- 1 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100445 OF 2018 (-) BETWEEN: KRISHNAPPA S/O. SHIDDAPPA HANASHI, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: HOOLI, TQ: SAUNDATTI, DIST: BELAGAVI, PIN CODE: 591126. …APPELLANT (BY SRI. SANGRAM S KULKARNI AND SHARAD M. PATIL, ADVOCATES) AND: 1. SHRISHIDDAPA S/O. KENCHAPPA AJJANNAVAR SINCE DECEASED BY HIS LRS, SMT.SIDDAVVA KOM SIDDAPPA AJJANNAVAR, AGE: 60 YEARS, OCC: COOLIE, R/O: HOOLI, TQ: SAVADATTI, DIST: BELAGAVI, PIN CODE: 591126. 2. SHRI.SANGAMESH S/O. SIDDAPPA AJJANNAVAR, AGE: 30 YEARS, OCC: MILITARY SERVICE, R/O: HOOLI, TQ: SAVADATTI, DIST: BELAGAVI, PIN CODE: 591126. 3. SHRI.KASHPPA S/O. SIDDAPPA AJJANNAVAR, AGE: 28 YEARS, V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.17 11:52:52 +0530 - 2 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 OCC: COOLIE, R/O: HOOLI, TQ: SAVADATTI, DIST: BELAGAVI, PIN CODE: 591126. 4. SHRI.ITTAPPA @ VITTAPPA S/O. SIDDAPPA GULAGUNJI, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: HOOLI, TQ: SAVADATTI, DIST: BELAGAVI, NOW R/AT: SOMAPOORONI, NARAGUND, TQ: NARAGUND, DIST: GADAG, PIN CODE: 582207. …RESPONDENTS (BY SMT. SHAILA BELLIKATTI, ADVOCATE FOR C/R1 TO R3) ------ THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN REGULAR APPEAL NO.1/2013 DATED 23.01.20185 BY THE II ADDL. DISTRICT & SESSIONS JUDGE, BELAGAVI AND THE JUDGMENT AND DECREE IN O.S.NO.52/2007 PASSED BY THE SENIOR CIVIL JUDGE, SAVADATTI, DATED 28.11.2012. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant No.2 challenging the judgment and decree dated 23.04.2018 in R.A.No.1/2013 on the file of the I Additional District and Sessions Judge, Belagavi1 dismissing the appeal and confirming the judgment and decree dated 28.11.2012 in O.S.No.52/2007 on the file of the Senior Civil Judge, Saundatti2 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. The facts in nutshell for the purpose of adjudication of this appeal are that defendant No.1 is the owner of property bearing Sy.No.327/3B+4 measuring 14 acres 2 guntas situate at Hooli village of Saundatti taluk. The plaintiff and defendant No.1 have entered into an agreement of sale on 30.06.2005 whereby defendant No.1 agreed to sell portion of the land to an extent of 6 acres 2 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 guntas in favour of the plaintiff for total consideration of Rs.2,72,250/- and the plaintiff has paid an advance of Rs.1,25,000/- as earnest money to defendant No.1 and also undertook to pay balance amount in favour of defendant No.1 on the date of execution of the registered sale deed before the competent Registrar. It was also agreed between the parties that the registered sale deed has to be executed on Ugadi festival day of the year 2006. It is also stated by the plaintiff that defendant No.1 has agreed to execute the registered sale deed in terms of the agreement of sale, however, failed to perform his obligation in terms of the agreement of sale and accordingly the plaintiff got issued legal notice dated 27.02.2007 calling upon defendant No.1 to execute the registered sale deed by receiving the balance sale consideration amount. 4. It is also stated by the plaintiff that the plaintiff was ever ready and willing to perform his part of contract, however, defendant No.1 has postponed the execution of - 5 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 the sale deed with ulterior motive. It is also stated in the plaint that defendant No.1 without giving reply to the legal notice, has executed the registered sale deed dated 12.03.2007 in favour of defendant No.2 without knowledge of the plaintiff and the plaintiff came to know about the same and as such the plaintiff has filed O.S.No.52/2007 on the file of the Trial Court seeking declaration, specific performance of contract with consequential relief. 5. On service of notice, the defendant No.1 entered appearance and filed detailed written statement stating that, the agreement of sale is not properly stamped and also stated that the defendant No.1 has admitted the execution of the sale deed in favour of defendant No.2 and accordingly sought for dismissal of the suit. 6. Defendant No.2 has taken a defence that defendant No.2 is a bonafide purchaser and has purchased - 6 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 the suit schedule property for a valuable consideration and accordingly, sought for dismissal of the suit. 7. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined four witnesses as PW.1 to PW.4 and produced 17 documents and same were marked as Exs.P.1 to P.17. The defendants have examined two witnesses as DW.1 and DW.2 and produced 8 documents which were marked as Exs.D.1 to D.8. At the instance of the Court, Exs.C.1 to C.3 have been marked by the Trial Court. 8. The Trial Court after considering the material on record, by its judgment and decree dated 28.11.2012 decreed the suit and directed defendant No.1 to execute the registered sale deed in favour of the plaintiff in respect of the property in question. Feeling aggrieved by the same, the defendant No.2 has preferred R.A.No.1/2013 before the First Appellate Court. The First Appellate Court after re-appreciating the material on record, by its - 7 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 judgment and decree dated 23.04.2018, dismissed the appeal and as such confirmed the judgment and decree in O.S.No.52/2007. Feeling aggrieved by the same, the defendant No.2 has preferred this Regular Second Appeal. 9. I have heard Sri.Sangram S Kulkarni, learned counsel appearing for the appellant and Smt.Shaila Bellikatti, learned counsel appearing for the respondents. 10. It is contended by Sri.Sangram S Kulkarni, learned counsel appearing for the appellant that the entire case of the plaintiff is relying upon an unregistered document – agreement of sale dated 30.06.2005 and the said document is inadmissible in evidence and accordingly sought for interference of this Court. It is also submitted by learned counsel appearing for the appellant that the appellant herein - defendant No.2 is a bonafide purchaser of the land in question. 