Dismissed

Wahab Sab S/O. Dastagir Sab Since Dead by Lrs v. Amjad Pasha S/O. Abdul Majeed

Karnataka HC20 Apr 2023RSA/873/2009

Case brief

AI extract

What is this about?

Regular second appeal against a First Appellate Court order which dismissed the plaintiff's suit for specific performance but decreed recovery of Rs.8,000. The High Court found no infirmities in the lower appellate judgment confirming the decree for money recovery.

What did the court decide?

First Appellate Court judgment dated 09.02.2009 in R.A.No.4/2007 is confirmed; appeal dismissed with costs.

Wahab Sab S/O. Dastagir Sab Since Dead by… — Contract and Commercial Disputes | Karnataka HC (2023)

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RSA No. 873 of 2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF APRIL, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 873 OF 2009 (SP)

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BETWEEN:

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WAHAB SAB S/O. DASTAGIR SAB SINCE DEAD BY LRS. JAMILABI W/O WAHAB SAB , AGE 63 YEARS, OCC. HOUSE WIFE, R/O PILLANGERE VILLAGE,

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HOLALUR HOBLI,

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SHIMOGA TALUK AND DIST- 577201

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YASEEN S/O LATE WAHAB SAB AGED ABOUT 53 YEARS, OCC. HOUSE WIFE, R/O PILLANGERE VILLAGE, HOLALUR HOBLI SHIMOGA TALUK AND DIST - 577201.

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Digitally signed by HARSHITHA B Location: High Court of Karnataka

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ABDUL SATTAR S/O LATE SATTARSAB AGED ABOUT 51 YEARS. OCC. COOLIE, R/O DASARA KALLAHALLI, VILLAGE BHADRAVATHI TALUK SHIMOGA DIST- 577201

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MOHAMMED GHOUSE @ ABDUL KHADAR S/O LATE WAHABSAB DEAD BY L.RS.

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SHAHINA W/O LATE MD. GHOUSE, AGE 42 YEARS, OCC HOUSEHOLD, R/O CHIKKAMATTI, SHIMOGA TALUK AND DIST- 577201

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AFSANA D/O LATE MD. GHOUSE AGED ABOUT 6 YEARS, MINOR, CHIKKAMATTI, SHIMOGA TALUK AND DIST - 577201

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MUSTAFA S/O LATE MD. GHOUSE AGED ABOUT 6 YEARS, MINOR, CHIKKAMATTI, SHIMOGA TALUK AND DIST- 577201

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RSA No. 873 of 2009

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MUBHARAK D/O LATE MD. GHOUSE AGED ABOUT 4 YEARS, MINOR, CHIKKAMATTI, SHIMOGA TALUK AND DIST - 577201 APPELLANTS 5 TO 7 ARE MINORS REPRESENTED BY THEIR MOTHER GUARDIAN SHAHINA 4TH APPELLANT.

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MUNNA @ MUJABEER S/O LATE WAHAB SAB, AGED ABOUT THIRTY YEARS, R/O PILLANGERE VILLAGE HOLALUR HOBLI SHIMOGA TALUK AND DIST - 577201

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...APPELLANTS

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(BY SRI. VINOD GOUDA, ADVOCATE)

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AND:

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AMJAD PASHA S/O. ABDUL MAJEED AGE :MAJOR, OCC AGRICULTURE, R/O PILLANAGERE VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK AND DIST - 577201

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CHOTUSAB S/O LATE WAHAB SAB AGED ABOUT THIRTY FOUR, OCC: AGRICULTURE, R/O PILLANGERE VILLAGE, HOLALUR HOBLI SHIMOGA TALUK AND DIST - 577201

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…RESPONDENTS

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(BY SRI. MADHUKAR M DESHPANDE,ADVOCATE FOR R1; R2 SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 9.2.2009, PASSED IN R.A.NO.4/2007 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) & CJM, SHIMOGA, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 30.10.2006 PASSED IN OS.NO. 630/1996 ON THE FILE OF THE I ADDL.CIVIL JUDGE (JR.DN.), SHIMOGA.

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THE ABOVE APPEAL HAVING BEEN HEARD ON 16.02.2023 AND RESERVED FOR JUDGMENT, COMING ON FOR “ PRONOUNCEMENT OF JUDGMENT ” THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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RSA No. 873 of 2009

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JUDGMENT

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The above regular second appeal is filed by the defendants seeking to set aside the judgment and decree dated 09.02.2009 passed in R.A.No.4/2007 by the Prl. Senior Civil Judge & CJM, Shimoga.

