Smt. Maya Cherian vs Narayana Rao
2023 Latest Caselaw 6579 Kant

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                                                            NC: 2023:KHC:34018
                                                           RSA No. 260 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 19TH DAY OF SEPTEMBER, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                    REGULAR SECOND APPEAL NO. 260 OF 2020 (DEC/INJ)

                   BETWEEN:

                   1.    SMT. MAYA CHERIAN
                         W/O. LATE I.C.CHERIAN,
                         AGED ABOUT 72 YEARS,
                         RESIDING AT HALEPETE, N.R.PURA,
                         CHIKKAMAGALURU DISTRICT.

                   2.    JOBY CHERIAN
                         SON OF LATE I.C. CHERIAN,
                         AGED ABOUT 47 YEARS,
                         RESIDING AT HALEPETE,
                         N.R. PURA TALUK,
                         CHIKKAMGALURU DISTRICT.

                   3.    PAUL CHERIAN
Digitally signed
by SHARANYA T            S/O I.C. CHERIAN,
Location: HIGH           AGED ABOUT 41 YEARS,
COURT OF
KARNATAKA                ADVOCATE,
                         R/AT NO. HALEPET,
                         N.R. PURA,
                         CHIKKAMGALURU DISTRICT.
                                                                 ...APPELLANTS

                               (BY SRI NIKHILESH RAO M., ADVOCATE)
                   AND:

                         NARAYANA RAO
                         SON OF LATE A RAMA RAO
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                                        NC: 2023:KHC:34018
                                     RSA No. 260 of 2020




1.   SMT. SUDHA
     WIFE OF SAMPATH
     MAJOR
     R/AT C/O SEETHARAMA RAO
     ADVOCATE,
     1ST CROSS, BASVANAGUDI,
     SHIVAMOGGA.

2.   SMT.SUMA
     WIFE OF NAGARAJ,
     MAJOR,
     R/AT C/O. SEETHARAMA RAO,
     ADVOCATE, 1ST CROSS,
     BASAVANAGUDI,
     SHIVAMOGGA.

3.   A.SEETHARAMA RAO
     SON OF LATE A RAMA RAO
     AGED ABOUT 95 YEARS,
     R/AT VASAVANAGUDI EXTENSION,
     SHIVAMOGGA.

4.   K.V. VASANTHAKUMAR
     S/O LATE G.S. VASUDEVAIAH GOWDA,
     AGED ABOUT 63 YEARS,
     LAKSHMI KANTHA CRUSHER UNIT,
     R/AT HALEPETE,
     N R PURA,
     CHIKKAMAGALURU DISTRICT
                                           ...RESPONDENTS
         (BY SRI.SACHIN.B.S., ADVOCATE FOR C/R4)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.07.2019
PASSED IN RA.NO.11/2018 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, N.R.PURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 02.06.2018
PASSED IN O.S.NO.103/2010 ON THE FILE OF THE CIVIL
JUDGE AND JMFC, N.R.PURA.
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                                            NC: 2023:KHC:34018
                                           RSA No. 260 of 2020




     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

Heard the learned counsel for appellant. This

matter is listed for admission.

2. The factual matrix of the case of the plaintiff

before the Trial Court that the defendant had executed a

sale agreement dated 02.12.1988 and he had agreed to

sell the suit schedule property for a sum of Rs.11,000/-

and received an amount of Rs.2,000/- on the date of the

alleged sale agreement. It is the contention that the

defendant No.1 has received an amount of Rs.1,000/-

each on 06.,06.1989, 12.06.1989, 15.06.1990,

18.08.1990 and received an amount of Rs.2,000/- on

26.12.1991 and the deceased I.C.Cherian has received all

this amount during his life time and after his death the

plaintiff No.1 has demanded the defendant No.1 for

execution of the sale deed. The plaintiff is always ready

and willing to execute the sale deed.

NC: 2023:KHC:34018 RSA No. 260 of 2020

3. The defendants have filed the written statement

contending that the defendant No.1 has no independent

right to execute any sale agreement since the suit

schedule property is the joint family property and also the

suit is bad for non joinder of necessary party and the

husband of the plaintiff No.1 deceived the defendant by

obtaining the signature by misleading him. The suit is filed

without the relief of declaration is not maintainable.

4. The Trial Court having considered the pleadings of

the parties framed the issues and allowed the parties to

substantiate their contention. The plaintiffs in order to

substantiate their case examined son of the Cherian and

also examined one witness as PW2 and got marked the

documents as Ex.P1 to Ex.P17. On the other hand, the

defendants have examined two witnesses as DW1 and

DW2 and not marked any documents.

