Dismissed

Nagappa v. Nanjundaswamy

Karnataka HC20 Jan 2021RSA/306/2007

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of two second appeals against decrees granting specific performance and dismissing a permanent injunction suit between brothers. The court held that discrepancies in signatures and non-decided applications did not warrant remand as no prejudice was caused, and the suit for specific performance was within the limitation period.

What did the court decide?

Both the appeals were dismissed with costs. The pending applications were discharged.

Nagappa Vs Nanjundaswamy — Contract and Commercial Disputes | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

R.S.A.No.305/2007

C/W

R.S.A.No.306/2007

R.S.A.No.305/2007:

BETWEEN:

NAGAPPA S/O MARIYAPPA AGED ABOUT 57 YEARS SINCE DEAD BY LRs.

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BERIKAMMA W/O LATE NAGAPPA AGED 54 YEARS THYAVAKANAHALLI VILLAGE S.MEDAHALLI, SARJAPURA HOBLI ANEKAL TLAUK – 562 106 BANGALORE RURAL DISTRICT. ..APPELLANT

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(BY SRI BRINDA VERMA, ADVOCATE)

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AND:

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SRI NANJUNDA REDDY S/O MUNIYAPPA AGED ABOUT 66 YEARS R/AT THYAVAKANAHALLI VILLAGE, S.MEDAHALLI SARJAPURA HOBLI

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ANEKAL TALUK BANGALORE DISTRICT – 562 106. ..RESPONDENT

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(BY SRI MAHESH, ADVOCATE FOR SRI V ANAND, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.01.2007 PASSED IN R.A.No.237/2006 ON THE FILE OF THE CIVIL JUDGE(SR.DN.) AND JMFC, ANEKAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:5.3.2005 PASSED IN O.S.No.146/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,(JR.DN) AND JMFC, ANEKAL.

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R.S.A.No.306/2007:

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BETWEEN:

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NAGAPPA S/O MARIYAPPA AGED ABOUT 57 YEARS SINCE DEAD BY LRs.

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1a.BERIKAMMA W/O LATE NAGAPPA AGED 54 YEARS THYAVAKANAHALLI VILLAGE S MEDAHALLI, SARJAPURA HOBLI ANEKAL TLAUK – 562 106 BANGALORE RURAL DISTRICT-562106

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..APPELLANT

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(BY SRI BRINDA VERMA, ADVOCATE)

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AND:

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NANJUNADASWAMY S/O NAGAMMANAWARA MUNIYAPPA, AGED ABOUT 67 YEARS DYAVAKKANAHALLI VILLAGE S MEDIHALLI, SARJAPURA HOBLI, ANEKAL TALUK – 562 106 BANGALORE DISTRICT. ..RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.01.2007 PASSED IN R.A.No.233/2006 (OLD R.A.No.161/2005) ON THE FILE OF THE CIVIL JUDGE(SR.DN.) AND JMFC, ANEKAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:05.03.2005 PASSED IN O.S.No.88/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,(JR.DN) AND JMFC, ANEKAL.

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THESE RSAs COMING ON FOR ORDERS THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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These are the two appeals directed against the

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Judgment and decree dated 02.01.2007 passed in R.A.Nos.233/2006 and 237/2006 by learned Civil Judge, Senior Division and JMFC, Anekal.

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The two regular appeals that were disposed of by the appellate court in R.A.No.233/2006 (old No.161/2005) and R.A.237/2006 (old No.162/2005) it pertains to two original suits O.S.No.146/2002 and O.S.No.88/2002. O.S.No.88/2002 is filed by one Nagappa seeking permanent injunction in respect of the suit schedule property which is stated to be a land in Sy.No.118/1 which came to be dismissed on 05.03.2005. O.S.No.146/2002 is filed by

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Nanjundareddy, S/o Nagammanavara Muniyappa for specific performance which came to be decreed on 05.03.2005. Being aggrieved by the Judgment and decree dated 05.03.2005, Nagappa preferred appeals in R.A.Nos.236/2006 and 237/2006 wherein appeals came to be dismissed on 02.01.2007. Being aggrieved by the said Judgment and decree, Nagappa has preferred these two second appeals.

