Sri Narayanrao Vs Smt Alkavatibai

THIS RSA IS FILED U/S. 100 OF THE CPC, AGAINST THE JUDGMENT AND DECREE IN O.S NO.337/2014 DATED 10.08.2016 PASSED BY I ADDL. CIVIL JUDGE AND JMFC, KALABURAGI AND ALSO JUDGMENT AND DECREE IN RA. NO.29/2016 PASSED BY I ADDITIONAL SENIOR CIVIL JUDGE AT KALABURGI DATED 20.03.2018 AND FURTHER ALLOW THE RA NO.31/2016 FILED BEFORE I ADDL. SENIOR CIVIL JUDGE AT KALABURGI DATED 20.03.2018.

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RSA No. 200122 of 2018

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THIS RSA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.02.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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CAV JUDGMENT (PER: HON'BLE MS JUSTICE J.M.KHAZI)

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This is defendant's second appeal challenging the

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judgment and decree passed by the First Appellate Court dismissing the regular appeal filed by him and allowing the Regular Appeal filed by the plaintiff, challenging the judgment and decree of the trial Court, partly decreeing the suit of plaintiff, ordering refund of earnest money of `1,00,000/- with interest at 6% per annum, though her suit for specific performance came to be dismissed. By allowing the appeal filed by the plaintiff, the First Appellate Court has decreed the suit in entirety and ordered for specific performance of contract.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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Plaintiff is no other than sister-in-law of defendant i.e, the late husband of plaintiff and defendant

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are real brothers. Defendant is the absolute owner of suit schedule property consisting of a shop premises measuring 6×18 ft, situated in the ground floor. The adjoining shop premises of same dimension situated on the western side of suit property belongs to the plaintiff. Plaintiff filed suit for specific performance of contract dated 26.06.2008 for sale of suit schedule property. She contended that defendant who was running a fancy store in suit property, for his legal necessity offered to sell the same to the plaintiff for a sum of 3 lakhs and executed sale agreement dated 26.06.2008 by receiving advance of 1 lakh. Since tenant was there in the suit property for a period of three years, defendant offered execute of regular sale deed after the expiry of three years, by receiving balance sale consideration. It is alleged that after expiry of three years, when plaintiff approached defendant with a request to receive the balance consideration and execute the sale deed, he refused and therefore without any alternative suit is filed.

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Defendant admit the relationship between him

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and the plaintiff and also the fact that the shop premises situated on the western side of suit schedule property belongs to the plaintiff. However, he has denied of having offered to sell suit schedule property for a sum of 3 lakhs to the plaintiff and executed sale agreement dated 26.06.2008 by receiving advance of 1 lakh. He has also denied that he promised to receive balance consideration of 2 lakhs after expiry of three years and execute a sale deed. He has alleged that the sale agreement in question is concocted by the plaintiff and his brother Vittal, who is one of the attesting witness to the alleged sale agreement. Defendant has made specific allegations that the said Vittal is also instrumental in creating a gift deed, including property belonging to defendant and being hand in glove with the plaintiff he has created the suit documents by forging his signatures. He never had any legal necessity to alienate suit schedule property. He has alleged that at the relevant point of time, the market value of such property was 15 lakhs.

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RSA No. 200122 of 2018

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Based on the pleadings, the trial Court framed necessary issues.

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In support of her case, plaintiff examined

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herself as PW-1 and her brother-in-law Vittal as PW-2. She relied upon Exs.P1 to 7.

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Defendant examined himself as DW-1 and got marked Ex.D1 to 27.

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The trial Court though held that the plaintiff has proved the sale agreement dated 26.06.2008 and passing of earnest money of 1,00,000/- from plaintiff to defendant, it held that plaintiff has failed to prove that she was ready and willing to perform her part of contract and therefore refused to grant relief of specific performance. However, it directed defendant to refund earnest money of 1,00,000/- together with interest at 6% per annum to the plaintiff.

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Aggrieved by the same, both plaintiff and defendant filed appeal before the First Appellate Court.

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RSA No. 200122 of 2018

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While the First Appellate Court allowed the

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appeal filed by plaintiff and decreed the suit in entirety, it dismissed the appeal filed by defendant.