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The parties are referred to as per their rank

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before the Trial Court for the sake of convenience.

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The plaintiff filed the suit in O.S.No.630/1996

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for specific performance of contract and permanent injunction.

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Brief facts of the case of the plaintiff is that, the plaintiff is the absolute owner of suit property had entered into agreement with defendant in writing on 07.02.1994 agreeing to sell the suit schedule property in favour of the plaintiff for sale price of Rs.8,000/- and on the same day

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the defendant had delivered and put the plaintiff in actual possession of the suit property in part performance of the said agreement. Since the 1st defendant had paralysis

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RSA No. 873 of 2009

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stroke during relevant time and he was unable to move about and he authorized to bring the stamp paper to execute the agreement. The plaintiff is ready and willing to perform his part of contract. Virtually there is nothing left to be performed by the plaintiff under the said agreement except obtaining the sale deed from the 1st defendant. As the property was not yet properly measured and demarcated, the 1st plaintiff has agreed to get the said property measured and thereafter consented to execute the registered sale deed. On the basis of agreement of

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sale, the plaintiff has dug trenches and pits on the suit schedule property with an intention to lay foundation over the same to construct residential house for personal occupation. 15 days prior to 6.11.1996, the plaintiff had collected boulders and other building materials near the suit property to proceed with the construction. The defendant No.1 gave a false complaint to the Rural police station. When the plaintiff was called by the police, he explained them the true facts and showed the agreement and then they were satisfied, they have also advised the

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RSA No. 873 of 2009

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1st defendant to avoid litigation. Hence the defendants had chosen to file the suit. In view of the hostile attitude of 1st defendants, the plaintiff got issued legal notice calling upon the 1st defendant to perform his part of contract. For that the 1st defendant has issued untenable reply. On all these grounds, sought for decree the suit.

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In response the suit summons, the defendant appeared through his counsel and filed the written statement, denying all the allegations made in the plaint. It is further contended that the plaintiff is a big money lender in the village. The defendant was suffering from paralysis stroke, as such he obtained loan of Rs.2,000-00 for his treatment. The plaintiff obtained the LTM of defendant on various blank papers and later on repaid Rs.1,000-00 through his wife and children in presence of Iqbal ahmed and balance with interest remain unpaid. The family of the defendant is big and growing one, as such they were need of accommodation and they intended to extend the house over the adjacent vacant site. He had

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RSA No. 873 of 2009

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also obtained license from the panchayath for construction of additional portion. At that time, the plaintiff attempted

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to trespass and interfere with the possession of the defendant. The defendant promptly lodged the complaint. Hence, he had filed suit in O.S.No.582/1996 and obtained interim order. The plaintiff being aggrieved has concocted the suit documents to create false evidence by misusing the LTM's of the defendant on blank papers in collusion with his henchmen to knock of the valuable property of not less than Rs.40,000/- for a throw away price of Rs.8,000/-. Hence, the alleged agreement of sale is neither genuine nor enforceable. On all these grounds, sought for dismissal.

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On the basis of pleadings, the Trial Court has framed the following issues:

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1. Whether the plaintiff proves that the defendant entered into an agreement with the plaintiff on 7.2.1994 agreeing to sell the suit schedule property?

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RSA No. 873 of 2009

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2. Whether the plaintiff proves that he has paid the entire sale price of Rs.8,000-00?

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3. Whether the plaintiff proves that the defendant delivered the possession of the suit schedule property on 7.2.1994 and is in possession since then?

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4. Whether the plaintiff proves that he was always ready and willing to perform his part of contract?

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5. Whether the plaintiff is entitled for specific performance of the contract dated 7.2.1994, as prayed for?

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6. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?

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7. What order or decree?

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To prove the case of the plaintiff two witnesses

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are examined as PWs.1 and 2 and got marked Exs.P1 to P14. On closure of plaintiff's side evidence, defendant No.1(e) examined as DW.1 and got marked Exs.D1 to 17.

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RSA No. 873 of 2009

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On hearing arguments on both sides, the Trial

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Court has dismissed the suit of the plaintiff/Amjad Pasha S/o Abdul Majeed.

