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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27TH DAY OF SEPTEMBER, 2022

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

R.S.A NO. 491 OF 2022(SP)

BETWEEN:

SRI NARASAPPA
S/O LATE PAPANNA
AGED ABOUT 65 YEARS
OCC: AGRICULTURE
R/T KAMAREDDIHALLI VILLAGE
GOWRIBIDANUR TQ
CHIKKABALLAUR DISTRICT-561211

...APPELLANT

(BY [Link] L S, ADVOCATE)

AND:

SRI VENKATAPPA @ KADUPAPPA

S/O JELLAPALYADA VENKATAPPA
SINCE DECEASED BY HIS LRS

1. SMT ASHWATHAMMA
W/O LATE VENKATAPPA
AGED ABOUT 53 YEARS
OCC HOUSEWIFE

2. SRI. NARAYANAPPA
S/O LATE VENKATAPPA
AGED 41 YEARS
OCC: NOT KNOWN
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3. [Link]
S/O LATE VENKATAPPA
AGED 39 YEARS
OCC: NOT KNOWN

4. [Link]
D/O LATE VENKATAPPA
AGED 39 YEARS
OCC: NOT KNOWN

5. [Link]
S/O LATE VENAKTAPPA
AGED 37 YEARS
OCC: NOT KNOWN

RESPONDENTS 1 TO 5 ABOVE NAMED

R/AT KAMAREDDIHALLI
MANECHENNAHALLI HOBLI
GOWRIBIDANUR TQ
CHIKKABALLAUR DIST-562101

6. [Link]@CHIKKARASIMHAIAH
S/O LATE NARASIMHAPPA
AGED 64 YEARS
R/AT GURUKULANAGENAHALLI VILLAGE
NANDHI HOBLI, GOWRIBIDANUR TQ
PRESENTY R/AT
LAGUMENAHALLI, SS GHATI POST
TOOBARE HOBLI, DODDABALLAPURE TQ
BANGALORE RURAL DIST
BANGALORE-561203

…RESPONDENTS

(BY [Link], ADVOCATE FOR R2;

R5 & R6 ARE SERVED & UNREPRESENTED)

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE

JUDGMENT AND DECREE DATED 21.01.2017 PASSED IN [Link].
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61/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC.,

GOWRIBIDANUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 23.02.2011 PASSED IN [Link].
450/1996 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND
JMFC., GOWRIBIDANUR.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

The captioned second appeal is filed by unsuccessful

defendant No.2 questioning the concurrent findings of the

Courts below wherein suit for specific performance filed by

plaintiff is decreed by both the Courts below.

2. For the sake of brevity, the parties are referred to

as per their rank before the Trial Court.

3. The plaintiff instituted a suit for specific

performance of contract. The plaintiff contended that on

16.05.1996, the defendant No.1 entered into an agreement to

sell for a sale consideration of Rs.23,500/- and received

advance amount of Rs.3,500/-. The plaintiff further alleged

that though on several occasions, the defendant expressed his

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willingness to tender balance sale consideration of Rs.20,000/-

but, however, defendant kept on evading to perform his part

of contract and therefore, plaintiff was compelled to issue a

notice notifying the defendant that he is ready and willing to

perform his part of contract. Hence, the present suit.

4. After receipt of summons, the defendant No.1

appeared and filed written statement. Pending suit, the

plaintiff sought for impleading defendant No.2. The defendant

No.2 while disputing the suit agreement claimed that

defendant No.1 has executed sale deed in his favour on

31.01.1997. He further contended that possession was

delivered to him under agreement to sell dated 30.03.1996

and hence, sought for dismissal of the suit.

5. The plaintiff to substantiate his claim examined

himself as PW.1 and three independent witnesses as PWs.2 to

4 and adduced documentary evidence vide Ex.P-1. While

defendants examined defendant No.1 as DW.1 and defendant

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No.2 as DW.2 and adduced evidence of four witnesses as

DWs.3 to 6. The defendant No.2 by way of rebuttal evidence

produced agreement to sell in his favour vide Ex.D-1 and

registered sale deed marked at Ex.D-2.

