Karnataka High Court
Kavita Ganashamdas vs Sudarshan Murthy on 8 September, 2011
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HIGH COURT OF KARNATAKA ATE ANGALORE Dated this the 8" day of September, 20kP. Before THE HON'RBLE MR JUSTICE HY LU VADI G RAME: SH ; Regular First Appeals 1092. / 2008 che 105 og 2009 : Between: Smi Kavita Ganashamdas. 54 yey W/o late Ganashamdas now BS 1, Backside of Ground F! loor " Cross, a" Block, R XT Naga" J common Dangaton 3 re Appellant (By Sri K Suman, Adv. ) . And: in REA 10922000 | Sri Sudarsiiaa Murthy. 5] ves S/o A Muniva ppa.# 308 Bazaar: Street, Kengeri _Barigalo ire ow) ee sea ene io isi of hn fee bent ae aon, = a. mm fat mo . Cross, le V Pets nsiog ~ Bangalore 80 es "Sri Sanjay L. Carlo Sfo Lachmadas # 9/2. Palace Roac Bangalore $2 (deleted } Respondents [iW RO 233) HP2000 on 25.8.2009. lee In RFA 1094/2009 l Smit Rathnavathi, 50 Vrs W/o U M Ramdas Ballal i" Cross, RMV Extension Bangalore 80 2 Sri Sanjay L. Karlo S/o Lachmadas # 9/2, Palace Road Bangalore 52 (deleted) ev Sio A Muniyappa, # 305 Bazaar Street, Kengeri Bangalore (By M/s Ravi & Ravi, Adv). Sri M Sudarshan Murthy, $1 yrs ad Respondents These Apne als are-filed uader.$.96 of the Code of Civil Procedure praying to set aside the "JUS igraent. ahd decree dated 25.8.2000 in OS 22512000 & O§ 2334/2000 before the XP Addl. City Civil Judge, Bangalore Thess Appe als having 4 been reserved for Orders on 18" August, 20n} the Ce urt delive fed the following: JUDGMENT
These two appeals have been filed against the order passed by the OEE. Addl. City Civil Judge, Bangalore Cily in OS 223/2000 and oe oe Bs Sat Piainull ts common in both the suits ~ one filed for perinanent injemcuion and another for specific performance. Accor ding © the plaindil, the first suit is fled against defendants | ta.3 lor the relict of, permanent miunction to restrain them from interfering with the plaints possession and enjoyment of the suit sc he edule. pre Derby: "Yhe second seit . is for specific performance of the contract and fo permanent imjunction and from dispossessing. Subse que ntl ' thes suit su agai the 2" defendant in OS 2334/2000 viz., Sanjay Carl Was got dismissed by the plainul. Further, the sait in OS.
2000 | was iat procéeded against Sanjay M aid Karlo who was the 3 defendant.
it is stake din O82 23 ve 200 a. jn defendant is the owner of the suit schedule property "and offered ° sell the same for her family necessities. . Plaintiff having kecepted io purchase for a total consideration of Rs.3,50 0900, "paid "s sum of Rs.S0.000/- as advance at the time of execution of the agreement. Plaintiff is said to have paid the remaining . 'balance consideration io the 2™ defendant well in time as such, she was not ey "ue in any amount to the 2" defendant towards sale consideration. The documents are at annexures Ato D. Jf is also stated, on the date of agreement Of saie, 2° defendant has delivered the vacant possession of the i hee a ae ~ consileration on 15.20.1989 and the 1° defendant delivere anil 2" defendant denied the receipt of balance payment. It is stated, sirice the plainliil has not paid the balance consideration within the stipulated: (ime. Be she cancelled the sale agreement by issuing a legal notice and. later sold, the property in favour of the |" defendant under a. registered sale deec at dated 9.2.1998. Since then. the 1" defendant isin possession. aga bonalide - purchaser and denied the possession Gf the plaittiff. Based on. the pleadings in OS 223/2000. following issues have been filed:
¢ Whether the plaintiff proves that she was in lawful possession of the suit schedule property .as on the late of the suit? in Whetherthe plamntit?. proves the alleged obstruction caused by the defendants for her. peaceful possession and enjoyment of the suit schedule property? | 3 is plamndff entitied to the relief sought for?
