- 1 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 714 OF 2022 (SP) BETWEEN: SRI. A. PAPANNA, S/O LATE SRI. ANNAIAH, AGED ABOUT 76 YEARS, RESIDING AT DOOR NO. 150, HINKAL, KASABA HOBLI, MYSURU TALUK. …APPELLANT (BY SRI. H.P. MAHADEVA SWAMY, ADVOCATE FOR SRI. B. ROOPESHA, ADVOCATE) AND: 1. SRI. MOJJAIAH S/O LATE SRI. BOLAIAH @ BACHAIAH AGED ABOUT 81 YEARS 2. SRI. NAGARAJU S/O SRI MOJJAIAH AGED ABOUT 55 YEARS SRI. SWAMY SINCE DEAD BY LRS 3. SMT. PAVITHRA W/O LATE SRI. SWAMY AGED ABOUT 35 YEARS, 4. AMSHIK S/O LATE SRI. SWAMY Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 AGED ABOUT 7 YEARS (REPRESENTED BY HIS MOTHER/GUARDIAN/ NEXT FRIEND 3RD RESPONDENT) ABOVE 1 TO 4 ARE RESIDING AT C/O MOJJAIAH HINKAL VILLAGE, KASABA HOBLI, MYSURU TALUK. 5. THE TAHASILDAR MYSORE TALUK MYSORE. SMT. THAYAMMA DECEASED BY LRS 6. SMT. GAYATHRI D/O LATE SMT. THYAMMA W/O SRI. SHIVANNA AGED ABOUT 58 YEARS HINKAL VILLAGE, KASABA HOBLI, MYSURU TALUK. 7. SMT. SUNDARAMMA D/O LATE SMT. THAYAMMA, W/O SIDDANNA, AGED ABOUT 50 YEARS, HINKAL VILLAGE, KASABA HOBLI, MYSURU TALUK. 8. SMT. BHAGYA D/O LATE SMT. THAYAMMA W/O SRI.. SHIVALINGA AGED ABOUT 47 YEARS HUYILALU VILLAGE YELWALA HOBLI MYSURU TALUK. - 3 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 9. SMT. SHANTHA D/O LATE SMT. THYAMMA W/O SRI. LOKESH AGED ABOUT 43 YEARS HEBBAL, NEAR SURYA BAKERY CIRCLE, MYSURU CITY. 10. SRI. PUNEETH KUMAR N S/O NAGARAJU AGED ABOUT 32 YEARS RESIDING AT DOOR NO. 258/2, HUNDI BEEDI, HINKAL VILLAGE, KASABA HOBLI, MYSURU TALUK. …RESPONDENTS (BY SRI. M. KRISHNAPPA, ADVOCATE FOR C/R2; SRI. YASHWANTH NETHAJI N.T, ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE FOR R10; VIDE ORDER DATED 28.02.23, R3 IS APPOINTED AS GUARDIAN OF R4) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.01.2022 PASSED IN RA NO.173/2019 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.04.2019 PASSED IN OS NO.62/2002 ON THE FILE OF THE JUDGE ADDITIONAL COURT OF SMALL CAUSES, MYSURU. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 4 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 ORAL JUDGMENT Heard Sri. H.P Mahadevaswamy, learned counsel for the appellant, Sri. M. Krishnappa, learned counsel for Caveator/respondent No.2 and Sri. Yashwanth Nethaji N.T. for Sri. K.V. Narasimhan, learned counsel for respondent No.10. 2. Appellant is the agreement holder in respect of the immovable property bearing Sy.No.79/2 measuring 1 acre 10 guntas situated at Hinkal Village, Kasaba Hobli, Mysore Taluk, bounded on the East by : Land of Mojjaiah and Karali Bolaiah, West by : Land of Malluraiah, North by : Land of Bolaiahna Mariyamma and on the South by : Land of Chikkamma. 3. There was a refusal to execute the sale deed by the first defendant and after exchange of notices, suit came to be filed for specific enforcement of the agreement to sell dated 02.02.1996. Suit on merits came to be dismissed holding that even though agreement, - 5 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 consideration, readiness and willingness came to be proved by the plaintiff, the land which was subject matter of the agreement was not belonging to the first defendant, suit was dismissed. 4. An appeal came to be filed before the First Appellate Court by the unsuccessful plaintiff in RA No.173/2019. 5. The learned Judge in the First Appellate Court after securing the records heard the arguments of the parties and after re-appreciation of the factual and legal aspects, dismissed the appeal and decree of dismissal passed in O.S.No.62/2002 was confirmed. 6. Thereafter, the present appeal is filed by the unsuccessful plaintiff on the following grounds: It was highly erroneous on the part of The First Appellate Court when it held that the documents produced by Plaintiff/Appellant did not establish the factum of handing over of physical possession of plaint schedule property to the Plaintiff/Appellant. The findings and observation of The Hon'ble First Appellate Court as well as - 6 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 The Hon'ble Trial Court are perse erroneous and devoid of sound judicial principles. The Hon'ble First Appellate Court in unequivocal terms held that Plaintiff/Appellant succeeded in proving Exhibits P1 and P2 i.e., Registered Agreement to sell dated 02-02-1996 and further agreement dated: 20-07- 1996 