Amruth Rao vs Mallinath

A.V. Chandrashekara, J—Heard the learned counsel for the parties. Perused records. With their consent, the matter is taken up for final hearing.

Concurrent findings are called in question in this appeal filed under Section 100, C.P.C. Appellant herein was the sole plaintiff in O.S. 43/06 which was pending on the file of Senior Civil Judge, Basavakalyan. Respondent was the lone defendant in the said suit. Parties will be referred to as plaintiff and defendant as per their ranking before the trial court.

Plaintiff chose to file a suit for the relief of specific performance of a contract based on an agreement of sale said to have been executed ion his favour on 22.1.2001 by the defendant. According to the plaintiff, defendant had agreed to execute a regular sale deed on 23.1.2004 for a consideration of Rs. 1,68,000/-. In spite of several demands, defendant did not come forward to execute regular sale deed and therefore, he was constrained to get a legal notice issued through his advocate on 10.1.2006 which was suitably replied by the defendant through his advocate on 25.1.2006.

In the light of the stand taken by the defendant in his reply notice, plaintiff was constrained to file a suit for specific performance of the contract.

The foundation for a civil case is pleadings. Plaintiff has specifically averred in the plaint that defendant is the absolute owner of the suit property and that he had agreed to execute regular sale deed in his favour and in this regard, an agreement of sale was executed on 22.1.2001 and the agreed consideration was Rs. 1,68,000/-. Plaintiff is stated to have approached the defendant requesting him to execute the sale deed by receiving the balance consideration and was ready and willing to perform his part of the contract, but the defendant did not execute regular deed and was postponing on one pretext or the other.

The contents of the written statement would disclose that plaintiff had executed a regular sale deed for consideration of Rs. 74,000/- and not Rs. 84,000/- as found in the legal notice and he had handed over possession of the same and thus, defendant had become the absolute owner. It is further averred that the plaintiff never approached him to execute a regular sale deed.

The following points came to be framed by the trial court on the basis of pleadings:

1) Whether the plaintiffs prove that he has tendered sale consideration amount of Rs. 1,68,000/- to the defendants and asked him to execute regd. sale deed of the suit land in his favour as 23.1.2004 as alleged?

2) Whether the plaintiff further proves that he is ever ready and willing to purchase the suit land by performing his part of contract as alleged?

3) Whether the plaintiff is entitled for the relief of specific performance of contract as alleged?

4) Whether the defendants is entitled for special cost of Rs. 10, 000/- as alleged?

5) What order or decree?

Additional Issue:

1) Whether the suit of the plaintiff is barred by limitation as contended at para No. 11 of the W.S.?

Plaintiff is examined as PW 1 and one Basavaraj as PW 2. Five documents have been got marked. Defendant is examined as DW 1 and has got marked 9 documents. Ultimately the learned judge has answered issue Nos. 1 to 4 in the negative and additional issue No. 1 in the affirmative. Against the said judgment and decree, an appeal was filed under Section 96, C.P.C. before the district court at Bidar which came to be dismissed on 2.11.2009 after contest.

The learned judge of the first appellate court has chosen to frame the following points for consideration as found in paragraph 10 of the judgment:

Whether the trial Judge has not appreciated the evidence properly?

Whether the finding of the learned Trial Judge that the plaintiff was not ready and willing to perform his part of the contract, and that the time was the essence of the contact is not correct?

The earlier stand taken by the plaintiff in his legal notice got marked as Ex. P4 will have to be looked into. In Ex. P4, plaintiff has categorically stated that he is the exclusive owner of land measuring 2.02 acres in Survey No. 131/AA of Allur village and that he was in need of money. He has further stated that he approached the defendant and obtained a loan of Rs. 84,000/- on 22.1.2001 agreeing to pay interest at the rate of 2.5% p.m. According to him, registered sale deed executed by him on 22.1.2001 is not a sale deed in the real sense, but only a security for the loan availed. The consideration mentioned in the sale deed marked as Ex. P2 is Rs. 74,000/- whereas the plaintiff has stated in his legal notice that he had availed a sum of Rs. 84,000/-. In the plaint, plaintiff has made a categorical statement that the defendant is the owner of the schedule property and that he had entered into an agreement of sale agreeing to execute regular sale deed for a total consideration of Rs. 1,68,000/- on 23.1.2004.

The above facts have been taken into consideration by the trial court as well as the first appellate court. Plaintiff has attempted to make out an altogether a different case in his plaint from the one found in the legal notice got issued by him at an undisputed point of time. Plaintiff cannot blow hot and cold at the same time. At one breath he cannot say defendant has already become owner of the property on the strength of the sale deed and had agreed to execute regular sale deed by receiving Rs. 1,68,000/-. In another breath, he cannot say that the sale deed executed by him is not a sale deed, but only a security executed by him for having availed loan of Rs. 74,000/-.

Suffice to state that in the light of serious contradictions found in the stand taken by the plaintiff and the evidence adduced, both the courts have adopted right approach to the real state of affairs. No substantial question of law arises for consideration of this court.

No perversity or illegality is found in the impugned order. Accordingly the appeal is liable to be dismissed.

In the result, the appeal is dismissed as unfit for admission. Parties to bear their own costs.