IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.238/2010 C/W R.S.A.No.955/2010 R.S.A.No.238/2010:
BETWEEN:
1.N Y SHANKAR S/O LATE H R YAJNESHWARA SHASTRI AGED ABOUT 59 YEARS R/A NO.1918, "KAILASA", 30TH CROSS 14TH MAIN, BANASHANKARI 2ND STAGE BENGALURU -560 002 (DEAD) 2.N Y VISHWANATH S/O LATE H R YAJNESHWARA SHASTRI MAJOR 3.N Y RAJESHWARI D/O LATE H R YAJNESHWARA SHASTRI MAJOR APPELLANTS No. 2 & 3 ARE R/AT No.1461, 4TH CROSS KOTHAWADIPURA AGRAHARA MYSORE-570024 (DEAD) ...APPELLANTS (BY SRI MANMOHAN P N, ADVOCATE) AND:
1.C NAGARAJU S/O CHANNU SETTY AGED ABOUT 59 YEARS R/O MUTHATHI VILLAGE KASABA HOBLI T NARASIPURA TALUK MYSORE DISTRICT.
2. SRI B SATYANARAYANA S/O C.R.BASAVE GOWDA AGED 37 YEARS MUTHATHI VILLAGE, KASABA HOBLI, T.NARASIPURA TALUK. ..RESPONDENTS (BY SRI M BABU RAO, ADVOCATE FOR R-1, SRI VENUGOPAL M S., ADVOCATE FOR R-2) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED:28.10.2009 PASSED IN R.A.No.21/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) T.NARASIPURA, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT & DECREE DATED 07.07.2007 PASSED IN O.S.No.64/1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN) T.NARASIPURA.
R.S.A.No.955/2010:
BETWEEN:
B SATHYANARAYANA S/O C.R. BASAVEGOWDA AGED ABOUT 37 YEARS R/AT MUTHATHI VILLAGE KASABA HOBLI, T.NARASIPURA TALUK. ..APPELLANT (BY SRI MARIAPPA M S., ADVOCATE) AND:
1.C NAGARAJU S/O CHANNU SHETTY AGED ABOUT 60 YEARS R/O MUTHATHI VILLAGE KASABA HOBLI, T.NARASIPURA TALUK.
2.N Y SHANKAR S/O LATE YAGNESHARA SHASTRI AGED ABOUT 59 YEARS (DEAD) 3.N Y VISHWANATH S/O LATE H R YAJNESHWARA SHASTRI MAJOR, 4.N Y RAJESHWARI D/O LATE H R YAJNESHWARA SHASTRI MAJOR, RESPONDENTS 2 TO 4 ARE RESIDING AT No.1461, 4TH CROSS KOTHAWADIPURA AGRAHARA MYSORE - 24.
(DEAD) ..RESPONDENTS (BY SRI M BABU RAO, ADVOCATE FOR R1, SRI MANMOHAN P.N., ADVOCATE FOR R-3) BRINGING LRS OF DECEASED R-2 & 4 DISPENSED VIDE ORDER DATED 30.01.2019.
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.10.2009 PASSED IN R.A.NO.22/2007 ON THE FILE OF THE CIVIL JUDGE(SR. DN.), T.NARASIPURA, DISMISSING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED:07.07.2007 PASSED IN O.S.No.64/1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN), T.NARASIPURA.
THESE RSAs COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These are the two appeals directed against the Judgment and decree passed by the learned Civil Judge, Sr.Dn., T.Narasipura in R.A.No.21/2007 and R.A.No.22/2007.
2. The Judgment and decree in R.A.No.21/2007 has been challenged in RSA No.238/2010 whereas the Judgment and decree in R.A.22/2007 is being challenged in RSA No.955/2010.
3. RSA No.238/2010 is filed by the legal representatives of N.R.Yagneswara Sastry and RSA No.955/2010 is preferred by B.Satyanarayana. Both the appellants herein are also the appellants before the First Appellate Court.