6. The Trial Court having assessed oral and

documentary evidence answered issue Nos.1 to 3 in the

affirmative. While examining the agreement to sell set up by

defendant No.2 which is dated 30.03.1996, the Trial Court

held that there is inconsistency between Exs.D-1 and D-2 and

therefore, disbelieved the genuineness of agreement to sell

vide Ex.D-1. The Trial Court was of the view that the

defendants have failed to adduce satisfactory evidence in

regard to due execution of agreement to sell in favour of

defendant No.2. Therefore a categorical finding was recorded

by the Trial Court that the defendant No.2 has failed to prove

that sale deed is in continuation of earlier agreement to sell

vide Ex.D-1. Consequently, Trial Court decreed the suit.

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7. The defendant No.2 preferred appeal in

[Link].180/2003. The Appellate Court remitted the matter to

Trial Court by framing additional issue. Questioning the

remand order, plaintiff preferred appeal in [Link].91/2007.

Though remand order was confirmed, however, High Court set

aside the order of the Appellate Court insofar as framing

additional issue is concerned. After remand, neither plaintiff

nor defendant No.2 has let in evidence.

8. The Trial Court on re-appreciation of entire

evidence on record again decreed the suit. The defendant

No.2 again preferred appeal in [Link].61/2011.

9. The Appellate Court having independently assessed

oral and documentary evidence found that in the sale deed

executed by the defendant No.1 in favour of defendant No.2,

there is absolutely no whisper in regard to the alleged

agreement to sell dated 30.03.1996 which is marked as

Ex.D-1. In fact in Ex.D-2, there is a recital indicating that

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entire sale consideration was paid as on the date of execution

of sale deed vide Ex.D-2. Therefore, Appellate Court also

proceeded to disbelieve Ex.D-1. The Appellate Court

concurring with the findings of the Trial Court has also come to

conclusion that defendant No.2 cannot set up any defence as

he is pendente lite purchaser. Therefore, Appellate Court was

of the view that he cannot assert and claim to be bonafide

purchaser. On these set of reasonings, Appellate Court

proceeded to dismiss the appeal. These concurrent findings

are under challenge.

10. Heard learned counsel for the appellant. Perused

the records.

11. The appellant was notified that he will be heard on

merits as well as on inordinate delay of 1795 days. He has

addressed his arguments on the main matter as well as on

delay application.
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12. The defendant No.2 admitted that he is a pendente

lite purchaser. His entire defence is found to be dishonest and

to overcome the suit agreement, defendant No.2 in collusion

with defendant No.1 have concocted Ex.D-1 styled as

‘agreement to sell’. This document is set up because plaintiff’s

agreement is dated 16.05.1996. Therefore, defendant No.2

having purchased the property during the pendency of the suit

has virtually concocted Ex.D-1 styled as ‘agreement to sell’

dated 30.03.1996. The second defendant’s contention that

sale deed is in continuation of earlier agreement to sell is not

accepted by both the Courts. Both the Courts have dealt with

issue No.4 in detail and have come to conclusion that

defendant No.2 has failed to prove and establish the alleged

agreement to sell dated 30.03.1996 vide Ex.D-1. If defendant

No.2 has failed to prove that his agreement to sell was prior in

time, then he has no defence. He being the pendente lite

purchaser cannot question the decree for specific

performance.
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13. It is forthcoming that defendant No.1/owner has

not challenged the decree passed by the Trial Court granting

decree for specific performance. Therefore, defendant No.2

could not have maintained an appeal. Even on merits, both

the Courts have held that plaintiff has proved the due

execution of suit agreement. Both the Courts have held that

plaintiff has succeeded in establishing his readiness and

willingness. Both the Courts have judiciously exercised

discretionary relief by granting specific performance in favour

of plaintiff. Therefore, no substantial question of law arises for

consideration.

14. Insofar as inordinate delay is concerned, this Court

would find that the explanation offered in the affidavit filed in

support of the application lacks bonafides. The averments

made in the affidavit in support of the application filed under

Section 5 of Limitation Act totally lacks bonafides. This Court

is of the view that the appeal is filed with inordinate delay of

1795 days. The inordinate delay is not properly explained.

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Therefore, on the point of limitation, the application filed in

[Link].1/2022 is liable to be rejected. Accordingly, rejected.

15. For the foregoing reasons, the second appeal is

dismissed.

[Link].2/2022 does not survive for consideration and

accordingly, stands dismissed.

Sd/-
JUDGE

CA