Karnataka High Court
Smt R Chandrikamma vs J C Narayanappa on 9 June, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.36/2007 (DEC/INJ)
BETWEEN:
1. SMT. R. CHANDRIKAMMA,
AGED ABOUT 50 YEARS,
W/O LATE SRI M.K. BHARGAVAN PILLAI.
2. M.B. KAILASH NATH,
AGED ABOUT 28 YEARS,
S/O LATE M.K. BHARGAVAN PILLAI.
3. M.B. KIRAN KUMAR,
AGED ABOUT 23 YEARS,
S/O LATE M.K. BHARGAVAN PILLAI.
APPELLANTS 1 TO 3 ARE RESIDING AT
NO.520, 11TH MAIN ROAD,
4TH CROSS ROAD, HAL 2ND STAGE,
BANGALORE - 560 008.
4. S. NARAYAN NAIR,
AGED ABOUT 59 YEARS,
S/O SHANKAR PILLAI,
NO.54, NEAR KOTE TEMPLE,
NEW POLICE STATION ROAD,
KRISHNARAJAPURAM,
BANGALORE-560 036. ... APPELLANTS
(BY SRI AMEYA FADNIS AND
SRI MUHAMMAD SHAMIL, ADVOCATES)
2
AND:
J.C. NARAYANAPPA,
S/O LATE CHIKKARAMAIAH,
AGED ABOUT 55 YEARS,
JINKETHIMMANAHALLI VILLAGE,
VARANASI, BIDARAHALLI HOBLI
BANGALORE SOUTH TALUK.
NOW BANGALORE EAST TALK,
BANGALORE - 560 036 ... RESPONDENT
(BY SRI G.R.GURUMATH, ADVOCATE [ABSENT])
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 28.09.2006
PASSED IN R.A.NO.99/2005 ON THE FILE OF THE II ADDL.CIVIL
JUDGE (SR.DN.), BANGALORE RURAL DISTRICT, BANGALORE,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT
AND DECREE DATED 22.3.2005 PASSED IN O.S.NO.25/1997 ON
THE FILE OF THE PRL. II CIVIL JUDGE (JR.DN.), BANGALORE
RURAL DISTRICT, BANGALORE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.06.2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants. The learned
counsel for the respondent is absent and hence taken as no
arguments.
2. This appeal is filed challenging the judgment and
decree dated 28.09.2006, passed in R.A.No.99/2005, on the file
of the II Additional Civil Judge (Sr.Dn.), Bangalore Rural District,
Bangalore.
3. The factual matrix of the case of the plaintiffs before
the Trial Court is that one M.K.Bhargavan Pillai, plaintiff No.1
who is the husband of appellant No.1 herein, father of appellant
Nos.2 and 3 herein and plaintiff No.2 Narayana Nair, who is
appellant No.4 in this appeal had filed a suit in O.S.No.25/1997
contending that they are entitled for the relief of permanent
injunction restraining the defendant from alienating the suit
schedule property or any portion of the same to any person or
persons and later got amended the plaint for declaration that the
plaintiffs are entitled to secure the prospective purchasers in
respect of sites which are demarcated in the suit schedule
property and call upon the defendant to execute such sale deeds
in favour of the prospective purchasers and receive the sale
consideration therefor and consequently for mandatory
injunction against the defendant directing him to execute the
sale deeds in respect of various sites demarcated in the suit
property in favour of the prospective purchasers convening the
title.
