1N T HE HIGH COURT OF KARNATAKA, BANGALORE.--___ DATED THIS THE 16TH DAY OF MARCH 2009" "V 1/ BEFORE THE HONBLE MR.JUSTICE:fi:BiLLAPPA Z RFA.No.441¢2Q06 BETWEEN: 2" Sri D.Munireddy S/0 Late Dyavappa, , Aged about 52 years, _ ' AVa1anagenaha11iV_i.11age~,. _ Mandikal Hobli, . Chikballapur .. APPELLANT (By Sri R.vee:-,ré::dré¢.shé:ma,~.Adv.} AND ; ' V A A.S.Krish11amurfhy « Sjo '_Har1_u5§na1*1thappa.. A __ _ A,ged"ab0'ut 491 y"'e.ars, """ " Aru_ruV.V1}.1age,". __ Mand1ka1 Ho_'t:];1,'j A Chikka.ba3.1apu'rjTa}.uk. ..RESPONDENT
_(13y Sri sag Prasad, Adv.)
RFA is filed 11/ 8.96 of CPC against the judgment
decree c1t.28.11.2005 passed in OS No.97/2001 on the
1/”
file of the Civil Judge (Sr. Dn.) and JMFC, Chickballapur,
decreeing the Suit for Specific Performance.
This RFA coming for “to dictate judgment” .
Court delivered the following-
JUEGMENTS
This appeal by the defendanfis the
judgment and decree, dated .~2z8-l l.r-2{lO:5,l”passed’ ‘by the Civil
Judge [Sr.[)n.} and JMFC, Ch4i’ck_¥:)allaVpur,:in ;oj.s,No.97/2001.
2. By the Trial
Court has plainti£T.Vlfo1X%elternative relief
and has directed pay a sum of Rs.l.00,000/–
with interest at " the appellant has filed this awe 3 pp _ 4." facts are;
‘.V’uI’he i.e., the respondent herein filed suit in
for specific performance of the sale
[2
agreement dated 28-9-1998. According to the plaintiff,—the
defendant had agreed to sell the suit schedule
him for a sale consideration of Rs.1,25,000/« 9
Rs.1,00,0()O/– was paid to the defendant’ 1′.l”i€§
agreement. Thereafter, the defendant wentfon pogst’tponii1g’-thevdf’
execution of the sale deed, inspite’V’Vo;..f.V”pv1-gpeatedtretquestsf and
demands. The plaintiff
The defendant repliedthe that he has
not executed the £he’h’asfborrowed a sum
of Rs. obtained on the blank
stamp papers rnisused. The plaintiff filed
suit for specifi”c..’_4. the sale– agreement dated
recovery of the amount,
alternatively.,__ ‘ ‘ a ‘ 9″‘ v
5. ..he~,9defendant i.e., the appellant herein resisted
._.:’suit_. centending that he had not executed the sale
,/pp…’,¢v_:ag1f€:e’1ne11t and he approached the plaintiff for a loan of
“‘=.__fRa;1’o;oo0/– and the plaintiff advanced him a sum of
L/.
Rs.10,000/– and as a security, his signatures were taken.__on
the blank stamp papers and they have been .
sale–agreement has been concocted. Therefore, x
has prayed for dismissal of the suit.
6. The Trial Court has frarnedL”th_e foilovvingf’
1. Whether the plaintiff proves: “that. the defendant has
executed agreerrieritioft p:’28–9–1998 in his
favour agreeing Ato..:._seliV._ property for
Rs. 1 ,25,0_0Oi§}g.t,i1.’
2. Whethei’*..V.:t*}i’é?; ;§1g:ntift’«– that he has paid
Rs.:.1,00;(3QQ _defendant on the date of
agreement – of”s;a1e”? .. __Z .. t V…
3. _’}Nhether “th_Ve”‘p1aintiff proves that he is willing to
V’pei?for1’n,his part of the contract?
defendant proves that the plaintiff has
obtainewd his signature on blank stamp paper and
1*ia,s*misused it and created bogus agreement of sale
, “(as contended?
L/..
5. Whether the plaintiff is entitled to the reliefs=___as
claimed in the suit’?
6. What decree or order?
The Trial Court has answered issue: Z
affirmative, issue No.3 and 4 in the 11egatiVe and is’s’ttel\}o..fjS in 9.
the affirmative and consequently, ..de-c_reed’th_e:sui;t of the
plaintiff, for the alternative relfef.. _ it if V
7. Aggrieved ‘V tlfat,=: L the “”ap’peVllla.nt–defendant has
filed this appeal: g
8. The for the appellant contended
that the sale Vlagrevement~.Vflda=ted 28.09.1998 is fabricated.
Further su.bm.itted”t1*tat the plaintiff has not signed the
saleagifeeinentl anfd’-..therefore, the sale agreement has no
7_f”–vs»a_nct1ty of law. He also submitted that the
“”l.–7agreement “i.s__fnot duly stamped. Further he submitted that
has not received any amount from the plaintiff
has not executed the sale agreement and his
L/.t
signatures were taken on the blank stamp papers ands-they
have been misused. Further he submitted that 3
of PWs.1 to 3 and DW.2 is totally inconsistent.”__I’i1viti§ig’ M
attention to the evidence of PWs.1 tofl3,
P.W.1 has stated that the sale tall-;s4_too1«<:'–p'1aee
and PW.2 has stated that the utootkd.
