2. Mr.M.Mohammed Amjad, S/o.Late.Dr.M.Mohammed Ghouse, Aged about 37 years,

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23 RD DAY OF FEBRUARY 2015 BEFORE THE HON BLE MR.JUSTICE B.MANOHAR WRIT PETITION No.5070/2015(GM-CPC) BETWEEN: Mrs.S.Prasanna, W/o.P.K.Somashekar Reddy, Aged about 56 years, Residing at Flat No.401, Prakruthi Enclave, No.10, 6 th Main HAL 3 rd Stage, Bengaluru 75. Petitioner (By Sri.Rajagopal Naidu, Advocate) AND: 1. Mrs.Shany Jalal, D/o.M.Jalaluddin, Aged about 38 years, Residing at No.2883, Kodihalli, HAL 2 nd Stage, Bengaluru Mr.M.Mohammed Amjad, S/o.Late.Dr.M.Mohammed Ghouse, Aged about 37 years,

2 2 Residing at No.482, 100 Feet Road, Indiranagar, Bengaluru 38. Respondents (By Sri.Ashok B Patil, Advocate for R1, Smt.Pramila Nesargi, Senior Counsel for Muniswamy Gowda, Advocate for R2) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to set aside the orders passed on I.A.No.13 filed under Section 151 of the Code of Civil Procedure to frame Additional issue as shown in the application but on the trial court in O.S.No.594/2005 by the XI Additional City Civil Judge, Bengaluru City has wrongly framed a issue vide its orders dated vide Annexure A and to frame the issue as shown in I.A.No.13 and to grant an Interim Order to stay all further proceedings in O.S.No.594/2005 which is pending before the XI Additional City Civil Judge, Bengaluru City. This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:- O R D E R Petitioner is the second defendant in O.S.No.594/2005 on the file of the 11 th Additional City Civil Judge, Bangalore,

3 3 being aggrieved by the order dated partly allowing I.A.No.13 filed under Section 151 of CPC seeking for framing of additional issue, has filed this writ petition. 2. The first respondent herein filed a suit seeking for specific performance of agreement of sale dated executed by the first defendant. The first defendant filed written statement. In the written statement the first defendant has stated that since the plaintiff had failed to perform her part of the contract, the suit schedule property was sold in favour of the second defendant as per the registered sale deed dated In view of that the plaintiff filed an application to implead the second defendant and also sought for amendment of the plaint. The application for impleading the second defendant was allowed on , thereafter the plaint was amended and the prayer was also made seeking for declaration declaring that the sale deed dated is not binding on the plaintiff. The plaintiff further sought for cancellation of the said sale

4 4 deed. The second defendant entered appearance and filed written statement. 3. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The parties went for trial. The plaintiff got examined herself as P.W.1 and got marked the documents. The first defendant was not examined. However, the second defendant was examined through her Power of Attorney holder. In support of her case, she examined the brother of the first defendant as D.W.2. When the case was posted for arguments, the second defendant in the suit filed an application I.A.No.13 seeking for framing of additional issue contending that she is the bonafide purchaser and she is not aware of the agreement of sale dated as per Section 19(b) of the Specific Relief Act (hereinafter referred to as the Act for short). The Trial Court has not framed any issue

5 5 regarding bonafide purchase. Hence, she sought for framing of additional issue in the following manner: Whether the plaintiff proves that the second defendant was aware about the existence of contract between her and the first defendant and that the sale deed of the second defendant is not binding on her contrary to Section 19 of the Specific Relief Act. 4. The said application and also the draft additional issue framed by the second defendant was opposed by the plaintiff contending that burden is to be shifted on the second defendant to prove that she has purchased the property in good faith and without notice of the subsistence of agreement of sale dated Under Section 19(1)(b) of the Act, the person claims to be the bonafide purchaser has to prove his case that he has purchased the property without canceling the agreement of sale in good faith and without notice of the original contract. Hence casting burden on the plaintiff to prove that second

