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2012 DIGILAW 801 (KAR)

S. N. Muniyappa v. Eramma W/o Late Narayanappa

2012-09-22

B.MANOHAR

body2012
ORDER B. Manohar , J.—Appellants are the plaintiffs in O.S. No. 108/1997, being aggrieved by the judgment and decree dated 1-4-2005 passed by the Principal Civil Judge (Sr. Dn.) and CJM, Kolar, wherein the suit filed by the plaintiffs was dismissed, preferred this appeal. The father of the appellants S.N. Muniyappa filed a suit seeking for specific performance of agreement of sale dated 23-4-1997 and a direction to defendants 1 to 3 to execute the registered sale deed in respect of the suit schedule property after receiving balance sale consideration. During the pendency of the suit, S.N. Mumyappa died and the plaintiffs were brought on record. The case of the plaintiffs is that the defendants 1 to 3 are the absolute owners of the suit schedule property. The first defendant is the mother, defendants 2 and 3 are the daughters of defendant No. 1. Defendant Nos. 1 to 3 agreed to sell the land bearing Sy. No. 255 measuring 2 acres, situated at Madiwala village for a sale consideration of Rs.1,05,000/-. Pursuant to the agreement of sale dated 23-4-1997, the defendants 1 to 3 received a part of sale consideration of Rs.75,000/- and they agreed to execute the sale deed on or before 20th July 1997 and delivered the title deed. Inspite of repeated requests, the defendants failed to execute the sale deed within the time as agreed in the agreement of sale. Accordingly a legal notice issued on 2-7-1997 calling upon the defendants to execute the sale deed and the plaintiffs were ready and willing to pay the balance sale consideration. The defendants 2 and 3 have replied to the said legal notice stating that they were ready and willing to execute the sale deed, however, their mother defendant No. 1 has already executed a sale deed in respect of the suit schedule property in favour of the 4th defendant on 21-6-1997 a they are not parties to the said sale deed. In view of that the plaintiffs have filed a suit seeking for enforcement of agreement of sale dated 23-4-1997 and also sought for a direction to the defendants 1 to 3 to execute the sale deed after receiving the balance of sale consideration. 2. In pursuance to the notice issued by the Trial Court, defendants 1 and 4 have filed their separate written statements and defendants 2 and 3 have filed joint written statement. 2. In pursuance to the notice issued by the Trial Court, defendants 1 and 4 have filed their separate written statements and defendants 2 and 3 have filed joint written statement. The first defendant in her written statement denied the entire averments made in the plaint and she also denied the execution of agreement of sale dated 23-4-1997. She has contended that after the death of her husband in the year 1994, she became the manager of the family and was maintaining defendants 2 and 3. She further contended that the husband of the first defendant had raised loan at Kolar Grameena Bank, Belamarnahalli and it was not cleared. For the maintenance of defendants 2 and 3 and for their legal necessities and also to discharge the loan of the Kolar Grameena bank, she sold the suit schedule property to the 4th defendant on 20th June 1997 and possession of the property was also delivered to the 4th defendant. The defendants 2 and 3 in collusion with the plaintiffs created an agreement of sale dated 23-4-1997 by forging the signature of the defendant No. 1 and sought for dismissal of the suit. 3. Defendant Nos. 2 and 3 have filed their written statements admitting the entire averments made in the plaint and submitted that they are ready and willing to execute the sale deed. Since there was misunderstanding between them and the first defendant, the first defendant was unwilling to sell the property to the plaintiffs. Even though the defendants 2 and 3 protested for alienation of the property in favour of the 4th defendant, the first defendant sold the property in favour of the 4th defendant. Since the property has already been sold in favour of the 4th defendant, the question of executing the agreement of sale in favour of the plaintiffs does not arise and sought for dismissal of the suit. 4. The 4th defendant in his written statement denied the entire averments made in the plaint and contended that as per the sale deed dated 20th June 1997, he has purchased the suit schedule property for a valuable sale consideration and he is the bonafide purchaser of the suit property. He was not aware of the agreement of sale dated 23-4-1997. The plaintiffs and defendants 2 and 3 colluded together and created an agreement of sale in order to cheat defendant No. 4. He was not aware of the agreement of sale dated 23-4-1997. The plaintiffs and defendants 2 and 3 colluded together and created an agreement of sale in order to cheat defendant No. 4. Defendants 2 and 3 have also not informed anything about the agreement of sale dated 23-4-1997. After the first defendant executed the sale deed in his favour on 20th June 1997, they have cooked up the said agreement of sale to defeat his right and sought for dismissal of the suit. 5. On the basis of the pleadings of the parties, the Trial Court framed the following issues: 1. Whether the plaintiff proves that he has purchased the suit schedule property for consideration of Rs.1,05,000/- under agreement of sale dated 23/4/1997 from defendants 1 to 3? 