(Prayer: This RFA is filed under Section 96 of code of Civil procedure against the judgement and decree dated 18.09.2006 passed in o.s.no.1777/2006 on the file of the civil judge (Sr.dn.) and JMFC., Devanahalli, partly decreeing the suit for specific performance.)

Cav Judgment:

1. Plaintiff in O.S.No.1777/2006 is the appellant challenging the decreeing of the suit in part, whereby suit for specific performance is dismissed and plaintiff was entitled to recover sum of Rs.95,000/- which was paid as part consideration with interest at 18% per annum from the date of agreement till its actual realisation.

2. Parties are referred to as plaintiff and defendant for the sake of convenience as per their original rankings before the trial Court.

3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

4. Plaintiff entered into an agreement to sell dated 14.02.1991 with defendant in respect of the agricultural land bearing Sy.No.50/4 to an extent of four acres of Maralakunte village, Jala Hobli, Bengaluru North Taluk. (more fully described in the schedule to the plaint, which is extracted hereunder and hereinafter referred to as ‘suit property’).



5. Under the suit agreement, the total consideration was fixed in a sum of Rs.1,30,000/- at the rate of Rs.32,500/- per acre. It is further contented that plaintiff was always ready and willing to perform his portion of the contract and has advanced major portion of sale consideration in a sum of Rs.95,000/- and he had agreed to pay the balance consideration amount at the time of registration of the sale deed.

6. It is also contended that there was failure on the part of the defendant to perform his portion of the contract. Therefore, a legal notice was issued by the plaintiff calling upon the defendant to execute the sale deed in terms of the sale agreement.

7. Plaint averments would further reveal that despite such legal notice, there is no compliance and therefore suit for specific performance is filed.

8. Pursuant to the suit summons, defendant entered appearance and filed written statement.

9. Defendant admitted his ownership over the suit property, but denied all other averments including the endorsement in the suit agreement.

10. It is further contented that plaintiff was never ready and willing to perform his portion of the contract and in the agreement, time fixed for execution of the sale deed was only one week and plaintiff having failed to get the sale deed executed, the agreement stood cancelled automatically. Hence, sought for dismissal of the suit.

11. Defendant also maintained that he had repaid the advance amount and in that regard, a document came into existence.

12. Defendant further contended that on 08.10.1991, he entered into an agreement of sale with A.K. Chandrasekhar Reddy agreeing to sell the property bearing Sy.No.100/2, measuring 2 acres 4 guntas and sold the same in a sum of Rs.75,000/- and on the same day defendant received advance amount of Rs.30,000/- and on 10.10.1991 he paid advance amount to the plaintiff.

13. Based on the rival contentions, learned trial Judge raised the following issues:

                  1.       Whether plaintiff proves the execution of the agreement of sale dt. 14-02-1991 and the receipt of consideration by the defendant as alleged in the plaint?

                  2.       Whether the plaintiff proves that he is in physical possession and enjoyment of the suit land as alleged in the plaint?

                  3.       What relief the plaintiff is entitled?

                  4.       What order or decree?

14. In order to prove the case of the plaintiff, plaintiff got examined himself as PW1.

15. He deposed before the Court about the plaint averments in his examination-in-chief and contended that he had paid sum of Rs.95,000/- as advance sale consideration pursuant to the suit agreement dated 14.02.1991 and balance sum was Rs.35,000/-. He was always ready and willing to pay the same and even on the date of deposition he was ready to pay the balance sum of Rs.35,000/-. He identified the suit agreement which was marked as Ex.P.1. He identified the signature of defendant as Exs.P.1(a) and P.1(b). He further deposed that witnesses to the agreement are Sri Muniyappa and Sri R.Venkataswamy Reddy.

16. He further deposed that he had sent a legal notice to the defendant before institution of the suit. He has identified the Office copy of the said notice before the Court in the documents which was exhibited and marked as Ex.P2.

17. He also deposed that defendant has sent a reply denying the claim of the plaintiff (but no such reply is placed on record) and therefore he had filed the suit. He denied that defendant having returned the advance sale consideration of Rs.95,000/- as per the endorsement at Ex.P1.

