Karnataka High Court
Sri Kallappa vs Sri Imtiaz Ahmed on 25 April, 2018
Bench: B.S Patil, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2018
PRESENT
THE HON'BLE MR. JUSTICE B.S. PATIL
AND
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.958/2016
BETWEEN:
1. SRI KALLAPPA
AGED ABOUT 71 YEARS,
S/O BUDUGAPPA @ MUNIYAPPA,
2. SMT. KALLAMMA
AGED ABOUT 66 YEARS,
W/O KALLAPPA,
3. SRI VENKATACHALAPATHY
AGED ABOUT 44 YEARS,
S/O KALLAPPA,
4. K MANJUNATHA
AGED ABOUT 38 YEARS,
S/O KALLAPPA,
SRI ERAPPA
S/O LATE BUDUGAPPA,
SINCE DECEASED BY LRS,
5. SMT. CHIKKA KOLAMMA,
AGED ABOUT 61 YEARS,
W/O LATE ERAPPA,
6. SMT. SUJATHA
AGED ABOUT 41 YEARS,
2
D/O LATE ERAPPA,
7. SMT. NETHRAVATHI
AGED ABOUT 39 YEARS,
D/O LATE ERAPPA,
8. SMT. VARALAKSHMI
AGED ABOUT 37 YEARS,
D/O LATE ERAPPA,
9. SMT. VIJAYALKSHMI
AGED ABOUT 36 YEARS,
D/O LATE ERAPPA,
10. SRI MANJUNATHA
AGED ABOUT 34 YEARS,
D/O LATE ERAPPA,
11. SRI ARUNESH
AGED ABOUT 26 YEARS,
S/O LATE ERAPPA,
ALL THE APPELLANTS ARE
R/AT HOGARI VILLAGE,
KASABA HOBLI,
KOLAR TALUK,
KOLAR DISTRICT - 563 131.
... APPELLANTS
(BY SRI.BHADRINATH R, ADVOCATE)
AND
SRI IMTIAZ AHMED
AGED ABOUT 62 YEARS,
S/O LATE ABDUL RAZAQ,
R/AT AMMAVARPET,
KOLAR DISTRICT - 563 102.
... RESPONDENT
(BY SMT S. SUSHEELA, ADVOCATE)
3
THIS APPEAL IS FILED UNDER SECTION 96 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
30.04.2016 PASSED IN O.S NO.39/2013 ON THE FILE OF
THE II ADDL. SENIOR CIVIL JUDGE AND JMFC., KOLAR,
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS APPEAL BEING HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, ARAVIND KUMAR J, DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal has been preferred by the defendants being aggrieved by the judgment and decree passed by II Addl. Senior Civil Judge And JMFC, Kolar, in O.S.No.39/2013 dated 30.04.2016 whereunder suit filed by the plaintiff for specific performance of agreement of sale dated 24.02.2011 came to be decreed by directing defendants-1 to 4 and 6 to 12 to execute a registered sale deed in favour of plaintiff within a period of two months by receiving balance sale consideration of ` 1 lakh and to deliver vacant possession of the suit schedule property.
Parties in this appeal are referred to as per their rank in the trial Court.
4BRIEF BACKGROUND OF THE CASE:
2. Plaintiff filed the suit in question for enforcement of agreement of sale dated 24.02.2011 contending interalia that suit schedule property bearing Sy.No.103/1 measuring 3 acres 22 guntas was agreed to be sold by the defendants in order to meet their urgent family necessities and by mutual consent agreed to sell the same for a total sale consideration of `26 lakhs and defendants had received an advance sale consideration of `25 lakhs from plaintiff. It was further stated that defendants had agreed to receive the balance sale consideration of `1 lakh at the time of registration of the sale deed and said agreement of sale was also duly registered on 24.02.2011. It was further contended by the plaintiff that defendants had agreed to execute the sale deed within six (6) months from the date of agreement and as such, plaintiff had approached the defendants with balance sale consideration for `1 lakh within six (6) months and requested the defendants to 5 execute the sale deed. However, on lame excuses, defendants evaded and avoided to execute the sale deed.
3. It was further contended by plaintiff that he was always ready and willing to perform his part of contract and despite defendants knowing this fact, they did not perform their part of the contract by executing the sale deed in respect of suit property and as such, plaintiff got issued a legal notice on 28.12.2012 calling upon the defendants to receive the balance consideration in terms of sale agreement dated 24.02.2011 and requested the defendants to be present at the Office of the Sub-Registrar, Kolar, during office hours on 09.01.2013 and in spite of receipt of said notice, defendants did not turn up and execute the sale deed in favour of plaintiff. Hence, plaintiff sought for judgment and decree for specific performance of agreement of sale dated 24.02.2011 by the defendants.
4. Defendants 1 to 5 on receipt of suit summons appeared through their respective counsel 6 and filed their written statement and same came to be adopted by remaining defendants. All the averments made in the plaint came to be denied. It was contended that agreement of sale dated 24.02.2011 was a document executed by them as security, since another agreement dated 25.02.2011 had been entered into between the same parties whereunder they had agreed to sell the property bearing Sy.Nos.105/1A to 105/1D measuring 2.02 acres. They also contended that value of the suit property is more than `2.84 crores and plaintiff with an intention to knock away the suit property, has filed the suit in question based on the agreement executed by defendants as a security to the advance paid by plaintiff; it was also the specific contention of the defendants that they had entered into an agreement of sale with the plaintiff on 25.02.2011 agreeing to sell the property bearing Nos.105/1A, 105/1B, 105/1C and 105/1D measuring 1.14 acres, 16 guntas, 12 guntas and 11 guntas respectively and in all, 2.02 acres @ `62,000/- per gunta and pursuant to said agreement, 7 they had received a sum of `25 lakhs from the plaintiff;
they also contended that on account of khata of said lands having stood in the name of their mother Smt.Munikallamma, they had agreed to obtain inheritance khata to their names and had also agreed to furnish 11-E sketch to the plaintiff, which was mandatorily required for registration of sale deed and on account of mutation of revenue records and obtaining 11-E sketch was time consuming, they had executed the suit document i.e., agreement of sale dated 24.02.2011 in favour of plaintiff on 24.02.2011 as a security for the advance amount received; it was also contended that plaintiff and defendants had jointly applied for 11-E sketch and plaintiff had made provision for providing road widening in Sy.No.105/1A to an extent of 7 guntas and as such, said property got reduced to 1.07 acres, which fact plaintiff was aware of and the sketch prepared by revenue authorities is also duly signed by the plaintiff himself; they also contended that on preparation of 11-E sketch, defendants had 8 requested the plaintiff to get the sale deed registered in respect of said lands, which related to agreement of sale dated 25.02.2011 and they had informed the plaintiff to get the sale-deed registered by 06.07.2012; it is further pleaded in their written statement that on account of plaintiff not willing to purchase 1 acre 35 guntas on account of total extent land getting reduced due to formation of road, plaintiff started demanding return of advance amount paid by him in respect of properties bearing Sy.Nos.105/1A to 105/1D under the agreement of sale dated 25.02.2011; and as such, entire advance amount was repaid by the defendants to the plaintiff during June, 2012 in the presence of witnesses and as such, agreement of sale dated 25.02.2011 came to be cancelled and plaintiff himself had retained said agreement of sale and had promised to destroy the same, which was not done; and taking advantage of the same and based on the document executed as security i.e., agreement of sale dated 24.02.2011, frivolous suit 9 in question has been filed. Hence, they sought for dismissal of the suit.
