Karnataka High Court
Mr.Mahaveer Tukaram Mote vs Mr.Ramchandra Shankar Kumbar on 8 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100465 OF 2018
BETWEEN:
MR. MAHAVEER TUKARAM MOTE
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: CHINCHALI, TQ: RAIBAG,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. SANTOSH B. MANE, ADVOCATE FOR
SRI.NEELENDRA D.GUNDE, ADVOCATE)
AND:
1. MR. RAMCHANDRA SHANKAR KUMBAR
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TQ: RAIBAG,
DIST: BELAGAVI-590001.
2. MR. SADASHIV SHANKAR KUMBAR
AGE: 61 YEARS, OCC: AGRICULTURIST,
R/O: KUDACHI, TQ: RAIBAG,
DIST: BELAGAVI-590001.
...RESPONDENTS
(BY SRI.SANJAY S.KATAGERI, ADVOCATE FOR R1 AND R2)
THIS RFA IS FILED UNDER SECTION 96 OF C.P.C.,
AGAINST THE JUDGMENT AND DECREE DATED 28.08.2018
PASSED IN O.S.NO.66/2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG,
DISMISSING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF
CONTRACT.
2
THIS RFA HAVING BEEN HEARD AND RESERVED ON
27.11.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff challenging the
judgment and decree, dated 28.08.2018, passed in O.S.
No.66/2017 by the Senior Civil Judge & JMFC, Raibag (for
short 'the Trial Court').
2. The factual matrix of the case leading to filing of
this appeal is as under:
a) The plaintiff filed O.S. No.66/2017 contending that the
defendants were the joint owners of the agricultural land
bearing R.S. No.233 totally measuring 13 acres 16 guntas
situated at Kudachi Village. In the said survey number,
the defendants were having share to the extent of 2 acres
8 guntas. In the year 2015, the defendants were in need
of money legal family necessity and for that they made a
propaganda at Kudachi Village about their willingness to
sell the said extent of land. The plaintiff approached the
defendants and proposed to purchase the land. The
proposal was accepted and sale consideration of
Rs.18,00,000/- was agreed and the defendants promised
to execute the sale deed in favour of the plaintiff.
Accordingly, on 08.05.2015, both the defendants
executed the registered agreement of sale and received
earnest sale consideration of Rs.17,64,000/-. One Sri.
Kumar Shankar Bastwade of Chinchali and Sri.
Sultanpasha Muktumsab Chamanshaikh of Kudachi were
the witnesses to the said sale agreement. The balance
sale consideration of Rs.36,000/- was agreed to be paid
at the time of execution of the sale deed and possession
of land was also agreed to be given at the time of
execution of registered sale deed.
b) The plaintiff approached and requested the defendants to
execute a registered sale deed. However, the defendants,
for one or the other reason, postponed the request of the
plaintiff for execution of registered sale deed. Hence, the
plaintiff got issued a legal notice dated 22.04.2017 on the
defendants calling upon them to execute a registered sale
deed in his favour in terms of the agreement of sale dated
08.05.2015. It is stated that the defendants
acknowledged the legal notice, but no reply was given by
them and also they did not come forward to execute
registered sale deed. It was also contended that the
plaintiff was ever ready to get a registered sale deed
executed by paying balance amount of Rs.36,000/-. It
was also the contended that the defendants were
intending to alienate/transfer the suit property to the
strangers and without any other alternative constrained
to file the suit.
c) In pursuance of the suit summons, defendants No.1 and 2
appeared through a counsel. Defendant No.1 filed a
written statement. Defendant No.2 adopted the written
statement filed by defendant No.1. The defendants denied
the very execution of the sale agreement dated
08.05.2015, and the receipt of earnest money of
Rs.17,64,000/-.