18. In his cross examination, he admits that he is not aware of the children of defendant and defendant was in urgent need of money and therefore he agreed to sell the suit property.

19. He denied that there was an agreement to conclude sale transaction within a week from date of agreement. He admits that before the expiry of the time fixed under Ex.P1, he had not issued any notice to defendant.

20. He admits that he is in possession of the suit property from the date of agreement. He has answered that Sri Rangararao is the scribe of Ex.P1. He is not intending to examine him as a witness. He denied having received sum of Rs.30,700/- under the document dated 10.10.1991. He has answered that he does not know who is the scribe of the endorsement or shara on Ex.P1.

21. He pleaded ignorance about the fact of defendant sold the land in Sy.No.102, measuring 2 acres 4 guntas to Sri Chandrashekara Reddy. He specifically denied receiving any money under the document dated 10.10.1991. He denied the suggestion that with an intention to sell the suit property, he obtained the money from Sri Chandrashekara Reddy and repaid it to the plaintiff under document dated 10.10.1991. He admits that defendant is an agriculturist and apart from that he is doing the business of milk vending.

22. He denied that the suit property is the sole property that is retained by the defendant. In his further cross examination, he admits that after Ex.P1 came to be executed, Ex.P1 was in his custody till 08.09.1991 and thereafter the defendant took the document for the purpose of the endorsement. He denied that the signature of the scribe Sri Rangarao on the main document and the endorsement are one and the same. He has stated that he is not intending to examine Sri Rangarao as he is aged person.

23. One of the witnesses to Ex.P.1 Sri R. Muniyappa is examined as PW2. He deposed that he is acquainted with defendant for more than 20 to 30 years who is a resident of his village. He has stated that plaintiff had purchased this property from the defendant and in that connection there was an agreement between the parties and he has witnessed the same and has subscribed his signature. In the said document, he has identified his signature marked at Ex.P1(c). He has identified the signature of plaintiff and defendant in the said document. He further deposed that after execution of Ex.P1, defendant failed to execute the sale deed.

24. In his cross-examination he has answered that Sri Rangarao is the scribe of agreement at Ex.P1. But he does not remember the co-witnesses name.

25. He has stated that about 5 to 6 persons were present when Ex.P1 came to be executed, but he does not remember their names. He denied his signature beneath the endorsement. He has answered that he does not remember Muniswamappa and R. Venkaswamy Reddy being present along with him on the date of Ex.P1. He admits that after execution of Ex.P1 defendant has sold land in Sy.No.100/2 to Sri Chandrashekara Reddy. He has stated that apart from the suit property defendant has got other properties as well. He denied that to help the plaintiff, he has deposed falsely.

26. As against the material evidence placed on record, defendant got examined himself as DW1 by filing an affidavit in lieu of his examination-in-chief.

27. In the affidavit, the defendant has reiterated the contents of the written statement and sought for dismissal of the suit. In his further examination-in-chief, he has marked a document dated 10.10.1991 which is marked as Ex.D1. He has further marked the certified copy of the sale deed executed by him in favour of Chandrashekara Reddy dated 04.09.1992 and same is marked as Ex.D2.

28. In his cross examination on behalf of the plaintiff, he admits the agreement and the suit property. He admits that contents of Ex.P1 are true and correct. He failed to identify the signature of the plaintiff.

29. He has specifically answered that he does not know the sum and substance of the ‘shara’ or ‘endorsement’ written in Ex.P1 or the contents of the same. He has further answered that his signature is present beneath the endorsement. He admits that there is no document to show that he has repaid the entire advance amount to the plaintiff. He denied receipt of legal notice marked at Ex.P2. He denies having delivered the possession of the suit property under Ex.P1. He has specifically answered that he has no document to show that he has repaid sum of Rs.20,000/- and Rs.45,000/- to the plaintiff. He has stated that the signatures found in Ex.D1 cannot be identified by him. He has stated that he examined Sri Krishnappa, who has signed as witness in Ex.D1 and left thumb impression found in the said document is that of one Venkatappa. He denied that he is bound to execute the sale deed in favour of plaintiff. He has admitted that the document which is the RTC extract is in respect of land in Sy.No.84 and the same is marked at Ex.P.3. However, he pleaded ignorance about the date of purchase of the said land.