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The Trial Court has passed the common judgment in O.S.No.630/1996 and O.S.No.582/1996. The Trial Court has dismissed the suit of the plaintiff in O.S.No.630/1996 and decreed the suit filed by Wahab Sab in O.S.No.582/1996. Being aggrieved by the judgment and decree passed by the Trial Court in O.S.No.630/1996 and O.S.No.582/1996 dated 30.10.2006, Amjad Pasha who is plaintiff in O.S.No.630/1996 has preferred appeal in R.A.No.4/2007. Amjad Pasha has not preferred any appeal against the judgment passed in O.S.No.582/1996. On hearing both sides, the First Appellate Court has framed the point for consideration:

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1. Whether the appellant-Amjad Pasha proves that the judgment and decree passed by the Trial Court in O.S.No.630/1996 dated 30.10.2006, is illegal?

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RSA No. 873 of 2009

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2. Whether appellant proves that is there any interference by this appellate court in the judgment and decree passed by the Trial Court in O.S.No.630/1996 dated 30.10.2006?

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3. What order?

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The First Appellate Court has given findings as

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under:

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Point No.1 : Partly in the negative Point No.2 : In the affirmative. Point No.3 : As per final order for the following:

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and the operative portion of the order is as under:

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1. The Appeal filed by the appellant-Amjad Pasha is hereby allowed in part.

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2. The judgment and decree passed by the Ist Addl. Civil Judge (Jr. Dn.) & JMFC., Shimoga in OS.630/1996 dated 30.10.2006 is hereby set aside.

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The suit in OS.No.630/1996 filed by the plaintiff is hereby decreed in part.

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The suit filed by the plaintiff in OS.No.630/1996 is hereby dismissed with regard to suit for

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RSA No. 873 of 2009

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specific performance of contract is concerned only.

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The plaintiff is entitled for recovery of Rs.8,00000 along with future interest at the rate of 6% p.a. as on the date of agreement to sale till realization of the said amount.

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3. Both parties shall bear their own costs.

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4. Send the copy of this judgment along with the entire case file to the trial court.

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Being aggrieved by this judgment and award

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passed by the First Appellate Court, Wahab Sab who is defendant in O.S.No.630/1996 has preferred this regular second appeal.

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This Court vide order dated 26.07.2010 has formulated the following substantial question of law as under:

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"Whether the judgment and decree of the First Appellate Court is perverse in its conclusion which is contrary to the finding

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RSA No. 873 of 2009

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recorded with regard to the execution of the agreement to sell?"

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The learned counsel appearing on behalf of appellant has submitted his argument that, the judgment and decree passed by the Lower Appellate Court in so far as decreeing the suit for a sum of Rs.8000/- is bad in law and contrary to law and evidence on record. The Trial Court has failed to note that Ex.P.4 does not inspire confidence to be an agreement of sale except indicating that a particular sum was obtained by the appellant and as

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such based on that the court below is not justified in decreeing the suit of the plaintiff. Further it is submitted that, the First Appellate Court has not properly appreciated the evidence on record and passed the impugned judgment and decree. On all these grounds sought for allow this appeal.

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As against this, learned counsel appearing on behalf of respondents submitted that there are no grounds

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RSA No. 873 of 2009

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to interfere with the judgment and award and sought for dismissal of this appeal.

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With regard to payment of Rs.8,000/- by the defendants is concerned, the First Appellate Court has observed in its judgment that on appreciation of the oral evidence of PW1, PW2 and as well as DW1 and documentary evidence produced by both the parties, it is clear that respondent-Wahab Sab he has approached the plaintiff and borrowed the loan and executed the agreement to sale in favour of the appellant for his treatment. Therefore, it cannot be said that the respondent has agreed to sale the suit property for sale consideration of Rs.8,000/- and executed the agreement to sale in favour of the appellant - plaintiff. Further the First Appellate Court has observed that on appreciation of the oral evidence of PW1, PW2 and DW1 it is clear that absolutely there is no reasonable ground to believe that the deceased-Wahab Sab has approached the appellant and agreed to sale the suit property for sale consideration

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RSA No. 873 of 2009

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of Rs.8,000-00. But the deceased Wahab Sab has approached the appellant and borrowed the loan of Rs.2,000-00 for his treatment as he was suffering from paralysis. Hence, the question of execution of the registered sale deed in favour of the appellant, does not arise at all.

