Sri G S Hanumantha Reddy Vs Sri B R Srinivas

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.12.2023 PASSED IN R.A.NO.76/2019 ON THE FILE OF VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.02.2019 PASSED IN O.S.NO.473/2009 ON THE FILE OF C/C II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU (R) DISTRICT, BENGALURU.

¶28

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

¶29

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

¶30

ORAL JUDGMENT

¶31

This matter is listed for admission. I have heard learned counsel for the appellants and learned counsel for caveatorrespondent.

¶32

This second appeal is filed against the concurrent finding of the Trial Court.

¶33

The factual matrix of the case of the plaintiffs before the Trial Court is that they have filed the suit against the defendant to execute the registered sale deed in respect of the

¶34

3 - NC: 2025:KHC:44688 RSA No. 854 of 2024

¶35

HC-KAR

¶36

suit schedule property in terms of reconveyance deed dated 23.11.2002. According to them, they were the absolute owners in possession and enjoyment of the suit schedule property. They availed loan from defendant to the tune of Rs.5,00,000/during 2002 and towards security for repayment of the said amount as per his demand, they have executed sale deed dated 21.11.2022 showing as nominal for sale consideration of Rs.2,00,000/-. Further, it is stated that defendant has executed the deed of reconveyance on 23.11.2002 and suit was filed in 2009 after lapse of 7 years and suit is also barred by limitation.

¶37

In pursuance of the suit summons, the defendant appeared and filed the written statement denying the case of the plaintiffs and contended that he has not executed any deed of reconveyance in favour of the plaintiffs dated 23.11.2002.

¶38

The parties were given an opportunity to lead evidence. The plaintiffs, in order to prove their case, examined plaintiff No.1 as P.W.1 and got marked the documents Exs.P1 to P10 and also examined one witness as P.W.2. On the other hand, defendant examined himself as D.W.1 and got marked the documents as Exs.D1 to D10.

¶39

4 -

¶40

NC: 2025:KHC:44688 RSA No. 854 of 2024

¶41

HC-KAR

¶42

The Trial Court having considered both oral and documentary evidence, not accepted the case of the plaintiffs, particularly extracting the answer elicited from the mouth of P.W.1 and P.W.2 and comes to the conclusion that even if such an agreement was executed, the said recital would have been found in the document of Ex.P2. The Trial Court in paragraph No.24, comes to the conclusion that cross-examination of P.W.2 clearly establishes that P.W.2 except identifying his signature on Ex.P2, he does not know anything in respect of Ex.P1 and comes to the conclusion that evidence of P.W.2 is not supported by P.W.1 and disbelieved the case of the plaintiffs.

¶43

Being aggrieved by the said judgment and decree, an appeal is filed before the First Appellate Court. The First Appellate Court also having considered the grounds urged in the appeal memo formulated the points whether the appellants/plaintiffs were able to prove that the sale deed dated 21.11.2002 executed in favour of the defendant is only a nominal sale deed and the same was executed as a security towards the loan availed by the plaintiffs from the defendant.

¶44

5 - NC: 2025:KHC:44688 RSA No. 854 of 2024

¶45

HC-KAR

¶46

and also raised the point for consideration whether the plaintiffs were able to prove that the defendant had executed agreement of reconveyance dated 23.11.2002 and had agreed to reconvey the suit schedule property to the plaintiffs, whether the judgment and decree of the Trial Court requires interference and also considered the applications i.e., I.A.No.2 filed under Order 1 Rule 10(2) of CPC and I.A.No.3 filed under Order 6 Rule 17 and Order 41 read with Section 151 of CPC and all the points for consideration are answered as ‘negative’. On reappreciation of both oral and documentary evidence, in paragraph No.18 taken note that P.W.1 has admitted that in the sale deed dated 21.11.2002 produced at Ex.P1, the sale consideration is mentioned as Rs.2,00,000/-. He has admitted that plaintiffs executed the said sale deed in favour of the defendant. P.W.1 in his cross-examination has deposed that he had no problem to get the agreement of reconveyance executed on the same day, when the sale deed was executed. Further, P.W.1 has admitted that based on the registered sale deed, the defendant is in possession of the suit schedule property. The evidence of the plaintiffs and the documents brought on record does not inspire the confidence of the Court

¶47

6 - NC: 2025:KHC:44688 RSA No. 854 of 2024

¶48

HC-KAR

¶49

to believe the plaintiffs version that the sale deed dated 21.11.2002 is only a nominal sale deed and also taken note of Section 58(c) as well as Section 54 of the Transfer of Property Act and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding, present second appeal is filed before this Court.

