- 1 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.2153 OF 2021 (SP) BETWEEN: SRI B SIDDESWARA S/O LATE B BASAVARAJAPPA, AGED ABOUT 64 YEARS, R/AT GROUND FLOOR, 8SHARADHA NILAYA9, 5TH MAIN ROAD, DEVANUR ROAD VIJAYANAGAR TUMKUR - 572 102 &APPELLANT (BY SRI RAMESH K R, ADVOCATE) AND: SRI M JAMBANNA S/O M HAMPPANNA AGED ABOUT 53 YEARS R/AT GROUND FLOOR, 1ST 8A9 CROSS, 3RD 8A9 MAIN ROAD, 6TH BLOCK, B E L LAYOUT, VIDYARANYAPURA BENGALURU - 560 097 &RESPONDENT (BY SRI N RAMALINGA REDDY, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 27.07.2021 PASSED IN RA.No.167/2019 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 10.04.2019 PASSED IN OS No.73/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri K.R.Ramesh, learned counsel for the appellant and Sri N Ramalinga Reddy, learned counsel for the respondent. 2. Appeal by the defendant challenging the judgment passed in RA No.167/2019 dated 27.07.2021 by the Prl. District and Sessions Judge, Tumakuru, decreeing the suit of the plaintiff for specific enforcement of the agreement to sell dated 24.06.2011 in respect of the below mentioned immovable property hereinafter referred to as 8suit property9 by reversing the judgment dated 10.04.2019 passed in O.S No.73/2016 on the file of the Addl. Senior Civil Judge and CJM, Tumakuru: <All the piece and parcel of property bearing Municipal Khata No.1589, Carved out of converted Sy.No.45/6 vide Order No.B.DIS.ALN.SRI 36/1986-87, Upparahalli village, Kasba Hobli, Tumakuru Taluk and District situated at Upparahalli dated 29.01.1998 by the Deputy Commissioner, Tumakuru, situated at presently Upparahalli, Channabasaveshwara Layout, Ward No.23, - 3 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 Tumakuru measuring East to West 60 ft. and North to South 40 ft. in all measuring 2,400 sq.ft. and bounded on: East by: Conservancy, West by: road, North by: Narasaiah9s property, South by: T.Rangaswamy9s property. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 4. Plaintiff filed a suit seeking specific enforcement of the agreement to sell in respect of the suit property executed on 24.06.2011 by contending that defendant is the absolute owner of the suit property. Defendant purchased the said property on 26.03.1999 from Smt.Sarvamangala under the registered sale deed. 5. The sale consideration was fixed at Rs.7,50,000/- in the agreement and plaintiff has paid the entire sale consideration. Defendant undertook to register the property in favour of plaintiff or his nominees. Plaintiff was ready and willing to perform his part of the obligation under the agreement to sell and demanded the defendant to execute the sale deed, time and again. - 4 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 6. But defendant postponed the same on one pretext or the other. 7. Finally plaintiff was constrained to issue a legal notice on 21.01.2016. Defendant sent an untenable reply on 06.02.2016. Therefore, suit came to be filed. 8. Pursuant to the suit summons, defendant entered appearance and engaged the counsel. He denied the plaint averments in toto by filing the written statement. 9. Defendant contended that he is not the absolute owner of the suit property. He purchased the same as Kartha of his wife and son. Defendant had no exclusive and independent right to execute the sale agreement in favour of the plaintiff and by misleading the defendant, and by playing mischief, plaintiff has concocted and fabricated the agreement to sell. 10. Defendant also contended that he never agreed to sell the property either in favour of the plaintiff or in favour of his nominees. He was not aware whether the plaintiff was ready and willing to perform his part of the contract and therefore sought for dismissal of the suit. - 5 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 11. Learned Trial Judge after raising necessary issues recorded the evidence of the parties and dismissed the suit on merits. 12. Being aggrieved by the same, plaintiff filed the appeal on the file of the Prl. District and Sessions Judge, Taumakuru in R.A.No.167/2019. 13. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and on re- appreciation of the material evidence on record, both on the question of law and facts by judgment dated 27.07.2021 allowed the appeal and reversed the judgment of the Trial Court and decreed the suit of the plaintiff. 