Karnataka High Court
Smt. Aruna Mallesh vs Smt. Jayamma on 14 July, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.1575/2011
BETWEEN:
SMT. ARUNA MALLESH
W/O M.P. MALLESH
HINDU,
R/AT NO. 1265, 7TH CROSS
CHANDRA LAYOUT,
BANGALORE-560 040. ...APPELLANT
(BY SRI A.M. VIJAY, ADVOCATE)
AND:
1. SMT. JAYAMMA
W/O LATE P. BASAVARAJU
HINDU, AGED ABOUT 40 YEARS
2. B.CHANDRAKALA
D/O LATE P. BASAVARAJU
HINDU, AGED ABOUT 19 YEARS
3. B.VARUN
S/O LATE P. BASAVARAJU
HINDU, AGED ABOUT 17 YEARS
4. B.AVINASH
S/O LATE P. BASAVARAJU
HINDU, AGED ABOUT 15 YEARS
DEFENDANTS NO.3 AND 4 ARE MINORS
REPRESENTED BY THEIR MOTHER I.E.,
DEFENDANT NO.1 SMT. JAYAMMA
5. SRI. P.KRISHNAIAH
S/O LATE PATEL M. PUTTAIAH
HINDU, MAJOR
2
ALL ARE R/AT NO.15,
2ND MAIN, DEEPANJALINAGARA
MYSORE ROAD
BANGALORE-56 026. ... RESPONDENTS
(BY SRI C.M.NAGABUSHANA, ADVOCATE FOR R-1 TO R-4;
SRI G.L. VISHWANATH, ADVOCATE FOR R-5)
THIS APPEAL IS FILED UNDER ORDER 41, RULE-1
R/W SECTION 96 OF C.P.C. PRAYING AGAINST THE
JUDGMENT & DECREE DATED 06.06.2011 PASSED IN
O.S.NO.4973/2001 ON THE FILE OF THE XV-ADDL. CITY
CIVIL JUDGE, BANGALORE CITY DISMISSING THE SUIT
FOR SPECIFIC PERFORMANCE.
THIS APPEAL COMING ON FOR FINAL DISPOSAL
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiff's appeal challenging the judgment and decree passed by XV Addl. City Civil and Sessions Judge, Bangalore, dated 06.06.2011, in O.S.No.4973/2001, whereunder plaintiff's suit for relief of specific performance of agreement of sale dated 22.09.1997 has been rejected.
2. Facts in brief which has lead to filing of this appeal are as under:
3
Plaintiff filed a suit for specific enforcement of agreement of sale dated 22.09.1997 for a direction to the defendants to execute the sale deed in her favour by conveying the suit schedule property, contending interalia that Late Sri P.Basavaraju, namely husband of first defendant and father of defendant Nos.2 to 4 along with his brother - fifth defendant had approached plaintiff for sale of property bearing No.22 situated at Patel Puttaiah Industrial Estate, Deepanajali Nagar, Mysore Road, Bangalore - 560 026 (hereinafter referred to as "suit property") and had executed an agreement of sale in her favour for a valuable sale consideration of Rs.9 lakhs and they had received a sum of Rs.3.25 lakhs towards sale consideration namely, by three cheques of Rs.2 lakhs, Rs.1 lakh and Rs.25,000/-. It was also contended that plaintiff is in possession of suit schedule property by virtue of a lease agreement dated 14.11.1986 and as such, symbolic possession was handed over. Plaintiff further contended that deceased Basavaraju and fifth defendant had agreed to execute 4 the sale deed within eleven (11) months from the date of agreement.
3. It is the further case of plaintiffs that they have always been ready and willing and had fulfilled the contractual obligations envisaged under the agreement. Plaintiff has pleaded that first defendant's husband expired on 23.04.1999 leaving behind defendant Nos.1 to 4 as his legal heirs and as such, plaintiff demanded the legal heirs to execute the sale deed by receiving the balance sale consideration and they went on postponing the execution of sale deed and as such, plaintiff got issued legal notice to Sri Basavaraju and fifth defendant on 18.09.2000 and fifth defendant by reply dated 01.11.2000 had informed the death of Sri Basavaraju and also stated that suit schedule property had fallen to the share of defendant Nos.1 to 4. Plaintiffs have contended that they got issued legal notice on 01.02.2001 to all the defendants calling upon them to execute the sale deed in their favour by receiving the balance sale consideration and defendant Nos.1 to 4 sent an interim reply on 14.02.2001, thereafter on 5 12.03.2001 defendant Nos.1 to 4 have sent untenable reply and as such, plaintiff contended that she has been perforced to approach the Court.
4. Plaintiff has further contended that she has always been ready and willing throughout and defendants have received major amount of sale consideration and are not coming forward to execute the sale deed though plaintiff has always been ready and willing to have the sale deed registered in her name. She further pleaded that plaintiffs are attempting to resile from their contractual obligation, since the price of suit property has increased by leaps and bounds. Hence, plaintiff prayed for direction to defendants to execute the sale deed.
