Rudra Kumar Vs S. Balaswamy

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 23.07.2018 PASSED IN R.A.NO.1/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SAKALESHPURA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.11.2016 PASSED IN O.S.NO.1/2013 ON THE FILE OF THE CIVIL JUDGE, SAKALESHPURA.

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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 MRS. JUSTICE K.S. HEMALEKHA

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HC-KAR

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ORAL JUDGMENT

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The present Regular Second Appeal is preferred by the plaintiffs assailing the Judgment and Decree dated 23.07.2018, passed by the Senior Civil Judge and J.M.F.C. Sakaleshpura (‘First Appellate Court’ for short) in R.A.No.1/2017, confirming the Judgment and Decree dated 21.11.2016, passed by the Civil Judge, Sakaleshpura (‘trial Court’ for short) in O.S.No.1/2013.

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Brief facts:

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The suit in O.S.No.1/2013 was filed seeking specific performance of an agreement of sale dated 12.06.1986. The plaintiffs contended that the suit schedule property Sy.No.57/3 (Sy.No.57p old) originally belonged to the Government. On the southern side of the said property, near Arehalli road side, the plaintiffs’ father Bhadregowda had constructed the house and was residing therein and was paying kandaya since 1960 and was also in possession of the surrounding land. It is further contended that the defendants’ father, K. V.

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Balasubramanya, obtained the grant of the said property and subsequently agreed to sell the suit schedule property to the plaintiffs’ father Bhadregowda for a sale consideration of `2,250/-. Accordingly, an agreement of sale dated 12.06.1986 was executed. It is the case of the plaintiffs that despite several requests, the defendants failed to execute the sale deed. The plaintiffs thereafter issued a legal notice dated 31.10.2012 calling upon the defendants to execute the sale deed in their favour. Since, the defendants failed to comply with the said demand, the plaintiffs instituted the present suit seeking specific performance of the agreement of sale.

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Pursuant to the notice issued by the trial Court, the defendants appeared and filed a written statement inter alia denying the plaint averments. The defendants specifically denied the execution of the alleged agreement of sale and contended that the suit is barred by limitation.

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It is also contended that even that any agreement is executed in view of the repeal of the Fragmentation Act in

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the year 1993, the suit filed in the year 2013 is hopelessly

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barred by limitation.

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The trial Court based on the pleadings framed the issues, which reads as under:

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“1) Whether the plaintiffs prove that defendants father has executed an agreement of sale on 12-06-1986 in favour of the plaintiff’s father, agreeing to sell the suit schedule property for Rs.2,250/- and has received earnest money of Rs.1,750/-?

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2) Whether the plaintiffs further proves that defendants have failed to execute registered sale deed in their favour?

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3) Whether the plaintiffs further prove that they are ready and willing to perform their part of contract?

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4) Whether plaintiffs are entitled for the relief or Specific performance of contract as sought for?”

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5) What order of decree?”

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The trial Court on appreciation of oral and

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documentary evidence placed on record held that the plaintiffs have failed to establish the execution of the agreement of sale dated 12.06.1986 and further held that the suit instituted in the year 2013 is barred by limitation. Accordingly, the trial Court answered issue Nos.1, 2 and 4 in the negative and the dismissed the suit. Aggrieved by the same, the plaintiffs preferred appeal before the First Appellate Court.

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The First Appellate Court while re-appreciating the entire oral and documents evidence, concurred with the judgment and decree of the trial Court.

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Heard.

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Learned counsel for the appellants submits that

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the trial Court has seriously erred in answering issue No.1 in the negative by holding that the plaintiffs have failed to prove the execution of the agreement of sale and consequently holding that the suit is dismissed as barred

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by limitation. It is further contended that the trial Court has failed to properly appreciate the oral and documentary evidence adduced by PW2 and PW3. It is therefore contended that a substantial question of law arises for consideration in the present appeal.

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This Court has carefully considered the

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submissions and perused the material on record.

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The suit in O.S.No.1/2013 is instituted for seeking specific performance of an agreement of sale dated 12.06.1986. The trial Court recorded a finding that the plaintiffs have failed to prove the execution of the agreement of sale and further held that the suit was barred by limitation. The trial Court accordingly answered issue Nos.1, 2 and 4 in the negative and dismissed the suit.

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The First Appellate Court being the final Court on facts, re-appreciated the entire oral and documentary evidence and concurred with the findings recorded by the

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trial Court. The First Appellate Court held that the plaintiffs have failed to establish the execution of agreement of sale and also failed to demonstrate readiness and willingness to perform their part of contract. The First Appellate Court further held that the suit instituted in the year 2013 on basis of an agreement of sale dated 12.06.1986, is clearly barred by limitation.

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Undisputedly, the agreement of sale relied upon by the plaintiffs is dated 12.06.1986. Under Article 54 of the Limitation Act, 1963, a suit for specific performance has to be instituted within three (3) years either from the

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date fixed for performance or from the date when the plaintiffs have notice that performance is refused. In the present case, the plaintiffs admittedly issued notice calling upon the defendants to execute the sale deed only in the year 2012 and thereafter instituted the suit in the year 2013. Even assuming that there was a restriction under the Fragmentation Act and that such restrictions would lifted upon repeal of the Act in the year 1993, the plaintiffs

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did not take any steps within the period prescribed in law. The suit filed after nearly three (3) decades from the date of agreement is clearly barred by limitation.

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Both the Courts below, on appreciation of the entire oral and documentary evidence have recorded concurrent findings of facts that the plaintiffs have failed to establish the execution of the agreement and that the suit is barred by limitation. The First Appellate Court being the last fact finding Court has re-appreciated the entire oral and documentary evidence and confirmed the findings of the trial Court.

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In the Regular Second Appeal under Section 100 of the Code of Civil Procedure interference by this Court is permissible only when substantial question of law arises for consideration. The findings recorded by both the Courts below are purely findings of fact based on appreciation of evidence. The appellants have not demonstrated any perversity or illegality in the findings

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recorded by the Courts below. The manner in which the

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Courts below have assessed the entire oral and documentary evidence, this Court is of the considered opinion that no substantial question of law arises for consideration in this appeal. Accordingly, this Court pass the following:

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ORDER

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The Regular Second Appeal is hereby dismissed.

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Sd/-

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______________________ JUSTICE K.S. HEMALEKHA

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AT

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List No.: 1 Sl No.: 23