5. On the basis of the pleadings of parties, trial Court framed following issues:
"(i) Whether the plaintiff proves that the defendants have agreed to sell suit schedule properties for sum of Rs.26,00,000/- and executed a registered sale agreement in his favour on 24.2.2011 after receiving an advance amount of Rs.25,00,000/-?
(ii) Whether the plaintiff proves that he is
ready, ever ready and willing to
perform his part of contract?
(iii) Whether the defendants prove that suit is bad for non joinder and mis-joinder of parties since the true owners are not made as parties?
(iv) Whether the defendant proves that the
alleged sale transaction held on
25/2/2011 relates to property bearing Sy.No.105/1A, 105/1B, 105/1C, 105/1D situated at Hogari Village?10
(v) Whether the plaintiff is entitled for the suit reliefs as prayed for?
(vi) What order or decree?"
6. Plaintiff got himself examined as P.W.1 and in all, produced 14 documents and got them marked as Exs.P-1 to P-14. Defendant No.1 got himself examined as D.W.1 and in all examined four witnesses as D.W.2 to D.W.5 and produced 25 documents by getting them marked as Exs.D-1 to D-25. Defendants also got marked 8 documents as Exs.C-1 to C-8 through evidence of D.W.4.
FINDINGS RECORDED BY TRIAL COURT:
7. After considering the pleadings of parties and on appreciation of entire evidence trial Court arrived at a conclusion that defendants had executed the agreement of sale dated 24.02.2011 in favour of plaintiff, which was duly registered and plaintiff had proved that defendants had received a sum of `25 lakhs 11 as advance amount, which fact was also admitted by first defendant - D.W.1 in his cross examination. It has been further held that D.W.1 himself has admitted about suits O.S. Nos. 228/2010 and 463/2008 filed by his sisters having been compromised by paying them a total sum of ` 20 lakhs, which was out of the amount received by him (D.W.1) from the plaintiff by executing agreement of sale dated 24.02.2011. Trial Court has further held that defendants having raised a plea about another agreement of sale dated 25.02.2011 having been executed by them in favour of the plaintiff relating to property bearing Sy. Nos. 105/1A to 105/1D, had failed to prove the execution of said document and said agreement of sale propounded by the defendants had not seen light of the day, though defendants admitted that alleged agreement of sale dated 25.02.2011 was in their custody. It was also held by the learned trial Judge that attempt made by the defendants to prove the alleged agreement dated 25.02.2011 by examining two witnesses namely, Sri.Krishnappa - DW2 and 12 Sri.Venkataramanappa - DW3, their cross-examination has not been successful, since they had categorically stated that they had not seen as to whether defendants had repaid the advance amount of `25 lakhs to the plaintiff and this admission itself indicate that no such agreement of sale came to be executed on 25.02.2011. It is also noticed by the trial Court that son of DW3 had married daughter of fifth defendant. On the other hand, they admit the signature found on the agreement of sale dated 24.02.2011 marked as Ex.P-1 and thus, execution of Ex.P-1 was proved. Trial Court has also noticed several discrepancies in the evidence of Taluka Surveyors, who were examined as DW4 and DW5 to arrive at a conclusion that visit of Surveyors to the lands bearing Sy.Nos.105/1A to 105/1D is itself doubtful and as such, trial Court had decreed the suit as prayed for. Being aggrieved by the judgment and decree passed in O.S.No.39/2013 dated 30.04.2016, defendants 1 to 11 have preferred this appeal. 13
8. We have heard the arguments of Sri. Badrinath R, learned Advocate appearing for appellants- defendants and Smt. S Susheela, learned Advocate appearing for respondent-plaintiff.
9. It is the contention of Sri.Badrinath, learned counsel appearing for appellants that judgment and decree of Court below is erroneous, there has been non- appreciation of available evidence in proper perspective and there is non-compliance of Section 16(c) of the Specific Relief Act, 1963 on the part of plaintiff and as such, trial Court could not have decreed the suit. He would elaborate his submission by contending that Court below erred in not considering the aspect of 'readiness and willingness' on the part of plaintiff to perform his part of the contract and plaintiff should not only plead but also prove that he had performed and had always been ready and willing to perform the essential terms of the contract and said readiness would include the financial position of purchaser to pay the purchase price and in this background, conduct of the 14 plaintiff ought to have been examined by the trial Court, which was not done in the instant case. He would also submit that time was the essence of contract as per the agreement of sale dated 24.02.2011- Ex.P-1.
10. He would further contend that Court below erred in not considering the fact that a specific plea had been raised by defendants of having executed the agreement of sale in respect of Sy.Nos.105/1A to 105/1D measuring 2.02 acres for a total consideration of `26 lakhs in favour of plaintiff and due to records in respect of said lands standing in the name of mother of first defendant, they could not execute the agreement of sale and on account of refusal by the Sub-Registrar to register the said agreement of sale, it was agreed between the parties that defendants would execute the agreement of sale in respect of suit schedule property as per Ex.P-1 for security to the advance paid in respect of sale of property bearing Sy.Nos.105/1A to 105/1D and Ex.P-1 was only a nominal document and though there is a open well, borewell and residential building situated 15 in Sy.No.103/1, same was not reflected in Ex.P-1. He would submit that in order to substantiate the said claim defendants had produced Exs.D-22 to D-25 i.e., 11-E Sketch relating to the property bearing Sy.Nos.105/1A to 105/1D and had examined five (5) witnesses as D.W.1 to D.W.5, whose testimony has been erroneously ignored by the trial Court by decreeing the suit. Hence, he contends that there has been non- appreciation of available evidence. He would contend that Court below has not examined the aspect of equities, particularly with reference to Section 20 of the Specific Relief Act, 1963 and as such it could not have decreed the suit. Hence, he prays for appeal being allowed and suit being dismissed.
