V G Siddgangappa vs Late Chikkanna Since Dead By His ...
2022 Latest Caselaw 1952 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

             R.S.A. No.1113 OF 2021 (SP)

BETWEEN:

       V.G.SIDDGANGAPPA,
       SINCE DEAD BY HIS LR's

1.     SMT. MUNIRATNAMMA,
       W/O LATE V.G.SIDDAGANGAPPA,
       AGED ABOUT 60 YEARS,

2.     SMT. GEETHA,
       D/O LATE V.G.SIDDAGANGAPPA,
       AGED ABOUT 43 YEARS,

3.     SMT. GANASUDHA,
       D/O LATE V.G.SIDDAGANGAPPA,
       AGED ABOUT 41 YEARS,

     ALL ARE RESIDENTS OF
     VEERAPURA VILLAGE,
     KASABA HOBLI,
     DODDABALLAPURA TALUK,
     BENGALURU RURAL DISTRICT - 562 103.
                                    ... APPELLANTS
(BY SRI. GAGAN.S. ADVOCATE FOR
     SRI.G.A.SRIKANTE GOWDA,ADVOCATE)

AND:

       LATE CHIKKANNA
       SINCE DEAD BY HIS LR's
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1.   SRI. SIDDARAJU,
     S/O LATE CHIKKANNA,
     AGED ABOUT 50 YEARS,

2.   SMT. KEMPAMMA,
     W/O KENCHAPPA,
     AGED ABOUT 48 YEARS,
     RESIDING AT ARALUALLIGE VILLAGE,
     KASABA HOBLI,
     DODDABALLAPURA TALUK,
     BANGALORE RURAL DISTRICT - 562 103.

3.   SMT. NAGAMMA,
     W/O LATE MUNIRAJU,
     AGED ABOUT 37 YEARS,

4.   SRI. PILLEGOWDA,
     S/O LATE CHIKKANNA,
     AGED ABOUT 36 YEARS,

5.   SRI. VISHWANATHA,
     S/O LATE CHIKKANNA,
     AGED ABOUT 42 YEARS,

     RESPONDENT Nos.1, 3 TO 5 ARE
     R/AT VEERAPURA VILLAGE,
     KASABA HOBLI,
     DODDABALLAPURA TALUK,
     BENGALURU RURAL DISTRICT - 562 103.
                                  ... RESPONDENTS

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.03.2021
PASSED IN R.A. No.10039/2019 (OLD No.33/2016) ON THE
FILE   OF   THE   IV   ADDITIONAL   DISTRICT    JUDGE,
DODDABALLAPURA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 22.10.2016
PASSED IN O.S.No.113/2013 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE, DODDABALLAPUR.
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     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

1. This is a second appeal by the plaintiff who has

failed to secure a decree of specific performance at the

hands of the Appellate Court, though the Trial Court had

granted him a decree.

2. It was the case of the plaintiff that he had agreed

to purchase the suit property under an agreement of sale

dated 13.02.2003 for an agreed sale consideration of

Rs.1,50,000/- and had paid an earnest amount of

Rs.50,000/- on the same day. It was stated that the

agreement of sale stipulated a period of three years for

conclusion of the sale transaction.

3. It was also alleged that though the defendant had

undertaken to get the necessary documents prepared

and be available for registration, despite several

requests and demands made by the plaintiff, the

defendant did not show any interest to execute a sale

deed.

4. It was stated that when the plaintiff approached

the defendant, he demanded a sum of Rs.30,000/- on

08.01.2006 and accordingly, the said sum was paid and

an endorsement was also obtained on the agreement of

sale. It was also alleged that on 30.12.2007, the

defendant had received a further Rs.40,000/- and had

also executed another endorsement to that effect in the

agreement of sale. It was also stated that the period for

concluding the sale transaction was extended by a

further period of three years.

5. It was ultimately stated that on 26.12.2010, the

defendant had received a sum of Rs.20,000/- and had

executed another endorsement on the agreement

agreeing to get the necessary documents and execute

the registered sale deed.

6. It was stated that, in all, a sum of Rs.1,40,000/-

was paid out of the total agreed sale consideration of

Rs.1,50,000/- and despite several requests, the

defendant had failed to execute the agreement of sale.

The plaintiff had stated that he had issued a legal notice

calling upon the defendant to execute a registered sale

deed but the defendant had issued an untenable reply

and therefore, he was constrained to file a suit.

7. The defendant entered appearance and contested

the suit by denying the execution of the agreement of

sale itself. He stated that the agreement of sale had

been created and he had not affixed his signatures either

to the agreement or to the endorsements found on the

agreement. He had stated that he had already issued a

reply to the legal notice denying all the assertions of the

plaintiff and the plaintiff was not entitled for a decree.

8. The Trial Court on consideration of the evidence

adduced before it, came to the conclusion that the

plaintiff had proved that the agreement of sale had been

executed on 13.02.2003 for an agreed sale consideration

of Rs.1,50,000/- and the plaintiff had proved that he was

ready and willing to perform his part of the contract. The

Trial Court also recorded a finding that the suit was not

barred by limitation and the plaintiff was entitled for the

relief of specific performance and also for possession.

