AI Structured Summary
Not yet generated for this judgment
Judgment
The Hon''ble Mr. Justice Anand Byrareddy
Heard the learned counsel for the parties. The parties are referred to by their rank before the trial court for the sake of convenience.
The appellant was the plaintiff before the trial court. It was the case of the plaintiff that he was a tenant in respect of the premises bearing no. 113, 1st Main Road, 3rd Cross, 1st Stage, Agrahara Dasarahalli, KHB Colony, Bangalore, under the first defendant since 1978. The property was said to have been allotted to the first defendant during the year 1977. Since the first defendant was in urgent need of money for his family necessity, he had executed an agreement of sale dated 12.1.1995 in favour of the plaintiff, who was already in possession of the suit property as a tenant. The sale consideration agreed was Rs. 2,25,000/- and the sale transaction was to be completed by the first defendant by executing a sale deed, after obtaining a ''No. Objection Certificate'' from the Karnataka Housing Board within one year from the date of the agreement.
The first defendant had executed a General Power of Attorney dated 12.1.1995, acknowledging that the plaintiff was in possession of the suit property and authorising him to maintain and protect the suit property. The first defendant is also said to have executed an affidavit of the same date acknowledging receipt of Rs. 2,25,000/- from the plaintiff towards the sale consideration.
The plaintiff further claimed that he had been a tenant since the year 1977 and by virtue of the agreement of sale under which, the entire sale consideration had been paid, the plaintiff continued in possession as an agreement-holder in possession. It was the plaintiff''s apprehension that inspite of the above agreement of sale in his favour, the first defendant was making efforts to sell the property to third-parties, clandestinely, and therefore, had filed the suit.
The first defendant, who entered appearance, had filed his written statement as well as objections to the applications of the plaintiff seeking injunctory reliefs.
Upon noticing that the first defendant claimed to have sold the property in favour of the second defendant, the plaint was amended to implead defendant no.2 as well and to modify the relief prayed for.
It was further contended in the plaint that without informing the plaintiff, the first defendant had obtained an absolute sale deed from the Karnataka Housing Board on 21.9.1995 and after obtaining the sale deed, had executed a sale deed in favour of the second defendant dated 30.10.1995, thereby seeking to defraud the plaintiff.
It is further claimed that the second defendant was not a bona fide purchaser for value, as it was contended that the second defendant had contacted the plaintiff during September 1995 and he had been informed that the plaintiff was an agreement-holder in possession of the suit property and inspite of such knowledge, the second defendant had proceeded to enter into a sale transaction with the first defendant. Therefore, there was active collusion between the defendants, excluding the plaintiff, in nullifying the agreement of sale in favour of the plaintiff and therefore, has sought the relief of injunction, restraining the defendants from alienating the suit property and for specific performance of the agreement in his favour and for cancellation of the sale deed executed in favour of the second defendant.
The plaint allegations were denied in the written statement by defendant no.1. The execution of the documents set up by the plaintiff were all denied. While it was admitted that the property had been sold in favour of the second defendant and that the first defendant had issued a notice, informing the plaintiff that such property was sold to the second defendant on 30.11.1995 and calling upon him to pay future rents in respect of the property in favour of the second defendant. The second defendant had also issued a similar notice of indicating the factum of attornment of tenancy.
The second defendant had also filed a written statement claiming that the plaint allegations were false and incorrect, except that the plaintiff was a tenant in respect of the suit property and since he had continued to be the tenant, the tenancy was attorned in favour of the second defendant by the first defendant and therefore, the plaintiff was seeking to set up a false claim of being an agreement holder in possession.
On the basis of the above pleadings, the following issues were framed:-
Whether the plaintiff proves that the first defendant has agreed to sell the Suit Property for a consideration of Rs. 2,25,000/- and executed the agreement on 12.1.1995?
Whether the plaintiff proves that he has paid the entire sale consideration amount to the first defendant?
Whether the plaintiff proves that he has been ever ready and willing to perform his part of contract?
Whether the plaintiff proves that he is entitled for the specific performance of the agreement of sale?
Whether the plaintiff proves that he is entitled for possession of the suit property?
Whether the plaintiff proves that he is entitled to the permanent injunction sought?
