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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 03RD DAY OF SEPTEMBER 2012

BEFORE

THE HON'BLE MR. JUSTICE SUBHASH B ADI

REGUALR FIRST APPEAL No.1372/2003

BETWEEN :

SRI B A KRISHNAMURTHY,
S/O ABBAIAH,
AGED ABOUT 36 YEARS,
R/O BELLIKERE VILLAGE
ANUGONDANAHALLI HOBLI
HOSKOTE TALUK. ...APPELLANT

(BY SRI:S V SHASTRI, ADVOCATE)

AND :

SRI K G KODANDARAMA,
S/O GIDDANNA REDDY,
AGED ABOUT 32 YEARS,
R/O MATHRUSHREE NILAYA
HOUSE NO.648, 21 CROSS ROAD
23RD MAIN ROAD, HSR LAYOUT
CENTER-2,
BANGALORE- 560 034. ...RESPONDENT

(BY SRI:G L VISHWANATH, ADVOCATE)

THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER

41 R 1 READ WITH SECTION 96 of CPC AGAINST THE
JUDGMENT AND DECREE DATED 09.07.2003 PASSED IN
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O.S.NO.33/1994 ON THE FILE OF THE I ADDITIONAL CIVIL

JUDGE (SR.DN), BANGALORE RURAL DISTRICT, BANGALORE,
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

THIS RFA COMING ON FOR ORDERS, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

Appeal is by the defendant against the judgment and decree

in O.S.No.33/1994 dated 09.07.2003 on the file of I Additional

Civil Judge, Bangalore Rural District, Bangalore.

2. Parties will be referred to as per their ranking in the trial

court.

3. Suit is one for a direction to the defendant to execute the

Sale Deed in favour of the plaintiff or his assignees in pursuance of

the agreement of sale dated 03.02.1992 and Supplemental

Agreement dated 17.06.1992. In case the defendant fails to execute

the sale deed in favour of the plaintiff, the Hon’ble Court be

pleased to execute the same in favour of the plaintiff.

4. Plaintiff's case was that, on 03.02.1992, the defendant

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entered into an agreement to sell the suit schedule property bearing

Sy.No.146 measuring 2 acres 8 guntas and Sy.No.147 measuring 2

acres 6 guntas, both situated at Bellikere Village, Anugondahalli

Hobli, Hosakote Taluk, Bangalore District, in all to the extent of 4

acres 14 guntas for consideration of Rs.2,08,800/-.

5. On the date of agreement, plaintiff paid an amount of

Rs.1,00,000/- in advance, subsequently, plaintiff paid Rs.65,000/-,

on the date of supplemental agreement, the balance amount was

paid. In all, plaintiff has paid Rs.2,08,800/-. The supplemental

agreement dated 17.06.1992 is registered, and the defendant has

confirmed the execution of the agreement of sale dated 03.02.1992

and delivery of possession of the suit schedule property in part

performance of the agreement of sale. In pursuance of the

agreement of sale, defendant also executed registered General

Power of Attorney in favour of the plaintiff, authorising the

plaintiff to enter into an agreement with the others for transfer /

sale of the suit schedule property either in one lot or in several

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portions or undivided shares. Since then, the plaintiff has been in

peaceful possession and enjoyment of the suit schedule property

without any interference whatsoever from anybody else including

the defendant. The suit schedule property consists of Eucalyptus

plantation and has been managed and maintained by the plaintiff

since the date of his possession.

6. On 24.01.1994, when the plaintiff went to the Sub-

Registrar's office at Hoskote along with perspective purchaser of

the suit schedule property, he was informed by the Sub-Registrar

that the General Power of Attorney dated 17.06.1992 executed by

the defendant in favour of the plaintiff has been revoked. The said

revocation of the General Power of Attorney unilaterally was

illegal and had been done with intention of depriving the plaintiff

of his right over the suit schedule property.

7. Plaintiff has paid the entire sale consideration amount in

respect of the suit schedule property under the agreement dated

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03.02.1992 and supplemental agreement dated 17.06.1992. There

was no reason for the defendant to revoke the General Power of

Attorney.

8. Plaintiff was always ready and willing to get the sale deed

executed in his name. Defendant was trying to depart from the said

agreement, thus, it became necessary for the plaintiff to insist for a

specific performance of the agreement. The cause of action

accrued to the plaintiff on 17.06.1992 and from the date of which

the defendant denied. Accordingly, the plaintiff filed a suit for

specific performance of the agreement of sale.

9. Defendant entered the appearance and filed the written

statement interalia denying the execution of the agreement itself.

