Dyavamma vs Y.R. Swamy

Budihal R.B, J.—This appeal is by the appellant/plaintiff being aggrieved by the judgment and order dated 22.4.2006 passed in R.A. No. 179/2004 (Old No. 34/2000) by the Fast Track Court-I and Additional District Judge, Hassan allowing the appeal filed by the defendants/respondents herein by reversing judgment and decree dated 31.8.1998 passed by the Principal Civil Judge (Jr. Dn.) and Court of JMFC-II, Hassan, in O.S. No. 48/1986 decreeing the suit.

The appellant herein contended that the judgment and order of the appellate Court is opposed to all cannons of law, facts and circumstances of the case and liable to be set aside. The judgment and order are arbitrary and capricious and without appreciating the materials on record, the first appellate court has passed the said order. It has failed to appreciate the reasoning given by the trial court while decreeing the suit. It has come to the conclusion that the signature found in Ex. P. 1(d) is the signature of late Thimmegowda-defendant No. 2. When that being the case, the execution of Ex. P. 1 is proved and hence, the order of the first appellate court is perverse and vexatious. The first appellate court has failed to consider the settled principle that the document as a whole is to be read and not in piece meal and erred in passing the impugned order. It has further failed to appreciate the wordings found in Ex. P.1 and this vital aspect has not been considered by the said court while passing the impugned order. The first appellate court has failed to appreciate the evidence of P.W. 3-scribe who has explained the reasons of scoring and writing found in Ex. P.1. It has erred in giving much reliance on the scoring of the document Ex. P.1 without reading the document as a whole. The Court below has erred to see that P.W. 1 is a village gullible lady and failed to take into consideration this aspect while passing the impugned order. The order of the first appellate court is full of surmise. The court below has erred in misinterpreting Ex. P.1 as the same is executed without consideration. This aspect has not been considered by the first appellate court. The court below has erred in coming to the conclusion that writing/over writing found in Ex. P.1 are material alterations which affect the right, title and interest of the defendants. But the said fact will not come within the definition of materials alteration. The court below by wrongly relying upon the decisions which are not applicable to the case on hand has erred in passing the impugned order. The court below has erred in wrongly interpreting sections 2(h) and 10 of the Indian Contract ACT. Hence, the judgment and order of the first appellate court are liable to be reversed.

The appellant-plaintiff filed a suit in O.S. No. 48/1986 for specific performance of the agreement of sale dated 18.3.1985 said to have been executed by the respondents/defendants in favour of the appellant/plaintiff and also cost of the suit. It is averred in the plaint that the plaint schedule property is a self acquired property of the 1st defendant and 2nd defendant is also in joint possession of the same with the 1st defendant. The defendants for their necessity and benefit agreed to sell the plaint schedule property (site) to the plaintiff for value of consideration of Rs. 2,000/- and have received the full sale consideration in the presence of witnesses and have executed the agreement of sale in favour of plaintiff on 18.3.1985 and put the plaintiff in possession of the said property. In spite of repeated request by the plaintiff to execute the sale deed the defendants unnecessarily postponed execution of sale deed on one pretext or the other. Hence, the plaintiff filed the aforesaid suit seeking specific performance of the agreement of sale. Defendant Nos. 1 and 2 filed their separate written statement totally denying execution of the agreement of sale in favour of the plaintiffs on 18.3.1985. It is contended by the defendants that they have purchased the property from the plaintiff and since from the date of purchase, they are in possession and enjoyment of the suit schedule property. Defendant No. 1 contended that suit schedule property bearing Sy. No. 68/7 is one portion and there are no two portions. The defendant has also stated that the plaintiff filed the suit by making false allegations against him. Both the defendants contended that when they have not at all executed agreement of sale nor received the consideration amount, the question of executing sale deed in favour of the plaintiff does not arise. They also contended that the documents produced by the plaintiff are false and created documents. There is no cause of action for filing the suit and the suit is barred by limitation.

On the basis of the pleadings of the parties, the trial court has framed the following issues:

Does the plaintiff prove that the defendants 1 & 2 have jointly executed the agreement of sale on 18-3-85 for consideration of Rs. 2000/- and received the consideration amount in full and handed over the possession of the suit schedule property on the same day?