d) The Trial Court framed issues with regard to execution of
the agreement of sale by the defendants; with regard to
readiness and willingness of the plaintiff to perform the
contract; and whether the plaintiff was entitled for the
relief of specific performance. The plaintiff, in order to
prove his case, got examined himself as P.W.1 and
examined two more witnesses as P.Ws.2 and 3 i.e., the
attesting witness and the scribe to the agreement of sale
respectively, and got marked documents as Exs.P.1 to
P.7. The defendants No.1 and 2 got examined themselves
as D.W.1 and D.W.3 and another witness as D.W.2 and
got marked the documents as Exs.D.1 to D.6 in their
evidence.
e) The Trial Court considered the oral and documentary
evidence, took note of Ex.P.1 and Ex.D.1. In paragraph
13 of its judgment, the Trial Court has extracted the
recitals of Ex.D.1-deed of cancellation and having
considered the same, has come to the conclusion that the
plaintiff was unable to pay the remaining sale
consideration amount as per Ex.D.1 and when the plaintiff
was unable to pay the balance amount in terms of Ex.D.1,
he was not capable both oral and documentary evidence
available on record paying the amount of Rs.17,64,000/-
and there was no evidence for having made payment of
Rs.17,64,000/-. Hence, the Trial Court dismissed the suit
answering issues Nos.1 to 3 in the negative.
3. Being aggrieved by the judgment and decree of
the Trial Court dismissing the suit, the present appeal is
filed.
4. Learned counsel appearing for the appellant
vehemently contended that the Trial Court has failed to
consider that when the defendants had admitted that the
first agreement was in existence and in view of the second
agreement being entered by them, the first agreement had
become redundant and having second agreement in hand,
the appellant without narrating the reasons for cancellation,
has plainly stated that he cannot purchase the property of
the respondent No.1. The learned counsel also contended
that it is pertinent to note herein that the second agreement,
which is the subject matter of the suit, was executed at
4:33:04 p.m. on 11.5.2015, whereas the earlier agreement
of sale was subsequently cancelled at 4:47:31 p.m, and in
that view of the matter, the Trial Court ought to have
decreed the suit of the plaintiff. The learned counsel
contended that the Trial Court ought to have appreciated the
fact that, as per the registered agreement dated
06.09.2012, respondent No.1 had received the earnest
money of Rs.10,40,000/- out of Rs.11,00,000/- and the
balance amount payable was only Rs.60,000/- at the time of
registration of sale deed. He further contended that only for
the reason that respondent No.2 also came forward to sell
his part of share, and only for the reason that a new
agreement was entered into by both these respondents with
regard to the land to the extent of 2 acres 8 guntas, the
deed of cancellation dated 08.05.2015 was executed on
11.05.2015 cancelling the earlier agreement of sale.
5. The learned counsel for the appellant also
vehemently contended that only for convenience of both the
parties, deed of cancellation of sale agreement, dated
08.05.2015 was executed on 11.05.2015 cancelling the
earlier agreement of sale dated 06.09.2012; if the said
agreement is to be considered or accepted, in that event the
respondents have failed to prove the source from where they
received Rs.10,40,000/- which they contended to have
returned to the appellant on 11.05.2015. Learned counsel
contended that even if it is assumed to be true, no layman
would receive an amount to the extent of Rs.10,40,000/-,
which was admittedly paid in the year 2012 without any
interest and that too for a period of nearly three years. He
also vehemently contended that respondent No.2 was not
the signatory to the agreement dated 06.09.2012, but his
presence on 11.05.2015 and his signature on the registered
agreement for sale dated 08.05.2015 probabalises the case
of the appellant that both the respondents were ready to sell
their part of the property by entering into a new agreement.
6. Learned counsel for the appellant contended that
the Trial Court ought to have appreciated the fact that
respondent No.1, who is examined as D.W.1, in the cross-
examination has admitted that he has not produced the deed
of cancellation; that he is not aware as to who is in
possession of the said deed of cancellation; that D.W.1 has
categorically admitted about the execution of another
document i.e., agreement of sale on the same day by
himself and his brother, and in spite of the said admissions
available on record, the Trial Court has committed an error
in not discussing the same and the Trial Court has passed
the judgment in one paragraph i.e., paragraph No.13.