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Aggrieved by the same, defendant has approached this Court in the Regular Second Appeal, contending that the appreciation of evidence by the trial Court as well as the First Appellate Court is illegal, perverse and requires to be set aside. Both Courts have failed to appreciate that the burden of proving the Sale agreement at Ex.P1 and receipt at Ex.P2 is on the plaintiff. Even though by producing these documents and examining one of the attesting witness, the plaintiff discharged initial burden, having regard to the fact that defendant had denied the signature in Exs.P1 and 2, the burden shifted back to the plaintiff to prove that the signatures in Exs.P1 and 2 are that of defendant. Plaintiff ought to have sent the disputed signatures in Exs.P1 and 2 for the opinion of handwriting expert by comparing the same with the admitted signatures of defendant. However, plaintiff has failed to avail this opportunity to prove Exs.P1 and 2.

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RSA No. 200122 of 2018

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11.1 On the other hand, both trial Court as well as

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the First Appellate Court have committed grave error in holding that it was for the defendant to send the disputed documents for expert opinion. The First Appellate Court erred in holding that it is not sufficient for the defendant to deny his signatures. In fact, it is sufficient for the defendant to deny his signature on the disputed documents and the burden would shift on the plaintiff to prove the same. In the absence of specific pleadings and proof regarding readiness and willingness on the part of the plaintiff to perform her part of contract, the First Appellate Court has also erroneously reversed the findings of the trial Court that plaintiff is not entitled for specific performance. The First Appellate Court has also wrongly placed the burden on the defendant to establish that plaintiff was not possessing sufficient funds to pay the balance consideration. The trial Court as well as the First Appellate Court have failed to appreciate the fact that Exs.P1 and 2 are concocted despite defendant bringing out the same through the cross-examination of PW1 and 2. They have

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also failed to appreciate the fact that despite making serious aspirations cast on PW-2, plaintiff has not chosen to examine the other attesting witness and therefore adverse inference was required to be drawn.

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In support of the his arguments, learned counsel for defendant has relied upon the following decisions.

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(i) His Holiness Acharya Swamiganesh Dassji Vs. Shri Sita Ram Thapar (Sita Ram Thapar)¹

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(ii) Pratap Singh and Anr Vs. Ganga Singh and Ors. (Pratap Singh)²

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(iii) Kamal Kumar Vs. Premlata Joshi & Ors. (Kamal Kumar)³

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(iv) Narne Rama Murthy Vs. Ravula Somasundaram and Ors. (Narne Rama Murthy)⁴

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Vide order dated 13.03.2019, appeal was admitted on the following substantial question of law:

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"Whether the Courts below were right in holding that the obligation was on the defendant to get signatures compared when the burden and onus of proof both lay heavily on the plaintiff?"

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1 1996 AIR 2005 Dt 30.04.1996

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2 Civil Suit No.59/2016 (15508/2016)

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3 AIR 2019 SC 459 (Civil Appeal No.4453/2009)

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4 (2005) 6 SCC 614

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RSA No. 200122 of 2018

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Vide order dated 19.11.2024, on IA.No.3/2024,

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the following additional substantial question of law came to be framed:

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"Whether the First Appellate Court is justified in reversing the finding of the Trial Court on Issue No.3 in the light of the documentary evidence produced by the defendant as per Ex.D1 to Ex.D24, Ex.D26 and Ex.D27?"

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On the other hand, learned counsel for plaintiff supported the impugned judgment and order passed by the First Appellate Court decreeing the suit in entirety.

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In support of his arguments, he has relied upon

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the following decisions:

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(i) Gurudev Kaur and Ors. Vs. Kaki and Ors. (Gurudev Kaur)⁵

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(ii) Narinderjit Singh Vs. North Star Estate Promoters Ltd. (Narinderjit Singh)⁶

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(iii) Swaranjit Singh Vs. Jatinder Kumar (Swarnjit Singh)⁷

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Heard elaborate arguments of both sides and

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perused the record.

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5 (2007) 1 SCC 546

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6 AIR 2012 SC 2035

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7 AIR Online 2022 P&H 210

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RSA No. 200122 of 2018

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As already noted, the relationship between the

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parties is not in dispute. Plaintiff is the sister-in-law of defendant. PW-2 Vittal is no other than the real brother of defendant. It has come in the evidence of PW-1 by way of admission that Shop number 1–654/1 consisting of ground floor was jointly purchased in the name of plaintiff and defendant. The first floor of the said shop was purchased in the name of PW-2 Vittal Rao. The residential house situated on the western side of the said shop premises consisting of house No.1–655 was purchased in the name of Vijay Kumar - the brother of defendant through registered sale dated 13.03.1987. Similarly, Plot No.56 situated in M.B Nagar was purchased in the name of plaintiff's husband during 1985.

