Dismissed

Sri Kadareppa v. Sri Yallappa Mahadevappa Kalsoor

Karnataka HC5 Apr 2021RSA/1540/2006

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against the dismissal of a suit for specific performance. The court held that the sale deed was absolute and the alleged agreement to reconvey lacked validity due to non-signature on all pages. It affirmed that High Courts cannot reappreciate evidence in second appeals unless findings are perverse.

What did the court decide?

Appeal dismissed; judgment and decree confirming original suit dismissal affirmed.

Sri Kadareppa Vs Sri Yallappa Mahadevappa Kalsoor — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 05^TH DAY OF APRIL, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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REGULAR SECOND APPEAL NO.1540 OF 2006

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Between:

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Sri Kadareppa S/o Basappa Timmapur Aged 50 years Occ: Agriculture Resident of Tadas Taluk: Shiggaon District: Haveri …Appellant (by Smt. Hemalekha K.S., Advocate for Shri G. Balakrishna Shastry, Advocate) And: Sri Yallapa Mahadevappa Kalsoor Aged 51 years S/o Mahadevappa Kalasur R/o Tadas Taluk: Shiggaon District: Haveri 581 212

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…Respondent (by Shri Mahantesh R. Patil, Advocate)

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This Regular Second Appeal is filed under filed Section 100 of Code of Civil Procedure against the judgment and decree dated 2.2.2006 passed in RA No.70 of 2005 on the file of the Presiding Officer, FTC, Haveri, dismissing the appeal and confirming the

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judgment and decree dated 11.04.2003 passed in OS No.42 of 1996 on the file of the Civil Judge (Jr. Dn.), Shiggaon, and etc. This Regular Second Appeal coming on for final hearing, this day, the Court delivered the following:

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J U D G M E N T

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This Second Appeal is preferred by the plaintiff in Original Suit No.42 of 1996 on the file of Civil Judge (Jr. Dn.) and JMFC at Shiggaon, dismissing the suit; and being aggrieved by the same, plaintiff has preferred Regular Appeal No.70 of 2005 on the file of the Fast Track Court, Haveri and the First Appellate Court, by judgment and decree dated 02^nd February, 2006 dismissed the appeal and as such, confirmed the judgment and decree passed by the trial Court. Being aggrieved by the same, plaintiff has preferred this second appeal.

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For the sake of convenience, the parties in this appeal are referred to with their rank before the trial Court.

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It is the case of the plaintiff that the sale deed dated 16^th January, 1996 was executed by him insofar as land bearing survey No.401/2 measuring 3 acres of Tadas village, Shiggaon Taluk. It is the case of the plaintiff that he is the owner in

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possession of the suit schedule property and there were some transaction between the plaintiff and the defendant and as such, he has executed a nominal sale deed. It is further averred in the plaint that the Sub-Registrar has raised objection with regard to the valuation and accordingly, the sale deed was impounded and the same was reported by the Sub-Registrar to the District Registrar stating that the consideration amount shown in the document is Rs.15,000/-, however, the guidance value is Rs.45,000/- per acre and as such, improper valuation is made, which requires impounding of the document. Thereafter, the District Registrar issued notice to the plaintiff and the defendant seeking explanation regarding the impoundment of the said sale deed for want of proper valuation. It is averred in the plaint that the plaintiff and the defendant replied that they are not intending to act upon the sale deed and requested the District Registrar to cancel the same. It is further averred in the plaint that the defendant had agreed to re-convey the said property in favour of the plaintiff and as such, the defendant has entered into an agreement to re-convey on 18^th March, 1996. It is further averred in the plaint that the District Registrar, after

