Mallappa Since Deceased, by his L.Rs. Rathnamma, Sruthi M., Shashikala, Shivabasappa and Mahadevappa vs Kashiappa

A.S. Pachhapure, J.—The appellants have challenged the judgment and decree of the first appellate Court allowing the appeal of the respondent by setting aside the judgment and decree of dismissal of the suit and granting a decree for specific performance in favour of the respondent. The fact relevant for the purpose of this appeal are as under:

The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellants herein are the defendants, whereas, the respondent plaintiff instituted the suit for specific performance of contract of sale said to have been executed on 10.11.1997 agreeing to sell the suit property i.e. 1 acre and 27 guntas in Sy. No. 95 and 1 acre and 15 guntas in Sy. No. 96 described in the schedule to the plaint for a consideration of Rs. 32,000/- per acre. On the date of agreement it is stated by the plaintiff that he paid a sum of Rs. 50,000/- to the defendants and the sale deed was to be executed within March 1998 by receiving the remaining sale consideration of Rs. 47,600/- before the Sub-Registrar. That prior to the execution of the sale agreement the suit property was mortgaged to the plaintiff under a mortgage deed dated 28.02.1992 for a mortgage sum of Rs. 12,000/-. On the date of agreement this mortgage was redeemed by paying the sum of Rs. 12,000/- and on the same day the sale agreement is said to have been executed.

After a survey of the property it was found that only 2 acres and 18 guntas of land was to be in possession of the defendants. They agreed to sell 3 acres and 2 guntas and therefore there was a dispute so far as the area of land to be sold. As the defendants did not agree to execute the sale deed the plaintiff issued a notice calling upon the defendants to receive the remaining sale consideration and execute the sale deed and as the defendants did not do it, the suit came to be instituted for the specific performance of contract of sale with an alternative prayer to refund the earnest money of Rs. 50,000/- with interest.

The defendants appeared in the trial Court and filed written statement denying the execution of the sale agreement, but admitted that they had mortgaged the suit property to the plaintiff for a sum of Rs. 12,000/- and that on 10.11.1997 they redeemed the mortgage by paying the mortgage amount. Anyhow, so far as the execution of sale agreement is concerned, they disputed the same and contended that the document is forged and concocted. It was also their contention that they had executed the suit for injunction in O.S. No. 54/1998 against the plaintiff in the suit and that the suit came to be decreed, wherein the present plaintiff did not produce the sale agreement in the said suit. On the basis of the aforesaid grounds, have sought for dismissal of the suit.

On the basis of these pleadings the trial Court framed as many as 8 issues and permitted the parties to lead their evidence. Accordingly, the plaintiff examined himself as P.W. 1 and three witnesses P.Ws. 2 to 4. In their evidence the documents Exs. P1 to P8 were marked. The first defendant is examined as D.W. 1 and a witness D.W. 2. In their evidence the documents Exs. D1 to D16 were marked. The trial Court after hearing the counsel and on appreciation of the evidence on record dismissed the suit holding that the sale agreement has not been proved. Aggrieved by the decree of dismissal the plaintiff preferred an appeal in RA No. 10/2005. During the pendency of the appeal before the first appellate Court, an application was filed for appointment of a Commissioner to examine the signature on the disputed documents and report was secured in which it was opined that the disputed signature on the sale agreement is that of the defendants. Considering this report and the evidence on record the first appellate Court heard the counsel and on appreciation of the said evidence has decreed the suit for specific performance directing the appellants herein to execute the sale deed by receiving the remaining sale consideration. Aggrieved by the judgment and decree of the first appellate Court the present appeal is filed.

At the time of admission the following substantial questions of law is raised:

a) When the Trial Court dismissed the suit of respondent refusing the relief of specific performance by assigning cogent reasons, whether the First Appellate Court was justified in reversing the Judgment and Decree of the Trial Court and in doing so, did not assign consistent and cogent reasons to overcome the findings of Trial Court?

b) Whether the First Appellate Court was justified in relying upon the report of Jayadevi, the handwriting expert who is said to have no competency to give such report?

I have heard the learned counsel for the appellants. The respondent though served, is absent.

