Basamma and Others vs Shivanna and Others

Aravind Kumar, J.—Defendants-1 to 3 in O.S. No. 110(A)/2009 have filed this second appeal questioning the correctness and legality of judgment and decree passed by Fast Track Court-III, Bangalore Rural District, Bangalore in R.A. No. 49/2010 dated 25.01.2011, whereunder judgment and decree passed by the trial Court dated 08.01.2010 in O.S. No. 110(A)/2009 dismissing the suit filed by the plaintiff for specific performance of agreement of sale dated 01.08.1989, came to be reversed and suit came to be decreed.

This Court has admitted the appeal on 06.06.2012 to consider the following substantial questions of law:

"Whether the first appellate Court was justified in reversing the findings of trial Court by proper appreciation of evidence in accordance with established principles of law?"

I have heard the arguments of Sri P.M. Siddamallappa, learned Advocate appearing for appellants/defendants-1 to 3 and Sri. P. Venkatashiva Reddy, learned Advocate appearing for respondents-1 and 2-Plaintiffs.

It is the contention of Sri Siddamallappa, learned Advocate appearing for appellants that trial Court on proper appreciation of evidence had dismissed the suit by arriving at a conclusion that there was no agreement of sale entered into between plaintiffs and first defendant and even otherwise, plaintiffs were not ready and willing to perform their part of the contract and the agreement of sale propounded by the plaintiffs is a counter blast to the registered sale deed-Ex. D-1 executed by first defendant in favour of defendants-2 and 3 and had held that Mahazar - Ex. P-23 relied upon by the plaintiffs to assert their possession over suit schedule property has no evidentiary value to prove the execution of agreement of sale - Ex. P-1. It was further held by the trial Court that evidence of P.W. 3 and P.W. 4 is not susceptible to acceptance since P.W. 3 was neither present nor saw when first defendant had executed Ex. P-1 and P.W. 4 had also stated that he had not read the contents of Ex. P-1 and on account of his inability to identify the signature of other witnesses found on Ex. P-1, trial Court had rightly dismissed the suit filed by the plaintiffs.

4.1 He would further elaborate his submission by contending that acceptance of agreement of sale, affidavit and General Power of Attorney i.e., Exs. P-1, P-2 and P-3 by first appellate Court is without proper appreciation of facts and evidence available on record and contends that when first defendant had specifically denied execution of Ex. P-1, P-2 and P-3, burden was cast on the plaintiffs to prove its due execution and this exercise was not undertaken by the plaintiffs and the lower appellate Court committed a serious error in comparing the signatures found on these documents with the admitted signature of Smt. Basamma found in Ex. D-1 by taking recourse to Section 73 of the Evidence Act and same being impermissible, had resulted in an erroneous judgment and decree being passed.

4.2 He would also contend that Ex. P-1 - agreement of sale does not specify the description of the immovable property being sold and so also Ex. P-2 and P-3. As such, appellate Court could not have arrived at a conclusion that there was due execution of agreement of sale of suit schedule property without properly analyzing the entire evidence available on record and when signatures on the disputed documents having been denied, lower appellate Court ought to have sought for an expert opinion and on account of same having not been done, it has resulted in an erroneous judgment and decree being passed.

4.3 He would also draw the attention of the Court to the contents of Ex. P-1 and P-2 to buttress his arguments that contents of these two (2) documents are unbelievable since in both these documents, it is reflected that possession has been delivered, which could not have been the factual position. Hence, he submits that judgment and decree passed by the lower appellate Court requires to be set aside by answering the substantial question of law formulated by this Court in favour of appellants and the judgment and decree passed by trial Court be restored. He would also contend that plaintiffs had colluded amongst themselves and to deprive the right of defendants over the suit schedule property had filed a suit O.S. No. 374/1996 for partition and possession amongst themselves and said suit was decreed on 07.07.1997 which came to be challenged by defendants-2 and 3 in O.S. No. 783/1998 and the compromise entered into in O.S. No. 374/996 was held to be null and void by decreeing the said suit and same has attained finality, which would only indicate that plaintiffs had not pursued their grievance since it would not have yielded any fruitful result in their favour.