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considering the material on record, fixed the valuation of the suit land at the rate of Rs.18,000/- per acre and the same was sent to Shiggaon Sub-Registrar, who in turn, registered the sale deed on 16^th January, 1996. It is further stated in the plaint that both the plaintiff and the defendant had approached the SubRegistrar, Shiggaon requesting him to cancel the sale deed and in view of the same, the Sub-Registrar, Shiggaon directed both the parties to approach the Court for cancellation of the sale deed. It is further averred in the plaint that though the defendant has agreed at the initial stage to cancel the sale deed dated 16^th January, 1996, however, failed to cancel the sale deed and as such the plaintiff filed Suit in OS No.42 of 1996 on the file of Civil Judge (Jr.Dn.), Shiggaon seeking decree of specific performance of contract as per agreement entered into between the defendant and plaintiff on 18^th March, 1996. After service of summons, the defendant entered appearance and filed written statement denying the plaint averments. It is the defence of the defendant that pursuant to the execution of sale deed, he was put into possession in respect of the suit schedule property and pursuant to the registration of sale deed, he

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became the absolute owner in possession of the suit land and thereafter, the name of the defendant was mutated in the revenue records and the same was questioned by the parties to the lis. However, the Deputy Commissioner has passed an order to the effect that since the suit is pending before the competent Court, the result of the suit would be binding on the parties. The defendant contended that he never executed any agreement in favour of the plaintiff to re-convey the suit schedule property in favour of the plaintiff and accordingly, sought for dismissal of the suit.

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The trial Court, after considering the pleadings on record, framed issues for its consideration. The plaintiff, in order to prove his case, examined himself as PW1 and got examined four witnesses as PW2 to PW5. Plaintiff has produced eight documents and the same were marked as Exhibits P1 to P8. Defendant was examined as DW1 and he has produced seven documents and the same were marked as Exhibits D1 to D7. The trial Court, after considering the material on record, by its judgment and decree dated 11^th April, 2003 dismissed the suit of

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the plaintiff. Being aggrieved by the same, the plaintiff preferred Regular Appeal No.70 of 2005 on the file of the Fast Track Court, Haveri and the said appeal was resisted by the defendant. The first appellate Court, after re-appreciating the material on record, by its judgment and decree dated 02^nd February, 2006 dismissed the appeal, consequently, confirmed the judgment and decree dated 11^th April 2003 passed in OS No.42 of 1996 by the trial Court. Being aggrieved by the judgment and decree passed by the First Appellate Court, the plaintiff has preferred this second appeal.

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I have heard Smt. Hemalekha K.S., learned counsel appearing for the appellant/plaintiff and Shri Mahantesh R. Patil, learned counsel appearing for the respondent/defendant.

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This Court, vide order dated 30^th November, 2009 framed the following substantial questions of law for consideration:

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“1. Whether the courts below were right and justified in brushing aside Exhibit P4 and 5, the statements given by the plaintiff and the

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defendant before the District Registrar stating that they would cancel the sale transaction, by way of reply to the notice issued calling upon them to show cause why the document/sale deed dated 20.03.1991 should not be impounded due to insufficiency of Stamp duty?

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Whether the courts below erred in holding that Exhibit P4 and Exhibit P5 statements were not got written by the plaintiff as per his convenience without referring to any material in support of its conclusion?

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Whether the courts below are right in holding that Ex.P1 sale deed was an out and out sale and not nominal one?

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In the wake of the evidence of PWs 2, 3, 4 and 5 whether the courts below were justified in holding that Ex.P7 was not proved”

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Smt. Hemalakha, K.S., learned counsel appearing for the appellant vehemently contended that the sale deed dated 16^th January, 1996 is only a nominal sale deed and the plaintiff never intended to sell the suit schedule property in favour of the defendant. She further contended that both the parties to the lis

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have agreed to cancel the said sale deed before the District Registrar at the time of hearing with regard to impoundment of document on the ground of improper valuation. She further contended that both the courts below have not properly appreciated the evidence of the parties to the lis. It is her submission that though the plaintiff has examined the attesting witnesses to the Exhibit P7, i.e. PWs.2 and 3 and also scribe to the said document-PW5, the trial Court has not properly appreciated the evidence of the parties as required under law and therefore, the finding recorded by the trial Court requires to be interfered with in this second appeal. She further contended that the trial Court, on surmises and conjunctures, assumed certain things which are not contained in Exhibit P7 and rejected the relief sought for by the plaintiff with regard to the specific performance. Accordingly, she submitted that the finding recorded by the trial Court requires to be interfered with in this appeal.

