Benedicta D Souza Vs P M Hussain

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.4.2011 PASSED IN R.A.NO.119/2006 ON THE FILE OF THE DISTRICT & SESSIONS JUDGE (AD-HOC) PRESIDING OFFICER, FAST TRACK COURT, KARKALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.8.2006 PASSED IN O.S.NO.77/2005 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., MOODBIDRI.

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HC-KAR

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IN RSA NO. 1893/2011

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BETWEEN:

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BENEDICTA D'SOUZA W/O CHARLES D'SOUZA AGED ABOUT 59 YEARS, R/A KONGANAL HOUSE, KEMRAL VILLAGE AND POST - 574 146, MANGALORE TALUK, DK.

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...APPELLANT

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(BY SRI. K CHANDRANATH ARIGA & SRI. M.K. VIJAY KUMAR, ADVOCATES)

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AND:

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MR P M HUSSAIN S/O MOOSABBA BEARY AGED ABOUT 56 YEARS, KEMRAL VILLAGE AND POST, MANGALORE TALUK, D.K.

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...RESPONDENT

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(BY SRI. SAMPAT & VATSALA LAW ASSTS., ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.4.2011 PASSED IN R.A.NO.139/2006 ON THE FILE OF THE DISTRICT & SESSIONS JUDGE (AD-HOC) PRESIDING OFFICER, FAST TRACK COURT, KARKALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.8.2006 PASSED IN O.S.NO.70/2005 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., MOODBIDRI.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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The appellant aggrieved by the common judgment passed in R.A.Nos.119 of 2006 and 139 of 2006 dated 23.04.2011 passed by the learned Presiding Officer, Fast Track Court, Karkala, and the common judgment dated 10.08.2006 in O.S.Nos.70/2005 and 77/2005, passed by the Civil Judge (Jr.Dn.) and JMFC, Moodabidri, filed these appeals.

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For convenience, the parties are referred by their names one Benedicta D' Souza filed a suit in O.S.No.70 of 2005 for the relief of perpetual injunction, and possession and P.M.Hussain filed a suit for specific performance of contract and perpetual injunction in O.S.No.77 of 2005 against Krishnappa Shettigar and Benedicta D'Souza.

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Brief facts leading rise to the filing of the suit in O.S.No.70 of 2005 are as follows:

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It is the case of Benedicta D'Souza that she is the

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absolute owner of the suit schedule premises and purchased the suit premises from one Krishnappa under a registered sale deed dated 09.12.1993 for valid consideration. After purchase, the revenue records were changed in the name of Benedicta D'Souza. P.M.Hussain is in occupation of the suit schedule property as a licencee. After the purchase of said property, Benedicta D'Souza requested P.M.Hussain to vacate and hand over the possession of the suit schedule property to her. P.M.Hussain, having got colluding with Krishnappa, got created documents and making hectic preparations to demolish the existing building premises and to carry out structural changes of substantial nature without the consent of Benedicta D'Souza. P.M.Hussain and Krishnappa had no right, title or interest over the suit schedule property. Hence, a cause of action arose for Benedicta D'Souza to file a suit in O.S.No.70 of 2005

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for the relief of permanent injunction, in alternative and possession.

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P.M.Hussain filed a suit in O.S.No.77 of 2005 for specific performance and permanent injunction, contending that in 1982, he obtained the premises bearing Door Nos. 3-53 and 3-54, consisting of two rooms situated in survey No. 113/4 and partly in survey No. 116/1 of Kemral village of Mangalore taluk from Krishnappa on a monthly rental of ₹100/- and he was running a general store. During the subsistence of tenancy, he entered into an agreement of sale with his landlord Krishnappa on 25.12.1985 for consideration of ₹22,000/-. It was agreed that Krishnappa should execute a register sale deed in favour of P.M. Hussain on 30.01.1996. It is contended that before the execution of the said sale agreement, Hussain paid ₹8,500/- to Krishnappa towards the advance sale consideration amount and on the date of agreement of sale he had paid ₹ 4,000/- to him. In

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view of the sale agreement he has paid a sum of ₹ 7,500/- to Krishnappa, and balance to be paid at the time of execution of a sale deed and in part performance of a contract, Krishnappa delivered the possession of the suit schedule property in favour of PM Hussain. It is contended that Krishnappa executed a general power of attorney in favour of PM Hussein and the said power of attorney was in force for 10 years. It is contended that PM Hussein was always ready and willing to perform his part of contract. Meanwhile, Krishnappa sold portion of his property including the property mentioned in the sale agreement, in favour of Benedicta D'Souza. The sale deed executed by Krishnapa in favour of Benedicta D'Souza is not binding on PM Hussein and it is contended that Benedicta D'Souza is not the bonafide purchaser for value without knowledge and no consideration was passed under the alleged registered sale deed executed between Krishnappa

