performance is
granted on what hardship would be caused to him. In the
absence of such defence and considering the intention of the
defendant to part with the suit property in favour of 3rd
person., I am of the opinion that there is no reason why
plaintiff should not be granted relief of specific performance.
The materials available on record should force to grant
decree for specific performance to the plaintiff. Hence, I
answer issue No.4 in the Affirmative.
22. ISSUE NO.3 in O.S.NO.3/08 :- In view of my
findings on Issue No.2 in O.S.No.3/08, I am of the clear view
that plaintiff in O.S.No.3/08 has failed to establish alleged
interference and hence the relief of permanent injunction
cannot be granted.
23. ISSUE NO.5 in O.S.NO.138/07 :- In view of my
findings on Issue No.1 to 4 in O.S.No. 138/07, I am of the
clear view that plaintiff is entitle for decree for specific
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performance of suit agreement. In view of above findings and
reasons, I proceed to pass the following:
ORDER
1) Suit of the plaintiff Kempaiah filed in O.S.No.138/07
is hereby decreed with costs directing the defendants to
execute regular sale-deed in favour of plaintiff by receiving
balance consideration of Rs.27,500/- after obtaining survey
sketch and rectifying mistakes in the RTC and survey
records with respect to the suit schedule properties within 3
months.
2) Plaintiff is directed to deposit balance consideration
amount of Rs. 27,500/- to the Court within one month.
3) If the defendant fails to execute the sale-deed,
plaintiff is at liberty to get the sale-deed through the agency
of Court.
4) O.S.No.3-08 filed by the plaintiff H.G.Lokesh Rao is
hereby dismissed.
5) Draw decree accordingly.
6) Copy of the judgment shall kept in O.S.3/08.”
12. aggrieved by the aforesaid judgment and decree
passed in O.S.No.138/2007, the respondents-defendants filed an
appeal in R.A.No.102/2009 before the First Appellate Court, which
was contested by the appellant-plaintiff and the following points
were formulated by the First Appellate Court:
“1. Whether time is essential part of the contract?
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2. Whether the suit is barred by limitation?
3. Whether the granting of the Specific Performance was
proper?
4. Whether the impugned judgment and decree requires
interference by this Court?”
13. The First Appellate Court answered point Nos.1 and 2
in favour of the appellant-plaintiff by holding that time was not the
essence of the contract under the agreement and that the suit of
the plaintiff was not barred by limitation. However, while dealing
with the issue/question as to whether judgment and decree of the
Trial Court warranted interference and as to whether the appellant-
plaintiff was entitled to the discretionary and equitable relief of
specific performance, the First Appellate Court seems to have
invoked/applied the provisions contained in Section 20 of the
specific relief Act, 1963 (for short “the said Act of 1963”) and
consequently, reversed the judgment and decree of the Trial Court
insofar as it relates to granting specific performance in favour of the
plaintiff and accordingly, directed refund of the advance amount of
Rs.2,00,000/- paid by the plaintiff in favour of the defendants by
holding as under:
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“ 21. Point NO.3. With regard to the readiness and
willingness it is to be noted that the recitals of the agreement
are such that unless and until the rectification procedure was
completed, keeping the balance amount ready will be of no
use. It was the duty of the defendant to get the revenue
documents rectified so as to complete the sale transaction.
That has not been done as on date, which is implicit in the
decree because the trial court has granted the relief by
Specific Performance in the sense that the defendants were
to execute regular sale deed on receiving balance amount
after obtaining the survey sketch and the rectify the
mistakes. So after passing of the decree thereafter obtaining
the survey sketch and rectify the mistakes will cause
hardship to the defendant due to the escalation of the prices.
In such situation the readiness and willingness that is
required for the purpose of seeking the relief of Specific
performance is irrelevant. Orally the plaintiff is said to be
have been requesting for the registration of the sale deed the
agreement of the sale dated: 28.01.2007 and the legal notice
issued is 08-08-2007 and the legal notice issued is
08.08.2007. Unless and until the procedure and rectification
was completed by the defendants it was not possible to
execute sale deed. Due to the foregoing reasons this point is
answered in the negative.
22. Point No.4: The nature of the decree passed by
the trial court is against depending upon obtaining survey
records and to carryout the rectification in the RTC, Survey
records. To the extent of granting this nature of Specific
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Performance, there is need to interfere with the impugned
Judgment by this Court. This nature of the decree will unable
the plaintiff to get the sale deed executed as on date at a
price that was fixed as on the date the agreement. In the
meantime already about 4-4 ½ years have lapsed thereby
thereafter obtaining the survey sketch and then rectify the
survey records and the pahani will place the plaintiff to unfair
advantage. This turn will cause hardship to the defendant.
