H.C. Nagaraj and Others vs H.T. Krishnappa and Others

A.V. Chandrashekara, J.—This appeal is filed under Section 100 of CPC challenging the concurrent findings passed by the Court of Civil Judge (Jr. Dn.) and JMFC, Hoskote in O.S. 222/1993 and confirmed by FTC-I, Bangalore Rural District in R.A. 131/1998.

H.T. Chinnappa will be referred to as plaintiff and H.T. Krishnappa will be referred to as defendant as per their ranking in O.S. 222/1993.

The facts leading to filing of the suit for relief of specific performance relating to 2 acres of land in Sy. No. 69/1 of Kothnur Village of Hoskote by H.T. Chinnappa are as follows:

"a) Plaintiff H.T. Chinnappa is the brother of H.T. Krishnappa, who was defendant in the said suit. Two acres of land in Sy. No. 69/1 as described in the schedule appended to the plaint had fallen to the share of Krishnappa by means of a settlement and he was in lawful possession of the said property. It is averred that he had agreed to execute a regular sale deed in favour of plaintiff for a consideration of Rs. 3,000/- and he is stated to have handed over the possession by receiving the entire consideration vide agreement of sale dated 12.8.1978. He is stated to have put the plaintiff in possession on 12.8.1978, the date of execution of the agreement of sale. Three months was the time fixed for executing the sale deed in favour of plaintiff by the defendant. Inspite of several demands made by the plaintiff, the defendant did not come forward to execute regular sale deed and therefore a legal notice was got issued to the defendant on 4.2.1980 calling upon the defendant to execute the regular sale deed in his favour. Inspite of legal notice issued, Krishnappa did not come forward to execute the sale deed and hence, plaintiff filed a suit for specific performance before the Munsiff Court, Bangalore in O.S. 580/1980, consequent upon establishment of the Munsiff Court at Hoskote, the same was withdrawn and transferred and renumbered as O.S. 222/1993.

b) H.T. Krishnappa had filed a suit bearing O.S. 1121/1979 (New O.S. No. 183/1994) through his wife as his next friend for the relief of declaration of title and permanent injunction in respect of 2 acres of land in Sy. No. 69/1 of Kothnur. Consequent upon the establishment of Court at Munsiff, Hoskote, same was transferred and renumbered as O.S. 183/1994.

c) Since, both the suits pertain to the same property, they were clubbed together and common evidence was recorded.

d) Defendant chose to file written statement denying all the material averments. Defendant has specifically denied the execution of the agreement of sale dated 12.8.1978 and receipt of Rs. 3,000/- as sale consideration and handing over possession to the plaintiff. According to him, suit filed by the plaintiff was not maintainable since the alleged agreement relied upon by the plaintiff was a concocted document. He has called upon the plaintiff to strictly prove the contents of the plaint. With these pleadings, he requested the court to dismiss the suit.

e) On the basis of the pleadings of the parties, the Trial Court has framed following issues for consideration:

Issues in O.S. No. 222/1993

Whether plaintiff proves that the defendant agreed to sell the suit schedule property and executed an agreement of sale dated; 12.8.1978 having received the consideration of Rs. 3,000/- there under?

Does he further prove that in pursuance of the said agreement he was put in possession of the suit schedule property?

Is the plaintiff entitled for specific performance of the agreement dated; 12.8.1978?

What order or the reliefs the parties are entitled?

Issues in O.S. 183/94

Whether the suit as brought is not maintainable?

Whether the defendants prove that the plaintiff agreed to sell the suit schedule property to the first defendant and executed an agreement of sale Dt. 12.8.1978?

Whether the defendants prove that the first defendant was put in possession of the suit schedule property in pursuance of the agreement of sale?

Whether the plaintiff proves that he is in possession of the suit schedule property?

Whether the plaintiff further proves that the defendants tried to interfere with his possession of the suit schedule property?

Whether the plaintiff is entitled for the relief of declaration of title?

Whether the plaintiff is entitled for permanent injunction as sought for?

To what reliefs are the parties entitled?"

Ultimately both the suits were dismissed by considered judgment dated 14.7.1998. Being aggrieved by the dismissal of the suit O.S. 222/1993 filed for relief of specific performance, Chinnappa filed an appeal under Section 96 of CPC in R.A. 131/1998 and Krishnappa being aggrieved by the dismissal of his suit in O.S. 183/1994, filed an appeal in R.A. 149/1998. The learned Judge of the first appellate court has dismissed both the appeals filed by Chinnappa and Krishnappa in R.A. 131/1998 and 149/1998 respectively by a considered judgment dated 19.10.2005. Being aggrieved the by dismissal of R.A. 131/1998, Chinnappa has chosen to file the present appeal under Section 100 of CPC. But Krishnappa has not chosen to file any appeal before this Court in RSA as against the dismissal of his regular appeal in R.A. 149/1998.

During the pendency of the regular appeal, Chinnappa died and his legal representatives were brought on record. Several grounds have been urged in the present appeal. The present appeal has been admitted by this Court on 19.6.2008 to consider the following substantial question of law.

"Whether the courts below were justified in holding that the agreement of sale has not been proved by the appellant despite oral and documentary evidence placed in proof of the same?"

Heard Sri. T.N. Vishwanath, learned counsel for the appellant/plaintiff and Sri. Papi Reddy, the learned counsel for respondent/defendant Krishnappa.

