Karnataka High Court
Smt Drakshayini vs Sri Doddegowda on 19 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 272 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 272 OF 2019 (SP)
BETWEEN:
SMT DRAKSHAYINI
W/O SURESH
AGED 56 YEAWRS
R/A NO.5636, JANNAKAVI ROAD,
KUVEMPUNAGAR EXTENSION,
CHANNARAYAPATNA TOWN,
HASSAN DISTRICT 573116.
...APPELLANT
(BY SRI. K.N.NITISH, ADVOCATE)
AND:
1. SRI DODDEGOWDA,
S/O LATE HUCHEGOWDA
AGED 60 YEARS
Digitally signed RETIRED LECTURER
by SUMA B N R/A KARYALAYA EXTENSION,
Location: High
Court of HOLENARASIPURA TOWN AND TALUK,
Karnataka HASSAN DISTRICT-573201.
2. SRI. SHIVANNA
S/O AMASEGOWDA
AGED 57 YEARS
R/A JAMBOORU VILLAGE,
NUGGEHALLI HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT 573116.
...RESPONDENTS
(BY SRI. NARAJJI DEEPAK, ADVOCATE, FOR C/R2)
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RSA No. 272 of 2019
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DTD 27.11.2018 PASSED IN
RA.NO.35/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., CHANNARAYAPATNA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 18.08.2017
PASSED IN OS.NO.419/2009 ON THE FILE OF THE PRL.CIVIL JUDGE
AND JMFC., CHANNARAYAPATNA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the unsuccessful plaintiff, who is
before this Court being aggrieved by the judgment and
decree dated 18.08.2017, passed in O.S.No.419/2009, on
the file of Principal Civil Judge and J.M.F.C.,
Channarayapatna, ('trial Court' for short), which is
confirmed by judgment and decree dated 27.11.2018,
passed in R.A.No.35/2017, on the file of Senior Civil Judge
and J.M.F.C., Channarayapatna.
2. The above suit in O.S.No.35/2017 is filed by the
plaintiff seeking the relief of specific performance of
contract of sale of the suit schedule property.
3. It is the case of the plaintiff that the defendant
No.1 is the owner of the suit schedule property, who is
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well acquainted with the plaintiff. That the plaintiff has
been residing in a house existing on the suit schedule
property along with her family for more than fifteen years
as a tenant under the defendant No.1. That in the month
of November 2003, the defendant No.1 expressed his
desire to sell the suit property including the house situated
therein for his legal necessities. After negotiations, the
price was fixed at Rs.80,000/- and on 20.11.2003, an
Agreement of Sale was executed by defendant No.1 in
favour of the plaintiff agreeing to convey the suit property.
The plaintiff paid Rs.50,000/- by way of cash and adjusted
Rs.10,000/- towards advance, which was paid under the
tenancy and agreed to execute the Sale Deed by receiving
the balance sale consideration of Rs.20,000/-.
4. That though, the plaintiff was ready and willing to
complete the transaction, however, since there was
interference by one Shivanna with the lawful possession of
the plaintiff, she was constrained to file a suit in
O.S.No.99/2005, which came to be decreed. That the
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plaintiff thereafter got issued a notice dated 19.04.2008
calling upon the defendant No.1 to receive the balance
sale consideration and to execute the Sale Deed. Since
there was no response, the present suit for specific
performance of the contract was filed by the plaintiff.
5. The defendant No.1 appeared through his counsel
and filed his written statement. Defendant No.2 got
impleaded in the suit and also filed his written statement.
The case of the defendants is that defendant No.1 is no
more the owner of the suit property as on the date of filing
the suit as he had already sold the property in favour of
defendant No.2. Denying the averments of the plaint, it is
contended that the present suit is filed based on a Sale
Agreement, which is a created and fabricated document
and is vitiated by fraud. It is contended that the recitals
of the plaint in O.S.No.99/2005 and the recitals of the
plaint in the present suit are entirely different from each
other. That defendant No.1 had issued a befitting reply to
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the notice issued by the plaintiff. That the suit is not
maintainable. Hence, sought for dismissal of the suit.
6. Defendant No.2 on the other hand has contended
that the suit having barred by limitation, required to be
rejected under Order VII Rule 11 of Code of Civil
Procedure. It is further contended that the tenancy was
attorned by virtue of Sale Deed. That defendant No.1
being the lawful owner of the property, has sold the same
in favour of defendant No.2 on 31.03.2004 for valuable
consideration. That he had issued a notice dated
09.05.2006 terminating the tenancy and calling upon the
plaintiff to vacate and hand over the possession of the suit
property. That defendant No.2 had filed a suit in
O.S.No.119/2006 for the relief of possession and in the
said suit had filed an application calling upon the plaintiff
to produce the Agreement of Sale, which was not
produced by the plaintiff. That since the document is a
created one for the purpose of filing the suit the question
of plaintiff showing her readiness and willingness to
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perform her part of the contract would not arise. It is
contended that there is also a criminal case filed against
the plaintiff in PCR No.16/2012, which is pending for
consideration. Hence, sought for dismissal of the suit.
