Dismissed

Smt Chikkahanumamma Since Deceased v. Sri J N Nagaraj

Karnataka HC9 Jan 2020RSA/1070/2012

Case brief

AI extract

What is this about?

In a regular second appeal concerning specific performance of a sale agreement, the High Court of Karnataka dismissed the appeal. The Court held that the agreement was materially tampered with by inserting time limits to cure limitation issues and that the plaintiffs lacked diligence. Finding no infirmity in the lower courts' factual findings, it determined no substantial question of law arose.

What did the court decide?

The Regular Second Appeal was dismissed. No order as to costs.

Smt Chikkahanumamma Since Deceased Vs Sri J N Nagaraj — Specific Performance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JANUARY 2020

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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REGULAR SECOND APPEAL NO.1070 OF 2012 (SP)

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BETWEEN:

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SMT. CHIKKAHANUMAMMA SINCE DECEASED

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1a) SRI. J.N.NANJAPPA

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S/O LATE NANJUNDAIAH AGED ABOUT 54 YEARS

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1b) SHIVAMMA

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W/O N REVANNA

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AGED ABOUT 58 YEARS

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1c) SMT. PARVATHAMMA

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W/O HONNAPPA

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AGED ABOUT 52 YEARS

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APPELLANTS 1a to 1c ARE

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R/O JALAMANGALA VILLAGE AND POST, KOOTAGAL HOBLI, RAMANAGARAM TALUK, RAMANAGARAM DISTRICT.

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[AMENDMENT CARRIED OUT VIDE ORDER DATED 09.01.2020]

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... APPELLANTS

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(BY SRI. NARAYAN MAYYAR, ADVOCATE FOR

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SRI. S.R.HEGDE HUDLAMANE, ADVOCATE)

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AND:

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SRI. J.N.NAGARAJ S/O J.K.NARAYANAPPA AGED ABOUT 46 YEARS

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SMT. SUDHA W/O SHIVANNA, AGED ABOUT 42 YEARS

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SMT. LATHA, W/O KUMARA AGED ABOUT 38 YEARS

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SMT. SHOBHA, D/O NARAYANAPPA, AGED ABOUT 36 YEARS

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SRI. SURESH, S/O NARAYANAPPA AGED ABOUT 33 YEARS

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ALL ARE RESIDENTS OF JALAMANAGALA VILLAGE, RAMANAGARAM TALUK, RAMANAGARAM DISTRICT.

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…RESPONDENTS

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(BY SRI. NITISH, ADVOCATE FOR SRI. K.V.NARASIMHAN, ADVOCATE FOR RESPONDENT NOs.1 TO 5)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 07.03.2012 PASSED IN R.A. NO.58/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARAM, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.03.2007 PASSED IN

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O.S. NO.84/1997 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND ADDL. JMFC, RAMANAGARAM.

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THIS REGULAR FIRST APPEAL IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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In this Regular Second Appeal, the unsuccessful plaintiffs have challenged the judgment and decree dated 29.03.2007 passed by the Court of Civil Judge (Junior Division) and Addl. JMFC., Ramanagaram, in O.S. No.84/1997, which was confirmed by the Court of Senior Additional Civil Judge, Ramanagaram, in R.A. No.58/2007 in terms of the judgment and decree dated 07.03.2012.

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The plaintiffs filed a suit in O.S. No.84/1997 for specific performance of an agreement of sale dated 16.06.1987 by which the suit schedule property was allegedly offered to be sold to the husband of the plaintiff No.1 and the father of plaintiff Nos.2, 3 and 4 for a total sale consideration of Rs.9,000/- and that the defendants received a sum of Rs.4,000/- as part of the sale

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consideration. It is also stated that a further sum of Rs.4,500/- was paid on 23.06.1987, the receipt of which was allegedly endorsed on the agreement. It is stated that the defendants had agreed to execute a deed of absolute sale conveying the suit schedule property to the plaintiffs within a period of 10 years from 23.06.1987. It is also contended that the defendants had handed over possession of the suit property in favour of the plaintiffs on the date of agreement and that they are continuing in possession of the same. The plaintiffs claimed that they had to pay the balance sum of Rs.500/- to the defendants and obtain deed of absolute sale. It is stated that three years prior to filing of the suit, Nanjundaiah, the husband of plaintiff No.1, expired and thereafter, the plaintiffs demanded the defendants to execute the sale deed which when denied, prompted the plaintiffs to file the suit for specific performance.

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3. The defendants denied the execution of the

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agreement dated 16.06.1987 and also denied the receipt

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of the payment of a sum of Rs.8,500/- and further denied that they had handed over possession of the suit property to the plaintiffs. They also contended that the suit was barred by law of limitation. They further claimed that 01 Acre 10 guntas out of Sy. No.590 of Jalamangala was acquired by the Government of Karnataka for the purpose of formation of sites in A.K. colony and that the remaining 02 Acres 14 guntas was in possession of the defendants. It is also stated that after defendant No.1 expired, the names of defendant Nos.2 and 6 were entered in the revenue records and they have partitioned the suit property in terms of a partition deed dated 15.03.1991 and that the revenue proceedings pursuant to such partition was accepted in M.R. No.36/1996-97 and that they are in possession of the same.

