Karnataka High Court
Sanjeevappa vs Smt Nagamma on 21 April, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1310/2018 (SP)
BETWEEN:
SANJEEVAPPA
DEAD BY LRS
1. SRI HANUMANTHARAYAPPA
DEAD BY LRS
1(a) SMT. RAJAMMA
W/O. LATE HANUMANTHARAYAPPA
AGED ABOUT 45 YEARS
1(b) SMT. RANJITHA
D/O. LATE HANUMANTHARAYAPPA
AGED ABOUT 25 YEARS
R/O. MARASAMBODI VILLAGE
AGALI MANDAL,
MADAKASIRA TALUK
ANANTHAPURA DISTRICT
ANDHRA PRADESH
1(c) SRI PUNITH
S/O. LATE HANUMANTHARAYAPPA
AGED ABOUT 16 YEARS
SINCE MINOR
REPRESENTATED BY HIS MOTHER
AND NATURAL GUARDIAN
SMT. RANGAMMA
W/O. LATE HANUMANTHARAYAPPA
2
1(a) AND 1(c) ARE RESIDENTS OF
DODDERI VILLAGE, DODDERI HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT-572 112.
2. SRI. BHEEMARAJU
S/O. LATE SANJEEVAPPA,
AGED ABOUT 64 YEARS
FLOWER MERCHANT
R/O. BADAVANAHALLI VILLAGE,
DODDER HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT-572 112
3. SMT. RATHNAMMA
D/O. LATE SANJEEVAPPA,
W/O. THIMMAPPA
AGED ABOUT 64 YEARS
R/O. BOPPANADU,
SIRA TALUK,
TUMKUR DISTRICT-572 112
4. SMT. JAYAMMA
D/O. LATE SANJEEVAPPA,
W/O. RANGADHAMAPPA,
AGED ABOUT 61 YEARS
R/O. NARASAMBHOODHI VILLAGE,
AGALI MANDALA,
MADAKASIRA TALUK,
ANANTHAPURA DISTRICT
ANDHRAPRADESHA STATE-515 301.
5. SMT. SHARADAMMA
D/O. LATE SANEJEEVAPPA
W/O. NARASAPPA
AGED ABOUT 59 YEARS
R/O. CHANNANAKUNTE,
SIRA TALUK,
TUMKUR DISTRICT-572 137.
3
6. SMT.VANAJAKSHI
D/O. LATE SANJEEVAPPA,
W/O. LAKSHMANA
TEACHER,
AGED ABOUT 46 YEARS
R/O. SANTHEPETE,
SIRA TALUK,
TUMKUR DISTRICT-572 137.
7. SMT.SUNITHA
D/O. LATE SANJEEVAPPA,
W/O. LATE MUDDARAJU,
AGED ABOUT 41 YEARS
R/O. BOPPANADU,
SIRA TALUK
TUMKUR DISTRICT-572 137.
... APPELLANTS
(BY SRI G.S.VENKATASUBBA RAO, ADVOCATE)
AND:
1. SMT. NAGAMMA
W/O. LATE CHIKKARANGAPPA
AGED ABOUT 76 YEARS
R/O. DODDERI VILLAGE,
DODDERI HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT-572 112.
SMT. SAROJAMMA (DEAD BY LRS)
2. SRI PARAMESHWARA
S/O. LATE SMT.SAROJAMMA
AGED ABOUT 46 YEARS
R/O. KUNAGANAHALLI VILLAGE,
THONDEBAVI HOBLI,
4
GOWRIBIDANUR TALUK,
CHIKKABALLAPUR DISTRICT-561 208. ... RESPONDENTS
(BY SRI A.V.GANGADHARAPPA, ADVOCATE FOR C/R1)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.11.2017
PASSED IN R.A.NO.5065/2016 ON THE FILE OF THE 4TH
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 26.09.2016 PASSED IN O.S.NO.42/2000
ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, MADHUGIRI.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.04.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. I have heard the learned counsel for the appellants and learned counsel for the caveator-respondent No.1.
