Karnataka High Court
Kashim S/O Allavuddin Mulla vs Iqbal S/O Hajarat Walasang on 12 August, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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RSA No. 200357 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO.200357 OF 2016 (SP)
BETWEEN:
KASHIM S/O ALLAVUDDIN MULLA,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE,
R/O: UMARAJ, TQ: INDI,
DIST: VIJAYAPUR.
...APPELLANT
(BY SRI B.C.JAKA, ADVOCATE)
AND:
IQBAL S/O HAJARAT WALASANG,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE,
R/O: UMARJA, TQ: INDI,
DIST: VIJAYAPUR - 572 10.
...RESPONDENT
Digitally signed (RESPONDENT IS SERVED)
by SHIVALEELA
DATTATRAYA THIS REGULAR SECOND APPEAL IS FILED UNDER
UDAGI SECTION 100 OF CPC, PRAYING TO CALL FOR THE RECORDS
Location: HIGH
COURT OF IN R.A.NO.14/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE
KARNATAKA AND JMFC, INDI, AND O.S.NO.48/2009 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, INDI TO EXAMINE THE SAME AND SET
ASIDE THE JUDGMENT AND DECREE DATED 29.09.2016,
PASSED IN .R.A.NO.14/2016, BY THE SENIOR CIVIL JUDGE
AND J.M.F.C., INDI AND THE JUDGMENT AND DECREE, DATED
01.04.2013, PASSED IN O.S.NO.48/2009, BY CIVIL JUDGE AND
J.M.F.C., INDI, BY ALLOWING THE ABOVE APPEAL AND ETC.,
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
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RSA No. 200357 of 2016
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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR
AMARANNAVAR
ORAL JUDGMENT
This regular second appeal is filed by the appellant -
defendant praying to set-aside the judgment and decree
dated 29.09.2016 passed in R.A.No.14/2016 by the
learned Senior Civil Judge and JMFC, at Indi, wherein the
judgment and decree dated 01.04.2013 passed in
O.S.No.48/2009 by the learned Civil Judge and JMFC, Indi
has been affirmed.
02. Heard the learned counsel for the appellant.
03. The respondent - plaintiff has filed the suit
against the appellant - defendant in O.S.No.48/2009 for
the relief of specific performance of sale agreement dated
26.05.2006. The appellant - defendant said to have
executed the said sale agreement, agreeing to sell his
property bearing Sy.No.16/1 measuring 04 acres 01
gunta. The sale consideration agreed by the parties is
Rs.3,00,000/- and at the time of sale agreement, the
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respondent - plaintiff has paid Rs.2,75,000/- and agreed
to pay balance of Rs.25,000/- on the date of registration
of sale deed. As the appellant - defendant postponed the
execution of sale deed, the respondent - plaintiff got
issued legal notice on 19.01.2009 calling upon the
appellant - defendant to execute the sale deed by
receiving the balance consideration amount. But the
appellant - defendant not replied to the said legal notice.
Therefore, the respondent - plaintiff has filed suit for the
relief of specific performance against the appellant -
defendant. In the said suit the appellant - defendant taken
the contention that the plaintiff was money lander. He has
availed the hand-loan of Rs.50,000/- and for the security
of the said amount borrowed, he has executed the
registered document in favour of the respondent -
plaintiff. He was not aware that the said document
executed was the sale agreement. He contended that he
availed amount only Rs.50,000/- as hand-loan from the
respondent - plaintiff.
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04. On the basis of the above said pleadings, the
Trial Court has framed the following issues:-
I. Whether the plaintiff proves that, the defendant has
executed the agreement of sale with respect to the
suit property on 26.05.2006 and received the
earnest money of Rs.2,75,000/-.
II. Whether the plaintiff further proves that, the alleged
sale agreement executed only for the security of loan
amount of Rs.50,000/-, which is borrowed from the
plaintiff.?
III. Whether the plaintiff further proves that, he was
always ready and willing to perform his part of
contract.?
IV. Whether the plaintiff entitled the relief of specific
performance of contract.?
V. What order and decree.?
05. The plaintiff examined himself as PW.1 and got
marked Ex.P.1 to Ex.P.3 and got examined two attesting
witnesses to the agreement of sale as PW.2 and PW.3. The
defendant has not led any evidence. The Trial Court after
appreciating the evidence on record has answered Issues
No.1, 3 and 4 in the affirmative and Issue No.2 in the
negative and decreed the suit.
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06. Aggrieved by the said judgment and decree of
the Trial Court, the appellant - defendant has filed
R.A.No.14/2016, on the file of the Senior Civil Judge and
JMFC, Indi. The First Appellate Court after hearing the
arguments of both sides has dismissed the appeal on
merits, affirming the judgment and decree passed by the
Trial Court.
07. Learned counsel for the appellant - defendant
would contend that the sale agreement has been got
executed in the guise of security of hand-loan of
Rs.50,000/-. The Trial Court and the First Appellate Court
have not appreciated the evidence on record properly and
erred in passing the impugned judgment.
08. Having heard the learned counsel for the
appellant - defendant, this Court has perused the
impugned judgment and decree and the Trial Court
records.
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09. The sale agreement dated 26.05.2006 is at
Ex.P.2 and it is registered document. Ex.P.1 is the record
of right of the suit property and it is standing in the name
of the appellant - defendant. Ex.P.3 is the copy of the
legal notice got issued by the respondent - plaintiff to the
appellant - defendant calling upon him to execute the sale
agreement by receiving the balance consideration amount.
Even after service of said notice, the appellant - defendant
has not been replied the said legal notice.
10. The appellant - defendant contended that he
has taken hand-loan of Rs.50,000/- from the respondent -
plaintiff and for the security purpose of the said amount,
he has executed the registered document. He has not
known the said registered document is sale agreement.
11. PW.2 and PW.3 are the attesting witnesses to
the sale agreement - Ex.P.2. PW.2 and PW.3 specifically
deposed regarding the execution of sale agreement by the
appellant - defendant in favour of respondent - plaintiff by
receiving an advance amount of Rs.2,75,000/- in their
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presence and they had affixed the signature on it as
witnesses. The said evidence of PW.2 and PW.3 will go to
establish that as per Ex.P.2, the agreement of sale has
been executed by the appellant - defendant in favour of
the respondent - plaintiff. There is no material to show
that the appellant - defendant has borrowed hand-loan of
Rs.50,000/- and for the security of the same he has
executed the registered document in favour of the
respondent - plaintiff. In order to establish his defence,
the appellant - defendant has not entered into witness
box.
12. If the party in order to prove his defence, has
not entered into witness box, the presumption will arise
that the case set up by the said person is not correct. The
Hon'ble Supreme Court in the case Iswar Bhai C. Patel
alias Bachu Bhai Patel vs. Harihar Behera and
another1 and in the case of Vidhyadhar vs. Mankikrao
and another2, has held as under:-
AIR 1999 SC 1341
AIR 1999 SC 1441
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"Where a party to the suit does not appear into
the witness box and states his own case on oath
and does not offer himself to be cross examined
by the other side, a presumption would arise
that the case set up by him is not correct."
13. Considering the above aspect, the Trial Court
and the First Appellate Court rightly appreciated the
evidence on record and rightly decreed the suit of the
plaintiff. There are no grounds made out to admit the
regular second appeal. No substantial question of law will
arise for consideration. Hence, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
KJJ
Ct;Vk