Perusal of the material placed on record reveals that the defendants had taken up the contention about their signature having been forged and the document, Ex. P-1 is said to be a concocted document. The said agreement is dated 10.11.1997. On that day, defendants admittedly paid a sum of Rs. 12,000/- as mortgage amount and mortgage was redeemed and to that extent, there is an endorsement at Ex. P-1(a). This would establish on the said day both the parties were together. So far as proof of the agreement at Ex. P-1 is concerned, though the attesting witnesses have not been examined, it is not the law that that the attesting witnesses have to be examined for proving an agreement of sale. So far as the contention of sale agreement at Ex. P-1 is concerned, it stands proved in view of reply given by the defendants to the notice issued by the appellants at Ex. P-6. Ex. P-7 is the reply notice in which the defendants have admitted about the sale agreement having been executed on 10.11.1997 and having received a sum of Rs. 50,000/- under the said agreement.

An effort was made to discard Ex. P-7 as evidence, on the ground that their advocate who is examined as P.W. 4 has cheated them and that they did not engage him to reply the notice, Ex. P-7 and that the plaintiffs have colluded with P.W. 4 in getting the reply, Ex. P-7. If this is so, there could have been a contention in the Written Statement of the defendants about they having been cheated by P.W. 4. But there is no such contention in the Written Statement and in the absence of any such of contention, the version of the defendants for the first time in the course of their evidence cannot be accepted. If the evidence of P.W. 4 is once accepted for sending the reply, Ex. P-7, there is no reason to discard the evidence of the plaintiffs to hold that the agreement, Ex. P-1 has been proved. That apart, the other witnesses who have been examined also speak to execution of document on that day and receipt of a sum of Rs. 50,000/- by the defendants.

It is not true that in O.S. No. 54/1998 the present plaintiff was the defendant in the said suit and he had taken up a contention in the Written Statement about the agreement of sale dated 10.11.1997. Subsequently he did not produce the sale agreement before the Court and he did not enter the witness box. No adverse inference can be drawn for non production of agreement, Ex. P-1 in the said suit, O.S. No. 54/1998 solely for the reason that it was a suit for injunction, wherein it was not essential for the defendants to prove the agreement. No doubt, under the agreement of sale, Ex. P-1, defendants have not taken possession of the property and there is no such recital under the agreement. Therefore as the said suit, O.S. No. 54/1998 was for injunction, the documents which are material would be produced to prove the possession and there is not question of title or anything. In the circumstances, non production of agreement by the plaintiffs in the suit instituted by the defendant in O.S. No. 54/1998 is not settlement to draw any adverse inference against the plaintiffs.

So far as the specific performance of contract under Ex. P-1 is concerned, it is relevant to note that the defendants own the suit property, which is the only property for their living. That apart, prior to the date of agreement, there was mortgage transaction and this would indicate that the defendants were poor persons and for this reason, they have mortgaged the property and they have repaid the amount on that day and in turn said to have executed the agreement, Ex. P-1. Taking into consideration the provisions of Section 20 of the Specific Relief Act and the discretion that has been vested with the Court so far as specific performance of contract is concerned and as the plaintiffs have also prayed for refund of earnest money, interest of justice would be met with in case the specific performance of contract is refused by directing the refund of earnest money of Rs. 50,000/-. As the defendants did not own any other property, other than the suit property and the suit property is the only source of income for their livelihood, it is just and proper to reject the relief of specific performance of contract. In addition, it is relevant to note that the agreement is for an area measuring 3 acres 2 guntas, whereas the actual possession is to an extent of 2 acres 18 guntas. The agreement as it is cannot be executed because there would be variance in the area of the land in dispute and also the sale consideration. This would be one of the additional grounds to refuse the specific performance of contract. Therefore, I am of the opinion that the First Appellate Court though was right in holding that Ex. P-1 is proved, but committed an error in decreeing the suit for specific performance. So far as other substantial questions of law are concerned, it is relevant to note that Jayadevi though was not examined in the First Appellate Court under the provisions of Order 26, Rule 10 of CPC, it would be only at the choice of the parties, the author is to be examined and therefore non examination of Jayadevi, the handwriting expert itself is insufficient to discard the report submitted by her. The appellants had not filed any objections to the report submitted by the handwriting expert. In the circumstances, the First Appellate Court was justified in relying on the report of the expert. Consequently substantial questions of law at (a) is answered partly in the affirmative and partly in the negative and (b) is answered in the affirmative. In the result, appeal is allowed in part by setting aside the Judgment and Decrees of both the Courts below. The suit of the respondents - plaintiffs vis, decreed in part directing the refund of earnest money of Rs. 50,000/- with interest at 6% p.a., from the date of agreement till its payment.