Karnataka High Court
Baburay Pandurang Naik vs Subbu Narayan Siddi, on 24 November, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
R.S.A.No.5553/2011
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
RSA No.5553/2011 (MON)
BETWEEN:
BABURAY PANDURANG NAIK,
AGE: 70 YEARS, FOREST CONTRACTOR,
R/O AVERSA, TQ.ANKOLA,
DIST: UTTARA KANNADA - 582034.
... APPELLANT
(BY SRI.PRASHANT HOSAMANI, ADV. FOR
SRI.RAVI V.HOSAMANI, ADV.)
AND:
SUBBU NARAYAN SIDDI,
AGE: 57 YEARS, AGRICULTURE,
R/O SATANABAIL, HALAVALLI,
TQ.ANKOLA, DIST: UTTAR KANNADA-582034.
... RESPONDENT
(SOLE RESPONDENT SERVED)
---
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 10.11.2009
PASSED IN R.A.NO.3/2005 ON THE FILE OF THE DISTRICT AND
SESSIONS JUDGE, FAST TRACK COURT-I, UTTARA KANNADA,
KARWAR DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 30.08.2004 AND THE DECREE PASSED IN
O.S.NO.25/2003 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.)
KARWAR, DISMISSING THE SUIT FILED FOR EXECUTION OF SALE
DEED OR FOR RECOVERY OF MONEY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
R.S.A.No.5553/2011
:2:
JUDGMENT
The present appellant was the unsuccessful plaintiff in the Court of the Principal Senior Civil Judge, Karwar (henceforth for brevity referred to as 'the trial Court') in O.S.No.25/2003 and was also an unsuccessful appellant in the Court of the District and Sessions Judge, Fast Track Court-I, Uttara Kannada, Karwar (henceforth for brevity referred to as 'the lower appellate Court') in R.A.No.3/2005.
2. The summary of the case of the plaintiff as could be gathered from the material placed before this Court including the plaint in O.S.No.25/2003 is that, the plaintiff was taking the contract of cutting woods by obtaining necessary permission from the Forest Department. He used to purchase the standing trees and timber. The defendant was an agriculturist and owner of certain lands in Satanabail (Ankola Taluk). He approached the plaintiff in the month of August 1999 offering him to sell the standing trees and timber in his lands at R.S.A.No.5553/2011 :3: Sy.No.36B and Sy.No.37B of Halavalli village. Thus, a consideration of a sum of `17,000/- for all the tress was fixed and a token advance of a sum of `50/- was paid by the plaintiff on 22.09.1999. Thereafter, another sum of `5,000/- was also paid as advance amount by the plaintiff to the defendant. In this regard, on 22.09.2000 an agreement was entered into between them wherein the defendant had agreed to sell the standing trees in the said lands to the plaintiff. Since the defendant did not keep up his words, the plaintiff instituted a suit in O.S.No.29/2000 in the vacation Judge Court, U.K.Karwar, which later came to be tried in the Court of Civil Judge (Jr.Dn.) Ankola in O.S.No.28/2000. On 26.08.2000, the said matter came to be settled between the parties outside the Court and on 17.03.2001, the defendant executed an agreement in the presence of the witnesses agreeing to give the tress situated in Sy.Nos.36B and 37B for a sum of `75,000/-, wherein he also agreed receipt of a sum of `20,200/- from the plaintiff. Later, it was revealed that R.S.A.No.5553/2011 :4: house and trees were not coming within the Sy.Nos.36B and 37B. On 29.06.2001, the defendant executed one more agreement stating that he has received `28,200/- from plaintiff and the trees shown are not coming within the Sy.Nos.36B and 37B and agreed to give the amount taken from the plaintiff after selling Sy.No.37B and also asked the plaintiff to pay a sum of `30,000/- to return the hand loan taken by him from others. The defendant also agreed to sell his another land to the plaintiff as per the government valuation and in case if the defendant receive more price from others, he would sell the land to others and agreed to return the amount to the plaintiff within one month.
According to the plaintiff, an additional sum of `30,000/- agreed was also paid to the defendant. However, the defendant did not keep up his promise and also not responded to the legal notice issued by the plaintiff for specific performance. This lead to the plaintiff to institute the suit against the defendant in the Court of R.S.A.No.5553/2011 :5: Civil Judge (Sr.Dn.), Karwar in O.S.No.25/2003. The suit was registered as a suit for execution of sale deed or for recovery of money and was tried by the trial Court, wherein the defendant appeared through his counsel but did not file his written statement.
3. The plaintiff got himself examined as P.W.1 and got marked documents at Exs.P1 to P5. The trial Court by its judgment dated 31.08.2004 dismissed the suit of the plaintiff.