4° Voe.what erder or decree.
mPOS 232472000 filed for specific performance, if is stated the 1"
defendant (2° diefendant in the other suit) is the owner of the suit property and during 1989, she offered to sell the suit property for a consideration of PERE SNe wa] in the written statement filed by the 1" defendant, she admitted the execution of the agreement to sell and also receipt of Rs. 5G.000/ but. she. denied plaintiff having paid the remaining Rs.3 lakhs aid. also stated the' sull property was never delivered to the plaintiff. Rather). she -herseif conimued to be in possession. As the balance sale consideration was not | paid, she got issued a legal notice on 25.10, 1994 and cancelled the agreement of sale executed in-favour. ofthe' plainuff and later, sold the ere 1 i ~£ a : . - rd "4 a - ~ F property to the 3° defendant. As such, the 3 Getendant became the absolute owner and he Had inducted one Janardhan Gandhi to the suit property under the. renal agreement: In order to make unlawful gain, plaintilf has. created false documents and filed suit in OS 223/2000 in collusion with «the police" inspéetor legally fo dispossess the said co Janardhan 'Gandhi. At that time. she took the water and electricity bills for the period and aiso contended that the suit is barred by time and there is NO calise Of action for the plaintiff to institute the suit. "Phe 3° defendant in the written statement filed, while admitting that 1" defendant was the owner of the suis property stated that she sald the suit property in faveur of the 3" defendant on 9.2. 1998 and delivered It is also stated, though the ~ possession of the same on vr plainutf entered into an agreement with the 1" defendant during February LOSS, possession of the suit property was not delivered to the "plainatf and the 1" defendant cancelled the sale agreement in faveur or the plainti. and also denied further construction put up by {he PRAInUES. Welle denying the alleged threat to the plainti 2 IIS sk: ated, the 3° de fenda mt has | inducted one Janardhan Gandhi as a whan a) the suit ropetty under 2 rental agreement and also plaintiff had fited three i Herent suits at Mayo Hail for relief of injunction and specific pertria and the same was suppressed and those sus A iil leit te te pr row | her possession were dismissed, rhis OS 2235/2000 for. "the c vel of of Base injunetion is filed without seeking leave of the C ourt f Hea suit For specitic performance as such, the suit is hit by O 2 RR. 2, CPC, "Phe au defendant is a bonalide purchaser for valuable: consideration and suit is barred by limitation and accordingly, sought for disinissal-of the suit.
Based on tee pleadings, following seven issues and four additional "Essues were framed on diferent dates.
my Whether the plainuff proves that the 1" defendant was agreed to sell the suit schedule property for a valuable consideration of R8,3,50,000/- and executed an agreement of sale dated 15,2.1689 by receiving an advance amount of Rs.80.000/-? eae ae 2 Whether the plaintiff proves that he was put in a of the suit schedule property in part performance of the conira as on tne date of execution of the agreement of sale? 3 Whether the plaintiff proves that she was anid | is always re ady y and willing to perform her part of the contract? 4 Whether the sunt is barred by time?
5 is plaintiff entitled forthe velief "Ol specific performance of contract?
6 Is plaintiff ening for the relief of permanent imjunction? 7 To what or: de er or decries Additional Issues:
SORES "a rar y ad EE a oh ac te --
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Laos e "witness as the ¢ & Be mY Coes SBOOstosooh ap 4lenare a -- fF WO M2 FSA, (Seem Ofer. wiso~ T5 _ --
SB Bow Py?
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de, Whether the 3° defendant proves that the s suiL Is not bane iatainat e under O 2 R 2, CPC as all eged j 19 para. ZS of the writen § tate ment! 2 After evidence was fet in on behalf of 'both, sides, aft 'f inquiry, the (rial court dismissed both the suits as ag guinst which, the present Appeals are filed on various counts».
Heard Line cour: sel lor the respecti ive parties. °F t Counsel forthe App ellant has strenuousiv contended that the trial court compaitted an error ig 'dismissing the suit and also erred in not comsicering Ue a yinent made by the plaintiff to the 1° defendant, the "vendor under receipis. The trial court has taken the evidence of expert spel truth without considering the signature of the 1° | defend fant on the stamps hole ding that if is manipulated. The vendor has the readiness and willingness of the plaintiff by her conduct and "rather, she never denied the capacity of the plainuff Time is net the vessence of the contract and when she fled the suit for imyunction, she HS e came to know about the subsequent conduct of the defendant that she is denying specific performance. Clause 3 of the agreement ne Carly indicates that time is not the essence of the contract. The alleged. Le egal HOt ice ist ued . pean
