Karnataka High Court
Smt Mallajammanni vs Sri T S Madhuranath on 17 November, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
RFA.No.945 of 2020
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
REGULAR FIRST APPEAL NO.945 OF 2020 (SP)
Between:
1. Smt. Mallajammanni,
D/o Late K.Mallaraje Urs,
Aged 59 years,
2. Sri K.M.Nanjaraje Urs,
S/o Late K.Mallaraje Urs,
Aged 57 years,
3. Smt.Poornima,
W/o K.M.Nanjaraje Urs,
Aged 55 years,
4. Sri. K.M.Subbaraje Urs,
S/o Late K.Mallaraje Urs,
Aged 48 years,
5. Smt.Bindu,
W/o K.M.Subbaraje Urs,
Aged 50 years,
6. Smt.Nanjammani,
W/o M.B.Basavaraje Urs,
Aged 50 years,
7. Sri K.M.Mallaraje Urs,
S/o Late K.Mallaraje Urs,
Aged 51 years,
8. Smt.Usha,
W/o K.M.Mallaraje Urs,
Aged 42 years,
RFA.No.945 of 2020
-2-
9. Sri K.M.Veeraraje Urs,
S/o K.Mallaraje Urs,
Aged 50 years,
10. Smt.Veena,
W/o K.M.Veeraraje Urs,
Aged 39 years,
11. Sri Gowtham Urs,
S/o K.M.Subbaraje Urs,
Aged 24 years,
12. Sri Balamadaraje Urs,
S/o Late Mallaraje Urs,
Aged 73 years,
Smt.Nanjammanni Urs,
Dead by her L.Rs.
13. Smt.Vijayamani,
D/o Late M.C.Basavaraje Urs,
W/o Parvathraj Urs,
Aged 60 years,
14. Smt.Nagarathnammanni,
D/o Late M.C.Basavaraje Urs,
W/o Balamadaraje Urs,
Aged 64 years,
15. Smt.Hemamani Urs,
D/o Late M.C.Basavaraje Urs,
W/o Narayanaraje Urs,
Aged 55 years,
16. Sri Mallaraje Urs,
S/o Late M.C.Basavaraje Urs,
Aged 45 years,
R/a Mallinathapura Village,
B.G.Pura Hobli,
Malavalli Taluk,
Mandya District-571 463.
RFA.No.945 of 2020
-3-
17. Sri Basavaraj Urs,
S/o Late M.C.Basavaraje Urs,
Aged 52 years,
R/a Mallinathapura Village,
B.G.Pura Hobli,
Malavalli Taluk,
Mandya District-571 463.
18. Smt.Nagarathnamanni,
W/o Late Mallaraje Urs,
Aged 74 years,
19. Sri Mallaraje Urs,
S/o Balamadaraje Urs,
Aged 38 years,
20. Sri Nanjaraje Urs,
S/o Balamadaraje Urs,
Aged 33 years,
21. Sri Lingaraje Urs,
S/o Late Nanjaraje Urs,
Aged 58 years,
22. Smt.Lingajammanni,
W/o K.Lingaraje Urs,
Aged 48 years,
23. Sri Akshay Urs,
S/o K.Lingaraje Urs,
Aged 33 years,
24. Sri Ajay Urs,
S/o K.Lingaraje Urs,
Aged 28 years,
All the Appellants, except
Appellant No.16 and 17
Are R/a Kaggala Village,
B.G.Pura Hobli,
Malavalli Taluk,
Mandya District-571 463. .. Appellants
( By Sri K.V.Narasimhan & Sri K.N.Nilesh, Advocates )
RFA.No.945 of 2020
-4-
And:
Sri T.S.Madhuranath,
S/o R.V.Sathyanarayana
Aged 49 years,
R/A No.16, 3rd Cross,
Ashoka Nagara,
BSK, 1st Stage,
Bengaluru-560 050. .. Respondent
( By Sri H.S.Prashanth, Advocate )
This Regular First Appeal is filed under Section 96 read
with Order XLI Rule 1 of the Code of Civil Procedure, 1908,
praying to call for the records in O.S.No.18/2016 on the file of
the learned Senior Civil Judge at Malavalli, allow this appeal
and set aside the judgment and decree dated 08.06.2020
passed by the learned Senior Civil Judge at Malavalli in
O.s.No.18/2006 and grant such other and further reliefs that
this Hon'ble Court deems fit in the circumstances of the case, in
the interest of justice and equity.
This Regular First Appeal having been heard through
Physical Hearing/Video Conference and reserved on
10.11.2023, coming on for pronouncement of judgment, this
day, the Court delivered the following:
JUDGMENT
This is a defendants' appeal. The present respondent as a plaintiff had instituted a suit against the present appellants arraying them as defendants in O.S.No.18/2016, in the Court of learned Senior Civil Judge, at Malavalli, (hereinafter for brevity referred to as `the trial Court'), seeking for the relief of specific RFA.No.945 of 2020 -5- performance of three Agreements of Sale dated 20.08.2012 in respect of plaint schedule properties.
2. The summary of the case of the plaintiff in the trial Court was that, the suit schedule property Item Nos.1 and 2, in total measuring 0-83 guntas in Survey No.3(3-B) and Survey No.4(1-A), are under the ownership and possession of defendant Nos.1 to 12, the suit schedule property Item No.3, measuring 0-33 guntas in Survey No.3(3-D) is under the ownership and possession of defendant Nos.13 to 18 and suit schedule property Item No.4, measuring 0-33 guntas in Survey No.3(3-C), is under the ownership and possession of defendant Nos.19 to 22. All the above properties are situated in Kaggala Village, B.G.Pura Hobli, Malavalli Taluk, Mandya District.
3. The defendant Nos.1 to 22 are the members of the same family. Having their said ownership and possession over the properties, the defendants for their legal necessities and domestic requirements and also to clear the hand loans and other necessities, agreed to sell the RFA.No.945 of 2020 -6- suit schedule properties to the plaintiff. After negotiations, defendant Nos.1 to 12 agreed to sell the suit schedule property Item Nos.1 and 2 to the plaintiff for a total consideration of a sum of `6,64,000/-. The plaintiff agreed to purchase the same for the said consideration. Accordingly, on the date 20.08.2012, in the presence of the witnesses shown in the Agreement, the defendant Nos.1 to 12 received an advance amount of `2 lakhs as a part of the sale consideration from the plaintiff and agreed to receive the balance sale consideration of `4,64,000/- at the time of execution of the Sale Deed. In that regard, they executed an Agreement of Sale dated 20.08.2012 with possession in favour of the plaintiff in the presence of witnesses. The period for performance of agreement was fixed at six months. In the meantime, the vendors/ defendant Nos.1 to 12 were required to procure all necessary documents required for execution of the Sale Deed.
4. Similarly, defendant Nos.13 to 18 also for their legal necessities and to clear hand loans, agreed to sell RFA.No.945 of 2020 -7- suit schedule property Item No.3, measuring 0-33 guntas to the plaintiff. After negotiations, defendant Nos.13 to 18 agreed to sell the said property to the plaintiff for a sum of `2,64,000/- and executed an Agreement of Sale in favour of the plaintiff on the date 20.08.2012 in the presence of the witnesses and received an advance amount of `1 lakh as a part of the sale consideration, keeping a balance of `1,64,000/- payable by the plaintiff to them at the time of execution of the Sale Deed. The period for performance of agreement was fixed at six months. Within the said time, the defendant Nos.13 to 18 were required to get all necessary documents for execution of the Sale Deed.
5. Similarly, defendant Nos.19 to 22 also for their legal necessities and for clearing the hand loan, agreed to sell the suit schedule property Item No.4, measuring 0-33 guntas of land in favour of the plaintiff for a total consideration of a sum of `2,64,000/- and by executing an Agreement of Sale with possession dated 20.08.2012 in favour of the plaintiff, they received an advance amount of `1 lakh as a part of the sale consideration by agreeing to RFA.No.945 of 2020 -8- receive the balance sale consideration of a sum of `1,64,000/- from the plaintiff at the time of execution of the Sale Deed. The time for performance of contract was agreed to be six months, within which time, the defendant Nos.19 to 22 were required to secure the necessary documents for execution of the Sale Deed.