5. On service of suit summons defendants appeared and on behalf of defendant Nos.1 to 4 written statement came to be filed denying the averments made in the plaint. The very execution of agreement of sale dated 22.09.1997 came to be denied. It was also contended that plaintiff and her husband were in heavy 6 debts during the year 1997 and several suits for recovery of the said debts, were also pending "during the year 1997" and as such, it was unthinkable that plaintiff had sufficient money to purchase the suit property. Defendants denied the issuance of legal notice dated 18.09.2000 to Sri Basavaraju or fifth defendant and he having sent a reply on 01.11.2000. All other averments made in the plaint, came to be denied specifically.
6. It was also contended that fifth defendant is not the owner of suit property and there was a division of joint family properties on 15.12.1980 itself and plaintiff is in occupation of a portion of it as a tenant, having obtained the same under lease from deceased Sri P.Basavaraju towards which rent was being paid in his favour till his demise.
7. It was specifically pleaded by defendant Nos.1 to 4 that agreement of sale dated 22.09.1987 is an outcome of collusion between plaintiff and fifth defendant. They further contended that no amounts 7 were paid by plaintiff to deceased Basavaraju under the alleged agreement of sale dated 22.09.1997 and as such, it was an unenforceable document and void from its inception.
8. Defendant Nos.1 to 4 contended that survey No.22 and other adjoining properties originally belonged to Sri Patel Puttaiah, father of deceased Sri Basavaraju and fifth defendant and during the lifetime of Sri M. Puttaiah, an oral partition had been effected amongst his wife and sons as per the memorandum of palupatti dated 15.12.1980, which came to be confirmed by a registered document subsequently and suit property along with adjoining properties had fallen to the share of Sri P.Basavaraju and since 1980 said Sri Basavaraju and fifth defendant were residing separately and after the division, fifth defendant was never residing in the address furnished in the cause title of plaint. It was also pleaded that plaintiff's husband is in occupation of another industrial shed belonging to defendant Nos.1 to 4 as a tenant, since 1984 and on these grounds, defendant Nos.1 to 4 contended that question of 8 executing any agreement of sale jointly by deceased Sri Basavaraju along with his brother - fifth defendant did not arise at all and as such, they denied the very execution of agreement of sale dated 22.09.1997.
9. They also contended that as on 1997 the value of suit property was around Rs.40 lakhs and it was situated within the corporation limits namely 8 kms from Vidhana Soudha and as such, disposing of suit property for Rs.9 lakhs, did not arise at all. On this ground also they denied the execution of agreement by Sri Basavaraju.
10. They further contended that plaintiff and her husband were aware of death of Sri Basavaraju namely, on 23.04.1999 and knowing fully well they got issued a legal notice on 18.09.2000, by which time he had expired and as such, it was alleged that there was collusion between plaintiff and fifth defendant in bringing about the agreement of sale dated 22.09.1997. Description of suit property in legal notice dated 18.09.2000 and 01.02.2001, which was at variance also 9 came to be highlighted in paragraph 10 of the written statement.
11. They further contended that plaintiff is in occupation of a portion of suit property and after duly terminating the tenancy, a suit for ejectment was filed by defendant against plaintiff in O.S.No.2343/2001 and same is pending. They contended that there was no compelling reason for deceased Basavaraju to enter into an agreement of sale with plaintiff and the other shed, which is in occupation of plaintiff's husband, is also fetching rent to them. On these amongst other grounds, they denied the execution of agreement of sale and prayer for dismissal of the suit.
12. Fifth defendant on service of suit summons appeared and filed his written statement independently controverting the plaint averments and he specifically contended that he is neither the owner nor having any interest in the suit property. He also pleaded that plaintiff approached him to purchase the suit property, since he was a tenant of same since several years. He 10 also admitted the execution of agreement dated 22.09.1997. However, he pleaded that though suit schedule property was allotted to Sri P.Basavaraju under palupatti dated 15.12.1980, it was nominally allotted to his share (i.e., fifth defendant) since deceased Sri Basavaraju was addicted to alcohol and was not a responsible person and to prevent Basavaraju from squandering away his properties and to secure the same for the benefit of his family members namely, defendant Nos.1 to 4 agreement was entered into. He further pleaded that he held the suit property as nominee of his brother - Sri P. Basavaraju and the advance amount paid by plaintiff namely, Rs.2 lakhs and Rs.1 lakh on 18.10.1997 and 19.10.1997 to him, was made over to the account of Sri Basavaraju on 20th October and 24th October' 1997 respectively. He further pleaded that he has not retained any part of advance amount received from plaintiff and had already transferred such monies to the account of Sri Basavaraju.
13. Fifth defendant also pleaded that on the demise of P.Basavaraju on 23.04.1999, the widow of Sri 11 Basavaraju namely, first defendant effected a registered partition deed under which suit property transferred to first defendant's share, which had already been transferred to her name and as such, he pleaded that first defendant is the absolute owner in possession and enjoyment of suit property. He also specifically pleaded that he is neither the owner nor having any interest in the suit schedule property. All other averments made in the plaint came to be denied by fifth defendant.
14. On the basis of pleadings of the parties, trial court framed the following issues for its adjudication:
(i) Whether the plaintiff proves that the Late P.Basavaraju & Defendant No.5 were agreed to sell the suit schedule property for a valuable consideration of Rs.9,00,000/- executed on Agreement of Sale dated 22-9-1997 by receiving an Advance amount of Rs.3,25,000/-?
