Karnataka High Court
Sri Papanna vs Sri P N Paramesha on 12 October, 2022
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RSA No. 1975 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 1975 OF 2013 (SP)
BETWEEN:
1. SRI PAPANNA S/O LATE SUBBEGOWDA,
AGED ABOUT 55 YEARS,
RESIDING AT V.G. KOPPALU VILLAGE,
DODDABELALU POST, PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 107
2. SRI. MAHENDRA S/O LATE SUBBEGOWDA,
AGED ABOUT 42 YEARS,
RESIDING AT V.G. KOPPALU VILLAGE,
DODDABELALU POST, PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 107
3. SRI HARISHA S/O LATE SUBBEGOWDA,
AGED ABOUT 36 YEARS,
RESIDING AT V.G. KOPPALU VILLAGE,
DODDABELALU POST, PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 107
4. SMT. SHARADAMMA W/O LATE SUBBEGOWDA,
AGED ABOUT 78 YEARS,
Digitally signed RESIDING AT V.G. KOPPALU VILLAGE,
by SUCHITRA DODDABELALU POST, PERIYAPATNA TALUK,
MJ MYSORE DISTRICT - 571 107
Location: High 5. SMT. SHASHIREKHA W/O KRISHNAPPA,
Court Of DAUGHTER OF LATE SUBBEGOWDA,
Karnataka AGED ABOUT 50 YEARS, KEB OFFICE
(CHESCOM), MANDYA CITY - 571 401
6. SMT. INDIRA W/O PRABHAKARA,
DAUGHTER OF LATE SUBBEGOWDA,
AGED ABOUT 43 YEARS,
RESIDING AT BHOGANAHALLI VILLAGE,
RAVANDUR HOBLI, PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 107
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RSA No. 1975 of 2013
7. SMT. GEETHA W/O PRASAD,
DAUGHTER OF LATE SUBBEGOWDA,
AGED ABOUT 34 YEARS,
RESIDENT OF D.NO. 1957,
VIDYANAGARA EXTENSION,
MANDYA DISTRICT - 571 401
...APPELLANTS
(BY MR: RAVINDRANATH KAMATH, SENIOR COUNSEL, A/W
MR: P.M. SIDDAMALLAPPA, ADVOCATE)
AND:
1. SRI P.N. PARAMESHA
S/O LATE H.V. NAGAPPA,
AGED ABOUT 65 YEARS,
RESIDING AT B.M. ROAD,
SANTHEPETE, PERIYAPATNA TOWN,
MYSORE DISTRICT - 571 107.
2. SRI P.N. VEERESHKUMAR,
S/O OF LATE H.V. NAGAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT B.M. ROAD,
SANTHEPETE, PERIYAPATNA TOWN,
MYSORE DISTRICT - 571 107.
3. SRI P.N THARESHKUMAR,
S/O OF LATE H.V. NAGAPPA,
AGED ABOUT 50 YEARS,
RESIDING AT B.M. ROAD,
SANTHEPETE, PERIYAPATNA TOWN,
MYSORE DISTRICT - 571 107
4. SMT. P.N. VISHALAKSHI,
DAUGHTER OF LATE H.V. NAGAPPA,
WIFE OF K.S. NATARAJU,
AGED ABOUT 59 YEARS,
RESIDING AT ANECHOWKUR ROAD,
PERIYAPATNA TOWN,
MYSORE DISTRICT - 571 107
...RESPONDENTS
(BY MR: R.K. MAHADEVA, ADVOCATE FOR R2 TO R4.