Per contra, Sri P. Venkatashiva Reddy, learned Advocate appearing for respondents - plaintiffs would support the judgment and decree passed by the lower appellate Court. He would contend that first defendant in order to overcome the agreement of sale executed in favour of plaintiffs had got engineered a suit filed through defendants-2 and 3 in O.S. No. 9/1994 and in the said suit, even before service of suit summons on her, she appeared and filed a memo for suit being decreed and on the same day, said suit came to be decreed i.e., 18.02.1994 as per Ex. D-18 which was ignored by trial Court and as such lower appellate Court had reversed the finding of trial Court.

5.1 He would further elaborate his submission by contending that first defendant in a collateral proceedings relating to mutation of revenue records and proceedings arising thereunder, had made a statement before the revenue authorities as per Ex. P-23 which indicated that first defendant had admitted the execution of agreement of sale in favour of plaintiffs and said document is a relevant piece of evidence under Sections 32 and 33 of Evidence Act and as such, the admission of D.W. 1 under Ex. P-23 was sufficient enough to hold that admitted facts need not be proved vide Section 58 of the Evidence Act and thereby appellate Court was justified in reversing the decree of trial Court.

5.2 He would also draw the attention of the Court to the evidence of Smt. Basamma - D.W. 1 dated 02.02.2008 wherein she admits the execution of "an agreement" which necessarily relates to Ex. P-1 and this admission is sufficient enough to arrive at a conclusion that she had executed the agreement of sale - Ex. P-1 in favour of plaintiffs. Hence, he prays for answering the substantial question of law in favour of the plaintiffs and seeks for confirming the judgment and decree passed by the first appellate Court.

FACTUAL MATRIX:

Having heard the learned Advocates appearing for the parties and on perusal of the records secured from the Courts below, it can be seen that plaintiffs contended that first defendant had executed an agreement of sale on 01.08.1989 - Ex. P-1 agreeing thereunder to sell suit schedule property, as could be seen from the averments made in the plaint. The description of the suit schedule property as indicated in the plaint reads:

"SCHEDULE"

Part and parcel of the property bearing No. Sy No. 20/2 to an extent of one acre 32 gs. Consisting of Casurina trees, situated at Agraharapalya, Dasanapura Hobli, Bangalore North Taluk bounded on the east by properties of Nanjappa and Muniyappa, west by land of Ningappa, north by land of Muninanjappa and Nanjappa, and south by Railway line.

Part and parcel of the property bearing No. 50/2 measuring 4 guntas situated at Honnasandra village Dasanapura Hobli, Bangalore North Taluk bounded on the east by land of Mavallipurada Siddappa, west by property of Muniyappa, north by property of Siddappa and South by land of Nanjappa.

Part and parcel of the property bearing Sy. No. 50/7 extent of 20 gs. Situated at Honnasandra village Dasanapura Hobli, Bangalore North Taluk bounded on the east by land of Siddappa, west by property of Muniswamaiah, north by land of Siddappa and south by - property of Ningappa.

