Karnataka High Court
Smt. S Jayamma vs Sri. D Jayamma on 5 September, 2024
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RFA No. 46 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 46 OF 2018 (MON)
BETWEEN:
SMT. S. JAYAMMA,
W/O LATE. CHELUVE GOWDA,
SINCE DEAD BY LRS.
1. SRI. C. NARAYANASWAMY,
AGED ABOUT 68 YEARS,
S/O LATE CHANNAPPA,
NO.1855/1796, 3RD CROSS,
MASJID ROAD,
NANJANGUD TOWN
MYSORE DISTRICT - 570 004.
2. SRI. C. SOMANNA,
AGED ABOUT 66 YEARS,
S/O LATE CHANNAPPA,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
NO.1946, 2ND CROSS,
Location: HIGH COURT OF
KARNATAKA MASJID ROAD,
NANJANGUD TOWN,
MYSORE DISTRICT- 570 004.
3. SRI. C. LOKESHA,
AGED ABOUT 60 YEARS,
S/O LATE CHANNAPPA
NO.1946, 2ND CROSS,
MASJID ROAD,
NANJANGUD TOWN,
MYSORE DISTRICT-570 004.
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RFA No. 46 of 2018
4. SRI. C. BALU,
AGED ABOUT 64 YEARS,
S/O LATE CHANNAPPA,
C/O RAJANNA,
RESIDING AT
NAGANAHALLI VILLAGE & POST,
MYSURU TALUK AND
DISTRICT 570 003.
5. SRI. BHASKAR,
S/O LATE CHANNAPPA,
AGED ABOUT 62 YEARS,
NO.1923, 2ND CROSS,
MASJID ROAD,
NANJANGUD TOWN,
MYSORE DISTRICT-570 004.
...APPELLANTS
(BY SRI. GURURAJ R., ADVOCATE FOR
SRI. SANTHOSH R NELKUDRI, ADVOCATE)
AND:
SRI. D. JAYAMMA,
D/O DEVE GOWDA,
SINCE DEAD BY HER
LEGAL REPRESENTATIVES
1. SMT. B.S. JAYALAKSHMI,
D/O LATE B. SIDDAIAH,
AGED ABOUT 61 YEARS
R/O NO.2947,
3RD MAIN ROAD,
V.V. MOHALLA,
MYSORE - 570 001.
2. SMT. B.S. SEETHALAKSHMI,
D/O LATE. B.SIDDAIAH,
AGED ABOUT 58 YEARS,
R/AT NO.2947,
3RD MAIN ROAD,
V.V. MOHALLA,
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RFA No. 46 of 2018
MYSORE. 570 001.
3. SMT. B.S. DEVAKI,
D/O LATE. MADE GOWDA,
AGED ABOUT 55 YEARS,
R/AT NO.2947,
3RD MAIN ROAD,
V.V. MOHALLA,
MYSORE - 570 001.
4. SMT. B.S. GIRIJA,
D/O LATE. B. SIDDAIAH,
AGED ABOUT 52 YEARS,
R/AT NO.2947,
3RD MAIN ROAD,
V.V. MOHALLA,
MYSORE - 570 001.
RESPONDENTS NOS. 2 TO 4 ARE
REPRESENTED BY THEIR,
GENERAL POWER OF ATTORNEY
HOLDER SMT. B.S. JAYALAKSHMI
AGED ABOUT 58 YEARS
D/O LATE. B. SIDDAIAH,
R/AT NO.2947,
3RD MAIN ROAD, V.V. MOHALLA,
MYSORE - 570 001.
5. SRI. K.V. DINESH KUMAR,
AGED ABOUT 48 YEARS,
S/O LATE J. VEERABHADRE GOWDA
KIRANGURU VILLAGE,
K. SHETTAHALLI HOBLI,
SRIRANGAPATNA TALUK - 570 001.
...RESPONDENTS
(BY SRI. Y. V. PRAKASH, ADVOCATE FOR R1 TO R4,
R5 IS SERVED BUT UNREPRESENTED)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.4.2017 PASSED IN OS
NO.903/2008 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE,
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RFA No. 46 of 2018
MYSURU, PARTLY DECREEING THE SUIT FOR RECOVERY OF
MONEY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE UMESH M ADIGA)
This is defendants appeal against the judgment and
decree dated 20.04.2017 passed in O.S.No.903/2008 on
the file of the Principal Senior Civil Judge and C.J.M at
Mysuru. (for short 'trial court').