6. The plaintiff has further averred in the plaint that, on the date of execution of Agreements itself, he was put in possession of the suit schedule properties by the defendants and after getting the borewell dug, leveling the land and installing drip irrigation, the plaintiff is growing the crops like tomato, sugar-cane, plantain and other vegetables. It is the further plaint averment that, since they could not secure the necessary documents for execution of the Sale Deed, the defendants failed to execute the Sale Deed within the prescribed time and prayed for extension of time and also requested for the payment of additional advance amount under sale consideration. Reposing highest confidence upon the defendants and believing the assurance given by them and RFA.No.945 of 2020 -9- since the defendants were belonging to the same family, the plaintiff gave an additional consideration of `1 lakh to defendant Nos.1 to 12 and `50,000/- each to defendant Nos.13 to 18 and defendant Nos.19 to 22 in the presence of witnesses. In that regard, the defendants together executed a Shara on 10.06.2013 in favour of the plaintiff by subscribing their signature. They have also given it in writing that the contract will continue till they secure the supporting documents which are required for execution of the Sale Deed.
7. It is the further contention of the plaintiff that, in the meantime, he met the defendants several times and represented to them that he is ready and prepared to pay the balance sale consideration to each set of the defendants under the three Agreements of Sale and requested them to secure the necessary documents and execute the sale Deed in his favour, however forwarding untenable excuses, the defendants went on postponing the matter. This made the plaintiff to issue a legal notice dated 24.03.2016 to the defendants through his Advocate RFA.No.945 of 2020
- 10 -
calling upon the defendants to execute the Sale Deed in his favour by collecting the balance sale consideration. However, the defendants sent an untenable reply to the said notice. The plaintiff has further contended that all the defendants belong to a single family and though they executed three different Agreements of Sale, however, they have, on the date 10.06.2013, requested for extension of time and executed a single Shara, as such, no separate suit has been filed against them, but, arraying all the defendants, a single suit has been instituted. The plaintiff has stated that the cause of action has arisen to him on 20.08.2012 when the defendants executed Agreements of Sale in his favour and on 10.06.2013, when they executed Shara seeking extension of time and on subsequent dates when they went on postponing the execution of the Sale deed, including 24.03.2016, when legal notice was sent to them and on 18.4.2016 and thereafter.
With the above, the plaintiff prayed for decreeing the suit directing the defendants to receive their respective RFA.No.945 of 2020
- 11 -
balance sale consideration amount and execute the registered Sale Deeds of their respective properties in the name of the plaintiff. In case, if the defendants fail to execute the registered Sale Deeds, the Court to appoint a Court Commissioner to execute the registered Sale Deeds on behalf of the defendants in the name of the plaintiff.
8. In response to the suit summons served upon them, the defendant No.15 remained absent, as such, she was placed ex parte. Defendant Nos.1 to 13 and 16 to 22 appeared through their respective Counsels. As the defendant No.14 was not alive as on the date of the suit, her legal representatives were brought on record as defendant Nos.14(a) to 14(e). Among the contesting defendants, the defendant No.10 and defendant Nos.14(a) to 14(e) have filed their separate written statements with common defence, wherein they denied the plaint averments as false. They took a contention that the suit schedule properties are different and Executors of the alleged Sale Agreements are from different families, hence, a common suit against defendant Nos.1 to 12, RFA.No.945 of 2020
- 12 -
defendant Nos.13 to 18 and defendant Nos.19 to 22 for the relief of specific performance of the contract was not maintainable. They also contended that the Agreements were on the stamp papers with insufficient stamp value. They contended that the suit schedule properties were the ancestral properties of the respective defendants. None of the defendants have agreed to sell the suit schedule properties nor executed the Sale Agreements in favour of the plaintiff. At no point of time, the sale transaction has taken place nor they have received any advance amount. Defendant No.14 has not at all executed the alleged Sale Agreement or the alleged Shara dated 10.06.2013 as she was not alive from 01.12.2012.
9. The defendants further contended that themselves and the plaintiff were known to each other for several years. The defendants were availing financial assistance from the plaintiff as and when required. For the purpose of security of the said loan, the plaintiff had obtained the signatures of the defendants on some blank papers. Taking advantage of the signed blank papers, the plaintiff RFA.No.945 of 2020
- 13 -
has converted the same and got created the forged documents in the form of Agreements of Sale only with an intention to knock-off the suit properties. They also contended that the suit schedule properties are still in their possession and enjoyment, but, not in the possession and enjoyment of the plaintiff as contended. Therefore, the question of handing over the possession to the plaintiff and his possession and cultivation of the suit schedule properties would not arise.
10. The defendants further contended that since they have not executed any Sale Agreement or Agreements or even a common Shara, the question of plaintiff's readiness and willingness to perform his part of the contract would not arise. They also contended that the name of defendant No.14(d) is Maheshraj Urs as shown in the application filed under Order XXII Rule 4 of CPC filed by the plaintiff, but, in the amended plaint, his name is shown as `Mallaraje Urs' as against the order of the Court. They also contended that the suit is barred by limitation and there is no cause of action to file the present suit. RFA.No.945 of 2020
- 14 -
Stating that the plaintiff is not entitled for any relief under the plaint, the defendant No.10 and defendant Nos.14(a) to 14(e) prayed for dismissal of the suit with cost in the interest of justice.
11. Defendant Nos.1 to 9, 11, 12, 13, 16 to 22 filed a memo adopting the written statement of defendant No.10 and defendant Nos.14(a) to 14(e).
12. Based on the pleadings of the parties, the trial Court framed the following issues and additional issues for its consideration:
Issues
1. Whether the plaintiff proves that, the defendants have executed sale agreement in his favour on 20.08.2012 agreeing to sell the suit schedule properties for a sale consideration of Rs.11,92,000/- by receiving advance sale consideration of Rs.6,00,000/-?
2. Whether the plaintiff proves that, he is always ready and willing to perform his part of contract?
3. Whether the defendants prove that, the plaintiff has obtained the signatures of defendants on blank papers at the time of lending loan and RFA.No.945 of 2020
- 15 -
converted the said blank papers into sale agreement?
4. Whether the plaintiff is entitle for the relief claimed in the suit?
5. What order and decree?
Additional issues dated 28.08.2019:
1. Whether defendant No.14(a) to (e) prove the death of 14th defendant on 01.12.2012?
2. Whether defendant No.14(a) to (e) prove that the plaintiff has forged the signatures of deceased 14th defendant in the sale Agreement dated:20.08.2012 and shara dated: 10.06.2013 marked at Ex.P35 and 36 respectively?
Additional issue dated 06.11.2019:
Whether defendants prove that, the suit of the plaintiff is barred by limitation?
13. In support of his plaint, the plaintiff got himself examined as PW-1 and four witnesses from PW-2 to PW-5 and got produced and marked documents from Exs.P-1 to P-48. On behalf of the defendants, four witnesses were examined from DW-1 to DW-4 and got produced and marked documents from Exs.D-1 to D-4.RFA.No.945 of 2020
- 16 -
14. After hearing both side, the trial Court by its impugned judgment and decree dated 08.06.2020, answering issue Nos.1, 2, 4 and additional issue No.1 in the affirmative and issue No.3 and additional issue No.2 and also the additional issue framed on 06.11.2019 in the negative, decreed the suit in favour of the plaintiff and directed the plaintiff to deposit the balance sale consideration amount payable to the defendants under Exs.P-1, P-34 and P-35 in the Court within ten days from the date of judgment and decree, if not already deposited, and directed the defendant Nos.1 to 12, 13 to 18 and 19 to 22 to receive their respective balance sale consideration amount and to execute the registered Sale Deeds in accordance with law in favour of the plaintiff within two months from the date of the judgment and decree at his costs. Being aggrieved by the above judgment and decree passed by the trial Court, the appellants/defendants have preferred the present appeal. RFA.No.945 of 2020
- 17 -
15. The learned counsel for the appellants (defendants) and learned counsel for respondent (plaintiff) are physically appearing before the Court.
16. The trial Court records were called for and the same are placed before this Court.
17. Heard the arguments of the learned counsels from both side and perused the material placed before this Court, including the memorandum of appeal, impugned judgment and the trial Court records.
18. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.
19. Learned counsel for the appellants (defendants) in his arguments submitted that the very suit filed by the plaintiff was not maintainable since there are three agreements with respect to four different properties belonging to three different families. The contention of the plaintiff that the alleged Shara as per Ex.P-36 since has been executed by all the defendants in a single RFA.No.945 of 2020
- 18 -
document, a single suit is filed, is not acceptable. If three suits are filed separately, the pecuniary jurisdiction of the Court would be undoubtedly affected. Thus, there is misjoinder of causes of action.
20. He further submitted that the contention of the plaintiff that the possession of the properties was delivered to him is also not believable. The alleged Agreements are unregistered, as such, delivery of possession cannot be considered. The authors of Exs.P-2 and P-3, the alleged receipts towards supply of sugarcane to Sri Chowdeswari Sugars Limited, were not examined, as such, those documents cannot be relied upon. Hence, the alleged possession of the plaintiff is not made out.
