Karnataka High Court
Sri.Rachappa S/O Irappa Hugar vs Smt.Mallawwa W/O Somashekharappa ... on 19 September, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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RSA No. 100479 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO.100479 OF 2018
BETWEEN:
1. SRI.RACHAPPA S/O IRAPPA HUGAR
(SINCE DECEASED REP. BY HIS LRS)
1. SMT.RUDRAMMA,
W/O RACHAPPA HUGAR,
AGE: 72 YEARS, OCC: HOUSEHOLD,
R/O: HOSA ONI, GULAGANJIKOPPA,
TQ and DIST: DHARWAD.
2. SRI. IRAPPA,
S/O RACHAPPA HUGAR,
AGE: 54 YEARS, OCC: BUSINESS,
R/O: HOSA ONI, GULAGANJIKOPPA,
TQ and DIST: DHARWAD.
3. SRI. BASAVRAJ,
S/O RACHAPPA HUGAR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: HOSA ONI, GULAGANIKOPP,
TQ and DIST: DHARWAD.
4. SRI. NINGAPPA,
S/O RACHAPPA HUGAR,
AGE: 49 YEARS, OCC: DRIVER,
R/O: HOSA ONI, GULAGANJIKOPPA,
TQ and DIST: DHARWAD.
5. SMT. RATNAVVA,
W/O BASAVRAJ HUGAR
AGE: 56 YEARS, OCC: HOUSEHOLD,
R/O: YADWAD ROAD,
KAMALAPUR, TQ and DIST: DHARWAD.
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RSA No. 100479 of 2018
6. SMT. JEER GIRIJA GOPAL,
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O: GANDI NAGAR,
3RD CROSS, NEAR EX-MP,
RAJESHWARI HOUSE,
TQ and DIST: BALLARI.
7. SMT. CHANNAMMA,
W/O NAGRAJ HUGAR,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: 4TH CROSS,
KOPPADAKERI JANATA PLOT,
DHARWAD.
8. SMT. LAXMI,
W/O MAHANTESH HUGAR,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: 4TH CROSS,
PANCHAKSHARI NAGAR,
GADAG, DIST: GADAG.
9. SAVITRI,
D/O RACHAPPA HUGAR,
AGE: 38 YEARS, OCC: ADVOCATE,
R/O: HOSA ONI, GULAGANJIKOPPA,
DHARWAD.
...APPELLANTS
(BY SRI. RAJASHEKAR GUNJALLI, ADVOCATE)
AND:
1. SMT. MALLAWWA,
W/O SOMASHEKHARAPPA KONGI,
AGE- 55 YEARS,
OCC- HOUSEHOLD WORK,
R/O- BHAVIKATTI PLOT,
SAPTAPUR, UNIVERSITY CROSS,
TQ and DIST- DHARWAD.
2. SRI.,RAJSHEKHAR,
S/O SOMASHEKHARAPPA KONGI,
AGE: 35 YEARS, OCC: SERVICE,
R/O: BHAVIKATTI PLOT,
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RSA No. 100479 of 2018
SAPTAPUR-580001,
UNIVERSITY CROSS,
TQ and DIST: DHARWAD.
3. SRI. RAVI,
S/O SOMASHEKHARAPPA KONGI,
AGE: 34 YEARS,
OCC: PRIVATE SERVICE,
R/O: BHAVIKATTI PLOT,
SAPTAPUR-580001,
UNIVERSITY CROSS,
TQ and DIST: DHARWAD.
4. SRI. MANJUNATH,
S/O SOMASHEKHARAPPA KONGI,
AGE: 31 YEARS,
OCC: SERVICE,
R/O: BHAVIKATTI PLOT,
SAPTAPUR, UNIVERSITY CROSS,
TQ and DIST: DHARWAD.
5. SRI. CHANDRAKANT,
S/O GURUSIDDAPPA KONGI,
AGE: 56 YEARS,
OCC: PRIVATE RETIRED,
R/O: KUMARESHWAR NAGAR,
TQ and DIST: DHARWAD.
6. SMT. KAMALAVVA,
W/O CHANNAVEERAPP CHIGATGERI,
AGE: 53 YEARS,
OCC: HOUSEHOLD,
R/O: BHAVIKATTI PLOT,
SAPTAPUR, UNIVERSITY CROSS,
TQ and DIST: DHARWAD.
7. SRI. ANNAPPA,
S/O BASAPPA KONGI
AGE: 63 YEARS,
OCC: AGRICULTURE,
R/O: MAHATMA BASAVESHWARA NAGAR,
KONGI BUILDING, DIST: DHARWAD.