- st ~ . . ue, in a - E by the I" defendant terminating the agreement 'has not reached: the plaintiff nor the 1° defendant proved the 'sanie por peoduced any - acknowledgement. The trial court has wrongly drawn the presumption stating that plaintiff had the kno wledge. by "receiving the cerificate of posting which is a perverse finding, oP he agreement clearly indicates that POSSESSION 18 parted with: Plantiit also hes "roser 'ed the liberty to file a suit for specific performance | inthe first sui fi led for injunction. In the first suit filed, sorte oF the parties are different than the parties in the second suit. As such, guestion OF reserving liberty may not arise. Even nerwise: (Here is complian we of OZR 2. CPC. ©. On the point-of limitation, it is argued Art.54(2) of the Limitation Act applies as the-plaintiff came to know of refusal only during 2000 and ihe stitis not barred by limitation. Apart from that, even according to the i" defendant, she admitted plaintiff was wrongfully dispossessed by the A EY OL delendant, Piainuiff is in possession in part performance of the a igreement aNG also 11S siated, lease was only in respect of ground floor. Ex.D4 does eae eae that relief of specific performance is a rule and refusal is' Only an exception and defendant cannot take the advantage of f his" OWL. wreng: even the conduct of the defendant shows that the sale deed w as re egistered . mae six months after drafting of the deed. 3" defendant is not a bonafide purchaser for value without notice rater, he w es leware. Of une agreement and the same has been admitted by DW:l in her chess: xamijnation TO contend that too much of reliance on the hai writing expert who gave opinion on the advance, Amount. meeipts is unclled for learned counsel has relied upon the decision i mn Bhagwan kar ie Sri Maharaj Krishan Sharma & Ors Ale 197 3 se 246 and | 'iso on the decision in Ram Narain Vs "tate of t i Hoe Pad esh - AIR 1973 SC 2200 and submitted that the court sano wholly embark u upon the opinion of the handwriting expert. il ' also "his contention, the plaintiff has paid the full "consider erat ion ol R83 50,0001 during 1989 itself. The vendor has, after receiving thea an wounk went On postponing registering the sale deed and rd after ten years, sold the same to 3 defendant only for Re.4 lakhs. It is only sham transaction to defeat the right of the plaintiff. Accordingly, he has scughi lor allowing the appeals.
ee CS ie a ite Counsel representing the respondents stated, the appellant wes not in possession of the suit schedule property as on the date 'OF the.suih for injunction. The stand of the appellant that she was SOVEIP AN POSSESSION. Of the suit property cannot be accepted rather, the vendor Rathnavathihas made an unequivocal statement that she handed over DOSSESSION LO One 4 yf , ne ~ Me ; £ e . :
Sudarshan Murthy/3™ respondent on the date of execution of the sale deed in his favour. Subsequenthy, "Sudurshan 'Murthy entered into lease agreement with one N K Janardhan Gandai. The agreement is at Ex.D4 gard. There is also and DW 2 the tenant,was examined in this ve admussion on the part.of the appellant in the cross-examination that she Was NOL given possession af any point Gf time. Also. she admitted that Rathnavathi is shown as. residing-in the suit schedule property, The plea of the appeilant that she put up a construction is contrary to her own stand : me Me : roe we -- --_ . ; es ard when-she' has admitted Rathnavathi has constructed the house. Phe 3° respondent, has-statéd in detail as to how his tenant was illegally dispossessed -by the appellant's men. It is stated. there are several "admissions with regard to delivery of possession and payment of sale consideration which is contrary to the own evidence of the appellant, Learned counsel also contended, even the ESI. reporl régarding payment 'éipis are not in support of the appellant's case. Balance sale Flee H STATE oe ee yi es respondent. The conduct of the appellant discloses that she was not ready hab consideration was not paid and possession was not delivered-and the appellant was not ready and willing to discharge the contract. ~ The appellant has taken the electricity and water bills alter having illegally - 4 dispossessed the tenant of the 3° respondent. In (his regard, complaint was also filed by the 3™ respondent. -fi-is also submitted, as-per Ex Ph. | agreement, sale consideration should be paid after the expiry of the lease period within sixty days iLe., rom 25.7. }99S-swithin two months. Even Ex.P] demonstrates the original. tide deeds were handed over to the e appellant but, she failed-to perform her part ofthe contract. A egal notice was issued. to. the appellant 'forfeiting the advance amount of Rs.50,000/- and fhe i" respondent.also demanded the appellant to return ot ali the original.title deeds: and, -after the sale deed was executed, 1° respondent fas handed over all the original title deeds to the 3"
and willing tG- perlorny her part of the contract. Pursuant to the novice Iseued af Ex.D3)-appellant has returned all the original deeds to the 1* "respondent and that itself indicates thar appellant was not ready and _ willing toperform her part of the contract and appellant did not come forwatd to pay the remaining balance as stipulated. -- According to the respondents, ihe suit property was not given to the plaintiff and she was if.
pe eet | PERI Se Cee ye In the light of the argument advanced. the points that-arise for consideration are --
Whether the trial court is justified in holding tiat plaintiff -has failed to prove that 1" defendant had agreed to sell the sait-property for a-veluable consideration of Rs.3,50,000/- and .ésecuted -an agreement, of sale Gn | 15,2.19897 Whether the trial court is justified in poldir.g that plaintiff failed to prove that she was put in possession of the suit property in part performance of the contract:
Whether the trial court is, justified in 'holding that the plaintiff failed to prove that she was always ready and willing to perform her part of the contract:
Whether the trial court--is jusified in bolding that the suit is barred by limitation:
Whether ihe tiai-court is justified in rejecting the relief of specific performance: -
Whether the trial court is justified in rejecting the relief of permanent nyunction:
~, Whether the trial court is justified in nolding that there is due execution of eed by 1" defendant to 3" defendant.
alt?
ee ae consulting the sc Whether ihe tial court is justified in holding that the sale in favour of the ref 3° defendant is binding on the plaintiff and that plaintiff is pot entivied for relief.