Learned counsel also submitted that D.W.1 has clearly
admitted that he has filed complaint against the appellant
only after the receipt of the Court notice and not
immediately after the receipt of notice. He also contended
that D.W.2, who has been examined to prove the contents of
Ex.D.1 i.e., the deed of cancellation of agreement of sale,
has clearly stated that he is not a signatory to the said deed.
He contended that when the respondents have failed to
examine any independent witness to prove the execution of
Ex.D.1, the Trial Court ought not to have dismissed the suit.
Learned counsel also contended since D.W.1 has
categorically admits that execution of Ex.P.1 and the
admitted fact need not be proved, the very approach of the
Trial Court in proceeding to pass the order of dismissal of
the suit is erroneous and the finding of the Trial Court being
against the material on record requires interference by this
Court.
7. Per contra, learned counsel appearing for the
respondents vehemently contended that Ex.D.5 is the
complaint which had been filed against the plaintiff. He also
contended that reply to the legal notice dated 22.04.2017
was given in terms of Ex.D.2, dated 26.05.2017; the
evidence of D.Ws.1 to 3 is clear that they have not executed
any agreement of sale and the document Ex.P.1 is also
concocted and created; when the deed of cancellation of
earlier sale agreement was executed on 11.05.2015, no such
sale consideration was paid and the plaintiff taking
advantage of the cancellation of sale deed created the
document as per Ex.P.1. The Trial Court has rightly
considered the entire material on record and has come to
the conclusion that no material was placed before the Court
for having paid the sale consideration. He submits that the
recitals of document at Ex.D.1 is very clear for what reason
the earlier sale agreement was cancelled and the Trial Court
has not committed any error. He also contended that the
appellant had not made out any case for granting the relief
of specific performance and the Trial Court has rightly
dismissed the suit which does not require any interference.
Hence, the question of interfering with the findings of the
Trial Court does not arise and prays for dismissal of the suit.
8. Having heard the appellant's counsel and also the
counsel appearing for the respondents, and on perusal of the
grounds urged in the appeal memorandum as well as the
material available on record, the points that would arise for
consideration of this Court are:
i) Whether the Trial Court has committed any error
in coming to the conclusion that the document-
Ex.P.1 was not executed and defendants have not
received Rs.17,64,000/-?
ii) Whether the Trial Court committed an error in not
granting the relief of specific performance, and
whether it requires interference?
iii) What order?
9. Having heard the appellant's counsel and the
counsel appearing for the respondents and also on perusal of
the plaint averments, no doubt, there is no recital with
regard to the earlier agreement of sale and cancellation of
sale agreement of the year 2012. This Court has to take
note of the contentions taken in the written statement filed
by defendant No.1 and defendant No.2, who has adopted the
written statement filed by defendant No.1.
10. It is important to note that though, in the plaint
filed, nothing is stated about the earlier agreement,
defendant No.1, in the written statement, at paragraph 5,
has admitted the existence of earlier sale agreement dated
06.09.2012 and also admitted the receipt of Rs.10,40,000/-.
But it is the contention of defendant No.1 that the plaintiff
approached him on 07.05.2015 and expressed that he is not
interested in purchasing the property and the property may
be sold to any other person and requested to return the
earnest money of Rs.10,40,000/-, and accordingly, the same
was paid and the deed of cancellation of sale agreement was
executed on 11.05.2015, though it is dated 08.05.2015. It is
also the contention of the respondents that the agreement of
sale dated 08.05.2015 is created a document and the
complaint was also given to the Raibag Police, but they have
not taken any action and hence complaint was given before
the Superintendent of Police, but they have not taken any
action.