...RESPONDENTS
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RSA No. 100479 of 2018
(BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908, AGAINST
THE JUDGMENT AND DECREE DATED 09.04.2018 PASSED IN
R.A.NO.6/2016 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND C.J.M., DHARWAD, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
18.12.2015 PASSED IN O.S.NO.195/2009 ON THE FILE OF THE
III ADDL. CIVIL JUDGE AND J.M.F.C., DHARWAD, DISMISSING
THE SUIT FILED FOR SPECIFIC PERFORMANCE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with consent of learned counsel for parties, it is taken up for final disposal.
2. This appeal is filed challenging judgment and decree dated 09.04.2018 passed by I Additional Senior Civil Judge and C.J.M., Dharwad ("first appellate Court", for short) in R.A.no.6/2016 dismissing appeal confirming judgment and decree dated 18.12.2015 passed by III Additional Civil Judge and Judicial Magistrate First Class, Dharwad (for short, "trial Court") in -5- RSA No. 100479 of 2018 O.S.no.195/2009, dismissed suit filed for specific performance of contract.
3. Appellants herein are legal representatives of original plaintiff, while respondents herein were defendants no.1 to 7 in suit. For sake of convenience, they shall hereinafter be referred to by their rank in original suit.
4. O.S.no.195/2009 was filed seeking for specific performance of agreement of sale.
5. In plaint, it was stated that plaintiff was tenant of land bearing block no.39 measuring 01 acre 10 guntas of Gulaganjikoppa village, Dharwad (hereinafter referred to as 'suit property'). One Somashekharappa Gurusiddappa Kongi and Basappa Gangappa Kongi were landlords. On 25.05.1993, they executed an agreement for sale of suit property to plaintiff for total consideration -6- RSA No. 100479 of 2018 of Rs.39,101/- by receiving Rs.501/- as advance. Thereafter, Basappa Gangappa Kongi died on 26.06.1995. And two years prior to suit Somashekharappa also died. Prior to same and since plaintiff was in possession of suit property as tenant, Somashekharappa got plaintiff to file application under Section 77A of Karnataka Land Reforms Act, 1961 (for short 'KLR Act'). But when application came up for hearing he changed his mind and contested it. And thereafter executed agreement of sale.
6. It was further stated that defendant no.1 was wife of Somashekharappa, defendants no.2 to 4 his children, defendants no.5 and 6 his brother and sister and defendant no.7 was son of Basappa Kongi. Thus, defendants no.1 to 7 were legal representatives of sellers and were bound to complete the contract. But they failed to do so even on demand. On other hand, plaintiff received -7- RSA No. 100479 of 2018 summons in O.S.no.1018/2008 filed by defendants no.5 and 7 against him for injunction. Hence, present suit was filed.
7. Upon service of suit summons, defendant no.7 filed written statement which was adopted by defendants no.1 and 3 to 5. They contended that there was no cause of action to file suit and it was barred by limitation. There was improper description of suit property and they denied that plaintiff was tenant in possession and cultivation of suit property. Defendant no.7 specifically contended that plaintiff was owner of adjacent land and with intention to grab it filed false suit. It was also asserted that value of suit property was more than Rs.5,00,000/- and opposed suit.
8. Based on pleadings, trial Court framed following issues:
(1) Whether the plaintiff proves that deceased Somashekharappa s/o.-8- RSA No. 100479 of 2018
Gurusiddappa Kongi and deceased Basappa Gangappa Kongi had executed agreement of sale dated 25.05.1993 for a valuable consideration of Rs.39,101/- in favour of plaintiff by receiving earnest money of Rs.501/- in respect of the suit schedule property?
(2) Whether the plaintiff proves that he is always ready and willing to perform his part of contract?
(3) Whether the suit of the plaintiff is barred by law of limitation?
(4) Whether the plaintiff proves that the description of the suit property is correct?
(5) Whether the plaintiff is entitled to the relief sought for?
(6) What order or decree?
9. Thereafter, plaintiff examined himself and three others as PWs.1 to PW.4. Exhibits P1 to P12 -9- RSA No. 100479 of 2018 were marked. Defendant no.7 was examined as DW.1. Exhibits D.1 to D.42 were marked.
10. On consideration, trial Court answered issues no.1 and 5 in negative; issue no.2 partly in affirmative; issues no.3 and 4 in affirmative and issue no.6 by dismissing suit with costs etc.
