Karnataka High Court
Sri Mahantesh Veerappa Wali vs Smt Imambi @ Dadima on 14 August, 2012
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 14 T H DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE H. S. KEMPANNA
RFA NO.761/2007 [SP]
BETWEEN
SRI MAHANTESH VEERAPPA WALI
AGED ABOUT 46 YRS
OCC BUSINESS AND AGRICULTURE
R/AT BAILAHONGAL TQ
BAILAHONGAL BELGAUM DIST
... APPELLANT
(By M/S. M.G.NAGANURI & S.P.PATIL - ADVS. )
AND
1. SMT IMAMBI @ DADIMA
W/O ABDUL KHALIKSAB DHARWAD
AGED ABOUT 65 YRS
OCC BUSINESS AND HOUSEHOLD
R/AT OPP HOTEL SHANBHAG HUBLI ROAD
GADAG TQ GADAG DIST
2. SMT PRAVEEN W/O SYYAD ABDUL RAHIM MADANI
AGED ABOUT 42 YRS
OCC HOUSEHOLD WORK
R/AT C/O SAYYAD ABDUL RAHIM S MADANI
ASSISTANT EXECUTIVE ENGINEER
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PWD RAICHUR TQ RAICHUR DIST
3. SRI ASRAR
S/O ABDUL KHALIKSAB DHARWAD
AGED ABOUT 37 YRS
OCC BUSINESS
R/AT NAM JOSHI ROAD GADAG TQ
GADAG DIST
4. SRI IRAFAN
S/O ABDUL KHALIKSAB DHARWAD
AGED ABOUT 33 YRS OCC BUSINESS
R/AT NAM JOSHI ROAD GADAG TQ
GADAG DIST
... RESPONDENTS
(By Sriyuths . P.A.KULKARNI & G.R.RAIBAGI - ADVS FOR
R1 TO R4; SRI.J.R.NULANNAVAR - ADV. FOR R2)
RFA FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.31.01.2007 PASSED IN
OS.NO.23/1999 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND CJM., GADAG, DISMISSING THE SUIT FOR
SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR HEARING
THIS DAY, N.KUMAR J., DELIVERED THE
FOLLOWING:
J U D G M E N T
This is the plaintiff's appeal against the judgment and decree of the trial Court which has dismissed the suit of the plaintiff. -3-
2. For the purpose of convenience, the parties are referred to as they are referred to in the plaint.
3. The subject matter of the suit is shop premises bearing CTS No.1768/17 measuring 33 Sq.yards (83 sy.yards) tenure 'c' situated at NaM Joshi Road, Gadag, within the limits of Gadag- Betgeri City Municipal, Gadag Taluk, which is hereinafter referred to as the 'schedule property'.
4. Defendant No.1 Imambi is the owner of the schedule property. She is in possession and enjoyment of the schedule property. She purchased the said shop premises from its owner Sri.Hanamant Parushuram Dayapute for a sum of `9,000/- under a registered sale deed dated 1.11.1961. Her name is duly entered in -4- the city survey records as holder. Defendant No.2 Paraveen is the daughter and defendant No.3 and defendant No.4 Asrar and Irapan are the sons of defendant No.1. Defendant No.1 is running a metal store selling steel utensils in the schedule property with the assistance of her sons-defendants 3 and 4.
5. The case of the plaintiff is defendant No1 for her family and legal necessity bought the suit property for sale. Defendant No.1 agreed to sell the suit property in favour of the plaintiff for a sum of `3,75,000/- in the presence of elders. Defendant No.1 took `1,75,000/- and agreed to deliver vacant possession of the suit property at the time of execution of the sale deed. Defendant No.1 agreed to come and execute the sale deed whenever the plaintiff calls upon her by taking -5- remaining balance consideration amount. Defendant No.1 has executed the agreement of sale in the name of plaintiff by incorporating the terms of the contract. Defendants 3 and 4 have joined in the execution of the agreement. On 28.4.1996 defendant No.1 took cash amount of `1,00,000/- out of sale consideration. Defendants 1, 3 and 4 got made endorsement on the original agreement of sale in the presence of the witnesses.
