Karnataka High Court

Nawazahmed S/O Md. Yusuf Indikar ... vs Narayan S/O Ramachandra Jadhav ... on 9 June, 2022

Bench: Rajendra Badamikar

                         1



        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

     DATED THIS THE 09TH DAY OF JUNE 2022

                      BEFORE

 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

               RSA No.7461/2013 (SP)


BETWEEN:

1.   NAWAZAHMED S/O MD. YUSUF INDIKAR
     AGE: 47 YEARS, OCC. BUSINESS,
     R/O DARBAR GALLI, BIJAPUR-586101.

2.   MAQSOODAHMED S/O MD. YUSUF INDIKAR
     AGE: 53 7YEARS, OCC. SERVICE,
     R/O DARBAR GALLI, BIJAPUR-586101.

3.   ANEES AHMED S/O MD. YUSUF INDIKAR
     AGE: 49 YEARS, OCC. BUSINESS,
     R/O DARBAR GALLI, BIJAPUR-586101.

4.   SMT. ANJUM AFSA W/O AZAM ALIL CHANDARKI
     AGE: 50 YEARS, OCC. HOUSEHOLD WORK,
     R/O DARBAR GALLI, BIJAPUR-586101.

5.   SMT. MEHRUNNISA W/O MD. YUSUF INDIKAR
     AGE: 73 YEARS, OCC. HOUSEHOLD WORK,
     R/O DARBAR GALLI, BIJAPUR-586101.

                                           ...APPELLANTS
(BY SRI.J.AUGUSTIN, ADV. FOR A1 TO A4,
SRI. UMESH V MAMADAPUR, ADVOCATE FOR A5)
                             2



AND
1.    NARAYAN S/O RAMACHANDRA JADHAV
      AGE: 60 YEARS, OCC. PRIVATE SERVICE,
      R/O DARBAR GALLI, NEAR ANDU MASJID
      BAGALKOT CROSS, BIJAPUR-586101.

2.    NEELAKKA W/O NARAYAN JADHAV
      AEE: 53 YEARS, OCC. PRIVATE SERVICE,
      R/O DARBAR GALLI, NEAR ANDU MASJID
      BAGALKOT CROSS, BIJAPUR-586101.

3.    RAMACHANDRA S/O NARAYAN JADHAV
      AGE: 31 YEARS, OCC. NIL, R/O DARBAR GALLI,
      NEAR ANDU MASJID, BAGALKOT CROSS
      BIJAPUR-586101.

4.    LAXMAN S/O NARAYAN JADHAV
      AGE: 29 YEARS, OCC. PRIVATE SERIVCE,
      R/O DARBAR GALLI, NEAR ANDU MASJID,
       BAGALKOT CROSS, BIJAPUR-586101.

5.    KUMARI BHARATI D/O NARAYAN JADHAV
      AGE: 27 YEARS, OCC. STUDENT,
      R/O DARBAR GALLI, NEAR ANDU MASJID,
       BAGALKOT CROSS, BIJAPUR-586101.
                                        ....RESPONDENTS
(BY SRI. ARUN CHOUDAPURKAR, ADV. FOR R2 RO R5
 NOTICE TO R1 - SERVED)

   THIS RSA FILED U/S. 100 OF THE CPC, AGAINST THE
JUDGMENT AND DECREE DATED 28.08.2013 PASSED IN R.A.
NO. 17/2011 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE AT      BIJAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 21.01.2011
PASSED IN O.S. NO. 79/2002 ON THE FILE OF THE I ADDL.
CIVIL JUDGE (JR.DN.) AT BIJAPUR.

     THIS APPEAL IS LISTED FOR ADMISSION AND HAVING
BEEN HEARD AND RESERVED ON 06.06.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                                 3



                         JUDGMENT

This second appeal is filed under Section 100 of

CPC, challenging the judgment and decree passed by

the I Addl. Civil Judge (Jr.Dn), Bijapur in

O.S.No.79/2002, whereby the learned Civil Judge,

Bijapur, has dismissed the suit filed by the plaintiffs

for specific performance, which is confirmed by the

judgment and decree dated 28.08.2013 passed in

R.A.No.17/2011 by the III Addl. Senior Civil Judge,

Bijapur.

2. The brief facts leading to the case are that

the plaintiff has filed a suit for specific performance

against the defendants and other relief's were also

claimed. According to plaintiff, the suit property was

originally owned by Ramachandra and plaintiff is a

tenant over the suit property. The wife of

Ramachandra and mother of defendants has acquired

lawful title over the suit schedule property w.e.f.

20.01.1946. It is further claimed that she had

executed an agreement of sale dated 05.01.1991,

agreeing to sell the suit schedule property in favour of

the plaintiff for a sum of Rs.20,000/- and received

Rs.10,000/- as an earnest amount and balance is

required to be paid as on 15.01.1996. It is also the

case of plaintiff that he was in possession of the suit

schedule property under a lease deed dated

05.02.1943 and deceased Savubai expired on

09.09.1996 and defendants being the legal heirs failed

to execute the agreement of sale. He further asserts

that he is ever ready and willing to perform his part of

contract. Hence, he has filed a suit for specific

performance and alternatively sought for refund of

earnest amount with damages etc.

3. The defendants appeared and admitted the

description of the suit property and tenancy of the

plaintiff but they disputed the execution of an

agreement of sale by their mother in favour of plaintiff

and receipt of earnest amount.

4. The trial Court has framed the following

issues and additional issue on limitation as under;

(i) Whether the plaintiff proves that, execution of agreement of sale of suit property on 16.01.1991 part consideration by deceased Smt.Savubai?

(ii) Whether plaintiff proves that, ever he was ready and willing to perform his part of contract?