R1 IS SERVED)
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RSA No. 1975 of 2013
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT & DECREE DTD: 21.8.2013 PASSED IN
R.A.NO.724/2011 ON THE FILE OF THE C/C PRESIDING OFFICER,
FAST TRACK COURT, HUNSUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DTD: 28.9.2011 PASSED
IN OS.NO.162/2009 (OLD NO.134/2003) ON THE FILE OF THE
SENIOR CIVIL JUDGE & JMFC., HUNSUR.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants-defendants are before this Court being aggrieved by the impugned judgment and decree dated 28.09.2011 passed in O.S.No.162/2009 on the file of the learned Additional Senior Civil Judge and JMFC, Hunsur, sitting at Periyapatna (hereinafter referred to as 'the trial Court' for brevity), decreeing the suit of the plaintiff in part for specific performance of the contract and directing the defendant to execute the sale deed in respect of the suit schedule property, which was confirmed by the Fast Track Court, Hunsur vide judgment dated 21.08.2013 in R.A.No.724/2011 (hereinafter referred to as 'the First Appellate Court' for brevity).
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court. -4- RSA No. 1975 of 2013
3. Brief facts of the case are that the plaintiff filed the suit O.S.No.162/2009 (old O.S.No.134/2003) against the defendant - B.K.Subbegowda for specific performance of the contract i.e., the agreement for sale dated 22.02.2002. It is contended by the plaintiff that the defendant had approached him offering to sell the schedule property for sale consideration amount of Rs.6,00,000/- in favour of the plaintiff, to meet his legal necessities. The plaintiff accepted the offer and agreed to purchase the suit property. Accordingly, an agreement for sale was entered into between the parties on 22.02.2002 and defendant received Rs.1,54,000/- from the plaintiff as advance and agreed to receive the balance consideration amount at the time of the registration of the sale deed.
4. It is contended by the plaintiff that at the time of entering into the agreement for sale, the defendant has disclosed that a suit is pending between him and one Appaji and his sons before the learned Civil Judge (Jr.Dn) Periyapatna pertaining to the suit schedule property and had agreed to get the matter closed as early as possible and to get the judgment in his favour. The defendant also undertook to produce the judgment and decree of the learned Civil Judge (Jr.Dn) -5- RSA No. 1975 of 2013 Periyapatna and to execute the sale deed in terms of agreement for sale. The plaintiff approached the defendant several times and requested him to produce the judgment and decree of the suit, which was pending before the learned Civil Judge (Jr.Dn) Periyapatna and to execute the registered sale deed. The defendant postponed the execution of the sale deed on one pretext or the other. However, defendant issued a letter dated 02/03.05.2003 cautioning the plaintiff that he would forfeit the advance amount paid by the plaintiff. Immediately the plaintiff issued reply notice dated 06.05.2003 saying that he is ready and willing to perform his part of contract if defendant produces the judgment of the original suit. Inspite of service of notice on the defendant, he has not come forward to execute the sale deed. Therefore, the plaintiff filed the suit seeking specific performance of the contract against the defendant.
5. The defendant has appeared before the trial Court and filed his written statement denying the contention taken by the plaintiff and contended that the letter dated 02/03.05.2003 sent by the defendant does not relate to the alleged agreement for sale dated 22.02.2002. It is also contended that the reply -6- RSA No. 1975 of 2013 notice dated 06.05.2003 is issued by the plaintiff with dishonest intention. It is further contended that the agreement for sale dated 22.02.2002 is not a legal document, it is a concocted document. The plaintiff is not entitled to seek any relief on the basis of the same. It is also contended that during the year 1999, the defendant had handed over all the documents pertaining to the schedule property to the plaintiff but he was not ready and willing to perform his part of the contract. Therefore, it is prayed that the suit of the plaintiff is to be dismissed with costs.
6. During the pendency of the suit, the original defendant-B.K.Subbegowda died and his legal representatives were brought on record as defendant Nos.1(a) to (h). They have filed their additional written statement contending that they formed the joint family along with original defendant- B.K.Subbegowda. They are all the coparceners and possessed the schedule property through inheritance. It is contended that B.K.Subbegowda was the kartha of the joint family and was managing the properties till his death. The schedule property was purchased by him from out of the income derived from the ancestral properties and therefore, the schedule property is -7- RSA No. 1975 of 2013 also the ancestral property of defendant Nos.1(a) to (h). It is contended that the agreement for sale referred to by the plaintiff was not executed by the original defendant for legal necessity or for the benefit of the family. Therefore, the same would not bind the defendants. Hence, defendant No.1(c) prays for dismissal of the suit.
