Mahadevaiah vs Rudrappa and Others

Aravind Kumar, J—This is a plaintiffs appeal questioning the correctness of judgment and decree passed by the Additional District & Sessions Judge, Fast Track Court - V, Bangalore Rural District, Bengaluru dated 06.12.2010 in R.A. No. 152/2010 who set aside the judgment and decree passed by the II Addl. Civil Judge (Sr.Dn.), Bangalore (Rural) District, Bangalore, dated 02.06.2010 in O.S. No. 614/1995 whereunder, the suit filed for specific performance had been decreed in part and first defendant had been directed to refund a sum of Rs. 60,000/- with interest @ 7% p.a. from the date of sale agreement till date of realization. This Court on 27.11.2012 has admitted this second appeal to consider the following Substantial Question of Law:

"Whether the Lower Appellate Court has committed any illegality in reversing the judgment and decree passed by the Trial Court and in recording a finding that the Agreement of Sale had not been proved merely on the ground that the signature of deceased defendant No. 1 Rudrappa on the agreement had not been identified by P.W.2, particularly because P.W.2 in his evidence speaks about the execution of the document in his presence by the defendant by putting his signature on the document?"

I have heard the arguments of Sri. M.B. Chandra Chooda, learned counsel appearing for appellant and Sri. Shankaranarayana Bhat, learned counsel appearing for respondent Nos. 1(A-B). Notice issued to respondent Nos. 2, 4 and 5 are served. Notice issued to respondent Nos. 3 to 6 has been held sufficient vide order dated 24.06.2014.

Facts in brief which has lead to filing of this second appeal can be crystalised as under:

Plaintiff instituted a suit for specific performance/enforcement of agreement of sale dated 29.03.1992 contending inter alia that first defendant had received Rs. 50,000/- on the said date and had agreed to sell the property bearing survey No. 15, Varahasandra Village, Kengeri Hobli, Bengaluru measuring 2 acres 4 guntas and morefully described in plaint (hereinafter referred to as suit schedule property for brevity). It was also contended that plaintiff was put in possession of suit property. Plaintiff further contended that on account of first defendant not executing sale deed within one (1) year as agreed to from the date of sale agreement and on account of additional time pleaded by first defendant with a demand for further advance of Rs. 10,000/-, plaintiff has paid a sum of Rs. 6,000/- on 02.01.1993 and on receiving the same, first defendant endorsed the receipt of said amount and also agreed to execute the sale deed within one (1) month from the said date by receiving balance amount of Rs. 4,000/- with a further clause that in case first defendant is unable to secure the original documents, sale deed would be executed within one (1) month from the date of supplying all the documents as agreed. It was agreed by the plaintiff that first defendant did not supply any of the documents pertaining to suit schedule property and was giving evasive reply and when he approached the defendant on 18.07.1995 and requested to execute the sale deed defendant gave an evasive reply and as such, plaintiff got issued a legal notice on 22.07.1995 by calling upon first defendant to register the sale deed on 07.08.1995 by receiving the balance sale consideration.

Plaintiff further pleaded that on the said date he was waiting near the Office of Sub Registrar with the balance sale consideration and first defendant did not turn up. It was pleaded that plaintiff was ever ready and willing to perform his part of the contract and defendant was avoiding and evading from performing his part of contract. Hence, suit in question came to be filed.

On service of suit summons, defendants appeared and first defendant filed his written statement denying the averments made in the plaint. The very execution of agreement of sale was denied or in other words, it was disputed. It was also specifically denied that plaintiff was in possession of some portion of suit schedule property. It was also contended that first defendant had filed a suit against one Sri. Basappa for perpetual injunction in O.S. No. 463/1992 in respect of same property, since he tried to interfere with defendants'' possession and enjoyment of suit schedule property and same came to be dismissed. It was contended that plaintiff is a close relative and well wisher of Sri. Basappa and invented the said documents by forging the signature of first defendant and as such plaintiff has filed the suit in question i.e. O.S. No. 614/1995 and hence, it was pleaded that plaintiff is playing fraud on the Court as well as plaintiff.

On the basis of pleadings of parties, trial Court framed following issues for its adjudication:

1) Whether the plaintiff proves that the Defendant No. 1 entered into an agreement with him to sell the suit property for valuable consideration of Rs. 60,000/- on 29/3/1992?

2) Whether the plaintiff further proves that the defendant received a sum of Rs. 50,000/- as an earnest money and executed agreement?

3) Whether plaintiff proves that he is ever ready and willing to perform his part of contract?

4) Whether the defendant No. 1 proves that the suit is bad for non-joinder of necessary parties?

5) Whether the defendant No. 1 proves that the plaintiff created an alleged agreement forging the signature of defendant No. 1?