5. The Trial Court having considered the material

available on record, not believed the case of the plaintiff

and also the evidence of PW2 and answered the issues in

NC: 2023:KHC:34018 RSA No. 260 of 2020

the negative with regard to the sale agreement and

payment of sale consideration and dismissed the suit.

6. Being aggrieved by the judgment and decree of

the Trial Court an appeal is filed in RA 11/2018. The

appellate Court has considered the grounds urged in the

appeal, formulated the point as whether the Court below

has committed an error in holding that the plaintiffs have

failed to prove the execution of sale agreement and also

with regard to the payment of advance amount which is

paid on different dates and answered all the points as

negative which is concurrent with the finding of the Trial

Court and dismissed the appeal. Hence, the present

second appeal is filed before this Court.

7. The counsel appearing for the appellants would

vehemently contend that both the Courts have committed

an error in coming to the conclusion that sale agreement

was not executed and also not paid the sale consideration

and the very approach of both the Courts is erroneous and

in spite of defendants have clearly admitted the execution

of agreement of sale in their written statement and the

NC: 2023:KHC:34018 RSA No. 260 of 2020

Trial Court erroneously comes to the conclusion that sale

agreement was not executed and shifted burden on the

plaintiff instead of shifting the burden on defendant. The

very approach of both Courts is erroneous and fail to

consider the material available on record. Hence, this

Court has to admit and frame substantial question of law

that the Trial Court erred in not drawing an adverse

inference against the contradictory depositions of DW1

pertaining to signature of her father on the sale agreement

and though denied the signature but admitted the

signature in the cross examination, in spite of it, the Trial

Court comes to the conclusion that sale agreement is not

proved. Hence, it requires re-consideration and prayed this

Court to admit and frame substantial question of law.

8. Having heard the appellants counsel and also on

perusal of material on record, the Trial Court having taken

note of defense which was taken by the defendants and

the same is total denial of very execution of the

agreement and no doubt the plaintiffs have examined one

witness as PW2. The Trial Court while considering the

NC: 2023:KHC:34018 RSA No. 260 of 2020

material on record, taken note of admission of PW2 and he

says that he read the recitals of the said agreement of sale

and the sale agreement was in Kannada language and the

same is also extracted in paragraph No.26 of the judgment

of the Trial Court and also taken note of the evidence of

PW2. The document which is marked at Ex.P15-agreemnt

of sale is confronted and the same is in English language

and his evidence is also extracted in paragraph No.27 and

also in paragraph No.28 of the judgment of the Trial Court

and disbelieved the very execution of the document with

regard to the place of execution of the documents. Since,

there is a contradictions with regard to the place also. The

evidence of PW1 and PW2 not inspires the confidence of

the Court in proving the very execution as well as the

payment of advance amount on different dates.

9. The First Appellate Court has also on re-

consideration of both oral and documentary evidence

available on record though it is contended that there was

an admission with regard to the signature in the document

of sale agreement and observed that mere signature is

NC: 2023:KHC:34018 RSA No. 260 of 2020

found on the document itself is not a ground to grant a

relief of specific performance and also taken note of

Section 20 of Specific Relief Act and discussed in detail in

paragraph No. 37 of the judgment of the appellate Court

and taken note of several judgment and in paragraph No.

39 comes to the conclusion that no such sale agreement

was executed and also defense was taken in the written

statement that fraudulently obtained the signature and

dismissed the appeal.

10. The counsel for appellants would

vehemently contend that approach of both the Courts is

erroneous and the said contention cannot be accepted.

Though examined PW2, his evidence is inconsistence with

the evidence of the PW1 with regard to the proving of the

execution of sale agreement. Both the Courts have taken

note of the same and the PW2 evidence was extracted in

the judgment of the Trial Court in paragraph No.26 to 28

and also discussed the evidence of the PW1 in paragraph

No.29 to 32. It is evident that his father used to make

signature in Kannada language, but he is not having any

NC: 2023:KHC:34018 RSA No. 260 of 2020

document to show the same and nothing is elicited in the

cross-examination of PW1 with regard to the execution of

document of sale agreement and payment of sale

consideration on different dates. Hence, I do not find any

error committed by the Trial Court as well as the First

Appellate Court in appreciating the evidence with regard to

the execution of the sale agreement and payment of sale

consideration as contended by the appellant, in the

absence of any perversity in finding, question of invoking

Section 100 of CPC does not arise. Hence, no grounds are

made out to admit the appeal and frame any substantial

question of law.

12. In view of the discussions made above, I

pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE RHS