7. On the basis of the pleadings on record, the Trial Court framed the following issues and additional issues:
"1. Whether the plaintiff proves that the defendant has executed an agreement of sale with respect to the suit schedule property and received an advance amount of Rs.1,54,000/- on 22-02-2002?
2. Whether the plaintiff proves that he is always ready and willing to perform his part of contract?
3. Whether the plaintiff proves that he is entitled for specific performance of contract?"
4. In alternative, whether the plaintiff is entitled for return of the advance amount of Rs.1,54,000/- together with interest at 18% p.a. as prayed?
5. What decree or order?
ADDITIONAL ISSUES "1. Whether the legal heirs of the defendant prove that the suit schedule property was their joint family property, having purchased the same from the income of the ancestral property and they have individual right over the suit property?
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2. Whether the legal heirs of the defendant prove that the sale of suit property by the defendant was not for any legal necessities and it is not binding upon their share in the suit property?"
8. The plaintiff examined himself as PW.1 and also examined PWs.2 to 4 and got marked Exs.P1 to P10 in support of his contention. Defendant No.1(c) examined himself as DW.1 and got marked Ex.D1 and 1(a) in support of his defence. The trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 3 in the affirmative and additional issue Nos.1 and 2 in the negative and held that issue No.4 does not arise for consideration. Accordingly, the suit of the plaintiff was decreed with costs directing the defendant to receive the balance consideration amount and to execute the registered sale deed in favour of the plaintiff within 90 days from the date of judgment.
9. Being aggrieved by the same, defendants preferred R.A.No.724/2011 before the First Appellate Court. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal and confirmed the impugned judgment and decree passed by the trial Court. Being aggrieved by the same, the defendants have preferred this second appeal. -9- RSA No. 1975 of 2013
10. Heard Sri. Ravindranath Kamath, learned Senior Advocate along with Sri. P.M.Siddamallappa, learned counsel for the appellants and Sri. R.K.Mahadeva, learned counsel for respondent Nos.2 to 4. Respondent No.1 is served but unrepresented.
11. Learned Senior Advocate for the appellants- defendants contended that the agreement for sale entered into between the plaintiff and defendant is not the agreement relied on by the plaintiff i.e., Ex.P1 but it is Ex.D1, which was admitted by the plaintiff. Ex.D1 is dated 27.02.1999. The suit was filed on 02.08.2003 i.e., after the period of limitation. Therefore, the suit of the plaintiff should have been dismissed in limine as barred by limitation.
12. Learned Senior Advocate further submitted that the schedule property is the joint family property of the defendants. There was a suit for partition filed by the original defendant. The plaintiff during his cross-examination admitted that he was knowing about the suit for partition. Inspite of that, he runs the risk of entering into an agreement for sale. Therefore, he is not entitled for the equitable relief of specific
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performance of the contract. Learned Senior Advocate further submitted that since the original defendant was required to produce the judgment and decree in the suit that was pending before the civil court for partition, there was no concluded contract between the plaintiff and defendant.
13. Learned Senior Advocate further submitted that as per Section 20 of the Specific Relief Act, 1963 (for short 'the Act') grant of relief of the specific performance is purely discretionary. No party could be permitted to make unlawful gain. The schedule property is now worth more than two crores but according to the plaintiff, the property was agreed to be sold for poultry sum of Rs.6,00,000/-. Therefore, it is clear that the plaintiff is making unlawful gain by getting the decree in his favour. The appellants are ready and willing to pay Rs.10,00,000/- to the plaintiff in liu of decree for specific performance of the contract and therefore he prays for modification of the decree as one for payment of money.
14. Learned Senior Advocate placed reliance on the decision of the Hon'ble Apex Court in the case of K. NANJAPPA (DEAD) BY LEGAL REPRESENTATIVES V. R.A. HAMEED ALIAS
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AMEERSAB (DEAD) BY LEGAL REPRESENTATIVES AND ANOTHER1, to contend that there must be consensus ad-idem between the parties while entering into an agreement and that grant of the relief of specific performance is purely discretionary one and the plaintiff cannot be permitted to have unfair advantage.