(iii) Do the defendants 2 to 5 prove that deceased Savubai executed a registered will in respect of suit property in their favour in the year 1988?

(iv) Whether plaintiff proves that in the alternative he is entitled for refund of earnest money of Rs.10,000/- with

interest @ 12% p.a. from the date of agreement?

(v) Whether plaintiff proves that he is entitled for the compensation of Rs.25,000/- with interest @ 12% p.a. from the date of agreement?

(vi) Do defendants 2 to 5 prove that they are entitled for Rs.5,000/- each as cost from the plaintiff?

(vii) Whether the plaintiff is entitled for the relief as prayed for?

(viii) What order or decree?

Addl. Issue:

(i) Whether the suit of plaintiff is barred by limitation?

5. After considering the oral and documentary

evidence, the trial Court answered issue Nos.1 to 6 in

the negative and also answered issue No.7 against the

plaintiff. While additional issue came to be answered

in the affirmative holding that the suit is barred by law

of limitation and ultimately dismissed the suit.

6. During the pendency of suit, the plaintiff

has expired and his legal heirs were brought on

record. They filed an appeal in R.A.No.17/2011 on

the file of the III Addl. Senior Civil Judge, Bijapur and

defendants filed cross objection challenging the

findings on issue Nos.3 and 6.

7. After appreciating the oral and

documentary evidence, the First Appellate Court has

dismissed the appeal as well as Cross objections.

8. Being aggrieved by this judgment of the

Courts below, this second appeal is filed by the

plaintiffs.

9. Learned counsel for the appellants would

contend that the judgment and decree is erroneous

and further contend that substantial question is

involved regarding proper framing of issues and

limitation.

10. The learned counsel for respondents would

support the judgment and decree passed by the

Courts below and sought for dismissal of appeal on

the ground that no substantial question of law is

involved against concurrent findings of the Courts

below.

11. Having heard the arguments, it is evident

from records that the plaintiff has filed a suit for

specific performance of contract. There is no serious

dispute of the fact that the plaintiff is the tenant.

However, according to the plaintiff himself, the

agreement is dated 16.01.1991 and time was

stipulated 5 years for execution of the sale deed but

the suit itself is filed in the year 2002. Apart from

that, it is also important to note here that the

executant i.e. Savubai mother of defendants died on

09.09.1996. When the agreement is dated

05.01.1991, during her lifetime, plaintiff has not taken

any steps to get agreement executed by issuing

notice.

12. On perusal of Ex.P4, which is an agreement

of sale, it is evident that on front page the signature

of the executant is not available. Even the LTM of the

executant Savubai is not attested by anybody.

Further PW.2, who claims to be an attesting witness

specifically admits that at the time of execution of

Ex.P4, no amount was paid to deceased Savubai.

Further admittedly, the property was owned by

Ramachandra being the husband of Savubai and

father of defendants. Under such circumstances,

Savubai alone would not become the owner of suit

property to execute an agreement of sale or sale

deed.

13. Apart from that the trial Court has clearly

observed that due execution of the agreement itself is

not proved. Further, the plaintiff did not enter into

witness box and his Power of Attorney Holder, who is

son of plaintiff is examined and the trial Court has

clearly observed that the Power of Attorney Holder

cannot depose in favour of plaintiff in respect of the

facts or acts within the specific knowledge of the

plaintiff. If at all the plaintiff is unable to examine

himself because of any ill-health or otherwise, he

could have been examined on commission and that

was also not done. The evidence of attesting witness

is inconsistent and LTM of executant is not identified.

The agreement was not enforced during the lifetime of

Savubai, though she survived for 5 years after the

execution of the alleged agreement.

14. Further, though the agreement is on

05.01.1991 and limitation was fixed till 15.01.1996 for

execution of the agreement, the suit is filed in the

year 2002. Hence, the trial Court after appreciating

the oral and documentary evidence has clearly held

that the suit is barred by law of limitation.

15. The First Appellate Court has appreciated

the factual aspects and agreed with the findings of the

trial Court. It has elaborately discussed the issues.

Though it is contended that substantial question is

regarding framing of proper issues, the judgment of

the trial Court disclose that proper issues have been

framed and they were elaborately dealt with. Hence,

absolutely no question of law is involved and the

appreciation of factual aspect also cannot be gone into

as both the Courts below have elaborately discussed

this aspect.

16. In this context, learned counsel for the

respondents has placed reliance on a decision of the

Hon'ble Supreme Court in the case of State Bank of

India and Others Vs. S.N.Goyal, reported in AIR

2008 SC 2594, wherein at paragraph No.9.3 the

Hon'ble Apex Court has expressed its concern

regarding admission of the second appeals ignoring

the actual substantial question of law and

mechanically framing of substantial question of law by

observing as under;

"9.3) It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are :

(a) Admitting a second appeal when it does not give rise to a substantial question of law.

(b) Admitting second appeals without formulating substantial question of law.

question such as "whether on the facts and circumstances the judgment of the first appellate court calls for interference" as the substantial question of law.

(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal.

(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law.

(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.

(g) Deciding second appeals by re-

appreciating evidence and interfering with findings of fact, ignoring the questions of law.

These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this court and remands by this court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure

that cases involving substantial questions of law are not rejected, as not involving substantial questions of law".

17. In the instant case, there is absolutely no

substantial question of law is involved and the learned

counsel for the appellants is unable to show what is

the substantial question of law involved. He simply

contends that the decree is not in conformity with the

judgment under Order 20 Rule 6 of CPC, which is a

legal infirmity. However, the decree is drawn on the

basis of the judgment and in the judgment elaborate

discussion was found on all the points involved.

Hence, this defense cannot be termed as substantial

question of law. Both the Courts below exhaustively