Basangouda Bhimangouda Patil vs Sayed Iqbal S/O Mehboopasha ...
2021 Latest Caselaw 6914 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 21ST DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                RSA No.200226/2020

BETWEEN

BASANGOUDA BHIMANGOUDA PATIL
AGE: 58 YEARS, OCC. MEDICAL PRACTIONER
SANJIVINI CLINIC, KAMANKHAN BAZAR,
VIJAYAPURA.
                                         ...APPELLANT

(BY SRI SACHIN M. MAHAJAN AND
SRI MRUTUNJAYA TATABANGI, ADVOCATES)

AND

1.     SAYED IQBAL S/O MEHBOOPASHA PEERZADE
       AGE: 45 YEARS, OCC. BUSINESS,
       R/AT NAVABMASJID, BADIKAMAN ROAD,
       VIJAYAPURA.

2.     SMT. CHINNAKKA W/O VEERESH KHAUNTAKOPPA
       AGE: 50 YEARS, OCC. HOUSEHOLD,
       R/AT NEAR SIDDESHWAR TEMPLE,
       BESIDES GOVERNMENT PRIMARY
       SCHOOL, RAYABAG, DIST. BELAGAVI.
                                      ...RESPONDENTS

(BY SRI KOUJALAGI C.L., ADVOCATE FOR R1;
SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R2)
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    THIS RSA FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 29.09.2020 PASSED IN
R.A. No.19/2019 ON THE FILE OF THE IV ADDITIONAL
DISTRICT JUDGE AT VIJAYAPURA ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 18.12.2018 PASSED IN O.S.NO.47/2016 ON THE
FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND JMFC AT
VIJAYPURA.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-

                        JUDGMENT

The present regular second appeal is filed under

Section 100 of CPC by the appellants/defendant No.1

aggrieved by the judgment and decree passed by the

Additional District Judge at Vijayapur (for short 'First

Appellate Court') in R.A.No.19/2019 dated 29.09.2020, in

and by which, the first appellate Court reversing the

judgment and decree passed in O.S.No.47/2016 by the III

Additional Senior Civil Judge at Vijayapur (for short 'Trial

Court) dated 18.12.2018, decreed the suit of the plaintiff

for specific performance of an agreement dated

15.05.2015 and directed the defendants to receive the

balance sale consideration and to execute the deed of sale

in respect of the suit property.

2. Brief fact leading up to filing of the present

appeal are that respondent No.1/plaintiff claiming to have

entered into an agreement of sale dated 15.05.2015 with

one Shankargouda Patil agreeing to purchase the

immovable property bearing Survey No.83/4B measuring 6

acres 24 guntas situated at Rambhapur village (for short

'suit property') for a total sale consideration of `6,50,000/-

filed the above suit for specific performance of the said

agreement.

3. It is the case of the plaintiff that the said

property belonged to Shankargouda Patil. That the said

Shankargouda Patil had agreed to sell the aforesaid suit

property to the plaintiff for a total sale consideration of

`6,50,000/- and out of which, a sum of `5,00,000/- was

agreed to be paid as earnest money and remaining amount

of `1,50,000/- was agreed to be paid at the time of

execution and registration of deed of sale. That the

possession of the suit property was agreed to be delivered

at the time of entering in the agreement of sale. In

pursuant to the said agreement, Shankargouda Patil had

applied for measurement and fixing of the boundaries and

for obtaining separate PT sheet in respect of the suit

property. That in furtherance thereof, on 15.05.2015,

aforesaid Shankargouda Patil executed and registered the

agreement of sale by receiving earnest money of

`5,00,000/- from the plaintiff in the presence of the

witnesses before the Sub-Registrar and in part

performance of the said agreement, handed over the

physical possession of the suit property to the plaintiff.

That the plaintiff has been in actual lawful possession and

enjoyment of the suit property since then. That the said

Shankargouda Patil was postponing the execution of deed

of sale on the one pretext or the other and the plaintiff

having already paid Rs.5,00,000/- of consideration amount

out of Rs.6,50,000/- was always ready and willing to pay

balance sale consideration and to obtain the deed of sale.

That the said Shankargouda Patil passed away on

17/01/2016 leaving behind the defendants as his class-II

heirs to succeed to his estate including the suit property.

