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2007 DIGILAW 435 (KAR)

PUTTARAMAIAH v. THIMMAIAH

2007-07-18

V.JAGANNATHAN

body2007
V. JAGANNATHAN, J. ( 1 ) THIS appeal is by the plaintiff before the trial court and although the suit filed by him in O. S. No. 64/1993 came to be allowed by the trial Court in part, the appeal preferred by the respondents herein came to be allowed by the lower Appellate Court in R. A. No. 15/2000 and the judgment and decree passed by the trial Court was set aside and the suit was dismissed. Aggrieved by the said judgment and decree of the lower appellate Court, this second appeal is preferred by the plaintiff. ( 2 ) THE facts fall within a very narrow compass inasmuch as the appellant filed a suit for specific performance basing on an agreement of sale dated 16-12-1992 executed by the respondent-defendants and it is the case of the appellant that the respondents-defendants agreed to sell the property, which was the subject mater of the agreement of sale, for rs. 75,000. 00 and received Rs. 55,000/- from the appellant under the said agreement. However, the first respondent-defendant failed to keep up his promise as per the agreement terms giving rise to the appellant filing the present suit in O. S. No. 64/1993 seeking specific performance of the agreement of sale or in the alternative, to direct the respondents-defendants to pay Rs. 55,000. 00 to him along with interest at 18% per annum. The said suit was resisted by the respondents-defendants and written statement was filed by the first defendant denying the plaint allegations in toto and the defence plea set up by them was that the plaintiff took the signature of the first defendant on a blank paper in order to get the khatha transferred to the name of the first defendant and excepting this one transaction, the first defendant never executed the agreement of sale as per ex. P-1 at any point of time and the other contention taken was that the suit property in question was never owned by the first defendant, but it was the second defendant, who was his brother, who became the owner of the suit property following a division among the family members in the year 1985. P-1 at any point of time and the other contention taken was that the suit property in question was never owned by the first defendant, but it was the second defendant, who was his brother, who became the owner of the suit property following a division among the family members in the year 1985. ( 3 ) THE learned judge of the trial Court framed as many as five issues and held that the appellant herein had proved the agrement of sale dated 16-12-1992 executed by the first respondent-defendant and also of having received Rs. 55,000/- under the said agreement. The trial Court also found that the appellant was ready and willing to perform his part of the contract but however, as far as the grant of specific performance is concerned, the trail Court found that the first defendant was not in a position to execute a registered sale deed in terms of Ex. P-1 because, the suit property stood exclusively in the name of the second defendant. Under the said circumstances, the trial Court thought it just and proper to direct the first defendant to refund the earnest money to the appellant herein with interest at 18% per annum from the date of agreement till the date of realisation and the relief of specific performance of contract however was not granted and the suit was also dismissed as against the second defendant. ( 4 ) AGGRIEVED by the aforesaid judgment and decree of the trial Court, the first respondent-defendant preferred an appeal before the learned district Judge, Bangalore Rural, and the lower Appellate Court reversed the findings of the trial Court and dismissed the suit of the plaintiff and in the process, the lower Appellate Court came to the conclusion that the appellant herein had failed to prove the agreement of sale as per Ex. P-1. It is thus the present second appeal has been preferred by the plaintiff. ( 5 ) AT the time of admission of this appeal, the following substantial question of law was framed by this Court : "whether the finding of the first appellate Court in reversing the judgment and decree passed by the trial Court and dismissing the suit of the plaintiff is perverse and arbitrary being contrary to the materials on record and for non-consideration of the reasons assigned by the trial Court for decreeing the suit? ( 6 ) I have heard the learned Counsel for the parties and perused the entire material on record. ( 7 ) SRI M. L. Gowda, learned Counsel for the appellant, submitted that the findings recorded by the trial Court are based on the evidence let in by the parties and the appellant has proved the agreement of sale Ex. P-1 by adducing convincing evidence and the witnesses examined on behalf of the appellant i. e. , P. Ws. 1 to 3, and the document produced as per Ex. P-1 will unmistakably establish the fact of the first defendant having agreed to sell the suit property in favour of the appellant for a sum of Rs. 75,000/-and of having received Rs. 55,000/- under the said agreement. It is also submitted that the trial Court also found that the first respondent-defendant went to the extent of denying his signatures in the vakalath, written statement as well as the affidavit filed before it and, therefore, the trial Court, taking note of the said conduct on the part of the first respondent-defendant, came to the conclusion that the said first respondent-defendant, who was examined as D. W. 1, was uttering falsehood before the Court and, therefore, placing reliance on a judgment of the apex Court in the case of K. S. Sathyanarayana Vs. V. R. Narayana Rao, reported in ILR 1999 Karnataka 3701, accepted the case of the appellant herein and rightly decreed the suit in favour of the appellant to the extent of refund of the earnest money by the first respondent-defendant. It was also submitted that even the alleged division of properties among the brothers of the respondents and the changes effected in the mutation records are only an after-thought subsequent to the filing of the suit. As the first respondent-defendant has not disputed the fact of having signed on a paper, it does not lie in his mouth to say anything contrary. The lower