11. The plaintiff, in order to prove his case, got
examined himself as P.W.1 and reiterated the plaint
averments. He was subjected to cross-examination. In the
cross-examination, P.W.1 admits that he only gave
information to file the suit and he also admits that earlier
there was an agreement dated 06.09.2012 for a sale
consideration of Rs.11,00,000/- and he admits that he had
paid Rs.10,40,000/- as earnest money. He also admits that
in terms of the said agreement, time upto September, 2015,
was given. It is suggested that he demanded refund of
earnest money and the said suggestion was denied. He
identifies his photograph in Ex.D.1-deed of cancellation and
also admits his signature on Ex.D.1; he identifies the other
photograph of Ramachandra i.e., defendant No.1; and also
admitted Ex.D.1-deed of cancellation. It was suggested to
P.W.1 that Ex.P.1 is new agreement and the same was
written on 08.05.2015. It was suggested that signature was
taken on Ex.P.1 stating that the said document is
cancellation document and the said suggestion was denied.
However, he admits that the said document was registered
on 11.05.2015. It was suggested that Ex.P.1 was a created
document and the said suggestion was denied. He admits
that he got issued a legal notice dated 22.04.2017 and reply
was given to the said notice. He admits that before Ex.P.1,
Ex.D.1-deed of cancellation was executed and he had signed
Ex.D.1; and that one Sri. Kumar Shankar Bastwade and Sri.
Sultanpasha Muktumsab Chamanshaikh were the witnesses
to Ex.D.1. He admits that, on the instructions of himself and
defendant No.1, the deed of cancellation was prepared. It
was suggested that Ex.P.1 was a created document, and
that the document of deed of cancellation was in his custody
and the said suggestions were denied by P.W.1.
12. P.W.2 is the attesting witness. He reiterates that
defendants agreed to sell the property to the extent of 2
acres 8 guntas to the plaintiff. He also states that that one
Sri. Annasab Balappa Padolkar, an Advocate, had prepared
the document of agreement of sale as per the instructions of
the defendants. For having paid the money also P.W.2 had
deposed before the Court. This witness was subjected to
cross-examination and, in the cross-examination, he stated
that he had studied upto SSLC and also gave description of
the suit schedule property. He admits the cancellation of
earlier sale agreement, but denied the repayment of
Rs.10,40,000/- by defendant No.1 to the plaintiff. He also
admits that Sri.Sultanpasha Muktumsab Chamanshaikh had
also signed the document and he was present. He admits his
signature available in Ex.P.1 and that the deed of
cancellation of sale agreement was executed on the same
day of execution of Ex.P.1. He denied the suggestion that
document-Ex.P.1 is a created document. He was further
cross-examined and admitted that the deed of cancellation
was executed prior to Ex.P.1 and he had also signed the
deed of cancellation.
13. The other witness is P.W.3, who is the scribe of
the agreement of sale dated 08.05.2015. He also reiterates
the evidence of P.W.1 and P.W.2 in his evidence and that he
is the scribe of the document Ex.P.1. This witness was
subjected to cross-examination and he admits that he
prepared Ex.P.1 on 08.05.2015 and that the earlier sale
agreement dated 06.09.2012 was cancelled. He prepared
the same based on the statement of defendant No.1 and the
plaintiff. He admits that in the deed of cancellation, it is
mentioned that 10,40,000/- was paid. He also admits that
he prepared the deed of cancellation first and thereafter
prepared Ex.P.1. It was suggested that Ex.P.1 is a created
document and the said suggestion was denied. It was
suggested that he was falsely deposing that an amount of
Rs.17,64,000/- was paid and the said suggestion was
denied. He also stated that Mahaveer Mote (the plaintiff)
was an advocate and he was also an advocate. It is
suggested that they obtained the signature on Ex.P.1 stating
that said document is deed of cancellation and the same was
denied.
14. D.W.1, in his evidence, by way of examination-in-
chief, has reiterated the averments of the written statement.
