Shevu S/o Dongri Lamani vs Jagadish S/o Kasayya Math

The appellant is plaintiff in O.S.No.60/2011. The instant second appeal is filed under Section 100 of the Civil Procedure Code against the concurrent judgments rendered by the Courts below. The parties would be referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.

The appellant namely the plaintiff filed the suit which was initially numbered as O.S.No.346/2008 and was re- numbered as O.S.No.60/2011 on being transferred to a newly constituted Court, contending that the defendant had agreed to sell an extent of 3 acres 23 guntas of the property situate in Managuli village out of the total extent of 10 acres owned by the defendant. In that regard the plaintiff contended that an agreement dated 12.01.2006 was entered into between the plaintiff and the defendant. Towards the total sale consideration of Rs.2,00,000/- agreed thereunder, the plaintiff claimed to have paid a sum of Rs.1,90,000/- and the sale deed was to be executed after the remaining formalities were complied, more particularly after obtaining the 11E sketch as only a portion of the total extent was being purchased. In that light, it is contended that despite lapse of sufficient time since the defendant failed to execute the sale deed in favour of the plaintiff, the plaintiff was constrained to approach the trial Court seeking for a judgment and decree for specific performance.

The defendant on being served with the suit summons, had appeared and filed the written statement. It was disputed that the intention of the agreement was to convey the property to the plaintiff. It was contended on behalf of the defendant that a loan of Rs.50,000/- was advanced to the defendant and the agreement was executed as a security towards the same. In that light the defendant had sought for dismissal of the suit.

The trial Court on taking note of the rival contentions, had framed four issues for its consideration. In order to discharge the burden cast on the parties the plaintiff examined himself as PW-1 and examined the witnesses as PWs-2 to 4 and relied upon the documents at Exs.P1 to P3. The defendant examined himself as DW-1 and also examined a witness as DW-2. In the light of the evidence that was available before the Court, the trial Court while answering the issue framed for its consideration had held the agreement to be proved by rejecting the defence of the defendant that it was executed only for security of the loan. Though that was the position, the trial Court while considering issue No.2, in order to answer as to whether the specific performance was required to be granted, had taken into consideration the date of the agreement and the conduct of the parties and had thereafter arrived at the conclusion that the plaintiff had failed to prove that he was ready and willing to secure the sale deed in his favour and in that view arrived at the conclusion that the relief of specific performance is to be rejected and the alternate relief of refund of the earnest money with interest at 6% was to be ordered. Accordingly, the suit was disposed of in such manner directing the defendant to repay the sum of Rs.1,90,000/- with interest at 6%.

The plaintiff claiming to be aggrieved by the same, preferred an appeal under Section 96 of the Civil Procedure Code in R.A.No.103/2011. The Lower Appellate Court on re- appreciating the evidence, though had assigned different reason with regard to the consideration relating to readiness and willingness of the plaintiff, had however concurred with the finding on the said issue and arrived at the conclusion that the trial Court was justified in rejecting the specific performance and ordering repayment of the earnest money with interest. Accordingly, the appeal was dismissed by the judgment dated 12.09.2012.

Though the learned counsel for the appellant would seek to contend that the Courts below have committed an error in arriving at the conclusion that the plaintiff was not ready and willing in a circumstance where the plaintiff had paid almost the entire sale consideration except the amount of Rs.10,000/-, a perusal of the reasoning given by the Courts below would disclose that notwithstanding the fact that the said amount had been paid by the plaintiff, the plaintiff had not exhibited his readiness to secure the sale deed in his favour though a long time had lapsed from the date of the agreement. While arriving at such conclusion, both the Courts below have referred to the evidence that was available on record and had also observed that the plaintiff had failed to tender any further evidence to indicate with regard to the readiness and willingness.

Therefore, in such circumstance, when this Court is taking note of the contention in a second appeal under Section 100 of the Civil Procedure Code and when it is seen that both the Courts below have referred to the evidence available before it on record and has recorded a finding of fact that the plaintiff was not ready and willing, I am of the opinion that the same does not raise a substantial question of law for consideration in a second appeal of the present nature.

Therefore, when both the Courts have concurrently held against the appellant, I am of the opinion that the present appeal is devoid of merit and the same is accordingly dismissed with no order as to costs.