2. The factual matrix of the case of the plaintiff before the Trial Court is that, defendant No.1 is the absolute owner of the suit schedule property and he had acquired the suit schedule property under a registered sale deed dated 12.01.1995 and 5 defendant No.1 has offered to sell the suit schedule property and the plaintiff agreed to purchase the same for a sale consideration of Rs.63,000/- and accordingly, the defendant No.1 received the advance amount of Rs.5,000/- and executed sale agreement in favour of the plaintiff. In the agreement of sale, it was mentioned that the plaintiff shall get the registered sale deed within three months by paying balance sale consideration amount of Rs.58,000/-. The plaintiff, after securing the balance consideration, approached the defendant No.1 to execute the sale deed, but, the defendant No.1 demanded more consideration and refused to execute the sale deed. Hence, the plaintiff got issued the legal notice dated 24.12.1999 asking the defendant No.1 to be present in the Sub-registrar office on 10.01.2000. The defendant No.1 refused to execute the sale deed. On the other hand, the defendant No.1, colluding with defendant No.2, who in his wife's name conducting civil disputes for the last 20 years against the plaintiff and inspite of knowledge of agreement in favour of the plaintiff, got executed nominal sale deed dated 10.01.2000. As on that date, the defendant No.1 had no saleable interest and by virtue of sale 6 deed, no right, title and possession passed to defendant No.2. On coming to know about nominal sale deed, the plaintiff got issued notice to both the defendants to execute the sale deed in her favour. The defendants failed to execute the sale deed and defendant No.1 had not taken the notice but, defendant No.2 though received the notice, has not given any reply. Hence, filed the suit seeking the relief of specific performance.
3. Pursuant to the suit summons issued to both the defendants, they appeared through their counsel and filed the written statement and in their written statement, except admitting that defendant No.1 was the owner, all other averments are denied. It is their contention that, defendant No.1 has not at all executed any agreement in favour of the plaintiff and her signatures have been forged and the alleged agreement has been concocted. It is contended that, on 17.08.1999, the defendant No.1 entered into an agreement with defendant No.2 to sell the suit property for a sum of Rs.55,000/- and received advance amount of Rs.5,000/- and pursuant to the said agreement, executed sale deed on 01.01.2000 and put 7 defendant No.2 in possession. By virtue of the sale deed, the mutation has been accepted in the name of defendant No.2 and RTC entries have been changed to his name and he is in enjoyment of the suit schedule property. Since, the alleged agreement in favour of the plaintiff false, there was no need to reply. Hence, prayed the Court to dismiss the suit.
4. Based on the pleadings, the Trial Court has framed the issues with regard to whether there was a sale agreement in favour of the plaintiff and received earnest money of Rs.5,000/- and whether defendant No.1 has executed nominal sale deed in favour of defendant No.2 and the sale deed is null and void and the same is not binding. In view of the defence taken by the defendants in the written statement, issues are also framed with regard to whether the defendant proves that the plaintiff has forged the signature of defendant No.1 on the alleged agreement of sale as contended and whether the plaintiff has been and is still ready and willing to perform her part of the contract and whether the plaintiff is entitled for the relief of specific performance.
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5. In support of the contention of the plaintiff, she examined the power of attorney holder as P.W.1 and other three witnesses as P.Ws.2 to 4 and got marked the documents as Exs.P1 to P4. On the other hand, the defendant No.2 examined his power of attorney holder as D.W.1 and two attestors as D.Ws.2 and 3 and got marked the documents Exs.D1 to D11.
6. The Trial Court, having considered the material on record, answered issue Nos.1 to 4 as 'affirmative', in coming to the conclusion that there was a sale agreement in favour of the plaintiff and amount of Rs.5,000/- was paid as advance money and defendant No.1 has executed nominal sale deed in favour of defendant No.2 and the sale deed executed by defendant No.1 in favour of defendant No.2 is void and not binding and also comes to the conclusion that the very contention that the plaintiff has forged the signature of defendant No.1 on the alleged sale agreement is not accepted and answered issue No.5 as 'negative' and granted the relief of specific performance in favour of the plaintiff.
