Karnataka High Court
Sri. Rajashekar vs Smt. Kempamma on 25 June, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:23346
RSA No. 40 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.40 OF 2023 (SP)
BETWEEN:
1. SRI RAJASHEKAR,
S/O LATE VENKATAPPA,
DEAD BY HIS LRS.
1(a). SRI PRASHANTH R.,
S/O LATE RAJASHEKAR,
AGED ABOUT 22 YEARS.
1(b) SRI DEEPU R.,
S/O LATE RAJASHEKAR,
AGED ABOUT 20 YEARS.
BOTH ARE RESIDING AT
GOWDAYYANADODDI,
KYLANCHA HOBLI,
Digitally signed
by DEVIKA M RAMANAGARA TALUK-562159.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA (BY SRI. ANIL SHEKAR K.S., ADVOCATE)
AND:
1. SMT. KEMPAMMA,
DEAD BY HER LRS.
(a) SMT. INDIRAMMA,
W/O ANANDA,
AGED ABOUT 50 YEARS.
(b) SMT. PRABHA,
W/O LATE RAMAIAH,
AGED ABOUT 45 YEARS.
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RSA No. 40 of 2023
(c) SRI PRAKASH,
S/O KEMPAMMA,
AGED ABOUT 43 YEARS.
(d) SRI SRINIVASAIAH,
S/O LATE KEMPAMMA,
AGED ABOUT 41 YEARS.
2. SMT. SHASHIKALA,
W/O RAJASHEKHARA,
AGED ABOUT 45 YEARS.
ALL ARE RESIDING AT
GOWDAYYANADODDI,
KYLANCHA HOBLI,
RAMANAGARA TALUK-562159.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.09.2022
PASSED IN R.A.NO.96/2019 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 13.03.2019 PASSED IN O.S.NO.233/2011
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC,
RAMANAGARA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants.
2. The factual matrix of the case of the plaintiffs before
the Trial Court is that the appellant/defendant No.1 entered into
an agreement of sale dated 02.06.2007 agreeing to sell the suit
schedule property for Rs.1,40,000/- and entire sale
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consideration has been paid on the date of the agreement itself.
The plaintiff was always ready and willing to perform her part of
contract, but defendant No.1 did not come forward to execute
the sale deed and hence notice was issued and thereafter suit is
filed for the relief of specific performance. The defendants
appeared and filed the written statement contending that
defendant No.2 has not executed the alleged sale agreement
and defendant No.1 is addicted to bad vices. The plaintiff being
the resident of the same village, is very well aware of the same.
The defendant No.1 has borrowed money only and he has not
agreed to sell the property and there was no any property
transaction. It is contended that the suit schedule property is
the ancestral property and defendant No.1 has no such exclusive
right and the khatha of the suit schedule property is still
continuing in the name of defendant No.1's father Giriyappa @
Venkatappa. Hence, prayed the Court to dismiss the suit.
3. The Trial Court having considered the pleadings of
the parties, framed the issues and allowed the parties to lead
evidence. The plaintiff No.1 examined herself as P.W.1 and
examined three witnesses as P.W.2 to P.W.4 and got marked
the documents at Exs.P.1 to 9(f). The defendant No.1 examined
himself as D.W.1 and got marked the documents at Exs.D.1 and
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2. The Trial Court having considered the material available on
record, particularly both oral and documentary evidence placed
on record, in paragraph No.14 comes to the conclusion that
defendant No.1 being a literate person ought not to have signed
the document of sale agreement, if it was really a loan
transaction and question of misleading defendant No.1 to get
the sale agreement also does not arise and the contents of the
agreement was also proved. The Trial Court comes to the
conclusion that nothing is elicited in the cross-examination of
P.W.1 and the very conduct of the plaintiff cannot be disputed
when the document of Ex.P.9 is admitted and signatures are
also admitted and witnesses are also examined to prove the
agreement and none of the witnesses have been examined on
behalf of the defendants to prove the factum of loan transaction,
though the defendants contend that the same is a loan
transaction and decreed the suit.
4. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed in R.A.No.96/2019. The First
Appellate Court having considered the material available on
record, formulated the points whether the plaintiff is entitled for
the relief of specific performance and whether the judgment and
decree of the Trial Court requires interference. The First
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Appellate Court having re-assessed the material available on
record, in paragraph No.17 taken note of the contents of the
document of sale agreement and comes to the conclusion that
the document itself is the best evidence to prove the fact
regarding the terms of contract between the parties and also
relied upon the documentary evidence invoking Section 92 of
the Indian Evidence Act and the documentary evidence excludes
the oral evidence. The Trial Court also taken note of that time is
not the essence of contract in terms of Ex.P.9 and there is no
any limitation or time mentioned in Ex.P.9 and hence confirmed
the judgment of the Trial Court.
5. Being aggrieved by the said judgment and decree of
the First Appellate Court, the present second appeal is filed
before this Court.
6. The learned counsel for the appellants would
vehemently contend that both the Courts have committed an
error in coming to a conclusion that it is a sale transaction and
not loan transaction. The learned counsel contend that the
agreement is of the year 2007 and the suit is of the year 2011
and there is an inordinate delay in approaching the Court and
both the Courts ought to have considered the conduct of the
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plaintiff in filing the suit for the relief of specific performance.
The learned counsel contend that the Court has to invoke
Section 16(c) of the Specific Relief Act and frame substantial
questions of law.
7. Having heard the learned counsel for the appellants
and considering the material available on record, particularly the
document of Ex.P.9 sale agreement, the time is not an essence
of contract and no time stipulation is made in terms of Ex.P.9.
Both the Courts have taken note of the said fact into
consideration with regard to the readiness and willingness is
concerned and question of invoking Section 16(c) of the Specific
Relief Act does not arise when time is not an essence of
contract. Apart from that, the specific case of the plaintiff is
that she has paid the entire sale consideration of Rs.1,40,000/-
and having received the said sale consideration only, defendant
No.1 executed the document of Ex.P.9. The Trial Court
considering the material on record, in paragraph No.12 taken
note of the specific defence of the defendants and also taken
note of the fact that defendant No.1 has himself admitted the
execution of the document, but he only contend that it was a
loan transaction and not the sale transaction and in order to
substantiate his contention, he has not examined any of the
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persons who have participated in the said transaction, except
the oral say. The document of Ex.P.9 is very clear that it is a
sale transaction and with regard to the making of payment of
entire sale consideration of Rs.1,40,000/-.
8. The First Appellate Court has taken note of the
admission on the part of D.W.1 and he categorically admits the
execution of the document of Ex.P.9. It is important to note
that D.W.1 admitted that he is a graduate and he has not denied
the signature on Ex.P.9 and signature of defendant No.2 is
marked as Ex.P.9(e). No material is found with regard to any
undue influence or force was used by the plaintiff for obtaining
the signature of defendant No.1 on Ex.P.9 and no such pleadings
are made and no material is produced to prove that it was a
loan transaction. It is observed by the First Appellate Court
while answering point No.1 that no prudent literate person
would sign the document abruptly when a document is written
or typed. With regard to undue influence and taking unfair
advantage also, nothing is placed on record. When such being
the material on record and when there is a written document of
Ex.P.9 and the very signature of defendant No.1 has not been
disputed and apart from that, when he is a graduate, the very
contention of the appellants that Section 16(c) of the Specific
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Relief Act is not complied, cannot be accepted when there is no
time stipulation for the sale transaction. The question of
readiness and willingness also does not arise. The suit is also
filed within 3½ years for the relief of specific performance.
Hence, I do not find any ground to admit the appeal and frame
the substantial question of law. The concurrent finding given by
the First Appellate Court is based on both oral and documentary
evidence placed on record, particularly considering Section 92 of
the Indian Evidence Act that the same excludes oral evidence
and oral evidence does not inspire the confidence of the Court
that it was a loan transaction and not a sale agreement. Hence,
it is not a fit case to invoke Section 100 of CPC.
9. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
MD
