Krishna S. Narasingh Sherkhane vs Doddawwa and Others

S. Sujatha, J.—This is the plaintiff''s second appeal originating from the judgment and decree dated 12.8.2005 passed by the lower appellate Court in R.A. No. 41/1999, confirming the judgment and decree of the trial Court.

The facts in nutshell are that the suit property herein is claimed by the plaintiff as the property agreed to be sold by late Sri Sangappa Shivalingappa Malali in favour of the plaintiff on the basis of an agreement of sale dated 1.1.1990 for sale consideration of Rs. 50,000/- against which an earnest money of Rs. 40,000/- is said to have been paid by the plaintiff. The plaintiff instituted the suit against the legal heirs of late Sri Sangappa Shivalingappa Malali i.e., the defendants in the original suit for specific performance of contract dated 1.1.1990. The defendants contested the suit and denied the execution of the agreement of sale by Sri Sangappa Shivalingappa Malali and receipt of earnest money of Rs. 40,000/-. After considering the oral and documentary evidence on record, the trial Court dismissed the suit against which an appeal was preferred, which also came to be dismissed. Being aggrieved by the concurrent finding of the Courts below, the plaintiff is in appeal before this Court.

The learned counsel appearing for the appellant contended that Ex. P.1, the agreement of sale specifically contains the serial number and the name of Sri Sangappa Shivalingappa Malali for having purchased the stamp paper of Rs. 10/- and the same is admitted by the licenced stamp vendor D.W. 4. P.W. 2 also has adduced evidence to the effect that the sale agreement was executed by Sangappa Malali after receiving the earnest money of Rs. 40,000/- against the sale consideration of Rs. 50,000/-, supporting the evidence of P.W. 1. It is also contended that the Courts below without appreciating the evidence on record and mainly relying on the criminal cases said to have been filed by the defendants against the appellant have come to a wrong conclusion that the plaintiff has failed to prove Ex. P.1, agreement of sale.

The learned counsel also relied on the order of the Prl. Munsiff and JMFC, Mudhol, dated 19.10.2000 in C.C. No. 855/1996, to put forth his case that the complaint filed by the defendants was rejected, in view of the same, the plaintiff had proved Ex. P.1 and is entitled for the enforcement of specific performance of contract dated 1.1.1990. Further the learned counsel also argued that the lower appellate Court being a Court of appeal of first instance has not applied its mind and has passed a cryptic order which requires interference by this Court. In support of his arguments learned counsel placed reliance on the judgment of the Apex Court reported in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., .

Per contra, the learned counsel for the respondents supported the judgment and decree passed by the Courts below and argued that Ex. P.1 is a fabricated document created by the plaintiff which is supported by the evidence adduced by D.Ws. 2 and 4, being the clerk in the registry of stamps and licencee (stamp vendor), who have categorically denied the sale of the stamp paper on which Ex. P.1 agreement of sale is prepared. Learned counsel also invited attention of this Court to Ex. D.3, the licence issued by the Assistant Commissioner, Jamakhandi, authorizing the licencee (stamp vendor) Hawalappa Basappa Halaki of Jamakhandi (D.W. 4) to sell the stamp and it is also mentioned that as per the Karnataka Court Fees and Suit Valuation Act, 1958 and the Rules thereunder the licence fee has been credited by the licencee into the State Bank of India, Jamakhandi on 30.1.1990.

The learned counsel also argued that Ex. D.2, the sale register also proves that no transaction was held during the relevant period as reflected in the register maintained by the stamp vendor, who was required to submit the same to the treasury every year. The learned counsel also drew attention of the Court to Rule 6-A and 14-F of the Karnataka Stamp Rules, 1958 to establish his case that the document Ex. P.1 is not in conformity with the Rules. Further it is argued that the plaintiff is harassing the defendants by filing fictitious cases against them without any valid reasons on the basis of the fabricated document, Ex. P.1.

After considering the rival submissions of the parties and perusing the records it is clear that Ex. P.1 though contains the serial number as 805, that does not reflect in the register Ex. D.2 maintained by the stamp vendor which was required to be submitted before the treasury every year. Ex. D.3, the authorization issued under the provisions of Indian Stamp Act specifically authorizes the stamp vendor D.W. 4 to sell the stamps and it is mentioned that the licencee has credited the licence fee on 30.1.1990.

This document Ex. D.3 specifically proves that the stamp vendor was authorized to sell the stamps only after issuance of this letter dated 25.1.1990 whereas Ex. P.1, the contract of sale is dated 1.1.1990 which is prima facie against the authorization issued by the Assistant Commissioner of Jamakhandi. These two documents demonstrates that D.W. 4, i.e., the stamp vendor whose name appears in Ex. P.1 had no authority to sell the stamp paper on 1.1.1990. The evidence of D.W. 4 proves that he started his business only from 2.2.1990 and no stamp paper was sold by him on 1.1.1990. Rule 6-A and 14-F of Karnataka Stamp Rules, 1958 contemplates issue of paper bearing impressed stamp and duties of a licencee.

As per these Rules, the stamp vendor selling stamps to any person other than a licencee and every licencee is required to write on the back of each stamp or stamped paper sold by him the serial number of sale, the date of sale, the name and residence of purchaser, the value of stamps in words and shall also affix his signature thereon. Where the stamp is purchased by a person for the use of another person, the name and occupation and residential address of such another person and the value of such stamp or stamp paper shall be written. Ex. P.1 is admittedly in violation of these Rules. Ironically, the plaintiff himself has admitted in his evidence that the signature found on Ex. P.1 is not the signature of Sri Sangappa Malali. The documentary evidence Exs. D.2 and D.3 coupled with the evidence of D.W. 2 and D.W. 4 proves beyond doubt that Ex. P.1 is a sham document, not enforceable in law.

The order relied on by the learned counsel appearing for the appellant, passed by the Prl. Munsiff and JMFC, Mudhol, in C.C. No. 85/1996 is an order of dismissal for non prosecution which does not throw any light on the merit of the case to come to a conclusion that the appellant is exonerated from the charges levelled against him.

In the judgment relied on by the learned counsel appearing for the appellant in the case of Santosh Hazari (supra), the Apex Court has laid down the principles to be followed by the appellate Court while reversing the judgment and decree of the trial Court and in that context, it is categorically held that, "the appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice".

In the present case, the lower appellate Court has not reversed the finding of the trial Court. The appellate Court after re-appreciating the judgment and material evidence on record has confirmed the judgment and decree passed by the trial Court. This judgment of Santosh Hazari (supra), relied on by the appellant has no bearing to the facts of the present case and do not enure to the benefit of the appellant. In view of the categorical finding given by the Courts below after appreciating the documentary evidence as well as the oral evidence, no case is made out by the appellant to interfere with the concurrent finding of the Courts below. No substantial question of law arises for consideration in this second appeal. Accordingly the appeal is dismissed.