A bare reading of the above schedule as well as averments made in the plaint would clearly indicate that according to plaintiff, first defendant is the daughter of Sri Chikkagangappa who passed away while the first defendant was still in the womb of her mother Smt. Nagamma and on her birth, she is said to have been taken care of by the plaintiff''s father and first defendant''s uncle Sri Hanumanthappa. It was further contended by the plaintiffs that there was an oral partition within a year or so after the death of first defendants'' father among the three branches of original propositus Sri Dolla Hanumanthappa and suit schedule properties were allotted to the share of first defendant and her mother. It is also stated that after the said partition first defendant and her mother continued to reside along with the plaintiffs and their father and first defendant got married to one Sri Honnappa of Kestur village in the year 1980 and marriage was performed by the plaintiffs and their father and entire expenses were incurred by them. He also contended that in order to meet the expenses of the marriage, they along with first defendant''s mother had borrowed a sum of Rs. 30,000/- from one Sri Nanjappa, plaintiffs have also averred that after the partition the suit schedule properties were cultivated by them and they were in lawful possession of the same and same was regularized by virtue of a sale agreement dated 01.08.1989 executed by first defendant. They have also contended that amount borrowed towards marriage expenses of first defendant was discharged by their father and in the month of July, 1989 they had requested the first defendant to fix the value of suit schedule properties which was alleged to be in their possession and accordingly, sale price was fixed at Rs. 14,000/- and hence, the agreement of sale - Ex. P-1 came into existence. They further contend that first defendant had executed agreement of sale on 02.07.1982 and received further sum of Rs. 8,000/- and executed a General Power of Attorney and also the affidavit - Ex. P-2 and P-3, accepting thereunder that she had delivered possession of suit schedule properties by receiving the entire sale consideration. They also contended that additional amount of Rs. 2,000/- was paid on demand made by first defendant.

On account of first defendant''s non performance of obligation under the agreement of sale, plaintiffs contended that they were perforced to file the suit in question for specific performance which was preceded by issuance of legal notice.

Defendants on service of suit summons, appeared and filed written statement and denied the averments made in the plaint. On the basis of the pleadings of the parties, trial Court formulated following issues for its determination:

"Whether the plaintiffs prove that the defendant entered into an agreement with the plaintiffs on 01.08.1989 for a sum of Rs. 14,000/-?

Or

Whether the defendant proves that on 16.03.1994 he has already sold that property in favour of one Shivalingaiah and Umesh as per compromise decree?

If so, whether the plaintiff is entitled for the registration sale deed in his favour from the defendant or if defendant fails through the agency of court?

To what decree or order"?

Second Plaintiff was examined as P.W. 1 and four witnesses were examined on behalf of plaintiffs. In all, plaintiffs produced 30 documents which were marked as Exs. P-1 to P-30. On behalf of defendants, four witnesses were examined and first defendant was examined as D.W. 2, second defendant was examined as D.W. 1 and two independent witnesses were examined as D.W. 3 and 4. On perusal of the pleadings and on appreciation of entire evidence, trial Court dismissed the suit as already noticed herein above by holding that plaintiffs had failed to prove execution of agreement of sale - Ex. P-1 as also Ex. P-2 and P-3. It was further held that plaintiffs were not ready and willing to perform their part of the contract and plaintiffs had failed to place material to establish that the decree obtained by defendants - 2 and 3 in O.S. No. 9/1994 was by fraud or collusion. Hence, the suit filed by plaintiffs came to be dismissed.

Plaintiffs'' appeal before the first appellate Court resulted in suit being decreed. The first appellate Court after securing the records of the trial Court and after considering the arguments advanced by the respective learned Advocates appearing for the parties, formulated following points for its consideration:

"Whether there are reasons to condone the delay in filing this appeal?

Whether the appellants have made out grounds to allow I.A. 4 to remand the matter to trial Court for further disposal?

Whether the trial court is justified in dismissing O.S. No. 110A/09 (O.S. No. 69/94)?

Whether the judgment and decree of the trial court is required to be interfered with in this appeal"?

It requires to be noted at this juncture itself that plaintiffs who were the appellants before first appellate Court had filed I.A. No. 4 under Order 41 Rule 23 and 23A CPC read with Section 151 CPC to remand the above appeal to the trial Court for fresh disposal contending inter alia that after the matter was heard by the trial Judge and posted the matter for judgment, had thereafter re-casted the issues and pronounced the judgment by dismissing the suit and on account of recasting of issues, parties ought to have been afforded an opportunity to tender evidence on the re-casted issues and on account of said exercise having not been undertaken by the trial Court, appellants prayed for remanding the matter back to the trial Court seeking for direction to the trial Court to afford such opportunity. The lower appellate Court after considering the arguments and on re-appreciation of entire evidence, had formulated the points for its determination as indicated herein above and decreed the suit as prayed for by concluding as under:

(i) O.S. No. 9/1994 was a collusive suit between first defendant and defendants-2 and 3 and as such, hit by doctrine of lis pendens.

