Sri K Gopala Karanth S/O. Late K ... vs Smt Susheela Shettigarthi
2022 Latest Caselaw 2660 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                         BEFORE

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

                R.S.A.No.196/2009(SP)
                          C/W
                R.S.A.No.195/2009(INJ)

In R.S.A.No.196/2009

BETWEEN:

SRI.K.GOPALA KARANTH,
S/O LATE K.NARAYAN KARANTH,
AGED ABOUT 70 YEARS,
RESIDING AT THENKAYEDAPADAVU,
MANGALORE TALUK, D.K.-573 001.
                                      ... APPELLANT

(BY SRI.K.SANATH KUMAR SHETTY, ADV.)

AND:

1.     SMT. DEVAKI SHETTIGARTHI,
       W/O LINGAPPA SHETTIGARA,
       AGED ABOUT 67 YEARS,
       R/AT ABHAYA ASHRAYA,
       ASSAIGOLI, KONAJE,
       MANGALORE TALUK, D.K.
       SINCE DECEASED,
       R-2 IS SOLE LRs., OF DECEASED R-1.

2.     SMT. SUSHEELA SHETTIGARTHI,
       D/O SMT.DEVAKI SHETTIGARTHI,
       AGED ABOUT 35 YEARS,
       RESIDING C/o VERONICA PINTO,
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       MANGALA JYOTHI,
       NEAR:VAMANJOOR CHURCH,
       MANGALORE.D.K.               ... RESPONDENTS

(BY SRI. J.D.KASHINATH, ADV., FOR R-2;
 R-2 IS TREATED AS LRs., FOR DECEASED R-1)


     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 24.11.2008
PASSED IN R.A.No.197/2002 ON THE FILE FO THE I
ADDITIONAL CIVIL JUDGE, (SR. DN) AND CJM., MANGALORE
ALLOWING THE JUDGMENT AND DECREE DATED 12.07.2000,
PASSED IN O.S.No.377/1995, ON THE FILE OF THE III
ADDITIONAL CIVIL JUDGE (JR.DN), MANGALORE, D.K.

In R.S.A.No.195/2009

BETWEEN:

SRI. K.GOPALA KARANTH,
S/O LATE K.NARAYAN KARANTH,
AGED ABOUT 70 YEARS,
RESIDING AT THENKAYEDAPADAVU,
MANGALORE TALUK, D.K.                   ... APPELLANT

(BY SRI.K.SANATH KUMAR SHETTY, ADV.)

AND:

SMT. SUSHEELA SHETTIGARTHI,
D/O SMT. DEVAKI SHETTIGARTHI,
AGED ABOUT 35 YEARS,
RESIDING C/O VERONICA PINTO,
MANGALA JYOTHI,
NEAR:VAMANJOOR CHURCH,
MANGALORE, D.K. - 575 001.             ... RESPONDENT

(BY SRI.J.D.KASHIMATH, ADV.)
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     THIS APPEAL IS FILED UNDER SECTION 100 READ
WITH ORDER 42 RULE 1 OF CPC., AGAINST THE JUDGMENT
AND     DECREE     DATED:24.11.2008,     PASSED     IN
R.A.No.195/2002 ON THE FILE OF THE FIRST ADDITIONAL
CIVIL JUDGE, (SR.DN) AND CJM, MANGALORE, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED:12.07.2000, PASSED IN O.S.No.161/1995
ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE,(JR.DN).,
MANGALORE, D.K.

     THESE APPEALS COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

1. Both these appeals are by Gopala Karanth, the plaintiff

in OS.No.377/1995 and defendant in OS.No.161/1995, who

succeeded before the Trial Court and obtained a decree of

specific performance, but was unsuccessful before the

Appellate Court which reversed the decree for specific

performance.

2. The case of the plaintiff was that he had agreed to

purchase the land bearing Sy.No.114/2 measuring 11 cents

from the defendants - Devaki Shettigarthi - defendant No.1

and Smt.Susheela Shettigarthi - defendant No.2 (daughter of

Devaki Shettigarthi) who were the owners of the property.