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and Benedicta D'Souza. It is contended that

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P.M.Hussain to prove that he was always ready and willing to perform his part of contract issued a legal notice dated 25.12.1998 to Krishnappa and Benedicta D'Souza, calling upon them to receive the balance sale consideration amount, and execute a registered sale deed. They received the notice but failed to comply. Hence, a cause of action arose for PM Hussain, who sought to file a suit for specific performance of a contract in O.S.No.77 of 2005.

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Benedicta D'Souza i.e. plaintiff in O.S.No.70 of 2005 filed a written statement in O.S.No.77/2005, denying the averments made in the plaint in O.S.No.77 of 2005 and contended that she had purchased the suit schedule property under a registered sale deed and she is the absolute owner of the suit schedule property and denied the execution of a sale agreement by Krishnappa in favour of P.M.Hussain and also regarding the payment of advance sale

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consideration amount. Hence, on these grounds, prays to dismiss the suit filed by P.M.Hussain for specific performance and permanent injunction and decree the suit in O.S.No.70/2005.

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The trial Court, clubbed both the suits and framed the following issues:

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(1) Whether the plaintiff proves that she is the absolute owner of the plaint 'A' schedule property?

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(2) Whether the plaintiff proves that the defendant is in occupation of the old shop building situated in the suit schedule property as a licencee under the vendor of the plaintiff?

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(3) Whether the plaintiff proves that the defendant has been attempting to demolish the portions of existing building in the suit property which is in his possession and to carry out structural changes illegally without the consent of the plaintiff?

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(4) Whether the defendant proves that he is a monthly tenant of the premises bearing door no.s 3-53 and 3-54 situated partly in the suit S.No. 116/1 and partly in S.No. 113/4 of Kemral village under one Krishnappa Shettigara on a monthly rental of Rs.100/-?

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(5) Whether the defendant proves that there is a written agreement for sale dated:25/12/1985 entered into between himself and his vendor

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Krishnappa Shettigara in respect of his aforesaid tenanted premises?

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(6) Whether the plaintiff is entitled for the relief of possession of suit schedule property?

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(7) Whether the plaintiff is entitled for mesne profits? If so, at what rate?

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(8) Whether the plaintiff is entitled for the relief of permanent in junction as prayed?

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(9) What Order or decree?

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OS.No.77/2005

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(1) Whether the plaintiff proves that he and the 1st defendant entered into a written agreement for sale dated: 25/12/1985 in respect of the plaint 'A' schedule premises for a consideration of Rs.22,000/-?

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(2) Whether the plaintiff proves that he has paid Rs.12,500/- to the 1st defendant out of the sale consideration of Rs.22,000/- under the aforesaid agreement of sale?

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(3) Whether the plaintiff proves that he has been always ready and willing to perform his part of agreement?

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(4) Whether the 2nd defendant proves that an agreement of sale dated: 25/12/1985 is not true, valid and binding?

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(5) Whether the plaintiff proves that sale deed dated:9/12/1993 executed by the 1st defendant in favour of 2nd defendant is not valid and binding on him?

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(6) Whether the 2nd defendant proves that he is the bonafide purchaser of properties mentioned in the sale deed dated:9/12/1993?

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(7) Whether the 2nd defendant proves that the sale deed dated: 9/12/1993 is true, valid and binding on the plaintiff?

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(8) Whether the 2nd defendant proves that the suit is not properly valued for the purpose of jurisdiction and Court fee?

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(9) Whether the 2nd defendant proves that the suit against him is barred by time?

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(10) Whether the 2nd defendant proves that the plaintiff is not entitled to specific enforcement without setting aside the sale deed?.

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(11) Whether the plaintiff is entitled for the relief of specific performance and for consequential relief of permanent injunction as prayed?

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(12) What Order or Decree?

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The trial Court, after framing the issues, common evidence was recorded in a comprehensive suit in O.S.No.77 of 2005. Mr. Hussein was examined as PW.1, examined two witnesses as PW.2 and PW.3 and marked 13 documents as Ex.P1 to Ex.P13.

