Karnataka High Court
Shivakumar S/O Viranna vs Syed Ahmed Sab S/O Hasan Miyan on 25 September, 2023
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NC: 2023:KHC-K:7671
RFA No. 200069 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 200069 OF 2015 (SP)
BETWEEN:
1. SHIVAKUMAR S/O VIRANNA,
AGED ABOUT 22 YEARS,
OCC:AGRICULTURE,
R/O: NAGARA BENCH,
TQ:LINGASUGUR,
DIST:RAICHUR-584 101.
2. ASHOK S/O VEERANNA,
AGED ABOUT 19 YEARS,
OCC:STUDENT,
R/O: NAGARA BENCH,
TQ:LINGASUGUR
DIST:RAICHUR-584 101.
Digitally signed
by SOMANATH 3. MALLIKA D/O VEERANNA,
PENTAPPA AGED ABOUT 18 YEARS,
MITTE
Location: HIGH
OCC:STUDENT,
COURT OF R/O: NAGARA BENCH,
KARNATAKA TQ:LINGASUGUR
DIST:RAICHUR-584 101.
4. ERAMMA W/O VEERANNA,
AGED ABOUT 50 YEARS,
OCC:HOUSEHOLD,
R/O: NAGARA BENCH,
TQ:LINGASUGUR,
DIST:RAICHUR-584 101.
APPELLANT NO.4 HAS DIED,
LR'S OF THE DECEASED APPELLANT NO.4 I.E.
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NC: 2023:KHC-K:7671
RFA No. 200069 of 2015
APPELLANT NOS. 1 TO 3 ARE ALREADY ON
RECORD AND APPELLANT NOS. 1 TO 3 ARE TREATED AS
LR'S OF APPELLANT NO.4.
...APPELLANTS
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. SYED AHMED SAB S/O HASAN MIYAN,
AGED ABOUT 40 YEARS,
OCC:AGRICULTURE,
R/O: MERANAL,TQ:SINDHANUR,
DIST:RAICHUR-584 101.
2. SYED SIRAJPASHA S/O HASAN MIYAN,
AGED ABOUT 28 YEARS,
OCC:AGRICULTURE,
R/O: MERANAL, TQ:SINDHANUR,
DIST:RAICHUR-584 101.
3. VEERANNA S/O AMARAPPA SAKODI,
AGED ABOUT 42 YEARS,
OCC:AGRICULTURE,
R/O: NAGARA BENCH, TQ:LINGASUGUR,
DIST:RAICHUR-584 101.
RESPONDENT NO.3 HAS DIED,
LR'S OF RESPONDENT NO.3 ARE ALREADY ON
RECORD I.E.APPELLANT NOS. 1 TO 3 ARE
TREATED AS LR'S OF RESPONDENT NO.3.
AMENDED AS PER ORDER DATED 11.11.2020.
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE FOR R1 & R2;
V/O DATED 03.11.2020 A1 TO A3 ARE TREATED AS LR'S
OF A4 AND R3)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 12.11.2014 PASSED IN O.S.
NO. 5/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,
LINGASUGUR WHEREIN, THE SUIT WAS DECREED.
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NC: 2023:KHC-K:7671
RFA No. 200069 of 2015
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY THROUGH VIDEO CONFERENCING AT BENGALURU,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal by the defendant Nos. 2 to 5 (appellants herein) is directed against the judgment and decree passed in O.S. No.5/2013 by the learned Senior Civil Judge and JMFC, Lingasugur, dated 12.11.2014, whereby the suit of the plaintiffs against the defendants for specific performance of contract came to be decreed.
2. The parties would be referred to as per their rankings before the trial Court for the sake of convenience.
3. The brief facts of the case are as below:
The plaintiffs contended in their plaint before the trial Court that Survey No.97 measuring 25 acres 16 guntas situated at Nagarabenchi village of Lingasugur Taluk, was owned by the defendant No.1-Veeranna. They contended that the plaintiffs and defendants were known to each -4- NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 other and the defendant No.1 had financial problems and therefore, he had agreed to sell the suit schedule property to the plaintiffs and accordingly, the plaintiffs had also agreed to purchase the said suit schedule property. In pursuance to the negotiations between the plaintiffs and defendant No.1, there was an agreement between them whereby the defendants agreed to sell the suit schedule property to the plaintiffs for a consideration of Rs.14,00,000/-. Accordingly, an agreement came to be effected on 6-1-2011, whereby the defendant No.1 had received a sum of Rs.13,50,000/- towards advance payment and executed an agreement of sale which was registered before the Sub Registrar on the same day. It was contended that the remaining sale consideration of Rs.50,000/- was to be paid at the time of registration of the sale deed and the defendants had agreed to execute the sale deed after getting the revenue sketch after surveying the property from the revenue authorities.
