Mohammed Asadulla vs G. Kashinath

Aravind Kumar, J.—This is a plaintiffs second appeal assailing the correctness and legality of Judgment and decree passed by Principal District and Sessions Judge, Chitradurga dated 26.02.2011 in R.A. 32/2010 whereunder first appellate court has not only affirmed the Judgment and decree passed by trial court dated 18.01.2010 in O.S. 2/2009 whereunder suit for specific performance came to be decreed in part, but has also reversed the finding recorded by trial court on Issue No. 1 which related to the alleged agreement of sale dated 18.06.2007 on the ground that parties to agreement were not at ad idem and it is a nominal agreement.

I have heard the arguments of Sriyuths Sundar Ram, learned counsel appearing on behalf of appellant and K. Ramabhat, learned counsel appearing on behalf of respondent.

Plaintiff instituted a suit for specific performance of agreement of sale dated 18.06.2007 contending inter alia that defendant is the owner in possession of property bearing Sy. No. 50/1, Ramapura Village, Molakalmuru Taluk, measuring 2 acres 14 guntas (hereinafter referred to as ''Suit Schedule Property'') and for the purpose of clearing hand loan and also to solemnize the marriage of his daughter and for his family necessities had offered to sell the suit schedule property in his favour for a sum of Rs. 2,55,000/- per acre and in the presence of witnesses an Agreement of sale came to be entered into between the parties and on the date of agreement defendant received an advance amount of Rs. 1,00,000/- and affixed his signature in the presence of the witnesses and in part performance of the said contract plaintiff paid further token advance of Rs. 1,00,000/- on 16.09.2007 and same was duly acknowledged by defendant on the back side of the agreement dated 18.06.2007 which was also duly attested by the witnesses. Since it is agreed that time was not the essence of the contract and defendant had agreed to execute sale deed in favour of plaintiff or to his order, demands came to be made by plaintiff calling upon defendant to execute the sale deed by offering to pay balance consideration and despite approaching several times defendant refused to receive balance sale consideration and did not execute registered sale deed. Hence, plaintiff instituted the suit in question for decree of specific performance.

On service of suit summons defendant appeared and filed written statement denying the averments made in the plaint and specifically contended that he is small time agriculturist and is a physically handicapped person and except suit schedule property he has no other property to eke out his livelihood and in order to perform his daughter''s marriage he had approached the plaintiff and on account of plaintiffs insistence for furnishing security, defendant had affixed his signature on the stamped document and despite defendant offering to repay the said amount, it was never accepted by the plaintiff when offered by defendant and with a malafide intention to knock off the property plaintiff has filed suit on false and frivolous grounds. On the basis of pleadings of the parties trial court framed the following issues for its consideration:

"1. Whether plaintiff proves that defendant has agreed to sell the suit schedule property and executed the sale agreement on 18.06.2007 in favour of him for valuable consideration amount of Rs. 2,55,000/- per acre and received the advance amount of Rs. 2,00,000/- on 18.06.2007 and 16.09.2007?

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

Whether defendant proves that suit is barred by limitation?"

Both the parties got themselves examined and also plaintiff examined two witnesses and on his behalf two documents were got marked. Defendant did not tender any documentary evidence. After evaluating the evidence, trial court answered issue No. 1 in the affirmative and issue No. 2 and 3 in the negative and decreed the suit in part. Aggrieved by the same plaintiff pursued his grievance before the appellate court by filing an appeal in R.A. 32/2010. First appellate court after securing the records and considering the arguments advanced by respective learned advocates appearing for the parties formulated following points for its consideration:

"1. Whether the Trial Court is justified in decreeing the suit of the plaintiff for the relief of recovery of amount, instead of decreeing the suit for specific performance of contract?

Whether the impugned judgment and decree call for interference?

What order?"

After re-appreciation of evidence first appellate court arrived at a conclusion that finding recorded by trial court on issue No. 1 is erroneous inasmuch as parties to the lis or in other words signatories to the agreement of sale were not at ad idem and as such it is not an agreement of sale which enabled the plaintiff to seek for specific performance of said agreement. Accordingly first appellate court reversed the finding recorded by trial court on issue No. 1 and finding recorded by trial court on issue No. 2 and 3 came to be affirmed and held that trial court has rightly declined to exercise discretionary power to grant the relief, by pressing into service Section 20(2)(c) of the Specific Relief Act, 1963.