Hence it is appropriate for the defendant to return the
earnest amount at the 10% interest per annum. In the facts
and circumstances of the case to the extent of granting relief
of Specific Performance, this court is required to mould the
relief as above discussed. The dismissal of the OS 03/08
was proper by the court because the recitals of Ex.P1 clearly
show that the possession has never been handed over to the
plaintiff as on date and therefore this point is answered in the
affirmative.”
14. A perusal of the aforesaid reasoning of the First
Appellate Court in paragraph Nos.21 and 22 will indicate that at the
outset, the First Appellate Court has failed to consider and
appreciate the well settled position of law that for the purpose of
taking shelter/defence under Section 20 of the said Act of 1963, it
is absolutely essential and incumbent on the part of the defendants
to put forth necessary pleadings in this regard. In the instant case,
a perusal of the written statement filed by the respondents-
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defendants will clearly indicate that except denying and disputing
the various allegations and claim made by the plaintiff, no defence,
much less specific defence that the plaintiff was not entitled to the
discretionary and equitable relief of specific performance in the light
of Section 20 of the said Act of 1963 is not forthcoming and the
same is conspicuously absent in the written statement.
15. In this context, it is pertinent to extract Section 20 of
the Specific Relief Act, 1963, which reads as under:
“
20. Discretion as to decreeing specific performance.—
(1) The jurisdiction to decree specific performance is
discretionary, and the court is not bound to grant such relief
merely because it is lawful to do so; but the discretion of the
court is not arbitrary but sound and reasonable, guided by
judicial principles and capable of correction by a court of
appeal.
(2)The following are cases in which the court may properly
exercise discretion not to decree specific performance:—
(a) where the terms of the contract or the conduct of
the parties at the time of entering into the contract or
the other circumstances under which the contract
was entered into are such that the contract, though
not voidable, gives the plaintiff an unfair advantage
over the defendant; or
(b) where the performance of the contract would
involve some hardship on the defendant which he did
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not foresee, whereas its non-performance would
involve no such hardship on the plaintiff; or
(c)where the defendant entered into the contract
under circumstances which though not rendering the
contract voidable, makes it inequitable to enforce
specific performance.
Explanation 1.—Mere inadequacy of consideration, or the
mere fact that the contract is onerous to the defendant or
improvident in its nature, shall not be deemed to constitute
an unfair advantage within the meaning of clause (a) or
hardship within the meaning of clause (b).
Explanation 2.—The question whether the performance of a
contract would involve hardship on the defendant within the
meaning of clause (b) shall, except in cases where the
hardship has resulted from any act of the plaintiff subsequent
to the contract, be determined with reference to the
circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree
specific performance in any case where the plaintiff has
done substantial acts or suffered losses in consequence of a
contract capable of specific performance.
(4) The court shall not refuse to any party specific
performance of a contract merely on the ground that the
contract is not enforceable at the instance of the party.”
16. The Apex Court in the case of Beemaneni Maha
Lakshmi Vs. Gangumalla Appa Rao – (2019) 6 SCC 233, has
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categorically held that a specific defence/pleading by the defendant
in a suit for specific performance that the plaintiff would not be
entitled to the discretionary and equitable relief of specific
performance is absolutely essential and necessary before
considering the claim of the defendants that the plaintiff would not
be entitled to the relief of specific performance as hereunder:
“
15. Now so far as the submission on behalf of the
appellant that if the decree for specific performance of the
contract is passed after a number of years, it would cause
undue hardship to the defendant vendor and the reliance
placed upon the decision of this Court in P.R. Deb [P.R. Deb
and Associates v. Sunanda Roy, (1996) 4 SCC 423] is
concerned, it is required to be noted that in the written
statement the defendant has not pleaded any hardship to be
caused if the decree of specific performance of the contract
is passed against the defendant vendor.
16. At this stage, the decision of this Court in A. Maria
Angelena v. A.G. Balkis Bee [A. Maria Angelena v. A.G.
