Karnataka High Court
Sri.Gangadharaiah vs Lakkamma on 4 March, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1668 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL No. 1668 OF 2019 (SP)
BETWEEN:
1. SRI.GANGADHARAIAH,
S/O MOOGURAIAH,
AGED ABOUT 59 YEARS,
R/ O HARIJANA COLONY,
YACHANAHALLI VILLAGE,
AMRUTHUR HOBLI,
KUNIGAL TALUK
TUMKUR DISTRICT 562123.
...APPELLANT
(BY SRI GIRISH M. K., ADVOCATE)
AND:
1. LAKKAMMA,
Digitally signed W/O MUDDAIAH,
by SUMA B N AGED ABOUT 65 YEARS,
Location: High
Court of 2. MUDDAIAH,
Karnataka
S/O SHANUBHAGOWDAHALLI,
SIDDEGOWDA
SINCE DEAD REPRESENTED BY LRS.
BHAGYAMMA,
D/O LATE MUDDAIAH,
AGED ABOUT 55 YEARS
3. MANJUNATH
S/O LATE MUDDAIAH,
AGED ABOUT 48 YEARS,
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RSA No. 1668 of 2019
4. PAPANNA,
S/O LATE MUDDAIAH,
AGED ABOUT 48 YEARS,
5. MANJULAMMA
D/O LATE MUDDAIAH,
AGED ABOUT 44 YEARS
RESPONDENT NO.1 TO 6 ARE
ALL RESIDING AT
BAJJAPPANA RICE MILL,
AMRUTHUR HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT-562123.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 19.08.2019
PASSED IN RA NO.13/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, KUNIGAL, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.03.2012
PASSED IN OS NO.161/2004 ON THE FILE OF THE PRINCIPAL
CIVIL JDUGE AND JMFC, KUNIGAL.
THIS RSA 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 01.03.2012 passed in O.S. No.161/2004 on
the file of Principal Civil Judge and JMFC, Kunigal ('trial
Court' for short), which is confirmed by judgment and
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decree dated 19.08.2019 passed in R.A. No.13/2012 on
the file of Senior Civil Judge and JMFC, Kunigal.
2. The above suit in O.S. No.161/2004 is filed by
the plaintiff seeking relief of specific performance of
contract and for permanent injunction.
3. It is the case of the plaintiff that defendant
No.1 is the wife of defendant No.2 and that on 30.06.1985
defendants had executed an agreement of sale in favour of
the plaintiff agreeing to sell the suit scheduled property by
receiving a sum of Rs.4,375/- and that they had agreed to
execute and register a deed of sale after getting change of
khata and pahani. That the defendants till 24.11.2003 did
not turn up to execute and register the deed of sale and
they demanded more amount. That on 24.11.2003,
defendants executed another agreement agreeing to
receive additional sum of Rs.9,000/- as a sale
consideration. That the defendants received an additional
sum of Rs.4,000/-. Thus, in aggregate, the plaintiff paid a
sum of Rs.8,375/- to the defendants and he was due and
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liable to pay only Rs.625/- as per the sale agreement
dated 24.11.2003. That the defendants had undertaken to
execute and register a deed of sale in favour of the
plaintiff. Despite repeated requests of the plaintiff,
defendants have failed to execute the sale deed. Hence,
the plaintiff got issued legal notices on 14.06.2004 and
12.07.2004 calling upon the defendants to execute the
deed of sale. The said notices were met with untenable
reply by the defendants constraining him to file the suit.
4. Defendants filed the written statement denying
the entire plaint averment except admitting the fact that
defendant No.1 is the wife of defendant No.2. It is
specifically contended that the defendant No.1 is the
lawful owner in possession and enjoyment of the written
statement schedule property having purchased the same
in terms of deed of sale dated 01.07.1985 and the said
property is the self acquired property of defendant No.1
and she improved the said property by growing
agricultural crops thereon. All the revenue records are
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standing in the name of defendant No.1 and she is paying
the land revenue to the Government. It is contended that
defendant No.2 is the husband of defendant No.1, who has
no right, title or interest over the suit schedule property.
The plaintiff has no right, title and interest or the
possession over the suit schedule property. The plaintiff
being powerful and rich man associated with anti-social
elements backed up with political influence has created,
concocted and forged the documents with an intention to
grab the property. Hence sought for dismissal of the suit.
5. Based on the pleadings, the trial Court framed
the following issues for consideration.
"1. Whether the plaintiff proves that the defendants
being the owners of the suit schedule property have
executed an agreement of sale on 30.06.1985
agreeing to sell the suit schedule property and
received consideration of Rs.4,375/- and handed
over the possession of the suit schedule property?
2. Whether the plaintiff further proves that the
defendants have further executed a new agreement
of sale on 24.11.2003 and agreed to sell the suit
schedule property for Rs.9,000/- and received part
consideration of Rs.4,000/-?
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3. Whether the plaintiffs further proves that the
defendants have failed to execute the regular sale
deed as agreed?
4. Whether the plaintiff further proves that he is
ever ready and willing to perform his part of
contract?
