Smt. Kempamma, Pandurangaiah, Nagaraju and Thimmanna vs Chikkanna

S. Abdul Nazeer

This appeal is directed against the judgment and decree in R.A. No. 306/2008 dated 30.11.2009 on the file of the Fast tract Court-IV, Tumkur, setting aside the judgment and decree in O.S. No. 146/1998 dated 26.6.2006 on the file of the I Additional Civil Judge (Jr. Dn.) and JMFC, Tumkur. The appellants are the defendants in the suit and the respondent is the plaintiff. The plaintiff filed the above suit for specific performance of an agreement at Ex. P. 1 dated 23.1.1995. The defendants denied the execution of the agreement. They have also contended that the plaintiff was always not ready and willing to perform the contract. The suit is also barred by time. On the basis of the pleadings of the parties, the trial Court framed the relevant issues. The plaintiff got examined himself as PW. 1 and two witnesses have been examined in support of the plaintiff and the documents at Exs. P. 1 to P. 12 have been marked in their evidence. Defendant No. 3 got examined himself as D.W. 1 and the documents at Exs. D. 1 to D.8 have been marked in his evidence. On appreciation of the materials on record, the trial Court has held that the agreement at Ex. P. 1 has been executed by the defendants agreeing to sell the suit schedule property in favour of the plaintiff. It has also held that the defendants have delivered possession of the said property under agreement. Insofar as issue No. 3 is concerned, the trial Court has held that the plaintiff was not ready and willing to perform his part of the contract. That is why, the suit has been dismissed. Feeling aggrieved, the plaintiff filed the aforesaid appeal. The Lower Appellate Court has allowed -the appeal arid-decreed the suit.

Learned Counsel for the appellants submits that the agreement at Ex. P. 1 is dated 23.1.1995 and the suit was filed on 18.2.1998. Therefore, the suit is barred by time under Article 54 of the Limitation Act. Secondly, it is argued that Ex. P. 1 is not admissible in evidence. Under Ex. P. 1, possession has been delivered. The plaintiff has not paid duty and penalty on the said document. Thirdly, it is contended that the defendants have denied execution of the agreement. The Courts below ought to have accepted the said contention and held that Ex. P. 1 is a concocted document.

Learned counsel for the respondent has sought to justify the impugned judgment and decree of the Lower Appellate Court as also the findings of the trial Court on issue Nos. 1, 2 and 4.

The defendants have raised the contention that the suit is barred by time. The agreement at Ex. P. 1 is dated 23.1.1995 and the suit was filed on 18.2.1998. Time is not the essence of the contract. The plaintiff has called upon the defendants to perform their part of the contract by issuing a notice at Ex. P. 2 dated 5.2.1998. Since the defendants have failed to come forward to execute the sale deed in terms of the notice, the suit was filed on 18.2.1998. Thus, the suit filed by the plaintiff is within time.

Insofar as the second contention is concerned, Article 5(e) was inserted to Karnataka Stamp Act, by Act No. 8/1995, w.e.f. 1.4.1995. After the insertion of the above Article, if an agreement relating to immovable property, wherein possession is delivered under the agreement in part performance of the contract, the duty is payable on the said document as a conveyance on the market value of the property. The said provision is prospective in nature. The agreement at Ex. P. 1 is dated 23.1.1995. Therefore, question of payment of stamp duty on the market value of the property does not arise. Apart from the above, agreement at Ex. P. 1 was marked without any objection. Section 35 of the Karnataka Stamp Act, 1957, states that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

In order to prove the document at Ex. P. 1, the plaintiff was examined as P.W. 1. In his evidence, he has given the details relating to execution of the agreement. P.W. 2 is a witness to the document and P.W. 3 is a scribe. They have also stated in their evidence that the document has been executed in their presence. Though they were cross examined at length, nothing worthwhile has been elicited in the cross examination except some discrepancies which is understandable, because the document was executed on 23.1.1995 and they were examined in the suit after passage of 10 years. Defendant No. 3 was examined as D.W. 1. Other defendants have not been examined. The trial Court has recorded the, finding of fact that the agreement at Ex. P. 1 has been duly executed, which has been accepted by the Lower Appellate Court The finding of fact recorded by the Courts below is on appreciation of the materials on record. There is no perversity, illegality or irregularity whatsoever in the said finding. The appeal does not involve any substantial question of law. It is accordingly dismissed. In view of dismissal of the appeal as above, Misc. Cvl. No. 2930/2011 does not survive for consideration. It is accordingly dismissed. No costs.