Plaintiffs alleged that defendants did not perform their part of contract by getting the revenue sketch prepared -5- NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 therefore, the plaintiffs insisted the defendants to execute the sale deed, but they dodged the same on the one or the other pretext. Therefore, plaintiffs lost hope of getting the sale deed executed and as such, they issued a legal notice on 10-10-2012 to the defendants. The defendant No.1 managed to refuse the said notice and therefore, the plaintiffs were constrained to file the suit seeking specific performance of the contract agreement of sale.
4. Defendant No.1 appeared before the trial Court and filed his written statement contending that the allegations made by the plaintiffs in the plaint are totally false and frivolous and he denied the plaint averments. Defendant No.1 contended that he is not the absolute owner of the suit schedule property and that there was no such family or legal necessity to the defendant No.1 to sell the suit schedule property in question. He contended that there was no such cause of action to file the suit. Inter alia, he contended that the family dispute had arisen between the family members of the defendant No.1 and -6- NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 the land bearing Survey No.97, measuring 25 acres 16 guntas had been allotted to the shares of his two sons and a daughter with a responsibility to his wife to maintain the family affairs. It was contended that the sons of the defendant No.1 are deaf and dumb and they are in possession and enjoyment of the property which was allotted to them in the family partition. Therefore, there was no reason for the defendant No.1 to execute any agreement of sale and therefore, the suit is liable to be dismissed.
5. During the pendency of the suit, defendant Nos. 2 to 5 who are the children and wife of the defendant No.1 got impleaded in the suit by invoking the provisions of Order 1 Rule 10 of CPC and they filed written statement also. The written statement filed by defendant No.5 was adopted by defendant Nos. 2 to 4. It was contended that the defendant No.1 is not the absolute owner in possession of the land bearing survey No.97 and in fact, there was a partition and in the said partition the suit -7- NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 schedule property was allotted to the share of defendant Nos.2 to 5. Therefore, they contended that they were in possession and enjoyment of the suit schedule property and the defendant No.1 was not capable of entering into an agreement of sale with the plaintiffs. They also contended that there was no such family or legal necessity to the defendant No.1 to sell the suit property in question.
6. On the basis of the above pleadings, the following issues were framed by the trial Court and were answered as below after letting in the evidence by the parties. Plaintiff No.1 was examined as PW1 and two witnesses were examined as PWs.2 and 3 and Exs.P1 to P5 were marked on behalf of the plaintiffs. Defendant No.1 and 5 were examined as DWs. 1 and 4 and two other witnesses were examined as DWs 2 and 3 and no documents were marked on behalf of the defendants.
Issues Answer
1. Whether the plaintiff proves that the Partly in the defendant No.1 is owner of the suit affirmative property, he has agreed to sell the said property for his family necessity -8- NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 and executed registered agreement of sale dated 06.01.2011 by way of receiving advance amount of Rs.13,50,000/-?
2. Whether the plaintiffs prove that they Affirmative are ever ready to perform their part of contract and the defendant is not ready to perform his part of contract?
3. Whether the plaintiffs are entitle for Affirmative the reliefs specific performance?
4. Whether the plaintiffs are entitled for Does not alternative reliefs of refund of survive for advance amount with interest as consideration prayed for?
5. What order or Decree? In the negative Additional Issues Answer
1. Whether the defendant No.2 to 5 In the negative prove that as per alleged family partition suit schedule property has been allotted to their share?
2. Whether the defendant No.2 to 5 As per final prove that alleged agreement of sale order is not binding on them?
7. By the impugned judgment, the suit of the plaintiffs came to be decreed and the defendant No.1 was directed to execute the sale deed within sixty days as per Ex.P1, the agreement purported to be executed. -9-
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8. Being aggrieved by the said judgment and decree, the defendant Nos. 2 to 5 have approached this Court in appeal. Defendant No.1. is arrayed as respondent No.3 before this Court.
9. During the pendency of the appeal, respondent No.3/defendant No.1 died and his LRs who are none else than appellant Nos. 1 to 4 are on record. Even the appellant No.4-Eramma died and appellant Nos. 1 to 3 are treated as her LRs vide order dated 15-10-2020.