11. Per contra, Smt.S.Susheela, learned counsel appearing for respondent-plaintiff would support the judgment and decree passed by trial Court and contends that Court below on appreciation of entire evidence has exercised its discretionary power to grant the prayer of specific performance by directing the 16 defendants to execute the sale deed in favour of plaintiff in respect of suit schedule property after having noticed that there was no dispute with regard to execution of agreement of sale dated 24.02.2011 and the plea of defendants that an agreement of sale was executed on 25.02.2011 agreeing to sell the properties bearing Sy.Nos.105/1A to 105/1D, has not been proved by producing the said agreement or proving the execution of such agreement by any other evidence and as such, there is no error committed by the Court below. He would further elaborate his submission by contending that trial Court had clearly noticed that D.W.1 himself admitted the execution of agreement of sale dated 24.02.2011-Ex.P-1 and receipt of advance amount of `25 lakhs under Ex.P-1. She would also submit that trial Court has taken into consideration vital aspect of defendants being in need of funds namely, to pay the creditors and also sisters of D.W.1, who had filed suits O.S.Nos.228/2010 and 463/2008 in respect of Sy.Nos.105/1A to 105/1D, which ultimately ended in 17 compromise as per Exs.P-11 and P-14 whereunder D.W.1 had paid them a sum of `20 lakhs and D.W.1 had also clearly admitted in his cross examination that from out of the advance amount of `25 lakhs received from plaintiff under Ex.P-1 he had paid a sum of `20 lakhs to his sisters when he entered into compromise with them and as such, trial Court has rightly arrived at a conclusion that there was no occasion for defendants having agreed to sell the property bearing Sy.Nos.105/1A to 105/1D as contended by them and there was no such agreement entered into between plaintiff and defendants.
12. She would also draw the attention of this Court to the evidence of D.W.2 to D.W.5 to contend that D.W.3 had identified his signature found in the agreement of sale dated 24.02.2011-Ex.P-1 and both D.W.2 and D.W.3 have admitted the execution of Ex.P-1 by defendants in favour of plaintiff and their further admission that there was no written document to establish that Ex.P-1 was executed by defendants in 18 favour of plaintiff as security for having received `25 lakhs from plaintiff towards the sale of land bearing Sy.Nos.105/1A to 105/1D. She would also submit that D.W.2 has admitted that there was no transaction between plaintiff and defendants in respect of Sy.Nos.105/1A to 105/1D and in extenso, she has drawn the attention of Court to the inconsistencies in the statements made by D.W.2 and D.W.3 in their evidence.
13. She would also submit that evidence of Survey Officer - D.W.4 has not been accepted by trial Court and rightly so, for the reason he states in his examination-in-chief that Sketch-Exs.D-22 to D-25 have been prepared at the spot, whereas in the cross- examination he admits it is prepared in the office. She would further draw the attention of Court to Exs.D-17, D-18 and D-19 - alleged notices issued to the parties by D.W.4 for conducting survey in respect of land bearing Sy.Nos.105/1B, 105/1C and 105/1D, which indicates the date of visit to the spot by Surveyor as '27.04.2013' 19 and it has been signed on the previous day i.e., '26.04.2013' marked as Exs.D-17B, D-18B and D-19B for being compared with Ex.D-21 namely, mahazar to contend that D.W.4 has admitted that Sketch - Exs.D- 22 to D-25 were prepared within one week from the date of visit to the spot by D.W.4, whereas in Ex.D-21 the date below the signature is shown as '17.11.2013' and as such, the very preparation and existence of Sketch is in serious dispute and hence, she contends that defendants had failed to prove that they had agreed to sell the land in Sy.Nos.105/1A to 105/1D or the execution of agreement in respect of said land. On the other hand, she would submit that D.W.1 has admitted in the written statement filed by him in O.S.No.463/2008 - Ex-P-8 at paragraph 7 that said property is his self acquired property.
14. She would also submit that receipt of sale consideration of `25 lakhs is admitted by D.W.1 and purported return of said amount to plaintiff, had not been proved and even according to D.W.2, there was no 20 transaction between plaintiff and defendants in respect of land bearing Sy.Nos.105. On these grounds, she seeks for dismissal of appeal and prays for confirming the judgment and decree passed by trial Court.
15. Having heard the learned Advocates appearing for parties and on perusal of entire records secured from the trial Court and after bestowing our careful and anxious consideration to the rival contentions raised at the bar, we are of the considered view that following points would arise for our consideration:
(1) Whether trial Court was correct in decreeing the suit for specific performance by holding defendants had executed the agreement of sale dated 24.02.2011 - Ex.P-1 in favour of plaintiff agreeing to sell the suit schedule property by receiving advance amount of `25 lakhs?
21(2) Whether trial Court was right in arriving at a conclusion that defendants had failed to prove the execution of agreement of sale dated 25.02.2011 and agreeing to sell the property bearing Sy.Nos.105/1A to 105/1D in favour of plaintiff and sale consideration of `25 lakhs as advance under said agreement?
(3) Whether trial Court was correct in arriving at a conclusion that defendants had failed to prove the cancellation of the agreement of sale dated 25.02.2011 and having repaid the advance amount of `25 lakhs to the plaintiff?
(4) Whether trial Court was correct in arriving at a conclusion that defendants had failed to prove that they had executed agreement of sale dated 24.02.2011 - Ex.P-1 in favour of plaintiff only as a security for the 22 advance amount received by them for the sale of property bearing Sy.Nos.105/1A to 105/1D under agreement dated 25.02.2011?
(5) Whether Court below has rightly appreciated the material evidence available on record?
OR Whether there has been non-
appreciation of available evidence or evidence available on record had been ignored?
