Dismissed

Parameshwarappa v. Eshwarappa

Karnataka HC28 Nov 2023RSA/984/2016

Case brief

AI extract

What is this about?

This judgment dismisses two regular second appeals filed by a first plaintiff against concurrent decrees dismissing a suit for specific performance and confirming title in possession. The High Court upheld the lower courts' findings that the alleged agreement was not substantiated and the plaintiff's earlier pleadings asserted title via adverse possession rather than contract.

What did the court decide?

Both appeals were dismissed, and pending applications were also dismissed.

Parameshwarappa Vs Eshwarappa — Specific Performance | Karnataka HC (2023)

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- 1 - NC: 2023:KHC:42917 RSA No. 984 of 2016 C/W RSA No. 983 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.984 OF 2016 (SP) C/W

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REGULAR SECOND APPEAL NO.983 OF 2016 (DEC)

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IN RSA NO.984/2016

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BETWEEN:

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PARAMESHWARAPPA

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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S/O LATE HANUMANTHAPPA AGED ABOUT 59 YEARS AGRICULTURIST RESIDENT OF KAMASAGARA VILLAGE SARASWATHIPURA POST KASABA HOBLI, KADUR TALUK CHIKKAMAGALUR DISTRICT - 577548

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(BY SRI.RAJESH MAHALE, ADVOCATE FOR SRI.G NARAYANA RAO, ADVOCATE) AND:

…APPELLANT

ESHWARAPPA

DEAD BY HIS LRS

SMT. RUDRAMMA W/O LATE ESHWARAPPA AGED ABOUT 64 YEARS

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C.E.SHADAKSHARI S/O LATE ESHWARAPPA AGED ABOUT 50 YEARS

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SMT. RATHNAMMA W/O LATE MALLIKARJUNA D/O LATE ESHWARAPPA AGED ABOUT 44 YEARS

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RESPONDENT NOS.1 TO 3 ARE RESIDENT OF CHIKKA PATNAGERE VILLAGE DODDAPATTANAGERE POST KASABA HOBLI, KADUR TALUK CHIKKAMAGALURU DISTRICT - 577 548

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SMT. MALAMMA

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D/O. LATE ESHWARAPPA AGED ABOUT 50 YEARS

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HOUSEHOLD RESIDENT OF BETTADAHALLI VILLAGE & POST KASABA HOBLI TARIKERE TALUK. CHIKKAMAGALURU DISTRICT - 577 228

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SMT. RATHNAMMA

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D/O LATE ESHWARAPPA AGED ABOUT 46 YEARS HOUSEHOLD RESIDENT OF KOLLENINGANAHALLI VILLAGE KADUR TALUK

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CHIKKAMAGALURU DISTRICT - 577 548

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SMT.CHANDRAMMA D/O LATE ESHWARAPPA AGED ABOUT 40 YEARS

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- 3 - NC: 2023:KHC:42917 RSA No. 984 of 2016 C/W RSA No. 983 of 2016

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HOUSEHOLD RESIDING AT SAMATHALA VILLAGE TARIKERE TALUK CHIKKAMAGALURU DISTRICT - 577228

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SMT. PREMA D/O. LATE ESHWARAPPA AGED ABOUT 38 YEARS HOUSEHOLD RESIDING AT ASANDI VILLAGE & POST HIRENALLUR HOBLI KADUR TALUK CHIKKAMAGALURU DISTRICT - 577548

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SRI. VIRUPAKSHAPPA S/O. MALLAIAH AGED ABOUT 74 YEARS

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MAHALINGAPPA S/O. LATE MALLAIAH AGED ABOUT 82 YEARS

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RESPONDENT NOS.8 AND 9 ARE RESIDENT OF CHIKKAPATTANAGERE VILLAGE DODDA PATTANAGERE POST KASABA HOBLI, KADUR TALUK CHIKKAMAGALUR DISTRICT - 577 548

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…RESPONDENTS

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(BY SRI.D.L.SURESH, ADVOCATE FOR R.2 TO R.9; R.1 - RUDRAMMA DEAD VIDE POSTAL SHARA DATED 28.10.2022)

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4 - NC: 2023:KHC:42917 RSA No. 984 of 2016 C/W RSA No. 983 of 2016

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.02.2016 PASSED IN RA NO.52/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., KADUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.07.2010 PASSED IN O.S.NO.26/2006 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., KADUR AND ETC.