respectively. The Hon'ble First Appellate Court concurred with findings of The Hon'ble Trial Court in accepting Execution of Ex. P1 and P2. However, overlooked to appreciate that in Ex. P2 proven agreement comprised profound element of handing over of seisin/physical possession of plaint schedule property in the name and favour of Plaintiff/Appellant. In the presence of such findings, The Hon'ble First Appellate Court ought to have answered points for consideration in affirmative. Likewise, The Hon'ble Trial Court ought to have answered additional Issue No. 2 in affirmative rather partly affirmative. The findings of The Hon'ble First Appellate Court as well as Trial Court are in dichotomy and contract. It was highly erroneous on the part of The First Appellate Court when it held that Defendants No.1 to 3/Respondents No.1 to 3 did not have right to enter into agreement to sell with Plaintiff/Appellant. The Hon'ble First Appellate Court lost sight in visualizing prolific and profound factual and legal propositions which added impregnable fillip to the claim of the Plaintiff and Ex. P1 and P2. Mysore Urban Development Authority issued - 7 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 notification of acquisition in the year 1984. The Plaint schedule property was vested with the Government when notification of acquisition was formulated by MUDA. Therefore, plaint schedule property was not Beelu at the time of execution of Ex, P1 and P2. The tag of Beelu attached to plaint schedule property got evaporated and decimated the moment dominion of plaint schedule property was handed over to MUDA by State. As such, no embargo subsisted as a cloud engulfing the plaint schedule property desisting or disabling Defendants No.1 to 3/ Respondents No.1 to 3 from entering into contract of sale with Plaintiff/Appellant. The findings of The Hon'ble First Appellate Court and Trial Court are based on surmises and conjectures. It was highly erroneous on the part of The Hon'ble First Appellate Court when it denied to grant the relief of Specific Performance of agreements to sell dated 02-02- 1996 and 20-07-1996 marked under Ex. P1 and P2 respectively inspite of Appellant/Plaintiff succeeded in proving the execution of contract as well as his ready and willingness to perform of his part of the contractual obligation right from dawn to dusk as well as sow to harvest. The Hon'ble First Appellate Court committed gross error when it failed to delve with error prone approach of The Hon'ble Trial Court in mechanically rejecting meritorious Interlocutory applications filed by the Plaintiff/Appellant in invoking Order VI Rule 17 of CPC, - 8 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 Order XIV Rule 5 of CPC, Order VII R 14 (3) of CPC, Order XVIII R 17 of CPC r/w Section 151 of CPC. Hence approach of The Hon'ble First Appellate Court towards the subject matter of RA 173/2019 is highly irregular, cryptic and error prone. It was highly erroneous on the part of the First Appellate Court when It dismissed meritorious Amendment application viz IA. No. VI which embarked incorporation of material irregularity and dubious acts of Defendant No. 5 in connivance with Respondent No 6. The proposed amendment comprising averments regarding fraudulent and void WILL dated: 21-06-2016 and coining of relief of declaration against the said WILL was relevant. The same ought to have been allowed by The Hon'ble First Appellate Court. Rejection was bad in Law and against Letter and Spirit of supervisory powers of First Appellate Court. It was highly erroneous on the part of the First Appellate Court when it erroneously held that that alleged WILL dated 21-6-2016 had not come into operations since Defendant No. 5 was alive. However, it conveniently forgot that Defendant No. 5 had passed away on 02-6- 2019 and that their LRs were arrayed as party Respondents No. 5 (A) to 5 (D) in Appeal Memo RA. 173/2019. Rejection of IA. No. VI based on such gross factual blunder is bad in Law. Apt application of judicial mind would have resulted in positive verdict of IA. No. VI. - 9 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 It was highly erroneous on the part of the First Appellate Court when it dismissed meritorious application filed under Order XLI Rule 27 of CPC viz IA. No. 7 with the help of it