10. The appellants-defendant Nos.2 to 5 contended that the trial Court has not properly assessed and analysed the Ex.P1-agreement of sale which clearly shows that it was an agreement for collateral security purpose and it was a money transaction. It is contended that Ex.P1 clearly states that the defendant No.1 was in need of loan and he wanted to clear the debts and therefore, he had obtained the loan from the plaintiffs and as such, Ex.P1 was not really an agreement of sale. They contended that
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 land to the extent of 25 acres 16 guntas could not have been sold for a paltry sum of Rs.14,00,000/- and therefore, the alleged agreement is virtually not an agreement of sale. They contended that there are variations in the testimony of the witnesses of the plaintiffs i.e. PWs.2 and 3 and it was not properly considered by the trial Court. It is also contended that the suit schedule property was acquired in a partition between the defendant No.1 and his brothers and they had acquired the said property from their ancestors and as such, the property being an ancestral property, the appellants/defendant Nos. 2 to 5 were also sharers in the suit schedule property. It is contended that defendant Nos.2 to 5 made all efforts to produce a memorandum of partition before the trial Court, but the trial Court had rejected to admit the same in evidence. It is contended that the suit schedule property was the only source of income to the appellants and the appellant No.3 is still unmarried daughter and appellant Nos. 2 and 3 are deaf and dumb and therefore, equity was not considered by the
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 trial Court while assessing the evidence on record. It is contended that the appellants would be put to great hardship and the grant of specific performance being a discretionary remedy, the trial Court has not exercised the discretion in accordance with the settled principles of law.
11. On issuance of notice respondent Nos. 1 and 2 have appeared through their counsel. The appeal came to be admitted and trial Court records have been secured.
12. During the pendency of the appeal, appellants have filed two applications under order 41 Rule 27 of CPC i.e. IA No.2/2015 and IA No.1/2020. The first application was filed on 30.09.2015 under order 41 Rule 27 CPC by the appellants seeking to produce the records of rights in respect of suit land in Sy.No.97 measuring 25 acres 16 guntas and mutation order and the records of rights on the basis of the alleged partition between the parties. The second application was filed on 16-1-2020 under order 41 Rule 27 CPC by the appellants seeking to produce certain
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 documents to establish that the appellants Nos. 1 and 2 are physically handicapped and they are deaf and dumb and that the appellant No.3 was studying at the time of the alleged agreement of sale. By virtue of these applications, the appellants have sought for adducing additional evidence to show that the equity should have been considered by the trial Court in their favour.
13. The first application under order 41 Rule 27 of CPC was opposed by the respondent Nos. 2 and 3 contending that the affidavit filed in support of the application is not explaining the reasons for production of the additional evidence at belated stage and as such, it deserves to be dismissed.
14. Arguments of Sri Shivakumar Kalloor, learned counsel appearing for the appellants and Sri Shivanand Patil, learned counsel appearing for the respondent Nos. 1 and 2 were heard and perused the records.
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015
15. The learned counsel appearing for the appellants contends that two sons of the defendant No.1 are deaf and dumb and they are disabled and the appellant Nos. 1 to 3 are minors at the time of the alleged agreement of sale. This aspect had been admitted by PW3 during evidence and therefore, the trial Court had failed to consider the comparative hardship and the equity in a proper manner. It is further contended that it is the only property available for the defendants and the suit property to the tune of 25 acres 16 guntas was allegedly agreed to be sold for a paltry sum of Rs.14,00,000/- and therefore, he contends that there is inadequacy of the consideration amount and this clearly indicates that it was a money transaction but not an agreement of sale of the immoveable property. Thirdly, he contends that the suit schedule property is the ancestral property and therefore, the appellants are the sharers and their consent was not at all taken at the time of execution of alleged agreement of sale. Hence, he submits that the trial Court should have ordered the refund of the amount received by the defendant No.1 and
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 the trail Court failed to exercise the judicial discretion in favour of the defendants. He submits that the provisions of Section 20 of the Specific Relief Act, casts a burden on the trial Court to consider to exercise the judicial discretion and therefore, the trail Court has failed to consider the same.
16. He submits that the applications filed by the appellants/defendant Nos. 2 to 5 show that the defendant No.5 was the mother of defendant Nos. 2 to 4 and she being a lady was to defend the suit. He contends that there are documents which show that the defendant Nos. 2 and 3 were deaf and dumb and therefore, they could not appear before the Court and adduce the evidence. He submits that the documents now sought to be produced pertain to their disability and throw light on the social status of the defendant Nos. 2 and 3 and as well as the hardship that would be meted out against them. He further contended that the property was the ancestral property and this point came to the knowledge of the
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 defendants after the death of defendant No.1 and therefore, the record of rights which show the flow of the titles on the ancestors of the defendant No.1 be allowed to be produced.
17. In support of his contentions, he has placed reliance on the decision in the case of K.C. Laxmana Vs. K.C. Chandrappa Gowda and another1, wherein, it was held that "where alienation of the joint family property is not made with the consent of all coparceners, it is voidable at instance of coparceners whose consent has not been obtained".
