Allowed

Ramanjani v. Sri. Venkatesh

Karnataka HC23 Jan 2024RFA/797/2017

Case brief

AI extract

What is this about?

Plaintiff's appeal against dismissal of his suit for specific performance of an agreement of sale dated 18.04.2007. The trial court found the defendant's disputed thumb impression could not be compared with the admitted one with the naked eye but did not refer it to a fingerprint expert. The appellate court remitted the matter for fresh consideration.

What did the court decide?

Judgment and decree set aside; matter remitted to trial court for fresh consideration with liberty to seek fingerprint expert comparison of Exs.P1 and D5 and examine witnesses.

Ramanjani Vs Sri. Venkatesh — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:3174 RFA No. 797 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 797 OF 2017 (SP)

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BETWEEN:

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RAMANJANI S/O LATE BACHANNA AGED ABOUT 71 YEARS R/A NO.1009, 1^ST CROSS RANKANAGAR, NKB EXTENSION BEHIND P & T QUARTERS R T NAGAR POST BANGALORE-560032

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…APPELLANT

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(BY SRI. SUNIL S RAO., ADVOCATE)

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AND:

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Digitally signed by HEMALATHA A Location: High Court of Karnataka

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SRI. VENKATESH S/O LATE GUNDAPPA AGED ABOUT 47 YEARS

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SMT VENKATAMMA D/O LATE GUNDAPPA AGED ABOUT 52 YEARS R1 & R2 ARE RESIDING AT MOTLUR VILLAGE NANDI HOBLI CHIKKABALLAPURA TALUK-562101.

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SMT PADMA W/O KRISHNAPPA AGED ABOUT 36 YEARS

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R/AT AJJAVARA VILLAGE NANDI HOBLI

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CHIKKABALLAPURA TALUK- 562101.

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SRI MUNIVENKATAPPA S/O CHIKKABOMMAIAH AGED ABOUT 62 YEARS R/AT NALLAKADIRENAHALLI VILLAGE NANDI HOBLI CHIKKABALLAPURA TALUK-562101.

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VILAMBATH RAVANNI S/O C N NAIR AGED ABOUT 66 YEARS R/AT KRISHNA KRUPA, 2ND CROSS KANAKAVINAYAKA ROAD SHANTHI LAYOUT RAMAMURTHY NAGAR BENGALURU-560016.

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…RESPONDENTS

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(NOTICE TO R1 TO R5 ARE SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER ORDER XXXXI RULE 1 R/W SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.03.2017 PASSED IN OS NO.245/2008 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC., CHICKBALLAPUR, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY,

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THE COURT DELIVERED THE FOLLOWING:

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3 - NC: 2024:KHC:3174 RFA No. 797 of 2017

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JUDGMENT

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This appeal is filed by the plaintiff under Section 96 r/w. Order 41 Rule 1 of Civil Procedure Code challenging the judgment and decree dated 08.03.2017 passed by the Additional Senior Civil Judge & JMFC, Chickballapur, in O.S.No.245/2008, whereby the suit filed by the plaintiff for specific performance of the contract, dated 18.04.2007, has been dismissed.

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For the sake of convenience, the parties are

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referred to as per their rankings before the trial court.

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The brief facts of the case are that the defendant

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No.1, i.e., Gundappa being the owner of the suit schedule property executed an agreement on 18.04.2007 agreeing to sell the same in favour of the plaintiff for Rs.15,00,000/- (rupees fifteen lakhs only) and in advance received Rs.2,00,000/- (rupees two lakhs only) on the date of the agreement. It is the further case of the plaintiff that he has paid further advance of Rs.50,000/on 04.05.2007, Rs.50,000/- on 14.05.2007, Rs.10,000/-

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on 01.08.2007, Rs.40,000/on 05.10.2007 and Rs.10,000/on 24.10.2007, totally amounting to Rs.3,60,000/-. It is his further case that the plaintiff is ready and willing to discharge his part of the contract. Since the first defendant has failed to execute the sale deed and he was trying to alienate the suit schedule property to third party, plaintiff issued legal notice to defendant No.1 on 26.12.2007. Since defendant No.1 failed to execute the sale deed and in collusion with defendant No.2 executed the sale deed in favour of defendant No.2 on 12.12.2007, plaintiff filed a suit for specific performance of the contract.

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On service of summons, defendant Nos. 1 and 2 have filed common written statement denying all the plaint averments, inter alia, contending that the first defendant, for his legal necessity, has sold the suit schedule property in favour of the second defendant under the registered agreement dated 07.08.2006 and as per the said agreement, he has also executed the registered sale deed

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on 12.12.2007. It is further stated in the written statement that the possession has been delivered to defendant No.2 and they have also denied that defendant No.1 has executed any agreement in favour of the plaintiff.

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During the pendency of the suit, defendant No.1 died and his legal representatives have come on record through the counsel. Defendant No.3 was subsequently impleaded, he has filed the written statement contending that the suit is barred by limitation. It is further stated that it is bad for non-joinder of parties. It is his further statement that he has purchased the suit schedule property from the second defendant on 22.09.2008 and the khata has been changed to his name. Hence, he sought for dismissal of the suit.

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On the basis of the pleadings of the parties, the trial court has framed the following issues and also additional issues:

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1) Whether the plaintiff proves that the defendant No.1 has executed agreement of sale on 18.04.2007 agreeing to sell the suit schedule property in his favour?

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2) Whether the plaintiff proves that the defendant No.1 has received Rs.2,00,000/- on the date of agreement?