(6) Whether trial Court was right in decreeing the suit for specific performance or not?
(7) What order?
Since adjudication of points formulated hereinabove are interlinked with each other and there is likelihood of discussion over-lapping, they are taken up together for consideration and answered hereinbelow. 23 RE: FINDINGS ON ABOVE POINTS:
16. In the light of contention raised by the learned Advocate appearing for defendants that they had agreed to sell property bearing Sy.Nos.105/1A to 105/1D to the plaintiff by entering into an agreement of sale dated 25.02.2011 and the agreement of sale dated 24.02.2011 - Ex.P-1 executed by them was towards security of consideration paid under agreement dated 25.02.2011. We are of the view that following aspects will have to be examined:
(i) As to whether there was any such
contract/agreement dated
25.02.2011 entered into between
the plaintiff and defendants as
pleaded and contended by the
defendants?
(ii) Whether defendants had
established that they had
executed registered agreement of
sale dated 24.02.2011 - Ex.P-1 as
security for the advance amount
received by them from the
plaintiff in respect of sale
24
transaction relating to property
bearing Sy.Nos.105/1A to
105/1D measuring 2 acres 2
guntas?
17. Perusal of judgment of trial Court would disclose that in the light of plea raised by the defendants that they had entered into a sale agreement with the plaintiff agreeing to sell the property bearing Sy.Nos.105/1A, 105/1B, 105/1C and 105/1D in all measuring 2.02 acres of land @ `62,000/- per gunta and had received advance amount of `25 lakhs from plaintiff, trial Court had framed issue No.4, namely:
"As to whether defendants prove that alleged sale transaction held on 25.02.2011 relates to property bearing Sy.Nos.105/1A to 105/1D situated at Hugari Village?"
in this regard and had cast burden on the defendants to prove the said issue. While adjudicating said issue, trial Court has examined the evidence tendered by defendants and found that D.W.1 - Kalappa had clearly 25 admitted in his evidence that he had offered to sell the property @ `1,00,000/- per gunta and his plea in the written statement is contrary to his admission in the cross examination. PW1 has also admitted the execution of Ex.P-1 and the fact that at the time of registration of Ex.P-1 all the defendants have signed the said documents admitting the recitals found therein and they have received a sum of `25 lakhs. It has also been held by the trial Court that D.W.2 has admitted his signature found on Ex.P-1 - agreement of sale dated 24.02.2011. His admission reads as under:
"£À£Àß ºÁUÀÆ ªÁ¢AiÀÄ d«Ää£À ªÀåªÀºÁgÀzÀ ªÀÄzÀå¹ÜPAÉ iÀÄ£ÀÄß ªÉAPÀlgÀªÀÄt¥Àà, £ÁgÁAiÀÄt¥Àà ºÁUÀÆ PÀȵÀ¥ Ú Àà ªÀiÁrgÀÄvÁÛg.É PÀgÁgÀÄ ¥ÀvÀæ £ÉÆÃAzÀt DUÀĪÀ MAzÀÄ ªÁgÀzÀ ªÀÄÄAzÀZÉ ªÀåªÀºÁgÀzÀ §UÉÎ ªÀiÁvÀÄPÀvÉ ªÁ¢AiÀÄ ªÀÄ£ÉAiÀÄ°è DVgÀÄvÀÛz.É F jÃw DzÀ ªÀiÁvÀÄPÀvA É iÀÄ ¸ÀªÀÄAiÀÄzÀ°èAiÀÄÆ ¸ÀºÀ ªÉÄÃ¯É ºÉýzÀ ªÀÄÆgÀÄ d£ÀgÀÄ ºÁdjzÀÝgÀÄ. ªÀiÁvÀÄPÀvÉAiÀÄ°è MAzÀÄ UÀÄAmÉ d«ÄäUÉ £Á£ÀÄ MAzÀÄ ®PÀë gÀÆ¥Á¬Ä ¨É¯É ºÉýgÀÄvÉÛãÉ. ªÀiÁvÀÄPÀvA É iÀÄ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ºÁUÀÆ ªÉÄÃ¯É ºÉýzÀ ªÀÄÆgÀÄ d£Àg£ À ÀÄß ºÉÆgÀvÀÄ¥Àr¹ 2 jAzÀ 12 £Éà ¥Àw æ ªÁ¢AiÀÄgÀÄ ºÁdjgÀ°®è. ªÀiÁvÀÄPÀvÉ DzÀ £ÀAvÀgÀ ªÁ¢ gÀÆ.1,000-00 ºÀt ªÀÄÄAUÀqÀ ºÀtªÀ£ÀÄß £À£U À É ¤ÃrzÀÝgÀÄ. ªÁ¢ ºÁUÀÆ £ÀªÀÄä £ÀqÀÄªÉ DzÀAvÀºÀ £ÉÆÃAzÁ¬ÄvÀ ¥ÀvÀæ ¤¦-1 zÁR¯É 26 DVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. ¤¦-1 zÁR¯ÉAiÀÄ£ÀÄß £Á£ÀÄ ºÁUÀÆ 2 jAzÀ 12£Éà ¥Àw æ ªÁ¢AiÀÄgÀÄ ¸ÉÃj £ÉÆÃAzÀt ªÀiÁrPÉÆArgÀÄvÉÛÃªÉ JAzÀgÉ ¸Àj."
"¤¦-1 zÁR¯É £ÉÆÃAzÀt DzÀ ¸ÀªÀÄAiÀÄzÀ°è £À£UÀ É
25 ®PÀë gÀÆ ºÀt ªÁ¢¬ÄAzÀ ¸ÀAzÁAiÀÄ DVvÀÄÛ."