5.00 pm. to 6.00 pm. thatwthe sale
talks took place between and PWs.2
and 3 have on which the
sale talks ti)??? that while one
witness saysgthatt was typed in the Advocates
Association, the the agreement was typed
Qffiee Vthe’V:other witness says, the agreement
was premises and the evidence of these
3e,_,»yvitnesse;§-sis Vtotaliyvdtineonsistent. He also submitted that
PVuV…1V”h_irrise1f has stated that he was not present when
‘fthe agreement Was written i.e., typed, the other witnesses
‘ PWs.3 and 4 and DW.2 have stated that he was
I./
present. He, therefore, submitted that the evidence of PWs.1
to 3 and DW.2 cannot be believed and the Trial
erred in recording a finding that the execution the ‘
agreement has been proved. He
signatures of the defendant have: been”ta’ken
stamp papers and thereafter, theyfi,+,1-,r¢ been”V’misus:edV and
the sale agreement has cc-incocte.d..»_'”uFurtherJ he
submitted that the appellant,has’–pr’oVducedtire»-fierox copies of
the blank stamp whichhisvdsigilatures have been
taken and it__ciearj$;. thjesale agreement has
been concocted–_.* pghéejsubmitted that the manner in
– which the sale “agreementV,’h»-asgbeten typed and a close look at
the ‘_sale»<iagreementt-..Virnakies it very clear that the sale
agreement 11.as.bee'n concocted. Further he submitted that the
t.._Jappe11ant'*has received Rs. 1,00,000/ — nor executed the
_j"_'~..s"a'1eVuagreementhvand therefore, the impugned judgment and
decreeegcannot be sustained in law.
L/
9. As against this, the learned counsel for.g–“‘the
respondent submitted that the Trial Court, a
consideration of the material on record, has _ it
the suit of the plaintiff, for the alternatitze
the impugned judgement and ,de_creel”‘._clo*es not’: for
interference. He also submitted
any objection and therefore.,._..’:the:lappellanf’«.g,annvot”contend
that the agreement is not– Further he
submitted that there in the
evidence of consequence. He
also submitted of the original sale-deed i.e.,
Ex.P5 is clearly indicates that the
sale agreement. He also
sul33_1:1it.ted_that, appellant has failed to prove that his
7*,_signatu’res»’wereftaiéen on the blank stamp papers. Further
submitted” the appellant, neither in his notice nor in
p_’leadings”has stated, as to how, the original sale–cleed is
hfirigthe custody of the plaintiff. He also submitted that PW.l
2/
has deposed regarding the payment of the amount and also
the handing over of the document i.e., the original saleideed
and also regarding his readiness and Willingness to.«jper_forrn
his part of the contract. Further he submittedft:ha.tiTI5:” ‘
and 3 who are the witnesses to the sale”’agreerr1egnt”iaudit 99
who is the scribe have deposed regardliifggitflhie e)99vitnVess not seriously challenged, the execution of the sale
stands proved. Further piacing reliance on the
“_’j~d.ecisio.:1 of this Court reported in ILR 1999 KL} 2539, he
L//to
10
submitted that non–filing of the rejoinder does not aniount to
admission. He, therefore, submitted that
judgment and decree does not call for interferen_ce’.~–… ‘ in
10. In reply, the learned coiuriselo for gppeiklaiit it
submitted that the sale agreement isbaa
Placing reliance on the decision ofthe Privy Cottncil Rreplortedf
in AIR [31] 1994 Privy Council 1};”‘he’i.:s1il5rnittedthat, the way
in which the document is .tA.’rnd_icates that the
document is forge’d.”‘«g:.gVI%£e also; the evidence of
the witnesses” and”‘therefore, it cannot be
believed. that the plaintiff has not
signed the .,sale4’uagreeInent therefore, the plaintiff cannot
In support of the submission, he
VtVon:’.1-the decision of the Madras High Court
“reported. in.__v’PilARAl2OO1 Madras Page 447. He, therefore,
.4 isubhtnittedddthat the impugned judgment and decree cannot be
V” 2 s_n.stained in law.
Lg
1 1. I have carefully considered the submissionsfidfe the
learned counsei for the parties.
12. The point that arises for my cQn_s_id.eratien is”, ._
whether the impugned judgment decree’
interference?
13, It is relevant V to.’ dis”-fori specific
performance of the sale The
plaintiff claims, §.the ‘i_~ t f¢§;e¢uted the sale
agreement date«i’i4’V2f3;–£3′:f:”1’ agreeing to sell the
suit schedule sale consideration of
Rs.1,25,o00/’Q “cif.'”_.i§s..1,00.000/– was paid on the
date of sale agreement,.
‘ has examined PWs.1 to 3 and
” _Exs.P1’ tc”Pl0vhaiJ’e fbeen marked.
9
15, defendant has examined DWs 1 and 2.