6. The plaintiff is ever ready and willing to perform his part of the contract. He has kept ready the balance amount of `1,00,000/- He is ready to bear the stamp duty and registration charges. The execution of the sale deed is postponed at the instance of defendant No.1. -6-
7. Defendant No.2 very well knew the agreement of sale between the plaintiff and defendant No.1. The defendants colluding with each other got created a false entry in the name of defendant No.2 in the city survey records subsequent to the suit agreement. The said entry is false and bogus. Defendant No.1 has never gifted the suit property in favour of her daughter-defendant No.2. Defendant No.1 has not delivered possession of suit shop to defendant No.2. There is no valid gift in favour of defendant No.2. The alleged transaction between defendants interest is an outcome of fraud to defeat the right of the plaintiff. The alleged gift and entry is false, bogus and illegal and it is not binding on the plaintiff. The plaintiff came to know this entry for the first time in the fist week of January, 1999. Then, -7- the plaintiff called upon defendant No.1 several times to come and execute the sale deed. The plaintiff finally called upon the defendants by issuing a legal notice dated 13.1.1999. The said notice was sent by registered post. Thereafter through paper publication the defendants gave a false reply dated 2.2.1999 through their advocate. The defendant has refused to come and fulfil the contract. Hence, the plaintiff filed the suit. It is further pleaded in the plaint that the defendants in their reply have concocted a story. In the reply the defendants have referred to some criminal proceedings and set up that the defendants have some money transaction with Rajeev and Mallikarjun Pattanshetty. The defendants have falsely contended that the said Pattanshetty compelled the defendants to sign on blank stamps papers and such blank stamp -8- paper is used for creating agreement of sale etc. All such allegations made in reply notice are false and concocted. Defendant No.1 is bound to come and execute the sale deed and bound to deliver vacant possession of the suit property. Therefore, the plaintiff filed the suit for the relief of specific performance and for delivery of possession.
8. After service of summons the defendants entered appearance. They filed the written statement contesting the claim of the plaintiff. It is their specific case that defendant No.1 has not agreed to sell the suit property in favour of plaintiff for a sum of `3,75,000/- in the presence of elders and that she took `1,75,000/- and agreed to deliver vacant possession of the suit property at the time of execution of the sale deed. The allegation that defendant No.1 agreed -9- to come and execute the sale deed whenever the plaintiff called upon her by taking remaining balance consideration amount is false. The allegation that defendants 3 and 4 have joined in the execution of the agreement is denied as false. The defendants have never executed any agreement of sale in favour of the plaintiff on 21.01.1994 or any day. In fact, the defendants do not know the plaintiff at all. It is not true that on 28.4.1996 defendant No.1 again took cash-amount of `1,00,000/- out of the sale consideration. It is denied that the y made any endorsement on the original agreement of sale in the presence of the witnesses. The allegation that the plaintiff was ready and willing to perform his part of the contract and the execution of the sale deed is postponed are
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denied as false. The allegations made against defendant No.2 are all denied.
9. The defendants have not concocted any story. The defendants have stated real facts in the reply. It is true the defendants had some money transactions with Rajeeva and Mallikarjun Pattanshetty and under their compulsion, they had given signed blank stamp papers and that one such blank stamp paper is used for fabricating a false agreement of sale. There were civil and criminal proceedings between them and defendants. Since, several disputes and litigations started, Pattanashetty fabricated and concocted the contents by filling- in in the said blank stamp papers purporting to be an agreement of sale. The defendants have never agreed to sell the suit property to the plaintiff on any day for any amount whatsoever.
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The defendants have not received any amount from the plaintiff. There is no reason or occasion for it. The defendants did not know Manjunath Wali/the plaintiff. The suit agreement is a forged and fraudulently got up document. It is utterly false and fraudulent to say that again in 1996, defendants have taken an additional amount of `1,00,000/- and made endorsement on the said alleged agreement deed. They have not made any such endorsement. The alleged agreement of sale is fraudulently fabricated by Pattanashetty in the name of their close friend and relative Manjunath of Bailahongal. The oral gift in favour of defendant No.2 is legal and valid in Mohammedan law. The plaintiff cannot question the same. The plaintiff is not entitled to get any sale deed in respect of suit-shop from the defendants or from any of them. He is not
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entitled to get vacant possession. Therefore, they sought for dismissal of the suit.
