Karnataka High Court
T L Swamy vs Sri M. Shanmugum on 3 March, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.No.2366/2018 (SP)
BETWEEN:
1. T.L.SWAMY
S/O LINGAIAH
AGED ABOUT 73 YEARS
2. SMT. KAMALAMMA
W/O T.L.SWAMY
AGED ABOUT 66 YEARS
3. T.S. SUNILKUMAR
S/O T.L. SWAMY
AGED ABOUT 41 YEARS
4. T.S. SOWMYA
D/O T.L. SWAMY
AGED ABOUT 39 YEARS
5. T.S. RAMYA
D/O T.L.SWAMY
AGED ABOUT 37 YEARS
6. T.S. DIVYA
D/O T.L. SWAMY
AGED ABOUT 36 YEARS
7. BABY @ VIKAR
D/O T.L. SWAMY
AGED ABOUT 9 YEARS
MINOR
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REPRESENTED BY HER
MOTHER AND NATURAL
GUARDIAN - T.S.SOWMYA.
ALL ARE R/O. THORESHETTYHALLI
VILLAGE, ATHAGUR HOBLI,
MADDUR TALUK
MANDYA DISTRICT-571 428 ... APPELLANTS
(BY SRI SREEVATSA S., SENIOR COUNSEL FOR
SRI SOMASHEKAR KASHINATH, ADVOCATE)
AND:
SRI M. SHANMUGUM
S/O LATE MANIKYAM
AGED ABOUT 56 YEARS
R/O # 73/1, 6TH MAIN ROAD
HOSATHIPPASANDRA POST
MALLESHWARAPALYA EXTENSION
MARUTHINAGARA
BENGALURU CITY-560 068. ... RESPONDENT
(BY SRI T.SESHAGIRI RAO, ADVOCATE)
THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DATED 24.09.2018
PASSED IN R.A.NO.15/2018 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MANDYA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 09.02.2018 PASSED IN OS.NO.33/2011 ON THE FILE OF
THE SENIOR CIVIL JUDGE, MADDUR.
THIS R.S.A., HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.02.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging the judgment and decree dated 09.02.2018, passed in O.S.No.33/2011, on the file of the Senior Civil Judge, Maddur, granting the relief of specific performance and also questioned the judgment and decree dated 24.09.20128 passed in R.A.No.15/2018 on the file of the V Additional District & Sessions Judge, Mandya, confirming the judgment and decree of the Trial Court.
2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of this Court.
3. The factual matrix of the case of the plaintiff before the Trial Court is that the defendants have agreed to sell the suit schedule property for a sale consideration of Rs.5,18,000/- and received an amount of Rs.1,00,000/- out of sale consideration through a Bank Draft. The defendants have agreed to execute the regular Sale Deed within nine months from the date of sale agreement and it was noticed that in the akarband the extent 4 was mentioned as 0.19 guntas instead of 18½ guntas and the resurvey also was in progress. In the meantime, defendant Nos.1 to 3 have approached the plaintiff on 14.09.2007 and requested him to pay Rs.1,00,000/- out of the remaining sale consideration and the same was paid. In total, paid an amount of Rs.2 Lakhs. Again on 05.02.2010, defendant No.1 came to the plaintiff and requested him to pay Rs.50,000/- and accordingly made the payment of Rs.50,000/-. In total, they made the payment of Rs.2,50,000/- out of sale consideration of Rs.5,18,000/-. The mistake was rectified in the month of June 2010. After that, the plaintiff had demanded the defendants to execute the sale deed in terms of the agreement of sale. But the defendants did not come forward to execute the sale deed. Hence, the plaintiff issued a legal notice dated 05.08.2010, in turn, the defendants issued an untenable reply. It is also contended that while issuing the notice, the payment of Rs.50,000/- made was not mentioned. Hence, another notice was issued on 17.08.2010, the same was also served on him and replied to the said notice and denies the execution of documents
- Exs.P2 and P3.