(ii) Whether the plaintiff proves that, he was in possession of this suit schedule property by virtue of the Agreement Dated 14-11-1986 as such, a symbolic possession of the suit schedule property was given to her?
(iii) Whether the Defendant No.1 to 4
proves that, the agreement of sale 22- 09-1997 is fabricated and created by 12 the plaintiff in collusion with the Defendant No.5?
(iv) Whether the Plaintiffs proves that, she had been always ready and willing to perform her part of the contract?
(v) Whether the plaintiff is entitled the relief of specific performance of contract?
(vi) To what Order or Decree?
15. Plaintiff examined her husband as P.W.1 and in all, she produced 17 documents and got them marked as Exs.P-1 to P-17(f). On behalf of defendants, first defendant and fifth defendant got themselves examined as D.W.1 and D.W.2 and also examined one witness, Sri Gurupada Simpi as D.W.3. namely, the Manager of State Bank of India, Byatarayanapura Branch, and in all, 11 documents were produced by him and they were got marked as Exs.D-1 to D-11. Trial court after considering the pleadings of the parties and on appreciation of evidence both oral and documentary, by its judgment and decree dated 06.06.2011, has dismissed the suit, which is under appeal. 13 FINDINGS RECORDED BY TRIAL COURT:
16. Trial Court has found that P.W.1 had entered into a lease agreement with deceased Sri Basavaraju in the year 1986 and there was a relationship of lessor and lessee and the evidence of P.W.1, cannot be believed on the ground that plaintiff being a lessee cannot be ignorant of death of landlord, particularly when he admits in his cross-examination that he has not paid rents to the suit schedule property after the death of Sri Basavaraju. Trial Court has also found that various corrections made in the agreement does not tally with the figures as mentioned therein, as well as evidence and as such, it has arrived at a conclusion that Ex.P-16 is materially tampered. The very execution of Ex.P-16 has been disbelieved by Court below. Trial Court also found that evidence of fifth defendant, cannot be accepted since in his evidence he has stated that he has paid a sum of Rs.75,000/- to his brother Sri Basavaraju and in his written statement, he has stated that amounts received by him from plaintiff had been made over to the account of Sri Basavaraju on 14 two occasions namely, transferring Rs.2 lakhs and Rs.1 lakh to the account of deceased Sri Basavaraju and repaying Rs.25,000/- by cash. As such, trial Court has held that plaintiff and fifth defendant are colluding with each other. Trial Court has also found that fifth defendant has admitted that there was partition between himself and deceased Sri Basavaraju in the year 1980 and they were enjoying the properties independently and there was no occasion for fifth defendant to join in the execution of sale agreement, as one of the factors to doubt the bonafides of defendant No.5.
16.1 Trial Court also found that agreement of sale Ex.P-16 would indicate that amount as reflected therein has been paid on the said date, though factually it was paid on a later date i.e., on 16.10.1997 and as such, there is a cloud over the very execution of agreement to sell - Ex.P-16. Trial Court has also found that fifth defendant, who has been examined as D.W.2 in the course of his cross-examination had admitted that he has affixed his signature after the execution of 15 sale agreement Ex.P-16, which was on 22.09.1997 and no explanation, whatsoever, was forthcoming as to the reason for affixing the signature belatedly. Trial Court has also found that suit document - Ex.P-16 was claimed by D.W.2 as having been purchased by deceased Sri Basavaraju to disbelieve its execution on the ground that making use of signature available on the stamp paper, fifth defendant has brought about the agreement of sale in collusion with the plaintiff. On these grounds, trial Court has disbelieved the execution of suit document.
16.2 The fact that plaintiff demonstrated her readiness and willingness, was also disbelieved by the trial Court since it was found that under the contract, time agreed to was eleven (11) months from the date of execution of agreement and after a period of almost two years plaintiff had issued notice to fifth defendant and deceased Sri Basavaraju on 18.09.2000 calling upon them to execute the sale deed in respect of suit schedule property and surrounding circumstances namely, the admission of P.W.1 that after the execution of sale 16 agreement till she issued notice in the year 2000, she did not make any demand in writing, was a factor which had swayed in the mind of trial Court to arrive at a conclusion that this interregnum period i.e., from the date of execution of sale agreement till date of issuance of notice, remained in vacuum and unexplained by plaintiff to exhibit her readiness and willingness, as a ground for answering the said issue against plaintiff and in favour of defendants.
17. I have heard the arguments of Sri A. M Vijay, learned counsel appearing for appellant and Sri C.M.Nagabhushan, learned counsel appearing for respondent Nos.1 to 4 and Sri Gurumurthy, learned counsel appearing for respondent No.5.
Parties are referred to as per their rank in the trial Court.