It was his case that an Agreement of Sale was also executed

on 24.10.1994, under which a total sale consideration of

`35,000/- was agreed upon and a sum of `10,000/- was

actually paid by way of cash on the date of execution of the

Agreement of Sale and the balance amount of `25,000/- was

agreed to be paid at the time of registration of the Deed. It

was stated that as per the term of the Agreement of Sale, the

Sale Deed was required to be executed on or before

31.03.1995.

3. It was also stated that since the entire sale transaction

took place only due to the mediation of the 2nd defendant, the

plaintiff had requested the 1st defendant to include her name

and also to make a party to the Agreement though she had

no right over the suit property. It was stated that since the

2nd defendant was not available for signing the Agreement on

24.10.1994, the 1st defendant had herself taken the initiative

to get the signature of the 2nd defendant on the agreement

with an assurance that she would also share the advance

amount that she had received from the plaintiff.

4. It was stated that after some time, the 1st defendant

had returned the Agreement of Sale to the plaintiff without

obtaining the signature of the 2nd defendant on the

Agreement with an assurance that signature of the 2nd

defendant was not required and she would execute the Sale

Deed as per the terms of the Agreement. It was stated that

actual delivery of suit property was also given in favour of the

plaintiff as on the date of Agreement itself.

5. It was stated that after taking possession of the small

dilapidated house situated in the suit property from the 1 st

defendant, he had spent huge amount for repairs and

renovation of the house and had in fact changed the roof,

replaced the tiles, plastered the walls with cement,

constructed a partition wall for the room and had to paint the

entire house. It was also stated that he took electricity

connection by spending `20,000/- and the same had been

done in furtherance of the Agreement of Sale.

6. It was stated that though the plaintiff was ready and

willing to perform his part of the contract by sending

messages to the 1 st defendant and requesting her to receive

the balance sale consideration and had also sent a letter

dated 17.03.1995 in that regard, the 1st defendant was

evasive in the matter of executing the Sale Deed. It was

stated that ultimately the plaintiff had sent a legal notice on

29.03.1995 calling upon the 1st defendant to execute the Sale

Deed and this notice had been refused.

7. It was also stated that the plaintiff had learnt that the

1st defendant had alienated the suit property on 03.12.1994

in favour of her daughter, the 2nd defendant only in order to

defraud the plaintiff. It was stated that the 1st defendant had

no right to transfer the property in favour of her daughter

when there was a subsisting agreement to transfer the same

in his favour.

8. The suit was resisted by the 1st defendant by denying

entire averments of the plaint. The 1st defendant went on to

state that the suit for specific performance had been filed

only as a counter blast to the suit that had been filed by her

daughter - Susheela Shettigarthi in OS.No.161/1995, in

which, she had sought for an injunction. She alleged that this

theory of Agreement of Sale was created only after her

daughter had filed OS.No.161/1995. She also alleged that the

said suit had been filed by her daughter in order to prevent

the plaintiff from taking unlawful possession of the suit

property by employing goondas. Ultimately, she stated that

she was an illiterate and was a member of Mijaru Primary

Weavers Service Co-operative Society, of which, the plaintiff

was the Managing Director and he had misused his position

as such and fabricated the documents. She stated that the

Agreement of Sale was a concocted document and was hence

void.

9. It may be pertinent to state here that the suit

(OS.No.377/1995) for specific performance was filed on

15.07.1995. About 3 months earlier, on 22.03.1995, the 1 st

defendant's daughter had filed suit OS.No.161/1995 for

injunction. In the said suit, the 1 st defendant's daughter i.e.,

Susheela Shettigarthi stated that the suit property belonged

to her mother and she had in turn settled the property in her

favour under a registered Settlement Deed dated 03.12.1994

and she had thus become the owner of the schedule property.

She stated that the defendant i.e., Gopala Karanth, who was

her mother's erstwhile vendor of the suit property was

attempting to trespass into the property and therefore, she

was constrained to file the suit for injunction.