5. Whether the plaintiff further proves that the
defendants are causing interference to his possession
over the suit schedule property as alleged in the
plaint?
6. Whether the valuation made and payment of
court fee is correct and sufficient?
7. Whether the Court has pecuniary jurisdiction to
entertain the suit?
8. Whether the plaintiff is entitled to the relief as
sought for?
9. What order or decree?"
6. The plaintiff examined four witnesses as PWs.1
to 4 and exhibited 11 documents marked as Ex.P1 to P11.
Two witnesses have been examined as defendants and
exhibited three documents marked as Ex.D1 to D3.
7. On appreciation of the pleadings and evidence,
the trial Court answered issue Nos.1 to 8 in the negative
and consequently dismissed the suit. Aggrieved by the
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same, plaintiff preferred regular appeal in R.A.
No.13/2012. Considering the grounds urged in the
memorandum of appeal, the First Appellate Court framed
the following issues for its consideration.
"Point No.1: Whether the plaintiff/appellant
proves that the trial Court has
committed error in holding that
the plaintiff has failed to prove
the execution of sale
agreements?
Point No.2: Whether the judgment of trial
Court under appeal is illegal,
perverse and against the facts
of the case which is warranting
interference?
Point No.3:Whether the appellants are
entitled for the relief as sought
for?
Point No.4: For what order?"
8. On appreciation of the pleadings and evidence,
the First Appellate Court answered point Nos.1 to 3 in the
negative and consequently, dismissed the suit. Being
aggrieved by the same, the plaintiff is before this Court.
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9. 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
grossly erred in not appreciating the evidence, more
particularly, the content of Ex.P1 - Sale agreement dated
30.06.1985 in terms of which though the sale deed was
not executed in favour of the defendants, they were the
agreement holders of the suit schedule property and that
they being in need of amount, agreed to sell the property
after they obtaining the deed of sale and the revenue
records in their name. That the plaintiff acting upon the
said assurance had entered into an agreement dated
30.06.1985. He further submits that even after obtaining
the deed of sale in the name of defendant No.1,
defendants did not come forward to execute the deed of
sale and when plaintiff requested, they demanded for
higher amount. Therefore, he submits the second
agreement was executed on 24.11.2003 by agreeing to
pay the additional amount. It is further submitted that
the trial Court and the First Appellate Court erred in not
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appreciating the evidence in proper perspective. In that,
the opinion of the signature expert is ambiguous and does
not make out as to whether the signature on Ex.P2 -
Agreement of sale dated 24.11.2003 is that of the
defendants. In the absence of clear evidence, the trial
Court and the First Appellate Court ought not to have held
that second agreement was not executed by the
defendants. Thus, he submits that the judgment and
decree passed by the trial Court, which is confirmed by the
First Appellate Court suffers perversity giving rise to
substantial questions of law and requires consideration at
the hands of the Court.
10. Heard. Perused the records.
11. It is the case of the plaintiff that he entered into
an agreement of sale dated 30.06.1985 in which, the
defendant No.2 who is the husband of defendant No.1
agreed to sell the suit schedule property for a sum of
Rs.4,375/-. The record and the evidence reveal that as on
the date of the said agreement, neither defendant No.1
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nor defendant No.2 had any share, right, title and interest
over the suit schedule property capable of conveying in
favour of plaintiff. The trial Court and the First Appellate
Court have taken note of the fact that defendant No.1
became the owner of the suit schedule property only on
01.07.1985 i.e., the date on which the deed of sale was
executed by the vender of the schedule property in favour
of defendant No.1. Therefore, as rightly held by the trial
Court, which is confirmed by the First Appellate Court that
the claim of the plaintiff having entered into an agreement
with defendant No.1 becomes illusory and fallacious as
neither defendant No.1 nor defendant No.2 had neither
any right to convey the schedule property in favour of the
plaintiff nor to deliver the possession of the same to the
plaintiff.
12. As regards the claim of the plaintiff entering
into second agreement on 24.11.2003 by agreeing to pay
additional amount, also runs contrary to the facts
circumstances of the matter, in that according to the
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plaintiff when defendants had already handed over the
possession of the schedule property in terms of agreement
of sale dated 30.06.1985 under Ex.P1, there was no need
or necessity for the plaintiff to have entered into second
agreement on 24.11.2003 and thereafter filing the suit
seeking specific performance of both the agreements.
Nothing prevented the plaintiff to obtain the deed of sale
directly by paying the agreed sale consideration. If the
case of the defendants demanding additional amount and
the plaintiff having paid the same and entering into the
second agreement is to be believed, no justification or
explanation is given by the plaintiff as to what prevented
him from directly obtaining the sale deed from the
defendants instead of entering into agreement for the
second time that too, after 18 years from the date of first
agreement. In the facts and circumstances of the matter,
the trial Court and the First Appellate Court disbelieve the
case of the plaintiff and defendants entering into the
second agreement.
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13. Further, the trial Court has subjected the
agreement for signature verification and has found that
plaintiff has failed to prove the execution of the said
agreement.
14. The Trial Court and the First Appellate Court on
facts having found as above, no substantial question 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
VBS