6) Whether the plaintiff is entitle for the relief of specific performance of contract?

7) What order or decree?

Plaintiff got himself examined as P.W.1 and one of the witnesses to agreement of sale dated 29.03.1992 namely Sri. Chowdappa was also examined as P.W.2. During the pendency of suit first defendant expired and his legal representatives, who were already on record proceeded with suit and on their behalf third defendant was examined as D.W.1. Plaintiffs in all produced three (3) documents and got it marked as Exs.P-1 to P-3. On behalf of defendants ten (10) documents were produced and they were got marked as Exs.D-1 to D-10. On evaluation of evidence trial Court came to a conclusion that plaintiff has proved the execution of agreement of sale dated 29.03.1992 by the defendant in his favour by answering issue No. 1 in the affirmative and also held that plaintiff had proved that defendant had received a sum of Rs. 50,000/- as earnest money under said agreement by answering issue No. 2. It was also held that plaintiff was ready and willing to perform his part of contract and as such issue No. 3 came to be answered in the affirmative. However, taking note of the fact that suit schedule property had been acquired by Karnataka Industrial Area Development Board trial Court dismissed the prayer for specific performance and directed the first defendant to refund the earnest money he received namely, it decreed the suit for a sum of Rs. 60,000/- vide judgment and decree dated 02.06.2010.

Being aggrieved by same, defendants preferred an appeal in R.A. No. 152/2010. Lower Appellate Court after securing records and hearing the arguments advanced by respective learned Advocates, formulated following points for its consideration:

1) Whether the appellant proves that the judgment and decree passed by the Trial Court is perverse, arbitrary and this Court''s interference is necessary?

2) What Order?

While reappreciating the evidence tendered by parties, Lower Appellate Court held that plaintiff has not proved the execution of agreement of sale since the signature found on said agreement of sale Ex.P-2 did not belong to deceased first defendant namely Sri. Rudrappa. Signature found on Ex.P-2 came to be compared with admitted signature of deceased first defendant found on vakalthanama and written statement to disbelieve the claim of plaintiff. In view of finding recorded by Lower Appellate Court that plaintiff had failed to prove the execution of agreement of sale dated 29.03.1992 - Ex.P-2 the finding recorded by trial Court on issue Nos. 1 and 3 came to be reversed and suit filed by plaintiff for specific performance came to be dismissed.

It is the contention of Sri. Chandra Chooda, learned counsel appearing for appellant that Lower Appellate Court ought not to have ventured to compared the signature found on the agreement of sale dated 29.03.1992 - Ex.P-2 with undisputed signature namely signature of deceased first defendant found on written statement and vakalathanama without resorting to securing expert evidence as contemplated under Section 45 of the Evidence Act. Hence, he would contend that finding recorded by Lower Appellate Court while reversing the finding recorded by trial Court to arrive at a conclusion that there is no due execution of Ex.P-2 is an erroneous finding. Hence, he prays for answering the Substantial Question of Law in favour of appellant.

In support of his submission he has relied upon the following judgments:

(i) The State (Delhi Administration) Vs. Pali Ram, AIR 1979 SC 14 : (1979) CriLJ 17 : (1979) 2 SCC 158 : (1979) SCC(Cri) 389 : (1979) 1 SCR 931

(ii) Kamala and Others Vs. Rajoovi Padmappa and Others(2015) 3 KCCR 2113

Per contra, Sri. Shankaranarayana Bhat, learned counsel appearing for respondents would support the judgment and decree passed by the Lower Appellate Court and would contend that First Appellate Court has not only undertaken the exercise of comparing the signatures found on Ex.P-2 by comparing it with the admitted signature found on the written statement of instant case since it is permissible under Section 73 of the Evidence Act, and it has also scrutinized, considered and reappreciated the entire evidence on record to arrive at a conclusion that plaintiff has not duly proved the execution of agreement of sale dated 29.03.1992 -Ex.P-2 by defendant in favour of plaintiff. Hence, he prays for dismissal of appeal by answering the Substantial Question of Law in favour of defendant.

Sri. Chandra Chooda, learned counsel for appellant has further contended that decree passed by Trial Court directing refund of earnest deposit amount paid by plaintiff to defendant has been erroneously reversed by First Appellate Court not taking into consideration Section 22 of the Specific Relief Act, 1963. Hence, he submits that in the event of substantial question of law framed by this Court on 27.11.2012 being answered against appellant/plaintiff, further substantial question of law be framed viz., Whether Lower Appellate Court was justified in not directing the defendant to refund earnest money in view of Section 22 of the Specific Relief Act?