18. It is the contention raised by Sri A.M.Vijay, learned counsel appearing for appellant that trial Court committed a serious error in raising a suspicion with regard to the very execution of agreement of sale 17 without any cogent reasons; that fifth defendant, who was one of the executant of agreement, has himself admitted in the cross-examination about execution of sale agreement dated 22.09.1997 and as such, there was no basis for trial Court to doubt the execution of agreement; trial Court ought to have noticed that fifth defendant having contested the suit would itself clearly establish that suit in question was not a collusive suit, as contended by defendant Nos.1 to 4 and hence, it ought to have held that agreement in question was duly proved by plaintiff; the very fact that fifth defendant transferred the amounts paid by plaintiff by way of advance sale consideration to the bank account of deceased Sri Basavaraju, was corroborated by Ex.D-10 bank statement and as such, trial Court ought to have arrived at a conclusion that there was a valid agreement entered into between the parties and plaintiff had paid advance amount towards purchase of suit property which was duly acknowledged by fifth defendant, as well as late Sri Basavaraju; even otherwise, he would submit that trial Court could not have negatived the claim of 18 plaintiff only on the ground that there was inordinate delay on the part of fifth defendant in transferring the advance consideration amount in favour of Sri P Basavaraju; finding recorded by trial Court that there was a tampering with agreement of sale dated 22.09.1997, is without any plea and proof thereof and in the absence of it, trial Court could not have recorded such a finding; the very fact that suit document wherever it has been corrected has been duly attested by the signatories namely, Sri Basavaraju and fifth defendant and this aspect has been lost sight of by trial Court; finding recorded by trial Court that there was collusion between plaintiff and fifth defendant is without cogent evidence and said finding is based on surmises and conjectures.; trial Court could not have ignored the unclenching evidence of P.W.1 and the minor discrepancies or inconsistencies if any, did not have any material bearing on plaintiff's case; non consideration of these aspects has vitiated plaintiff's legitimate claim and as such, he prays for setting aside the judgment and decree passed by trial Court. 19
19. Elaborating his submissions, he would contend that trial Court also dismissed the suit on the ground of hardship to defendants 1 to 4 as on the date of passing of the judgment and hardship if any, is to be looked into as on the date of agreement in view of Section 20(2) of the Specific Relief Act, 1963; he would draw the attention of the Court to the evidence of D.W.1 to buttress his contention with regard to inconsistent plea raised by defendants 1 to 4 regarding hardship and the evidence on record. He would also draw the attention of the Court to the evidence of P.W.1 namely, cross examination whereunder it has been suggested that corrections found in suit document has been duly signed by both parties which again would be a factor indicating the existence of suit document or execution of suit document by fifth defendant and deceased Sri Basavaraj.
20. He would also draw the attention of the Court to the cross examination of D.W.1 whereunder it is suggested to him that plaintiff had no financial 20 capacity to purchase the suit schedule property, he has denied the same, would indicate that plaintiff was always ready and willing to perform his part of the contract by paying balance sale consideration; he would further submit that D.W.3 - Manager of State Bank of India where both fifth defendant and deceased Sri Basavaraj had accounts, has admitted about transferring of the amount from the account of fifth defendant to the account of deceased Sri Basavaraj as reflected in Ex.D-10, which would indicate that there was a concluded contract between the parties; he would submit that non consideration of these vital aspects and non examination of available evidence on record and also erroneous appreciation of evidence has resulted in dismissal of the suit on grounds alien to the facts. Hence, he prays for allowing the appeal by decreeing the suit as prayed for.
21. In support of his submission, he has relied upon judgment of Hon'ble Apex Court in the case of ALOKA BOSE vs PARMATMA DEVI AND OTHERS reported in (2009)2 SCC 582.
21
22. Per contra, Sri C M Nagabhushan, learned Advocate appearing for defendants - 1 to 4 would support the judgment and decree passed by the trial Court and contends that undisputedly, plaintiff had taken a portion of suit schedule property on lease from late Sri Basavaraju as evidenced from the lease deed dated 14.11.1986 - Ex.P-17 and as such, she cannot contend that Sri Basavaraj was not the absolute owner of suit schedule property and contends that trial Court has rightly disbelieved the very execution of sale agreement - Ex.P-16 since brother of Basavaraju has also been shown as owner of suit schedule property. He would further submit that when P.W.1 admits in the cross examination that both Sri Basavaraj and Sri Krishnaiah had affixed their signatures to the sale agreement - Ex.P-16 on the same day and at the same time relied upon evidence of D.W.2 which would indicate that fifth defendant that is D.W.2 affixed his signature on 16.10.1997 and as such, there is variance at pleadings and evidence and as such, the very execution of sale agreement has been rightly disbelieved 22 by the trial Court and no fault can be found in the said finding. Even otherwise, he would submit that as on the date of execution of sale agreement, no consideration has flown assuming that there was any such sale agreement on 22.09.1997 without consideration. He would also draw the attention of Court to entire pleadings and evidence on record to contend that neither plaintiff nor fifth defendant have stated about fifth defendant being the co-owner of suit schedule property or fifth defendant representing deceased Sri Basavaraju in any capacity whatsoever. He would further elaborate his submission by contending that D.W.2 was in financial distress during 1997 and earlier to that, which has been admitted by him in his cross examination. Hence, he contends for repaying the amounts so borrowed by him from deceased Basavaraju, he had credited the amounts to the account of deceased Sri Basavaraju and it has no nexus whatsoever to the alleged transaction relating to suit document - Ex.P-16. He would also draw the attention of the Court to the cheque issued by Sri 23 Krishnaiah - fifth defendant to the deceased Sri Basavaraju which came to be marked as Exs.D-6 & D-7 relating to the period March, 1997 and April, 1997 pointing out to the fact that fifth defendant was borrowing monies from deceased Sri Basavaraju. He would also draw the attention of the Court to pleadings namely, plaint averments to contend that plaintiff has nowhere stated as to why he issued cheques in favour of fifth defendant when he was knowing fully well that deceased Sri Basavaraju was the owner of suit property and on account of no consideration having flown from plaintiff to deceased Sri Basavaraju and there being no privity of contract between plaintiff and defendants - 1 to 4, question of directing defendants - 1 to 4 to execute the sale deed did not arise and as such, finding recorded by the trial Court rejecting the claim of plaintiff cannot be found fault with. On these grounds, he prays for dismissal of the appeal and seeks for confirming the judgment and decree passed by the trial Court.
