Karnataka High Court
Rangashamaiah vs B R Eranna on 6 December, 2021
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
RSA 384/2012
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
R.S.A.No.384/2012
BETWEEN:
Rangashamaiah
S/o Late Bettanna,
Aged about 52 years,
Resident of Mallenahalli,
Kasaba Hobli,
Madhugiri Taluk,
Tumkur District-572137. ... APPELLANT
(By Sri Vijay Krishna Bhat, Adv.)
AND:
1. B.R.Eranna
S/o Late Chikkarangappa,
Aged about 70 years,
Resident of B.C.Palya,
Now at Madhugiri-572137.
2. B.R.Thipperangappa @ Thipperangappa,
S/o Late Chikkarangappa,
Aged about 64 years,
3. Savithramma
W/o Late B.N.Lakshmikantha,
Aged about 54 years,
4. B.T.Ranganath
S/o Late B.Thimmayya,
Aged about 44 years,
RSA 384/2012
2
5. D.Banappa
S/o Late Doddanna,
Aged about 63 years,
6. Rangappa
S/o Dodanna,
Aged about 59 years,
All are agriculturists,
Residing at B.C.Palya,
Kasaba hobli, Madhugiri Taluk,
Tumkur district-572137. ... RESPONDENTS
This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 11.11.2011 passed
in RA.No.6/2011 on the file of Presiding Officer, Fast Track
Court-V, Madhugiri, dismissing the appeal against the
judgment and decree dated 18.11.2010 passed in
OS.No.29/2007 on the file of Prl. Senior Civil Judge & JMFC,
Madhugiri.
This appeal coming on for Admission, this day, the Court
delivered the following:
JUDGMENT
1. The plaintiff has filed this Regular Second Appeal challenging the judgment and decree dated 18.11.2010 passed by the Prl. Civil Judge (Sr.Dn.), Madhugiri, in O.S.No.29/2007, which has been confirmed in RSA 384/2012 3 R.A.No.6/2011 vide judgment and decree dated 11.11.2011 passed by the Fast Track Court-V, Madhugiri.
2. For the sake of convenience, the parties are referred to by the rank assigned to them in the court at first instance.
3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are, plaintiff had filed O.S.No.29/2007 against the defendant seeking the relief of specific performance of the agreement dated 28.09.2006 directing him to execute the sale deed and in case of their failure, to appoint a court commissioner to execute the sale deed and for delivery of possession of the suit schedule property.
4. It is the case of the plaintiff that defendants are the joint owners in possession and enjoyment of the suit schedule property and in the month of September 2006, since the defendants were facing some financial problem, they had approached the plaintiff and offered to sell the RSA 384/2012 4 suit schedule property and accordingly, agreement dated 28.09.2006 was executed between them for purchase of the suit schedule property by the plaintiff and it was agreed that the suit schedule property would be purchased at the rate of Rs.88,000/- per acre. It is the further case of the plaintiff that the defendants had received a sum of Rs.1,10,000/- from the plaintiff under the said agreement for sale and agreed to execute the sale deed within a period of three months from the date of the agreement. The plaintiff further contended that thereafter the defendants did not come forward to execute the sale deed pursuant to the sale agreement dated 28.09.2006 and they were postponing the same on one pretext or the other and though the plaintiff was always ready and willing to perform his part of the agreement, the defendants were not coming forward and it is under these circumstances, O.S.No.29/2007 was filed by the plaintiff after calling upon the defendants to execute the sale deed by issuing a legal notice.
RSA 384/20125
5. The defendants upon service of suit summons, filed their written statement denying the plaint averments. It is their contention that the suit schedule property is the ancestral property of Thipperangappa and the defendants have an undivided share in the suit schedule property along with the other members of the joint family. It is further contended that the suit schedule property is much more worth than the value shown in the agreement for sale and they have stated that the agreement for sale dated 28.09.2006 is a concocted and fabricated document and the defendants have not at all executed the said document. They have also contended that one Mr. Mani, a resident of Bengaluru, had approached them with a proposal for purchase of the suit schedule property and since they had refused to sell, the said Mani along with the plaintiff has created the agreement for sale and on the basis of the same, they have filed the suit for specific performance.
6. On the basis of the rival pleadings, the Trial Court has framed the following issues:
RSA 384/20126
1. Whether the plaintiff proves that the defendants no.1 to 6 agreed to sell the schedule property in his favour for Rs.88,000/- per acre and executed the agreement of sale on 28.09.2006 and received the advance consideration of Rs.1,10,000/-
by agreeing to execute the regular sale deed within 3 months?
