Karnataka High Court
Sri C H Narayanaswamy vs Sri M Bhaskar on 28 June, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1760 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1760 OF 2018 (SP)
BETWEEN:
1. SRI C.H. NARAYANASWAMY
S/O VENKATARAVANAPPA
AGED ABOUT 80 YEARS,
RESIDING AT GULPET
KOLAR TALUK
KOLAR DISTRICT-563 102
...APPELLANT
(BY SRI. PRASANNA KUMAR R.S., ADVOCATE)
AND:
1. SRI M. BHASKAR
S/O LATE MUNIVENKATAPPA
Digitally signed AGED ABOUT 49 YEARS,
by DEVIKA M AGRICULTURIST
Location: HIGH R/O KUDAVANAHALLI VILLAGE,
COURT OF
KARNATAKA HOLUR HOBLI, KOLAR TALUK
KOLAR DISTRICT-563 126.
...RESPONDENT
(VIDE COURT ORDER DATED 14.06.2024,
SERVICE OF NOTICE TO RESPONDENT HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 27.04.2018
PASSED IN R.A.NO.83/2017, ON THE FILE OF THE III
ADDL.SENIOR CIVIL JUDGE, KOLAR PARLTY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
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RSA No. 1760 of 2018
DATED 17.04.2017 PASSED IN O.S.NO.814/2011 ON THE FILE
OF THE I ADDL.CIVIL JUDGE AND JMFC, KOLAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant.
2. The factual matrix of case of plaintiff before the
Trial Court while seeking the relief of specific performance
contended that the defendant is the owner and possession
of the suit schedule property bearing Sy.No.126 which is
morefully described in the schedule. He had agreed to sell
the suit schedule property in favour of the plaintiff for
legal necessity for an sum of Rs.1,15,000/- on
11.03.2010. He has executed a unregistered sale
agreement and the same day received the sale
consideration amount of Rs.1,00,000/- and remaining
amount of Rs.15,000/- agreed to be received at the time
of registration of sale deed. When the plaintiff has
approached the defendant to execute the sale deed, he did
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not come forward to execute the sale deed and hence the
plaintiff has issued notice to execute registered sale deed
and the notice was duly served and he has given
untenable reply. In pursuance of suit summons, the
defendant has appeared and filed written statement,
totally denied the signature found on agreement dated
11.03.2010 and also denied the total execution of sale
agreement and receipt of Rs.1,00,000/- in terms of the
agreement. The parties are allowed to lead evidence
before the Trial Court.
3. The Trial Court having considered the both oral
and documentary evidence available on record dismissed
the suit in coming to the conclusion that agreement has
not been proved and answered the issue Nos.1, 2 and 4 as
negative and issue No.3 does not survive with regard to
the ready and willingness and the defendant contention
that the agreement is created and concocted and the said
issue was not answered in coming to the conclusion that
the same does not survive for consideration and answered
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issue No.4 that the plaintiff is not entitled for any relief of
specific performance.
4. Being aggrieved by the judgment and decree of
dismissal of suit before the Trial Court, an appeal is filed in
R.A.No.83/2017. The First Appellate Court having re-
assessed the material on record in keeping the contentions
urged in the appeal formulated the point whether the
judgment and decree passed by the Trial Court is
capricious and it requires interference. Having re-assessed
the material on record, First Appellate Court comes to the
conclusion that the defendant denies the very execution of
document and answer elicited from the mouth of witnesses
that they are the adjacent owners of the property in
respect of suit schedule property and also admission has
given that he has given the notice and comes to the
conclusion that the Trial Court fails to consider the
material on record even when the defendant has denied
the signature available on Ex.P1, he has not taken any
steps to send the document to the handwriting expert and
get the opinion. Hence, the First Appellate Court reversed
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the finding of the Trial Court directing him to pay an
amount of Rs.1,00,000/- with interest at 8%.