4. The learned Civil Judge, Jr.Dn, T.Narasipura, partly decreed the suit filed by the plaintiff wherein the plaintiff was directed to pay an amount of Rs.20,000/- to defendants 1(a) to 1(c) and directed Defendants 1(a) to (c) and defendant No.2- B.Satyanarayana to execute sale deed in favour of the plaintiff within 40 days after receiving balance sale consideration of Rs.20,000/- failing which the sale deed to be executed at the instance of the court through Court Commissioner. It is against this Judgment, the defendants 1(a) to 1(c) being legal representatives of Yagneswara Sastry (deceased) have sought for setting aside of the Judgment passed in O.S.64/1992 by the learned Civil Judge, Jr.Dn., T.Narasipura in R.A.No.21/2007. Similarly, B.Satyanarayana, who is said to be the purchaser of the suit schedule property during pendency of O.S.No.64/1992, filed R.A.No.22/2007 challenging the decree for specific performance.
5. In order to avoid confusion and overlapping, the parties herein are referred to with reference to the rankings held by them before the trial court.
6. Defendant No.2-B.Sathyanarayana is a subsequent purchaser. The respondent in both the cases is plaintiff. The claim of the defendants is that plaintiff- Nagaraju entered into an agreement of sale with one N.R. Yagneswara Sastry, father of defendants 1(a) to 1(c) wherein Yagneswara Sastry agreed to sell land to the extent of 36 guntas in Sy.No.31/1 at Muthathi Village, T.Narasipura Taluk for cash consideration of Rs.34,000/- and an amount of Rs.12,000/- was paid by way of advance amount and the balance amount was agreed to be paid within a month. On 03.09.1989, the plaintiff paid an amount of Rs.2,000/- to the defendant and sought time of fifteen days for the registration of sale deed, that was accepted by the defendant- Yagneswara Sastry. As the sale deed did not happen, plaintiff got issued a legal notice to the defendants.
7. Original suit for the relief of specific performance was filed against the legal representatives of said Yagneswara Sastry seeking specific performance of the agreement dated 03.08.1989. The learned Civil Judge, Jr. Dn., T.Narasipura, partly decreed the suit wherein the claim of the plaintiff in respect of payment of Rs.20,000/- being the balance sale consideration as per Ex.P3 was dismissed and was directed to pay the said amount of Rs.20,000/-. However, the sale agreement was ordered to be executed within forty days and plaintiff was directed to pay the said balance sale consideration. Meanwhile, defendant No.2 B.Satyanarayana is reported to have purchased the schedule property from the legal representatives of the defendant- Yagneswara Sastry for a cash consideration of Rs.62,000/- on 04.07.2005, admittedly during the pendency of the suit for specific performance. The learned trial Judge held that the subsequent purchaser B.Satyanarayana purchased the property despite it is the sold under the suit sale agreement and directed the second defendant purchaser to join the execution of the registered sale deed. Thus, being aggrieved by the said Judgment both the legal representatives of the deceased Yagneswara Sastry and the subsequent purchaser B.Satyanarayana have challenged the Judgment by filing separate appeals. It is defendants 1(a), 1(b) and 1(c) who are the legal representatives of the deceased Yagneswara Sastry, admitted the sale agreement dated 03.08.1989 wherein the said Yagneswara Sastry (now deceased) having received the advance amount of Rs.12,000/- and there was further admission by the defendants 1(a) to 1(c) of having received Rs.2,000/-. It was also the claim of the plaintiff that he has paid a sum of Rs.1,235.60 towards the revenue in respect of the suit schedule property. However, the defendants denied it. Incidentally, there is also a claim of the plaintiff that even Rs.18,764.40 was paid on 13.09.1989. Thus, it is clear that defendants 1(a) to 1(c) do not dispute the sale agreement dated 03.08.1989 and also of having received sale consideration of Rs.12,000/- admittedly received by Yagneswara Sastry, even the payment of Rs.2,000/- on 03.09.1989 also is admitted but not subsequent payment of Rs.1,235.60 and Rs.18,764.40 on 13.09.1989.
