Karnataka High Court
P Ananda vs Smt S K Bharathi on 12 December, 2023
1 RSA.No.1592 OF 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
R.S.A.NO.1592 OF 2008
BETWEEN:
P ANANDA
S/O PUTTEGOWDA
AGED 43 YEARS
RESIDING AT GAVENAHALLI
KASABA HOBLI
HASSAN TALUK
...APPELLANT
(BY SRI. S SHAKER SHETTY, ADVOCATE)
AND:
1. SMT. S K BHARATHI
W/O M. SRINIVAS
AGED ABOUT 38 YEARS
R/O NO.151,
BHAIRAVESHWARA NILAYA
VIDYANAGAR EXTENSION
HASSAN
REP. BY HER PA HOLDER
SRI. M. SRINIVAS
S/O BOREGOWDA,
AGED ABOUT 44 YEARS,
R/O VIDYANAGAR
HASSAN
2. H R NARASIMHAIAH
S/O LATE H S RAMAIAH
AGED ABOUT 86 YEARS
R/O HEBBALE VILLAGE
KASABA HOBLI
ARKALGUD TALUK
SINCE DECEASED REPRESENTED BY
2 RSA.No.1592 OF 2008
2(A) PRABHAKAR
S/O H.R.NARASIMHAIAH
2(B) NAGAMANI
D/O H.R.NARASIMHAIAH
BOTH ARE RESIDING AT NO.115,
GF-3, GANESH APARTMENT,
2ND BLOCK, T.R.NAGAR,
BENGALURU - 560 028
RESPONDENTS
(BY SRI. H.N.SHASHIDHARA, SENIOR COUNSEL FOR
SRI. H.SUHAS, ADVOCATE FOR R1;
R2(A) SERVED;
VIDE ORDER DATED 25.10.2021, R2(B) IS HELD
SUFFICIENT THROUGH PAPER PUBLICATION)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC
PRAYING TO SET ASIDE THE JUDGMENT & DECREE PASSED
BY THE LEARNED FAST TRACK COURT-II AT HASSAN IN
R.A.NO.148/2006 PASSED ON 03.04.2008 REVERSING THE
JUDGMENT AND DECREE PASSED BY LEARNED PRINCIPAL
CIVIL JUDGE (JR. DN) & JMFC-II, HASSAN IN
O.S.NO.390/1997 PASSED ON 10.02.2005 AND ALLOW THE
APPEAL WITH COSTS THROUGHOUT IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
12.09.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular Second Appeal is by defendant No.2
challenging the impugned judgment and order passed by
the First Appellate Court, allowing the appeal filed by the
plaintiff, decreeing the suit for specific performance of
contract, by reversing the dismissal of suit by the trial
Court.
2. For the sake of convenience the parties are
referred to by their rank before the trial Court.
3. Plaintiff filed suit seeking specific performance
of agreement of sale dated 21.03.1997, for a direction to
the defendant No.1 to execute a sale deed and to declare
that the sale deed dated 17.10.1997 executed by
defendant No.1 in favour of defendant No.2 is not
binding on plaintiff.
4. It is the case of the plaintiff that defendant
No.1 being the owner of the suit schedule property
executed agreement of sale dated 21.03.1997 agreeing
to sell the same for Rs.36,000/-, he received advance of
Rs.16,000/-. Defendant No.1 executed a Registered
General Power of Attorney in favour of husband of
plaintiff viz., Sri.Srinivas, to get the land surveyed,
located and demarcated, get the Khata in the name of
defendant No.1 as per sale deed dated 17.02.1970.
Accordingly, the husband of plaintiff has got the work
done. However, on 21.09.1997, plaintiff's husband came
across a Notification in Janatha Madyama that the power
of attorney executed by defendant No.1 in favour of
husband of plaintiff is withdrawn. When plaintiff
approached defendant No.1, he said that it was issued by
some other interested person and got issued a
clarification on 23.09.1997 that the General Power of
Attorney is still in force.
4.1 On the requested and demand of plaintiff,
defendant No.1 executed the sale deed, but failed to
appear before the Sub-Registrar's office to admit the
execution, at the instance of persons who are interested
in purchasing the suit schedule property. In fact she had
also purchased Demand Draft dated 23.09.1997 for
balance consideration of Rs.20,000/-. Plaintiff was
always ready and willing to perform her part of contract.
