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2022 DIGILAW 170 (KAR)

Jayamma v. S. V. Thimmanna

2022-02-08

H.B.PRABHAKARA SASTRY

body2022
JUDGMENT 1. This is plaintiffs' appeal. The original plaintiff Sri Ningappa had filed a suit against the present respondent Nos.1 and 2 (arraigning them as defendant Nos. 1 and 2) in O.S. No. 15/2002 on the file of I Addl. Civil Judge (Sr.Dn), Chitradurga, (hereinafter for brevity referred to as 'trial Court') for the relief of declaration and specific performance of contract. 2. The summary of the case of the plaintiff in the trial Court is that the defendant No.1 is the owner of the suit schedule site which is a site bearing No.2 and measuring 48 feet X 44 feet situated at I Block, Ujjinimutt Road, Chitradurga. The plaintiff and defendant No.1 are own brothers. Since 1976, the defendant No.1 had permitted the plaintiff to use the schedule property for the purpose of rearing cattle and she-buffaloes since the plaintiff was doing a milk vending business, as such, the plaintiff had put up a temporary shed in the property and using it for rearing the cattle and she-buffaloes. The defendant No.1 agreed to sell the suit schedule property in favour of the plaintiff for a consideration of a sum of Rs.1,50,000.00 and received a sum of Rs.50,000.00 as advance and partial sale consideration from the defendant No.1. In that regard, as an agreement to sell came to be executed between plaintiff and defendant No.1 on 16/7/2001. It was agreed between them that the vendor had to execute the registered Sale Deed in favour of the plaintiff/purchaser after receiving balance sale consideration of Rs.1,00,000.00 on or before 15/12/2001. Accordingly, when the plaintiff approached the defendant No.1 with the balance sale consideration of Rs.1,00,000.00 on 15/12/2001, the defendant No.1/vendor told that he had already sold the suit schedule property in favour of defendant No.2 for a consideration of Rs.1,75,000.00 under a registered Sale Deed dtd. 28/11/2001. The plaintiff contended that the defendant No.1 also had no right to sell the suit schedule property to the defendant No.2 and that the defendant No.2 had no right to purchase the suit schedule property from the defendant No.1, as such, the said Sale Deed has no legal value in the eye of law. Even after coming to know of the Sale Deed in favour of the defendant No.2, the plaintiff requested the defendant No.1 to execute a Sale Deed in his favour, but his request went in vain. Even after coming to know of the Sale Deed in favour of the defendant No.2, the plaintiff requested the defendant No.1 to execute a Sale Deed in his favour, but his request went in vain. Though the plaintiff was ready and willing to perform his part of the promise, since the defendant No.1 refused to execute the Sale Deed in his favour, he was constrained to institute the suit. With this, he prayed for a declaration to declare the Sale Deed dtd. 28/11/2001 executed by the defendant No.1 in favour of defendant No.2 as void and illegal and also for a direction to the defendant No.1 to execute a registered Sale Deed in favour of the plaintiff in respect of the suit schedule property after receiving the balance sale consideration. Alternatively, the plaintiff also prayed for recovery of advance amount of Rs.50,000.00 from the defendant No.1 with the interest at 18% p.a. thereupon. 3. In response to the summons served upon them, both the defendants appeared through their counsel in the trial Court and filed their written statement. The defendant No.1 in his written statement admitted that the plaintiff is his brother and the suit schedule property had fallen to his share (defendant No.1) under a Settlement Deed dtd. 6/7/1976. However, he denied that since 1976, he has permitted the plaintiff to use the suit schedule property for the purpose of rearing the cattle and she-buffaloes. He also denied the alleged Sale Agreement dtd. 16/7/2001. He called the Sale Agreement as a forged document and concocted in collusion with deceitful friends to make a wrongful gain. He denied that he had no right to sell the suit schedule property to the defendant No.2. With this, he prayed for dismissal of the suit. 4. The defendant No.2 in her written statement also denied the plaint averments by stating that the defendant No.1 is the owner of the suit schedule property and that she is the purchaser of the suit schedule property from the defendant No.1 under a registered sale deed. She also called the alleged agreement of sale dtd. 16/7/2001 between the plaintiff and the defendant No.1 as a forged and concocted one. She denied that the suit schedule property is in possession of the plaintiff. She also called the alleged agreement of sale dtd. 16/7/2001 between the plaintiff and the defendant No.1 as a forged and concocted one. She denied that the suit schedule property is in possession of the plaintiff. She contended that she being a bona fide purchaser for valuable consideration, she is in lawful possession of the suit schedule property as a owner thereof. She also stated that from the date of the Sale Deed, she is paying municipal taxes and khatha has been effected in her favour from the date of purchase. With this, she prayed for dismissal of the suit. 5. Based on the pleadings of the parties, the trial Court framed the following issues: "1. Whether the plaintiff proves that, 1st defendant had agreed to sell the suit property for a consideration of Rs.1,50,000.00 by executing an agreement of sale on 1/7/1? 