JUDGMENT 1. Appellant, being aggrieved by the dismissal of the suit filed by him against the respondents in O.S. No. 67 of 1997, on the file of Principal Civil Judge (Senior Division), Ramanagaram, in terms of judgment and decree dated 7-11-2006, has preferred this appeal. 2. For the sake of convenience, the parties would be referred to as per their status in the trial court. 3. We have heard the learned counsel appearing for the parties. 4. The facts leading to filing of this appeal are that:- "The plaintiff filed the suit against the defendants requesting the court to grant a decree, directing the defendants to pay a sum of Rs. 1,14,800/- with current and future interest at the rate of 18% per annum from the date of suit, till the date of realization." 5. According to the plaint averments, first defendant borrowed a sum of Rs. 90,000/- from the plaintiff on 2-12-1995, agreeing to repay the same with interest at the rate of 2% per month. It was also agreed that if the loan amount is not repaid as agreed upon, the first defendant agreed to execute a registered sale deed in respect of the suit schedule property in favour of the plaintiff for the prevailing market price. According to plaintiff, on 2-12-1995, the first defendant executed an agreement, agreeing to the above terms. 6. Since the loan borrowed by the first defendant was not repaid, a panchayat was convened on 2-11-1996 wherein it was agreed that the first defendant shall sell the suit schedule property to the plaintiff for a sum of Rs. 2,00,000/- and towards the sale consideration, the sum of Rs. 90,000/- with interest thereon shall be adjusted. Contending that the first defendant was trying to sell the suit schedule property in favour of second defendant, the suit came to be filed for recovery of the money, after getting issued a legal notice. According to the plaintiff, Rs. 90,000/- is payable towards principal and Rs. 24,300/- towards interest, besides Rs. 500/- towards charges. 7. The first defendant contested the suit. She denied borrowing of Rs. 90,000/- from the plaintiff on 2-12-1995. She also denied the settlement said to have taken place on 2-11-1996. She also denied the value of the property as on 2-11-1996 as Rs. 2,00,000/-. She further contended that she is not liable to pay any money to the plaintiff. 7. The first defendant contested the suit. She denied borrowing of Rs. 90,000/- from the plaintiff on 2-12-1995. She also denied the settlement said to have taken place on 2-11-1996. She also denied the value of the property as on 2-11-1996 as Rs. 2,00,000/-. She further contended that she is not liable to pay any money to the plaintiff. It was also contended by her that she had loan transactions with the elder brother of plaintiff by name Puttaswamy Gowda and in the said connection, Puttaswamy Gowda had obtained her signature on some blank papers and has misused the same for the institution of the present suit. She further contended that she had already sold the suit schedule property in favour of the second defendant and he has become is the absolute owner of the same. 8. The second defendant filed separate written statement, denying the allegations made in the plaint. According to him, he is a bona fide purchaser of the suit schedule property for a valuable consideration and that he is not liable to pay any amount to the plaintiff. 9. Based on the above pleadings of the parties, the trial court framed the following issues for its consideration:- 1. Whether the plaintiff proves that the 1st defendant borrowed Rs. 90,000/- from him on 2.12.1995 to meet out her necessities and requirements agreeing to repay the same with interest at 2% per month and in default to execute a registered Sale Deed in favour of the plaintiff in respect of the suit property and executed an agreement to that effect as alleged? 2. Whether plaintiff further proves that thereafter 1st defendant sold the suit property in favour of 2nd defendant behind his back as alleged? 3. Whether the 2nd defendant proves that he is the bona fide purchaser for valuable-consideration of the suit property under the registered Sale Deed dated 16.11.1996 and he has been put in possession of the property by the 1st defendant as alleged? 4. Whether the defendants prove that the plaintiff got created the suit document under the circumstances pleaded in paras 5 to 7 of the written statement? 5. Whether the plaintiff is entitled for recovery of the suit claim with interest as prayed? 6. To what relief if any, the parties are entitled? 10. 4. Whether the defendants prove that the plaintiff got created the suit document under the circumstances pleaded in paras 5 to 7 of the written statement? 5. Whether the plaintiff is entitled for recovery of the suit claim with interest as prayed? 6. To what relief if any, the parties are entitled? 10. In order to prove their respective contentions, four witnesses were examined on behalf of the plaintiff, amongst them, plaintiff is PW1. She relied upon ExP1 to 5. On behalf of the defendants, second defendant has been examined as DW1 and relied on ExD1 to 13. The trial court, after considering the entire evidence let in by the parties, answered issues 1, 2 and 5 in the negative, issue No. 3 partly in the affirmative and issue No. 4 in the affirmative, and consequently the suit came to be dismissed. Challenging the legality and correctness of the same, the present appeal is filed. 