10. On the afore-said pleadings, the trial court framed as many as eight issues as under:-
(i) Whether the plaintiff proves that the Defendant No.1 for her family legal necessity agreeing to sell the suit properties for `3,75,000/-
and receiving `1,75,000/- as
advance has executed an
agreement of sale in his favour on 21.01.1994?
(ii) Whether the plaintiff proves that the alleged agreement of sale has been executed with the content of and to the knowledge of defendants 3 and 4?
(iii) Whether the plaintiff proves that on 28.04.1996 the defendants 1, 3 and 4 have taken `1,00,000/- out of remaining consideration
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amount?
(iv) Whether the plaintiff proves that he was and is ever ready and willing to perform his part of the contract?
(v) Whether the defendants prove on oral Gift in respect of suit property in favour of defendant No.2 by Defendant No.1?
(vi) Whether the defendants prove that the suit based agreement of sale is forged and concocted one as contended in para 7 of written statement?
(vii) Whether the plaintiff is entitled to
the decree for specific
performance of agreement of
sale?
(viii) What order or decree?
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11. The plaintiff in order to establish his case examined himself as PW-1 and he also examined the attesting witness of the agreement of sale Sri.Channabasappa M.Honagudi as PW-2 and Sri.Channabasayya M.Hiremath--the scribe of the agreement of sale is examined as PW-3. The plaintiff in support of his case also produced seven documents, which are marked as Exs.P-1 to 7.
12. On behalf defendants, the 1st defendant was examined as DW-1. The 4th defendant was examined as DW-2. The 2nd defendant was examined as DW-3. The witnesses to the oral gift were examined as DWs- 4 and 5. They also produced nine documents which were marked as Exs.D-1 to 9.
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13. The trial court on consideration of the afore-said oral and documentary evidence on record held that the plaintiff has failed to prove that the 1st defendant for her family legal necessities, agreed to sell the suit property for `3,75,000/- and receiving `1,75,000/- as advance amount, executed an agreement of sale in his favour on 21.01.1994. Further, it held that the plaintiff has failed to prove that the alleged agreement of sale has been executed with consent of and to the knowledge of defendants 3 and 4. It also held that the plaintiff has failed to prove that on 28.04.1996, the defendants 1, 3 and 4 have taken `1,00,000/- out of remaining consideration amount. The plaintiff has also failed to prove that he was and is ever-ready and willing to perform his part of the contract. The defendants
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also failed to prove the oral gift in respect of the suit property in favour of 2 n d defendant by 1 s t defendant. The defendants have proved that the suit based agreement of sale is forged and concocted one as contented in para 7 of the written statement. Therefore, it held that the plaintiff is not entitled to the decree for specific performance of agreement of sale and accordingly, dismissed the suit.
Aggrieved by the said judgment and decree of the trial court, the plaintiff has preferred this appeal.
14. Learned counsel for the appellant assailing the impugned judgment and decree contends that the plaintiff has proved the agreement of sale by examining himself, the attesting witness and the scribe of the document. In fact, the suggestions
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made to the plaintiff in the cross-examination on behalf of the defendants also go to show that the defendants admit the execution of the agreement of sale, payment of consideration of `1,75,000/- on the date of agreement of sale and also `1,00,000/- subsequently. Therefore, he submits that the findings recorded by the trial court is contrary to the material on record. He pointed out that in the earlier portion of the judgment, on appreciation of the entire evidence on record, the trial court has recorded a finding that the agreement of sale is proved, but in the later portion of the judgment, forgetting the findings recorded earlier, it has recorded a finding that the agreement of sale is not proved and that it is a fraudulent document. Such an inconsistent finding is unsustainable in law and therefore, requires to be set aside. He further
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contended that the evidence on record discloses that all the stamp papers on which the agreement of sale is executed is purchased by none other than the 4 t h defendant in the suit. He was not examined by the defendants to explain the circumstances under which he purchased the stamp papers and it is for them to explain as to why the stamp papers were purchased in the name of the plaintiff for proving the relationship. Therefore, he submits that once the agreement of sale is proved, the plaintiff has paid a sum of `1,75,000/- on the date of the agreement of sale and subsequently `1,00,000/- and he was also ready and willing to pay the balance amount of `1,00,000/-, the trial court ought to have decreed the suit of the plaintiff as prayed for.