2. Whether the plaintiff proved that, 1st defendant had received Rs.50,000.00 as part payment and agreed to execute the registered sale deed on or before 15/12/2001 by receiving sale balance consideration amount? 3. Whether the plaintiff proves that, the sale deed executed by 1st defendant in favour of 2nd defendant is illegal, null and void? 4. Whether the plaintiff proves that he was always ready and willing to perform his part of contract? 5. Whether the plaintiff is entitled for specific performance of contract? 6. Whether the plaintiff is entitled for recovery of advance amount from defendant No.1? 7. Whether plaintiff is entitled for decree? 8. What decree or order? 6. The original plaintiff Sri Ningappa was examined as PW-1. After his examination-in-chief, but before his cross- examination, he passed away. One Sri C.B. Dinesh, an attestor to the sale agreement was examined as PW-2. The legal representatives of the deceased original plaintiff Sri Ningappa were brought on record as plaintiff Nos.1(a),1(b), 1(c) and 1(d) respectively. Among them, plaintiff No.1(b) Sri N. Jagadish, who is the son of the original plaintiff was examined as PW-3. The documents from Ex.P1 to Ex.P5 were marked on behalf of the plaintiff. The defendant No.1 was examined as DW-1 and defendant No.2 was examined as DW-2. One Sri Narasimha Swamy and Sri B. Hanumantharayappa who were alleged to be the attestors to the alleged registered Sale Deed dtd. 28/11/2001 were examined as DW-3 and DW-4 respectively. The documents from Ex.D1 to ExD9 were marked on behalf of the defendants. 7. The defendant No.1 was examined as DW-1 and defendant No.2 was examined as DW-2. One Sri Narasimha Swamy and Sri B. Hanumantharayappa who were alleged to be the attestors to the alleged registered Sale Deed dtd. 28/11/2001 were examined as DW-3 and DW-4 respectively. The documents from Ex.D1 to ExD9 were marked on behalf of the defendants. 7. After hearing both sides, the trial Court while answering issue Nos.1, 2, 4 and 6 in the affirmative, issue No.7 partly in the affirmative, issue Nos. 3 and 5 in the negative, proceeded to decree the suit of the plaintiff in-part. Though it held that the plaintiff is entitled to recover the advance amount of Rs.50,000.00 from the defendant No.1 with interest thereupon at 8%p.a., but the plaintiff's prayer for declaration that the registered Sale Deed dtd. 28/11/2001 as void and illegal, as well the plaintiff's prayer for the relief of specific performance of the contract by executing Sale Deed in his favour by the defendants, were rejected. Being aggrieved by the said judgment and decree passed by the trial Court, the plaintiffs in the trial Court have preferred this appeal. 8. The plaintiff No.1 (c) in the trial Court has been arrayed as respondent No.3 in this appeal. However, during the pendency of the appeal, he was reported to be dead and the appellants who were already on record are shown as legal representatives. The cause title of the memorandum of appeal came to be amended accordingly. 9. In response to the notice served upon the respondents, the respondent No.2 is appearing through his learned Senior Counsel. The respondent No.1 though served with the notice, has remained absent. 10. Records from the trial Court are called for and the same are placed before the Court. 11. For the sake of convenience, the parties would be referred to as per their rank before the trial Court. 12. Heard the arguments from both side. Perused the materials placed before this Court. 13. The points that arise for my consideration are, 1. Whether the respondent No.2 who is admittedly is not a party to the alleged agreement of sale dtd. 16/7/2001 can challenge the finding of the trial Court made in favour of the plaintiff on Issue No.1 regarding the execution of the agreement of sale dtd. 13. The points that arise for my consideration are, 1. Whether the respondent No.2 who is admittedly is not a party to the alleged agreement of sale dtd. 16/7/2001 can challenge the finding of the trial Court made in favour of the plaintiff on Issue No.1 regarding the execution of the agreement of sale dtd. 16/7/2001 between the plaintiff and the defendant No.1 under Order XLI Rule 22 of Code of Civil Procedure, without filing either an appeal or a cross-objection? 2. Whether the plaintiffs have proved that the defendant No.1 had agreed to sell the suit schedule property for a consideration of Rs.1,50,000.00 to the original plaintiff by executing an agreement of sale dtd. 16/7/2001? 3. Whether the plaintiffs prove that they were ready and willing to perform his part of the contract? 4. Whether the plaintiffs are entitled for the relief of declaration that the registered sale deed dtd. 28/11/2001 executed by the defendant No.1 in favour of defendant No.2 is not binding on the plaintiffs? 