Whether the trial court is justified im holding that seit is not maivitaineble stating there is on-complainant of O 2 R 2, CPC Whether the trial court committed any iHegality or errér in dismissing the suits Aled by the plaintiff.
Whether plaimtiff is eetitled for the-relief of permanent injunction and specific performance. ~ What order:
Learned counsel for the appellant has relied on the decision of this Court in the casc.OF M Krishna Reddy Vs S C Narayana Reddy - AIR 2001 KAR. 442 wo coretend that Art.54 part If applies to the case ie., limitation of three vears begins to run from the date when the plainutf has "notice of the defendant refusing to perform the contract. Learned counsel has submitted that the alleged notice said to have sent by the defendant vhas neither reached the plaintiff nor the plaind!f was aware of it, Even 2 ocale as admitted by the plaintiff is not in connection with the cancellation of the agreement. The trial court has entered into a Ae eee 1g wrong presumption that the plaintiff had knowledge earlier he. dering [995 as such, suit is barred by limitation, is without any basis. Furt her. it is also contended. neither notice nor acknowledament for having 'served' ihe notice on the plaintiff as alleged by the defendant is product Delore ihe court.
In the case on hand, accarcing to the praintii:, after the agreement for sale, the plaintiff was put in, possession, However, the same has been disputed. The defendant and the subsequent alience have accepted the possession of the~plai ff hough it. is stated, the plaintiff ilegally dispossessed: the defencdents:. What is being pleaded and stated by the piaingtl is, due to the conduct ef the 3" defendant in aitempling 16 dispossess: the. plaintiff she filed a suit for injunction immediately inereafer during 2000 reserving liberty to file a comprehensive suit for specitic "perforniance, against the 1° defendant and the subsequent By purchaser. Appellant's counsel submitted that at the time of entering into _ # agreement, since the lease period had not expired as per the conditions . Sipulated by the BDA at the time of alloument of the suit property in the 1° defendant. ir was agreed that the sale deed will be "executed alter the expiry of the lease period in the year 1995, It is also yen » that the suit Nled subsequently for s 20 stated. the appellant was all along waiting end now and then reauesting the 1° defendant to execute the sale deed. Since already the advance of. Rs.50,000/- was given at the time of agreement, the remaming Rs.3 lakhs- i bay AE } was paid during 1989 by installments and the. plaintiff had alrés performed her part of the contract by paying. the eniire consideration - during 1989 itself. Except that the 1° defendant had to execiite the sale deed, there was no lapse on the part of the. plaintift and the plaintiff was éver ready and willing.to get the sale deed executed | However, the [° defendant went on. postponing on one or the other pretext. Ultimately, on coming to know the refusal to execute ihe sale deed, a suit for myunction reserving liberty. followed by suit for specific performance, came to be "TL Es also subinitted, there is comphance of O 2 R 2, CPC. In the suit fer injunction. filed specifically against the 3° defendant who tied te obstruct possession, question of seeking permission as per O 2 R 2, CPC __ does fet apply. Even otherwise, that liberty is reserved. Learned counsel for the respondents, in support of his argument ne performance is hie by O 2 R 2, Pb CPC, has relied upon the decision in the case of FE Jayaram de Amr Ve Lakshmi @ Bhagyalakshmi & Aur - ILR 2005 KAR 4862 avs also the | decision in the case of Kamal Kishore Saboo Vs Nawabzrada Humayun-. ay S Kamal Hassan Khan ~ AIR 2001 Dethi 220.00 the issue regardin permission of the Court to fle a subsequent suit: Counsel for the respondent has also. relist upon the decision in the case Of S Kugashankar Vs Subhash Choe 'Gosi & Ors ~ ILE 2006 KAR 3689 to contend that courts are required +6 examine all relevant factors and cireumnstances te determine the nature of contract and its binding effect upon the: patties either LO.grant or not to grant relief under §.20(2) of the Specitic Relief Act and also regarding the readiness and willingness "on the part of the plaintiff to perform the contract as per S.16CP fe) of the sard Act.