4. Being aggrieved by the said judgment of the trial Court, the plaintiff preferred a regular appeal in the lower appellate Court in R.A.No.3/2005. The lower appellate Court by its judgment and decree dated 10.11.2009 dismissed the appeal with costs confirming the judgment and decree passed by the trial Court. Being aggrieved by the judgment of the lower appellate Court, the plaintiff has preferred this appeal.
R.S.A.No.5553/2011:6:
5. In his memorandum of appeal, the appellant has taken a contention that the trial Court has erred in dismissing his suit by holding that the documents were void ab-initio, but it is not considered the fact that the defendant had executed an agreement on 22.09.2000. He has also taken a contention that since the suit has remained uncontested by the defendant, the trial Court ought to have decreed the suit. The trial Court did not notice the fact that the documents produced by him remain undisputed, as such, the trial Court ought to have relied upon the documents produced by the appellant. The appellant has also mentioned in his memorandum of appeal that the appeal involves the following question of law for the consideration of this Court.
"Even when the plaintiff-appellant had ably proved the necessary ingredients, whether the decree of the trial Court dismissing the suit of the plaintiff is correct on untenable grounds?"R.S.A.No.5553/2011 :7:
6. The matter is taken up today which was posted for admission.
7. The learned counsel for the appellant submitted his arguments on the matter. Though respondent has been served, but he has remained unrepresented.
8. The learned counsel for the appellant reiterated the contention taken up by him in his memorandum of appeal and submitted that the finding of the lower Courts that the suit was hit by the principles of res judicata was erroneous. However, in an uncontested matter, the trial Court ought to have relied upon the evidence led and documents produced by the plaintiff and decreed the suit.
9. The pleadings and evidence of P.W.1 to the extent that, he was a forest contractor and was taking on lease the standing timber on the lands of the third parties (lessor) for consideration and used to cut those timbers after duly obtaining clearance/licence from the Forest Department and sell them, is a plaint averment, on fact R.S.A.No.5553/2011 :8: which has remained un-denied or undisputed by the defendant throughout. Similarly, the pleadings and evidence of P.W.1 is to the effect that the defendant claiming himself to be the person in possession of the land bearing Sy.Nos.36B and 37B of Halavalli village approached him offering to sell the standing timber on his land to him is also an un-denied plaint averment with respect to a factual aspect. However, the alleged agreements said to have been entered into between the plaintiff and the defendant (appellant and respondent) which are said to be three in number and dated 22.09.2000, 17.03.2001 and 29.06.2001 respectively are not just confined to the factual aspect, but the alleged fact has to be considered in the light of the alleged written documents, which the plaintiff has identified as three sets of agreements.
10. Even according to the plaintiff as well the submission of the learned counsel for the appellant R.S.A.No.5553/2011 :9: (plaintiff) before this Court, the first agreement dated 22.09.2000 with respect to which a dispute has arisen and the plaintiff had instituted a suit against the defendant in O.S.No.28/2000 was compromised between the parties outside the Court, as such, the suit was dismissed as settled out of the Court. Thus, the first agreement which was the subject matter of O.S.No.28/2000 without being tested on its merits, had come to an end. The present litigation which culminated into this appeal is only with respect to the third agreement dated 29.06.2001, which according to the appellant has come into existence by virtue of second agreement dated 17.03.2001. Therefore, the first ground taken up by the appellant in his memorandum of appeal that the trial Court did not consider the execution of the first agreement dated 22.09.2000 does not hold water.
11. The second agreement dated 17.03.2001 has been marked by the plaintiff in the trial Court at Ex.P4. A R.S.A.No.5553/2011 : 10 : perusal of the said agreement in the lower Court records which is placed before this Court go to show that it is a typed document on a stamp paper of the value of `30/-, wherein the present respondent is shown to have agreed to sell the standing timber in the very same land bearing Sy.Nos.36B and 37B in favour of the plaintiff/appellant for a consideration of `75,000/-. In the said agreement, it is also shown that he has agreed receipt of a sum of `20,200/-. A recital in that agreement go to show that the executor of the said agreement shown to have agreed to sell the standing timber on the said land and in case, if it is noticed that some of the timber are out of survey number belonging to the plaintiff then he would refund the loan amount. Admittedly, O.S.No.25/2003 from which the present appeal has arisen is not with respect to this agreement dated 17.03.2001 at Ex.P4 or for its specific performance.