6 6 defendant is aware of the existence of the contract does not arise. In the plaint, the specific allegation has been made against the second defendant that she, in collusion with the first defendant, during the subsistence of earlier agreement of sale, purchased the property for a sum of Rs.3,00,000/- whereas the agreement of sale is for Rs.9,00,000/-. Hence, the burden cannot be cast upon the plaintiff to prove that the second defendant is the bonafide purchaser. 5. The Trial Court after considering the matter in detail and taking into consideration the arguments addressed by the parties found that though the second defendant filed an application for framing of the additional issue with regard to bonafide purchase of the property by her during the subsistence of agreement of sale, she examined one of the witnesses in support of her who is none other than the brother of first defendant. In his evidence he has stated that he has informed the second defendant about the existence of agreement of sale dated between

7 7 the plaintiff and the first defendant. The Trial Court taking into consideration the evidence of D.W.2 framed the additional issue casting burden on the second defendant to prove that she is the bonafide purchaser for value of the suit schedule property. The additional issue framed by the Trial Court reads as under: Whether the 2 nd defendant proves that she is a bonafide transferee for value, who has paid money in good faith and without notice of the Agreement to sell in favour of the plaintiff dated ? The second defendant being aggrieved by the order passed by the Trial Court partly allowing I.A.No.13 casting the burden on the second defendant to prove that she is the bonafide purchaser filed this writ petition. 6. Sri.Rajagopala Naidu, learned counsel appearing for the petitioner contended that the order passed by the Trial Court casting the burden on the petitioner is contrary to law. She was not aware of the agreement of sale entered into between the

8 8 respondents herein dated In the sale deed, it was specifically mentioned that the Vendor further assures the PURCHASER, that he has paid all taxes, rates, cesses and dues, in respect of the SCHEDULE PROPERTY, as also all dues, payable to the Government or Quasi Governmental authorities and Statutory bodies including all dues payable and should there be any balance found to be due and payable, he undertakes to reimburse the PURCHASER, in case the PURCHASER is compelled to pay the same. Further, the suit schedule property is free from all encumbrances and litigations and the Vendor has marketable title. On the assurance given by the Vendor, she has purchased the property. However, the Trial Court has framed issues thrice, but it has not framed any issue with regard to bonafide purchase. When the second defendant has specifically contended that she is the bonafide purchaser for a valuable consideration, necessary issue has to be framed under Section 19(b) of the Act casting burden on the plaintiff to prove that the second defendant was aware of the existence of contract

9 9 between the plaintiff and the first defendant. Accordingly, I.A.No.13 has been filed for framing necessary issue in terms of 19(b) of the Act. However, the Trial Court while partly allowing the application, fastened the burden on the second defendant to prove that she is a bonafide purchaser of the suit schedule property, which is contrary to law and sought for setting aside the same. 7. Sri.Ashok B Patil, learned counsel appearing for the for the first respondent argued in support of the order passed by the Trial Court and contended that during the subsistence of agreement of sale between the plaintiff and the first defendant, the first defendant has sold the property in favour of the second defendant for a sum of Rs.3,00,000/- though the agreement of sale between the plaintiff and first defendant is for Rs.9,00,000/-. Immediately after coming to know about the execution of sale deed in favour of the second defendant, the plaintiff filed an application for impleading the second

10 10 defendant and also sought for cancellation of sale deed dated executed by the first defendant in favour of the second defendant. In paragraph 11A of the plaint, a specific allegation was made against the second defendant that she, in collusion with the first defendant got the sale deed registered for a sum of Rs.3,00,000/-, the said sale deed is a sham document and the same is not binding on the plaintiff. The second defendant has not controverted the said statement in the written statement. When a party claims that he is the bonafide purchaser of the property for valuable sale consideration, the burden casts upon him to prove the same. There is no infirmity or irregularity in the order passed by the Trial Court and sought for dismissal of the writ petition. In support of his contention, learned counsel relied upon the judgment reported in AIR 1998 SC 2028 in the case of JAGAN NATH v/s JAGDISH RAI AND OTHERS and in 2000 AIR SCW 4794 in the case of R.K.MOHAMMED UDAIDULLAH AND OTHERS v/s