8. The learned trial Judge was accommodated with oral evidence of PW-1-Nagaraju-Plaintiff, PW-2 Javaranaika from the side of the plaintiff and DW-1- N.Y.Vishwanatha and DW-2 –B Sathyanarayana from the side of the defendants. Documentary evidence Exhibits P-1 to P-17 from the side of plaintiff and Ex.D-1 to D-7 from the side of the defendants.
9. Learned trial Judge finds that after considering the matter of sale agreement, readiness and willingness, point of limitation, additional issue regarding the defendant No.2- B Sathyanarayana purchasing the property, found the plaintiff said to have proved the execution of sale agreement for Rs.34,000/- and receiving of advance amount of Rs.12,000/- on 03.08.1989 and Rs.2,000/- on 03.09.1989. However, did not accept the claim of the plaintiff regarding subsequent payment of Rs.20,000/-
(Rs.1,235.60 + Rs.18,764.40). As a result, the plaintiff was asked to pay the amount of Rs.20,000/- being the balance sale consideration. It is necessary to observe that plaintiff-Nagaraju did not prefer appeal which goes to show that regarding payment of balance consideration amount remained in tact.
10. Learned counsel for appellants in R.A.No.21/2007 would submit that defendant specifically denied having delivered possession of the said property under the agreement of sale. It is further submitted that plaintiff was a defaulter in performing his part of contract. He invited wrong and offensive method to come out of the limitation in claiming payment of Rs.20,000/- subsequent to the agreement but precisely on 13.09.1989 though it did not happen. Learned counsel would further submit that because of the act of the plaintiff, defendants are put to serious loss and hardship for no cause.
11. Learned counsel for appellant in R.A.No.22/2007 would submit that appellant-B.Sathyanarayana is an innocent purchaser having purchased schedule property from defendants 1(a) to 1(c) after making diligent enquiry for a sum of Rs.62,000/- under the registered sale deed dated 04.07.2005. He further submits that he exercised due diligence and there was no hitch for getting sale deed of schedule property. Accordingly he purchased the same for cash consideration.
12. Learned counsel for appellants-defendants 1(a) to (c) would further submit that plaintiff is not a reliable man and tried to play fraud on these defendants and thus not entitled to seek equity from this court and suit is liable to be dislodged.
13. Learned counsel for second defendant would submit that the suit is liable to be dismissed in limine as the plaintiff is not a reliable person who has misrepresented before the trial court and the appellant regarding consideration for the subject matter under the sale agreement dated 03.08.1989.
14. The substantial questions of law framed by the appellants are as under:
“(1) Whether the courts below were justified in decreeing the suit for specific performance despite the plaintiff having failed to prove his ready and willingness to perform his part of the contract?
(2) Whether the lower appellate court was justified in casting the burden on the appellants to disprove Ex.P-2 & 3?
(3) Whether the lower appellate court was justified in going beyond the pleadings and holding that the defendant had committed fraud on the plaintiff ?
(4) Whether the courts below were justified in decreeing the suit for specific performance in view of section 16(b) & 20(c) of the Specific Performance Act ?
(5) Whether the Courts below failed to properly appreciate the evidence on record?
(6) Whether the courts below were justified in holding that the time is not the essence of the contract despite the agreement stipulating the period for performance?
15. Substantial question framed and considered by the court are as under:
(1) Whether the conduct of the seller in again selling the schedule property to a third party, speaks about his conduct?
(2) Whether the matters proved by plaintiff gets affected by subsequent conduct which are independent?
(3) The first appellate court was absolutely justified in holding Ex.P2 and Ex.P3 failed for consideration as the evidence on record is against them or said document.
(4) The plaintiff was ready and willing to perform his part of contract more particularly out of sale consideration of Rs.34,000/-, Rs.12,000/- was being paid by way of advance amount on 03.08.1989 and Rs.2,000/- on 03.09.1989.
16. However, bringing to the notice of both the counsel, the point on the entitlement of specific performance in cases of absence of non disclosure of material facts is also considered.
17. Learned counsel for plaintiff would submit that plaintiff has not suppressed any material particulars before the court. However, learned counsel for defendants would submit there is suppression regarding balance sale consideration of Rs.20,000/- (Rs.1,235.60 + Rs.18,764.40).