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She further contended that the First Appellate Court

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ought to have exercised its power as required under Order XLI

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Rule 31 of the Code of Civil Procedure and re-appreciated the entire material on record before confirming the judgment and decree passed by the trial Court. Referring to the finding recorded by the trial Court, she contended that the first Appellate Court, on whimsical ground, did not re-appreciate the entire material on record and thereby caused miscarriage of justice, which requires to be set right in this appeal.

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Per contra, Shri Mahantesh R. Patil, learned counsel appearing for the respondent submitted that both the courts below have concurrently held against the plaintiff with regard to relief of specific performance. He further contended that pursuant to the execution of Exhibit P1, the defendant issued Notices Exhibits D3 and D4 to the plaintiff and the same were not replied to by the plaintiff and in that view of the matter, both the Courts below held against the plaintiff that Exhibit P7 is just and proper, which do not require any interference in this appeal.

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Having heard the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the courts below and perused the documents. Referring to the

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substantial questions of law to be answered in this appeal, I have carefully examined Exhibits P4 and P5. It is the case of the plaintiff before the trial Court that Exhibit P1 is only a nominal sale deed made in favour of the defendant in respect of suit land as security for the hand-loan of Rs.15,000/- availed from the defendant. Careful examination of Exhibit P1 does not refer to any such hand loan advanced by the defendant to the plaintiff, as urged by the plaintiff. Nothing is stated in Exhibit P1 with regard to the availing of the loan in a sum of Rs.15,000/- and as such, Exhibit P1 came to be executed as a security. Perusal of Exhibit P1 would indicate that the sale consideration amount was shown in the document as Rs.15,000/- and thereby the SubRegistrar has raised objection with regard to valuation, inter alia, the matter was referred to the District Registrar under Section 39 of the Karnataka Stamp Act, 1957. The District Registrar conducted a summary enquiry, as required under the provisions of the Stamp Act, and given personal hearing to the parties. Exhibits P4 and P5 are the replies made by the defendant and the plaintiff respectively. I have carefully considered the contents of the said documents. Though the Sub-Registrar has

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raised objection insofar as the payment of stamp duty, however, arrived at a conclusion that payment of stamp duty was assessed as Rs.18,000/- as per Exhibit P8. It is settled principle of law that in a summary enquiry to be held by the Deputy Commissioner under Section 39 of the Stamp Act. Stamp duty is to be paid by the parties to the document as agreed to pay as per the documents. In the instant case, perusal of Exhibit P1 would indicate that the defendant has agreed to incur stamp duty and in this regard, I am of the considered opinion that the stamp duty with regard to Exhibit P1 is concerned, the same would be between the State and the defendant and the plaintiff is in no way concerned. In that view of the matter, relevancy of Exhibit P5 cannot be a basis to arrive at a conclusion that the said Exhibit P1 is a nominal sale deed or with regard to the fact that the defendant has agreed to re-convey the property as per Exhibit P7. I have carefully examined the finding recorded by the trial Court, particularly, at paragraphs 17 and 18 of the impugned judgment and decree passed by the trial Court, wherein the trial Court, having considered the entire facts on record, has arrived at a conclusion that the plaintiff has failed to

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prove his case with regard to seeking relief of specific performance, as narrated in the plaint. Though the learned counsel appearing for the appellant argued that the trial Court has not properly assessed the evidence of PWs.2, 3 and 5 who were the attesting witnesses and scribe to Exhibit P7, however, the careful examination of the documents, particularly, Exhibit D2-Notice dated 04^th April, 1996 and Exhibit D4 would indicate that, the defendant has denied the execution of Exhibit P7 stating that his signature was obtained on the blank stamp paper. I have also noticed Exhibit P7 which is signed only on one side leaving apart the other side (first page). It is settled principle of law that any agreement to be entered into between the parties mean consensus ad idem , i.e. requires to be signed on all the pages.