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4. The defendants in the written statement admitted the execution of sale agreement dated 16.07.2007, but contended that the plaintiff had taken the signature of defendant Nos.1 to 3 on the foot of the stamp paper of Rs.50/- by stating that it is required for submitting the same before the revenue authority for getting the rectification of the mistake in the akarband and the plaintiff had also obtained the signatures of the defendant Nos.4 to 6 on the other side of the said stamp papers and the plaintiff has utilized the same in creation of the documents - Exs.P2 and P3. It is contended that they have not executed the documents-Exs.P2 and P3 and totally denied the documents - Exs.P2 and P3 and also contended that the suit is barred by limitation. A specific defense was taken that the alleged agreement dated 14.09.2007 and the documents - Exs.P5 to 10 are created and concocted. Based on the pleadings of the parties, the Trial Court framed the issues and also the additional issues. The plaintiff in order to prove his case examined himself as P.W.1 and got examined two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to
20. On the other hand, defendant No.1 got examined himself as 6 D.W.1 and got marked the documents at Exs.D.1 to 16. The Trial Court after considering both oral and documentary evidence placed on record has decreed the suit and answering the issues on limitation as negative and the contention is that the alleged agreements dated 14.09.2007 and 05.02.2010 are concocted and created documents and came to the conclusion that the plaintiff has proved the defendants have taken lot of time to get the mistake rectified in the revenue and survey records and granted decree. Being aggrieved by the said judgment and decree, an appeal in R.A.No.15/2018 was filed. The grounds urged before the First Appellate Court are that the Trial Court failed to consider the evidence in a proper perspective and committed an error in accepting the case of the plaintiff and not accepted the case of the defendants. Hence, the First Appellate Court also formulated the point that whether it requires interference of the judgment and decree and answered the same as negative and came to the conclusion that the plaintiff has proved the case and also the Trial Court considered the material on record and not committed an error. Hence, the present second appeal is filed before this Court.
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5. This Court after hearing the matter at the time of admission framed the following two substantial questions of law:-
1) Whether the appellate Court has failed to formulate appropriate point for determination as regards the question of limitation, and if the appellate Court has failed to formulate appropriate point for determination in this regard as it resulted in mis-carriage of justice.
2) Whether the appellants could succeed in the defence on the ground that the respondent's suit would not be saved even if Ex.P3 is held to be proved because the same is executed by only the appellant No.1 and not by others.
6. When this matter is listed for final hearing, the learned counsel appearing for the appellants would vehemently contend that both the Courts have committed an error in accepting the case of the plaintiff and not given anxious consideration to the material on record. The learned counsel would submit that in terms of Ex.P1, it is not in dispute that the time was stipulated for a period of nine months. It is also not in dispute that the fact in terms of the said agreement, an amount of Rs.1 Lakh was received as earnest money, but contended that 8 the documents - Exs.P2 and P2 are created and concocted and particularly, the learned counsel would submit that Ex.P3, is denied. The learned counsel also would vehemently contend that Ex.P3 does not renew the period of limitation and the same is also allegedly acknowledged by one of the party to the agreement and the same does not extend the limitation. The learned counsel also would vehemently contend that both the Courts have not compared the signature by exercising the power under Section 73 of the Evidence Act. The learned counsel would vehemently contend that no point for consideration in the appeal regarding limitation is concerned. The learned counsel also would contend that not compared with the admitted signatures and the First Appellate Court not appreciated the evidence in a proper perspective. The learned counsel would submit that the sale agreement was entered on 16.07.2007 and the time is also mentioned as nine months and the suit is filed after three years. Hence, the suit is barred by limitation. The learned counsel would contend that Section 18 of the Limitation Act is very clear that the acknowledgement must be made before expiry of the period of limitation and an acknowledgement made 9 by only one person and not signed the said endorsement and attestation only by one and not by all.
7. The learned counsel appearing for the appellants in support of his arguments would contend that this Court has to frame the additional substantial question of law since the Trial Court ought to have compared the admitted signature of the first appellant with the signature on Ex.P3 under Section 73 of the Evidence Act and failure to do so in an illegality resulting in miscarriage of justice and ought to have framed the substantial question of law before this Court while admitting the appeal. Hence, this Court has to frame the additional substantial question of law. The learned counsel also would vehemently contend that the other additional substantial question of law has to be framed whether the appreciation of evidence on record by the Trial Court is perverse and also the learned counsel would contend that whether both the Courts erred in not treating the time is the essence of the Contract as regards the payment of agreed sale price and this Court ought to have dismissed the case of the plaintiff. Both the Courts have failed to exercise the 10 jurisdiction vested with them to balance equities considering the agreement to sell dated 16.07.2007.
8. The learned counsel appearing for the appellants in support of his arguments he relied upon the judgments of the Apex Court in the case of Saradamani Kandappan v. S. Rajalakshmi and others reported in (2011) 12 SCC 18; in the case of Chand Rani (Smt) (Dead) by Lrs. v. Kaml Rani (Smt) (Dead) by Lrs. reported in (1993) 1 SCC 519; in the case of K.S. Vidyanadam and others v. Vairavan reported in (1997) 3 SCC 1; in the case of Nirmala Anand v. Advent Corporation (P) Ltd. and others reported in (2002) 8 SCC 186 and in the case of Murari Lal v. State of Madhya Pradesh reported in (1980) 1 SCC 704.