15. Learned Senior Advocate also placed reliance on the decision of the Hon'ble Apex Court in the case of JAYAKANTHAM AND OTHERS V. ABAYKUMAR2, to contend that when the agreement came into existence out of a loan transaction, the agreement for sale cannot result in the specific performance of the contract and further when the cost of the land is very high and the consideration shown in the agreement for sale was nominal one, the defendants cannot be made to suffer loss.
16. Learned Senior Advocate further placed reliance on the decision of the Hon'ble Apex Court in the case of JANARDHANAM PRASAD V. RAMDAS3, to contend that the 1 (2016) 1 SCC 762 2 (2017) 5 SCC 178 3 (2007) 15 SCC 174
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RSA No. 1975 of 2013conduct of the plaintiff in seeking specific performance of the contract is to be considered before granting the relief of specific performance. When the suit of the plaintiff is barred by limitation, the plaintiff is not entitled for any relief.
17. He also placed reliance on the decision of the Hon'ble Apex Court in the case of G. JAYASHREE AND OTHERS 4 V. BHAGWANDAS S. PATEL AND OTHERS , to contend that when a time limit is prescribed under the agreement, the parties have to adhere to the same. If in the meantime, there is raise in the value of the land and the conduct of the plaintiff does not inspire confidence in the mind of the Court, he cannot be permitted to take undue advantage of his own conduct in approaching the Court belatedly.
18. Placing reliance on the above decisions, learned Senior Advocate contended that since the suit of the plaintiff is hopelessly barred by limitation, the suit is to be dismissed. As the appellants are ready and willing to pay Rs.10,00,000/-. He prays for allowing the appeal and modify the decree. 4 (2009) 3 SCC 141
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RSA No. 1975 of 2013
19. Per contra, learned counsel for the respondents opposing the appeal submitted that the arguments addressed by the learned Senior Advocate is not supported by either pleadings or evidence. It was never the contention of the original defendant that there was an agreement for sale as per Ex.D1. The plaintiff never admitted Ex.D1 and it is not proved by the defendants. He further contended that the original defendant never took up a contention that the schedule property is the joint family property. Even though the legal representatives of the original defendant took up such contention, there is absolutely no basis for the same. Even though it is contended that the suit for partition was pending between the original defendant-B.K.Subbegowda and the children of Appaji, Ex.P8 makes it clear that the said suit O.S.No.39/1995 filed by B.K.Subbegowda against the children of Appaji for permanent injunction and the suit was decreed on 19.04.2003. Learned counsel further submitted that Ex.P10 is the sale deed under which B.K.Subbegowda acquired the schedule property and it was his self-acquired property. Ex.P2 stands in the name of B.K.Subbegowda. Therefore, both the
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RSA No. 1975 of 2013Courts have concurrently held that the suit property is the self- acquired property of B.K.Subbegowda.
20. Learned counsel further submitted that since the defendants denied the execution of Ex.P1, the same was referred to hand writing expert and a report was called for. After the report obtained by the expert, the signature of B.K.Subbegowda found on Ex.P1 is admitted signature. Thereby, the plaintiff proved execution of Ex.P1. Learned counsel further submitted that the plaintiff has already deposited the balance consideration amount before the trial Court during the year 2013. Under such circumstances, nothing more is to be done by plaintiff. Since there is concurrent finding of fact by the Courts below, there are no reasons to interfere with the impugned judgment and decree. The defendants have taken untenable and frivolous contentions which are not supported by either pleadings or by evidence and therefore, the appeal is to be dismissed with exemplary cost. Accordingly, he prays for dismissal of the appeal.
