Narayanappa vs Venkatesh and Others

B.V. Nagarathna, J.—This second appeal is filed by the second defendant in O.S. No. 153/1997, against judgment and decree dated 3.11.2009, passed by the Fast Track Court, Devanahalli, dismissing the appeal and confirming judgment and decree dated 16.11.2006 passed in the aforesaid suit by the Civil Judge (Jr.Dn), Devanahalli. That suit was filed by the first respondent/plaintiff seeking the relief of specific performance of agreement to sell dated 15.11.1995.

For the sake of convenience, parties would be referred to in terms of their status before the Trial Court.

The first respondent/plaintiff filed the suit seeking judgment and decree of specific performance of agreement to sell dated 15.11.1995. It is averred that the defendant No. 1 had agreed to sell the suit scheduled property bearing survey No. 45/2, measuring 18 1/2 guntas at Kurubarakunte Village, Kasaba Hobli, Devanahalli Taluk, for a valuable consideration of Rs. 38,000/-. According to the plaintiff, on the date of the execution of the agreement, a sum of Rs. 30,000/- has been paid by him to the defendant, who latter also delivered original sale deed pertaining to the suit property and other documents were to be handed over to the plaintiff at the time of execution of the registered sale deed on receiving balance consideration of Rs. 8,000/-. According to the plaintiff, inspite of repeated requests, the first defendant did not come forward to execute the sale deed and therefore a legal notice dated 28.6.1996 was issued demanding specific performance of the agreement. According to the plaintiff, the first defendant gave an untenable reply and contended that he had already alienated the suit property in favour of the second defendant. According to the plaintiff, the defendant had colluded with defendant No. 2 to defeat the purpose and object of agreement to sell dated 15.11.1995 and had created a nominal sale deed amongst themselves. The plaintiff has averred that he is a bonafide purchaser and ready and willing to pay the balance consideration of Rs. 8,000/- to defendant No. 1 plaintiff and that the second defendant is not in possession of the suit property.

In response to the suit summons and notices issued by the Trial Court, defendants appeared through their counsel and filed written statement denying the very execution of the agreement dated 15.11.1995. The first defendant denied that he had received a sum of Rs. 30,000/- and delivered possession of the suit land to the plaintiff. While admitting the receipt of notice from the plaintiff, defendants stated that the plaintiff was not entitled to any relief in the suit. According to the first defendant, he had not executed any agreement of sale in favour of the plaintiff and that the document dated 15.11.1995 was a forged and concocted one. According to the first defendant on 10.11.1995, he had sold 18 guntas of land forming western portion of survey No. 45/2 in favour of the plaintiff for a sum of Rs. 35,000/- and had executed a registered sale deed in his favour by retaining 18 guntas in the eastern portion of the said survey number which he had sold in favour of the second defendant on 27.1.1996. That the second defendant is in possession of the suit property and revenue records were mutated in his name as he was a bonafide purchaser without notice of any prior agreement. On the aforesaid averments, defendants sought for dismissal of the suit. Subsequent to filing of the written statement, plaint was amended. It was contended that the first defendant and four brothers had purchased 2 acres 11 guntas in survey No. 45/2 from B. Shivarudrappa in the year 1987 and thereafter they had divided the said property. The first defendant purchased the share of his brother - Pillamuniyappa in the year 1991 and sold the same in favour of plaintiff through registered sale deed dated 10.11.1995. He had also expressed his intention to sell the suit property through registered sale deed dated 15.11.1995 for better cultivation of the land. That plaintiff had also purchased the shares of other brothers through various sale deeds of different dates. As the first defendant expressed his intention to sell the suit property, an agreement to sell was executed on 15.11.1995 and that he was put in possession of the suit property on receipt of advance amount of Rs. 30,000/-. Significantly, no additional written statement was filed to the amended plaint.

On the basis of the above pleadings, the Trial Court framed following issues for its consideration:--

"1) Whether the plaintiff proves that the 1st defendant had agreed to sell the suit schedule property for sale consideration of Rs. 38,000/- and executed an agreement to sell dated 15.11.1995 and received an advance amount of Rs. 30,000/-?

2) Whether the plaintiff proves that in pursuance of the agreement to sell dated 15.11.1995, he was put in possession of suit schedule property and since then he continued in possession?

3) Whether the defendants prove that the agreement to sell dated 15.11.1995 is a concocted one?

4) Whether the 2nd defendant proves that he purchased the suit schedule property for valuable consideration and without notice?

5) Whether the plaintiff proves that the defendants played a fraud on him and liable to pay damages to the plaintiff?

6) Whether the plaintiff proves that he always ready and willing to perform his part of contract in pursuance of agreement to sell dated 15.11.1995?

7) Whether the plaintiff proves that he is entitled to specific performance?

8) Whether the plaintiff entitled for reliefs sought for?

9) What order or decree?"