9. The learned counsel appearing for the appellants relying upon these judgments would vehemently contend that this Court can frame the additional substantial question of law, which have not been framed at the time of admission and the Court can frame substantial question of law under Section 100(5) of CPC, wherein, the proviso is very clear that the appeal 11 shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question and further proviso says that while hearing the appeal the Court can record the reasons and the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question can form fresh question of law at the time of hearing.
10. Per contra, the learned counsel appearing for the respondent/plaintiff in his arguments he vehemently contend that the defendants have denied the documents - Exs.P2 and P3, but they have admitted Ex.P1 - Sale agreement. The main contention is that the plaintiff had obtained the signature of the defendants in order to get it rectify the revenue and survey records and the same has been made use of the documents - Exs.P2 and P3, but the learned counsel would contend that the Court has to see the stamp paper dated 13.09.2007 and not that of date of the sale agreement dated 16.07.2007. The stamp paper was purchased on 13.09.2007 and executed document - Ex.P2 on 14.09.2007 and the same is also taken note by the 12 Trial Court as well as the First Appellate Court. The learned counsel also would submit that Ex.P3 is an endorsement executed by one of the defendants while acknowledging the additional amount of Rs.50,000/-, wherein, the reason for receiving the additional amount is specifically mentioned that there was a delay of rectification of the document from the survey department and revenue department and the Court has to see the recitals of the document - Ex.P3. The learned counsel also would submit that the document was rectified in the month of June 2010 and thereafter the defendants did not come forward to execute the Sale Deed. Hence, a legal notice was issued. The learned counsel would submit that the second notice was issued only when they have noticed that the payment of Rs.50,000/- was not stated in the earlier notice. Hence, one more notice was issued. But the defendants denied the very execution of documents - Exs.P2 and P3, but not taken any steps to prove the defense. Both the Courts have given the reasons. Both the Courts have also taken note of the answers elicited from the mouth of D.W.1 with regard to execution of the document and the reason for delay in getting the document 13 rectified from the revenue department and survey department. The learned counsel also would submit that defendant No.1 was only filed the written statement and other defendants adopted the same by filing a memo. Both the Courts have given the anxious consideration to the material available on record and given the finding.
11. In reply to the arguments of the learned counsel appearing for the respondent, the learned counsel appearing for the appellants has relied upon the judgment of the Apex Court in the case of Gurubasappa and others v. Gurulingappa reported in AIR 1962 MYSURU 246, and brought to the notice of this Court the principles laid down in the judgment with regard to Sections 91 and 92 of the Evidence Act, 1872. The learned counsel also would vehemently contend that Exs.P1 to P3 not stated anything about error in the revenue and survey documents and only the same is created. Hence, it requires interference.
12. In reply to the arguments of the learned counsel appearing for the appellants, the learned counsel appearing for 14 the respondent would submit that Ex.D1 is very clear that it is 18½ guntas. Ex.P17 shows that there was a discrepancy and mutation came into existence on 26.03.2010 and correction was made and a legal notice was issued to the defendants after the said correction.
13. The learned counsel appearing for the respondent in support of his arguments, he relied upon the judgment of the Apex Court in the case of Silvey and others v. Arun Varghese and another reported in (2008) 11 SCC 45, and also brought to the notice of this Court in paragraph No.14 that as regards the false plea of the defendants, the effect needs to be noted. The Court has to take note of the conduct of the defendant and the same cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance.
14. Having heard the respective counsel and also on perusal of the material available on record, this Court already framed two substantial questions of law which have been referred above and the other contention of the learned counsel 15 appearing for the appellants is that this Court has to frame the additional substantial question of law with regard to exercising of the power under Section 73 of the Evidence Act with regard to comparing of the signature available on Ex.P3 and whether appreciation of evidence on record by the Trial Court is perverse and the time is the essence of the contract as regarding payment of the agreed sale price.
15. The substantial question of law sought to be framed while considering this appeal by the learned counsel appearing for the appellants is with regard to appreciation of the evidence available on record, particularly, the document of Ex.P3, wherein, an acknowledgment is made by one of the defendants for having accepted the additional amount of Rs.50,000/-. These are the materials is in respect of question of fact and whether the judgment of the Trial Court and the First Appellate Court amounts to perversity also to be considered while considering this appeal on merits. While considering the substantial questions of law, which have already been framed, this Court can take note of Section 73 of the Evidence Act also. 16 Hence, I do not find any good ground to frame any additional substantial question of law as contended by the learned counsel for the appellants.