21. Regarding the alleged dispossession of the plaintiff from the suit schedule properties, the learned counsel submitted that PW-1 in his cross-examination himself has stated that he was dispossessed by the defendants. Even in his cross-examination, he has admitted that defendants are in possession of the properties as on the date of filing of the suit. There is no RFA.No.945 of 2020
- 19 -
pleading or proof regarding the re-delivery of the possession to the plaintiff. The evidence of DW-1 clearly shows that the defendants are in possession of the suit schedule properties.
22. Learned counsel further contended that the suit was barred by limitation since the agreed period for the performance of the contract under Exs.P-1, P-34 and P-35 was only six months, which has ended on 19.02.2013. Since the suit was filed more than three years thereafter, the same is barred by limitation. He further submitted that there are several laches in the case of the plaintiff. The alleged Shara at Ex.P-36 is a created document. A single Shara for three different documents is untenable. He also submitted that there is no service of notice to Smt.Nanjammanni, the defendant No.14. He also submitted that the plaintiff has failed to prove the existence of alleged Agreements of Sale at Exs.P-1, P-34 and P-35. Similarly, the alleged Shara at Ex.P-36 is not proved by the plaintiff. Finally, contending that equities were not in favour of the plaintiff, learned counsel for the RFA.No.945 of 2020
- 20 -
appellants/defendants prayed to allow the appeal as prayed for.
23. Per contra, learned counsel for the respondent/plaintiff in his arguments contended that the suit is not bad for misjoinder of causes of action or misjoinder of parties and that a single suit was maintainable under Order I Rule 3, Order II Rule 6 and Section 99 of CPC. Regarding possession of the properties by the plaintiff, the recitals in the Agreements at Exs.P-1, P-34 and P-35 and sugarcane supply bills at Exs.P-2 and P-3, the Membership Card at Ex.P-42, the borewell digging receipt at Ex.P-46 and electricity connection at Ex.P-48, are the sufficient proof. Even DW-1 in his cross- examination has admitted that they had undertaken in the Police Station that they would not disturb the possession of the suit schedule properties by the plaintiff. All these would go to show that the plaintiff has been in possession of the suit schedule properties.
24. He further contended that the suit is not barred by limitation and the same is well within the limitation by RFA.No.945 of 2020
- 21 -
virtue of Shara at Ex.P-36, which has kept the time open till the defendants securing necessary documents for registration, which they have not done till date. He denied that Ex.P-36 is a forged document. He contended that the death of defendant No.14 was not at all informed to the plaintiff by the defendants. It is only during the course of cross-examination of PW-1, the plaintiff came to know about the death of defendant No.14. In fact, when the notice at Ex.P-11 was issued, the reply was given even on behalf of defendant No.14 also. He also submitted that DW-1 in his cross-examination has admitted execution of Ex.P-36. The learned counsel for the respondent (plaintiff) further denied that the plaintiff has not proved the execution of Agreements of Sale at Exs.P-1, P-34 and P-35. He contended that the evidence led by the plaintiff through PW-1 to PW-4 clearly proves the execution of Agreements of Sale at Exs.P-1, P-34 and P-35. Finally, stating that equity is in favour of the plaintiff, as such, the trial Court rightly decreed the suit of the plaintiff, has prayed to dismiss the appeal. RFA.No.945 of 2020
- 22 -
25. In the light of the above, the points that arise for my consideration in this appeal are:
(i) Whether a single suit with respect to alleged three different Agreements of Sale at Exs.P-1, P-34 and P-35, all dated 20.08.2012, is maintainable against the defendants?
(ii) Whether the plaintiff proves that agreeing to sell suit schedule Item Nos.1 and 2 properties to the plaintiff, the defendant Nos.1 to 12, and agreeing to sell the suit schedule Item No.3 property to the plaintiff, the defendant Nos.13 to 18, and agreeing to sell the suit schedule Item No.4 property to the plaintiff, the defendant Nos.19 to 22, entered into three Agreements of Sale, all dated 20.08.2012 separately and received a partial sale consideration of a sum of `2 lakhs, `1 lakh and `1 lakh each as advance sale consideration from the plaintiff?
(iii) Whether the plaintiff proves that the defendants together executed a Shara in favour of the plaintiff on 10.06.2013 and defendant Nos.1 to 12 received a further additional advance sale consideration of a sum of `1 lakh and defendant Nos.13 to 18 and defendant RFA.No.945 of 2020
- 23 -
Nos.19 to 22 received a further sum of `50,000/- each as an additional advance sale consideration from the plaintiff?
(iv) Whether the plaintiff proves that he has always been ready and willing to perform his part of the contract?
(v) Whether the defendants prove that the plaintiff has obtained the signatures of defendants on blank papers at the time of alleged lending of loan and converted those blank papers into Agreements of Sale of the suit schedule properties?
(vi) Whether the suit is barred by
limitation?
(vii) Whether the impugned judgment and decree warrants any interference at the hands of this Court?
26. In order to prove the case, the plaintiff got himself examined as PW-1 and got examined his father- in-law by name Sri K.A.Nanda as PW-2, Sri M.N.Nandaraje Urs as PW-3, Sri S.Ranganath as PW-4 and Sri H.V.Nagaraju as PW-5 and got marked documents from Exs.P-1 to P-48. PW-2, PW-3 and PW-5 were RFA.No.945 of 2020
- 24 -
examined presenting them as alleged witnesses to the Agreements of Sale, however, among them, PW-3 did not tender himself for his cross-examination. PW-4 was projected as scribe of the Agreements of Sale at Exs.P-1, P-34 and P-35. On the other hand, defendant Nos.10, 13, 19 and 14(e) were examined as DW-1 to DW-4 respectively and documents from Exs.D-1 to D-4 were marked.
On Point No.1 :
27. The plaint averment is that all the defendants are the members of the same family, however among them, defendant Nos.1 to 12, 13 to 18 and 19 to 22 have entered into three separate agreements with the plaintiff agreeing to sell the suit schedule Item Nos.1 and 2, Item No.3 and Item No.4 properties respectively to the plaintiff under three Agreements of Sale, which came to be marked from the plaintiff's side as Exs.P-1, P-34 and P-35. It is relying on this plaint averment, learned counsel for the appellants (defendants) in his arguments contended that, since even according to the plaintiff, RFA.No.945 of 2020
- 25 -
there are three separate agreements for the alleged sale of four different properties, a single combined suit is not maintainable. He further contended that the suit was filed before the learned Senior Civil Judge at Malavalli. Had the plaintiff filed three separate suits with respect to three different alleged Agreements of Sale, the suit should have been filed before the learned Civil Judge at Malavalli, as such, the pecuniary jurisdiction of the Court is also affected in the present suit.
28. Learned counsel further contended that the plaintiff in his plaint though has contended that all the defendants belong to the same family, however, the defendants in their written statement have denied the same. Merely because the plaintiff as PW-1 has reiterated his contention that all the defendants belong to the same family, by that itself, it cannot be held that all the defendants belong to the same family. Further, even according to the plaintiff, even though the defendants are alleged to be belonging to one family, still, three different Agreements of Sale at Exs.P-1, P-34 and P-35 are entered RFA.No.945 of 2020
- 26 -
into with respect to suit schedule properties. As such, the alleged agreements for sale with respect to four different properties are under three different agreements between the plaintiff and three sets of defendants.
29. Learned counsel for the plaintiff (respondent) in his arguments submitted that the defendants no where in the trial Court had taken the contention of alleged misjoinder of the parties or misjoinder of causes of action. It is for the first time in the appeal, that too, in the argument, the appellants are taking such a contention. He further submitted that all the defendants are of same family. Further, all the defendants together have executed a single document at Ex.P-36. It is Ex.P-36 which among the other documents has given a cause of action to the plaintiff to institute the suit, as such, a single suit against all the defendants is maintainable.
30. Learned counsel for the plaintiff in his arguments drew the attention of this Court to Section 99 and Order I Rule 3 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as `CPC'). In his support, he also RFA.No.945 of 2020
- 27 -
relied upon a judgment of Hon'ble Apex Court in Prem Lala Nahata and others -vs- Chandi Prasad Sikaria, reported in MANU/SC/7070/2007.
31. The plaintiff in his plaint has stated that all the defendants belong to the same family. No doubt, the defendants in their written statement have denied the same, however, till the contrary is proved, it is the plaint averment that may have to be considered regarding the maintainability of the suit. Further, the plaintiff has produced a document and got it marked as Ex.P-36 calling it as a Shara executed by all the defendants acknowledging the receipt of further part consideration under the sale value of the lands in question and also extending the time for performance of the contract. No doubt, the defendants have even disputed the very execution of Ex.P-36 by them, however, for the purpose of proceeding with the suit and deciding the disputed facts during the trial, the plaint averment cannot be ignored. Needless to say that, the burden of proving that all the defendants belong to the same family and that all the RFA.No.945 of 2020
- 28 -
defendants have jointly executed the document at Ex.P-36 would be upon the plaintiff.