2. Whether the plaintiff was ready and willing to perform his part of the contract?
3. Whether the defendants prove that the document dated 28.09.2006 is created and fabricated by the plaintiff?
4. Whether the plaintiff is entitled for the reliefs sought in the suit?
5. What order and decree?
7. During the course of trial, the plaintiff got examined himself as PW-1 and the other witnesses as PWs-2 to 4. In support of his case, plaintiff produced and got marked 17 documents as Exs.P-1 to P-17. On behalf of the defendants, defendant no.4 was examined as DW-1 and he has produced the genealogical tree of the joint family as RSA 384/2012 7 Ex.D-1. The Trial Court after completing the recording of the evidence, heard the arguments on both sides and by its judgment and decree dated 18.11.2010 dismissed the suit of the plaintiff. The plaintiff, being aggrieved by the same, had filed R.A.No.6/2011 and the First Appellate Court on re-appreciation of the oral and documentary evidence available on record, has dismissed the regular appeal, thereby confirming the judgment and decree passed in O.S.No.29/2007. It is under these circumstances, the plaintiff is before this Court in this regular second appeal.
8. Learned Counsel for the appellant/plaintiff submits that the courts below were not justified in dismissing the suit of the plaintiff for specific performance. He also submits that the plaintiff was always ready and willing to perform his part under the agreement and inspite of the same, the courts below were not justified in rejecting the suit for specific performance. He submits that the courts below have further erred in coming to the conclusion that RSA 384/2012 8 Ex.P-1 - agreement for sale in question is a concocted document.
9. I have carefully considered the arguments addressed on behalf of the appellant and also perused the material available on record.
10. The plaintiff, in order to establish his case, has examined himself as PW-1 and to prove the agreement for sale in question, he had also examined PWs-2 to 4 who were said to be the attesting witnesses of the agreement of sale - Ex.P-1. Both the courts below have disbelieved Ex. P-1 - agreement for sale on the ground that the said document is a created and concocted document. After perusal of the said document, the courts below have recorded a finding that certain gaps in the document were subsequently filled up in handwriting, whereas Ex.P-1 is a typed document. The courts below have also observed that the filled up portions and the corrections carried out in Ex.P-1 has not been countersigned by the parties to the agreement. The courts below have also recorded a finding RSA 384/2012 9 that the plaintiff has failed to prove that a sum of Rs.1,10,000/- was paid to the defendants under the agreement for sale in question and the plaintiff had also not made it clear that out of six defendants who had received the said amount from the plaintiff. The courts below have also observed that the amount of Rs.1,10,000/- said to have paid by the plaintiff to the defendants was not typed in Ex.P-1 and it has been subsequently inserted by way of handwriting. The courts below having appreciated the alleged thumb impression appearing on Page nos.1 & 2 of the document, have recorded a finding that the said two thumb impressions are not similar and they differ. The defendants have totally denied the execution of Ex.P-1. Under the circumstances, it was obligatory on the part of the plaintiff to prove the execution of Ex.P-1. The Trial Court as well as the First Appellate Court after having appreciated the oral and documentary evidence available on record with regard to Ex.P-1 have recorded a finding that the said document is prima facie a concocted and fabricated document and the RSA 384/2012 10 plaintiff has failed to prove the execution of the said document - Ex.P-1.
11. The courts below have also pointed out with regard to the discrepancy in the evidence of the witnesses examined on behalf of the plaintiff with regard to the place of execution of the said agreement for sale - Ex.P-1. It is the further case of the defendants that the suit schedule property is not their absolute property and it is the joint family property. The witnesses examined on behalf of the plaintiff have admitted that the suit schedule property belonged to Thipperangappa and he has got brothers and they have not divided the ancestral properties. It is also admitted by them that there are co-sharers in respect of the suit schedule properties other than the defendants. When that being so, the plaintiff cannot seek the relief of specific performance as against the defendants in respect of the suit schedule property, in which, admittedly defendants have only an undivided interest. The courts below have also recorded a finding that the plaintiff having RSA 384/2012 11 created a concocted and fraudulent document, has approached the court with uncleaned hands, and therefore, have refused to grant the relief of specific performance of the said agreement to the plaintiff.
12. On appreciation of the arguments addressed on behalf of the appellant and also considering the material available on record, I am of the considered view that the judgment and decree passed by the courts below does not suffer from irregularity or illegality and the finding of facts recorded by the Trial Court cannot be interfered by this Court in exercise of its powers under Section 100 CPC unless the appellant makes out a substantial question of law that arises for consideration in this appeal. In the circumstances, since this appeal does not involve any substantial question of law that arises for consideration, I am of the considered view that the appeal is liable to be dismissed at the stage of admission. Accordingly, this second appeal is dismissed.
RSA 384/201212
13. Since the appeal itself is dismissed on merits, IA- 1/2012 seeking temporary injunction does not survive for consideration and the same is accordingly disposed of.
Sd/-
JUDGE KK