He also denied the receipt of Rs.1,00,000/- and Rs.65,000/- and

other payments. According to the defendant, he had engaged the

plaintiff for cutting and selling the Eucalyptus trees and in this

regard, plaintiff wanted the necessary documents authorizing him

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to cut and remove the Eucalyptus trees. Accordingly, the defendant

was asked to execute the documents in favour of the plaintiff.

Defendant was not aware of the contents of the document dated

03.12.1992, as he was unable to read and write Kannada or

English. He knows only to affix the signature. That being the

position, no credence could be attached to the agreement of sale

dated 03.12.1992. He also alleged that, the contention of the

plaintiff that, supplemental agreement was entered into between the

plaintiff and the defendant on 17.06.1992 and in the said document,

plaintiff had paid Rs.43,800/- to the defendant etc., are all false.

The supplemental agreement was not executed by the defendant

agreeing to sell the property in favour of the plaintiff. The plaintiff

under the guise of fulfilling his agreement to cut and sell the

Eucalyptus trees belonging to the defendant induced the defendant

to affix his signature on the blank stamp paper. Defendant does not

know either to read or write Kannada or English. He also denied

the delivery of possession, however, admitted that, plaintiff in

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furtherance of agreement to cut, remove and sell the eucalyptus

treed belonging to the defendant, had paid sum of Rs.20,000/- and

Rs.7,500/- by means of two cheques, being a part of value of the

eucalyptus trees. He also alleged that, the execution of the

agreement in favour of the plaintiff is false, when the defendant

came to know that the General Power of Attorney has been taken

by the plaintiff, he went to the Sub-Registrar's office and got the

General Power of Attorney cancelled on 04.01.1994. The plaintiff

represented to the defendant at the time of execution of Power of

Attorney that he required the original title deed in respect of the

suit schedule property to convince the ownership of the eucalyptus

trees of the defendant to the prospective buyers of the same.

Plaintiff also made the defendant to believe that he would return

the title deeds to the defendant after the completion of the sale of

the eucalyptus trees standing on the schedule land. Under these

circumstances, the documents of title of the suit schedule

properties came to be in possession of the plaintiff and not in

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furtherance of the alleged agreement of sale. He alleged that,

except receipt of Rs.27,500/-, defendant has not received any

amount from the plaintiff. Further, defendant does not own any

other land except the suit schedule property. Moreover, he is

depending upon the income derived out of the cultivation of the

suit schedule property. Accordingly, he contested the suit.

10. The trial court on the basis of the pleadings, framed the

following issues:

(1) Whether the plaintiff proves that defendant by the

agreement to sell dated 03.02.1992 and supplemental
agreement dated 17.06.1992 had entered into an
agreement with plaintiff, agreeing to sell suit schedule
properties to plaintiff for Rs.2,08,000/-?

(2) Whether the plaintiff proves that in furtherance of

the alleged agreement, the defendant had received
advance amount of Rs.1,08,000/-?

(3) Whether the plaintiff proves that in furtherance of

part performance of the alleged agreement to sell, the
defendant had put the plaintiff in possession of the
plaint schedule property?

(4) Whether defendant proves that Rs.27,500/- is one

received by him from plaintiff is part of value of
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eucalyptus tree to be cut and sold as referred in para 5

of the written statement?

(5) Whether the plaintiff proves that he is entitled for

relief of specific performance of agreement to sell?

(6) Whether the defendant proves that by granting the

relief of specific performance, undue hardship will be
caused to him?

(7) Whether the plaintiff proves that he is entitled for

alternative relief of refund of amount?

(8) If so,
(a) For what amount he is entitled?
(b) With what interest he is entitled for?

(9) To what relief parties are entitled?

(10) What order?

11. Before the trial court, plaintiff got himself examined

as PW-1, two attesting witnesses, Muniraju and Govindachari were

examined as PW-2 and PW-3. Exs.P1 to P3 i.e., sale agreement,

supplemental agreement and General Power of Attorney were

marked in the evidence of plaintiff. The defendant got himself

examined as DW-1 and examined one Kodandaramaiah as DW-2

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and produced Exs.D1 to D23.

12. Trial court on the basis of these evidence, held that the

plaintiff has proved the agreement and supplemental agreement, he

has also proved that the defendant has received the sale

consideration. Plaintiff has further proved that in part performance

of the agreement, he was put in possession. Defendant has failed

to prove that he had received Rs.27,500/- from the plaintiff as a

part of the value of the eucalyptus trees to be cut and sold as

referred to in para-5 of the written statement. Defendant has also

failed to prove that, grant of decree for specific performance would

cause undue hardship to the defendant. Accordingly, decreed the

suit of the plaintiff.

