Karnataka High Court
Smt Rathnamma vs Sri Mahadevappa on 15 September, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:33627
RSA No. 179 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 179 OF 2018 (SP)
BETWEEN:
1. SMT. RATHNAMMA
W/O MAHADEVAPPA,
AGED ABOUT 55 YEARS,
R/O UTTAMBALLI VILLAGE,
KOLLEGAL TALUK,
CHAMARAJANAGAR DISTRICT-571440.
...APPELLANT
(BY SRI D.S.HOSMATH, ADVOCATE)
AND:
1. SRI MAHADEVAPPA
SINCE DECEASED BY HIS LRS
1(a) PUTTATHAYAMMA
Digitally signed
by SHARANYA T W/O LATE MAHADEVAPPA
Location: HIGH AGED ABOUT 70 YEARS
COURT OF
KARNATAKA
1(b) MAHADEVAPRABHU
S/O LATE MAHADEVAPPA
AGED ABOUT 58 YEARS
1(c) SHIVAKUMAR
S/O LATE MAHADEVAPPA
AGED ABOUT 52 YEARS
1(d) NANJUNDASWAMY
S/O LATE MAHADEVAPPA
AGED ABOUT 58 YEARS
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RSA No. 179 of 2018
ALL ARE R/O. NO.76, MAIN ROAD
UTTAMBALLI VILLAGE , KOLLEGALA TALUK
CHAMARAJANAGARA DISRICT-571440.
1(e) NAGALAMBIKA
W/O RAJASHEKARAMURTHY
D/O LATE MAHADEVAPPA
AGED ABOUT 45 YEARS
R/O. KEMPANAPALYA VILLAGE
KOLLEGALA TALUK
CHAMARAJANAGARA DISTRICT-571440.
...RESPONDENTS
(BY SRI P.MAHADEVA SWAMY, ADVOCATE FOR
PROPOSED R1[a - e])
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 28.11.2017 PASSED IN
R.A.NO.01/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, KOLLEGALA PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
29.11.2016 PASSED IN O.S.NO.10/2010 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC, KOLLEGAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is listed for admission.
I have heard the learned counsel for the appellant and
also the counsel appearing for the respondents.
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RSA No. 179 of 2018
2. The factual matrix of the case of the
plaintiff/appellant before the Trial Court that suit property
bearing survey No.205/3 measuring 0.76 cents is situated at
Uttamballi village, Kollegal taluk, Chamarajanagar District. The
said property belongs to defendant and he is the absolute
owner of the said property and he is the competent person to
transact with the suit property. The defendant had approached
the plaintiff to sell the suit schedule property and plaintiff
agreed to purchase the suit schedule property for Rs.1,200/-
per cent and defendant agreed to sell the same for the said
amount. The defendant by agreeing to sell the suit schedule
property had executed an agreement of sale dated 03.10.2007
and handed over the possession of said property to the plaintiff
by receiving the sale consideration amount of Rs.72,000/- and
the defendant again executed an agreement with respect to the
suit schedule property seeking extension of time to execute the
registered sale deed on 14.07.2008 and plaintiff was always
ready to have the sale deed and defendant did not come
forward the execute the sale deed and hence filed the suit for
the relief of specific performance.
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RSA No. 179 of 2018
3. In pursuance of the suit summons, defendant
appeared and filed written statement contending that
defendant is not the sole owner and suit schedule property is
the ancestral property and also contend that plaintiff is in
possession of the suit schedule property based on the mortgage
transaction and there was a mortgage transaction between the
plaintiff and defendant and when the defendant offered an
amount of Rs.20,000/- which was received, the plaintiff did not
receive the same and redeemed the mortgage.
