- 1 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO.5507 OF 2009 (SP) BETWEEN: 1. S.M.KOTRAIAH S/O MARISWAMY (SINCE DECEASED BY HIS LRS.,) 1A. UMADEVI W/O. S.M. KOTRAIAH, AGE: 61 YEARS, R/O. DOOR NO.370/15. WARD NO.1, ACHARYA LAYOUT, HARAPPANAHALLI, TQ. HARAPPANAHALLI, DIST. VIJAYANAGAR-583131. 1B. S.M. VINAYAKA S/O. S.M. KOTRAIAH, AGE: 40 YEARS, R/O. DOOR NO.370/15. WARD NO.1, ACHARYA LAYOUT, HARAPPANAHALLI, TQ. HARAPPANAHALLI, DIST. VIJAYANAGAR-583131. 1C. S.M. SWAROOP S/O. S.M. KOTRAIAH, AGE: 36 YEARS, R/O. DOOR NO.370/15. WARD NO.1, ACHARYA LAYOUT, HARAPPANAHALLI, TQ. HARAPPANAHALLI, DIST. VIJAYANAGAR-583131. 2. S.M.NAGAIAH S/O. MARISWAMAIAH, AGE: 46 YEARS, EMPLOYEE IN LEPRACY HOSPITAL, R/O. KUDLIGI, DIST:BELLARI. YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.10.18 10:54:01 +0530 - 2 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 3. TIPPAMMA W/O. MARULASIDDAIAH, AGE: 65 YEARS, AGRICULTURIST, R/O. NIMBALGERE, TQ. KUDLIGI, DIST. BELLARI. …APPELLANTS (BY SRI. J.S. SHETTY, ADVOCATE) AND: 1. B.M.CHANNAVEERAIAH @ B.M. AJJAIAH (SINCE DECEASED BY HIS LRS.,) 1A. SIDDAMMA W/O. B.M. CHANNAVEERAIAH (SINCE DECEASED) 1B. UMESH S/O. B.M. CHENNAVEERAIAH, AGE: 45 YEARS, OCC. AGRICULTURIST, R/O. NIMBALAGERE, TQ. KUDLIGI, DIST. BELLARI-583136. 1C. SHASTRI S/O. B.M. CHENNAVEERAIAH, AGE: 40 YEARS, OCC. AGRICULTURIST, R/O. NIMBALAGERE, TQ. KUDLIGI, DIST. BELLARI-583136. …RESPONDENT (R1 (A)-DECEASED; R1(B) AND R1(C)-NOTICE SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD: 24/7/2009 PASSED IN R.A.NO:10/2007 ON THE FILE OF THE CIVIL JUDGE (SD), KUDLIGI, ALLOWING THE APPEAL, FILED AGAINST THE JUDGEMENT AND DECREE DTD: 31/1/2007 PASSED IN O.S.NO:46/1999 ON THE FILE OF THE CIVIL JUDGE(JR.DN) AND JMFC, KUDLIGI, DISMISSING THE SUIT FILED FOR SPECIFIC PERFORMANCE. THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Being aggrieved by the judgment in R.A.No.10/2007 dated 24.07.2009 by the learned Civil Judge (Senior Division), Kudligi, who reversed the judgment and decree in O.S.No.46/1999 by the learned Civil Judge (Junior Division), Kudligi, the respondents therein are before this Court. 2. The factual matrix that is relevant for the purpose of this appeal may be summarized as below: i) The plaintiff (B. M. Channaveeraiah) filed a suit in O.S.No.46/1999 contending that one Rudramma who is wife of defendant No.1 and mother of defendant Nos.2 and 3 has sold the suit schedule property in favour of the plaintiff for a consideration of Rs.12,000/- on 19.12.1988. After receiving the sale consideration amount, she executed a sale agreement in favour of the plaintiff which is the house property bearing Door No.110 situated in Ward No.1 of Nimbalageri - 4 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 village, Kudligi Taluk within the registration district of Ballari and sub-registration district of Kudligi, bounded by open space on the East, remaining half portion of Thippamma in the same house on the West, house of the plaintiff on the North and house of Sannaveeranna on the South. On the same day she delivered possession of the suit schedule property in favour of the plaintiff. During pendency of the suit, the said Thippamma was impleaded before the Trial Court. Since the plaintiff is in possession and enjoyment of the suit schedule property, there was no obstruction by the said Rudramma during her lifetime. After purchasing of the suit schedule property, he has repaired the house by incurring heavy expenses and is using it for sericulture purpose. It is contended that defendant Nos.1 to 3 are the relatives of the plaintiff and therefore, the plaintiff had not insisted for the execution of the regular registered sale deed in his favour during lifetime of Rudramma. At the instance of some persons - 5 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 who are enimical with the plaintiff, defendant Nos.1 to 3 raised dispute with respect to the schedule property and started denying the ownership of the plaintiff. They also raised mutation disputes before the learned Assistant Commissioner, Hospete and as such, the plaintiff demanded defendant Nos.1 to 3 to come and execute regular registered sale deed by issuing a legal notice on 23.02.1999. When the defendants failed to respond to the said notice, the plaintiff was constrained to file the suit for specific performance of the agreement. ii) The said suit was resisted by defendant Nos.1 to 3 contending that the plaintiff is intending to grab the suit schedule property by taking undue advantage of the absence of the defendants from the village Nimbalageri and that the plaintiff was not at all in possession of the suit house. It is contended that in the description of the boundaries of the suit schedule property, there is - 6 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 one Thippamma and therefore, when the said Thippamma is not a party to the alleged agreement and to this suit, the alleged agreement is not of any relevance and it do not bind the defendants in anyway. It is alleged that, it was the plaintiff who raised the dispute before the learned Assistant Commissioner and initially the plaintiff had contended that it was the sale deed and later he changed his stance saying that it is an agreement of sale. Therefore, when the rights of Rudramma and Thippamma are not determined by meter and bounds, the suit is not maintainable and as such they sought for dismissal of the suit. 3. On the basis of the above contentions, the Trial Court framed the following issues: “1) Whether plaintiff has described the suit property properly and correctly so as to identify the same? 2) Whether the plaintiff proves that on 19.12.1988 Smt. Rudramma during her life-time has sold the suit schedule property to him for Rs. 12,000/- as pleaded in para-III of the plaint? - 7 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 3) Whether defendants prove that suit is bad for non-joinder & necessary parties like Thippamma? 