13. It is against the said judgment and decree, defendant is

before this Court.

14. I heard Sri.S.V.Shastry, learned Counsel appearing for

the defendant and Sri.G.L.Vishwanath, learned Counsel for the

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plaintiff.

15. The main contention of the learned Counsel for the

defendant is that, defendant specifically contended in his written

statement that, the plaintiff contacted the defendant to cut, remove

and sell the Eucalyptus trees standing on the suit schedule property.

In this regard, defendant had agreed to sell the same for

consideration of Rs.35,000/-, as a part of sale consideration,

defendant had received Rs.20,000/- and Rs.7,500/- by way of two

cheques, which is also evident from Ex.D1. Except this amount,

defendant has not received any other amount. In the evidence,

DW-1 has specifically denied the execution of the agreement,

though the defendant has stated that, he went to the Sub-Registrar's

office and signed some blank stamp papers, but the said documents

were in furtherance with the agreement to cut, remove and sell the

eucalyptus trees. PW-1 – plaintiff in his evidence has also admitted

that, eucalyptus trees were standing on the suit schedule property

and he had cut the eucalyptus trees. Thus, from the evidence of
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defendant and the plaintiff, it is clear that, on the suit schedule

property, eucalyptus trees were standing and the case of the

defendant being that it was in connection with removal of the

eucalyptus trees, plaintiff had entered into an agreement. The

defendant does not know reading and writing in Kannada or

English, both in his written statement as well as in the evidence, he

has stated that, he does not know the contents of Exs.P1, P2 and

P3. As such, no importance to be attached to Exs.P1 to P3. He

also pointed out that, in the agreement Ex.P1, it is stated that,

Rs.80,000/- was paid in cash and Rs.20,000/- was paid by cheque,

whereas, PW-1 in his evidence at para-8 has stated that,

Rs.1,00,000/- was paid in cash, in turn, PW-2 has stated that,

Rs.80,000/- was paid in cash and Rs.20,000/- was paid in cheque.

There is a discrepancy in the evidence of the plaintiff himself.

Plaintiff in the cross-examination though admits that, he has got a

pass book for having paid the amount in cheque, however, he has

not produced the same. He does not remember as to when the said
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amount was paid. Except Ex.P2, he does not have any document to

show that he was put in possession, as such, the evidence of the

plaintiff being not inspiring, the trial court should not have held

that the agreement is proved. He also contended that, even

assuming that the defendant had gone to the Sub-Registrar's office,

but that does not absolve the plaintiff from proving the contents of

Exs.P1 and P2 more so when it was seriously disputed.

16. On the question of hardship, he submitted that, defendant

in his written statement has contended that, the suit schedule

property is the only property for the family and out of the income

derived from the suit schedule property, defendant maintains his

family, as such, under Section 20 of the Specific Relief Act ('Act'

for short), the trial court should have exercised the judicial

discretion by denying the specific performance of the contract, in

turn, it would have ordered for refund of earnest money along with

interest.
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17. To support his contention, he relied on the judgment

reported in 2001 AIR – Kant.H.C.R 2886 in the matter of A.C.

Arulappan vs. Smt. Ahalya Naik and submitted that, granting of

specific performance is an equitable relief, though the same is now

governed by the statutory provisions of the Specific Relief Act,

1963. These equitable principles are nicely incorporated in Section

20 of the Act. The trial court, which had the added advantage of

recording the evidence and seeing the demeanour of the witnesses,

should consider the relevant facts and circumstances to come to the

conclusion whether the granting of decree is just and proper. He

also relied on the another judgment of the Apex Court reported in

2008 SAR (Civil) 507 in the matter of Hardeo Rai vs. Shakuntala

Devi and others to submit that, court should have exercised

discretion judiciously.

18. Sri.Vishwanath, learned Counsel appearing for the

plaintiff submitted that, Exs.P1 and P2 are the agreement and

supplemental agreement. Ex.P2 is the supplementary registered

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agreement. Ex.P3 is the general power of attorney executed by the

defendant, which is also a registered document. Defendant in his

written statement has admitted that, he got the general power of

attorney cancelled on 04.01.1994, which proves that the general

power of attorney was executed by the defendant.

19. As far affixture of signature at para-3 of the written

statement, defendant has admitted that, the plaintiff under the guise

of fulfilling his agreement to cut, remove and sell the eucalyptus

trees belonging to this defendant, induced the defendant to affix his

signature on the blank stamp paper. Defendant has admitted the

signature on Exs.P1, P2 and P3, which also proves the execution

of Exhibits P1, P2 and P3.

