Sri M N Priyadatta Vs Sri Vaderaiah

SRI M N PRIYADATTA S/O LATE M NARAYANDAS, AGED ABOUT 53 YEARS, R/AT NO.6/67, POORNA HORTICULTURE, 47^TH CROSS, 8^TH BLOCK, JAYANAGAR, BENGALURU-560082

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…APPELLANT

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(BY SRI. R. VIJAYAKUMAR, ADVOCATE FOR SRI. RAMESH K S., ADVOCATE)

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AND:

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Digitally signed by SUNITHA K S

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Location: HIGH COURT OF KARNATAKA

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SRI VADERAIAH SINCE DEAD BY HIS LRS.

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SMT. MANGALAMMA G V, W/O SRI BASKAR N, AGED ABOUT 42 YEARS,

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SMT JAGADAMBA G V W/O SRI RAMAKRISHNAPPA, AGED ABOUT 40 YEARS,

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SRI JAGADISHA G V S/O LATE VADERIAH, AGED ABOUT 38 YEARS

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SMT PUSHPALATHA G V W/O SRI NAGESH B, AGED ABOUT 39 YEARS

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SRI KANAKAKUMARA G V S/O LATE VADERAIAH, AGED ABOUT 32 YEARS

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RESPONDENT NOS 1 TO 5 ALL ARE R/OF GUDIMAVU VILLAGE, KUMBALAGODU POST, KENGERI HOBLI, BANGALORE SOUTH TALUK, BENGALURU-560074

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SMT LAKSHMAMMA W/O LATE VADERAIAH, AGED ABOUT 56 YEARS, R/OF GUDIMAVU VILLAGE, KUMBALAGODU POST, KENGERI HOBLI, BANGALORE SOUTH TALUK, BENGALURU-560074

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SRI CHAND PASHA S/O LATE SAABCHAND SAHEB, AGED ABOUT 60 YEARS, R/AT NO.115, 3^RD CROSS, OLD GUDDADAHALLI, MYSORE ROAD, BENGALURU-560026

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…RESPONDENTS

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(BY SRI. D.R. RAVISHANKAR, SR. COUNSEL FOR SRI. T.H. NARAYANA, ADVOCATE FOR R1, R2 & R6 SRI. S R HEGDE HUDLAMANE, ADVOCATE FOR R3 TO R5 R7 NOTICE H/S VIDE ORDER DATED 16.12.2024)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.10.2017 PASSED IN RA NO.43/2016 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 18.1.2016 PASSED IN OS NO.190/1997 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.

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THIS APPEAL, COMING ON FOR 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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This Regular Second Appeal is filed by the appellant, challenging the Judgment and Decree dated 27.10.2017 passed in R.A. No. 43/2016 by the learned I Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru confirming the judgment and decree dated 18.01.2016 passed in O.S. No. 190/1997 by the learned I Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru.

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For convenience, the parties are referred to, based on their ranking before the trial court. The Appellant was Plaintiff No. 2, Respondent No. 7 was Plaintiff No. 1 and the other respondents were the other defendants.

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Brief facts, leading rise to the filing of this

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Appeal are as follows:

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The plaintiffs filed a suit against the defendants for specific performance of the contract. It is the case of the

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plaintiffs that, defendant No. 1 is the husband of defendant No. 2. Defendant No.1 is the absolute owner of the suit schedule property. It is contended that, Defendant No. 1 entered into an agreement of sale with Plaintiff No. 1, agreeing to sell the suit schedule property for a sum of Rs.30,000/- per acre. The Sale agreement was reduced to writing on 26/10/1993. It is contended that, on the same day, Plaintiff No. 1 paid Rs.20,000/- as an advance sale consideration amount. It was agreed that the balance sale consideration amount would be paid at the time of registration of the sale deed. The Defendants handed over the possession of the suit property to Plaintiff No. 1 in part performance of the contract, including 115 mango trees. It is contended that, on the request of the defendants, Plaintiff No. 1 paid Rs.40,000/on 17.11.1994, Rs.17,000/on 09/01/1995 and Rs.58,000/on 01/11/1996. It is contended that, out of the payments mentioned above, the defendants did not acknowledge the receipt of the last payment and the same was not recited in the sale agreement. It is further contended that,