11. Sri Prakash T. Hebbar. learned counsel for the appellant-plaintiff contends that the trial court did not consider the evidence properly. According to him, the plaintiff has proved the execution of the agreement by the first defendant by examining the attesters of the document and even though the first defendant did not step into the witness box and when there being no material, the trial court has wrongly held that the plaintiffs did not possess Rs. 90,000/- on the date of agreement of sale. According to him, it was not the contention of the first defendant that the plaintiff had no capacity to lend money to her. Her contention was that the plaintiffs brother Puttaswamy Gowda had taken her signature on certain blank papers and were misused by the plaintiff. Therefore, he contends that the burden of proof was on the first defendant to show that plaintiff has misused said blank papers, which were in possession of his brother. In order to prove such a contention, the first defendant did not step into the witness box and in the absence of her evidence, without considering the line of the cross-examination made by her counsel to PW1 and his witnesses, the trial court has erroneously dismissed the suit. In order to prove such a contention, the first defendant did not step into the witness box and in the absence of her evidence, without considering the line of the cross-examination made by her counsel to PW1 and his witnesses, the trial court has erroneously dismissed the suit. He further contends that even if first defendant has sold the property to second defendant much prior to filing of the suit, there was no impediment for the court below to grant a money decree against the first defendant. In the circumstance, he requests the court to re-appreciate the entire evidence and reverse the findings of the trial court by allowing this appeal. 12. An attempt is made by the learned counsel for first-respondent to support the judgment of the trial court. By supporting the judgment of the trial court, he requests the court to dismiss the appeal. 13. Having heard the counsel for the parties, we have to consider the following points in this appeal:- (i) Whether the trial court has committed an error in dismissing the suit of the plaintiff in its entirety? (ii) Whether the plaintiff appellant is entitled for refund of Rs. 90,000/- with interest, as claimed by him? (iii) Whether the judgment and decree passed by the court below is required to be set aside or modified by this court? 14. Since all points are interlinked, we would like to consider them together as hereunder. 15. ExP1 is the agreement dated 2-12-1995. As per this document, first defendant had borrowed Rs. 90,000/- from the plaintiff and she agreed to repay the same with interest at the rate of 2% per month. The agreement further reads that if the amount, as agreed upon, is not paid, the first defendant shall sell the suit schedule property in favour of the plaintiff. Execution of this document is denied by the first defendant in her written statement. According to her, the plaintiffs elder brother Puttaswamy Gowda has misused her signature obtained on certain blank papers. It is not the case of the first defendant that the plaintiff had no money to lend Rs. 90,000/- to her. Her case is total denial of execution of ExP1. On a perusal of the evidence of PWs 1 to 4, we are of the opinion that execution of ExP1 by first defendant is proved by the plaintiff. It is not the case of the first defendant that the plaintiff had no money to lend Rs. 90,000/- to her. Her case is total denial of execution of ExP1. On a perusal of the evidence of PWs 1 to 4, we are of the opinion that execution of ExP1 by first defendant is proved by the plaintiff. The plaintiff has examined the attesters to ExP1 arid their evidence is not challenged by the defendants. PWs1 to 4 have consistently deposed before the court in regard to execution of the agreement by first defendant and also receiving of Rs. 90,000/- from the plaintiff. Therefore, we are of the considered view that the plaintiff has proved the execution of ExP1. 16. When the first defendant has contended that she has not executed ExP1 and ExP1 has come into existence under the circumstances narrated by her in her written statement, it is for her to prove under what circumstance her signature was obtained either by the plaintiff or by his elder brother. For the reasons best known to first defendant, she did not step into the witness box. When she has not stepped into the witness box and in the background of proving of ExP1 by the plaintiff, the trial court was required to draw an adverse inference against the first defendant. Without doing so, solely relying up on the evidence of DW1, who is second defendant in the suit, the trial court has dismissed the whole suit. 17. Second defendant, who has been examined as DW1, has purchased the suit schedule property and as rightly contended by him, he may be a bona fide purchaser of the suit schedule property for a valuable consideration and without knowing the rights of the plaintiff. In such circumstance, the trial court has rightly held that the suit schedule property cannot be registered in the name of plaintiff and a decree cannot be passed against the first defendant to execute a sale deed in favour of the plaintiff. But, the trial court has committed a serious error in dismissing the whole suit without decreeing the suit for recovery of money. But, the trial court has committed a serious error in dismissing the whole suit without decreeing the suit for recovery of money. When the plaintiff has proved execution of ExP1 and when her signature on ExP1 is not disputed by the first defendant and when the first defendant has not stepped into the witness box and no oral or documentary evidence is let in on her behalf, the trial court was required to hold that the plaintiff has lent a sum of Rs. 90,000/- to the first defendant. Therefore, we are of the view that the appreciation of evidence by the trial court is incorrect, perverse and liable to be set aside. 18. Considering the entire evidence and in view of our finding on ExP1 and since the second defendant is a bona fide purchaser, the trial court was required to grant a decree for recovery of money in favour of the plaintiff and against the first defendant. Accordingly, we hold that the finding of the trial court in this regard is incorrect and liable to be reversed. 19. In the result, this appeal is allowed and judgment and decree dated 7-11-2006 passed by the Principal Civil Judge (Senior Division), Ramanagaram in O.S. No. 67 of 1997 are set aside. The suit filed by the plaintiff for recovery of Rs. 1,14,800/- is decreed with costs against the first defendant only. The plaintiff is also entitled for current and future interest on Rs. 90,000/- at the rate 6% per annum from the date of filing of suit till realization. The suit against second defendant is dismissed.