What decree or order? " The trial court answered issue nos.1 to 6 in the negative and the suit was dismissed. It is that which is under challenge in the present appeal.
The learned counsel for the appellant contends that one of the reasons assigned by the trial court in dismissing the suit is that there was no sale agreement produced before the court. It is pointed out that Exhibit P.1 is indeed the agreement of sale. The court below has taken a dim view of the nomenclature of that document, in holding that there may have been another document, which was an agreement of sale and that Exhibit P.1 was a secondary document. The learned counsel would point out that from the tenor of Exhibit P.1, it cannot be construed as anything but an agreement of sale. The further finding of the court below that Exhibits - P.2 and P.3, namely, the General Power of Attorney and an affidavit executed by the first defendant were inconsistent with Exhibit P.1, is an incorrect finding, as can be seen from a plain reading of the said documents. If the documents are read together, they are certainly in conformity with each other and there is no inconsistency whatsoever and hence, there is no basis for such a finding by the trial court. It is evident from these documents that the sale transaction was deferred only to enable the first defendant to obtain a ''No Objection Certificate'' from the Karnataka Housing Board, as there was no obligation outstanding on the part of the plaintiff. The further finding of the trial court that there was no receipt produced in respect of the advance sale consideration paid, is again a finding, which is erroneous, for the agreement itself contains the acknowledgement by the first defendant of having received the amount and the trial court holding that, in the absence of a receipt, the payment of the sale consideration was not proved, is, therefore, incorrect. It is further contended that the burden of proving Exhibit P.1, and the attendant documents was on the plaintiff. He had discharged that burden by demonstrating that the documents had been executed in the presence of a Notary and two witnesses, who were examined before the trial court. There is no other manner in which the plaintiff could have established the execution of Exhibit P.1. The court below having held that the evidence of PW.1 and PW.2 was inconsistent and that the oral testimony of the said witnesses was insufficient, is opposed to the settled law, when there was no reason to disbelieve the assertions of the said witnesses. The court below has sought to draw an adverse inference in the light of the fact that an expert witness had not been examined to prove the signatures of the defendant on the relevant documents, in the light of the first defendant having disputed the execution of the same. The plaintiff had examined the attesting witness and if the court was in doubt as to the actual execution of the documents by the first defendant, it was always open for the court to appoint a Court Commissioner for the purpose of examining the signatures and an adverse inference being drawn against the plaintiff in this regard. It is further contended that the second defendant was a pendente lite transferee inasmuch as she had purchased the property after the suit was filed and there was an order of temporary injunction also in operation as on 21.1.1995. The above circumstance that there was an order of injunction restraining the first defendant from alienating the property to third-parties was admitted. It was also admitted that the sale in favour of the second defendant was subsequent to the order and therefore, the second defendant was precluded from contesting the suit, and therefore, the suit ought to have been decreed in favour of the plaintiff, especially when the first defendant did not seek to contest the suit, apart from filing a written statement and there was virtually no defence or contest to the claim of the plaintiff. The court below has completely ignored these aspects. In the absence of any effective contest by the first defendant or his legal representatives insofar as bare denial of the execution of the agreement at Exhibit P.1, the court below could not have negated the said document.
Reliance is placed on the case of Jai Bhagwan and others Vs. State of Haryana, wherein it is laid down that where a party to the suit does not appear and tender evidence on oath and does not offer himself to be cross-examined, a presumption would arise that the case set up by him is not correct.
So also is the law as laid down in Eshwar Bai vs. Harihar Behara, 1999 (3) SCC 121.
The learned counsel places reliance on the following judgments to contend that the reasoning of the court below is opposed to the principles laid down therein:-
1) S. Chattanatha Karayalar Vs. The Central Bank of India and Others,
2) Har Narain (dead) by legal representatives, vs. Mam Chand, 2010 AIR SCW 6555,
3) Syed Zaheer Shariff and Others Vs. C.V. Siddaveerappa Setty,
4) Mohana vs. Jagdisha Rao and others, judgment in R.F.A. No. 1045/2002.
The learned counsel would contend that as laid down in S.Chattanatha supra, where a transaction between the same parties is contained in more than one document, the documents must be read and interpreted together, and they would have the same legal effect for all purposes as if they were one document.