10. This suit was resisted by Gopala Karanth (plaintiff in

OS.No.377/1995 which had been filed for specific

performance) by contending that the plaintiff's mother had

approached him to purchase the property in the month of

October for meeting of financial needs and had also entered

into an Agreement of Sale. He went on to state the very same

averments that he had made in the suit which he had filed for

specific performance.

11. The Trial Court clubbed both the suits together and

after consideration of evidence adduced before it, came to the

conclusion that the plaintiff/Gopala Karanth had proved that

the 1st defendant had agreed to sell the suit property for a

sum of `35,000/- and had executed an Agreement of Sale

dated 24.10.1994 after receiving a sum of `10,000/- as

advance sale consideration. The Trial Court also came to the

conclusion that the plaintiff had failed to prove that he had

spent `20,000/- for repairs and renovation of the house and

that he was therefore entitled to a decree of specific

performance.

12. As far as the plea that the plaintiff was entitled for a

sum of `20,000/- as damages and refund of advance amount

of `10,000/- with interest at 20% p.a., which was an

alternative plea, the Trial Court held that he was not entitled

for the same.

13. As far as the suit for injunction filed by Susheela

Shettigarthi was concerned, after the written statement was

filed, the plaintiff filed an application to amend the plaint and

sought for possession on the ground that she had been

dispossessed from the property in the month of October,

1996. The Trial Court, in view of the decree that it had

granted for specific performance, came to the conclusion that

the plaintiff therein was not entitled for possession and it

accordingly decreed the suit of Gopala Karanth and dismissed

the suit of Susheela Shettigarthi.

14. Being aggrieved, Susheela Shettigarthi and her mother,

Devaki Shettigarthi preferred two regular appeals.

15. The Appellate Court, on re-appreciation of entire

evidence, came to the conclusion that it had been proved that

the Agreement of Sale dated 24.10.1994 was materially

altered and the Trial Court had failed to exercise its discretion

provided under Section 20 of the Specific Relief Act. The

Appellate Court accordingly set aside the judgment passed by

the Trial Court and dismissed the suit for specific performance

filed by Gopala Karanth in part and directed Devaki

Shettigarthi to refund a sum of `10,000/- with interest at 12%

p.a. from 24.10.1994. Further, the Appellate Court also

granted damages of `20,000/- to Gopala Karanth.

16. By the very same judgment, the purchaser - Gopala

Karanth was directed to re-deliver vacant possession of the

suit property to Susheela Shettigarthi.

17. It is against these divergent judgments, the present

second appeals have been preferred by Gopala Karanth.

18. While admitting these appeals, the following substantial

question of was framed by this Court:

"Is as to whether the lower appellate court was justified in reversing the finding of the trial court as regards the agreement for specific performance of sale, on the basis that there was an interpolation in the agreement without the consent of the

respondent, though there was neither pleading nor evidence in respect of such a proposition?

19. I have heard the learned counsel and perused the

entire material on record.

20. The plea of Gopala Karanth was that Devaki

Shettigarthi had pressurized him to purchase the suit

property and he accordingly agreed to purchase the property

for a sum of `35,000/-. It was also his case that the entire

transaction took place due to the intervention of Devaki

Shettigarthi's daughter i.e., Susheela Shettigarthi and as a

matter of fact, Devaki Shettigarthi had by herself requested

and insisted upon him to include the name of Susheela

Shettigarthi in the Agreement of Sale though she had no right

over the same. It is, therefore clear that the entire sale

transaction, even according to Gopala Karanth, was due to

the insistence and intervention of the 2nd defendant.

21. The argument of the learned counsel appearing for the

appellant that the suit for specific performance was required

to be decreed since the executant i.e., Devaki Shettigarthi

was not examined and the plaintiff was not given an

opportunity to cross-examine her to establish the execution

of the agreement cannot be accepted since even according to

Gopala Karanth, Devaki Shettigarthi's daughter Susheela

Shettigarthi was actively involved in the entire sale

transaction. If according to Gopala Karanth, Susheela

Shettigarthi was involved in the entire sale transaction,

merely because her mother was not examined that cannot be

a ground to grant Gopala Karanth, a decree on the

presumption that execution stood impliedly admitted.