It is the contention of Sri. Sundar Ram, learned counsel appearing for appellant that first appellate court committed a serious error in reversing the finding of the trial court on issue No. 1 inasmuch as defendant himself had admitted that there was agreement of sale in favour of plaintiff and as such taking into consideration admission of defendant in his pleadings namely written statement and also considering undisputed evidence available on record trial court had rightly arrived at a conclusion that there was agreement of sale entered into between the parties in respect of suit schedule property. Hence, he contends said finding ought not to have been reversed by first appellate court on the ground that parties were not at ad idem and as such he contends substantial question of law is involved for being framed and adjudicated and hence he prays for same being framed as indicated in the appeal memorandum and answer the same in favour of plaintiff. He would also submit that plaintiff had been always ready and willing to perform his part of the contract and it is defendant who was avoiding and evading to receive the balance sale consideration and these aspects which were supported by evidence of P.W. -2 and P.W. -3 has been conveniently ignored by the first appellate court and as such finding recorded on issue No. 2 and 3 by trial court as affirmed by first appellate court requires to be reversed by formulating the substantial question of law and on these grounds he prays for allowing this second appeal.

Per contra, Sri. K. Ramabhat, learned counsel appearing for respondent-defendant would support the Judgment and decree passed by first appellate court and he would contend that defendant though did not file any cross appeal or cross objection as contemplated under Order XLI Rule 22 of C.P. C he was entitled to contend before the first appellate court that finding recorded by court below on issue No. 1 was erroneous and same was required to be answered in favour of defendant and accordingly it was canvassed before the first appellate court and the first appellate court being last fact finding court had re-appreciated this aspect and has taken note of the entire evidence available on record, re-appreciated the same and on the basis of evidence available on record had arrived at a conclusion that the finding recorded by trial court on issue No. 1 is erroneous and contrary to material evidence available on record and contends that said finding recorded by first appellate court for reversing the finding recorded on issue No. 1 is a finding of fact and there is no question of law much less substantial question of law involved, to enable this court to formulate the same and answer the same. He would also submit that findings recorded by trial court on issue No. 2 and 3 to decline the relief sought by plaintiff for specific performance as affirmed by first appellate court is by taking note of section 20(2)(c) of Specific Relief Act which is just and proper and there is no infirmity whatsoever in the said finding arrived at by the courts below and hence he prays for rejection of the appeal without formulating the substantial question of law.

There cannot be any dispute with regard to the proposition that where material evidence available on record either not being considered by the courts below or being considered erroneously would result in substantial question of law arising inter se between the parties and as such this court would be entitled to formulate the substantial question of law, if such error has occurred. In the instant case plaintiffs pleadings itself would clearly indicate that defendant borrowed the amount from him for performing his daughter''s marriage. That apart in the cross examination plaintiff has admitted that prior to entering into agreement of sale he did not visit the suit schedule property nor did he make enquiries as to what is the proper market value of suit schedule property. Further, plaintiff did not ascertain as to the existing topography of suit schedule property and because of these reasons first appellate court held that there was no ad idem between the parties or in other words parties were not entering into such contract for selling and purchasing the suit schedule property. On these grounds first appellate court reversed the finding of the trial court on issue No. 1 and arrived at a conclusion that though agreement dated 18.06.2007 was styled as "agreement of sale" factually it was not so. At this juncture itself it would be appropriate to note the admission of P.W. -1 at the cost of repetition namely though the first appellate court has extracted the said admission in paragraph 8 of its Judgment. Said admission of plaintiff-P.W. -1 reads as under:

Infact P.W. -1 in his cross examination also states that he was not interested in purchasing the suit schedule property and there was no necessity for him to purchase the suit schedule property. His admission in page No. 5 of the cross examination reads as under:

P.W. -2 and P.W. -3 who came to be examined on behalf of plaintiff and who were said to be witnesses to the sale agreement in question have supported plaintiff. However, their testimony has not been believed by the first appellate court and the reasons assigned in paragraphs 9, 10, 10.1 are based on proper re-appreciation of their evidence. A perusal of the said finding would clearly indicate that P.W. -2 who claims to be witness to sale agreement has deposed that he was not aware as to what was the amount paid and what was the currency notes which was paid to defendant. P.W. -3 who hails from a politically influential family has feigned complete ignorance of execution of agreement of sale Exhibit P-1. His admission reads as under:

On appreciation of this material evidence available on record first appellate court has rightly arrived at a conclusion that agreement dated 18.06.2007 propounded by plaintiff i.e., Exhibit P-1 was not infact agreement of sale and said finding is based on proper appreciation of evidence. Further admission of the plaintiff P.W. -1 that he is ready to take back the amount was another titling factor which swayed in the mind of both the courts to arrive at a conclusion that discretionary power vested should not be exercised particularly in the background of clause (c) of subsection (2) of Section 20 of Specific Relief Act, 1963. These findings arrived at by courts below are purely finding of fact and there is no question of law much less substantial question of law involved in this appeal.

Hence, I proceed to pass the following:

Second appeal is hereby dismissed as devoid of merit.

Judgment and decree dated 26.02.2011 passed by Principal District and Sessions Judge, Chitradurga in R.A. 32/2010 is hereby affirmed.

Costs made easy.

In view of appeal having been disposed of Misc. Civil No. 12016/2011 does not survive for consideration and same stands rejected.