IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 132 OF 2015 (SP) BETWEEN:
SRI ESHWARAPPA SON OF LATE MUNINANJAPPA AGED ABOUT 52 YEARS RESIDING AT BOPPANHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 563 130.
... APPELLANT (BY SRI. S VISWESWARAIAH., ADVOCATE) AND:
1. SMT. GOWRAMMA WIFE OF LATE BHADRAPPA RESIDING AT BOPPANHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 563 130 SINCE DECEASED HER LRS.
1(a). SMT. SIDDAGANGAMMA AGED ABOUT 32 YEARS DAUGHTER OF LATE BHADRAPPA WIFE OF CHANDRAPPA RESIDING AT GERUPURA VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 563 130.
1(b). SRI BASAVARAJ SON OF LATE BHADRAPPA AGED ABOUT 33 YEARS RESIDING AT BOPPANHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 563 130.
... RESPONDENTS (BY SRI. M.K. MOHAN., ADVOCATE FOR R-1(B) NOTICE SERVED ON R1(A)) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 6.11.2014 PASSED IN R.A.NO.72 OF 2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALUR, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 16.8.2012 PASSED IN OS.NO.356/2007 ON THE FILE OF THE 2ND ADDL. CIVIL JUDGE (JR.DN) MALUR.
THIS REGULAR SECOND APPEAL COMING ON FOR DICTATING JUDGMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the plaintiff in O.S.No.356/2007 on the file of the II Additional Civil Judge (Junior Division) Malur. The appellant has filed the suit in O.S.No.356/2007 for specific performance of the agreement dated 25.5.2005 seeking absolute conveyance of the land bearing Survey No.49/2 of Boppanhalli village, Kasaba Hobli, Malur Taluk, Kolar District and for possession. The trial Court has dismissed this suit by its judgment dated 16.8.2012, and the first appeal by the appellant in R.A.No.72/2012 on the file of the Senior Civil Judge and JMFC, Malur is dismissed vide judgment dated 6.11.2014. Thus, the appellant is in this second appeal.
2. The parties are referred to as they are arrayed before the appellate Court.
3. This Second Appeal is admitted for the consideration of the following substantial question of law:
“Whether the judgment and decree of the first appellate court is erroneous in misreading the material and evidence on record, in decreeing the suit of the plaintiff only for refund of the earnest money and not for specific performance.”
4. The plaintiff filed the suit for specific performance contending that Smt. Gowramma (the defendant) executed a sale agreement dated 25.5.2005 agreeing to transfer the schedule property for a total sale consideration of Rs.45,000/-. A sum of Rs.5,000/- was paid as advance as on the date of the sale agreement. The plaintiff caused a legal notice dated 24.4.2007 calling upon the defendant to execute the sale deed. The defendant on the other hand, contended that she had not executed the sale agreement as contended by the plaintiff. She asserted that she was acquainted with Sri B.N. Prashanth, whom she had approached for a hand loan. This Sri B.N. Prashanth lent a sum of Rs.10,000/- and obtained her signatures and the signatures of her son on blank paper. She repaid the loan within four to five months. This, B.N. Prashanth has set up the plaintiff to file this suit for specific performance fabricating a sale agreement. The trial Court framed the following issues for its consideration:
“1. Whether the plaintiff proves that the defendant executed the agreement of sale dated 25.5.2005, agreeing to sell the suit schedule property to the defendant for a consideration of Rs.45,000/-?
2. Whether the plaintiff proves that on the said date of agreement of sale, he paid Rs.40,000/- as earnest money to the defendant towards part performance of contract?
3. Whether the defendant proves that the alleged agreement of sale dated 25.5.2005 is fabricated one in view of the contentions taken by the defendant at different paras of her written statement?
4. Whether the plaintiff is entitled to the plaint releifs?”
The plaintiff examined himself as PW.1 and marked amongst others the sale agreement as an exhibit. Insofar as the defendant’s evidence, the original defendant having died, her son and daughter being brought on record, both are examined as DW.1 and DW.2. They have relied upon Exs.D1 and D4 which includes the judgment in O.S.No.237/2009, a suit instituted by the defendant’s daughter (respondent No.1) for partition, which is decreed declaring that she would be entitled to 1/3rd share in the suit schedule properties. The plaintiff is one of the parties to the proceedings in OS No. 237/2009.