16. The substantial questions of law already framed by this Court while admitting the appeal particularly in respect of limitation i.e., non-framing of appropriate point for consideration in respect of question of limitation and whether the same resulted in miscarriage of justice. The other substantial question of law is whether the appellants could succeed in the defence on the ground that the respondent's suit would not be saved even if Ex.P3 is held to be proved because the same is executed by only the appellant No.1 and not by others.
17. The additional substantial question of law sought to be framed by the learned counsel appearing for the appellants is also particularly in respect of Ex.P3 i.e., comparing of the signature. In keeping these two substantial questions of law, this Court has to analyse the material available on record. No doubt, the Trial Court and the First Appellate Court have accepted the evidence of plaintiff. It has to be noted that the defendants 17 have admitted the execution of sale agreement in terms of Ex.P1. But only contention is that the signatures are obtained on a stamp paper of Rs.50/- and in order to rectify the mistake crept in the revenue records as 18½ guntas and 19 guntas in the revenue records as well as in survey records but the learned counsel appearing for the respondent brought to the notice of this Court that the stamp paper was purchased on 13.09.2007 and the document - Ex.P2 executed on 14.09.2007. Hence, the very contention of the defendants that the signatures are obtained on the blank stamp paper while entering into an agreement cannot be accepted and the very contention is that the same was created and concocted also has not been proved. Both the Courts have taken note of the fact that in one breadth, they deny their signatures and in another breadth they contend that the signatures are forged. But it is admitted that the signatures are obtained on the blank stamp paper, the same has to be proved by the defendants but not proved the same and even not sent the documents to the Handwriting Expert and also not examined any witnesses about obtaining the signatures on the blank papers.
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18. The other document is Ex.P3. On reading of Ex.P3, it is very clear that additional amount of Rs.50,000/- is received in the year 2010 by executing the shara. The Court has to take note of the contents of document - Ex.P3, wherein, also in the month of February expressed the difficulty in getting the documents rectified from the Revenue Department. It is pertinent to note that Ex.P20 is very clear that subsequent to endorsement of Ex.P3, the documents are rectified in the month of June 2010. This fact also has been taken note of by the Trial Court as well as the First Appellate Court while considering the material on record.
19. Now, the question before the Court is with regard to the limitation is concerned. I have already pointed out that the contents of the document - Ex.P3 has to be taken note of and though they have denied the documents - Exs.P2 and P3, both the Courts have taken note of the signatures found on the documents - Exs.P1 to P3 and taken note of the fact that the similar signatures are found and this Court also taken note of the signature available on Ex.P3 and the same is similar to the 19 documents - Exs.P1 and P2. Hence, it is clear that one of the defendant executed the shara by receiving an amount of Rs.50,000/- in the month of February 2010. The very contention of the learned counsel appearing for the appellants is that the execution of shara by one of the defendant cannot renew the same and the said contention cannot be accepted. It has to be noted that on the date of the sale agreement they have received an amount of Rs.1 Lakh by way of demand draft and also executed the document - Ex.P2 within a period of nine months and received an additional amount of Rs.1 Lakh and the same is signed by three family members. Though contend that they have not executed the document and received any amount, but they have not taken any steps to disprove the document - Ex.P2. Ex.P3 is executed by one of the executant of the agreement of sale wherein he has received the amount of Rs.50,000/- and stated regarding the difficulty in getting the document executed. The learned counsel appearing for the appellants would contend that the same does not extend the limitation and the said contention cannot be accepted and while executing the document - Ex.P2, three defendants have executed the 20 document. In terms of Ex.P1, all of them have executed the document and in Ex.P3 one of the family member, who is the party to Ex.P1 attested the endorsement while receiving the additional amount of Rs.50,000/-.
20. Now, they cannot contend that Ex.P3 does not revive the limitation and the said acknowledgement is also before the period of three years of the agreement i.e., Ex.P1. When such material is available before the Court, the very contention of the learned counsel appearing for the appellants cannot be accepted. The Court also takes note of the conduct of the parties while exercising the discretion under Section 20 of the Specific Performance Act. The material discloses that there was an error in the revenue and survey records in Akarband and RTC and measurement varies with each other. Exs.P11 and 17 discloses the same. In terms of Ex.P20, the mistake was corrected in the month of June 2010 and thereafter the dispute has arisen between the parties. Hence, a suit was filed.