14. Being aggrieved by the same, defendant has filed the present appeal on following grounds: ø The First Appellate Court has failed to appreciate that, admittedly no sale consideration is passed on to the all at as admitted by the Appellant/defendant Respondent himself in his cross-examination under the Agreement of Sale sought to be enforced. On this - 6 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 ground alone, the First Appellate Court could have dismissed the Appeal. ø The Appellant further submit that, the Appellant herein has categorically stated that, at no point of time he has agreed to sell the schedule property in favour of the defendant and the alleged Agreement of Sale is a fabricated document by playing mischief and fraud. The respondent/ defendant has not proved the alleged Agreement of Sale at Ex.P1 by alleging the witnesses mentioned therein. PW-2 is only a scribe and he has categorically stated that, no amount is paid in his presence. Thus, the Respondent/plaintiff has not proved the alleged Agreement of Sale, without appreciating the same in a proper perspective, the Learned Judge of the First Appellate Court has passed the impugned Judgment and Decree reversing the Trial Court Judgment and Decree which was well reasoned. ø The First Appellate Court had not considered the admissions made by the plaintiff PW-1 in his cross- examination. In the cross-examination, the respondent i.e., PW-1 it elicited that he had entered into an Agreement of Sale dated 2/11/2007 in respect of the same schedule property and it clearly admitted my PW-1 in page 9 of his cross-examination that, he had paid Rs.7,50,000/- under the Agreement of Sale dated 02/11/2007 to the Appellant/Plaintiff. Further he has also in para 11 of cross-examination admitted - 7 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 that, he has not paid any amount under the Ex.P1 on the date of registration. But, in Ex.P1 Agreement of Sale, it is stated to the effect that, "Rs.7,50,000/- was paid by way of cash and the Vendor herein has acknowledged the receipt of the same before the witnesses". So, it is very clear that, no sale consideration as alleged in Ex.P1 is passed on to the Appellant. The Trial Court has categorically recorded the same in its Judgment. But the First Appellate Court is passing the same, has not taken note of the same. Thus, it is very clear that, the First Appellate Court has considered the entire evidence in both oral and documentary available on record while passing the impugned Judgment and Decree. ø 15. The appellant further submit that, the First Appellate Court has committed serious error in decreeing the suit without there being any supporting evidence and taking the Ex.P1 as if it is proved only for the reason that, it is a registered document. Further, First Appellate Court has interpreted all the latches on the part of the Plaintiff/respondent against the Appellant. ø The First Appellate Court has failed to consider the fact that, if at all if the entire sale consideration mentioned in the alleged Agreement of Sale/Ex.P1 was paid, what was the necessity for the respondent/plaintiff to enter into an Agreement of Sale? If at all if the plaintiff was fair enough, he could - 8 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 have got executed the registered Sale Deed on that day itself. This shows, that the plaintiff has obtained the Agreement of Sale fraudulently. But the First Appellate Court has failed to appreciate the same.= 15. This Court at the time of admitting the appeal, by order dated 07.06.2023 framed the following substantial questions of law: (i) Whether the First Appellate Court justified in decreeing the suit for specific performance? (ii) Whether the First Appellate Court justified in holding that plaintiff has proved the agreement solely on the ground that Ex.P.1 is a registered document? 16. Pursuant to the substantial questions of law, Sri K.R.Ramesh, learned counsel for the appellant/defendant reiterating the grounds urged in the appeal memorandum vehemently contended that the plaintiff is none other than the brother-in-law of the defendant who managed to concoct the suit agreement by taking advantage of the shelter given to the plaintiff in the house of the defendant and therefore, the suit agreement is not proved by the plaintiff. - 9 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 17. He further contended that learned Judge in the First Appellate Court unjustifiably placed presumptive value insofar as suit agreement is concerned marked at Ex. P-1 only on the ground that it is a registered agreement. Therefore, the decreeing of the suit by the First Appellate Court has resulted in gross miscarriage of justice and sought for allowing the appeal by answering the substantial questions of law in favour of the appellant. 18. He also contended that there was no necessity for the defendant to sell the property nor defendant was the exclusive owner of the suit property to sell it in favour of the plaintiff. Therefore, learned Judge in the First Appellate Court decreeing the suit of the plaintiff is to be set aside by allowing the present Second Appeal. 19. He further pointed out that the P.W-1 has admitted that he has paid the sale consideration as is found in Ex.P-1. But no consideration has been paid under Ex.P-1 and so also there is no mention as to the earlier agreement said to have been entered into by the defendant in the year 2007. Therefore, suit - 10 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 agreement is to be held as a concocted document and suit is to be dismissed. 