IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A. No.2006/2007 (SP) BETWEEN:
SMT.RENUKADEVI, W/O NARAYANA RAO, AGED ABOUT 51 YEARS, R/OF SINGAPURA VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT – 573 211.
(BY SRI K.V.NARASIMHAN, ADVOCATE) AND :
1. SMT.MARIYAMMA W/O JAVARANAIKA, AGED ABOUT 65 YEARS, SINCE RESPONDENT No.1 IS DEAD RESPONDENT NOs.2 TO 4, WHO ARE ALREADY ON RECORD, ARE TREATED AS HER LEGAL REPRESENTATIVES VIDE ORDER DATED 06.04.2011 2. SRI RANGANAIKA S/O JAVARANAIKA AGED ABOUT 50 YEARS, ..APPELLANT 3. SRI CHANDRANAIKA, S/O JAVARANAIKA, AGED ABOUT 48 YEARS, 4. SRI SHIVANAIKA, S/O JAVARANAIKA, AGED ABOUT 47 YEARS, ALL ARE RESIDENTS OF GUMMANAKOLLI, BEHIND COLLEGE, KUSHALANAGAR SOMWARPETE TALUK – 571 236 5. SRI THAMMANNAGOWDA, S/O LATE EREGOWDA, AGED ABOUT 55 YEARS, R/AT JAKKAVALLI VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT-573 211. …RESPONDENTS (R2 TO R4 ARE TREATED AS LEGAL REPRESENTATIVES OF R1 VIDE ORDER DATED 06.04.2011 NOTICE TO R3 IS HELD SUFFICIENT VIDE ORDER DATED 24.01.2012 R2 AND R4 ARE SERVED BUT UNREPRESENTED SRI H.N.M.PRASAD AND SRI R.MOHAN KUMAR, ADVOCATES FOR R5) THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 13.04.2007 PASSED IN R.A.No.20/1997 ON THE FILE OF THE CIVIL JUDGE (SR.DN), HOLENARASIPURA, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED 18.02.1997 PASSED IN O.S.No.12/1994 ON THE FILE OF THE MUNSIFF, HOLENARASIPURA, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE, INJUNCTION AND POSSESSION ETC.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The plaintiff in O.S. No.12/1994 on the file of learned Munsiff, Holenarasipura, has come up in this appeal impugning the concurrent finding of both the Courts below in dismissing her suit for the reliefs of specific performance, permanent injunction and alternatively, for possession.
2. Brief facts leading to this second appeal are that the plaintiff entered into an agreement of sale with defendant Nos.1 to 4 and their father, late Javaranaika, on 13.03.1992, wherein they agreed to sell the suit schedule property in her favour for a sale consideration of Rs.22,800/-. In part performance of the said agreement, received advance amount of Rs.4,000/- and put her in possession of the suit property. The balance sale consideration was agreed to be paid at the time of execution of registered sale deed. It is her grievance that though she was ready and willing to perform her part of the contract, during the subsistence of the said agreement, defendant Nos.2 to 4 have sold the suit schedule property in favour of defendant No.5 under the sale deed dated 25.11.1993, which according to her is null and void and not binding on her. Since defendant No.5 tried to interfere with her possession and enjoyment of the suit property, she was constrained to file the suit for the aforesaid reliefs.
3. In the said suit, on service of summons, defendant No.5 entered appearance. However, Defendant Nos.1 to 4 in spite of service of summons, did not chose to appear and they have been placed ex parte before the trial Court.
4. The records reveal that defendant No.5 is the subsequent purchaser of an extent of 03 Acres 02 guntas of land in the suit schedule property from defendant Nos.2 to 4 under registered sale deed dated 25.11.1993 – Ex.D1, which is executed subsequent to the alleged agreement of sale dated 13.03.1992. The contest in the suit was mainly between the agreement holder - plaintiff and the subsequent purchaser - defendant No.5 in the absence of original owners, who are the vendors to both the parties under the alleged agreement of sale vide Ex.P2 and sale deed vide Ex.D1 respectively.
5. The suit of the plaintiff was opposed by defendant No.5 by filing written statement contending that he is bona fide purchaser of the suit schedule property from defendant Nos.2 to 4, he had no notice of the alleged agreement of sale dated 13.03.1992 and that the plaintiff is not in possession of the suit schedule property as claimed by her. He has filed the additional written statement on 08.03.1995 challenging the validity of the agreement of sale itself. Hence, he sought for dismissal of the suit.
6. On the basis of the above pleadings, the trial Court has framed the following issues:
“1. Whether the plaintiff proves that the defendant Nos.1 to 4 have agreed to sell the suit schedule property to her and executed an agreement of sale on 13.3.1992?