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Plaintiff has also admitted that shop number 1– 654/1 consisting of ground floor and first floor and house No.1–655 are partitioned between plaintiff and her brothers-in-law. In the said partition, ground floor of Southern half of shop No.1–654/ 1 and 1/4^th share in the house No.1–655 and vacant land situated behind it, which

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RSA No. 200122 of 2018

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is part of house No.1-655 has fallen to the share of plaintiff and in the said shop, she is running a fancy store. Thus, the ground floor of shop number 1–654/1 was divided between plaintiff and defendant. In the portion fallen to the share of plaintiff, she is running a fancy store whereas in the portion fallen to the share of defendant which is the suit schedule property, he was running a fancy store which, according to the plaintiff is offered for sale by the defendant through Ex.P1. Since suit schedule property is adjoining the shop run by the plaintiff and it was part and parcel of the shop run by the plaintiff and as she is family member and a joint purchaser of suit schedule property, if at all defendant wanted to dispose it off, in all probability he would offer to sell the same to the plaintiff, of course for market value.

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Now the question is, what was the reason for the defendant to sell suit schedule property to the plaintiff. Defendant vehemently dispute the fact of offering to sell suit schedule property and executing the sale agreement at Ex.P1. Therefore, the reasons for taking out the suit

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RSA No. 200122 of 2018

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schedule property for sale becomes relevant. Even though in Ex.P1, it is stated that for family necessity and to discharge the family debts, the defendant has chosen to sell suit schedule property. Plaintiff is not able to point out as to what were the debts incurred by the plaintiff and also the family necessity for which he choose to sell suit schedule property.

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On the other hand, it has come in the evidence that recently one of the son of defendant got appointment in State bank of Hyderabad and his other son was already working in waterworks department since 2002. Therefore, his financial dependency on the shop run by him was considerably reduced after his son got appointment in State bank of Hyderabad. During the crossexamination of defendant, it is elicited that since 20 years,

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he is having problem in his eye sight and pain in the knees. However, it is not the reason stated in the sale agreement to offer the sale of suit schedule property. Therefore, the reasons assigned for taking out suit

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RSA No. 200122 of 2018

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schedule property for sale is not established and it is also not convincing.

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As evident from the written statement, the defendant has not only denied execution of the sale agreement and consideration receipt at Exs.P1 and 2, he has also contended that his alleged signatures there in are forged. He has gone to the extent of alleging that PW-2 Vittal is instrumental in concocting the document and forging his signatures. Therefore, not only the initial burden is on the plaintiff to prove the execution of Exs.P1 and 2, but also to establish that the disputed signatures are that of the defendant. Despite making serious allegations against PW-2 Vittal, the plaintiff has chosen to examine him. Of course, there was no prohibition for the plaintiff to rely upon his evidence. At the same time, she could have examined the other witness, whose evidence would have lent support to the case of the plaintiff.

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It is submitted by the learned counsel for defendant that the First Appellate Court committed grave error in holding that burden was on the defendant to send

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the disputed signatures for the opinion of handwriting expert. Since from day one, the defendant is disputing execution of the sale agreement and consideration receipt at Exs.P1 and 2 and has alleged that his signature therein are forged, at the instance of plaintiff, the burden is on the plaintiff to prove that the signatures in Exs.P1 and 2 are that of defendant. It is not a case of mere denial of execution of the said documents, but also denial of signatures therein as belonging to the defendant. Had it been a case of only formal denial of execution of the documents, the evidence of the attesting witness would have been sufficient.

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The defendant has also alleged that the cement concrete road situated on the eastern side of suit property was not in existence during 2008 and therefore in Ex.P1, the eastern boundary is not described as CC Road and only referred to as Station Road. However, in Ex.P1(a), the eastern boundary is referred to as Government CC Road Station Bazaar road. It is submitted by the learned counsel for defendant that Ex.P1(a) is created subsequently. In

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RSA No. 200122 of 2018

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fact, PW-2 is cross-examined at length on this aspect. His evidence reveal that it is he who gave instructions for preparation of Exs.P1, 2 and P1(a). Therefore, he could have examined the person who drafted these documents and also prepared Ex.P1(a) and taken their print outs. Therefore, it is not sufficient for the plaintiff to stop at the evidence of PWs-1 and 2 to prove the alleged transaction between plaintiff and defendant.

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It is submitted by the learned counsel for defendant that in the admitted signatures of defendant, the alphabet Y is placed in the earlier portion i.e, 1/3^rd of his signature, whereas in the disputed documents, in his alleged signature the alphabet Y is situated in the latter. 1/3^rd portion of the signature and this could be ascertained even from a naked eye. He would further submit that under Section 73 of the Indian Evidence Act, the Courts are having power to examine and compare the admitted and disputed signatures to ascertain whether the execution of document is established or not. In fact, this difference is really visible to the naked eye.