4. It is the contention of the plaintiffs in the original suit
that the defendant is the absolute owner of the suit schedule
property and he was in possession of the same. Nearby the suit
property, the owners of the other lands had converted their land
for non-agricultural purpose and various sites had come up
nearby the suit property. Therefore, the defendant also thought
of forming the sites in the suit property. He was in search of
person who could develop the suit property, form the layout by
investing the amount. The defendant and plaintiff Nos.1 and 2
entered into a contract for the development of the suit property
and forming the layout by investing the amount given by the
plaintiffs. Both the parties entered into an agreement on
14.02.1994 with terms and conditions regarding development of
the suit property and forming the layout. As per the terms of
the agreement, the plaintiffs have to form the sites and the
defendant shall sell the sites to the persons nominated by the
plaintiffs and the plaintiffs shall pay Rs.35,000/- to the
defendant for a site measuring 12,000 sq.ft. At the time of
execution of the agreement, the plaintiffs had paid Rs.1,00,000/-
which was acknowledged in the agreement of sale deed dated
14.02.1994. As per the said agreement, the defendant had to
form the layout and develop the said land to sell the sites to
various persons. After execution of the said agreement, the
plaintiffs have paid the amount to the defendant on 16.01.1995
through cash and cheque, in all an amount of Rs.2,25,000/- and
the defendant acknowledged the aforesaid payment in the
agreement of sale. The plaintiffs were hoping that after
receiving the amount, the defendant will form the sites so as to
enable the plaintiffs to find out the purchasers and sell the sites
to them. But the defendant did not form any layout or form the
sites. The plaintiffs made repeated requests to the defendant to
comply with the terms of the agreement. The defendant failed
to do so. Therefore, the plaintiffs requested the defendant to
execute an appropriate agreement in their favour authorizing
them to develop the schedule property forming of the layout and
sites. The defendant agreed to execute an agreement to that
effect.
5. On 18.01.1995, both the plaintiffs and the defendant
entered into an agreement for the development of the suit
property and sale of the sites with other conditions mentioned in
the agreement dated 18.01.1995. The defendant acknowledged
the receipt of Rs.2,25,000/- under the agreement dated
18.01.1995. On the date of agreement, the defendant put the
plaintiffs in possession of the suit property to enable them to
form the layout, form sites, road and drilling of the borewell etc.
Since 18.01.1995, the plaintiffs were in actual possession of the
suit property. They formed layout in a portion of the suit
property demarcating the sites and formed the sites, drainage
and dug the borewell in the suit property. The plaintiffs dug the
borewell through Satya Sai Borewell and paid Rs.15,385/- to
them. Electricity supply was taken to the said borewell by the
plaintiffs. Since the defendant was the owner of the property,
the electricity supply was obtained in the name of the defendant
and the amount was spent by the plaintiff. In the month of
February 1995, the plaintiffs were able to form layout of the suit
sites and intimated the defendant to execute the appropriate
said deed in favour of the prospective purchasers. Accordingly,
the defendant executed eight sale deeds in favour of eight
persons and received the amount in respect of the sites sold by
them over and above Rs.35,000/- in respect of each site as per
the terms of the agreement dated 14.02.1994. The defendant
pleaded difficulty to repay the amount and paid Rs.25,000/- by
way of cash on 28.02.1995. The plaintiffs acknowledged the
said amount by executing a valid receipt. After sale of the said
sties, the plaintiffs have demarcated about 50 sites in the layout
and they have requested orally to the defendant to execute
appropriate sale deeds in favour of the prospective purchasers
and receive the money as agreed under the agreement. But the
defendant tried to evade the plaintiffs to execute the sale deed.
The plaintiffs have written two letters on 27.11.1996 and
09.12.1996 requesting the defendant to execute the sale deed to
the prospective purchasers as per the terms of the agreement.
The defendant did not reply to the said letters and the letters are
not returned to the plaintiffs. Therefore, it is presumed to be
served on the defendant. As per the terms of the agreement,
the plaintiffs have to secure the prospective purchasers in
respect of purchase of definite sites and call upon the defendant
to execute the sale deeds in respect of particular sites and
receive the sale consideration as mentioned in the agreement.
The defendant is under obliteration to perform the contract and
the plaintiffs are entitled to such declaration as the defendant
has not complied with the terms of the contract even though the
plaintiffs were all along ready and willing to perform their part of
the contract. Hence, they filed a suit at the first instance for the
relief of permanent injunction and mandatory injunction and got
it amended for declaration to execute the sale deed in favour of
the prospective purchasers.
