Vimalbai,W/O Nurandappa vs Nagappa S/O Late Veershetty And ...
2022 Latest Caselaw 5072 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 21ST DAY OF MARCH, 2022

                       BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             RSA No.200034/2017 (SP)

BETWEEN:

VIMLABAI,W/O NURANDAPPA
AGE:63 YEARS, OCC:HOUSEHOLD & AGRI
R/O. H.NO. 1-29, SOMALINGADALLI
TQ:CHINCHOLI DIST:KALABURAGI
                                          ...APPELLANT

(BY SRI.CHAITANYAKUMAR CHANDRIKI, ADV.)

AND

1.    NAGAPPA S/O LATE VEERSHETTY
      AGE:47 YEARS, OCC:AGRI

2.    KARIYAPPA S/O VEERSHETTY
      AGE:51 YEARS, OCC:AGRI

3.    KAILASH S/O ALTE VEERSHETTY
      AGE:44 YEARS, OCC:AGRI

4.    MALLIKARJUN S/O GUNDAPPA
      AGE:55 YEARS, OCC:AGRICULTURE

      NOW ALL ARE R/O KALLUR ROAD,
      TQ:CHINCHOLI
      DIST:KALABURAGI-585102.
                                       ...RESPONDENTS
(BY SRI.BIRADAR VIRANGOUDA, ADV. FOR R1 TO R3
 NOTICE TO R4 SERVED)
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      THIS REGULAR SECOND APPEAL IS FILED U/S 100
OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 04.04.2015 PASSED BY THE LEARNED
PRL. CIVIL JUDGE & JMFC, CHINCHOLI IN O.S.NO.32/2010
AND ALSO SET ASIDE THE JUDGMENT AND DECREE
DATED 23.09.2016 PASSED BY THE LEARNED SENIOR
CIVIL JUDGE AT CHINCHOLI IN R.A.NO.17/2015
CONSEQUENTLY BE PLEASED TO ALLOW THE SUIT FILED
BY THE PLAINTIFF.

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

This appeal is filed challenging the judgment and

decree dated 23.09.2016 passed in R.A.No.17/2015

by the Senior Civil Judge, Chincholi, dismissing the

appeal and confirming the judgment and decree dated

04.04.2015 in O.S.No.32/2010 by the Principal Civil

Judge and J.M.F.C., at Chincholi.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the plaintiff and respondents are the

defendants before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

The plaintiff has filed a suit for specific

performance of contract alleging that defendants No.1

to 3 are brothers and defendant No.4 is so called

purchaser. It is the case of the plaintiff that father of

defendants No.1 to 3 by name Veerashetty was the

original owner and khatedar of land bearing

Sy.No.18/A measuring to an extent of 4 acres 25

guntas situated at Somalingadahalli. The defendant

No.1 is in need of money and he obtained a loan of

Rs.13,000/- from the plaintiff on 08.04.2000 with an

interest at the rate of 2% p.a., and promised to repay

the loan amount with interest and if he failed to repay

the loan amount with interest he agreed to sell 1 acre

of land in the said survey and agreed to execute

register sale deed to an extent of 1 acre out of his

share. Defendant No.1 executed a receipt on plain

paper affixing the revenue stamp. But, defendant

No.1 has failed to repay the loan amount of

Rs.13,000/- with interest to the plaintiff. Further,

plaintiff approached defendant No.1 and his father and

demanded to repay the loan amount with interest.

Defendant No.1 and his father stated that they are

unable to pay the loan amount with interest and

agreed to sell the land to an extent of 1 acre in favour

of plaintiff for sale consideration of Rs.20,000/- and

executed agreement of sale on 17.02.2002. Further, a

supplement agreement of sale was executed on

19.04.2002 under the said agreement possession was

delivered to the plaintiff. Further it is contended that

defendant No.1 and his father received the balance

sale consideration of Rs.7,000/- and acknowledge the

same and agreed to execute registered sale deed in

favour of plaintiff whenever he called. The father of

the defendants No.1 to 3 died in the year 2005,

leaving defendants No.1 to 3 as his legal heirs.

Thereafter, plaintiff requested the defendants No.1 to

3 to execute registered sale deed in his favour, but

the defendants No.1 to 3 have refused to execute the

sale deed. Hence, the plaintiff filed a suit for specific

performance of contract and seeking permanent

injunction against then defendants.

3.1. Defendants No.1 to 3 appeared through

their counsel and filed written statement denying the

averments made in the plaint and contended that

after the demise of his father suit land was transferred

in the name of defendants No.1 to 3 and at that time

plaintiff has not raised any objection before the

Tahasildar, but plaintiff has filed appeal before the

Assistant Commissioner, and the said appeal came to

be rejected. It is further contended that plaintiff has

created alleged agreement of sale, neither the father

of defendants No.1 to 3 nor the defendant No.1

agreed to sale the suit land in favour of plaintiff.

Hence, prayed to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiff proves that, 1st defendant has received a loan amount of Rs.13,000/- from plaintiff on 08.04.2000 with an interest of Rs.2% p.a.?

2. Whether the plaintiff further proves that, defendant No.1 agreed to execute the registered sale deed to the extent of 1 acre out of his share in suit schedule property if he fails to repay the loan amount to plaintiff?

3. Whether the plaintiff proves that, on 17.02.2002 defendant No.1 has executed a sale agreement in favour of plaintiff with respect to suit schedule property?

4. Whether the plaintiff further proves that, he was always ready and will to perform his part of contractor?

5. Whether the plaintiff proves that, defendant has failed to perform his part of contract?

6. Whether the plaintiff proves that, the sale deed dated 16.02.2009 executed in favour of defendant No.4 by defendant No.1 with respect to suit schedule property is not binding on him?

