- 1 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100591 OF 2022 (SP-) BETWEEN: BASAGOUDA S/O. PARAGOUDA PATIL, AGE. 54 YEARS, OCC. AGRICULTURE, R/O. SAVASUDDI- 591235, TQ. RAIBAG, DIST. BELAGAVI. …APPELLANT (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: YAMANAPPA S/O. LAKKAPPA MUDALAGI, AGE: 54 YEARS, OCC: AGRICULTURE, R/O. SAVASUDDI-591235, TQ: RAIBAG, DIST: BELAGAVI. …RESPONDENTS (BY SRI. CHETAN MUNNOLI AND SMT. SURABHI KULKARNI, ADVOCATES) THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.04/2019 DATED 30.11.2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC., RAIBAG AND ALSO SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.SNO.662/2011 DATED 23.01.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC., RAIBAG AND DISMISS THE SUIT BEARING O.S.NO.662/2011 IN ITS ENTIRETY, IN THE INTEREST OF JUSTICE AND EQUITY. MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.24 13:11:54 +0530 - 2 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant challenging the judgment and decree dated 30.11.2021 in R.A.No.4/2019 on the file of the Senior Civil Judge and JMFC at Raibag1 dismissing the appeal and confirming the judgment and decree dated 23.01.2019 in O.S.No.662/2011 on the file of the Additional Civil Judge and JMFC at Raibag2 decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the defendant was the owner in possession of the suit schedule property and has agreed to sell the suit schedule property as per the agreement of sale dated 05.11.2008 for a sum of Rs.4,00,000/- and in this regard received advance of 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 Rs.3,44,000/- with an understanding to repay the balance of Rs.56,000/- at the time of execution of the registered sale deed. It is also stated in the plaint that, the time stipulated to register the sale deed was on or before 05.11.2011. Since the defendant, prolonged for execution of the registered sale deed and as such the plaintiff has caused legal notice dated 18.10.2011 calling upon the defendant to execute the registered sale deed in respect of the suit schedule property by receiving balance consideration of Rs.56,000/-. Since the defendant, failed to give reply and as such the plaintiff has filed O.S.No.662/2011 on the file of the Trial Court seeking relief of specific performance of the agreement dated 05.11.2008. 4. On service of notice, the defendant entered appearance and filed detailed written statement and took up a contention that the said agreement is a security deed for hand loan of Rs.2,00,000/- at the rate of interest at 2% p.m. It is also stated in the written statement that, the - 4 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 said agreement is in consonance with the time stipulated to complete the entered transaction by 05.11.2011 and accordingly sought for dismissal of the suit. 5. The Trial Court after considering the pleadings on record has formulated issues for its consideration. In order to establish their case, the plaintiff has examined three witnesses as PW.1 to PW.3 and got marked four documents as Exs.P.1 to P.4. The defendant has examined three witnesses as DW.1 to DW.3 and got marked 44 documents, which were marked as Exs.D.1 to D.44. The Trial Court after considering the material on record, by its judgment and decree dated 23.01.2019 decreed the suit and also directed the defendant to execute the registered sale deed within two months by receiving the balance consideration of Rs.56,000/-. Feeling aggrieved by the same, the defendant has preferred R.A.No.4/2019 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, dismissed the appeal, - 5 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 consequently confirmed the judgment passed by the Trial Court in O.S.No.662/2011. Hence, the present Regular Second Appeal is filed by the defendant. 6. I have heard Mr.Shriharsh A Neelopant, learned counsel appearing for the appellant and Mrs.Surabhi Kulkarni, learned counsel appearing for the respondent. 7. Mr.Shriharsh A Neelopant, learned counsel appearing for the appellant inviting the attention of the Court to the agreement dated 05.11.2008 and contended that the time stipulated in the said agreement for completion of the transaction was 05.11.2011 which is the period of three years for repayment of the loan availed by the defendant from the plaintiff and the said aspect has not been considered by both the Courts below and accordingly he submitted that interference is called for under Section 100 of the Code of Civil Procedure. 8. It is also contended by the learned counsel appearing for the appellant that, the finding recorded by - 6 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 both the Courts below requires interference on the sole ground that the total extent of the land was 3 acres 15 guntas and therefore the same cannot be sold for a meager amount of Rs.4,00,000/- and the said aspect ought to have taken as a judicial notice by both the Courts below and accordingly sought for interference of this Court. 9. Per contra, Mrs.Surabhi Kulkarni, learned counsel appearing for the respondent sought to justify the impugned judgments passed by the Courts below. She further contended that the agreement of sale dated 05.11.2008 is a registered document and therefore the contention raised by the learned counsel for the appellant herein cannot be accepted. 10. In the light of the submission made by the learned counsel appearing for parties and on careful examination of the finding recorded by both the Courts below, the same would indicate that, the defendant is the owner of the suit schedule property and has entered into - 7 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 registered sale agreement dated 05.11.2008 with the plaintiff. Copy of Ex.P.1 - registered agreement of sale was made available by the parties. On careful examination of the recitals in the said agreement of sale, the plaintiff has paid sum of Rs.3,44,000/- as advance amount and agreed to pay the remaining part of sale consideration of Rs.56,000/- to the defendant at the time of execution of the registered sale deed. It is also forthcoming from the recitals in the agreement of sale that, the defendant intends to sale the schedule property and nothing is stated in the agreement about the said consideration has been made in lieu of the loan being availed by the defendant from the plaintiff. Therefore, the contention raised by the learned counsel for the appellant cannot be accepted. 11. That apart, the plaintiff has issued legal notice dated 18.10.2011 calling upon the defendant to execute the registered sale deed and for the best known to the defendant, he has not replied to the same, which makes it clear that the said agreement was executed to sell the suit - 8 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 schedule property in favour of the plaintiff. In the backdrop of these aspects and following the declaration of law made by the Hon’ble Supreme Court in the cases of C.S.Venkatesh vs A.S.C.Murthy (D) By Lrs. reported in (2020) 3 SCC 280 and Sukhwinder Singh vs Jagroop Singh reported in AIR 2020 SC 4865, wherein the plaintiff herein has paid more than 80% of the sale consideration in favour of the defendant and therefore I find force in the submission made by the learned counsel for the respondent that both the Courts below have appreciated the material on record in right perspective and have exercised discretionary power vested with them based on the documents on record. Therefore, I am of the view that no interference is called for in this appeal. The appellant herein has not made out a case for interference under Section 100 of the Code of Civil Procedure for formulation of substantial question of law as required under law. - 9 - NC: 2025:KHC-D:575 RSA No. 100591 of 2022 12. In the result, the appeal fails and is accordingly dismissed. Sd/- (E.S.INDIRESH) JUDGE SH, CT:ANB List No.: 1 Sl No.: 28