(ii) Ex. P-23 - Statement of D.W. 1 - Smt. Basamma recorded by the revenue Officer would substantiate the claim of the plaintiffs with regard to execution of agreement of sale dated 01.08.1989 - Ex. P-1 and also the affidavit and G.P.A. viz., Exs. P-2 and P-3 respectively;

(iii) Plaintiffs were ready and willing to perform their part of the contract and there was no existing obligation or liability required to be performed by the plaintiffs.

On the grounds primarily referred to herein above at (i) to (iii) first appellate Court has discussed the evidence both oral and documentary vide its judgment at paragraphs 46 to 61 to arrive at a conclusion that plaintiffs are entitled for the relief of specific performance.

BRIEF BACKGROUND:

Before proceeding to delve upon the substantial question of law formulated herein above, few facts necessary for answering the same are required to be narrated and same reads as under:

First defendant''s father Sri Chikkagangaiah and father of the plaintiffs Gangaiah are utriene brothers. While the first defendant was in the womb of her mother, her father expired and she was brought up by her mother Smt. Nagamma. Plaintiffs instituted the suit in question for specific performance of agreement of sale dated 01.08.1989 contending inter alia that first defendant and her mother continued to live in the joint family of their father and their uncle Sri Hanumanthappa; they have also pleaded that even after the oral partition within a year after the demise of first defendants father, they continued to reside jointly along with plaintiffs and their father; plaintiffs have also specifically stated that suit schedule properties (3 items) were allotted to the share of first defendant''s father i.e., Nagamma''s husband and since he had expired it was allotted to the share of Smt. Nagamma and her daughter - first defendant; first defendant was brought up by plaintiffs father and he had performed her marriage by incurring expenditure to the tune of Rs. 40,000/- and at that time a sum of Rs. 30,000/- was borrowed from one Sri. Nanjappa to meet the marriage expenses; after marriage, first defendant had started to reside at her matrimonial home viz., at Kestur village though mother Smt. Nagamma continued to reside along with plaintiffs and their father till her demise in the year 1986.

They have contended even after partition and allotment of share to first defendant and her mother Smt. Nagamma, plaintiff and their father continued to be in possession of the suit schedule properties and on account of amount borrowed for performance of first defendant''s marriage came to be discharged by the father of plaintiffs; during July 1989 they had requested the defendants to fix certain price in respect of suit schedule properties in order to purchase the same and accordingly the sale price had been fixed for a sum of Rs. 14,000/- and pursuant to such understanding, an agreement of sale dated 01.08.1989 - Ex. P.1 came into existence; first defendant in her written statement has specifically denied the execution of the agreement of sale. It is in this background trial court formulated issue No. 1 for its adjudication and it reads as under:-

"1. Whether the plaintiff proves that defendant No. 1 entered into an agreement of sale of the suit schedule property in favour of the plaintiffs?"

On appreciation of evidence tendered by the parties trial court had answered said issue in the negative. Thus, the bone of contention between the parties relates to execution of agreement of sale dated 01.08.1989.

RE: SUBSTANTIAL QUESTION OF LAW:

In order to prove the execution of Ex. P-1, second plaintiff got himself examined as P.W. 1 and also examined one witness by name Nanjappa as P.W. 2. A bare reading of agreement - Ex. P-1 would clearly indicate that there is no description of the property which had been agreed to be sold or purchased, though in the preamble of the agreement it has been indicated that property agreed to be sold has been described in the schedule:

Thus, recitals in the agreement - Ex. P-1 it would indicate that parties to said agreement were not at ad-idem insofar as sale or purchase of suit schedule properties or to put it differently, the description of the property agreed to be sold or purchased is not forthcoming from Ex. P-1. Said agreement would also indicate that a sum of Rs. 8,000/- has been paid as advance amount and balance to be paid is indicated as Rs. 6,000/-. It would also indicate that vendors have admitted about plaintiffs being in possession of the property. At the cost of repetition it requires to be noticed that description of the property which is said to be in possession of plaintiffs or their father is not forthcoming from agreement of sale dated 01.08.1989 - Ex. P-1.