6. In pursuance of the suit summons, the defendant
appeared and filed the written statement admitting the terms of
agreement of sale dated 14.02.1994 in part and denied the
payment of Rs.25,000/- on 16.01.1995 as claimed by the
plaintiffs. The defendant also denied the execution of agreement
dated 18.01.1995 contending that the said document was
manipulated, fabricated and created by the plaintiffs by playing
fraud and that no possession was handed over to the plaintiffs as
claimed under the agreement dated 18.01.1995. It is contended
that in pursuance of the agreement dated 14.02.1994, the
plaintiffs could not secure even single prospective purchaser
even though 11 months was elapsed from the date of agreement
of sale and the defendant has sent the legal notice dated
03.09.1994 to the plaintiffs and there was no response and the
plaintiffs have acknowledged the said notice and after the period
of agreement, the plaintiffs demanded Rs.25,000/- out of the
advance amount paid with further requests of execution of eight
sale deeds to be executed before the end of February. In
pursuance of the said requests, the defendant had executed
eight sale deeds and collected Rs.36,000/-, while the plaintiffs
have collected in all Rs.63,000/- on account of the execution of
the eight sale deeds for a total consideration of Rs.3,51,000/-.
The plaintiffs played fraud on the defendant and created an
endorsement in the agreement of sale deed 14.02.1994
regarding the payment of Rs.25,000/- on 16.01.1995 and the
defendant has not received any such amount from the plaintiffs.
The defendant has made a lot of improvement in the suit
property and he is in possession and he has secured the electric
connection and got constructed the pumphouse, etc. in the suit
property. The plaintiffs have not made any improvement as
alleged in the plaint. The plaintiffs after receipt of Rs.25,000/-
from the defendant on 28.02.1995, packed off so far the said
agreement of sale dated 14.02.1994 is concerned and hence
prayed the Court to dismiss the suit.
7. Based on the pleadings of the parties, the Trial Court
framed the issues and additional issues and allowed the parties
to lead their evidence. Accordingly, the plaintiffs have examined
in total four witnesses and got marked the documents at Exs.P.1
to 11(a). On the other hand, the defendant examined himself as
D.W.1 and got marked the documents at Exs.D.1 to 15. The
Trial Court having considered both oral and documentary
evidence placed on record, decreed the suit restraining the
defendant from alienating the suit property or any portion of the
same to any person or persons and declared that the plaintiffs
are entitled to secure the prospective purchasers in respect of
various sites demarcated in the suit property and directed the
defendant to execute the sale deeds in favour of said prospective
purchasers within two months from the date of order.
8. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed by the defendant in
R.A.No.99/2005. The grounds urged in the appeal is that the
Trial Court has committed an error in coming to the conclusion
that the plaintiffs have proved the execution of the documents,
but failed to take note of the fact of non-production of the
original documents by the plaintiffs. It is contended that it is the
duty of the plaintiffs to mention in whose possession the original
documents are there and the plaintiffs do not mention the same
and they have filed an application calling for the documents and
the said application was rejected. The learned Trial Judge
admitted the xerox copy of the agreement dated 18.01.1995 and
held that it was proved. The very approach of the Trial Court is
erroneous. The learned Trial Judge failed to appreciate that the
sale deed dated 18.01.1995, was a created document and failed
to appreciate the evidence of P.W.3 and P.W.4 to that effect.
The learned Trial Judge failed to consider the application filed by
the appellant under Section 340 of Cr.P.C. to register the case
with regard to creation of the document and failed to take note
of receipt of Rs.25,000/- and committed an error in coming to
the conclusion that an agreement came into existence on
18.01.1995 and received an amount of Rs.25,000/-.