D.W.1 was also subjected to cross-examination and he
admits marking of documents Exs.D.1 to D.6. He admits that
he is not educated, and has learnt in the night school. He
states that he himself has given instructions to prepare the
written statement and he only gave information to prepare
the evidence of examination-in-chief. He admits that earlier
there was an agreement of sale dated 06.09.2012, the
receipt of Rs.10,40,000/- and the execution of agreement of
sale. He claims that his brother was also there. He admits
that when the document was prepared, on the same day it
was registered. He admits that Sultanpasha Muktumsab
Chamanshaikh and his brother were there. But he did not
produce the cancellation document and also admits that he
is not aware with whom the cancellation deed was there, but
he had signed the deed of cancellation. It is suggested that
there were talks with regard to cancellation of earlier sale
agreement and entering into new agreement in respect of
suit property, and the said suggestion was denied. But, he
admits in the cross-examination that on the same day, he
and his brother in respect of their properties, entered into a
sale agreement. He also admits that he has not given any
complaint with regard to the plaintiff having obtained the
signatures by fraud, but he admits that only after receipt of
Court notice he gave the complaint. He also admits that
before the receipt of notice, he has not given any complaint
against the plaintiff. He says that defendant No.2 was also
present while returning the money and he himself and his
brother have signed the said document of cancellation.
15. D.W.2 in his evidence has stated that he is having
acquaintance with the plaintiff and the defendants, but
denies the very execution of agreement of sale, but speaks
about the earlier sale agreement dated 06.09.2012 and
cancellation of the same. He was subjected to cross-
examination. He admits that he has received the notice from
the Court and he has also having information with regard to
the suit property. He admits that in respect of the suit
schedule property, an agreement was executed and he is not
a signatory to Ex.D.1-deed of cancellation. He admits the
execution of earlier agreement of sale in the year 2012 by
defendant No.1 and the same was cancelled in 2015. He
admits that earlier agreement of sale was in respect of 1
acre 4 guntas of land belonging to defendant No.1. It is
suggested that in respect of 2 acres 8 guntas of land, both
the defendants had executed sale agreement, and the said
suggestion was denied. He also admits that he gave notice
to the plaintiff stating that prior to entering into sale
agreement with defendants, he had entered into sale
agreement with the defendant. But he did not file any suit
against the defendants. He admits that defendant No.2 was
also present at the time of cancellation of document Ex.P.1.
He admits that in Ex.P.1 there are photographs of the
plaintiff and defendant No.1, and he cannot tell as to who is
the person in the other photograph. He also admits that he
cannot tell as to who has signed the Ex.P.1 and admits that
defendants are the owners of the suit schedule property.
16. The other witness D.W.3, who is defendant No.2.
He too has reiterated the averments of the written
statement filed by defendant No.1. In the cross-
examination, he has admitted that he has studied upto 10th
standard and he knows reading and writing Kannada. He
states that he has acquaintance with the plaintiff and the
defendants and he is a resident of Kudachi. He cannot state
against whom the suit is filed. He states that defendants are
in possession of land to the extent of 2 acres 8 guntas and
the suit is filed in respect of the very 2 acres 8 guntas of the
property. He admits in the cross-examination with regard to
earlier sale agreement and cancellation of the same, but he
claims in order to return the money, he went to the Sub-
Registrar's office and he is aware of the cancellation of
earlier sale agreement. He admits his signature and the
signature of defendant No.1 on Ex.P.1. He also admits that
Sri. Sultanpasha Chamansheikh and Sri. Padolkar (P.W.3)
also signed the said document. He admits that on Ex.P.1 his
photograph is there. He claims that while cancellation their
signatures are taken on Ex.P.1. He claims that, on that day,
he himself and his brother jointly refunded the amount. He
does not know about the registration of Ex.P.1 after three
days of preparing the document of Ex.P.1, but he admits
that he went to the Registrar's office on 08.05.2015 and
photograph was taken.
17. We have considered both oral evidence i.e.,
P.W.1 to P.W.3, D.W.1 to D.W.3 and the documentary
evidence i.e., Exs.P.1 to P.7 and Exs.D.1 to D.6.
