- 1 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 100225 OF 2023 (SP) BETWEEN: SMT. SHOBHA W/O SHIVAJI @ SHIVAPPA POL, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: ATHANI, TQ: ATHANI, DIST: BELAGAVI-591 304. … APPELLANT (BY SRI. SIDHANTI PRASAD RAMESHRAO, ADVOCATE) AND: 1. SMT. LAXMIBAI W/O MURIGEPPA BHANDARI, AGE: 56 YEARS, OCC: AGRI. AND HOUSEHOLD WORK, R/O: KURUBAR GALLI, SANKONATTI, TQ: ATHANI, DIST: BELAGAVI-591 304. 2. SHRI. MURAGESH S/O SHIVAPPA @ SHIVAJI POL, AGE: 41 YEARS, OCC: SERVICE, R/O: ATHANI, TQ: ATHANI, DIST: BELAGAVI-591 304. … RESPONDENTS (BY SRI. H.R. DESHPANDE, ADVOCATE FOR R1; R2-SERVED AND UNREPRESENTED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20.03.2023 PASSED IN O.S.NO.337/2017 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, ATHANI. THIS APPEAL, COMING ON ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the plaintiff/appellant questioning the judgment and decree passed in OS No.337/2017, dated 20.03.2023, by the Prl. Senior Civil Judge, Athani1, thereby, suit filed by the plaintiff for specific performance of contract is dismissed. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. Brief facts of the case are as under: 3. The defendant No.1 is owner of the suit schedule land and according to the plaintiff, the husband of defendant No.1 had offered the suit schedule land for sale. Accordingly, an agreement of sale was executed on 29.12.2014 for total sale consideration amount of Rs.12,90,000/- and a sum of Rs.1,00,000/- was given as an earnest money to the husband of defendant No.1. Subsequently, the husband of defendant 1 Hereinafter referred to as ‘trial Court’ - 3 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 No.1 died in the year 2017. Since, defendant No.1 has not come forward to execute the sale deed, therefore, the plaintiff has got issued legal notice on 08.11.2016. Inspite of it, the defendant No.1 did not turnout to execute registered sale deed. Therefore, filed a suit for specific performance of contract. 4. Further it is the case of the plaintiff that during subsistence of agreement of sale, defendant No.1 has sold half portion of the suit schedule land in favour of the defendant No.2. Therefore, filed a suit for specific performance of contract by impleading defendant No.2 also. 5. On the suit summons issued, the defendant No.1 appeared and filed written statement that her husband had never executed agreement of sale and the case of the plaintiff that the husband of defendant No.1 had executed agreement of sale is false one. Therefore, defendant No.1 denied the entire agreement of sale. Thus, prays to dismiss the suit. 6. The defendant No.2 had filed written statement by saying that the husband of defendant No.1 has sold half - 4 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 portion of the suit schedule land towards eastern side to the defendant No.2 for valuable consideration of Rs.8,00,000/-. Therefore, prays to dismiss the suit. 7. Based on the pleadings, the trial Court has framed the following issues: ISSUES i. Whether the plaintiff proves that the Murigeppa Mallappa Bhandari was executed an agreement of sale on 29.12.2014 in her favour by receiving Rs.1,00,000/- as earnest money out of Rs.12,90,000/- sale consideration amount in the presence of attesting witnesses in respect of suit schedule property? ii. Whether the plaintiff proves that she is ready and willing to perform her part of contract? iii. Whether the defendant No.1 proves that the plaintiff has created the alleged agreement of sale? iv. Whether the defendant No.2 proves that he purchased eastern 1 acre 3 guntas of the suit land on 17.2.2016 from deceased Murigeppa Bhandari for valuable - 5 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 consideration of Rs.8 lakhs and he is bonafide purchaser for value? v. Whether the plaintiff is entitled for the reliefs as sought for? vi. What order or decree? 8. The trial Court has dismissed the suit by holding that the plaintiff has failed to prove that the husband of defendant No.1 had executed the agreement of sale by receiving earnest money of Rs.1,00,000/- out of total sale consideration of Rs.12,90,000/- in the presence of attesting witnesses. Further observed that, the plaintiff has failed to prove that the plaintiff is again wiling to perform her part of contract. The trial Court held that the defendant No.1 proved the fact that the plaintiff has created alleged agreement of sale. Further, held that the defendant No.2 failed to prove that he has purchased eastern half portion measuring 1 acre 03 guntas of land on 17.02.2016 from the husband of defendant No.1 for sale consideration of Rs.8,00,000/-. Therefore, it is the observation of the trial Court that the husband of defendant No.1 has never executed agreement of - 6 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 sale and also has not sold half of the suit land in favour of the defendant No.2. Thus, the trial Court has dismissed the suit. 9. Being aggrieved, the plaintiff has preferred the appeal by raising various grounds in the memorandum of appeal. 