Counsel lias also relied on the decision in the case of
- Pacnenabhan Vs Thomas & Anr ~ AIR 1989 Kerala 188 wherein referring lo S.37 of the Specific Relief Act it is observed, when pessession is Obtained by forcible entry, suit at the instance of such person iS Mot maintainable and to contend that injunction is an eouitable remeay SEA Rss Sees 39 Ben and the person who claims equity must show his entitlement for the relief he has sought for.
'The very stand of the plaintiff is, on coming 1o know-of the condivet of the defendants. she fled a suit for injunction én 'the yéar 2000, in the : absence of producing any cogent evidence a to servive of notice on the plaintiff canceling the agreement entered into by the I™ defendant, it has to be held, plamtiff had knowledge-of refusal of Specific performance only in the year 2000 as snch is per Ar.54(2) of the Limitation Act, suit has been nightly filed withis limilation ie. from the date of notice of the defendant refusing to perform ihe' contract, The decision of this Court noted above, aptly applies tthe tase on hand. The finding of the trial court on the point of litnitation, "nthe context, drawing a presumption that the piaintifi had the xnowled ge of the event earlier through her advocate, appears lo be perverse, SG far as the observation of the trial court that there is non- compliance of O 2K 2 CPC is concerned, except one defendant who js common, other defendants are different and also at the incemion, ai the time of filing the suit for injunction, the plamnult has reserved liberty to Eu ie SEG ATECRCSD OD UR RSENS UG eee a ihe) ons a plamuilt for specific performance cannot be held to be hit' by O20. 2, CPC Le., seeking permission of the court to file subsequent. Suit.
According to the plamtff, she was putuin' possession of the sun property pursuant fo and subsequent to the agiee -ment : However. according to the defendant. - plaintiff forcibly kook possession from Janardhan Gandhi who is the. teriant 0 f f the 3 defendant who, on purchasing of the property from the. i" sclera fad inducted the tenant. What is noted inthe: context is, tie plaintift iS In possession of the property and she had seught . for 'injunction and suit is filed for specific performance agains: defendant Re thinave ahi by reserving Hberty. When the plant tt was cautious enough to reserve liberty at the tome of Gling a sult for inj anction fo protect herself from dire consequences, she filed a suit 1 Yor injuiiotion iniiivediately and thereafter, filed a suit for specific performance... The liberty so reserved in the earlier suit enables the _ plamtiffto file a subsequent suit for specific performance and plaintiff was ware of the immediate threat, as such, she filed a suit first for injunction and then for specific performance by reserving Hberty. In the context, seeking prior permission of the Court for filing a subsequent suit bb file a suit for specilic performance as such, the subsequent suit filed by the |...
ba fy Leamed counsel has also relied upon Nirmala Anand's case ciled Supra on the point of readiness and willingness as per S.20 of the Specific. Reliey Act and to contend that the celief of specific perfermanee cannot be:
refused to the purchaser who was ready and willine to perform hernarhor the contract.
In the case on hand ift-is'seen es subinined bv the appellant's counsel, the vendor Rathnavathi. has-not specifically denied the conduct of the plaintiff regarding her readiness and willingness. IH appears in the context, having received. the full sale consideration, this vendor has not com disputed or dented the feadiness and willineness of the Hammary. SO far as payment of sele consideration is concerned, there is a disputé.as to "recerving Rs.3 lakhs by the vendor. However, there are documents viz. the receipts at Ex.P2 and P3 for Rs. | lakh and 2 lakhs respectively, 'datéd 2.5.1989 and 4.7.1989. There is also the slenature of _ Rathnavethi on the slamp paper. As the receipts were disputed, the same wits referred to the handwriting expert. On the issue of opinion oF the AS Pel & ex] nandwritme expert is concerned, learned counsel has relied upon *. Bhagwan Kaur's case cited supra, wherein the Apex Court has held:
ae "ara 26 The evidence of a handwriting expert, unlike that of 7 ; fingerprint expert, is generally of a frail character and its - fallibilines have been quife often noticed. The: cout should, therefore, be wary to give fuck WES to the evidence of handwriting expert. Concl USIOnS based a upon. mere comparison of handwriting "must at "best be indecisive and yield to the p Ositive.. evidence in the case, Learned counsel referring to the evidence af "the handwriting expert iaken: as. a 'gospe el truth by the submitted, the opinion of the Expert wal trial court without-a Wp plica ation of mind oak ihe trial court ought to have compared the. various 'sian ass of vendor available. Just because the sigmature of' "the: vende was well Iw thin the stamp affixed, unnecessarily there is a presumption bagel in the : expert' s opinion which is wavery and the opinicn of the expert cannot be accepted in entirety in the context as the expert has Rot given detail evidence as to distinguish and differentiate. Counsel "has ee rétied upon the decision of the Apex Court in Ram Narain's case cited supra regarding 5.45 of the Evidence Act and the
-. opinion of the handwriting expert and its evidentiary value, wherein if iE is observed:
Now if is no doubt true that the opinion of a handwriting ver in evidence is no less fallible than any other Ve expert opinion adduced in evidence with the result that such evidence has to be received with great caution. "But : this Opimion evidence which is relevant, may be worthy of . acceptance, if there is internal or. external "evidence . relation to the document in question supporting the-view. expressed by the expert. UF after comparison of "the : | disputed and the admitted writings by the court itself, when the Presidmg Officer is famitiar with that language, it is considered sage lo Accept fie Opinion of the expert then the conclusion so. arrived at caimot.be assailed on special leave 'on the : mere - erourd: th at : comparison of handwrituig is : goneraliy considered as hazardous and inclusive and that the opinion of the handwriting expert has. to be received with considerable caution. The question in cach case, falls tor determination on the appreciation oF evidence. aind unless some serious infirmity or grave failure of justice is shown, this Court would normally re-appeal by special leave.