"¤¦-1 gÀ §gÀªt À U
Â É DzÀ £ÀAvÀgÀ £ÀªÀÄUÉ N¢
ºÉýgÀÄvÁÛg.É £ÀªÀÄUÉ ¤¦-1gÀ «ZÁgÀU¼ À £
À ÀÄß N¢
ºÉýzÀ £ÀAvÀgÀ £ÁªÉ®ègÀÆ M¦à CzÀPÉÌ ¸À» ªÀiÁrgÀÄvÉÛÃªÉ JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄ ¤¦-1 gÀ°ègÀĪÀ vÀ£Àß ¸À»AiÀÄ£ÀÄß £ÉÆÃr UÀÄgÀÄw¹zÀÄÝ G½zÀ ¸À»UÀ¼ÀÄ G½zÀ ¥Àw æ ªÁ¢AiÀÄgÀ ¸À» DVgÀĪÀÅzÁV M¦àgÀÄvÁÛg.É ¸ÁQëzÁgÀgÀÄ ¤¦-1 gÀ ¥Àw æ ¥ÀÄlzÀ°ègÀĪÀ vÀ£Àß ¸À»AiÀÄ£ÀÄß UÀÄgÀÄw¹zÀÄÝ ¸ÁQëzÁgÀgÀ ¸À»AiÀÄ£ÀÄß ¤¦- 1(J) JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. £Á£ÀÄ ºÁUÀÆ G½zÀªg À ÀÄ D ¢£À G¥À£ÉÆÃAzÀuÁ¢üPÁjUÀ¼À ¸ÀªÀÄPÀëªÀÄ ¤¦-1 zÁR¯ÉUÉ ¸À» ªÀiÁrgÀÄvÉÛÃªÉ JAzÀgÉ ¸Àj. ¤¦-1 gÀ°è £À£Àß ºÁUÀÆ G½zÀ ¥Àw æ ªÁ¢AiÀÄgÀ ¥ÉÆÃmÉÆÃUÀ¼ÀÄ EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj."
18. D.W.2 and D.W.3, who are witnesses to Ex.P-1 have also admitted their signatures found on Ex.P-1 as Exs.P-1(b) and P-1(c) in their cross- examination dated 07.03.2015. Hence, it came to be held that evidence of D.W.2 and D.W.3 would support the claim of plaintiff with regard to defendants having executed the agreement of sale dated 24.02.2011-Ex.P-1 27 in favour of plaintiff agreeing to sell the suit schedule property to plaintiff and had received `25 lakhs under the said agreement as advance. In the light of said evidence available on record, it came to be rightly held by the trial Court that defence set up by the defendants about having agreed to sell the plaintiff property bearing Sy.Nos.105/1A to 105/1D and in that regard they had received advance of `25 lakhs was not proved. In other words, it came to be held by the trial Court that plea of defendants of advance amount of `25 lakhs received by them towards sale of property bearing Sy.Nos.105/1A to 105/1D has remained as a plea without proof.
19. In the light of above said finding recorded by the trial Court, points formulated hereinabove is being adjudicated. It would be necessary to note at the initial stage itself that defendants are not disputing the execution of agreement of sale dated 24.02.2011 - Ex.P- 1, on the basis of which suit in question came to be filed by the plaintiff for specific performance. There is also no dispute between the parties that a sum of `25 lakhs has 28 been paid by the plaintiff and received by the defendants. Recital in a registered document prevails over any other oral or written plea vide Section 92 of the Evidence Act, 1872. However, such presumption is always rebuttable and a party who seeks to contend that such recital found in the registered document is to be ignored or should not be taken into consideration, will have to prove such plea by tendering evidence in rebuttal, to displace the presumption arising thereunder.
20. In the aforesaid background, it requires to be examined as to whether defendants have rebutted the contents of Ex.P-1? Or, in other words, as to whether defendants have been able to establish that Ex.P-1 was executed by them as security for repayment of advance amount received by them under the alleged agreement of sale dated 25.02.2011? which they claim to have executed in favour of plaintiff agreeing to sell property bearing Sy.Nos.105/1A to 105/1D in all measuring 2.02 acres.
29
21. When said plea of defendants is examined in the light of evidence available on record, it has to be noticed that initial burden is cast on the defendants regarding execution of an agreement of sale dated 25.02.2011, which has been propounded by them and it has to be necessarily held that trial Court was justified in arriving at a conclusion that said burden had not been discharged by the defendants for the reasons stated herein below.
22. The purported agreement of sale executed by defendants and plaintiff on 25.02.2011, was not produced by defendants either before the trial Court or before this Court. Same has not seen the light of the day though D.W.1 in his cross examination dated 09.01.2015 at paragraph 7 has admitted that said document is in his custody. Admission of D.W.1 in that regard reads as under:
"£À£Àß ºÁUÀÆ ªÁ¢AiÀÄ £ÀqÀÄªÉ ¸ÀªÃÉ ð £ÀA.105-1 ºÁUÀÆ ¸ÀªÃÉ ð £ÀA. 105-2 gÀ°è EgÀĪÀ MlÄÖ 30 d«Ää£À°è JgÀqÀÄ JPÀgÉ JgÀqÀÄ UÀÄAmÉAiÀÄ ªÀiÁgÁlzÀ §UÉÎ ªÀiÁvÀÄPÀvAÉ iÀiÁVgÀÄvÀÛz.É EzÀgÀ §UÉÎ §gÀªt À UÂ É ¤¦-1 zÁR¯É DzÀ £ÀAvÀgÀ CAzÀgÉ MAzÀÄ ªÁgÀz° À è DVgÀÄvÀÛz.É ¸Àzj À à §gÀªt À UÂ É vÁ®ÆèPÀÄ PÀZÃÉ jAiÀÄ §½ DVgÀÄvÀÛz.É §gÀªt À U  A É iÀiÁzÀ zÁR¯É £À£Àß §½ EgÀÄvÀÛz.É "
23. In order to prove the execution of agreement of sale dated 25.02.2011, defendants examined two witnesses namely, Sriyuths Krishnappa and Venkataramanappa as D.W.2 and D.W.3, who claims to have witnessed said sale transaction between plaintiff and defendants namely, sale transaction relating to property bearing Sy.Nos.105/1A to 105/1D. Though in their examination-in-chief said witnesses have incidentally deposed that defendants had never agreed to sell the suit property to the plaintiff namely, Sy.Nos.103/1 measuring 3 acres 22 guntas, but had only agreed to sell the land bearing Sy.Nos.105/1A to 105/1D in all measuring 2 acres 2 guntas, have clearly admitted in their cross-examination the following facts: 31
• that plaintiff had paid a sum of `25 lakhs to defendants in their presence in the month of February 2011;
• they are not aware about said amount having been repaid by the defendants to the plaintiff;
• D.W.2 has admitted there was no agreement executed by defendants 1 to 12 in favour of plaintiff in respect of Sy.No.105;
• alleged agreement of sale executed by defendants in respect of Sy.Nos.105/1A to 105/1D having not been registered;
• photocopy of alleged agreement of sale dated 25.02.2011 executed by defendants in favour of plaintiff in respect of property bearing Sy.Nos.105/1A to 105/1D is in custody of D.W.1;
• towards securing the payment made by plaintiff to defendants for sale of Sy.Nos.105/1A to 105/1D, defendants had executed Ex.P-1 and there being a recital to the said effect in the agreement 32 relating to Sy.Nos.105/1A to 105/1D, which is contrary to recitals found in Ex.P-1;
• there being no transaction or contract entered into between plaintiff and defendants in respect of Sy.Nos.105/1A to 105/1D.