In support of his case, plaintiff examined himself as P.W.1 and two other witnesses as P.W.2 and P.W.3. He produced nine documents which were marked as Ex. P.1 to Ex. P.9, while the first defendant examined himself as D.W.1 and another witness as D.W.2. One document was marked as Ex. D.1.

On the basis of the said evidence, the Trial Court answered Issue Nos. 1, 2, 6, 7 and 8 in the affirmative, Issue Nos. 3, 4 in the negative and decreed the suit holding that the sale deed dated 27.1.1996 executed by the first defendant in favour of the second defendant was null and void and not binding on the plaintiff. The plaintiff was to deposit balance sale consideration of Rs. 8,000/-deficit duty and penalty and also pay additional court fee for the relief of declaration. The first defendant was to receive balance sale consideration and defendant No. 1 was to execute a registered sale deed in favour of the plaintiff within a month from the date of the decree, failing which the plaintiff was at liberty to take steps in accordance with law.

Being aggrieved by the said judgment and decree, defendants filed R.A. No. 4/2007 before the First Appellate Court. The following points were raised by the First Appellate Court for its consideration:--

"1) Whether the trial court was justified in holding that the 1st defendant has executed exhibit P1 agreement to sell the suit property in favour of the plaintiff on 15.11.1995 and put him in possession of suit property?

2) Whether the trial court was justified in holding that the 1st appellant/1st defendant has failed to establish that the exhibit P1 document was a concocted document?

3) Whether the trial court was justified in declaring that the sale deed in respect of the suit property stands in the name of the 2nd defendant is null and void and granting the relief prayed by the plaintiff in the suit?

4) Whether the trial court has erred in appreciating the oral and documentary evidence and to apply the legal principles to the facts of the case resulted in mis-carriage of justice?

5) What order?"

The First Appellate Court answered point Nos. 1 to 3 in the affirmative and point No. 4 in the negative and dismissed the appeal by affirming the judgment and decree passed by the Trial Court dated 16.11.2006.

Being aggrieved by the concurrent findings of the Courts below, the second defendant has preferred this second appeal.

I have heard learned counsel for appellant. He contended that the agreement between the plaintiff and the first defendant stated to be executed on 15.11.1995 was not a document which is in accordance with law; that no specific performance of that agreement could have been granted by the courts below. That the plaintiff had not paid a sum of Rs. 30,000/- as advance consideration to the first defendant and that the said document could not have taken into consideration for the enforcement of contract. In that context, it was contended that there were variations between the pleadings and proof; whereas plaintiff had stated that on the date of the agreement he had paid a sum of Rs. 30,000/-; in evidence, it was contended that he had not paid it on the said date, but thereafter. That when the evidence was contrary to pleadings, the same would have no evidentiary value or credibility.

Learned counsel for appellant drew my attention to various findings given by the trial Court on the issues referred to above and contended that those issues could not have been answered in favour of the plaintiff and that the plaintiff was never ready and willing to perform his part of the contract and that the agreement itself was a concocted document and that the plaintiff had filed the suit in order to take undue advantage of the defendants. He therefore submitted that substantial questions of law would arise in the appeal and in order to consider those substantial questions of law on merits, appeal had to be admitted.

I have considered the submissions of the learned counsel for appellant/second defendant and perused the material on record.

It is noted from the judgments of the courts below that the suit was based on Ex. P.1 which is stated to be an agreement to sell the suit schedule property executed by first defendant in favour of the plaintiff for a consideration of Rs. 38,000/-. According to the plaintiff, a sum of Rs. 30,000/- was paid on the date of agreement itself and the balance consideration of Rs. 8,000/- was to be paid at the time of registration of the document. It is also the case of the plaintiff that he was in possession of the suit property, as the same was given to him on 15.11.1995 itself and that the defendant had agreed to execute the sale deed after furnishing the documents in respect of the suit property and on receipt of the balance consideration. P.W.1 has stated in his cross-examination that 2 acres 11 guntas in survey No. 45/2 was divided into five shares amongst first defendant and his brothers and that he had already purchased four shares and that the agreement in question was executed by the first defendant in respect of the fifth share. Even from D.W.1''s evidence, it has been established that first defendant''s elder brother, Pillamuniyappa, had executed an agreement to sell his share to the plaintiff. But the same had been sold to the first defendant. Thereafter plaintiff had filed a suit against Pillamuniyappa and the first defendant for specific performance and a conciliation was held in the matter and thereafter the first defendant sold the share so purchased from his elder brother in favour of the plaintiff by document dated 10.11.1995. While it was the case of the defendants that the Agreement itself had not come into existence and that they denied execution of any agreement in favour of the plaintiff, nevertheless the Trial Court has considered the evidence in that regard inasmuch as the fact that a sum of Rs. 30,000/- was paid by the plaintiff in favour of the first defendant on the date of the execution of the agreement and that the sale agreement was to be executed five days after he purchased the western portion of survey No. 45/2 from the first defendant. P.W.2 and P.W.3 are witnesses to the agreement, Ex. P1. They have also stated that though a sum of Rs. 30,000/- was paid by way of advance consideration on delivering possession on 15.11.1995, the document had not yet been registered. P.W.3 has also stated in his cross examination that first defendant had affixed his left hand thumb mark (LTM) to the agreement in his presence and that stamp paper was purchased on the previous day and the agreement was written on the following day. On the basis of the documentary evidence of plaintiff''s witnesses, the Trial Court held that recitals in Ex. P.1 prove that there was payment of advance sale consideration by the plaintiff in favour of defendant No. 1 i.e. Rs. 30,000/- out of Rs. 38,000/- and that the plaintiff had also been put in possession of the suit schedule property. What remained was registration of the said document.

