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2025 DAILYLAW 77929 (KAR)

K H KHATHEJA v. H S VASUDEVA RAO

RSA/1912/2012 · 2025-07-25

Anant Ramanath Hegde

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1912 OF 2012 (SP) C/W REGULAR SECOND APPEAL NO. 1911 OF 2012 IN RSA No. 1912/2012 BETWEEN: 1. K H KHATHEJA W/O LATE K.A.HAMSA,AGE 56 YEARS, 2. UMBAI S/O LATE K.A.JAMSA,AGED 40 YEARS, 3. AHAMED S/O LATE K.A.HAMSA,AGED 36 YEARS 4. K.H.SARAMMA D/O. LATE K.A.HAMSA,AGED 35 YEARS, 5. ISMAIL S/O LATE K.A.HAMSA,AGED 34 YEARS 6. SHAUKATH ALI S/O LATE K.A.HAMSA,AGED 32 YEARS 7. K.H.MARIKURJE S/O LATE K.A.HAMSA,AGED 31 YEARS 8. K.H.NASIMA S/O LATE K.A.HAMSA,AGED 29 YEARS ALL ARE RESIDENTS OF HODAVADA VILLAGE,MADIKERI TALUK Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 KODAGU DISTRICT …APPELLANTS (BY SRI. D P PRASANNA., ADVOCATE) AND: 1. H S VASUDEVA RAO SINCE DEAD BY HIS LRS 1(A) SMT LALITHA V W/O H S VASUDEVA RAO,AGED 72 YEARS 1(B) SMT LATHA D/O H S VASUDEVA RAO,AGED ABOUT 52 YEARS 1(C) SMT SUDHA D/O H S VASUDEVA RAO,AGED ABOUT 50 YEARS 1(D) SMT ASHA D/O H S VASUDEVA RAO,AGED ABOUT 47 YEARS 1(E) SMT GEETHA D/O H S VASUDEVA RAO,AGED ABOUT 45 YEARS ALL ARE RESIDING AT NEAR S.D.M. COLLEGE,UJJIRE, BELTHANGADY TALUK D.K.DISTRICT …RESPONDENTS (BY SRI.B.K PRASHANTH., ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100, R/W ORDER-XLII-A OF CPC AGAINST THE JUDGMENT & DECREE DTD 20.07.2012 PASSED IN R.A.NO.15/2006 ON THE FILE OF AD-HOC DISTRICT JUDGE AND PRESIDING OFFICER, FAST TRACK COURT, KODAGU, MADIKEREI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 22.03.2006 PASSED IN O.S.NO.60/1998 ON THE FILE OF CIVIL JUDGE (SR.DN.), MADIKERI. IN RSA NO. 1911/2012 - 3 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 BETWEEN: 1. K A HAMSA S/O.AHMED (SINCE DECEASED BY HIS LRS) 1(A) K H KHATHEJA W/O.LATE K.A.HAMSA AGED ABOUT 50 YEARS 1(B) UMBAI S/O.LATE K.A.HAMSA AGED ABOUT 34 YEARS 1(C) AHAMED S/O.LATE K.A.HAMSA AGED ABOUT 30 YEARS 1(D) K H SARAMMA D/O.LATE K.A.HAMSA AGED ABOUT 29 YEARS 1(E) ISMAIL S/O. LATE K.A. HAMSA AGED ABOUT 28 YEARS 1(F) SHAUKATH ALI S/O. LATE K.A. HAMSA AGED ABOUT 26 YEARS 1(G) K H MARIKURJE S/O. LATE K.A. HAMSA AGED ABOUT 25 YEARS 1(H) K H NASIMA S/O. LATE K.A. HAMSA AGED ABOUT 23 YEARS ALL ARE RESIDENTS OF HODAVADA VILLAGE MADIKERI TALUK KODAGU DISTRICT ...APPELLANTS - 4 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 (BY SRI. D P PRASANNA., ADVOCATE) AND: 1. H S VASUDEVA RAO SINCE DEAD BY HIS LRS 1(A) SMT LALITHA V W/O H S VASUDEVA RAO AGED 72 YEARS 1(B) SMT LATHA D/O H S VASUDEVA RAO AGED ABOUT 52 YEARS 1(C) SMT SUDHA D/O H S VASUDEVA RAO AGED ABOUT 50 YEARS 1(D) SMT ASHA D/O H S VASUDEVA RAO AGED ABOUT 47 YEARS 1(E) SMT GEETHA D/O H S VASUDEVA RAO AGED ABOUT 45 YEARS ALL ARE RESIDING AT NEAR S.D.M. COLLEGE UJJIRE, BELTHANGADY TALUK D.K.DISTRICT. ...RESPONDENTS (BY SRI.B.K PRASHANTH., ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100, R/W ORDER-XLII-A OF CPC AGAINST THE JUDGMENT & DECREE DTD 20.07.2012 PASSED IN R.A.NO.14/2006 ON THE FILE OF AD-HOC DISTRICT JUDGE AND PRESIDING OFFICER, FAST TRACK COURT, KODAGU, MADIKEREI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 22.03.2006 PASSED IN O.S.NO.118/1995 ON THE FILE OF CIVIL JUDGE (SR.DN.), MADIKERI. - 5 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT These two appeals are filed against the concurrent finding in a suit for specific performance filed by the purchaser and suit for possession filed by the vendor. Suit for specific performance is dismissed. Suit for possession is decreed. 2. Appeal against the aforementioned decrees are also dismissed, confirming the aforementioned decrees. Hence, the plaintiffs in a suit for specific performance and defendants in a suit for possession is before this Court. 