IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.66/2015 (SP) BETWEEN:
SRI S.T.RAMAR S/O LATE THIRUMANI AGED ABOUT 70 YEARS BADAGA BANANGALA VILLAGE VIRAJPET TALUK KODAGU DISTRICT – 574 197 …APPELLANT (BY SRI MANJUNATH PRASAD H.N., AND SRI GIREESHA R.J., ADVOCATES) AND:
SRI M.A.RAZAK S/O LATE ABU AGED ABOUT 38 YEARS BADAGA BANANGALA VILLAGE VIRAJPET TALUK KODAGU DISTRICT – 574 197 … RESPONDENT (BY SRI T.I.ABDULLA, ADV. C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:15.11.2014 PASSED IN R.A.NO.21/2013 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI, SITTING AT VIRAJPET, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 14.12.2012 PASSED IN O.S.NO.32/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, VIRAJPET.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Aggrieved by the judgment and decree dated 15.11.2014 in R.A.No.21/2013 passed by the II Additional District and Sessions Judge, Kodagu- Madikeri sitting at Virajpet, the defendant has preferred this second appeal.
2. By the said judgment and decree, the first appellate court reversed the judgment and decree dated 14.12.2012 passed by the Senior Civil Judge, Virajpet in O.S.No.32/2009 and decreed the suit of the plaintiff for specific performance of contract.
3. The respondent filed O.S.No.32/2009 against the appellant before the trial court seeking specific performance of agreement of sale dated 1.8.2008.
4. The subject matter of the suit was 24 cents of land with tiled house bearing Sy.No.207/4P situated at Badga Banangala village of Virajpet Taluk.
5. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
6. Plaintiff’s case in brief is as follows:
That the defendant was the owner of the suit property. He executed agreement of sale dated 1.8.2008 for sale of the suit property for consideration of `6,00,000/- and received `1,00,000/- as advance consideration. Defendant agreed to receive balance consideration and execute registered sale deed on 30.4.2009. When plaintiff was expecting the defendant to perform his part of the contract, he abruptly received the notice dated 6.3.2009 from the defendant with false allegations. Therefore, he was bound to file the suit.
7. The defendant’s case in brief was as follows:
The land was granted on 22.7.1993 and he had partitioned that with his son and daughter in 2002. Therefore, he was not the absolute owner of the property. The alleged agreement dated 1.8.2008 was entered into due to misrepresentation. He had no intention to sell the property. He was an illiterate person and did not know reading and writing. To gulp the property, the document is brought into existence. Plaintiff paid him cash on various dates, but not on 1.8.2008 as contended. Only when his son divulged him about the agreement of sale, he learnt that the document purports to be an agreement of sale. Therefore, he got issued notice dated 6.3.2009 to cancel the agreement. Along with his notice of cancellation of agreement, he enclosed cheque for `1,00,000/-, but the plaintiff failed to encash that.
8. On the basis of such pleadings, the trial court framed the following issues:
“1.Whether the plaintiff proves that the defendant has executed an agreement of sale in his favour on 1.8.2008 in connection with suit property?
2. If so, whether he proves that Rupees One Lakh was passed to the defendant as consideration amount?
3. Whether the plaintiff proves that he was always ready and willing to perform his part of duty towards contract?
4. Whether the defendant proves that the alleged sale agreement dated 1.8.2008 was entered by misrepresentation?
5. Whether the defendant proves that Court fee paid by plaintiff is insufficient?
6. Whether the plaintiff is entitle for the decree of specific performance of contract?
7. What Order or Decree?”
9. The parties adduced evidence. Plaintiff got himself examined as PW-1. PW-2 and PW-3 were examined as attestor and scribe of the Ex.P1. He got marked Exs.P1 and P2 i.e., the original agreement of sale and the copy of agreement of sale. Defendant got himself examined as DW-1 and his daughter as DW-2 and got marked Exs.D1 to D7.
10. The trial court after hearing the parties dismissed the prayer for specific performance of the contract holding that the execution of agreement of sale Ex.P1 is not proved and Ex.P1 was obtained on lending some money to the defendant. While arriving at such conclusion, the trial court held that as per the plaintiff, agreement of sale Ex.P1 was executed on 1.8.2008 and the copy of the same was furnished to the defendant as per Ex.D1. The trial court further held that in Ex.D1, the signatures of the attesting witnesses were not forthcoming and there are alterations and interpolation in Ex.P1.