24
23. Having heard the learned Advocates appearing for parties and on perusal of judgment and decree in question and on re-appreciation of entire evidence, I am of the considered view that following points would arise for my consideration:
(1) Whether trial Court was correct in arriving at a conclusion that agreement of sale dated 22.09.1997 - Ex.P-16 was shrouded with mystery and as such it cannot be believed or the very execution of sale agreement dated 22.09.1997 - Ex.P-16 by deceased Sri Basavaraju in favour of the plaintiff as disbelieved by the trial Court requires to be affirmed or reversed?
(2) Whether judgment and decree passed by the trial Court suffers from any patent illegality or irregularity?
25
OR Whether trial Court has committed an error in ignoring material evidence available on record or is there non appreciation of available evidence by the trial Court and as such, finding recorded by trial Court is to be reversed?
(3) What order?
24. The facts namely, pleadings as well as the issues framed as adjudicated by trial Court has already been narrated herein above and any such exercise if undertaken by this Court in this regard once again would only be repetition of facts and as such, they are not delved upon once again.
25. An appeal being continuation of original proceedings, this Court has got the power to review the evidence subject to limitations. In a situation where the appellate Court finds that order passed by trial Court is absolutely correct, both on facts and on law and where 26 there is virtually no ground either factually or legally justifying interference, in such circumstances, the appeal requires to be rejected. However, when the Court of first appeal intends to upset the findings of the trial Court as perverse, contrary to evidence on record, it would be required to assign reasons as to how such perversity has crept in and what is the non appreciation of such evidence by assigning the cogent reasons as to whether the evidence on record examined by the trial Court and reasons assigned by it for rejecting the relief after focusing its attention to the facts to find out as to whether said finding recorded by trial court is tainted with erroneous consideration of facts or consideration of irrelevant evidence or ignoring the relevant evidence and these aspects are all in the realm of appellate Courts. Hence, keeping these principles in mind, let me examine the points formulated in this appeal.
26. Points formulated herein above are interlinked with each other and any finding recorded on one point would have bearing on the other and as such 27 they are taken up together for consideration and adjudication thereof.
RE: POINT Nos.(1) & (2):-
27. Plaintiff has pleaded that fifth defendant along with deceased Sri Basavaraju had executed an agreement of sale in her favour agreeing thereunder to sell suit schedule property. Perusal of the plea raised in plaint would indicate that in the plaint the description of the property is as under:
"SCHEDULE Property bearing No.22, consisting of RCC building situated at Patel Puttaiah Industrial Estate, Deepanjalinagara, Mysore Road, Bangalore-560 026, Corporation Division No.36, measuring East to West 77 feet and North to South facing Western side 150 feet and facing Eastern side 148 feet including the shed property measuring 100X30 feet and bounded on:
East by : Compound belongs to BHEL
West by : Property of Manoj Kumar,
Ravi and Aswath
North by : Property belongs to Ashwin
Chabriya and
South by : Road"
28
The agreement of sale dated 22.09.1997 - Ex.P.16 propounded by the plaintiff wherein schedule has been described, reads as under:
µÉqÀÆå¯ï «ªÀgÀ "¨ÉAUÀ¼ÀÆgÀÄ ¹n, PÁ¥ÉÆðgÉõÀ£ï 36£Éà r«d¤ßUÉ ¸ÉÃjzÀ ¨ÉAUÀ¼ÀÆgÀÄ-26, ªÉÄʸÀÆgÀÄ gÀ¸ÉÛ, ¢Ã¥ÁAd°£ÀUÀgÀ ¥ÀmÉÃ¯ï ¥ÀÄlÖAiÀÄå EAqÀ¹ÖçÃAiÀÄ¯ï §qÁªÀuÉAiÀÄ°ègÀĪÀ ¸ÀªÉð £ÀA.22£Éà £ÀA§gÀÄ ¥ÉÊQ ¸ÀéwÛ£À ZÀPÀÄ̧A¢:-
¥ÀƪÀðPÉÌ : 148 CrUÀ¼À ©.ºÉZï.E.J¯ï
PÁA¥ËAqï
¥À²ÑªÀÄPÉÌ : ªÀÄ£ÉÆÃeï PÀĪÀiÁgï ªÀÄvÀÄÛ gÀ«,
C±Àéxï gÀªÀgÀ 150 CrUÀ¼À ¸ÀévÀÄÛ
GvÀÛgÀPÉÌ : C²é¤ ZÁ©æAiÀÄ gÀªÀgÀ 77-0 CrUÀ¼À
¸ÀévÀÄÛ
zÀQëtPÉÌ : gÀ¸ÉÛ
F ªÀÄzsÉå EgÀĪÀ ¥ÀƪÀð-¥À²éªÀÄ : 30-0 (ªÀÄƪÀvÀÄÛ) CrUÀ¼ÀÄ, GvÀÛgÀ- zÀQët: 100-00 (MAzÀÄ £ÀÆgÀÄ) CrUÀ¼ÀÄ, F jÃw C¼ÀvÉAiÀÄļÀî ¥ÀÆgÁ ¸ÉÊlÄ F ¸ÉÊlÄ ºÁUÀÆ EzÀgÀ°è PÀnÖgÀĪÀ Dgï.¹.E bÁªÀt ªÀÄ£É ¸ÀévÀÄÛ F ±ÀÄzÀÝ PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæPÉÌ M¼À¥ÀnÖgÀÄvÉÛ."
