- 1 - NC: 2025:KHC:9517 RSA No. 945 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 945 OF 2015 (SP) BETWEEN: SMT. SIDDARAMAKKA, W/O LATE PUTTAIAH, AGED ABOUT 70 YEARS, REP BY HER GRA HOLDER, B.P.LOKESH, S/O LATE PUTTAIAH, AGED ABOUT 40 YEARS, R/O HEGGERE VILLAGE, SRIRAMPURA HOBLI - 577 542, HOSADURGA TALUK, CHITRADURGA DISTRICT. …APPELLANT [BY SRI VIJAYA KUMAR S.C., ADVOCATE (PH)] AND: 1. R.V. KRISHNAMURTHY S/O VENKATAPPA, AGED ABOUT 70 YEARS, 2. H.K. DEEPAK S/O R.V.KRISHNAMURTHY, AGED ABOUT 50 YEARS, BOTH ARE AGRICULTURISTS, R/O SRIRAMPURA, HOSADURGA TALUK, CHITRADURGA DISTRICT. 3. H.G.VENKATESHAPPA S/O GUDDADARANGAPPA, AGED ABOUT 53 YEARS, R/O HEGGERE VILLAGE, SRIRAMPURA HOBLI - 577 542, HOSADURGA TALUK, CHITRADURGA DISTRICT. …RESPONDENTS Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:9517 RSA No. 945 of 2015 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.02.2015 PASSED IN R.A.NO.9/2010 ON THE FILE OF THE ITINERARY SENIOR CIVIL JUDGE AT HOSADURGA, DISMISSING THE APPEAL, AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.01.2010 PASSED IN O.S.NO.215/2005 ON THE FILE OF THE PRL.CIVIL JUDGE, (JR.DN) & JMFC AT HOSADURGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 20.02.2015 passed by Itinerary Senior Civil Judge, Hosadurga, in R.A.no.9/2010 and judgment and decree dated 27.01.2010 passed by Prl. Civil Judge (Jr.Dn.) & JMFC., Hosadurga, in O.S.no.215/2005, this appeal is filed . 2. Brief facts as stated are that, appellant herein filed O.S.no.215/2005 for relief of specific performance and permanent injunction in respect of a vacant site bearing no.217 (new), 208 (old) ('suit property' for short) situated at Heggere village, Sriramapura Hobli, Hosadurga Taluk. In plaint, it was stated defendants no.1 and 2 were owners of Mangalore tiled house in suit property. On 08.12.2003, they executed agreement of sale after receiving Rs.25,000/- as advance sale consideration and agreeing to execute registered sale deed by - 3 - NC: 2025:KHC:9517 RSA No. 945 of 2015 receiving balance amount out of total sale consideration of Rs.95,000/- as and when called upon by plaintiff. Agreement also mentioned about delivery of possession. 3. It was further stated, on 14.07.2005, defendants no.1 and 2 executed registered sale deed in favour of plaintiff's son in respect of Mangalore Tiled house bearing new no.214 (old no.208) and agreed to execute registered sale deed in respect of vacant site as and when called by plaintiff. But, failed to execute sale deed, when called upon during first week of August, 2005. When they failed to comply even after receipt of legal notice dated 12.08.2005, got issued by plaintiff and were trying to alienate suit property and interfering with possession, suit was filed. 4. On appearance, defendant no.2 filed written statement. Same was adopted by defendant no.1. They admitted being owners of suit property and execution of agreement of sale in favour of plaintiff on 08.12.2003. Even execution of registered sale deed in respect of Mangalore tiled house in favour of plaintiff's son was also admitted. But, contended suit was bad for non-joinder/mis-joinder of necessary parties as purchaser of suit property was not arrayed - 4 - NC: 2025:KHC:9517 RSA No. 945 of 2015 as party to suit. It was stated suit property was sold to defendant no.3 under registered sale deed dated 24.08.2004 for Rs.16,000/- and delivered possession. It was contended that plaintiff had concocted agreement of sale by altering measurements and boundaries without their knowledge to grab same. Therefore, prayed for dismissing suit. 5. During pendency of suit, purchaser of suit property from defendant no.1 and 2 was impleaded as defendant no.3. He filed separate written statement, denying entire plaint averments and contending that after purchasing suit property from defendants no.1 and 2 on 24.08.2004, he had got khata mutated in his name and was in possession from date of purchase. Hence, prayed for dismissal of suit. 6. It was submitted, defendant no.3 had filed O.S.no.81/2006 against present plaintiff for permanent injunction against interference in respect of suit property. Said suit was clubbed with present suit. Based on contention, trial Court framed separate issues as follows: ISSUES: in O.S.215/2005: 1. Whether the plaintiff proves that the defendants no.1 and 2 have executed an agreement of sale in her favour on 08.12.2003 with respect to schedule - 5 - NC: 2025:KHC:9517 RSA No. 945 of 2015 properties by receiving advance amount of Rs.25,000/-? 2. Whether the plaintiff further proves that the defendants no.1 and 2 had also received the remaining balance amount of Rs.70,000/- from her on 19.12.2003? 3. Whether the plaintiff further proves her readiness and willingness to perform her part of contract to purchase the suit schedule property? 4. Whether the plaintiff proves her possession over the suit schedule property as on the date of the suit? 5. Whether the plaintiff further proves the alleged refusal of defendant no.1 and 2 to execute registered sale deed in her favour with respect to the suit schedule property? 6. Whether the plaintiff proves the alleged interference of the defendants and their attempt of alienation of the suit property illegally as alleged? 7. Whether the defendants prove that the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties? 8. Whether the plaintiff is entitled to the reliefs claimed? 