Sri. Chinnappaiah vs Sri. Jayaramareddy S
2022 Latest Caselaw 2326 Kant

                            1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 14TH DAY OF FEBRUARY, 2022

                       BEFORE

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

     REGULAR SECOND APPEAL No.1284 OF 2018 (SP)

BETWEEN:

SRI.CHINNAPPAIAH
S/O LATE NARASIMHAPPA
AGED ABOUT 60 YEARS
R/AT HANUMENAHALLI VILLAGE
NAGARAGERE HOBLI
GOWRIBIDANURU TALUK - 562101
                                       ... APPELLANT
(BY SRI.YESHU MISHRA, ADVOCATE)

AND:

1.     SRI.JAYARAMAREDDY S
       S/O LATE SANJEEVAREDDY
       AGED ABOUT 49 YEARS

2.     SMT.C.SAVITHRAMMA
       W/O S. JAYARAMAREDDY
       AGED ABOUT 44 YEARS

       BOTH ARE RESIDING AT
       HAMUMENAHALLI VILLAGE
       NAGARAGERE HOBLI
       GOWRIBIDANURU TALUK - 562101

3.     SRI.CHIKKA PAPANNA
       S/O CHINNAPPA
                             2
     AGED ABOUT 74 YEARS
     R/AT HAMUMENAHALLI VILLAGE
     NAGARAGERE HOBLI
     GOWRIBIDANURU TALUK - 562 101

                                         ... RESPONDENTS

     THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC., AGAINST THE JUDGEMENT & DECREE DTD
09.04.2018 PASSED IN R.A.NO.81/2016 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHICKBALLAPUR,    DISMISSING   THE   APPEAL   AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
29.02.2016 PASSED IN O.S.NO.26/2013 ON THE FILE OF
THE CIVIL JUDGE AND JMFC, GUDIBANDA.

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

                       JUDGMENT

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

in both the Courts to establish that he was entitled to a

decree of specific performance.

2. It was the case of the plaintiff that an agreement of

sale had been executed in his favour, whereby, defendant

No.1 had agreed to sell the suit property for a total sale

consideration of Rs.50,000/- and he had, in fact, paid the

entire sale consideration of Rs.50,000/- on the very same

day. It was stated that the possession of the property was

also delivered to the plaintiff and he had, in fact,

constructed a house and had erected a compound wall by

putting stone slabs and was in possession.

3. It was stated that defendant No.1 had undertaken to

execute the registered sale deed after the Karnataka

Prevention of Fragmentation and Consolidation of Holdings

Act, 1966 was repealed and though the plaintiff had

requested and demanded defendant No.1 on several

occasions to execute the sale deed, defendant No.1 had

not come forward.

4. It was stated that the plaintiff had learnt that Khatha

of the suit property had been transferred in the name of

wife of defendant No.1 i.e., defendant No.1 and hence, he

had issued a legal notice dated 12.12.2012 calling upon

the defendants to execute the sale deed. He stated that

the defendants, on the other hand, had given a reply, but

they failed to execute the sale deed and he was, therefore,

constrained to approach the Court.

5. The defendants entered appearance and resisted the

suit. The defendants contended that the suit property was

their ancestral property and defendant No.1 had executed

a registered gift deed on 08.05.2012 in favour of his wife

and the records were mutated in her name. They stated

that they were in actual possession and enjoyment of the

suit property and that the plaintiff had created and

concocted the agreement of sale. It was stated that

defendant No.1 had executed an agreement of sale in

favour of the plaintiff agreeing to sell the suit property and

the plaintiff was a stranger to them. It was also contended

that the suit property was not valued and the stamp duty

on the market value of the property was not affixed.

6. It was alleged that the market value of the suit

property is Rs.2.00 lakhs and if that be so, the plaintiff

ought to have paid the full stamp duty. A plea was also

raised that the suit was barred by limitation.

7. During the pendency of the suit, defendant No.3 got

himself impleaded, contending that he had a right in the

property and defendant No.1 had no right to execute the

sale agreement in favour of the plaintiff.

8. The Trial Court on consideration of the evidence

adduced, recorded a finding that plaintiff had not proved

that the defendant No.1 had executed the agreement of

sale on 29.08.2008 in respect of the suit property for a

total consideration of Rs.50,000/- and had paid the entire

consideration of Rs.50,000/- to defendant No.1.

9. The Trial Court also held that the plaintiff did not

establish that he was ready and willing to perform his part

of the contract. It was also held that defendant No.1 had

proved that the suit property was not valued properly and

the Court fee paid was insufficient. The Trial Court

accordingly, dismissed the suit.

10. Being aggrieved, the plaintiff preferred an appeal.

11. The Appellate Court on re-appreciation of the

evidence concurred with the finding recorded by the Trial

Court and came to the conclusion that the judgment

passed by the Trial Court was neither arbitrary nor

erroneous. It accordingly proceeded to confirm the finding

of the Trial Court and dismissed the appeal preferred by

the plaintiff.