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plaintiff No. 1 executed the Assignment deed on 05/09/1996, and handed over the possession of the suit schedule property in favour of Plaintiff No.2. The Defendants avoided the execution of the registered sale deed. The plaintiffs issued a legal notice on 03.01.1997, calling upon the defendants to perform their part of the contract, but the defendants failed to comply with the demand made in the notice. It is contended that, the plaintiffs are/were always ready and willing to perform their part of the contract. The plaintiffs are ready to pay Rs. 58,000/- once again, if the Courts hold that the last payment was not proved by the Plaintiffs. Hence, a cause of action arose for the plaintiffs to file a suit for specific performance of the contract. Accordingly, prays to decree the suit.

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Defendants No. 1 and 2 filed a written

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statement and an amended written statement denying the averments made in the plaint. It is contended that, the suit property is the joint family property of defendant No.

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1, and he has no exclusive right to sell it. It is contended that the suit results from a strained relationship between the Plaintiffs and the Defendants. The sale agreement is not sufficiently stamped and the plaintiffs are required to pay the stamp duty as per Article 20 of the Karnataka Stamp Act, 1957. The sale agreement is inadmissible in evidence. The suit property is an agricultural land, and the plaintiffs cannot purchase the same, as the plaintiffs are businessmen and at no point in time they were agriculturists. It is contended that, if the partition is effected to the suit property, then Defendant No. 1 may get a lesser share than, stated in the sale agreement. It is contended that if specific performance is granted, the defendants will be deprived of their only source of livelihood. The suit is barred by limitation. Accordingly, prays to dismiss the suit.

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During the pendency of the suit, Defendant No. 1 died, and his LR’s were brought on record. Defendants No. 1(a) to 1(e) filed a written statement reiterating the

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averments made in the written statement of defendant No.

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1 and 2. Accordingly, prays to dismiss the suit.

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The Trial court, based on the pleadings of the

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parties, framed the following issues:

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1. Whether the plaintiffs prove that the defendants being the owners of the suit schedule property have entered into an agreement of sale agreeing to sell the same for Rs. 30,000/- per acre and on 26/10/1993, they have executed an agreement of sale by receiving part consideration of Rs. 20,000/- from the plaintiffs and also parted with possession of the property as alleged?

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2. Whether the plaintiffs further prove that the defendants have received the entire consideration amount under the circumstances pleaded in para 5 to 10 of the plaint?

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3. Whether the plaintiffs are ever ready and willing to perform their part of the contract as alleged?

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4. Whether the defendants prove that the suit schedule property is the joint family property and the 1^st defendant alone has no right to alienate the property exclusively as alleged?

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5. whether the defendants prove that the plaintiffs have created suit documents under the

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circumstances in para 12 of the written statement?

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6. Whether the plaintiffs are entitled for relief of specific performance of contract against the defendants as prayed?

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7. To what relief if any the parties are entitled?

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The plaintiffs to substantiate their case, the GPA

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holder of plaintiff No.2 was examined as PW-1, examined 2 witnesses as PW-2 and PW-3 and marked 9 documents as Ex.P.1 to Ex.P.9. During cross-examination of DW-1, documents at Ex.P.10 to P.12 were marked. Conversely, defendant No.1 was examined as DW-1, examined 4 witnesses as PW-2 to PW-5 and marked 12 documents as Ex.D.1 to Ex.D12. During the cross-examination of PW-1 documents at Ex.D.13 and Ex.D.14 were marked. The Court Commissioner was examined and 5 documents at Ex.C.1 to Ex.C.5 were marked.