20. Insofar as denial of the agreement is concerned, defence

of the defendant is that, he had entered into an agreement to sell the

eucalyptus trees and in this regard, for the purpose of securing the

permission from the Forest Department, he had signed the

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document and towards this, he had agreed to receive Rs.35,000/-

and has received Rs.27,500/-. In the examination-in-chief,

defendant has not only denied his signature on Exs.P1, P2 and P3,

but he has also denied his signature on his own document seeking

cancellation of agreement. It only shows that, the defendant

deliberately in an attempt to deny his signature, he has denied his

signature on his own application for cancellation of the General

Power of Attorney. Further, to prove that there was any transaction

to cut, remove and sell the eucalyptus trees, not a single document

has been proved. In turn, in the cross examination, the defendant

admits that, he himself had cut the eucalyptus trees and thereafter,

as on the date of his cross-examination, eucalyptus trees were all of

6 to 7 years. If 6 to 7 years comes to 1993 and they are preserved

by the plaintiff for the purpose of his daughter's marriage, this

falsifies the case of sale of eucalyptus trees. There is no evidence

to show that, the defendant had entered into any other contract or

agreement either to cut, remove and sell the eucalyptus trees or

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otherwise.

21. When document is registered, signature is admitted, it

proves the execution. Once the execution is admitted, the burden

is on the defendant to disprove the same. However, defendant

except the oral testimony alleging the sale of eucalyptus trees,

nothing on record to show that, any such transaction was there

between the plaintiff and the defendant, in turn, the receipt of

Rs.27,500/- by way of cheque is not in dispute i.e., for Rs.20,000/-

and Rs.7,500/- are dated 03.2.1992 and 17.06.1992, i.e., the date of

Ex.P1 and Ex.P2. The original documents of the properties are in

the custody of the plaintiff, it is also admitted by the defendant.

Ex.P1 shows that, possession was delivered in part performance of

the contract. Having regard to this evidence, the trial court rightly

has given a finding that the agreement is proved and further, the

entire sale consideration has been paid in two documents. Once

the entire sale consideration is paid, question of proving the ready

and willingness assumes no importance.

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22. As far as hardship is concerned, he submitted that,

Section 20 sub-section (2) clause (b) contemplates that, the Court

may properly exercise the discretion not to decree the specific

performance where the performance of the contract would involve

some hardship on the defendant, which he did not foresee, whereas

its non-performance would involve no such hardship on the

plaintiffs. There is no material on record to show that, as to what is

the nature of hardship, which he had not anticipated, that he had

children when the agreement entered into. He having knew that

the property is under sale and he had entered into sale deed as per

market price and accordingly, he has received the amount. If that is

so, the question of exercising the discretion under Section 20 also

does not arise. The trial court on proper appreciation of the

evidence has found that, the defendant has not made out any case

for invoking Section 20 of the Act and when the defendant has

disputed the execution of the agreement itself, he has not entitled to

raise the question of hardship.

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23. In the light of the rival contentions, the points that arise

for consideration are:

(i) Whether the judgment and decree of the trial

court calls for interference?

(ii) Whether the defendant has made out any case to

disprove Exs.P1, P2 and P3 and also has made out any
case of hardship?

24. Ex.P1 is the agreement of sale dated 03.02.1992, under

the said agreement, defendant had agreed to sell the suit schedule

property for consideration of Rs.2,08,800/-. The clause under the

agreement shows that, the sale deed to be executed within three

months before the Sub-Registrar. PW-1 in his evidence has stated

that, he had entered into an agreement as far as Ex.P1. A

discrepancy sought to be made out by the learned counsel for the

defendant in the evidence of PW-1 was that, Ex.P1 refers to cash

payment of Rs.80,000/- and Rs.20,000/- by cheque as advance

amount of Rs.1,00,000/- as part of sale consideration, whereas in

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the evidence, PW-1 states that, he has paid Rs.1,00,000/- cash. In

my opinion, assuming that the plaintiff mentioned Rs.1,00,000/-,

the fact remains that Rs.1,00,000/- consideration paid under the

agreement does not get vitiated by mentioning that it is in cash,

however, PW-2 in his evidence has categorically stated that, he is a

witness to the agreement and has stated that, amount of

Rs.80,000/- was paid in cash and Rs.20,000/- was paid by way of

cheque. Ex.P2 is the registered supplemental agreement. In the

supplemental agreement, the agreement dated 03.02.1992 is

admitted, payment of Rs.1,00,000/- and Rs.65,000/- is also stated

on the date of supplemental agreement and on the date of

supplemental agreement, the defendant paid Rs.43,800/-, which

completes the total payment of sale consideration of Rs.2,08,800/-.