Plaintiff learnt that defendant No.1 has sold suit schedule
property to defendant No.2 through sale deed dated
17.10.1997. It is not binding on the plaintiff and hence,
the suit.
5. Defendant No.1 has filed written statement
admitting his ownership. He has denied of having agreed
to sell suit schedule property and execution of sale
agreement dated 21.03.1997. Since the husband of
plaintiff is a real estate agent and undertook to get
certain documents from Survey and Revenue
Department, he executed Power of Attorney in his
favour. However, later on he cancelled the Power of
Attorney. On 23.09.1997, when defendant No.1 met
Srinivas and enquired him about the documents, he
unlawfully detained defendant No.1 and under threat
obtained his signatures on some papers. In this regard
defendant No.1 had filed a complaint in
NCR.No.346/1997 and cancelled the GPA. He has not
executed any sale deed in favour of the plaintiff.
5.1 Inter-alia defendant No.1 has contended that
he had entered into a sale agreement dated 20.07.1996
with defendant No.2 agreeing to sell suit schedule
property for Rs.60,000/- and received Rs.50,000/-. On
17.10.1997 after receiving the balance consideration of
Rs.10,000/- defendant No.1 has executed sale deed in
favour of defendant No.2 and put him in possession and
sought for dismissal of the suit.
6. Defendant No.2 has filed written statement
denying the entire case of the plaintiff. He has entered
into a sale agreement dated 20.07.1996 with defendant
No.1 and paid Rs.50,000/- as advance. After paying
balance consideration of Rs.10,000/- he got executed
sale deed dated 17.10.1997 and he was put in
possession of suit schedule property. He is a bonafide
purchaser for value and sought for dismissal of the suit.
7. Based on the pleadings, trial Court framed the
issues:
"1. Whether the Plaintiff proves that the
defendant No.1 is agreed to sell the suit
schedule property in favour of the Plantiff
through sale agreement dated 21.03.1997
to a total sale consideration amount of
Rs.36,000/- and paid Rs.16,000/- as
advance to defendant No.1?
2. Whether the Plaintiff has been ready and
willing to perform her part of contract?
3. Whether the Plaintiff further proves that
sale deed dated 17.10.1997 executed by
defendant No.1 in favour of defendant No.2
is not binding on her?
4. Whether the defendant No.2 proves that he
is a bonafide purchaser?
5. Whether the Plaintiff is entitled for specific
performance of contract and for possession
of the suit property as sought for?
6. What order or decree?
8. In favour of plaintiff, PWs-1 and 2 are
examined and Ex.P1 to 27 were marked.
9. On behalf of defendants, DWs-1 to 5 are
examined and Ex.D1 to 10 were marked.
10. The trial Court dismissed the suit.
11. However, the First Appellate Court allowed the
appeal filed by the plaintiff and decreed the suit.
12. Being aggrieved by the same defendant No.2
is before this Court, contending that the trial Court had
rightly dismissed the suit. But without appreciating the
oral and documentary evidence the First Appellate Court
has misdirected itself and decreed the suit. It ought to
have held that plaintiff has not come to the Court with
clean hands. When plaintiff has taken up a contention
that defendant No.1 had executed sale deed dated
23.09.1997, but failed to come and register the same,
the trial Court ought to have held that suit for specific
performance is not maintainable. He ought to have
adopted procedure under Sections 72 to 77 of
Registration Act. Without appreciating the oral and
documentary evidence placed on record, the First
Appellate Court has reversed the well reasoned judgment
of the trial Court without any justification.
13. In support of his argument, learned counsel
for appellant/defendant No.2 has relied upon the
following decisions:
(i) Nagubai Ammal and Ors. Vs. B.Shama
Rao & Ors.(Nagubai Ammal)1
(ii) C.Venkata Swamy Vs. H.N.Shivanna (Dead)
by legal representative and Anr. (C.Venkata
Swamy)2
(iii) Pranakrushna and Ors Vs. Umakanta Panda &
Ors. (Pranakrushna)3
(iv) Deben Adhicary Vs. State Opposite Parties
(Deben Adhicary)4
14. On the other hand learned counsel for
respondent No.1/plaintiff has supported the impugned
Judgment and order of the First Appellate Court.
(2018) 1 SCC 604
AIR 1989 ORISSA 148
AIR 1972 CALCUTTA 84
15. In support of their arguments, learned
counsel for respondent No.1/plaintiff has relied upon the
following decisions:
(i) Rao Saheb Vs. Rangnath Gopalrao
Kawathekar (Dead) by LRs & Ors
(Rao Saheb)5
(ii) Yogambika Vs.Narasingh (Yogambika)6
(iii) Satyabrata Biswas & Ors Vs.