5. Whether the plaintiffs are entitled for the relief of specific performance of contract? 6. Whether the judgment and decree under appeal warrants any interference at the hands of this Court? 14. The original plaintiff-Sri Ningappa got himself examined as PW-1, who in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his plaint. In support of his contention, he got produced and marked the alleged agreement of sale said to have been executed by the defendant No.1 in his favour on 16/7/2001 at Ex.P1. He produced two colour photographs with their negatives stating them to be the photographs pertaining to the suit schedule property and got the photographs marked at Ex.P2 and Ex.P3 and negatives at Ex.P2(a) and Ex.P3(a) respectively. A bill said to have been issued by the photographer is marked at Ex.P4. The certified copy of the registered Sale Deed said to have been executed by defendant No.1 in favour of defendant No.2 and dtd. 28/11/2001 was marked at Ex.P5. However, as already observed above, before his cross-examination, PW-1 passed away. One Sri C.B.Dhanesh in his examination-in-chief as PW-2 stated that the agreement at Ex.P1 was witnessed by him and the transaction under the agreement had taken place in his presence and has identified his signature therein at Ex.P1(c). 28/11/2001 was marked at Ex.P5. However, as already observed above, before his cross-examination, PW-1 passed away. One Sri C.B.Dhanesh in his examination-in-chief as PW-2 stated that the agreement at Ex.P1 was witnessed by him and the transaction under the agreement had taken place in his presence and has identified his signature therein at Ex.P1(c). The plaintiff No.1(b) Jagadish who is the son of the plaintiff was examined as PW-3, who also in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by the plaintiff in the plaint. Both PW-2 and PW-3 were subjected to a detailed cross-examination from the defendant's side. 15. The defendant No.1 as DW-1, in his examination-in- chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his written statement. He denied that he had entered into an agreement of sale of the suit schedule property with his brother who is the original plaintiff under an alleged agreement of sale dtd. 16/7/2001 and had received any amount as a partial sale consideration from the plaintiff. He also stated that he had been in possession in the suit schedule property until he sold and delivered his possession to defendant No.2 for a valuable consideration. He specifically stated that he had sold the suit schedule property to the defendant No.2 under a registered Sale Deed. 16. The defendant No.2 as DW-2 has also reiterated the summary of her written statement, even in her examination-in- chief filed in the form of affidavit evidence. The alleged registered Sale Deed dtd. 28/11/2001 said to have been executed by the defendant No.1 was got marked by her as Ex.D1. The certified copy of khatha certificate and certified copy of the Tax Assessment extract with respect to the suit property were got marked by her as Ex.D2 and Ex.D3 respectively. Two endorsements said to have been issued by the City Municipality, Chitradurga were marked as Ex.D4 and Ex.D5 respectively. Three tax paid receipts were got marked as Exhibits-D6, D8 and D9 respectively. The registration fee receipt issued by the Sub-Registrar, Chitradurga was marked at Ex.D7. 17. One Sri N.S Narasimhaswamy and one Sri B. Hanumanthappa were examined as DW-3 and DW-4 respectively from the defendants' side. Three tax paid receipts were got marked as Exhibits-D6, D8 and D9 respectively. The registration fee receipt issued by the Sub-Registrar, Chitradurga was marked at Ex.D7. 17. One Sri N.S Narasimhaswamy and one Sri B. Hanumanthappa were examined as DW-3 and DW-4 respectively from the defendants' side. Both of them in their examination-in-chief have stated that they were present at the time of execution of the Sale Deed with respect to the suit schedule property by the defendant No.1 in favour of defendant No.2 at Ex.D1 and that they have put their signatures in the said Sale Deed as witnesses. Both of them have identified their signatures in Ex.D1. They further stated that by virtue of the said sale in favour of the defendant No.2, the possession of the suit schedule property was delivered by the defendant No.1 to the defendant No.2. As such, she has been in possession of the said property. All the four witnesses examined for the defendants were subjected to the cross-examination from the plaintiffs' side. 18. In the light of the above pleadings and evidence of the parties and the impugned judgment, the arguments of the learned counsel for the appellants was that the defendants without filing a Cross-objection or an appeal, cannot challenge the finding given by the trial Court on the issue No.1. In that regard, the learned counsel for the appellants relied upon a judgment of the Hon'ble Apex Court in Banarasi and others - Vs- Ram Phal reported in (2003) 3 SCC 606. He further submitted that the very purpose for which the defendant No.1 agreed to sell the suit schedule property in favour of the plaintiff was that the plaintiff had been in