2. Whether the plaintiff proves that she was put in possession of the suit property in pursuance of the agreement?
3. Whether the plaintiff proves that she is ready and willing to perform her part of the contract?
4. Whether defendant No.5 proves that he is a bona fide purchaser for value without notice of the agreement?
5. To what relief is the plaintiff entitled ?
6. What decree or order ?”
The plaintiff got examined herself as PW.1 and she has also examined PWs.2 to 4 and has got marked Exs.P1 and P2 and signatures of two attesting witnesses in Ex.P2 as per Exs.P2(a) and P2(b). The defendant No.5 got examined himself as DW.1 and he also examined DWs.2 to 6 and got marked Exs.D1 to D3.
7. The trial Court while discussing issue No.1, has observed that defendant Nos.1 to 4 have remained ex parte and have not chosen to challenge the execution of the agreement of sale – Ex.P2 dated 13.03.1992. Relying upon the evidence of PW.1-Smt. Renukadevi, PW.3–Sri Ningappaiah, the scribe of Ex.P2 and PW.4 – Venkatesha, who is one of the attesting witnesses to Ex.P2, the trial Court has proceeded to answer issue No.1 in the affirmative holding that the said agreement of sale indeed was executed by defendant Nos.1 to 4 and late Javaranaika in favour of the plaintiff.
8. With regard to issue No.2, the trial Court has held that except for the self-serving statement of PW.1- Smt. Renukadevi, there was no corroborative evidence adduced by her to show that she was in possession of the suit property from the date of agreement of sale and accordingly, answered the said issue in the negative against the plaintiff.
9. Further, the trial Court has held that the plaintiff has failed to prove that she was ready and willing to perform her part of the contract as she did not issue any notice to defendant Nos.1 to 4 calling upon them to execute the sale deed in her favour prior to filing of the suit and did not show her bona fide by depositing the remaining sale consideration before the Court and accordingly, answered issue No.3 in the negative against the plaintiff.
10. So far as issue No.4 is concerned, the trial Court has observed that defendant No.5 and one of the witnesses examined on his behalf i.e., DW.4 – Javaranaika are both residents of the same Jakkavalli village. In view of the fact that DW.4 – Javaranaika, who is a relative of late Javaranaika and Smt. Mariyamma (original defendant No.1), has put his thumb impression as an attesting witness to Ex.P2 – agreement of sale, the trial Court has disbelieved the defence taken by defendant No.5 that he was a bona fide purchaser of the suit property without notice of the earlier transaction i.e., agreement of sale executed by defendant Nos.1 to 4 and late Javaranaika in favour of the plaintiff, in respect of the said property.
11. With the aforesaid observations, the trial Court by judgment dated 18.02.1997, has dismissed the suit holding that the plaintiff is not entitled for the reliefs sought in the suit although it has opined that execution of the agreement of sale dated 13.03.1992 – Ex.P2 is proved by the plaintiff. Being aggrieved by the same, the plaintiff preferred an appeal in R.A. No.20/1997 before the Civil Judge (Sr. Dn.), Holenarasipura.
12. Defendant No.5 - Thammannagowda did not file any independent appeal against the said judgment and decree of the trial Court. However, when notice in R.A. No.20/1997 was served on him, he filed cross-objections as contemplated under Order 41 Rule 22 of the Civil Procedure Code, 1908, impugning the judgment and decree of the trial Court dated 18.02.1997 insofar as it related to finding on issue No.1 only and he did not challenge the finding rendered on issue No.4, which was held against him.
13. Accordingly, appeal and cross-objections were taken up for consideration before the first appellate Court, which has framed the following points for consideration:
“1. Whether the judgment and decree passed by the learned trial Judge (Jr. Dn.), Holenarasipura in O.S. No.12/1994 is highly erroneous, opposed to law, facts and probabilities of the case?
2. Whether there is need to interfere in the judgment and decree passed by the trial Court?
3. What order?”
14. The first appellate Court on re-appreciation of the pleadings and evidence available on record, has answered point Nos.1 and 2 in the negative and point No.3 as per the final order by holding that the findings arrived at by the trial Court on all issues except issue No.4 was justified. However, it has declined to interfere with the judgment and decree passed by the trial Court on the ground that the finding on issue No.4 did not have direct bearing on the result of the suit. Accordingly, both Regular Appeal filed by the plaintiff and cross-objections filed by defendant No.5 (respondent No.5 in R.A. No.20/1997) were set aside by the first appellate Court while confirming the judgment and decree passed by the trial Court except its finding with regard to issue No.4. Being aggrieved by the judgments and decrees passed by both the Courts below, the plaintiff in the suit has preferred this regular second appeal.