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IN RSA NO.983/2016

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BETWEEN:

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K.M.PARAMESHWARAPPA S/O LATE HANUMANTHAPPA AGED ABOUT 59 YEARS AGRICULTURIST RESIDENT OF KAMASAGARA VILLAGE SARASWATHIPURA POST KASABA HOBLI, KADUR TALUK CHIKKAMAGALUR DISTRICT PIN CODE - 577548

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…APPELLANT

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(BY SRI.RAJESH MAHALE, ADVOCATE FOR SRI.G NARAYANA RAO, ADVOCATE)

AND:

ESHWARAPPA

DEAD BY HIS LRS

SMT. RUDRAMMA W/O LATE ESHWARAPPA AGED ABOUT 70 YEARS

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C.E.SHADAKSHARI S/O LATE ESHWARAPPA AGED ABOUT 50 YEARS

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SMT. RATHNAMMA W/O LATE MALLIKARJUNA D/O LATE ESHWARAPPA AGED ABOUT 44 YEARS

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RESPONDENT NOS.1 TO 3 ARE RESIDENT OF CHIKKA PATNAGERE VILLAGE DODDAPATTANAGERE POST KASABA HOBLI, KADUR TALUK CHIKKAMAGALURU DISTRICT - 577 548

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SMT. MALAMMA D/O. LATE ESHWARAPPA AGED ABOUT 50 YEARS HOUSEHOLD RESIDENT OF BETTADAHALLI VILLAGE & POST KASABA HOBLI TARIKERE TALUK. CHIKKAMAGALURU DISTRICT - 577 228

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SMT. RATHNAMMA D/O LATE ESHWARAPPA AGED ABOUT 46 YEARS HOUSEHOLD RESIDENT OF KOLLENINGANAHALLI VILLAGE KADUR TALUK CHIKKAMAGALURU DISTRICT - 577 548

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SMT.CHANDRAMMA D/O LATE ESHWARAPPA

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AGED ABOUT 40 YEARS HOUSEHOLD RESIDING AT SAMATHALA VILLAGE TARIKERE TALUK

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CHIKKAMAGALURU DISTRICT - 577228

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SMT. PREMA D/O. LATE ESHWARAPPA AGED ABOUT 38 YEARS HOUSEHOLD RESIDING AT ASANDI VILLAGE & POST HIRENALLUR HOBLI KADUR TALUK

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CHIKKAMAGALURU DISTRICT - 577548

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SRI. VIRUPAKSHAPPA S/O. MALLAIAH AGED ABOUT 74 YEARS

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MAHALINGAPPA S/O. LATE MALLAIAH AGED ABOUT 74 YEARS

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RESPONDENT NOS.8 AND 9 ARE RESIDENT OF CHIKKAPATTANAGERE VILLAGE DODDA PATTANAGERE POST KASABA HOBLI, KADUR TALUK CHIKKAMAGALUR DISTRICT - 577 548

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…RESPONDENTS

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(BY SRI.D.L.SURESH, ADVOCATE FOR R.2 TO R.9; R.1 - RUDRAMMA DEAD VIDE POSTAL SHARA DATED 28.10.2022)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.02.2016 PASSED IN RA NO.53/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., KADUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.07.2010 PASSED IN O.S.NO.89/2006 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., KADUR AND ETC.