2. Whether the plaintiff further proves that he has paid an amount of Rs.75,000/- to defendants 1 to 3 towards part of sale consideration? 3. Whether the plaintiff further proves that he is ready to perform his part of the contract? 4. Whether the defendant no. 4 proves that the alleged arrangement of sale executed by defendants 1 to 3 is creative, concocted, forged and manipulated one? 5. Whether the 4th defendant proves that he is a bonafide purchaser of the suit schedule property for valuable consideration without notice in respect of alleged suit agreement? 6. Whether the plaintiff is entitled for the relief of specific performance? 7. What decree or order? Additional Issues: 8. Whether defendants 2 and 3 prove that they are ready to perform their part of the contract? 9. Whether defendants 2 and 3 prove that inspite of protest by these defendants 4th defendant has purchased suit property with knowledge of the earlier contract? 6. The plaintiffs in order to prove their case, got examined the second plaintiff as P.W. 1 and examined one more witness as P.W. 2 and got marked the documents as Ex. P1 to Ex. P9. On behalf of the defendants, 4th defendant got examined himself as D.W. 1 and got marked the sale deed as Ex. D1. The second defendant was also examined herself as D.W. 2. 7. The Trial Court after considering the oral and documentary evidence let in by the parties held issue Nos. 1, 2, 3, 6, 8 and 9 in the negative and issue Nos. 4 and 5 in the affirmative. D1. The second defendant was also examined herself as D.W. 2. 7. The Trial Court after considering the oral and documentary evidence let in by the parties held issue Nos. 1, 2, 3, 6, 8 and 9 in the negative and issue Nos. 4 and 5 in the affirmative. Consequently by its judgment and decree dated 1-4-2005 dismissed the suit holding that the plaintiffs have failed to prove the execution of agreement of sale Ex. P9 dated 23-4-1997. Being aggrieved by the judgment and decree dated 1-4-2005, the plaintiffs have preferred this appeal. 8. Sri. M. Narayana Reddy, learned counsel appearing for the appellants contended that the judgment and decree passed by the Trial Court is contrary to law and evidence on record. Further, the Trial Court failed to consider that he has examined the scribe of the agreement of sale as P.W. 2 and also the evidence of defendant No. 2 who is the daughter of the first defendant. They have admitted that the defendants 1 to 3 have executed the agreement of sale in favour of the plaintiffs after receiving a part of the sale consideration on 23-4-1997. The reasoning of the Trial Court to disbelieve the agreement of sale and to hold that the agreement of sale is a concocted document is erroneous in law. The Trial Court ought to have drawn adverse inference against the first defendant though she has denied the execution of agreement of sale, she has not stepped into the witness box to prove her case. The Trial Court has failed to consider that the defendants have not produced any cogent evidence to show that Ex. P9 i.e. agreement of sale is a cooked up document. The finding of the Trial Court is erroneous in law and sought for allowing the appeal by setting aside the judgment and decree passed by the Trial Court. 9. Though the respondents are served with the notice, they remained unrepresented. 10. Heard the learned counsel appearing for the appellants and perused the oral and documentary evidence adduced by the parties. 11. Upon hearing the learned counsel for the appellants, the only point that arises for consideration in this appeal is whether the appellants have made out a case to interfere with the judgment and decree passed by the Trial Court? 12. Heard the learned counsel appearing for the appellants and perused the oral and documentary evidence adduced by the parties. 11. Upon hearing the learned counsel for the appellants, the only point that arises for consideration in this appeal is whether the appellants have made out a case to interfere with the judgment and decree passed by the Trial Court? 