IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 1145 OF 2016 (MON) BETWEEN:
B. H. A. RAVI AGED ABOUT 45 YEARS, SON OF LATE D.S. HENRY CUTINHA, RESIDING AT N.R. PURA ROAD, BALEHONNUR POST - 577 112, N.R. PURA TALUK CHIKKAMAGALURU DISTRICT.
(BY SRI. G.M. ANANDA., ADVOCATE) AND:
SRI. K. MOHAMMED AGED ABOUT 54 YEARS, SON OF IBRAHIM, TIMBER MERCHANT, RESIDING AT NOORANI MASJID ROAD, CHIKKAMAGALURU - 577 101.
(BY SRI. N. R. RAVI KUMAR., ADVOCATE) ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC. AGAINST THE JUDGMENT AND DECREE DATED 07.11.2015 PASSED IN R.A.NO.75 OF 2013 ON THE FILE OF PRL. SENIOR CIVIL JUDGE & CJM, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.03.2013 PASSED IN O.S.NO.329 OF 2009 ON THE FILE OF 1ST ADDL.CIVIL JUDGE AND JMFC., CHIKKAMAGALURU.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellant and the respondent.
2. This appeal is filed by the defendant in O.S.No.329/2009 on the file of the I Additional Civil Judge and JMFC, Chikmagaluru. This suit is by the respondent for recovery of a sum of Rs.2,40,739/- with interest at the rate of 12% per annum. The Trial Court by its judgment on 4.3.2013, has decreed the sit directing the appellant to pay a sum of Rs.1,50,000/- with future interest at the rate of 6% per annum, but the trial Court has disallowed the claim for damages and interest as claimed by the respondent. The appellant’s appeal in R.A.75/2013 on the file of the Principal Senior Civil Judge and CJM, Chikmagaluru is dismissed by the Appellate Court on 7.11.2015. As such, this Second Appeal is filed by the appellant.
3. The learned counsel for the parties submit that the undisputed facts are that the appellant had entered into an agreement dated 6.9.2006 to purchase standing “jungle and reserved” timber in the lands in Sy.No.182, 186, 190 and 195 of Belavinakodige, Koppa Taluk. In terms of this agreement, the appellant was entitled to cut and remove the aforesaid standing timber. The appellant entered into the agreement dated 6.9.2006 in consideration of a promise by the respondent to pay a sum of Rs.2,00,000/-. The respondent paid a sum of Rs.1,50,000/- and the respondent had to pay a further sum of Rs.50,000/- after he had cut and removed the standing timber. The respondent instituted a suit for recovery of money as aforesaid contending that the appellant had executed the sale agreement dated 6.9.2006 suppressing that he had entered into prior agreement with a certain Sri K.B. Ibrahim Haji on 10.8.2006 for sale of the same timber, and therefore, the respondent could not remove the standing timber in terms of the agreement dated 6.9.2006. However, the appellant denied the execution of the agreement dated 6.9.2006 and set up a parallel transaction with the respondent asserting that the suit was based on a fabricated document.
4. The Trial Court on appreciation of the evidence placed on record on behalf of the respondent concluded that the respondent was able to establish the due execution of the agreement dated 6.9.2006 as well as the payment of Rs.1,50,000/-. The appellant did not lead any evidence, except marking Exhibits D.1 and D.2 - D.2 being a separate agreement relating to another transaction asserted by him. The Trial Court’s judgment is confirmed by the appellate Court while answering the question whether the impugned judgment and decree by the Trial Court was against law, facts, evidence and probabilities of the case.
5. The learned counsel for the appellant submits that both the courts below have erred in not considering a categorical admission in the cross- examination by the respondent that he had cut and removed the standing timber in terms of the agreement dated 6.9.2006. This admission, according to the learned counsel for the appellant, is a clinching evidence that ought to have been considered by the courts below. The failure to consider such admission has resulted in impermissible judgments by the courts below.
6. Perused the impugned judgments and the evidence of the PW.1 including the cross-examination on 12.6.2012. The learned counsel for the appellant relies upon one statement by the respondent No.1, recorded by the trial Court in Kannada which when translated reads that the respondent had removed the standing timber from the lands after the agreement. It is settled law that the evidence will have to be read in entirety and the admission by a party if it is to be used to non suit a person, will have to be categorical and unequivocal. It is undisputed that the respondent in the further cross-examination on the same day has volunteered that he has not removed the timber for which the agreement dated 6.9.2006 was executed. The statement relied upon by the learned counsel when read cumulatively with the other evidence on record, including the respondent’s further statement in cross- examination on the same day, it cannot be said that there is an unequivocal or clear admission. Further, it is also undisputed by the learned counsel for the appellant that the appellant has not denied the other agreement executed by the appellant for the sale of the same timber in favour of Sri. Ibrahim, and this undisputed agreement would corroborate that the respondent has not been able to cut and remove the timber for which the agreement was executed. In the light of the above, this Court is of the opinion that no substantial question of law arises for consideration. Therefore, the appeal is dismissed.
SD/- JUDGE nv Ct:sr