11. Aggrieved by said decree, defendant no.2 filed R.A.no.6/2016 on several grounds. It was contended that trial Court misconstrued legal position while answering issue no.1 that unregistered sale agreement cannot be looked into. It erred in not reading depositions of witnesses in entirety. Its finding regarding possession was without framing appropriate issue and contrary to admission. It was submitted that even conclusion regarding signature of sellers on Ex.P.1 was erroneous. It was contended that it was not necessary in every case to send signature for verification to handwriting expert and in instant
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RSA No. 100479 of 2018 case, Basappa Kongi was also called by another name and signed as such. Though, issue of limitation was question of law and fact, trial court decided same without reference to evidence. Even fact that O.S.no.1018/2008 filed by defendants was withdrawn, was not taken note of. Along with appeal they had also filed I.A.no.VI under Order- XLI Rule-27 of C.P.C. for permission to lead additional evidence and I.A.no.VII under Order- XXVI Rule-10 of C.P.C. for appointment of Handwriting Expert as Court Commissioner for comparison of signatures on Ex.P.1.
12. Based on contentions urged, first appellate Court framed following points for its consideration:-
(1) Whether the appellants have
made out sufficient and
reasonable grounds to permit
them to produce the documents
as prayed for in I.A.no.VI?
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RSA No. 100479 of 2018
(2) Whether the appellants have
made out sufficient and
reasonable grounds to appoint
handwriting expert as court
commissioner to identify and
compare the signatures of the
executants of Ex.P.1 agreement
of sale dated 25.05.1993 as
prayed for in I.A.no.VII?
(3) Whether the impugned
judgment and decree dated
18.12.2015 passed in
O.S.no.195/2009 calls for
interference?
(4) What order?
13. Upon hearing counsel, appellate Court
answered points no.1 to 3 in negative and point no.4 by dismissing appeal.
14. Against concurrent judgment and decree, appellant has preferred this appeal.
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RSA No. 100479 of 2018
15. Sri Rajashekhar Gunjalli, learned counsel for appellants submitted that trial Court erred in coming to conclusion that as agreement of sale was not written on stamp paper, it could not be looked into. It was further submitted that even without referring agreement of sale to Handwriting Expert, it held that signature of seller on Ex.P.1 was not proved. It was further submitted that rejection of IA.nos.VI and VII filed to bring out truth were rejecte on technicalities. Under above circumstances, following substantial questions of law would arise for consideration :
"(1) Whether first appellate Court was justified in dismissing I.A.nos.VI and VII?
(2) Whether there is proper
appreciation of evidence on
record?"
16. On other hand, Sri Mallikarjunswamy
B.Hiremath, learned counsel for caveator-
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RSA No. 100479 of 2018
respondent no.1 supported impugned judgment
and decree and submitted that both Courts had concurrently held that suit was barred by limitation and plaintiff had failed to prove Ex.P.1 agreement of sale after referring to evidence. Therefore, no interference was called for in second appeal.
17. Heard learned counsel. Perused impugned judgment and decree and records.
18. From above submissions, it is not in dispute that Somashekharappa Gurusiddappa Kongi and Basappa Gangappa Kongi were owners of suit property and defendants were their legal representatives. While plaintiff claims that he was tenant in respect of suit property under sellers who had executed agreement of sale on 25.05.1993 by receiving advance amount of Rs.501/- and though he was ever ready and willing to perform his part of contract, and was entitled for its specific performance; it is case of
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RSA No. 100479 of 2018 defendants that Somashekharappa Gurusiddappa Kongi and Basappa Gangappa Kongi were owners of suit property, they never executed agreement of sale in favour of plaintiff and hence, plaintiff was not entitled for any relief.
19. While passing impugned judgment and decree, trial Court referred to evidence led by plaintiff. It observed that Ex.P.1 agreement of sale was unstamped and unregistered document written on plain paper. The same was impounded and thereafter plaintiff paid necessary stamp duty. It observed that to prove Ex.P.1, plaintiff examined P.W.2 who deposed that plaintiff was in possession of suit property since 30 to 35 years but said witness admitted in cross examination that name of tenant was not entered in RTC. It noted that P.W.3-scribe of Ex.P.1 was son-in-law of plaintiff who admitted that he had not signed on Ex.P.1. P.W.4 identified signature of sellers on Ex.P.1 as
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RSA No. 100479 of 2018 Ex.P.1(a) and 1(b). In rebuttal, defendant as D.W.1 got marked Ex.D.41 and 42 ration cards of sellers containing their signatures, which differed from signatures on Ex.P.1.
20. It held that due to difference in signatures, burden was on plaintiff to establish that signatures were those of sellers and since plaintiff failed to discharge said burden by producing any other document containing signature of sellers, it answered issue against plaintiff.