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The trial court, after recording the evidence,

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hearing both sides and on assessing the verbal and documentary evidence, answered issue No. 1 to 3 and 6 in

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the negative, issue No. 4 and 5 in the affirmative and issue No. 7 as per the final order. The trial court dismissed the suit of the plaintiff with cost vide judgment dated 18.01.2016. The Plaintiffs, aggrieved by the judgment and decree passed by the trial court in O.S. No. 190/1997, preferred an Appeal in R.A. No. 43/2016 on the file of I Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru.

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The first appellate court, on hearing the learned

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counsel for the parties, framed the following points for consideration:

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1. Whether the plaintiffs have established that the defendants had executed an Agreement of sale dated 26-10-1993 in respect of suit schedule properties by receiving entire sale consideration amount?

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2. Whether the plaintiffs have established that they are legally entitled for the relief of specific performance?

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3. Whether the learned trial judge was right in dismissing the suit?

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4. What order?

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On hearing both sides, and on reassessing the verbal and documentary evidence, the first appellate Court answered point No. 1 and 2 in the negative, point no. 3 in the affirmative, and point No. 4 as per the final order. The first appellate court dismissed the appeal vide judgment dated 27.10.2017. Plaintiff No. 2, aggrieved by the judgments and decrees passed by the courts below, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for plaintiff No. 2 and the Defendants.

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Learned counsel for Plaintiff No.2 submits that plaintiff No.1 and the defendants entered into sale agreement regarding the suit schedule property agreeing to sell the same. He submits that in part performance of the contract, the possession of the suit property was delivered to the plaintiffs. The plaintiffs have proved the execution of the sale agreement. He submits that the trial Court did not properly appreciate the evidence of PW-3 i.e., an expert and denied to accept the report of the

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expert only on the ground of delay. He submits that the Courts below have not adequately considered the evidence on record. The impugned judgments passed by the Courts below are arbitrary, erroneous and perverse. Accordingly, prays to allow the appeal.

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Per contra, the learned counsel for the

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defendants supported the impugned judgments and submitted that the defendants have not executed any sale agreement or General Power of Attorney in favour of plaintiff No.1. He submits that plaintiff No.2 has not entered the witness box. He also submits that there is a variation in description of the property mentioned in Ex.P.2 and the plaint schedule. The Courts below were justified in passing the impugned judgments. Hence, prays to dismiss the appeal.

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Perused the records and considered the submissions of the learned counsel for the parties.

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This Court admitted the appeal on 02.12.2019,

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to consider the following Substantial Questions of Law:

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a. Whether the appellant, in the facts and circumstances of the case, call in question the impugned judgment and decree in Original suit and First Appeal, which are jointly instituted by the appellant and respondent No. 7, without the respondent No. 7 joining the appellant in filing this appeal.

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b. Whether the Appellate court is justified in ignoring the evidence of PW-3, a forensic expert who examined the disputed signatures and the left thumb impressions in the agreement, on the ground of delay in filing the report, and if such report is considered, could there be a judgment in favour of the appellant and respondent No. 7.

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c. Whether the courts below have failed to consider the different proceedings pending between the appellant and respondents and the significance of compromise decree in O.S. No. 1390/2008, and if they have failed to consider such evidence, have they kept out of consideration material evidence which if considered could result in a judgment and decree of the appellant and respondent No. 7.

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Re. Substantial Question Of Law 1:

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The plaintiffs filed a suit against the defendants

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for specific performance of the contract. The trial Court, after recording the evidence, on assessing the verbal and documentary evidence, dismissed the suit of the plaintiffs with cost vide judgment dated 18.01.2016. The plaintiffs aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.43/2006 on the file of the learned I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru. The first appellate Court, on reassessing the verbal and documentary evidence, dismissed the appeal vide judgment dated 27.10.2017. Plaintiff No.2, aggrieved by the impugned judgments, filed this Regular Second Appeal, wherein, plaintiff No.1 refused to join plaintiff No.2 in the second appeal as an appellant.

