Dismissed

L R Gangdharaiah v. Gangamma

Karnataka HC9 Feb 2024RSA/825/2018

Case brief

AI extract

What is this about?

The appellant filed a regular second appeal under Section 100 CPC against orders dismissing a suit for specific performance of a contract to sell property. The High Court held that the execution of the agreement and payment of consideration were issues of fact. Finding no perversity in the lower courts' findings that these were not proved, the Court dismissed the appeal.

What the court decided

AI extract

L R Gangdharaiah Vs Gangamma — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:5665 RSA No. 825 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF FEBRUARY, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 825 OF 2018 (SP)

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BETWEEN:

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L R GANGDHARAIAH, S/O. LATE.RAMACHANDRAIAH, AGED ABOUT 59 YEARS, R/AT NO. 3RD DIVISON, CHIKKANAYAKANAHALLI TOWN, TUMKUR DISTRICT-572214.

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…APPELLANT

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(BY SRI. M C BASAVARAJU.,ADVOCATE)

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AND:

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GANGAMMA

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W/O. C S NAGARAJU, AGED ABOUT 59 YEARS, R/AT NO. 1ST DIVISION, CHIKKANAYAKANAHALLI TOWN, TUMKUR DISTRICT-572214.

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Digitally signed by SUMA B N Location: High Court of Karnataka

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POORNIMA

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D/O. C S NAGARAJU, AGED ABOUT 28 YEARS, R/AT NO. 1ST DIVISION, CHIKKANAYAKANAHALLI TOWN, TUMKUR DISTRICT-572214.

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MANIKANTA S/O. C S NAGARAJU, AGED ABOUT 26 YEARS, R/AT NO. 1ST DIVISION,

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CHIKKANAYAKANAHALLI TOWN, TUMKUR DISTRICT-572214.

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NC: 2024:KHC:5665 RSA No. 825 of 2018

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JEEVITHA D/O. C S NAGARAJU, AGED ABOUT 23 YEARS, R/AT NO. 1ST DIVISION, CHIKKANAYAKANAHALLI TOWN, TUMKUR DISTRICT-572214.

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…RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.08.2015 PASSED IN PRL. CIVIL JUDGE AND J.M.F.C AT CHIKKANAYAKANAHALLI IN O.S.NO.47/1999 AND JUDGMENT AND ORDER DATED 15.12.2017 PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C, CHIKKANAYAKANAHALLI IN R.A.NO.63/2015 IN THE INTEREST OF JUSTICE AND EQUITY.

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

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JUDGMENT

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This appeal is filed by the plaintiff aggrieved by the judgment and decree dated 19.08.2015 passed in O.S.No.47/1999 on the file of the Prl. Civil Judge and J.M.F.C at Chikkanayakanahalli (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 15.12.2017 passed in R.A.No.63/2015 on the file of Senior Civil Judge and J.M.F.C, Chikkanayakanahalli. (hereinafter 'the First Appellate Court').

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The above suit is filed by the plaintiff seeking relief in the nature of direction to the defendant No.1 to receive

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3 - NC: 2024:KHC:5665 RSA No. 825 of 2018

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balance sale consideration of Rs.1,000/- and to execute and register deed in respect of sale of suit schedule property in his name and also for restraining the defendants from interfering in his peaceful possession and enjoyment of the suit schedule property.

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The brief fact of the case of the plaintiff is that he had entered into an agreement of sale with the defendant No.1 to purchase the suit schedule property bearing Municipal assessment No.508/389/1322, measuring east to west 33 feet and north to south 40 feet situated at 1^st Division, Chikkanayakanahalli Town for total sale consideration of Rs.36,000/-. That the said agreement is an unregistered agreement. That the defendant No.1 had executed said agreement on her behalf and also on behalf of her minor children, who are defendant Nos.2 to 4. That on the date of agreement plaintiff had paid a sum of Rs.35,000/i.e., Rs.25,000/by way of cash and Rs.10,000/- by way of cheque bearing No.420685 dated 25.5.1998. That the defendant has handed over the physical possession of the suit schedule property on the date of the

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agreement. That he was always ready and willing to perform his part of the contract by paying Rs.1,000/- was which the only balance amount payable towards the sale consideration. That despite repeated requests made by the plaintiff, defendant No.1 did not execute the deed of sale in his favour. Consequently, he caused the issuance of legal notice dated 19.01.1999 which was not responded properly, as such the plaintiff was constrained to file the above suit.

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The defendant No.1 in her written statement denied the plaint averments and contended that she never intended to sell the suit schedule property to the plaintiff. She also denied execution of the said agreement dated 21.05.1998. It is also contended by her that the suit schedule property is not her personal property and defendants 2 to 4 being the joint owners are having undivided interest in the said property. Further, defendant No.1 also denied receiving of Rs.35,000/- by way of cash or by way of cheque as contended by the plaintiff. It is her further contention that plaintiff being the owner of the property next to the suit schedule property had created and manipulated the

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NC: 2024:KHC:5665 RSA No. 825 of 2018

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documents based on which he had filed the above suit. Hence sought for dismissal of the suit.