possession of the suit schedule property and using it for rearing the cattle and she-buffaloes, however, the said fact was ignored by the trial Court. He further submitted that the trial Court did not exercise its discretion appropriately and in a just manner and it failed to notice that greater hardship would be caused to the plaintiff if relief for specific performance was denied to the plaintiff. He further submitted that the trial Court did not exercise its discretion appropriately and in a just manner and it failed to notice that greater hardship would be caused to the plaintiff if relief for specific performance was denied to the plaintiff. In that regard, the learned counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in P.C Varghese -vs- Devaki Amma Balambika Devi and others reported in AIR 2006 SC 145 and also the judgment of the Hon'ble Apex Court in Devalsab -Vs- Ibrahimsab F.Karajagi reported in (2005) 3 SCC 342 . These judgments would be referred here afterwards at the appropriate places. 19. As already observed, the respondent No.1 though has been served, but, has remained absent in this appeal. 20. Learned Senior Counsel appearing for the respondent No.2 in his arguments submitted that, since the finding of the trial Court on Issue No.1 regarding the existence of the alleged agreement dtd. 16/7/2001 between the plaintiff and the defendant No.1 affects the interest of respondent No.2, the said respondent No.2 can question the finding given on the said issue by the trial Court under Order XLI Rule 22 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as 'CPC'), without even filing a cross- objection or an appeal. He further submitted that in view of the fact that PW-1 was dead before his cross-examination, his evidence would have least probative value, as such, it has to be eschewed. He also submitted that with respect to the possession of the suit property, PW-2 has expressed his ignorance. He was also not present at the time of execution of alleged agreement of sale dtd. 16/7/2001. Further, PW-3 who is none else than the son of the plaintiff has also stated that he was not present at the time of preparation of the Sale Deed and has expressed his ignorance about the possession of the suit schedule property by defendant No.2. Therefore, when the plaintiffs are not in possession of the suit property and defendant No.2 is a bona fide purchaser and in possession of the suit schedule property and also when the very alleged agreement at Ex.P1 could not be proved, the trial Court has rightly denied the relief of specific performance in favour of the plaintiff. Therefore, when the plaintiffs are not in possession of the suit property and defendant No.2 is a bona fide purchaser and in possession of the suit schedule property and also when the very alleged agreement at Ex.P1 could not be proved, the trial Court has rightly denied the relief of specific performance in favour of the plaintiff. In his support, the learned Senior Counsel relied upon the judgment reported in the case of Abdul Rashid V/s Smt. Suganda Kamalakar Kudtarkar reported in 2006 SCC Online Kar 590. 21. It is an admitted fact that the original plaintiff-Sri Ningappa and defendant No.1 were own brothers. According to the plaintiff, his brother who is defendant No.1 had executed an agreement of sale with respect to the suit schedule property in his favour as per Ex.P1 on 16/7/2001 agreeing to sell the suit schedule property to him for a total sale consideration of a sum of Rs.1,50,000.00, in which, he had received a sum of Rs.50,000.00 as an advance amount. The original plaintiff though was examined as PW-1, but he died before he could face the cross- examination from the defendant. 22. Learned Senior Counsel for the respondent No.2 in his argument submitted that in view of the death of PW-1 before his cross-examination, his entire evidence loses its probative value, as such, his evidence is required to be eschewed. 23. Sec. 33 of the Indian Evidence Act, 1872 reads as below: "Sec. 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. 23. Sec. 33 of the Indian Evidence Act, 1872 reads as below: "Sec. 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. - Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided - that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding." A reading of the above Sec. would go to show that the evidence given by the witness in a judicial proceeding would be relevant for the purposes of proving in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead, however, subject to certain proviso. 