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3) Whether the plaintiff proves that the defendant No.1 has received Rs.50,000/-, Rs.50,000/-, Rs.10,000/-, Rs.40,000/and Rs.10,000/on 04.05.2007, 14.05.2007, 01.08.2007, 05.10.2007 and 24.10.2007 respectively?

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4) Whether the plaintiff proves that he is ready and willing to perform his part of the contract?

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5) Whether the suit is barred by time?

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6) Whether the suit is bad for mis-joinder of parties?

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7) Whether the plaintiff is entitled for the relief as prayed for?

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8) What order or decree?

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Addl. Issue

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1) Whether the defendant No.3 proves that the defendant No.3 is the bonafide purchaser of the schedule property without notice of the alleged sale agreement dated: 18.04.2007 in favour of plaintiff?

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In support of the case, plaintiff has been examined as PW1 and got marked documents as Exs. P1 to P7. On behalf of the defendants, Power of Attorney Holder of defendant No.3 has been examined as DW1 and marked documents as Exs.D1 to D33.

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After considering the oral and documentary evidence of the parties, the trial court answered issue Nos. 1 to 7 in the negative and additional issue No.1 also in the negative and dismissed the suit. Being aggrieved by the same, plaintiff has filed this appeal.

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The learned counsel appearing for the appellant /plaintiff has raised the following contentions:

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(i) Firstly, defendant No.1 Gundappa has executed the agreement on 18.04.2007 agreeing to sell the suit schedule property in favour of the plaintiff for a sum of Rs.15,00,000/- (rupees fifteen lakhs only) and he has also received advance amount. Even though, while filing written statement, he has denied the execution of the

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agreement of sale, he has not denied his thumb impression on Ex.P1. During the pendency of the suit, Gundappa died and his legal representatives have come on record, they have not been examined before the trial court. Except filing a bald written statement, they have not specifically denied the execution of the agreement sale.

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(ii) Secondly, there is no denial of the thumb impression of defendant No.1 in Ex.P1. Under the circumstances, the trial court has erred in dismissing the suit.

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(iii) Thirdly, as per Ex.D5 - sale deed produced by the defendants, the defendants have not denied the signature of Gundappa. The trial court has given a finding that the thumb impression of defendant No.1 on Exs. P1 and D5 cannot be compared with the naked eye, without referring the same to fingerprint experts.

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(iv) Fourthly, there is no reference in the registered sale deed dated 12.12.2007 marked as Ex.D5 regarding agreement of sale dated 07.08.2006. Therefore, it is very clear that, to defraud the plaintiff, defendant Nos. 1 and 2 have colluded and executed the sale deed dated 12.12.2007. Without considering this aspect of the matter, the trial court has erred in dismissing the suit. Hence, he prays for allowing the appeal.

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respondents are served and unrepresented.

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Heard the learned counsel for the appellant. Perused the impugned order and the original records.

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The point that arises for consideration in this appeal is, ‘whether the judgment and decree passed by the trial court is perverse, arbitrary and contrary to law and calls for interference of this Court?’

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The case of the appellant is that defendant No.1 being the owner of the suit schedule property executed an agreement on 18.04.2007 agreeing to sell the same in favour of the plaintiff for Rs.15,00,000/- (rupees fifteen lakhs only) and in advance received Rs.2,00,000/- (rupees two lakhs only) on the date of the agreement. It is the further case of the plaintiff that he has paid further advance of Rs.50,000/- on 04.05.2007, Rs.50,000/- on 14.05.2007, Rs.10,000/- on 01.08.2007, Rs.40,000/- on 05.10.2007 and Rs.10,000/- on 24.10.2007, totally, amounting to Rs.3,60,000/-.

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The case of the defendants is that first defendant has not executed the agreement of sale dated 18.04.2007 in favour of the plaintiff. On the other hand, it

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is the contention of the defendants that the first defendant has executed an agreement of sale dated 07.08.2006 in favour of defendant No.2 and executed a registered sale deed dated 12.12.2007. Neither defendant No.1 nor his legal representatives have entered the witness box. The trial court has given a finding that the thumb impression of defendant No.1 in Ex.P1 which is disputed and thump impression of defendant No.1 in Ex.D5 registered sale deed which has been admitted, cannot be compared with naked eyes. Under the circumstances, the court could have asked the parties to file an application for referring the matter to fingerprint expert. Even in Ex.P1 there are two witnesses – Lokesh and M.N.Muniraju and they are the independent witnesses. They have not been examined by the parties. In view of the above and in the interest of justice, the matter requires to be remitted back to the trial court for fresh consideration. The point is answered accordingly.

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In view of the above, I pass the following order:

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NC: 2024:KHC:3174 RFA No. 797 of 2017

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(i) The appeal is allowed.

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(ii) The judgment and decree dated 08.03.2017 passed by the Additional Senior Civil Judge & JMFC, Chickballapur in O.S.No.245/2008 is set aside.

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(iii) The matter is remitted back to the trial court to reconsider the matter afresh, in accordance with law, with liberty to the parties to file an application for referring the thumb impression of defendant No.1 – Gundappa on Exs. P1 and D5 to the fingerprint expert and also to examine

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the witnesses to Ex.P1 and also other witnesses, if any.

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(iv) All pending applications stand disposed of.

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Sd/JUDGE

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CM List No.: 1 Sl No.: 67

Ramanjani v. Sri. Venkatesh

Case brief

What is this about?

What did the court decide?

Ramanjani v. Sri. Venkatesh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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