32. Section 99 of CPC reads as below :
" 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:
Provided that nothing in this section shall apply to non-joinder of a necessary party.
99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.- Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case."
As per the said Section, unless the impugned judgment affects the merits of the case or jurisdiction of RFA.No.945 of 2020
- 29 -
the Court, no decree shall be reversed or substantially varied nor shall any case can be remanded in appeal on account of misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit.
In the instant case, the appellants as defendants could not able to show that the alleged misjoinder of parties or causes of action has affected the merits of the case.
33. Order I Rule 3 of CPC reads as below :
" Rule 3. Who may be joined as defendants.- All persons may be joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise."
34. According to the plaintiff, the three Agreements of Sale at Exs.P-1, P-34 and P-35 are in the same series RFA.No.945 of 2020
- 30 -
executed by different sets of members of the same family and all the three agreements involves a common question of law and fact. Even though the defendants deny that they belong to the same family, however, it is not denied by them that Exs.P-1, P-34 and P-35 are shown to have been executed on the same day and also that all those three documents are of the same nature, which are agreements for sale with respect to suit schedule immovable properties.
35. Further, as observed above, defendant No.10 and defendant Nos.14(a) to 14(e) have filed their separate written statements, however, with a common defence. Defendant Nos.1 to 9, 11, 12, 13, 16 to 22 have filed a memo adopting the written statements of defendant No.10 and defendant Nos.14(a) to 14(e). Thus, even though the defendants deny that they belong to the same family and even though the alleged suit transactions primarily involves three different agreements, however, admittedly all those three Agreements of Sale at Exs.P-1, P-34 and P-35 are of same nature i.e., agreements for RFA.No.945 of 2020
- 31 -
sale of immovable properties and all the three sets of defendants, who are said to be the alleged vendors of the properties under three agreements, have adopted the written statement filed by only two persons among one group of them. As such, all the defendants sail in the same boat and have taken an identical defence in their favour.
36. Moreover, as already observed above, according to the plaintiff, subsequent to the original Agreements of Sale at Exs.P-1, P-34 and P-35, all the defendants have jointly executed an Endorsement (Shara) in a single document as per Ex.P-36. No doubt, the burden is upon the plaintiff to prove the same. However, when it is the contention of the plaintiff that all the defendants have jointly executed a single document as per Ex.P-36 and against all the defendants, cause of action is alleged to have arisen on the same day, i.e., on the date of execution of Exs.P-1, P-34 and P-35 and Ex.P-36, it cannot be held that a single suit filed by the plaintiff against all the defendants jointly and the judgment and decree RFA.No.945 of 2020
- 32 -
passed thereupon has prejudicially affected the decision of the case.
37. In a similar circumstance, our Hon'ble Apex Court in Prem Lala Nahata's case (supra), at Paragraphs-11 and 13 of its judgment was pleased to observe as below :
"11. Thus, in a case where a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action either in terms of Order I Rule 1 and order I Rule 3 on the one hand, or Order II Rule 3 on the other, the Code itself indicates that the perceived defect does not make the suit one barred by law or liable to rejection. This is clear from Rules 3A, 4 and 5 of Order I of the Code; and this is emphasised by Rule 9 of Order I of the Code which provides that no suit shall be defeated by reason of non-joinder or misjoinder of parties and the court may in either case deal with the matter in controversy so far as it regards the rights and interests of the parties actually before it. This is further emphasised by Rule 10 of Order I which enables the court in appropriate circumstances to substitute or add any person as a plaintiff in a suit. Order II deals with the framing of a suit and Rule 3 provides that save as otherwise provided, a plaintiff may unite in the same suit several causes of actions against the same defendant and any plaintiffs having RFA.No.945 of 2020
- 33 -
causes of actions in which they are jointly interested against the same defendant may unite such causes of action in the same suit. Rule 6 enables the Court to order separate trials even in a case of misjoinder of causes of action in a plaint filed.
12. ................
13. It is well understood that procedure is the handmaid of justice and not its mistress. The Scheme of Order I and Order II clearly shows that the prescriptions therein are in the realm of procedure and not in the realm of substantive law or rights. That the Code considers objections regarding the frame of suit or joinder of parties only as procedural, is further clear from Section 99 of the Code which specifically provides that no decree shall be reversed in appeal on account of any misjoinder of parties or causes of action or non-joinder of parties unless a Court finds that the non-joinder is of a necessary party. This is on the same principle as of Section 21 of the Code which shows that even an objection to territorial jurisdiction of the Court in which the suit is instituted, could not be raised successfully for the first time in an appeal against the decree unless the appellant is also able to show consequent failure of justice. The Suits Valuation Act similarly indicates that absence of pecuniary jurisdiction in the Court that tried the cause without objection also stands on the same footing. The amendment to Section 24 of the Code in the year 1976 confers power on the Court even to transfer a RFA.No.945 of 2020
- 34 -
suit filed in a court having no jurisdiction, to a court having jurisdiction to try it. In the context of these provisions with particular reference to the Rules in Order I and Order II of the Code, it is clear that an objection of misjoinder of plaintiffs or misjoinder of causes of action, is a procedural objection and it is not a bar to the entertaining of the suit or the trial and final disposal of the suit. The court has the liberty even to treat the plaint in such a case as relating to two suits and try and dispose them off on that basis."
The above observations made by the Hon'ble Apex Court applies to the case on hand also. As such, the contention of the appellant that the suit was bad for misjoinder of parties and causes of action, is not acceptable.
On Point Nos.2, 3 and 5 :
38. From the pleadings of the parties, it is not in dispute that suit Item Nos.1 and 2, Item No.3 and Item No.4 properties belongs to the families of defendant Nos.1 to 12, 13 to 18 and 19 to 22 respectively. The plaintiff as PW-1 in his examination-in-chief has reiterated his plaint averments and contended that the defendant Nos.1 to 12 RFA.No.945 of 2020
- 35 -
agreeing to sell suit schedule property Item Nos.1 and 2, for a total consideration of a sum of `6,64,000/- and defendant Nos.13 to 18 agreeing to sell suit schedule property Item No.3, for a total consideration of a sum of `2,64,000/-, and defendant Nos.19 to 22 agreeing to sell suit schedule property Item No.4, for a total consideration of a sum of `2,64,000/-, executed three different Agreements of Sale in his favour separately and all Agreements are dated 20.08.2012. He also stated that the defendant Nos.1 to 12 received an advance in sale consideration of a sum of `2 lakhs and defendant Nos.13 to 18 and defendant Nos.19 to 22 received a sum of `1 lakh each as advance in sale consideration from him under the respective agreements. He also contended that the balance sale consideration, which was a sum of `4,64,000/- to defendant Nos.1 to 12 and `1,64,000/- each to defendant Nos.13 to 18 and 19 to 22 was agreed to be payable by him to the respective defendants/vendors at the time of execution of the Sale Deed by them and RFA.No.945 of 2020
- 36 -
time frame of six months was agreed under the Agreements for completion of the sale transaction.
39. PW-1 got produced and marked three unregistered Sale Agreements at Exs.P-1, P-34 and P-35 stating that Ex.P-34 was executed by defendant Nos.1 to 12, Ex.P-35 was executed by defendant Nos.13 to 18 and Ex.P-1 was executed by defendant Nos.19 to 22. Thus, according to the plaintiff, the total sale consideration under all the three Sale Agreements put together was a sum of `11,92,000/-, in which, a total advance amount of `4 lakhs was paid by him to the defendants under all the three agreements put together as an advance amount.
40. The defendants both in their written statements, as well in the evidence of DW-1, DW-2 and DW-3 have denied that they had agreed to sell the suit schedule properties to the plaintiff for the alleged consideration and in that direction, they had executed the Sale Agreements at Exs.P-1, P-34 and P-35. They specifically contended that the plaintiff had taken their RFA.No.945 of 2020
- 37 -
signatures on few blank papers as security for the financial assistance given to them in the year 2012 and by misusing those duly signed, but, blank papers, the plaintiff created the alleged sale agreements only with an intention to knock-off their properties. They contended that they never intended to sell the suit schedule properties nor executed the Sale Agreements as claimed by the plaintiff. Admittedly, except their pleading in the written statement and the oral evidence, the defendants have not produced any other material, including any documents to substantiate their contention. Exs.D-1 to D-4 marked from their side would not in any way support their contention that by taking some financial assistance, they had given some blank papers, but, duly signed to the plaintiff as security and that the plaintiff had misused them. The defendants have not even produced any piece of paper to show the alleged loan transaction between them and the plaintiff or the repayment, if any, in that regard.
