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2014 DIGILAW 324 (KAR)

MAHARUDRAPPA v. MAHADEVAPPA

2014-03-07

A.V.CHANDRASHEKARA

body2014
JUDGMENT This appeal is by the plaintiff in the original suit bearing NO.15/1994 pending before the Addl. Civil Judge, (Jr.Dn.) & JMFC, Haveri as he is aggrieved by the divergent finding passed by the Addl. Civil Judge (Sr.Dn.) Haveri in R.A.46/2004 dated 9.9.2009. 2. Respondent herein was the defendant in the said suit. Parties will be referred to as per their ranking before the trial Court. 3. Suit for specific performance of contract on the basis of alleged agreement to sale dated 25.8.1985 came to be decreed after contest on 8.7.2004. Against the said judgment and decree, an appeal came to be filed under Section 96 of CPC. Several grounds have been urged by the defendant in the said appeal. 4. After perusing the records of the Court below and hearing the arguments from the learned Counsel for the parties, the learned Judge of the First Appellate Court has allowed the appeal and consequently the dismissed the suit filed for specific performance. It is this divergent finding, which is called in question on various grounds as set out in this appeal memo. 5. The case of the plaintiff is that the defendant is the owner of 3 acres of land situated in Sy.No.32/2 of Gowrapura Village as described in the schedule appended to the plaint. The defendant is stated to have agreed to execute the regular sale deed in favour of the plaintiff for a total consideration of Rs.15,000/and in this regard, he has executed agreement to sale dated 25.8.1986 by receiving Rs.5,000/as advance sale consideration. 6. According to the plaintiff, he was put into possession of the property by the defendant and he is stated to be in possession of the same. Inspite of plaintiff requesting the defendant to execute the sale deed, defendant went on giving evasive relies. At last, the plaintiff was constrained to get legal notice issued calling upon the defendant to execute regular sale deed by receiving balance sale consideration. Plaintiff’s case is that he was ready and willing to perform his part of the contract and in spite of notice, the defendant did not come forward to execute the regular sale deed. 7. The defendant appeared before the trial Court and had specifically denied the contents of the plaint and had called upon the plaintiff strictly to prove the contents of the plaint. 7. The defendant appeared before the trial Court and had specifically denied the contents of the plaint and had called upon the plaintiff strictly to prove the contents of the plaint. It is his case that, plaintiff is his close relative and had worked as Secretary of Koti Basaveshwar Cooperative Society for more than 20 years and he was dismissed from service on the allegation of misappropriating the funds of the said Society and that the defendant was also a member of the said Society. When the relationship of the defendant was very cordial with the plaintiff, the plaintiff had taken his LTM on a stamp paper telling him that they were required for advancing the loan in his favour by the Society. The said agreement is stated to be a concocted document and that he was never received the sum of Rs.5,000/and that he was never executed an agreement of sale. With these pleadings, he had requested the Court to dismiss the suit. 8. On the basis of the above pleadings, the following six issues came to be framed by the trial Court and have found at page 4 and 5 of the impugned judgment passed in O.S.NO.15/1994. ISSUES 1) Does the plaintiff prove that, the defendant has entered into agreement of sale on 25/8/1986, in respect of the suit land, for a total consideration of Rs.15,000/? 2) Does he further prove that, out of total consideration of Rs.15,000/, the defendant has received Rs.5000/as earnest money on the same date? 3) Does he further proves that, he is ready and willing to perform his part of contract since the date of agreement of sale? 4) Does the defendant prove that, the plaintiff has falsely created the alleged agreement of sale, dtd.25/8/1986, under the circumstances mentioned at para 9 of his W.S.? 5) Is the plaintiff entitled for specific performance of agreement of sale? 6) What decree or order? 9. Plaintiff is examined as PW1 and 2 witnesses have been examined on his behalf. Defendant is examined as DW1. 7 exhibits have got marked on behalf of the plaintiff and 4 exhibits have got marked on behalf of the defendant. After hearing the arguments and after assessing the evidence, the learned Addl. 6) What decree or order? 9. Plaintiff is examined as PW1 and 2 witnesses have been examined on his behalf. Defendant is examined as DW1. 