11. However, based on the admission of the defendant that he had received `1,00,000/- from the plaintiff, the trial court granted the decree for refund of `1,00,000/- with interest @ 12% per annum recoverable from the defendant.
12. Plaintiff challenged the said judgment and decree in R.A.No.21/2013 before the first appellate court as aforesaid. The first appellate court by the impugned judgment and decree set aside the judgment and decree of the trial court and granted the decree for specific performance on the ground that though there are alterations and interpolations in the agreement of sale and though there is variance in Ex.P1 and Ex.D1 regarding the signatures of the witnesses, the defendant admitted the agreement but set up the plea of misrepresentation.
13. The first appellate court further held that the defendant’s pleading with regard to misrepresentation were not in conformity with Order VI Rule 4 CPC and he has failed to prove such misrepresentation.
14. This Court admitted the above appeal to consider the following substantial question of law:
“Whether the Judgment & decree of the first appellate court is right in law in granting a decree for specific performance even after coming to the conclusion that the signature of the witnesses on the agreement obtained without the knowledge of the defendant?
15. Learned Counsel for the appellant seeks to assail the impugned judgment and decree on the following grounds:
i) The first appellate court did not appreciate that as on the date of the alleged agreement, respondent was not the absolute owner of the property;
ii) There was material variance in Ex.P1 the agreement of sale and Ex.D1 the copy of the same, which was handed over to the defendant. Ex.D1 did not bear the signatures of the witnesses whereas on Ex.P1 later signatures of the witnesses were interpolated;
iii) The first appellate court failed to appreciate the evidence properly.
In support of his contention, learned Counsel for the appellant seeks to rely on the following judgments:
1. Kamal Kumar –vs- Premlata Joshi & Ors.
2019 SAR (Civil) 134;
2. N.K.Giriraja Shetty –vs- N.K.Parthasarathy Shetty and Others ILR 2006 KAR 1692;
3. Smt.Padmini Raghavan –vs- Mr.H.A. Sonnappa since dead by his LRs and Others 2014(1) KCCR 1 (DB).
16. Per contra, learned Counsel for the respondent seeks to support the impugned judgment and decree on the following grounds:
i) Plaintiff admitted the execution of Ex.P1 and receipt of `1,00,000/-. But contended that the said document was obtained by misrepresentation;
ii) His pleadings with regard to misrepresentation were not in conformity with Order VI Rule 4 CPC.;
iii) Defendant failed to prove the alleged misrepresentation;
(iv) Ex.D1 was only a draft and Ex.P1 was the final document.
17. As observed above, the specific case of the plaintiff was that on 1.8.2008 defendant entered into agreement of sale Ex.P1 receiving `1,00,000/- as earnest money and defendant was the owner of the property. Therefore, the initial burden of proving the execution of the document was on the plaintiff.
18. The defendant contended that the land was a granted land and there was already a partition between him and his children in the property in 2002 and he was not the absolute owner. In accepting the agreement of sale Ex.P1 set up by the plaintiff, the ownership of the property as alleged by him is also a factor which has a bearing on the ultimate decision. As rightly pointed out by the learned Counsel for the appellant, the plaintiff did not produce any records of property, at least RTC, assessment register extract, mutation entry with regard to the ownership of defendant or any other proof of the ownership of the defendant over the property as on the date of the agreement.
19. Ex.P1 purportedly executed on 1.8.2008 in the office of his Advocate PW-3, in the presence of PW-2, M.S.Paramesh and P.Ibrahim the witnesses to the execution of the document. Plaintiff himself in his cross-examination admitted that after drafting of Ex.P1 and himself and defendant signing on the same, he furnished the copy of the same to the defendant as per Ex.D1. In Ex.D1 apparently the signatures of two other witnesses viz., Paramesh and Ibrahim were absent. Further, in first page of Ex.D1, the name of the father of the defendant was left blank and that was interpolated in Ex.P1. Similarly, in page No.2 of Ex.P1, the date 30.4.2009 was interpolated as the date fixed for execution of the registered sale deed.
20. In para-3 of the written statement, the defendant mentions only as agreement and not agreement of sale. Further in para-1 of the written statement, defendant states that the statements made in para-2 and para-3 of the plaint are false, which are with reference to the execution of agreement of sale and consideration amount.