RFA.No.945 of 2020
- 38 -
41. Even though the defendants have taken a contention that, in connection with the financial assistance they were availing the loan from the plaintiff, they had given blank, but, duly signed papers to the plaintiff, however, none of the defendants could able to give the details of the alleged loan transaction between them, including the date of the loan, quantum of the loan and the number of blank papers in which their signatures were said to have been taken by the plaintiff etc., As such, the very contention of the defendants that they had availed some loan from the plaintiff and in that connection, as a security, they had given few blank, but, duly signed papers in favour of the plaintiff, on its face itself shows to be very bald and vague.
42. Apart from the above, the defendant No.13 who got himself examined as DW-2 in his cross-examination has stated that the genealogical tree at Ex.P-7 pertains to his family and the same was given to the plaintiff agreeing to sell the landed property in favour of the plaintiff. He also stated that he got read over the schedule RFA.No.945 of 2020
- 39 -
of the property mentioned in Ex.P-35 and also has received an additional amount of `1 lakh from the plaintiff.
The same witness has further stated in his cross-examination that, though they have few other immovable properties also, however, having decided to sell away the suit schedule properties to the plaintiff, they have put their signatures on the blank papers. The same witness in his cross-examination though has denied that all the defendants under separate agreements for sale have received advance amount on the same day, but, voluntarily stated that they have received the amount on different dates. He has further stated that they have executed Agreements of Sale on different dates.
Thus, through the above statements DW-2 has admitted the Agreements of Sale with respect to suit schedule properties by the defendants in favour of the plaintiff.
43. The defendant No.10 who got himself examined as DW-1 though in his examination-in-chief has reiterated RFA.No.945 of 2020
- 40 -
the summary of his written statement and denied of he entering into an Agreement of Sale of suit schedule Item Nos.1 and 2 properties in favour of the plaintiff, but, in his cross-examination, though initially attempted to adhere to his original version and to contend that he has given few blank, but, duly signed papers to the plaintiff, however, in his further cross-examination, has categorically stated that, with respect to suit schedule Item No.2 property, a sum of `60,000/- and with respect to suit schedule Item No.1 property, another sum of `60,000/- was received by them from the plaintiff. Though the witness has stated that they have returned the said amount, however, he has not produced any document in that regard. On the other hand, he has further stated that after receiving the amount as said above, the defendant Nos.1 to 12, including himself, have put their signatures, similarly, defendant Nos.13 to 22 also have received money from the plaintiff. He admitted a suggestion as true that after execution of Agreements for RFA.No.945 of 2020
- 41 -
Sale, the suit schedule properties were surveyed and combining them, the RTCs were issued.
44. The defendant No.19 who got himself examined as DW-3, like DW-1 and DW-2, though initially in his examination-in-chief has reiterated the contentions taken up by the defendants in their written statements and denied the alleged execution of sale by them in favour of the plaintiff, however, in the cross-examination, he stated that the sale transaction with respect to the land was negotiated with the plaintiff by him. Thus, he has shown that such a sale transaction as alleged by the plaintiff was not a created one.
45. The defendant No.14(e), the legal representative of deceased defendant No.14, though got examined as DW-4 and reiterated the contentions taken up by the other defendants in his examination-in-chief, however, in his cross-examination, he has stated that he does not know who has filed the present suit and for what purpose. He also does not know as to what is stated in his written RFA.No.945 of 2020
- 42 -
statement, as well in his affidavit evidence filed in the form of examination-in-chief. He clearly stated that he has not given any instruction to his counsel to prepare his affidavit evidence. More than these, he has also stated in his cross-examination that he is not aware as to what are all the transactions entered into by her mother prior to her death. Thus, the evidence of DW-4 would not be of any help to the defendants with respect to their contention of alleged non-execution of Exs.P-1, P-34 and P-35 by them.
46. Even though DW-1, DW-2 and DW-3 have denied in their examination-in-chief of they executing Exs.P-1, P- 34 and P-35 in favour of the plaintiff, however, in their cross-examination, they have admitted the signatures of the defendants in those three exhibits. When they have admitted their signatures, but, contended that those signatures were put on blank papers, it was for those defendants to prove the same. However, as observed above, except taking such a contention, none of the defendants' witnesses could able to give the details of the alleged loan transaction by them with the plaintiff and the RFA.No.945 of 2020
- 43 -
dates of the alleged signing and delivering of the blank papers by them in favour of the plaintiff. Though DW-1 has made an attempt in that regard, however, he could not give any exact date or exact quantum of the loan amount availed as loan from the plaintiff. On the other hand, PW-2 and PW-5 in their evidence have stated that the Agreements of Sale at Exs.P-1, P-34 and P-35 were executed by the defendants in favour of the plaintiff in their presence and they have signed to those documents as witnesses. Stating so, both PW-2 and PW-5 have identified their signatures at Ex.P-34(a), Ex.P-35(a) and Ex.P-36(a) and Ex.P-1(h), Ex.P-34(c) and Ex.P-35(c) respectively.
47. PW-4 S.Ranganath has stated in his evidence that he was the scribe of Exs.P-1, P-34 and P-35. It was at the instance of the defendants, he has prepared those Agreements of Sale. In his cross-examination, though this witness has stated that in favour of the plaintiff, he has prepared only two documents, however, his evidence that he has put his signature as a scribe in all the three RFA.No.945 of 2020
- 44 -
documents i.e., at Exs.P-1, P-34 and P-35 and this witness identifying his signature in all the three documents has not been denied in his cross-examination.
48. The evidence of PW-4 and PW-5 given in their examination-in-chief with respect to defendant Nos.1 to 12, defendant Nos.13 to 18 and defendant Nos.19 to 22 executing Ex.P-34, Ex.P-35 and Ex.P-1 respectively could not be shaken in their cross-examination. Even DW-1 to DW-3 have admitted their respective signatures in the agreements for sale. Therefore, it has to be held that the plaintiff has proved that agreeing to sell suit schedule Item Nos.1 and 2 properties to the plaintiff, the defendant Nos.1 to 12, and agreeing to sell the suit schedule Item No.3 property to the plaintiff, the defendant Nos.13 to 18, and agreeing to sell the suit schedule Item No.4 property to the plaintiff, the defendant Nos.19 to 22, entered into three Agreements of Sale, all dated 20.08.2012 separately and received a partial sale consideration of a sum of `2 lakhs, `1 lakh and `1 lakh each as advance sale consideration from the plaintiff.
RFA.No.945 of 2020
- 45 -
49. The plaintiff in his plaint, as well in his evidence as PW-1 has further stated that the defendants requested him to pay them the additional advance amount. Accordingly, on the date 10.06.2013, the defendant Nos.1 to 12 received from him a sum of `1 lakh, defendant Nos.13 to 18 received from him a sum of `50,000/- and defendant Nos.19 to 22 received from him a sum of `50,000/- in the presence of witnesses and gave in writing an endorsement by agreeing to continue the contract. Stating so, he has produced and marked a document titled as `Shara' at Ex.P-36. Even PW-2 and PW-5 also in their examination-in-chief have stated that in order to secure the documents required for execution of Sale Deed and to meet their financial necessities, the defendants requested the plaintiff for additional advance amount, as such, in total receiving an additional advance amount of `2 lakhs from the plaintiff with respect to all the three Agreements of Sale, the defendants executed a Shara on the date 10.06.2013. Both these witnesses have stated that both of them have subscribed their signature to the said Shara RFA.No.945 of 2020
- 46 -
as witnesses. Stating so, they have identified their signatures in Ex.P-36. Even PW-4 also has stated that he too was present when the defendants received a further advance amount of `2 lakhs in total from the plaintiff and subscribed their signatures to the Shara dated 10.06.2013. Stating so, he has identified his signature in the said Shara at Ex.P-36(b).
50. It was suggested to PW-1, PW-2, PW-4 and PW-5 in their cross-examination from the defendants side that Ex.P-36 was a created document and that the defendants have not executed those documents. However, those witnesses have not admitted those suggestions as true. DW-1 to DW-3 in their evidence have reiterated that they have never executed any agreements for sale in favour of the plaintiff, including the alleged Shara at Ex.P-36. They further stated that by misusing their signatures obtained by the plaintiff in blank papers, the plaintiff has created those documents. However, as already observed above, the defendants though have taken such a contention, but, could not able to establish that they had RFA.No.945 of 2020
- 47 -
given blank, but, duly signed papers to the plaintiff at any point of time.