21. Besides above conclusion, trial Court also examined readiness and willingness of plaintiff to perform his part of contract. It observed that to establish his financial capacity, plaintiff produced fixed deposit receipts for a sum of Rs.59,580/- standing in name of plaintiff's daughter as Ex.P2 and P3. It held that said evidence established his financial capacity. But it observed that though
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RSA No. 100479 of 2018 agreement of sale was claimed to have been executed on 25.03.1993, it was merely stated that filing of O.S.no.1018/2008 was cause of action for filing suit. There was no specific averment about refusal to act in terms of contract. Therefore, readiness and willingness was answered partly in affirmative.
22. Insofar as limitation, though plaintiff claimed to be in possession of suit property in terms of agreement of sale, he failed to establish same. As per Article 54 of Limitation Act, 1963, period of limitation for filing suit for specific performance of contract was three years from date fixed for performance and if no such date is fixed, when plaintiff has notice that performance was refused. It held that since plaintiff kept quite from 1993 till filing of O.S.no.1018/2008. It held that mere existence of condition in agreement of sale did not permit filing of suit after exorbitant delay
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RSA No. 100479 of 2018 of 15 years. Hence, it answered issue regarding limitation against plaintiff. On said finding it dismissed suit.
23. The first appellate Court on re- appreciation observed that Ex.P.1 was an unregistered document written on plain paper. As per order dated 10.08.2012, trial Court had impounded same and thereafter plaintiff paid deficit stamp duty and penalty on it. On perusal, it observed that agreement of sale referred to Somashekharappa as kabjedar and his uncle Basappa as cultivator of suit property. Together they were alleged to have agreed to sell suit property to plaintiff for total sale consideration of Rs.39,101/- and after receiving Rs.501/- as advance executed agreement of sale on 25.05.1993 in presence of village elders. It also stated that possession was handed over to plaintiff. It also referred to admission of P.W.1
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RSA No. 100479 of 2018 that Basappa and another had jointly handed over possession of suit property to him and since no sale deed was executed, his name was not entered in revenue records. He also claimed that certain mediators instigated him to file application for grant which was dismissed. It also took note of his deposition that sellers had given instructions to write agreement of sale, to plaintiff's son-in-law and after death of sellers, legal representatives went on postponing execution of sale deed. Deposition of P.W.2, plaintiff's neighbour was to effect that plaintiff was in possession of suit property since 30 to 35 years. It observed that P.W.3 scribe deposed in favour of plaintiff's case and identified Ex.P.1 agreement of sale and also signatures of sellers and attesting witnesses. P.W.4 one of attesting witnesses deposed that Ex.P.1 agreement of sale was executed between plaintiff and defendants in respect of suit property
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RSA No. 100479 of 2018 and he signed same as attesting witness. He also stated about advance money paid by plaintiff and defendants handing over possession of suit property to plaintiff. He also deposed that prior to agreement, plaintiff was cultivating suit property on lavani basis. P.W.3 identified his signature on agreement of sale, but in cross-examination he stated that his signature was taken on one pavati patra.
24. First appellate Court referred to evidence led by defendants. Defendant no.7 examined as D.W.1, who deposed that Ex.P.1 was concocted but admitted that he had not filed any suit for its cancellation. He further admitted that in Ex.D.3 and Ex.D.15 record of rights, name of Government was entered in revenue records and sale deed was not registered. It observed that in Ex.D.1, 3, 9 to 11, 18 to 26 record of rights, there was no entry of Government in cultivators column. It referred to
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RSA No. 100479 of 2018 ration card of Basappa as Ex.D.41 and Somashekharappa as Ex.D.42 to conclude that defendants were legal representatives of sellers.
25. It concluded that since Ex.P.1 agreement was written on white paper and unregistered and Ex.P.4 to 11 were standing in name of sellers and as P.W.1 admitted that plaintiff was not in possession of suit property. It also referred to rejection of application filed by plaintiff before Assistant Commissioner for grant of suit property as establishing that he was not in possession. It drew adverse inference on answer of ignorance by P.W.1 about agreement of sale being written on plain paper or ruled paper.
26. It observed that Exs.P2 and P3 fixed deposit receipts standing in name of plaintiff's daughter did not establish his readiness and willingness as he did not examine his daughter. On ground that PW.2 showed ignorance about name of
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RSA No. 100479 of 2018 sellers appearing in record of rights and close relation of PW.3 with plaintiff and P.W.4 stating in cross-examination that his signature was taken on pavati patra as substantiating failure of plaintiff to prove Ex.P1.
