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2020 DIGILAW 1277 (KAR)

Shilu v. Hanamant

2020-06-29

P.KRISHNA BHAT

body2020
JUDGMENT P.Krishna Bhat, J. - Being aggrieved by the judgment and decree dated 18.10.2019 passed by the learned Principal Senior Civil Judge and CJM, Vijayapur dismissing R.A.No.25/2017, confirming the judgment and decree dated 13.04.2017 passed by the learned IV Additional Civil Judge, Vijayapur, dismissing O.S.No.451/2008, the plaintiff has preferred the present second appeal under Section 100 of the Code of Civil Procedure, 1908. 2. During the course of this judgment, for the sake of convenience, parties will be referred to as per their ranks before the learned Trial Court. Plaintiff is the appellant herein. Respondent No.1 was defendant No.1 and respondent No.2 was defendant No.2. 3. Plaintiff filed O.S.No.451/2008 seeking direction to defendant Nos.1 and 2 to execute a registered sale deed in favour of the plaintiff in respect of the suit properties after receiving balance consideration amount of Rs.50,000/- from the plaintiff and also for a consequential relief of permanent injunction, restraining defendant Nos.1 and 2 from obstructing the peaceful possession, enjoyment and wahiwat of the plaintiff over the suit properties. The suit properties mentioned in the prayer of the plaint is merely described as Survey No.196/1/2 measuring 3 acres assessed at 1 rupee 50 paise and Survey No.196/2A measuring 2 acres 6 guntas assessed at 1 rupee 14 paise, both situated at Aliyabad village, taluka and district Vijayapur. It is relevant to notice that no boundaries of the properties have been furnished in the plaint. 4. Case of the plaintiff is that on 25.12.1994, defendant No.1 and his mother Shankrewwa who passed away on 05.06.2006 came up with a proposal to sell the suit properties claiming to be in need of money for their family necessity. Plaintiff agreed to purchase the suit properties for Rs.3,00,000/- and defendant No.1 and his mother agreed to sell the suit properties for the said consideration to the plaintiff and in the presence of witnesses Sri G.A.Rathod, Sri L.D.Chawan, Sri B.M.Chawan and Sri R.V.Rathod (PW.2) an oral agreement of sale was entered on 25.12.1994. Plaintiff's further case is that pursuant to the oral agreement of sale, plaintiff paid Rs.1,00,000/- to defendant No.1 and his mother Shankrewwa as earnest money on 25.12.1994 and defendant and his mother handed over possession of the suit properties to the plaintiff on the same date itself. Plaintiff's further case is that pursuant to the oral agreement of sale, plaintiff paid Rs.1,00,000/- to defendant No.1 and his mother Shankrewwa as earnest money on 25.12.1994 and defendant and his mother handed over possession of the suit properties to the plaintiff on the same date itself. Plaintiff has further asserted that on 28.03.2003 defendant No.1 and his mother received a further sum of Rs.1,50,000/- and passed a receipt dated 28.03.2003 (Ex.P1) in the presence of witnesses admitting therein receipt of Rs.1,00,000/- on 25.12.1994 and Rs.1,50,000/- on the date of Ex.P1. He has claimed further that thereafter he made several requests with defendant No.1 and his mother for executing regular sale deed after receiving balance consideration amount of Rs.50,000/-. According to him, defendant No.1 and his mother went on postponing the execution of the sale deed for some reason or the other and even after the death of the mother of defendant No.1 on 05.06.2006, plaintiff had continued to make requests but without success. It is further alleged by him that he had made several improvements in the land pursuant to taking possession of the suit properties on 25.12.1994 and he had even dug a well and finally on 21.06.2008 defendant No.1 registered a bogus sale deed in favour of defendant No.2 and on account of the same, he had issued a legal notice to defendant Nos.1 and 2 and thereafter filed the suit in O.S.No.451/2008. 5. Defendant Nos.1 and 2 have filed their separate written statements and defendant No.1 in particular has denied the oral agreement of sale on 25.12.1994; handing over the possession of the suit properties to the plaintiff; receipt of part of the consideration on 25.12.1994; and similarly on 28.03.2003. He has also asserted in his written statement that Ex.P1 was a forged document and neither himself nor his mother had either signed the same or affixed their LTM and it was created by the plaintiff on an old stamp paper. He has also stated that he continued to be the owner in possession of the suit properties till he executed the sale deed Ex.D21 dated 21.05.2008 which was registered on 21.06.2008 before the Sub-Registrar, Vijayapur in favour of defendant No.2. He has also stated that he continued to be the owner in possession of the suit properties till he executed the sale deed Ex.D21 dated 21.05.2008 which was registered on 21.06.2008 before the Sub-Registrar, Vijayapur in favour of defendant No.2. Defendant No.2 in his separate written statement has taken a similar stand claiming that by the sale deed under Ex.D21, he had purchased the suit properties from defendant No.1 and ever since then he is in possession and enjoyment of the suit properties. 6. The learned Trial Court has framed appropriate issues. During the trial, plaintiff has examined himself as PW.1 and examined one Ramachandra S/o Umalu Rathod as PW.2. Exs.P1 to P23 were marked. Defendant No.1 examined himself as DW.1 and defendant No.2 examined himself as DW.2 and DWs.3 to 5 were also examined to speak about the possession of the suit properties with the defendants. Exs.D1 to D31 were marked. 7. Both the learned Trial Court as well as the first appellate Court on appreciation of the entire evidence have found that oral agreement set up by the plaintiff was not proved and the plaintiff had failed to prove that he was in possession of the suit properties since 25.12.1994 and being of the said view, learned Trial Court had dismissed the suit and the learned first appellate Court had dismissed the appeal preferred by the plaintiff. 8. Learned counsel for the appellant submitted before me that a substantial question of law arises in this appeal in that the Trial Court as well as the first appellate Court had failed to draw appropriate inferences emanating from the evasive answers given by the defendants during their cross-examination to the suggestions put to them on behalf of the plaintiff. 