12. It is against these concurring judgments, this second

appeal has been preferred.

13. Learned counsel for the appellant contended that

notwithstanding the denial of execution of agreement of

sale, the plaintiff, during his cross examination, had

admitted the signature found on the agreement of sale to

be his signature. He submitted that defendant No.1 had

also admitted that he had received a sum of Rs.50,000/-

and these two factors conclusively proved that the

agreement of sale had been duly executed.

14. It was also submitted that the burden of proof

though was initially on the plaintiff to establish that

defendant No.1 had executed an agreement of sale, on

examination of the witnesses to the agreement of sale, the

onus had shifted on defendant No.1. He submitted that

defendant No.1 did not get the document referred for

forensic examination and therefore, it was clear that the

signature of defendant No.1 on the agreement of sale, had

stood established.

15. He also submitted that both the Courts have not

exercised their power under Section 73 of the Indian

Evidence Act and compared the signature to come to the

conclusion that the agreement of sale was not executed

and therefore, the judgments are unsustainable.

16. I have heard learned counsel for the appellant and

perused the material on record.

17. It is the specific case of the plaintiff that he had

entered into an agreement of sale on 29.08.2008, agreeing

to purchase the property bearing Sy.No.4/1B measuring

3 guntas for a total sale consideration of Rs.50,000/-. It is

his specific case that he had paid the entire sale

consideration of Rs.50,000/- and also put in possession of

the said property.

18. The agreement of sale which was relied upon by the

plaintiff has been found to be materially altered by the

Trial Court. That apart, the agreement of sale contains the

following recital:

"¸Àzj À à d«ÄãÀ£ÀÄß ¸ÀPÁðjà PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ £ÉÆÃAzÁªÀuÉ DUÀzÃÉ EgÀĪÀÅzÀjAzÀ, F jÃwAiÀiÁV PÀæAiÀÄ ¥ÀvÀ檣 À ÀÄß §gÉzÀÄPÉÆnÖgÀÄvÉÛãÉ. ªÀÄÄAzÉãÁzÀgÀÆ ¸ÀPÁðgÀzª À g À ÀÄ vÀÄAqÀÄ ¨sÀÆ«Ä PÁ¬ÄzÉ ¸Àr®¥Àr¹zÀ £ÀAvÀgÀ £ÉÆÃAzÁªÀuÉUÉ CªÀPÁ±À §AzÀ°,è PÀæAiÀÄzÀ ¸ÀéwÛ£À ¸ÀjAiÀiÁzÀ zÁR¯ÉU¼ À ÉÆA¢UÉ, ¤ªÀÄUÉ ¸Àéw£ Û À £ÉÆÃAzÁªÀuÉ ªÀiÁrPÉÆqÀÄvÉÃÛ £É."

19. It is therefore, clear that according to the plaintiff,

the reason for non execution of the deed of conveyance

despite the entire sale consideration being paid was that

there was a bar for registration of the sale deed in respect

of fragments of land.

20. It cannot be in dispute that way back in the year

1991, the Karnataka Prevention of Fragmentation and

Consolidation of Holdings Act, 1966 was repealed. It is

therefore clear that the reasons set-forth in the agreement

of sale for non registration of the sale deed was a reason

which was non existent.

21. It is to be noticed here that if the entire sale

consideration of Rs.50,000/- was paid and possession was

delivered, the reason for a sale deed not being executed

immediately would have to be necessarily explained by the

plaintiff.

22. Though in the agreement of sale, there was a recital

that there was a ban on registration, in the legal notice

issued by the plaintiff, there was absolutely no averment

regarding the ban being lifted or an assertion that the sale

deed could not have been registered due to the ban. In

fact, the averment in the legal notice is to the effect that

the plaintiff had requested and demanded, defendant No.1

on several occasions, to execute the registered sale deed

and yet, the sale deed was not executed and registered.

23. In fact, in the legal notice, an altogether new ground

was sought to be raised that certain documents were to be

ascertained regarding the suit property. This conduct of

the plaintiff creates a suspicion as to whether an

agreement of sale was in fact executed and the entire sale

consideration was paid since the recitals and the assertions

of the plaintiff bear no relationship with one another.

24. This suspicion becomes further amplified by the fact

that the plaintiff waited for five years to approach the

Court suing for specific performance. It is completely

unnatural for a purchaser to have paid the entire sale

consideration to wait for five years to seek for execution of

a sale deed.

25. Both, the Trial Court, as well as the Appellate Court

have noticed these contentions and have concluded that

this was not a fit case for granting a decree of specific

performance.

26. Since both the Court have recorded a clear finding of

fact that the execution of an agreement of sale deed was

not established, the scope of interference in the second

appeal under Section 100 of CPC., being limited, the

question of execution cannot be examined afresh.

27. Learned counsel for the appellant, however,

contended that there is an admission regarding the

signature on the agreement of sale and therefore, this

admission would render both the judgments unsustainable.