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To consider the case on hand, it is necessary to

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examine Order 41 Rule 4 of Code of Civil Procedure, 1908 (for short CPC) which reads as follows:-

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“4. One of the several plaintiffs or the defendants may obtain a reversal of whole decree, where it proceeds on ground common to all:- “Where there are more plaintiffs or more defendants then one in a suit, the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or defendants may appeal from the whole decree, and there upon the appellate Court may reverse or vary the decree in favour of all the plaintiffs and defendants, as the case may be.

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A reading of Rule 4 of Order 41 of the CPC provide that any one of the party can challenge the decree on common grounds to all the plaintiffs or to all the defendants. Merely because only plaintiff No.2 had appealed and not plaintiff No.1, the Court is not powerless. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant/plaintiffs. The said view is supported by the judgment of the Hon’ble Apex Court in the case of Chandramohan Ramchandra Patil and others Vs. Bapu Koyappa Patil (dead) through legal representatives and others reported in AIR 2003 SC

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1754 .

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Considering the ratio laid down by the Hon’ble

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Apex Court in the case of Chandramohan Patil ( supra ) any one of the parties can maintain an appeal as per the provisions of Order 41 Rule 4 of CPC. In view of the above discussion, I answer the substantial question of law No.1 in the affirmative.

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Re-substantial question of law No.2 & 3.

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Substantial question of law Nos.2 and 3 are

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interlinked. Hence, they are taken together for common discussion to avoid the repetition of facts.

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The plaintiffs, to prove their claim, the GPA

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holder of plaintiff No.2 examined himself as PW-1. He deposed that defendants being the owners of the suit schedule property have entered into sale agreement agreeing to sell the suit schedule property for a consideration of Rs.30,000/- per acre and on 26.10.1993 the defendants executed a sale agreement by receiving part of the sale consideration amount i.e., Rs.20,000/from plaintiff No.1 and parted with the possession of the

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suit property. It was agreed that the balance sale consideration amount to be paid at the time of registration of the sale deed and in part performance of a contract, the defendants have handed over the possession of the suit schedule property, including 115 Mango trees.

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It is contended that defendants agreed to execute the general power of attorney regarding the suit schedule property after receiving the balance sale consideration amount in the name of plaintiff No.1. He deposed that the defendants requested a payment of another Rs.40,000/- and plaintiff No.1 paid a sum of Rs.40,000/on 17.11.1994 and the defendants acknowledged the same along with daughters. The defendants demanded a sum of Rs.17,000/- from plaintiff No.1. Plaintiff No.1 again paid Rs.17,000/- on 09.01,1995 which is also acknowledged by the defendants. Plaintiff No.1 also paid Rs.58,000/- on 01.11.1996, as such plaintiff No.1 has paid whole consideration amount.

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He deposed that plaintiff No.1 has paid the entire sale consideration amount. Plaintiff No.1 executed an Assignment Deed in favour of plaintiff No.2 on 05.09.1996 and handed over the possession of the suit property. The defendants avoided the execution of the registered sale deed in favour of plaintiff No.2. The plaintiffs to demonstrate that they were/are always ready and willing to perform their part of contract, issued a legal notice and it was duly served on the defendants. The defendants neither performed their part of contract nor complied with the demand made in the legal notice. He deposed that the plaintiff was ready and willing to perform his part of the contract. To prove the claim of the plaintiffs, the plaintiffs have produced the documents Ex.P.1 is the special power of attorney executed by plaintiff No.2 in favour of one Shivashankar regarding suit schedule property. Ex.P.2 is the original sale agreement dated 26.10.1993 alleged to have been executed by the defendants in favour of plaintiffs No.1. Ex.P.3 is the assignment deed entered into between plaintiffs No.1 and