The scope of interference in a second appeal is limited in a case where concurrent findings are called in question. If there is any serious error committed by the Courts below in appreciating the oral and documentary evidence, this second appellate court can definitely interfere with such concurrent findings

What is argued by Sri. Vishwanath, is that both the Courts have adopted wrong approach to the real state of affairs and they have not appreciated the oral and documentary evidence in right perspective in regard to Ex. P-1, agreement of sale dated 12.8.1978. The same is marked as Ex. D-1 in O.S. 183/1994. Xerox copy of the same is produced by Sri. Vishwanath for reference to this Court.

Krishnappa has emphatically denied the execution of agreement of sale dated 12.8.1978. Papaiah is stated to have attested to the agreement of sale as attestor. One Chikkapapaiah is stated to have specifically affixed his LTM to the document as an attestor. It is stated that K. Sampangiramaiah was the scribe to the said document. Chinnappa is examined as D.W.-1 in O.S. 183/1994 and he has been cross examined at length by the counsel for plaintiff in the said suit in the trial court.

Important aspect is in regard to the purchase of stamp paper to execute the alleged agreement of sale. Plaintiff in O.S. 222/1993 has deposed that he himself carried the stamp paper. In O.S. 183/1994, he has deposed that he got the stamp paper through his brother. PW-3 has deposed that he had purchased the stamp paper by paying money, but the same is not proved. Recitals of the document Ex. D-1 clearly show that stamp paper was purchased in the name of Krishnappa. Neither the plaintiff nor his witnesses have deposed that they purchased the stamp paper in the name of Chinnappa. Insofar as the persons who were present at the time of execution of agreement of sale, the plaintiff has deposed that that himself, defendant No. 2 and Papaiah were present. He has not stated anything about the persons and muslim gentlemen. He has further deposed that at the time of agreement of sale, himself and papaiah went to the house of Shanbogh and defendant was present. PW-2 Papaiah has deposed that he was going on the road and at that time he was called by the parties. Considering the glaring inconsistencies found in the deposition of witness examined on behalf of Chinnappa, the trial court has come to the conclusion that the presence of witnesses at the time of execution of agreement of sale is very much doubtful. PW-3 has not stated about the names of the persons who were present at the time of execution of agreement of sale. Chinnappa has deposed that Shanbogh wrote the contents of the agreement of sale but PW-2 has deposed that Krishnappa dictated the recitals to the Shanbogh. He is an ignorant man and cannot understand the wordly affairs. On considering the entire evidence and the deposition of witnesses, the trial court has come to the conclusion about the non-proving of material document i.e., agreement of sale relied upon by Chinnappa.

The very authenticity of the agreement of sale is doubtful. If the possession had been handed over to the plaintiff in the year 1978, his name would have found a place in column 12(2) of RTC for few years after 1978. The name of Chinnappa is not to be found in RTC. This is one circumstances which probabalises the defence of Krishnappa. The learned Judge of the Trial Court has come to the conclusion that the revenue documents depict the name of Krishnappa only and they have rebuttal presumption under Section 133 of Karnataka Land Revenue Act.

Relief of specific performance is an equitable relief, whoever wants the court to grant the equitable relief must come to the court with clean hands and prove the execution of the document relied upon by him/her. Not only proving the document is essential it must be proved that the said document is an out and out document. The learned Judge of the trial court has considered the entire oral and documentary evidence in right perspective and has come to the conclusion that Chinnappa has failed to prove the very execution of the agreement of sale dated 12.8.1978.

The first appellate court dealing with an appeal under Section 96 of CPC is the final court of facts and is expected to reassess the entire evidence in right perspective. If the first appellate court intends to upturn a well considered judgment of the trial court it has to assign cogent reasons as to why it intends to reverse the judgment of the trial court and where the trial court has gone wrong.

What exactly should be the approach while dealing with an appeal under Section 96 of CPC has been well dealt with by the Hon''ble Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 Infact learned Judge of the first appellate court has formulated two points for consideration and the same is as follows:

"1. Whether Krishnappa, husband of Jayamma (plaintiff in O.S. 183/94) was of unsond mind during and at the time of filing O.S. 183/94 on 14.12.1979?

Whether defendant executed sale agreement in favour of plaintiff on 12.06.1978 having agreed to sell the suit land put the plaintiff in possession of the suit land?"

The first appellate court has formulated proper points for consideration in terms of Order 41 Rule 31(a) of CPC. After formulating points for consideration the learned Judge of the first appellate court has reassessed the entire evidence in right perspective and necessary discussion is found in paragraph 8 of its judgment. After assessing the oral and documentary evidence on record, learned Judge has come to the conclusion that there are glaring inconsistencies and variations in the evidence of Chinnappa and witnesses examined on his behalf. It is further held that the inconsistencies and variations pointed by the trial court have been elaborately dealt by learned Judge of the trial court in paragraphs 16, 17 and 18 of its judgment.

The learned of the first appellate court has adopted right approach to the real state of affairs and no perversity or infirmity is found. Suffice to state that no interference is called for. Apart from that initial burden cast upon the plaintiff is not effectively discharged as mandated under Sections 101 and 102 of Evidence Act. Unless initial burden is effectively discharged, the onus does not shift on the other side. Even if there are inconsistencies in the case of the defendant, the same cannot be taken as advantageous by the plaintiff. Suffice to state that both the courts have assessed the entire evidence on the basis of the broad preponderance of probabilities. No perversity or illegality is found in the approach adopted by the Courts. There is absolutely no scope to interfere with the well considered findings on facts

ORDER

Appeal is dismissed.

The concurrent findings passed by the Court of Civil Judge (Jr. Dn.) and JMFC, Hoskote in O.S. 222/1993 as confirmed by FTC-I, Bangalore Rural District in R.A. 131/1998 as affirmed.

Parties to bear their own costs.