Balkis Bee, (2002) 9 SCC 597 : AIR 2002 SC 2385] is
required to be referred to. In the aforesaid case, the vendor
sought to raise the plea of hardship for the first time before
this Court and this Court did not permit the vendor to raise
such a plea of hardship by observing that as no plea as to
hardship if relief for specific performance is granted was
raised by the defendant vendor in written statement nor any
issue was framed that the plaintiff purchaser could be
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compensated in terms of the money in lieu of decree for
specific performance, such plea cannot be entertained for
the first time in appeal by way of SLP, more so, when there
are concurrent findings that the plaintiff was ready and willing
to perform his part of the contract has been recorded by the
lower courts. Therefore, the plea raised on behalf of the
vendor on hardship cannot be permitted to be raised now,
more particularly when no such plea was raised/taken in the
written statement.”
17. In the case of J.R. Shanmukhappa Vs. Jyotiba and
others – RSA No.100012/2017 dated 11.07.2023 (Dharwad
Bench), the Division Bench of this Court held as under:
“ 20. The Hon'ble Apex Court in the case of
Narinderjit Singh vs. North Star Estate Promoters Ltd.
reported in AIR 2012 SC 2035 , held that, escalation of price
is not a ground to deny specific performance of agreement to
sell, when seller defendant had neither pleaded hardship nor
produced any evidence to show that it will be inevitable to
order specific performance of agreement. Whereas, in the
instant case, the defendants neither pleaded hardship nor
produced any documents or evidence to show that it will be
inevitable to order specific performance of agreement.
21. From the perusal of the written statement filed by
the defendant, the defendant has neither pleaded nor lead
any evidence that in case if suit for specific performance is
decreed the defendant will be put to hardship. In the offence
of pleadings and proof the trial court ought have decreed the
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suit for specific performance of contract on the contrary
dismissed the suit.
22. Looking to any angle, the plaintiff proved
execution of agreement of sale, and payment of advance
sale consideration to the defendants. Further the plaintiff's
has proceed readiness and willingness to perform his part of
contract with the balance sale consideration and though the
defendants have not pleaded and proved any hardship for
performance of the contract. In view of above discussions,
we answer points No.(i) and (ii) in the affirmative.”
18. As stated earlier, in the entire written statement, while
disputing and denying the claim of the plaintiff on merits, the
respondents-defendants have not contended anywhere that the
plaintiff would not be entitled to the discretionary and equitable
relief of specific performance or that the plaintiff would get an unfair
advantage in the event his suit is decreed nor taken up a
contention that in the event specific performance is ordered, the
respondents-defendants would be put to irreparable injury and
hardship. It follows therefrom that in the absence of any pleading or
evidence as regards the bar under Section 20 of the specific relief
Act, I am of the considered opinion that the First Appellate Court
clearly misdirected itself in reversing the Judgment and Decree of
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the Trial Court granting specific performance without there being
any pleading or evidence in this regard put forth by the defendants.
19. A perusal of the findings recorded by the First
Appellate Court at paragraph Nos.21 and 22 of the impugned
judgment and decree will indicate that the same is based on
surmises and conjectures and the First Appellate Court proceeds
on the erroneous basis that since the plaintiff did not make efforts
to obtain the survey sketch and get the RTC rectified, the plaintiff
would not be entitled to the equitable relief of specific performance
of contract. In this regard, it is relevant to state that in the light of
the undisputed fact that the respondents-defendants were
undisputedly the owners of the suit schedule property, it was
incumbent upon them to perform their part of the contract under the
agreement, which clearly stipulated that the defendants were duty
bound to get the RTC and survey sketch rectified and thereafter,
execute a registered sale deed in favour of the plaintiff and the
inaction on the part of the defendants to perform their part of
obligation under the agreement cannot be held against the plaintiff
for the purpose of denying him the relief of specific performance.
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20. Under these circumstances, the impugned judgment
and decree passed by the First Appellate Court denying/declining
to grant the relief of specific performance of contract without
assigning cogent or valid reasons is clearly illegal and the same
deserves to be set aside and the decree judgment and decree of
the Trial Court deserves to be deserves to be restored.
Accordingly, the substantial questions of law Nos.1 and 2 are
accordingly answered in favour of the appellant.
21. In the result, I pass the following:
ORDER
i) The appeal is hereby allowed.
ii) The judgment and decree dated 29.06.2012 passed in
R.A.No.102/2009 passed by the First Appellate Court is
hereby set aside.
iii) The judgment and decree dated 29.06.2008 passed in
O.S.No.138/2007 passed by Trial Court is hereby restored.
iv) The suit of the appellant-plaintiff in O.S.No.138/2007 is
decreed as prayed for.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMC: List No.: 1 Sl No.: 10