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15. When the defendants have not denied his readiness and willingness to perform his part of the contract, the finding recorded by the trial court that the plaintiff was not ready and willing to perform his part of the contract is contrary to the plaint averments and evidence on record which require to be set aside. This is not a case in which Section 20 of the Specific Relief Act, 1963 is attracted. Such a plea is not open to the defendant No.1, as according to her, she has gifted the property in favour of the 2 n d defendant and therefore, he submits that, seen from any angle, the relief of specific performance could not have been denied to the plaintiff. In support of his contentions, he relied on several judgments of the Apex Court.
16. Per contra, the learned counsel appearing for the defendants submitted that the
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trial court's findings that the suit agreement is a fabricated document and it has come into existence in suspicious circumstances is well- founded. In fact, a perusal of the suit agreement/Ex.P-1 shows that it is on two separate sheets of stamp papers. The first sheet is purchased on 13.12.1993, whereas the second sheet was purchased by him on 10.01.1994. For the purpose of creating this agreement of sale, it is shown as if it is one transaction, which clearly shows the suspicious circumstances under which the alleged suit agreement has come into existence.
17. Secondly, he contended that the plaintiff is totally stranger. The plaintiff is a permanent resident of Bailhongal town, whereas the plaint property is situated at Gadag town. Absolutely, there is no reason or rhyme on the
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part of the plaintiff to purchase a property in Gadag which is a shop premises.
18. Now the evidence on record clearly establishes that the plaintiff is none other than Pattanashetty's brother-in-law. The defendants had a transaction with Pattanashetty. There were many transactions and there were disputes. It also lead to criminal proceedings between the parties. In that context, the defendants had taken their signature on blank stamp papers, which is now made use of by the said Pattanashety as an agreement of sale in the name of his brother-in-law/the plaintiff herein. Absolutely, no consideration has flown from the plaintiff to the defendants and the defendants at no point of time agreed to sell the property to any one, much less to the plaintiff.
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19. Taking into consideration of all these evidence on record, the trial court which had the advantage of watching the demeanor of the witnesses has recorded a finding that the suit document has come into existence in suspicious circumstances, which is a fabricated document created with an intention of knocking of the defendants property by the said Pattanashetty and therefore, rightly dismissed the suit of the plaintiff. The said judgment is based on the legal evidence and in accordance with law and therefore, no case for interference is made out. He also relied on the judgments of the Apex Court to buttress his arguments. If really the suit agreement is a genuine transaction and if the plaintiff has paid advance of `1,75,000/-
under the agreement of sale and
`1,00,000/- on 28.04.1996, he would not have
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kept quite till 13.01.1999, for nearly three long years to complete the said transaction. According to him, if the plaintiff had balance amount ready, he would have called upon the defendants to come and execute the sale deed. Absolutely, there is nothing to indicate from 1996 to 1999, the plaintiff made any such move. This only demonstrates that the legal notice was issued after the 1 s t defendant made a Hiba in the name of Defendant No.2 and subsequently, mutation entries were effected. All these circumstances clearly establish the case of the defendants. Therefore, he submitted that no case for interference is made out.
20. In the light of the afore-said facts and the rival contentions, the point that arises for consideration in this appeal is as under:-
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(i) Whether the findings recorded by the trial court that the plaintiff has failed to prove the suit agreement and the defendants have established their case that the suit agreement is a fraudulent document, calls for interference?
