- 1 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 29TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO.100432 OF 2022 (SP) BETWEEN: SHIVAPPA S/O. VITTAL JONGANAVAR AGE: 31 YEARS, OCC: AGRICULTURE, R/O. MADARKHANDI, TQ: JAMKHANDI, DIST: BAGALKOT-587119. …APPELLANT (BY SRI. GIRISH A.YADAWAD, ADVOCATE) AND: 1. SRI. ALLAPPA S/O. MUTHAPPA KALLENNAVAR AGE: 36 YEARS, OCC: AGRICULTURE, R/O. MUGALKHODA, TQ: MUDHOL-587113, DIST: BAGALKOT. KALLAPPA S/O. MUTHAPPA KALLENNAVAR (SINCE DECEASED BY HIS LR’s) 2. SMT. SHOBHA W/O. KALLAPPA KALLENNAVAR AGE: 41 YEARS, OCC: AGRICULTURE AND HOUSEHOLD, R/O. MUGALKHODA, TQ: MUDHOL-587113, DIST: BAGALKOT. 3. KUMAR. SIDDU S/O. KALLAPPA KALLENNAVAR YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 AGE: 17 YEARS, OCC: STUDENT, R/O. MUGALKHODA, TQ: MUDHOL-587113 DIST: BAGALKOT. 4. KUMARI. POOJA D/O. KALLAPPA KALLENNAVAR AGE: 16 YEARS, OCC: STUDENT, R/O. MUGALKHODA, TQ: MUDHOL-587113, DIST: BAGALKOT. 5. KUMARI. AISHWARYA D/O. KALLAPPA KALLENNAVAR, AGE: 14 YEARS, OCC: STUDENT, R/O. MUGALKHODA, TQ: MUDHOL-587113 DIST: BAGALKOT. (R2 IS THE MINOR GUARDIAN AND NATURAL MOTHER OF R3 TO R5) …RESPONDENTS (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R2; NOTICE TO R1 IS SERVED; R3 TO R5 ARE MINORS REPRESENTED BY R2) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 21.04.2021 PASSED IN O.S.NO.122/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, DISMISSING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA - 3 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present first appeal is filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 19081 by the plaintiff calling in question the judgment and decree dated 21.04.2021 passed in O.S.No.122/2019 by the Additional Senior Civil Judge and JMFC, Mudhol2, whereunder the suit for specific performance filed by the plaintiff has been dismissed by the Trial Court. 2. The parties are referred to as per their rank before the Trial Court for the sake of convenience. 3. It is the case of the plaintiff that, the 1st defendant is the owner of the suit property bearing R.S.No.175/7 measuring 2 acres 14 guntas situated at Mugalkhod village, Mudhol Taluk3. That defendant No.1 offered to sell the suit property and the plaintiff offered to purchase the same for a total sale consideration of ₹16,00,000/-, which was accepted by the 1st 1 Hereinafter referred to as “CPC” for short 2 Hereinafter referred to as “the Trial Court” for short 3 Hereinafter referred to as “suit property” for short - 4 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 defendant. Accordingly, the plaintiff and the 1st defendant entered into a registered Agreement of Sale dated 11.05.2016, whereunder, the plaintiff paid a total sum of ₹15,30,000/- to the 1st defendant. The balance sale consideration of Rs.70,000/- was required to be paid within one year, consequent to which the registered sale deed was required to be executed. That the 1st defendant executed a registered gift deed in favour of the 2nd defendant with respect to the suit property on 23.09.2016. That despite various oral requests, since the 1st defendant did not execute the sale deed, the plaintiff got issued a legal notice on 22.04.2019, which was replied by the 1st defendant. It is further averred that the plaintiff was always ready and willing to pay the balance sale consideration and complete the sale transaction. Hence, the plaintiff filed the suit seeking for the following reliefs: “10. PRAYER: The plaintiff most humbly and respectfully prays that: A) Therefore, This Hon'ble Court be pleased to pass a decree, directing the defendants to execute a registered sale- deed in respect of suit landed property bearing R.S.No. 175/7, measuring 2 A-14 Gunta, assessed at Rs.0.97/- situated at village Mugalkod, taluk Mudhol in favour of the plaintiff as per the terms of the agreement of - 5 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 sale dated 11.05.2016 and to do all necessary etc., deeds, things for completion of legal formalities for execution of sale-deed in respect of the suit property may be passed; B) Failing in compliance of the above, it may be further ordered to appoint a Court Commissioner to execute said sale-deed as per the suit agreement dated 11.05.2016; C) In alternatively the plaintiff prays that, this Hon'ble Court be pleased to order the defendants to return the amount taken from the plaintiff of Rs. 15,30,000/- with damages after determining the same and by way of interest at the rate of 24% per annum, till the realization, in case if prayer for specific performance cannot be granted; D) Cost of the suit may be awarded: E) Any other just and equitable relief's which this Hon'ble Court may deem fit and proper, in the circumstance of the case may be granted, in the interest of justice.” 4. The defendants entered appearance in the suit and the 1st defendant filed the written statement. Defendant No.2 died during pendency of the suit and his legal representatives have filed a memo adopting the written statement filed by defendant No.1. In the written statement, the 1st defendant has averred that his sister is the mother of the plaintiff that the suit for partition in O.S.No.214/2017 was filed by the sister of the - 6 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 plaintiff which is pending. That, the father of the plaintiff has filed a suit in O.S.No.227/2018 against his brother Kallappa and others in respect of R.S.No.175/5+6. It is further averred that defendant Nos.1 and 2 are innocent persons and the plaintiff and his father by misutilizing the innocence, without giving any sale consideration created a false agreement of sale. It is further averred that there was no occasion for the parties to alienate the