Karnataka High Court
Shankar S/O Jayappa Janagond vs Ranoji S/O Janu Gavali on 12 January, 2012
Author: N.Kumar
Bench: N.Kumar
1
IN THE HIGI I COURT OF KARNATAKA CIRCUI
T BENCH
AT GULBARGA
Dated this the 12th day of JamLarv. 2012
BEFORE
THE IIONBLE MR.JUSTICE N.K1JMAR
RFA No. 1175/2005
BETWEEN:
Shankar Sb Jayappa Janagond
Age: Major. 0cc: Service in.
Sangli bank. R/ of Ram Bhat.
House, Ram Mandir Raod,
Bij ap ir.
Appellant
(By Sri: Veeresh B Patil Advocate)
AND:
Ranoji S/o Janu Gavali
Age: Major. 0cc: Milk Vendor.
R/o near Ram Bhat house,
Ram Mandir Road. Bijapur.
Since deceased by his LRs.
I a) Smt, Sonubai Janu Gavali @
Pangadawali, Age: 90 Years,
0cc: Nil. R/o Ram Mandir road.
Near Rambhat house. Bijapur.
1 b) Srnt. Laxrnibai Ranoji Gavali
Pangadawale, Age: 60 years.
0cc: Household Work R/0 do --
--
1 c) Pandu Ranoji Gavali @
Pangadawali. Age: 40 years.
Ccc: Milk Vendor. r/o do
--
--
I d) Raju @ Pundalik Sb Ranoji
Gavali Pangadawale, Age: 38 years.
0cc: Milk vendor. r/o do
--
--
1 e) Smt. Mangala W/o Balu
Namade. age: 35 years,
0cc: House hold work, R/o Ashok
Chovk, Sholapur.
1 l Smt. Shoba W/o Mahadev
Joniale. age 32 years.
I lousehold work, R/o Gavalimat h.
Pandhapur. Dist: Sholapur.
Respondents
(By Sri, G.S.Kannur. Adv. for R1(a, h & d)
Sri. Prakash R. Kulkarni. Adv. for RI (u. e & ii
This RFA is filed under 96 of CPC against the Judg
ment
and Decree dated: 18-06-2005 passed 0.S.No.74
/96 on the
tile of I Addi. Civil Judge (SR.DN). Bijapur. dismissin
g the suit
for specific performance of contract and the appe
llant herein
1)rayS to set aside the above judgment and decree by directing
the respondent herein to perform his part of cont
ract by
entering into the sale agreement of the suit schedule
property
and to direct the court below to refund the
amount of
1,55,500/- which has been taken as judicial
deposit in
pursuance of the order passed on menio dated 12-1
-2004.
This RFA coming on for fInal hearing this day, the
Court
delivered the following:
JUDGMENT
This is a plaintiffs appeal against the judgmen t and decree of the trial Court. which has dismissed the suit for specific performance.
3
2. The subject matter of the suit is northern half portion of the property bearing CTS No. 415/A/ i measuring 138-33 square yards in Ward No. II of Bija pur City. The said property stood in the name of Janu Gavali, the father of the defendant Raoji Gavali.
The defendant executed an agreement to sell in respect of the schedule property, which according to him, it has fallen to his share for a consideration of t 1,75,000/-
on 22.4.1995. The plaintiff was a tenant of the schedule property prior to the agreement of sale since 13 years.
A sum of ?i,55,000/- was paid under the agreemen t of sale. The defendant agreed to get his name entered in the CTh records before the Deepavali festival, 1995 .
However, the defendant did not move any application in the office of the City Surveyor for maldng his name in respect of the schedule property. Therefore, the plain tiff requested the defendant to perform his part of the obligation. Defendant went on protracting the matter. Finally the plaintiff was constrained to get a legal notic e issued calling upon him to perform his part of the contract. No reply was received. As the plaintiff and 4 defendant are residing in the same house, one more oral request was made. When he did riot com ply with the demand, he was constrained to file the present suit for specific performance of the agreement dated 22.4 . 1995.
3. After service of summons, defendant entered appearance. He filed his written statement. He denied the agreement of sale, payment of advance amo unt and he did not accept the agreement. He also denied that any legal notice was issued. After denying all the alleg ations, the defendant has set forth his version. The property bearing CTS No. 415/A/i stands in the nam e of his deceased father. He and his brothers have not got mutation in their name. Still it is a joint family property.
The defendant's brother is in occupation of 2 room s. The said occupation is according o their requirements and was made in the presence of panchas. Plaintiff is also in possession of few rooms as a tenant and pavi ng rent.
