Halina C. Gangappa vs Prasanna and Others

Budihal R.B., J.—This appeal is preferred by the appellant defendant against respondent plaintiffs being aggrieved by the judgment and decree dated 15.7.2006 passed by the learned Civil Judge (Sr. Dn.), Madhugiri in RA No. 110/1994 and confirming the judgment and decree dated 21.9.1994 passed in O.S. No. 88/1984 on the file of the Prl. Munsiff, Madhugiri.

The appellant has preferred the above appeal challenging the legality and correctness of the judgment of the courts below on the grounds mentioned in appeal memorandum at ground Nos. 9 to 13.

Brief facts leading to the filing of the case are that the respondent plaintiffs filed the suit seeking specific performance of the agreement of sale against the appellant defendant herein alleging that on 4.5.1982, he has entered into an agreement for sale of the suit schedule property in favour of the plaintiffs for Rs. 2,000/- and has executed an agreement of sale dated 4.5.1982 and has taken the price of Rs. 2,000/-. The plaintiffs were put into the possession of the schedule property. The plaintiffs were and are and will always be ready and willing to perform their part of the contract. On 8.2.1984, the plaintiffs got issued legal notice to the defendant requesting him to execute the sale deed in respect of the suit schedule property and got it registered within 15 days from the date of service of the said notice. It was served on the defendant on 9.2.1984. Since the defendant has not complied with the notice on time, the plaintiffs filed the suit for specific performance.

The appellant defendant appeared and filed his written statement denying the allegation that on 4.5.1982, he entered into an agreement for sale of suit schedule property for consideration of Rs. 2,000/- with plaintiffs and has executed an agreement and taken the consideration of Rs. 2,000/-. The further allegation that plaintiffs were put into the possession of the schedule property is also denied. Though the fact of legal notice is true, but further allegation that the defendant was liable and did not comply with the terms of contract is false. The plaintiffs are not entitled to recover any consideration at the same price as no consideration has been received by the defendant. The agreement relied upon by the plaintiffs is not the genuine document and it contravenes the law relating to the provisions of Prevention of Fragmentation and Consolidation of Holdings Act 1966 (for short ''the Act'') and the suit schedule property is a fragment and cannot be transferable in law. The plaintiffs are not entitled to the reliefs prayed for. The defendant is in actual possession and as on the date of the suit, it was more than the value of Rs. 5,000/-. As the defendant was in need of money, he hypothecated the suit land in favour of the plaintiffs and executed registered hypothecation deed dated 4.5.1982 for Rs. 2,000/-. The plaintiffs have paid Rs. 1,500/- only on the date of the document deducting Rs. 500/- towards interest as agreed in the hypothecation deed. The possession was not intended to be transferred to the plaintiffs. The defendant has further contended that at the time of taking his signature to the hypothecation deed, the plaintiffs and the scribe might have fraudulently secured the signature and have concocted the document to cause trouble to him. He never executed the agreement of sale.

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

"1. Whether the plaintiffs prove that execution of agreement of sale dated: 4-5-1982 and passing of consideration thereunder?

Whether the plaintiffs prove that defendant had agreed to sell the suit properties under the deed dated: 4-5-1982?

Whether the plaintiffs prove that they were ready and wiling to perform their part of the contract?

Whether the defendant proves that the agreement is not enforceable in law as contended in para.2 of the written Statement?

Whether the plaintiffs are entitled to the reliefs sought for?

What Order?"

The trial court after considering the oral and documentary evidence produced in the case ultimately decreed the suit and directed the defendant to execute the registered sale deed within three months from the date of the decree failing which the plaintiffs can execute the sale deed through the process of law.

Being aggrieved by the judgment and decree of the trial court, the appellant defendant preferred the appeal in R.A No. 110/1994 before the Civil Judge (Sr. Dn.), Madhugiri. The first appellate court after considering the materials placed before it dismissed the appeal confirming the judgment and decree passed by the trial court. Being aggrieved by the same, the defendant preferred the present appeal.

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

"Whether both the Courts have concurrently held in not appreciating oral and documentary evidence in a right perspective, more particularly, Ex. P2, the Hypothecation Deed and thus, the judgments of both the Courts have become perverse and illegal?"

Heard the arguments of the learned counsel appearing for the appellant defendant and also the learned counsel appearing for the respondent plaintiffs.