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Ex.P.4 is the office copy of the legal notice, which discloses that the plaintiffs have issued a legal notice to the defendants calling upon the defendants to execute a registered sale deed in favour of the plaintiffs regarding the suit schedule property, Ex.P.5 is the registered postal receipt, Exs.P.6 and P.7 are the undelivered postal covers, Ex.P.8 is the reply notice dated 18.02.1997 sent by the defendants to the plaintiffs, Ex.P.9 is the certified copy of the plaint in O.S.No.898/1996, which discloses that the family members of defendants filed a suit for partition and separate possession regarding the suit schedule property. Ex.P.10 is the certified copy of the vakalath of defendant No.1 filed in O.S.No.190/1997, Ex.P.11 is the amended written statement filed by defendant No.1 herein, in O.S.No.190/1997, Ex.P.12 is the certified copy of the deposition of DW-1 herein, in O.S.No.8/1995.

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During the cross-examination of PW-1, he admitted that PW-1 and defendants are not in talking terms and several cases are pending between them. He

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admitted that the plaintiffs have not produced any documents to establish the existence of 115 Mango trees on the suit schedule property. Further, he is not in a position to depose as to the boundaries of suit schedule property and admitted that khata of the suit schedule property is not standing in the names of the defendants and it is still in the name of Hulluraiah i.e., the father of defendant No.1. He also admits that a partition suit is filed by the family members of defendants in O.S.No.1390/2008. He also admitted that at the time of execution of the sale agreement, plaintiff No.1 collected all the revenue records from the defendants and no such documents were produced before the Court. He states that he has not signed Ex.P.2 and Ex.P.3 though he was present at the time of entering shara at Ex.P.2. Further, the plaintiffs have not explained any reasons for nonproduction of the revenue records before the trial Court. He admits that he is not a signatory to Ex.P.3. The alleged assignment deed was executed by the plaintiff No.1 in favour of plaintiff No.2. He also admitted that the

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defendants have not signed the shara at Ex.P.2(b). PW-1 admitted that the suit is not filed regarding the property mentioned in the schedule to Ex.P.2 and admitted that, Ex.P.3 was not executed regarding the property mentioned in Ex.P.2.

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The plaintiffs examined one Ramaiah as PW-2 who deposed that there was a sale agreement executed between plaintiff No.1 and the defendants. The defendants received the entire sale consideration amount and affixed their signatures on the sale agreement and in part performance of a contract, the defendants have delivered the possession of the suit schedule property and the plaintiffs are in possession and enjoyment of the suit schedule property.

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During the course of cross-examination of PW2, it is elicited that he was not present on 26.10.2993 when sale agreement was entered into between plaintiff No.1 and the defendants also admits that there is no signature on Ex.P.2. It was elicited that PW-2 has deposed

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as a witness against the defendants in O.S.No.8/1995.

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From the perusal of the evidence of PW-2 it becomes clear

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that there was an animosity between PW-2 and the defendants and he has deposed against the defendants in O.S.No.8/1995 and his signature is not found in Ex.P.2.

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The plaintiffs also examined one C.V. Jayadevi as PW-3, who is the handwriting expert. She deposed that she has examined the disputed signatures and the admitted signatures. She is of the opinion that the disputed signatures at Ex.D.1 and Ex.D.4 are made by the person who made the admitted the signatures on S1 and S.10. The evidence of PW-3 supports the case of the plaintiff to prove the execution of the sale agreement. Nothing has been elicited to disbelieve the evidence of PW3. But the trial Court has refused to consider the report of the Court Commissioner solely on the ground that PW-3 took more than 8 months to submit her report. Thus, the witness has not properly explained the delay. However, the witness has stated that due to pressure of work, she

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was unable to submit the report in time. The trial Court has committed an error in disbelieving the report of the Court Commissioner only on the ground that, she submitted the report after more than 8 months.

