Sri. H. Srinivas Pai, Vs Smt. Latha Harsha

SRI H. SATHISH PAI S/O ATE HARADI SRIDHAR PAI AGED ABOUT 59 YEARS. BOTH ARE R/AT D.NO.6-1-14 BAILURU WARD OF UDUPI CITY MUNCIPALITY OPP TALUK OFFICE UDUPI - 576 101.

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…APPELLANTS

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(BY SRI PRASANNA V.R, ADV.)

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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AND:

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SMT. LATHA HARSHA AGED ABOUT 75 YEARS D/O LATE H VITTAL PAI W/O HARSHA C R/AT NO. 418, XI MAIN SWIMMING POOL ROAD SWARASWATHIPURAM MYSURU - 570 009.

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SMT. RATHNA HEGGADE AGED ABOUT 61 YEARS D/O LATE H VITTAL PAI W/O SRI. D M HEGDE R/AT 2C, POOJAPURA APARTMENTS,

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NC: 2025:KHC:36544 RSA No. 759 of 2023

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130, ST MARS ROAD, ADYAR, CHENNAI - 600 018.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC. 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.01.2023 PASSED IN RA NO. 30/2019 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.04.2019 PASSED IN OS NO. 98/2006 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, UDUPI.

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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 V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Prasanna V.R, learned counsel for the

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appellants.

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Unsuccessful plaintiffs are the appellants challenging the decree of dismissal of the suit for specific performance in respect of the following property (hereinafter referred to as suit schedule property) in O.S.No.98/2006 confirming in R.A.No.30/2019.

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Schedule 'A': Description of the plaint immovable property

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Non-agricultural house site property situated in No.76 Badagabettu Village of Udupi Taluk and in Bailoor Ward (Formerly Volakad Ward) of Udupi City Municipality bearing S.No.93/11B (93/11B1p-1 as per the computerized RTC) - Punja (middle-western portion) measuring about 52 cents and coming within the following Boundaries.

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Boundaries:

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East : Voni or lane South : Plot of Sri Y.C.S. Hegde, Advocate, Udupi West : Road, North : Land of Alevoor Kuppanna Bhat (Since deceased)

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N.B.: The above property with a tilted residential building bearing Udupi Municipal D.No.61-14, about 25 coconut trees and plants, 4 mango trees, 6 jack fruit trees, 2 young teakwood trees, a well with a electric pump set installed to it, rights of way water and other easements and all other appurtenances thereto with mud compound walls and an iron gate with 2 stone pillars on the western wall."

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Facts in the nutshell for the disposal of the present

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appeal are as under:

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3.1. Plaintiffs filed a suit for specific performance of oral agreement to sell in respect of aforesaid suit property by contending that defendant is the elder brother of the plaintiff's father namely Haradi Sridhar Pai.

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3.2. The plaintiffs are the owners of 2/3^rd undivided share in Moolageni in plaint 'A' schedule property. They agreed to purchase the remaining 1/3^rd share of the defendant by oral agreement and same was denied by the defendant and therefore sought for specific enforcement.

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Suit on due contest came to be dismissed.

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NC: 2025:KHC:36544 RSA No. 759 of 2023

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The plaintiffs filed an appeal before the First Appellate Court in R.A.No.30/2019 dismissing the suit of the plaintiffs. Learned Judge in the First Appellate Court, after securing the records, re-appreciated the material on record on legal and factual aspects and dismissed the appeal of the plaintiffs inter alia holding in paragraph Nos.20 to 24 as under:

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" 20. PW2 and PW3 are the two witnesses have deposed that they accompanied the PW1 to Chennai and they are all went to the house of defendant and sale talk was held and the defendant agreed to sell the 1/3 share in favour of the plaintiff for sale consideration amount of Ra.10,00,000/-. During the cross examination he has stated that on 25.06.2006 when they went to the house of Vittal Pai he come to know that he is suffering from ill health and hence they immediately return. PW3 in his cross examination it has come on record that they went the house of the defendant.