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A perusal of Ex.P1 the sale agreement deed reveals that, Wahab Sab has put his LTM on this agreement of sale deed. In this sale deed it is clearly mentioned as shara that "£À£ÀUÉ ®PÁé ºÉÆqÉzÀ PÁgÀt¢AzÀ £Á£ÀÄ NqÁqÀ®Ä C¸ÀªÀÄxÀð£ÁVgÀÄªÀÅzÀjAzÀ F bÁ¥Á PÁUÀzÀªÀ£ÀÄß ªÀºÁ¨ï ¸Á¨ï zÀ¸ÀÛVj ¸Á¨ï gÀ §zÀ®Ä CªÀÄÓzï ¥Á±À ©£ï C§ÄÝ® ªÀÄfÃzÀ EªÀgÀ ºÉ¸ÀjUÉ bÁ¥Á PÁUÀzÀ vÀgÀ®Ä £Á£ÀÄ M¦àUÉ ¤ÃrzÁÝVgÀÄvÉÛ." The defendant has taken contention that they have not executed this sale agreement in respect of suit schedule property but defendant borrowed loan of Rs.2,000/- from the plaintiff. By that time plaintiff has taken LTM of defendant on many blank papers and by misusing the same, plaintiff has created this document/Ex.P1.

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RSA No. 873 of 2009

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In the written statement, the defendant has

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stated that defendant got repaid Rs.1,000/- through his wife and children in the presence of Iqbal Ahmad and balance was remained unpaid. To substantiate his defence, the defendant has not placed any acceptable legal evidence before the Trial Court. In the cross-examination of DW.1 he has clearly admitted that he do not know on which date the defendant has received an amount of Rs.2,000/- and he do not know about repayment of Rs.1,000/-. Further he has admitted that, they have not paid remaining Rs.1,000/-. He do not know the rate of interest on the loan amount of Rs.2,000/-. This evidence of DW.1 clearly go to show that the defendants have not placed any acceptable legal evidence before the Trial Court to come to conclusion that defendant has borrowed loan of Rs.2,000/- and executed this agreement of sale. The contents of Ex.P1 clearly reveals that, the defendant has received an amount of Rs.8,000/- from the plaintiff.

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The defendants i.e. legal representatives of Wahab Sab have filed suit in O.S.No.582/1996 against the

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RSA No. 873 of 2009

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plaintiff/Amjad Pasha and obtained permanent injunction against plaintiff/Amjad Pasha in respect of suit schedule property. The same is not challenged by the Amjad Pasha. In O.S.No.630/1996 was dismissed by the Trial Court. Being aggrieved by the judgment and decree the appellant who is respondent in this case has not challenged the judgment and decree in respect of relief of permanent injunction. He has preferred an appeal for specific performance of contract. The same was partly allowed by the First Appellate Court in R.A.No.4/2007. Accordingly,

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suit for specific performance of contract was dismissed and suit for recovery of amount is decreed in favour of the plaintiff.

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Considering the facts and circumstances of the case, on appreciation and re-appreciation of the evidence on record, the First Appellate Court has properly appreciated the evidence on record and rightly decreed the suit for recovery of amount of Rs.8,000/- which is in accordance with law. I do not find any legal infirmities in

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RSA No. 873 of 2009

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the impugned judgment and award passed by the First Appellate Court. Hence I answered substantial question of law in favour of the plaintiff that the judgment and decree passed by the First Appellate Court is in accordance with law. Hence, I proceed to pass the following:

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ORDER

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(i) Appeal is dismissed with costs.

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(ii) The judgment and decree passed by the First Appellate Court Prl. Civil Judge (Sr.Dn.) & CJM., at Shimoga in R.A.No.4/2007 dated 09.02.2009 is confirmed.

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(iii) Draw decree accordingly.

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(iv) Registry is directed to send the copy of the judgment and decree, along with TCR to the concerned Courts.

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sdu List No.: 19 Sl No.: 2

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Sd/JUDGE

Wahab Sab S/O. Dastagir Sab Since Dead by Lrs v. Amjad Pasha S/O. Abdul Majeed

Case brief

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Wahab Sab S/O. Dastagir Sab Since Dead by Lrs v. Amjad Pasha S/O. Abdul Majeed

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