- 1 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100162 OF 2019 (SP) BETWEEN: HASANSAB S/O. GOUSASAB TUMMARAMATTI, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: KILLA STREET, BAGALAKOTE, DIST: BAGALKOTE. …APPELLANT (BY SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE) AND: 1. SMT. JANAKI W/O. RAGHAVENDRA DESHPANDE, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O. SULIKERI, TQ BADAMI, DIST. BAGALKOTE 587111. 2. PRANESH S/O. RAGHAVENDRA DESHPANDE, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O. SULIKERI, TQ: BADAMI, DIST: BAGALKOTE-587111. 3. DILEEP S/O. RAGHAVENDRA DESHPANDE, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: SULIKERI, TQ: BADAMI, DIST: BAGALKOTE-587111. …RESPONDENTS (BY SRI. K. L. PATIL, ADV. FOR R1 TO R3) THIS RFA IS FILED U/S.96 OF CPC., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 27.02.2019 PASSED IN O.S. NO.56/2015 PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C BADAMI AND DECREE THE SUIT O.S. NO.56/2015 AS PRAYED IN THE SUIT BY GRANTING SPECIFIC PERFORMANCE OF SUIT SALE AGREEMENT, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This regular first appeal by the appellant, challenging the judgment and decree dated 27.02.2019 passed in O.S.No.56/2015, by the learned Senior Civil Judge and JMFC, Badami, dismissing the suit for specific performance of a contract. 2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellant was the plaintiff, and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for the specific performance of a contract. It is the case of - 3 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 the plaintiff that, the defendants are the absolute owners of the suit schedule property, and agreed to sell the suit schedule property for a total consideration of Rs.19,50,000/-. The defendants received Rs.8,00,000/- from the plaintiff and, on 05.09.2014, executed a registered sale agreement in favour of the plaintiff. It was agreed that, there were certain irregularities in the revenue records, and the defendants agreed to rectify the errors and thereafter, execute the registered sale deed. It is contended that, the plaintiff was/is ready, and willing to perform his part of the contract. The defendant went on postponing the execution of the registered sale deed. It is contended that, the defendants are trying to alienate the suit schedule land in favour of a third party. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of a contract. Accordingly, prays to decree the suit. 4. Defendant Nos.2 and 3 filed a written statement and defendant No.1 adopted the written statement filed by - 4 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 defendant No.2 and 3. The defendants denied the averments made in the plaint. It is contended that the sale agreement was executed, only to secure the financial transactions. That, the other documents were executed between the parties wherein, it was agreed that the agreement of sale has to be cancelled after the completion of financial transactions. On 17.11.2014, the plaintiff also executed a consent affidavit in favour of defendants Nos.2 and 3. Defendant Nos.2 and 3 have also executed a consent affidavit in favour of the plaintiff. It is contended that, the defendants have paid the entire amount to the plaintiff, through cheques from IDBI Bank. It is contended that the suit land was Vatan land, it cannot be sold without prior permission of the Government. The said agreement cannot be enforced in the eyes of the law. Hence, prays to dismiss the suit. 5. The trial court, based on the pleadings of the parties, framed the issues: - 5 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 1) Whether the plaintiff proves that defendants executed an agreement of sale dated 05.09.2014 in his favour by receiving advance consideration of Rs.8,00,000/-? 2) Whether the plaintiff proves that he is ever ready and willing to perform his part of contract? 3) Whether defendant Nos.1 to 3 prove that the agreement of sale is only a security document executed towards the financial transactions which took place between themselves and plaintiff? 4) Whether the plaintiff is entitled for the relief of specific performance of contract or in alternative for refund of earnest consideration of Rs.8,00,000/- with interest at the rate of 24%? 5) What order or decree? 6. The plaintiff to substantiate his case, the plaintiff examined himself as PW.1, examined one witness as PW.2, and marked three documents as Exs.P1 to 3. In rebuttal, defendant No.2 was examined as DW.1, and no documents are marked. The trial court, after recording the evidence, hearing on both sides, and assessing the oral and documentary evidence, answered issues Nos.1, 2 and 4 in the negative, issue No.3 in the affirmative, and - 6 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 issue No.5 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 27.02.2019. The plaintiff, aggrieved by the judgment and decree dated 27.02.2019 passed in O.S.No.56/2015, filed this regular first appeal. 7. Heard the learned counsel for the plaintiff and the learned counsel for the defendants. 8. Learned counsel for the plaintiff submits that, the defendants executed a registered sale agreement in favour of the plaintiff, and there is a presumption under the law regarding the registered instrument. He submits that, though the defendant was examined as DW.1, the trial court has not considered the evidence of DW.1. He submits that, the trial court, without considering the material placed on record by the parties, committed an error in dismissing the suit. He also submits that the plaintiff has paid the part consideration amount of Rs.8,00,000/-. There is a recital in the sale agreement regarding payment of Rs.8,00,000/- and it’s a registered - 7 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 one, and there cannot be any oral evidence to disprove or vary the recitals of the sale agreement as per Sections 91 and 92 of the Indian Evidence Act, 1872. The said aspect was not at all considered by the trial court. Hence, he prays to allow the appeal. He also submits that, the matter requires reconsideration by the trial court and prays to remit the matter to the trial court for fresh consideration. Hence, prays to allow the appeal. 