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21. DW1 is the husband of the defendant No.1(c), has denied the oral agreement said to have been held between the deceased defendant and the plaintiffs. He denied the suggestions that on 24.06.2006 PW1 to 3 visited the house of deceased defendant No.1 and sale talk took place and the oral agreement was entered in.

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22. The plaintiffs have produced certified copy of registered deed of family agreement marked at Ex.P1, copy of the registered release deed dated 26.10.1967 marked at Ex.P2. Copy of the sale deed dated 27.07.1973

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marked at Ex.P3, copy of release deed dated 23.12.1985 marked at Ex.P4. However, there is no dispute regarding the rights of the parties to the suit with regard to the suit schedule property. The defendant No.1 never denied the 2/3 share of the plaintiffs over the schedule property. His contention is he is having 1/3 share in the suit schedule property. In OS No.15/1991 the plaintiff in order to prove the oral agreement has relied upon Ex.P5, a letter addressed to the defendant and plaintiffs dated 17.06.2006. On perusal of the said letter the defendant No.1 wrote a letter to the plaintiffs, he offered to demarcate 2/3 portion of plaintiffs and his 1/3 portion by providing proper access and passage to the main entrance. Nowhere in the Ex.P5 had deceased defendant expressed his intention to enter into agreement of sale with the plaintiffs to sell the suit schedule property. The plaintiffs have also produced Ex.P6 to Ex.P20. Out of which Ex.P17 to Ex.P20 are the photos and CD. Ex.P13 to P16 is the bank pass book and FD receipts. It is the contention of the plaintiffs that in order to perform their part of contract, they deposited consideration amount and they are ready and willing to perform their part of contract. Before proving the ready and willingness to perform their part of the contract it is incumbent upon the plaintiffs to prove the oral agreement of sale entered between themselves and deceased defendant. In support of the case of the defendant, the legal representatives have relied upon Ex.D1 to Ex.D21 which reflects that the filing of OS No.15/1991, the written statement filed by

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the plaintiffs herein in that suit and final judgment passed in that suit, filing of final decree proceedings etc.

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23. It is the contention of the plaintiffs that under the oral agreement of sale deed dated 24.06.2006, it was agreed that sale deed should be executed within two months from 24.06.2006 and the plaintiff shall pay the sale consideration amount of Rs.10,00,000/- Since it is difficult to the defendant to come for registration he obliged for execution of special power of attorney. It is also the case of the plaintiffs that expenses of the registration should be borne by them. After registration of sale deed the suit for partition filed by the defendant should to be withdrawn. It was agreed to under agreement of sale in writing as per the terms of the earlier oral agreement of sale dated 24.06.2006. Assuming that the deceased defendant refused to execute the sale deed, the plaintiffs filed suit for specific performance. None of the above terms said to have been agreed between the defendant and the plaintiffs, in the oral agreement has been proved by the plaintiffs. Merely because PW1 to 3 went to the house of deceased defendant at Chennai that does not mean that the plaintiffs have proved the oral agreement executed by the deceased defendant. Except lengthy pleadings in the plaint, they are not proved by cogent reliable evidence.

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24. On perusal of the oral and documentary evidence adduced by both the parties to the suit, the trial court has rightly come to the conclusion that the plaintiffs have failed to prove the oral agreement of sale dated 24.06.2006 and rightly dismissed the suit of the plaintiffs

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for the relief of specific performance. Having regard to the facts and circumstances of the case, oral and documentary evidence adduced by the parties and perusal of the judgment and decree of Learned trial Judge, I am of the considered opinion that the trial court was justified in dismissing the suit of the plaintiff. The judgment of the trial court calls for no interference. The trial court rightly refused the relief of specific performance in favour of the plaintiffs. Hence the approach of the trial court in dismissing the suit is justified under law. For the above reasons, I answered the points No.1 and 3 in the Negative and point No. 2 in the Affirmative."

