1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2021/2016 (SP) BETWEEN:
CHIKKA BABA SABI S/O LATE HUSSEN SABI DEAD BY LRs.
1. RAFFIC SABI S/O CHIKKABABA SABI AGED 42 YEARS 2. CHIKKA PYARU SABI S/O CHIKKASABI AGED 40 YEARS 3. NENNE SABI S/O CHIKKABABA SABI AGED 36 YEARS ALL ARE R/AT NICHANAGUNTE VILLAGE DUGGASANDRA HOBLI MULBAGAL TALUK – 563 131 APPELLANT 1 AND 2 ARE NOW R/AT NAKKABANDA NEAR PUNGANOOR CITY PALAMANER ROAD CHITTOOR DISTRICT – 517 507 APPELLANT 3 IS NOW R/AT VEEBHUTHIPURAM HAL POST BANGALORE CITY – 560 008 … APPELLANTS (BY SRI V.M.SRINIVASA MURTHY FOR SRI C.K.HIMALAYA, ADVOCATES) 2 AND:
T.V.SHANTHAMMA W/O L.VENKATESHAPPA AGED 56 YEARS VIJAYAKUMARI ROAD SRINIVASAPURA TOWN & TALUK KOLAR DISTRICT – 563 135 …RESPONDENT (BY SRI G.A.SRIKANTE GOWDA, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:31.08.2016 PASSED IN R.A.NO.05/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ITINERATING AT MULBAGAL, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 17.12.2013 PASSED IN O.S.NO.166/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., MULBAGAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the defendants arises out of the judgment and decree dated 31.8.2016 in Regular Appeal No.05/2014 passed by the II Additional Senior Civil Judge & J.M.F.C., Kolar (Itinerating at Mulbagal).
2. By the impugned judgment and decree, the First Appellate Court dismissed the application of the plaintiff under Order XLI Rule 27 CPC, allowed the appeal of the plaintiff and reversed the judgment 3 and decree dated 17.12.2013 in O.S.No.166/2012 passed by the Principal Civil Judge & J.M.F.C., Mulbagal and decreed the suit of the plaintiff for specific performance of agreement.
3. Respondent was the plaintiff and the appellants were the defendants before the trial court. The subject matter of the suit was land bearing Sy.No.55 New No.80 measuring 1 acre 30 guntas situated in Nichanagunte village, Duggasandra Hobli, Mulbagal, Taluk.
4. Plaintiff filed O.S.No.166/2012 before the Principal Civil Judge & J.M.F.C., Mulbagal. Her case in brief is as follows:
On 9.5.2011, the defendants executed Ex.P2 agreeing to sell the suit schedule property for consideration of `65,000/- and received `60,000/- as advance money. The defendants agreed to receive the balance consideration and execute the sale deed whenever plaintiff demands. Later defendants 4 started resiling from the contract. She got issued notice Ex.P4 dated 17.5.2012 calling upon the defendants to execute the sale deed. The defendants issued a false reply dated 07.06.2012 as per Ex.P13 denying the execution of the agreement of sale. She was always ready and willing to perform her part of contract. Thus, she sought decree for specific performance.
5. The defendants contested the suit denying the execution of the agreement of sale or any such agreement between them. They contended that the agreement of sale is concocted one and they denied the readiness and willingness on the part of the plaintiff to perform the contract. The agreement is void as that violated the condition of grant order of the land.
6. On the basis of the pleadings, the trial court framed the following issues:
“1. Whether the plaintiff proves that the defendants have executed agreement of sale 5 dated 9.5.2011 agreeing to sell the suit property for total consideration of Rs.65,000/- and received earnest money of Rs.60,000/- on the same day?
2. Whether the defendants prove that the plaintiff has forged their signatures and got created the agreement to sell dated 9.5.2011 as alleged in the written statement?
3. Whether the plaintiff proves that she was ever ready and willing to perform her part of contract?
4. Whether the plaintiff is entitled for specific performance of contract?
5. What order or decree?
7. On behalf of the plaintiff, her husband, who was her Special Power of Attorney Holder, was examined as PW-1 and three other witnesses were examined. Exs.P1 to P13 were marked. On behalf of the defendants, second defendant was examined as DW-1 and one Ramakrishnappa was examined as DW-2 and Exs.D1 to D4 were marked.
8. The trial court after hearing the parties held that the execution of agreement of sale was proved and rejected the contention of the defendants that, Ex.P2 the agreement of sale was concocted 6 forging the signatures of the defendants. However, the trial court held that readiness and willingness on the part of the plaintiff is a mental state of the plaintiff, therefore PW-1 her Power of Attorney Holder is not competent to speak to that. Thus, the trial court held that issue against the plaintiff and dismissed the suit.