9. Per contra, learned counsel for the defendants supports the impugned judgment contending that, the trial court was justified in passing the impugned judgment. He submits that the plaintiff has failed to establish the execution of the sale agreement by the defendants in favour of the plaintiff. He also submits that, the plaintiff has failed to prove the requirements of Section 16(c) of the Specific Relief Act. Hence, on these grounds, he prays to dismiss the appeal. 10. Perused the records and considered the submissions of the learned counsel for the parties. - 8 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 11. The points that arise for our consideration are: 1) Whether the trial court was justified in passing the impugned judgment without appreciating the entire evidence placed on record? 2) What order or decree? 12. Re-Point No.1: It is the case of the plaintiff that the defendants are the absolute owners of the suit schedule property. The defendants agreed to sell the suit schedule property for a total consideration of Rs.19,50,000/- and the plaintiff paid a sum of Rs.8,00,000/- to the defendants as an advance sale consideration, and the defendants executed the registered sale agreement in favour of the plaintiff on 05.09.2014. Further, it is stated that, the plaintiff was/is always ready, and willing to perform his part of the contract, but the defendants did not perform their part of the contract. The defendants made attempts to alienate the suit schedule property in favour of the third party. The plaintiff to substantiate his case, examined himself as PW.1 and - 9 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 reiterated the plaint averments in the examination-in-chief and produced the documents. Ex.P1 is the original registered sale agreement dated 05.09.2014, which discloses that, the defendants agreed to sell the suit schedule property in favour of the plaintiff for consideration of Rs.19,50,000/- and the defendant paid a sum of Rs.8,00,000/- as an advance sale consideration amount, and it was agreed that, the balance consideration amount to be paid at the time of registration of sale deed. Ex.P2 is the RTC extract of the suit land, which discloses that, the defendants are the owners of the suit schedule property. Ex.P3 is a certified copy of the mutation order dated 30.11.2013. 13. During the cross-examination, it was suggested to PW.1 that, it is a loan transaction and not a sale transaction. The said suggestion was denied by PW.1. Further, the plaintiff to prove the execution of the sale agreement, examined the attesting witness as PW.2. He has deposed in the same terms as PW.1, and the signature - 10 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 of the defendant is marked as Exs.P1(a) to (c) and the signature of PW.2 is marked as Ex.P1(d). The defendant suggested to PW.2 that, it is a loan transaction and not a sale transaction. The said suggestion was denied by PW.2. 14. In rebuttal, defendant No.2 was examined as DW.1. DW.1 has deposed that, the transaction between the plaintiff and defendants is a loan transaction, and Ex.P1 was executed as a security for the said loan transaction. The defendants have no intention to sell the suit schedule property and never agreed to sell the suit schedule property to the plaintiff at any point of time. The defendants have taken several grounds in the written statement and also in the examination-in-chief. 15. From the perusal of the judgment passed by the trial court, the trial court has not whispered a single sentence from the deposition of DW.1 in the impugned judgment. The trial court has not properly appreciated the entire evidence on record. The trial court has not - 11 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 recorded a finding about the financial capacity of the plaintiff, readiness, and willingness etc. The trial court has not assigned any proper reasons for dismissing the suit of the plaintiff. The trial court has not applied its mind while passing the impugned judgment. The impugned judgment passed by the trial court is without application of mind. The trial court must consider the entire evidence on record and pass an appropriate judgment. As observed above, the trial court has not properly considered the records produced by the parties. Hence, on these grounds, the impugned judgment is liable to be set aside. In view of the above discussion, we answer point No.1 in the negative. 16. Re-Point No.2: As we have already answered point No.1, in view of the above discussion, we proceed to pass the following: ORDER The appeal is allowed. - 12 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 The judgment and decree dated 27.02.2019 passed in O.S.No.56/2015, is hereby set aside. The suit is restored. The trial court is directed to consider the entire evidence, and pass an appropriate judgment in accordance with law. The parties are directed to appear before the trial court on 03.03.2025, without awaiting any further notice. This court has not made any adjudication on the merits in issue. All the contentions of the parties are kept open. The office is directed to refund the court fee as per Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958. The office is directed to send the TCR to the Trial Court. - 13 - NC: 2025:KHC-D:1877-DB RFA No. 100162 of 2019 In view of the disposal of the appeal, I.A.No.1/2019 does not survive for consideration, and is accordingly disposed of. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE SKS ct-an