3. The suit for specific performance in R.S.A.No.1912 is arising from a decree in O.S.No.60/1998 and R.A.No.15/2006, which is a suit for specific performance and R.S.A. No.1911/2012 is arising from O.S.No.118/1995 and R.A.No.14/2006, which is a suit for possession and rendition of account. Both suits were - 6 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 clubbed together and were decided by a common judgment. So also, both first appeals were clubbed together and were disposed of by a common judgment. 4. The plaintiffs filed a suit to enforce the agreement for sale dated 05.02.1985 in respect of 8 acres of agricultural land. In the agreement it is stated that plaintiff has paid initially Rs.10,101/- on the date of the agreement and Rs.75,000/- is said to be the consideration amount payable. It is noticed that no time limit is fixed in agreement. The possession is said to be delivered to the purchaser. 5. On 07.02.1995 the plaintiff claims to have been paid Rs.20,000/- towards part of the balance consideration and thereafter on 03.06.1995, the purchaser issued a legal notice calling upon the defendant to execute a sale deed stating that the vendor had agreed to sell the property on or before 07.03.1995. To the said notice the vendor replied on 21.06.1995 disputing the agreement for sale. - 7 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 6. The purchaser died in the year 1997. In the meantime, the vendor had already filed a suit in O.S. No.118/1995 seeking possession of the property. Thereafter, the legal representatives of deceased purchaser filed a suit for specific performance on 18.06.1998, in O.S. No.60/1998. Thus, both suits were clubbed together and disposed of by a common judgment after recording common evidence. 7. The Trial Court found that the agreement for sale is proved. The contention of the vendor that the property was given to the plaintiff as a security for the hand loan is not accepted. However, the Court found that the plaintiff was not really willing to perform his part of the contract and declined to grant a specific performance for not complying with the requirement of Section 16(C) of the Specific Relief Act. The Trial Court also recorded a finding that the vendor is entitled to possession of the property as the plaintiff is not entitled for the relief of specific performance. - 8 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 8. Aggrieved by the aforementioned judgment and decree, the aforementioned two first appeals were filed. The first appeals were dismissed in terms of the common judgment agreeing with the reasoning adopted by the Trial Court. Hence, the present Second Appeal. 9. It is contended in the appeal memo that both Courts erred in not granting the decree for specific performance, despite the plaintiffs establishing their readiness and willingness to perform their part of the contract. It is further submitted that no time limit is fixed under the agreement for sale and for possession being handed over, it was understood that the time was not the essence of the contract. Thus, the suit for special performance could not have been dismissed, is the contention. 10. Learned counsel for the vendor/respondents on the other hand would submit that the Agreement dated 05.02.1985 even if it is held to be a valid agreement, the plaintiff has not established his readiness and willingness - 9 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 to perform the contract. The amount of Rs.75,000/- was agreed to be paid and same is not paid within a reasonable time. Though the time limit is not fixed under the agreement, the plaintiff was required to make balance payment within a reasonable time. The purchaser died in the year 1997, for 12 years in his lifetime, he did not file the suit for specific performance. The purchaser issued a notice on 03.06.1995 calling upon the vendor to execute this sale deed, to which the vendor issued reply denying the execution of the agreement. The vendor also filed a suit for possession in the year 1995 in O.S. No.118/1995. However, the purchaser did not file the suit. He died in the year 1997. His legal representatives filed a suit in the year 1998. Referring to the circumstances, the learned counsel would urge that the Plaintiffs have failed to establish readiness and willingness. 