Plaintiffs in order to prove execution of Ex. P-1 have relied upon two documents viz., an affidavit & General Power of Attorney dated 01.07.1992 and which came to be marked as Exs. P-2 and P-3 said to have been executed by first defendant. The execution of these documents have been specifically denied by first defendant. It is in this background, evidence tendered by the parties will have to be examined to find out as to whether there has been either non-appreciation of available evidence on record or erroneous appreciation of available evidence, since the substantial question of law relates to same and learned Advocates appearing for the parties having addressed their arguments in this regard in extenso.

The first appellate Court while reversing the findings recorded by trial Court with regard to execution of Exs. P-1, P-2 and P-3 has recorded a finding that first defendant had executed said agreement of sale - Ex. P-1 by comparing the signature of Smt. Basamma found on Ex. D-1 which had been marked as D-1(a) to arrive at a conclusion that all the signatures are one and the same. It is no doubt true that under Section 73 of the Indian Evidence Act, 1872, the Court is entitled to make comparison of disputed and admitted signature and same would be within its jurisdiction. However, rule of prudence commands that where there is serious dispute with regard to the signature found on a disputed document, trial Court would normally try to seek expert opinion and even when there is expert evidence available on record, Court would normally consider the said expert evidence along with other available corroborating evidence to arrive at a just conclusion. For the purposes of enabling the Court to compare the disputed signature with the admitted signature it would always be safe and proper to consider expert opinion also. A reading of Section 73 of the Evidence Act, 1872 would indicate that first part of Section 73 enables comparison of signature or seal purporting to have been written or made by a person with others, admitted or proved to the satisfaction of the Court to have been written or made by the same person. However, Section 73 by itself does not specifically say by whom such comparison may be made. On this aspect Hon''ble Apex Court in the case of The State (Delhi Administration) Vs. Pali Ram, has observed that it is not advisable for the Judge to take upon himself the task of comparing the writing with the disputed one and prudent course to be adopted is to obtain the opinion and assistance of an expert. It has been held by the Apex Court as under:-

"The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any hand-writing expert, the Judge should as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon him self the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert".

The first appellate Court in the instant case has arrived at a conclusion that Ex. P-1 is duly executed by Smt. Basamma since in the affidavit Ex. P2 she has re-affirmed the execution of agreement of sale and there are two endorsements regarding receipt of total consideration of Rs. 16,000/-. Hence it has jumped to a conclusion that Smt. Basamma had executed agreement of sale - Ex. P-1. It has been held by the first appellate Court as under:-

"D.W. 2 defendant No. 1 said Basamma has stated that agreement of sale dated: 01.08.1989 is got up document and she has not received sale consideration. Ex. P.2 is the affidavit of Basamma reaffirming the said agreement of sale transaction. Ex. P.2(a) is her signature. On the back portion of Ex. P.1, there are 2 endorsements regarding receipt of total consideration of Rs. 16,000/-. In cross, she has stated that she has stated that she has not executed any agreement of sale to Shivalingaiah. She has not admitted Ex. P.1(a) and Ex. P.2(a) signatures. But she admits her signature on Ex. D1(c). Ex. D.1 (Ex. P.1) said sale deed executed by her on 16.03.1994. On comparison of Ex. D.1(a) with Ex. P.1(a) with Ex. P.1(a) and Ex. P.2(a), it can be said that they are signatures of Basamma only. Therefore, it is clean that said Basamma has executed Exs. P.1 and 2. Ex. P.3 is the General power of Attorney executed by said Basamma on 02.07.09 to deal with her said property".