9. The First Appellate Court having considered the
grounds urged in the appeal memo, formulated the points
whether the plaintiffs have proved the execution of the
agreement of sale dated 18.01.1995 and under the said
agreement, the defendant has handed over the possession to the
plaintiffs, whether the plaintiffs have proved the alleged
interference by the defendant and whether the suit in the
present form and reliefs sought is maintainable and whether it
requires interference of the Court. The First Appellate Court
having reanalyzed both oral and documentary evidence placed
on record, answered point Nos.1 to 3 in the negative and point
No.4 in the affirmative and allowed the appeal and set aside the
judgment and decree of the Trial Court. Hence, the plaintiffs
have filed the second appeal before this Court.
10. The main contention urged in the second appeal by
the appellants/plaintiffs before this Court is that the First
Appellate Court committed an error in reversing the finding of
the Trial Court. There is no dispute with regard to the execution
of the agreement dated 14.02.1994, which is marked as Ex.P.1.
The First Appellate Court failed to take note of the fact that the
original of the agreement dated 18.01.1995, which is marked as
Ex.P.3 was in the custody of the defendant and photostat copy of
the same duly authenticated before the notary has been handed
over to the plaintiffs and therefore there was no necessity for the
plaintiffs to say in the plaint that the original of Ex.P.3 has been
with the defendant. The First Appellate Court committed an
error in finding fault with the plaintiffs as to the non-disclosure of
the original of Ex.P.3 being with the defendant. The Courts
below failed to consider the payment of Rs.25,000/- in terms of
Ex.P.2, which bears the signature of the defendant and he has
not denied the signature and on the other hand, has admitted
the same. The finding recorded by the First Appellate Court that
the defendant has not acknowledged a sum of Rs.25,000/- is
opposed to Ex.P.2. The First Appellate Court failed to notice the
issues framed by the Trial Court on the basis of the pleadings
and the burden is cast upon the defendant concerning Ex.P.3
since the defendant has put forward a case that by playing fraud
on the defendant Ex.P.3 has been fabricated, forged and
created. The Trial Court while considering the evidence has
rightly come to the conclusion that the defendant has not
discharged the burden. The very approach of the First Appellate
Court is erroneous and when the plaintiffs have proved the
documents of Exs.P.1 to 3 and when the defendant took the
defence that the document is created, ought to have proved the
same. But erroneously comes to the conclusion that burden is
shifted on the defendant and when the defendant pleads that
document is created and forged, burden lies on him to prove the
same and not on the plaintiffs. The plaintiffs themselves have
produced the document Ex.P.3 stating that original is with the
defendant.
11. The learned counsel would contend that P.W.3 and
P.W.4 being the attestors of Ex.P.3, have deposed before the
Court with regard to the execution of the document Ex.P.3 and
the very approach of the First Appellate Court that the property
should have been evaluated at market value and ought to have
paid the Court fee of Rs.60,00,000/- is without any basis and
relief is not sought for any enforcement of agreement of sale and
relief is sought for in terms of Ex.P.3 to direct the defendant to
execute the sale deed by receiving the sale consideration and
the fact that eight sale deeds were executed is not disputed in
terms of the contract between the parties. The very approach of
the First Appellate Court that the suit itself is not maintainable is
erroneous and hence it requires interference of this Court.
12. This Court having considered the grounds urged in
the appeal, formulated the substantial question of law:
"Whether the Lower Appellate Court had erred in
law in holding that the suit was not maintainable."
13. The learned counsel for the appellants during the
course of his argument would vehemently contend that the land
originally belongs to the defendant measuring 4 acres 29 guntas
and executed the agreement on 14.02.1994 by receiving an
amount of Rs.2,00,000/- and also received Rs.25,000/- by
executing the subsequent agreement, which is marked as Ex.P.3
on 18.01.1995. The learned counsel would contend that in
terms of the contract between the parties, eight sale deeds are
executed and the plaintiffs only brought the prospective
purchasers to sell the plots, which are formed in the subject
matter of land and the documents also marked as Exs.D.4 to 11.