7. Based on the pleadings, the trial Court framed
the following issues and additional issues for
consideration.
Issues :
1. 1£Éà ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ D¹ÛAiÀÄ ªÀiÁ°ÃPÀgÀÄ DVgÀÄvÁÛgÉ
JA§ÄzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¹gÀĪÀgÉÃ?
2. 1£Éà ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ D¹ÛAiÀÄ£ÀÄß gÀÆ.80,000/- UÀ½UÉ
ªÀiÁgÁl ªÀiÁqÀÀ®Ä M¦à gÀÆ.60,000/- UÀ¼À£ÀÄß ªÀÄÄAUÀqÀªÁV
¥ÀqÉzÀÄ ¢:20-11-2013 gÀAzÀÄ PÀæAiÀÄzÀ PÀgÁgÀ£ÀÄß
§gÉzÀÄPÉÆnÖgÀÄvÁÛgÉ JA§ÄzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ
¥Àr¹gÀĪÀgÉÃ?
3. ªÁ¢AiÀÄÄ ¸ÀzÀj PÀgÁj£À ¥ÀæPÁgÀ £ÀqÉzÀÄPÉƼÀî®Ä ¸ÀzÁ
¹zÀÞjgÀÄvÁÛgÉ JA§ÄzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¹gÀĪÀgÉÃ?
4. 1£Éà ¥ÀæwªÁ¢AiÀÄÄ ¸ÀzÀj PÀgÁj£À ¥ÀæPÁgÀ £ÀqÉzÀÄPÉÆAr®è
JA§ÄzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¹gÀĪÀgÉÃ?
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5. ªÁ¢AiÀÄÄ zÁªÉAiÀÄ PÁ®«Äw M¼ÀUÉ §gÀĪÀÅ¢®è JA§ÄzÀ£ÀÄß
2£Éà ¥ÀæwªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¹gÀĪÀgÉÃ?
6. ªÁ¢AiÀÄÄ F zÁªÉAiÀÄ°è PÉÆÃjgÀĪÀ ¥ÀjºÁgÀ ºÉÆAzÀ®Ä
CºÀðgÉ?
7. ªÀiÁqÀĪÀ DzÉñÀ CxÀªÁ rQæ K£ÀÄ?"
Additional Issues :
" 1. Whether the plaintiff proves that, sale deed
dated 20-11-2003 executed by defendant No.1 in
favour of defendant No.2 is null and void and not
binding upon plaintiff?
2. Whether the defendant No.2 proves that, he
is bona fide purchaser of suit schedule property?"
8. The plaintiff examined herself as PW-1 and three
other witnesses from PWs.2 to 4 and exhibited 13
documents marked as Exs.P-1 to P-13. On behalf of the
defendants, defendant Nos.1 and 2 have got themselves
examined as DW-1 and DW-2 and got examined one more
witness as DW-3 and exhibited 23 documents marked as
Exs.D-1 to D-23.
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9. On appreciation of the pleadings and evidence,
the trial Court answered issue Nos.1, 2, 3, 4 and 6 and
additional issue No.1 in the negative and issue No.5 and
additional issue No.2 in the affirmative and consequently
dismissed the suit. Aggrieved by the same, plaintiff
preferred regular appeal in R.A. No.35/2017. Considering
the grounds urged in the memorandum of appeal, the First
Appellate Court framed the following points for its
consideration.
" 1. Whether judgment and decree passed by
trial Court is illegal, perverse, capricious and
against principles of nature justice and liable to
be interfered by this Court?
2. Whether trial Court has failed to
appreciate the oral and documentary evidence
adduced by the plaintiff and it has given
unwarranted much credence to the Ex.D.1 and it
has not taken into consideration of evidentiary
value adduced by the plaintiff?
3. Whether appellant has made out grounds
for appointment of handwriting expert as Court
commissioner for examination of disputed
documents?
4. What order or decree?"
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10. On appreciation of the pleadings and evidence,
the first Appellate Court answered point Nos.1 to 3 in the
negative and consequently, dismissed the appeal. Being
aggrieved by the same, the plaintiff is before this Court.
11. Learned counsel for the appellant reiterating the
grounds urged in the memorandum of appeal submitted
that the trial Court and the first Appellate Court have not
appreciated the evidence in their proper perspective. He
submitted that plaintiff examined two attesting witnesses
and the scribe of the Agreement of Sale as PWs.2 to 4 and
their version has not been taken in the right spirit by the
trial Court and the first Appellate Court. He further
submits that the trial Court grossly erred in taking on
record the expert's opinion about the signatures found in
the Agreement, though no request/application was filed by
either of the parties for appointment of an expert. He
submits that the said report has not been put to test in
evidence, as such, reliance placed thereon is misplaced.
