Karnataka High Court
Boregowda vs Siddegowda on 4 January, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1026/2022 (SP)
BETWEEN
BOREGOWDA
S/O SHIVANANJEGOWDA
AGED ABOUT 70 YEARS
R/AT MAYASAMUDRA VILLAGE
DUDDA HOBLI, HASSAN TALUK
HASSAN-573118
...APPELLANT
(BY SRI HEMANTH KUMAR D, ADVOCATE)
AND
SIDDEGOWDA
S/O LAKSHMEGOWDA
AGED ABOUT 72 YEARS
R/AT MAYASAMUDRA VILLAGE
DUDDA HOBLI, HASSAN TALUK
HASSAN-573118
... RESPONDENT
2
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 07.03.2022
PASSED IN R. A.NO.126/2019 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, HASSAN IN CONFIRMING THE
JUDGMENT AND DECREE DATED 11.06.2019 PASSED IN
O.S.NO.275/2014 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE AND JMFC AT HASSAN AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellant.
2. This appeal is filed challenging the judgment and
decree dated 07.03.2022 passed in R. A.No.126/2019 on the
file of the Additional Senior Civil Judge and JMFC, Hassan in
confirming the judgment and decree dated 11.06.2019 passed in
O.S.No.275/2014 on the file of the I Additional Civil Judge and
JMFC at Hassan.
3. The factual matrix of the case of the
appellant/defendant before the Trial Court that he has not
executed any sale agreement and he had executed only security
document for the loan amount which he has received from the
respondent/plaintiff and the documents which have been
obtained at the time of lending the loan were created as sale
agreement and filed the suit for specific performance of contract.
The Trial Court without considering the recitals mentioned in
document at Ex.P1 proceeded to pass an order directing the
appellant/defendant to execute the sale deed.
4. The learned counsel for the appellant vehemently
contend that no reply was given to the legal notice since the
appellant was an illiterate and hence, the Trial Court has drawn
an adverse inference that the appellant has not denied the
transaction when the notice was given. The main contention of
the counsel for the appellant before this Court that the Trial
Court is not justified in decreeing the suit for specific
performance of contract and though the alleged agreement is a
created document on a signed blank stamp paper and also
committed an error in decreeing the suit for specific performance
of contract though the suit schedule property was a granted
property in favour of the defendant/appellant having non-
alienation clause for a period of 15 years and the appellant has
not executed any agreement and the First Appellate Court also
not justified in confirming the judgment of the Trial Court.
5. It is the specific case of the respondent/plaintiff
before the Trial Court that the appellant/defendant has executed
the agreement of sale for a sale consideration of Rs.89,000/-
vide agreement dated 10.07.2002 and on the date of the
agreement, the defendant had received an amount of
Rs.49,000/- and it is also the case of the respondent/plaintiff
that appellant/defendant had executed continuation of
agreement of sale on 16.07.2004 in respect of the suit schedule
property and received the balance sale consideration of
Rs.40,000/- and the respondent/plaintiff was always ready to
perform his part of contract to have the sale deed in his favour.
The defence set forth by the appellant/defendant that he has not
agreed to sell the property and the document towards security
for the loan was created as sale agreement.
6. The respondent/plaintiff in order to substantiate his
case, examined himself as PW1 and other two witnesses as PW2
and PW3 to prove the said sale agreement and got marked the
documents at Ex.P1 to P7. On the other hand, the respondent
examined the Power of Attorney holder as DW1 and got marked
the document at Ex.D1. The Trial Court after considering both
the oral and documentary evidence decreed the suit in favour of
the respondent/plaintiff. Being aggrieved by the said judgment
and decree, an appeal was preferred before the First Appellate
Court and the First Appellate Court on considering the material
available on record framed the points for consideration that
whether the respondent/plaintiff has proved the execution of the
sale agreement and whether he was always ready to have the
sale deed in his favour and on re-appreciation of the material
available on record confirmed the judgment of the Trial Court
and dismissed the appeal of the appellant/defendant and the
First Appellate Court also disbelieved the contention of the
appellant that it was only a loan transaction and not the sale
transaction. Hence, the present appeal is filed before this Court.
7. Having heard the contention raised by the counsel
for the appellant and also on perusal of the material available on
record it is not in dispute with regard to the signature found on
the document at Ex.P1-agreements of sale and the main
contention of the counsel for the appellant that it was a granted
land and grant was made in the year 1996 and sale transaction
entered in the year 2002 i.e., within a period of 15 years of non-
alienation clause and the same has not been considered by both
the Courts. No doubt, it is not in dispute that the land was
granted in the year 1996 but agreement was entered in the year
2002 i.e., within a period of 15 years. It is also important to
note that in the sale agreement, no time is stipulated in order to
execute the sale deed. But the fact that the appellant/defendant
had received the amount and the same is also not in dispute.
But only contention of the appellant/defendant that in order to
financial constraints, the amount was received as loan. The
respondent/plaintiff in order to prove that it was a sale
agreement relied upon the document at Ex.P1 and also the
evidence of PW2 and PW3. It is also important to note that the
appellant/defendant did not appear before the Court and instead
of that examined his Power of Attorney holder as DW1. Apart
from that the Trial Court also taken note of the original land
grant certificate which was delivered in favour of the
respondent/plaintiff at the time of the loan transaction and the
First Appellate Court also on re-appreciation of both the oral and
documentary evidence taken note of the said fact into
consideration and it is also not in dispute that the
respondent/plaintiff got issued the legal notice on 27.12.2013 as
per Ex.P3 calling upon the appellant/defendant to execute the
sale deed. Though the appellant/defendant has received the
said notice, he failed to give reply to the said notice. If it is
really a loan transaction, same was in the knowledge of the
appellant/defendant and he would have given the reply stating
that it was not a sale transaction it was a loan transaction. But
on perusal of the documents at Ex.P1 it discloses that the same
came into existence in the year 2002 and even after two years of
the first agreement i.e., in the year 2004, the second continued
agreement came into existence and in the said agreement, he
had acknowledged the balance amount of Rs.40,000/-. When
such being the materials available on record that Ex.P1 is the
first agreement of sale and Ex.P2 is the subsequent continued
agreement of sale and the original document also handed over in
favour of the respondent/plaintiff at the time of the transaction,
the very defence of the appellant/defendant that it was only a
loan transaction cannot be accepted and also both the Courts
have considered the material on record and given the finding.
When such being the case, there is no substantive question of
law to decide the issue in the second appeal invoking Section
100 of CPC and admit the same and in order to invoke the
jurisdiction of second appeal, there must be a substantive
question of law and with regard to the defence of the appellant
that it was only a loan transaction, both the Courts have given
the finding that it was not a loan transaction, it was a sale
transaction. Hence, I do not find any grounds to invoke Section
100 of CPC to frame substantive question of law.
8. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A.s if any,
do not survive for consideration and the same stand
disposed of.
Sd/-
JUDGE
SN