24. In Food Inspector, Thodupuzha Circle Vs. James N.T. and another reported in 1998 Cri.L.J 3494, with respect to the admissibility of evidence of a deceased witness, who died before his cross-examination, it was observed in paragraph 13 of the judgment that the evidence of a witness who could not be subjected to cross-examination due to his death before he could be cross-examined, in evidence, though the evidentiary value will depend upon the facts and circumstances of the case. 25. In Somagutta Sivasankara Reddy and others Vs. Palapandla Chinna Gangappa and others reported in with respect to evidentiary value of a evidence given by a witness who could not be cross-examined, it was held in paragraph 7 of the judgment that the evidence given by a witness, although he had not been cross-examined, may be admissible in evidence. However, the weight or the probative value attached to such evidence would depend upon facts and circumstances of each case. However, the weight or the probative value attached to such evidence would depend upon facts and circumstances of each case. Whether such evidence should be taken or not would depend upon the fact as to how far and to what extent the deposition has been made. Whether the witness has spoken about the relevant fact at the stage of examination-in-chief is also relevant. 26. In the case of Smt. Vanajakshi Vs B. Ningappa and Others reported in 2021(4) KCCR 3115, a Co-ordinate Bench of this Court on a similar point was pleased to rely upon the Commentary and the Law of Evidence in Sarkar's Law of Evidence, 18th Edn. LexisNexis in Chapter X, after surveying several English and Indian Decisions extracted a portion of it which reads as below: " When a witness dies after examination-in-chief and before cross-examination, the evidence is admissible, but its probative value may be very small and may even be disregarded .... If the examination is substantially complete and the witness is prevented by death, sickness and other causes (mentioned in Sec.33) from finishing his testimony, it ought not be rejected entirely. But if not so far advanced as to be substantially complete, it must be rejected. Deposition of a witness whose cross- examination became impossible can be treated as evidence and the Court should carefully see whether there are indications that by a completed cross- examination the testimony was likely to be seriously shaken or his good faith to be successfully impeached. ... Evidence is admissible if cross-examination is not evaded or deliberately prevented. Death or illness before cross- examination makes the evidence-in-chief admissible though its weight may be slight. But absence from the country, or temporary illness, has been held insufficient, the proper course being to adjourn the trial or issue a commission; .... Farwell. J., rejected in to the evidence of a plaintiff who fainted and was unable to be cross- examined...." After analysing the law on the point, it was held in the said case that, in such an event, the evidence is admissible, provided, the cross-examination is not evaded as deliberately prevented. However, it was cautioned that the Court to be careful in adjudging the credence of the witness and the probative force of his deposition if the subject deposition of the deceased witness cannot be excluded from record of case. 27. However, it was cautioned that the Court to be careful in adjudging the credence of the witness and the probative force of his deposition if the subject deposition of the deceased witness cannot be excluded from record of case. 27. In the light of the above decision, it is clear that merely because a witness is said to be dead without facing the cross-examination or in the middle of his cross-examination and if the facts show that the said witness did not evade or deliberately prevented his cross-examination in the matter, then his evidence cannot be eschewed. However, in such a case, the Court appreciating the evidence of such a witness has to be careful in adjudging the credence of the witness and the probative force of his deposition. As such, merely because PW-1 in the instant case died after his examination-in-chief and before his cross-examination and also when the trial Court record shows that he did not evade his cross-examination, his evidence cannot be excluded or eschewed. However, the probative value of his evidence has to be appreciated and analysed in the light of the evidence of PW-2 and PW-3. 28. Learned Senior Counsel for the respondent No.2 in his arguments submitted that the finding given by the trial Court on Issue No.1 about the alleged agreement of sale dtd. 16/7/2001 between the plaintiff and the defendant No.1 is an erroneous finding. He submitted that without even filing a cross-objection, he can oppose the said finding given by the trial Court under Order XLI Rule 22 of CPC. Learned counsel for the appellants, vehemently opposed the said argument of the learned Senior Counsel for respondent No.2 and submitted that the said finding on Issue No.1 by the trial Court is in no way concerned with the respondent No.2 and that it would not affect the alleged right, if any, of the respondent No.2 He further submitted that even under Order XLI Rule 22 of CPC, the respondent No.2, if at all entitled to challenge the said finding, ought to have filed a cross-appeal or cross-objection which admittedly the respondent No.2 has not filed in the instant case. 29. 29. Order XLI Rule 22 of Code of Civil Procedure reads as under: " Rule 22 - Upon hearing, respondent way object to decree as if he had preferred a separate appeal- 1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit it allow. 