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3. In order to avoid overlapping and conflicting of

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the cases the parties are addressed in accordance with their nomenclature.

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4. It is necessary to observe both Nagappa and

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Nanjundareddy are siblings being sons of one Nagammanavara Muniyappa. According to their say partition was effected in respect of joint family properties. Because of the interference by Nanjundareddy, Nagappa filed a suit for permanent injunction in O.S.No.88/2002 on the file of the Principal Civil Judge, Junior Division and JMFC, Anekal. Meanwhile Nanjunda Reddy filed a suit for specific performance in O.S.146/2002 claiming that Nagappa entered into a sale agreement on 10.03.1995 and agreed to sell the schedule property in full and received the sale consideration in full and delivered the possession of schedule property to elder brother

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Nanjundareddy. Nagappa denied the entire

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transaction and receipt of sale consideration. It was Nagappa who filed a suit for permanent injunction seeking to restrain Nanjundareddy from interference.

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Both the trial court and first appellate court in their respective suits and regular appeals dismissed the claim and contention of Nagappa and allowed the claim and contention of Nanjundareddy. In the result suit filed by Nagappa for permanent injunction in respect of the schedule property came to be dismissed. Suit filed by Nanjundareddy for specific performance of sale agreement dated 10.03.95 came to be allowed. Operative portion in both the suits are as under:

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“Suit of the plaintiff in O.S.146/00 is decreed. The defendant herein is directed to get the sale deed registered in favour of

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plaintiff within three months from the date of this order. Failing which plaintiff is at liberty to get the sale deed registered through the process of court.

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Suit of the plaintiff in O.S.88/02 is hereby dismissed. In the circumstances there is no order as to costs.

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The original of the judgment shall be kept in O.S.146/02 and the copy of the same shall be kept in O.S.88/02.”

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Trial Judge was accommodated with the oral

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evidence of PW-1 –M.Nagappa and DW-1Nanjundareddy, DW-2- Mariyappa and DW-3- Rajappa

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and documentary evidence Exhibits P-1 to P-9 on behalf of plaintiff and Exhibits D-1 to D-10 on behalf of the defendant and Exhibits C-1 to C-2(a).

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This court framed substantial questions of law on

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13.01.2010 as under:

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“(i) Whether the First Appellate Court was justified in arriving at a finding that the respondent was in possession of the suit property without any oral or documentary evidence in that regard except the agreement of sale which was stoutly denied by the appellant.

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(ii) Whether the First Appellate Court was justified in negating the additional evidence that was sought to be produced by the appellant, which was crucial in determining the genuineness of the agreement of sale, which was sought to be relied upon by the respondent.”

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In the circumstances I find another additional

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substantial question of law arises for consideration:

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“Whether the non discussion of the application had material impact on the Judgment in both the cases?”

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Learned counsel Smt.Brinda for appellant

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submits though it is written in Ex.D-2 that full consideration was received and possession was delivered the reality is otherwise. No such agreement was entered into nor sale consideration was received nor any possession delivered. Learned counsel further submits that even today Nagappa is in possession of the schedule property and that the document Ex.D-2 in O.S.No.146/2002 is forged and concocted and same is not enforceable. In this connection she would submit Nagappa the defendant in O.S.No.146/2002 had filed application. Learned counsel would submit the trial court neither allowed it nor rejected nor discussed about it in the course of Judgment. Similarly before the first appellate court one more

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application was filed for summoning the records from

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the Commissioner of Stamps because the endorsement issued by the said Commissioner

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indicates the stamp vendor whose name is Raju K. is not a stamp vendor enrolled in the register.

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Learned counsel Sri.Mahesh for respondent would submit that the pleadings of Nagappa are nothing but a combination of false claim and lame excuses. There is no cause of action to the suit. Nagappa filed O.S.No.88/2002 only to black mail Nanjundareddy.