24. It was pleaded by the defendants in their written statement as already noticed hereinabove that on 25.02.2011 they had entered into an agreement of sale with plaintiff to sell the property bearing Sy.Nos.105/1A to 105/1D in all measuring 2 acres 2 guntas @ `62,000/- per gunta for a total consideration of `50,84,000/-, out of which they had received `25 lakhs as advance amount from plaintiff. It is their further case that on account of revenue records of said properties i.e., Sy.Nos.105/1A to 105/1D were to be updated and same was time consuming, plaintiff had insisted for security for the amount of `25 lakhs advanced or paid by him and as such, they had executed an agreement of sale dated 24.02.2011 - Ex.P- 33 1 in respect of land measuring 2 acres 2 guntas in Sy.Nos.105/1A to 105/1D and not in respect of suit schedule property, requires to be considered with utmost circumspection for reasons more than one. Firstly, if at all defendants had received the amount of `25 lakhs from plaintiff on 25.02.2011 as pleaded by them in respect of sale of land in Sy.Nos.105/1A to 105/1D, there was no need or necessity for them to have executed Ex.P-1 - agreement of sale one day prior to the said transaction namely, on 24.02.2011 as per Ex.P-1. Secondly, even if they had executed such an agreement on 25.02.2011, nothing prevented the defendants from producing photocopy of said deed dated 25.02.2011 relating to Sy.Nos.105/1A to 105/1D by way of secondary evidence. Defendants have neither called upon the plaintiff to admit or deny the execution of agreement of sale dated 25.02.2011 by way of issuing interrogatories nor they have called upon plaintiff to produce the original of said agreement, which D.W.1 claimed to be in custody of plaintiff. This exercise was 34 never undertaken by the defendants. To put it differently, if the agreement of sale - Ex.P-1 was executed towards security for repayment of amount paid under the agreement of sale dated 25.02.2011, intriguing question would be, as to why on the previous day itself they had executed the agreement of sale - Ex.P-1, that too in respect of suit schedule property. This fact has also remained as a mystery and same has not been explained by the defendants till date.
25. That apart, defendants contended in their written statement that they had refunded the advance amount of `25 lakhs to the plaintiff received from him and original agreement of sale dated 25.02.2011 executed by them in respect of property bearing Sy.Nos.105/1A to 105/1D had also been returned to the plaintiff is a plea, which is too hard to be accepted or believed, inasmuch as, no person of normal prudence, would have repaid a huge amount of ` 25 lakhs and allowed the adversary to retain the original document in his custody. Defendants have also not 35 explained as to how the original of Ex.P-1 had also been retained by the plaintiff even after they had repaid the advance amount of ` 25 lakhs to the plaintiff or as to why the said document was not destroyed even after repayment of advance amount to the plaintiff. There is not even a suggestion to this effect in the cross- examination of PW1. There is no explanation, whatsoever, forthcoming from the defendants in this regard.
26. Be that as it may. Evidence tendered by the defendants would not inspire confidence to accept such plea would be remotely possible. On the other hand, admission of D.W.1 in his cross-examination dated 09.01.2015 would belie the said plea or claim of the defendants. D.W.1 in his cross-examination has admitted that under Ex.P-1 a sum of `25 lakhs has been received by the defendants from plaintiff. His admission is to the following effect:
36
"¤¦-1 zÁR¯É £ÉÆÃAzÀt DzÀ ¸ÀªÀÄAiÀÄzÀ°è £À£U À É 25 ®PÀë gÀÆ ºÀt ªÁ¢¬ÄAzÀ ¸ÀAzÁAiÀÄ DVvÀÄÛ."
D.W.1 further pleads that said agreement of sale was executed in respect of Sy.Nos.105/1A to 105/1D.
27. In the background of this inconsistent plea, when we move step further to examine as to whether there was any such agreement of sale at all executed by defendants in favour plaintiff in respect of Sy.Nos.105/1A to 105/1D, it has to be necessarily held that trial Court was fully justified in arriving at a conclusion that no such agreement had come into existence at all.
28. Even D.W.2 and D.W.3 in their cross- examination dated 07.03.2015 have admitted payment of `25 lakhs by the plaintiff to the defendants and same having been received by D.W.1 in their presence. In fact, these witnesses, who were examined on behalf of defendants to substantiate the plea of execution of an 37 agreement of sale dated 25.02.2011, have categorically admitted that they are not aware about defendants having returned the said amount to plaintiff. In the light of said evidence available on record, it cannot be held that either there is erroneous appreciation of evidence or non-appreciation of available evidence so as to arrive at a conclusion that defendants had entered into another agreement of sale dated 25.02.2011 with the plaintiff or agreement of sale dated 24.02.2011 - Ex.P-1 was a document executed by defendants as security for consideration paid by them towards sale of properties bearing Sy.Nos.105/1A to 105/1D under purported agreement of sale dated 25.02.2011, which never saw the light of the day. In fact, receipt of amount under the alleged agreement of sale dated 25.02.2011 has not been proved by defendants as pleaded by them in their written statement and as such, issue No.4 has been rightly answered in the negative by the trial Court. Said finding is based on proper appreciation of evidence, 38 which does not call for interference at the hands of this Court.