Per contra, Sri Shankaranarayana Bhat, learned counsel appearing for respondent/plaintiff supporting the judgment and decree passed by Appellate Court submits that said plea raised by appellant''s Counsel need not be entertained by this Court since such a plea is neither available in the grounds urged in the appeal memorandum nor such plea was raised before the First Appellate Court by plaintiff.

RE: SUBSTANTIAL QUESTIONS OF LAW:

At the outset it requires to be notice that plea of plaintiff as could be gathered from the plaint averments for the relief of specific performance is based on an agreement of sale dated 29.03.1992. Said document came to be marked as Ex.P-2 before the trial Court. Perusal of said document would indicate that signatory to said document is one Sri. Rudrappa and two (2) witnesses have also affixed their signatures namely Sriyuths Chowdappa and Narayanappa. One of the witnesses to said agreement namely Sri. Chowdappa came to be examined on behalf of plaintiff as P.W.2 to prove the execution of Ex.P-2.

Keeping this aspect in mind when written statement of first defendant is perused it would clearly indicate that there has been specific denial of execution of said agreement by him. In paragraph 2 it has been specifically contended by defendant to the following effect:

"2. The averments made in para-3 xxxx from the plaintiff. The so called agreement averred in para-3 of the plaint is a manipulated document and there is no chance of existence of such document when the suits are pending between the first defendant as well as Basappa in O.S. No. 463/92 on the file of the Principal second Munsiff, Bangalore."

Yet again in paragraph 7 it has been pleaded as under:

"7. The averments made in para-8 xxxx an very evasive answer are all built up based on the assumption that the so called agreement is genuinely in existence. When the agreement itself is concocted and manipulated to overcome the judgment and decree passed in O.S. No. 463/92, the question of giving of evasive answer and other facts pleaded in the plaint in para-8 do not arise at all."

In paragraph 12 of the written statement it has also been pleaded by deceased first defendant to the following effect:

"12. The prayer sought for by the plaintiff xxxx suggestio falsi. The so called documents averred in the plaint was invented and manipulated by the plaintiff as well as Basappa against whom a judgement and decree was passed in O.S. No. 463/1992. Though Basappa preferred xxxx not in possession. It is highly improbable for the first defendant to execute an agreement in favour of the plaintiff when the relationship of first defendant as well as his close relation Basappa is in strained circumstances. To overcome the proceedings xxxx claimed in the plaint."

Thus, above plea of first defendant in the written statement would clearly indicate that it has been his specific stand that there was no such agreement executed by him in favour of plaintiff. On account of such denial trial Court framed issue No. 1 for its adjudication which was to the effect that as to whether plaintiff proves the execution of such agreement. While answering issue No. 1 trial Court found that one of the witnesses to said agreement namely Sri. Chowdappa has been examined as P.W.2 and he had supported the case of plaintiff and as such, said document was duly proved.

This finding recorded by trial Court came to be reversed by First Appellate Court as already noticed hereinabove for two (2) reasons:

(i) There is inconsistency in the evidence of P.W.1 and P.W.2;

(ii) Signature of Sri. Rudrappa found on Ex.P-2 when compared with admitted signature of Rudrappa it does not tally;

Suit in question was filed on 24.08.1995. Same came to be dismissed on account of non appearance of plaintiff on 18.12.1999. A miscellaneous petition was filed to restore the suit in Misc. No. 8/2000 and it was also dismissed on 16.01.2000. Plaintiff challenged the said order in MFA No. 1255/2002 and appeal came to be allowed on 20.02.2004. Hence, suit came to be restored for being disposed of on merits. Defendant Nos. 2 to 8 namely daughters and sons of deceased Sri. Rudrappa did not file any further written statement or additional written statement and adopted the written statement filed by their deceased father. As such on the basis of written statement filed by deceased Rudrappa, which came to be adopted by defendants 2 to 8, issues came to be framed on 28.06.2007. It is an undisputed fact that first defendant Rudrappa died on 29.07.2004 i.e., after the dismissal of suit and immediately after its restoration on 20.02.2004. Burden of proving the issue No. 1 was rightly cast on plaintiff and as observed hereinabove before trial Court plaintiff examined one of the attesting witnesses namely Sri. Chowdappa as P.W.2 to prove the execution of said agreement. This evidence tendered by plaintiff to prove issue No. 1 is not eschewed by First Appellate Court and rightly so for the reasons indicated herein below.

Plaintiff did not take steps to seek any expert opinion to prove the signature of deceased first defendant found on Ex.P-2, inasmuch as, first defendant Rudrappa had filed the written statement during his lifetime and he had specifically and empathetically denied the very execution of said document and also signature found therein. In fact, he had contended that it was fabricated and concocted. Thus, heavy burden cast on plaintiff to prove Ex.P-1 was not discharged and evidence of P.W.2 though was pleaded as one in favour of plaintiff it was not so, since inconsistencies were at large. This has been discussed succinctly by the Lower Appellate Court in paragraph 16 which is to the effect that when witness P.W. 1 had stated that agreement of sale was typed in two (2) pages, P.W.2 had deposed that it was typed in three (3) pages. This is the first stage at which inconsistency was found by the Lower Appellate Court.