It is also contended that the sale price is fixed as Rs.35,000/- to
each site and above and over the said amount should go to the
plaintiffs and the plaintiffs only received an amount of
Rs.25,000/- out of Rs.63,000/- payable to the plaintiffs. The
defendant evaded to come forward to execute the remaining sale
deed and letter was also issued and inspite of it, did not come
forward to execute the sale deed and hence filed a suit for bare
injunction and also sought for declaration. The very approach of
the First Appellate Court that suit itself is not maintainable is not
correct.
14. P.W.3 is the wife of plaintiff No.1 and she has been
examined since plaintiff No.1 passed away during the pendency
of the suit after examination. P.W.4 is the attesting witness to
both Ex.P.1 and Ex.P.3. The very document of Ex.P.1 is
produced by the defendant. The learned counsel for the
appellants would contend that an application was filed before the
Court calling upon the defendant to produce the original Ex.P.3,
but he denied the same is not executed and the Court fails to
take note of the signature available on the document and also
fails to take note of the fact that in terms of agreement dated
18.01.1995, an additional amount of Rs.25,000/- is paid through
cheque and also produced the document to that effect
summoning the same from the bank and inspite of it, the First
Appellate Court committed an error that document of Ex.P.3
dated 18.01.1995, has not been proved and the suit itself is not
maintainable and hence the learned counsel for the appellants
prayed this Court to reverse the finding of the First Appellate
Court.
15. Having heard the learned counsel for the appellants
and keeping in view the grounds urged in the second appeal as
well as the material available on record, this Court has to
examine whether this Court can invoke Section 100 of CPC.
Admittedly, there is no dispute with regard to the fact that there
was an agreement between the plaintiffs and the defendant in
terms of Ex.P.1 and also no dispute with regard to the fact that
an amount of Rs.2,00,000/- was received by the defendant in
terms of Ex.P.1. The only dispute before the Court is that Ex.P.3
was not executed and possession was not delivered in favour of
the plaintiffs and a settlement was made in favour of the
plaintiffs by giving an amount of Rs.25,000/-. The findings
before this Court is divergent finding. The Trial Court has
decreed the suit as sought in the plaint and restrained the
defendant in executing any sale deed and further directed to
execute the sale deed in two months as agreed in terms of
Ex.P.3. This Court has to take note of the documentary
evidence as well as oral evidence. Admittedly, the plaintiff No.1
who has been examined as P.W.1 passed away during the course
of evidence and hence his legal representative was examined as
P.W.2, who is the son of plaintiff No.1 and also examined the
wife of plaintiff No.1 as P.W.3 and also one of the attesting
witness as P.W.4 and relied upon the documents Exs.P.1 to
11(a).
16. In the cross-examination, P.W.2 admits that he does
not know where Ex.P.3 was prepared since P.W.2 was not
present at the time of execution of the document. P.W.3 is none
other than the wife of plaintiff No.1. She claims that she signed
the document in her house and apart from that, one
Komanakuttan Raju has signed the same. It is suggested that
Ex.P.3 was created by her husband and the same was denied.
The other material witness is P.W.4, who claims that he has
attested Ex.P.1, Ex.P.2 and Ex.P.3. He says that Ex.P.3 was
signed by the plaintiffs and the defendant in the house of
plaintiff No.1 M.K.Bhargavan Pillai. Sri Narayanappa, the
defendant got Ex.P.3 typed and brought to the house of
M.K.Bhargavan Pillai and later M.K.Bhargavan Pillai and other
parties took signatures to the document on all the pages and he
has attested the document. The document was got notarized
and thereafter gave the notarized copy to the plaintiffs and the
original was retained with the defendant. In his presence only
he has signed the document. He admits in the cross-
examination that he was working as a part time employee i.e.,
as Account Assistant with the deceased plaintiff No.1. He admits
that he has not attested the shara Ex.P.2(b). It is suggested
that he was not personally present at the time of payment of
Rs.25,000/- to the defendant and the same was denied.
