Karnataka High Court
L R Gangdharaiah vs Gangamma on 9 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 825 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 825 OF 2018 (SP)
BETWEEN:
L R GANGDHARAIAH,
S/O. LATE.RAMACHANDRAIAH,
AGED ABOUT 59 YEARS,
R/AT NO. 3RD DIVISON,
CHIKKANAYAKANAHALLI TOWN,
TUMKUR DISTRICT-572214.
...APPELLANT
(BY SRI. M C BASAVARAJU.,ADVOCATE)
AND:
1. GANGAMMA
W/O. C S NAGARAJU,
AGED ABOUT 59 YEARS,
R/AT NO. 1ST DIVISION,
CHIKKANAYAKANAHALLI TOWN,
TUMKUR DISTRICT-572214.
Digitally
signed by 2. POORNIMA
SUMA B N D/O. C S NAGARAJU,
Location: High
Court of AGED ABOUT 28 YEARS,
Karnataka R/AT NO. 1ST DIVISION,
CHIKKANAYAKANAHALLI TOWN,
TUMKUR DISTRICT-572214.
3. MANIKANTA
S/O. C S NAGARAJU,
AGED ABOUT 26 YEARS,
R/AT NO. 1ST DIVISION,
CHIKKANAYAKANAHALLI TOWN,
TUMKUR DISTRICT-572214.
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RSA No. 825 of 2018
4. JEEVITHA
D/O. C S NAGARAJU,
AGED ABOUT 23 YEARS,
R/AT NO. 1ST DIVISION,
CHIKKANAYAKANAHALLI TOWN,
TUMKUR DISTRICT-572214.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 19.08.2015 PASSED IN PRL.
CIVIL JUDGE AND J.M.F.C AT CHIKKANAYAKANAHALLI IN
O.S.NO.47/1999 AND JUDGMENT AND ORDER DATED 15.12.2017
PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C,
CHIKKANAYAKANAHALLI IN R.A.NO.63/2015 IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff aggrieved by the
judgment and decree dated 19.08.2015 passed in
O.S.No.47/1999 on the file of the Prl. Civil Judge and J.M.F.C
at Chikkanayakanahalli (hereinafter 'the Trial Court') which is
confirmed by the judgment and order dated 15.12.2017
passed in R.A.No.63/2015 on the file of Senior Civil Judge
and J.M.F.C, Chikkanayakanahalli. (hereinafter 'the First
Appellate Court').
2. The above suit is filed by the plaintiff seeking relief
in the nature of direction to the defendant No.1 to receive
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balance sale consideration of Rs.1,000/- and to execute and
register deed in respect of sale of suit schedule property in
his name and also for restraining the defendants from
interfering in his peaceful possession and enjoyment of the
suit schedule property.
3. The brief fact of the case of the plaintiff is that he
had entered into an agreement of sale with the defendant
No.1 to purchase the suit schedule property bearing
Municipal assessment No.508/389/1322, measuring east to
west 33 feet and north to south 40 feet situated at 1st
Division, Chikkanayakanahalli Town for total sale
consideration of Rs.36,000/-. That the said agreement is an
unregistered agreement. That the defendant No.1 had
executed said agreement on her behalf and also on behalf of
her minor children, who are defendant Nos.2 to 4. That on
the date of agreement plaintiff had paid a sum of
Rs.35,000/- i.e., Rs.25,000/- by way of cash and
Rs.10,000/- by way of cheque bearing No.420685 dated
25.5.1998. That the defendant has handed over the physical
possession of the suit schedule property on the date of the
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agreement. That he was always ready and willing to perform
his part of the contract by paying Rs.1,000/- was which the
only balance amount payable towards the sale consideration.
That despite repeated requests made by the plaintiff,
defendant No.1 did not execute the deed of sale in his
favour. Consequently, he caused the issuance of legal notice
dated 19.01.1999 which was not responded properly, as
such the plaintiff was constrained to file the above suit.
4. The defendant No.1 in her written statement denied
the plaint averments and contended that she never intended
to sell the suit schedule property to the plaintiff. She also
denied execution of the said agreement dated 21.05.1998. It
is also contended by her that the suit schedule property is
not her personal property and defendants 2 to 4 being the
joint owners are having undivided interest in the said
property. Further, defendant No.1 also denied receiving of
Rs.35,000/- by way of cash or by way of cheque as
contended by the plaintiff. It is her further contention that
plaintiff being the owner of the property next to the suit
schedule property had created and manipulated the
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documents based on which he had filed the above suit.
Hence sought for dismissal of the suit.
5. The defendant Nos.2 to 4 in their separate written
statement contended that suit schedule property was
purchased by their father which was registered in the name
of their defendant No.1, for the family benefits. The
defendant No.1 has no independent source of income to
purchased the property and further contended that
defendant No.1 alone has no independent right to enter into
contract with the plaintiff to sell the suit properties, That
agreement of sale is not binding on them as they are not the
parties and they are the minors. Hence, sought for dismissal
of the suit.
6. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
"1) Whether the plaintiff proves that 1st defendant being
the owner of schedule property for her family necessity
agreed to sell the schedule property in favour of plaintiff
and executed an agreement to sell dated 21.5.1998?
2) Whether the plaintiff proves that he is ready and
willing to perform his part of contract and there is delay
on the part of the defendant?
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3) Whether the Is defendant proves that the agreement
to sell is fabricated and manipulated document?
4) Whether the 1st defendant proves that she and
C.N.Nagaraju constitute a joint family, 1st defendant had
no occasion to execute agreement to sell in favour of
plaintiff?
5) What order or Decree?"
7. The plaintiff examined himself as PW1 and exhibited
9 documents marked as Ex.P1 to Ex.P9. Three witnesses
have been examined in favour of the plaintiff as PW.2 to
PW.4. In order to prove their defence, defendant Nos.1 and
3 examined themselves as DW.1 and DW.2. and exhibited 5
documents marked as Ex.D1 to Ex.D5. On appreciation of
the evidence the Trial Court answered issue Nos.1 and 2 in
the negative and issue Nos.3 and 4 in the affirmative and
consequently dismissed the suit.
8. Being aggrieved by the aforesaid judgment and
decree plaintiff filed an appeal in R.A.No.63/2015 before the
First Appellate Court. Considering the grounds urged the
First Appellate Court framed the following points for its
consideration:
"1. Whether the trail court has justified in
dismissing the suit of the plaintiff?
2. Whether the appellant has made out grounds to
allow the appeal?
3. What order or decree ?"
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9. On re-appreciation of the evidences, the First
Appellate Court answered point No.1 in the affirmative and
point No.2 in the negative and consequently dismissed the
appeal confirming the judgment and decree passed by the
Trial Court. Being aggrieved by the same plaintiff filed the
present appeal.
10. Sri.J.R.Thippeswamy, learned counsel for the
appellant reiterating the grounds urged in the memorandum
of the appeal submits that the Trial Court and the First
Appellate Court failed to appreciate the fact that the plaintiff
had proved that the defendant No.1 had offered to sell the
property for Rs.36,000/- and had received the said sale
consideration of Rs.35,000/-. It is his submission that the
possession of the property was handed over on the day of
the execution. It is contended that the property belonged to
defendant No.1 she having purchased the same in terms of
the deed of sale dated 02.06.1997, she had every right to
sell the property. He submits that except payment of
Rs.1,000/- nothing was required to be performed on behalf
of the plaintiff. Despite on several request defendants did not
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come forward that constrained the plaintiff to file the suit.
He submits that the plaintiff was always ready and willing to
perform his part of the contract. That these aspects of the
matter have not been taken into consideration by the Trial
Court and the First Appellate Court giving raise to substantial
question of law.
11. Heard. Perused the records.
12. Issues have been framed by the Trial Court with
regard to proof of execution of the agreement by the
defendant No.1 in favour of the plaintiff. Plea of payment of
money on the date of agreement is not proved. No
acceptable material evidence regarding encashment of
cheque is produced. Instances of manipulation and
fabrication of agreement, dates of stamp papers on which
the agreement is allegedly drawn interpretation etc., have
been appreciated and re-appreciated by the Trial Court and
the First Appellate Court.
13. The Trial Court and the First Appellate Court
declined to take into consideration the claim of the plaintiff
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to have been put into possession of the property on the very
same date of the agreement as the same is not being
registered. The Trial Court and the First Appellate Court did
not find convincing the case of the plaintiff that he had paid
a sum of Rs.35,000/- as against the agreed sale
consideration of Rs.36,000/- on very date of agreement with
balance being only Rs.1,000/-, in the absence of any
explanation whatsoever by the plaintiff of he not being able
to pay Rs.1,000/- and obtaining the deed of sale on very
same day. This conduct of the plaintiff has been held against
him.
14. The Trial Court has adverted to the deposition of the
plaintiff's witnesses who have given inconsistent and
contradictory statements with regard to date, timing and
manner in which the agreement purportedly came into
existence and has found that the evidence of the witnesses
examined by the plaintiff did not evince credibility with
regard to they being the witnesses to the agreement. It has
also referred to evidence of husband of defendant examined
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at the instance of plaintiff as PW-4 which supported the case
of the defendant.
15. Taking note of all these material evidence and facts
the Court has come to the conclusion that the plaintiff has
failed to prove the execution of the alleged agreement.
16. The First Appellate Court on re-appreciation of the
evidence has confirmed the said findings. The factum of
execution of agreement and payment of money not having
been proved by the appellant/plaintiff which are matter of
fact, and the same cannot be gone into in this appeal under
Section 100 of the CPC in absence of any perversity. No
substantial question of law would arise for consideration in
this appeal.
17. In that view of the matter, appeal is dismissed
confirming the judgment and decree passed by the Trial
Court and the First Appellate Court.
Sd/-
JUDGE
RL