18. He also relied on a catena of decisions which are as below:
1.Vastada Shivamurthappa V/s. Adhikari Chennabasappa and others2.
2. S.Sheshagiri V/s. V.Malleshi3.
3. Afzar Pasha V/s. Syed Asharaff4 1 (2022) SCCR 454 2 HCR 2015 Kant 297 3 HCR 2014 Kant. 408 4 HCR 2016 Kant 544
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4. R.Narayanswamy V/s. A.V. Narayan Swamy 5.
5. Pemmada Prabhakar & Others V/s.
Youngmen's Vysya Association & Others 6.
19. Per contra, the learned counsel appearing for the respondent Nos. 1 and 2 contended that the present appeal is not filed by the defendant No.1 who is the dominant litigant in the case. He contend that the defendant Nos. 2 to 5 are not claiming the declaration of the title and there was no such provity of contract between the appellants and the respondent Nos. 1 and 2. He contends that the appellants cannot maintain this appeal when the defendant No.1 was alive. Further he contend that the trial Court in para 22 of the judgment has considered the admissions of DW4 who is none else than the defendant No.5. He submits that the admissions of DW4 are clear and categorical in so far as it relates to the nature of the document, the fact that the defendant No.1 had received the sum of Rs.13,50,000/- as an 5 HCR 2016 Kant 369 6 2014 AIAR (Civil) 941
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 advance consideration amount and also that there was family necessity for the defendant No.1. He points out that the defendants have not produced single piece of document in support of their case, except the oral testimony of DWs 1 to 4. It is contended that there is no allegation of fraud or vices sofar as defendant No.1 is concerned and there is admission by DW4 that there was debts to the family and therefore, defendant Nos. 2 to 5 do not question the acts of the kartha of the family i.e. defendant No.1. Sofar as the contention of discretion of the trial Court is concerned, he submits that defendants had not pleaded equity and their conduct also do not warrant for exercising discretion in their favour. He submits that witnesses to the sale deed are none else than the brothers of the defendant No.1 and that there is no material to show that the sum of Rs.14,00,000/- which was agreed as the sale consideration amount was paltry sum and therefore, the contentions of the appellants are not sustainable.
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20. In support of his contentions, he has placed reliance on the following judgments:
1. P.Daivasigamani V/s. S.Sambandan 7;
2. Kasturi V/s. Uyyamperumal & Others8
3. Zarina Siddiqui V/s. A Ramalingam9
21. During the hearing of the matter, efforts were made by this Court to explore the possibilities of settlement. However, the parties did not agree and come forward for settlement.
22. After hearing the arguments by both the sides, the points that arise for the consideration of this Court are:
(i) Whether the trial Court has erred in holding that the agreement of sale i.e. Ex.P1 is proved?
(ii) Whether the trial Court is justified in holding that the appellants are entitled for the 7 Civil Appeal No.9006 of 2011 DD 12-10-2022 8 Appeal (civil)2831 of 2005 DD 25-04-2005 9 Civil Appeal No. 9947 of 2014 DD 29-10-2014
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 discretionary relief of specific performance of agreement of sale?
(iii) Whether the applications filed by the appellants under order 41 Rule 27 of CPC deserve to be allowed?
(iv) What order?
23. In order to prove Ex.P1, the agreement of sale, the plaintiffs had relied on the testimony of the plaintiff No.2 as PW1 and the witnesses to the document i.e. PWs 2 and 3. The PW.1 in his evidence reiterated the plaint averments and contended that in pursuance to the negotiations, defendant No.1 agreed to sell suit property for a sum of Rs.14,00,000/- and accordingly agreement of sale is executed on 6-1-2011 and it was also registered on the same day. He states that defendants had to get the revenue sketch after surveying the suit property and thereafter the sale deed would be executed. He contends that the defendants thereafter did not yield to their requests to execute the sale deed and to get the sketch
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 prepared by survey department and therefore, they are constrained to file the suit.
24. In the cross-examination, he has stated that plaintiffs jointly owned 80 acres of lands and that the defendant No.1 himself had come to their village i.e. Maranala for the negotiations. He states that he had not enquired the adjoining owners of the suit schedule property and that the defendant No.1 was known to him for 10 to 15 years. He also states that brother of the defendant No.1 Amaragondappa was also not in station. It is elicited that a sum of Rs.13,50,000/- was paid to the defendant No.1.
25. The evidence of PWs 2 and 3 show that they were present at the time of execution of the agreement of sale. PW3 happens to be the scribe and he has deposed that he has written the agreement of sale as per the instructions of the parties.