However, he says that Rs.25,000/- was given to the defendant
in his presence by way of cheque. The witness volunteers that
on 18.01.1995, there was an agreement entered into between
the plaintiffs and defendant marked as Ex.P.3 and he has
attested the same 2-3 days prior to Ex.P.3. An amount of
Rs.25,000/- by way of cheque was handed over to the
defendant. The defendant himself has signed Ex.P.3 in his
presence and he has only attested the document at the
residence of the deceased plaintiff No.1. It is suggested that
Ex.P.3 is a forged document prepared by the plaintiffs and the
same was denied. It is suggested that the defendant has not
put the signature on Ex.P.3 and the said suggestion was also
denied. The witness identifies the signature of the defendant in
Ex.P.3 which is marked as Ex.P.3(a). Ex.P.1 is the original
agreement and the same is produced through the defendant,
which was in his custody and also there is a further endorsement
for having received the additional amount in terms of Ex.P.2.
The disputed document is Ex.P.3. This document came into
existence on 18.01.1995. Ex.P.4 is with regard to the layout
plan and Ex.P.5 is the letter sent to the defendant on
27.11.1996 and Ex.P.5(a) is postal receipt. The letter dated
09.12.1996 is Ex.P.6 and Ex.P.6(a) is the postal receipt. Ex.P.7
is in respect of payment of amount of Rs.40,000/- in favour of
the defendant on 09.12.1994 and other document Ex.P.8 is for
having made the payment of Rs.25,000/- on 16.01.1995 to the
defendant. The payment was made on 17.01.1995.
17. The defendant who has been examined as D.W.1 in
his evidence reiterated the averments of the written statement.
He admits the signature found in Ex.P.1 and the same is
produced by himself, but he denies the document of Ex.P.3
contending that the same is created by the deceased plaintiff
No.1 by forging his signature and also got marked the
documents in exhibit 'D' series i.e., sale deeds. He was
subjected to cross-examination. In the cross-examination, he
admits that he knows reading and writing in Kannada, but he
used to sign in English and he is having acquaintance with the
plaintiffs from 1997. He also admits that earlier he entered into
an agreement with Venkatappa S/o Venkataswamy and when he
intended to sell the property, the said Venkatappa got issued
notice through advocate Sri Kalyan Basavaraj and the same is
confronted and marked as Ex.P.9 and also he gave reply in
terms of Ex.P.10. He admits that Venkatappa has filed a suit
against him. He admits that in terms of Exs.D.4 to 11, he has
received the sale consideration through cheque and volunteers
that only received in seven cases and also admits that he has
received the sale consideration of Rs.36,000/- while executing
the sale consideration in favour of Babu Daniel. He admits that
before filing the affidavit, he came to know about the averments
of the affidavit through his counsel and signed the same. He
says that in the said affidavit, it may be mentioned that
Rs.3,51,000/- was received. When the sale deeds are executed,
out of Rs.36,000/- sale consideration, he has paid Rs.25,000/- to
the plaintiffs and he has got the document and he has already
produced the same before the Court. It is suggested that the
document Ex.D.15 does not pertain to the same and the same
was denied. Ex.P.2 was confronted and the witness admits his
signature as Ex.P.2(c) and he admits the signature on Ex.P.2 on
the last page and the same is marked as Ex.P.2(d). He admits
that in Exs.P.1 and 2, there is a recital with regard to in future
they can make separate new agreement.
18. It is suggested that on 16.01.1995, the plaintiffs
gave an amount of Rs.25,000/- by way of cheque and the same
was denied. It is suggested that cheque was encashed by him in
Vijaya Bank and the same was denied. The document of Ex.P.3
was confronted to him and he denied the signature. However,
he admits his signature found in the written statement. The
signature found in Ex.P.3 is denied and marked as Ex.P.3(b) and
the signature found in Ex.P.11 is marked as Ex.P.11(a). It is
suggested that Ex.P.3(b) and Ex.P.11(a) are similar and the
witness did not agree the same. It is suggested that an
agreement was entered into on 18.01.1995 in terms of Ex.P.3
and the same was denied. It is suggested that on that day,
possession was delivered and the same was denied. It is
suggested that after handing over the possession, the plaintiffs
only formed the layout and in terms of contract, he did not come
forward to execute the sale deed and the same was denied. He
admits that for having received an amount of Rs.2,00,000/- from
the plaintiffs and having returned the same he is not having any
document. He admits that temporary injunction was granted in
the suit and a suggestion was made that the same was
continued in the appeal also, but he is not aware of the same. It
is suggested that Ex.P.3 original document is in his custody and
the same was denied. He admits that the sites are formed in
terms of Ex.P.4.