11 11 HAJEE C. ABDUL WAHAB (D) BY LRs. AND OTHERS and contended that the burden is on the subsequent purchaser of the suit schedule property to prove that he is the bonafide purchaser of the property. 8. Smt.Pramila Nesargi, learned Senior advocate appearing for the second respondent contended that father of the first defendant Dr.M.Mohammed Ghouse entered into an agreement of sale with the plaintiff in the year Pursuant to the agreement of sale in respect of the suit schedule property, a sum of Rs.3,00,000/- has been paid and the remaining amount has to be paid within the specified time. Since, the plaintiff failed to pay the remaining amount, the first defendant sold the property to the second defendant. Hence, the plaintiff is not entitled for any relief. Further, the issues have been framed in accordance with law and the parties have to prove their case.

12 12 9. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records. 10. The records clearly disclose that the first respondent herein filed a suit for specific performance of agreement of sale dated During the pendency of the said suit, the first defendant filed written statement contending that within the specified period, the plaintiff has failed to pay the balance sale consideration. Accordingly, the suit schedule property was sold to the second defendant on In view of that, an application was filed to implead the second defendant. After impleading the second defendant, the plaint was amended incorporating the prayer for cancellation of agreement of sale dated After conclusion of the Trial, the second defendant filed an application seeking for framing of additional issue as required under Section 19(b) of the Act. The case pleaded by the second defendant is that she is the bonafide

13 13 purchaser of the suit schedule property for a valuable consideration in good faith without notice of the earlier agreement of sale and she is protected under Section 19(b) of the Act. However, the Trial Court has not framed any issue in this regard and hence, she sought for framing of the additional issue referred to above. The plaintiff filed objections to the said application contending that the issue as sought for by the second defendant cannot be framed. The brother of the first defendant was examined as D.W.2. In his evidence he has clearly admitted that he has informed the second defendant about the existence of the agreement of sale dated D.W.2 is none other than the brother of the first defendant. On the basis of the said admission, the Trial Court framed an issue casting burden on the second defendant to prove that she is the bonafide purchaser of the suit schedule property for valuable consideration in good faith. The Trial Court ought to have framed an issue under Section 19(b) of the Specific Relief

14 14 Act, but, by inadvertence, the Trial Court has not framed any issue regarding bonafide purchase. In view of that an application was filed by the second defendant seeking for framing of additional issue. The Trial Court taking into consideration the evidence let in by the parties partly allowed I.A.No.13 casting burden on the second defendant to prove her case that she is the bonafide purchaser. In view of that, an additional issue was framed and the second defendant has to prove her case that she is the bonafide purchaser of the property for valuable sale consideration in good faith. 11. The Hon'ble Supreme Court in a judgment reported in 2000 AIR SCW 4794 (Supra) after examining Section 19(b) of the Specific Relief Act held that This protection is in the nature of exception to the general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case.

15 15 Further, the Hon'ble Supreme Court in a judgment reported in AIR 1998 SC 2028 (supra) held that It is well settled that initial burden to show that the subsequent purchaser of suit property covered by earlier suit agreement was a bonafide purchase for value without notice of the suit agreement squarely rests on the shoulders of such subsequent transferee. In view of the law laid down by the Hon'ble Supreme Court the burden is upon the second defendant to prove that she is the bonafide purchaser of the property. 12. I find no infirmity or irregularity in the order passed by the trial Court. It is for the second defendant to prove the case in accordance with law. Accordingly, the writ petition is dismissed.

16 16 Since the suit is of the year 2005, the Trial Court is directed to dispose of the matter as expeditiously as possible within the outer limit of 30 th June Sd/- JUDGE mpk/-*

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