Kalyan Kumar Kisku (Satyabrata)7
(iv) Surjith Sing & Ors Vs.Harbans Singh & Ors
(Surjith Sing)8
(v) Delhi Development Authority Vs. Skipper
Construction Co.(P) Ltd & Anr.
(Delhi Development)9
(vi) Kalavakurti Venkata Subbaiah
Vs. Bala Gurappagari Guruvi Reddy
(Kalavakurti)10
(vii) Man Kaur (dead) by LRs. Vs.
Hartar Singh Sangha (Man Kaur)11
(viii) Grasim Industries Ltd & Anr. Vs.
Agarwal Steel (Grasim Industries Ltd)12
(ix) B. Santoshamma & Anr. V. D.Sarala & Anr.
(Santoshamma) 13
(1972) 4 SCC 181
ILR 1992 KAR 717
AIR 1989 ORISSA 148
(1995) 6 SCC 50
(1996) 4 SCC 622
AIR 1999 SC 2958
(2010) 10 SCC 512
(2010) 1 SCC 83
(2020) 19 SCC 80
16. Based on the grounds urged, vide order dated
22.08.2008, the following substantial questions of law
are framed by this Court:
"1. Whether the lower appellate Court is
justified in holding that the 1st defendant
has executed an agreement to sell as per
Ex.P8 without giving any finding of his own
and reasoning to disagree with the
circumstances narrated by the trial Court in
paragraphs 25 to 35?
2. Whether the lower appellate Court is
justified in holding that the suit is
maintainable?
3. Whether the lower appellate Court is
justified in passing a decree when the
plaintiff failed to adopt the procedure
contemplated under Sections 72 to 77 of
the Registration Act?"
17. Heard arguments of both sides and perused
the record.
18. It is not in dispute that defendant No.1 is the
owner of suit schedule property. It is the definite case of
plaintiff that on 21.03.1997, defendant No.1 executed a
sale agreement, agreeing to sell suit schedule property
for Rs.36,000/- and received Rs.16,000/-. Though in the
plaint, the plaintiff has only stated that defendant No.1
had authorized the husband of plaintiff to get the
property identified, surveyed and other work done,
during the course of evidence, plaintiff has come up with
a case that on the same day i.e on 21.03.1997,
defendant No.1 has executed registered General Power
of Attorney in favour of the husband of plaintiff to carry
out the said work. It is alleged by the plaintiff that on
23.09.1997, he kept ready the balance consideration and
also the sale deed was prepared for registration. In fact,
defendant No.1 executed the sale deed, but when the
document was presented for registration, the Sub-
registrar wanted 'No Objection Certificate' (for short
NOC) from CITB and defendant No.1 left the place saying
that he would get the NOC but did not return and
therefore on that day the document could not be
registered.
19. Though defendant No.1 admit the fact of
having executed registered General Power of Attorney in
favour of husband of plaintiff to carry out certain work,
he has denied the execution of sale agreement in favour
of plaintiff. Defendant Nos.1 and 2 have specifically
pleaded that on 20.07.1996 defendant No.1 has
executed sale agreement to sell suit schedule property to
defendant No.2 for Rs.60,000/- and received Rs.50,000/-
as advance and on 17.10.1997. Defendant No.1 has
executed regular sale deed, by receiving balance sale
consideration of Rs.10,000/- and put the defendant No.2
in possession of suit schedule property. Defendants have
denied that on 21.03.1997, defendant No.1 has executed
a sale agreement to sell suit schedule property in favour
of plaintiff. Defendant No.1 has specifically alleged that
on 23.09.1997, when he enquired the husband of
plaintiff regarding certain documents, under threat, he
took signature of defendant No.1 to certain blank papers
forcefully and concocted documents. He has also given a
complaint regarding the said incident.
20. Having regard to the fact that defendant No.1
dispute execution of the sale agreement dated
21.03.1997, heavy and initial burden is on the plaintiff to
prove her case. As per Section 101 of Evidence Act,
having approached the Court, the burden is on the
plaintiff to prove her case. Having regard to the fact that
plaintiff would fail if no evidence is led by both parties as
per Section 102 of Evidence Act, irrespective of whether
defendants succeed on establishing the fact of having
entered into sale agreement dated 20.07.1996 and sale
deed dated 17.10.1997, the initial burden is on the
plaintiff to prove that on 21.03.1997, defendant No.1 has
entered into a sale agreement and on 23.09.1997, he
intentionally failed to present before the Sub-Registrar to
admit the execution of sale deed.