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In the light of specific defence taken by the defendant and allegations that his signatures in the disputed document are forged, certainly the burden is on the plaintiff to prove that the disputed signatures in Exs.P1 , 1(a) and 2 are that of defendant. Therefore, it was desirable on the part of plaintiff to send the disputed signatures in Exs.P1 and 2 for examination by the handwriting expert to establish that they are the signatures of defendant. Even though the plaintiff has got marked some admitted documents containing the signatures of defendant, including Vakalat, she has not chosen to send the disputed signatures for expert opinion.

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At the first available opportunity, when the written statement was filed, the defendant has disputed the fact of execution of the sale agreement and consideration receipt. Of course the signatures of defendant available in the written statement, Vakalathnama and the lease agreements at Exs.D26 and 27 are subsequent to Exs.P1, 1(a) and 2 and there is possibility of defendant changing his signature. However,

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the plaintiff was in a position to collect other documents which are earlier in point of time to Exs.P1, 1(a) and 2, including sale deeds, etc, to establish the signature of defendant prior to Exs.P1, 1(a) and 2. Therefore, The trial Court as well as the First Appellate Court were in error in holding that the burden was on defendant to prove that the signatures in Exs.P1, 1(a) and 2 are not his signatures and that he ought to have sent them for the opinion of handwriting expert. When the plaintiff has failed to establish Exs.P1, 1(a) and 2, the trial Court as well as the First Appellate Court were in error in holding that advance of 1,00,000/- was paid by the plaintiff to the defendant, especially when no evidence is led to prove that plaintiff was in possession of 1,00,000/- in cash.

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In the plaint, there are no averments to the effect that plaintiff was and is always ready and willing to perform her part of contract and that she was ready with the balance sale consideration of `2,00,000/-. In fact, she has also not issued any legal notice to the defendant calling upon him to receive the balance consideration and

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register the sale deed. On this aspect, the First Appellate Court has made an observation that since plaintiff and defendant are neighbours, the plaintiff might not have sent any legal notice, which is not even the case of plaintiff. In fact, there are no averments in the plaint as to why the legal notice was not sent. Therefore, the findings of the First Appellate Court that the plaintiff has proved that she was ready and willing to perform her part of contract is contrary to the evidence placed on record and as such it is perverse.

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Moreover according to the plaintiff when the sale agreement and consideration receipt at Exs.P1 and 2 were executed, tenant was inducted in the suit schedule property and therefore the plaintiff postponed execution of Sale deed by three years i.e, after completion of the lease period. However, plaintiff has denied that any tenant was in possession of suit schedule property when Exs.P1 and 2 were allegedly executed in 2008. He has claimed that only during 2013, he let out the suit property as per Ex.D 26 and extended the lease for one more year

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as per Ex.D27. Ex.D1 to 24, 26 and 27 clearly indicates that plaintiff continued business in the suit schedule property by renewing the license etc. The plaintiff has not placed any material on record to establish who was the tenant who was in possession of suit schedule property when Exs.P1 and 2 came to be executed. Therefore, rightly the trial Court has answered issue No.3 in the Negative and in the light of Exs.D1 to 24, 26 and 27, the First Appellate Court is not justified in reversing the findings on the said issue. Since the plaintiff has failed to prove issue Nos.1 to 3, the plaintiff is not entitled for any of the relief sought in the plaint and entire suit is liable to be dismissed. In the result the appeal is allowed and accordingly, the following:

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ORDER

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(i) Appeal filed by the appellant/defendant under Section 100 and Order 42 of CPC is allowed.

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(ii) The impugned judgment and decree dated 10.08.2016 in O.S.No.337/2014 on the file

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RSA No. 200122 of 2018

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of I Addl.Civil Judge and JMFC, Kalaburagi and judgment and decree dated 20.03.2018 in R.A.Nos.29/2016 and 31/2016 on the file of I Addl.Senior Civil Judge, Kalaburagi are set aside.

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(iii) Accordingly, suit is dismissed with cost throughout. Office to draw decree accordingly.

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(iv) The Registry is directed to send back the trial court and First Appellate Court records along with copy of this judgment forthwith.

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In view of disposal of the appeal, pending

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application/s, if any, stands disposed off, as no separate order is required.

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Sd/(J.M.KHAZI) JUDGE

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RR

Sri Narayanrao v. Smt Alkavatibai

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Sri Narayanrao v. Smt Alkavatibai

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