18. It is not in dispute that there was an earlier
agreement of sale executed by defendant No.1 in the year
2012 in respect of 1 acre 4 guntas of land and defendant
No.1 received a sum of Rs.10,40,000/- from the plaintiff. It
is also not in dispute that the document of cancellation was
made on 08.05.2015. It is the case of the plaintiff that both
defendants No.1 and 2 came forward to execute into a sale
agreement on the very same day in respect of sale of suit
property to an extent of 2 acres 8 guntas. It is also not in
dispute that the total extent of 2 acres and 8 guntas of land
belongs to defendant No.1 and 2. It is also important to note
that defendant No.2 is not a signatory to the earlier sale
agreement in respect of sale of 1 acre 4 guntas of land. It is
also important to note that it is the claim of the plaintiff that
both the defendants joined together and executed the sale
agreement in terms of Ex.P.1 agreeing to sell the land to the
extent of 2 acres 8 guntas on the very same day of
cancellation of earlier sale agreement. P.W.2 is the attesting
witness and P.W.3 is the scribe of the deed of cancellation
and also the execution of the document Ex.P.1. In the cross-
examination of P.W.2 and P.W.3 nothing is elicited except
suggesting that Ex.P.1 is a created document. It is also
important to note that in the cross-examination of P.W.1, a
suggestion was made that Ex.P.1 is new sale agreement and
the same was prepared on 08.05.2015. It is also not in
dispute that the deed of cancellation also came into
existence on the very same day of 08.05.2015. But, the fact
is that both the documents i.e., Ex.P.1 and Ex.D.1 are
registered on 11.05.2015. No doubt, reply was given to the
legal notice issued to the defendants and the same is also
marked as Ex.D.3. P.W.1 also admits that deed of
cancellation came into existence prior to Ex.P.1 and there is
no dispute that Kumar Shankar Bastwade and Sultanpasha
Maktumsab Chamanshaik are the signatories to the
document. It is also important to note that defendants have
denied the very execution of the document Ex.P.1, but
defendant No.1, in his written statement, has admitted the
earlier agreement of sale and cancellation of the same.
Defendant No.2 adopted the written statement of defendant
No.1. It is important to note that in the cross-examination,
no doubt, the contents of Ex.D.1 is elicited from the mouth
of P.W.1 where there is an averment regarding cancellation
of document since the plaintiff was not interested to
purchase the property. It is important to note that D.W.1
though denied the very execution of Ex.P.1, he categorically
admits that on the very same day of cancellation of the
document in respect of the suit schedule property, he
himself and his brother in respect of their share is concerned
had executed the sale agreement to the total extent. These
admissions take away the case of defendants No.1 and 2
and not only the said admission was given and even
categorically admitted that they have not given any
complaint when the plaintiff obtained signatures on the said
created document and admits that only after receipt of Court
notice, the complaint was given. He also admits that even
before the receipt of notice also he had not filed any
complaint. It is important to note that when the notice was
issued and the same was served and immediately after the
service of notice also, no complaint was given and
categorically admits that only after the receipt of suit
summons, the complaint was filed.
19. We have perused the document Ex.D.2. The
document Ex.D.2 is the reply was given on behalf of
defendant No.2 and 3 denying the very execution of Ex.P.1.
The document Ex.D.3 is the complaint which was given to
PSI, Raibag i.e., on 1.06.2017. D.W.1 categorically states
that notice was given in the month of April, 2017 and,
according to the defendants, the complaint was filed after
the filing of the suit and the document Ex.D.3-complaint not
bears the signature of P.S.I and no acknowledgement is
produced for having lodged a complaint immediately.
20. The counsel appearing for the defendants mainly
contends that Ex.D.5 is the complaint filed under Section
200 of Code of Criminal Procedure, and the same was filed
on 30.01.2017 prior to filing of the suit. Though it is dated
30.01.2017, there is an endorsement dated 30.01.2018 and
it appears that a mistake has crept-in in mentioning the date
of the complaint as 30.01.2017 instead of 30.01.2018. The
order sheet at Ex.D.6 is also clear that the complaint was
filed on 30.01.2018 i.e., after filing of the suit. In order to
prove the factum of complaint being given on 01.06.2017
itself, there is no acknowledgment produced before the
Court. Hence, it is clear that Ex.D.3 is a created document
and the complaint dated 01.06.2017 and what made him to
wait till 30.01.2018 when the PSI had not taken any action.