appellate Court, it is submitted, did not appreciate the evidence as has been done by the trial Court, but found certain discrepancies in the evidence of the witnesses P. Ws. As the first respondent-defendant has not disputed the fact of having signed on a paper, it does not lie in his mouth to say anything contrary. The lower appellate Court, it is submitted, did not appreciate the evidence as has been done by the trial Court, but found certain discrepancies in the evidence of the witnesses P. Ws. 1 to 3 touching upon the time of signing the agreement of sale, place of signing of the said document and the number of persons who were present at that time, and these discrepancies were blown out of proportion and thus, the lower Appellate Court failed to properly appreciate the evidence on record and it also did not take note of the conduct of the first respondent-defendant and has failed to address itself on the said aspect and, therefore, the entire appreciation of the evidence by the lower Appellate Court is totally perverse and contrary to the material on record and, as such, interference by this Court in this second appeal is called for. ( 8 ) ON the other hand, the learned Counsel Smt. Suguna R. Reddy for the respondents submitted that the lower appellate Court has gone threadbare into the whole evidence concerning the agreement of sale Ex. P-1 and it has minutely examined the evidence let in by the parties and the discrepancies found are not minor ones, but on the other hand, the said discrepancies given rise to suspect the document Ex. P-1. Secondly, it was her submission that the lower appellate Court had also found that the property in question did not belong to the first defendant Thimmaiah, but to his brother Venkatachalapathi Swamy and this is also a factor which gives room to view the document Ex. P-1 with suspicion. Noticing the other defects also like the change in the ink in Ex. P-1 and absence of the persons present at the time of Ex. P-1 being signed not being spoken to by the witnesses, the lower appellate Court has rightly cpme to the conclusion that Ex. P-1 could not be banked upon to accept the case of the appellant herein and hence, dismissal of the suit of the appellant-plaintiff by allowing the appeal by the respondents-defendants and conclusion is in accordance with the evidence on record requiring no interference by this Court. P-1 could not be banked upon to accept the case of the appellant herein and hence, dismissal of the suit of the appellant-plaintiff by allowing the appeal by the respondents-defendants and conclusion is in accordance with the evidence on record requiring no interference by this Court. ( 9 ) IT was also contended by the learned Counsel for the respondents that the burden of proving Ex. P-1 was squarely on the appellant and the said burden has not been discharged satisfactorily. In support of the above submission, the learned Counsel for the respondents placed reliance on the rulings reported in AIR 2005 SC 1008 , AIR 1997 SC 3255 , 2004 AIR karnataka H. C. R. 96, AIR 2003 Karnataka 354, AIR 1996 SC 2814 and air 1998 SC 2216 . Lastly, the learned Counsel also drew my attention to the scope of interference by this Court with regard to the concurrent findings of fact as well as the finding recorded by the lower appellate Court to submit that unless it is shown that the lower Appellate Court has recorded a perverse finding, this Court cannot interfere in a second appeal. The decision referred to in this connection is reported in AIR 2005 SC 1008 . ( 10 ) IN the light of the submissions made by the respective sides and also taking note of all the decisions cited by the learned Counsel for the respondents and having examined the judgments of both the Courts below, the only point for consideration in the light of the substantial question of law framed is whether the findings of the lower appellate Court can be held to be sustainable in law. ( 11 ) IT is the specific case of the appellant herein that first respondent thimmaiah agreed to sell the suit property to him for Rs. 75,000/- and received Rs. 55,000/- under the agreement of sale Ex. P-1. In order to prove the said transaction and the agreement of sale, the appellant has examined three witnesses including himself before the trial Court. A careful perusal of the evidence of P. Ws. 1 to 3 will go to show that the appellant has clearly brought on record the evidence relating to the agreement of sale coming into being as per Ex. P-1. A close look at the cross-examination of P. Ws. A careful perusal of the evidence of P. Ws. 1 to 3 will go to show that the appellant has clearly brought on record the evidence relating to the agreement of sale coming into being as per Ex. P-1. A close look at the cross-examination of P. Ws. 1 to 3 will not give any scope to disbelieve the version spoken to by them or to disagree with their testimony. All the suggestions put to the three witnesses during the cross-examination have been denied by them. Thus, the entire evidence of P. Ws. 1 to 3 and the document Ex. P-1 probablises the case of the appellant that first defendant Thimmaiah agreed to sell the suit property to the appellant as per the terms and conditions mentioned in Ex. P-1. ( 12 ) NO doubt, the learned Judge of the lower Appellate Court has also examined the evidence surrounding the agreement of sale Ex. P-1. Certain discrepancies are noticed by the learned Judge of the lower Appellate Court like variation in the time spoken to by the witnesses, variation in the place where Ex. P-1 was executed and difference in the ink in Ex. P-1 and also the number of persons who were found present not being examined before the Court. In my considered opinion, all these discrepancies or differences cannot take away the core evidence placed by the appellant through P. Ws. 1 to 3 and Ex. P-1. It must also be kept in view that the agreement of sale was executed on 16-12-1992 and the witnesses were examined in Court almost after six years in the year 1998 and certainly, some discrepancies are bound to creep into the evidence of the witnesses. As such, the lower Appellate Court, by picking out minor discrepancies in the evidence of the witnesses, has lost sight of the core evidence placed on behalf of the appellant through P. Ws. 1 to 3. Hence, appreciation of the evidence by the lower Appellate Court was not in consonance with the totality of the evidence placed by the appellant and the probability of the case of the appellant. 