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7. Being aggrieved by the judgment and decree of the Trial Court granting the relief of specific performance, an appeal is filed before the First Appellate Court in R.A.No.5065/2016. The First Appellate Court, having considered the grounds urged in the appeal memo, formulated the point whether the impugned judgment and decree is perverse, illegal, capricious and opposed to law and facts and it requires interference. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, answered the said point as 'negative' and confirmed the judgment of the Trial Court. Hence, the present second appeal is filed before this Court.
8. The main contention of the learned counsel for the appellants in this second appeal is that, both the Courts have committed an error in granting the relief of specific performance and erred in accepting the evidence of plaintiff through her power of attorney, who had no knowledge of the agreement of sale at all. The Trial Court also committed an error in coming to the conclusion that the plaintiff has proved execution of the agreement of sale, though none of the attesting witnesses to the 10 said agreement were not examined before the Court and failed to take note of the specific denial of the agreement of sale. It is also contended that the mode of proof of agreement to sell, as provided by the plaintiff was insufficient and the Court could not have relied upon the evidence of other witnesses, who are admittedly not attesting witnesses to come to the conclusion that the agreement of sale is proved. It is further contended that mere non-production of evidence by defendants would not either prove the agreement of sale or would contemplate that adverse inference has to be drawn against the defendants and the very approach of the Trial Court that the sale executed by defendant No.1 in favour of defendant No.2 is nominal and not binding is perverse finding.
9. It is contended that the Trial Court gravely erred in mainly relying upon the evidence of D.Ws.2 and 3, who are attesting witnesses to the registered sale deed, Ex.D4 and also committed grave error in coming to the conclusion that the plaintiff is ready and willing to perform her part of contract by answering issue No.6. It is further contended that the First 11 Appellate Court also committed an error in appreciating both oral and documentary evidence placed on record and even failed to frame a proper point for consideration and not discussed as to whether the relief of specific performance of agreement of sale is required to be granted in favour of the plaintiff and also no finding was given whether plaintiff was ready and willing to perform her part of contract. The First Appellate Court also erred in wrongly interpreting the evidence of the witnesses and further erred in doubting execution of the very sale deed in favour of the defendant No.2 which is not at all in serious dispute and committed an error in accepting the judgment of the Trial Court, in coming to the conclusion that there was a sale agreement in favour of the plaintiff. The First Appellate Court also gravely erred in comparing the signature of the parties through naked eye which was hazardous and the very approach of both the Courts is erroneous and this Court has to frame substantial questions of law whether both the Courts were justified in granting the relief of specific performance, in the absence of any material to show that the plaintiff was ready and willing to perform her part of contract and whether both the 12 Courts were justified in holding that the sale in favour of the defendant No.2 on 01.01.2000 is nominal.
10. Learned counsel for the appellants also in his argument would vehemently contend that the sale agreement was allegedly executed on 14.10.1999 to the extent of 1 acre, 3 guntas for a sale consideration of Rs.63,000/- and paid advance amount of Rs.5,000/- and balance payable was Rs.58,000/-. It is the contention of the plaintiff that, three months time was fixed to execute the sale deed. The counsel would submit that, legal notice was issued on 24.12.1999 and the defendant No.1 denied the very execution of the sale agreement. Apart from that, it is the specific contention that the plaintiff was not ready to have the sale deed and there is no pleading with regard to the same and also not proved the readiness and willingness and inspite of it, both the Courts committed an error in directing the defendants to execute the sale deed. The very finding with regard to the readiness and willingness is without any discussion and committed an error. The counsel would submit that, in order to prove the sale agreement also, no material is placed as 13 to examination of any attesting witnesses. The counsel also would contend that the power of attorney holder has been examined and he was not having any personal knowledge and both the Courts have not given any finding with regard to the fat that the appellant is the bonafide purchaser and issue No.6 is not discussed and regarding readiness and willingness also, the First Appellate Court has not discussed anything. It is further contended that the First Appellate Court also, not applied its mind and both the Courts failed to consider the material on record. The counsel would vehemently contend that the Trial Court relied upon the judgment in MMS INVESTMENTS, MADHURAI AND OTHERS VS. V. VIRAPPAN AND OTHERS reported in AIR 2007 SC 2663 and the same is not applicable to the facts of the case on hand.