27. While considering I.A.no.VI it noted that additional evidence sought to be produced was certified copies of order sheet, plaint, written statement, order dated 26.05.2010 on preliminary issue and memo dated 29.06.2015 in O.S.no.1018/2008. On perusal, it found that said suit was filed by defendants no.5 and 7 herein against plaintiff for permanent injunction which came to be dismissed as not pressed based on memo filed. It noted that there was no adjudication on merits and said fact was clearly admitted by DW.1 in cross-examination. Explanation offered was pendency of present suit. It further noted that there was sufficient cross-
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RSA No. 100479 of 2018 examination of DW.1 in relation to said suit and under such circumstances, it concluded that additional evidence sought to be produced was not required and dismissed application.
28. Insofar as I.A.no.VII filed for appointment of handwriting expert as Court Commissioner, it observed that signature of Basappa and Somashekharappa were marked as Exs.D41(a) and D42(a) in ration cards-Exs.D41 and D42 respectively. It also noted that defendant no.7 examined as D.W.1 as stated that he has no objection for sending, Ex.P1, Exs.D41 and D42 for scientific examination i.e. for comparison of signature. It however concluded that same was unnecessary as plaintiff himself as P.W.1 stated that he was not in a position to say whether agreement of sale based on which he was claiming relief was written on plain paper or ruled and also failed to recollect how many signatures were put
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RSA No. 100479 of 2018 by him on it. It concluded that said answer would cast serious doubt about Ex.P1. It also referred to submission of plaintiff's counsel before trial Court that Court itself could compare signatures and there was no need to send it to handwriting expert. It observed that since very signature was disputed, onus was be on plaintiff to prove due execution of agreement of sale. It also observed that as plaintiff had not sought for scientific examination before trial Court at earliest, same could not be permitted in appeal to fill up lacunae in evidence. On said finding, it dismissed appeal.
29. Though learned counsel for appellant vehemently contended on behalf of plaintiff that in instant case, plaintiff's version was that even prior to agreement of sale, he was tenant of suit property. But no evidence was led to substantiate same. Revenue records produced clearly indicated that suit property was standing in name of
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RSA No. 100479 of 2018 Somashekharappa and Basappa as cultivator and kabjedar. This would dilute plaintiff's claim that he was in possession prior to agreement of sale. Besides evidence was led by that possession was handed over on date of execution of agreement of sale. But if possession were delivered in part performance agreement of sale, it would require registration. As per plaintiff's case, total sale consideration was Rs.39,101/- of which plaintiff had paid advance of Rs.501/- which was less than 2% of total consideration. Though it was claimed that time was not essence of contract, filing of suit for specific performance in year 2009, more than 15 years after agreement of sale, that too, without any evidence about efforts/demand made by plaintiff for enforcing contract. Therefore only conclusion that could be drawn was that plaintiff was not ready and willing to perform his part of contract. Fact that plaintiff had proved financial
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RSA No. 100479 of 2018 capacity by producing Exs.P2 and P3 fixed deposit receipts for Rs.59,580/- would be inconsequential. Hon'ble Supreme Court in U.N.Krishnamurthy v/s A.M.Krishnamurthy reported in 2022 SCC OnLine SC 840, taking note of plaintiff waiting for fag end of period of limitation for filing suit for specific performance held that denial of specific performance on ground of failure to establish willingness would be justified.
30. Both Courts have after examining evidence of parties after assigning proper reasons for valid conclusions which are perverse or capricious, have rightly refused to grant decree of specific performance.
31. Rejection of application for additional evidence by first appellate Court is after examining material on record and by examining material sought to be produced and after concluding that it was not necessary. Said conclusion would meet
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RSA No. 100479 of 2018 requirements of law laid down by Hon'ble Supreme Court in Sanjay Kumar Singh v/s State of Jharkhand reported in (2022) 7 SCC 247 wherein it is held, whether such additional evidence has a direct bearing on pronouncement of judgment requires to be examined. As noted by first appellate Court, D.W.1 clearly admitted about O.S.no.1018/2018 being dismissed for non- prosecution. It also observed that D.W.1 was sufficiently cross-examined on this aspect. Therefore, additional evidence was not required. Likewise, rejection of application for sending Ex.P1, Exs.D41 and D42 for scientific examination by handwriting expert was on ground that it was not sought for at earliest time, and therefore could not be allowed as a means to fill up lacuna in evidence. Even said reason would be fully justified.
32. Thus neither of two proposed substantial questions of law arise for consideration herein.
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RSA No. 100479 of 2018
33. In the result, following:
ORDER Appeal is dismissed without being admitted.
Sd/-
JUDGE CLK/CKK