These are all the aspects which has not been considered by
the Trial Court. The very admission of D.W.1 that he himself
and his brother have executed the sale agreement on the
very same day, has not been discussed by the Trial Court.
When there is a clear admission on the part of D.W.1 that on
the very same day, himself and his brother in respect of
their share of property have executed the document Ex.P.1,
the said admitted fact need not be proved under Section 58
of the Evidence Act. The said admission has not been
considered by the Trial Court and lost sight of the same. It is
unfortunate that the Trial Court also while dismissing the
suit in one paragraph has discussed mainly taking note of
the recitals of Ex.D.1 i.e., the reason for cancellation of
earlier sale agreement.
21. It is also clear that earlier agreement of sale
dated 06.09.2012 was only in respect sale of 1 acre 4 guntas
of land belonging to defendant No.1 and the subsequent
agreement of sale-Ex.P.1 dated 08.05.2015 is in respect of
sale of 2 acres 8 guntas of land belonging to defendants
No.1 and 2, and the said Ex.P.1 is executed by both the
defendants. It is also important to note that D.W.3, who is
defendant No.2, states that he came on that day to repay
the amount in favour of the plaintiff. As rightly pointed out
by the counsel appearing for the appellant/plaintiff, when
defendant No.2 (D.W.3) was not a signatory to the earlier
agreement of sale of the year 2012 what was need for him
to come and sign the Ex.D.1 has not been explained by him.
Defendant No.2 also states that he himself and defendant
No.1 (D.W.1) have refunded the amount, and when
defendant No.2 was not a party to earlier sale agreement of
the year 2012, there was no need for him also to come and
repay the amount to the plaintiff. These are the evidence
that has not been considered by the Trial Court in a proper
perspective while considering the material on record.
22. The Trial Court, in paragraph 13, while discussing
the evidence has observed that for having paid the amount
of Rs.17,64,000/-, copy of the cheque or demand draft has
not been placed. But, it is not the case of the plaintiff that
payment was made either by way of cheque or a demand
draft. The Trial Court comes to the conclusion that for
payment of earnest money as per Ex.P.1, no Cheque or
Demand Draft is placed before the Court. The Trial Court
also comes to the conclusion that P.W.1 has admitted in his
evidence that he has executed the deed of cancellation
Ex.D.1, but there is no dispute with regard to earlier sale
agreement and with regard to cancellation and the fact that
both of the defendants joined in execution of document
Ex.P.1, which is a registered document, and both the
defendants have admitted signature in Ex.P.1.
23. Having perused the evidence of P.Ws.1 to 3,
except the admissions with regard to execution of earlier
agreement of sale of 2012 and cancellation of the said sale
agreement in terms of Ex.D.1, nothing is elicited with regard
to Ex.P.1 is concerned except making suggestion to P.Ws.1
to 3 that Ex.P.1 is a concocted document. The evidence of
P.W.1 is very clear that on the same day, both defendants
No.1 and 2 have executed Ex.P.1-sale agreement. P.W.2 is
the attesting witness and P.W.3 is the scribe. The evidence
of P.W.3 that he is the scribe for all the documents is not in
dispute. We have already pointed out that the very
suggestion made to P.W.1 clearly discloses that Ex.P.1 is the
sale agreement and the same was also prepared on
08.05.2015 and these suggestions are made to P.W.1 by the
defendants' counsel. We have already pointed out that
D.W.1 has given a categorical admission that he himself and
his brother have executed the sale agreement-Ex.P.1 and
evidence of P.W.2 is also not discredited, who categorically
deposes with regard to execution of Ex.P.1 and even
suggestion was made that Ex.D.1 cancellation agreement
came into existence before Ex.P.1 and the said suggestion
itself shows that before Ex.P.1 came into existence,
cancellation of document was executed. The evidence of
P.W.3 is also clear that he is the scribe of the relevant
documents. The evidence of P.W.1 to P.W.3 has not been
discredited by the defence except the suggestions. When
such material is available before the Court and in spite of
unequivocal admission given by D.W.1, the Trial Court ought
not to have disbelieved the case of the plaintiff and thereby
committed an error in coming to the conclusion that the
document Ex.P.1 is not proved. The very approach of the
Trial Court is erroneous. Both defendants No.1 and 2 have
also admitted their signatures in Ex.P.1, but contend that
the same is created and the same is not proved.