21. It is pertinent to note that during the course
of judgment, the trial Court has in detail recorded all the
suspicious circumstances surrounding the case of the
plaintiff and given reasons for rejecting the same. It has
also observed and recorded in detail the flaws of
Defendants' case. However, having regard to the fact
that the initial burden is on the plaintiff and she has
failed to discharge the same, the trial Court has
dismissed the suit. So far as maintainability of the suit is
concerned, the trial Court has come to the conclusion
that when the plaintiff claim that already sale deed was
executed by the defendant No.1, there was no need to
file a suit for specific performance and on the other
hand, it was sufficient for the plaintiff to approach the
Sub-Registrar for registering the document as per
Sections 72 to 77 of Indian Registration Act. Thus, on the
ground of maintainability also, the trial Court has
dismissed the suit. In this regard, substantial question
Nos.2 and 3 are framed.
22. Part-12 of the Registration Act, 1908,
consisting of Sections 71 to 77 deals with provisions
when the Sub-Registrar refuse to register the document.
Section 71 provides that when the sub registrar refused
to register the document for reasons other than the
reason that the property in question is not situated
within his Sub-district, he is required to make an
endorsement "Registration refused" on the document. He
is also required to make an order of refusal and record
his reasons for such order in book No.2. At the request of
any person executing or claiming under the document,
he shall provide a copy of the reason so recorded without
payment.
22.1 Section 72 of the Registration Act, 1908,
provides that when the Sub-Registrar refused
registration for reasons other than denial of execution by
the executant, an appeal lies to the Registrar within 30
days from the date of the order and the Registrar may
reverse or alter such order. In the event of the Registrar
granting relief, the Sub-Registrar is duty bound to obey
the same and register the document.
22.2 Section 73 deals with application to the
Registrar, where the Sub-Registrar refused to register
the document on the ground of denial of execution. In
such an event, at the instance of any person, claiming
under such document, or his representative, assign or
agent authorized as the case may be, within 30 days,
after the making of the order of refusal, apply to the
Registrar to whom such Sub-Registrar is subordinated in
order to establish his right to have the document
registered.
22.3 Section 74 deals with procedure of Registrar
on such application, under this provision, the Registrar is
empowered to make enquiry as to (a) whether the
document has been executed; (b) Whether the
requirement of law, for the time being in force have been
complied with on the part of the applicant or person,
presenting the document for registration, as the case
may, so as to entitle the document to registration.
22.4 Section 75 deals with the order by the
Registrar to register and procedure thereon. If the
Registrar finds that the document has been executed and
that all the requirements have been complied with, he
shall order for registration of the document. For the
purpose of this Section, the Registrar is having the
powers of Civil Court to summon and enforce the
attendance of witnesses and to compel them to give
evidence. He is also having the power to, directed by
whom the whole or any part of the cost of such enquiry
shall be paid and such cost shall be recoverable as if they
have been awarded in a suit under the code of
procedure. In fact, under Section 76, similar provision is
made as in Section 71, when the Registrar also refuse to
order for registration of the document. In that event, the
relief available to the agreed party is to file suit to direct
registration of the document.
22.5 Adverting to these provisions, the trial Court
has held that when the grievance of plaintiff is only to
the extent that the defendant No.1 failed to appear
before the Sub-Registrar to admit execution of the
document, the proper course available to the plaintiff is
to approach the Sub-Registrar and on his failure, the
Registrar with a request to register the document and for
this purpose, there was no need for filing a suit for
specific performance.
22.6 However, in this regard, the learned counsel
for plaintiff has relied upon the decision of the Hon'ble
Supreme Court in Kalavakurti, wherein it is held that
comprehensive suit, not only seeking direction to register
the sale deed, but also recovery of possession is not
barred on the ground of availability of statutory remedy
for registration under Section 77 of the Registration Act,
1908. In the present case, not only the plaintiff has
sought for specific performance of the sale agreement,
but also put the plaintiff in possession of suit property.
Plaintiff has also sought for a declaration that the sale
deed dated 17.10.1997 executed by defendant No.1 in
favour of defendant No.2 is not-binding on the plaintiff.