TE.
rma us, the above ratio leads to an inference that too much of Sorehance onthe opinion of the Expert to conclude is totally uncalled for. 'The court has to compare the signatures/handwriting with its experience ~or language to arrive af a conclusion. The trial court also has not ceaynbarked on other inquiry in the conlext, to arrive af a conclusion. In Stead, i is shown to have relied upon the expert's opinion fully. The Pa SORES SSS RS Se 7 opinion of the expert on the issue that signatures marked at s Ito $3 shows free and firm movement in their execution along: "with, 'smouth: clear, rhythmic and uniform quality of strokes, In Ex.P4, there is Sala o be another signature as Ex.Pl () other than rhe questioned 3 signature marked as Ex.Pl (2). The signature marked at EXP] at) nae. not beel marked as disputed signature. The si gnauize roarked a Ex.P] o is found freely and firmly written along wit clec _ rhythmic and uniform, quality of strokes. The signature at Ex-t Pf). when 'vompared with admitted signature marked as 8 1983 shows. consistency in writin @ habits with the admitted signatures.as seh, ho has come to the conclusion that signatures at Ex.P1(!) and the admnited signatures are written by one and the same person. In ihe: eTOsS- ex comination, "the Expert has stated that he cannot say the year im which the signatures at Ex.Pi (2) was affixed as the docunie nt Was Hot sent to him expect page 6 of the document at Ex.P] and, fei the question had he requested to send the documents either two years prigr or tWO years later to the vear [989 for the purpose of "oO comparison of signature, he has stated he has not requested as if was not . necessary. He has admitted that there will be natural variations in the signature aifixed during the vear 1999 and 2002-03 by a person. He has " adinitted that there is no specific instruction by the court to take signature . and 4 are concerned, althoug cadentily them. In para 1S. i 29 on Ex.Pl Cf) fer comparison. There is a specific direction to compare the signature found at Ex.P|(2) with the admitted signatures. In the chiel-examination, he has stated that. pérsan whe wrote the. admitted signalures at Si - S3 did net.write the questicned. signatures marked at Ex.Pi (¢), 2(a), 3a) and Ata). However in the eross- examination he has stated, si enatute fond a Ex.P Li) is notin us natural form and il has signs of forgery. Similar was the conditions to Px .P2fa), 3a) and 4¢a). Further, inthe closs-exammnation fe has stated on seeing the enlarged photo.primts of Exs.P! (¢) and P2 (a), natural variations cannot be accounted in the case "ol forged' signatures. He denied the suggestion that signatures fond at SI to 53 and signatures at Exs.P! (9), 2a) and 3a) and Atay are one and the same and, also it is suggested that fie has not conducted the examination in a scientific manner which also he has denied, -
~. In-para 14 of the cross-examination so far as signature on Ex.P3 h she admits the address shown is correct, ste Has denied the signatures and what she also states is, she is unable to 6 the suggestion to DW | that after receiving the amount of Rs.3 lakhs at Exs.P2 to 4, thev have handed over possession to the plaintill, she has denied the said suggestion. Howeverysne pleaded -. = yen Ww ith regard to several receipts at Exs.P9 to 11 ie. revenue receipts, she has. pleaded ignorance that PW | has paid the amount. "In porigr aphs 12 and i4 of the cross-examination, she has pleaded ignorance as to "where the agreement -- Ex.P] was prepared. atid wio were the witnesses to Ex.P1. At this juncture, the evidence of DWI has'to be looked into. In para LI] & 12, she has Ste ated u» ist BDA has sanctioned the. sui " sche edule site to me; we have constructed ine builoing alter if was sanctioned to as. | don' bknow if which year. [tis true that we have entered into eer reement with plaintiff as per Ex.P} to sell the suit > schedule p premises as il was. Ht is true that at that time . the re wae) a half building in the suit schedule property. It is true hat we have signed the said agreement after reading the same, l have signed each of the pages of Ex.P1l. | was . paisl Rs.S0.000/- of advance amount from plaintiff as the 5 time of Ex.P]. The said money was given to me in cash by the plainulf. [ don't know reading English. [ don't remember a to whether | got money through cheque or cash. | have not signed anywhere on stamps. If is false to Lata suggest that | have received Rs.50,000/- through cheque -- and that | have signed on the stamps. His false that now 1 am lying that the Signatures on stamps are not mine: -
lt is the case of PWi ie... plaintill, herself and r det andant h rave signed on the agreement. The spe found or EX Pi mee 4), and the standard signatures on comparison are found to be by 'Se. reh and also Ex.P1() is found freely and lirtaly writen. What has been disputed is, the signature found on the stamps ive ow that off i * defendant In Ex Pl im the end at page 6. hese mentioned receiving of the advance amount, by cheque Le. on | 52.1989. over which there is a stamp affixed and in the said page 6. the column vn which is depicted is said be m the natural course.