21. The material on record discloses that the plaintiff is none other than the brother-in- law of one Mallikarjun Pattanashetti. When a legal notice was issued on 13.01.1999 calling upon the 1 s t defendant to execute the sale deed, which is marked as Ex.P-3, she has sent a reply notice on 02.02.1999 through her counsel clearly stating that she did not know the plaintiff. She has never entered into any agreement with the plaintiff at any point of time. In the said reply notice, it was made clear that the defendants had some money transactions with Rajeev and Mallikarjun Pattanashetty of
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Gadag in that behalf. There are some civil and criminal proceedings between them. In that context, the defendants had been compelled to give some blank stamp papers with their signatures below, to the said Pattanashetty. Since disputes and litigations started, these Pattanashettys have fabricated and concocted the contents by filling-in the said blank stamp papers purporting to be an agreement of sale. They have categorically stated in the said reply notice that they have never agreed to sell the suit property to the plaintiff on any day and for any amount whatsoever. The said agreement is forged and fraudule nt got up document. They further stated therein that the Pattanashettys have forged and fabricated the alleged agreement of sale on the blank stamp papers fraudulently
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in the name of their close friend and relative Sri.Mahantesh (Bailhongal).
22. In the course of evidence, in the cross- examination of the plaintiff, they have elicited that his sister's husband's house is in Gadag. His name is Rajeev Pattanashetty. Rajeev's younger brother's name is Mallikarjuna Pattanashetty. Both of them are running a petrol bunk in partnership. They are also doing business in automobile. It was done from the date of their ancestors. He admits that the defendants suffered loss in their lorry business. They were purchasing the spare parts and also fuel for their lorries from the petrol bunk of Pattanashettys. Both the defendants and Pattanashettys are well-known families in Gadag. They were having good relationship.
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The spare parts and fuel was given to the defendants on credit basis.
23. The 1 s t defendant in her evidence has deposed that her husband and children were doing transport business in a big way. They were owning eight lorries. The plaintiff's sister's husband Raju and his brother Mallikarjun Pattanashetty were running a petrol bunk and automobile spare parts business. They were purchasing the fuel from Pattanashetty's petrol bunk. Similarly, they were purchasing automobile spare parts from their shop. Their 3 or 4 lorries met with accident. They suffered loss. When the credit increased, Pattanashettys called upon her and her sons to transfer the lorries in their name. They were also demanding the repayment of the amount. Because, they suffered loss, they could not repay the amount
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immediately. It is in that context as a security for repayment of the amounts due to them, they took their signatures on blank stamp papers as well as on blank cheques. He promised that it will not be misused. When the payments were not made, cases were filed on the basis of the cheques and they recovered money due to them. It is thereafter when the relationship strained, now, they have misused those blank stamp papers and got prepared an agreement of sale in favour of the plaintiff to knock off the suit property.
24. This evidence on record would clearly establishes that the defendants and Pattanashettys are coming from Gadag. Earlier point of time, there existed a good relationship between the parties. The defendants were carrying on lorry business. The fuel for the
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lorries and the automobile spare parts for the lorries were purchased by them from Pattanashetty brothers who were running a petrol bunk as we ll as automobile spare parts shop. The purchase was by credit. Their 3-4 lorries met with accident. They suffered loss. They could not repay the amounts. It is in that context, she admits that their signatures were taken on blank stamp papers and blank cheques as a security for the amount due to them. It is also not in dispute that several litigations commenced between the parties and the amounts due under the cheques were recovered. It is thereafter probably the present proceedings were initiated in the name of the plaintiff against the defendants.
25. In para 9 of the plaint, after knowing the defence set up by the defendants in the reply
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notice, the plaintiff has referred to the same. Except denying those allegations in the reply notice, the plaintiff did not say whether Rajeev and Mallikarjun Pattanashetty were related to him, how he came into contact with the defendants and under what circumstances he entered into an agreement to purchase the suit schedule property. It is in this background, when we look at the case of the plaintiff, the plaintiff has admittedly a permanent resident of Bailhongal Town. He is carrying on his business there. The suit schedule property is situated in Gadag. The only relationship between him and Gadag Town is his sister, who is married to Rajeev Pattanashetty, who is a resident of Gadag and carrying on business of Petrol bunk and automobile spare parts in a large scale.
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Otherwise, absolutely, there is no connection between the plaintiff and Gadag.