4. That upon demise of Shankargouda Patil plaintiff

approached the defendants and requested them to come

forward for receiving balance sale consideration and

execute the deed of sale in terms of the agreement of sale.

That the defendants though were very well aware of the

above transaction that had taken place between the

plaintiff and Shankargouda Patil and also being aware of

the plaintiff having been put in a possession of the suit

property by the deceased Shankargouda Patil, refused to

respond to the requests of the plaintiff. Resultant the

plaintiff caused issue of a notice dated 04/02/2016 calling

upon the defendants to come forward and execute the

deed of sale by receiving the balance sale consideration

amount. Defendants issued reply denying the contract and

refused to execute the deed of sale. This constrained the

plaintiff to approach the court by filing a suit in

O.S.No.47/2016 for the relief of specific performance of

the aforesaid agreement of sale.

5. On service of summons, the defendant Nos.1

and 2 appeared through their counsel and filed written

statement. Defendant No.3 was placed exparte. It is

contended by the defendants that Shankargouda Patil was

a bachelor more irresponsible person addicted to

consumption of alcohol and was always under drunken

condition, just wondering here and there. In view of his

addiction to alcohol and intoxication state of mind said

Shankargouda Patil was not competent either to look after

his property and to sell it for any legal necessity. It is

specifically denied that plaintiff had paid and

Shankargouda Patil had received advance amount of

Rs.5,00,000/- and agreed to sell the suit property to

plaintiff. It is further contended that Shankargouda Patil

died on 17/01/2016 due to addiction and too much

consumption of alcohol and loss of his health. The said

Shankargouda Patil since so many months much prior to

his death had lost his health and his condition was

deteriorating day by day. That due to ill-health he was not

able to deal with the suit property as an ordinary prudent

man. It is further contended that Shankargouda Patil

being slave of alcoholic condition, was not hesitating to

raise petty hand loan and to sign any paper or bond paper

in order to satisfy his thrust of liquor. The defendants so

many occasions had paid petty hand loans raised by

deceased Shankargouda Patil, in so many occasions

treated the deceased on his sustaining injuries during

intoxication. That taking undue advantage of his

conditions, interested parties, locality people and even

some relatives also attempted to knock off the valuable

property of deceased Shankargouda Patil on the basis of

created false deeds and documents. That defendant No.3

is true sister of deceased and she is married to one

Veeresh Kavatakopps who is practicing advocate at

Raibag. The said sister and her husband who had clear

knowledge about the mental and physical status of

deceased with a future plan they have got self serving Will

deed on 29/04/2015 at Raibag with respect of suit

property. That after the death of Shankargouda Patil said

factum of Will deed was noticed by the defendants No.1

and 2 and seriously objected and also cautioned filing

criminal case against their sister and her husband. It is

further contended that all brothers are enjoying the joint

family property under an arrangement, hence defendant

Nos.1 and 2 have got right over the share of

Shankargouda Patil to claim and retain the suit property

under preferential right. Hence, sought for dismissal of

the suit.

6. The Trial Court based on the pleadings framed

the following issues.

1. Whether plaintiff proves that deceased Shankaragouda Patil had executed a registered agreement of sale in his favour on 15/05/2015 in respect of the suit property for Rs.6,50,000/- and received earnest money of Rs.5,00,000/-?

2. Whether plaintiff proves that deceased Shankaragouda had handed over the possession of the suit property to him?

3. Whether plaintiff proves that he is ready and willing to perform his part of contract since inception?

4. Whether defendant No.1 proves that deceased Shankaragouda was addicted to bad vices like consumption alcohol etc., and

used to take hand loan by signing on bond papers?

5. Whether defendant No.2 proves that he has got preferential rights to purchase the suit property?

6. Whether plaintiff is entitled for the reliefs as sought for?

7. What order or decree?

7. The Trial Court recorded evidence. The plaintiff

examined himself as PW.1 and examined two additional

witnesses as PWs.2 and 3, exhibited 9 documents marked

as Exs.P1 to P9. On behalf of defendants, defendant No.1

examined himself as DW.1 and examined three additional

witnesses as DWs.2 to 4, but no documents were marked.