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In this regard, it is useful to refer to the judgment of the High Court of Calcutta in the case of SRI BHADRESWAR PANDIT AND OTHERS v. SMT. PUSPA RANI PANDIT reported in AIR 1991 CALCUTTA 405 wherein at paragraph 8 of the judgment, it is observed thus:

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“ …a finding of fact by the lower appellate court, whether concurrent with the lower Court or not, can be reconsidered in suitable cases on second appeal if the finding is on no evidence or non-consideration of proper evidence or omission to consider the entire evidence. In all such cases non-consideration of evidence would be a point of law within the scope of section 100 of the Civil Procedure Code. The point admits of different interpretations and there have actually been divergent interpretations but the ratio decidendi seems to be that in a second appeal evidence on facts can be reappraised in suitable cases to prevent the miscarriage of justice. ”

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Having considered the finding recorded by the trial Court, particularly, with regard to issue No.1, I am of the considered opinion that the trial Court having analysed the entire evidence on record and on appreciation of the testimony of all the parties to the suit, had rightly dismissed the suit of the plaintiff. I have also carefully considered the finding recorded by the first Appellate Court and the first Appellate Court, in detail, re-appreciated the material on record in the right perspective and being the last Court on finding of fact, the first Appellate Court has dealt with the issues raised in the suit as held by the Hon'ble Supreme Court in the case of SANTOSH HAZARI v.

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PURUSHOTHAM TIWARI reported in 2001 SCC (3) 179, and dismissed the appeal.

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In this regard, it is useful to refer to the judgment of the Hon'ble Supreme Court in the case of LAXMIDEVAMMA AND OTHERS v. RANGANATH AND OTHERS [(2015)4 SCC 264], where at paragraphs 13 and 16 of the judgment, the Hon’ble Supreme Court has observed as under:

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“13. Based upon oral and documentary evidences, the courts below have recorded concurrent findings that the plaintiffs are the owners of 'A' schedule property. While so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact. …

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*** ***

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16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In

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exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.”

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In the case of THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERS reported in (2019) 6 SCC 409, at paragraphs 7.2 and 7.3 of the judgment, the Hon’ble Supreme Court has observed thus:

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“7.2 As observed and held by this Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722, in the Second Appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

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(i) Contrary to the mandatory provisions of the applicable law;

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(ii) Contrary to the law as pronounced by the Apex Court;

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(iii) Based on inadmissible evidence or no evidence.

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It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.

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7.3 When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held:

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10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.

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11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion.

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12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible.

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13. In either of the above situations, a substantial question of law can arise.”

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The Hon’ble Supreme Court in the case of S. SUBRAMANIAN v S RAMASAMY ETC. reported in AIR 2019 SCC 3056, at paragraphs 8.1, 8.2 and 8.5 of the judgment, has observed thus:

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“ 8.1. …As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to reappreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.

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8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the

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case of Kondiba Dagadu Kadam, in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous….

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8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has reappreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts

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below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of Code of Civil Procedure. High Court to reappreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC. ”

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Having considered the fact that both the courts below

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have concurrently held against the plaintiff that the plaintiff has failed to prove Exhibit P7 and having considered the substantial questions of law as framed above, I am of the considered opinion that the substantial questions favour the defendant and goes against the plaintiff. Hence the following:

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O R D E R

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1. Appeal is dismissed;

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The Judgment and decree dated 02^nd February 2006 passed in Regular Appeal No.70 of 2005 by the Presiding Officer, Fast Track Court, Haveri confirming the Judgment and decree dated 11^th April, 2003 passed in Original Suit No.42 of 1996 by the Civil Judge (Jr.Dn.), Shiggaon is affirmed.

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Sd/JUDGE

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lnn

Sri Kadareppa v. Sri Yallappa Mahadevappa Kalsoor

Case brief

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Sri Kadareppa v. Sri Yallappa Mahadevappa Kalsoor

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