Appellant endeavored to place void-ab-initio registered WILL dated 21-6-2016 to the domain of First Appellate Court. Reason assigned by The Hon'ble First Appellate Court in rejecting IA. No. 7 is assailable. The Hon'ble First Appellate Court did not comprehend the object in filing IAs. No. VI and VII in RA. 173/2019 as illegal acts of Defendant No. 5 and Respondent No. 6 in concocting a dubious WILL dated 21- 6-2016 with oblique motive to defeat the rights of Appellant and EX. P-1 and P-2 resulted in infringement of his rights. Hence it warranted to incorporate apt averments as well as relief against illegal WILL. The same had bearing to the subject matter of OS. 62/2002. The impugned Judgment and Decree of the First Appellate Court deserve to be set at naught. It was highly erroneous on the part of the First Appellate Court when it failed to consider and appreciate interlocutory applications viz. IA. No.4 filed under Section 2-B of Contempt of Courts Act, I.A. No. IX filed under Order XLI Rule 22 read with Section 151 of C.P.C. 1908 and 1 A. No. X filed under Section 14-A of Specific Relief Act read with Section 49 of Evidence Act further read with Section 151 of C.P.C.1908. Same are not disposed-off. Approach of the First Appellate Court is tainted with incompleteness by virtue of which a Legal vacuum has - 10 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 evolved. To neutralize the same, kind intervention of This Hon'ble Court is humbly called for. It was highly erroneous on the part of the First Appellate Court when it held that that Respondent No. 5 is the owner of Plaint schedule property and that the same happened to be absolute women estate much against material factual propositions and Law. The fact of the matter is that EX D-2 and D-3 that is Registered Deeds of Sale Dated 30-1-1967 and 17-7-1970 respectively were void-ab-initio as the property was declared as 'BEELU and that alleged vendors of Respondent No. 5 did not have right to sale the same. The Hon'ble Trial Court gave such findings in its Judgment and Decree dated 27-4-2019. Respondents did not prefer Cross Appeal against the said findings. In its absence said findings have reached finality as the First Appellate Court in its Judgment has confirmed the Judgment in OS. No.62/2002. The Hon'ble First Appellate Court and The Hon'ble Trial Court conveniently forgot that in a suit for specific performance of contract Title of the property cannot be considered in reckon with Title suit encompassing the relief of Declaration of ownership pertaining to immovable property. Relevant material issues are validity of Agreement to sell, ready and willingness to discharge contractual covenants by Plaintiff. Such being Legal proposition both Trial and First Appellate Courts have answered both in favour of Appellant. Hence denial of - 11 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 decree of Specific Performance based on alien issues is bad in Law. The impugned Judgment and Decrees in OS.62/2002 dated: 27-4-2019 delivered by The Hon'ble Judge, Additional Small Causes and Senior Civil Judge Court, Mysuru and in RA.173/2019 dated: 11-01-2022 delivered by The Hon'ble Principal and District and Session Judge, Mysuru are also bad from the stand point of approbation and reprobation. It was highly erroneous on the part of the First Appellate Court when it held that Respondent No. 1 to 3 were not the owners of the Plaint schedule property based on extraneous findings and observation. Mere production of EX D-2 and D-3 did not dispense with the proof of the documents as per ethos of Section 68 of Indian Evidence Act, 1872. The Hon'ble Trial Court as well as the First Appellate Court erred in not considering vital fact that Plaint schedule property at the time of notification issued by MUDA stood in the name of Kuntaiah Propositus of Defendant No. 1 and that by right of inheritance he got Plaint schedule property. The Hon'ble Trial Court as well as the First Appellate Court failed to consider yeomen efforts of Plaintiff in seeking De-notification of Plaint schedule property from MUDA under the aegis Smt. Chikkamma - 12 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 Educational and Religious Charitable Trust (R). The property was dropped from the ambit of acquisition for usage of the same