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He further submits that the first Appellate Court though
taken note of this lacuna committed by the trial Court,
however, proceeded to appreciate the evidence ignoring
the same. Thus, he submits that non-appreciation of this
aspect of the matter has given rise to the conclusion
arrived at by both the Courts below and submits that an
opportunity be given to the appellant/plaintiff in this
regard in the interest of justice.
12. On the contrary, learned counsel for the
respondents taking through the records submits that,
admittedly the plaintiff had earlier filed a suit in
O.S.No.99/2005 for the relief of bare injunction, which was
decreed and in the said suit, there was no whisper with
regard to purported Agreement of Sale, which is the
subject matter of the present suit. He submits that, even
otherwise, in the suit which was filed by defendant No.2 in
O.S.No.119/2006 for ejectment, the plaintiff has not taken
care to bring up the said document on record despite an
application having been filed calling upon the plaintiff to
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produce the Agreement of Sale. Thus, he submits that the
trial Court and the first Appellate Court after analysing and
appreciating the entire evidence placed on record, have
come to a just conclusion that the document was got up
for the purpose of filing of the suit and declined to grant
the relief as sought for. Thus, no substantial questions of
law would arise for consideration. Hence, he seeks
dismissal of the appeal.
13. Heard. Perused the records.
14. The admitted facts are that the plaintiff was the
defendant in O.S.No.119/2006 filed by defendant No.2 in
the present suit. It is also an admitted fact that the
plaintiff on an earlier occasion had filed O.S.No.99/2005
against the defendants herein on the premise that
defendant No.2 without any authority had interfered in the
peaceful possession of the plaintiff over the suit schedule
property. It is also an admitted fact that the said suit was
decreed restraining the defendants from interfering with
the possession of the plaintiff. It is also an admitted fact
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that the plaintiff in the said suit in O.S.No.99/2005 has
never whispered anything whatsoever with regard to
execution of Agreement of Sale dated 20.11.2003, which
was purportedly executed by defendant No.1 in favour of
plaintiff agreeing to sell the suit schedule property as
contended in the plaint of the present suit.
15. Another aspect of the matter is that defendant
No.2 after purchase of the suit schedule property from
defendant No.1, had issued a notice terminating the
tenancy and consequently he had filed a suit in
O.S.No.119/2006, which came to be decreed, against
which, the plaintiff preferred RA.No.78/2014, which also
came to be dismissed. As against which, the plaintiff
preferred RSA.No.1357/2015 before this Court, which was
compromised.
16. It is submitted that in terms of the
understanding of the plaintiff and defendants, the plaintiff
undertook to vacate the premises, subject to the outcome
of the present suit in O.S.No.419/2009. It is the
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submission of learned counsel for the respondents that
though the present suit is ended in dismissal, the plaintiff
has been protracting the matter.
17. Though the learned counsel for the appellant
points out that without there being an application for
appointment of handwriting expert, the trial Court had
taken note of Expert's report produced by defendant No.2
with regard to disputed signatures, without providing an
opportunity to prove the same, this aspect of the matter
has been taken note of by the first Appellate Court and the
first Appellate Court has even observed the same at
Para-30 of its judgment, but, has proceeded to appreciate
the evidence on record de horse of the said expert's
report and has come to an independent conclusion that
the plaintiff has failed to prove the execution of the
Agreement.
18. Another factor which is glaring in this matter is
that the plaintiff who had approached the Court at the
very first instance in OS.No.99/2005 on the allegation of
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illegal interference in her possession and enjoyment of the
property by the very same defendants, has not even
whispered about the existence of the said Agreement,
which according to the plaintiff, was entered into in the
year 2003. With respect to execution of above Agreement
of Sale, no explanation of any nature is forthcoming in
O.S.No.119/2006, which was filed by defendant No.2 and
despite an application being made by defendant No.2, the
plaintiff has not produced the said document.
19. These two aspects of the matters have created
serious cloud on the genuineness or otherwise of the
Agreement sought to be produced by the plaintiff. Though
the plaintiff has examined three witnesses who are stated
to be the witnesses to the execution of the Agreement of
Sale, in the circumstances this testimony is of no avail.
20. The aforesaid aspect of the matter has been
rightly taken note of by the trial Court and the first
Appellate Court and have come to the conclusion that the
plaintiff has failed to convince the Court about the
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credibility and the very genuineness of the said
Agreement. As such, the impugned judgments does not
call for interference.
21. Since no substantial questions of law would arise
for consideration in this appeal and no irregularity can be
found with the reasoning and conclusion arrived at by the
trial Court and first Appellate Court, the appeal is
accordingly dismissed.
Sd/-
JUDGE
bk
