Girimallappa vs Gangavva

S.N. Satyanarayana, J.—The plaintiff in O.S. No. 139/2005 on the file of Civil Judge (Sr. Dn.), Jamakhandi, has come up in this second appeal impugning concurrent finding of both the Courts below in dismissing his suit for specific performance.

Brief facts leading to this second appeal are as under:

"Appellant herein who is plaintiff in the original suit contend that he had entered into an oral understanding with defendant for sale of suit schedule property in his favour for valuable consideration of Rs. 66,000/-. The suit schedule land is an extent of 1 acre in sy. No. 85 of Shurapali village, Jamakhandi Taluk, Bagalkot district. It is stated that the defendant was owner of an extent of 10 acres 11 guntas in the said Sy. No. 85 out of which she agreed for sale of an extent of 1 acre as per the boundaries specified in the suit schedule property."

It is the case of the plaintiff that no agreement of sale was entered into. In terms of the negotiation finalized for purchase of suit schedule property the sale deed was prepared right away by paying entire sale consideration. The sale deed was executed by the defendant after receiving the sale consideration. However, before the said document was presented before the Sub Registrar, Jamakhandi, for the purpose of registration, the defendant walked away stating that she need to bring one well-wisher of her to be present at the time of registration of the document and thereafter she did not come back. With this, the suit for specific performance was filed. In the said suit though summons was duly served upon the defendant, she did not enter appearance and in the said suit she was placed ex-parte and the matter was taken up for evidence.

In the Court below the plaintiff examined himself as P.W. 1 by filing his evidence by way of affidavit. At that time he produced the sale deed which is said to have been prepared on 12.04.2005 and also a receipt issued by State Bank of Mysore for Rs. 6,010/- to demonstrate that he has paid the stamp duty in the State Bank of Mysore and also declaration in form No. 15 and other documents for the purpose of completion of the sale deed.

The Court below after recording evidence, heard the counsel for the plaintiff. On going through the plaintiff''s evidence the trial Court felt that the plaintiff has failed to establish execution of the sale deed by the defendant, payment of sale consideration as well as the transaction having been completed with the defendant. In the absence of required evidence to establish the same the trial Court dismissed the suit of the plaintiff which was confirmed by the lower appellate Court in R.A. No. 169/2010 on the file of Fast Track Court, Jamakhandi. As against the concurrent findings of both the Courts below this second appeal is filed.

At this juncture it is relevant to mention that the defendant remained ex-parte in the trial court as well as in the lower appellate Court in R.A. No. 169/2010. However, in this second appeal respondent, who is the defendant in the original suit, is duly represented by counsel.

Heard the counsel for appellant, perused the grounds urged as well as the judgment rendered by both the Courts below along with the oral and documentary evidence available on record in the lower court records. On going through the same, it is seen that though the plaintiff has stated that the transaction for purchase of suit schedule land is finalized by him with the help of well-wishers as mediators and who acted as attesting witnesses to the sale deed, he has not examined any one of them in the Court below.

It is seen that though he has stated that he paid the entire sale consideration of Rs. 66,000/-, in his affidavit evidence he does not state that when payment was made, place where such payment was made, the sale deed does not speak with reference to whether the consideration was paid in cash or cheque. In addition to that, the evidence does not speak of sale deed executed by the defendant. On the contrary, it would state that the plaintiff got the sale deed drafted and prepared in the presence of the defendant for the purpose of getting the same executed and registered in his favour. But nowhere in the affidavit he state about the document being executed. However, when Ex. P.1 is looked into it is seen that the signature of defendant is stated to be on the record. Whether it is the signature of the defendant or not, is not established by examining independent witnesses who were said to be present at the time of execution of the sale deed as attesting witnesses. When four of the attending witnesses are available why the plaintiff did not examine any one of them, at the time of leading evidence in the suit for specific performance is not properly explained before the lower appellate Court or in this court. In the absence of payment being established the trial Court and lower appellate Court did not accept the same. When it comes to this Court, it is seen that the consideration said to have paid Rs. 66,000/-. When admittedly any payment in excess of Rs. 20,000/- was required to be paid and accepted, it has to be in the form of cheque. The evidence on record would not disclose whether payment by plaintiff is in cheque or cash. Assuming for a moment that, payment is by cheque then it was incumbent upon the plaintiff to demonstrate before the Court that the cheque was duly encashed. Even if it is assumed payment is made in cash, plaintiff should have demonstrated, he had the amount available with him, should have adduced evidence to show when he withdrew the amount from bank and in what manner he paid the amount to the defendant in whose presence, before execution of sale deed. Alternatively if he had borrowed the amount from his friends or relatives, he has not examined any of them to show flow of consideration from said persons to him and thereafter to the defendant.

Therefore, it is seen that though plaintiff states that transaction being complete, the pleading and evidence is contrary to that. Nowhere in the evidence he has stated that Ex. P.2-sale deed being executed by the sole defendant. There is no document to show that the execution is in the presence of attesting witnesses and it is not even his case that the said witnesses are not available for producing them as witnesses before the Court below to establish his contention. Hence, the trial Court suspected execution of the sale deed and dismissed the original suit, which is accepted by the lower appellate Court.

However, when it comes to the second appeal, learned counsel for the appellant tried to substantiate that by contending, merely because there is no agreement is executed and merely because the witnesses are not examined, the transaction cannot be brushed aside. To substantiate the said line of arguments he relied upon the judgment rendered by the Apex Court in the case of S. Kaladevi Vs. V.R. Somasundaram and Others, .

This Court went through the said judgment which is rendered in the matter where admissibility of unregistered sale deed in evidence in a suit for specific performance was rejected. Therefore, the relevance of such production and admissibility of the same under Section 49 and Sec. 17 of the Registration Act, was the subject matter of the said judgment wherein a categorical finding is rendered by the Apex Court with reference to admissibility of said document in suit for specific performance. However, the suit in the said proceeding was still at the stage of recording evidence. In fact, after dismissal of the Civil Appeal No. 3192/2010 which is decided in the said reported judgment liberty is given to the plaintiff to proceed with the suit by marking copy of the sale deed said to have been executed by the defendant in the suit for specific performance. In the said judgment no finding is given which would inure to the benefit of the plaintiff to accept the duly executed sale deed as conclusive proof as agreement of sale between the parties. In the instant case, facts are totally different, in fact, the sale deed relied upon by the plaintiff is admitted in evidence as Ex. P.2 as against in the suit in which the aforesaid judgment is rendered. On going through the said judgment with reference to the facts of the present case, it is seen that by relying upon Ex. P.2 the same cannot be accepted either for admitting this appeal or for accepting the contention of the plaintiff that the said sale deed should be taken as conclusive proof of agreement of sale between the parties to consider his prayer for specific performance.

In that view of the matter, this Court find no justifiable grounds are made out to admit this second appeal based on the grounds made out in this appeal in as much as no substantial question of law arises for consideration, on the basis of which the appeal is filed. Accordingly, this second appeal is hereby dismissed.