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In rebuttal, Benedicta D'Souza examined General Power of Attorney holder as DW.1 and marked 8

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documents as Ex.D1 to D8. Though summons was duly served on Krishnappa, despite service of summons, Krishnappa remained unrepresented and he was placed exparte.

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The trial Court after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issues in O.S.No.70 of 2005 i.e. issue No.2,6,7 and 8 in the negative, issue Nos. 3 to 5 in the affirmative, issue No.1 does not arise for consideration, issues in O.S.No. 77 of 2005- issue Nos. 1 to 3, 5 and 11 in the affirmative. issue No. 4, 6 to 10 in the negative. Issue No.12 as per the final order.

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The trial Court decreed the suit in O.S.No.77 of 2005 filed by Mr.P.M.Hussain with costs to be paid by Krishnappa and directed Krishnappa and Benedicta D'Souza to execute a registered sale deed in favour of P.M.Hussain in respect of shop rooms bearing door No.3-53 and 3-54 of Kemral village, Gram Panchayat

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with the land bearing measuring 0.2 cents in Survey No. 116 /01 , 0.99 cents in Survey No. 113/4 of Kemral Village, Mangalore Taluk and also directed P.M. Hussain to pay balance sale consideration of ₹2,000/- to Mrs. Benedicta D'Souza at the time of execution of registered sale deed and Benedicta D'Souza, her men, agents etc. are permanently restrained from interfering with P.M.Hussain's possession and enjoyment of the suit property. The trial Court dismissed the suit in O.S.No.70 of 2005 filed by Benedicta D'Souza with costs vide common judgment and decree dated 10.08.2006.

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Benedicta D'Souza aggrieved by the common judgment and decree passed in O.S.Nos.70 of 2005 and 77 of 2005, preferred the appeals in RA Nos. 119 of 2006 and 139 of 2006 on the file of learned District and Sessions Judge, Fast Track Court, Karkala.

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The first appellate Court, clubbed both appeals and framed the following common points for consideration:

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(1) Whether the 2nd defendant proves that the learned trial judge has not framed proper issues in both the suits?

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(2) Whether the 2nd defendant proves that the impugned common judgment and decree passed in OS. No.70/2005 and O.S. No.77/2005 is perverse, illegal and capricious?

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(3) What order?

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First of the appellate court, after re-appreciating the entire evidence on record, answered point Nos.1 and 2 in the negative and point No.3 as per the final order. The appeals were dismissed and the common judgment and decree passed in OS Nos. 70 of 2005 and 77 of 2005, passed by the trial Court was confirmed.

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Mrs. Benedicta D'Souza aggrieved by the common judgment passed in RA Nos. 119 of 2006 and 139 of

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2006, preferred these second appeals i.e., RSA No.

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1893 of 2011 and RSA No. 1892 of 2011.

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Heard the arguments of the learned counsel for

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Benedicta D'Souza and learned counsel for P.M. Hussain.

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Learned counsel for Benedicta D'Souza submits that the first appellate court being a final fact finding court is required to re-appreciate the entire evidence, and frame the proper points for adjudication. He submits that the first appellate court has not re-appreciated the entire evidence on record and also not properly framed the points for determination. The common judgment and decrees passed by the first appellate court is not in compliance with Order XLI Rule 31 of the CPC. He has also placed reliance on the judgment of the Hon'ble Apex Court in the case of H.Siddiqui

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(D) by LRs. vs. A Ramalingam¹ . He submits that

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1 AIR 2011 SC 1492

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the matter requires reconsideration by the first appellate court. Hence, he submits that the common judgment and decree passed in RA Nos. 119/2006 and 139/2006 requires to be reconsidered by the first appellate court. Hence on these grounds, he prays to allow the appeals and remit the matter to the first appellate court for fresh consideration.

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Per contra , learned counsel for P.M. Hussain submits that the first appellate court has considered the entire evidence on record and the common judgment and decree passed by the first appellate Court is in compliance with Order XLI Rule 31 of Code of Civil Procedure. He also submits that the first appellate Court has considered the exposition of law laid down by this court as well as the Hon'ble Apex Court and has rightly affirmed the common judgment and decree passed by the trial Court. Hence, on these grounds, prays to dismiss the appeal.

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Perused the records, and considered the submissions

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of the learned counsel for the parties.

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This Court vide order dated 31.10.2025, reframed the following substantial question of law:

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"Whether Mrs.Benedicta D Souza proves that the common judgment passed in R.A.Nos.119/2006 and 139/2006 is not in compliance with Order XLI Rule 31 of Code of Civil Procedure, 1908?"