26. Now, in order to succeed in the suit for specific performance, the plaintiff has to prove the suit agreement, because the defendants in categorical terms have said that the plaintiff is a total stranger. They never entered into any agreement with the plaintiff for the sale of property and that they have not executed any agreement of sale in favour of the plaintiff. Therefore, the entire burden of proving the due execution of the agreement of sale is on the plaintiff. What he has to prove is due execution and not merely that the suit agreement contains the signature of the defendants. The defendants on their part at the earliest point of time have given their explanation regarding how their signatures are taken on blank stamp papers.
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So, it is in this context, in order to find out which version is acceptable, when we look at Ex.P-1 what is clear to our eyes is, it is on a stamp paper which is purchased on 21.01.1994. As pointed out by the defendants' counsel, the first page was purchased by the stamp vendor on 13.12.1993, the second page of the stamp paper was purchased on 10.01.1994. On all the four pages, at the same place, in the same ink, we find the signatures of defendants 1, 3 and 4. The question is whether the defendants affixed their signatures to this deed after the contents were written or, as they contended, whether the signatures were taken first by Pattanashettys on the blank stamp papers and then the document is written.
27. No doubt, we have the evidence of PW- 3, the scribe, who has spoken about the writing
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of this document. According to his version, he is a deed writer--a specialist in the field. In that context, when we look at the document, it is strange in page 2, the writing starts from the top, which is very odd. It is only if the document is to be written in a stamp paper to which already the signature is taken, in order to adjust the contents, one would write the document in such a fashion. If the document is written by him, the way he has taken the signature of the attesting witness on the hind portion after writing the document, looks very odd. He has admitted that he has affixed the signature to the document as a document writer and thereafter, the parties have affixed their signatures. The place where he has affixed his signature on Page No.3 is seen, it is clear as the signatures of the defendants 1, 3 and 4 were
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already in the page, he was forced to put his signature in the left-side and the place ear- marked for the witnesses.
28. What we are unable to understand is if the 3rd defendant has purchased the stamp papers for the purpose of writing this document, why his signature is taken at the top of two pages, when that is not the requirement of law and if the two sheets are taken as is recited in the document itself, we really fail to understand as to why the signature is taken on both the pages.
29. At any rate a bare perusal of the said document gives an impression that the signatures of the defendants were taken first to the document on blank papers and then the writing is made. In fact, in order to satisfy
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ourselves, as the document bears the signatures of the defendants, we wanted to find out whether apart from the recitals in the suit agreement, if there is any document evidencing payment of `1,75,000/- on 21.01.1994 and `1,00,000/- on 28.04.1996. No such document is produced. Admittedly, both the said amounts are paid by way of cash. Plaintiff is also a business man. When the defendants have specifically denied the execution of the agreement and the receipt of the consideration, a duty is cast on the plaintiff in order to prove the validity of the agreement of sale, the plaintiff is bound to establish the payment of the consideration as mentioned in the agreement in proof of the execution of the agreement. If the said money has been removed from his business, necessary entries should be there in his business record.
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If he has withdrawn from any bank, bank records would have shown withdrawal of the amount on the date of transaction or a day or two earlier to the said transaction. If he has borrowed money, certainly there should have been some records to show how he raised the said loan.
30. In the absence of such evidence on record coupled with this conduct of the plaintiff subsequent to the execution of the agreement has also utmost importance. If out of the total consideration of `3,75,000/-, he has paid `1,75,000/- by cash on 21.01.1994, he has taken nearly more than two years to pay a sum of `1,00,000/- on 28.04.1996. Thereafter, he has taken nearly three years to issue a legal notice. Is it the conduct of a person who has entered into a ge nuine transaction of sale and has parted with the substantial amount of
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`1,75,000/- under the agreement of sale? It is true that in the agreement of sale, no time is stipulated for completing the sale transaction. On the contrary what is stipulated in the agreement of sale is the defendants have to go to the plaintiff when he makes the payment and execute the sale deed and it is only thereafter they have accepted to hand-over the possession of the suit shop premises and then get the sale deed registered. Therefore, if it is a genuine transaction of sale and if the plaintiff had paid `1,75,000/- on 21.01.1994 under the agreement, he would have been very eager/enthusiastic to complete the sale transaction as according to him, he was always ready and willing to perform his part of the contract and he had the requisite balance amount. But, admittedly, to pay `1,00,000/-,
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he has taken two years and thereafter for three years he did nothing. This is something unnatural. It is only after the mutation entry was made in the name of defendant No.2 on the basis of early Hiba, he says he came to know about the same in January 1999 and then immediately, he got a legal notice issued. These circumstances also point out to the fact that till the issue of legal notice in ne ws-paper, there was no agreement of sale either. It is only when the 1 s t defendant made an attempt to hand-over the possession of the property to their daughter, probably Pattanashettys in Gadag became jittery and probably they thought they will not be able to recover any amounts due to them from the defendants and then the issue of legal notice was thought of.