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RSA No. 1975 of 2013
21. This Court admitted the appeal vide order dated 10.07.2014 to consider the following substantial questions of law:
"i) Was plaintiff's narration of facts, in the plaint, sufficient to meet the requirement of Section 16(c) of the Specific relief Act which envisages plaintiff must aver and prove readiness and willingness to perform his part of obligation?
ii) Whether the judgment of the trial court decreeing the suit directing specific performance of agreement is sustainable as it appears, there is no finding recorded by the courts below to the fact that decree of specific performance was the only just remedy and the case of the defendant did not fall in any one of the Clauses (a), (b) and (c) of Section 20 of the Specific Relief Act?"
22. I have considered the submissions made by the learned counsel appearing for the parties and in light of the materials on record.
23. It is the specific contention of the plaintiff before the trial Court that original defendant B.K.Subbegowda executed agreement for sale as per Ex.P1, agreeing to sell the schedule property for a total consideration amount of Rs.6,00,000/- and had received an advance amount of
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RSA No. 1975 of 2013Rs.1,54,000/-. But B.K.Subbegowda, who promised to produce the judgment and decree pertaining to a civil litigation between him and children of Appaji, the sale deed could not be executed. However, B.K.Subbegowda issued Ex.P3 calling upon the plaintiff to get the sale deed registered in terms of the agreement and cautioned to forfeit the advance amount if in case the plaintiff does not come forward to get the sale deed registered. Immediately the reply was issued by the plaintiff as per Ex.P4 making clear that the plaintiff is ready and willing to perform his part of contract by paying the balance consideration amount. It is also made clear that B.K.Subbegowda had undertaken to produce the judgment and decree in the suit for permanent injunction that was pending between him and the children of Appaji, which was not produced yet. Therefore, the plaintiff called upon B.K.Subbegowda to execute the sale deed in respect of the schedule property by accepting the consideration amount and denying his right to forfeit the advance amount. It is pertinent to note that Ex.P3 issued by B.K.Subbegowda is dated 02/03.05.2003. Ex.P4 issued by plaintiff is dated 06.05.2003. The suit was came to be filed on 02.08.2003. Therefore, the
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RSA No. 1975 of 2013conduct of the plaintiff discloses that he was ready and willing to perform his part of the contract.
24. There is reference to the suit between B.K.Subbegowda and children of Appaji. Learned Senior Advocate contended that it was suit for partition and therefore, the schedule property is proved to be the joint family property of the defendants. The certified copy of the judgment in O.S.No.39/1995 between B.K.Subbegowda and Appaji and his children is produced as per Ex.P8. This judgment is dated 19.04.2003 i.e., just before issuance of Ex.P3. This document makes it clear that B.K.Subbegowda filed the suit for permanent injunction against Appaji and his children in respect of the schedule property from interfering with his peaceful possession and enjoyment of the same. It is the specific contention taken by B.K.Subbegowda that he purchased the schedule property on 08.04.1962 under the registered sale deed executed by one Sannappa who is none other than father of Appaji, who is defendant No.1 in the suit O.S.No.39/1995. The legal representatives of B.K.Subbegowda who are the appellants herein are not parties to the said suit and never
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RSA No. 1975 of 2013claimed any share in the schedule property as tried to be projected.
