Ramaiah and Others vs Doddakkaimma and Others

B.V. Nagarathna, J—This second appeal is filed by the plaintiffs in O.S. No. 622/1994, assailing the judgment and decree passed in R.A. No. 30/2006 dated 17.03.2014 by the III Addl. District and Sessions Jude, Bangalore Rural District, sitting at Anekal, confirming the judgment and decree passed by the Addl. Civil Judge and JMFC, Anekal in O.S. No. 622/1994.

Briefly stated, the facts are that the appellant-Ramaiah has filed the suit seeking specific performance of agreement to sell dated 29.10.1986. According to him, the suit schedule properties, which are agricultural lands were agreed to be sold by defendants No. 1 and 2 in favour of the plaintiff for a valuable consideration of Rs. 24,000/-. On the date of agreement, a sum of Rs. 2,000/- was paid by way of advance sale consideration. Subsequently, a sum of Rs. 17,000/- was paid. Thereupon, additional sale consideration of Rs. 1,500/- was paid to the defendants and that, additional agreement was entered into on 06.02.1987. Thus, it is the case of the plaintiff that out of a sum of Rs. 24,000/-, a sum of Rs. 20,500/- had been paid to defendant Nos. 1 and 2. That the sale deed has to be registered within a specific period of time but the defendants No. 1 and 2 did not come forward to register the sale deed, despite repeated requests made by the plaintiff. Hence, the plaintiff was constrained to file the suit seeking specific performance of agreement dated 06.02.1987.

On receipt of suit summons and notice from the trial Court, the defendants appeared and filed their written statement denying the averments made in the plaint. Defendants contended that the plaintiff was a close relative of defendants, that one Hanumanthappa- the husband of defendant No. 2 and father of defendants No. 3 to 6 was the manager of the family of the defendants and he was looking after the affairs of the family. He died in the year 1984. Subsequently, the plaintiff being the uncle came forward to assist the defendants. Defendants No. 1 and 2 were not worldly-wise and were illiterates and defendants No. 3 to 6 were minor innocent children. Taking advantage of the weak position of the defendants, plaintiff got the signatures of defendant Nos. 1 and 2 on several blank stamp papers and thereafter, the plaintiff concocted and fabricated the agreement. They denied the very execution of the agreement to sell in favour of the plaintiff and therefore, sought dismissal of the suit.

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

"ISSUES

i) Whether the plaintiff proves that defendants executed sale agreement on 06.02.1987?

ii) Whether plaintiff proves that ready and willing to perform his part of contract?

iii) Whether defendants prove that there is no cause of action for the suit?

iv) Whether defendants prove that non-joinder of necessary party?"

In support of plaintiff''s case, his power of attorney holder, Sri. Narayanappa, was examined as P.W. 1 and another witness as P.W. 2. He produced nine documents which were marked as Exs. P1 to P9. The defendants examined three witnesses and they produced one document which was marked as Exs. D1.

On the basis of the said evidence, the trial Court answered issue Nos. 1, 2 and additional No. 1 in the negative and issue Nos. 3 to 6 in the affirmative and dismissed the suit of the plaintiff with cost. Being aggrieved by the judgment and decree of the trial Court, the legal representatives of the deceased original plaintiff, who was since dead, filed Regular Appeal No. 306/2006, before the Appellate Court. That Court, after hearing the parties, framed the following points for its determination:

"POINTS

i) Whether the appellant proves that there are just and reasonable grounds to allow IA No. III and send the disputed documents for scientific examination?

ii) Whether the appellant proves that the judgment and decree passed by the learned Addl. Civil Judge and JMFC, Anekal in O.S. No. 622/1994 dated 01.12.2003 is suffering from any irregularities or illegalities and calls for interference by this Court in this appeal?

iii) Whether the appellant proves that the defendants have agreed to sell the suit schedule property for Rs. 24,000/- and executed sale agreement deed dated 29.10.1986 and 06.02.1987 by receiving total advance amount of Rs. 20,500/-?

iv) Whether the appellant proves that he is entitled for decree for Specific Performance?

v) What order?"

The First Appellate Court answered points No. 1 to 4 in the negative and dismissed the appeal. Being aggrieved by the two judgments and decrees of the Courts below, plaintiff has preferred this second appeal.

I have heard learned counsel for the plaintiffs and learned counsel for the caveator/respondent No. 2 and respondent Nos. 4 to 9 and perused the material on record.