Ex. P1 has been attested by five witnesses viz., Sriyuths Nanjayya (Kestur), Siddappa, Harumarraiah, D. Muniyappa and Honnappa. Said Nanjappa has been examined as a witness. He has identified his signature in Ex. P-1 and the same was marked as Ex. P-1(c). However, he was unable to identify the signatures of other witnesses found in Ex. P-1. This witness when confronted to identify the signature of Smt. Basamma he had identified the signature found at page No. 4 and same came to be marked as Ex. P-1a(1). He has also identified the signature of Smt. Basamma in the first page of Ex. P-1 and same came to be marked as Ex. P-1(b). Said witness is the brother-in-law of first plaintiff. He has feigned ignorance with regard to the number of pages of Ex. P-1 or the denomination of the stamp paper on which Ex. P-1 was written or from where it was purchased. He has also admitted that Smt. Basamma is an illiterate. A suggestion has also been put to the said witness that since he is closely related to first plaintiff viz., being his brother-in-law he has deposed on their behalf and he is an interested witness but same has been denied and further suggestion put to said witness that signatures found in Ex. P-1 is not that of Smt. Basamma has also been denied. Thus, exercise of evaluation of said evidence was not undertaken by the first appellate Court and the fact said witness had identified signature of first defendant in Ex. P-1 by itself had swayed in its mind to reverse the finding of trial Court. However, it lost sight of the fact that said witness was a close relative of first plaintiff and he has also pleaded his ignorance to other details of Ex. P-1 and as such his evidence could not be considered as gospel truth, particularly when there was serious dispute with regard to the execution of Ex. P-1 by Smt. Basamma and she having denied its execution thereof.

Yet another witness who was examined on behalf of the plaintiffs was one Mr. Nanjappa - P.W. 2, who claims to have been an attesting witness to the endorsement dated 1.1.1993 found on Ex. P1. Records would indicate that cross-examination of this witness is not available. It is probably because of this reason both the Courts have not discussed anything about deposition of Sri Nanjappa. Hence, same is left at it.

One another factor which swayed in the mind of the first appellate Court to arrive at a conclusion that Ex. P1 was executed by first defendant-Smt. Basamma was on account of a statement said to have been recorded by Deputy Tahasildar, Nadakacheri Dasanpur, Bengaluru North Taluk - Ex. P-23. Mere production of a document would not prove the contents thereof. Sri Venkatakashivareddy learned Advocate appearing for respondents-plaintiffs has vehemently contended that same is an order of the Tahasildar and as such Sections 32 and 33 of the Evidence Act, would be attracted and nothing was required to be proved since contents speaks for itself. This proposition is without any merit and is liable to be rejected for reasons more than one viz., (1) a statement of relevant fact made by a person who is dead or cannot be found is held to be relevant under Section 32 in the contingencies indicated in sub-section (1) to (8) of Section 32 . A bare reading of Section 32 would clearly indicate that such statement either written or verbal of relevant facts made by a person who is dead or cannot be found or who has become incapable of giving evidence or whose presence before the court cannot be procured without an amount of delay of expense, then under such circumstances of the case as it appears to the Court can be held as relevant fact if statement made by such person has been tendered in evidence. In the instant case, the person who is said to have furnished the statement before the Deputy Tahasildar was dead or being unavailable so as to arrive at a conclusion that Section 32 of the Evidence Act is attracted. In fact Smt. Basamma - first defendant has appeared in the case and tendered her evidence as D.W. 2. For reasons best know she was not confronted with her statement said to have been given by her before the Revenue Authorities as per Ex. P.23. The person who is said to have recorded the statement is also not examined. As such it cannot be inferred that contents of Ex. P-23 is true and correct or it is a statement made by the first defendant. It does not carry any evidentiary value for being accepted and more particularly to arrive at a conclusion that contents of statement would indicate of first defendant having admitted execution of agreement of sale Ex. P-1. Hence, finding recorded by first appellate Court on Ex. P-23 is an erroneous finding and contrary to material evidence available on record.