It is an undisputed fact that the plaintiff has been in possession of industrial shed measuring 30' x 100' under an agreement of lease executed by deceased Sri Basavaraju in favour of plaintiff which is evidenced from lease agreement Ex.P-17. The boundary described under the said lease agreement reads as under: 29
"SCHEDULE Industrial shed belongs to the Lessor bearing No.22/B shed covering the length of the premises of the shed plinth 48 feet towards north to south and 29 feet width on south side and 26 feet on north side, situated at survey No.22 in Deepanjalinagar.
East by : Boundary wall of BHEL
West by : Private shed of Mr.Aswath
North by : Open space of the Lessor
South by : 15 feet road"
Thus, comparison of description of the property in Exs.P-16, P-17 and the plaint, it does not leave a doubt that there is improper description of the property in the plaint. In paragraph 2 of the plaint a vague plea has been put forward about delivery of possession of suit schedule property, as to whether entire suit schedule property was delivered to plaintiff or only a portion of it was delivered, nothing has been said about. Perusal of Ex.P-16 Agreement of Sale does not indicate about possession of portion of suit schedule property having already been delivered to plaintiffs. Pleadings is very vague in this regard. This is the first step of suspicion 30 raised by the trial court regarding very execution of Agreement of Sale by late Sri Basavaraju i.e., husband - 1st defendant and father of defendants 2 to 4.
28. Be that as it may. As already noticed herein above, plaintiff had been inducted as a tenant of portion of suit schedule property as admitted by her in the plaint at paragraph 2 and it would leave no doubt about plaintiff being fully aware as to who is the owner of suit schedule property. If it is so, as to what was the compelling reason for her to enter into an agreement with deceased Sri Basavaraju (lessor of plaintiff) along with his brother Sri Krishnaiah (fifth defendant) would be the moot question. The perusal of entire plaint does not indicate about any reason having been assigned in this regard. Even the legal notice dated 18.09.2000 - Ex.P-2 and the second legal notice dated 01.02.2001 - Ex.P-4 is also silent on this aspect. In fact, plaintiff in her second legal notice dated 01.02.2001 at paragraph 2, admits about she being a tenant of the suit property under lease deed dated 14.11.1986 - Ex.P-17. Agreement of Sale Ex.P-16 is also silent on this aspect 31 and there is neither pleading nor evidence in this regard. This is the second step of suspicion raised by trial court with regard to very execution of agreement.
29. In this factual background, let me examine as to whether finding recorded by trial Court with regard to execution of the sale agreement Ex.P-16 as disbelieved, requires to be affirmed or reversed?
30. A contract comes into existence on offer being made and same being accepted. In other words, such a contract can be termed as concluded contract as otherwise, not. According to plaintiff, Ex.P-16 has been signed by deceased Sri Basavaraju and fifth defendant. Said agreement is dated 22.09.1997 consisting of two pages drawn on a stamp paper of Rs.100/- which is said to have been purchased by fifth defendant. When even according to fifth defendant, suit property belongs to deceased Sri Basavaraju alone as to what made him i.e., 5th defendant to purchase stamp paper is not forthcoming. There is no evidence in this regard. This is the next step in which suit document will have to be 32 looked into with suspicion. Page 1 of Ex.P-16 is found with corrections at four places. The consideration for purchase of suit schedule property is shown as Rs.10 lakhs i.e., the figure '10,00,000-00' has been struck off namely, the figure '10' has been struck off and in its place, it is corrected as '9' in Ex.P-6. Likewise, the kannada word 'ºÀvÀÄÛ' is also struck off and in its place the word 'MA¨sÀvÀÄÛ (9)' has been written. Further, cheque number '120101' and name of Bank 'State Bank of India' which were hand written have also been struck off. It is no doubt true that these corrections have been countersigned with two signatures which according to plaintiff being that of deceased Sri Basavaraju as well as fifth defendant (D.W.2). It is no doubt true that fifth defendant has admitted his signature on Ex.P-16. The incidental question that would arise is whether such admission would suffice or even if there is an admission of defendants - 1 to 4 remotely also, would it be sufficient enough to arrive at a conclusion that there was concluded contract between the parties. When we go in search of answer for this question, the answer will 33 have to be in the negative for reasons more than one. Firstly, the very signature of Sri Basavaraju having been denied by defendants-1 to 4, it cannot be held that Ex.P- 16 is duly proved. Secondly, the evidence on record would indicate that both deceased Basavaraju and fifth defendant affixed their signature on the day of execution of Ex.P-16 namely, on 22.09.1997 itself. In the cross examination of P.W.1 dated 06.04.2006 it is admitted by P.W.1 to the following effect:
" It is true that, up to 4.11.2000 xxx Ex.P-16A are issued in favour of defendant No.5. Both Basavaraj and Krishnappa sign on the very same day on Ex.P-16."