21. In para-6 of the written statement, defendant contended that he is an illiterate person and had received money from the plaintiff on various dates and plaintiff paid such cash to him only to win over him to get such document from him. Therefore, it cannot be said that there is an admission on the part of the defendant regarding the execution of the agreement of sale or the agreement in terms set up in the suit.
22. Even the first appellate court accepted the contention regarding the material alteration of agreement of sale namely interpolation of the signatures of two witnesses and the fixation of date for execution of the registered sale deed. However, the first appellate court proceeded on the assumption that the defendant has admitted the execution of agreement of sale dated 1.8.2008. The defendant nowhere stated that he has executed the agreement of sale on 1.8.2008.
23. Even the plaintiff in his evidence to get over variance between Ex.P1 and D1 states that on 31.7.2008 himself and defendant approached PW-3 the Advocate and on preparation of the draft, Xerox copy Ex.D1 was given to the defendant and he came to the office of the advocate on 1.8.2008 and executed that. In fact, his own witness PW-3 does not say so.
24. PW-3 states that he knows only the first witness Harisomaiah i.e., PW-2. He does not speak about other two witnesses. He says he does not know how the interpolations have occurred in the document and he has not initialed that. PW-1 goes to the extent of saying that he does not know what is written in the plaint and in his affidavit filed in lieu of chief-examination.
25. The other circumstance which the first appellate court failed to take note is, despite defendant issuing the notice as per Ex.D6 denying the execution of the agreement of sale, alleging concoction of the document exploiting his ignorance and misrepresentation and cancellation of the agreement, plaintiff did not issue any reply to Ex.D6 to controvert those allegations. The Trial court taking into consideration all such aspects and the other oral evidence held that Ex.P1 was not an agreement between plaintiff and defendant to sell the property, but that was taken from the defendant as security for the monies lent by the plaintiff to the defendant.
26. The first appellate court accepted that there was material alteration in Ex.P1 and the signatures of the witnesses were later interpolated. Having held so, the first appellate court was not right in holding that Ex.P1 was an outright agreement of sale.
27. In N.K.Giriraja Shetty’s case referred to supra, Division Bench of this Court held that as per Section 9 of the Specific Relief Act, 1963, there must be a valid and binding contract between the parties, that means there should be consensus ad idem between the parties. The burden of proof of such consensus lies on the plaintiff.
28. The plaintiff and defendant were at dispute regarding the document being an agreement of sale. The other witnesses, who could speak about their consensus, were PWs-2 and 3. They say that plaintiff has signed on the agreement in the presence of the witnesses on 1.8.2008, whereas Ex.D1 showed that such witnesses were not present on that day. PW-2 states that the plaintiff’s son came and told him that the property belongs to the family and there is a partition and the document Ex.P1 shall be cancelled. That goes to show that much before issuing the notices at Exs.D2, D4 and D6, issue of title of defendant was raised. But still the plaintiff did not produce the property records.
29. Hon’ble Supreme Court para-10 of the judgment in Kamal Kumar’s case referred to supra held as follows:
“10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.”
(emphasis supplied) 30. In Padmini Raghavan’s case referred to supra, the Division Bench of this Court held that due to interpolation, agreement of sale becomes void and unenforceable. It was held that unattested interpolations as to time for performance and consideration disentitle the plaintiff for specific performance.
31. In the said judgment, referring to Section 132 of the Karnataka Land Revenue Act, 1964, it was further held that, if the suit relates to agricultural land, the plaintiff has to annex with the plaint a certified copy of the record of rights or register of mutation relevant to lands as they stood prior to the date of suit failing which the plaint is liable to be rejected.
32. It is no doubt true that if such plea was raised before the first appellate court, such plea goes to the root of the matter, because unless plaintiff proves the absolute ownership of the defendant, he does not get right to the specific performance of the contract of sale and Ex.P1 cannot be accepted.
33. Having regard to these facts and circumstances of the case, the substantial question of law is answered in favour of the appellant. The appeal is allowed.
The judgment and decree dated 15.11.2014 in R.A.No.21/2013 passed by the II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet, is hereby set aside.
The judgment and decree dated 14.12.2012 passed by the Senior Civil Judge, Virajpet in O.S.No.32/2009 is hereby restored.
Sd/- JUDGE KNM/-