30. The Hon'ble Apex Court in Banarsi and Others V/s Ram Phal, reported in (2003) 9 Supreme Court Cases 606, was pleased to hold that after the 1976 amendment to the Code of Civil Procedure, the respondent could file cross objection against the findings of the lower Court, while previously cross objections could only be filed when the decree of the lower was partly against the respondent. In paragraph 11 of its judgment, the Hon'ble Apex Court was pleased to observe as below: " xxx xxx xxx Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenging to any of finding adverse to him as the decree is entirely in his favour and he may support the decree without cross- objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue." The Hon'ble Apex Court in Saurav Jain and Another v/s A.B.P. Design and Another reported in 2021 SCC Online SC 552, after referring to its various previous judgments including the one in Banarasi case (supra). In Para 29 of its judgment, the Hon'ble Apex Court, with respect to Order XLI Rule 22 of CPC was pleased to observe as below: " 29. In Para 29 of its judgment, the Hon'ble Apex Court, with respect to Order XLI Rule 22 of CPC was pleased to observe as below: " 29. It is apparent from the amended provisions of Order XLI Rule 22 of CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing a cross- objection was enhanced substantively to include objections against 'findings' of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" from "may also take any cross-objection to the decree" with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection." Thus, from a reading of Order XLI Rule 22 of CPC in the light of the above referred judicial precedents, it is clear that the respondent in an appeal apart from having an opportunity to file a cross-objection to the decree, may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour. Accordingly, though a respondent in an appeal may object to the finding given on an issue before filing a counter objection or a cross-appeal, however, he should first satisfy the Court that the said finding is against him. 31. In the instant case, as held by the trial Court, the agreement of Sale dtd. 16/7/2001 was between the plaintiff and the defendant No.1. The defendant No.1 though has been served with the notice, for the reasons best known to him did not choose to appear in this appeal through his counsel. As such, he has chosen not to contest the decree under appeal. He has not contended that the finding on Issue No.1 and 2 given by the trial Court is not acceptable to him. As such, he has chosen not to contest the decree under appeal. He has not contended that the finding on Issue No.1 and 2 given by the trial Court is not acceptable to him. The said finding is only against the defendant No.1 and it cannot be held that the same is against the defendant No.2 in the original suit which defendant No.2 claims herself to be a subsequent purchaser of the suit schedule property from defendant No.1. Therefore, since the finding on Issue No.1 and 2 cannot be held as directly against the defendant No.2 or her interest, she cannot challenge those finding without filing a cross-objection or a cross-appeal. 32. The proven fact being that the respondent No.2 herein being the subsequent purchaser of the suit schedule property from the respondent No.1 on 28/11/2001 and since the plaintiff is proved to be a holder of an agreement of sale in his favour with respect to the very same property under an agreement dtd. 16/7/2001 entered with defendant No.1, then the point to be considered is whether the appellant/plaintiff is entitled for the relief of specific performance. 33. Learned counsel in his arguments submitted that in case, the specific performance is not granted in favour of the plaintiff, he would be put to greater hardship. He submitted that the plaintiff has been in possession of the suit schedule property and eaking his livelihood by rearing cattle in the said vacant site, as such, if he is not granted with the relief as prayed, he would suffer an irreparable injury. The learned counsel relied upon two judgments of the Hon'ble Apex Court in his support which are as below: (i) In Devalsab (dead) by LRs.Vs Ibrahimsab F.Karajagi reported in (2005) 3 Supreme Court Cases 342, the question before the Hon'ble Apex Court was regarding the exercisal of discretionary power under Sec. 20 of 'the Act' and the equity. The facts in the said case was that the agreement of sale of the suit property was first entered into by the defendant No.2 with the plaintiff. The facts in the said case was that the agreement of sale of the suit property was first entered into by the defendant No.2 with the plaintiff. Though the plaintiff was ready and willing to perform his part of the contract, the defendant No.1 instead of executing sale deed in his favour, entered into another agreement of sale with defendant No.2 who got a sham suit filed against defendant No.1 and obtained a compromise decree on the same day, by virtue of which defendant No.2 obtained a sale deed in his favour from defendant No.1 in respect of the same property. This High Court in RSA No.68/1994 with a view to grant a discretionary relief under Sec. 20 of the 'Act' held that as