In the very same cross examination, P.W.1 also admits that on the said date, plaintiff, P.W.1, D.W.2 and deceased Sri Basavaraju were present. P.W.1 further states that there were no other persons present. However, in the column of witness in Ex.P-16 we find there is a signature. In fact, it is the same signature as found in the witness to the document of lease deed Ex.P-17. the evidence of this witness would have thrown light as to the factual aspects. Non examination 34 of this witness to prove Ex.P-16 has been fatal to the plaintiff's case. If alterations found on Ex.P-16 has been countersigned by the D.W.2 and deceased Sri Basavaraju on the date of execution of agreement i.e., 22.09.1997, then, necessarily, evidence of D.W.2 that he affixed his signature on 16.10.1997 namely, on the date on which he received the cheques from the plaintiff will have to be discarded.
31. As rightly held by the trial Court inconsistencies in the recitals of the suit document Ex.P-16 being writ large, deserves to be accepted. Firstly, when the total consideration (as per altered figures) being Rs.9 lakhs and advance amount of Rs.3 lakhs having been paid, the balance amount would have been Rs.6 lakhs and not Rs.7 lakhs as reflected. The admitted signatures of D.W.2 in Ex.P-16 is in the same handwriting as well as ink of the endorsement found at the end of page 2 of Ex.P-16 which has been marked as Ex.P-16H which apparently was not on the date of execution of agreement, and no explanation whatsoever is forthcoming either from the plaintiff or 35 fifth defendant with regard to said discrepancy. Secondly, under the column 'vendee' the alleged signature of Sri Basavaraj is found at the top and the signature of Sri Krishnaiah - D.W.2 is found at the bottom. As to how the vendor has affixed his signature at the place earmarked for 'vendee', no explanation is forthcoming. Undisputedly there are reciprocal promises which are required to be performed by vendor and vendee under the contract, Ex.P-16. In other words, it is agreed between the vendor and vendee that vendee - purchaser would pay the entire balance consideration within a period of 11 months and failure to pay said amount within the said period, vendors would be entitled to forfeit the advance amount. It is also agreed between the parties that when the vendee offers entire balance consideration within agreed period and calls upon the vendors to execute and register the sale deed and in the event of their failure, the vendors would be liable to pay double the amount to the vendees. It is also agreed by the purchaser to bear the charges towards stamp duty and registration.
36
32. A perusal of Ex.P-16 in toto would clearly indicate that there is reciprocal promises that are required to be performed by both the parties. In other words, offer made by one party which is required to be fulfilled by other party would form contract when acceptance is given to such an offer. In other words, offer and acceptance would go hand in hand to construe a contract to be a concluded contract. When facts on hand is examined, in this background and particularly, when Ex.P-16 is examined as discussed herein above, it leaves no doubt in the mind of this Court that contract in question is not a concluded contract. Offer made by the vendors to the vendee under Ex.P-16 is assumed to be genuine for a moment, it has not got crystalised into a concluded contract since such offer is not accepted by the purchaser by affixing her signature to Ex.P-16.
33. It is no doubt true that while executing agreement to sell, both parties are required to sign the agreement. It depends on as to what the circumstances prevail or in other words, as to whether there is an 37 unequivocal promise by the vendor to sell the property to vendee or purchaser has agreed to perform certain promises on his part under the contract. In other words, it does not necessarily mean that in all contracts of agreement to sell, signature of vendor and vendee is required to be affixed. It is in this background, Hon'ble Apex Court in the case of ALOKA BOSE vs. PARMATMA DEVI AND OTHERS reported in (2009) 2 SCC 582 referred to supra has held as under:
"18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale."
(emphasis supplied) On facts, Hon'ble Apex Court in the above referred judgment found that Agreement of Sale was signed by 38 the vendor only and it was duly witnessed by four witnesses and was delivered to the purchaser. It was also found that a separate endorsement has been made on the date of agreement itself by the vendor acknowledging receipt of Rs.2,001/- as advance and the second endorsement (which is also duly witnessed) had been made by the vendor acknowledging the receipt of further sum of Rs.2,000/- and confirming the total earnest money received as Rs.4,001/- and as such, Hon'ble Apex Court held that purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a instrument evidencing concluded contract.