19. Having reanalyzed both oral and documentary
evidence placed on record, there is no dispute with regard to
Ex.P.1 and in respect of Ex.P.2 though denied, when signatures
are confronted with regard to Ex.P.2, the defendant admits the
same. It is important to note that D.W.1 in the cross-
examination admits that in terms of Exs.P.1 and 2, powers are
reserved to execute one more new agreement and when such
admission is available before the Court, Ex.P.3 signature found
on the document has been denied. It is important to note that
in terms of Ex.D.2, an amount of Rs.25,000/- was received by
the plaintiffs and this payment is made on 28.02.1995
subsequent to the agreement of document Ex.P.3. Ex.P.3 is
dated 18.01.1995. The document also clearly discloses that the
same is given from the advance and also it is mentioned that
payment for the agreement of the land deal in respect of
Sy.Nos.45/2, 44/2 and 43/2. When such being the documents
which is relied upon by the defendant, it is clear that the parties
were in good terms as on 28.02.1995 i.e., subsequent to
18.01.1995. It is important to note that Exs.P.7 and 8 discloses
that payment was made in favour of the defendant through
Vijaya Bank and also disputed amount is in terms of Ex.P.8 and
the cheque was issued in favour of the defendant and the same
was encashed through Vijaya Bank in terms of Ex.P.8 and the
same is honoured on 17.01.1995 i.e., one day before the
execution of Ex.P.8. Hence, though the defendant denied that
he has not received Rs.25,000/- in terms of Ex.P.3, when the
encashment is made from Vijaya Bank on the previous date of
the document of Ex.P.3, the very denial of the document of
Ex.P.3 cannot be accepted.
20. The First Appellate Court fails to take note of this
material on record when the cheque was made in favour of the
defendant and the same was paid in terms of Ex.P.8 by
summoning the same from the Bank for having accepted the
amount. It is important to note that when the defendant
contend that he has not executed the document in terms of
Ex.P.3, what made him to make the payment of Rs.25,000/- in
favour of the plaintiffs on 28.02.1995, there is no proper
explanation, but no doubt eight sale transactions were taken
place in terms of Exs.D.4 to 11. It is clear that there was a
contract between them that the plaintiffs have to secure the
prospective purchasers and the defendant has to execute the
sale deed in respect of the same. It is important to note that in
terms of cross-examination, D.W.1 admits that he has received
an amount of Rs.2,00,000/- from the plaintiffs and for having
repaid the entire amount of Rs.2,00,000/-, he is not having any
document. When such being the case, except the document of
Rs.25,000/- was paid and when the document is very clear that
an amount of Rs.2,25,000/- is paid in favour of the defendant,
the only dispute is with regard to Rs.25,000/- paid through
cheque and Ex.P.8 is clear for having received an amount of
Rs.25,000/-. When such being the case, the First Appellate
Court ought not to have disbelieved the document of Ex.P.3.