the $i "me wire found on the stamp at Ex.Pl marked as Ex.P1 (a), is a cis sp uted signe native and the defendant denies having pul her signature on | the stamp. The opinion of the expert is, Ex.Pl (g) and Exs.P2 (a), 3(a) m8 and Hays ace ¢ not written by same person. However, the |" defendant never pleaded vos proved that plaintiff was not ready and willing to perform her part of the contraci even before issuance of alleged notice of termination much less she has also not produced the related documents like registered ae ated ha post acknowledgement due which was returned back served or unserved. about the.
The presumption by the trial court that plainuif came to kno termination of the agreement through her counsel appears to be without, any basis and perverse.
The bare denial of the contention raised by the plaintiffwould not satisfy the requirement as to alleged breach or, readiness and willingness on the part of the plainuff. If the signature is written slowly and if there is little variation in the runing of strokes, the sgame-cannot be made much of. Might be as argued. the 1" defendant being rustic and as admitted by her, must have written slowly fe. cover ber signature within the stamp and the same need not be doubted.
Si On perusal of the |" defendant's signature at various places -- on hy ibis found her signature is not uniform. As such, the deposition, vak:
contention of the-appellant's counsel the entire payment was made and also she, being in possession of the suit property (building). plamtilt awaited and pressed for executing the sale deed, cannot be ruled out. In 'the context, when the 1" defendant has admitted having signed on all the
-s of the agreement, necessarily (he signature al Ex.P1 (@) necessarily bat "ee % Re oct ant would be that of the f° defendant. Might be to fit into the stamp sie must have written slowly, as such, there would not be [ree flow of ihe stokes. and for the sake of denial, she has denied having signed da, the stamp. But, when all other particulars and as per own admigsio mn, - she has: signe d on the agreement, necessarily, it would-be. Stas tmp, AS suc +h, though here is little variation, it has to be held the signature is that of i" ' defendant on Ex.P] (g). Further, when Ex. py has been amid td sh she has also ceived an amount of Rs.50, Q0Oy- a "that point of ime. there was 0 reason for the pein 10, 40, create "such ch a document, That is, at an undisputed point of iivve, i bx. Pi I caine into existence In view of the admission by the * dotondan hat she signed on all the pages of Ex.P1, even if there is alittle variaiion al Ex PA @), it has to be treated as that of the * defendant. The conelusion drawn by the Expert appears to be on "the basi «that the signature en Ex.Pl¢g), 2a). 3la) and 4(a) are on stamps. iP it iy written fo-adjust on the stamp by the i" defendant herself. only on ihe ground that there is no tree [low of strokes, he must have come to such a sonttasion "What is to be noticed is the conduct of the 1° defendant in
- a ney 0 - : : afd disposing of the property in favour of the 3° defendant and non- production of the alleged termination notice by the 1° defendant and. to A coe Bee admitting the agreement. Further, according to the plaintiff, she has mivested Rs.7.S lakhs on construction/renovation of the suit property having taken possession as per the agreement in part performance of the COMITact.
The decision relied upon by "thé. respondent's. counsel in 'de S.37 of thé Specific Padmanabhan's case referred to: above - as + Relief Act, is about the general principles » Especially, in the case on hand, Ex.P] ~ Agreement provides for handing over possession to the plaintiff by the defendant dnd by "breach, if if is handed over to a third person, then necessarily it woukl "be a different aspect for secking is NOL applicable to the case on hand:
~ Aétthis puncture, | may refer to the judgement relied upon by the respondent's counsel tthe case of Lourdu Mari David & Ors Vs Louis _Chianaya Arogiaswamy & Ors -- (1996) 5 SCC S89 to contend that as per 5.29 of ihe. Specific Relief Act, there is a guideline as to how discretion ormance and that he should come to the court with clean hands and also to contend that thicd party purchaser is a bonafide purchaser for value . . . ...