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Reg. substantial question of law:

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Benedicta D'Souza filed a suit in O.S.No.70 of 2005 for the relief of permanent injunction and possession against P.M.Hussain and P.M.Hussain has filed a suit in O.S.No.77 of 2005 for specific performance of contract and for permanent injunction against Benedicta D'Souza. It is undisputed fact that Krishnapa Shettigar was the owner of the suit schedule property. PM Hussain contended that Krishnappa executed the sale agreement in favour of

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P.M.Hussain on 25.12.1985 and in part performance of a contract he has delivered the possession of the suit schedule property and executed the sale agreement on 25.12.1985. It was agreed that P.M Hussain in all had paid total sale consideration of ₹20,000/- on different dates and balance to be paid at the time of execution of registered sale deed and the sale deed to be executed by Krishnappa on or before 30.12.1996. Krishnappa executed general power of attorney in favour of Hussain. The said general power of attorney was in force for 10 years. P.M.Hussain requested Krishnappa to receive the balance sale consideration amount, and executed a registered sale deed. Krishnappa instead of receiving the balance sale consideration amount and execute a registered sale deed, he had executed a registered sale deed in favour of Benedicta D'Souza on 09.12.1993. Hence, Krishnappa did not comply with the terms and conditions of sale agreement. Thus, he has committed

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a breach of sale agreement. Hussain has filed a suit

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for specific performance of a contract in O.S.No.77/2005. Mrs. Benedicta D'Souza filed suit in O.S.No.70 of 2005 on the ground that she is the absolute owner of the suit schedule property and she had purchased the suit schedule property from Krishnappa under a registered sale deed dated 09.12.1993 and Hussain is in possession of the suit schedule property as a tenant and Benedicta D'Souza requested Hussain to vacate and hand over the possession of the suit schedule property. Hussain did not give any heed to the request made by Benedicta D'Souza. Hence, Benedicta D'Souza filed a suit in O.S.No.70 of 2005. The said suits were clubbed together and a common evidence was recorded in OS No.77 of 2005, wherein Hussain was examined as PW.1, examined two witnesses as PW.2 and PW.3 and marked 13 documents as Ex.P1 to Ex.P13.

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In rebuttal, Benedicta D'Souza examined through

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Power of Attorney holder as DW1 and marked 8 documents as Ex.D1 to D8. The trial court after appreciating the entire evidence on record, decreed the suit in O.S.No.77 of 2005 filed by P.M. Hussain with costs to be paid by Krishnappa and directed Krishnappa and Benedicta D'Souza to execute a registered sale deed and directed Benedicta D'Souza to receive ₹2,000/towards the balance sale consideration amount and dismissed the suit filed by Benedicta D'Souza in O.S.No.70 of 2005. Benedicta D'Souza aggrieved by the common judgment passed in O.S.Nos.70 of 2005 and 77 of 2005, preferred the appeals in RA Nos. 119 of 2006 and 139 of 2006 on the file of learned District and Sessions Judge, Fast Track Court, Karkal.

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From the perusal of the entire judgment passed by the first appellate court, the first appellate court except extracting the evidence of PW,1 that is

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evidence of P.M.Hussain and evidence of Benedicta D'Souza and referring to the decisions rendered by this Court, did not properly re-appreciated the entire evidence on record. The first Appellate Court dismissed the appeals confirming the common judgment and decree passed by the trial Court.

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From the perusal of the judgment passed by the first appellate court, the first appellate court has not properly framed the points for determination and did not re-appreciated the entire evidence on record. The first appellate court has not assigned any independent reasons, just confirmed the judgment and decree passed by the trial Court. The common judgment and decree passed by the first appellate court is contrary to the proposition laid down by the Hon’ble Apex Court in case of H.Siddiqui (D) by LRs. ( referred to supra). The judgment and decree passed by the first appellate court is arbitrary and erroneous and is not in compliance with Order XLI to 31 of CPC.

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The first appellate court, being a final fact finding Court, is required to frame the proper points for determination and answer each issues framed by the trial Court. Admittedly, in the instant case, the first appellate court has not properly framed the points for determination and did not answer each issues framed by the trial Court. Thus, the judgment and decree passed by the first appellate court is not in compliance with Order XLI Rule 31 of the CPC. In view of the above discussion, I answer substantial question of law in the affirmative.

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