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26. PW.3 states in his cross-examination that the defendant Nos. 2 to 5 were not present at the time of the agreement of sale. The cross-examination of PW.2 shows that it was agreed between the parties that the sale deed has to be executed within of 15 days of the execution of the agreement of sale.
27. Defendant No.1 has been examined as DW1 and he has denied any such execution of agreement of sale. But curiously, he do not mention in his affidavit evidence that the transaction was an exclusive money transaction. He simply denies Ex.P1 and states that there was no such family or legal necessity for him to sell the suit schedule property. However, in the cross-examination, he admits that he had not lodged any complaint against the plaintiffs for fraud or misrepresentation. In other words, he has admitted the execution of the agreement of sale by saying that the signature on the Ex.P1 belongs to him. In the cross-examination, he admits that there was a division of the property between himself and his brothers and the suit
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 schedule property was allotted to him in the said partition. Therefore, the fact that the defendant No.1 had the title over the suit schedule property by virtue of a partition between himself and his brother is established. It is not the case of the plaintiffs that the defendant No.1 had purchased the suit schedule property and therefore, he was an absolute owner of the property. However, the defendant No.1 was holder of the title by virtue of a partition between himself and his brothers. In the cross- examination, it is elicited that in the year 2004, he had partitioned the property among himself and his wife and children. DW1 also states that there is a document to show the said partition. However, the said document was found to be inadmissible in evidence and therefore, it was rejected by the trial Court.
28. It is pertinent to note that the defendant No.1 sought to introduce an unregistered document which is titled as a 'Memorandum of Partition', which was on a stamp paper of Rs.100/-. The admissibility of the said
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 document was disputed and therefore, the trial Court has passed a detailed order on 17-10-2014. In the said order, the trial Court came to the conclusion that though the said document is titled as 'Memorandum of Partition' in the year 2004, in reality, it is an instrument of partition and it do not refer to an earlier partition between the members of the family. Therefore, the trial Court by a reasoned order, rejected the claim of the defendant No.1 and rejected the prayer to admit the document in evidence. The said order has become final and it was not questioned by the appellants before any other Forum. Therefore, it is not necessary for this Court to enter into the question of admissibility of the said document any more.
29. The defendants have also examined DWs. 2 and 3 who are the witnesses and they say that the suit schedule property is in possession and enjoyment of defendant Nos. 2 to 5. They state that there were differences between the defendant No.1, his wife and children though there were no such police cases between
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 them. They say that there was a partition between the defendant No.1 and the defendant Nos. 2 to 5, but they say that they were not present at the time of the partition. However, their say is restricted to the contention that the defendant Nos. 2 to 5 are in possession of the suit schedule property.
30. The defendant No.5 Eramma, wife of defendant No.1 was examined as DW4. In the cross-examination, she has categorically admitted that the defendant No.1 had entered into an agreement of sale in respect of the suit schedule property in favour of the plaintiffs. She also admits that the assets of the family were looked after by defendant No.1 and she admits that due to financial necessity the defendant No.1 had entered into an agreement with plaintiffs. She also states that she happens to be the only daughter of her father and her father is also living with her. She states that she had about 19 acres 12 guntas in Sy.No.112 and 4 acres 13 guntas in Sy.No.144/2. Therefore, it is evident that the
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 defendant No.4 has obtained certain properties from her parents.
31. In view of the above evidence on record, it is clear that the plaintiffs had entered into an agreement of sale with the defendant No.1 as per Ex.P1. Though DW1 denied that it was agreement of sale, he categorically says that it was a document for security of a hand loan. Therefore, when the defendant No.1 had admitted his signature on Ex.P1 and also DW4 categorically admits that defendant No.1 had entered into an agreement of sale with the plaintiffs after receiving a sum of Rs.13,50,000/- nothing more is required to prove Ex.P1, as such, the trial Court has rightly come to the conclusion that execution of Ex.P1 has been proved as required under law.
32. The next question that arises for consideration before this Court is in respect of discretion that has to be exercised in favour of plaintiffs and defendants. It is evident that the plaintiffs have paid substantial portion of
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 the sale consideration amount to the defendant No.1 i.e. to the extent of Rs.13,50,000/-. It is also established that the defendant No.1 had to survey the property and get the relevant revenue sketch prepared by survey authorities within a period of 2 years. There is no such delay in filing the suit by the appellants which would reflect on their ready and willingness to perform their part of the contract. Therefore, the question of ready and willingness was also rightly decided by the trial Court.