Learned counsel for the appellant during the course of the arguments made the submission that on 4.5.1982 as the defendant was in need of money, he hypothecated the suit schedule property for Rs. 2,000/- to the plaintiffs and executed the hypothecation deed as per Ex. P.2. The defendant never proposed to sell the suit schedule property to the plaintiffs for consideration of Rs. 2,000/- and never executed the agreement of sale. He submitted that the agreement of sale is a fraudulent document created under the circumstances as contended in the written statement. The suit schedule property is measuring only one acre and it was a fragment and therefore, the transaction of the alleged agreement of sale is against the provisions of the Act. The learned counsel also submitted that section 4 of the Act is not at all considered by the trial court and the first appellate court. It is also his submission that during the pendency of this appeal, respondent No. 1 expired and in spite of making best efforts, the legal heirs of the deceased was not known and hence no steps were taken. Respondent No. 2 on record is representing the interest of the legal heirs of the deceased. Therefore, the entire appeal will not abate. He submitted that the judgment and decrees of the courts below are not in accordance with the oral and documentary evidence placed before the trial court and not sustainable in law. Hence, submitted to allow the appeal and to set aside the judgment and decrees of the courts below by dismissing the suit of the respondents.

Per contra, learned counsel appearing for the respondents during the course of his arguments made the submission that respondent No. 1 expired during the pendency of this appeal and in spite of giving sufficient opportunity, the appellant has not brought legal heirs of the deceased respondent No. 1 and hence, this Court, on 30.5.2012 has ordered that the appeal against respondent No. 1 shall stand abated. The learned counsel made the submission that in view of the appeal being abated so far as respondent No. 1 is concerned, the appeal is also not maintainable even in respect of respondent No. 2 and it is liable to be dismissed on that ground itself. In support of his contention, the learned counsel relied upon the decision of the Hon''ble Supreme Court reported in case of Budh Ram and Others Vs. Bansi and Others, (2010) 8 JT 115 : (2010) 7 SCALE 750 : (2010) 11 SCC 476 : (2010) 9 SCR 674 . He also drew the attention of this court to Para No. 17 of the said judgment which reads as under:

"17. Therefore, the law on the issue stands crystallized to the effect that as to whether non-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-�-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test."

The learned counsel for respondent further made the submission that the transaction is not at all affected by the provisions of Section 4 of the Karnataka Prevention of Fragmentation and consolidation of Hoardings (Amendment) Act 1983 (Act No. 19/1983). In this connection also, the learned counsel for the respondents relied upon the decision of this Court reported in Shivasharnappa Vs. The Deputy Commissioner, Gulbarga and Another, (1999) 3 KarLJ 87 and also another decision of this Court dated 25.4.2014 rendered in RSA No. 727/2008. in the case of Smt. Basheera Bi v. Sri. Syed Razak and submitted that the trial court as well as the first appellate court have considered all these aspects of the matter and rightly decreed the suit of the plaintiffs by the trial court and confirmed by the first appellate court. Hence he submitted that there is no merit in the appeal and the same be dismissed.

I have perused the pleadings of the parties presented before the trial court, oral and documentary evidence produced on both sides, the judgment and decrees of the courts below, the grounds urged in the appeal memorandum, the decisions relied upon by the learned counsel for the respondents which are referred above so also considered the points canvassed by both sides during the course of the arguments.

Perusing the judgment and decrees passed by the courts below, the trial court has considered the oral and documentary evidence and ultimately came to the conclusion that the defendant executed the agreement of sale in favour of the respondent plaintiffs. It is also held by the trial court that the defendant has failed to establish the fact and also his allegation that at the time of executing the hypothecation deed Ex. P.2, the plaintiffs and the scribe fraudulently obtained his signatures and thereby, they have created the alleged agreement of sale as per Ex. P.1. Hence, the trial court decreed the suit of the plaintiffs. The view taken by the trial court has been confirmed by the first appellate court and while doing so, the first appellate court also reappreciated the evidence and concurred with the findings of the trial court. The first appellate court has also discussed with regard to the possession of the suit schedule property.

I have perused the decisions relied upon by the learned counsel appearing for the respondents. It is the case of the respondent plaintiffs that the defendant appellant executed the agreement of sale under Ex. P.1 jointly in favour of the respondents. When one of the respondents is already expired and looking to the order sheet in this appeal, the court has already ordered that the appeal against respondent No. 1 abates. Therefore, as per the principles enunciated in the decisions of the Hon''ble Supreme Court, the entire appeal abates.

The contention of the appellant defendant is that the transaction is hit by the provisions of the Prevention of Fragmentation and consolidation of Hoardings (Amendment) Act 1983 (Act No. 19/1983). Looking to the decisions relied upon by the learned counsel appearing for the respondents, I am of the opinion that the said contention of the appellant is not sustainable. No illegality has been committed by the courts below nor there is any perverse or capricious view taken by the courts below so far as the execution of agreement of sale under ExP.1 by the appellant in favour of the respondents. There is concurrent finding as to the proof of the same. There is no merit in the appeal for interference by this court and accordingly, the appeal is dismissed.