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Appeals are filed under Section 100 CPC against the concurrent findings.

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In the circumstances the question of law framed on the earlier occasion, presenting of document of the

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plaintiff or defendant in a suit for permanent injunction has to be visualized with the nature of the claim and may or may not depend on written documentary evidence more particularly when a case is based on a particular document stated to have been executed by the other party it shall be produced as per the rules of evidence. There are suits which may not purely depend on the documents. The substantial dependence may be on circumstances like determination of legitimacy of children, factum of marriage, adoption and related. Insofar as Nagappa is concerned admittedly he is owner of the schedule property that was granted to him in the partition as stated above. There is no question of disputing his ownership whether in respect of the title or revenue or khatha entries.

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Agreeing with the submission made by learned

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counsel Smt.Brinda I find all the documents are in favour of Nagappa but on flip side it is bound to be in the name of Nagappa only because Nanjundareddy the elder brother of Nagappa had filed a suit for specific performance against Nagappa in O.S.No.146/2002 that itself is a conclusive evidence

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to hold that Nanjundareddy unequivocally admitted Nagappa’s title even otherwise both the parties stand is that joint family properties were divided. Thus there is no an inch Nanjundareddy claimed against Nagappa but fact of the matter is the brothers turned to be buyer and seller by virtue of sale agreement stated to have been executed by Nagappa which is denied by him. Here I got to remind, the domain of the court to identify substantial question of law which is involved therein. The question of law already framed regarding validity or irregularity of the decree

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passed by the trial court but I find the substantial question of law framed today is regarding impact of non discussion of application. The application filed by Nagappa in the trial court is marked as I.A.4 that is not disposed of by the trial court and insofar as another application filed in the appellate court marked as I.A.1 is for additional evidence to secure the additional evidence from stamp authority regarding stamp paper which was stated to be a fake one and no such stamp vendor was there. The trend of the trial court or appellate court in not at all whispering the matter about filing of the document is not proper. When an application is filed before the court it is the duty of the court to tell the fate of the application whether it is allowed or not allowed the question is totally different. Whether the result of the application whatever material change the result or finding is all that is to be looked or considered. When an

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application is filed it is also the duty of the counsel to present before the Judge regarding the pendency of application moreso the trial Judge and appellate Judge should have looked into the application and given finding on the same. Disposal of the case if it is a civil case represent disposal of issues claims, application, interrogatories and related. Similarly in the criminal case all charges framed must be answered. Now the real question would be application is not decided both filed for summoning the document for scientific verification by experts and application filed for filing additional evidence. Now it is necessary to note Section 73 of the Evidence Act which is as under:

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“73. Comparison of signature, writing or seal with others admitted or proved –

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In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the

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Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

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The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

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[This section applies also, with any necessary modifications, to fingerimpressions.]

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Nagappa appears to be intelligent enough as could be seen from his plaint in O.S.No.88/2002. He does not sign in the first page, second page, third page and the fourth page of his plaint. However, makes sure his sign is in the fourth page at the end and after verification. For bare eyes, between the two

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signatures made by Nagappa variation appeared. The intelligence of said Nagappa continues even for the written statement filed by him, he does not sign on the first page, second page, third page and fourth page, but signs at the end of the written statement and the verification. It may be for the reasons best known to Nagappa.

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But one thing is to be understood that among the available admitted signatures of Nagappa itself, he makes variation and on the agreement his signature seen. On perusing the document, I find the trial Court and the first appellate Court were convinced and came to a same finding regarding the signature of Nagappa.

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Now the question is, Section 73 of the Indian Evidence Act is always to be read along with Section

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45 of the Indian Evidence Act, which reads thus:

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73. Comparison of signature, writing or seal with others admitted or

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proved. –– In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

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45. Opinions of experts .–– When the

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Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting, 2[or finger impressions], the opinions upon that point

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of persons specially skilled in such foreign law, science or art, 3[or in questions as to identity of handwriting] 2[or finger impressions] are relevant facts. Such persons are called experts.