33. It is to be noted that the contention of the defendants that the suit schedule property was partitioned among the defendant No.1 to 5 has not been proved as required under law. Though the defendants contended that there was document regarding the partition, such document was not admitted in evidence. They have not agitated the matter and also admissibility of said document was rejected by trial Court. It is also to be noted that in pursuance to the alleged partition in the year 2004, the mutation entries were not effected. Therefore,
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 the question whether the said oral partition and memorandum of partition was in fact acted upon is not proved. There is absolutely no material on record to show that the said partition in the year 2004 among the defendant No.1 on the one side and defendant Nos. 2 to 5 on the other side was acted upon by the authorities. On the contrary, the evidence of DW4 shows that at the time of the deposition before the trial Court it was defendant No.1 who was looking after the affairs of the family. Evidently, defendant Nos. 2 and 3 were deaf and dumb and therefore, it is doubtful that the defendant Nos. 2 to 4 were managing the affairs of the family of the defendant No.1. This aspect having become final, it is not necessary to delve into the same any more.
34. The next question that needs to be considered is, whether the trial Court had exercised the discretion in a judicious manner? Evidently, no documentary evidence is available on record on behalf of the defendants. Now the learned counsel appearing for the appellants has
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 contended that the defendant Nos. 2 to 5 who are the appellants herein want to adduce further evidence and they could not produce the necessary document before the trial Court as they were illiterate persons and they were not in a position to assert their rights. The learned counsel appearing for the appellants relied on the affidavit filed in support of the IAs filed under order 41 Rule 27 of CPC.
35. The affidavit filed in support of IA No.2/2015 filed under order 47 Rule 27 dated 30-09-2015 is sworn by defendant No.5-Eramma. In her affidavit, she states that defendant No.1 had no right to sell the suit property without the consent of defendants Nos. 2 to 4 and therefore, the agreement was not binding on them. She states that the suit land is an ancestral property and the defendant No.1 and his brothers had partitioned the property and in order to establish that it was an ancestral property she needs to produce the documents which are revenue records. She contends that during the second week of August, she came to know that suit property was
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 ancestral property and earlier it was standing in the name of elder brother of defendant No.1. Thereafter, the documents were obtained by her and therefore, she wants to produce the said documents.
36. The said application is opposed by the respondent Nos. 1 and 2/plaintiffs contending that the defendants have not taken up the contention that the suit property is the ancestral or that one of the same is ancestral and no such documentary evidence was produced before the trial Court. It is contended that due diligence was not shown by the defendants though they appeared before the trial Court and they could have very well produced those documents before the trial Court.
37. The second application i.e. IA No. 1/2020 filed under order 41 Rule 27 of CPC is supported by an affidavit by the appellant No.3 i.e. the defendant No.4. She contends that the appellant Nos. 1 and 2 are deaf and dumb and she was unmarried daughter at the time of the
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 trial. She contends that defendant No.1 has also has a share in the suit schedule property and there was a partition between them. She contends that if the suit schedule property, which is an ancestral property is allowed to be alienated to the plaintiffs, she and appellant Nos. 1 and 2 would be put to untold hardship. It is contended that the appellants want to produce the documents regarding the disability of defendant Nos. 2 and 3 which throw light on the financial and other conditions of the family of the appellants. It is stated in the affidavit that the suit schedule property was worth in crores and by means of playing fraud on defendant No.1 who was drunkard and was addicted to bad vices, the plaintiffs had entered into an agreement of sale. It is contended that there is totally inadequacy of the sale consideration amount and the plaintiffs had got executed the agreement of sale by undue influence. It is contended that the trial Court has not at all considered the comparative hardship and the equity and therefore, the documents which now sought to be produced throw light
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 on the affairs of the family of the appellants and therefore, those documents are necessary for the purpose of exercising judicial discretion. Hence, application be considered.
38. This application filed by the appellants was not resisted by the respondent Nos. 1 and 2 by filing any objection statement.
39. The provisions of Order 41 Rule 27 of CPC has to be exercised by the Appellate Court only in the circumstances enumerated in Rule 27. The provisions of Order 41 Rule 27(1) CPC read as below:
"27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."
40. It is evident that the parties to an appeal cannot seek production of the additional evidence merely for the purpose of production. It is to be noted that under Clause
(a) to Rule 27 (1) CPC, if the trial Court has refused to admit any documents as evidence, then the Appellate Court has the power to allow such production. In the case on hand, obviously, Clause (a) is not pressed into service by the appellants. Evidently, the trial Court had passed a reasoned order so far as the alleged memorandum of partition is concerned. Therefore, the said order having become final, it is not open for the appellants to agitate the said matter afresh.
