IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.728 OF 2014 BETWEEN:
SHRI LINGAPPA S/O MUNIYAPPA AGED ABOUT 57 YEARS R/AT HULLAHALLI VILLAGE SAKALAVARA POST JIGANI HOBLI, ANEKAL TALUK BANGALORE DISTRICT – 563 106.
(BY SRI SHIVARAJU M.K., ADVOCATE) AND:
1. SHRI NAGARAJA S/O ERAPPA AGED ABOUT 40 YEARS R/AT SARJAPURA TOWN JIGANI HOBLI, ANEKAL TALUK BANGALORE DISTRICT – 563 106.
2. SHRI VEERENDRA KATHURIA S/O CAP. PRANANTH KATHURIA MAJOR, R/AT NO.90/75 SOMPURA VILLAGE B. HOSAHALLI, SARJAPURA HOBLI ANEKAL TALUK BANGALORE DISTRICT – 563 106.
....APPELLANT ….RESPONDENTS THIS RSA IS FILED UNDER SECION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 17.02.2014 PASSED IN R.A.NO.314/2011 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, SIT AT ANEKAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.09.2011 PASSED IN O.S.NO.424/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ANEKAL AND ETC.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is by the plaintiff questioning the judgment and decree dated 17.02.2014 passed in R.A.No.314/2011 on the file of the III Additional District and Sessions Judge Court, Bengaluru Rural District sit at Anekal, confirming the judgment and decree dated 29.09.2011 passed in O.S.No.424/2008 on the file of the Senior Civil Judge and JMFC, Anekal.
2. The facts leading to the top noted appeal are as under:
The present appellant/plaintiff filed a suit against the defendants seeking relief of specific performance of agreement dated 28.06.1992 and 29.06.1992. The case of the present appellant/plaintiff is that the subject matter of suit agreement is agricultural land bearing Sy.No.513 totally measuring 3 acres 27 guntas situated at Sarjapura Village and Hobli, Anekal Taluk, Bengaluru District. It is the case of the appellant/plaintiff that the suit land was owned by one Marappa, who is the grandfather of first defendant in the suit. The appellant further averred in the plaint that there was inter se partition between the family of vendors. In the said partition, 2 acres 7 guntas on the western side was allotted to elder son Hanumappa and the remaining extent of 1 acre 20 guntas of land on the eastern side was allotted to second son Erappa, who is the father of first defendant. It is further averred that Gowramma became owner of western portion measuring 2 acres 7 guntas on the basis of Will executed by her father Hanumappa. The appellant/plaintiff averred in the plaint that the first defendant and the only daughter of Marappa namely, Gowramma offered to sell the suit land measuring 3 acres 27 guntas out of Sy.No.513. After negotiation, the first defendant and Gowramma agreed to sell the suit property and sale consideration was fixed at Rs.1,00,000/- and in furtherance of the said agreement, the appellant/plaintiff paid a sum of Rs.10,000/- to Gowramma and Rs.5,000/- to the first defendant and the terms of the agreement was reduced to writing on 28.06.1992. The plaintiff further averred in the plaint that since the original copy of agreement dated 28.06.1992 was not retained by the appellant/plaintiff, one more agreement came to be executed on 29.06.1992, wherein Gowramma and the first defendant expressed that they were in urgent need of money and hence, requested the appellant/plaintiff to pay further sum of Rs.50,000/-
and Rs.35,000/-. The appellant/plaintiff averred in the plaint that this offer was also accepted and accordingly, he paid Rs.50,000/- and Rs.35,000/- respectively to Gowramma and first defendant. In view of the subsequent events, the first defendant and Gowramma have executed one more agreement dated 29.06.1992. The appellant/plaintiff averred in the plaint that pursuant to these two suit agreements, possession was delivered to him. It was agreed between the plaintiff and defendant No.1 and Gowramma that the sale transaction is to be completed within 11 months from the date of the agreement. The plaintiff has further averred that only when he received suit summons in O.S.No.434/1994 filed by second defendant, he came to know that there is collusion between defendant No.1 and defendant No.2. A specific contention is taken in the plaint that defendant No.2 has purchased the land which is the subject matter of suit agreement knowing fully well about the transaction between the plaintiff and first defendant. Based on these set of facts, the present appellant/plaintiff filed suit for specific performance of contract in O.S.No.424/2008.
3. On receipt of summons, first defendant did not chose to contest the proceedings, whereas the second defendant having tendered his appearance by engaging a Counsel, filed written statement and stoutly denied the entire averments made in the plaint. The second defendant specifically averred in his written statement that he filed suit for specific performance in O.S.No.434/1994 which came to be decreed by judgment and decree dated 30.05.1996. It is also specifically averred in the written statement that the present plaintiff was also a party to the suit and the decree clearly indicates that there is a direction by the Court directing the second defendant to deposit balance sale consideration of Rs.3,22,000/- before the Court within a period of one month. The second defendant also averred in the written statement in compliance of the direction issued in O.S.No.434/1994, he has deposited sale consideration of Rs.3,22,000/-. A specific averment was made in the written statement that the judgment and decree passed in O.S.No.434/1994 is challenged by the present plaintiff in RFA.No.516/1996.
4. Based on the rival contentions of the parties, the Trial Court formulated the following issues:
“1) Whether the plaintiff proves that the defendant No.1 agreed to sell the suit schedule property in favour of the plaintiff for a sum of Rs.1,00,000/- per acre and executed an agreement of sale dated 28.06.1992 by receiving a sum of Rs.5,000/-?