It was submitted on behalf of the appellants that the Courts below were not right in holding against the plaintiff to the effect that the agreement of sale dated 29.10.1986 had not been executed by defendants No. 1 and 2 in favour of the plaintiff. He submitted that defendants No. 1 and 2 have admitted the signatures on the agreement which were on the stamp papers and having done so, they could not have resiled from the said agreement. He also contended that the suit schedule properties were to be sold for valuable consideration of Rs. 24,000/- and the defendants No. 1 and 2 had already received a sale consideration amount of Rs. 20,500/- and when the time came for execution of the sale deed, the defendants have shown no interest. He contended that the execution of the sale deed and the contents of the sale deed were proved by the plaintiff through his power of attorney holder, but the Courts below failed to appreciate the evidence of P.W. 1. He further submitted that the document Ex. P2 is the agreement dated 29.10.1986 and it was to be enforced and the subsequent agreement dated 06.02.1987, were proved by defendants No. 2 and 3. But the Courts below failed to appreciate their evidence in its proper perspective and as a result, declined to grant the relief of specific performance in favour of the plaintiff. The sum and substance of the contention of the learned counsel for the appellant is that the Courts below ought to have exercised their discretion in favour of the plaintiff and granted the relief of specific performance of agreement dated 29.10.1986.

Per contra, learned counsel for the respondent-Caveator, while supporting the judgments of the Courts below, contended that there was no proof of the document said to have been executed by defendant Nos. 1 and 2 on 29.10.1986. Rather the Courts below clearly held that the plaintiff had taken signatures of defendant Nos. 1 and 2 on blank papers and subsequently, those were filled up as an agreement to sell but in fact, there was no execution of agreement to sell but in fact, there was no execution of agreement to sell. No sale consideration had passed on by the plaintiff to the defendants. The concurrent findings given by the Courts below are such that, it cannot be interfered with in the second appeal. No substantial question of law arises in this appeal for consideration and therefore, there is no merit in the appeal, is the submission of the learned counsel appearing for respondent-caveator.

Having heard the learned counsel appearing for the parties and on perusal of the material on record, it is noted that the plaintiff had filed the suit on the basis of the agreement to sell said to have been executed by defendant Nos. 1 and 2 on 29.10.1986. In order to prove the agreement, the plaintiff did not step into the witness box and adduce evidence. Though P.W. 1 has given evidence on the strength of power of attorney, he has shown ignorance to several material facts, which defeats proof of due execution of sale agreement and receipt of advance amount by defendants under Exs. P2 and Ex. P9.

It is a settled position of law that, the special power of attorney holder who leads evidence on behalf of the party must have personal knowledge of the facts which have to be proved in the trial, but in the instant case personal knowledge of P.W. 1 with regard to the execution of the agreement dated 29.10.1986 by the defendants No. 1 and 2 in favour of plaintiff is conspicuous by its absence. Thus, both the Courts below have held that P.W. 1 was not in a position to let in evidence to the effect that in fact, there was execution of the agreement to sell the suit schedule property by defendant Nos. 1 and 2. Therefore, the evidence of P.W. 1 cannot be of any assistance to come to a conclusion that there was in fact an agreement between the parties and that the said agreement was indeed executed by defendant Nos. 1 and 2.

Further, P.W. 2 -Venkataswamappa was asked to let in evidence in support of agreements -Exs. P2 and Ex. P9 documents dated 29.10.1986 and 06.02.1987. In his evidence, he has stated that he did not know what was written in his affidavit which was given by way of examination- in-chief. He has also pleaded his ignorance about Exs. P2 and P9. In his evidence, he has stated though he has signed Ex. P9, it was on blank paper and he did not know as to what was the contents on that document. The evidence let in by PWs. 1 and 2 on behalf of plaintiff, according to the Courts below, have not established execution of Ex. P2.

It may be that, there were signatures of D.W.s. 1 and 2 on Exs. P2 and P9 but the mere fact that the signatures were found on the said documents would not imply those documents prove the execution of the documents. What is necessary in law is to let in evidence of at least one of the attesting witnesses of the document vide Section 68 of the Indian Evidence Act, 1872. In the instant case, D.W.s. 2 and 3 who are the attesting witnesses of Exs. P2 and 9, in their cross examination have denied the execution of agreement to sell. They have also stated in unison that they have signed on blank stamp papers and they were not aware what document they were witnessing. The evidence of a attesting witness is normally in favour of a party relying upon the document. In the instant case, it is in favour of the defendant Nos. 1 and 2 who have denied the execution of the document. Therefore, the evidence of D.W.s. 2 and 3 support the defendants'' case that they never attested the agreement to sell which was executed by the defendants No. 1 and 2. The fact that plaintiff did not step into the witness box, but has let in evidence through special power of attorney, who was not personally aware of the transaction is a significant factor.

In the given facts of the case, both the Courts have draw adverse inference against the plaintiff and have concurrently held that the agreement dated 06.02.1986 was not proved in the sense that the plaintiff had failed to establish that defendant Nos. 1 and 2 had indeed executed an agreement to sell the suit properties of plaintiff on 06.02.1986. In the absence of any proof to that effect that there was an agreement to sell entered into between defendants No. 1 and 2 and the plaintiff, all other issues would only become academic, nevertheless, the Courts below have answered the other issues and have dismissed the suit of the plaintiff. On going through the material on record and on considering the rival submissions of the counsel for the respective parties, I am of the view that the judgment and decree of the Courts below would not call for any interference. No substantial question of law arises in this appeal. Appeal is dismissed but without any order as to costs.

In view of dismissal of the appeal, I.A. 1/2014 would not survive for consideration and the same is also dismissed.