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31. Though there is some slight confusion in the mind of the trial judge while appreciating this evidence, though the language employed in the judgment gives an impression that at some stage she was of the view that the evidence on record proves the execution of the agreement, when we read the entire judgment as a whole, it is clear that the learned trial judge was fully convinced that this is not a genuine transaction. The suit document was a fraudulent one created by the said Pattanashettys in the name of plaintiff to foist the false claim against the defendants. Therefore, she has categorically recorded a finding to the effect that the plaintiff has failed to prove the agreement of sale and the plaintiff has failed to prove the payment of `1,75,000/- on 21.01.1994 and `1,00,000/- on 28.04.1996. The time lag between the
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agreement of sale, the first payment and legal notice, clearly shows that this is not a case where the person who is interested in purchasing the property, who entered into an agreement of sale, was ready and willing to perform his part of the contract, as contemplated under Section 16 of the Specific Relief Act, 1963.
32. Though the defendants have specifically denied the agreement of sale, it is for the plaintiff who comes to the court, who not only has to prove that the agreement of sale is duly executed and he has made the payment as stipulated under the agreement of sale, further to succeed in a suit for specific performance, he must demonstrate with a proper plea that he was always ready and willing to perform his part of the contract. If time was not the essence of
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the contract, evidence to that effect and if time was the essence of the contract, then his readiness and willingness should be within the time stipulated. Though the period of limitation prescribed for the suit is three years, if there is a delay in approaching the court, reasons for that delay. Otherwise the claim itself would be hit by latches and delay and not bar of limitation. It is in that context, the reliance placed by the plaintiff on some suggestions made to DW-1 where either she has pleaded her ignorance or she has simply answered the questions in the negative, would not prove either the execution of the agreement of sale or the payment of consideration as set out in the agreement of sale or as set out in the plaint.
33. Of course, we have some peculiar evidence of the witnesses. PW-2, the attesting
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witness, goes to the extent of saying that if his signature is found in a particular page, the transactions referred to therein is said to have taken place in his presence. If the signature is not found, then such a transaction has not taken place in his presence. In the instant case, the suit document contains writing on four pages. His signature is found only in one page. If his evidence is to be believed, he knows the transaction as contained in particular page and as in three other pages his signatures are not found, he is not aware of the transaction which are reduced into writing in those pages. Unfortunately, his signature is found in the last page and therefore, all that is found in the last page is payment of `1,00,000/- consideration. His signature is not found in the first three
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pages where the sale consideration is said to have been reduced into writing.
34. Even the evidence of PW-1 goes to show his ignorance about the property, the market value of the property, the nature of the property and there is nothing to indicate that he negotiated with the defendants before purchasing the property.
35. Under these circumstances, we are satisfied that the trial court on careful scrutiny of both oral and documentary evidence on record has recorded a finding of fact that the suit document is not executed by the defendants. No consideration has been paid under the agreement or in terms of the endorsement contained in the agreement. Defendant No.1 never agreed to sell the property to the plaintiff.
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The defendants have established their case that the suit document is a fabricated document.
36. As the said findings are based on the legal evidence and on re-appreciation of the entire evidence on record, we are also coming to the same conclusion. We do not see any justification to interfere with the well-considered judgment of the trial court. Therefore, we do not see any merit in this appeal. Accordingly, it is dismissed.
SD/-
JUDGE SD/-
JUDGE Rs/Rkk/-