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Conversely, defendant No.1 was examined as DW-1. He reiterated the written statement averments in the examination-in-chief and denied the execution of the sale agreement in favour of plaintiff No.1 and the power of attorney. He has deposed that as on the date of execution of alleged sale agreement the defendants were not the owners of the suit schedule properties and the suit schedule property is the joint family property of the defendants. To prove the defence of the defendants, the defendants produced the documents Ex.D.1 is the genealogical tree, Ex.D.2 is the OPD sheet of defendant No.1, Ex.D.3 is the certified copy of the deposition of Shivashankar, who deposed as DW-2 in O.S.No.413/1994, Ex.P.4 is the certified copy of the order passed in W.P.No.14957/2007 and another connected matter,

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Ex.D.5 is the certified copy of the order sheet of Karnataka Lokatukta, Ex.D.6 is the copy of the complaint, submitted by the plaintiff i.e., PW-1 to the Lokayukta Bengaluru, Ex.D.7 is the certified copy of the judgment passed in C.C.No.1021/2003. Ex.D.8 is the certified copy of the plaint in O.S.No.8/1995 wherein, defendant No.1 filed a suit for partition and separate possession. Ex.D.9 is the certified copy of the order sheet in O.S.No.1390/2008, Ex.D.10 is the certified copy of the plaint in O.S.No.1390/2008, Ex.D.11 is the compromise petition filed in O.S.No.1390/2008, Ex.D.12 is the notice issued by the Executive Officer, Taluka Panchayat, Bengaluru South Taluk in VPC appeal No.CR.No.6/2008-09 filed by PW-1 i.e., GPA holder of plaintiff No.2, Ex.D.13 is the copy of Genealogical Tree, Ex.D.14 is the Vakalath, Ex.D.15 is the original sale deed dated 06.11.2001 which discloses that the defendant No.2 herein has purchased a property bearing Sy.No.35 measuring 1 acre 9 guntas.

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During the course of cross-examination of DW-

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1, it was elicited that six cases pending between PW No.1

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and defendant No.1. The defendants have also examined five witnesses, DW-4 and DW-5 are the daughters of defendant No.1. DW-2 – DW-5 elicited no single word favourable to the plaintiffs. From the perusal of the entire evidence of PW-1 to PW-3 it discloses that the defendants have executed Ex.P.2 i.e., the sale agreement. From the perusal of the sale agreement, it clearly discloses that there is a variation in the boundaries shown in Ex.P.2. Further PW-1 has admitted that no documents are produced to establish the existence of 115 Mango trees in the suit schedule property and also admitted that there is a variation in the boundaries mentioned in the Ex.P.2, Ex.P.3 and the schedule properties and PW-1 has admitted that the suit is not filed regarding the properties mentioned in Ex.P.2. The plaintiffs have not entered the witness box. Plaintiff No.2 is examined through her power of attorney holder. PW-1 has no personal knowledge

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regarding the alleged transaction between the plaintiffs and the defendants.

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The evidence of PW-1 cannot be considered as he has no personal knowledge. The Hon’ble Apex Court in the case of Janki Vashudev Bhojwani and another Vs. IndusInd Bank and others reported in AIR 2005 SC 439 wherein it is held as follows:

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“Order 3 Rule 1 and 2 of CPC empowers the power of attorney holder to act on behalf of the principle. The word ‘acts’ employed in Order 3 Rules 1 and 2 of CPC confines only in respect of ‘acts’ done by the power of attorney holder in the exercise of the power granted by the instrument. The term ‘acts’ would not include deposing in place and instead of the principle. If a power of attorney holder has rendered some acts in pursuance of the power of attorney, he may depose for the principle for the acts done by the principle and not by him. Similarly, he cannot depose for the principle in respect of the matters which only principle can have a personal knowledge and in respect of which principle is entitled to be cross examined. From the principle laid down in the above said decision it is clear that if the power of attorney holder has rendered some acts in pursuance of the power of attorney, he may depose for principle in respect of such an act.”