R.S.A.No.5553/2011: 11 :
12. As already observed above, according to the plaintiff the parties have entered into one more agreement, which according the plaintiff is third agreement dated 29.06.2001, which he has marked in the trial Court as Ex.P5. The said agreement which is on a quarter sheet of the white paper is reproduced in its entirety here below:
'²æà ¸ÀĨÁâ £ÁgÁAiÀÄt ¹¢Þ, UÁæªÀÄ ºÀ¼Àª½ À î ¸ÁvÀ£À ¨Éʯï vÁ®ÆPÀ CAPÉÆïÁ DzÀ £Á£ÀÄ ²æà ¨Á§ÄgÁAiÀÄ ¥ÁAqÀÄgÀAUÀ £ÁAiÀÄPÀ ¸Á: CªÀ¸Áð vÁ®ÆPÀ CAPÉÆïÁ DzÀ EªÀjUÉ §gÀPÉÆqÀĪÀ PÀgÁgÀÄ ¥ÀwPæ É J£ÉAzÀgÉ, £Á£ÀÄ F »AzÉ £À£Àß ªÀiÁ°Ì ¸À.£À.36§ ªÀÄvÀÄÛ 37§ zÀgÀ°èAiÀÄ VqÀU¼ À £ À ÀÄß PÉÆqÀĪÀÅzÀ£ÀÄß ªÀiÁr ¤«ÄäAzÀ 28200-00 (E¥ÀàvÉÛAlÄ ¸Á«gÀzÀ JgÀq£ À ÀÆgÀÄ gÀÆ. PÉÆArzÉÝãÀÄ) £Á£ÀÄ ºÀt PÉƼÀÄîªÁUÀ F »AzÉ PÀgÁgÀÄ ¨ÁAqï ¥ÉÃ¥ÀgÀ ªÉÄÃ¯É §gÉzÀÄPÉÆnÖzÀÄ EgÀÄvÀÛz.É ¸À¢æ JgÀqÀÄ ªÀiÁ°Ì ¸Àªð É ªÀiÁr¹zÁUÀ £À£Àß ªÀiÁ°ÌAiÀÄ UÀrAiÉƼÀUÉ £Á£ÀÄ vÉÆÃj¹zÀ VqÀU¼ À ÀÄ §gÀĪÀÅ¢®èªA É zÀÄ w½¬ÄvÀÄ.
vÁ£Á£ÀÄ vÀ«ÄäAzÀ PÉÆAqÀ gÀRA£ÀÄß £À£Àß JAzÀÄ ªÀiÁ°Ì ¸À.£ÀA.37§ MAzÀÄ£ÀÄß ªÀiÁj ¤ªÀÄä ¸Á® wÃj¸ÀÄvÉÛãÉ. £Á£ÀÄ F »AzÉ ¨ÉÃgÉ d£ÀjAzÀ PÉÆAqÀ ¸Á® §ºÀ¼« À gÀĪÀzÀjAzÀ £À£ÀUÉ ªÀÄvÉÛ 30000-00 (ªÀÄƪÀvÀÄÛ ¸Á«gÀ) ¨ÉÃPÁVgÀÄvÀÛz.É £Á£ÀÄ £À£Àß d«ÄãÀ£ÀÄß ¸ÀgPÀ ÁgÀ oÀgÁ¬Ä¹zÀ gÀRA£À¯Éè ¤ªÀÄUÉ PÉÆqÀÄvÉÛãÉ. MAzÀÄ ªÉÃ¼É ¨ÉÃgÉ d£ÀjAzÀ £À£Àß d«ÄäUÉ ºÉa£ Ñ À ¨É¯É ¹PÀÌ°è £Á£ÀÄ ¨ÉÃgÉAiÀĪÀjUÉ R.S.A.No.5553/2011 : 12 : £À£Àß d«ÄãÀÄ ªÀiÁgÁl ªÀiÁr E£ÀÄß MAzÀÄ wAUÀ¼À°è ¤ªÀÄä ¸Á® wÃj¸ÀÄvÉÛãÉ. MAzÀÄ ªÉÃ¼É £Á£ÀÄ ¤ªÀÄUÉ ªÉÆøÀ ªÀiÁrzÀÝ°è ¸ÀgPÀ ÁgÀ¢AzÀ DUÀĪÀ Qæ«Ä£À¯ï ¹«¯ï UÀÄ£ÉßUÉ £Á£ÀÄ §zÀÞ¤zÉÝãÉ. N¢ ºÉýzÀÄÝ w½¬ÄvÀÄ £Á£ÀÄ §gɬĹzÀAvÉ §gÉzÀzÀÄÝ EgÀÄvÀÛz.É F ¢£À ¤«ÄäAzÀ ZÉPÀÌ ªÀÄÆ®PÀ 30000-00 gÀÆ. £À£ÀUÉ ªÀÄÄnÖgÀÄvÀÛz.É ªÀÄvÀÄÛ ¸Àzg À À ¥ÀæwAiÀÄ MAzÀÄ gÀhÄgÁPÀì £À£U À É PÉÆnÖzÀÄÝ EgÀÄvÀÛz.É ' A reading of the said document clearly go to show that the said document which they have called as agreement, does not mention that it is a part and parcel of the previous two alleged agreements said to have been entered into between them dated 22.09.2000 and 17.03.2001. Though a reference is made in the alleged agreement at Ex.P5 dated 29.06.2001 that he had written on a bond paper while receiving the amount, it nowhere mentioned that the previous writing on a bond paper was an agreement of any particular date and that the present so called agreement at Ex.P5 is either continuation of a previous alleged agreements or that it is a part of the previous documents. This view also gets support by R.S.A.No.5553/2011 : 13 : reading of the prayer made by the plaintiff in the original suit, which is reproduced here below:
"THEREFORE, it is most respectfully prayed that-
a) A decree be passed in favour of the plaintiff as against the defendant, decreeing the suit directing the defendant or ordering the defendant to appear before the Sub-Registrar, Karwar or concern to execute the registered sale deed in the name of the plaintiff in relating to the suit schedule properties and failure to which a Court Commissioner be appointed at the costs of the defendant and directing him to appear before the Sub-
Registrar, Karwar or concerned to sign and execute the sale deed in relating to the suit schedule properties, in the name of the plaintiff and consequently till the registration of the sale deed, in the name of the plaintiff in respect of the suit schedule properties the defendant, his men, agents, or anybody claiming right him, be restrained from mortgaging or executing any documents touching the suit schedule properties in favour of the third person;