25. Regarding contention taken by the learned Senior Advocate that Ex.D1 is an agreement which was entered into between plaintiff and B.K.Subbegowda is dated 27.02.1999 and the suit of the plaintiff was filed on 02.08.2003 which is barred by limitation, I have given my consideration to the pleadings of the parties, the evidence on record, the documents in general and Ex.D1 in particular. It is to be noticed that Ex.D1 is not an agreement but it is only a notice dated 09.10.2001 said to have been issued by the advocate representing the plaintiff to B.K.Subbegowda referring to the sale agreement dated 27.02.1999. This document was tendered to PW.1-plaintiff during cross-examination and got marked as Ex.D1. It is pertinent to note that the plaintiff has never admitted this document. Therefore, Ex.D1 would not serve any purpose. It is also pertinent to note that B.K.Subbegowda who filed the written statement before the trial Court never referred to any agreement dated 27.02.1999. If at all, the plaintiff and B.K.Subbegowda have entered into an agreement for sale on 27.02.1999, nothing prevented B.K.Subbegowda from referring
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RSA No. 1975 of 2013to the said agreement and contending that the suit is barred by limitation. Strangely no such defence was taken in the written statement. Even after the death of B.K.Subbegowda, when the appellants filed their additional written statement, they have not raised any plea about the agreement for sale referred to in Ex.D1. Strangely, Ex.D1 was tendered while cross-examining PW.1 and even without getting any admission about the documents, same was marked as an exhibit. If at all there was an agreement, either B.K.Subbegowda or the appellants should have produced the said document. It is not produced before the Court till date. On the basis of Ex.D1, the defendants cannot develop a case even without there being any pleading or proof. The plaintiff by issuing the reply as per Ex.P4 specifically referred to the suit agreement dated 22.02.2002. Strangely, B.K.Subbegowda never chosen to send a rejoinder to the said reply. It is to be noticed that immediately after sending the reply, the plaintiff filed the suit seeking specific performance of the contract. If the conduct of the parties is to be taken into consideration, the conduct of the plaintiff is very fair and reasonable. Whereas, the conduct of B.K.Subbegowda and the appellants creates serious doubts about their bonafides.
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26. Even though B.K.Subbegowda has not taken any defence that the schedule property is his ancestral property, the appellants while filing the additional written statement have taken up such a plea. The plaintiff produced Ex.P10 which is admittedly the sale deed executed in favour of B.K.Subbegowda. The O.S.No.39/1995, the judgment is as per Ex.P8, which discloses that B.K.Subbegowda purchased the schedule property from one Sannappa. Ex.P2 the copy of the assessment list stands in the name of B.K.Subbegowda. The defendants have not produced any scrap of paper to probabilise their defence that the schedule property is their joint family property.
27. As per Section 20 of the Specific Relief Act, 1963, as it was before amendment, granting the relief of specific performance was at the discretion of the Court and the Court was not bound to grant such relief merely because it was lawful to do so. However, such discretion must be exercised judiciously and not arbitrarily. It is the contention of the learned Senior Advocate that the value of the schedule property as on today is more than two crores and therefore, granting of relief of specific performance would amount to giving unfair
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RSA No. 1975 of 2013advantage to the plaintiff over the defendants. It is to be noticed that Ex.P1 is dated 22.02.2002. Twenty years have lapsed till date. The plaintiff was ever ready and willing to get the sale deed registered by paying the balance consideration amount but conduct of the defendants, especially the appellants herein disclose that they are taking untenable defence without any pleadings or proof. Therefore, I am of the opinion that there is no reason to interfere with the grant of relief of specific performance of contract as provided under Section 20(2) of the Specific Relief Act, as it stood then.
28. Even though the learned Senior Advocate placed reliance on several judgments of the Hon'ble Apex Court, they were rendered under different facts and circumstances in those cases and are not at all applicable to the present case. It is not the contention of the defendants that there was any oral agreement or that there was no consensus ad-idem between the parties who entered into agreement for sale. It is not the defence of B.K.Subbegowda that plaintiff concocted the document even though there was a loan transaction. Even the conduct of the parties disclose that the plaintiff was very reasonable throughout but the defendants are changing their
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RSA No. 1975 of 2013stand every now and then and putting forth false and frivolous defences. Therefore, I am of the opinion that none of those decisions are applicable to the facts of the present case.
29. The offer made by the learned Senior Advocate to pay Rs.10,00,000/- to the plaintiff in liu a decree for specific performance of contract cannot be accepted since the defendants are not entitled for such a relief. There is concurrent finding of facts by both the Courts. When the trial Court and the First Appellate Court on appreciation and re-appreciation of the materials, recorded a concurrent finding of facts, the scope under Section 100 of CPC to interfere with such findings would be very limited. The jurisdiction of the High Court under this Section to entertain the second appeal is confined only to such appeals which involve a substantial question of law. The Section does not confer any jurisdiction to interfere with pure question of fact, while exercising its jurisdiction. Since there is concurrent finding of facts by both the Courts below, the scope of this appeal is very limited. It is the settled proposition of law that only when the findings of the Trial Court and the First Appellate Court are against the materials that are available on record or when it is against the settled proposition of law or the
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RSA No. 1975 of 2013findings appear to be perverse, this Court can interfere with such finding of the facts.