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contend that limitation to file a suit is three years. The said judgmerit has been rendered in a different context, as such, the same is nol applicabic. t& the case on hand.
Phe specific case of the 3° defendant is: atter the safe, he put the | 4 defendant as a tenant in the premise, and. he hasbeen illegally and r forcibly dispossessed through the help ef notice. The 3° defendant has moved this court in contempt proceed a gs_and uhimetely. he failed in his attempt to make out a case of forcible dispossessi®n. Even the application filed by him seeking for per mission "prosecute the plamtif or police officer for the alleged contempt fits. 1ot been entertaimed and permission was not granted. to prosectite che contempt proceedings. As such, any evidence. brought on record regarding contempt proceedings and the conchict. of the: parties which is also on record, need not be icoked into as additional evidence as. "the contempt proceedings itself is held to be void in the circumstances for want of prior permission. As such, the _. Gelenaants were relrained from proceeding to prosecute the plaintiff or the police officer. What is being noticed in the evidence of 1° defendant is, she is nol aware of who is in possession of the suit property. But, it is also clear that there is a mentioning in the agreement at hx.Pl to part wifsthe ta Cad ml possession of the su property in favour of the plainuff. In the context whether the plaintiff has taken possession pursuant to fhe agreement . entered mto or she has Hlegally dispossessed the 3° oF ge defendant and":
taken possession, the fact remains that even as per the defendants. pai stig has oceupied the property illegally. However. in the circumstances, in furtherance of part performance when®.the _plainiitt is entitled for POSSESSION aS mentioned in Bx Pt: and if-she has continued i possession then necessarily the siit filed for specific performance. as discussed earlier, is well withia tine and also.in view of the Fact that cause of action arose to the psi oy during 2008 on comin g fo know of the conduct of the 1% de! vendant in selling the property in favour of the 3™ defendant. ett on oe fat oes OR port fu £p woe pret ban = on In the absence 'of any octet to show legally was terminated and, in. the context of the evidence on record and when it is also pleaded by. 3" defendan that he is a bonafide purchaser for value without notice, but, "it appears the 1° defendant in collusion with the 3° de fendant pro sceeitie zed to commit breach of contract entered into between
- sai and ier. now the 3 defendant cannot be said to be a bonafide a pur chaser | tor value without notice particularly when even after ten years, on the 1° defendant resorted to sell the property to the 3° defendant for Rs.4 m fre oy bees ented bes haf was agreed to be sold to lakhs only Le.. for Rs.50.000/- more from 4 om ° . - : ? rad > > - : -
Further, the admission by DW 4 / 3" defendant that he. came to know that there is an agreement entered into with the plginuu by the T° deiendant and that that agreement has been cancelled. and "that the | defendant had obtained Rs.50,000/. as advance, especially "in para of the cross-cxamination, are vital admissions which males tt clear that he had knowledge of the transaction between the p lain Hf and P " defendant and that he is not a bonafide pare 'chaser for: value without nouce, Since the agre eon: 'nt uit ; x, Pi 'is iesutl icigitly stamped, to make it a valid document, _ plant shail have pay the stamp duty as per requirement of the Stamp Act.
Inwiew OF thé discussicns made above. pomlts raised are answered . accor dingly App peats are aHewed. 'The impugned judement and decree pasted "fefusinis. thei unction and dismissal of the suit for specific perlormance -areset aside. The defendants are permanently injuncted ~-frem interfering with the peaceful possession and enjoyment of the property py the plaintiff. It is hereby declared thai the sale deed executed by "Rathmavathi in favaur of M Sudarshan Mus 'hy is void and not binding on the plaintiff, as such, it is ordered as be cancelled. A; direction be issued Io, pa oe to the Sub-Registrar concerned to cancel the sale deed emered LG between the Rathnavathi and M Sudarshan Murthy. It is. Fini directed that defendants Rathnavathi and M Sudarshi an Moriny a shail join arid execule the sale deed in favour of the p slainult, | nowev ever _ y receiving Rs. lakhs as ordered above. It is for ihe plaintiff O deposit Re 4 Jakhs Wilh in : three months from the date oF recerpt of ceztfied copy of ibis order and she shall also bear the regi: urétion. Scere the event the said Rathnavathi and M Sudarshan: Muithy : a9 Hot 104 cone orvar iO execute the sale deed n tavou: oft the. pi simi, is is for the trial court to make arrangements to get' 'thie, sale deed executed in plaintiff's favour through the court. In the circhensiancés, parties to bear their own costs. Tt is for the plaintiff to-nay the stainp floey on the a agreement in accordance with law, ER >