15. The grievance of the appellant herein is that the trial Court having held that the plaintiff has proved execution of the agreement of sale – Ex.P2 dated 13.03.1992, was not justified in dismissing the suit. The finding of the trial Court that the plaintiff has failed to prove that she was put in possession of the suit property pursuant to agreement of sale – Ex.P2 and her readiness and willingness to perform her part of the contract, is contrary to the material on record. Though the first appellate Court has held that the finding of the trial Court on issue No.4 is not proper, it has erroneously confirmed the judgment and decree passed by the trial Court except its finding on issue No.4.
16. The learned counsel for the appellant submitted that the first appellate Court while considering the appeal, has neither discussed the right of the plaintiff – appellant herein to seek modification / setting aside of the judgment of the trial Court impugned in the said appeal nor it has considered the pleadings and evidence, which has led to the finding on issue No.1 in favour of the plaintiff by the trial Court, which was subject matter of cross-objections filed by defendant No.5 (respondent No.5 in R.A. No.20/1997). He further submitted that the first appellate Court has not at all applied its mind either to the grounds urged in the appeal filed by the plaintiff or with reference to the grounds urged by defendant No.5 in his cross-objections.
17. Learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the matter of Superintending Engineer and others Vs. B. Subba Reddy reported in AIR 1999 Supreme Court 1747, wherein it is held by the Apex Court with reference to the provisions of Order 41 Rule 22 of the CPC., that cross- objection is nothing but an appeal and it has all the trappings of an appeal as it is filed in the form of memorandum and the provisions of Order 41 Rule 1 of the CPC., insofar as they relate to the form and contents of the memorandum of appeal, would apply to cross-objection as well and it has to be disposed off in the same manner as that of regular appeal.
18. Heard the learned counsel for the appellant as well as learned counsel for the contesting respondent No.5. Respondent No.1 died and respondent Nos.2 to 4 are treated as her legal representatives vide order dated 06.04.2011. Respondent Nos.2 and 4 are served and they have remained unrepresented. Notice in respect of respondent No.3 is held sufficient vide order dated 24.01.2012. Perused the material on record including the records of both the Courts below. It is seen that the first appellate Court was required to frame a specific point for consideration on the basis of the grounds urged in the cross-objections filed by defendant No.5 (respondent No.5 in R.A. No.20/1997) impugning the finding of the trial Court on issue No.1 and thereafter, give its finding, which it has failed to do. Further, it is clear from the material on record that the points framed by the first appellate Court are omnibus in nature and specific reasons are not assigned for rejection of the prayer of the plaintiff despite the fact that execution of the agreement of sale - Ex.P2 was held to be proved by the trial Court, which finding was also confirmed by the first appellate Court. Though the first appellate Court has held that the finding of the trial Court on issue No.4 is erroneous, it has proceeded to confirm the judgment and decree of the trial Court except its finding on issue No.4.
19. In the circumstances, this Court feel that the matter is required to be remanded to the first appellate Court, which can re-appreciate the evidence on record including the pleadings, oral and documentary evidence available on record for reconsideration of the regular appeal in R.A. No.20/1997 filed by the plaintiff (appellant) as well as Cross-objections filed by defendant No.5 (respondent No.5 in R.A. No.20/1997), as provided under Section 96 of the CPC., which cannot be done by this Court in this second appeal.
20. Accordingly, this second appeal is allowed in part. The judgment and decree passed by the learned Civil Judge (Sr. Dn.), Holenarasipura, in R.A. No.20/1997 dated 13.04.2007 is set aside. Consequently, the appeal in R.A. No.20/1997 and Cross-objections filed by respondent No.5 in appeal are restored to the file of the learned Civil Judge (Sr. Dn.), Holenarasipura, for consideration afresh in accordance with law. To ensure that the remanded appeal and cross-objections are decided at the earliest, both the appellant as well as the contesting respondent No.5 shall appear before the first Appellate Court along with their respective counsel on 24.07.2017. The first appellate Court shall dispose off both appeal and cross-objections within six months from the aforesaid date.
21. Registry is directed to send the records pertaining to suit in O.S. No.12/1994 and Regular Appeal No.20/1997 to the first appellate Court within two weeks from today.
22. Appellants are entitled to refund of Court fee as provided under Section 64(2) of the Karnataka Court Fee and Suits Valuation Act, 1958.
Sd/- JUDGE sma