30. It is relevant to refer to the decision of the Hon'ble Apex Court in Thiagarajan and Others v. Sri Venugopalaswamy B. Koil and Others5, where the scope and ambit of Section 100 was discussed at length and it is held that existence of substantial question of law is sine-qua-non for the exercise of the jurisdiction under the amended provisions of Section 100 of CPC. It is re-iterated that where findings of fact by the First Appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re- appreciation of evidence, merely on the ground that another view was possible.
31. In Narayan Rajendran and Another v. Lekshmy Sarojini and Others6, the Apex Court discussed at length about the scope and ambit of Section 100 CPC both prior to the amendment to CPC in 1976 and after it and held that the second appeal can lie only on one or the other grounds specified in the section. It is also held that even before the 5 (2004) 5 SCC 762 6 (2009) 5 SCC 264
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RSA No. 1975 of 2013amendment, interference under Section 100 CPC was limited and after the amendment the power has been further curtailed. The amendment Act 1976 has introduced drastic changes in the scope and ambit of this section which is now confined to cases where a question of law is involved and such question must be a substantial one. The Court has referred to several such judgments after amendment to Section 100 of CPC and re- iterated that the jurisdiction of the High Court under this section to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction to interfere with pure question of fact while exercising its jurisdiction.
32. The Hon'ble Apex Court referred to its earlier decision in Madhavan Nair Vs Bhaskar Pillai7, to hold that the High Courts are not justified in interfering with the concurrent findings of fact. Even if the First Appellate Court commits an error in recording a finding of fact, that itself will not be a ground that the High Court to upset the same. 7 (2005) 10 SCC 553
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33. Referring to the Fifty Fourth report of the Law Commission of India submitted in 1973, the legislative background which led to amendment of Section 100 CPC was highlighted that 'the question could perhaps be asked, why the litigant who wishes to have justice of the highest court of the State should be denied the opportunity to do so, atleast where there is a flaw in the conclusion of facts reached by the Trial Court or by the Court of first appeal. The answer is obvious that, even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. It is held that an unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury'. Thus, the Apex Court once again crystallized the legislative intention by referring to its earlier decisions to caution the High Courts to refrain from interfering with the concurrent findings of fact without there being a substantial question of law. Thus, the position of law is very well settled with regard to interference under Section 100 of CPC.
34. It is not the contention of the appellants that judgments of the trial Court or the First Appellate Court is
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RSA No. 1975 of 2013either perverse, against the settled proposition of law or against the materials that are placed before the court. Under such circumstances, I do not find any reason to interfere with the same. The substantial questions of law are to be answered in favour of the plaintiff and against the appellants.
35. The conduct of the defendants since from the beginning, prima-facie shows that they are trying to blow hot and cold to somehow regal out of the situation. The plaintiff is made to run from pillar to post from 2002 till date. The tenor of arguments addressed before this Court discloses that it has no basis of any pleadings or proof. Therefore, I am of the opinion that it is fit case for imposing exemplary cost while dismissing the appeal as devoid of merits. Accordingly, I proceed to pass the following:
ORDER
(i) Appeal is dismissed with exemplary cost of Rs.25,000/- to be paid by the appellants to the plaintiffs/respondent Nos.1 to 4.
(ii) The judgment and decree dated 28.09.2011 passed in O.S.No.162/2009 on the file of the learned Additional Senior Civil Judge and JMFC, Hunsur, sitting at Periyapatna,
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confirmed by the Fast Track Court, Hunsur vide judgment dated 21.08.2013 in R.A.No.724/2011 is hereby confirmed.
(iii) Registry is directed to send back the trial Court Records along with copy of this judgment.
Sd/-
JUDGE SMJ