8. The Trial Court, on appreciation of the

pleadings and evidence on record answered issue Nos.1 to

3, 5 and 6 in the negative and issue No.4 in the

affirmative and consequently dismissed the suit holding

that the deceased being addicted to alcohol was not

capable of executing the document and that the plaintiff

had not proved the execution of sale deed and he also not

proved his willingness and readiness of the performance of

contract. Aggrieved by the same, the plaintiff approached

the first appellate court in RA.No.19/2019.

9. Upon the grounds raised by the appellant the

first appellate court framed the following point for its

consideration.

1. Whether the impugned judgment and decree passed by the trial court is opposed to law and fact rendering it to be arbitrary and capricious, that warrants interference in the hands of this court? And what should the order?

10. The first appellate court by its judgment and

decree dated 29/09/2020 allowed the appeal setting aside

the judgment and decree passed in O.S.No.47/2016 on the

file of III Additional Civil Judge, Vijayapur dated

18/12/2018 and consequently, decreed the suit.

Aggrieved by the same, defendant Nos.1 and 2 are before

this Court.

11. Learned counsel for the appellant/defendant

Nos.1 and 2 reiterating the grounds urged in the appeal

submitted that; the first appellate court erred in not

taking into consideration the scope and ambit of Sections

91, 92 and 99 of the Indian Evidence Act, 1872 in

construing the terms of agreement Ex.P1. He submits that

the defendants being class-II heirs are entitled to raise the

dispute with regard to the very terms of the agreement

including the issue of consensus ad idem. He further

submits that the factum of payment of money having been

seriously disputed by the defendants, this aspect of the

matter has not gone into by the first appellate court. He

submits that since the trial court in its detail discussion on

issue No.4 had come to the conclusion that the deceased

was addicted to alcohol that would justify the ground

urged by the defendants with regard to the very nature of

agreement being a sham document and that the

agreement per se was the security for loan. Drawing

attention of this Court to the deposition of PW.2, he

submits that even according to PW.2 the payment of

money at the time of execution of the agreement has not

been established satisfactorily by the plaintiff. He submits

that the appreciation of evidence and reasoning has not

been done and given by the first appellate court in the

manner required under Order XXXXI Rule 31 CPC.

12. Learned counsel for the appellants filed an

application under Order 41 Rule 27 of CPC on 13/12/2021

seeking to adduce additional evidence by way of

production of documents namely; "The Regrant Order

passed by the Deputy Commissioner, Bijapur dated

27/06/1968 under the Provisions of the Bombay Paragana

and Kulkarni (Abolition) act". The copy of the same is

enclosed along with the application.

13. Learned counsel refers to the following

judgments in support of his submission:

1. AIR 1936 PC 70 in the case of Tyagaraja Mudaliyar and Ors V.

Vedathanni;

2. (2003) 6 SCC 595 in the case of Roop Kumar v. Mohan Thedani.

14. Hence, he submits that the appeal involves

substantial question of law to be considered.

15. On the other hand, learned counsel for the

respondents/plaintiff submits that since the agreement in

question is a registered document, the contents of the

same cannot be disproved by leading oral evidence. He

submits that the grounds which have been raised at this

stage of the appeal have never been pleaded by the

defendants in this written statement. Drawing attention of

this Court to deposition of DW.1 learned counsel submits

that, the defendant has categorically admitted regarding

his knowledge of the agreement of sale executed by the

deceased Shankaragouda Patil in favour of the plaintiff

herein, even during the life-time of Shankargoud Patil.

That despite having the knowledge about the sale,

defendants have remained silent thereby suggesting

acquiescence of the matter. He further submits that

admittedly property was ancestral property having been

partitioned in the year 2000, parties were enjoying their

respective shares separately and independently.

Therefore, deceased Shankaragouda Patil was in his

absolute authority to execute the deed of sale and

accordingly executed the same in favour of plaintiff.

Learned counsel further submits that in the present appeal

no substantial question of law involved for consideration.