9. The plaintiff challenged the said judgment and decree before the first appellate court in R.A.No.05/2014. The first appellate court on hearing parties allowed the appeal on the following grounds:
i) Defendants did not question the findings of the trial court regarding execution of the document either by way of cross-objections or by filing a cross-appeal, therefore, the said finding has attained finality.
ii) So far as readiness and willingness, PW-1 was none else but the husband of the plaintiff and transaction was within his personal knowledge. Therefore, the judgment of the Hon’ble Supreme Court in S.Kesari Hanuman Goud –vs- Anjum 7 Jehan and Others (2013) 12 SCC 64 relied upon by the trial court to reject his evidence was not applicable to the facts of the case.
iii) The grant order in favour of the defendants was during 1995-96. On computing from 1995-96, 15 years period of non-alienation completed by 2010. Therefore, the contention that the agreement was void is untenable.
10. This being a Regular Second Appeal under Section 100 CPC, can be admitted for hearing only if the defendants make out a substantial question of law for consideration.
11. What is “substantial question of law” is propounded by the Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. AIR 2001 SC 965. It was held that on the question of facts, the first appellate court is the last court. It was further held that all questions of law are not the substantial questions of law. It was held 8 that to be ‘substantial’ a question of law, that must be debatable, not previously settled by law of the land or a binding precedent and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. It was held that to be a question of law there must be first a foundation laid for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case.
12. In the light of the aforesaid ratio, this Court has to find out whether this case involves any substantial question of law.
13. Though the defendants disputed the execution of the agreement of sale Ex.P2 and alleged that same was forged one, did not lead evidence to prove such defence. The trial court on appreciation of 9 evidence rejected their contention and held issue Nos.1 and 2 in favour of the plaintiff. As pointed out by the first appellate court, the defendants did not question those findings by filing cross-objections or appeal. Thus, the said findings attained finality. Therefore the execution of the document does not become substantial question of law.
14. So far as the validity of the said agreement, as per Ex.P3, the name of defendant No.1 was mutated in the revenue records by virtue of the order in LNDIR 235/91-92 and such mutation entries were made in 1995-96. Prohibition against alienation was for 15 years from the date of the order.
15. The defendants tried to rely on Rule 9 of the Karnataka Land Grant Rules, 1969, which was amended in 2005 to substitute non-alienation period of 15 years by 25 years. But those rules came into force in 2005 and grant was prior to that, therefore, the first appellate court rightly held that such rules 10 cannot be retrospective unless they are so made applicable with retrospective effect.
16. The first appellate court further held that the agreement, which was executed in 2011, was beyond the said period of 15 years. Therefore, it is not vitiated or void. This Court does not find any substantial question of law on that aspect also.
17. So far as the readiness and willingness, learned Counsel for the appellants relying on the judgment in S.Kesari Hanuman Goud’s case referred to supra contends that PW-1, who was Special Power of Attorney Holder of plaintiff, was incompetent to give evidence about the personal knowledge of readiness and willingness on the part of the plaintiff and submits that said question is substantial question of law.
18. Per contra, learned Counsel for the respondent submits that PW-1 is none else but the husband of the plaintiff and it was not suggested to 11 him in his evidence that he does not have personal knowledge. He further submits that having regard to that, the first appellate court was right in holding that the judgment in S.Kesari Hanuman Goud’s case is not applicable.
19. In S.Kesari Hanuman Goud’s case, it was held that Power of Attorney Holder can depose in place of the principal only with regard to acts done by him in exercise of the power granted to him by virtue of the instrument and he cannot depose in respect of the matter which was within the personal knowledge of the principal only.
20. Therefore, the question was whether PW-1 had done some acts in the transaction and whether he had the personal knowledge of the transaction. The copies of the exhibits and depositions of the PWs-
1 to 4 and DWs-1 and 2 were made available for perusal of this Court. They show that nowhere 12 defendants denied the personal knowledge of PW-1 about the transaction in question.
21. Defendants did not dispute the relationship of PW-1 with the plaintiff. As against that, suggestion made to PW-1 indicates that personal knowledge of the transaction and acts of the plaintiff were imputed to PW-1. It was suggested to him that stamp duty was paid after one month of the transaction.
22. Having regard to such evidence, it cannot be said that PW-1 had no personal knowledge of the transaction. To state that readiness and willingness was purely a mental state of the plaintiff, it is not a mens rea as contemplated in the criminal cases. Therefore, that aspect also does not constitute any substantial question of law in the case. This court does not find any substantial question of law to admit the appeal. Therefore, the appeal is dismissed.
13 In view of disposal of the appeal, I.A.Nos.1/2016 and 1/2018 do not survive for consideration and disposed off accordingly.
KNM/-
Sd/- JUDGE