30. The above evidence on record is sought to be re-appreciated by the counsel for appellant and sought for decreeing of the suit in toto.

31. Sri V. B. Shivakumar would further contend that the learned trial Judge has recorded a categorical finding that the agreement is proved and so also the readiness and willingness, but has surprisingly recorded that the suit cannot be decreed on account of alternate prayer and escalation in land value. Such a reasoning would not stand for logic as it is the volition of the parties to fix the price for the suit land.

32. Despite such a contention, Sri V.B. Shivakumar, learned counsel for the appellant has filed a memo without prejudice to his rights in the appeal.

33. Contents of the memo reads as under:

                  “The appellant respectfully submits, that, the appellant is prepared to enhance the sale consideration amount to the extent of 1.50 CR (one crore fifty lakhs) the judgment impugned in the appeal may accordingly be modified for a decree directing the appellant to pay additional amount in addition to the amount already paid as sale consideration to the extent 1.50 CR (one crore fifty lakhs)”.

34. Based on which, learned counsel for the appellant would pray this Court that in the event this Court is concurring with the finding recorded by the learned trial Judge that the value fixed under the agreement is on the lower side, this Court may enhance the value of the property as per the contents of the memo and decree the suit in toto.

35. Per contra, learned counsel for the respondent Sri P.N. Rajeshwara, opposes the appeal grounds by contending that the plaintiff was never ready and willing to perform his portion of the contract inasmuch as he did not complete the sale transaction within the stipulated period of one week and thereafter the defendant has cancelled the suit agreement and returned the entire sale consideration amount under Ex.D1.

36. He would further contend that though Ex.D1 is denied by the plaintiff, the same is established by placing necessary evidence on record which has not been properly appreciated by the learned trial Judge and therefore the finding which are contrary to the stand taken by the defendant needs to be revisited and order of the trial Court needs to be upheld by dismissing the appeal.

37. In the light of the above rival contentions of the parties, the following points would arise for consideration:

                  1. Whether the plaintiff/appellant has successfully established that he is entitled for specific enforcement of the agreement to sell dated 14.02.1991 in the respect of the suit schedule property?

                  2. Whether the finding recorded by the learned trial Judge in the impugned judgment that the contract of sale cannot be enforced on account of the value of the property is suffering from legal infirmity or perversity and thus calls for interference?

                  3. What order?

38. Regarding point Nos.1 and 2: In the case on hand, the suit agreement dated 14.02.1991 is not in dispute, so also the payment of advance sale consideration of Rs. 95,000/-.

39. Under suit agreement, 4 acres of the land was agreed to be sold at the rate of Rs.32,500/- per acre. Therefore, major portion of the sale consideration is paid by the plaintiff.

40. In the agreement of sale, it has been mentioned that on receiving sum of Rs.95,000/- defendant has delivered physical possession of the suit property in favour of the plaintiff. Agreement contents also show that the defendant would supply all necessary documents for the purpose of completing the sale.

41. It is also agreed by the defendant under Ex.P1 that if there is any difference in the area of the suit property, after the measurement of the same, the sale consideration would be pro rata with the measurement.

42. Defendant has also agreed that if there is any delay on the part of the defendant, he will indemnify the plaintiff. Further, it is also found from the contents of agreement that there will be forfeiture of the advance amount, if there is any breach of the agreement terms.



44. Translated version in sum and substance of the said endorsement is that on 10.09.1991 in respect of the agreement and on 10.10.1991 sum of Rs.30,700/- is agreed to be paid by the defendant Erana Swami without any objection and balance sum of Rs. 65,000/- would be paid within a period of four months i.e., on or before 10.02.1992.

45. Surprisingly said endorsement does not contain the signature of plaintiff, but it contains signature of two witnesses namely, Sri R. Muniyappa and Sri Munibyrappa of Maralakunte and signature of the scribe namely Sri Rangarao. But witnesses are not examined nor scribe is summoned as a witness on behalf of defendant.