defendant No.2 was in possession of the property prior to the agreement of sale with plaintiff, in case of his eviction from the property, he would lose money as well as long possession and that therefore, on consideration of hardship which was likely to be caused to defendant No.2, the decree for specific performance of the sale agreement in favour of plaintiff passed by the trial Court and first Appellate Court was not confirmed in second appeal. However, the High Court directed that the plaintiff would be entitled to refund of money with costs. In appeal, the Hon'ble Apex Court held that the High Court erred in granting the discretionary relief in favour of the defendant No.2. It observed that there was not much equity left in favour of the defendant No.2 as the suit filed by him was a pre-arrangement and pre-conceived arrangement with the defendant No.1 in order to cheat the plaintiff. Hence the plaintiff was held to be entitled to a decree for specific performance of the agreement of sale against the defendant No.1. (ii) In P.C. Varghese V/s Devaki Amma Balambika Devi and others reported in AIR 2006 SC 145 , with respect to Sec. 20 of 'the Act', the Hon'ble Apex Court was pleased to observe that alternate plea for refund of earnest amount and damage cannot itself be barred to claim decree for specific performance of the contract 34. (ii) In P.C. Varghese V/s Devaki Amma Balambika Devi and others reported in AIR 2006 SC 145 , with respect to Sec. 20 of 'the Act', the Hon'ble Apex Court was pleased to observe that alternate plea for refund of earnest amount and damage cannot itself be barred to claim decree for specific performance of the contract 34. In Devalsab's case (supra), the Hon'ble Apex Court reversed the judgment of this Court passed in RSA No.68/1994 and decreed the suit of the plaintiff by granting the relief of specific performance mainly for the reason that the alleged subsequent sale by the defendant No.1 in favour of defendant No.2 and the defendant No.2 filing a suit against the defendant No.1 for the specific performance was proved to be a pre-arranged and pre-conceived agreement only to cheat the plaintiff and the suit was also observed to be a sham suit filed by the defendant No.2 against the defendant No.1. It is in that circumstances of the case, the Hon'ble Apex Court held that exercising equity in favour of the defendant No.2 was uncalled for. Whereas in the case on hand, it is not at all the contention of the plaintiff that the defendant No.2 purchased the property knowing fully well about the existence of agreement of sale between the plaintiff and the defendant No.1. Further the pleading as well as the evidence of defendant No.2 throughout is that she has been a bonafide purchaser for a valuable consideration who purchased the property without the notice of the previous alleged agreement of sale by her vendor in favour of the plaintiff. The evidence of defendant No.2 is also on the similar lines which could not be shaken in her cross- examination. Even DW-3 and DW-4 have also supported the case of the defendant No.2. Hence the judgment in Devalsab's case (supra) would not be of much helpful to the appellant/plaintiff. 35. Under Sec. 20 of the Specific Relief Act, 1963, the jurisdiction to decree the suit for specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. Sec. 20 (2) (b) of the same Act mentions that, where the performance of the agreement would involve some hardship on the defendant which did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, the Court may exercise its discretion in not decreeing the suit for specific performance. 36. In the instant case, the plaintiff in the plaint has contended that the very purpose of entering into an agreement was to continue his rearing of the cattle in the suit property which he was doing earlier and to eak his livelihood. To that extent, a recital can also be found in the agreement. However, the defendant No.1 in his written statement has specifically denied the same and categorically denied that the plaintiff has been in possession of the suit schedule property. 37. PW-1 in his examination-in-chief has stated that at the permission of the defendant No.1 to use the suit schedule property for the purpose of rearing the cattle and she-buffaloes, he constructed a temporary shed over the suit schedule property. In that regard, he has also got produced two photographs and marked them at Ex.P2 and Ex.P3 respectively. However, as observed above, PW-1 died before his cross- examination. As such, his statement on those lines cannot be accepted, but requires to be evaluated in the light of the other evidence available on record. PW-2 who was examined after the evidence of PW-1 and who claims to be a witness to the agreement of sale at Ex.P1 has no where in his evidence stated that the suit schedule property either was in possession of the plaintiff since prior to the date of the agreement or was delivered to the possession of the plaintiff on the date of the agreement. On the other hand, in his cross-examination, he has expressed his ignorance in that regard by stating that he does not know whether the suit schedule