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The difference between an expert and the Court verification would be: an expert is a specialized person who has made a research and studies regarding science of verifying handwriting and signatures between the admitted and disputed one as a science. However, insofar as the Court is concerned, it has an opportunity of looking to the approach of the plaintiff, defendant, their conduct, context, body language, presentation of the case, omission to do what was bound to be done and doing something that was not supposed to be done.

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The appearance of the signatures on the vakalat, avoiding of signatures on four pages of plaint in O.S.No.88/2002, similarly in the written statement in O.S.No.146/2002 tells something on Nagappa, who can make signature and make statement and later took up unjustifiable stand.

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Insofar as if the stamp paper of the stamp vendor is not genuine, that is not considered by the trial Court nor the first appellate Court. I don’t find any prejudice or miscarriage has happened to the case on hand. Now here is a case wherein the grievance of the appellant is two applications, one filed before the trial Court and another one filed before the first appellate Court were not at all considered nor disposed of. At the first impression, I find it is not proper on the trial judge or the first appellate judge to do so. However, insofar as the signature is concerned

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the technique and negative techniques, avoiding approach establish that Nagappa avoided and suppressed the truth regarding execution of the agreement, I find no miscarriage of justice or prejudice has happened even if the application is not considered, except that we can say an application which is not considered and non-consideration has zero impact on the case, there is no purpose in sending back for discussion on the agreement. However, insofar as this Court is concerned I find that there is no necessity of sending the signature for handwriting expert and also there is no necessity to verify the endorsement.

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In this connection Order 13 Rule 10 is necessary to be mentioned.

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O XIII R 10. Court may send for papers from its own records or from other courts .- (1) The court may of its own

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motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other court, the record of any other suit or proceeding, and inspect the same.

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(2) Every application made under this rule shall (unless the court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain duly authenticated copy of the record or of such portion thereof as to applicant requires, or that the production of the original is necessary for the purposes of justice.

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(3) Nothing contained in this rule shall be deemed to enable the court to use in evidence any document which under the law of evidence would be inadmissible in the suit.

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Thus the answer to substantial question of law

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framed now is that when no prejudice, no change and zero impact is there regarding non consideration of the application for substantial purpose, I find there is no necessity of remanding the matter for discussion in this regard.

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Learned counsel for the appellant would further submit that if we look at the alleged signatures of Nagappa, a straight line clears after 75% on the top of the signatures and the name of the party at the backside of the stamp paper. I don’t find any substantial defect or relevance is there in the said submission.

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The date of sale agreement is on 10.03.1995 and date of filing of the suit in O.S.No.88/2002 was on 08.08.2002. Time limit is not prescribed in the agreement. Seller undertakes to execute the sale

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deed whenever requested by the purchaser. Law of limitation is quite simple and the limitation for filing a suit for specific performance is three years commencing from the due date. In this connection, suit for permanent injunction in O.S.No.88/2002 was

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filed by Nagappa on 08.08.2002 and filing of the suit literally amounts to refusal under the Contract Act. In the Contract Act it is well settled that breach of contract may be actual or anticipatory. Actual breach is directly violating the terms of the agreement. Anticipatory breach is doing some act which manifests and sends message that he has no interest to perform the terms of the contract. Applying the said principle when Nagappa filed a suit in the month of August, 2002 for permanent injunction literally it is nothing but the refusal or denial of the agreement and within four months it is being filed.

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Refusal of the sale agreement directly or indirectly in the plaint was first made and there is no hiccup regarding calculation of the time and the suit was filed within time. There is no infirmity or illegality, perversity or arbitrariness in the judgment passed by the trial court. I find there is no occasion to interfere. The substantial questions of law are answered accordingly. Hence the following:

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ORDER

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Both the appeals are dismissed with costs.

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The applications stated above stand disposed of accordingly.

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Sd/JUDGE

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SBN/KMV

Nagappa v. Nanjundaswamy

Case brief

What is this about?

What did the court decide?

Nagappa v. Nanjundaswamy

Case brief

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What did the court decide?

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