11. In support of his argument, learned counsel for the appellants also relied upon the judgment in B. VIJAYA BHARATHI VS. P. SAVITRI AND OTHERS reported in (2018) 11 SCC 761 and would vehemently contend that this judgment is aptly applicable to the facts of the case on hand and brought 14 to notice of this Court Para Nos.12 and 13 and contend that, in Para No.13, the Apex Court has discussed with regard to the judgment in M.M.S. INVESTMENTS VS. V. VEERAPPAN and also observed that, there would be no bar for the appellant to raise any issue on merits of the appeal on the facts of that case except the defence of readiness and willingness as provided under Section 16(c) of the Specific Relief Act. The counsel also brought to notice of this Court Para No.14, wherein the Apex Court discussed with regard to the said judgment and also brought to notice of this Court Para No.15, wherein the Apex Court discussed with regard to the judgment in RAM AWADH VS. ACHHAIBAR DUBEY reported in (2000) 2 SCC 428 and extracted relevant Para No.6, wherein discussion is made with regard to Section 16(c) of the Specific Relief Act.
12. The counsel also brought to notice of this Court Para No.17, wherein an observation is made that, though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the sale made by 15 Defendant 1 to Defendant 2, and thereafter by Defendant 2 to Defendant 3 are set aside and no decree for specific performance could possibly follow.
13. The counsel also relied upon the judgment in PADMAKUMARI AND OTHERS VS. DASAYYAN AND OTHERS reported in (2015) 8 SCC 695 and brought to notice of this Court Para No.11, wherein the Apex Court discussed with regard to Clause 3 of Form 47 in Appendix A which provides that the plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. The counsel also brought to notice of this Court Para No.12, wherein an observation is made that the plaintiff has not shown readiness and willingness which is the condition precedent as required under Section 16(c) of the Specific Relief Act, that has been ignored by both the Courts below, therefore, the concurrent finding recorded by the High Court in the absence of this important aspect of the case has not only rendered the finding erroneous in law but the same are contrary to the judgments of this Court.
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14. The counsel also relied upon the judgment in MAN KAUR (DEAD) BY LRS. VS. HARTAR SINGH SANGHA reported in (2010) 10 SCC 512 and brought to notice of this Court Para No.17, wherein the Apex Court has observed that, to succeed in a suit for specific performance, the plaintiff has to prove (a) that a valid agreement of sale was entered into by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. The counsel also brought to notice of this Court Para No.18, wherein it is observed that, if the attorney- holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions.
15. The counsel also relied upon the judgment in U.N. KRISHNAMURTHY (SINCE DECEASED) THR. LRS. VS. A.M. KRISHNAMURTHY reported in 2022 SCC ONLINE SC 840 and brought to notice of this Court Para No.46, wherein the Apex 17 Court has observed that, it is settled law that for relief of specific performance, the plaintiff has to prove the all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. The counsel also relied upon Para No.47, wherein the Apex Court has observed that acceptable evidence has not been placed on record to prove his readiness and willingness which disentitles granting the relief of specific performance.
16. The counsel also relied upon the judgment in MALLURU MALLAPPA (D) THR. LRS. VS. KURUVATHAPPA AND ORS. reported in AIR 2020 SC 925 and brought to notice of this Court that, while granting the relief of specific performance, it is the settled position of law that an appeal is a continuation of the proceedings of the original Court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person, the judgment of the first appellate Court must display conscious application of mind and record findings supported by reasons on all issues and contentions. The counsel also brought to notice of this Court 18 Para No.15, wherein it is observed that a first appeal under Section 96 of the CPC is entirely different from a second appeal under Section 100 and Order XLI, Rule 31 of the CPC provides the guidelines for the appellate Court to decide the matter. The counsel relying upon this judgment would vehemently contend that the First Appellate Court has not properly exercised the appellate jurisdiction.