4) Whether plaintiff is ready and willing to perform his part of contract? 5) Whether the plaintiff is entitle for the relief of specific performance of contract as prayed for? 6) What order or decree? ADDITIONAL ISSUE 1) Whether defendants prove that the suit is barred by limitation?” 4. The plaintiff examined 3 witnesses in support of his case as PW.1 to 3 and Ex.P.1 to 14 were got marked. The defendants examined 4 witnesses as DW.1 to 4 and Ex.D1 to 3 were marked. After hearing both sides, the Trial Court answered the issue Nos.1, 2, 4 and 5 in the negative, additional issue No.1 in the affirmative and proceeded to dismiss the suit. 5. Being aggrieved by the said judgment, the plaintiff approached the First Appellate Court in R.A.No.10/2007. The First Appellate Court after hearing the arguments by both sides, framed the following points for consideration. “i) Whether the trial Court is justified in holding that the deceased Rudramma has not sold the suit schedule - 8 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 property infavour of plaintiff by receiving of Rs.12,000/- inrespects of the suit schedule property? iii) Whether the trial Court is justified in holding that the suit of the plaintiff is barred by limitation? iv) Whether the trial Court is justified in holding that the plaintiff is not entitled for the relief of specific performance of contract? v) Whether the Judgment and decree of the trial Court warrants interference? vi) What order or decree?” 6. Answering point Nos.1 to 3 in the negative and point No.4 in the affirmative, it allowed the appeal and decreed the suit of the plaintiff, directing defendants to execute the sale deed. Being aggrieved, the defendants are before this Court. During pendency of this appeal, appellant No.1 died and appellant Nos.2 and 3 continued the suit as they being the legal heirs of appellant No.1. So also the sole respondent/plaintiff died during pendency of this appeal and legal heirs are brought on record. After hearing the learned counsel appearing for the appellant, this Court admitted the appeal on 03.03.2014 and following substantial questions of law were framed. “a) Whether the First Appellate Court has committed a serious error in ignoring the material evidence in the matter of limitation? - 9 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 b) Whether the First Appellate Court has committed a serious error in ignoring the material evidence in regard to the proof of readiness and willingness?” 7. The arguments by the learned counsel appearing for the appellants and the respondents were heard. 8. It is worth to note that there are divergent opinions by the Trial Court and the First Appellate Court. It is settled principle of law that the evidence has to be led on the contentions taken up in the pleadings. The pleadings are the foundation of any lis and if the evidence is otherwise than the pleadings, it would carry no weight. Keeping in mind, the fundamental principles of pleadings and proof, the contentions in this appeal are to be looked into. 9. The plaint of the respondent states that Rudramma during her lifetime i.e., on 19.12.1988 has sold the suit schedule property for a consideration of ₹12,000/- and then after receiving the sale price, she had executed a sale agreement in favour of the plaintiff on 19.12.1988 and she delivered the possession. It is pertinent to note that the plaintiffs though produced the alleged unregistered sale deed, which came to be - 10 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 marked as Ex.P.1 (which should have been impounded for non- registration of the same) they did not produce any document styled as the agreement of same. This contention in the plaint was also reiterated by the plaintiff in paragraph No.1 of the affidavit evidence. In a cross-examination, it is elicited that PW.1 do not know the reason, as to why the Ex.P.1 is not registered. Evidently, the alleged sale had taken place on 19.12.1988. When that is the case, the First Appellate Court was bound to have considered the said anomaly. A perusal of the impugned judgment of the First Appellate Court would show that, it considers Ex.P.1 to be an agreement of sale, even though, it is styled as a sale deed. It failed to note that, as per the pleadings, apart from the sale deed, there was an agreement also that was executed between the parties. It is evident that the First Appellate Court erred in holding that Ex.P.1 though written in the form of a sale deed, but in fact it is an agreement of sale. It is pertinent to note that after the sale, there cannot be an agreement for sale. It is not the case of the plaintiff that the sale was oral. - 11 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 10. Secondly, the First Appellate Court notices that the denial for execution of the registered sale deed was only subsequent to the legal notice issued in the year 1999 and therefore, it holds that the limitation starts from the date of refusal to execute the sale deed. It is true that under Ex.P.1, no period was fixed for execution of the sale deed. It simply mentioned that, whenever the plaintiff calls, the registered sale deed would be executed. It is pertinent to note that the silence of the plaintiff to get the sale deed executed for considerably long time, particularly till the year 1999, is not explained by him. The only reason that could be found is that they were relatives and therefore, he being in possession, continued to enjoy the property. The disputes commenced only when the said Rudramma died and the proceedings for change of the mutation was commenced. 