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THESE APPEALS, COMING ON FOR PART HEARD IN ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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COMMON JUDGMENT

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These two captioned appeals are filed by the plaintiff in O.S. No.26/2006, who has questioned concurrent

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judgments rendered in O.S.No.89/2006 and O.S.No.26/2006.

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For the sake of brevity, the parties are referred as

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they are ranked before the Trial Court.

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Brief facts leading to the case are as under;

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The plaintiff - Parameshwarappa instituted a suit in O.S.No.26/2006 seeking relief of specific performance of

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contract. The plaintiff claimed that there was an oral agreement between plaintiff's father and defendants grandfather Mallaiah and in terms of the oral agreement, an amount of Rs.23,000/- was paid to the grandfather of the defendants and on the same day, possession was handed over to the father of the plaintiff. The plaintiff has further contended that defendant No.1 - Eshwarappa has executed an agreement on behalf of himself and defendant Nos.2 and 3 on 16.08.2004. The present suit is filed based on the agreement dated 16.08.2004 by contending that the plaintiff is entitled for specific performance of contract.

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The defendants in O.S.No.26/2006, who are owners of the land in question, filed a suit in O.S.No.89/2006 seeking relief of declaration and for possession alleging that plaintiff in O.S.No.26/2006 has encroached a portion of the property measuring 1 acre 5 guntas out of total extent measuring 12 acres 6 guntas. The possession was sought based on the title alleging that

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plaintiff in O.S.No.26/2006 is guilty of encroaching the defendants' property.

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Both suits were clubbed and common evidence is recorded in O.S.No.89/2006.

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The plaintiffs and defendants to substantiate their respective claims have let in oral and documentary evidence.

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The Trial Court has given its anxious consideration to the agreement set up by the plaintiff in O.S.No.26/2006. The Trial Court, during pendency of the suit, at the instance of the plaintiff in O.S.No.26/2006, referred admitted and disputed signatures of defendant No.1 - Eshwarappa to get the opinion of the fingerprint expert and fingerprint expert has furnished the report, which is marked at Ex.C.1. The Trial Court de-hors the C ommissioner's report has independently examined admitted and disputed signatures of defendant No.1 found on the alleged agreement vide Ex.D.1. On examining

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Ex.D.1, the Trial Court was not inclined to accept Commissioner's Report and found that admitted and disputed signatures of defendant No.1 are not similar. The signatures found on Ex.D.1 are not that of defendant No.1 - Eshwarappa. The Trial Court has also recorded a finding that in Ex.D.1, there is an insertion of one sentence indicating that grandfather of defendants has received an amount of Rs.23,000/- from the father of the plaintiff in O.S.No.26/2006. Having examined the genuineness of Ex.D.1, the Trial Court was not inclined to accept this document set up by the plaintiff in O.S.No.26/2006.

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Though issue No.1 in O.S.No.26/2006 was

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answered in the Affirmative holding that defendants are the owners of the land bearing Sy. No.92, the Trial Court, while answering issue Nos.3 to 4 in the Negative held that the plaintiff has failed to prove that there was an oral agreement between plaintiff's father and grandfather of the defendants. The Trial Court has also held that the alleged payment of Rs.23,000/- by the plaintiff's father is

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also not substantiated. While answering issue No.4 in the Negative, the Trial Court held that in the present set of facts, the alleged oral contract is not enforceable. While answering issue No.5 in the Negative, the Trial Court has also held that the plaintiff has failed to substantiate that defendant No.1 has executed an agreement on behalf of himself and defendant Nos.2 and 3 on 16.08.2004. Having dismissed the plaintiff's suit in O.S.No.26/2006 and having regard to the fact that plaintiff in O.S.No.26/2006 has not disputed the title of the defendants, partly decreed the suit filed by the plaintiffs in O.S.No.89/2006 thereby declaring that the defendants in O.S.No.26/2006 are the absolute owners and consequently, directed the plaintiff in O.S.No.26/2006 to handover the vacant possession of the suit schedule property.