17. The counsel also relied upon the judgment in MURTHY AND OTHERS VS. C. SARADAMBAL AND OTHERS reported in (2022) 3 SCC 209 and brought to notice of this Court Para Nos.62 and 63, wherein the Apex Court has discussed as to how the regular first appeal is to be disposed of by the appellate Court/High Court and counsel also would contend that the Apex Court also observed that, Rule 31 mandates that the judgment of the appellate Court shall state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
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18. Learned counsel appearing for the appellants, referring all these judgments would vehemently contend that, first of all, the plaintiff has not complied with Section 16(c) of the Specific Relief Act and both the Courts failed to consider the material on record and the First Appellate Court also not exercised the appellate jurisdiction in a proper perspective. Hence, it requires interference at the hands of this Court.
19. Per contra, learned counsel appearing for the caveator- respondent No.1 would vehemently contend that the defendant No.2 is none other than the brother of the plaintiff. The counsel would submit hat, in terms of the sale agreement, three months time was fixed to execute the sale deed. The defendant No.2 was having the knowledge of sale in favour of the plaintiff. The counsel also would submit that, before the period of three months mentioned in the sale agreement, legal notice was issued and in the legal notice, directed the defendant No.1 to come and execute the sale deed. The evidence is very clear that, she went to Sub-registrar office in terms of the legal notice issued in the month of December itself and defendant 20 No.1 did not turn up. The plaintiff specifically pleaded in Para No.5 of the plaint that, she was ready and willing to perform her part of contract and in Para No.10 also, pleaded that she was always ready and willing to perform her part of contract. Now, the counsel cannot contend that no pleading and proof with regard to the same and the very issuance of the legal notice itself is a proof with regard to readiness and willingness and notice was issued within three months and hence, cannot contend that the plaintiff was not always ready and willing to perform her part of contract.
20. The counsel also would contend that, in the written statement, there is total denial of the execution of the sale agreement, including the signature and it is contended that, sale agreement was forged. The son of the defendant No.1 filed the written statement and in Para No.4, there is an admission regarding execution of the sale agreement. The very contention that the sale agreement has not been proved cannot be accepted. When there is an admission regarding execution of 21 the sale agreement in the written statement itself, they cannot find fault with the same.
21. The counsel would vehemently contend that, P.W.1 is none other than the son of the plaintiff and he had the knowledge about the sale transaction and hence, there was no bar in examining the power of attorney holder. The counsel also would submit that, the witnesses are also examined in support of the case of the plaintiff i.e., P.W.2, the scribe, P.W.3, attestor and P.W.4 is the son of the attestor since, the attestor was no more. The P.W.1 has given reason for non-examination of his mother and having given the reason that he was very much present at the time of sale transaction and hence, cannot find fault with the same and the P.W.1 had complete knowledge of the transaction. In the cross-examination, there is a total denial and no suggestion in the cross-examination with regard to the capacity is concerned. P.W.1 has not tendered himself for cross- examination since, he is also an attesting witness to the sale deed executed in favour of defendant No.2 by the defendant No.1. The scribe has died and hence, his son has been 22 examined. D.W.1 has also denied the signature and does not say anything that signature is forged, though took the specific defence.
22. The counsel would vehemently contend that defendant No.1 has not entered into the witness box and son of the defendant No.1 has entered into the witness box and in the cross-examination, he categorically admitted with regard to the previous litigation and they are not in good terms with the plaintiff and though denies the signature but, identifies the same and hence, the same is marked as Ex.P1(a). D.W.2 also in the cross-examination admits the signature of defendant No.1. D.W.3 also admits the signature of defendant No.1 and both the Courts have taken note of the fact that though sale deed was executed subsequent to the issuance of legal notice, but there was no reference of earlier sale agreement. It is their claim that, earlier there was a sale agreement prior to execution of sale deed by defendant No.1 in favour of defendant No.2 and the sale deed does not disclose the same.