4. The Trial Court having considered the pleadings of
the plaintiff and defendant framed the issues and allowed the
parties to lead evidence and accordingly plaintiff examined
herself as PW1 an also examined three witnesses as PWs.2 to 4
and got marked documents Exs.P1 to P23. On the other hand,
defendant himself examined as DW1 and produced the
documents Exs.D1 and D2. The Trial Court having considered
both oral and documentary evidence answered issue Nos.1 to 4
as negative and answered issue Nos.5 to 7 in the affirmative in
favour of the defendant and did not believe the case of the
plaintiff and dismissed the suit. However, ordered the plaintiff
to hand over possession of the suit schedule property to
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RSA No. 179 of 2018
defendant by receiving Rs.20,000/- from the defendant within
three months and also granted the relief of permanent
injunction against the plaintiff. Being aggrieved by the
judgment and decree, an appeal is filed in R.A.No.1/2017. The
First Appellate Court having reconsidered the material available
on record and also considered the grounds urged in the appeal,
formulated the points, whether the Trial Court has committed
illegally while dismissing the suit of the plaintiff for the relief of
specific performance and also formed two points whether the
Trial Court has committed error while dismissing the counter
claim made by the defendant for recovery of possession and
whether judgment of the Trial Court requires interference. The
First Appellate Court having reconsidered the material on
record and also on re-appreciation of both oral and
documentary evidence answered the point No.1 in the negative
in coming to the conclusion that the Trial Court has rightly
dismissed the suit for specific performance. However, allowed
the appeal in part and set aside the counter claim by the
defendant answering point No.2 as affirmative and also given
liberty to defendant to file properly constituted suit based on
his title to recover possession of the suit schedule property
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RSA No. 179 of 2018
against the plaintiff. Being aggrieved by the judgment and
decree of the First Appellate Court, present second appeal is
filed before the Court.
5. The main contention of the counsel appearing for
the appellant that, inspite of the defendant admitted the
signature, but denied execution of agreement of sale and
considering the over all pleadings and evidence of the
respondent shows that, respondent had entered into an
agreement of sale and has not been considered by the Trial
Court as well as the First Appellate Court and committed an
error and hence, this Court has to frame substantive question
of law whether both the Courts are right in opining that the
respondent has not entered into an agreement of sale inspite of
admitting the signature on the document and he understood it
as mortgage deed and also the counsel would vehemently
contend that both the Courts have committed an error in
dismissing the suit on the ground that, signature of the
respondent on the document is not proved ignoring the fact of
admission by the respondent himself about the signature and
hence, this Court has to frame the substantive question of law.
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RSA No. 179 of 2018
6. Per contra, the counsel appearing for the
respondents would vehemently contend that the Trial Court in
detail discussed the oral and documentary evidence and though
they relied upon document Exs.P11 and 12 are sale agreement
and extension of document, no such materials are found in the
documents of Exs.D11 and 12 and nothing whispered anything
about Ex.P11 and document Ex.P12 and also for having paid
the sale consideration of Rs.72,000/-, nothing is placed on
record except examining the witnesses PWs.2 and 3 and PW4 is
only a witness of identifying the signature of attesting witness
and he has not having any knowledge and the scribe of
document has not been examined and Trial Court in detail
discussed the evidence and disbelieved the case of the
appellant. The First Appellate Court also on reconsideration of
both oral and documentary evidence rightly dismissed the
appeal and also discussed in detail with regard to answering
point No.1 that not a case for granting the relief of specific
performance and the very transaction itself is doubtful and
hence, prayed the Court to dismiss the second appeal.