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Being further aggrieved by the same, plaintiffs have

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filed the present appeal on the following grounds and substantial questions of law:

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"GROUNDS

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The Judgement and Decrees under challenge are contrary to law, facts and materials placed on record.

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The Judgement and Decrees under Appeal are perverse, capricious and illegal, which needs to be setaside.

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The Trial Court has failed to draw proper inferences from the admitted and proved facts and those drawn are erroneous.

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The Judgement and Decree of the Trail Court suffers from incorrect assumption and presumption in the absence of proof of defense set up by the Defendant, even though the Plaintiffs have established their participation in the meeting with the Defendant and his wife in his house at Chennai on 24.06.2006 with the presence of PW-2 & PW-3.

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The Trial Court has failed to appreciate the pleading and evidence of the parties to the lis and also failed to appreciate the fact that the Defendants have not stepped into the witness box to lead evidence based on their personal knowledge about the oral agreement pleaded by the Plaintiffs and evidence of PW-2 & PW-3, which is fatal to their defense and any evidence of DW1 claiming to be the GPA holder of Defendants would be only hearsay and cannot have any substitution to the evidence of Defendant in person as the GPA holder can lead evidence only based on his/her personal knowledge and what acts done pursuant to such GPA only.

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The oral agreement is not barred or prohibited under any law and when such oral agreement is disputed and denied by the other party, as required by law the party who relies upon such oral agreement to prove the same, as such, in the present case on hand, the Plaintiff No.1 got himself examined as PW-1 and also got examined PW-2 and PW-3 who were witnessed the discussion of Plaintiffs and Defendant in his house at Chennal on 24.06.2006 where oral agreement being concluded pursuant to the letter dated. 17.06.2006 issued by the Defendant which letter is not in dispute. Therefore, the Trail Court has failed to appreciate the presence of witnesses PW-2 and PW-3 who stood with the Plaintiffs in proving the oral agreement concluded on 24.06.2006 as pleaded and proved by the Plaintiffs, besides in the absence of any contrary evidence by Defendant himself.

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The Trial Court has filled to appreciate the fact based on the evidence of the parties as to the reason for such oral agreement on 24.06.2006 and reason which prevented the Plaintiffs to get the same written, besides the Defendant being the co-owner to the extent of his undivided 1/3rd right who instituted OS No.15/1991 seeking partition and separate possession which is pending In FDP No.8/2011; to have amicable settlement, Invited the Plaintiffs by way of Ex.P-5 letter dated.17.06.2006 to have negotiation, division, etc., which rendered the judgement and decree dismissing the suit by the Trail Court unsustainable.

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The Trial Court assumed and presumed that there was no oral agreement between the Plaintiffs and Defendant as pleaded and projected in their evidence as the presence of PW-2 and PW-3 at the house of the Defendant on 24.06.2006 was not mentioned in the plaint and it is an improvement in the evidence of PW1, in view of the fact that the law of pleading specifically provides that the pleading should be precise and only relevant facts must be pleaded and all supporting evidence and legal issues need nto be pleased. As such, non- mentioning the names of witnesses for the oral agreement in the plaint does not vitiate the plaint or fatal to the case of the Plaint as assumed by the Trial Court. When the Trial Court allowed the list of witness filed by the Plaintiffs and permitted them to examine PW-2 & PW-3, drawing presumption that as their names are not pleaded in the Plaint, their evidence cannot assist the Plaintiff in proving oral agreement is unsustainable.

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The Trial Court has further erred in law in expecting the pleading about the presence of PW-2 & 3 during the oral contract relating to sale of undivided 1/3rd right by H Vittal Pai ignoring the cardinal principles of drafting that the pleading should be concise, clear and limited to the interpretation that the pleader wishes to convey and not only should the pleading be brief, but it also needs to be precise and accurate.

