KATK020025222019
IN THE COURT OF THE
ADDL. SENIOR CIVIL JUDGE AND CJM, TUMAKURU
Dated this the 11th day of October 2023
PRESENT
Smt. Roopa.K.,
B.A.L, LL.B.,
Addl. Senior Civil Judge & CJM,
Tumakuru.
ORIGINAL SUIT No.591/2019
Plaintiff : Mangalamma,
W/o Late N.B.Siddalingappa,
Aged about 65 years,
R/o Halenijagallu Village,
Sompura Hobli,
Nelamangala Taluk,
Bengaluru Rural District.
( By Sri.VKL.,Advocate )
v/s.
Defendants: 1. Hosallappa,
S/o Late Channappa,
Ageda about 47 years.
2. Chandrakala,,
W/o Hosallappa
Aged about 43 years,
3. Chandan,
S/o Hosallaiah,
KATK020025222019 O.S.NO.591/2019
2
Aged about 23 years.
4. Priyanka,
D/o Hosallaiah,
Aged about 20 years.
5. Sharadamma,
W/o Late Channappa,
Aged about 71 years.
6. Jayanthi,
D/o Late Channappa,
Aged about 45 years.
7. S.c.Manjunath,
S/o Late Channappa,
Aged about 31 years.
8. Chithra,
W/o S.C.Manjunath
Aged about 31 years.
All are residing at
Sankenahalli Village,
Koratagere Taluk Hobli,
Tumakuru Taluk.
Now:
Respondent NO.5, 7 and 8
R/o Near Auditor house
Gokula Extension,
Batawadi,
Tumakuru.
( D1 to 3, 5 to 8 by Sri.MSC Advocate
KATK020025222019 O.S.NO.591/2019
3
D4 by Sri.HBGK Advocate)
Date of Institution of Suit : 19.12.2019
Nature of the suit : Specific performance of
(Suit on Pronote, contract
Suit for Declaration and
Possession, Suit for
Injunction, etc.,)
Date of commencement of : 02.08.2021
recording of the evidence
Date on which the : 11.10.2023
Judgment was pronounced
Total Duration : Year/s Month/s Day/s
03 09 22
( Smt. Roopa. K., )
Addl. Senior Civil Judge &
CJM,Tumakuru.
JUDGMENT
The plaintiff has filed this suit for the relief of
specific performance of contract.
KATK020025222019 O.S.NO.591/2019
4
2. Brief facts of the plaintiff’s case, is as follows;
The defendants are the owner of suit schedule
property and they have agreed to sell the same in favour
of plaintiff and they have executed a registered sale
agreement dated 07.03.2018 for total sale consideration
of Rs.13,00,000/ and received advance sale
consideration of Rs.12,00,000/ in presence of witnesses.
The defendants have also agreed to get all necessary
documents which are required for registration and agreed
to execute the registered sale deed in favour of plaintiff
by receiving balance sale consideration. The plaintiff was
always ready and willing to perform his part of contract
and requested the defendants to get sale deed, but the
defendants went on dodging on one and the other pretext
or the other and they have not come forward to perform.
As such the plaintiff has got issued a legal notice on
19.03.2019 through RPAD, the same was returned as
parties are not available and notice to defendant No.5
KATK020025222019 O.S.NO.591/2019
5
returned as refused and defendant No.7 and 8 have
received the legal notice. But they have not complied the
notice. Therefore, the present suit was filed.
3. In response to suit summons issued by this court, the
defendants appeared through their counsel and filed
written statement. The defendant No.4 has contended in
the written statement the suit is not maintainable and
there is no cause of action. Further this defendant No.4
has contended that the suit schedule properties are
ancestral and joint family properties of defendants but
the plaintiff by colluding with defendant No.7 has created
fraudulent document by saying all the documents
required for change the khata and pahani into the all
joint family members and played fraud towards
defendant No.4 and other defendants. Therefore, the
alleged agreement was created without knowledge and
consent of all the defendnats. The plaintiff in collusion
KATK020025222019 O.S.NO.591/2019
6
with the defendant No.7 harassing this defendant with an
ill intention to make unlawful gain. Further the
defendant No.1 always acting on the influence of the
defendant No.7 and he did not allow the defendant No.4
to verify any documents presented by defendant No.7.
The defendant No.7 and plaintiff have succeeded in
creating fraudulent document without knowledge and
consent of defendant No.4 and other defendants. These
defendants did not have any legal necessity for selling
any property therefore, the alleged agreement is not a
valid contract between the plaintiff and defendants, as
such she prays to dismiss the suit.