11. The Trial Court in its impugned judgment holds that Ex.P.1 is neither sale deed nor agreement for sale. It further holds that the plaintiff had purchased the property without going through any title deeds and as such Ex.P.1 is an ambiguous document. It also notices that PW.2 and PW.3 failed to support - 12 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 the case of the plaintiff with regard to purchase of the suit schedule property in accordance with law. It also notices that there is inordinate delay in filing the suit. It is pertinent to note that it has not approved the delay in filing the suit for the reason that the plaintiff and Rudramma were relatives and out of love and affection, the plaintiffs did not choose to get the sale deed executed. 12. The alleged agreement in the form of a sale deed is of the year 1988. The suit is filed on 23.03.1999. The span of 11 years for filing of the suit is not fully explained by the plaintiff in satisfactory manner. Even if we hold that, the plaintiff kept quiet, since the defendants were the blood relatives, it would not pass the test of the delay and latches. The law enjoins vigilance for a person who purchases a property and tries to exercise his right over it. Since the plaintiff and defendants were relatives, it cannot be said that registration of the valid sale deed, could be postponed indefinitely and the plaintiff can assert the right on the basis of an invalid conveyance deed. Therefore, it appears from the records that the First Appellate Court has committed a serious error in ignoring the material evidence, concerning the - 13 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 limitation. Consequently, the first substantial question of law has to be answered in the affirmative. 13. Coming to the second substantial question of law, it is needless to say that the plaintiff though contends that he was always ready and willing to perform his part of the contract in calling the defendants or Rudramma for execution of the sale deed, his silence for about 11 years, till the death of Rudramma, cannot be countenanced. The ready and willingness is a matter, which should be acceptable and convincing. It may be true that the plaintiff has paid the entire sale consideration amount to the said Rudramma. Evidently, the property was owned by Rudramma as well as Thipamma. It is an admitted fact that the property was owned by Rudramma and Thipamma. If that is so, the reason as to why the plaintiff kept quiet without impleading Thipamma as defendant also reflects on his conduct. However, at a later date she was impleaded. 14. Moreover the averments of Ex.P.1 show that the possession was also handed over under it and it is titled as a sale deed. But it incorporates a condition that the defendant has to come and execute the sale deed, whenever the plaintiff calls - 14 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 her/them. Therefore, the conclusions reached by the Trial Court on the basis of the evidence placed on record appear to be more convincing and acceptable. 15. The manner in which, the evidence has to be appreciated is dealt by the Hon’ble Apex court in the case of Santosh Hazari vs. Purushottam Tiwary1 in a lucid way. The First Appellate Court cannot overturn the judgment of the Trial Court, simply because a different proposition is possible in the light of the evidence on record. The Trial Court had the advantage of seeing the demeanor of the witnesses and the manner in which the trial was conducted. Obviously, the First Appellate Court did not have that advantage before it. As held by the Honb’le Apex Court in the case of Santosh Hazari (supra), it is the view taken by the Trial Court, which has to be respected. The judgment of the Trial Court can be upset, only if the judgment of the Trial Court is perverse and it overlooks the evidence placed on the ground. In that view of the matter, the First Appellate Court definitely erred in upsetting, the well reasoned judgment of the Trial Court. Hence, this Court is of the 1 (2001) 3 SCC 179 - 15 - HC-KAR NC: 2025:KHC-D:13719 RSA No. 5507 of 2009 view that the impugned judgment of the First Appeal Court is not sustainable in law. In the result, the substantial questions of law raised by this Court are answered in favour of the appellants. Hence the following: ORDER i) The appeal is allowed. ii) The impugned judgment of the First Appellate Court is set aside. iii) The judgment of the Trial Court is restored and confirmed. iv) The suit stands dismissed. SD/- (C M JOSHI) JUDGE SSP CT:PA List No.: 1 Sl No.: 39