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The Trial Court has erred in law while dismissing the suit for specific performance of contract based on an oral agreement held on 24.06.2006 between the Plaintiffs and predecessor of the Defendants H Vittal Pai at Chennai for sale of his 1/3rd undivided right by answering Issue No. 1 to 3 as negative and not proceeding to give finding on Issue No.4 & 5 as not arise for consideration In view of finding on Issue No.1 to 3 infavour of the Defendants, assuming that there is no evidence proving the oral contract and ignoring the evidence of PW-2 and PW-3.

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The Trial Court has erred in disbelieving the evidence of PW-2 and PW-3 as contradictory to the evidence of PW-1 as minor discrepancy in the evidence of parties

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which being recorded after long lapse of time cannot be a ground to disbelieve the same.

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The Trial Court has failed to draw adverse inference against the Defendants as they failed to enter the witness box in order to substantiate their defense. Even the Trial Court has failed to appreciate the fact that non examination of Latha Harsha Invites drawing of adverse inference against the Defendants, having considered the Ex.P-17 to P-20 photographs in proof of oral contract being held, which resulted in miscarriage of justice.

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The First Appellate Court has failed to re-appreciate the pleading and evidence of the parties to the suit. Except narrating the pleading and evidence and also the finding of the Trial Court, no finding is given by the First Appellate Court by assessing and weighing the evidence on its proper perspectives and only in Paragraph No.24 of the Judgement, the First Appellate Court has observed that the Trial Court has rightly come to the conclusion that the Plaintiffs have failed to prove the oral agreement of sale dated.24.06.2006 and rightly dismissed the suit, which is erroneous approach of the First Appellate Court on the case of the parties.

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The First Appellate Court has erred in law in not considering the grounds urged in the appeal with ref. to pleading and evidence of the parties and also decisions cited by the Plaintiffs, and erroneously concurred with the finding of the Trial Court, rending miscarriage of justice.

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No other proceedings or litigation relating to the subject matter or any part thereof either past or present is pending before this Hon'ble Court or any other Court of law.

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SUBSTANTIAL QUESTION OF LAW

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(i) Whether the Trial Court has justified in dismissing the suit of the Plaintiff for specific performance erroneously disbelieving the evidence of PW-2 and PW-3 being the witnesses to the agreement entered into orally

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between the Plaintiff and Defendants in his house at Chennai ?

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(ii) Whether the Trial Court has erred in law in not drawing adverse Inference against the Defendants who failed to enter witness box and the evidence of DW-1 claiming to be their GPA holder becomes hearsay evidence?

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(iii) Whether the Trial Court has erred in law in not giving finding on Issue No.4 & 5 holding as not survive for consideration in view of finding on Issue No.1 to 3 in the absence of any denial to that effect ?

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(iv) Whether the First Appellate Court has justified in confirming the judgement and decree of the Trial Court without re-appreciating the pleading and evidence of parties to the suit?

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(v) Whether the Judgement and decrees of the Trial and First Appellate Courts suffer from misreading the pleading and materials available on record?"

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Having heard Sri Prasanna V.R on the aforesaid grounds

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and substantial questions of law this Court did not deem fit to issue notice to the respondents.

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It is the prime contention of the plaintiffs that there was a oral agreement to purchase the remaining 1/3^rd undivided Moolageni rights from the defendants by the plaintiffs.

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Plaintiffs have failed to establish that such an oral agreement came into existence. Both the Courts have recorded categorical finding that plaintiffs failed to establish that such an oral agreement came into existence.

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When both the Courts have recorded a categorical finding that there existed no oral agreement at all, enforcement of such an oral agreement is impermissible.

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More over, an unregistered agreement is specifically unenforceable in view of the amendment to the Registration Act, 1908.

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As such, since the oral agreement is of the year 2006 and amendment has come into force on and from the year 2001, the decree of the Trial Court confirmed by the First Appellate Court in dismissing the suit of the plaintiffs does not require any interference in this appeal.

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