7. Whether the plaintiff proves his possession and enjoyment over the suit schedule property as on the date of filing of the suit?

8. Whether the plaintiff proves the alleged interference of defendants?

9. Whether the plaintiff is entitled for this relief sought for?

10. What order or decree?

3.3. Plaintiff in order to prove his case, examined

herself as PW-1 and also examined five witness as

PW-2 to PW-6 and got marked the documents as

Ex.P1 to Ex.P13. On the other hand, defendant No.1

was examined himself as DW-1 and also examined

two witnesses as DW-2 and DW-3 and got marked the

documents as Ex.D1 to Ex.D6 and Exs.D6 (A-B). The

Trial Court, after recording evidence and considering

the material on record, held that plaintiff has failed to

prove that Defendant No.1 has received hand loan of

Rs.13,000/- from the plaintiff on 08.04.2000n with

interest at the rate of 2% p.a. Further held that

plaintiff has failed to prove that defendant No.1 has

agreed to execute registered sale deed to an extent of

1 acre out of his share in the suit schedule property.

Further held that plaintiff has failed to prove that on

17.02.2002 defendant No.1 has executed a sale

agreement in favour of plaintiff with respect to suit

schedule property. Further, recorded a finding that

the plaintiff has failed to prove that he was ready and

willing to perform his part of contractor and also held

that plaintiff has failed to prove that the sale deed

dated 16.02.2009 executed in favour of defendant

No.4 by defendant No.1 with respect to the suit

schedule property is not binding on him. Further held

that plaintiff has failed to prove that he is in

possession and enjoyment over the suit schedule

property on the date of filing of the suit and also

alleged interference of defendants and consequently

dismissed the suit of plaintiff.

3.4. The plaintiff aggrieved by the judgment and

decree passed by the Trial Court, filed an appeal in

R.A.No.17/2015. The First Appellate Court framed the

following points for consideration:

1. Whether the Trial Court committed error in dismissing the suit without considering Ex.P10 to Ex.P13?

2. Whether the judgment and decree under appeal is illegal, capricious and against the facts of the case thereby warranting interference by this Court?

3. What order?

3.5. The First Appellate Court, after

re-appreciation of the evidence on record, confirmed

the judgment and decree passed by the Trial Court

and consequently dismissed the appeal filed by the

plaintiff. Hence the plaintiff filed the instant appeal.

4. Heard learned counsel for the plaintiff and

learned counsel for defendants.

5. Learned counsel for the plaintiff submits

that both the Courts below have committed an error in

passing the impugned judgment and decree. Further,

contended that defendant No.1 has obtained hand

loan of Rs.13,000/- and executed agreement of sale

on 08.04.2000, and further contended that defendant

No.1 has also executed a supplement agreement of

sale on 17.02.2002 in favour of the plaintiff and

agreed to sale the suit land to an extent of 1 acre out

of his share in the suit schedule property. He further

submits that both the Courts below have not properly

appreciated the material on record. Hence, on these

grounds, he prays to allow the appeal.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. It is not in dispute that the defendants

No.1 to 3 are the owners of the suit schedule

property. It is the case of the plaintiff that defendant

No.1 had obtained a hand loan of Rs.13,000/- from

the plaintiff on 08.04.2000 and agreed to repay the

loan amount with interest at the rate of 2% p.a. It is

further contended that defendant No.1 has failed to

repay the loan amount and agreed to sell the suit land

to an extent of 1 acre out of his share and executed a

supplement agreement of sale on 17.02.2002. In

order to prove the execution of agreement of sale, the

petitioner herself got examined as PW-1 and

reiterated the plaint averments in examination-in-

chief. The husband of plaintiff was examined as PW-2

and he supported the case of the plaintiff. In support

of his contention, plaintiff has produced Ex.P10 and

Ex.P11. Ex.P11 discloses that the transactions taken

between the defendant No.1 and husband of plaintiff,

and the plaintiff is not a party to the said document

and in the pleadings plaintiff has categorically stated

that defendant No.1 and his father has executed an

agreement of sale in favour of the plaintiff. Further,

plaintiff has produced Ex.P10 to Ex.P13. Ex.P10 and

Ex.P11 are contrary to Ex.P12, but in Ex.P12 the

extent of land shown as 1 acre 11 guntas and in

Ex.P10 the extent of land shown as 1 acre and in

Ex.P11 and Ex.P12 the extent of land shown as 1 acre

11 guntas and in Ex.P13 the extent of land shown as 1

acre, therefore there is no clarity in the said extent of

land as alleged by the plaintiff. Further, both the

Courts below have concurrently recorded a finding of

fact that plaintiff has failed to establish the execution

on agreement of sale deed dated 08.04.2000 and

17.02.2002. Further, PW-2 has admitted in the

course of cross-examination, that defendant No.1 had

obtained hand loan of Rs.13,000/- from the plaintiff

on 08.04.2000 and further stated that DW-1 and his

father has received balance sale consideration of

Rs.7,000/- and acknowledge a receipt for entire sale

consideration of Rs.20,000/- and agreed to execute

registered sale deed in favour of plaintiff.

8. From the perusal of evidence of PW-1 and

PW-2 and the documents marked as Ex.P10 to Ex.P13

and it creates the doubt in the mind of the Court that

the sale transaction between the parties is not

genuine. Both the Courts below have concurrently

recorded a finding of fact that the plaintiff has failed to

establish the sale agreement dated 08.04.2000 and

17.02.2002, and both the Courts below have rightly

passed the impugned judgment and decree. Hence,

in view of the above discussion, I do not find any

substantial question of law in this appeal.

Accordingly, the appeal is dismissed.

SD/-

JUDGE

GRD