11. It is also his submission that the plaintiffs failed to establish that the plaintiffs' predecessor, the agreement holder, was ready to perform the agreement. - 10 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 12. It is urged that the possession is with the plaintiffs since 1985. The property is an agricultural land. The plaintiffs have derived the income from the land for the last 40 years and even on the ground of hardship, the decree for specific performance in favour of the plaintiffs is not permissible. 13. This Court has considered the aforementioned contentions. Both Courts have concurrently held that the agreement for sale is proved and possession of the plaintiffs over the property is not in dispute. 14. The agreement for sale is dated 05.02.1985. The purchaser was alive till 1997. He was required to pay balance consideration amount of Rs.44,899/-. He was in possession of a property measuring 8 acres of agriculture land. However, there is nothing on record to indicate that he was ready and willing to perform his part of the obligation in paying the meager amount of Rs.44,899/-. Despite the vendor disputing the agreement for sale and filing a suit for possession the vendor has not immediately - 11 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 come forward to pay the money and filed the suit for specific performance. 15. Two years after the suit for possession filed by the vendor, the legal representatives of deceased purchaser, filed a suit for specific performance. 16. In the backdrop of these circumstances, both the Courts have concurrently held that the plaintiffs are not entitled to relief of specific performance, as readiness and willingness are not established. 17. It is a well settled position of law that the specific performance cannot be claimed as of right. The relief is discretionary and to exercise the discretion in favour of the plaintiff, the plaintiff must establish that he was always ready and willing to perform his part of the contract. Though the agreement for sale does not stipulate any specific time period for performing the contract, it has to be understood that he was required to pay the balance consideration amount within a reasonable period as he - 12 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 was enjoying the possession of the property measuring 8 acres, by paying only a part of the consideration amount. 18. The learned counsel appearing for the appellants submits that the First Appellate Court is not justified in holding that the suit is time barred. It is his submission that Rs.2,000/- is paid on 07.02.1995 under the written endorsement marked at Ex.D2. Thus, he would further submit that later a notice dated 03.06.1995 is issued calling upon the vendor to sell the property stating that the vendor had agreed to sell the property by 07.03.1995. It is his submission that 07.03.1995 does not constitute the cause of action for the purpose of reckoning the limitation. He would further submit that the reply issued by the plaintiff upon 21.06.1995 denying the execution of the agreement and cause of action arose only on 21.06.1995 and suit is filed on 18.06.1998 three years before the cause of action. 19. Learned counsel for the respondents on the other hand would submit that in the notice at Ex. P3 itself - 13 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 the plaintiffs have contended that the defendant agreed to sell the property on 07.03.1995 and since the property is not sold on 07.03.1995 it should be deemed that the defendant has refused to sell the property on 07.03.1995. The limitation starts from 08.03.1995 and the suit filed beyond three years from 08.03.1995 is time barred. 