Further, as laid down in Har Narain, supra, the registration of a sale deed subsequent to filing of the suit., would attract the doctrine of lis pendens and that the subsequent purchaser is not in a position to claim the benefit of Section 19(b) of the Specific Relief Act, 1963.
In K. Mohana, supra, rendered by a Division Bench of this court following Jugraj Singh and another vs. Jaswant Singh and others, AIR 1971 SC 761, interpreting Section 85 of the Evidence Act, wherein it was held by the apex court that when a Notary endorses on the document, that it had been subscribed and sworn before him, there is a presumption of regularity of official acts and that satisfies the requirement of law and consequently presumption, u/s 85 of the Evidence Act that the said document had been executed and authenticated in accordance with law, could be drawn.
On the other hand, the learned counsel for the second respondent seeks to take this court through the record to demonstrate that the evidence of the plaintiff and that of his witness is totally inconsistent, which has been rightly trashed by the trial court in dismissing the suit and seeks to justify the findings of the court below. The counsel places reliance on the following authorities,
Thiruvengada Pillai Vs. Navaneethammal and Another,
N.K. Giriraja Shetty represented by P.A. Holder D. Narasimharaja Setty Vs. N.K. Parthasarathy Setty, N. Chandrashekara Setty, N.K. Lakshminarayana Setty (since deceased by LRs. Smt. Chandrakanthamma Setty, L. Nagaraj Setty and Lakshmi),
Chinnaswamy Vs. Profulla,
B. Nagarajappa Vs. Smt. Boramma and Others,
O. Bharathan vs. K. Sudhakaran and another, (1996) 2 SCC 704,
K.L. Ganapathi and Another Vs. Ganapati Bhatta, Since dead by L.Rs. and Another,
In Thiruvengada Pillai, supra, the apex Court has held that when there was a positive denial by a person who is said to have affixed his thumb impression on a disputed document, and when there is no possibility of comparing the thumb impression with the admitted thumb impression, if it is smudgy or not clear, making it difficult for comparison, the court should hesitate to venture its decision based on its own comparison of the disputed and admitted thumb impressions. The learned counsel for the second respondent would contend that the same reasoning would equally apply in case of disputed signatures as in the present case on hand and there was no signature, which tallied with the other, to establish that the first defendant had indeed signed the document.
As laid down in Giriraja Setty, supra, following the decision of the apex curt in Mayawanti Vs. Kaushalya Devi, wherein while interpreting Section 9 of the Specific Relief Act, 1963, the apex Court has observed that there must be a valid and binding contract between the parties and in respect of which, the parties should be consensus ad idem and this burden of proof lies on the plaintiff seeking specific performance of contract in order to make the contract enforceable.
The decisions in B. Nagarajappa and O. Bharathan are also in support of the contention that the court should not embark on comparison of doubtful signatures in arriving at a conclusion as to whether they were genuine or not.
Having regard to the above contentions and on a perusal of the record, it is not in dispute that the plaintiff, who was inducted as a tenant by the first defendant into the suit premises, it is the plaintiff''s case that during the year 1995, an agreement of sale was entered into by the first defendant with the plaintiff dated 12.1.1995, to sell the suit property in his favour for a sum of Rs. 2,25,000/-. The title to the property was yet to be conferred on the first defendant by the Karnataka Housing Board, which had allotted the property to the first defendant. Therefore, the sale transaction had been postponed. A suit was filed when the plaintiff learnt that the first defendant was seeking to dispose of the property in favour of the second defendant. The suit had been contested by the first defendant, who had filed his written statement, but died during the pendency of the suit and did not tender evidence nor did his legal representatives chose to do so. It was the second defendant, who had contested the suit.