24. It is also important to note that though witnesses
stated that Ex.D.1 came into existence prior to Ex.P.1 and
timings mentioned in the document it is clear that Ex.P.1
was registered at 4.33 p.m. on 11.05.2015 and
subsequently, agreement was cancelled in terms of Ex.P.D.1
at 4.47 p.m. If no such agreement of Ex.P.1 came into
existence, the question of cancelling the document as per
Ex.D.1 does not arise. No doubt, the Trial Court has given
more credence to the recitals in the document at Ex.D.1 with
regard to reason for cancellation, but the fact is that the sale
agreement was executed in respect of the entire property of
defendants No.1 and 2 to the extent of their respective
shares i.e., 2 acres 8 guntas and the same has been
specifically admitted by himself and his brother. The Trial
Court has ignored this evidence of D.W.1 and has magnified
the reasons assigned in Ex.D.1 for cancellation of earlier sale
agreement. It is also important to note that there is no
pleading in the plaint with regard to earlier sale agreement
of the year 2012, deed of cancellation-Ex.D.1 cancelling the
earlier sale agreement, but the fact is that there was sale
agreement dated 06.09.2012 and payment of sale
consideration of Rs.10,40,000/- has also been admitted in
the written statement itself by D.W.1. The fact that if the
defence of the respondents is to be accepted, then what
made defendant No.2 to make the signature on Ex.P.1 has
not been explained and the fact that he was not a signatory
to the earlier agreement is also not disputed. What made
defendant No.2 to come and sign the document of Ex.P.1 is
also not explained. It is also important to note that when he
was not a party to the earlier agreement dated 06.09.2012
what made him to come and put his signature on Ex.P.1 is
not explained. But he claims that he came to refund the
amount, and when he had not acknowledged any amount
from the plaintiff in respect of the earlier agreement dated
06.09.2012, there was no need to come and join defendant
No.1 to refund the amount. D.W.2, no doubt, is examined on
behalf of the defendants, but he categorically admits that he
doesn't know who are all the witnesses to the document and
his evidence is clear that even though he is signatory to the
document, he has sided with the defendants. The document
Ex.P.1 was registered before the Registrar and recitals
clearly discloses that Rs.17,64,000/- was paid out of
Rs.18,00,000/- and only remaining amount payable was
Rs.36,000/-. It is also important to note that D.W.1 claims
that he is an illiterate, but he claims that he attended the
night classes; and defendant No.2, who has been examined
as D.W.3 categorically admits that he has studied upto SSLC
and he knows reading and writing of Kannada. The
document Ex.P.1 is also in Kannada and the recitals are also
clear with regard to entering into an agreement of sale, the
total sale consideration, payment of earnest money and
balance payable. Having considered that defendant No.2
(D.W.3) was also a party to Ex.P.1 and he too has signed
Ex.P.1, he cannot be considered as an illiterate person, but a
person having worldly knowledge. These are the material
that has not been considered by the Trial Court and, instead,
the Trial Court in one paragraph i.e., paragraph 13 comes to
an erroneous consideration that the entire evidence available
on record in toto both oral and documentary evidence not
suffice to grant decree. Hence, we answer the points in the
affirmative and as a result we pass the following:
ORDER
i) The appeal is allowed.
ii) The impugned judgment and decree, dated
28.08.2018, passed in O.S. No.66/2017 by the
Senior Civil Judge & JMFC, Raibag, is hereby set
aside.
iii) The suit filed by the plaintiff is decreed.
iv) The appellant is directed to deposit balance sale
consideration of Rs.36,000/- and obtain the sale
deed. If the sale deed is not executed by
respondents No.1 and 2 by receiving the balance
amount, the plaintiff is given liberty to have the
sale deed executed in accordance with law.
SD/-
JUDGE
SD/-
JUDGE
KMS