46. Defendant also maintained that he had repaid the sum by document dated 10.10.1991 marked at Ex.D.1. The said document is denied by the plaintiff and therefore said document was sent to handwriting expert.

47. Handwriting expert who is appointed as the Court commissioner by name, Smt. C.V. Jayadevi after examination of the admitted signatures and the disputed signatures on Ex.D1, formed a definite opinion that disputed signatures are not made by the persons who made the admitted and specimen signatures. In other words, signature of plaintiff was not proved in Ex.D1.

48. It is pertinent to note that handwriting expert is not called for cross examination by the defendant and therefore the report is accepted by the Court.

49. In the background of these admitted facts, when the material on record is appreciated, the learned trial Judge in the impugned judgment while holding that plaintiff has established the fact that there was a suit agreement between the parties and plaintiff had paid sum of Rs.95,000/- which is major portion of the sale consideration vide Ex.P1, has noted that there is an alternate prayer in the plaint and while answering issue No.3 has held as under in paragraph 12.

                  “Issue No.3. The plaintiff has filed the suit for specific performance or any alternative relief. The plaintiff specifically admits that he had also asked for refund of Rs.95,000/- along with interest at 18% with damages. When this is clearly pleaded by the plaintiff in the plaint itself, in view of the fact that the litigation has taken more than 10 years for its adjudication, it is clear that a relief of refund of earnest money will be sufficient instead of specific performance. The lands in Devanahalli Taluk have gone very high and if specific performance is ordered at this stage, defendant will be deprived of the usufructs of taking the money. Hence exercising the right of discretion, the relief of specific performance is declined and suit is decreed to the extent of refund of earnest money with interest @ 18% from the date of agreement.”

50. It is to be noted that plaintiff claiming the alternate prayer ordinarily should not come in the way of passing an order of enforcement of an agreement which stood proved especially when the trial Judge has recorded the agreement and readiness and willingness is established.

51. Reasons mentioned in 12th paragraph supra above thus do not stand for logic only on the ground that there is an alternate prayer in the suit.

52. Further, it is not the case of the defendant that usufructs of the property are deprived to the defendant in utilizing the advance sale consideration and therefore discretion is exercised in favour of defendant.

53. Pertinently, it is not the plaintiff who is responsible for the delay in adjudicating the suit.

54. It is also to be noted that escalation in the price of the value of the land should not ordinarily come in the way of granting a decree of specific performance, more so, when the agreement and readiness and willingness is established by placing material evidence on record.

55. It is pertinent to note that the defendant took up a false plea that he had repaid sum of Rs.95,000/- by placing on record Ex.D1. Thus, suit agreement has been terminated.

56. He also placed reliance on the endorsement in Ex.P1 as well. In the first place, there is no signature of the plaintiff in respect of the endorsement in Ex.P1 and witnesses are not examined on behalf of the defendant to prove the said endorsement.

57. Likewise, even though Ex.D1 is placed on record, witnesses to Ex.D1 are not examined by the defendant.

58. Crowning all these aspects of the matter, when the signature in Ex.D1 was disputed by the plaintiff, Ex.D1 was referred to the handwriting expert.

 59. Smt. C.V. Jayadevi after examining the admitted and disputed signatures clearly opined that the signatures in Ex.D1 is not the signature of the plaintiff.

60. The commissioner's report is placed on record and reasons assigned by the expert stand to the logic as to why such an opinion is furnished by the handwriting expert.

61. When once the signature of the plaintiff on Ex.D1 is not proved, the entire contents of Ex.D1 needs to be brushed aside and defendant is to be termed as a person who had approached the Court with a false document to somehow avoid the specific enforcement of the agreement to sell.

62. One can easily infer that the steep escalation of the value of the suit property is the sole reason for the defendant to plead that there was return of money and contract has been terminated.