In the light of comprehensive reliefs sought by the
plaintiff, the suit is perfectly maintainable and it was not
sufficient for the plaintiff to approach the Sub-Registrar.
Consequently, the First Appellate Court is justified in
holding that suit is maintainable and accordingly,
substantial question Nos.2 and 3 are answered in the
affirmative.
23. Now coming to substantial question No.1,
whether the First Appellate Court is justified in holding
that defendant No.1 has executed an agreement of sale
as per Ex.P8, without giving any findings of his own and
reasoning to disagree with the circumstances narrated by
the trial Court in paragraph Nos.25 to 35.
24. Certainly, the case of the plaintiff is not free
from suspicious circumstances. It is the specific case of
the plaintiff that on 21.03.1997, both General Power of
Attorney and sale agreement came to be executed. It
has also come in the evidence that the deliberations for
the sale agreement was held on 21.03.1997 itself and on
the same day, the stamp paper for the General Power of
Attorney as well as sale agreement were purchased. As
rightly observed by the trial Court, the stamp paper for
General Power of attorney is purchased at Hassan,
whereas the stamp paper for sale agreement is
purchased at Bengaluru about 9 days prior to the date of
sale agreement. The plaintiff is not having any
explanation as to why the stamp paper used for sale
agreement is also not purchased at Hassan where the
parties are residing.
25. It has come in the evidence of PW-2 that first
the General Power of Attorney was executed and
thereafter the sale agreement was executed. If the
General Power of Attorney was executed, first, in all
probability, the stamp paper available would have been
used for execution of the General Power of Attorney and
the stamp papers purchased at Hassan would have been
used for the sale agreement. In the light of the fact that
defendant No.1 disputing execution of the sale
agreement, in the absence of explanation for the use of
stamp paper purchased at Bengaluru, for executing the
sale agreement supports the allegations of defendant
No.1 that the said document is subsequently concocted
by taking his signatures under threat, in respect of which
he chose to file complaint.
26. It is relevant to note that the General Power
of Attorney executed in the name of the husband of
plaintiff is registered whereas the sale agreement is
unregistered. The defendant No.1 is disputing that he
has executed the sale agreement at Ex.P8. Since this is
an unregistered document and the stamp paper, for it
were not purchased at Hassan and also that defendant
No.1 is disputing execution of the said document and
that on a subsequent date, putting the defendant No.1,
under threat, the husband of plaintiff got his signatures
on some blank stamp papers, plaintiff owes a plausible
explanation.
27. Neither in the General Power of Attorney at
Ex.P3 nor in the sale agreement at Ex.P8 the fact of
execution of the other document is forthcoming. When
both documents were executed on the same day, it was
but natural for referring the other document and reason
for executing the General Power of Attorney, etc. For
reasons best known the plaintiff has not chosen to
explain why there is no reference to the other document.
It creates doubt whether the sale agreement at Ex.P8
was really executed on 21.03.1997.
28. The plaintiff is also not having an explanation
as to why the General Power of Attorney was registered,
whereas the sale agreement at Ex.P8 executed on the
same day was not registered. Of course both General
Power of Attorney and sale agreement are not
compulsorily registerable. There must be some plausible
explanation for the plaintiff not getting the sale
agreement registered. It would have provided him an
additional strength to his case and supported his case,
especially when defendant No.1 admit the fact that he
has executed the General Power of Attorney at Ex.P3.
The plaintiff has failed to disspel this suspicion. Moreover
having regard to the fact that all the requisite formalities
for registering the sale deed work completed, there was
no impediment for the plaintiff to get the sale deed itself
registered on 21.03.1997. If at all defedant No.1 was
ready to sell the suit schedule property to the plaintiff
and there was no legal impediment to get the very sale
deed itself executed, rather than the sale agreement, the
plaintiff is not having any explanation for not getting the
sale itself executed rather than going for a sale
agreement.
29. According to the plaintiff, as per the General
Power of Attorney executed in his favour, her husband
has carried out all the formalities by the month of April
and May 1997. Such being the case there was no
impediment for the plaintiff to insist for execution of the
sale deed and not to wait for the same till September
1997.
