Sri S C Amaresh Vs Sri. Adavi Siddaiah

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.02.2025 PASSED IN R.A.NO.131/2024 ON THE FILE OF I ADDITIONAL PRL. JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.06.2023 PASSED IN O.S.NO.335/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and

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also the learned counsel for the respondents. This second appeal is filed against the concurrent funding of the Trial Court and also First Appellate Court.

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The appellant/plaintiff has filed a suit for the

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respondent in O.S.No.335/2017 seeking the relief of

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recovery of money contending that there was a sale agreement and defendant agreed to sell the property at the rate of Rs.37,00,000/- per acre and he had received advance amount of Rs.10,00,000/- from the plaintiffs and also contended in the plaint that plaintiff is making an attempt to draw the compensation amount from the 2^nd defendant awarded in respect of suit schedule property since the property was acquired by the K.I.A.D.B. After issuance of suit summons, defendant No.1 has appeared and filed written statement contending that plaintiffs have created the agreement of sale and he has not executed any agreement of sale in favour of plaintiff and suit schedule property is an ancestral and joint family property of 1^st defendant and his family members and he has no right to sell or execute the agreement and prays for dismissal of the suit. The 2^nd defendant also in the written statement contended that the averments made in the plaint are not true and contended that Sy.No.159 measuring 4 acres 36 guntas Yallapura of Tumkur District

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has been acquired by the 2^nd defendant for public purpose. The preliminary and final notifications are also issued and plaintiff and 1^st defendant have created the document and prays to dismiss the suit.

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The Trial Court having considered pleadings, framed the issues and allowed the parties to lead evidence and plaintiff got examined himself as P.W.1 and got marked document Ex.P.1 to 7 and also examined two witnesses as P.W.2 and P.W.3. On the other hand, 1^st defendant examined himself as D.W.1, but not marked any documents. The 2^nd defendant also not lead any evidence, however, Trial Court taking into note of both oral and documentary evidence, not accepted the case of the plaintiff for having advanced the amount of Rs.10,00,000/- and doubted the very evidence of P.W.1, P.W.2 and P.W.3 and also comes to the conclusion that mere examination of the P.W.2 and P.W.3, it cannot be accepted that they are the witnesses having witnessed the payment of sale consideration.

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The Trial Court having considered the material

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on record in paragraph No.15, comes to the conclusion that mere consideration of document Ex.P.2, Court cannot comes to the conclusion that the amount of Rs.10,00,000/- has been paid and no other material has been placed before the Trial Court comes to a conclusion that amount Rs.10,00,000/- was paid and plaintiff has not placed on record for having paid the amount and also not accepted the evidence of P.W.2 and P.W.3 and also the document is not a registered document and the same is an unregistered document and though contended that there was a document of Ex.P.2 and the same cannot be accepted.

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Being aggrieved by the order of the Trial Court, an appeal is filed in R.A.No.131/2024. The First Appellate Court also having considered the grounds urged in the appeal, formulated the point whether the Trial Court committed an error in holding that plaintiffs have not proved that the defendant had received an amount of

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Rs.10,00,000/- as advance amount agreeing to sell the suit schedule property and whether the Trial Court erred in holding the defendant No.1 is not able to pay any amount and whether the judgment of the Trial Court requires interference. The Appellate Court also having re-assessed the material available on record, comes to the conclusion that the defendants have denied the very execution of agreement of sale dated 13.11.2014 and also taken note of the very document of Ex.P.2 and having considered the Ex.P.2, more specifically last page of Ex.P.2, they raise a serious doubt about the genuineness of Ex.P.2 as it looks as if the signature of defendant No.1 was taken on blank stamp paper and recitals are later filled by making adjustments. It is also observed that defendant No.1 has denied the signature on Ex.P.2. The plaintiff should have taken the assistance of an expert to prove that signature found on Ex.P.2 to establish that same belongs to the defendant No.1, even if it is presumed that signature found on Ex.P.2 at that of defendant No.1 as already

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discussed, there is a serious doubt that same are obtained on blank document sheets and later filled and also in detail discussed the same that according to recitals of Ex.P.2, total advance amount agreed to be paid was Rs.60,000/and also taken note that according to the plaint averments, the plaintiff after learning that K.I.A.D.B had initiated acquisition proceedings, an attempt was made to draw the amount and they have filed the suit in O.S.No.771/2015, this shows that until filing of the said suit in O.S.No.771/2015, the plaintiff has not paid remaining advance amount. If really amount of consideration shown in Ex.P.2 is correct, then plaintiffs were entering into agreement of sale consideration worth almost Rs.1,85,00,000/-. Further, the amount of Rs.10,00,000/- is not a small amount to give it in cash, even if the amount is given by way of cash to defendant No.1, the plaintiff should have pleaded and proved how the said amount of Rs.10,00,000/- was obtained so as to give to the defendant No.1. This aspect assumes

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importance as defendant No.1 has totally denied the transaction with the plaintiff.