34. Yet another aspect which requires to be noticed by this Court is an agreements of sale are bilateral contracts as promises are made by both the vendor agreeing to sell and purchaser agreeing to purchase. In other words, it would be a concluded contract on offer being made by the vendor and same being accepted by the vendee - purchaser. In this background, when Ex.P-16 is re-examined, it leaves no 39 doubt to hold that agreement of sale dated 22.09.1997 is not a concluded contract and there was no privity of contract between plaintiff and deceased Sri Basavaraju and fifth defendant, even accepting the claim of plaintiff that Ex.P-16 is to be primafacie believed (which is otherwise in the instant case for the reasons already assigned hereinabove).
35. It is an undisputed fact that plaintiff had entered into an agreement of lease in respect of a portion of suit schedule property under lease agreement dated 14.11.1986 Ex.P-17. In fact, plaintiff herself admits in the plaint as well as through her witness P.W.1. about portion of suit schedule property having been leased to her. In other words, she admits that Sri Basavaraju had a right to enter into lease agreement in respect of portion of suit schedule property as its owner thereof. She was also paying the rents according to P.W.1 till the sale agreement as per Ex.P-16. It is an undisputed fact that P.W.1 husband of plaintiff is a tenant in respect of another shed under Sri Basavaraju which is adjacent to suit schedule shed situated on the 40 southern side. In the cross examination dated 24.01.2006, P.W.1 admits to this fact which admission reads as under:
"It is true that there are number of industrial shed that have come up in Puttaiah Industrial Estate. It is true that, in another shed I am a tenant in my individual capacity as a tenant under Basavaraj."
This would clearly indicate that relationship between plaintiff and deceased Sri Basavaraju as well as P.W.1 and Sri Basavaraju was that of lessor and lessee and neither of them i.e., plaintiff or P.W.1 can feign ignorance about the death of Sri Basavaraju which was on 23.04.1999 inasmuch as, plaintiff has contended in the plaint as well as in her evidence that she was always ready and willing to perform her part of the contract and she was demanding Sri Basavaraju to execute the sale deed till she got issued legal notice to Sri Basavaraju on 18.09.2000. When Sri Basavaraju had expired on 23.04.1999 obviously the claim of plaintiff that she was demanding Sri Basavaraju to execute the sale deed till she issued legal notice on 18.09.2000 - Ex.P-2 cannot be eschewed. Conversely, if she was 41 ignorant of the death of Sri Basavaraju, what made her to not demand execution of the sale deed from Sri Basavaraju till she issued the legal notice on 18.9.2000 has remained as a mystery unraveled. In fact, P.W.1 when posed with a question as to whether subsequent to execution of Ex.P-16, whether plaintiff had made any demand in writing calling upon Sri Basavaraju to execute the sale deed, he has answered in the negative. His admission in the cross examination dated 24.01.2006 reads as under:
"The sale consideration xxx Ex.P-16. it is incorrect to suggest that I have not made any such demand in writing. It is incorrect to suggest that neither I demanded in writing nor I had called for specific performance with the fifth defendant. "
This admission would indicate that P.W.1 on behalf of the plaintiff had never made any demand on Sri Basavaraju calling upon him to execute the sale deed. However, such demand said to have been made in writing did not see the light of the day. As such, unexplained delay on the part of plaintiff from the date of execution of alleged agreement - Ex.P-16 till the 42 date of issuance of first legal notice on 18.09.2000 has remained unexplained. This is yet another factor which disentitles the plaintiff for grant of discretionary relief of specific performance.
36. It is nodoubt true that under sub-section (2) of Section 20 of Specific Relief Act, 1963 hardship that would be caused to defendant to call upon the performance by directing execution of sale deed will have to be measured as on the date of agreement. Even according to plaintiff and fifth defendant, deceased Sri Basavaraju was an alcoholic and he expired on 23.04.1999 and as such, hardship that would have been caused to defendants as on the date of agreement would be much more and the claim of defendant or the plea of hardship pleaded in the written statement by defendants 1 to 4 will have to be seen in this background and clause (b) of sub-section (2) of Section 20 of Specific Relief Act, 1963 and when so viewed, it cannot be said that discretion exercised by the trial Court in arriving at a conclusion that defendants would be put to more hardship if specific performance is 43 declared cannot be held as an erroneous finding. As on the date of filing of the suit i.e., on 04.07.2001, the sons and daughter of deceased Basavaraju were aged about 17 yrs, 15 yrs and 19 yrs respectively or as on the date of suit, sons of deceased Sri Basavaraju were minors and hardship which the deceased defendant could not foresee in the background of he being alcoholic is a good ground for arriving at a conclusion that defendants 1 to 4 will be put to more hardship if suit is decreed and it would not cause any hardship to the plaintiff whatsoever if the relief of specific performance is refused.
37. In the light of discussion made herein above, I am of the considered view that points 1 to 3 formulated herein above deserves to be answered against appellant and in favour of respondents.
38. For the reasons aforestated, I proceed to pass the following:
JUDGMENT
(i) Appeal is hereby dismissed.44
(ii) Judgment and decree passed by XV Addl.
City Civil and Sessions Judge, Bangalore, dated 06.06.2011, in O.S.No.4973/2001 is hereby affirmed.
(iii) Parties to bear their respective costs.
(iv) Registry to draw the decree accordingly.
Sd/-
JUDGE DR