¶50

The main contention of learned counsel appearing for the appellants in his argument would contend that both the Courts without properly considering and appreciating Ex.P2Deed of Reconveyance dated 23.11.2022 in favour of the plaintiffs which clearly discloses that defendant has agreed to re-convey the suit schedule property to the plaintiffs on repayment of the loan amount of Rs.5,00,000/- with interest at 2% per annum was not considered. The counsel also would vehemently contend that when an application was filed before the Trial Court to send the document of Ex.P1 as well as Ex.P2 to the handwriting expert, no order was passed by the Trial Court and proceeded to pass order on merits. The counsel also vehemently contend that the Trial Court and the First Appellate Court erred in believing the say of the defendant that he has

¶51

7 -

¶52

NC: 2025:KHC:44688 RSA No. 854 of 2024

¶53

HC-KAR

¶54

not executed Ex.P2 without properly appreciating the evidence let in by the plaintiffs and attesting witness P.W.2 and the very reasoning given by both the Courts that evidence of P.W.2 not supports the case of P.W.1 is erroneous. Hence, this Court has to admit the second appeal and frame substantial question of law.

¶55

Per contra, learned counsel appearing for caveator-

¶56

respondent would vehemently contend that when the sale deed was executed two days earlier to the date of alleged document of re-conveyance deed, what prevented the appellants to execute the document in terms of Ex.P2 on the very same day and the same was observed by the Trial Court. Apart from that, the counsel also vehemently contend that specific defence was taken that no such agreement was executed in terms of Ex.P2 and the plaintiffs have approached the Court after the delay of 7 years by filing the suit that too, seeking the relief of specific performance and the same was also taken note of by the Trial Court and discussed in paragraph No.24 of the judgment, wherein the trial Court disbelieved the case of the plaintiffs and the First Appellate Court also in detail discussed the material on

¶57

8 - NC: 2025:KHC:44688 RSA No. 854 of 2024

¶58

HC-KAR

¶59

record and comes to the conclusion, particularly in paragraph No.18, what prevented the plaintiffs from getting the document subsequent to the date of sale deed and also taken note of Section 58, particularly Section 58(c) of the Transfer of Property Act. If really, it was a loan transaction, the document would have come into existence on the very same day. Hence, no case is made out to admit the second appeal and frame any substantial question of law.

¶60

Having considered the pleadings of the plaintiffs as well as the defendant, the plaintiffs relies upon the document of Ex.P1 i.e., sale deed dated 21.11.2002 and also the agreement dated 23.11.2002 and based on Ex.P2 seeks for the relief of specific performance in respect of reconveyance deed executed by the defendant. No doubt, learned counsel appearing for the appellants brought to notice of this Court that applications were filed when the document of Ex.P2 was denied and the said applications were not considered by the Trial Court. But, when the appellants filed such applications, ought to have insisted the Trial Court to pass order on the said applications and instead, proceeded to conduct the case and when the result

¶61

9 - NC: 2025:KHC:44688 RSA No. 854 of 2024

¶62

HC-KAR

¶63

was against them, now canvassing the argument before this Court that applications were not considered. Apart from that the Trial Court also taken note of in paragraph No.24 that there was an admission on the part of P.W.1 and P.W.2 that no corollary evidence before the Court in support of the case of plaintiffs and considering the evidence of P.W.2 that he does not know anything in respect of Ex.P1 and even though P.W.1 deposed that during the execution of Ex.P1, Venkataramanareddy and Reddappa of Valepura and Gunjur were present, but, P.W.2 in his cross examination portion, contravenes the case of the plaintiffs. Hence, the Trial Court also taken note of the fact that evidence of P.W.2 is not in consonance with the evidence of P.W.1 and not supports the case of the plaintiffs. The First Appellate Court having considered the material available on record, particularly in paragraph No.18 also made an observation that, if really it was a loan transaction and sale deed was executed on the very same day, the document of Ex.P2 would have come into existence, but, the date of document i.e., Ex.P2 is subsequent to two days of the sale deed. Apart from that, the First Appellate Court also taken note of Section 58(c) of the Transfer

¶64

10 - NC: 2025:KHC:44688 RSA No. 854 of 2024

¶65

HC-KAR

¶66

of Property Act and having considered both oral and documentary evidence, when the plaintiffs were unable to prove their case that document of sale deed was only a nominal sale deed and except examining P.W.2 and whose evidence also not supports the case of P.W.1 that he was not aware of anything about Ex.P1 and when such being the case and the pleading was made that the said document is only a nominal sale deed in favour of the defendant, there must be cogent evidence before the Court that it was a nominal sale deed and the same was not proved. Hence, both the Courts have considered the material available on record in a proper perspective and no perversity is found in appreciating the evidence available on record. When such being the case, question of admitting the second appeal and framing the substantial question of law does not arise and both question of fact and question of law are considered by the Trial Court as well as the First Appellate Court. Hence, I do not find any ground to admit and frame any substantial question of law.

¶67