suit property. That the 2nd defendant is the owner of the property by virtue of a gift deed dated 23.09.2016. Hence, the defendants sought for dismissal of the suit. 5. Based on the pleadings of the parties, the Trial Court framed the following issues: 1. Whether plaintiff proves that the defendant No.1 agreed to sell the suit property for Rs.16,00,000/- and received advance sale consideration amount of Rs.15,30,000/- and executed registered agreement of sale dated 11.05.2016 and agreed to balance sale consideration amount of Rs.70,000/- at the time of execution of registered sale deed? 2. Whether plaintiff proves that the gift-deed executed by defendant No.1 in favour of defendant No.2 on 23.09.2016 is not binding on him? - 7 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 3. Whether plaintiff proves that he is ready and willing to perform his part of contract? 4. Whether plaintiff is entitled for the relief sought for? 5. What Order or Decree? 6. The plaintiff examined himself as PW.1. Exs.P.1 to P.9 were marked in evidence. Defendant No.1 examined himself as DW.1. No documentary evidence has been adduced by the defendants. 7. The Trial Court by its judgment and decree dated 21.04.2021 dismissed the suit with cost. Being aggrieved, the plaintiff has filed the present appeal. 8. Learned counsel for the appellant – plaintiff assailing the judgment and decree passed by the Trial Court contends that the Trial Court having recorded a finding that the agreement has been proved erred in dismissing the suit on the ground that the plaintiff has failed to prove his readiness and willingness. It is further contended that having regard to the fact that almost the entire sale consideration has been paid by the plaintiff, the suit filed by the plaintiff ought not to have been dismissed. - 8 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 9. Per contra, learned counsel for the respondents – defendants justifies the dismissal of the suit by the Trial Court and further placing reliance on the relationship between the parties as well as the pendency of the other suits between the parties. 10. The submissions of learned counsel have been considered and materials on record including the records of the Trial Court have been perused. 11. The questions that arise for our consideration are: i) Whether the Trial Court was justified in dismissing the suit although the finding has been recorded that the agreement has been proved? ii) In the event, question No.(i) is answered in the negative, what order? 12. The relevant fact situation vis-à-vis the relationship between the parties is undisputed. It is further undisputed that the agreement of sale dated 11.05.2016 is a registered one. In the said agreement of sale (Ex.P1) the defendant No.1 has agreed to sell the suit property for a total sale consideration of ₹16,00,000/- in favour of the plaintiff and the advance that has - 9 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 been acknowledged to have been received by the defendant No.1 from the plaintiff is a sum of ₹15,30,000/-. It is stated in the agreement that the balance sale consideration of ₹70,000/- was required to be paid within one year. It is forthcoming that the plaintiff got issued a legal notice dated 22.04.2019 (Ex.P15) to the defendant No.1, which notice has been replied vide reply dated 29.04.2019 (Ex.P8). 13. It is clear from the aforementioned that the plaintiff was required to pay the balance sale consideration of ₹70,000/- within one year from 11.05.2016 i.e., on or before 11.05.2017, whereas the notice (Ex.P5) has been issued on 22.04.2019. Although, the plaintiff has averred in the plaint that on various dates he orally called upon the defendant No.1 to receive the balance sale consideration, no independent oral or documentary evidence has been adduced in that regard. 14. The Trial Court, while appreciating the fact situation vis-à-vis the execution of the agreement of sale, has recorded the following findings: “14. In order to prove the agreement of sale the plaintiff has produced the original - 10 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 agreement of sale dated 11.05.2016 as per Ex.P.1.The said agreement of sale is a registered document and it has got presumptive value in the eye of law. By perusing the recitals of Ex.P.1 it is clear that the defendant No.1 accepted the offer made by the plaintiff for purchase of the suit land for sale consideration amount of Rs.16,00,000/- and received Rs.15,30,000/- as earnest amount and executed the agreement of sale as per Ex.P.1.The defendants are denied the contention of the plaintiff and they contended that they are innocents by misutilizing their innocence the plaintiff got created the agreement of sale. Further the defendant No.1 in his cross examination clearly admitted that at the time of drafting the agreement of sale he has given RTC extract of the suit land to the deed writer and gave information to the deed writer for preparing the agreement of sale. Further he also admitted that after drafting the agreement of sale its content were read over to him and after understanding the contents he put his signature to the agreement of sale and even he has also admitted his signature which is marked as per Ex.P.1(a).From the oral evidence of D.W.1 it is clear that the defendant No.1 executed the registered agreement of sale in favour of the plaintiff agreeing to sell the suit land for Rs.16,00,000/- and received - 11 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 earnest amount of Rs.15,30,000/- and agreed to execute the registered sale-deed after receiving balance sale consideration amountoRs.70,000/-. 