for educational purposes published in Gazette dated 11-7-1996. The same is not challenged by Respondents. Hence the purpose of De-notification of plaint schedule property has remained intact. De- notification of Plaint Schedule property passed by MUDA mandates usage for purpose of above referred Trust. Payment of full sale consideration at the time of execution of EX P-1 and P-2 and further ever ready and willingness to have sale deed on the part of Plaintiff deserve to have benediction of Decree of Specific performance of Contract by neutralizing babel bellicosity of Respondents. The Hon'ble Trial Court as well as the First Appellate Court committed gross error of Law in not delving with relief of Specific Performance of Contract in consonance with amendment introduced to section 10 of Specific Relief Act 1963 which envisages mandatory grant of Specific performance in respect of Contracts rather than erstwhile directory clause. Hence impugned Judgment and Decrees are perfunctory and otiose. HENCE THE APPEAL. 7. In the appeal, following substantial questions of law arise for consideration: 1. Whether both the Courts below were Justified in denying the relief of specific performance of contract / - 13 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 agreements to sell dated 02-02-1996 and dated 20-7- 1996 inspite proving execution of the same as well as proving his ready and willingness in having sale deed pertaining to plaint schedule property? 2. Whether both the Courts below were Justified in denying the relief of specific performance of contract / agreements to sell dated 02-02-1996 and dated 20-7- 1996 against the Letter and Spirit of amendment introduced to Section 10 of Specific Relief Act 1963, substituted by Act No. 8/2018 with effect from 01-10- 2018? 3. Whether First Appellate Court was Justified in rejecting Interlocutory Application No. VI of Appellant filed under Order VI Rule 17 of CPC 19087 4. Whether First Appellate Court was Justified in rejecting Interlocutory Application No. VII of Appellant filed under Order XLI Rule 27 of CPC 19087 5. Whether First Appellate Court was justified in disposing of RA.173/2019 without adjudicating IA. No. 4 filed under Section 2-B of Contempt of Courts Act? 6. Whether First Appellate Court was justified in disposing of RA.173/2019 without adjudicating I.A. No.9 filed under Order XLI Rule 22 of C.P.C read with Section 151 of C.P.C. 19082 - 14 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 7. Whether First Appellate Court was justified in disposing of RA.173/2019 without adjudicating I.A. No. 10 filed under Section 14-A of Specific Relief Act read with Section 49 of Evidence Act further read with Section 151 of C.P.C. 1908? 8. Whether Trail Court was justified in rejecting in Interlocutory applications filed by the Plaintiff/Appellant under Order VI Rule 17 of CPC 1908, Order XIV Rule 5 of CPC 1908 and Order VII Rule 14 (3) of CPC 1908? 9. Whether both the Courts below were Justified in denying the relief of specific performance of contract / agreements to sell dated 02-02-1996 and dated 20-7- 1996 inspite of Plaintiff having physical possession of plaint schedule property since 20-7-1996 date of execution of additional agreement to sell ? 10. Whether both the Courts below were Justified in denying the relief of specific performance of contract / agreements to sell though Plaintiff /Appellant succeeded in getting de-notification of plaint schedule property from MUDA with specific object of usage of the same for educational purpose under aegis of Smt. Chikkamma Educational and Religious Charitable Trust? 8. Having heard the arguments on both sides, this Court perused the material on record meticulously. - 15 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 9. On such perusal of material on record, it is crystal clear that the agreement to sell dated 02.02.1996, which is marked as Ex.P1 before the Court in O.S.No.62/2002 is a registered agreement. 10. The Trial Judge has recorded the categorical finding that the plaintiff was successful in establishing that first defendant executed Ex.P1 and received the sale consideration under Ex.P1. Readiness and willingness was also established by the plaintiff by placing cogent and convincing evidence on record. Legal notice which was issued by the plaintiff was not received by the first defendant and same is also placed on record. 