30. As rightly observed by the trial Court, though
the General Power of Attorney at Ex.P3 and sale
agreement at Ex.P8 are executed on the same day, the
scribe as well as witnesses to both the documents are
different, except one common witness i.e., PW-2
Nagaraj, who is no other than the brother of plaintiff and
an interested person. The fact that these two documents
were written by different scribes and except one the
other witnesses are different may not in itself create any
legal impediment in the admissibility and validity of the
document. However, when the defendant No.1 is
disputing that he has executed the sale agreement,
these factors assume importance. It supports the
allegations made by defendant No.1 that the sale
agreement is concocted on a different date. If both the
documents are scribed by the same person and on the
same day, then naturally it would have referred to the
other document which would have supported the case of
plaintiff.
31. As rightly observed by the trial Court, in the
General Power of Attorney at Ex.P8 survey number of the
property is noted as 71/2A1, whereas in the sale
agreement, it is shown as 71/2A and later one is added
in front of 2A through writing. It also creates doubt
whether the sale agreement was executed on
21.03.1997 itself or later on it was concocted. PW-2
Nagaraj is a stock witness to all the documents
pertaining to plaintiff. He is also the brother of plaintiff.
Of course there was no impediment for taking a relative
of plaintiff as witness. However, to prove her bonafides,
plaintiff ought to have examined the other witness which
would have lent support to the case of plaintiff.
32. On 21.09.1997, defendant No.1 has issued a
paper publication, withdrawing the General Power of
Attorney executed in favour of husband of plaintiff. The
plaintiff has come up with an explanation that when her
husband approached defendant No.1, he explained that
it was issued at the instance of interested persons and
on 23.09.1997, issued one more paper publication
reiterating that the General Power of Attorney is in force.
The fact of issuing paper publication dated 23.09.1997 is
disputed by defendant No.1. Therefore, it was imperative
on the part of plaintiff to prove that the paper publication
dated 23.09.1997 was issued by defendant No.1.
However, plaintiff has not chosen to prove this fact.
33. On 23.09.1997, itself the defendant No.1 has
filed complaint against the husband of plaintiff alleging
that he has forcefully taken signatures of defendant No.1
on some blank papers. Such being the case it is hard to
believe that on 23.09.1997, defendant No.1 would
execute the sale deed and also appear before the Sub-
Registrar and later on under the pretext of getting NOC
from CBIT would vanish from the scene. Having regard
to the fact that it is the husband of plaintiff in his
capacity as General Power of Attorney holder of
defendant No.1 who carried out all the work, if at all the
NOC was required, certainly the husband of plaintiff
would have accompanied defendant No.1 to get the said
NOC. Moreover, as the General Power of Attorney holder
of defendant No.1 husband of plaintiff was also
competent to present the sale deed for registration.
34. In addition to pointing out the flaws in the
case of the plaintiff, the trial Court has also examined
the defence put up by defendant Nos.1 and 2 regarding
the purchase of stamp paper for execution of the sale
deed. However, having regard to the fact that the initial
burden is on the plaintiff to prove her case and on her
failure to discharge the burden placed on her, the trial
Court has rightly dismissed the suit. The First Appellate
Court has examined in detail the flaws in the defence put
forth by defendant Nos.1 and 2, it has failed to meet the
findings of the trial Court by providing cogent and
convincing reasons. It has also failed to give a finding
that plaintiff has provided her case. Only on the basis of
observation that the defence put forth by defend is not
reliable, it has chosen to decree the suit.
35. No cogent and convincing reasons are
forthcoming for not accepting the reasoning given by the
trial Court. Consequently, the First Appellate Court is not
justified in holding that defendant No.1 has executed the
sale agreement at Ex.P8 and thereby upsetting the
findings of the trial Court and decreeing the suit.
Accordingly, the substantial question No.1 is answered in
the Negative.
36. In the result, the Regular Second Appeal filed
by the defendant No.2 is required to be allowed and
thereby setting aside the judgment and decree of the
First Appellate Court and restore the judgment and
decree of the trial Court and accordingly the following:
ORDER
(i) Appeal filed by defendant No.2 under
Section under 100 of C.P.C is allowed.
(ii) The impugned judgment and order
dated 03.04.2008 in RA.No.148/2006
on the file of Fast Track Court is set
aside.
(iii) Consequently, the judgment and
decree dated 10.02.2005, on the file
of Civil Judge & JMFC-II, Hassan in
O.S.No.390/1997 is restored.
(iv) The Registry is directed to send the
trial Court record as well as the First
Appellate Court record along with
copies of this judgment.
Sd/-
JUDGE
RR