Does the plaintiff further prove that the defendants 1& 2 have refused to get the sale deed registered in favour of the plaintiff in spite of her demand?

Does the defendants prove that the suit document is fabricated and concocted?

Does the defendants prove that the suit is not maintainable for the facts alleged in paras 5 & 8 of their written statement?

Is there any cause of action for the suit?

Is the suit bad for wrong description and for want of better particulars?

Whether the plaintiff is entitled for a decree of specific performance?

To what order or relief?

Additional issue:

Whether the suit is barred by limitation?

Considering the merits of the case, the trial Court has ultimate decreed the suit of the plaintiff and directed defendants 1 and 2 to execute the sale deed in favour of the plaintiff in respect of two suit sites within the period of three months from the date of the judgment.

Aggrieved by the judgment and decree passed in the said suit, defendants have preferred the appeal in R.A. No. 179/2004 (old No. 34/2000) wherein they have challenged the legality and correctness of the judgment and decree on various grounds. The first appellate Court after considering the materials placed in the case ultimately, allowed the appeal and dismissed the suit of the plaintiff-respondent in the said appeal. Aggrieved by the judgment and decree passed by the first appellate Court, the present appeal is preferred by the appellant-plaintiff.

While admitting the appeal, this Court has framed the following substantial question of law for the consideration of this Court:

Whether re-appreciation of evidence by the lower appellate Court is perverse which resulted in miscarriage of justice?

Heard the arguments of the learned counsel appearing for the appellant-plaintiff and also the learned counsel appearing for respondents-defendants.

Learned counsel for the appellant during the course of his arguments has submitted that the judgment and decree passed by the first appellate Court is not in accordance with the materials placed both oral and documentary. The first appellate Court has wrongly appreciated the document Ex. P1 and ultimately, dismissed the suit, which is illegal. He has submitted that though it is held by the first appellate Court in the judgment that defendant Nos. 1 and 2 have admitted their signatures on Ex. P1, but held that plaintiff is not entitled to the relief of specific performance, which is perverse and capricious. He has submitted that the re-conveyance deed is executed voluntarily. When evidence of D.W. 1 was excluded from consideration, how Court can hold that sale deed is proved. The materials produced in the case shows that the sale transaction between defendant Nos. 1 and 2 in favour of defendant No. 3 is a collusive transaction only to defeat the claim of the plaintiff. That finding about the signature on Ex. P1 is not at all challenged by the defendants. There is no pleading in the written statement that there is a material alteration of the document Ex. P1, agreement of sale and no issue was framed on that point. In the absence of these things, the first appellate Court has wrongly held that there is a material alteration in Ex. P1 and has dismissed the suit. He has submitted that the finding of the first appellate Court is totally perverse and capricious. The trial Court after considering each and every aspect of the matter has decreed the suit of the appellant-plaintiff. Hence, the judgment of the first appellate Court is liable to be set aside, by allowing the appeal and confirming the judgment of the trial Court. In support of his contention, learned counsel for the appellant has relied upon the following decisions:

(1) (2006) 12 SCC 215: In the case of Seema Kumari and Others V/s. State of Jharkhand and Others (H Note ''B'')

(2) Escorts Farms Ltd., Previously known as Escorts Farms (Ramgarh) Ltd. Vs. The Commissioner, Kumanon Division, Nainital, U.P. and Others,

(3) Dale and Carrington Invt. (P) Ltd. and Another Vs. P.K. Prathapan and Others,

As against this, learned counsel for the respondents during the course of his arguments submitted that when the defendants 1 and 2 have totally denied the execution of agreement of sale Ex. P1, the entire burden is on the appellant-plaintiff to prove Ex. P1. There are additions in the writing of Ex. P1 and they are in different ink and not signed by anybody. He also drew the attention of this Court to the document Ex. P1 and submitted that usually parties signatures would be at the end of the writing, but in this case, the signature of the party has crossed the writings. This shows that the said writings are made subsequently and after the signature has been put by the party. He drew the attention of the Court to paragraph No. 44 of the judgment of the first appellate Court and submitted that the first appellate Court has held that the decisions produced in the case are aptly made applicable to the case since in all the said cases there is a discussion about what is material alteration. Learned counsel has submitted that plaintiff is not in possession and same is evidenced by the deposition of P.W. 2 and the counsel draw the attention of the Court to the relevant portion of the said evidence. He has also submitted that with regard to the earlier sale transaction there is no pleading in the plaint. Even though there is no specific pleading regarding the material alteration and no issue on that point, the Court can consider the said aspect in coming to the right conclusion in the matter. Hence, he has submitted that there is no merit in the appeal and the same may be dismissed. In support of his contentions, learned counsel for the respondents has relied upon the following decisions:

(i) R.S.A. No. 893/2009 (Sri. N. Pranesh Rao V/S Dhavalamma)

(ii) Smt. Khamarunnisa Vs. Mudalappa,

(iii) RSA No. 1300/2009 (Sri. Balakrishna V/S. Smt. Mariyamma and others)

I have perused the averments made in the appeal memorandum, judgment and decree passed by the trial court and the first appellate court and also the oral evidence of the parties P.Ws. 1 to 4 and D.Ws. 1 and 2 so also the documents Exs. P.1 to P.3 produced before the trial court.

The plaintiff''s case is that on 18.3.1985, both defendant Nos. 1 and 2 have agreed to sell the suit schedule two sites in favour of the plaintiff for total consideration of Rs. 2,000/- and executed the agreement of sale-Ex. P.1 by receiving full consideration amount of Rs. 2,000/- from her. The trial court decreed the suit and thereafter, when the appeal was preferred before the first appellate court, the first appellate court has allowed the appeal and dismissed the suit of the appellant/plaintiff. The case of respondent/defendant Nos. 1 and 2 is that they totally denied execution of agreement of sale at Ex. P.1. It is their case that they have not received consideration amount of Rs. 2,000/- from the appellant/plaintiff. The first appellate court after considering the document Ex. P.1 came to the conclusion that there is a material alteration in the document Ex. P. 1 and with regard to the said alteration, there are no initials put either by writer of the document or the parties to the said document and hence, the first appellate court has held that the plaintiff has failed to prove the case and allowed the appeal.

I have perused the document at Ex. P.1. In the first page of the document Ex. P.1 at three places, the word ''mufut'' has been scored and in the said places, the word ''kraya'' i.e. sale has been written. On the second page of the said document, at two places, the said word ''mufut'' has been scored and in its place, the word ''krayakke'' is mentioned. At the end of the document at page No. 2, it is mentioned in three lines that as a consideration of the sale, Rs. 2,000/- has been received in cash in the presence of panch witnesses. At row Nos. 10 and 18 or 21 page No. 1 of the document, the word ''mufut'' is scored and the word ''krayakke'' is mentioned. If the document Ex. P. 1 is read as it is without the correction made in the said document, it goes to show that the transaction is by. way of ''mufut'' i.e., without consideration and it will be in the nature of a gift deed. These corrections or the alterations has to be appreciated with reference to the evidence led by the parties.

Looking to the evidence of P.W. 1, she is the purchaser under the said document. During the course of cross examination, when it was asked to P.W. 1 as to the alteration and corrections made in the document at Ex. P.1, she has denied the said suggestion and according to her, no such corrections are made in the said document Ex. P.1. Defendant Nos. 1 and 2 have denied the very execution of the document Ex. P.1. The writer of the document Ex. P.1 was examined as P.W. 3. In his evidence, P.W. 3 has deposed that the word ''mufut'' has been written by mistake and it was corrected then and there only by him. This aspect has been discussed by the first appellate court in its judgment observing that even if it is presumed that by mistake the word ''mufut'' is written, it may be written in one place or another place, but in five places, such a mistake has happened. Hence, it has held that it cannot be said to be because of mistake. It was also specifically put to P.W. 3-scribe that no initials put by him for the alteration in removing the word ''mufut'' and mentioning the word ''kraya'' i.e., (sale), and also two-three sentences which were written at the end of the document on page No. 2. He has admitted the said fact but he wanted to explain about the said corrections and he has mentioned in the shara. With regard to another question put to him that the ink used for such alteration is in different ink compared to the ink used for writing the other contents of the document Ex. P. 1, he has denied the said suggestion. Looking to the document Ex. P.1 itself, it is clearly visible that the ink used for writing the correction is different from the ink that was used for writing the other contents of the document Ex. P. 1. Even with regard to the shara which the scribe P.W. 3 wanted to explain, the said shara is not in respect of all the corrections, but it is only in respect of corrections at two places which is admitted in his cross examination. He has stated that for the corrections at row Nos. 10 and 18, there is a shara and for the correction at row No. 21, there is no shara. He has also admitted that for the corrections at row Nos. 12 and 13 on page No. 2 of Ex. P. 1, no shara is written. Though it is stated by P.W. 3 that the said corrections were made immediately while writing the document Ex. P.1, but the fact that the ink used is different for writing the corrected portion. The initials of the scribe or the parties to the said document are not appearing for the said correction. Even looking to the last portion of page No. 2 of the document, the writing has crossed the signature of respondent No. 1-Swamy which also gives an impression that the said writing is done subsequently after the document was signed by the alleged executants i.e., respondent No. 1 and 2. Even in the evidence of P.W. 3-scribe, he has not stated in the examination in chief that in his presence, Rs. 2,000/- was paid by the plaintiff to the defendant Nos. 1 and 2.