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Feeling aggrieved by the judgments rendered in both suits, the plaintiff in O.S.No.26/2006 preferred two independent appeals questioning the decree passed in O.S.No.89/2006 as well as the decree passed in

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O.S.No.26/2006. The Appellate Court being a final fact finding authority has re-assessed the entire evidence on record. The Appellate Court, while examining the Commissioner's Report, has declined to accept the same on different grounds. The Appellate Court was of the view that the specimen signatures of defendant No.1 - Eshwarappa were not secured in the open Court and thereafter, sent to the handwriting expert. The Appellate Court on comparing the admitted signatures of defendant No.1 with the disputed signatures on the alleged agreement vide Ex.D.1 was of the view that the signatures secured in the open Court at page No.4 of the Chief Examination Affidavit dated 13.02.2007. The Appellate Court found that there is a vast difference in the admitted signatures with that of disputed signatures. The Appellate Court has taken cognizance of one more relevant document, which would clinch the entire controversy between the parties. The defendants in O.S.No.26/2006, who are plaintiffs in O.S.No.89/2006, have placed reliance on the copy of the plaint in O.S.No.296/2001. The said

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suit for injunction simplicter was filed by the plaintiff in O.S.No.26/2006 against third party. On examining the pleadings of the said plaint, the Appellate Court found that plaintiff in O.S.No.26/2006 is asserting title over the present suit schedule property on the ground that he has perfected his title by way of adverse possession and is found to be in possession for more than 25 years and para No.2 of the plaint further indicates the whereabouts of original owner Mallaiah are not found. Referring to these pleadings, the Appellate Court was of the view that reasons and conclusions recorded by the Trial Court would not warrant any interference. It is precisely on this count, the Appellate Court has proceeded to dismiss both the appeals.

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Heard learned counsel appearing for the plaintiff in O.S.No.26/2006 and learned counsel appearing for the defendants in O.S.No.26/2006, who are plaintiffs in O.S.No.89/2006.

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I have given my anxious consideration to the

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findings and conclusions recorded by both the Courts.

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On meticulous examination of Ex.D.1, this Court

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would find that the document does not indicate that the parties intended to enter into sale transaction and defendant No.1 in O.S.No.26/2006 offered to sell the property. On reading the contents of Ex.D.1, what can be gathered is that under the said document, defendant No.1

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Eshwarappa is acknowledging title of the plaintiff on

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behalf of himself and on behalf of two brothers.

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The Appellate Court, in particular, while taking cognizance of Ex.P.9, has declined to accept the plea that there was an oral agreement under Ex.D.1 as narrated by the plaintiff in O.S.No.26/2006. As rightly pointed out by the learned counsel appearing for the defendants, the averments made in para No.2 of the plaint coupled with the legal notice issued by the plaintiff in O.S.No.26/2006, which is produced by the defendants and marked at

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Ex.D.2, clearly demonstrates that the plaintiff in O.S.No.26/2006 has not asserted rights based on oral agreement. The consequent agreement executed by defendant No.1 - Eshwarappa is neither reflected in the suit filed by the plaintiff in O.S.No.296/2001 nor in the legal notice issued before instituting the present suit. Even under Ex.D.2, there is no reference in regard to alleged agreement and payment of Rs.23,000/-.

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Para No.2 of the plaint filed by the plaintiff in O.S.No.296/2001 would clinch the entire controversy and lis deserves to be given a quietus in the context of what is pleaded in para No.2 of the plaint, I deem it fit to cull out relevant paragraphs, which read as under;

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"2. That the plaintiff has been in lawful possession and enjoyment over the landed property measuring 1 acre 5 guntas out of 11 acres 32 guntas in Sy. No.92 of Chikkapattanagere Village, Kasaba Hobli, Kadur Taluk. The khata of the property is stands in the name of one Mallaiah s/o Mallegowda, but

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the Khatedar Mallaiah died long back, but his LRS whereabouts are not known. The plaintiff is also hiduvalidars of land bearing Sy. No.89 and 90 and the suit schedule property is situated adjacent to the above said survey numbers. the plaintiff is in possession and enjoyment over the suit schedule property since more than 25 years and hence, he has perfected his title. The Revenue Inspector inspected the spot and confirmed the possession of the plaintiff over the suit schedule property and the Revenue Inspector also submitted the report to the Government. The Taluk Surveyor has also measured the land and shown the plaintiff is in possession and enjoyment over the suit schedule property. Herewith producing Report of the Revenue Inspector, RTC extract and Hadbasth report for kind perusal of this Hon'ble Court."