property was in possession of the defendant No.1 at the time of the agreement. On the other hand, in his cross-examination, he has expressed his ignorance in that regard by stating that he does not know whether the suit schedule property was in possession of the defendant No.1 at the time of the agreement. PW-3 who is none else than the son of the original plaintiff (PW-1), though in his examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by his father as PW-1 in his examination-in-chief, even with respect to the alleged possession of the suit schedule property by stating the same was with the plaintiff, but, in his cross- examination, stated that he does not know that presently the defendant No.2 is in possession of the suit schedule property. Had really the plaintiff or his family members were in possession of the suit schedule property, then definitely PW-2 and more particularly, PW-3 were required to state that it is the plaintiff and his family who are in the possession of the suit schedule property and that the said suit schedule property was very much required to eak out their livelihood, otherwise, they would be put to greater hardship. PW-3 being the legal representative of the deceased original plaintiff has nowhere stated that the possession of the suit schedule property with them is very much required and that denying them the relief of specific performance would put them to a greater hardship. 38. On the other hand, the defendant No.1 as DW-1 has not admitted that the photographs at Ex.P2 and Ex.P3 are of suit schedule property. DW-1 and DW-2 have specifically stated that the suit schedule property was with the possession of defendant No.1 as at the time of its sale in favour of defendant No.2 and the possession was delivered to the defendant No.2 under the Sale Deed by defendant No.1. Even DW-3 and DW-4 also have stated that prior to the date of sale in favour of the defendant No.2, the suit schedule property was in the possession of defendant No.1. The evidence of DW-1 to DW-4 on this point could not be shaken even in their cross- examination. Even DW-3 and DW-4 also have stated that prior to the date of sale in favour of the defendant No.2, the suit schedule property was in the possession of defendant No.1. The evidence of DW-1 to DW-4 on this point could not be shaken even in their cross- examination. As such, the evidence led from the defendants' side would go to show that the possession of the suit schedule property was with the defendant No.1 till he executed Sale Deed in favour of the defendant No.2 on 28/11/2001 and at the time of executing the said Sale Deed in favour of the defendant No.2, the possession of the suit schedule property was also delivered by the defendant No.1 to defendant No.2. Therefore, the contention of the learned counsel for the appellant that the family of the plaintiffs are in possession of the suit schedule property is not acceptable. 39. Some details were elicited in the cross-examination of DW-2 to show that since her husband is working in a place called Hassan, she does not require the suit schedule property which is at Chitradurga. However, the witness denied that she is residing at Hassan and that she has no connection with Chitradurga. On the other hand, she stated in her evidence that her place of birth is Chitradurga and very recently, she has gone to Hassan. Therefore, when the plaintiff could not able to show and establish that he would be put to greater hardship if the specific performance is denied to him, on the other hand, since the defendant No.2 has shown that it was for her necessity she has purchased the suit schedule property in her home town where she has been living since her childhood, except for a recent few years, when she has gone to Hassan to join her husband who is working there, it cannot be held that the plaintiff would be put to greater hardship if the relief of specific performance is not granted to him. On the other hand, the defendant No.2 who is a bona fide purchaser of the suit schedule property under a registered Sale Deed would be put to greater hardship, if the specific performance is granted in favour of the plaintiff. On the other hand, the defendant No.2 who is a bona fide purchaser of the suit schedule property under a registered Sale Deed would be put to greater hardship, if the specific performance is granted in favour of the plaintiff. Though the trial Court has not analysed these aspects in detail, however has observed that the defendant No.2 would be put to greater hardship, if the specific performance is ordered in favour of the plaintiff. In view of the analysis made above, I do not find any reason to interfere in the finding of the trial Court on that issue. As such, the impugned judgment and decree does not warrant any interference at the hands of this Court. 40. Accordingly, I proceed to pass the following order:- ORDER The Regular First Appeal is dismissed. In view of the disposal of the main appeal itself, IA.No.1/2021 stands dismissed as rendered infructuous. Registry to transmit a copy of this judgment along with trial Court records to the concerned trial Court without any delay.