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The Appellate Court also having taken note of

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the evidence of P.W.1 in his evidence has admitted that he do not possess any agricultural land and also admits that suit schedule property is an agricultural land, when that being the case of the plaintiff, they have not produced any evidence to show that they are eligible to purchase the agricultural land and even discussed the evidence of P.W. 2 and P.W.3 and comes to the conclusion that it creates the doubt in the mind of the Court in order to come to a conclusion that there was a transaction and payment of Rs.10,00,000 was paid, by assigning these reasons also confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding, present appeal is filed by the counsel appearing for the appellant and appellant would vehemently contend that contend that the very finding given by both the Trial Court and First Appellate Court is perverse and also contend that First Appellate

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Court also not considered the evidence in a proper perspective and also failed to consider the admissions of the respondent.

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The First Appellate Court fails to rely upon the evidence of P.W.2 and P.W.3 who are the witnesses to the document and hence this Court has to frame substantive question of law. The counsel appearing for the respondents/defendants would vehemently contend that the property was acquired in the 2000 by the KIADB and notification was also issued long back that too in the month of July-2010 and question of entering into a sale agreement in the year 2014 that too with the plaintiff doesn't arise.

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The counsel would vehemently contend that appellant contend that when the specific denial was made with regard to the very execution of the document as well as the receipt of the amount nothing is placed on record that amount was paid to substantiate that huge amount of Rs.10,00,000/- was paid and these are the aspects that

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has considered by the Trial Court and First Appellate Court.

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The counsel appearing for the respondent No.2

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also would vehemently contend that properties were acquired by the respondent No.2 long back in the year 2010 and both the plaintiff and defendant joined together in order to defeat the very notification.

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Having heard the appellant’s counsel and also the counsel appearing for the respondent Nos.1 and 2 and also considering the material available on record, though plaintiff contend that there was a sale agreement in respect of the property agreeing to purchase the property and paid the advance amount of Rs.10,00,000/-. The counsel appearing for the appellant contend that having made the payment of Rs.10,00,000/- only on belief without examining any document. The counsel also brought to notice of this Court that even after the acquisition of the property also, the RTC which is produced as Ex.P.1 clearly discloses in the year 2017-18 also, the

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property stands in the name of the defendant. The counsel would vehemently contend that the defendant suppressed the fact of notification and obtained the amount.

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It is important to note that when the purchaser agreed to purchase the property and before advancing the amount, he has to verify the records and it is not his case that at the time of advancing an amount of Rs.10,00,000/he has received any document from the defendant. Apart from that when the execution of document of Ex.P.2 was denied and also both the Courts taken note of the document and particularly First Appellate Court also while appreciating the evidence available on record, coming to the conclusion that whether the Trial Court committed an error in appreciating the evidence in paragraph Nos.16 and 17 taken note of the defense which has been taken by the defendant and also in paragraph No.17 discussed the document of Ex.P.2 that is the agreement and also taken note of the attestation of document Ex.P.2 by P.W.2 and P.W.3 and also comes to the conclusion that mere perusal

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of the document Ex.P.2, it appears that the signature which were obtained in the document Ex.P.2 are adjusted having looked into the document of Ex.P.2 more specifically last page of Ex.P.2 raises serious doubt about genuinity of Ex.P.2 as it looks as if the signature of defendant No.1 was taken on blank stamp paper and recitals are later filled by making adjustments.

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The Appellate Court also made an observation that even signature found on Ex.P.2 and that of the defendant No.1 and also considering the contents of the document Ex.P.2, it creates serious doubt that same are obtained on blank document and even gone to the extent of considering that according to the recitals of Ex.P.2 total advance amount agreed to be paid was Rs.60,000/- and not that of Rs.10,00,000/- and even an attempt was made by filing a suit in O.S.No.771/2015 and an attempt was made to draw the compensation amount. Apart from that it is the fact that property was acquired in the year 2010 itself by the 2^nd defendant that is KIADB and document

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Ex.P.3 and Ex.P.4 evidence the fact of acquisition of the property and when such being the case, when the property was acquired in the year 2010 itself and 1^st defendant entering into an agreement for selling of the property is very doubtful and all these facts were taken note of by both the Courts and when such being the case, the very contention of the appellants’ counsel that this Court has to frame substantive question of law that both Courts given perverse finding cannot be accepted and considering the material available on record only, both Courts taken note of the relevant documents as well as the evidence available on record and not accepted the case of plaintiffs for having advanced the amount of Rs.10,00,000/- and nothing is placed on record for having made the payment and payment is made by way of cash as contended by the appellants’ counsel. Hence, the very contention that First Appellate Court also not given judicial finding on the very evidence of P.W.2 and P.W.3 cannot be accepted and question of framing of the substantive question of law on

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