It was the plaintiff''s case that he was in possession as an agreement-holder and he was even paying property taxes in respect of the suit property. At the trial, the plaintiff had fielded two witnesses to support the transaction of agreement of sale. The plaintiff as well as his witnesses were subjected to cross-examination. The court below has addressed that evidence with a fine-toothed comb and has found inconsistencies, which according to the court below, was fatal to the suit. While the court below has found that the transaction entered into by the first defendant with the second defendant was valid and even though the sale deed had been executed in favour of the second defendant after the suit was filed, has held that the second defendant was a bona fide purchaser for value. And the further circumstance was that even during the pendency of the suit, the second defendant had initiated eviction proceedings against the plaintiff and the plaintiff has been evicted from the premises treating him as a tenant in respect of the premises. The finding of the court below ''hat the transaction between the plaintiff and the first defendant is not established since Exhibit P.1 cannot be construed as an agreement of sale and that there is reference to an agreement of sale in Exhibit P.1, which has not been produced before the court, is clearly an erroneous finding, since from a plain reading of Exhibit P.1, it is obvious that it is certainly an agreement of sale and the basis on which the court below has expressed that there is yet another document which is styled as an agreement of sale and the same has not been produced, is clearly erroneous. Exhibit P.2, a General Power of Attorney and Exhibit P.3, an affidavit were superfluous documents and Exhibit P.1 itself was sufficient to disclose an agreement of sale. The further finding of the court below that an independent receipt would have been executed if the plaintiff had handed over a sum of Rs. 2,25,000/- as sale price is also not tenable. There is no law which requires that a separate receipt ought to have been issued. The agreement itself acknowledges the receipt of money. The court below also having proceeded to address whether the plaintiff had the means to raise the amount involved, was again an exercise, which proceeds on extreme suspicion about the transaction.
It is also on record that an application was filed by defendant no.2 seeking the appointment of a Court Commissioner to compare the signatures and thumb impressions. The plaintiff had opposed the same, since it was for defendant no.1 to contest the execution of the agreement and in view of the first defendant having died, there was no scope for comparison of the admitted signatures and thumb impressions with the disputed ones. Accordingly, the application had been rejected. However, nothing prevented the court from appointing a Commissioner if it so chose and the court below having held that the application had been rejected at the instance of the plaintiff and therefore, the signatures not having been compared, is not a well-founded reason.
Insofar as inconsistency insofar as Exhibits P.1 to P.3 is concerned, that again is not an acceptable finding. There is no such glaring inconsistency as would render the documents invalid.
Insofar as the inconsistencies in the statements made by the witnesses for the plaintiff, who have broadly supported the case of the plaintiff, cannot be lightly discarded. Defendant no.1 or his legal representatives not having thought it fit to contest the case, except the written statement of defendant no.1 being on record, it cannot be said that defendant no.2 was in a position to contest the case in the stead of defendant no.1. Therefore, the conclusion of the court below that the agreement of sale between defendant no. 1 and the plaintiff was not established, is not a correct finding. The plaintiff had filed a suit for injunction and there was an order of temporary injunction against the first defendant dated 19.10.1995. Though the fact of such suit and order is not denied, defendant no.2 had contended that there was no indication that the same had been communicated to defendant no.1 and therefore, the sale deed executed subsequent to such an order of injunction in favour of defendant no.2, cannot be held to be bad in law. This has been accepted by the court below.
The court below also refers 10 the fact that defendant no.2 had approached the plaintiff in the month of September 1995 well before the suit was filed and was informed of the agreement of sale. Notwithstanding the same, the sale deed having been executed in favour of defendant no.2 thereafter, cannot absolve defendant nos. 1 and 2 of having acted at their risk in entering into such a transaction lis pendens.
The court below has also held that the plaintiff would not be entitled to possession of the suit property since the second defendant, after obtaining possession pursuant to the eviction of the plaintiff, under the Karnataka Rent Control Act, 1961, had demolished the existing building and hence, the suit property was now only vacant land and therefore, has rejected the prayer.
Though the learned counsel for the respondent has taken this court through the record at length, to demonstrate that the plaintiff was not a reliable person and that from his evidence, it was evident that there were many contradictions and that his bona fides were suspect, it is not possible to accept that view. Therefore, having regard to the above infirmities and the reasoning of the court below, the appeal is allowed. The judgment and decree of the trial court is set aside. The suit is decreed directing the legai representatives of the first defendant to execute a sale deed in respect of the suit property in favour of the plaintiff. The sale deed dated 30.10.1995 in favour of the second defendant executed by the first defendant being opposed to Section 52 of the Transfer of Property Act, 1882, would not be binding on the plaintiff. In the event the legal representatives fail to execute such sale deed, the plaintiff is enabled to have the sale deed executed in his favour in respect of the suit property. The plaintiff shall be entitled to have the sale deed executed in his favour through a Court Commissioner. The appellant is entitled to the costs of the proceedings.