5. The trial Court on appreciation of the oral evidence placed on record on behalf of the plaintiff and defendants concluded that there is no corroboration as regards the execution of Ex.P1 or payment of sale consideration. The trial Court observed that the witnesses had stated that negotiations for the transaction was held on 25.5.2005, the date of the sale agreement. The stamp paper was purchased on the same day. The agreement was also drawn on the same day, and advance consideration was paid in the evening of the same day. However, scrutiny of the documents showed that the stamp paper was purchased on 7.12.2004 about six months prior to the date of the agreement. There was no explanation for this and this was a material circumstance that would have to be considered in concluding whether the agreement was duly executed. The trial Court has also observed that the testimonies of the witnesses was not creditworthy even as regards payment of consideration. As such, the trial Court dismissed the suit. However, in the appeal filed by the plaintiff in R.A.No.72/2012, the appellate Court has set aside the judgment while partly decreeing the suit declaring that the plaintiff would be entitled for receipt of Rs.40,000/- from the defendant along with interest at the rate of 6% per annum.
6. The appellate Court in reiteration of the finding of the trial Court as regards the execution of the sale agreement has concluded that the plaintiff would not be entitled for specific performance of the agreement. However, the appellate Court has proceeded to direct the defendant/her legal representatives to pay the amount of Rs.40,000/- along with interest. The appellate Court has so directed because the defendant has contended that she affixed her signatures along with her son on blank stamp paper to secure a loan of Rs.10,000/- which she had availed from Sri B.N. Prashanth, and she had repaid the amount. However, no evidence is placed on record to explain why no action was taken by the defendant to recover the blank stamp paper that she had signed if she had really repaid a sum of Rs.10,000/- that she had borrowed. Further, she has not responded to the legal notice issued. Therefore, the plaintiff would be entitled for refund of Rs.40,000/-.
7. The learned counsel for the appellant argued that the appellate Court which had partly decreed the suit in ordering refund of the earnest money had misread the material evidence on record in refusing the relief of specific performance. The true import of the contention that the appellate Court has misread the evidence is that the appellate Court has not considered the evidence on record.
The plaintiff had examined himself and had also examined the scribe and the attesting witness. These witnesses have spoken, without discrepancy, about the negotiations for the sale being held on 25.5.2005 and the agreement having been drawn on 25.5.2005 on the same day at the Tahsildar’s office or in the premises of the Tahsildar’s office. They have also been consistent in stating that no amount was paid either when the negotiations were held in the morning or at the time the agreement was drawn at the Tahsildar’s place because the defendant insisted that she would collect money after the agreement was drawn and after the agreement was drawn she wanted the terms of the agreement to be verified. As such, at 4pm on the same day, the amount was paid. In the light of this consistent evidence, the appellate Court could not have concluded that the plaintiff had failed to prove the execution of the sale agreement.
8. It is settled law that the Court in a second appeal under Section 100 of the Code of Civil Procedure,1908 cannot intervene unless a substantial question of law is made out and the substantial question of law as contemplated under Section 100 of the Code of Civil Procedure,1908 would only be in cases where the judgments are not based on evidence on record or is without considering the evidence which ought to have been considered or otherwise impermissible because the judgments are contrary to the mandatory provisions of the applicable law or the law as pronounced by the Hon’ble Supreme Court. The Courts cannot in a second appeal reappreciate the evidence and substitute its conclusion on fact with the finding of fact by the appellate Court or the trial Court. A useful reference in this regard could be made to the recent decisions of the Hon’ble Supreme Court in Gurnam Singh vs. Lehna Singh, reported in (2019) SCC ONLINE SC 374.
9. In the present case, the Courts below on appreciation of the evidence have come to the conclusion that the plaintiff is not able to explain why the purchase of the stamp paper for the agreement is five months prior to the date of the agreement though it is stated by the witness that the stamp paper was purchased on the same day and the agreement was drawn on the very same day. The Courts below have also concluded that the plaintiff is not able to prove payment of advance sale consideration because the witnesses do not corroborate each other. The plaintiff examined as PW.2 has not furnished the details of the payment of the sale consideration and the scribe who is examined as PW.3 has also not spoken to about the payment of consideration. In fact, he is categorical that no consideration was paid in his presence. It is only PW.2 an attesting witness who has stated that consideration of Rs.40,000/- was paid at 4pm. It is in the light of this evidence, the Courts below have come to the conclusion that the execution of the sale agreement is not established. The learned counsel for the appellant is unable to point out any evidence that is not considered which if considered, would result in a decree being drawn in favour of the appellant. Therefore, there is no misreading of the evidence in concluding that the plaintiff has failed to prove due execution of the sale agreement, and the concurrent finding in this regard does not call for interference. The substantial question framed is answered accordingly, and the appeal is dismissed.
nv Ct:sr SD/- JUDGE