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But, admittedly, in the instant case, the PW-1 has not

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rendered any acts in pursuance of the Ex.P.2 and he has

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no personal knowledge regarding the alleged transaction

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between the plaintiffs and defendants. The plaintiffs have

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not explained why they have not entered the witness box.

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Learned counsel for the plaintiffs has placed reliance on the judgment of the Hon’ble Apex Court in the case of C. Kamlakkannan Vs. The State of Tamil Nadu reported in 2025 INSC 309 wherein, the Hon’ble Apex Court held that the expert testimony is made relevant by Section 45 of the Indian Evidence Act, 1872 and where the

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Court has to form an opinion upon a point as to the identity of the handwriting, opinion of the person ‘specially skilled’ in question as to identity of the handwriting is expressly made a relevant fact and further held that there can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a Court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all

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the relevant evidence and finally decide to accept or reject

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it.

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Learned counsel for the plaintiffs also placed reliance on the judgment of the Hon’ble Apex Court in Manisha Mahendra Gala and others Vs. Shalini Bhagwan Avtramani and others reported in 2024 INSC 293 wherein the Hon’ble Apex Court held as

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follows:

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29. It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much (2014) 11 SCC 790 before he entered the scene. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf of plaintiff Nos.2 to 4 i.e., the Gala’s. He was not having any authority to act as the Power of Attorney of the Gala’s at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala’s have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted.”

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From bare reading of para 29 of the judgment it discloses that power of attorney holder can only depose about the facts within his personal knowledge and not

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about those facts which are not within his knowledge or are within the personal knowledge of the person, who he represents or about the facts that may be transpired much before he entered the scene. Admittedly, it is not the case of the PW-1 that he has personal knowledge about the alleged transaction between the plaintiffs and defendants.

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The judgment relied upon by the learned counsel for the plaintiff in Manisha ( supra ) does not apply to the present case on hand.

¶165

Though, the trial Court has committed an error in declining to accept the Commissioner’s report only on the ground that the report has been submitted after 8 months, the defendants have raised a specific defence in the written statement that there is a variation in the boundaries shown in Ex.P.2, Ex.P.3 and the plaint schedule. It is settled law that unless the property in question in which relief has been sought for is identifiable, no decree can be granted regarding the same and the said agreement cannot be enforced. The Hon’ble Apex Court in

¶166

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¶167

NC: 2025:KHC:11193 RSA No. 296 of 2018

¶168

the case of Nahar Singh Vs. Harnak Singh and others reported in AIR Online 1996 SC 3 wherein the Hon’ble Apex Court held as follows:

¶169

“4. In view of the aforesaid findings of the Lower Appellate Court which could not be assailed before us by the learned counsel for the appellant, it is not for this Court to interfere with the decision of the Lower Appellate Court which has been confirmed power under Article 136 of the constitution. It is well settled that unless the property in question for which the relief has been sought for is identifiable, no decree can be granted in respect of the same. The learned counsel in the course of his arguments, however, not been able to dislodge the findings arrived at by the Lower Appellate Court merely urged that the agreement having been found to have been entered into between the parties the Court should issue the direction for enforcement of the same. We are unable to agree with this argument of the learned counsel for the appellant.”

¶170

It is well settled that unless the property in

¶171

question for which the relief has been sought is identifiable, no decree can be granted regarding the same.

¶172

The learned counsel in the course of his arguments, however not been able to dislodge the findings arrived at, by the lower appellate Court, merely urged that the agreement having been found to have been entered into between the parties and the Court should issue the

¶173

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¶174

NC: 2025:KHC:11193 RSA No. 296 of 2018

¶175

direction for enforcement of the same. I am unable to agree with his argument.