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23. The counsel would vehemently contend that the Trial Court has given reasons and the finding is also based on the material on record and no substantial question of law arises for consideration before this Court and the First Appellate Court has also given reasons and in elaborate discussed regarding entering into sale agreement and also the fact that nominal sale deed was executed in favour of his relative and the amount received is also nominal compared to the sale consideration mentioned in the document of sale agreement executed in favour of the plaintiff and in the sale deed and both the Courts have taken note of the conduct of the parties.
24. In reply to the arguments of the learned counsel for the caveator-respondent No.1, learned counsel for the appellants reiterate that Section 16(c) of the Specific Relief Act has not been considered by the First Appellate Court and both the Courts failed to consider Section 16(c) of the Specific Relief Act and after four months, the suit is filed and discretion is not properly exercised by the Trial Court as well as the First Appellate Court. Hence, this Court has to frame substantial question of law. 24
25. Having heard the respective counsel and also on perusal of the material available on record, the following substantial questions of law arise for consideration before this Court:
(1) Whether both the Courts have committed an error in granting the relief of specific performance without considering the pleading and proof of compliance of Section 16(c) of the Specific Relief Act?
(2) What order?
Point No.(1)
26. Having considered the material on record, the judgments relied upon by the learned counsel for the appellants (supra) and the principles laid down in the said judgments, there is no dispute with regard to the fact that, while granting the relief of specific performance, the basic ingredient is readiness and willingness in obtaining the sale deed, apart from the very execution of the sale agreement and whether the discretion has been exercised judiciously. Keeping this question of fact and 25 question of law in mind, this Court has to consider the material on record.
27. It is the contention of the plaintiff that the defendant No.1 has executed the sale agreement in favour of the plaintiff on 14.10.1999 for a sale consideration of Rs.63,000/- and paid earnest money of Rs.5,000/- and balance payable is Rs.58,000/. It is also not in dispute that, in the sale agreement, three months time is stipulated to complete the sale transaction. Within a period of three months, the plaintiff had caused the legal notice against the defendants in terms of Ex.P3 i.e., on 24.12.1999. The postal receipt is produced as Ex.P4 and un- claimed RPAD cover is produced as Ex.P5. It is also not in dispute that copy of the sale deed is marked as Ex.P6, copy of legal notice as Ex.P7, postal receipts as Exs.P8 and P9, un- claimed RPAD cover as Ex.P10 and acknowledgement as Ex.P11.
28. The main contention of the defendants is that, no such sale agreement was executed in favour of the plaintiff. It is contended that the signature of defendant No.1 is forged and document is concocted and in order to substantiate the same, 26 the defendant No.1 has not entered into the witness box and the person, who contend that her signature is forged, ought to have appeared before the Court and given the evidence and she fails to appear before the Court and an issue is also framed whether the defendant proves that the plaintiff has forged the signature of defendant No.1 on the alleged agreement of sale and the document of Ex.P2-sale agreement was not sent to the Handwriting Expert to verify as to whether the signature is forged. Apart from that, the defendant Nos.2 and 3, who have been examined on behalf of the defendants have admitted the signature of defendant Nos.1 and 2 and the Trial Court also, while appreciating the material on record with regard to the execution of the sale agreement, considered the material on record i.e., Ex.P2-sale agreement and also relied upon the evidence of P.W.2, who was present at the time of negotiation of agreement of sale and P.W.4, who is the son of the scribe, who appeared before the Court and deposed that the signature belongs to his father and identified the same. The evidence of P.W.2 is that, he accompanied the plaintiff to the house of the defendant No.1 after two months of negotiation, demanding to 27 execute the sale deed. The defendant No.1, though agreed to execute the sale deed at Madhugiri, she did not come to Sub- registrar office and again, they went to Tumakuru and requested the defendant No.1 to execute the sale deed but, she demanded additional amount.