41. So far as Clause (aa) is concerned, the appellants have not shown that despite their exercise of
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 due diligence, such evidence could not be produced before the trial Court. Evidently, the contention that the defendant No.1 was not the absolute owner of the property but the defendant Nos. 2 to 5 were also the owners of the property was specifically contended in the written statement of the defendant No.1. Therefore, it was not unknown to the appellants that there was a partition among the brothers of the Defendant No.1 by which he acquired the title to the suit property. When the defendant No.1 has categorically mentioned that he had obtained the same in a partition, which was also reflected in the plaint of the plaintiffs, it cannot be said that the alleged partition among the defendant No.1 and his brothers was unknown to the defendant Nos. 2 to 5. Therefore, the appellants could have very well produced these documents, had they exercised diligence at the time of the trial. Hence, the application do not attract the provisions of Order 41 Rule 27 1(aa) of CPC.
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015
42. Clause (b) refers to the requirement that could be felt by the Appellate Court for just decision in the matter. As reproduced above, it is the requirement of the Appellate Court that any document is necessary or any witness to be examined to enable the Court to pronounce the judgment or that there should be any substantial cause.
43. Appellants herein contend that the suit schedule property was the subject matter of the partition among the defendant No.1 and the defendant Nos. 2 to 5 and in pursuance to such partition they were in possession and enjoyment of the property. They also contend that defendant Nos. 2,3 and 4 do not have any other property except the suit schedule property to ekeout their livelihood. Though the defendant No.5 owns certain properties which she has acquired from her parents, the said properties cannot be construed to be the properties owned by defendant Nos. 2, 3 and 4 when the defendant No.5 is alive. Obviously, the properties standing in the
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 name of defendant No.5 is her absolute properties and during her life time the appellant Nos. 1,2 and 3 could not have claimed any rights in the same. The question is, whether the appellant Nos. 1,2 and 3 are entitled to press into service the contention that they would be put to untold hardship and inequity if the specific performance is ordered? By virtue of the application filed by defendant No.4, she wants to produce the documents in respect of the health conditions of defendant Nos. 2 and 3 and also that the defendant No.4 is unmarried daughter who is looking after the defendant Nos. 2 and 3 also. Therefore, the claim of the defendant Nos. 2,3 and 4 is also an aspect which should be kept in mind while exercising the discretion of the Court.
44. This takes me to the question, what are the factors the Court should weigh while considering the discretion that should be exercised under Section 20 of the Specific Reliefs Act.
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015
45. Section 20 of the Specific Reliefs Act, reads as below:
"20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
46. It is to be noted that the discretion to be exercised by the Court has been considered by the Apex Court in various pronouncements. What calls the judicial
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 discretion is stated in the case of A.C. Arulappan v. Ahalya Naik10, as below:
"7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff.
9. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son [AIR 1987 SC 2328] this Court cautioned and observed as under:
"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see 10 (2001)6 SCC 600:2001 SCC ONLINE SC 934 AT PAGE 604
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
11. In Gobind Ram v. Gian Chand [(2000) 7 SCC 548] it was observed in para 7 of the judgment that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it would be fair, just and equitable. The court is guided by the principles of justice, equity and good conscience.
47. Further in the case of Pratap Lakshman Muchandi v. Shamlal Uddavadas Wadhwa11, it is held as below:
"16. But at the same time it is also true that the agreement to sell was executed way back in the year 1982. Since after 1982 much water has flown under the bridge, the value of the real estate has shot up very high, therefore, while exercising our jurisdiction under Section 20 of the Specific Relief Act, 1963 we would like to be equitable and would not allow the sale of property to be executed for a sum of Rs 1,20,000. The litigation has prolonged for almost 25 years and now at last reached at the end of the journey. Therefore, we have to settle the equity between the parties. We hold that the agreement to sell was genuine and it was executed for bona fide necessity but because of the passage of time we direct that the respondents shall pay a sum of Rs 5 11 (2008) 12 SCC 67
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 lakhs in addition to Rs 1,10,000 as out of Rs 1,20,000, Rs 10,000 has already been paid as advance. On receipt of Rs 1,10,000 and Rs 5 lakhs (Rs 6,10,000) the appellants shall execute the sale deed for the property in question."
48. In the case of Jayakantham v. Abaykumar 12, it is held as below:
"9. The precedent on the subject is elucidated below:
9.1. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son [Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, 1987 Supp SCC 340] , this Court held that :
"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
9.2. A similar view was adopted by this Court in Sardar Singh v. Krishna Devi [ (1994) 4 SCC 18] "14. ... Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not 12 (2017) 5 SCC 178
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."