2) Whether the plaintiff further proves that the defendant No.1 executed another fresh agreement of sale dated 29.06.1992 by receiving further advance amount of Rs.35,000/- and delivered possession of the suit schedule properties to him?
3) Whether the plaintiff further proves that he is always ready and willing to perform his part of the contracts and defendant No.1 failed to perform his party of the contract?
4) Whether the plaintiff is entitled to the relief’s sought for?
5) For what Decree and Order?”
5. The Trial Court after having examined the oral and documentary evidence, answered issue No.1 in the negative. The Trial Court having taken judicial note of the admissions given by the witnesses examined to the suit agreement by the plaintiff, has proceeded to hold that the appellant/plaintiff ha failed to prove due execution of the suit agreement. Both witnesses have stated in cross-examination to the effect that they are not aware of the contents of the suit agreement. The Trial Court has also drawn adverse inference against the plaintiff for having not impleaded Gowramma as a party in the suit, who is one of the executant along with first defendant. This material aspect has been dealt with by the Trial Court and the Trial Court having meticulously examined the evidence on record, has come to the conclusion that the appellant/plaintiff has failed to prove due execution of suit agreement vide Exs.P-1 and P-2 and consequently, the suit came to be dismissed. Being aggrieved by the dismissal of the suit by the Trial Court, the appellant/plaintiff preferred appeal in R.A.No.314/2011.
6. The Lower Appellate Court on re- appreciation of the evidence on record has concurred with the finding of the Trial Court and has come to the conclusion that appellant/plaintiff has failed to establish due execution of agreement dated 29.06.1992. The Appellate Court on re-appreciation has recorded a finding that the second defendant has acquired title over the suit property. The Appellate Court has consequently, dismissed the appeal as being devoid of merits.
7. Being aggrieved by the concurrent findings of the Courts below, the appellant/plaintiff is before this Court.
8. Heard learned counsel appearing for the appellant.
9. Learned counsel for the appellant would vehemently argue that the appellant has placed cogent and clinching evidence before the Court to demonstrate that defendant No.1 has executed the agreement of sale dated 29.06.1992 as per Ex.P-1.
Learned counsel for the appellant would vehemently argue that the first defendant has not contested the proceedings and hence, he would submit to this Court that both the Courts were not justified in dismissing the suit by holding that due execution of suit agreement is not proved. Learned counsel for the appellant would vehemently argue that the plaintiff has examined two witnesses to the suit agreement and there is absolutely no rebuttal evidence adduced by the defendants. On perusal of the judgment and decree of the Courts below, this Court is of the view that the plaintiff cannot rely on weakness of the defendants. The plaintiff to support his case has examined two witnesses - PWs.2 and 3 to demonstrate that the first defendant and Gowramma have executed agreement of sale in his favour by receiving advance amount of Rs.60,000/- and Rs.40,000/-. This submission is not acceptable. Both the witnesses have not supported the case of the plaintiff. It is elicited in the cross-examination of both witnesses and they have admitted in unequivocal terms that they are absolutely not aware in regard to the contents of the suit agreement. The agreement dated 29.06.1992 has to be examined in the light of one more agreement set up by the plaintiff which is one day prior to the present suit agreement. The appellant/plaintiff has averred in the plaint that since the original copy of the suit agreement dated 28.06.1992 was not retained, as such, he was compelled to secure one more agreement on the next day. This submission of the plaintiff creates doubt in regard to not only the alleged agreement dated 28.06.1992, but would also create doubt in regard to the present suit agreement dated 29.06.1992 vide Ex.P-1. If these averments in the plaint are conjointly read with the evidence of the witnesses, it would create doubt in regard to the due execution of the suit agreement vide Ex.P-1.
10. It is also relevant to take note of the fact that Gowramma is one of the executant to Ex.P-1 and she is not arrayed as a party to the present suit. This material aspect is also vital to the case of the present appellant/plaintiff. During trial, it has come in evidence that plaintiff has secured sale deed insofar as Gowramma’s share is concerned and there is an agreement between the parties and if the plaintiff was able to secure sale deed from Gowramma, there was no impediment to secure sale deed from the present defendant No.1 also. By consciously not impleading said Gowramma to the present suit, the plaintiff has made an attempt to suppress the true facts. When the burden is on the plaintiff to prove the agreement, he ought to have produced the best evidence available with him and his failure to do so, would enjoin this Court to draw adverse inference against plaintiff. Both the Courts have disbelieved the suit agreement. The question, if any, can only be as to the adequacy of material on which the conclusion by both the Courts as to the genuineness of the suit agreement is arrived as, that, however, is a matter which this Court cannot permit to be canvassed in an second appeal under Section 100 of Code of Civil Procedure. Since due execution of suit agreement is not proved by the appellant, both the Courts have rightly dismissed the suit. On examination of the judgments of both the Courts below, this Court would not find any infirmity in the judgment and decree passed by the Trial Court. In the second appeal, as against the concurrent findings, based on tenuous, weak and patchy evidence, this Court would not be justified in reversing the findings of fact by both the Courts below.
11. In that view of the matter, no substantial questions of law would arise for consideration in the top noted appeal. Consequently, the appeal is dismissed.
No order as to costs.
I.A.No.1/2014 does not survive for consideration and the same is dismissed.
Sd/- JUDGE CA