51. DW-1 in his cross-examination has admitted a suggestion that in Page-3 of Ex.P-36 his signature at Sl.No.9 can be found, however, he pleaded his ignorance that the other defendants also have put their signatures to the said documents in the same page. The same witness in his further cross-examination has stated that in Ex.P-36 they have put their signatures for money. By stating so, the witness has admitted his signature in Ex.P-36 and that the said signature was made in return for some money. However, DW-2 in his examination-in-chief as well in his cross-examination consistently maintained his stand that he has not executed the alleged Shara at Ex.P-36. He denied that he has put his signature in Ex.P-36. On the other hand, DW-3 who is defendant No.19, in his cross- examination admitted as true that Ex.P-36 bears his signature and so also, the signature of his wife and children who are defendant Nos.20 to 22. However, he denied that receiving an additional consideration of a sum RFA.No.945 of 2020
- 48 -
of `50,000/- from the plaintiff, himself and his wife and children have put their signature to Ex.P-36.
Admittedly, DW-4 being defendant No.14(e), the legal representative of deceased defendant No.14, he could not speak anything about execution of Ex.P-36, however, he stated that the documents produced by the plaintiff as Agreements of Sale are all created documents.
52. The above evidence led by both side in the matter would go to show that even though the defendants have denied that they have not executed Ex.P-36, however, the signature of DW-1 and DW-3 in the said documents stands admitted by those two witnesses respectively. Even though PWs.1, 2, 4 and 5 have stated about the defendants receiving an additional sale consideration and in that regard executing Ex.P-36, which according to them is a Shara, however, none of those witnesses could able to give the complete details as to where and when the further advance was paid by the plaintiff to the defendants and when, where and under RFA.No.945 of 2020
- 49 -
what circumstances, the defendants were said to have subscribed their signatures to Ex.P-36.
53. It is in the light of this evidence from both side upon Ex.P-36, the said document requires to be carefully examined.
Ex.P-36 is shown to be a document spread in four pages, in which, page Nos.1 and 2 is a E-Stamp paper with a stamp duty of `50/- shown to have been purchased by the plaintiff and other side parties are shown as three persons by name Doddammanni, Lingaraje Urs and Balamadaraje Urs. The plaintiff describes the document at Ex.P-36 as an endorsement made by all the defendants acknowledging the receipt of further advance amount of a total sum of `2 lakhs from the plaintiff and extending the time for performance of the contract, keeping the said document open till the vendors securing of sketch, the details of which sketch has not been mentioned in the document. A careful perusal of the said document at Ex.P-36 and the evidence led by both side with respect to the said document reveals the following : RFA.No.945 of 2020
- 50 -
(i) Ex.P-36 though titled as Shara, however, it is in the form of an Agreement than a mere endorsement. It is for the reasons that ;
(a) the very E-Stamp paper, upon which the said document is printed, identifies it as an Agreement, which is between two parties, one Sri T.S.Madhuranath, the plaintiff on the one side and the other side parties are three persons named above. Therefore, the E-Stamp paper for a sum of `50/- was purchased for the purpose of an Agreement.
(b) The very opening sentence in the said document calls the said document as an `Agreement,' which is `in continuation of the Agreement dated 20.08.2012'. Thus, the document is called and proceeded as an Agreement, but, not as an endorsement.
(c) The parties to the said document is shown to be between two sides, on one side, it is RFA.No.945 of 2020
- 51 -
the plaintiff, who has been shown therein as the purchaser. On the other side, i.e., the second part, three vendors are shown by name Smt.Doddammanni, Sri K.Lingaraje Urs and Smt.Basavarajammanni (the name shown in the E-stamping of this lady varies). These three persons are shown as vendors.
(d) After describing the parties, once again the document has shown the address of the parties where they resides, in the Agreement, which is in continuation of their previous agreement. Thus, even after describing the parties to the said document, once again it calls the document as an Agreement, which is in continuation of the previous Agreement.
(e) The document mentions in its recital that the vendors could not keep ready the documents for registration and they demanded and insisted the purchaser for some more time and received an additional amount. The said RFA.No.945 of 2020
- 52 -
recital shows that, it is only the vendors who are shown as the only three persons named in the said document and identified themselves as vendors, are said to have insisted for some more time and accepted additional amount. No where the said document mentions that those three alleged vendors either are representing the remaining 20 vendors or they were authorised by the remaining 20 vendors, who are the remaining defendants in the Original Suit and alleged parties to the Agreements of Sale at Exs.P-1, P-34 and P-35, to execute the said document at Ex.P-36. Thus, if at all any understanding by whatever name, either as a `Shara' or an `Agreement' was there, it was only between the plaintiff and three persons by name Smt.Doddammanni, Sri K.Lingaraje Urs and Smt.Basavarajammanni shown to be the parties on the other part in Ex.P-36. As such RFA.No.945 of 2020
- 53 -
also, the said document would not bind any of the remaining 20 vendors.
(f) The total number of vendors are 22, who are defendant Nos.1 to 22. The persons shown themselves to be vendors in Ex.P-36 are only three, among them, vendor No.3 is shown as one Smt.Basavarajammanni. Admittedly, said Smt.Basavarajammanni is not a party to any of the Agreements of Sale at Exs.P-1, P-34 and P-
35. As such, the true vendors in Ex.P-36 would be only alleged vendor No.1 and vendor No.2. As such, the remaining defendants wont become 19, but, it becomes 20. Thus, the alleged document at Ex.P-36 is only between the plaintiff and two among the 22 defendants, which 22 defendants are the vendors of Agreements of Sale at Exs.P-1, P-34 and P-35 all put together.
(g) Even according to the parties to the
suit, the alleged vendor No.3
RFA.No.945 of 2020
- 54 -
Smt.Basavarajammanni in Ex.P-36 was not alive as on the date of the very Agreement itself, which is dated 20.08.2012 and is marked as Ex.P-35. The vendors therein have shown that both their parents i.e., father Mallaraje Urs and mother Smt.Basavarajammanni were already demised. Further the genealogical tree at Ex.P- 7 also shows that said Smt.Basavarajammanni was already dead. Thus, the alleged vendor No.3 in Ex.P-36 Smt.Basavarajammanni was already dead, still, she was shown as living and as a party to the document at Ex.P-36, which is dated 10.06.2013.
(h) Even in the recital in Ex.P-36 also, the document is identified as 'Agreement' only, but, not as a 'Shara' (endorsement). The recital further mentions regarding the limitation in the following manner :
RFA.No.945 of 2020
- 55 -
" The validity of this Agreement is agreed to be extended till the validity of the sanctioned sketch and the preparation of all documents."
Thus repeatedly, Ex.P-36 is identified, called and understood as an 'Agreement' only, but, not a mere 'Shara' (endorsement).
(ii) When Ex.P-36 is an 'Agreement', but, not a 'Shara', then it was necessarily required for the purchaser (plaintiff), who is a party in one side in Ex.P-36, to make all the 22 vendors as parties on the other side. However, as observed above, among the 22 total number of vendors, only two of them have been shown as parties to Ex.P-36 and admittedly the third one Smt.Basavarajammanni is not a party in any of the Agreements of Sale at Exs.P-1, P-34 and P-35. Thus, the Agreement at Ex.P-36 is not an Agreement with all the vendors in Exs.P-1, P-34 and P-35, but, is only with two among them, excluding remaining 20, as such, Ex.P-36 cannot be enforced against those remaining 20 non-parties to Ex.P-36 who have been spread over as RFA.No.945 of 2020
- 56 -
vendors in all the three Agreements of Sale i.e., Exs.P-1, P-34 and P-35.
(iii) Ex.P-36 mentions a schedule of the property which admittedly is not the replica of the schedule shown in Exs.P-1, P-34 and P-35. Though it mentions the survey number and extent alone, however, it does not mentions the location of the property and its boundaries. When the very location of the property itself is not mentioned, merely by survey number, it cannot be concluded that schedule shown in Ex.P-36 are the very same properties which are the subject matters of Agreements of Sale at Exs.P-1, P-34 and P-35. Had Ex.P-36 was a mere 'Shara' (endorsement), but, not an 'Agreement', it was not necessary for the parties to it to mention the schedule of the properties. They could have merely mentioned about the three Agreements dated 20.08.2012 which are at Exs.P-1, P-34 and P-35 and proceeded to mention about the receipt of additional advance amount, if any, and the extension of time, if any. Instead of doing the same, since they have mentioned the schedule once again, which does RFA.No.945 of 2020
- 57 -
not fully tally with the ones in Exs.P-1, P-34 and P-35, it further makes it clear that Ex.P-36 was intended to be and entered into by accepting it as an 'Agreement', but, not a mere 'endorsement (Shara)'.