The defendant has not got his name mutated in his name or in the name of his brother. There was no need for him to sell the property. He has not executed the agre ement 5 of sale on 22.4.1995. 'the agreement of sale produced in the case Is false and concocted. He has not affixed his signature to any such agreement. The signature found In the agreement Is a concocted one. He has not received any money from the plaintiff. The plaintiff on the basis of this concocted document Is trying to blackmail the defendant and he wants to knock off the half portion of the schedule property. The said agreement Is not binding on the defendant. The defendant has not agreed to sell the half portion of the property. He did not agree to get the katha records before the Deepavali Festival 1995. He has not received any notice and therefore question of replying the same would not arise. The plaintiff Is In occupation of the schedule property since 5 or 6 years as a tenant. He has no money to purchase half portion of the schedule property. He has created the suit document with an intention of knocking off the property In his occupation. The said document Is false, concocted. Therefore, the suit of the plaintiff is liable to be dIsmIssed wIth costs of Z2,000/-. 6
4. On the basis of aforesaid pleadings, the trial Court has framed the following issues:
1. Whether plaintiffs proves that the defendant executed an agreement of sale on 22.04.1995 in regard to half share to the north of the house property hearing CTS No.415/A/I in ward No.11 of Bijapur being the suit property for 1 ,75,0OO/?
2. If so, whether the plaintiff further proves that in pursuance of the said sale agreement he gave ?1,55.000/-- to the defendant and obtained possession of the suit property from him on the said day?
3. Whether the defendant is entitled to compensatory costs of 2.000/-?
4. What decree or order?
5. The plaintiff in order to substantiate his plaint examined himself as PW- 1. He got two witnesses , examined as PWs.2 and 3 and has produced 18 documents. which are marked as Exs.P-l to P-18. The defendant was examined as DW I and he has not produced any documents.7
6. The trial Court on consideration of the aforesaid oral and documentary evidence on record held that the agreement of sale deed dated 22.04.1995 is not true. The plaintiff in his evidence has categorically stated that the talks took place on 22.04.1995. On the very same day the agreement was reduced into writing.
Payment of 1,55,000/- is made, where as, the stamp paper was purchased on 21.04.1995. Secondly, he held that payment of 1,55,000/- is made by way of cheque in favour of the defendant. In the agreement of sale there is no mention about the cheque payment. Thirdly. he held that the case of the plaintiff is that. he is in possession of the suit schedule property as a tenant prior to the agreement of sale since 13 \rears. However, the agreement of sale recites that. on the date of the agreement sale, he was put in possession. For the aforesaid reasons, the trial Court held that the case of the plaintiff cannot be believed, the agreement of sale deed executed for a sum of I ,55,000/- is not proved. Therefore, it dismissed the suit of the plaintiff. 8
7. Being aggrieved by the said jud gment and decree passed by the trial Court, the plaintiff has ified this appeal.
8. The learned counsel for the appellant assailing the Impugned judgment and decree of the trial Court contended that, It Is true tha t In his evidence the plaintiff has stated that the negoti ation took place on 22.04.1995. However, in the cross-
examination he has categorically stated that the stamp paper was purchased on 21.04.1995. Therefore. the tria l Court was not justified In applying Its mind to thi s inconsistency so as to dismiss the suit of the plaintiff.
In so far as the cheque Is concerned, In the agreem ent of sale It Is not mentioned that fl,55,000/- Is pai d by way of cheque.
Fact remains that, a sum of Z1,55 ,000/- mentioned In the agreement of sale was paid by way of cheque. In that view of the matter, not mentioning the said fact cannot• be the reason for disbelieving the case of the plaintIff.
Similarly, there Is a recital that In agreement of sale he was put in possession on the dat e of the execution of 4 9 agreement of sale. Therefore, the trial Court was not Justified in dismissing the suit. Therefore, he submits that, a sum of tl,55.000/- has been paid by way of cheque and herein the defendant who den ies the agreement receipt of payment, encashment of cheque and his signature in the vakalat and on every paper which is before the Court, It only shows that he is not speaking truth. In those circumstances the Cou rt below has committed serious error in dismissing the suit of the plaintiff
9. Per contra, the learned counsel for the defendant/respondent submitted that the defend ant has not executed the agreement of sale. He has not received a sum of ?1,55,000/-. In the entire agreement of sale, there Is no reference to the payment of cheque.
In fact the said cheque was not of the plaintiff, it is issued by his wife. There is nothing to show that it was enc ashed by the d€fendãht. Shtllarh thd recItal of the kgfeem€nt shows that he was put in possession on that day and the plaintiff was in possession of the suit proper ty as tenant ( 10 since 13 years earlier to the execution of agreement of sale. The property Is the joint family property. There is no division between the brothers. The Katha of the property has not been transferred to the defendant. In those circumstances the trial Court was justified In dismissing the suit of the plaintiff. No case for Interference Is made out
10. In the light of the aforesaid contentions, the points that arise for my consideration in this appeal are:
1. Whether the finding of the trial Court that the plaintiff has failed to prove the agreement of sale and he gave payment of ?1,55,000/- towards consideration Is correct?