2. We refer to the parties as per their ranks before
the trial court.
3. Brief facts of the case are that deceased
defendant No.1 was the owner of the suit property. She
intended to sell the said property. The deceased plaintiff
intended to purchase the said property. Both the parties
agreed to the said transaction and plaintiff agreed to
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purchase the said property for Rs.37,80,000/-.
Accordingly, an agreement of sale was executed on
15.02.2007 by defendant No.1. The plaintiff paid advance
amount of Rs.17,80,000/-. It was agreed that balance
amount of Rs.20,00,000/- would be paid within a period of
three months from the date of agreement of sale.
Defendant No.2 was the agent of defendant No.1 and he
negotiated for the sale of the property. The consideration
amount was also paid to defendant No.2 by way of cheque
dated 15.02.2007 for Rs.17,80,000/- and defendant No.2
encashed the said cheque.
4. Defendant No.1 failed to comply with the terms
of the agreement. Defendant Nos.1 and 2 colluded
together and showed different property to the plaintiff at
the time of execution of agreement of sale. Later on
plaintiff came to know that defendant No.1 was not at all
the owner of the said property and defendant Nos.1 and 2
cheated her and gulped the amount given to them.
Therefore, plaintiff lodged a complaint against the
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defendants in the concerned police station. Defendant
No.1 had no valid title to sell the said property. In view of
the mischievous act and misrepresentation of the
defendants, the plaintiff was constrained to cancel the
agreement and requested defendant No.1 to repay the
advance amount with interest by issuing legal notice on
12.09.2007. With these reasons, she prayed to decree the
suit for Rs.21,53,800/- with interest at the rate of 12%
p.a from the date of the suit till realization.
5. Defendant No.1 contended that she was the
owner of the property. She purchased the said property
through court sale in Ex.No.56/1957 arising from the
judgment and decree in O.S.No.148/1954 on the file of the
sub-ordinate judge court, Mysuru. Defendant No.1 had
entered into an unregistered agreement of sale, to sell the
property for Rs.37,80,000/-. But at the time of execution
of the agreement of sale, no earnest money was paid to
her, though plaintiff assured that she would pay the
amount immediately after the execution of the document.
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6. Defendant No.1 further stated that defendant
No.2 was not her agent and he had no role in the said
agreement of sale. It was told to her that defendant No.2
was relative of plaintiff and his presence was secured to
sign on the document as a witness. Therefore, if plaintiff
had paid amount to defendant No.2, that would not bind
rights of defendant No.1. She replied to the notice of
plaintiff through her advocate. The plaintiff is not at all
entitled for any relief as prayed in the suit. With these
reasons, prayed to dismiss the suit.
7. Defendant No.2 has also denied the contention
of the plaintiff. According to him, he is known to the
plaintiff and whenever plaintiff was in financial needs he
used to obtain loan from him and he does not know about
the said transaction between plaintiff and defendant No.1
and he denies receipt of Rs.17,80,000/- on behalf of
defendant No.1. He denied that defendant Nos.1 and 2
cheated the plaintiff and showed different property at the
time of execution of agreement of sale.
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8. Defendant No.2 has further contended that he
is close relative of plaintiff. He is no way connected with
the alleged sale transaction. He was not the agent of
deceased defendant No.1. He had not negotiated for sale
and in his presence there was no discussion regarding the
sale of the property. He signed on the agreement as per
the request of the plaintiff and on the trust and good faith
over the plaintiff, other then that he had no knowledge
about the said transaction. Defendant No.2 has further
contended that plaintiff had issued cheque dated
15.02.2007 to him to clear the amount due to him. The
said amount was not at all connected with the alleged sale
transaction. The plaintiff in collusion with police, filed a
false case against him. He is not liable to pay any amount
to plaintiff. With these reasons prayed for dismissal of the
suit.
9. From the rival contentions of the parties, the
trial court framed necessary issues.
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10. The plaintiff to prove his case examined herself
as PW-1 and got marked Exs.P1 to P11 to prove her case.
The defendants examined DW1 and 2 and got marked
Exs.D1 to D6.