(iv) Ex.P-36, as observed above, no where mentions that the remaining 20 vendors are being represented by the alleged vendors, who are two (the third vendor Smt.Basavarajammanni is not a party to any of the Agreements of Sale at Exs.P-1, P-34 and P-35). Thus, the Agreement at Ex.P-36 would in no way bind the remaining 20 defendants.
(v) Ex.P-36 which has shown the parties on two sides and calls it as an "Agreement" at different places, does not bear the signature of the party on one side described as purchaser, who is none else than the plaintiff herein. Thus, even though the plaintiff is shown as a purchaser and a party on the one side in Ex.P-36, but, it does not bear his signature. Therefore, the signature of any other persons on the other side would not complete the said document as an Agreement, since there is no consensus RFA.No.945 of 2020
- 58 -
ad idem between the parties as the plaintiff as a party of the first part has not put his signature to Ex.P-36.
(vi) Ex.P-36 repeatedly called as an "Agreement" at different places in it bears the signature of only three persons who are shown to be the parties on the second side and calls them as vendors on its first and second pages. Thus, the first two pages of the said document does not bear the signatures of any of the remaining 19 defendants.
(vii) Though the signatures and Left Thumb Marks (for short `LTMs) are shown in the lower part of page No.3, but, they suffer with the following :
(a) There is no mentioning as to for what purpose and in what capacity those signatures or LTMs have been taken in the document at Ex.P-
36. There is no mentioning as to whether those signatories were consenting parties or witnesses or in what capacity, they have subscribed their signatures or LTMs.
RFA.No.945 of 2020
- 59 -
(b) Admittedly, the total number of vendors all put together in Exs.P-1, P-34 and P-35 are 22 in number, who are defendant No.1 to defendant No.22. However, the total number of signatories (including LTMs) to Ex.P-36 in page No.3 is only 21 in number, thus, short-of one signatory.
(c) Among the 21 signatories to Ex.P-36, one LTM is shown as that of Smt.Nanjammanni, who was original defendant No.14 in the suit. The evidence led by the defendants, including the obsequies ceremony invitation card at Ex.D-4 shows that said Smt.Nanjammanni died on 01.12.2012. As such, somebody else's LTM is shown and identified as the LTM of deceased Smt.Nanjammanni in Ex.P-36.
Learned counsel for the respondent (plaintiff) in his argument vehemently contended that the death of defendant No.14 was not at all informed to the plaintiff by the defendants. He further submitted that, he would not dispute that defendant No.14 Smt.Nanjammanni died on RFA.No.945 of 2020
- 60 -
01.12.2012, however, the fact of her death was not brought to the notice of the plaintiff as at the time of execution of Ex.P-36. He further contended that the thumb impression shown as that of defendant No.14 in Ex.P-36 is in fact the thumb impression of defendant No.15. The defendants were given wrong information to the Deed Writer who wrote `defendant No.14' instead of `defendant No.15'.
The said argument of learned counsel for the respondent (plaintiff) is totally unacceptable. When according to the plaintiff, he was present when defendant No.14 is said to have executed the Agreement at Ex.P-35 and aware of total number of defendants as vendors, he cannot for the first time in his argument in this appeal come with a plea stating that the identification of LTM in Ex.P-36 as that of defendant No.14, who was already dead, was purely by mistake. Had that been the case, the plaintiff should have taken necessary steps to bring the same on record in a manner known to law during the pendency of the Original Suit itself. Further, there is RFA.No.945 of 2020
- 61 -
nothing on record to show that defendants mis-informed the plaintiff or anybody else that the said LTM is that of Smt.Nanjammanni (who was already dead). Therefore, the very showing of the signatures and LTMs in Ex.P-36, including the deceased Smt.Nanjammanni also as the one being present and putting her LTM, makes Ex.P-36 more doubtful and unsafe to believe.
(viii) PW-2 and PW-5 in their evidence have stated that they were present when all the signatories at Page No.3 in Ex.P-36 subscribed their signatures and/or LTMs, however, in their cross-examination, they stated that they were not aware that as on the date of alleged execution of Ex.P-36, the defendant No.14 Smt.Nanjammanni was already dead. Thus, the evidence of PW-2 and PW-5 that they witnessed all the persons executing Ex.P-36 itself becomes doubtful and unsafe to believe.
(ix) No doubt DW-1 in his cross-examination has stated that he has signed Ex.P-36 in return of money and also has admitted that they received `60,000/- as additional advance amount and signed the document, RFA.No.945 of 2020
- 62 -
however, the very same witness has further stated that they have returned the said amount to the plaintiff. Similarly, DW-2 in his cross-examination has stated that he has taken additional amount of `1 lakh from the plaintiff. Even DW-3 also has stated that Ex.P-36 bears his signature and signature of his wife and children.
However, the said statements of DW-1, DW-2 or DW-3 does not mean that they have received the said amount as a further partial advance amount in the sale consideration under Exs.P-1, P-34 and P-35. On the other hand, their own defence throughout that they had financial transaction with the plaintiff and that as a security towards the loan availed by them, they had put their signatures on some papers and delivered it to the plaintiff, gains more strength. It is also for the reason that, DW-2 though admits of having received an additional amount of `1 lakh in his cross-examination, but, admittedly he is not a party to the Agreement at Ex.P-34, the vendors in which are said to have received additional consideration of `1 lakh, but, not DW-2, who even according to the plaintiff, is one RFA.No.945 of 2020
- 63 -
among the vendors in Ex.P-35 and has received a further consideration of only a sum of `50,000/-, but, not `1 lakh. As such also, the mere stray statements of DW-1, DW-2 and DW-3 about they receiving some amount from the plaintiff would not by itself establish that the said amount was towards the alleged further sale consideration under their respective agreements with the plaintiff. As such also, Ex.P-36 is not safe to believe and act upon in the manner as projected by the plaintiff.
For the above reasons, Ex.P-36 cannot be recognised either as a Shara (endorsement) or as an Agreement entered into by or on behalf of the defendants in favour of the plaintiff extending the time for performance of Agreements of Sale and acknowledging the receipt of alleged further consideration by all the vendors. Therefore, it has to be held that the plaintiff has failed to prove that the defendants together executed `Shara' in his favour on 10.06.2013 by receiving the alleged further consideration and executed Ex.P-36 in his favour. RFA.No.945 of 2020
- 64 -
With respect to alleged possession of the property :
54. It is the contention of the plaintiff that he has been put in possession of the suit schedule properties by the defendants on the very same day when the Agreements of Sale at Exs.P-1, P-34 and P-35 were executed by the defendants on the date 20.08.2012. The plaintiff as PW-1, apart from producing in his evidence the Agreements of Sale as per Exs.P-1, P-34 and P-35, has also produced two receipts shown to have been issued by Sri Chamundeshwari Sugars Limited, regarding supply of sugarcane and marked them at Exs.P-2 and P-3. He also produced the alleged Membership Card shown to have been issued by the same Sugar Factory at Ex.P-42, which shows the survey number of the land and contended that, after getting the possession of the property, was growing sugarcane in it and was supplying it to Sri Chamundeshwari Sugars Limited. The plaintiff has also contended that he got dug the borewell in the suit schedule property, in which regard, he has produced a RFA.No.945 of 2020
- 65 -
Yield Test Certificate shown to have been issued by M/s.Deepika Borewell, which shows that at the instance of the plaintiff, a borewell was dug on 21.10.2012 in the suit schedule property. The plaintiff also produced an Electricity connection regularisation letter under `Akrama Sakrama' Scheme and got it marked at Ex.P-48, which also shows that, in Survey No.3/3(b) in Kaggala Village, which is one among the suit schedule properties, electricity supply was regularised. With these, he contended that he has been put in possession of the suit schedule properties.
55. The learned counsel for the respondent/plaintiff drew the attention of this Court to the cross-examination of DW-1, wherein, the witness has stated that on 13.10.2016, they have given an undertaking in the Police Station that they would not disturb the possession and enjoyment of the suit schedule properties by the plaintiff. With these, he contended that the possession of the suit schedule properties with the plaintiff stands established. RFA.No.945 of 2020
- 66 -
56. Per contra, learned counsel for the appellants (defendants) in his argument contended that, since Agreements of Sale at Exs.P-1, P-34 and P-35 are unregistered Agreements, delivery of possession under those Agreements cannot be considered. He further submitted that PW-1 in his cross-examination has stated that the document at Ex.P-2 does not mention about growing of sugarcane in the suit schedule properties. Similarly, no such reference is made even in Ex.P-3. He further contended that the genuinity and authenticity of Ex.P-42 and Ex.P-48 have been disputed by the defendants, as such, they cannot be believed. He further contended that, even according to the plaintiff, as on the date of filing of the suit, he was not in possession of the properties, in which regard, PW-1 in his evidence has stated that he has been dispossessed by the defendants. He himself has stated that it was only for two years, he was in possession of the suit schedule properties and thereafter, it is the defendants who are in possession of the suit schedule properties. Further, there is no pleading RFA.No.945 of 2020
- 67 -
regarding the alleged re-delivery of possession. He also contended that the complaint before the police as per Ex.P-4 and alleged undertaking by defendant No.10 before the Police as per Ex.P-47 were all subsequent to filing of the suit. Thus, the plaintiff has failed to show that as on the date of the institution of the suit, he was in possession of the properties.