In so far as the contention raised that there was a fraud played by the plaintiff on the 1st defendant as the alleged agreement was a concocted document, the Trial Court has noted that no such evidence in that regard could be let-in as there was no pleading to that effect in the written statement.

Another aspect that was considered by the Trial Court was with regard to improper stamping of Ex. P.1. On that aspect, an application was filed for impounding the document as it was inadmissible in evidence and had been tendered in evidence by the plaintiff. The Trial Court had directed payment of duty and penalty by order dated 27.9.2003 passed on I.A. No. 7. That order was challenged in W.P. No. 51493/2003 before this Court. The writ petition was rejected by order dated 10.3.2006, keeping open the question of admissibility of Ex. P.1, to be decided at the time of final hearing of the suit. A contention was raised by the learned counsel for appellant that the trial Court did not comply with the direction of this Court inasmuch as the question as to the admissibility of Ex. P.1 was not at all considered. On that aspect at para 28 of the judgment of the Trial Court, it is noted that plaintiff had paid duty and penalty of Rs. 24,970/- as calculated by the Registry and that plaintiff was also ready to pay any difference amount if a fresh calculation was made. Further, the Trial Court has categorically noted that parties did not chose to argue on the admissibility of Ex. P.1 and therefore the said contention was deemed to have been waived.

But considering the evidence of plaintiff''s side, the Trial Court held that it was a fit case where discretion ought to be exercised for granting the relief of specific performance of the agreement to sell and that the subsequent agreement entered into by the first defendant in favour of second defendant was not in accordance with law and hence it was declared to be null and void and not binding on the plaintiff. The findings arrived at by the Trial Court have been re-considered by the First Appellate Court as per the points for considerations raised by it. The First Appellate Court has noted that though the first defendant in the course of evidence had deposed that Ex. P.1 document was fraudulent and concocted, there was no specific pleading in the written statement. It held that evidence with regard to pleading for fraud could not have been let-in, in the absence of there being a foundation laid to that effect in the written statement. The First Appellate Court on re-appreciating the evidence on record and on the basis of the case law which was cited before it affirmed the judgment and decree of then Trial Court by dismissing the appeal.

On considering the two judgments of the Courts below, it becomes clear that both the Courts have accepted the validity of Ex. P.1 in all aspects. The recitals in the document Ex. P.1 could not be countered or no contrary evidence in that regard could be let in by either of the parties in the form of oral evidence. In the absence of there being any kind of fraud or infirmity being pleaded in the written statement, the defendants could not have raised any plea regarding the validity of the agreement on that count. This is not a case where under Section 91 read with Section 92 of the Indian Evidence Act, defendants could have challenged the validity of the agreement by contending that Ex. P.1 was not binding on them, in the absence of any plea to that effect in the pleading. In fact, the background in which Ex. P.1 was executed, the fact that a sum of Rs. 30,000/- out of Rs. 38,000/- being the valuable consideration was already received by the first defendant and possession of the suit schedule property being handed over to the plaintiff are all significant aspects of the case. What remained was, that the sale deed had to be registered so as to effect complete transfer of the suit schedule property in favour the plaintiff. But the first defendant instead of complying with the terms and conditions of Ex. P.1 attempted to alienate the very same property to defendant No. 2 by entering into an agreement of sale dated 27.1.1996. It is in that context that both the courts below held that while granting the relief of specific performance to the plaintiff, it was necessary to hold that sale deed dated 27.1.1996 executed by defendant No. 1 in favour of defendant No. 2 was null and void.

On an over all consideration of the judgments of the Courts below, I find that discretion exercised by the said Courts in favour of the plaintiff in light of the settled principles of law in the matter of granting of equitable relief has been sound and in accordance with law. This Court sitting in a second appeal cannot interfere with the discretion exercised by the Courts below, unless the said exercise of discretion is perverse, capricious or totally contrary to the principles of law.

In the circumstances, I find that the findings on facts as well as on position of law have been rightly considered and given by the courts below. No substantial question of law arises in this appeal.

Appeal is dismissed.

In view of the dismissal of the appeal, Misc.Cvl. 4054/2010 and I.A. No. 1/14 would also not survive for consideration and they also stand dismissed.