1 to 3. Hence, appreciation of the evidence by the lower Appellate Court was not in consonance with the totality of the evidence placed by the appellant and the probability of the case of the appellant. It must not be forgotten that appreciation of evidence in a civil case is not of the standard required in a criminal case and if the plaintiffs are able to probablise their case by placing adequate evidence and the said evidence is not seriously challenged in the cross-examination, nothing more is required from the plaintiffs to prove their case. ( 13 ) THE defence taken by the respondents is that the plaintiff took the signature of the first respondent-defendant on a blank paper in order to get the khatha of the property changed in the name of the first defendant. Even a cursory glance at the written statement filed by the first defendant and the signature of the first defendant found in the said written statement will not give rise to doubt the similarity of the two signatures found in the written statement as well as on the agreement of sale Ex. P-1. Even the signature that is found in the vakalath as well as the affidavit filed by the first defendant bear close resemblance to the signature found in Ex. P-1. The first defendant has admitted that he had signed on a stamp paper though he contends that it was on a blank paper. But, strangely, the first defendant goes to the extent of denying his signatures on all the documents filed before the trial Court right from the vakalath, written statement and the affidavit filed in the course of the proceedings before the trial court. When the first defendant denies having signed vakalath or for that matter written statement, the trial Court would have been perfectly justified in decreeing the suit of the appellant by invoking Order X of he c. P. C. In this connection, it is very relevant to refer to the observations of the Hon'ble Supreme Court in the case of K. S. Satyanarayana Vs. V. R. Narayana Rao, ILR 1999 Karnataka 3701. In the said case, on facts, the court found that the first defendant, when he appeared as a witness, denied his signature on Ex. P-1. The said defendant also went on to deny his signature even in the written statement filed by him. V. R. Narayana Rao, ILR 1999 Karnataka 3701. In the said case, on facts, the court found that the first defendant, when he appeared as a witness, denied his signature on Ex. P-1. The said defendant also went on to deny his signature even in the written statement filed by him. Taking note of the said facts of the case, the Apex Court made the following observations: "7. A piquant situation had developed before the Trial Court when the 1st defendant denied his signatures on the written statement and vakalathnama in favour of this Counsel. Trial Court should have immediately probed into the matter. It should have recorded statement of the Counsel for the 1st defendant to find out if Vakalathnama in his favour and written statement were not signed by the 1st defendant whom he represented. It was apparent that the 1st defendant was trying to get out of the situation when confronted with his signatures on the Vakalathnama and the written statement and his having earlier denied his signatures on Exh. P-1 and Ex. h. P-2 in order to defeat the claim of the plaintiff. " After observing thus, the Apex Court also went on to hold that the trial Court could have also compared the signature of the first defendant as provided in Section 73 of the Indian Evidence Act and after extracting the said provision of the Evidence Act, the Apex Court further went on to observe thus: "8. It was a case where instead of going into a protracted trial, trial Court could have decreed the suit of the plaintiff against the 1st defendant as well at the stage of Order X (Examination of Parties by the Court) of the Code of Civil Procedure. " ( 14 ) THE situation in this case is almost identical. The first defendant vent on to deny his signatures in all the documents viz. , vakalathnama, written statement and affidavit filed by him before the trial Court. Thus, it is clear that he was uttering falsehood even to the extent of denying his own signatures only to wriggle out of the situation faced by him and to come out of the agreement of sale Ex. P-1. , vakalathnama, written statement and affidavit filed by him before the trial Court. Thus, it is clear that he was uttering falsehood even to the extent of denying his own signatures only to wriggle out of the situation faced by him and to come out of the agreement of sale Ex. P-1. The trail Court, even after referring to the above decision did not decree the suit at that stage itself, but it went on to record the evidence in full and after appreciating the entire evidence on record, finally decreed the suit of the plaintiff. Therefore, n the instant case, the observations made by the Apex Court in the aforesaid decision will have to be applied with all force land the learned judge of the lower appellate Court did not make any observation in regard to the conduct of the first respondent-defendant but only looked at certain discrepancies in the evidence surrounding Ex. P-1. Thus, the lower appellate Court has totally erred in not appreciating the evidence in proper perspective and its finding being a perverse one cannot be sustained in law and, as such, interference by this Court becomes inevitable. The substantial question of law raised, therefore, stands answered in favour of the appellant herein by holding that the finding of the first Appellate court in reversing the judgment and decree of the trial Court is contrary to the evidence on record and for non-consideration of the relevant material. The decisions relied on by the learned Counsel for the respondents are, therefore, not applicable to the case on hand in view of the circumstances narrated above. ( 15 ) IN the result, I pass the following order: the appeal is allowed. The judgment and decree passed by the lower Appellate Court is set aside and the judgment and decree passed by the trial Court stands restored, with costs to the appellant.