16. Before adverting to the issue whether in the

present appeal, any substantial question of law is involved

for consideration, it is appropriate to advert to the

application filed by the appellant for production of

document. The document sought to be produced is a

purported Order passed by the Deputy Commissioner

regranting the subject land on 27/06/1968. The law with

regard to production of additional documents is well

settled. The additional evidence could be adduced under

Order 41 Rule 27 CPC only in one of the three situations,

namely; (i) When the trial court has illegally refused the

evidence although it ought to have been permitted to; (ii)

When the evidence sought to be adduced by the party was

not available to it despite the exercise of due deligence;

(iii) When the additional evidence was necessary in order

to enable the appellate court to pronounce the judgment

on hand. Keeping this parameter in view, the application

by the appellant needs to be adjudicated. In the affidavit

accompanying the said application, it is sworn to that the

property was originally an Inam land subject matter of

regrant in favour of father of the deceased Shankaragouda

Patil and defendants back in the year 1968. That one of

the condition imposed in the said grant was not to alienate

the property without leave of the Deputy Commissioner at

that moment of time. Thus the said document was not

available with the defendants at the appropriate point of

time while defending the suit and therefore they were not

in a position to obtain and produce despite exercise of due

diligence.

17. It is necessary to note that such plea of the

property being a granted land in the year 1968 subject to

restriction is raised for the first time by way of the said

application. No foundational plea in this regard was raised

in the written statement. Therefore, in the absence of

pleading any amount of evidence would not justify

acceptance of the said evidence. Notwithstanding the

same on a bare perusal of the document, sought to be

produced though for the limited purpose, if it is required

for pronouncing the judgment in the present case, it is

seen that the said document is merely a proforma of

undertaking purportedly given by one Beema

Shankargouda Patil. The said document is not an Order of

regrant as captioned in the application. This is not

disputed by the appellant. On a query by the Court,

learned counsel for the appellant fairly submitted that they

do not have the Order of regrant. That, though he submits

that there is a mutation entry in that regard even in the

said mutation document is not available. Though in the

application and affidavit accompanying the same, it is

mentioned as an Order of regrant passed by the Deputy

Commissioner as noted above it is only a proforma

application and not an order. Therefore, the said

document not being the one as captioned in the application

and application being misconceived and devoid of any

merits, cannot be considered. For this reason, the

application is rejected.

18. Admittedly, suit property was allotted to the

share of deceased Shankaragouda Patil in a partition and

he was he was in possession and enjoyment of sake as

absolute owner thereof. It is also admitted fact that

Shankaragouda Patil in terms of the registered agreement

of sale dated 15/05/2015 at Ex.P1, had agreed to sell the

said property to the plaintiff. In pursuant to the agreement

he had delivered the vacant physical possession of the suit

property to the plaintiff. Since the possession was given in

part performance of the agreement of sale, the same was

registered as mandatorily required under the law. The first

appellate court, in the light of registered document has

declined to accept the plea of the aforesaid sale agreement

being a sham document as any oral evidence is excluded

under Section 92 of the Evidence Act.

19. Learned counsel for the appellant submitted

that though the agreement of sale at Ex.P1 is a registered

document, the defendants are entitled to plead and lead

oral evidence disproving the execution of the document

and contents of the same. He relied upon Para 7 of the

judgment of the Privy Council in the case of Tyagaraja

Mudaliyar and Ors V. Vedathanni (Supra) which is

extracted as under:

"7. There being no proviso in either section making oral evidence to show that there was no agreement and therefore no contract inadmissible, their Lordships Will consider, in the first place, whether there is anything in the sections themselves to render it inadmissible, and, secondly, whether the terms of proviso 1 to Section 92 are not wide enough to make it admissible under that proviso. When a contract has been reduced to the form of a, document, section 91 excludes oral evidence of the terms of the document by requiring those terms to be proved by the document itself unless otherwise expressly provided in the Act, and section 92 excludes oral evidence for the purpose of contradicting, varying, adding to, or subtracting from such terms. Section 92 only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. The objection must therefore, be based on Section 91 which only excludes oral evidence as to the terms of, a written contract.