9. What decree or order? ISSUES: in O.S.no.81/2006 1. Whether the plaintiff proves that he is in exclusive possession and enjoyment of the suit schedule property as on the date of suit? 2. Whether the plaintiff proves the alleged interference of the defendant? 3. Whether the plaintiff is entitled for the relief as sought? 4. What decree or order? - 6 - NC: 2025:KHC:9517 RSA No. 945 of 2015 7. On behalf of plaintiff, her power of attorney holder and two others were examined as PWs.1 to 3 and got marked Exhibits P1 to P6. In rebuttal, defendants examined DWs.1 to 3 and got marked Exhibits D1 and D2. 8. On consideration, trial Court answered issues no.1 to 7 in negative and issue no.9 by dismissing O.S.no.215/2005. It answered issues no.1 to 3 in affirmative and issue no.4 by decreeing O.S.no.81/2006 and permanently restraining present plaintiff from interfering with peaceful possession and enjoyment of suit property by defendant no.3. 9. Aggrieved, plaintiff filed R.A.no.9/2010 on various grounds. Based on same, first appellate Court framed following: POINTS: 1. Whether the plaintiff proves that the defendants no.1 & 2 have executed an agreement of sale in her favour on 08.12.2003 in respect of suit schedule property after receipt of advance amount of Rs.25,000/- and delivered the possession of the suit schedule property? 2. Whether the plaintiff further proves that, the defendants no.1 & 2 have received remaining balance amount of Rs.70,000/- from the plaintiff on 19.12.2003? 3. Whether the plaintiff proves that, she is always ready and willing to perform her part of contract? - 7 - NC: 2025:KHC:9517 RSA No. 945 of 2015 4. Whether the plaintiff proves the alleged interference made by the defendants in alienation of the suit schedule property illegal? 5. Whether the plaintiff is entitled for the relief of specific performance of contract as prayed for in the plaint? 6. Whether the appellant/plaintiff has made out a grounds to interference in the judgment and decree passed by the trial Court by this Court? 7. What order or decree? 10. On consideration, it answered points no.1 to 6 in negative and point no.7 by dismissing appeal. Aggrieved, plaintiff had filed this appeal. 11. Sri Vijaya Kumar S.C., learned counsel for appellant submitted that impugned judgment and order passed by both Courts were contrary to law and passed without proper appreciation of evidence on record. It was submitted, plaintiff had filed suit for specific performance of Ex.P1 - agreement of sale dated 14.07.2005. Defendants contended agreement was not in respect of land, but, only in respect of building and suit was filed by altering boundaries of suit property. 12. Therefore, to prove agreement, he examined its scribe as PW.3, who deposed in favor of plaintiff. Thus, execution of agreement of sale was admitted. Such being case, - 8 - NC: 2025:KHC:9517 RSA No. 945 of 2015 dismissal of suit on ground of failure of plaintiff to prove execution of agreement of sale was not justified. It was submitted, both Courts failed to order for return of earnest money paid. Therefore, proposed following substantial questions of law: a. Whether the judgment and decree passed by the Courts below is sustainable in law when the same were passed without verifying the document on record, particularly Ex.P1 and Ex.D1 and D2? b. whether the Courts below were justified in not ordered for refund of the excess money paid by the plaintiff to the defendants? 13. Heard learned counsel and perused judgment and decree. 14. This is plaintiff's second appeal against concurrent dismissal of suit for specific performance. 15. Admittedly, plaintiff's suit for specific performance of Ex.P1 - agreement of sale was clubbed with suit for permanent injunction filed by defendant no.3, purchaser of suit property from present plaintiff's vendors namely defendants no.1 and 2. Thus, both suits were in respect of same suit property. - 9 - NC: 2025:KHC:9517 RSA No. 945 of 2015 16. Indisputably, plaintiff's suit for specific performance was dismissed, while suit for permanent injunction filed by defendant no.3 against present plaintiff came to be decreed. Though, present plaintiff appears to have questioned both decrees in R.A.no.9/2010, on its dismissal, present second appeal is filed challenging concurrent decree of dismissal of suit for specific performance. Thus, decree of permanent injunction protecting possession of suit property by defendant no.3, against present plaintiff has attained finality and thereby raising questions about maintainability of present appeal. 17. Besides, while passing impugned decree, trial Court specifically held that plaintiff had created Ex.P1 document with regard to suit property, by referring to overwriting on Ex.P1 so as to include vacant land in addition to house property, apart from referring to oral evidence of plaintiff and defendant witnesses. 18. Appellate Court on re-appreciation concurred with findings and fact that Ex.P1 - agreement of sale, based on which suit filed for specific performance was tampered and as such unenforceable. Besides, decree of permanent injunction - 10 - NC: 2025:KHC:9517 RSA No. 945 of 2015 granted in favour of defendant no.3 against plaintiff in respect of suit property has attained finality. 19. Under above circumstances, no substantial questions of law arise for consideration. Consequently, appeal is dismissed. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 39