18. In the circumstances of the case, it is necessary to bifurcate the admitted facts and the disputed ones. Insofar as the sale agreement dated 03.08.1989 is said to have been entered into by the plaintiff- Nagaraju with one Yagneswara Sastry to sell the schedule property under the ownership of Yagneswara Sastry for cash consideration of Rs.34,000/- which is stated to be self acquired property of Yagneswara Sastry. However, the ownership of Yagneswara Sastry is not disputed by either of the parties as on 03.08.1989. The sale consideration of Rs.34,000/- is not disputed along with payment of advance of Rs.12,000/- under the agreement of sale dated 03.08.1989. However, regarding payment of Rs.20,000/- on two occasions i.e., land revenue of Rs.1,235.60 and Rs.18,764.40 on 13.09.1989 is disputed. It is in respect of the payment of balance consideration that became the bone of contention between the plaintiff and defendants and regarding readiness and willingness of the plaintiff to perform his part of contract.
19. It is claimed by plaintiff that Ex.P-1 is the agreement dated 03.08.1989. It is not disputed and for the reasons best known to the parties, signature is obtained on the revenue stamps after they are pasted on the original sale agreement. Thus, it is admitted that an amount of Rs.12,000/- and Rs.2,000/- was already received by the defendant. The main difference between the parties is that Ex.P.2 is stated to be a document regarding delivering of possession of a wet land. It is in Kannada language as I am conversant with Kannada language I have read over the same. Under the said document Ex.P2 it is made in favour of Nagaraju-Plaintiff executed by Yagneswara Sastry regarding delivery of possession of schedule property. It is necessary to mention that the delivery of possession of the schedule property is on separate document and said document Ex.P.2 under the signature Ex.P2a and insofar as Ex.P-3-receipt is concerned it is on a white paper and four revenue stamps of 20 paisa being affixed to it and an amount of Rs.12,000/- is stated to have been received by late Yagneswara Sastry.
20. Court Commissioner was appointed for verification of handwriting and signature of Vigneswara Sastry during the trial. Meanwhile it is necessary to mention another agreement of sale marked as Ex.P7 dated 19.07.1989 is seen. The details are it is dated 19.07.1989 executant - Yagneswara Sastry –Subject matter –land in Sy.No.31/1 to the extent of 36 guntas at Muthathi T.Narasipura Taluk and this agreement is said to have executed for sale consideration of Rs.27,000/- wherein late Yagneswara Sastry is said to have received Rs.10,000/- and balance of Rs.17,000/- is agreed to be paid within three months for getting the registered sale deed and Ex.P8 is stated to be copy of the legal notice issued at the instance of Mahadeva the purchaser under Ex.P.7. Handwriting expert has given a report.
21. It was submitted that said sale agreement by defendant incidentally marked as Ex.P7 however there is no much reference about the document Ex.P1 which is said to have been executed by deceased Yagneswara Sastry.
22. In the circumstances of the case, it is now clear that the signature of Yagneswara Sastry is not the one as made in Ex.P2 and P3. In the circumstances in the light of the admitted facts of execution of sale agreement Ex.P1 and signature of deceased Yagneswara Sastry as P-1(a) are not one and the same in the sense the signature as found on the consideration receipt Ex.P3. In the context and circumstances of the case, the handwriting expert who issued report is not examined. Thus, version of the expert is not cross examined.
23. Thus, the trial court held the suit for specific performance enforceable however by rejecting the contents in Ex.P2(a) directed the plaintiff to pay balance consideration of Rs.20,000/-.
24. The relief of specific performance is a substantial one and equity, person who seeks equity it is not merely based on admitting of signature, but agreement in writing, endorsement and payment of money. On the other hand each party is required to make fair and just disclosure of material facts known to them and also those advantageous and important valuable facts not known to other party. In this case it is to be seen that the sale agreement Ex.P1 the undisputed document is in respect of the schedule property being sold.