Now turning my attention back to the disputed document namely, agreement of sale dated 01.08.1989 - Ex. P-1, it would indicate that sale consideration agreed thereunder was Rs. 14,000/- and Rs. 8,000/- which was said to have been paid by way of advance. The learned Judge of the appellate Court has held in paragraph 54 of the judgment that pursuant to agreement of sale - Ex. P-1, first defendant had executed affidavit - Ex. P-2 and General Power of Attorney - Ex. P-3 and plaintiffs had agreed to pay additional sale consideration of Rs. 2,000/- and as such, first defendant had received total consideration of Rs. 16,000/-. This finding recorded by the lower appellate Court is contrary to the contents of Ex. P-2. A perusal of recitals found in Ex. P-2 would clearly indicate that first defendant had purportedly sold the suit schedule property to plaintiffs for a total consideration of Rs. 8,000/- in the presence of the witnesses to the said document i.e., Ex. P-2. It also indicates that possession of suit schedule property has been delivered to plaintiffs under Ex. P-2. Incidentally, the intriguing question that would arise is, if first defendant had already delivered possession of the suit schedule property under Ex. P-1 as claimed by plaintiffs themselves, then where was the necessity for first defendant to yet again deliver possession under Ex. P-2. For this, no explanation is forthcoming from the plaintiffs. A bare reading of Ex. P-2 would also indicate that as though it is a separate, independent and distinct agreement and has no nexus to Ex. P-1. Accepting for a moment that Ex. P-2 had been executed by first defendant - Smt. Basamma, same cannot be accepted to decree the suit inasmuch as, plaintiffs prayer in the suit is not based on Ex. P-2 and as such, no relief can be granted based on Ex. P.2. On the other hand, it is the specific case of plaintiffs'' that Ex. P-1 is the agreement of sale entered into by them with first defendant. On the other hand if this document is to be construed as an document executed pursuant to agreement of sale dated 01.08.1989 - Ex. P-1 or in other words to construe Ex. P-2 being a contemporaneous document, then, necessarily there ought to have been reference of Ex. P-1 in Ex. P-2. Even this is conspicuously absent. Thus, it cannot be held that Ex. P-2 has come into existence pursuant to Ex. P-1. Then comes General Power of Attorney dated 02.07.1992 - Ex. P-3 which is heavily relied upon by the plaintiffs to contend that first defendant had permitted the plaintiffs to manage the suit schedule properties and delivered possession of it. According to plaintiffs, Exs. P-2 and P-3 came into existence on the same day i.e., on 02.07.1992. A bare reading of these two documents would indicate that it was sworn to before the same Notary by name Sri S.B. Chandrashekar, Bangalore. These two documents having come into existence on the same day cannot be accepted for reasons more than one. The witnesses to both the documents are different and it does not indicate that deponent/executant who is said to be a resident of Kestur village having come down to Bangalore for the purposes of executing these two documents. There are five persons who have affixed their signatures as witnesses to Ex. P-2 and one Smt. Gangamma has affixed her LTM to Ex. P-3. None of these witnesses were examined on behalf of plaintiffs to prove due execution of these documents. When first defendant had specifically denied the execution of these documents and also the signatures found on these documents, burden was cast very heavily on the plaintiffs to prove their execution and it has been rightly held by trial Court that evidence tendered by plaintiffs'' was highly deficient.

Sri Venkatashiva Reddy, learned Advocate appearing for respondents - plaintiffs has drawn the attention of the Court to the cross examination of D.W. 1 dated 02.12.2008 to contend that Smt. Basamma - D.W. 1 has admitted execution of Ex. P-1, as such, admitted fact need not be proved and he would press into service Section 58 of the Evidence Act. There cannot be any dispute to the proposition that "admitted fact need not be proved". In the instant case, the alleged admission of D.W. 1 in the cross examination dated 02.12.2008 would not come to the rescue of the plaintiffs for the reasons being indicated herein below. However, it would be appropriate to note the alleged admission of D.W. 1 which reads thus:

A reading of above cross examination does not even remotely suggest that D.W. 1 has admitted execution of Ex. P-1, P-2 and P-3. On the other hand, it would clearly indicate that she has not denied execution of ''a'' sale agreement dated 02.07.1992. However, she has hastened to add that there was one agreement which she had executed but she does not know whether it was on 02.07.1992 or on any other date. The tenor of entire cross examination does not suggest or indicate about witness being pointedly asked to answer with regard to execution of Exs. P-2 and P-3. It would suggest as though it relates to "an agreement" and whether agreement referred to by her in cross examination is Ex. P-1 or not has remained unanswered and no worthwhile admission has been elicited. In reply arguments, Sri Siddamallappa, learned Advocate appearing for appellants - defendants has contended that agreement referred to by D.W. 1 in her cross-examination refers to an agreement executed by first defendant in favour of defendants-2 and 3 on 25.06.1992 which culminated in sale deed dated 16.03.1994 - Ex. D-1 and this argument is more susceptible to acceptance since it is in the vicinity of the date 02-07-1992 spoken to by D.W. 1 in her cross-examination referred to hereinabove. The answer given by the witness being unclear and not suggesting to D.W. 2 that she had executed Exs. P-2 and P-3 are the attendant circumstances which will have to be taken note of by this Court for accepting the plea of first defendant that she had not executed these documents or in other words, plaintiffs had failed to prove due execution of these documents.

The appellate Judge having referred to Exs. P-2 and P-3 and the evidence of P.W. 2 and P.W. 3 and without discussing their evidence has jumped to a conclusion that plaintiffs have proved due execution of Ex. P-1 by Smt. Basamma - first defendant vide paragraphs 56 and 57. The records of the trial Court would indicate that after further examination-in-chief on 01.08.2007, P.W. 2/3 (Sri Nanjappa) did not turn up for cross examination and as such, on 22.08.2007 his evidence had been closed. He is one of the witness who was examined by the plaintiffs to prove the contents of Ex. P-2. As already noticed herein above other witness namely, Sri Siddappa is none other than brother-in-law of first plaintiff and much weightage cannot be attached to his testimony inasmuch as, he is a close relative of the plaintiff and he has also pleaded his inability to state details with regard to the contents of Ex. P-1 in its entirety. Thus, the appellate Court without discussing these aspects, which had been gone into by trial Court could not have ignored the material evidence available on record to reverse the findings recorded by trial Court.

Evidence available on record would indicate that first Appellate Court had erroneously appreciated available evidence and has also failed to consider the evidence available on record in proper perspective as noticed hereinabove. It requires to be further noticed at the cost of repetition that very agreement of sale - Ex. P-1 does not contain the description of the property to be sold or purchased which aspect has already been high lighted hereinabove by this Court and same had been ignored by first appellate Court. Evidence of P.Ws. 1 to 3, who have been examined to prove the contents of Exs. P1 to P3 has been held by the trial Court as not acceptable for the reason P.W. 2 is an interested witness namely a close relative (brother-in-law) of plaintiff and P.W-3 having admitted that he had not signed any document pertaining to the property in question and rightly so. Though P.W. 3 has stated that he was present when Ex. P-1 was executed, he says he never saw when first defendant had executed any document. Hence, Trial Court held his evidence cannot be accepted or he cannot be construed as an attestor to Ex. P-1. Further P.W. 4 was unable to identify the signatures found in Ex. P1 as already discussed herein above. The evidence of these two witnesses was not accepted by the trial Court and without assigning any reason or pointing out error in the judgment of trial Court, first Appellate Court has reversed said finding and decreed the suit by ignoring vital evidence available on record.

In that view of the matter, this Court is of the considered view that substantial questions of law formulated hereinabove requires to be answered in the negative i.e. against the plaintiffs and in favour of the defendants.

Hence, I proceed to pass the following:

i) Second appeal is hereby allowed.

ii) Judgment and decree passed in RA No. 49/2010 dated 25.01.2011 by the Fast Track Court-III, Bangalore Rural District is hereby set aside and judgment and decree passed in O.S. No. 110(A)/2009 dated 08.01.2010 by Civil Judge (Sr. Dn) & JMFC., Nelamangala, Bangalore Rural District is hereby restored.

iii) Costs made easy.

iv) Registry to transmit the records to the jurisdictional Courts forthwith.