Clearly under that section a defendant sued, as in the present case, upon a written contract purporting to be signed by him could not be

precluded in disproof of such agreement from giving oral evidence that his signature was a forgery. In their Lordships' opinion oral evidence in disproof of the agreement (1) that as in Pym v. Campbell (1856) 6 E & B 370 the signed document was not to operate as an agreement until a specified condition was fulfilled, or (2) that as in the present case, the document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter stands exactly on the same footing as evidence that the defendant's signature was forged. In Pym v. Campbell (1856) 6 E & B 370 the defendants were sued upon a written contract to purchase an invention, and Lord Campbell had ruled at the trial that on the plea denying the agreement oral evidence was admissible that it had been agreed between the parties before they signed that there was to be no agreement until the invention was approved by A. In his judgment discharging the rule nisi for a new trial. Lord Campbell said:

It was proved in the most satisfactory manner that before the paper was signed, it was explained to the plaintiff that the defendants did no intend the paper to be an agreement till A had been consulted and found to approve of the invention; and that the paper was signed before he was seen only because it was not convenient for the defendants to remain. The plaintiff assented to this, and received the writing on those terms. That being proved, there was no agreement".

20. Section 91 of the Evidence Act mandates that

evidence of terms of contract, grants and other depositions

of property reduced to the form of documents needs to be

proved only by such document. In the instant case,

plaintiff seeking specific performance of the agreement of

sale dated 15/05/2015 which is a registered document has

produced the same at Ex.P1. Execution and registration of

said document have not been challenged or disputed.

Even the contents of the said documents have not been

disputed. As rightly observed by the first appellate court

all that the defendants are contending is that the

transaction was only for a meager amount of

Rs.6,50,000/- which was less than Rs.1,00,000/- per acre.

21. Section 92 of the Evidence Act bars any oral

evidence when the terms of any such contract, grant or

other disposition of property or any matter require by law

to be reduced to the form of document, have been proved

according to Section 91. Thus, it excludes any oral

evidence or statement to be admitted as between the

parties or any such instrument or their representative in

interest for the purpose of contradicting, varying, adding

to, or subtracting from its terms. Permissibility of oral

evidence despite such exclusion is provided under proviso

1 to 6 of Section 92 of the Evidence Act.

22. The principles enunciated by the privy counsel

in Tyagaraj Modaliyar and others (supra) and followed

in subsequent judgments permitting adducing oral

evidence is confined to the proviso to Section 92. There

cannot be any dispute with regard to permissibility of

leading oral evidence to the extent provided under provisio

to Section 92.

23. The trial court despite production of registered

document at Ex.P1 regarding agreement of sale of suit

property, payment of consideration and also delivery of

possession of the property in part performance thereof as

required under Section 91 of the Evidence Act and

examination of witnesses by the plaintiff, has declined to

accept the same casting the burden of proving the

contents of the said document on the plaintiff. This

approach of the trial court as rightly noted by the first

appellate court is inappropriate. Further, though the

defendants sought to dispute the nature of agreement

claiming the same to be a sham document executed by the

deceased Shankaragouda Patil as a security against the

loan borrowed by him from the plaintiff, except oral

testimony of the witnesses, no evidence has been led in in

this regard. No legally acceptable material evidence has

been placed on record with regard to the alcoholic

addiction of deceased Shankaragouda Patil vitiating the

execution of agreement at Ex.P1 in any manner

whatsoever.

24. The first appellate court having appreciated the

context in which the trial court has taken the said

evidence, found it to be inappropriate and unwarranted in

the light of admitted facts and circumstances of the matter

and under the applicable provisions of law. The first

appellate court has taken into consideration of the

relevancy of issue No.IV framed by the trial court with

regard to Shankaragouda Patil being addicted to bad vices

and taking hand loans by signing of bond papers. It has

also taken into consideration the claim of the defendants

having preferential right to purchase the suit property

which in any case negated by the trial court. On a holistic

reading of the pleading and material evidence adduced by

the parties, the first appellate court has arrived at the

conclusion regarding the relevancy of said facts and claims

of the defendants contrary to the case of plaintiff and has

thereby, decreed the suit setting aside the Judgment and

Decree of the trial court.

25. In that view of the matter, reasons assigned by

the first appellate court cannot be found fault with. For

the aforesaid reasons and analysis, no substantial question

of law involves in this appeal requiring reconsideration.

Hence, the following:

ORDER

i) Regular Second Appeal No.200226/2020

is dismissed.

ii) The judgment and decree dated

29/09/2020 passed in RA.No.19/2019 by

the first appellate court is confirmed.

    iii)   In view of disposal of main appeal,

           I.A.1/2021      does    not    survive     for

           consideration and same is dismissed.




                                          Sd/-
                                         JUDGE


Srt/MKM