Back
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
R.DEVDAS, J.M.KHAZI, JJ.
P MAMATHA W/O P.RAMAKRISHNA - Appellant
Vs.
P RAMASUBBAMMA W/O P.NARAYANAPPA - Respondent
RFA NO.100200/2015(SP)
Decided On : 20-07-2021
Civil Procedure Code, 1908 - Section 96 - Specific Relief Act, 1963 - Section 19(b) - Indian Contract Act - Section 207 – Suit for specific performance of contract - Power of Attorney - agreement of sale - Execution of sale deed – Decreed – Appeal against - Question of termination of the General Power of Attorney - Plaintiff had contended in plaint that she had entered into an agreement with defendant No.l, to purchase immovable property which is suit schedule property. Sale consideration was fixed while advance amount was paid under agreement. Defendant No.l had earlier executed a general Power of Attorney in favour defendant No.2. However, defendant No.2 was present when plaintiff entered into an agreement with defendant No.1.
Finding of the court: When a plaintiff seeks to establish a title in himself and cannot establish that title without removing as insuperable obstacle such as a decree or deed to which he has been a party or by which he is otherwise bound, then quite clearly he must get that decree or deed cancelled or declared void. Such a prayer would be a prayer for cancellation of the decree or deed - Defendant Nos.2 to 4 have challenged the execution of the sale deed by filing a civil revision petition. This act on the part of the plaintiff and defendant No.1 would also throw light on the conduct of the parties which needs to taken note of - Set aside impugned judgment and decree.
Result: Appeal allowed
JUDGMENT :
R.DEVDAS J.
This Regular First Appeal is filed under Section 96 of CPC assailing the judgment and decree passed by the I Additional Senior Civil Judge, Ballari in O.S.No.103/2010.
2. For the sake of convenience, the parties shall be referred to as per their ranking before the trial court.
3. The suit was filed for specific performance of the contract, viz. agreement of sale dated 12.04.2005. The plaintiff had contended in the plaint that she had entered into an agreement with defendant No.1, to purchase the immovable property bearing Sy.657 measuring 8.55 acres of Kolagal village, Ballari Taluk and District, which is the suit schedule property. The sale consideration was fixed at Rs. 29,00,000/-, while advance amount of Rs. 20,00,000/-was paid under the agreement. Defendant No.1 had earlier executed a general Power of Attorney in favour defendant No.2. However, defendant No.2 was present when the plaintiff entered into an agreement with defendant No.1. Thereafter, on 25.03.2008 defendant Nos.1 and 2 approached the plaintiff and her husband and sought payment of further amount of Rs. 6,00,000/-towards the sale consideration. On 25.03.2008, the plaintiff made further payment of Rs. 6,00,000/-and an endorsement was written by defendant No.1 on the agreement, acknowledging the receipt of Rs. 6,00,000/-. However, despite repeated requests and demand, defendant No.1 did not execute the sale deed in favour of the plaintiff. The plaintiff and her husband learnt that defendant No.2, had clandestinely executed two sale deeds in favour of defendant Nos.3 and 4, only to defraud the plaintiff. The plaintiff got issued legal notice to the defendants on 17.06.2010 calling upon defendant No.1 to execute the sale deed in her favour by receiving balance sale consideration of Rs. 3,00,000/-. It is contended that defendants postponed the execution of the sale deed.
Finally, the plaintiff filed the suit for specific performance of contract.
4. Defendant No.1 filed written statement, admitted the execution of agreement of sale and she specifically contended that she is ready and willing to perform her part of contract. However, defendant Nos.2 to 4 filed separate written statements and took a common defence that the agreement of sale dated 12.04.2005 is a created document. They contended that Power of Attorney executed by defendant No.1 in favour of defendant No.2 is a registered document and without canceling the registered Power of Attorney and without the knowledge of defendant No.2, defendant No.1 in collusion with the plaintiff has created the agreement of sale. It is contended by defendant Nos.2 to 4 that the agreement of sale dated 12.04.2005 is a bogus document and no sale consideration is paid by the plaintiff. On the basis of the pleadings, the trial court framed following issues.
(ii) Whether the plaintiff proves that part sale consideration of Rs.26 lakhs has been paid to the defendant No.1?
(iii) Whether the plaintiff proves that she was always ready and willing to perform her part of duty towards the contract?
(iv) Whether the plaintiff further proves that with malafide intention and to defeat her right accrued through the sale agreement dated 12.4.2005 defendant No.2 had executed sale deeds dated 3.5.2010 in favour of defendant No.3 and 4 and those sale deeds are nominal sale deeds?
(v) Whether the defendant No.2 to 4 prove that sale agreement dated 12.4.2005 is a created document and by virtue of the same no consideration had been passed?
(vi) Whether the plaintiff is entitled for a decree of specific performance of contract?
(vii) What order or decree?
5. The plaintiff did not enter the witness box. However, her husband was examined as P.W.1 and two more witnesses were examined on behalf of the plaintiff and 9 documents were marked as Exs.P1 to P9. Defendant N
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