22. In this regard, it has to be kept in mind that the

daughter in whose favour the property had been settled

deposed on behalf of herself and her mother. If, even

according to Gopal Karanth, the sale transaction took place

due to the insistence of Susheela Shettigarthi, it is quite

obvious that she would be in the know of the entire

transaction and was thus competent to depose.

23. It may be pertinent to state here that it was the specific

case of Devaki Shettigarthi that Gopala Karanth had misused

his position and had fabricated the documents. She had

specifically stated that the Agreement of Sale had been

concocted. It was, therefore, clear that the entire burden of

proving the due execution of the Agreement of Sale was on

Gopala Karanth.

24. The Appellate Court, on re-appreciation of evidence,

has recorded a clear finding of fact that there has been a

material alteration in the Agreement of Sale and that material

alteration was not properly explained at all. It has been

observed by the Appellate Court that the signatures of both

the vendors as stated in the Agreement had not been found

and in order to overcome this lacuna, Gopala Karanth had

sought to give an explanation and P.W.2 had also admitted

that there was insertion of clause in the agreement of sale in

his presence. The Appellate Court found that this material

alteration related to the insertion of clause regarding delivery

of possession and this insertion was a complete deviation

from the plea.

25. In fact, the Appellate Court found that there was no

acceptable evidence regarding delivery of possession as to

whether it was the at the time of oral agreement or at the

time of written agreement. In short, the Appellate Court has

found that the execution of the Agreement of Sale had been

rendered doubtful in the light of material alteration. The

Appellate Court has basically rendered a finding of fact

regarding execution of Agreement of Sale.

26. I have also perused the original Agreement of Sale that

is sought to be relied upon by Gopala Karanth. The

Agreement of Sale contains two pages. The first page is on a

stamp paper and the second page is on a plain piece of

paper. Both the ink as well as handwriting in these two pages

differ substantially. The endorsement regarding handing over

of possession is found in the second page. In the first page, if

the entire document is read, there appears to be no

inclination regarding handing over of possession. In fact, if

the first page is read independently, it gives a distinct

impression that if the Agreement of Sale was not concluded

before 31.03.1995, Devaki Shettigarthi was obligated to pay

twice the sum as penalty. However, the second page deviates

from the entire context and an insertion appears to be made

after the schedule stating that possession of suit property

was delivered. The manner in which the said statement has

been inserted and the glaring difference in ink leaves no room

of doubt that the Agreement of Sale cannot be believed. I

am, therefore, of the view that the Appellate Court was

justified in recording a finding that the Agreement of Sale

could not be accepted.

27. The argument of the learned counsel for the appellant

that there was neither a pleading nor evidence regarding

interpolation or material alteration and therefore, this

argument cannot be available to Devaki Shettigarthi and her

daughter Susheela Shettigarthi, cannot be accepted. Devaki

Shettigarthi had categorically stated that Gopala Karanth had

misused his position as Managing Director and had fabricated

the documents. She also went on to specifically allege that

the Agreement of Sale was a concocted one and was hence

void. This plea, to my mind, is a comprehensive plea of

complete denial of the execution of the Agreement of Sale. If

the contention of Devaki Shettigarthi was that the Agreement

of Sale itself was concocted, the question of raising a plea of

material alteration would be absurd and would really be of no

consequence.

28. It is to be stated that the plea of interpolation would

probably be necessary if Gopala Karanth had pleaded in his

plaint that subsequent clause regarding handing over of

possession had been inserted after the main Agreement of

Sale had been drafted. In the absence of such a plea, the

requirement of Devaki Shettigarthi raising a plea of

interpolation or material alteration would not arise at all.

Therefore, the substantial question of law is answered in

favour of the respondents herein i.e., Devaki Shettigarthi and

her daughter Susheela Shettigarthi in RSA.196/2009 and the

appeal is accordingly dismissed.

29. As a consequence, RSA.195/2009 filed by Gopala

Karanth challenging the direction to deliver possession is also

dismissed.

Sd/-

JUDGE

PKS