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On reading para No.2, it is clearly evident that plaintiff in O.S.No.26/2006 has never traced his title under alleged oral agreement, which is now sought to be pleaded in the present suit. On reading para No.2, what can be gathered is that the plaintiff, at the earliest point of time,

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has asserted title over the present suit schedule property by way of adverse possession. If these significant details are looked into, then I am of the view that both Courts were justified in disbelieving Ex.D.1. One more relevant aspect is brought to the notice of this Court that defendant No.1 - Eshwarappa, who is alleged to have executed an agreement vide Ex.D.1 in favour of father of the plaintiff, died during pendency of the suit and admittedly, the defendants in O.S.No.26/2006 are not parties to the agreement. The Executant of the alleged agreement vide Ex.D.1 died during pendency of the suit and his legal representatives are not brought on record. However, defendant No.1, who was plaintiff No.1 in O.S.No.89/2006, his legal representatives have come on record and suit is prosecuted by the legal representatives of defendant No.1 in the connected suit, which is one for possession based on title. If the said suit has stood abated against defendant No.1, who is alleged to have executed an agreement in favour of the plaintiff, the suit has to fail on that sole count.

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In the light of the discussions made supra, the concurrent findings recorded by both the Courts while answering issue No.5 in O.S.No.26/2006 in the Negative does not suffer from any serious infirmities. Both the Courts have properly appreciated the rebuttal evidence let in by the defendants in O.S.No.26/2006. Even if plaintiff had succeeded in proving due execution of the agreement, based on the said agreement vide Ex.D.1, the plaintiff cannot enforce the contract as the said document does not indicate that the parties had intended to complete the transaction in continuance of the alleged oral agreement as pleaded by the plaintiff. Both the Courts have concurrently held that the plaintiff in O.S.No.26/2006 has failed to substantiate that his father paid an amount of Rs.23,000/- to the grandfather of the defendants. The theory that there was an oral agreement between the plaintiff's father and grandfather of the defendants, which is followed by an agreement executed by defendant No.1 in O.S.No.26/2006, stands falsified in the light of the

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specific stand taken by the plaintiff in the earlier suit filed for injunction in O.S.No.296/2001.

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Admissions, if true and clear are by far the best proof of facts admitted. Therefore, it is a trite law that the admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties before the hearing of the case, stand on a higher footing than evidentiary admissions. The pleadings or judicial admissions are fully binding on the party which makes such an admission. The admissions in the pleadings constitute waiver of proof thereof. Pleadings signed by a party under oath or accompanied by an affidavit offer the strongest evidence of veracity. The Apex Court in the case of NAGINDAS RAMDAS VS. DALPATRAM ICHHARAM ALIAS BRIJRAM AND OTHERS¹ held that judicial admissions can be a basis in themselves while deciding the dispute between the parties. The concurrent findings and

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1 (1974) 1 SCC 242

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conclusions recorded by the Trial Court does not suffer

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from any serious infirmities.

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No substantial question of law arises for

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consideration.

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Both appeals are devoid of merits and accordingly, stand dismissed.

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Pending applications, if any, are also dismissed.

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Sd/JUDGE

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NBM List No.: 1 Sl No.: 1

Parameshwarappa v. Eshwarappa

Case brief

What is this about?

What did the court decide?

Parameshwarappa v. Eshwarappa

Case brief

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