OR In case if sale deed cannot be executed only on account of the fault of the plaintiff, if any directions be issued ordering the defendant to refund the entire amount of Rs.58,200-00 with full interest at the rate of 15% per annum till the payment is made, consequently R.S.A.No.5553/2011 : 14 : the suit schedule properties be attached and charged in the interest of justice and equity.
b) Any other reliefs including the costs be awarded as the Hon'ble Court deems fit and proper, in the ends of justice and equity."
A reading of the above prayer clearly go to show that the prayer of the plaintiff has no bearing either with the alleged agreement dated 22.09.2000 or with the alleged second agreement dated 17.01.2001, but it is confined to the so called alleged third agreement dated 29.06.2001, which is at Ex.P5. Even though both the lower Courts after referring to the previous suit between the parties in O.S.No.28/2000 and its settlement in Lok Adalath / Janata Nayalaya have observed that principles of res judicata is also applicable, but suit or appeal of the appellant was not dismissed solely on the ground of principles of res judicata. The said principles of res judicata was taken as one of the ground for dismissal of the suit and appeal.
R.S.A.No.5553/2011: 15 :
However, both the Courts below have appreciated the evidence of P.W.1 and also the documents produced by him at Exs.P1 to P5 and more particularly the document at Ex.P5 based upon which the plaintiff had prayed for the relief of specific performance. As observed above, the said document is on a mere quarter sheet on white paper and a recital of the said document go to show that the alleged executor of the said document who is said to be the present respondent herein is shown to have agreed to sell the properties bearing Sy.Nos.36B and 37B to the plaintiff. The said agreement for sale is also a conditional one that, in case he gets a good price from third parties, the agreement of sale in favour of the plaintiff would not hold good but for refund of the money. Both the Courts below have noticed that the said document at Ex.P5 cannot be considered as a legally enforceable document in the absence of any stamp duty paid upon the document or even due to non-registration of the said document. They have categorically observed that the R.S.A.No.5553/2011 : 16 : said document creates a doubt within itself since it involves some alterations in the amount in it and also considering the nature of document. They have also noticed that witness to this document was also not examined. As such, in the light of the alleged transaction and more particularly when a landed property shown to have been the subject matter of the transaction and a document on a mere piece of a white paper was not fit for its acceptance on its facial value. The said finding of the Courts below that the document which is shown to be in the nature of an agreement of sale of immovable property being not complying with the essential requirements under law with regard to its stamp duty, registration and also in the light of the non-examination of the alleged witness to the document cannot be accepted and relied upon. As such, merely because the defendant who is said to be the executor of the said document is said to be not contested the matter that by itself would not entitle the plaintiff for a decree as prayed for. As such, rightly both the Courts R.S.A.No.5553/2011 : 17 : below have appreciated the facts in their proper perspective and arrived at a conclusion. Barring this, no substantial question of law is involved in this appeal. As such, it is not a fit case to be admitted. Accordingly, I proceed to pass the following:
ORDER The appeal stands dismissed at the stage of admission.
Sd/-
JUDGE MBS/-