12. It is the case of the appellants that the defendants 1 to 3 entered into an agreement of sale with their father in respect of the suit schedule property for a sale consideration of Rs.1,05,000/-. As per the agreement of sale dated 23-4-1997, the defendants received a part of the sale consideration of Rs.75,000/- and they have to execute the sale deed on or before 20th July 1997 after receiving the balance of sale consideration. However, the first defendant as per the sale deed Ex. D1 dated 20-6-1997 sold the property in favour of the 4th defendant during the subsistence of agreement of sale in favour of the appellants. In support of the case of the plaintiffs, Plaintiff No. 2 was examined as P.W. 1 and also examined Chennarayappa who is the attesting witness as P.W. 2. P.W. 1, in the examination-in-chief, has reiterated the plaint averments. He got marked the agreement of sale as Ex. P9. In the cross-examination he deposed that the defendants 1 to 3 entered into an agreement of sale agreeing to sell the suit schedule property, Narayanappa wrote the agreement of sale. Narayanaswamy, Erappa, Rajanna had signed the said agreement of sale as attesting witnesses. The defendants 1 to 3 have signed the said agreement of sale. The discussion in respect of the agreement of sale had taken place on 22-4-1997 in the night and on the said day, Rs.1,000/- was paid as advance and the remaining Rs.74,000/- was paid next day on execution of the agreement of sale. The agreement of sale has been prepared in the office premises of the Sub-Registrar. He further stated that he was not present at the time of execution of the agreement of sale or at the time of payment of Rs.75,000/- as a part of sale consideration. His father had informed about the execution of the agreement of sale, however his father died in the year 2002 after filing of the suit. He further stated that he was not present at the time of execution of the agreement of sale or at the time of payment of Rs.75,000/- as a part of sale consideration. His father had informed about the execution of the agreement of sale, however his father died in the year 2002 after filing of the suit. He himself admitted that he do not have any personal knowledge about the agreement of sale and also payment of Rs.75,000/- which was paid in cash. He himself admitted that katha of the said property stands in the name of the first defendant. After execution of the sale deed in favour of the 4th defendant, the katha was changed in the name of the 4th defendant and he is in possession of the property. He has denied the suggestion made in the cross- examination that the first defendant has not signed the agreement of sale. 13. P.W. 2 who is one of the attesting witnesses to the agreement of sale, in the examination-in-chief has deposed that he knows 4th defendant and defendants 1 to 3 have executed an agreement of sale agreeing to sell the suit schedule property in favour of the father of the plaintiffs. The suit schedule property was purchased by the husband of the first defendant. The agreement of sale was typed in the office premises of the Sub-Registrar, and the first defendant herself purchased the stamp paper. However in the cross-examination he deposed that he does not know 4th defendant. There is enmity between the 4th defendant as well as Muniveerappa and he is the follower of Muniveerappa. His land is situated about 3 miles away from the house of the plaintiffs. He denied the suggestion that at the behest of Muniveerappa, the suit agreement was concocted on account of the enmity between the 4th defendant and Muniveerappa. Further, he denied the suggestion that on the old stamp paper, the suit agreement is fabricated. 14. D.W. 1 in his evidence reiterated the contentions taken in the written statement and contended that he is a bonafide purchaser of the suit schedule property for a valuable sale consideration as per Ex. D.1. For the family necessities and to repay the debts incurred by the husband of the first defendant, the first defendant sold the property in favour of 4th defendant. D.1. For the family necessities and to repay the debts incurred by the husband of the first defendant, the first defendant sold the property in favour of 4th defendant. Since the first defendant is the Manager of the family, she has sold the property for a valuable sale consideration and he has not taken signature of two of her daughters and the son. The defendants 2 and 3 never informed regarding the agreement of sale dated 23-4-1997 executed in favour of the plaintiffs. After purchase of the property he has raised eucalyptus trees. The agreement of sale dated 23-4-1997 is a cooked up document after the sale of the land in favour of the 4th defendant. 15. The defendant No. 2 who is the daughter of the first defendant supported the case of the plaintiffs and stated that the defendants 1 to 3 entered into an agreement of sale with the plaintiffs and received a part of the sale consideration on 23-4-1997. In view of the difference of opinion between herself and her mother, the first defendant had sold the suit schedule property in favour of the 4th defendant. In the cross-examination she has deposed that she has completed B.Sc. degree in the year 1991 and she is working in Chethana Swayam Sevaka Sangha and running Navodaya Seva Sangha. After the death of her father, her mother was managing their family She is residing with her mother and their relationship is very cordial. In the cross-examination she deposed that her mother cheated her and sold the property in favour of the 4th defendant on 20th June 1997. Her signature was forcefully taken and got the sale deed executed in favour of the 4th defendant and she has not complained to the Sub-Registrar in this regard. 