11. It is also submitted by placing reliance on the judgment of the Hon’ble Supreme Court in the case of - 8 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 Maharaj Singh vs Karan Singh (Dead) reported in 2024 8 SCC 83 that the prayer made in the plaint itself is not maintainable as the plaintiff has not sought for cancellation of the sale deed dated 12.03.2007 executed by defendant No.1 in favour of defendant No.2 and accordingly sought for interference of this Court. 12. Per contra, Smt.Shaila Bellikatti, learned counsel appearing for the respondents submitted that as the concurrent findings of facts have been reached out by the Courts below and accordingly sought for dismissal of the appeal. 13. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that defendant No.1 is the owner of the schedule property and the plaintiff has entered into an agreement of sale with defendant No.1 on 30.06.2005 to purchase the land to an extent of 6 acres 2 guntas for total consideration of Rs.2,72,250/- but on the date of the execution of the agreement of sale, the plaintiff has paid - 9 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 an advance amount of Rs.1,25,000/- to defendant No.1 and undertook to pay remaining amount as on the date of the registered sale deed. The parties have also agreed that the execution of the sale deed has to be executed on the Ugadi festival day of the year 2006. 14. It is the case of the plaintiff that defendant No.1 has failed to perform his obligation in terms of the agreement of sale dated 30.06.2005 and as such the plaintiff has caused legal notice dated 27.02.2007 calling upon defendant No.1 to execute the registered sale deed in favour of the plaintiff. Thereafter, plaintiff came to know that defendant No.1 had executed the registered sale deed in respect of suit schedule property in favour of defendant No.2 as per the registered sale deed dated 12.03.2007, hence, the plaintiff has filed suit in O.S.No.52/2007. 15. It is pertinent to mention here that defendant No.1 has not given any reply to the legal notice dated 27.02.2007 (Ex.P.15). It is also pertinent to mention here that the legal notice was issued on 27.02.2007 calling - 10 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 upon defendant No.1 to execute the registered sale deed, however, defendant No.1 had executed registered sale deed in favour of defendant No.2 on 12.03.2007 subsequent to the receipt of legal notice dated 27.02.2007. 16. It is to be noted that the plaintiff has examined PW.2 to PW.4 to prove the execution of the agreement of sale at Ex.P.14. In that view of the matter, I am of the opinion that as the plaintiff has proved the execution of agreement of sale dated 30.06.2005, the finding recorded by the Trial Court on issue Nos.1 to 4 is to be accepted. It is also to be noted that the plaintiff has proved the readiness and willingness to perform his part of contract in terms of the agreement of sale dated 30.06.2005 by issuing a legal notice on 27.02.2007, however, same has not been replied by defendant No.1. 17. In the backdrop of these aspects, this appeal is filed by defendant No.2, who is a subsequent purchaser as per the registered sale deed dated 12.03.2007. Taking into - 11 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 consideration the arguments advanced by the learned counsel appearing for the appellant herein/subsequent purchaser of the suit schedule property where the plaintiff is not a signatory/executant to the registered sale deed dated 12.03.2007 executed by defendant No.1 in favour of defendant No.2 and on perusal of the averments made in the plaint would makes it clear that the plaintiff was unaware about the execution of the registered sale deed dated 12.03.2007 till filing of the suit and therefore rightly sought for declaration that the registered sale deed dated 12.03.2007 is not binding on the plaintiff. 18. The Hon’ble Supreme Court in the case of Suhrid Singh @ Sardool Singh vs Randhir Singh and Others reported in 2010 (12) SCC 112 at para Nos.6 and 7 held as follows: “6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of - 12 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. 7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, - 13 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.” 19. Taking into consideration the declaration of law made by the Hon’ble Supreme Court in the above case where the non executants of the deed sought for annulment of the deed and only executants to the sale deed could sought for cancellation of the document. In that view of the matter, I find force in the submission made by the learned counsel appearing for the respondents as the respondents have proved the execution of agreement of sale dated 30.06.2005 and therefore to that extent the arguments advanced by the learned counsel appearing for the appellant cannot be accepted. 20. Taking into consideration the declaration of law made by the Hon’ble Supreme Court in the case of - 14 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 Maharaj Singh supra, I am of the view that the judgment referred to by the learned counsel appearing for the appellant in Maharaj Singh supra is not applicable to the facts of the present case as the plaintiff has caused notice to the defendant No.1 on 27.02.2007 calling upon the defendant No.1 to execute the sale deed, however, the execution of the registered sale deed by defendant No.1 in favour of defendant No.2 was happened subsequently i.e. on 12.03.2007. In that view of the matter, since the plaintiff is not an executant to the registered sale deed dated 12.03.2007 and therefore rightly sought for prayer that the said sale deed dated 12.03.2007 is not binding on the plaintiff. 21. In that view of the matter, I do not find any merit in the appeal as both the courts below have appreciated the material on record and rightly decreed the suit in favour of the plaintiff directing defendant No.1 to execute the registered sale deed in favour of the plaintiff. Hence, the plaintiff has not made out a case for - 15 - NC: 2025:KHC-D:2714 RSA No. 100445 of 2018 formulation of substantial question of law as required under Section 100 of CPC and accordingly the appeal is dismissed at the stage of admission itself. Sd/- (E.S.INDIRESH) JUDGE SH CT:ANB List No.: 1 Sl No.: 21