¶176

Further, the Hon’ble Apex Court in the case of Pawan Kumar Dutt and others Vs. Shakuntala Devi and others reported in 2010 (15) SCC 601 wherein the Hon’ble Apex Court held that where there is no clear identity of the property agreed to be sold. The Courts are not expected to pass a decree, which is not capable of being enforced in the Courts of law. If the arguments of the learned counsel for the appellant is to be accepted and if a decree is to be granted for specific performance of a contract, without identification of the property, it will not be possible to enforce such a decree.

¶177

The Hon’ble Apex Court in the case of Vimlesh Kumari Kulushrestha Vs. Sambhajirao and another reported in AIR 2009 SC 806 has held as follows:

¶178

“19. Reference to the said legal maxim is, in our opinion, is not apposite in the facts and circumstances of this case. By reference to the boundaries of the premises alone, the description of

¶179

31 - NC: 2025:KHC:11193 RSA No. 296 of 2018

¶180

the properties agreed to be sold did not become certain. For the purpose of finding out the correct description of the property, the entire agreement was required to be read as a whole. So read, the agreement becomes uncertain.”

¶181

From the perusal of the judgment passed by the

¶182

Hon’ble Apex Court in the cases of Nahar Singh, Pawan Kumar and Vimlesh Kumari ( supra ) wherein the Hon’ble Apex Court held that if the agreement of sale is uncertain,

¶183

it cannot be enforced. Even if a specific performance of a contract is granted, it cannot be executed and it will be only a paper decree.

¶184

The first appellate Court extracted the cross-

¶185

examination of PW-1 at page 24 of its judgment, which is as follows:

¶186

“¤¦ 2 £ÀªÀÄÆzÀÆ ªÀiÁrgÀÄªÀ µÉqÀÆå¯ï ¸ÀéwÛUÉ F zÁªÉ zÁR®Ä ªÀiÁr®èªÉAzÀgÉÃ ¸Àj. ¤¦ 2 gÀ°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀÄªÀ µÉqÀÆå¯ï ¸ÀéwÛUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ ¤¦ 3 £ÀÄß §gÉzÀÄPÉÆnÖ®èªÉAzÀgÉÃ ¸Àj.”

¶187

Considering the admission of PW-1, and the perusal

¶188

of the schedule property mentioned in Exs.P.2, P.3 and plaint schedule property it is clear that there is a clear

¶189

32 - NC: 2025:KHC:11193 RSA No. 296 of 2018

¶190

variance in the property mentioned in plaint schedule and Ex.P.2. The identity of the suit schedule property itself is in doubt and the plaintiffs have not proved the same.

¶191

The defendant has produced Ex.D.11 i.e., certified copy of the compromise decree passed in O.S.No.1390/2008 which discloses that the suit schedule property herein was not included in the compromise petition on the ground that the sale agreement was executed by defendant No.1 in favour of E. Erayya S/o. Hanumayya. Erayya is not a party to the instant suit. Ex.D.11 does not help the plaintiffs to decree the suit of the plaintiff. Both the Courts below have concurrently recorded the finding of the facts against the plaintiffs. Hence, I do not find any error in the impugned judgments. Accordingly, I answer the substantial questions of law Nos.2 and 3 in the negative.

¶192

Accordingly, I proceed to pass the following:

¶193

ORDER

¶194

The Appeal is dismissed.

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NC: 2025:KHC:11193 RSA No. 296 of 2018

¶196

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¶197

The Judgment and Decree dated 27.10.2017 passed in R.A. No. 43/2016 by the learned I Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru confirming the judgment and decree dated 18.01.2016 passed in O.S. No. 190/1997 by the learned I Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, are hereby confirmed.

¶198

No order as to the costs.

¶199

In view of the dismissal of the appeal, pending applications, if any, do not survive for consideration. Accordingly, disposed of.

¶200

Sd/(ASHOK S.KINAGI) JUDGE

¶201

BVK

Sri M N Priyadatta v. Sri Vaderaiah

Case brief

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Sri M N Priyadatta v. Sri Vaderaiah

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