7 exhibits have got marked on behalf of the plaintiff and 4 exhibits have got marked on behalf of the defendant. After hearing the arguments and after assessing the evidence, the learned Addl. Civil Judge has chosen to decree the suit as prayed for directing the defendant to execute a regular sale deed by receiving balance amount of Rs.10,000/, vide judgment dated 08.07.2004. Against the judgment and decree, an appeal came to be filed under Section 96 of the C.P.C. challenging the same, on various grounds as set out in the appeal memo filed before the first appellate Court. 10. After perusing the records and hearing the arguments, the first appellate Judge has chosen to allow the appeal and thereby dismiss the suit in its entirety. Being aggrieved by the said divergent judgment passed in R.A.No.46/2004 is before this Court by filing an appeal under Section 100 of C.P.C. Several grounds have been urged in the appeal memo, apart from proposing the substantial questions of law to be considered as substantial questions of law within the purview of Section 100 of the C.P.C. 11. Counsel for the appellant has submitted his arguments in regard to the admission of the case on hand by framing the substantial questions of law. He has argued that the first appellate Court, being the final Court of facts, has not at all reassessed the evidence in right prospective and has not assigned the cogent reasons to interfere with the well considered judgment of the trial Court. He has argued that, time is not the essence of contact in respect of immovable properties and therefore, the suit filed in the year 1994 on the basis of an agreement of sale of the year 1986 cannot be considered as either time barred or that there are serious latches on the part of the plaintiff. 12. It is true that time is not essence of the contract in respect of immovable properties but that does not give a leverage to the plaintiff to file a suit at any time, he thinks it proper. Admittedly, the agreement of sale is dated 25.08.1986. The defendant is illiterate and specifically denied the genuineness of the said agreement. 12. It is true that time is not essence of the contract in respect of immovable properties but that does not give a leverage to the plaintiff to file a suit at any time, he thinks it proper. Admittedly, the agreement of sale is dated 25.08.1986. The defendant is illiterate and specifically denied the genuineness of the said agreement. Though no time is fixed in the agreement of sale for executing regular sale deed, it does not mean that the plaintiff can sleep over his right and issue a notice and therefore contend that the suit was maintainable as it was filed within three years from the date of receipt of the notice or the date of reply given by the defendant. 13. The evidence placed on record and discussed in the judgments would disclose that he had made several requests on several occasions calling upon the defendant to execute a regular sale deed. The dates on which he had made such admissions are not forthcoming. If the defendant went on giving aversive reply, that was the starting point of the limitation, insofar as the refusal is concerned. It is in this regard, the first appellate Court has specifically held that there are serious latches in exercising his right based on this alleged agreement. The evidence of PW2 is not of much assistance in proving the genuineness of Ex.P1 the agreement of sale. The readiness and willingness as per the mandate of Section 16(C) of Specific Relief Act is also not specifically pleaded and proved. In a suit for specific performance, there must be a clear pleading in regard to readiness and willingness and there must be acceptable proof in this regard. What prevented the plaintiff from exercising his right within a reasonable time is not forthcoming. The first appellate Court, after having reassessed the entire evidence on record, has come to the conclusion that the very document marked as Ex.P1 is doubtful. 14. Taking into consideration the inability to prove Ex.P1 the agreement of sale and the inordinate delay in exercising his right in regard to specific performance, the first appellate Court has rightly dismissed the suit by allowing the appeal. There are no good grounds to interfere with the judgment of the first appellate Court, which has reassessed the entire evidence in right prospective. There are no good grounds to interfere with the judgment of the first appellate Court, which has reassessed the entire evidence in right prospective. Apart from this, the appellate Court has assigned cogent reasons as to how the trial Court has gone wrong. In that view of the matter, the appeal is liable to be dismissed upholding the judgment of the first appellate Court. ORDER The appeal is dismissed as unfit for admission by upholding the judgment of the first appellate Court. There is no order as to costs.