29. The evidence of P.W.4 is also clear that he is having acquaintance with the signature of his father since, his father is no more and there is compliance under Section 69 of the Evidence Act. It is the contention of the learned counsel for the caveator-respondent No.1 also that P.W.3 is the attesting witness and he did not subject himself for cross-examination since he is also signatory to the sale deed executed by defendant No.1 in favour of defendant No.2. Apart from that, it is also important to note that, though D.W.1 denied the signature in Ex.P2-sale agreement, however, the witnesses, who have been examined on behalf of the defendants as D.Ws.2 and 3 categorically admitted that the signature in Ex.P2 is of defendant No.1. Hence, the Trial Court having considered the same, discussed in Para No.21 of the judgment that the signature 28 marked as Ex.P2(a) is of the signature of the defendant No.1. When such being the case, the contention of the defendant No.1 that her signature was forged on the agreement of sale does not hold water. Hence, the Trial Court comes to the conclusion that sale agreement was executed by defendant No.1 in favour of the plaintiff.
30. The Trial Court also, in Para No.24 discussed with regard to the document of Ex.D3-sale agreement, which shows that, on the date of execution of the sale agreement, the possession was delivered to the defendant No.2 but, D.W.1 has deposed that, 8 to 10 days after payment being made by defendant No.2, sale agreement was executed. But, on that day, no payment was made. However, contrary to his evidence, D.Ws.2 and 3 have deposed that, on the date of execution itself, defendant No.1 has received the advance money and executed the agreement and also delivered possession. The Trial Court also, taken note of document of Ex.D4, wherein, there is no recital of delivery of possession of suit land and in the sale deed itself, it is mentioned that possession was delivered on the date 29 of execution of the sale deed. Hence, the Trial Court comes to the conclusion that there was no any prior agreement before the sale deed and if there was a sale agreement, the same would have been mentioned in the sale deed that the amount was paid and possession was delivered on the date of agreement itself. Hence, the Trial Court answered issue Nos.1 and 2 as 'affirmative' and issue No.5 as 'negative'.
31. Learned counsel appearing for the appellants would vehemently contend that, with regard to the readiness and willingness is concerned, only in one paragraph, while answering issue No.6, the Trial Court has given the finding that execution of registered sale deed was postponed and later, demanded for more sale consideration and therefore, he has issued the legal notice. But, the fact is that, in the sale agreement, three months time was stipulated is not in dispute and the fact that notice was issued before the period of three months is also not in dispute i.e., on 24.12.1999.
32. It is important to note that, the sale deed was executed on 01.01.2000 immediately after issuance of the legal 30 notice and the Court has to take note of the conduct of the defendant Nos.1 and 2 and the sale deed came into existence within a span of one week of issuance of legal notice and also the sale deed in favour of defendant No.2, who is none other than the relative of defendant No.1. Hence, it is very clear that plaintiff has proved that within a span of three months of the date fixed for registration of the sale deed, he has issued the legal notice i.e., on 24.12.1999 itself. Hence, the very contention of the learned counsel for the appellants that the plaintiff was not ready in performing her part of contract and not complied with Section 16(c) of the Specific Relief Act cannot be accepted. The Court has to take note of issuance of legal notice within a period of three months of agreement as well as the conduct of defendant Nos.1 and 2 and they cannot contend that Section 16(c) is not complied.
33. The other contention is that the judgment of the Apex Court in M.M.S. INVESTMENT'S case is not applicable to the facts of the case on hand and the same cannot be accepted and no doubt, in the principles laid down in the judgments 31 referred (supra), the Apex Court has discussed with regard to Section 16(c) of the Specific Relief Act. In the case on hand, notice is issued before three months of the specified time as per Ex.P3 and also sale deed came into existence within a span of one week. Apart from that, in Ex.P2, sale consideration mentioned is Rs.63,000/- and an advance amount of Rs.5,000/- was paid and balance payable is Rs.58,000/- and in terms of the sale deed in favour of defendant No.2, the sale consideration is Rs.55,000/-. Hence, it is clear that, it was only a nominal document of sale deed inter-se between the defendant Nos.1 and 2, who happen to be the relatives. Apart from that, both the Courts have taken note of the fact that defendant No.2 had initiated the proceedings against the plaintiff through his wife and he was having ill-will against the plaintiff and both of them joined together with an intention to defeat the sale agreement executed in favour of the plaintiff in terms of Ex.P2 contending that signature is forged.