I have perused the decisions and the principles enunciated in the decisions relied upon by both sides. Learned Senior Counsel for the appellant has relied upon decision (2006) 12 SCC 215 (Synopsis B) to contend that when there is no pleading by defendant Nos. 1 and 2 in their statement regarding material alterations said to have been made in Ex. P. 1 so also there is no issue on that point, it cannot be argued in the second appeal on the said contention. Learned Counsel for the respondents-defendant Nos. 1 and 2 has relied upon the judgment of this Court 4.6.2013 passed ''in RSA No. 1300/2009. I have perused the principles enunciated in the above said two decisions and also the factual aspects regarding the alleged offence of alteration. The document Ex. P.1 is produced by the appellant before the trial Court and based on the said document, the appellant-plaintiff is seeking the relief. When that is so, the burden is on the appellant-plaintiff to prove the document Ex. P.1 to the satisfaction of the Court. As I have already observed above, with regard to the document Ex. P.1 and the writings in different ink without initials and without any shara even according to P.W. 3, I am of the opinion that the decision relied upon by the learned Counsel for the appellant on this aspect of the matter is not helpful to the appellant as the facts and circumstances involved in the said decision are altogether different from the facts and circumstances of the case on hand. The judgment of this Court in RSA No. 1300/2009 relied upon by the learned Counsel for respondents on the said aspect is under the same set of allegations and the contentions. Therefore, the said judgment is aptly made applicable to the case on hand. In para No. 17 of the said decision, the same point has been discussed by this Court and it is held that material alteration has been established.

I have also perused the judgment relied upon by Counsel for the respondent Nos. 1 and 2 in RSA No. 893/2009 (SP/P-INJ) along with Misc. Cvl. No. 11675/2009 dated 10.4.2014, wherein this Court has held that the transaction in the matter of fragmentation is expressly prohibited. Therefore, on that ground also Ex. P1 cannot be enforced. In para No. 9 of the said: judgment, this aspect has been discussed. I have further perused the judgment reported in Escorts Farms Ltd., Previously known as Escorts Farms (Ramgarh) Ltd. Vs. The Commissioner, Kumanon Division, Nainital, U.P. and Others, and Dale and Carrington Invt. (P) Ltd. and Another Vs. P.K. Prathapan and Others, relied upon by the learned Counsel--for "the appellant and also the principles enunciated in the said decisions. Looking to the factual aspects involved in those two decisions and the factual aspects involved in the case on hand, they are not one and the same and hence, the said decisions are not helpful to the appellant-plaintiff to get the relief as sought for in the suit.

Looking to the contentions of the parties so also the materials placed on record, the first appellate court has considered all factual and legal aspects properly and hence, there is compliance of order XLI Rule 31 of CPC. No illegality has been committed by the first appellate Court nor there is any perverse or capricious view taken by the said Court in allowing the appeal and dismissing the suit of the plaintiff. There are no valid and justifiable grounds for this Court to interfere with the judgment and order of the first appellate Court. Therefore, the regular second appeal is dismissed and the judgment and order dated 22.4.2006 passed in R.A. No. 179/2004 (Old No. 34/2000) by the Fast Track Court-I and Additional District Judge, Hassan, is hereby confirmed.