4. Based on the above pleadings, my predecessorin
office had framed the following issues ;
ISSUES
1. Whether the plaintiff proves that, the
defendants have agreed to sell the suit
schedule property and they have executed
KATK020025222019 O.S.NO.591/2019
7
an agreement of sale dated 07.03.2018 by
receiving advance sale consideration of
Rs.12,00,000/ as alleged in the plaint ?
2. Whether the plaintiff is always ready
and willing to perform her part of
contract ?
3. Whether the plaintiff is entitled for the
reliefs as sought for in the plaint ?
4. What order or decree ?
5. In order to establish the plaintiff case, the plaintiff
examined herself as PW.1 and one independent witness
was examined as PW.2 and produced 20 documents as
per Ex.P1 to P20. On the other hand, defendants have
not adduced any evidence and not produced any
documents.
6. I have heard arguments on plaintiff side and
defendant No.4
KATK020025222019 O.S.NO.591/2019
8
7. Upon hearing the arguments, my answer to the
above issues are as under ;
Issue No.1 : In the Affirmative
Issue No.2 : In the partly Affirmative
Issue No.3 : In the partly Affirmative
Issue No.4 : As per the final Order
for the following ;
REASONS
8. Issue No.1 : Admittedly the present suit was filed
by the plaintiff for relief of specific performance of
contract based on the registered agreement of sale dated
07.03.2018. The plaintiff in order to establish her case
examined himself as PW.1 by way of affidavit which is
replica of plaint averments and produced alleged
agreement of sale dated 07.03.2018. Admittedly the
alleged agreement is a registered agreement and in the
said agreement it was mentioned that the defendants
have received Rs.12,00,000/ out of total consideration
KATK020025222019 O.S.NO.591/2019
9
of Rs.13,00,000/. The defendant No.1 to 8 have jointly
executed alleged agreement.
9. Further the plaintiff has also examined one
independent witness, who is said to be a attester of the
said agreement and he had spoken about the due
execution of alleged agreement. The plaintiff has also
produced Ex.P20 bank passbook to show that she has
paid Rs.12,00,000/ to defendant No.7.
10. It is the contention taken by defendant No.4 that
the defendant No.7 and plaintiff by colluding each other
have created fraudulent document, but the said aspect
has not proved by defendant No.4 and never stepped
into the witness box. Further the alleged agreement was
executed before Subregistrar Tumakuru and defendant
No.1 to 8 have clearly admitted due execution before
Subregistrar Tumakuru and also affixed their signature
therefore, mere making a allegation it was a fraudulently
KATK020025222019 O.S.NO.591/2019
10
created document is not sufficient to accept to disbelieve
the case of plaintiff. As such the plaintiff has proved that
the defendant No.1 to 8 have executed alleged sale
agreement by receiving advance sale consideration of
Rs.12,00,000/ out of Rs.13,00,000/. Therefore, I
answer issue No.1 in the affirmative.
11. Issue No.2: The plaintiff has contended that as
per the sale agreement dated 07.03.2018 the total sale
consideration of Rs.13,00,000/ and out of total sale
consideration, she has paid Rs.12,00,000/ on the date
of agreement and agreed to pay the balance sale
consideration of Rs.1,00,000/ at the time of execution
of sale deed. PW.1 has specifically deposed in her
evidence that the defendants went on postponing the
execution of sale deed for one and the other pretext and
they failed to come forward to perform their part of
obligation,hence she has got legal notice on 19.03.2019
KATK020025222019 O.S.NO.591/2019
11
and as per the averments in Ex.P1 the defendants
agreed to execute the sale seed within one year by
furnishing all necessary documents. But in this case
the legal notice was issued on 19.03.2019 through
RPAD and the agreement is dated 07.03.2018 i.e., after
stipulated period of one year the plaintiff has got issued
legal ;notice and said notice was served on defendant
No.7 and 8 and notice to defendant No.5 returned as
refused.
12. However it is pertinent to note that as on date of
agreement itself the plaintiff has paid major portion of
sale consideration amount, thus she has ready to get
sale deed, but at the same time the plaintiff having
willingness to get sale deed. The said readiness and
willingness are different phenomenon. The plaintiff
might have ready with sufficient funds, but at the same
time she must show the willingness to get sale deed. The
KATK020025222019 O.S.NO.591/2019
12
plaintiff has not issued a legal notice within period of
one year from the date of execution of agreement,
because time is essence of contract as per Ex.P1. But
after lapse of one year, demand notice was issued to
defendants for enforcement of agreement. Therefore, it
appears from the document and evidence on record
though she has paid a major portion of sale
consideration amount, but she has not issued legal
notice within period of one year. Therefore, I am of the
considered opinion the plaintiff is always ready to
perform her part of contract, but she was not willing to
get the sale deed within stipulated period of time. Hence
I answer issue No.2 in the partly affirmative.