21. The substantial question of law raised by this Court is whether the appellants could succeed in the defence on the 21 ground that the respondent's suit would not be saved even if Ex.P3 is held to be proved because the same is executed by only the appellant No.1 and not by others. But, in the case on hand, it has to be noted that the written statement was filed by defendant No.1 and the written statement filed by defendant No.1 was adopted by other defendants. When such being the material on record when defendant No.1 executed the document of Ex.P3 and both the Courts came to the conclusion that the signature found on Ex.P3 is that of the signature of defendant No.1, comparing the signature available in Exs.P1 and P2 and no doubt the Court cannot act as an Expert in comparing the signature, but the Court can exercise the powers under Section 73 of the Evidence Act. Both the Courts have taken note of the same and found similarity in the signature of defendant No.1 in Exs.P1 to P3. Hence, the very contention that Section 18 will not attract to save the limitation and the suit is barred by limitation cannot be accepted and the suit is within the Article 54 of the Limitation Act and the same is in second limb of Article 54 since the documents are not in order and the same is rectified only in the month of June, 2010.
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22. The Court can compare the signature under Section 73 of the Evidence Act and no need to frame other substantial question of law with regard to comparing of signature as contended by the learned counsel for the appellants during the course of arguments. Both the Courts have given anxious consideration to the material available on record i.e., Exs.P1 to P3, which are the relevant documents. Both the Courts have taken note of the conduct of the defendants. In Ex.P3, it is specifically mentioned that their family members have entered into sale agreement on 16.07.2007 and acknowledge the receipt for a sum of Rs.2 Lakhs and also specifically mentioned that no proper records in the office of Tahasildar and also the Survey Department and sought time to get the Khatha. Hence, he was in need of the amount and acknowledged the amount of Rs.50,000/-. In total he had received an amount of Rs.2,50,000/-. The plaintiff also in order to prove the documents examined PWs.2 and 3, who are the attesting witnesses as well as the scribe of the documents and substantiated their case regarding execution of sale agreement.
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23. In terms of Ex.P3, it is specifically mentioned that the family members have entered into a sale agreement and also admitted the records are not in order in the office of Tahasildar as well as Survey Department and sought time to execute the Sale Deed after obtaining proper Khatha in their favour. Ex.P20 is also very clear that the order was passed on 26.03.2010 for change of RTC and an order was passed in RRCR 860/09-10. The said order was passed on 26.03.2010 and effected the change of name in the month of June 2010. Hence, the contention of the learned counsel for the appellants cannot be accepted.
24. In the cross-examination of D.W.1 also, he categorically admitted that there was no any ill will between the attestors of the document and scribe of the document; only denies that he has not purchased the stamp paper on 13.09.2007. He categorically admits that there was a discrepancy in akarband and also RTC. But he claims that the said mistake was rectified within nine months. But in order to prove the same, no such documents are produced. But he 24 categorically admits that the same was rectified on 23.03.2010 in terms of Ex.P17 and he also admits that he gave an application and got it rectified on 26.03.2010. He also admits for having given one more notice mentioning payment of Rs.50,000/- and also he categorically admits the documents - Exs.D11 and D13 are prior to rectification of the document. It is also important to note that in the cross-examination he categorically admits that he has got the difficulty to execute the Sale Deed in terms of the Sale Agreement. He further says that at the time of executing the sale agreement he was having the problems but now he has not having the said problem. Hence, he says that he is not ready to execute the Sale Deed and all these admissions given by D.W.1 was taken note of by the Trial Court as well as the First Appellate Court. Hence, I do not find any perversity in the judgment of the Trial Court and the First Appellate Court in appreciating both oral and documentary evidence placed on record and these are the admissions, which takes away the contention that the suit is barred by limitation as contended.
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25. The other contention is that the First Appellate Court has not framed the proper point for consideration with regard to the limitation is concerned. The Trial Court has framed the issue regarding limitation and the same is answered that the suit is within the time considering the document of Ex.P3. This Court also found that Ex.P3 was signed by defendant No.1 and received the amount on behalf of all and the suit is within the time. On perusal of the grounds urged before the First Appellate Court with regard to the limitation is concerned, no such ground was urged and the First Appellate Court taking into note of the grounds urged in the appeal formulated the point whether the judgment and decree of the Trial Court requires interference. When such being the case, the very contention is that not framing the proper point for consideration with regard to the limitation cannot be accepted and the material also taken note of by both the Courts whether the suit is barred by limitation or not and given a definite finding considering Exs.P1 to 3. Hence, I do not find any merit in the second appeal to interfere with the findings of the Trial Court as well as the First Appellate Court and the substantial questions of law answered accordingly. 26
26. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE cp*