7. Having heard the appellant's counsel and also the
counsel appearing for the respondents, appellant mainly relies
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RSA No. 179 of 2018
upon document of Exs.P11 and P12. The document Ex.P11
according to plaintiff is an agreement of sale and the document
Ex.P12 is a document of extension of time to execute the sale
deed. In order to prove the case of the plaintiff, no doubt
examined four witnesses PWs.1 to 4 and both the Trial Court
and as well as the First Appellate Court taken note of evidence
of PWs.1 to 4 and Trial Court also in paragraph No.18 taken
note of the evidence of PWs.1 to 4 and specifically given the
reasoning that that admittedly none of the witnesses have
identified the signature of defendant in Exs.P11 and 12
documents. Even the signatures of defendant is not marked in
both the documents. One Mariswamy and Puttabasappa are the
attesters to the Ex.P11 and P12. PW2 Puttasubbappa in his
chief examination has stated that defendant approached the
plaintiff and agreed to sell the suit property in favour of the
plaintiff and executed Ex.P11 and said transaction was took
place in his presence only and defendant by receiving an
amount of Rs.72,000/- cash from the plaintiff executed Ex.P11
document on 3.10.2007 in the Sub-registrar Office, Kollegal
and the said document was written by one Jalendra, and he has
not been examined before the Court and also taken note of non
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RSA No. 179 of 2018
examination of the scribe and also taken note of contents of the
documents Exs.P11 and P12 contrary to each other and also
taken note of PW1 in the cross examination he has stated that
scribe of Ex.P12 is one Jalendra, but the said document was
executed by one Nanjaiah, which shows PW1 does not prove
who has written the documents Exs.P11 and P12 and she does
not know the contents of Exs.P11 and P12 and also taken note
of version of PW2 and PW2 says that talks were held in the
house of Mariswamy, but as per the version of PW1 the said
talks were held in the house of defendant and hence comes to
the conclusion that the very execution of documents Exs.P11
and P12 are not proved and comes to the conclusion that it
creates doubt in the mind of the Court with regard to execution
of document Ex.P12 and apart from that taken note of total
extent of the property is mentioned as 76 cents, but in Ex.P11
rate is fixed as Rs.1,200/-. If it is taken as 76 cents, it comes
to Rs.91,200/- and the same is also taken note of by the Trial
Court in paragraph No.32 and as per the document of Ex.P11
only Rs.72,000/- is mentioned and there is no mention with
regard to remaining amount in the said document and all these
discrepancies were taken note of by the Trial Court and
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dismissed the suit. The reasoning of the Trial Court is also re-
analysed by the First Appellate Court considering the grounds
urged in the appeal and also having taken note of Sections 67
and 68 of the Evidence Act also, the First Appellate Court
considered the document Exs.P11 and P12 in paragraph No.47,
reconsidered the evidence of PWs.2 to 4 and apart from that
made an observation that when the defendant denied the
signature, has not resorted to seek any opinion in respect of
the documents Exs.P11 and P12 handwriting and signatures
and no doubt the defendant in the written statement admitted
that their signatures are taken and it was a transaction of
mortgage and not the sale agreement and when the documents
of Exs.P11 and P12 not inspires the confidence of the Court and
creates doubt and the same was also taken note of by the First
Appellate Court while considering the material on record. When
such being the case, merely because the defendant admitted
that the signature was taken on the document, cannot be a
ground to come to a conclusion that Exs.P11 and P12 are
proved. Hence, the very contention of the appellant's counsel
that signatures are admitted and hence it is a case for granting
specific relief cannot be accepted. Even assuming that there is
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a sale agreement, the Court can exercise the discretion under
Section 20 of the Specific Relief Act and having considered the
material on record, the very evidence before the Court i.e.
PW.1 to PW4 not inspires the confidence and hence, both the
Courts have comes to the conclusion that not a case for
granting specific performance and this Court not found any
perversity in the finding of the Trial Court as well as First
Appellate Court, when the scribe has not been examined and
also the witnesses given contradictions i.e. PW1 and also PW2
with regard to where the sale transaction was taken place and
they gives different version that said talks were held in
different places and apart from that documents Exs.P11 and
P12 also not corollary to each other and even sale consideration
mentioned in the document Ex.P11 is Rs.1,200/- and the area
of the property intended to sell is 76 cents, it comes to
Rs.91,200/-, but in the document the sale consideration is
mentioned as Rs.72,000/- and all these materials were taken
by both Courts, i.e. Trial Court as well as First Appellate Court
and hence, no ground is made out to invoke Section 100 of CPC
and not found any perversity in the finding of both the Courts.
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RSA No. 179 of 2018
8. In view of the discussions made above, I pass the
following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
AP