The Trial Court, accordingly, decreed the suit.

9. The defendant, being aggrieved, preferred an

appeal. The Appellate Court on re-appreciation of the

entire evidence came to the conclusion that the

judgment and decree of the Trial Court could not be

sustained and was opposed to law, facts and

circumstances of the case.

10. In order to come to the said conclusion, the

Appellate Court noticed that, the plaintiff had stated that

an advocate called Sri.Kodandarama had prepared

Ex.P.1--the agreement of sale, but the counsel who is

said to have prepared the agreement has not affixed the

signature or seal and therefore, the entire assertion of

the plaintiff was doubtful.

11. It was also noticed that this version of the plaintiff

was contradicted by his own witness, PW-2, who stated

that the agreement of sale was prepared in the house of

the plaintiff but in the cross-examination, he had stated

that one Sri.Rangamuthaiah had prepared the

agreement of sale in the house of the plaintiff in writing.

The Appellate Court noticed that the agreement of sale

was a typed document, whereas the assertion of the

witness was that it was prepared by Sri.Rangamuthaiah

in writing.

12. It was also noticed that PW-3 was another attester

to the agreement of sale who had stated that

Sri.Rangamuthaiah prepared the agreement but it was

not written or prepared in his presence and he had

expressed ignorance as to who had given instructions to

the scribe to prepare the agreement.

13. The Appellate Court came to the conclusion that

the plaintiff and the two attesters to the agreement of

sale had contradictory statements in their depositions

regarding the execution of the agreement of sale and

therefore, the agreement of sale could not have been

held to be proved.

14. The Appellate Court also noticed that the claim of

the plaintiff was that a sum of Rs.1,40,000/- had been

paid out of the total consideration of Rs.1,50,000/- as on

2010 and yet, the suit had been filed only in the year

2013.

15. The Appellate Court also came to the conclusion

that the endorsements found on the agreement of sale

had not been proved in the manner known to law and

therefore, the judgment and decree of the Trial Court

could not be sustained. The Appellate Court, accordingly,

allowed the appeal and dismissed the suit.

16. It is against these divergent judgments, the

present second appeal has been preferred.

17. The learned counsel for the appellants contended

that the plaintiff by paying a sum of Rs.1,40,000/- over

a period of seven years had clearly proved that he was

always ready and willing to perform his part of the

contract and the Appellate Court without noticing these

aspects had erroneously dismissed the suit. It was also

contended that the execution of the sale deed had been

delayed since certain revenue documents had to be

secured and therefore, the judgment of the Appellate

Court could not be upheld.

18. It is not in dispute that the plaintiff claimed that an

extent of 6 guntas was sought to be purchased by him

vide agreement of sale dated 13.02.2003 and initially

three years was fixed for conclusion of the sale

transaction and out of the total sale consideration of a

sum of Rs.1,50,000/-, only a sum of Rs.50,000/- was

paid.

19. It is not in dispute that from 2003 till 2006, there

was no correspondence or evidence adduced to indicate

that the revenue documents were being procured or

were in the process of procuring.

20. Just before the end of three years, an endorsement

has been made to the effect that a sum of Rs.30,000/-

has been paid and the time limit was extended by

further period of two years. Thereafter, on 30.12.2007

and before the expiry of the said period of two years, a

further endorsement was made stating that the

defendant had received a sum of Rs.40,000/- and the

period fixed was being extended by another period of

three years.

21. Ultimately, on 26.12.2010, i.e., four days before

the expiry of three years, a final endorsement was made

stating that a sum of Rs.20,000/- was being received by

the defendant and the time limit was being extended by

a period of two years.

22. Thus, all the three endorsements had been made

just before the period stipulated in the earlier

endorsement coming to the end. None of the

endorsements contained the reasons as to why the time

was being extended and there was no recital that the

sale was withheld because of lack of any revenue

documents.

23. It is to be stated here that just before the expiry of

two years, on 26.12.2012, the plaintiff just filed the suit

for specific performance. It is therefore clear that the

agreement of sale was of the year 2003 and for nearly

ten years, the sale transaction was not concluded.

24. The Trial Court on re-appreciation of the evidence

has recoded a clear finding that the execution of the sale

agreement itself was doubtful in view of the

contradictions in the deposition of the plaintiff and the

attestator to the agreement of sale. The Appellate Court

on re-appreciation of the evidence has also found that

each of the endorsements made on the agreement of

sale have not been proved to the satisfaction of the

Court.

25. The Appellate Court, being a final fact finding

Court, has recorded a clear finding of fact that the

agreement of sale was not executed and the

endorsements made thereon were also not proved.

26. In my view, having regard to the finding of fact

recorded by the Appellate Court coupled with the fact

that the sale transaction was not concluded for over a

period of ten years leads to a clear inference that the

execution of the agreement of sale itself was doubtful as

held by the Appellate Court.

27. I find no substantial question of law arising for

consideration in this second appeal and the same is

accordingly dismissed.

Sd/-

JUDGE RK CT:SN