34. No doubt, the other contention is that P.W.1 is the power of attorney holder and he was not having any knowledge, 32 but, the fact is that he is the son of the original plaintiff is not in dispute and nothing is elicited in the cross-examination of P.W.1 that he was not having any knowledge about the sale transaction and also there is no dispute with regard to Ex.D1-sale deed and relied upon the document of Ex.D3-sale agreement but, with regard to the terms and conditions of the sale agreement and for having made the payment, nothing is mentioned in the sale deed executed in favour of defendant No.2 by defendant No.1 and all these materials are considered by the Trial Court as well as the First Appellate Court.
35. The main contention of the learned counsel for the appellants is also that, the First Appellate Court not considered the material on record and point for consideration is also framed by the First Appellate Court whether the finding of the Trial Court is perverse, illegal, capricious and opposed to law and while answering the said issue, the First Appellate Court also taken note of the document of Ex.D2 and also the evidence of P.W.3 for having not tendered for cross-examination and taken note of the fact that, he is the attesting witness to Ex.P2 and also Ex.D3 33 and also taken note of evidence of P.W.4, who identifies that the signature available in Ex.P2 is of his father, who is having acquaintance with the signature of his father in Ex.P2. The First Appellate Court also, in detailed discussed with regard to both oral and documentary evidence placed on record and particularly in Para No.44, taken note of the contention of defendant No.2 that the defendant No.1 had agreed to sell the suit property on 17.08.1999 contending that, prior to execution of sale agreement in favour of defendant No.1, there was a sale agreement and paid advance amount of Rs.5,000/- and also taking note of the said fact, no such reference in the document that sale deed was executed in favour of defendant No.2 and the same is discussed by both the Courts.
36. The First Appellate Court also, taken note of the contention of preemptory right to sell the property to the defendant No.2 and no such pleading and evidence as regard to the said contention of preemptory right and the same is discussed in Para No.45 of the judgment of the First Appellate Court and even taken note of the admitted fact that he has filed 34 the suit in O.S.No.65/1997 against the plaintiff and plaintiff had also filed the suit in O.S.No.346/1997 against him i.e., the defendant No.2 and taken note of the earlier ill-will between the defendant No.2 and the plaintiff and elaborately discussed both oral and documentary evidence placed on record. Having considered the same and also considering the principles laid down in the judgments referred (supra), those judgments will not come to the aid of the learned counsel for the appellants in respect of Section 16(c) of the Specific Relief Act.
37. The other contention of the learned counsel for the appellants that the First Appellate Court has not applied its mind while exercising its discretion with regard to question of fact and question of law cannot be accepted. No doubt, the First Appellate Court has to give finding with regard to both question of fact and question of law, the same has been considered by the First Appellate Court, even though no point was formulated with regard to Section 16(c) of the Specific Relief Act and the Trial Court also, discussed in detail with regard to the readiness and willingness. I have already pointed out that, within a period of 35 three months, as specified in Ex.P2, legal notice was issued and immediately, the sale deed came into existence which was executed in favour of defendant No.2 by defendant No.1 and the Court has to take note of the conduct of the parties and the said conduct is nothing but to defeat the very sale agreement which was in existence between the defendant No.1 and the plaintiff.
38. It is also important to note that defendant No.1 took the specific defence that her signature was forged. But, I have already pointed out that, D.Ws.2 and 3, who are the witnesses of defendants categorically admitted the signature of defendant No.1 and also not made any attempt to prove the fact that signature of defendant No.1 was forged and the document of sale agreement was concocted. Hence, I do not find any merit in the second appeal to reverse the findings of the Trial Court and the concurrent finding of the First Appellate Court and no perversity is found in both the Judgments of the Trial Court and First Appellate Court. Accordingly, I answer Point No.1 as 'negative'.
36Point No.2
39. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
In view of dismissal of the appeal, I.A.Nos.1/2019 and 2/2019 do not survive for consideration and the same stand disposed of.
Sd/-
JUDGE ST