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2015 DIGILAW 202 (KAR)

Nanjappa v. Kempaiah, Since deceased by LRs

2015-02-23

R.B.BUDIHAL

body2015
JUDGMENT :- 1. This appeal is preferred by the appellant-plaintiff being aggrieved by the judgment and decree dated 26.3.2005 passed by the Additional Civil Judge (Sr.Dn.), Mandya, in R.A. No.20/2001 setting aside the judgment and decree dated 16.1.2001 passed by the Civil Judge (Jr.Dn.) Nagamangala, in O.S. No.80/1996. 2. Brief facts leading to the case of the parties before the trial court are that the plaintiff and defendant entered into an agreement to sell the suit schedule property on 14.3.1996. The defendant agreed to sell the suit schedule property in favour of the plaintiff for the sum of Rs.23,790/- by receiving advance amount of Rs.10,000/- and agreed to receive the balance sale consideration before the Sub Registrar, Nagaamangala and it was further agreed that within three months from the date of agreement, the defendant shall sell suit schedule property and shall also make necessary documents for completion of sale. The plaintiff requested and demanded the defendant to complete the sale transaction by receiving the balance consideration. But the defendant refused to perform his part of agreement, though the plaintiff was and is ready and willing to perform his part of contract. The plaintiff has kept the balance amount of Rs.13,790/- with him and ready to deposit in the Court. Hence, he filed the suit seeking specific performance of the agreement dated 14.3.1996. 3. The defendant filed written statement taking the contention that the suit schedule property is the ancestral property and he is not having absolute right over it and he is having sufficient income in the village and also in Bengaluru. There was no necessity for the defendant to sell his property and he is at mercy of his sons and hence, cannot sell his property to the plaintiff without their consent and hence, prayed for dismissal of the suit with cost. 4. On the basis of the above pleadings, the trial court framed the following issues: 1.Whether plaintiff proves the defendant agreed to sell the suit schedule property for a sum of Rs.20,000/- and received Rs.10,000/- as advance on 14.3.1996 by executing an agreement to sale? 2. Whether plaintiff proves he demanded and requested the defendant to execute the registered sale deed by receiving balance amount Rs.13,790/-? 3. Whether plaintiff proves he was/is ready and willing to perform his part of contract? 4. Whether plaintiff is entitled to the relief claimed in the suit? 5. 2. Whether plaintiff proves he demanded and requested the defendant to execute the registered sale deed by receiving balance amount Rs.13,790/-? 3. Whether plaintiff proves he was/is ready and willing to perform his part of contract? 4. Whether plaintiff is entitled to the relief claimed in the suit? 5. What order or decree? 5. Ultimately, after considering the merits of the case, the trial court decreed the suit with cost directing the defendant to execute the sale deed in favour of the plaintiff. Being aggrieved by the judgment and decree of the trial court, the defendant preferred an appeal before the first appellate court in R.A. No.20/2001 and the first appellate court after considering the merits of the case, ultimately, allowed the appeal and set aside the judgment and decree passed by the trial court and dismissed the suit of the plaintiff. Being aggrieved by the judgment and decree of the first appellate court, the plaintiff has preferred the present appeal on the grounds urged in the appeal memorandum. 6. While admitting the appeal, this Court has framed the following substantial questions of law: 1. Whether the judgment passed by the first Appellate Court dismissing the suit of the plaintiff for specific performance by reversing the Judgment and decree passed by the trial Court, is perverse and arbitrary, being contrary to the material on record and for non-consideration of the reasons assigned by the trial court? 2. Whether the first Appellate Court could have dismissed the suit of the plaintiff on a ground which was not the subject matter of issue before the trial court regarding the fact as to whether the time was the essence of the contract? 