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Based on the aforesaid rival pleadings of the parties, the Trial Court framed the following Issues and additional issue:

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“1. Whether the plaintiffs prove that the defendants executed an agreement of sale on 16.6.1987 agreeing to sell the suit schedule property in favour of late Nanjundaiah for a sum of Rs.9,000/?

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2. Whether the plaintiffs further prove that the defendants have received a sum of Rs.4,000/- on the date of agreement and sum of Rs.4,500/- on 23.06.1987 ?

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3. Whether the plaintiffs further proves that they were / are willing to perform their part of the contract?

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4. Whether the suit is not properly valued and the court fee paid is insufficient ?

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5. Whether this court has no jurisdiction to try the suit ?

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6. Whether the plaintiffs are entitled for the relief claimed in the plaint?

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7. What Decree or Order ?”

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Additional Issue: Whether the defendants prove that the suit is barred by Law of Limitation?”

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Before the Trial Court, the plaintiff No.3 was

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examined as PW.1 and four other witnesses were examined as PWs.2 to 5 and Ex.P1 was marked. On behalf of the defendants, defendant No.1 was examined as DW.1 and witness as DW.2 and they marked Exs.D1 to D12.

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The Trial Court noticed that Ex.P1 did not contain the time within which the transaction had to be concluded. In order to overcome such a technical bar. Ex.P.1 was tampered and the following words were interpolated and inserted later:

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“F ¸ÀévÀÛ£ÀÄß EA¢¤AzÀ ºÀvÀÄÛ ªÀµÀðUÀ¼À°è PÀæAiÀÄ¥ÀvÀæ §gÉ¬Ä¹ jf¸ÀÖgï ªÀiÁr¹PÉÆ¼ÀÄîªÀÅzÀÄ.”

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The Trial Court, therefore, held that this recital creates doubt about the genuineness of Ex.P1. The Trial Court also noticed that what remained to be paid was only Rs.500/- as the plaintiffs alleged that they had paid

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Rs.8,500/- out of a sum of Rs.9,000/- which was the total sale consideration. The Trial Court also noticed that there were various insertions in the agreement at page Nos.2 and 3 and thus, felt that Ex.P1 was of a doubtful nature. The Trial Court, therefore, dismissed the suit.

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Feeling aggrieved, the plaintiffs filed Regular Appeal No.58/2007 before the lower Appellate Court. The lower Appellate Court considered the facts and evidence on record and framed the points for consideration and in terms of its judgment and decree dated 07.03.2012, dismissed the appeal and consequently confirmed the judgment and decree passed by the Trial Court. The plaintiffs feeling aggrieved by the concurrent finding of fact rendered by the Trial Court and the lower Appellate Court have filed this Regular Second Appeal.

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Heard the learned counsel for the appellants and learned counsel for respondent Nos.1 to 5. Perused the lower Court records and Judgments of the Courts below.

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Having regard to the fact that under Order 42 of the Code of Civil Procedure, 1908, the provisions relating to Order 41 of the CPC., is applicable to appeals against appellate decrees, I have carefully gone through the material on record. Ex.P1 is the agreement of sale in question. It did not contain the time for completion of the transaction, which is one of essential features of a concluded contract. The agreement in question is dated 16.06.1987. Further, no effort is made by the plaintiffs to invoke the jurisdiction of the court within a reasonable time though an attempt was made by the plaintiffs to call upon the defendants to execute the sale deed, but after a long lull, the plaintiffs filed the present suit for specific performance. It was in this background and in a desperate attempt to overcome the question of limitation that at page No.4 of Ex.P1, the plaintiff has inserted the following words:

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“F ¸ÀévÀÛ£ÀÄß EA¢¤AzÀ ºÀvÀÄÛ ªÀµÀðUÀ¼À°è PÀæAiÀÄ¥ÀvÀæ §gÉ¬Ä¹ jf¸ÀÖgï ªÀiÁr¹PÉÆ¼ÀÄîªÀÅzÀÄ.”

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The plaintiffs had failed to examine any witness in proof of the contention that the aforesaid clause in page No.4 of the agreement was there when Ex.P1 was executed. It is evident that this clause is subsequently inserted as it is in a different ink and the handwriting is also different. This clause is not countersigned by the plaintiffs and the defendants and it is apparent that the agreement in question Ex.P1 is tampered by the plaintiffs only to overcome the issue of limitation.

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Once a document is materially altered, a suit for specific performance based on such materially altered document cannot lie. Even otherwise, the plaintiffs have not shown any diligence in filing the suit within a reasonable time. I do not find any infirmity in the judgments and decrees of the Court below. Therefore, the question as to whether the agreement in question was executed or not being a pure question of fact, no substantial question of law arises for consideration and hence, this appeal is liable to be dismissed.

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Hence, the Regular Second Appeal fails and is hereby

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dismissed. No order as to costs.

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Sd/JUDGE

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sma

Smt Chikkahanumamma Since Deceased v. Sri J N Nagaraj

Case brief

What is this about?

What did the court decide?

Smt Chikkahanumamma Since Deceased v. Sri J N Nagaraj

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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