Case Note & Summary
The Regular First Appeals arose from a common judgment dated 13.09.2005 by the I Additional City Civil and Sessions Judge, Bengaluru, in two suits: O.S.No.352/1987 for specific performance and O.S.No.2934/1987 for permanent injunction. The plaintiff in O.S.No.352/1987, C.S. Lalitha, claimed that defendant T.V. Govindaraj, her relative, had agreed to sell her a site allotted by CITB in Bengaluru for Rs.50,000, out of which Rs.40,000 was paid on the date of agreement i.e., 10.05.1982. The property was subject to a non-alienation period of 10 years, so the sale deed was to be executed after 25.07.1985. Allegedly, possession was delivered, original documents handed over, and the plaintiff got a building plan sanctioned and constructed a small structure. However, in November 1982, defendant demanded an additional Rs.15,000, and upon refusal, filed a suit for injunction (O.S.No.3418/1982) against the plaintiff's husband, which was later dismissed. Despite the plaintiff's readiness to pay the balance Rs.10,000, the defendant failed to execute the sale deed and instead sold the property to second defendant Sreemathi on 17.12.1986. Sreemathi filed O.S.No.2934/1987 for permanent injunction against C.S. Lalitha, claiming purchase and possession and alleging interference. C.S. Lalitha resisted, setting up the agreement and part performance. The trial court clubbed the suits, framed issues on the genuineness of the agreement, payment, readiness, possession, and bona fide purchase. The plaintiff examined her husband as PW1 and two other witnesses, marking 54 documents; defendants examined DW1 (first defendant, but not cross-examined) and DW2 (daughter of second defendant, no documents). The trial court dismissed the specific performance suit, holding that the plaintiff failed to prove the agreement and payment, that the agreement was concocted, that the plaintiff was not in possession, and that the second defendant was a bona fide purchaser. The injunction suit was decreed, finding the plaintiff (Sreemathi) in lawful possession and entitled to restrain C.S. Lalitha. In the High Court, the appellant C.S. Lalitha argued that the trial court misappreciated the evidence, particularly the possession certificate, building plan, and the dismissal of the earlier suit by the first defendant, which indicated the agreement was genuine. However, the judgment text provided does not include the High Court's analysis or final decision, as it was cut off mid-paragraph. The appeals were heard and reserved for judgment on 02.09.2021 and pronounced on 25.09.2021.
Issue of Consideration
Whether the plaintiff proved the agreement of sale dated 10.05.1982 and payment of Rs.40,000/-; Whether the plaintiff was ready and willing to perform her part of the contract; Whether the agreement was concocted; Whether the second defendant is a bona fide purchaser for value without notice; Whether the plaintiff was in possession under part performance; Entitlement to permanent injunction.
Case Details
2021 LawText (KAR) (09) 16
R.F.A.No.1583/2005 (SP) c/w R.F.A.No.1582/2005 (INJ)
C.M. Nagabhushana, P. Prasanna Kumar, G. Papi Reddy, P. Krishnappa
T.G. Shakuntala, T.G. Srinivas, Kalpana Sudhakar (Legal Representatives of T.V. Govindaraj, Deceased); Sreemathi
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Nature of Litigation
Civil suits for specific performance of agreement of sale and permanent injunction interconnected with claims of possession and part performance.
Remedy Sought
Plaintiff C.S. Lalitha sought specific performance of the agreement of sale dated 10.05.1982 against T.V. Govindaraj, directing him to execute sale deed and deliver possession; Plaintiff Sreemathi sought permanent injunction restraining C.S. Lalitha from interfering with her possession of the suit property purchased from T.V. Govindaraj.
Filing Reason
T.V. Govindaraj allegedly failed to execute sale deed after receiving Rs.40,000 out of Rs.50,000 and delivered possession, later sold property to Sreemathi, who sought to protect her possession from interference by C.S. Lalitha who claimed under the earlier agreement.
Previous Decisions
The trial Court, I Additional City Civil and Sessions Judge, Bengaluru, by common judgment dated 13.09.2005 dismissed O.S.No.352/1987 (specific performance) and decreed O.S.No.2934/1987 (permanent injunction), holding that the agreement of sale was not proved, plaintiff was not in possession, and the second defendant was a bona fide purchaser for value.
Issues
Whether the plaintiff proved the agreement of sale dated 10.05.1982 and payment of Rs.40,000/-?
Whether the plaintiff was ready and willing to perform her part of the contract?
Whether the agreement of sale dated 10.05.1982 is concocted and fabricated?
Whether the second defendant is a bona fide purchaser for value without notice?
Whether the plaintiff was put in possession of the suit property in part performance of the agreement?
Whether the plaintiff (Sreemathi) is entitled to permanent injunction?
Submissions/Arguments
Appellant/Plaintiff argued that trial court failed to appreciate evidence of agreement (Ex.P2), part payment, delivery of possession, original documents (Exs.P3, P6, P7, P8, P9, P10, P12), building plan and construction, and the dismissal of defendant's earlier suit (O.S.No.3418/1982); contended that readiness to perform was established and defendant's conduct showed agreement.
Defendants contended that agreement was forged taking advantage of family relations and business dealings; first defendant always in possession; second defendant was bona fide purchaser without notice; plaintiff not in possession; constructed only temporary sheds.
Judgment Excerpts
the trial Judge has failed to appreciate the evidence of P.W.1, about Ex.P2, passing of part consideration, delivery of possession of suit site in favour of plaintiff, delivery of originals of suit site vide Ex.P3/allotment order, Ex.P6-Possession Certificate, Ex.P7-Receipt by Assistant Commissioner, Exs.P8 and P9-Khatha certificates, Exs.P10-Tax Clearance Certificate, Ex.P12-Endorsement by BCC.
the Trial Court dismissed the suit in O.S.No.352/1987 answering issue Nos.1 to 3 in ‘negative’, in coming to the conclusion that the plaintiff failed to prove the execution of the sale agreement and payment of sale consideration of Rs.40,000/- and plaintiff was ever ready to perform her part of contract and answered issue No.4 as ‘affirmative’, in coming to the conclusion that the second defendant is the bonafide purchaser of the suit property.
Procedural History
Original suits O.S.No.352/1987 (specific performance) and O.S.No.2934/1987 (permanent injunction) filed before I Additional City Civil and Sessions Judge, Bengaluru. Suits clubbed and common evidence recorded. Trial Court by common judgment dated 13.09.2005 dismissed the specific performance suit and decreed the permanent injunction suit. Plaintiff in O.S.No.352/1987 preferred R.F.A.No.1583/2005; defendant in O.S.No.2934/1987 preferred R.F.A.No.1582/2005. High Court heard both appeals together, reserved for judgment on 02.09.2021, and delivered judgment on 25.09.2021.
Acts & Sections
- Code of Civil Procedure, 1908: Section 96, Order 41 Rule 1