63. It is no doubt true that the terms of the contract is sacrosanct and Courts are not expected to substitute the land value generally. At the same time, Courts are also not expected to keep shut its eyes to the burning harsh realities of escalation of the land value of the suit property, which in majority of the cases is the sole reason for avoiding the specific enforcement of an agreement.

64. Similar set of factual circumstances arose before the Hon'ble Apex Court in the case of Nirmala Anand vs. Advent Corporation (P) Ltd and others reported in (2002) 8 SCC 146. In the said decision, Hon’ble Apex Court directed to the plaintiff escalation land value for granting decree of specific enforcement. The relevant portion of the said judgment is culled out hereunder for ready reference:

                  “It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the consideration besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the consideration to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.”

65. Their Lordships of the Hon'ble Apex Court in the said decision noted that appellant was always ready and willing to perform her portion of the contract, ordered that enhanced sale consideration can be directed by a Court while granting specific performance of an agreement to sell.

66. When said aspect of the matter is brought to the notice of Sri V.B. Shivakumar, learned counsel appearing on behalf of the plaintiff, a memo came to be filed as referred to Supra.

67. Plaintiff is now willing to purchase the property for a sale consideration of Rs.1,50,00,000/- as sale consideration in addition to the sum of Rs.95,000/- already paid at the time of agreement.

68. When once the defence taken by the defendant that he has repaid the advance sale consideration and terminated the agreement is not established by placing cogent evidence on record and there is already a part performance of the contract in letting the plaintiff into the physical possession of the suit property as per Ex.P1 which is not in dispute, this Court is of the considered opinion that a case is made out by the plaintiff for specific enforcement and not return of money as is ordered by the learned trial Judge in the impugned judgment only on the basis of the alternate prayer pleaded by the plaintiff.

69. Thus, plaintiff has successfully established that he was always ready and willing to perform his portion of the contract under the agreement and it is the defendant who avoided the specific enforcement on false and flimsy grounds.

70. Except the self-serving testimony of defendant, there is no other material on record to establish that the suit agreement was terminated and possession of the property was re-delivered to defendant. Ex.D1 having not been proved, this Court can safely record a finding that plaintiff is entitled for specific enforcement.

71. Lastly a feeble attempt made by Sri P.N. Rajeshwara, learned counsel for the defendant that granting of specific enforcement would act as hardship for the defendant. He also pointed out that except the suit property there is no other property possessed by the defendant.

72. However, the material on record contradict the said submission on behalf of the defendant inasmuch as the defendant in his cross-examination has specifically admitted that after the present agreement he has purchased one more landed property in Sy.No.100/2 which is admitted vide Ex.P.3 – RTC extract. Further, there are other properties which were also possessed by defendant and one such property is sold to the extent of 2 acres 4 guntas in favour of Chandrashekara Reddy as is pleaded and admitted by defendant himself after the execution of suit agreement. Therefore, the plea of hardship should not come in the way of this Court exercising the discretion in favour of the plaintiff in decreeing the suit and granting specific enforcement.

73. It is also pertinent to note that finding recorded by the trial Judge with regard to the payment of advance amount and validity of Ex.P1 is not challenged by the defendant by filing cross objection or cross appeal.

74. Thus, in view of the above discussion, point No.1 and 2 are to be answered in the affirmative and partly affirmative by directing the plaintiff to pay enhanced sale consideration in a sum of Rs.1,50,00,000/- in addition to the payment already made by the plaintiff.

75. Regarding point No.3: In view of finding of this court on point Nos.1 and 2 as above, following order is passed:

                  ORDER

                  Appeal is allowed by modifying the decree of trial Court as under:

                  (i) Plaintiff/appellant shall pay enhanced sale consideration in a sum of Rs.1,50,00,000/-

 (Rupees one crore fifty lakhs only) to the defendant on or before 31.01.2026.

                  (ii) In the event defendant/respondent fails to accept the said amount, deposit the same before the trial Court on or before 05.02.2026.

                  (iii) On deposit of enhanced sale consideration of Rs.1,50,00,000/-, defendant shall execute the sale deed in favour of the plaintiff failing which plaintiff is entitled to get the sale deed executed through the process known to law.

                  (iv) No order as to costs.