5. Being aggrieved by the reversal finding of the
First Appellate Court, the present second appeal is filed
before this Court. The learned counsel for the appellant
would vehemently contend that the First Appellate Court
has not assigned any reasons while appreciating the
material on record committed an error in coming to the
conclusion that the appellant did not send the document to
the handwriting expert. The very approach of the First
Appellate Court is erroneous. The counsel also would
vehemently contend that the First Appellate Court totally
ignored to consider the fact that why stamp paper was
brought from Bangalore though it is available in Kolar. The
plaintiff has failed to prove why none of the parties have
taken to bring the stamp paper. Hence, the Court has to
frame the substantial question of law that the First
Appellate Court did not comply with mandatory
requirement under Order 41 Rule 31 of CPC. The counsel
would vehemently contend that when the Trial Court
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comes to the conclusion that document Ex.P1 is concocted
document ought not to have reversed the finding of the
Trial Court and hence, this Court has to admit the appeal
and frame substantial question of law.
6. Having heard the appellant's counsel and also
on perusal of the reasoning given by the Trial Court and
Trial Court comes to the conclusion that the PW1
categorically admitted in the cross-examination that earlier
there was a galata between them. Hence, disbelieved the
case of the plaintiff and also he admits that stamp paper
was brought by Raghavendra Achar and he don't know
from where it was brought. Having taken note of these
two evidence and also contradictions found in the evidence
of PW2 that plaintiff only brought the stamp paper and
comes to the conclusion that there was no any sale
transaction between the parties and agreement is not
proved. The First Appellate Court having re-assessed the
material available on record and taking into note of
defense taken by the appellant herein and he admits the
issuance of notice and also he has given reply very
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denying of very execution of the document and taken note
of both of them are owning land adjacent to each other.
There is an admission to the said fact is concerned and
both of them are having acquaintance with each other and
also an observation is made in paragraph No.17 that when
he has specifically denied the very execution of the
document Ex.P1, he could have filed an application to get
the expert opinion whereas no such effort was made by
the defendant. Apart from that during the cross-
examination when he denies the suggestion of the
plaintiff, when the document of Ex.P1 was confronted to
him, but he did not take any steps to send the document
to the hand writing expert. Apart from that the First
Appellate Court taken note of the fact that one Krishnappa
had obtained illegal decree in O.S.No.374/2011 by way of
compromise decree dated 11.07.2011 and the said fact
has been suppressed by the defendant. In this regard
cross-examination also conducted. Taking into note of
cross-examination of DW1, he categorically admits that he
has not disclosed about the execution of sale agreement in
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favour of one Krishnappa in his reply notice and written
statement and in chief evidence also he has not stated
anything. The plaintiff himself has not pleaded the said
fact as such he cannot possessed the said fact to DW1,
however, from the admission of the DW1, it is elicited from
him that schedule property already subjected for sale in
favour of Krishnappa which has been also admitted by
DW1 and also plaintiff under these circumstances can seek
alternative relief of refund of earnest money. Taking into
all these aspects into consideration reversed the finding.
7. Having taken note of the specific defense by the
defendant that signature not belongs to him and he denied
the very execution of document and the defendant ought
to have send the document to the hand writing expert as
observed by the First Appellate Court in paragraph No.17
of the judgment and also even prior to the sale
agreement, there was a agreement executed by the
defendant in favour of one Krishnappa and filing of the suit
also taken note of. The counsel appearing for the appellant
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brought to notice of this Court the certified copy of Ex.P1
which is marked before the Court. Even the Trial Court has
not compared the signature of the defendant along with
the admitted document while appreciating the evidence.
When the signature was denied by the defendant in the
agreement of sale and ought to have exercised the power
under Section 73 of Evidence Act and the same is also not
done and blindly accepted the defense of defendant even
without sending the document to any handwriting expert
and no such effort was made by the appellant/defendant.
When such being the case, the First Appellate Court rightly
ordered to refund of amount in terms of agreement of sale
Ex.P1 with interest at 8% and the same is also not
exorbitant. Hence, no ground is made out to admit and
frame substantial question of law to invoke Section 100 of
CPC.
8. In view of the discussions made above, I pass
the following:
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ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same stands disposed
of.
Sd/-
JUDGE
RHS