9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd. [ (1999) 5 SCC 77] , this Court held thus :
"29. ... Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [(1996) 5 SCC 589] by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court."
9.4. These principles were followed by this Court in A.C. Arulappan v. Ahalya Naik [(2001) 6 SCC 600] , with the following observations :
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 "7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner.
Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff.
15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. ..."
9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 8 SCC 146], and held thus:
"6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."
(Emphasis by me)
49. In the case on hand, the appellants contend that appellant Nos.1 and 2 are deaf and dumb and appellant No.3 is unmarried daughter. The appellant No.1 to 3 are seeking to produce certain documents which would show that the discretion should be exercised in their favour. The trial Court in the impugned judgment, considers exercise of judicial discretion in para 30. It comes to the conclusion
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 that the acts of defendant No.1 would bind the defendant Nos. 2 to 5 since it was an admitted fact that there was family necessity and defendant No.1 was manager of joint family. It was considered that the defendant Nos. 2 to 4 have about 3 acres 10 guntas of land and the defendant No.5 has about 19 acres of land and therefore, they would not be put to any hardship. It has failed to consider that defendant No.5 alone has about 19 acres of land inherited from her father and that her father was also living with her. Therefore, it is admitted that during the life time of defendant No.5 the defendants 2 to 4 could not claim any right in the same. The reasons for exercising the discretion in favour of the plaintiffs is not properly discussed by the trial Court. It is only in para 30 that the question regarding the discretion was considered by the trial Court which appears to be only on the basis of the property held by the defendant No.5. The other factors were not considered by trial Court.
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015
50. In view of the above referred authoratitive pronouncements, the equity, justice and good conscience are also the hall marks of any judicial discretion. The judicial discretion is not whimsical or it is not based only on the properties held by the parties. What amounts to a judicial discretion is spelt out in the above decisions.
51. When the appellants have come up with the applications that they want to produce certain documents to show their hardship which they could not produce at the time of trial due to their health conditions as well as the minority, it appears that the application deserves to be allowed. The documents which are now sought to be produced by the appellants would definitely throw light on the condition of the family which otherwise are essential for exercising judicial discretion in a proper manner. Without these documents, which are now sought to be produced, it is not possible for the Court to pronounce the judgment on it.
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015
52. This being the Court of First Appeal, has ample power to consider the documents produced. However, the documents produced need to be proved and the question is, whether the defendant Nos. 2 and 3 are really deaf and dumb? Therefore, the evidence needs to be satisfactory and acceptable and this can only be done by remanding the matter to the trial Court. It is to be noted that the only question that has to be considered is, whether the plaintiffs are entitled for the discretionary relief of the specific performance of the agreement of sale in the light of the status of the defendant Nos. 2 to 5?
53. Therefore, this Court has come to the conclusion that the trial Court has rightly answered the issue No.1 and 2 and no interference is required in respect of the same. So also, the additional issues framed by the trial Court are also considered in a proper manner and the finding that the defendant No.2 to 5 had failed to prove the family partition, between defendant No.1 and defendant Nos. 2 to 5 and also about the binding nature
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 of the agreement on them was also rightly decided by the trial Court. The only question that was not properly considered by the trial Court was regarding issue Nos. 3 and 4, particularly, issue No.3. In order to decide issue No.3 in a proper manner and to pronounce the judgment, the additional evidence as sought to be produced by the appellants in I.A No.1/2020 are essential. Hence, the application filed by the appellants dated 16-1-2020 is allowed.
54. IA No.2/2015 dated 30-9-2015 filed by the appellants is not essential for the purpose of the adjudication of the matter and as such, the same is dismissed.
55. In the light of the above discussion, the matter has to be remanded to the trial Court only in respect of considering issue Nos. 3 and 4 afresh after affording opportunity to the appellants and respondents and
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 permitting them to produce any further evidence on those issues. Hence, the following:
ORDER The appeal is allowed.
The findings on issue Nos. 3 and 4 by the trial court are hereby set aside and the findings on the remaining issues are upheld.
The matter is remanded to the trial Court with a direction to permit the production of additional documents and evidence by the parties on issue Nos. 3 and 4, including the documents produced before this Court in application filed under order 41 Rule 27 CPC dated 16-1-2020 and to decide the matter in accordance with law.
Registry is directed to transmit the trial Court records, the documents produced with IA No. 01/2015 and
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NC: 2023:KHC-K:7671 RFA No. 200069 of 2015 the original certificates produced before this Court along with memo dated 20.03.2023 to Trial Court forthwith.
Both parties are directed to appear before the Trial Court on 30.10.2023 without waiting for the notice from the Trial Court.
Sd/-
JUDGE tsn* Sl No.: 1