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The defendant Nos.2 to 4 in their separate written statement contended that suit schedule property was purchased by their father which was registered in the name of their defendant No.1, for the family benefits. The defendant No.1 has no independent source of income to purchased the property and further contended that defendant No.1 alone has no independent right to enter into contract with the plaintiff to sell the suit properties, That agreement of sale is not binding on them as they are not the parties and they are the minors. Hence, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"1) Whether the plaintiff proves that 1st defendant being the owner of schedule property for her family necessity agreed to sell the schedule property in favour of plaintiff and executed an agreement to sell dated 21.5.1998?

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2) Whether the plaintiff proves that he is ready and willing to perform his part of contract and there is delay on the part of the defendant?

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NC: 2024:KHC:5665 RSA No. 825 of 2018

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3) Whether the Is defendant proves that the agreement to sell is fabricated and manipulated document?

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4) Whether the 1st defendant proves that she and C.N.Nagaraju constitute a joint family, 1st defendant had no occasion to execute agreement to sell in favour of plaintiff?

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5) What order or Decree?"

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The plaintiff examined himself as PW1 and exhibited 9 documents marked as Ex.P1 to Ex.P9. Three witnesses have been examined in favour of the plaintiff as PW.2 to PW.4. In order to prove their defence, defendant Nos.1 and 3 examined themselves as DW.1 and DW.2. and exhibited 5 documents marked as Ex.D1 to Ex.D5. On appreciation of the evidence the Trial Court answered issue Nos.1 and 2 in the negative and issue Nos.3 and 4 in the affirmative and consequently dismissed the suit.

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Being aggrieved by the aforesaid judgment and decree plaintiff filed an appeal in R.A.No.63/2015 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1. Whether the trail court has justified in dismissing the suit of the plaintiff?

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2. Whether the appellant has made out grounds to allow the appeal?

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3. What order or decree ?"

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NC: 2024:KHC:5665 RSA No. 825 of 2018

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On re-appreciation of the evidences, the First

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Appellate Court answered point No.1 in the affirmative and point No.2 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same plaintiff filed the present appeal.

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Sri.J.R.Thippeswamy, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submits that the Trial Court and the First Appellate Court failed to appreciate the fact that the plaintiff had proved that the defendant No.1 had offered to sell the property for Rs.36,000/- and had received the said sale consideration of Rs.35,000/-. It is his submission that the possession of the property was handed over on the day of the execution. It is contended that the property belonged to defendant No.1 she having purchased the same in terms of the deed of sale dated 02.06.1997, she had every right to sell the property. He submits that except payment of Rs.1,000/- nothing was required to be performed on behalf of the plaintiff. Despite on several request defendants did not

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come forward that constrained the plaintiff to file the suit. He submits that the plaintiff was always ready and willing to perform his part of the contract. That these aspects of the matter have not been taken into consideration by the Trial Court and the First Appellate Court giving raise to substantial question of law.

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Heard. Perused the records.

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Issues have been framed by the Trial Court with

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regard to proof of execution of the agreement by the defendant No.1 in favour of the plaintiff. Plea of payment of money on the date of agreement is not proved. No acceptable material evidence regarding encashment of cheque is produced. Instances of manipulation and fabrication of agreement, dates of stamp papers on which the agreement is allegedly drawn interpretation etc., have been appreciated and re-appreciated by the Trial Court and the First Appellate Court.

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The Trial Court and the First Appellate Court declined to take into consideration the claim of the plaintiff

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NC: 2024:KHC:5665 RSA No. 825 of 2018

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to have been put into possession of the property on the very

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same date of the agreement as the same is not being registered. The Trial Court and the First Appellate Court did not find convincing the case of the plaintiff that he had paid a sum of Rs.35,000/as against the agreed sale consideration of Rs.36,000/- on very date of agreement with balance being only Rs.1,000/-, in the absence of any explanation whatsoever by the plaintiff of he not being able to pay Rs.1,000/- and obtaining the deed of sale on very same day. This conduct of the plaintiff has been held against him.

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The Trial Court has adverted to the deposition of the plaintiff's witnesses who have given inconsistent and contradictory statements with regard to date, timing and manner in which the agreement purportedly came into existence and has found that the evidence of the witnesses examined by the plaintiff did not evince credibility with regard to they being the witnesses to the agreement. It has also referred to evidence of husband of defendant examined

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at the instance of plaintiff as PW-4 which supported the case

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of the defendant.

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Taking note of all these material evidence and facts the Court has come to the conclusion that the plaintiff has failed to prove the execution of the alleged agreement.

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The First Appellate Court on re-appreciation of the evidence has confirmed the said findings. The factum of execution of agreement and payment of money not having been proved by the appellant/plaintiff which are matter of fact, and the same cannot be gone into in this appeal under Section 100 of the CPC in absence of any perversity. No substantial question of law would arise for consideration in this appeal.

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In that view of the matter, appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First Appellate Court.

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Sd/JUDGE

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L R Gangdharaiah v. Gangamma

Case brief

What is this about?

What the court decided

L R Gangdharaiah v. Gangamma

Case brief

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What the court decided

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