15. The learned counsel for the plaintiff contended that the defendant No.1 in his cross examination categorically admitted with regard to the execution of the agreement of sale as such the evidence of witnesses to the agreement of sale is not necessary. This contention of the learned counsel for the plaintiff is acceptable as the defendant No.1 in his cross examination clearly admitted with regard to the execution of the agreement of sale then there is no need for examining the witnesses of the agreement of sale. On the other hand the learned counsel for the defendants contented that the defendant Nos.1 and 2 are innocents by taking undue advantage of the innocence of the defendants the plaintiff got created the alleged agreement of sale hence the alleged agreement of sale is not a genuine one. And the learned counsel for the defendants also relied on the cross examination of P.W.1 and contented that the father of the defendant No.1 was looking after the family affairs of the defendants and accordingly father of the plaintiff at his convenience got created the false agreement of - 12 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 sale and further contended that the plaintiff has not examined attesting the agreement of sale and without the evidence of attesting witness the agreement of sale cannot be said to be proved. But these contentions of the learned counsel for the defendants is not acceptable one because the defendant No.1 i.e., D.W.1 in his cross examination has clearly admitted with regard to the execution of the agreement of sale by him. When the defendant No.1 has clearly admitted the execution of agreement of sale then whatever contentions taken by the defendants are not sustainable one. Hence I am of the considered view that the plaintiff has proved that the defendant No.1 executed the agreement of sale dated 11.05.2016 and received earnest amount of Rs.15,30,000/- and agreed to receive balance sale consideration amount of Rs.70,000/- and execute the registered sale-deed in favour of the plaintiff. Hence, I answered the issueNo.1 in the Affirmative.” (emphasis supplied) 15. It is clear from the aforementioned that the Trial Court has noticed that the defendant No.1 in his cross- examination has admitted the execution of the agreement of sale. Although it is the vehement contention of the learned - 13 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 counsel for the respondent that the plaintiff has not examined any independent witness to prove the agreement, having regard to the fact that the agreement of sale (Ex.P1) is registered one and the execution of the same having been admitted by the defendant No.1, the finding of the Trial Court that the plaintiff has proved that the defendant No.1 executed the agreement of sale dated 11.05.2016 and received the earnest money of ₹15,30,000/- is just and proper. 16. The Trial Court, while considering the aspect with regard to the readiness and willingness as also the relief that was to be granted, has noticed that there is no material on record to demonstrate that the plaintiff was ready and willing to complete the sale transaction. Hence, the Trial Court has answered issue No.3 in the negative. As rightly held by the Trial Court, apart from the registered agreement of sale dated 11.05.2016 (Ex.P1) and the issuance of notice dated 22.04.2019 (Ex.P5), the plaintiff has not placed any other documentary material on record to demonstrate that he offered to pay the balance sale consideration of ₹70,000/- to the defendant No.1. - 14 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 The plaintiff has also not adduced any other oral evidence in that regard apart from his self-serving testimony. 17. However, the Trial Court, while holding that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract, which finding is just and proper, has erroneously held that the plaintiff is not entitled to the relief of specific performance or alternative relief of refund of earnest money. In this context, it is pertinent to note that in the plaint, the plaintiff while seeking for the relief of specific performance vide prayer 10(a) made in the plaint, has vide prayer 10(c) has sought for the alternative relief of refund of the advance amount of ₹15,30,000/- together with interest @24% per annum. In the present case, having regard to the fact that the plaintiff has proved the execution of the agreement of sale dated 11.05.2016 as also payment of earnest money of ₹15,30,000/-, it is just and proper that the defendant No.1 be ordered to refund the said earnest money deposit of ₹15,30,000/-. 18. With regard to the interest, having regard to the relationship between the parties and keeping in mind the discretion that has to exercised by this Court under Section 34 of - 15 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 CPC, it is just and proper that defendant No.1 be ordered to refund the earnest money deposit of ₹15,30,000/- together with interest @8% per annum from the date of agreement of sale till realization. Hence, question Nos.(i) is answered in the negative and question No.(ii) is answered accordingly, as above. 19. In view of the aforementioned, the following: ORDER i) The appeal is partly allowed. ii) The judgment and decree dated 21.04.2021 in O.S.No.122/2019 on the file of the Additional Senior Civil Judge and JMFC, Mudhol is set aside and the said suit is partly decreed by directing the defendant No.1 to refund the sum of ₹15,30,000/- together with interest @8% per annum from the date of agreement of sale dated 11.05.2016 till the date of payment with costs throughout. - 16 - HC-KAR NC: 2025:KHC-D:11004-DB RFA No. 100432 of 2022 iii) Registry to draw the modified decree accordingly. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE EM, YAN Ct:vh List No.: 15 Sl No.: 21