20. It is also well settled position of law that the limitation is a question of fact. The endorsement at Ex.D2 does not specifically mention that the vendor agreed to sell the property on 07.03.1995. Whether such an assurance was made by the defendant or not is a question of fact. However, in Ex P3, the notice dated 03.06.19995 issued by the plaintiff, it is averred that the defendant agreed to sell the property by 07.03.1995. The defendant disputed such an assurance and the reply communication disputing the notice issued by the plaintiff is issued only on 21.06.1995. Thus even according to the plaintiff the time fixed was 07.03.1995. However suit is filed beyond three years from 07.03.1995. The plaintiff contends that the - 14 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 cause of action arose on 21.06.1995 when he received reply from the defendant disputing the agreement. Since the plaintiff himself as urged that there was an assurance to sell the property by 07.03.1995, the cause of action arose on 08.03.1995. Hence the suit is not in time. 21. Even otherwise, as already noticed, the plaintiffs have failed to establish readiness and willingness to perform their part of the contract. Hence, even if suit is held to be in time, this Court is of the view that the plaintiffs are not entitled to the relief of specific performance. 22. In addition, even if the suit is held to be in time, as the Court has recorded the finding that the relief of specific performance not granted, the decree for refund of money also not warranted as there is no such prayer in the plaint. 23. It is noticed that the decree for mesne profit is rejected by the Trial Court. There is no cross objection by - 15 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 the defendant for such relief and it is also to be noticed that the plaintiff is in possession of the property not as a trespasser but may be under the agreement for sale. That being the position, the defendant is not entitled to mesne profit from the date of the suit till this date. 24. However, in case the plaintiff delays in handing over the possession of the property, beyond three months, the plaintiff shall have to pay mense profits from toady till the delivery of possession to the defendant. This order is passed in exercise of the power conferred under Order XLIII Rule 33 of the Code of Civil Procedure. 25. The defendant shall repay the earnest consideration amount to the plaintiff within 3 months from toady and if not paid, the amount shall carry interest at the rate of 6% p.a. from today till payment. Pendente lite interest is not awarded as the plaintiff has been in possession of the property. 26. No substantial question of law would arise. - 16 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 27. Accordingly, appeals are disposed of with above said modification recorded in paragraph No.23 of the order . 28. Hence the following: ORDER (i) RSA No. 1911 of 2012 and RSA 1912 of 2012 are dismissed. (ii) The judgment and decree dated 20.07.2012 in *R.A. No.14/2006 on the file of Fast Track Court, Kodagu at Madikeri and the judgment and decree dated 22.03.2006 declining specific performance in *O.S.No.118/1995 on the file of Senior Civil Judge, Madikeri are confirmed. (iii) The judgment and decree dated 20.07.2012 in *R.A.No.15/2006 on the file of Fast Track Court, Kodagu at Madikeri and the judgment and decree dated 22.03.2006 granting a decree for possession in *O.S.No.60/1998 on the file of Senior Civil Judge, Madikeri are confirmed. *Page No.16 is retyped and replaced vide chamber order dated 22.04.2026. - 17 - HC-KAR NC: 2025:KHC:28631 RSA No. 1912 of 2012 C/W RSA No. 1911 of 2012 (iv) However, in case the appellants delay the handing over the possession of the suit property, beyond three months from today, the appellants shall have to pay mense profits, from today till the delivery of possession, to the respondents. Sd/- (ANANT RAMANATH HEGDE) JUDGE RJ/CHS List No.: 1 Sl No.: 63 *Page No.17 is retyped and replaced vide chamber order dated 22.04.2026.