2. Whether the plaintiff Is entitled to a decree for specific performance?
11. The plaintiff in order to substantiate his claim has examined himself as PW- 1. The agreement of sale deed is marked as Ex.P- 1. The signature of the defendant on the said agreement is denied. Therefore , the plaintiff to prove the said signature, he has examined 1--
11two witnesses, who have attested the said documents. One witness is Veerbhadrappa. After referring the negotiation between the parties. he has categorically stated that after the talks, all of them went to sub- registrar office, where the defendant purchased the necessary stamp paper and got prepared an agreement through bond paper. After defendant executed the agreement, the plaintiff gave a cheque for a sum of tl,55,000/-. After collecting the cheque, the defendan t handed over the agreement of sale to the plaintiff. He has identified the agreement of sale, which is marked as Ex.P- 1. He also identified his signature at Ex.P- 1(d). Ex.P- 1(c) Is the signature of defendant, which he put his signature in his presence. In the cross-examination, he has admitted that he has signed the stamp papers at sub-registrar office. The defendant has produced the stamp papers of flOO/- each. He does not know who gave the instructions to write and prepare the agreemen t.
The plaintiff has handed over the cheque to the defendant, which was drawn at Sangli bank. He do not know the cheque belongs to whose account. The plain tiff 12 handed over the cheque to the defendant and at the time of writing the agreement of sale, he was sitting out side and he does not know who took his signature.
12. PW-3 Is one Sadagondappa. He admitted that he wrote the agreement, accepting that It Is to be correct. The defendant affixed his signature. Even before he affixing his signature, Srl.Jalakl and Srl.Biradar were present. He Identified the agreement of sale. He Identified his signature at Ex.P- 1(e) and identified the signature of Ranoji at Ex.P- 1(a) and he Identified the signatures of other witnesses. In so far as the evidence of DW- us concerned, after denying the signature and after the agreement of sale, when he was confronted va.kalat executed by him in favour of advocate, he denied his signature and It Is marked as Ex.P-17. Again he was shown one more vakalat executed by him in favour of his advocate, the signature was denied by the defendant at Ex.P-18. Then he was confronted wIth Ex.P-8(a) counter foil and he deified the said signature. It Is marked at Ex.P-8(b). On perusal of the signatures on the \.0• 4 13 vakalatnama and the counter-foil, makes it clear that those are all one and the same. When the said signature is compared with the signature found in the affidavit, filed by him before the Court, they are tallying. The defendant has deliberately lying before the Court and he is denying his signature to avoid the liability. This aspect has not been considered by the trial Court at all. It is very concerned about the inconsistency in the evidence of witnesses, as if it is a criminal trial. In a suit for specific performance based on the agreement of sale, if the execution of agreement of sale is denied, the plaintiff has to prove the due execution of sale. In order to prove the execution of the agreement, the document when it is attested by witnesses, their evidence, which is direct evidence, which is material in proving the document. Here is the case. where the plaintiff and attesting witnesses, who saw the defendant affixing the signature and both have deposed and identified the said signatures. When the defendant has denied his signature in the vakalat executed by him In favour of his advocate then, as rightly held by the Apex Court, Court would be 'It 14 justified in drawing adverse inference. Comparing of the signature on the vakalat, the signature on the affidavit filed in the Court below and the signature in the foil with the signature on the agreement, it shows they are one and the same. The trial Court was not done this exercise. In those circumstances, I am satisfied with the material on record that. the suit agreement has been duly executed by the defendant, it bears his signature and the finding recorded by the trial Court. it is not duly executed is erroneous.