The deposition of defendant No.1 in the cross examination

reads as under:

"°TvÀ ºÉýPÉAiÀÄ°ègÀĪÀ ¸À»AiÀÄÄ £À£ÀßzÁÝVgÀĪÀÅ¢®è DzÀgÉ ºÉAqÀwAiÀÄ ¸À»AiÀÄÄ °TvÀ ºÉýPÉAiÀÄ°è EzÉ. °TvÀ ºÉýzÉAiÀÄ°ègÀĪÀ 1 jAzÀ 4£Éà ¥ÀÄlzÀ°g è ÀĪÀ ¸À»AiÀÄÄ £À£ÀßzÁVgÀÄvÀz Û É DzÀgÉ 5 ªÀÄvÀÄÛ 6£Éà ¥ÀÄlzÀ°ègÀĪÀ ¸À»AiÀÄÄ £À£ÀßzÁÝVgÀĪÀÅ¢®è. ¥Àj²Ã®£Á ¥ÀæªÀiÁt¥ÀvÀæz° À g è ÀĪÀ ¸À»AiÀÄÄ £À£ÀßzÁÝVgÀÄvÀz Û .É ªÀPÁ®vï£À°ègÀĪÀ ¸À»AiÀÄÄ £À£ÀßzÁÝVgÀĪÀÅ¢®è. ªÀPÁ®vï£À°ègÀĪÀ E£ÉÆßAzÀÄ ¸À»AiÀÄÄ £À£Àß ºÉAqÀwAiÀÄ ¸À»AiÀiÁVgÀÄvÀÛz.É ¤¦ 1 gÀ°è ¤¦ 1¹ ¸À»AiÀÄÄ £À£ÀßzÁÝVgÀÄvÀÛz.É ¤¦ 1J £À£Àß ¸À»AiÀiÁVgÀĪÀÅ¢®è.

      ¤¦     1©      £À£Àß   ¸À»AiÀiÁVgÀÄvÀz
                                           Û .É      ¤¦   1r     £À£Àß
      ¸À»AiÀiÁVgÀĪÀÅ¢®è."

28. A perusal of the deposition would indicate that

defendant No.1 was essentially denying his signature

including the one that was found on the vakalath. In my

view, the reliance upon this admission to come to the

conclusion that the execution of agreement of sale was

proved and had stood established would not be safe and

proper.

29. The Trial Court, as well as the Appellate Court have

recorded a finding that the execution of the sale

agreement had not been established by taking into

consideration all the attending circumstances. I find no

reason to disagree with the findings of both the Courts

below.

30. As far as the assertion of the learned counsel that

the agreement of sale was not specifically denied and the

onus was on the defendant to seek for reference of the

signature for the forensic expert is concerned, in my view,

this assertion is ill founded.

31. The entire burden of proof regarding execution of the

agreement of sale was upon the plaintiff alone in the light

of the specific and categorical pleading that the agreement

of sale was created and concocted and the defendant had

not executed an agreement of sale. The mere production

of witnesses to establish the execution of the agreement of

sale cannot be a conclusive fact.

32. In the light of the specific contention regarding

execution of the agreement of sale, it was incumbent upon

the plaintiff to have sought for reference and this burden

of proof cannot be shifted to the defendants merely

because the witnesses had been examined on behalf of the

plaintiff.

33. It is to be kept in mind that the execution of an

agreement of sale would be the primary consideration for

the plaintiff to claim a decree of specific performance. If

this foundational fact is not proved, the entire claim of the

plaintiff will come to a naught.

34. In the present case, the plaintiff claims that an

agreement of sale was executed, under which, the entire

sale consideration was paid and the consideration of

Rs.50,000/- is sought to be paid in one lump sum. There is

no evidence on record as to how many deliberations took

place before this sum of Rs.50,000/- was agreed upon.

The Courts below have found that the name of the

plaintiff's son has been entered in the agreement of sale

after a whitener had been used to delete the name printed

earlier.

35. Considered in totality, the circumstances of the case

create a serious doubt regarding the execution of an

agreement of sale. The plaintiff in such a situation was

required to establish that defendant No.1 had executed the

agreement of sale beyond all reasonable doubt. The fact

that the plaintiff waited for five years before making a

demand for conveyance of the property by way of a

registered instrument a doubt on the entire transaction.

36. Reliance placed upon by the learned counsel

regarding burden of proof, in the case of M/s.Gian Chand

and Brothers and Anr. Vs. Rattan Lal alias Rattan

Singh reported in AIR 2013 SC 1078 can be of no avail,

since in that case there was no specific denial of the

signature and denial of the averments in the written

statement. In the instant case, there is a specific plea

regarding the very execution of an agreement of sale of

the defendants and therefore, the burden of proof was

entirely on the plaintiff and the onus would not shift on the

defendants.

37. For the reasons stated above, I find no substantial

question of law arising for consideration in this appeal and

accordingly, the appeal is dismissed.

Sd/-

JUDGE

NBM/GH