IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.768 OF 2016 Between:
Sri J. Ramesh S/o Jayarama Shetty, Aged about 50 years, R/at Kugur Village, Sarjapura Hobli, Anekal Taluk, Bengaluru Urban District-562 106. ... Appellant (By Sri S. G. Parthasarathy, Advocate) And:
1. Sri Sampangiram Setty @ Sampangiramaiah, Aged about 54 years, S/o Krishnaiah Setty, 2. Smt. Gowramma W/o Sampangirama Setty, Aged about 49 years, Both are r/at Kugur Village, Sarjapura Hobli, Anekal Taluk-562 106.
3. Sri T. Chandrappa S/o Thimmarayappa, Aged about 64 years, R/at Kugur Village, Sarjapura Hobli, Anekal Taluk-562 106. ... Respondents This Regular Second Appeal is filed under Section 100 of CPC., against the judgment and decree dated 26.02.2016 passed in RA No.418/2012 on the file of the III Addl. District and Sessions Judge, Bengaluru Rural District, Sitting at Anekal, dismissing the appeal and confirming the judgment and decree dated 25.09.2012 passed in OS No.949/2006 on the file of the Senior Civil Judge and JMFC., Anekal.
This Regular Second Appeal coming on for Admission this day, the court delivered the following:
Judgment Heard the learned counsel for the appellant, and perused the judgment and decree in O.S.No.949/2006 on the file of the Senior Civil Judge and JMFC, Anekal (for short ‘the trial Court’) and R.A.No.418/2012 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal (for short ‘the appellate Court’). This appeal is filed by the plaintiff in the suit in O.S.No.949/2006, a suit for specific performance of the agreement dated 15.12.2003. The trial Court has dismissed the suit, and the dismissal of the trial Court is confirmed by the appellate Court with the dismissing of the appeal. As such, this second appeal.
2. The appellant filed the suit for specific performance of the agreement of sale dated 15.12.2003 contending that he had entered into this agreement with the respondent Nos.1 and 2 for purchase of land in Sy.No.106 (measuring 1 acre 10 guntas), land in Sy.No.111/3 (measuring 31 guntas), land in Sy.No.6/2 (measuring 2 guntas), land in Sy.No.6/6 (measuring 19 ½ guntas) and land in Sy.No.156/2 (measuring 18 guntas) of Kugur Village, Sarjapura Hobli, Anekal Taluk, Bangalore Rural District. The appellant paid to the respondent Nos.1 and 2 total sale consideration of Rs.75,000/-. The respondent Nos.1 and 2 at the instance of the appellant executed sale deeds in favour of third parties insofar as the aforesaid lands in Sy.Nos.6/2, 6/6, and 156/2. The respondent Nos.1 and 2, being obliged to execute sale deed even for the suit schedule lands, did not execute such sale deed despite repeated requests and therefore, he was entitled for specific performance.
3. The respondent Nos.1 and 2 contested the suit denying the execution of the agreement dated 15.12.2003 and receipt of the sale consideration of Rs.75,000/-. They further contended that the land in Sy.No.6/2 was sold on 09.11.1998 in favour of Smt. Sarojamma and the land in Sy.No.156/2 was sold on 10.11.1999 in favour of one Sri. Yellappa. Further, they transferred an extent of 19 ½ guntas in favour of Smt. Rathnamma on 24.05.2004. Therefore, they could not have executed sale agreement dated 15.12.2003 in respect of the lands in Sy.No.6/2 or Sy.No.6/6 or Sy.No.156/2, and the appellant’s case is tenuous. The respondent No.3, resisted the suit insofar as land in Sy.No.106 (suit Item No.1) contending that he had purchased the property for valuable consideration from the respondent Nos.1 and 2 under the sale deed dated 08.10.2004.
4. The trial Court framed different Issues which included Issue No.1 that required the appellant to establish the due execution of the agreement of sale dated 15.12.2003, Issue No.2 that required the appellant to show his ready and willingness and Issue No.3 which required the appellant to show that the sale of the land in Sy.No.106 (suit item No.1) in favour of the respondent No.3 was collusive and not binding on him.
5. The appellant examined himself as PW.1 (wrongly shown as Thirumaleshwara Hegade in the last page of the trial Court’s judgment). At the instance of the appellant the left thumb impression in the agreement dated 15.12.2003 and the vakalath executed by the respondent No.1 were forensically examined and a report was filed .
The respondents examined themselves as DW.1, DW.2 and DW.3.
6. The trial Court has found that the appellant had failed to establish the execution of the agreement dated 15.12.2003. The trial Court has found against the appellant essentially on three grounds. Firstly, the LTM as found in Ex.P1 is not the LTM of the respondent No.1 and this would be obvious on a common man’s comparison of the LTM found in the agreement and the vakalath. Secondly, the forensic expert, who is examined as CW.1 has opined, after an elaborate discussion, that the LTM found in the vakalath and the agreement dated 15.12.2003 do not belong to the same person. Though the forensic expert has been subject to the elaborate cross examination, nothing has been elicited to doubt the credibility of this forensic expert. Thirdly, the land in Sy.No.6/2 is transferred on 09.11.1998 vide Ex.D1 and the land in Sy.No.156/2 is transferred on 10.11.1999, i.e., much prior to the date of the agreement. The execution of these sale deeds much prior to the date of the agreement dated 15.12.2003 entirely belie the appellant’s case that he had entered into the agreement for purchase of these lands as well as the suit schedule lands, and the sale deeds were executed by the respondent Nos.1 and 2 at his instance. The trial Court has also found that the respondent no.3 was a bonafide purchaser of the land in Sy.No.106 (Item No.1) on appreciation of the material on record including the oral testimony of the respondents. The appellate Court on re-appreciation of the evidence has concurred with the opinion of the trial Court.
7. The learned counsel for the appellant is unable to point out that the finding by the Courts below either as regards the execution of the agreement or the respondent no.3 being bonafide purchaser is extraneous to the evidence on record or is based on material which is not part of the record as in terms, nor it is argued the judgments of the Courts below are opposed to the settled principle of law. As such, no substantial question of law arises in this appeal.
Accordingly, the appeal is dismissed.
Sd/- Judge RB