7. Heard the arguments of the learned counsel appearing for the appellant. He submitted that the defendant though executed agreement of sale Ex.P.1, he has totally denied the case of the plaintiff. Though brother of the defendant and the own son of the defendant themselves are the attesting witnesses to the agreement of sale, this aspect has not been appreciated by the first appellate court. The learned counsel submitted that P.W.4 is the scribe of Ex.P.1. He has given his evidence in detail about he writing the said document as per the instructions of the defendant. The learned counsel submitted that P.W.4 is the scribe of Ex.P.1. He has given his evidence in detail about he writing the said document as per the instructions of the defendant. He further submitted that though P.W.5 has turned hostile to some of the facts, but his evidence clearly goes to show the transaction of agreement of sale entered into between the plaintiff and defendant. He submitted that Section 71 of the Evidence Act is not properly appreciated by the courts below. Though the trial court has properly considered every aspect of the matter and decreed the suit of the plaintiff, the first appellate court has committed serious illegality in disbelieving the case of the plaintiff and hence, submitted to allow the appeal and to decree the suit of the plaintiff. In support of his arguments, the learned counsel appearing for the appellant has relied on the following decisions: 1. AIR 1963 SC 302 (V Ramachandra Ayyar and Another Vs. Ramalingam Chettiar and Another) 2. AIR 1965 SC 1752 ( Karpagathachi and Others Vs. Nagarathinathachi) 3. 1976 (4) SCC 320 (Ms. Modi Spinning and Weaving Mills Co. Ltd. And another Vs. M/s. Ladha Ram and Co.) Respondents and learned counsel appearing for the respondents were not present. As the matter was of the year 2005, it was reserved for judgment. 8. I have perused the judgment and order passed by the Courts below, grounds urged in the appeal memorandum and also the decisions relied upon by learned counsel appearing for the appellant-plaintiff. 9. The appellant filed the suit for specific performance before the trial Court and the trial Court after appreciating the materials both oral and documentary, decreed the suit and directed the defendant to execute registered sale deed in favour of the plaintiff by receiving the remaining sale consideration amount. When the judgment and decree of the trial Court and its validity and correctness was challenged before the first appellate Court in R.A.No.20/2001, the first appellate Court allowed the appeal and dismissed the suit of the plaintiff. 10. Perusing the judgment and order of the first appellate Court, it is seen that the first appellate Court being the final Court so far as factual aspects are concerned, has considered in detail the oral evidence of the witnesses examined before the trial Court and also the documents produced before the trial Court. 10. Perusing the judgment and order of the first appellate Court, it is seen that the first appellate Court being the final Court so far as factual aspects are concerned, has considered in detail the oral evidence of the witnesses examined before the trial Court and also the documents produced before the trial Court. The first appellate Court after re-appreciating the entire materials both oral and documentary has ultimately held that plaintiff has failed to prove that defendant has executed agreement of sale in his favour. For coming to such conclusion, first appellate Court has discussed the matter at length referring to the evidence placed on record. It is also observed by the first appellate Court that suit schedule property is the ancestral property and defendant is having children and there is no specific case made out by the plaintiff that defendant was acting as manager of the family and sold the property for family necessity. The first appellate Court after considering the material on record held that agreement of sale which was relied upon by the plaintiff and its execution is not established with satisfactory and cogent material. What is the inconsistency and infirmity in the evidence of witnesses examined on behalf of plaintiff in respect of agreement of sale has also been discussed in detail by the first appellate Court. 11. It is seen that the judgment and order of the first appellate Court is in compliance of Order 41 Rule 31 of C.P.C. The appellant herein has not made out the relevant factual aspects which were ignored and irrelevant facts taken into consideration by the first appellate Court in coming to such conclusion. Unless and until it is established by the appellant regarding the illegalities committed by the first appellate Court, this Court in the regular second appeal cannot make reference to the oral evidence of parties just like first appellate Court. 12. I have also perused the decisions relied upon by learned counsel appearing for the appellant-plaintiff. The facts and circumstances involved in the decisions relied upon by the appellant's counsel will not come to the assistance of appellant's case. Looking to the materials on record, I do not find any illegality in the judgment and order passed by the first appellate Court and there are no valid and justifiable grounds for this Court to interfere with the judgment and decree of the first appellate Court. Looking to the materials on record, I do not find any illegality in the judgment and order passed by the first appellate Court and there are no valid and justifiable grounds for this Court to interfere with the judgment and decree of the first appellate Court. Hence, the appeal is hereby dismissed.