10. Learned counsel for the appellant/plaintiff submitted that the husband of defendant No.1 had executed agreement of sale in presence of attesting witnesses and this is not correctly appreciated by the trial Court. Hence, submitted that the finding given by the trial Court is erroneous. Further submitted that the plaintiff was never willing to perform her part of contract. Further submitted that, since the husband of defendant No.1 had sold half portion of the land in favour of defendant No.2 but denied to execute the sale deed in favour of the plaintiff. So it is the malafide intention of defendant No.1. Therefore, under these grounds prays to allow the appeal and decree the suit as prayed for. 11. On the other hand, learned counsel for defendant No.1 submitted that the husband of defendant No.1 has never - 7 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 executed agreement of sale. The defendant No.2 is none other than the son of the plaintiff. Therefore, both the plaintiff and defendant No.2 colluded each other to knock off the entire property. Therefore, the suit filed is frivolous one and which is rightly appreciated by the trial Court. Hence, dismissal of suit need not be interfered with. Hence, prays to dismiss the appeal. 12. Upon hearing arguments on both sides, the following points arise for consideration: i. Whether, under the facts and circumstances involved in the case, plaintiff proves that the husband of defendant No.1 had executed agreement of sale dated 29.12.2014 at Rs.12,90,000/- and defendant No.1 has received earnest amount of Rs.1,00,000/- from the plaintiff? ii. Whether, under the facts and circumstances involved in the case, defendant No.2 proves that the husband of defendant No.1 had executed registered sale deed in favour of defendant No.2 to the extent of half portion of the suit schedule land by virtue of sale deed dated 17.02.2016? - 8 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 iii. Whether, the judgment and decree passed by the Trial Court requires interference by this Court? 13. Admittedly, the defendant No.1 and her deceased husband are the owners of the suit schedule land. It is the case of the plaintiff’s that the husband of defendant No.1 during his lifetime has executed an agreement of sale dated 29.12.2014 for total sale consideration amount of Rs.12,90,000/- and out of which, he has received Rs.1,00,000/- as earnest money. The trial Court has disbelieved the execution of agreement of sale upon appreciating the evidence on record. The trial Court has observed that upon cross-examination of PWs-1 to 4, they have failed to demonstrate as to for what necessity the husband of defendant No.1 had intended to sell half portion of the suit schedule property. PW-2 is not attesting witness to the Ex.P3-agreement of sale. PW-3 is stated to have been as attesting witness to Ex.P3-agreement of sale, but deposed that he does not know the persons who have put the signatures as witnesses to the Ex.P3. Therefore, the execution - 9 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 of agreement of sale is proved to be doubtful one. Further, the evidence appreciated to the aspect that in Ex.P3- agreement of sale at Sl.No.2 of the witness is kept blank. The trial Court has observed that during the lifetime, the thumb impression of the husband of defendant No.1 was obtained on the blank paper. Therefore, it was created as an agreement of sale. The trial Court appreciated the contents in agreement of sale along with the alleged signature and thumb impression and formed opinion that Ex.P3 is the created one. 14. It is proved that the defendant No.2 is none other than son of the plaintiff. It is the defence of the defendant No.2 that the husband of defendant No.1 has sold half portion of the suit schedule land towards eastern side in favour of defendant No.2 on 17.02.2016 to the extent of 1 acre 23 guntas but the defendant No.2 has not produced any documents to prove that the husband of defendant No.1 had sold 1 acre 23 guntas in favour of the defendant No.2. 15. Though the defendant No.2 who is examined as DW-3 had stated that the husband of defendant No.1 had - 10 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 executed registered sale deed, which is produced as per Ex.P5, admittedly, in the cross-examination, DW3 had stated that, he does not know who has produced Ex.P5-sale deed. The defendant No.2 being DW-3 as a witness had admitted that the defendant No.1 has not signed to Ex.P5. The trial Court appreciated the evidence on record that the defendant No.2 is son of the plaintiff. They have pleaded the ignorance in their evidence regarding the transactions held between the husband of defendant No.1 and the plaintiff and the transactions between the plaintiff and defendant No.2. Therefore, on all preponderance of probabilities, it is proved that the plaintiff and defendant No.2 being mother and son have colluded each other to knock off the entire property. Thus, the defendant No.2 has taken pleading in the written statement that the husband of defendant No.1 had executed sale deed. 16. The plaintiff admittedly is a home maker. The plaintiff has not proved what is her source of income so as to purchase the land. It is stated that the husband of plaintiff is an agriculturist. But the plaintiff being home maker what was - 11 - HC-KAR NC: 2025:KHC-D:7521 RFA No. 100225 of 2023 her source of income to purchase the land to pay earnest amount of Rs.1,00,000/-, there is no evidence by the plaintiff. Therefore, the trial Court is correct in dismissing the suit. Therefore, there is no good ground made out to entertain the appeal. Thus, the appeal is liable to be dismissed. Accordingly, I answer points No.(i), (ii) and (iii) in the ‘negative’. 17. In the result, I proceed to pass the following: ORDER i. The appeal is dismissed. ii. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM CT:BCK LIST NO.: 1 SL NO.: 14