13. Issue No.3: It is pertinent to note that the plaintiff
has clearly admitted in her evidence that the suit
schedule property bearing Sy.No.7/1 belong to
Hosallappa, Manjunatha and Jayanthi who are the
children of Channappa. Further admitted that she does
KATK020025222019 O.S.NO.591/2019
13
not known that the said Hosallappa had another sister
by name Bharathi. Further she has admitted the suit
schedule property is ancestral property of 1 st defendant,
further admitted that she has not asked the 4th
defendant that she had intention to sell the suit
schedule property or not. Further admitted that the
another sister of defendant No.1 by name Bharathi has
already filed a suit before 6th Addl. Civil Judge against
the defendants and including the plaintiff for relief of
partition.
14. PW.1 further admitted that one Ravikumar has
given complaint before Kolala police station and at that
time she came to know the said Ravikumar is son of one
Bharathi who is sister of defendant No.1. Thus from the
evidence of PW.1 it is crystal clear that the suit schedule
property belong to Hosallappa and their family members
but the alleged agreement was executed by defendant
KATK020025222019 O.S.NO.591/2019
14
No.1 to 8 excluding other sister of said Hosallappa.
Moreover it can be gathered from the cross examination
of PW1 that, partition suit is pending including this suit
schedule property which was filed by sister of defendant
No.1 and 7 by name Smt. Bharathi. As such if the suit
is decreed for relief of specific performance of contract it
leads to multiplication of proceedings, instead if the
advance sale consideration amount is ordered to refund
with interest, it is adequate to meet the ends of justice.
Though the defendant No.1 to 8 have not adduced any
evidence, but on over all reading of the evidence on
record, the alleged agreement executed by defendant
No.1 to 8 only by excluding another member/sister of
defendant No.1 and 7 and the sale consideration
amount was though shown as paid on behalf of all the
defendants, but the sale consideration was paid to
defendant No.7 through cheque and defendant No.4 has
KATK020025222019 O.S.NO.591/2019
15
specifically stated in the written statement that they
have not received any advance sale consideration.
15. However though defendant No.4 has not stepped
into witness box, but in view of the fact that the said
another sister of defendant No.1 and 7 has not executed
a sale agreement agreeing to sell the suit schedule
property it is necessary to order to refund the advance
amount.
16. In addition to that, that in this case the alleged
Ex.P1 was executed by defendant No.8 on behalf of
minor children Shashank and Rishika, but in the suit
the said minor children were not made as parties.
Therefore, considering all these facts and circumstances
the plaintiff is entitled to get refund of advance sale
consideration amount. Hence I answer the above issue
No.3 in the partly affirmative.
KATK020025222019 O.S.NO.591/2019
16
17. Issue No.4: In view of the above discussion, I
proceed to pass the following;
ORDER
Suit filed by the plaintiff is hereby
decreed in part with costs as follows ;
The plaintiff is entitle for refund of
advance amount of Rs.12,00,000 along
with interest @ 6% p.a from the date of
agreement till realization.
Defendants are directed to pay the
amount within two months from the date
of this order.
Draw Decree accordingly.
( Dictated to the Stenographer transcribed by her, corrected and then
pronounced by me in the open court on this the 11th day of October 2023 . )
( Smt. Roopa. K.)
Addl. Senior Civil Judge &
CJM, Tumakuru.
KATK020025222019 O.S.NO.591/2019
17
ANNEXURE
List of witnesses examined on behalf of plaintiff:
PW1 : Mangalamma
PW2 : Umashankar
List of Exhibits marked on behalf of plaintiff:
Ex.P1 : Registered Sale agreement
Ex.P2 : RTC
Ex.P3 : Notice
Ex.P4 : Postal Receipt
Ex.P5 to 11: Postal Tracking
Ex.P12 : Postal Receipt
Ex.P13 : Postal Acknowledgement
Ex.P14 to 19: Returned Cover
Ex.P20 : Pass book
List of Witnesses examined on behalf of Defendants :
NIL
List of Exhibits Marked on behalf of Defendants:
NIL
Addl. Senior Civil Judge &
CJM, Tumakuru.