16. On appreciation of the oral and documentary evidence, it is clear that there is no cordial relationship between the first defendant and defendants 2 and 3 The first defendant in order to repay the family debts incurred by her husband sold the property in favour of the 4th defendant. After execution of the sale deed, the agreement of sale appears to have been cooked up by the plaintiff in collusion with the defendants 2 and 3. The specific case of the first defendant is that she has not executed any agreement of sale in favour of the plaintiff. After execution of the sale deed, the agreement of sale appears to have been cooked up by the plaintiff in collusion with the defendants 2 and 3. The specific case of the first defendant is that she has not executed any agreement of sale in favour of the plaintiff. During the pendency of the suit, the 4th defendant made an application to refer the signature of the first defendant for the Handwriting Experts, the plaintiffs objected for the same and got dismissed the said application. The Trial Court on verifying the signature made on Ex. D.1 and the signature made on the Vakalath as well as on Ex. P.9 found that the signature on Ex. P9 is a different signature and there is some overwriting and striking of some of the writings of the agreement of sale. The evidence of P.W. 1 is very clear that he does not have personal knowledge with regard to Ex. P.9. He had admitted in his evidence that his father used to tell him about the transaction and he was present at the time of the talk of sale. On the date of execution of the agreement of sale he was not present. Whether the part of sale consideration of Rs.75,000/- was paid to the first defendant was also not disclosed by P.W. 1. The plaintiffs have relied upon the evidence of P.W. 2 who is one of the attesting witnesses of the agreement of sale. P.W. 2 is an interested witness and he was party to the agreement of sale. He was residing 3 miles away from the land in dispute. Further, he was a supporter of Muniveerappa who is the foe of defendant No. 4 and his witness cannot be believed. None of the independent witnesses have been examined to prove Ex. P9. Further, D.W. 2 is also one of the interested witnesses. Though in her evidence she has stated that there is cordial relationship between her and the first defendant, in the cross-examination she has stated that the first defendant cheated her and alienated the suit schedule property in favour of the 4th defendant. D.W. 2 virtually supported the case of the plaintiffs. On the other hand, it is the specific case of the first defendant that she has not executed any agreement of sale in favour of the plaintiff and she has not received any part of the sale consideration. D.W. 2 virtually supported the case of the plaintiffs. On the other hand, it is the specific case of the first defendant that she has not executed any agreement of sale in favour of the plaintiff and she has not received any part of the sale consideration. The agreement of sale i.e. Ex. P9 is a cooked up document in collusion with the defendants 2 and 3. The burden is on the appellants to prove that Ex. P.9 on which their entire case rests to prove the same. The plaintiffs have failed to prove the execution of Ex. P9 by examining the independent witnesses. Some persons who have singed the agreement of sale have also not been examined except P.W. 2 who is an interested witness. The Application I.A. No. 9, filed by defendant No 4 for referring the matter to the Handwriting expert was also objected by the plaintiffs and got dismissed. The Trial Court on verification of the admitted signature as well as the disputed signature came to the conclusion that there is a lot of difference between the admitted signature and the disputed signature. That apart, the first defendant has specifically contended that she has not executed any agreement of sale. The burden is on the plaintiffs to prove the execution of agreement of sale by leading independent witness. However, the plaintiffs have failed to discharge their burden. The Trial Court on appreciating the oral and documentary evidence held that the plaintiffs have failed to prove the execution of the agreement of sale vide Ex. P.9. I find that there is no infirmity or irregularity in the said finding. The appellant has not made out a case to interfere with the order passed by the Trial Court. Hence, the point framed in this appeal is held against the appellants. Accordingly, I pass the following: ORDER The appeal is dismissed.