Dismissed

Balbhim a Katge v. Smt Raziya Begum

Karnataka HC15 Jul 2024RSA/621/2018

Case brief

AI extract

What is this about?

Second appeal against concurrent findings dismissing a specific performance suit for failure to prove a sale agreement and payment of Rs.3,00,000. The High Court found plaintiff's witnesses unconvincing, declined to frame a substantial question of law, and dismissed the appeal.

What did the court decide?

None granted; second appeal dismissed, concurrent decrees rejecting specific performance confirmed.

Balbhim a Katge Vs Smt Raziya Begum — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:27309 RSA No. 621 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 621 OF 2018 (SP)

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BETWEEN:

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BALBHIM A. KATGE AGED ABOUT 52 YEARS S/O ARUN KATGE R/A VISHAL FUEL CENTRE SAGAR ROAD SHIVAMOGGA CITY.

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…APPELLANT

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(BY SRI. B.N.PRAKASH, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SMT. RAZIYA BEGUM W/O LATE MOHAMMED IBRAHIM MAJOR IN AGE

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MOHAMMED AZEEM S/O LATE MOHAMMAED IBRAHIM MAJOR IN AGE

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MOHAMMED SALEEM S/O LATE MOHAMMAED IBRAHIM MAJOR IN AGE

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MOHAMMED KALEEM S/O LATE MOHAMMAED IBRAHIM MAJOR IN AGE

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2 - NC: 2024:KHC:27309 RSA No. 621 of 2018

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MOHAMMED NADIM S/O LATE MOHAMMAED IBRAHIM MAJOR IN AGE

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WASIM PASHA S/O LATE MOHAMMAED IBRAHIM MAJOR IN AGE

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SHAKIRA BEGUM W/O IDYATHULLA D/O LATE MOHAMMED IBRAHIM MAJOR IN AGE

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THAHIRA BEGUM W/O M SYFULLA D/O LATE MOHAMMED IBRAHIM MAJOR IN AGE

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NAZIRA BEGUM W/O MOHAMMED SAB D/O LATE MOHAMMED IBRAHIM MAJOR IN AGE

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MUNZIRA BEGUM D/O LATE MOHAMMED IBRAHIM MAJOR IN AGE

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ALL ARE RESIDENTS OF BESIDE K G N CHIKKEN STALL MILLAGATTA MAIN ROAD SHIVAMOGGA CITY-577201.

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…RESPONDENTS

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(BY SRI JAYAPRAKASH R.V., ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.11.2017 PASSED IN R.A.NO.177/2012 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.06.2012 PASSED IN O.S.NO. 373/2006 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA.

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3 - NC: 2024:KHC:27309 RSA No. 621 of 2018

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel for the appellant and

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the learned counsel for the respondent.

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This second appeal is filed against the concurrent finding of the Trial Court and both the Courts comes to the conclusion that very alleged sale agreement is doubtful and not proved the agreement considering the document of Ex.P3 as well as the evidence of PW1 to PW4 and there evidence is unbelievable one and evidence of

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PW1 to PW4 is contrary to each other. In fact the witnesses have given to go by in their versions and hence the suit for the relief of specific performance before the Trial Court is dismissed. The Trial Court having perused the document Ex.P3 extracted the document in paragraph No.22 and in paragraph No.23 discussed the evidence of PW2 and also discussed the evidence of PW3, the admission given by the witnesses is extracted in paragraph No.24 and also in paragraph No.26 discussed

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the evidence of PW3 and PW4 in paragraph No.27. The PW4 categorically admits that he had signed the document when the first page was typed and all these materials taken note of by the Trial Court while rejecting the claim of the plaintiff and answered the issue No.1. The issue No.4 is also with regard to whether the plaintiff proves that whether he was always ready and willing to perform his part of contract also answered as negative since the very document of agreement of sale is not proved and dismissed the suit.