11. However, the learned Trial Judge noticed that the first defendant did not possess any right in respect of the suit property as in the revenue records, the said property was shown that it is the property belonging to the Government. - 16 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 12. In the meantime, there were several other proceedings in respect of suit property inasmuch as, the Mysore Urban Development Authority (hereinafter referred to as 'MUDA' for short) has notified the suit property for acquisition. Appellant claims that he worked with the MUDA and got the suit property dropped from the acquisition proceedings. It is also borne out by records that again the land is shown as the Government property. 13. Be that as it may, since the first defendant was not the owner of the property, the learned Trial Judge appreciating the material evidence placed on record was justified in holding that even though the plaintiff was successful in establishing the agreement, readiness, and willingness; and payment of consideration, rightly dismissed the suit of the plaintiff holding that defendant has no title over the suit property so as to order passed specific enforcement of registered agreement to sell dated 02.02.1996 marked as Ex.P1. - 17 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 14. Pertinently, the first defendant did not challenge the finding recorded by the Trial Judge that the plaintiff was successful in establishing the fact of execution of the agreement, receipt of sale consideration and readiness and willingness proved by the plaintiff. In other words, the first defendant was satisfied with the dismissal of the suit. 15. It is also pertinent to note that the First Appellate Court rightly dismissed the appeal filed by the plaintiff noting that the property is the government property. The efforts said to have been made by the appellant in getting the property dropped from acquisition etc., are all not subject matter of the present appeal and cannot be considered. 16. Learned counsel Sri. M. Krishnappa appearing for the defendants submits that with regard to the efforts made by the plaintiff in getting four alternate sites allotted by virtue of registered agreement to sell is the subject - 18 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 matter of writ petition before this Court in W.P.No.6543/1024 (LB). 17. If it is so, it is always open for the first defendant to work out his remedy before the appropriate forum. 18. Taking note of the scope of the suit and dismissal of the suit thereof by the Trial Judge for want of title to be passed on by the first defendant in favour of the plaintiff, thus requires no interference by this Court in the second appeal. 19. Further, since the consideration amount has been proved by the plaintiff as per the judgment of the Trial Court and the First Appellate Court and the first defendant has not questioned the said finding, by applying the doctrine of unjust enrichment, the first defendant is bound to return the sale consideration of Rs.62,500/- with interest at the rate of 6% per annum from the date of agreement till realization. - 19 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 20. Accordingly, the substantial questions of law raised on behalf of the appellant do not merit for further consideration except to the extent of the plaintiff being entitled to get the relief of return of sale consideration with interest at the rate of 6% per annum from the date of agreement till realization. 21. Hence, the following : ORDER (i) The regular second appeal is allowed in part. (ii) While confirming the dismissal of suit of the appellant/plaintiff dated 27.04.2019 in O.S.No.62/2002, confirmed by the Prl. District and Sessions Judge, Mysuru, in RA No.173/2019 vide judgment dated 11.01.2022, in view of the fact that the Trial Judge has recorded a categorical finding that payment of sale consideration of Rs.62,500/- has been established by the plaintiff, the same is ordered to be returned to the plaintiff with interest at - 20 - HC-KAR NC: 2025:KHC:30089 RSA No. 714 of 2022 6% per annum from the date of agreement till realization. Ordered accordingly. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 53 CT: BHK