Karnataka High Court
Kedarnath S/O Srikishan Somani vs Gundappa S/O Ranappa Koralli on 10 November, 2011
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA 2
DATED THIS THE 10TH DAY OF »r\rovEiv;lBElii'*£Q1.'1'
BEFORE
THE HONBLE MRJUSTICE ~ '~ Cl '
R.s.A.No.7219_/2.Qi0(spc)._ '
BETWEEN:
Kedarnath .
S/0 Srikishan Somani A
Age: 52 years,
Occ: Agriculture 8;
Medical Practitioner. _ .4 '
R/0 Hadagil Hé?lrufi}11§ 4' _
Tq: & Dist: Crulb.argaL-_V ll Appellant
[By Sri._ S..S,ASajjar£al1ettj*,.Adirccat.-all
Gundap'pa{ _ V _
S/o Ranap.paKor'al1i"~ _
Age: 46 years. ' V ._ '
Occ: §Gov_t. Servant' '
2 R/ 0" 'Village _Kerebosg.a..,. v
'Tq. 8: Dist: Cwufllbarga-585 lOl.
Respondent
'(By 'Sri ..Di=§§anji, Advocate)
Tl"iis Regular Second Appeal is filed under Section 100 of
W,C.P.C.," against judgment and decree dated 4.2.2010 passed in
" R.A.__l\lo.l'l1/2009 on the file of III Addl. District Judge at Gulbarga
"f'divsmi*ssing the appeal and confirming the judgment and decree
. 'd_ated' 21.03.2009 passed in O.S.No.l54/2007 on the file of ll
A Agldl. Civil Judge (Sr.Dn.), Gulbarga.
2
This Regular Second Appeal coming on for admission this
day, the Court delivered the following:
JUDGMENT
Heard the learned counsel for parties.
2. There are concurrent findingsof c_cour.;ts.l5'e1ow"that"1 the agreement of sale sought to be enforced document executed by defendants to secure _"'_loa~r1,lll"which V defendant had borrowed" from pla1ntii'f
3. After going courts below, I find that findéiiigsfa1e~'recorded on proper appreciation.goffjudge has refused to grant and granted decree for recovery" up of M sale cor';-sideration with interest. On reappreciationiof'eifideliaceli learned judge of I--Appellate Court . - has confirnifjd this V finding.
H 2 4; 'lTl1el'§l.earned counsel appearing for appellant would suhinitflthat concurrent findings recorded by the courts below have no basis. The defendant having admitted the lexlecution of suit document should not have adduced ll "evidence contrary to the contents of document, as it is not permissible under Section 92 of Evidence Act. leaiineud ' counsel would further submitsfthat courts_'.=bel'QwW have committed a grave error in rei'usi'ngl"the relief of specific performance. -_
5. The learned counsel'afo'i'respondent would justify the impugnedjuédgmeiitfwfl _ -
6. The dei'e'nd'ant'3._hais admitted' the» execution and the contents of "defendaiit had contended that docn_.i.me'nt"l 1*-.ot.._:e){ec.tJ.t.§idl with an intention to transfer the pre'pe.r_ty.in«._faVourf of plaintiff. The document was executed to lse'ci_1r'e._"loan borrowed from plaintiff. Therefore, de1"end'ant has not led evidence contrary to " '~ con_'te?nts__p of docurnen.t..... v if percontents of suit agreement, on 01/03/2006, deiendanL~ agiefed to sell suit property viz. a residential house ' "-built oznpfiot measuring 30' x 40' within Gulbarga city limits.
8. During tiial, plaintiff has admitted that as on the lad-atewof execution of suit agreement (01.03.2006), he did not 4 pay a sum of ?l,55,000/-- to the defendant as recited in the suit agreement. On the other hand, plaintiff has avdniilltted that he had paid the said sum to defendant niuchfbeforei date of execution of suit agreement.
9. PW.2 one of the witnesses plaintiff has deposed that on th'e_date" exelc:.ut'i;ori--~of*°suit * if agreement, plaintiff paid a sump_0fi?1.,25p,OOC)l/l' as part of sale consideration to def'enda"ntf.p.Clontrarftoi ejvideiice of PWs.l & 2, PW.3 has asserted that of;.ve>;ect1tion of suit agreement, pl «a suni / -- to defendant.
10. T' 'ln:.:aViewf:'§o'f unpe-qu1'.:rocal'"admission made by the plaintiff', ld.isci'epa'nt.l of PW.2 & PW.3 would probablisel the 'case of..def.endant that even before the date of ex<:'c':L1.ti:opn of suit"ag_reement, there was transaction between .7 ' plaintiff'a~nd,d'efendant.
ll; plaintiff who had intended to purchase suit property" was not even aware of market value of suit. property. The plaintiff has admitted that he had not verified H documents of title. W ~
12. The plaintiff has deposed... that sale"
took place in his clinic but has rio0t..gi1ven'~ details.' ' transaction to fix sale consideration at '<71
13. The plaintiff has deposed thatVd.efe;nd'a1itVVV came if forward to sell suit schedul.e'""preopei1y forfconsideration ?1,75,000/-- and plaintiff purchase suit schedule property, Thepd-eferidant Vvhad"pti'1':;1"iased a plot and had constructed h.ouse,, 'V;Therefore;'"evidence of plaintiff that there :was:."_"n;'o.v 'regarding sale consideration to the case of defendant that therelwas ion the part of defendant to sell suit propertyVvandfth*atV"'st1it agreement was executed to V' _Asecufe repayment 'ofloan borrowed from the plaintiff. learned trial Judge on appreciation of following the judgment of this court rep'orte.r.i'in«:l"'ILR 2007 KAR 2014 (in the case of B. Puttaszuhmy /Vs/ Joseph D'Cruez and others) has held _AAt:h_at':.'there was no absolute acceptance and there was no