P.W.1 in his evidence stated that he had paid advance amount of Rs. 50,000/- in 100 rupees and 500 rupees denomination notes to deceased first defendant at the time of execution of Ex.P-2. P.W.2 who claims to be a witness to said transaction and who deposed that he was present at that point of time, has stated that denomination of notes tendered by plaintiff to deceased first defendant was 100 rupees denomination notes and 50 rupees denomination notes. Thus, there is inconsistency between the evidence of P.W.1 and P.W.2 with regard to denominations in currency notes paid to defendant by way of advance. Though said fact by itself would not be a factor to dispute the genuineness of P.W.1, attendant circumstances of the inconsistency between the evidence of P.W.1 and P.W.2 as already noted hereinabove was also a factor which swayed in the mind of Lower Appellate Court to rightly arrive at a conclusion that execution of Ex.P-2 was not proved.

Sri. Chandra Chood, learned counsel appearing for appellant would be justified in buttressing his arguments that First Appellate Court could not have ventured to compare the signature found on the disputed document and with the admitted signature of deceased first defendant found in written statement and vakalathnama without securing expert evidence and judgments relied upon by him would squarely apply to said proposition that by itself would not be a ground to decree the suit. As noticed hereinabove comparison of signatures of first defendant in Ex.P-2 and admitted signature found in the written statement filed by first defendant is not the only exercise which was undertaken by the First Appellate Court but the evidence of P.W.1 and P.W.2 was also discussed in detail to point out the inconsistencies to arrive at a conclusion that the execution of Ex.P-2 by deceased defendant is unbelievable. Said finding arrived at by Lower Appellate Court cannot be held to be flawed.

Yet another factor which is noticed by this Court is that in respect of very same property deceased defendant namely Sri. Rudrappa had filed a suit against one Sri. Basappa in O.S. No. 463/1992 for perpetual injunction and had obtained a decree of permanent injunction. Though said Sri. Basappa challenged the said judgment and decree in R.A. No. 99/2005, said appeal came to be dismissed and same was not pursued thereafter by said Basappa. This clearly go to indicate that deceased Rudrappa was asserting not only his title to suit schedule property but also his possession, which plaintiff in the instant suit namely Sri. Mahadevaiah @ Mahadevappa claimed that same had been delivered to him by Rudrappa under Ex.P-2. This evidence cumulatively would clearly indicate that cloud surrounding the execution of Ex.P-2 was not cleared by plaintiff and as such, it has rightly arrived at a conclusion that plaintiff had not proved due execution of said agreement, Ex.P-2.

Plea of Sri. Chandra Chooda regarding refund of earnest money would have been examined by this Court, if the foundation had been laid by the plaintiff before the Court below. Perusal of plaint averments in general and particularly prayer sought for before the trial Court does not even remotely suggest that plaintiff had sought for alternate relief of refund of earnest money. Perusal of sub-section (2) of Section 22 of the Specific Relief Act, 163, which is clear and unambiguous, would indicate that relief of refunding of earnest money or deposit cannot be granted unless specifically claimed. In the instant case, as already noticed hereinabove, plaintiff having not sought for such a relief and no attempt having been made either before the First Appellate Court or before this Court to seek for such relief by seeking for amendment of plaint to include the prayer for refund, same cannot be entertained and as such, formulating substantial question of law in this regard does not arise.

Yet another reason to reject said prayer is on the ground that such plea cannot be considered in a second appeal, inasmuch as, plea for refund of earnest money or deposit would arise only in the event of agreement of sale having been held as duly executed by the parties and said issue being answered in favour of the plaintiff. In the instant case, when the issue regarding execution of agreement is held as not proved and relief of specific performance having been refused by the First Appellate Court by arriving at a conclusion that plaintiff had failed to prove due execution of agreement of sale dated 29.03.1992, Ex.P-2, and said finding having been affirmed by this Court, question of considering such prayer does not arise.

In that view of the matter, this Court is of the considered view that the question of framing additional substantial question of law as prayed for also does not arise.

For reasons aforestated this Court is of the considered view that Substantial Question of Law has to be answered in the negative i.e., in favour of respondents and against appellant.

Hence, I proceed to pass the following:

ORDER

i. Second appeal is hereby dismissed.

ii. Judgment and decree passed by the First Appellate Court in R.A. No. 152/2010 dated 06.12.2010 is hereby affirmed.

iii. No order as to costs.