29. On the other hand, D.W.1 in his deposition admits the execution of agreement of sale dated 24.02.2011 - Ex.P-1 and also receipt of sale consideration vide cross-examination dated 09.01.2015. He also admits at paragraph 4 of his cross-examination dated 09.01.2015 that his sisters - Smt. Narayanamma and Smt. Chikkolamma had filed the suit O.S.No.228/2010 and also Smt.Eramma and Smt.Muniyamma (D.W.1's father's first wife's daughters) had filed O.S.No.463/2008 and said suits came to be compromised on 24.02.2011 as per compromise petition
- Exs.P-11 and P-14 by paying them `20 lakhs and said amount was paid from out of advance amount they had received from plaintiff under Ex.P-1. He also admits in paragraph 7 of his cross-examination of even date that there was discussion between him and plaintiff in respect of Sy.Nos.105/1A to 105/1D after one week of execution of agreement of sale dated 24.02.2011 - 39 Ex-P-1, whereas in written statement defendants have pleaded that said agreement was executed on 25.02.2011. In fact, D.W.2 in his cross-examination dated 07.03.2015 has stated that agreement of sale in respect of property bearing Sy.No.105 had come into existence one week prior to execution of Ex.P-1 itself. Thus, inconsistencies are at large. D.W.1 further admits that as on the date of execution of Ex.P-1 revenue records in respect of the suit schedule property stood in his name. Hence, question of revenue records being mutated to the name of D.W.1 did not arise at all.
30. D.W.2 and D.W.3, have also admitted in their cross-examination dated 07.03.2015 that an agreement came to be entered into between plaintiff and defendants in respect of Sy.No.103. They also admit that they have affixed their signatures to Ex.P-1 as per Exs.P-1(b) and P-1(c) respectively and it was duly registered in the Office of Sub-Registrar as already noticed hereinabove. Though, D.W.2 has volunteered to state that said document was executed by defendants 40 as surety/security and a recital is found to the said effect in Ex.P-1, said recital is not to be seen in Ex.P-1. When recitals found in Ex.P-1 was confronted to D.W.2 in his cross-examination on 07.03.2015, he has categorically admitted that there is no recital about defendants having executed Ex.P-1 in favour of plaintiff as security towards the amount of `25 lakhs received by the defendants from plaintiff. Even otherwise, a bare perusal of said document would disclose the said statement of D.W.2 is contrary to his oral say. The contents of document speaks for itself. In the light of recitals found in Ex.P-1 not disclosing about any recital that defendants have executed the said document as security for having received a sum of `25 lakhs from plaintiff, the plea of defendants as well as oral testimony of D.W.2 cannot be accepted. In fact, D.W.2 in his cross-examination dated 07.03.2015 categorically states that he is not aware as to whether the amount of `25 lakhs was repaid by defendants to plaintiff. His admission reads:
41
"ªÁ¢ £ÀªÀÄä ¸ÀªÀÄPÀëªÀÄ ¥Àw
æ ªÁ¢AiÀÄjUÉ
ªÀÄÄAUÀqÀ ºÀtªÁV gÀÆ. 25 ®PÀë ºÀt
¤ÃrgÀÄvÁÛg.É ¥ÀÄ£ÀB ¸Àzj À à ºÀtªÀ£ÀÄß
¥Àw
æ ªÁ¢AiÀÄgÀÄ ªÁ¥À¸ÀÄì ¤ÃrgÀÄvÁÛgÉÆÃ
E®èªÉÇà JAzÀÄ £À£U
À É w½¢®è."
31. As such the plea of defendants to the effect that they have repaid a sum of ` 25 lakhs to the plaintiff during June' 2012 and the oral statement made by D.W.1 in his affidavit filed in lieu of examination-in- chief, cannot be accepted. In other words, testimony of D.W.1 is contrary to the statement made by D.W.2 with reference to refund of `25 lakhs by defendants to plaintiff. In fact, D.W.2 admits that there was no written document between plaintiff and defendants in respect of Sy.No.105.
32. Yet another intriguing factor which cannot go unnoticed is the fact that, D.W.2 and D.W.3 have stated that plaintiff and defendants had applied to the Taluka Surveyor for preparation of 11-E sketch in respect of Sy.No.105/1A to 105/1D and had produced 42 the sale agreement. They have also stated that they were present at the spot i.e., Sy.No.105 when mahazar - Ex.D-21 came to be drawn and 11-E Sketch - Exs.D-22, D-23 and D-24 were drawn. However, said mahazar, which came to be marked as Ex.D-21 does not contain the signature of D.W.2 and D.W.3, though it bears signatures of witnesses present at the spot. That apart, D.W.2 in his cross-examination dated 07.03.2015 at paragraph 4 has clearly admitted that he is not aware about the preparation of 11-E Sketch-Exs.D-22, D-23, D-24 and D-25. He further admits that he had not instructed the counsel who drafted the affidavit filed in lieu of his examination-in-chief, anything pertaining to 11-E sketch. As such, evidence tendered by D.W.2 in his examination-in-chief required to be considered for the purposes of rejection.
33. It is also to be further noted that D.W.3's daughter is married to 5th defendant's son and as such, he would be an witness interested in defendants, on whose behalf he has deposed. This fact is admitted by 43 D.W.3 himself in his cross-examination dated 07.03.2015 at paragraph 3. His admission reads asunder:
"5£Éà ¥Àw æ ªÁ¢AiÀÄ ªÀÄUÀ¼£ À ÀÄß £À£Àß ªÀÄUÀ¤UÉ ªÀÄzÀÄªÉ ªÀiÁrPÉÆArgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj."
He also admits that plaintiff had paid defendants a sum of `25 lakhs under Ex.P-1 and also states that he is not aware as to whether defendants have repaid the said amount to plaintiff. In fact, he goes to the extent of denying his statement made in the affidavit filed in lieu of examination-in-chief on this aspect vide paragraph 4 of his cross-examination dated 07.03.2015.
34. The Surveyor - D.W.4, who is said to have prepared Exs.D-22, D-24 and D-25 has stated in his examination-in-chief that he prepared the said Sketch at the spot. However, in his cross-examination dated 30.10.2015 at paragraph 2, D.W.4 admits that he had only measured the properties at the spot and had prepared the sketch - Exs.D-22, D-23, D-24 & D-25 in his office. D.W.4 has stated that before preparing the 44 said sketch he had issued notices as per Exs.D-17 to D-
19. A perusal of said notices would disclose that date of spot-visit had been fixed as '27.04.2013'. He also admits that spot-mahazar was drawn on such visit as per Ex.D-21. He further admits to have affixed his signature to Ex.D-21 and date affixed below his signature is '17.11.2013'. This would indicate that on said date i.e., on 17.11.2013 he had prepared the mahazar and visited the spot. This fact is admitted by him in his cross-examination dated 30.10.2015. Thus, it would emerge from these two documents that if the date of visit to the spot as per notices - Exs.D-17 to D- 19 would be '27.04.2013', as to how he could have visited the spot on '17.11.2013' and prepared the sketch - Exs.D-22, D-23, D-24 and D-25 on that day. No explanation whatsoever is forthcoming with regard to such discrepancy. In fact, he admits in his cross- examination dated 05.02.2016 that even a seller would be entitled to apply for grant of survey sketch. Thus, the 45 statement made by D.W.2 in his deposition is difficult to be accepted.