21. It is important to note that in terms of the contract
between the parties, Exs.D.4 to 11 are executed i.e., subsequent
to the agreement entered into between the parties. This Court
has pointed out that the plaintiffs have acknowledged an amount
of Rs.25,000/- by issuing the receipt in favour of the defendant
on 28.02.1995 i.e., also subsequent to the agreement and the
material placed before this Court is for having repaid the amount
of Rs.25,000/-. The material discloses that the defendant has
received an amount of Rs.2,25,000/- in total and the defendant
having received the money for the development of his property,
agreed to sell the sites which have been formed in terms of the
agreement to the prospective purchasers of the plaintiffs. The
suit is filed for the relief of declaration, permanent injunction and
other consequential relief of mandatory injunction. The Trial
Court having considered the material on record, comes to the
conclusion that in terms of the contract between the parties, the
plaintiffs are entitled to secure the prospective purchasers in
respect of various sites demarcated in the suit property in terms
of Ex.P.4 and directed the defendant to execute the sale deeds
in favour of the prospective purchasers. The very approach of
the First Appellate Court that the very suit itself is not
maintainable is an erroneous finding and no doubt, an
observation is made that without payment of the Court fee, the
said relief is sought. The First Appellate Court fails to take note
of the fact that there was no any agreement of sale between the
plaintiffs and the defendant for sale and only in terms of the
contract, it was agreed to execute the sale deed when the
plaintiffs brings the prospective purchasers and the same does
not create any interest in respect of the suit schedule property.
But only with regard to the investment made by the plaintiffs for
development of the property, the contract was entered into
between the parties and the very nature of the document came
into existence between the plaintiffs and the defendant has not
been taken note of by the First Appellate Court in a proper
perspective. When the material is clear that the defendant
received an amount of Rs.2,00,000/- and though disputed
Rs.25,000/- was not paid, Ex.P.8 is very clear that the said
payment was made in favour of the defendant on the previous
date of agreement and the First Appellate Court ought to have
taken note of the same.
22. The First Appellate Court taken note of the fact that
there is no document for having repaid the amount in favour of
the plaintiffs and only admitted the payment of Rs.25,000/- i.e.,
on 28.02.1995 and hence proceeded in an erroneous approach
to set aside the judgment and decree of the Trial Court. The
First Appellate Court ought to have moulded the relief by taking
note of the admission for having paid Rs.2,25,000/- and also the
fact that the sites are formed in the said survey number in terms
of contract as per Ex.D.4. But it is the claim of the plaintiffs that
they have developed the property when the defendant failed to
perform his obligation in terms of document Ex.P.1 and
admittedly the sites are formed by developing the property and
some of the sale deeds came into existence in terms of Exs.D.4
to 11. These sale deeds are executed on 28.02.1995 i.e.
subsequent to Ex.P.3 and also the material discloses that for
having made the payment of Rs.25,000/-, a receipt is also
issued by the plaintiffs on the very same day. When the sale
deeds Exs.D.4 to 11 came into existence on 28.02.1995 and in
respect of remaining sites transaction was not taken place,
atleast the First Appellate Court ought to have moulded the relief
for granting the amount which has been received by the
defendant for the purpose of formation of sites. No doubt, the
plaintiffs also claim that they themselves have developed the
property by investing the money, but no material is placed
before the Court. Having dug the borewell and taken the
electricity and the same stands in the name of the original owner
and naturally some will be in the name of the original owner.
These aspects are not taken note of by the First Appellate Court
and if no document came into existence in terms of Ex.P.3, what
made the defendant to execute the sale deed in the month of
February 1995, subsequent to document Ex.P.3 has not been
considered by the First Appellate Court while setting aside the
judgment and decree of the Trial Court and hence I answer the
substantial question of law in the affirmative. The First Appellate
Court committed an error in re-appreciating the material on
record and given an erroneous finding and hence made out a
case to invoke Section 100 of CPC. However, in view of the
relief as sought, the plaintiffs are not entitled for the same, but
by moulding the relief, the plaintiffs are entitled for decree of the
amount paid with 24% interest since the transaction is
commercial transaction and the plaintiffs invested the money for
the development of the property for getting profit in the same.
23. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The respondent is directed to refund the
amount of Rs.2,00,000/- with 24% interest
from the date of Ex.P.1. The appellants shall
make the payment of Court fee on the amount
and thereafter office is directed to draw the
decree.
Sd/-
JUDGE
MD