20. Per contra, Sri N Ramalinga Reddy, learned counsel for the respondent/plaintiff supports the judgment passed by the First Appellate Court by contending that admittedly, in Ex. P-1 itself there is no mention as to the payment of sale consideration of Rs.7,50,000/- as the consideration was paid earlier. 21. Further, he would contend that in order to prove Ex.P-1, not only plaintiff is examined but also examined the scribe of Ex. P-1 wherein there is a categorical answer elicited by the defendant in the cross-examination that on the day of execution of Ex.P-1, the transaction was not concluded, but it concluded on the next day while registering the agreement which shows that P.W-2 is the scribe of Ex. P-1 and he has supported the case of the plaintiff. 22. Therefore the second substantial question of law as aforesaid that Ex. P-1 is believed by the First Appellate Court - 11 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 only on the ground that it is a registered document cannot be countenanced in law and sought for dismissal of the appeal. 23. Having heard the arguments of both sides, this Court perused the material on record meticulously. 24. In the case on hand, at one breath defendant has taken the contention that Ex. P-1 is a concocted document. If it is so, why did he visit the Office of the Sub Registrar for registration of Ex.P-1 is a question that remains unanswered by the defendant. Defendant is not an illiterate person. 25. It is specifically elicited in the cross-examination of P.W.2, that on the day of execution of agreement at Ex. P-1, plaintiff, defendant and his son were present. Nothing prevented the defendant to examine his son to demonstrate that he was not present on the date of execution of Ex.P-1, in order to establish that Ex. P-1 is a concocted document. 26. Further, insofar as non mentioning of non payment of the sale consideration is concerned, there is a categorical answer elicited in the cross-examination P.W-1 that the entire sale consideration was paid over a period of time and the same has - 12 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 been accounted. Therefore, there is an acknowledgment under Ex.P-1 that entire sale consideration has been paid in view of the contents of Ex. P-1 which is a registered document. 27. Further, P.W-2 also specifically answers that no payment was made at the time of execution of Ex.P-1. 28. When the defendant has denied the very agreement itself, he cannot take shelter under the terms of Ex.P-1, as according to defendant, there is no valid contract at all. 29. In other words, when the defendant has come up with a plea that there was no meeting of minds and Ex. P-1 is taken mischievously and concocted by the plaintiff, no other clause of Ex. P-1 could be resorted to by the defendant for his benefit. 30. Having said thus, it is also to be noted that in the defence, the defendant has taken the plea that he is not aware that the plaintiff was ready and willing to perform his part of the contract. 31. When the entire sale consideration is paid and a reply is sent to the legal notice, it should not lie in the mouth of the - 13 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 defendant that the plaintiff was not ready and willing to perform his portion of the contract. 32. Learned Trial Judge did not notice these salient features in the suit and dismissed the suit which has been set right by the learned Judge in the First Appellate Court by exercising the power vested in it under Section 96 of the Code of Civil Procedure by re-appreciating the oral and documentary evidence on record. 33. When Ex. P-1 stood proved and entire sale consideration had been paid earlier to execution Ex. P-1, nothing prevented the Trial Court from decreeing the suit, which has been set right by the First Appellate Court. 34. Having regard to the scope of Section 100 of the Code of Civil Procedure, this Court cannot revisit into the factual aspects of the matter though strenuously contended by learned counsel on behalf of the appellant. 35. Argument advanced by counsel for appellant with regard to concoction of suit agreement is not proved by defendant. Further, the original document being in custody of plaintiff and - 14 - HC-KAR NC: 2025:KHC:37007 RSA No. 2153 of 2021 named as documentary evidence including document evidencing the release of mortgage from co-operative bank belies the theory of concoction of said agreement. 36. Having said thus, the substantial questions of law raised in the appeal needs to be answered against the appellant and accordingly they are answered. 37. Consequently, the following: ORDER (i) Appeal is meritless and hereby dismissed. (ii) No order as to costs. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 64