35. D.W.1 in his cross-examination dated 09.01.2015 admits the receipt of legal notice dated 31.12.2012-Ex.P-3. He also admits that he had borrowed certain amounts from one Sri.Venkataramanappa and he had to repay the said amount. He further admits that in respect of suit schedule property a suit in O.S.No.228/2010 had been filed by Smt. Narayanamma and Smt. Chikkolamma, who are none other than the sisters of D.W.1 and he admits that suit O.S.No.463/2008 was filed by Smt.Eramma and Smt.Muniyamma, who are also sisters of D.W.1 (his father's first wife daughters) and said suit was compromised on 24.02.2011 as per Exs.P- 11 and P-14 respectively by paying them a sum of `20 lakhs. He further admits that said amount was paid after receiving the amount from plaintiff by way of advance for the sale of suit property under Ex.P-1. 46
36. Though it is contended by defendants in the written statement that what was agreed to be sold by defendants in favour of plaintiff was Sy.Nos.105/1A to 105/1D in all measuring 2 acres 2 guntas and not the suit property, is a plea which has remained as such and it has not been proved by defendants as already noticed hereinabove. It also requires to be noticed that D.W.1 in his cross-examination dated 09.01.2015 has admitted that Sy.No.105/1 was standing in the name of his mother and Sy.No.105/2 was standing in the name of his father and they had executed a Will on 22.05.1997 and 12.01.2001 respectively bequeathing the said properties in favour of defendants 6 to 12 and on demise of his father and mother, defendants 6 to 12 inherited the same and they are in possession and enjoyment of said property. That apart, defendants have not examined the witnesses to the alleged agreement of sale dated 25.02.2011 and in fact, said agreement of sale has not seen the light of day as already observed hereinabove. In fact, D.W.1 in his cross-examination 47 admits that there were talks relating to sale of Sy.Nos.105/1 and 105/2 after one week from the date of execution of Ex.P-1 and said agreement was entered into at the Office of Taluk Panchayath. He further states that said document is with him and yet does not produce the same. Thus, when the evidence of D.W.1 is perused in its entirety, an adverse inference requires to be drawn against the defendants for having not produced the said agreement of sale and no evidence having been tendered to prove about such an agreement of sale ever having come into existence.
37. Trial Court while evaluating the evidence of D.W.1 has taken note of the fact that he has admitted the following facts:
(a) Execution of Ex.P-1 by all the defendants in favour of the plaintiff agreeing thereunder to sell the suit schedule property and receipt of advance amount of `25 lakhs under the said agreement;
48
(b) Compromise having been entered by him (D.W.1) in O.S.No.228/2010 and O.S.No.463/2008 by paying `20 Lakhs to his sisters from out of the amount of `25 lakhs received by him from plaintiff under Ex.P-1;
(c) Will dated 22.05.1997 and 12.01.2001 executed in favour of defendants 6 to 12 in respect of properties bearing Sy.Nos.105/1 and 105/2 by his parents and on their demise, defendants 6 to 12 having inherited said property and they being in possession after mutation of revenue records;
(d) Defendants have not examined Hugari Nagaraj to whom a sum of `10 Lakhs is said to have been repaid by D.W1 from out of the advance amount received from plaintiff;
(e) Non production of agreement of sale dated 25.02.2011 purported to have executed by defendants in favour of plaintiff in respect of property bearing Sy.Nos.105/1A to 105/1D;
(f) Though D.W.1 states in his examination-in-
chief that agreement of sale relating to property bearing Sy.Nos.105/1A to 105/1D came into existence on 25.02.2011 has 49 admitted in his cross-examination dated 09.01.2015 at paragraph 7 to the effect that discussion relating to sale of said property was held one week after the execution of Ex.P-1.
38. It has also been held by the trial Court and rightly so that defendants after receipt of the legal notice dated 28.12.2012 -Ex.P-3 issued by the plaintiff, had not been replied by the defendants and for the first time in their written statement, which was filed one year after the issuance of legal notice-Ex.P-3, a plea regarding existence of one more agreement dated 25.02.2011 relating to property bearing Sy.Nos.105/1A to 105/1D had been raised and said document had not been produced though he admits that photocopy of said document is in his custody. Hence, we are of the view that learned trial Judge has rightly arrived at a conclusion that defendants had failed to prove the execution of agreement of sale dated 25.02.2011 by them in favour of plaintiff in respect of property bearing Sy.Nos.105/1A to 105/1D. We are also of the 50 considered view that defendants have miserably failed to establish that execution of agreement of sale dated 24.02.2011-Ex.P-1 was towards security of the advance amount paid to them by the plaintiff for the sale transaction relating to the property bearing Sy.Nos.105/1A to 105/1D measuring 2.02 acres.
39. We also find that the learned trial Judge has rightly and properly evaluated the evidence available on record as discussed hereinabove and there is neither improper appreciation of evidence nor the evidence available on record have been ignored. There is no error committed by the learned trial Judge in the matter of appreciation of evidence while decreeing the suit of the plaintiff. Hence, we are of the considered view that contentions raised by the learned counsel appearing for the appellants/defendants deserves to be rejected and accordingly, it is rejected. Hence, we answer point Nos.1 to 5 in favour of plaintiff and against the defendants. 51 RE: POINT NO-6:
40. In the light of aforestated discussion, we are of the considered view that judgment and decree passed by the trial Court deserves to be affirmed. Hence, we proceed to pass the following:
JUDGMENT
(i) Appeal is hereby dismissed.
(ii) Judgment and decree dated 30.04.2016 passed in O.S.No.39/2013 by II Addl. Senior Civil Judge & JMFC, Kolar, is hereby affirmed.
(iii) Registry to draw the decree
accordingly.
(iv) Parties to bear their respective costs.
SD/-
JUDGE
SD/-
JUDGE
*sp/DR