13. The plaintiff is ready and willing, as per the stipulation contained In the agreement. The agreement discloses that the agreement entered into by the defendant for a total consideration was Zl .75.000/-. A sum of ? 1,55.000/- was paid under the agreement. The balance of ?20,000/- is to be paid at the time of execution of the sale deed. The time stipulated for completing the sale transaction is Deepavali 1995. As on the date of the agreement of sale. property stood in the name of the defendant's father and the said property t 1- 15 belongs to him and his brother, each one of them has half share. The defendant undertook to approach the concerned authorities and get his name entered in the (XIS records. Now the defendant has denied the receipt of fl,55.000/-. The payment of ?1,55,000/- according to the plaintiff Is made by way of cheque. It Is on record that the cheque is issued by his wife. It was drawn on Sangli Bank. The plaintiff was working as an attender In the Sangli Bank, Bijapur. The plaintiff has produced the counter-foil of the cheque book and the signature of the defendant is obtained. As already stated, it bears the signature of the plaintiff as summoned from the bank. The cheque. which was issued to the defendant for a sum of fl,55,000/- was paid. It is marked as Ex.P-8. The said cheque number is No.47583 1 dated 22.04.1995 for a sum of ?l,55,000/- given from the account No.16254/82, drawn In the name of the defendant. On the backside, the signature of the defendant is found. This clearly proves that payment of ?1,55,000/- Is made on 22.04.1995 to the defendant I.e., the date of which the agreement of sale is entered and the recital in he f 16 agreement of sale Is for a sum of ?155,000/- is paid, merely because the cheque Is not referred to In the agreement of sale, would not defeat the rights of the plaintiffs. In the agreement, It Is stated that a sum of fl,55,000/- was paid. It is not the requirement of law that payment paid by way of cheque should be made a recital In the agreement of sale. Once the payment Is proved, the mode of payment Is Immaterial and unfortunately the trial Court did not understand the essence of the transaction. It Is a civil suit and not the criminal case. Payment of ?l,55,000/- is established by encashment of cheque. issued in favour of the defendant, nothing more Is required to be done. The trial Court finding is ifiegal and it is to be set aside.
14. Yet another reason given by the trial Court is that the recital in the agreement of sale that the defendant was put In possession on the date of the agreement. The evidence on record shows that the plaintiff is the tenant in respect of suit schedule property for last 13 years and executed the agreement of sale and I. 17 on payment of substantial portion of sale consideration in a sum of fl,55,000/- he is put In possession. From that day his possession gets transformed under the agreement of sale in terms of Section 53(A) of Transfer of Property Act. Therefore, it is clear that the plaintiff has established the agreement of sale for a total consideration of tl,75,000/-. He has also paid a sum of ?1,55,000/-. The balance payable amount is hardly ?20,000/-. Even, if the defendant is not the absolute owner of the entire property admittedly, he has 1/2 share In the property. The subject matter of agreement of sale Is half share only. The fact that the plaintiff has paid consideration of Z1,55,000/- out of ?1,75,000/- at the time of sale. He is working In the bank. He is the tenant of schedule property prior to the agreement of sale since 13 years back and the fact that the amount of fl,55,000/- was paid from the account of his wife, it dearly shows his readiness and willingness to perform his part of the obligation. Once the defendant went back immediately he issued a legal notice dated 13.10.1995 and he has issued another legal notice and thereafter on I 18 11.03.1996 he has filed the present suit for specific performance of contract at the earliest point of time. Therefore, the plaintiffs readiness and willingness is also clearly established. It is settled law that in respect of immovable property. the specific performance is to be granted. unless there are circumstances disentitling the plaintiff ftr the relief of specific performance. As the plaintiff has paid substantia' portion of the consideration under the agreement and was ready and willing to perform the remaining part of the agreement. coupled with the defendant conduct of denying the signature. denying the receipt of consideration which is now found to be false, is sufficient to grant the decree for specific performance. In that view of the matter, the judgment and decree of the trial Court is unsustainable and is hereby set aside. Though the plaintiff has paid consideration of l,55,000/- Out of U.75,000/-. the plaintiff is the tenant in respect of suit schedule property. It appears that, he has not paid any rent. after the execution of the agreement of sale. The remaining consideration of '20,000/- out of the total consideration, C 19 continues to be with him. Therefore. granting the specific performance is a discretionary relit'L The plaintiff has established the grounds for granting the same relief and the Court granting the specific relief nearly about 16 long years. If the decree is passed in terms of agreement of sale. it would cause injustice, under these circumstances in order to do the justice to both the parties the decree for specific performance Is granted subject to two conditions:
1. The plaintiff shall pay the agreed rent from 22.04.1995 tIll today, within three months from today.
2. Further, he shall pay the interest at 12% of ?20,000/- balance sale consideration from 22.04.1995 till the date of the appeal i.e.. within another three months.
3. It is only on payment of such amount or deposit of such amount before the Court below, the said decree for specific performance granted by this Court become executable. Otherwise the plaintiff I 20 will not be untitled to this decree for specific performance. Hence, I pass the following order:
ORDER
1. Appeal is allowed.
2. The judgment and decree of the Trial Court is set aside and the plaintiffs suit for specilic performance is decreed.
3. The plaintiff shall pay the agreed rent from 22.04.1995 till today within three months from today.
4. He also shall pay the interest on 20,0OO/-
at 12% from 22.04. 1995, till the date of payment within three months from today.
5. On payment or deposit of such amount in the Court below, the plaintiff is entitled to a decree for specific performance. If the said amount is not deposited within three months from today, the plaintiff is not 21 entitled to a decree for specific performance.
6. Parties to bear their own costs, sdI 3UDG Ckl/Srt