25. It is claimed that entire sale agreement being fake and documentary evidence Ex.P.3 in this connection reported to be a fake one by handwriting expert. However, handwriting expert is not examined as in terms of the document subjected for verification and comparison of handwriting it must be the examination of the document or handwriting. Thus legal representatives of defendant-Yagneswara Sastry had firm belief that Yagneswara Sastry did not sign on Ex.P2 and P3. The conduct becomes relevant for assessment. No doubt court is considered to be expert of expert regarding verification of signatures. It considers the very document, handwriting and compares between the admitted and the disputed one. When the court takes up the task of comparing handwriting and signature under Section 73 of the Evidence Act the comparison is not only on the basis of science but the court is equipped with so many other aspects like the very document, handwriting, oral evidence of the parties, demeanor, tone and tenor of evidence, their stand and the related aspects.
26. Insofar as the conduct is concerned the defendants 1(a) to (c) have not denied the sale agreement –Ex.P1. However, they vehemently deny Ex.P2 and P3. Even the contents of Ex.P2 regarding delivery of possession of schedule property is denied by defendants but relied upon by the plaintiff. Substantiating the stand the appellant in R.A.No.22/2007 –B Sathyanarayana claims that he purchased the property on 04.07.2005 for a cash consideration of Rs.62,000/- adding to the agony the defendants also claimed that deceased Yagneswara Sastry made efforts to sell schedule property to one Mahadeva under Ex.P.7. Thus, the conduct of both plaintiff and defendants are not above board. Both have played the trick to the best of their ability. Here it is a case wherein the conduct of the plaintiff is not believable insofar as maneuvering in suppressing the balance sale consideration as said to have been paid under Ex.P2 and P3. Even this court finds that the said version of the plaintiff is far from reliability. There is no oral evidence of the handwriting expert. Insofar as defendants –legal representatives of Yagneswara Sastry are concerned their conduct of executing sale deed Ex.D2 in favour of defendant No.2 B.Sathyanarayana is not appreciable. The circumstances of the said sale deed states that it was executed by GPA Holder N.Y.Rajeshwari. The date of sale deed is 04.07.2005.
27. Date of filing suit is 23.03.1992 for specific performance. So far as plaintiff is concerned, it is submitted that he has deposited the balance sale amount of Rs.20,000/- on 07.08.2007 in pursuance to the Judgment of the trial court dated 07.07.2007 and learned Civil Judge, Sr.Dn., T.Narasipura, dismissed the regular appeal on 28.10.2009.
28. In the circumstances, I find the learned trial Judge was right in coming to conclusion in decreeing the suit for specific performance directing the defendants to execute sale deed. The conduct of the seller or his legal heirs in selling the suit property to a third party definitely affects his presentation. However, the matters already established and proved unnatural and independent names do not get affected by a separate and independent circumstance by the plaintiff. Hence, I answer the substantial questions of law accordingly.
29. Both the trial court and first appellate court in O.S.No.64/1992 and R.A.Nos.21/2007 and 22/2007 respectively have rightly decreed the suit. Both the courts have rightly concluded regarding proof of the sale agreement and the obligation of the defendants to execute the registered sale deed of the schedule property of course by receiving balance sale consideration of Rs.20,000/- which is said to be already deposited.
30. Insofar as appellant in R.A.No.22/2007 is concerned his right in respect of schedule property claiming under sale deed dated Ex.D2 does not hold good in the light of validity and enforceability of sale agreement dated 03.08.1989.
31. Thus, partly decreeing of suit by the Trial Judge in O.S.No.64/92 has been rightly confirmed in R.A.Nos.21/2007 and 22/2007.
32. Insofar as the appeal preferred by second defendant in RSA No.955/2010 is devoid of merits and is liable to be rejected.
Accordingly RSA No.238/2010 and RSA No.955/2010 are rejected.
The appellants-defendants are directed to execute the sale deed in favour of the plaintiff and second defendant-B.Sathyanarayana to join the defendants 1(a) to 1(c) in executing the registered sale deed. The expenditure including stamp duty shall be borne by plaintiff. In case of failure or refusal on the part of the defendants to execute registered sale deed the same shall be done at the instance of due process of law.
Sd/- JUDGE DH/SBN