It is not in dispute that, on the said date also, out of Rs.43,800/-,

Rs.7,500/- was paid by cheque. The passbook Ex.D1 produced by

the defendant himself evidences receipt of two cheques, one for

Rs.20,000/- dated 03.02.1992 and second for Rs.7,500/- dated

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17.06.1992. In Ex.P2, supplemental agreement, para-2 clause-8

states that, the plaintiff was put in possession of the suit schedule

property in furtherance of the agreement as a part performance of

the agreement. It is also mentioned that, the defendant has

executed the general power of attorney as per Ex.P3.

25. Ex.P3 cannot be disputed, as Ex.P3 is got cancelled by

the defendant himself as per Ex.D2 dated 04.01.1994. In Ex.D2,

defendant admits that, he has executed the general power of

attorney and was registered before the Sub-Registrar. The contents

of the General power of attorney proves the execution of

agreement, as the same is also referred to.

26. On one hand, defendant admits the execution of general

power of attorney. He also admits the handing over of the original

records of the suit schedule property to the plaintiff. He also

admits that, he had put the signature on the blank stamp paper. On

the other hand, he denies the signature not only on Ex.P1 – sale
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agreement, Ex.P2 - supplemental agreement and Ex.P3 – General

Power of Attorney, but also denies his own signature on Ex.D2.

However, Ex.P2 and P3 being a registered document, defendant

admits having gone to the Sub-Registrar's office and has signed,

there is no evidence to the contrary to prove that, these signatures

were obtained by the plaintiff for the purpose of cut, removal and

sell the eucalyptus tree nor it is the evidence of the defendant that

the eucalyptus trees were cut by the plaintiff. In turn, his own

evidence in the cross-examination shows that, he has preserved the

eucalyptus tress for his daughter's marriage and they are of the age

of 6 to 7 years as on the date of cross-examination. This evidence

falsifies the case of the defendant that, he had signed some

documents for the purpose of cut, remove and sell the eucalyptus

trees. It also falsifies that, he has only received Rs.27,500/- by

cheque, as his signature on the document having been admitted

and correspondingly, the cheques are also given towards part

payment. Defendant admits some part and denies the other part.
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Further, Ex.D2 proves that he executed the general power of

attorney. Both EX.P2 and Ex.P3 show that the plaintiff was put in

possession in part performance of the agreement. This evidence

clearly proves and establishes that the defendant had entered into

an agreement with the plaintiff.

27. If Ex.P1 and Ex.P2 are proved, the complete sale

consideration of Rs.2,08,800/- was paid as on the date of

17.06.1992 i.e., supplemental agreement, when the plaintiff was

put in possession, as such, the question of plaintiff proving his

ready and willingness to perform his part of contract also does not

arise except taking the sale deed.

28. As far as hardship is concerned, even according to the

defendant, the suit properties are purchased by him in 1988. To

prove that, it is purchased out of joint family income, there is

nothing on record, there is no pleading that, the suit schedule

property was an ancestral property, there is no pleading that it was

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purchased out of joint family income. Defendant had purchased

the suit schedule property in 1988 and entered into an agreement in

1992. Hence, there is nothing to show that any hardship that he

had not foreseen. Section 20 sub-section (2) clause (b) of the Act

arises only when the agreement is admitted and the defendant had

not foreseen the hardship that he would suffer at the time of

execution of the sale deed. The Court has to exercise the discretion

judiciously to deny the specific performance of the contract. In

this case, the defendant having disputed the agreement, defendant

having purchased the same in 1988 and there is no changed

circumstance between 1988 and 1992 or from 1992, till the decree

is passed, if that is so, except alleging that, he will be put to

hardship, there is nothing on record to show that defendant would

be put to great hardship in terms of Section 20(2)(b) of the Act to

deny the specific performance of the contract.

29. Further the provisions of Section 20(2)(b) of the Act

would not be invoked when the agreement itself is denied, further,

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when the entire sale consideration is received.

30. The judgments relied on by the learned Counsel for the

appellant have no application to the facts and circumstances of the

case.

31. The trial court on proper appreciation of the evidence has

rightly held that the agreement is proved. Further, has held that no

hardship would be caused to the defendant, accordingly, decreed

the suit. On re-appreciation of the same, I do not find there is any

justifiable reason to interfere with the judgment and decree of the

trial court.

32. An application for impleading is filed by the children of

the defendant on the ground that, partition suit is filed. I do not

find there is any reason to implead the children of the defendant in

the appeal, as the defendant alone has entered into an agreement.

Hence, the applicants are neither necessary nor proper parties in

this appeal.
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In the result, the appeal fails and same is dismissed. No

order as to the cost.

SD/-
JUDGE

KNM/DP