Karnataka High Court
Sri G R Venkatesh vs Narayanamma on 3 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:13606
RSA No. 1172 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1172 OF 2021 (SP)
BETWEEN:
SRI. G.R. VENKATESH
S/O LATE GENNA RAMAPPA
AGED ABOUT 63 YEARS
R/AT Y N HOSAKOTE TOWN
Y.N. HOSEKOTE HOBLI
PAVAGADA TALUK
TUMKUR DIST-572101.
...APPELLANT
(BY SRI. HARISH H V.,ADVOCATE)
AND:
NARAYANAMMA
W/O KONTTHAM NARAYANAPPA
SINCE DEAD BY LRS
Digitally signed
by SUMA B N
Location: High 1. K N SUBBARAYAPPA
Court of S/O LATE NARAYANAMMA
Karnataka
AGED ABOUT 70 YEARS
2. SMT BHAGYAMMA
W/O K N NAGABUSHANA
AGED ABOUT 65 YEARS
3. MANOJ KUMAR
S/O K N NAGABUSHANA
AGED ABOUT 41 YEARS
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RSA No. 1172 of 2021
4. SMT. YASHODAMMA
S/O K.N. NAGABUSHANA
AGED ABOUT 38 YEARS
5. KIRAN KUMAR
S/O K.N. NAGABUSHANA
AGED ABOUT 38 YEARS
6. K.N. NAGARAJA
S/O LATE NARAYANAMMA
AGED ABOUT 64 YEARS
7. K N VENKATESHA
S/O LATE NARAYANAMMA
AGED ABOUT 56 YEARS
8. SMT NAGALAKSHMAMMA
D/O LATE NARAYANAMMA
W/O G R VENKATESHAPPA
AGED ABOUT 61 YEARS
9. K N MURALI KRISHNA
S/O LATE KONTHAM NARAYANAPPA
AGED ABOUT 55 YEARS
THE RESPONDENT NOS.1 TO 8 ALL ARE
R/AT Y N HOSAKOTE TOWN
Y N HOSAKOTE HOBLI
PAVAGADA TALUK
TUMKUR DIST-5721101.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 25.07.2019
PASSED IN RA No.33/2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, PAVAGADA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 24.06.2017
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RSA No. 1172 of 2021
PASSED IN OS.No.279/2007 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, PAVAGADA.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-plaintiff aggrieved by
the judgment and decree dated 24.06.2017 passed in
O.S.No.279/2007 on the file of Civil Judge and J.M.F.C,
Pavagada (hereinafter 'the Trial Court') which is confirmed by
the judgment and order dated 25.07.2019 passed in
R.A.No.33/2017 on the file of Senior Civil Judge, Pavagada
(hereinafter 'the First Appellate Court').
2. The above suit is filed for specific performance of an
oral agreement of sale, in respect of property measuring East-
West 30 feet and North-South 20 feet being 1/4th share in
respect of site property measuring East-West 30 feet and
North-South 80 situated at Y.N. Yosakote Town, Pavagada
Taluk, Tumakuru District.
3. Case of the plaintiff is that the plaintiff and defendant
had entered into Oral agreement on 01.11.1998, wherein the
defendant had agreed to sell the suit schedule property for a
consideration of Rs.80,000/-, that he paid the said sum of
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Rs.80,000/- on the very same day. That upon receipt of the
said consideration, the possession of the suit schedule property
was handed over to the plaintiff and since then he has been in
the possession of the suit schedule property. It is his further
case that subsequent to 26.04.2001, the said oral agreement
was reduced into a written agreement, wherein the terms of
oral agreement has been reiterated and that defendant had to
execute the sale deed as and when the plaintiff demanded for
sale deed. It is further contended that, thereafter plaintiff on
several occasions made oral requests to the defendant to
execute the sale deed. However, defendant failed to comply
with the same constraining him to issue a notice on 12.05.2005
and thereafter filing the above suit.
4. Defendant appeared through his counsel and filed the
Written Statement denying the plaint averments and
specifically contended that the plaintiff is the son-in-law of the
defendant No.1, he was asked to stay in the suit property as a
tenant and there was no intention of selling the suit schedule
property to the plaintiff. It is contended that the suit schedule
property is the joint family property and the same cannot be
sold as the rights of other members are vested in it. That the
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plaintiff stayed in the said suit property for 09 years as a tenant
and when he was asked to vacate the premises, he came out
with the false plea that the property was sold to him by
creating sale agreement and thereafter filed the suit. Hence,
sought for dismal of the suit.
5. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
''1. Whether the plaintiff proves that defendants
executed sale agreement dated 26-04-2001
reducing into writing the oral agreement to sell
dated 01-11-1998?
2. Whether the plaintiff proves his lawful possession
over suit property as on the date of suit?
3. Whether plaintiff proves that he was ever ready
and willing to perform his part of contract?
4. Whether the plaintiff proves cause of action?
5. Whether defendants prove that the agreement is
unenforceable due to the presence of other joint
owners?''
6. Whether plaintiff is entitled for the relief as
prayed?
7. What order or decree?
6. The plaintiff examined himself as PW.1 and additional
witness has been examined in his favour as PW.2 and exhibited
7 documents marked as Ex.P1 to Ex.P7. In order to prove their
defence, defendant No.1(f) and defendant No.2 examined
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themselves as DW.1 and DW.2, one additional witness has
been examined in their favour as DW.3 and exhibited 5
documents marked as Ex.D1 to Ex.D5. On appreciation of the
evidence the Trial Court answered issue Nos.1 to 6 in the
negative and consequently dismissed the suit.
7. Being aggrieved by the aforesaid judgment and decree
plaintiff filed a regular appeal in R.A.No.33/2017 before the
First Appellate Court. Considering the grounds urged the First
Appellate Court framed the following points for its
consideration:
1).Whether the plaintiff/appellant proved the sale
agreement ?
2). Whether the plaintiff / appellant has been ever
ready and willing to perform his part of contract ?
3). Whether the judgment of trial Court is contrary to
law, evidence and probabilities, hence, needs to be
interfered?
4). Whether the appellant is entitled the relief as
sought for?
5). What order or decree?
8. On re-appreciation of the evidences, the First Appellate
Court answered point Nos.1 to 5 in the negative and
consequently dismissed the appeal confirming the judgment
and decree passed by the Trial Court. Being aggrieved by the
same appellant is before this Court.
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9. Sri.Harish H.V, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submitted that the Trial Court and the First Appellate
Court grossly erred in dismissing the suit and appeal
respectively without appreciating the fact that the defendants
had not denied the execution of the agreement. On the other
hand had contended that the suit property is joint family
property and not available for sale. He submitted that one of
witnesses to the agreement had supported the case of the
plaintiff. He submits that merely because of two of the
witnesses namely DW.2 and DW.3 who had filed their affidavit
initially supporting the case of the plaintiff and subsequently
became hostile, the Trial Court and the First Appellate Court
ought not to have rejected the case of the plaintiff without
taking into consideration the attendant circumstances while
appreciating the evidence. Therefore, he submits that
impugned judgments and decrees suffer from perversity giving
raise to substantial question of law.
10. Heard. Perused the records.
11. Case of the plaintiff is that he had entered into an
oral agreement dated 01.11.1998 with the defendant No.1 and
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that he had paid a sum of Rs.80,000/- on the very same day.
On a query by this Court about any witnesses having been
examined by the plaintiff with regard to the Oral agreement
purported to have been entered into on 01.11.1998. Learned
counsel for the appellant fairly submits that there is no
witnesses examined with regard to the oral agreement dated
01.11.1998. He also submits that there is no witnesses
examined with regard to payment of Rs.80,000/- on the said
date. However, he adds that said agreement was reduced into
writing on 26.04.2001, four witnesses had attested to the said
agreement, out of which one witness has been examined.
However, the Trial Court and the First Appellate Court have
taken note of the fact that two of the witnesses who had
allegedly attested the agreement dated 26.04.2001 and had
filed the their affidavit, had retracted from their version. The
Trial Court and the First Appellate Court on appreciation of the
evidence came to the conclusion that the plaintiff had failed to
prove either the oral agreement dated 01.11.1998 or payment
of Rs.80,000/- as consideration for sale of property. The Trial
Court and the First Appellate Court having found that the
plaintiff miserably failed to prove the oral and purported written
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sale transaction, dismissed the suit. Hence, no substantial
question of law would arise for consideration in this appeal.
Accordingly, appeal is dismissed confirming the judgment
and decree passed by the Trial Court and the First Appellate
Court.
Sd/-
JUDGE
RL