9. In order to appreciate the said submission, I have perused the judgments of the Courts below and also the entire records. 10. The oral agreement of sale set up by the plaintiff has been clearly denied by defendant No.1 in his written statement. Therefore, the onus was entirely on the plaintiff to prove the agreement of sale dated 25.12.1994. As already noticed by me, in the plaint, proper description of the suit properties by way of their boundaries have not been given. During his evidence, PW.1 proved no better in regard to giving description of the suit properties. Therefore, the onus was entirely on the plaintiff to prove the agreement of sale dated 25.12.1994. As already noticed by me, in the plaint, proper description of the suit properties by way of their boundaries have not been given. During his evidence, PW.1 proved no better in regard to giving description of the suit properties. An important attribute of an agreement of sale oral or written is an ad-idem regarding the identity of the properties which are subject matter of such agreement [Vide (KANT.) (DB) P. Saravanam and Others vs. V. L. Thiyagaraj,1988 AIR Noc 40 ]. In this case, it is an oral agreement of sale and plaint is bereft of the details regarding the boundaries so as to fix its identity. PW.1 during his cross-examination failed to give the boundaries. 11. Even according to him, he had made nearly ten to twenty requests along with witnesses to defendant No.1 for executing the sale deed. If his case is that oral agreement was entered on 25.12.1994 and he was handed over the possession of the same, his conduct in not filing a suit for enforcing such oral agreement till as late as 2008, is hardly the conduct which would inspire the confidence of the Court that there was indeed an oral agreement of sale in respect of two items of the properties described by the plaintiff as suit properties in the plaint. The Trial Court has correctly noticed while disbelieving the case of the plaintiff that on the one hand PW.2 has claimed that he did not know the plaintiff (Page No.6 of crossexamination of PW.2), on the other he has appeared before the Court to give evidence without plaintiff taking summons to him to appear as witness (vide the discussion of the Trial Court at paragraph No.19 of its judgment). He seems to be more loyal than the king himself. 12. Another striking aspect of this case is the document Ex.P1 which is styled as receipt for having received money ( ). It is dated 28.03.2003. The stamp paper on which Ex.P1 is drawn is dated 26.03.1999. PW.1 has admitted to the same (page No.7 of cross-examination of PW.1). He seems to be more loyal than the king himself. 12. Another striking aspect of this case is the document Ex.P1 which is styled as receipt for having received money ( ). It is dated 28.03.2003. The stamp paper on which Ex.P1 is drawn is dated 26.03.1999. PW.1 has admitted to the same (page No.7 of cross-examination of PW.1). If that is so, it is obvious that a stamp paper which was dated 26.03.1999 was used for the purpose of preparing Ex.P1 on 28.03.2003 and this has to be appreciated in the backdrop of the consistent plea of defendant No.1 that there was no such oral agreement on 25.12.1994; that he had not received part consideration of Rs.1,00,00 on that day; that he had not received further part consideration of Rs.1,50,000/- on 28.03.2003, and that he had never parted with possession of the suit properties at any point of time till he sold the same in favour of defendant No.2 under sale deed Ex.D21 as could be seen from the averment made in his written statement and also in his evidence. Defendant No.1 has also asserted in his written statement as well as during his evidence that Ex.P1 is forged document. The circumstances brought out during the evidence clearly shows that Ex.P1 is a created document. 13. There is yet another aspect which also gives lie to the claim of the plaintiff that he was in possession of the suit properties since 25.12.1994. Plaintiff has produced Exs.P9 and P10 which are Form No.12 maintained by the Village Accountant. They show that a charge/mortgage was entered in the revenue records in respect of two items of suit property for defendant No.1 having taken amount of Rs.1,00,000/- and Rs.2,00,000/- respectively on 06.08.2001 from Vyavasaya Seva Sahakari Sangha Niyamit, Vijayapur and P10 produced by the plaintiff. The entry was made on 06.08.2001 and the loans were taken on the security of the land from the society by defendant No.1 and these transactions/entries are consistent only with the fact that defendant No.1 was in possession and enjoyment of the suit properties as on 06.08.2001 and not the plaintiff and if that is so, the case of the plaintiff that there was oral agreement of sale on 25.12.1994 and he had made part payment of consideration and he had obtained possession of the suit properties from defendant No.1 on that day falls to the ground. 14. The plaintiff has to stand on the strength of his own case and cannot prove his case based on the alleged evasive answers given by defendant No.1 to the suggestions put to him. Even on this aspect, to the suggestions put to defendant No.1 regarding oral agreement of sale and handing over the possession of the suit properties, there is a clear and emphatic denial by him. Therefore, I do not find any legal infirmity in the appreciation of evidence made by the learned Courts below and there is no failure on their part to draw appropriate inferences arising from the evidence placed before the Court. The finding of the Courts below that the plaintiff has failed to prove oral agreement of sale and also Ex.P1 is right and proper and they are entirely based on the evidence placed on record. It is necessary to mention here that learned counsel for the appellant has graciously submitted that the plaintiff cannot take the benefit of the provisions of Section 53(A) of the Transfer of Property Act, 1882 in view of the fact that the agreement of sale is not in writing. 15. In the view as above, no substantial question of law arises for consideration in this appeal and therefore it is liable to be dismissed. Hence, the following: ORDER The above appeal is dismissed. No order as to costs.