57. The recital in Exs.P-1, P-34 and P-35 shows that under the said Agreements, the vendors (defendants) have delivered possession of the subject matter properties to the plaintiff on the date of the Agreements. Further, the sugarcane supply receipts at Exs.P-2 and P-3 when read along with the Membership Card at Ex.P-42, go to show that the plaintiff got himself registered as supplier of sugarcane to Sri Chamundeshwari Sugars Limited, which issued a Card as per Ex.P-42 to him showing the survey numbers of the land said to be under his possession. As such, growing the sugarcane therein, he shown to have supplied the crop to the said sugar factory as per Exs.P-2 and P-3. Even though the authenticity of Ex.P-42, Ex.P-46 RFA.No.945 of 2020
- 68 -
and Ex.P-48 is denied, however, a mere denial from the defendants would not by itself creates a serious doubt in those documents, particularly in the light of admission made by DW-1 in his cross-examination.
58. Therefore, it is established that, immediately after execution of Agreements of Sale at Exs.P-1, P-34 and P-35, the plaintiff was put in possession of suit schedule properties by the defendants, But, by that itself, it does not mean that, as on the date of institution of the suit, the plaintiff himself continued to be in possession of the suit schedule properties. It is for the reason that the plaintiff in Para-2 of his plaint has clearly and specifically stated that the suit schedule property Item Nos.1 and 2 are in possession and enjoyment of defendant Nos.1 to 12, suit schedule property Item No.3 is in possession and enjoyment of defendant Nos.13 to 18 and suit schedule property Item No.4 is in possession and enjoyment of defendant Nos.19 to 22.
59. The said recital is not in past tense, but, it is in present tense. Further, the plaintiff as PW-1 in his RFA.No.945 of 2020
- 69 -
examination-in-chief on his own has stated that only for two years after the Agreements of Sale, he was in possession of the suit schedule properties and was cultivating them, growing tomato and sugarcane. Thereafter, the defendants using force, took over the possession of the property and they are cultivating.
60. Thus, without the instigation of anybody, the plaintiff himself in his evidence, that too, in his examination-in-chief, has stated that two years after the date of Agreements of Sale which are at 20.08.2012, it is the defendants who are in possession of the properties. Admittedly, the suit was filed in the year 2016, as such, as on the date of filing of the suit, it was not the plaintiff, but, the defendants who were in possession of the suit schedule properties. Furthermore, even in his cross- examination, PW-1 has admitted a suggestion that, in his examination-in-chief, he has stated that it was only for two years, he was in possession of the suit schedule properties and thereafter, it is the defendants who are in possession of the suit schedule properties. Thus, a RFA.No.945 of 2020
- 70 -
statement made by the plaintiff himself in his evidence and an admission on his part that he has made such a statement cannot be ignored. As such, it is established that, as on the date of filing of the suit and thereafter, it is not the plaintiff who is in possession of the suit schedule properties. As such, the plaintiff could not able to establish that he has been in possession of the suit schedule properties.
Point No.6 - Regarding Limitation :
61. According to the appellants (defendants), since the time limit of six months agreed under Agreements of Sale at Exs.P-1, P-34 and P-35 has been expired on 19.02.2013 and the suit has been instituted on 16.06.2016, the suit is barred by limitation.
62. Per contra, learned counsel for the respondent (plaintiff) in his argument contended that by virtue of Shara at Ex.P-36, the time for performance of contract not only extended, but, kept open, as such, the suit is not barred by limitation.
RFA.No.945 of 2020
- 71 -
63. Undisputedly, the Agreements of Sale at Exs.P-1, P-34 and P-35 have prescribed the time limit of six months for performance of contract. All those three Agreements of Sale are dated 20.08.2012. Six months thereafter would come to an end on 19.02.2013. According to Article 54 of Limitation Act, the suit ought to have been filed within three years from the said date, however, the suit is filed on 16.06.2016 i.e., more than three years period of limitation. Even though the plaintiff contends that Ex.P-36 has extended the time limit and has kept the time for performance of contract open, however, in the light of the discussions made above, Ex.P-36 cannot inspire any confidence in it to accept as a Shara executed by the defendants. Therefore, when the very document at Ex.P-36 is not reliable, it is not safe to compute the limitation period considering the said unreliable document into consideration. However, the trial Court did not consider this aspect, but, accepting Ex.P-36 as projected by the plaintiff, has proceeded to decide all the issues, RFA.No.945 of 2020
- 72 -
including the issue on limitation framed by it in favour of the plaintiff.
The above analysis would go to show that the said finding of the trial Court is erroneous, as such, the suit has to be held as barred by limitation.
On Point No.4 - Readiness and willingness by the plaintiff :
64. The plaintiff has pleaded in his plaint, as well in his evidence as PW-1 that he has always been ready and willing to perform his part of the contract as per the Agreements of Sale at Exs.P-1, P-34 and P-35 and Shara at Ex.P-36. His evidence also go to show that he has issued legal notices to the defendants as per Exs.P-9 to P-11. The plaintiff has also produced the postal acknowledgements from Exs.P-12 to P-29 and unserved Registered Post Acknowledgement cover at Ex.P-30. The copies of the reply notices at Exs.P-31 to P-33 go to show that the defendants in the reply notices have responded to the notices sent to them, however, they have denied RFA.No.945 of 2020
- 73 -
the execution of Agreements of Sale in favour of the plaintiff and receipt of the partial consideration in the sale value from the plaintiff. The plaintiff both in his notices sent to defendants, in his plaint, as well in his evidence has clearly and specifically stated that he has always been ready and willing to perform his part of the contract. Except denial suggestions made to PW-1 in his cross- examination, the defendants could not shaken the pleading and evidence of the plaintiff that he has always been ready and willing to perform his part of the promise. Therefore, it has to be held that the plaintiff has always been ready and willing to perform his part of the contract. However, since the plaintiff could not able to prove Ex.P-36 and also that the suit was filed within the period of limitation, the mere proof of readiness and willingness would not help him in any manner.
65. Even though the plaintiff could able to prove that the defendants agreeing to sell him the suit schedule properties, executed the Agreements of Sale at Exs.P-1, P-34 and P-35, however, failed to prove that Ex.P-36 was RFA.No.945 of 2020
- 74 -
executed by them extending the time for performance of the Agreements and by accepting the alleged further partial sale consideration from the plaintiff. Under the said circumstances, when the plaintiff is not in possession of the suit schedule properties as on the date of institution of the suit and the suit is also barred by limitation, merely because he has shown that he is ready and willing to perform his part of the contract, the discretionary relief of specific performance cannot be ordered in his favour.
However, the trial Court, as analysed above, did not appreciate the evidence placed before it in its proper perspective. On the other hand, without evaluation of evidence led from defendants' side and appreciating Ex.P-36 on its true evidentiary value, has proceeded to simply accept Ex.P-36 without any proper analysis and appreciation, which led it to answer the issues erroneously and pass the impugned judgment, when in fact, the plaintiff was not deserving the same.
It is also to be noticed that the plaintiff has not even prayed for an alternative relief of refund of alleged RFA.No.945 of 2020
- 75 -
advance amount said to have been paid by him to the defendants. As such, the impugned judgment warrants interference at the hands of this Court and the plaintiff would not succeed in his suit.
66. Accordingly, I proceed to pass the following:
ORDER [i] The Appeal filed by the defendants (appellants) is allowed.
[ii] The impugned judgment and decree
dated 08.06.2020, passed by the learned
Senior Civil Judge, at Malavalli, in
O.S.No.18/2016, decreeing the suit of the
plaintiff, stands set aside.
[iii] The suit of the plaintiff in
O.S.No.18/2016 stands dismissed as devoid of merits;
[iv] In the circumstances of the case, the parties to bear their own costs.RFA.No.945 of 2020
- 76 -
Draw the modified decree accordingly.
Registry to transmit a copy of this judgment along with the trial Court records to the concerned trial Court immediately.
Sd/-
JUDGE bk/