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Being aggrieved by the said judgment and decree, R.A.No.174/2012 is filed before the First Appellate Court. The First Appellate Court also having considered the grounds urged in the appeal formulated the point whether the plaintiff has proved the very execution of document of sale agreement and even considered the evidence of PW1 to PW4 from paragraph No.17 to 23 and having considered the admission and evidence of PW2 to PW4, though signature was admitted the First Appellate Court comes to the conclusion that the evidence available on record not

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5 - NC: 2024:KHC:27309 RSA No. 621 of 2018

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inspires the confidence of the Court with regard to coming to the conclusion that there was a sale agreement and for having received the amount of Rs.3,00,000/- since contra evidence is found on the evidence of plaintiff’s witnesses PW1 to PW4. Hence, the First Appellate Court dismissed the appeal confirming the judgment of the Trial Court.

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Being the aggrieved by the concurrent finding, the present second appeal is filed before this Court. The counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in appreciating the evidence available on record and the stand taken by the defendant denying the execution of Ex.P3 and in the evidence on record, it is very clear that signature of the very executant was admitted and the Trial Court ought to have taken note of Section 91 of Evidence Act and both the Courts have not justified in dismissing the suit for the specific performance and fail to consider the material available on record and even the defendant admitted the signature, both the Courts have committed an error in proving of document Ex.P3. The evidence

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available on record, clearly establishes the due execution of Ex.P3 and hence both Courts have committed an error and hence this Court has to frame substantial question of law.

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Per Contra, the counsel appearing for the respondent would contend that both the Courts have taken note of particularly the evidence of PW1 to PW4 and rightly comes to the conclusion that the very execution of document Ex.P3 is not proved. Having heard the appellant’s counsel and also the counsel appearing for the respondent and also considering the material available on record, particularly Ex.P3 sale agreement, witnesses have been examined and when the witnesses have been examined and the evidence of witnesses also not supports the case of the plaintiff. The evidence of witnesses PW2 to PW4 who have been examined also not come to the aid of the case of the plaintiff proving of document Ex.P3. Contra evidence found and even scribe also the interested witness having acquaintance with the plaintiff also prepared the document and he is not aware of with regard to even

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NC: 2024:KHC:27309 RSA No. 621 of 2018

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payment of amount in his presence and PW4 who has been examined also categorically admits that when he signed the document when only the first page is typed and with regard to the very execution as well as payment of consideration is also no consistent evidence on the part of the plaintiff. When such being the case, the very contention of the counsel that this Court has to admit and frame substantial question of law cannot be accepted. The evidence available on record, particularly the evidence of PW1 to PW4 not inspires the confidence of the Court that there was a sale transaction between the parties. When the very document of sale agreement has not been proved by placing any consistent evidence, question of invoking Section 91 of Evidence Act as contended by the counsel appearing for the appellant cannot be accepted.

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Having perused the material available on record, when both Courts have given concurrent finding with regard to the not proving of document Ex.P3 and also with respect to payment of Rs.3,00,000/- having made the payment in favour of the defendant original executant and

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though the original executant is not alive and defendants are the legal heirs of the said executant and mere admission of document of Ex.P3 that the signature belongs to the executant cannot be a ground to grant the relief of specific performance even if the agreement is lawful to do so also, the Court has to take note of oral evidence available on record in toto with regard to the very execution of document and passing of consideration and when such evidence placed before the Court is not inspires the confidence of the Court. I do not find any error committed by the Trial Court as well as First Appellate Court in dismissing the suit for the relief of specific performance. The relief of specific performance is also discretionary relief and unless the very document is proved by executing the document and for receiving the sale consideration, question of granting the specific relief does not arise. Hence, no grounds are made out to admit and invoke Section 100 of CPC and admit the appeal and frame substantial question of law.

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NC: 2024:KHC:27309 RSA No. 621 of 2018

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In view of the discussions made above, I pass

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the following:

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ORDER

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The Second Appeal is dismissed.

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Sd/JUDGE

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RHS List No.: 1 Sl No.: 87

Balbhim a Katge v. Smt Raziya Begum

Case brief

What is this about?

What did the court decide?

Balbhim a Katge v. Smt Raziya Begum

Case brief

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