11. The learned trial judge after hearing both the
parties and appreciating the pleadings and evidence on
record partly decreed the suit and directed the defendants
to pay sum of Rs.17,80,000/- with interest at the rate of
9% p.a from the date of the payment of the amount to the
plaintiff till its realization, vide judgment dated
20.04.2017. The same is challenged by defendant No.1,
in the present appeal on the grounds stated in appeal
memo.
12 We have heard the arguments of learned
counsel for both side and perused records.
13 Both side have not disputed the execution of
agreement of sale Ex.P1, dated 15/02/2007. It was
signed by plaintiff, defendant No.1 and her two sons by
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name C. Somanna and Bhaskar, who are appellant Nos.2
and 5 in the present appeal, as well as defendant No.2.
The document also reveals that an amount of
Rs.17,80,000/- was paid on the date of the sale
agreement. The contention of the defendants was that an
amount of Rs.17,80,000/- mentioned in Ex.P1 was not at
all paid to defendant No.1; The plaintiff assured that at
the time of registration of the document, she will pay the
said amount. The plaintiff sent notice to defendant No.1
dated 12.09.2007, calling upon the defendant No.1 to
refund the earnest money paid to her. Defendant No.1
replied to the said notice as per Ex.P3 dated 03.10.2007.
In the said reply notice, for the first time, she had
contended that no amount was paid to her under Ex.P1. If
it was true then why she did sign on Ex.P-1 wherein
payment of amount has been stated. Defendants did not
give any explanation about the same. Till sending of Ex.P-
3, at no point of time defendant No.1 had sent notice to
plaintiff calling upon her to pay the same and indicating
that though it was mentioned in Ex.P-1 that amount was
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paid but no such amount was paid. Hence, the said
contention of defendant No.1 is not tenable.
14 Ex.P1 is the agreement of sale executed
between the parties in writing. Defendant No.1 agreed to
sell the property and plaintiff intended to purchase the
same for sale consideration of Rs.37,80,000/- and earnest
money of Rs.17,80,000/- was paid to defendants. When
the terms of the contract was reduced to writing, as
provided under Sections 91 and 92 of the Indian Evidence
Act, defendants are not permitted to take a defence
contrary to the said document. On this count also the said
defense is not sustainable.
15 It is the case of the plaintiff that the said
amount of Rs.17,80,000/- was paid through cheque and
which was given to defendant No.2, who was the agent of
defendant No.1. Defendant No.2 contended that plaintiff
was his relative and he was not at all an agent of
defendant No.1. Defendant No.2 has contended that
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whenever plaintiff was in need of finance, he was paying
to her. In that regard, amount of Rs.17,80,000/- was due
to him from the plaintiff and to clear the same, plaintiff
had issued cheque, which was encashed by him. Amount
of earnest money mentioned in Ex.P1 as well as cheque
amount are one and the same. The onus shifts on to
defendant No.2 to show that he was financing to the
plaintiff and an amount of Rs.17,80,000/- was due from
the plaintiff. To clear the dues, the plaintiff had issued
the said cheque for Rs.17,80,000/-. Except self serving
statement of the defendant, no records are placed before
the court to prove his contention. Amount due was not
small. No prudent person would pay such huge amount
without record. Defendant No.2 has not disclosed his
relationship with plaintiff. Even he did not disclose in the
oral evidence about loan transactions. Hence, defendant
No.2 failed to prove that Rs.17,80,000/- cheque was given
to him to clear his dues. The case of plaintiff is more
probable.
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16 In the cross-examination of DW-2, he has
stated that his annual income was Rs.2 to 3 lakhs. Under
such circumstances, it is difficult to believe that he was
capable of paying Rs.17,80,000/- to the plaintiff.
17 The learned trail judge has considered all these
facts. Learned trial judge has also appreciated the
pleadings and evidence of both the parties and came to
right conclusion. It does not call for any interference.
There are no valid grounds to admit the appeal. The
appeal is devoid of merits and therefore, deserves to be
dismissed at the stage of admission. Accordingly, we pass
the following:
ORDER
The appeal is dismissed.
The impugned judgment and decree passed by the
learned trial judge in O.S.No.903/2008 dated 20.04.2017
is confirmed.
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Registry is directed to send back the trial court
records along with the copy of this judgment.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
AG