L/
16. PW.1 has deposed that the sale agreement dated
28.09.1998 was executed in his favour and a sum of
Rs.1,00,000/– was paid to the defendant on the dateef the
sale agreement in presence of the Witnesses. InHhisV”e:ifo.ss.–
exalnination, PW}. has stated that the sale talks
his house on 28.8.1998 between 7.0c§”13§rr:;«to’1s«.8.oof.:p’.t1fi:t”sand.
the defendant had purchased theg.starnfp..1d’apers
and the defendant himself got the’ agreement. 8
Further he has stated thatihe pres.ent the sale
agreement was written i.e., otily? ‘thje’-Witnesses were
present andafter W-has typed, it was brought to
the Court preni’is__ets_
17,81′ .2, in evidence has stated that the sale
agreernent eéteented on 28–9– 1998 and the sale talks took
place. that and a sum of Rs.1,00,000/– was
Vflpaid to defendant on the date of the sale agreement and
cjhe has ‘signed the sale agreement. In his cross–examination,
8′ stated that he does not know the date of sale talks and
L/’
the sale talks took place in the house of PW.1 between
5.00 p.111. to 6.00 p.m. Further he has stated
not know the survey number or extent of theM1a:nd.’
also stated that the defendant wanted
his bore machine was not wel1.V.e’Eurther”he hasV–t.
the sale agreement was executed the (Jr. Dn)
Court and he does not knowxwhere th.e”agreement was typed.
18. PW.3 that the sale
agreement was’ and a sum of
Rs.1,00,00Q’/’I’ ddhethflfhas signed ‘the sale
agreemeflg he has stated that he
cannot say. date of the sale agreement.
sgtatedfldthat four persons were present when
the and it was in the morning between
a’:n1.V__to p.n1. He has stated that the defendant
sell the property as the money was required to
the house. He has also stated that sale agreement
txi;as””‘twritten (typed) in the Advocates Association at
V
Chikkaballapur and at that time, himself, plaintiff, defendant,
I-Ianumappa and Advocate were present and the agreement
was typed as per the instructions of the plaintiff
defendant.
19. DW.2 in his evidence eieted
agreement was done on 28–9–1998_:and he got. per” V
the instructions of the defendaritr.””‘ alsfostated that a
sum of Rs.1,00,000/– was paid the witnesses
and himself haV6;SigI1€d the sa1e.. agreernent. In his cross-
exaininationfffhe ‘agreement was typed in
the Taluk Cfficef time, the plaintiff and the
defendantwere’present. A’He”‘has stated that the amount was
the ‘re.1u1; offiee;”t’ ‘
from the evidence of PWs.1 to 3 and
7…._I)”\,’K,fV__?2.’, that evidence is totally inconsistent. PW.i has
that the sale talks took place in his house on
it ie, one month prior to the date of sale agreement.
L/
The other witnesses have stated that the sale talks toolgplace
one day prior to the sale agreement. PW. 1 has
was not present when the sale agreement was__typed.A;.”~
has stated that he does not know
was typed. But, PW.3 has stated that,_the saleedagfeei’;n.e11t:”g
was written (typed) in the Qgssjociatioh at
Chikkaballapur and at ‘plaintiff i.e.,
PW1, the defendant._i.e., PW2 and
Advocate were _’._a1i:d. typed as per the
instructions’ But, DW.2 has
stated thatgthe’ was typed at Taluk Office.
PW.3 has stated, was paid in the court
stated that the sale consideration
was Office. PW.2 has stated that the
I-‘V’va/ppdefendant’ sell the property as his bore machine
_was_not PWZ3 has stated that the defendant wanted
the property as he required money to construct the
The evidence of PWs.1 to 3 and DW.2 is totally
1/
inconsistent and cannot be believed. The Trial Court has
failed to consider this. The specific case of the defendant is
that he had approached the plaintiff for a loan of
and it was advanced to him and his signatures..we:I*’e_ taken on .. by
two blank stamp papers and they have been
sale agreement has been forged..=”T.he defe’ndant”iVj’e5.d:§W:§1″
his evidence stated that he a ivvfisuin of
Rs. 10,000 /- agreeing to pay§..d£}’1ey perrnonth and
he has paid the amount. that he has not
executed the saie. it–4Vis.a’concocted document.
It is relevant ,>’CE’efenciant has produced the xerox
copies of the hlarik on which his signatures
have beven! marked and they are part of the
recordV,”i”tVis,_evident_,_ the stamp papers have been purchased
28#9u»’ie99.8 signatures of the defendant have been
Htaken on ddtliedblank stamp papers. The contents of Ex.P.4 i.e,
«:._’_’V’t17:1_er~?sa;1eagreement have been typed to adjust the signatures
V” thevddefendaut on the blank stamp papers. The signatures
L/
‘taken _.
of the defendant have been on the biank .s:tamp
papers and thereafter. the contents have been
evidence of PWs.1 to 3 and DW.2 is totally
jheygkarfi’ in 77111 Caflfi. .’
cannot be believed. A The Trial Court was not just-izfi d in’
decreeing the suit of the p1aintiff..s’fQi’ the” ;iJIternati§}*+;Vtifeliefi V
21. Accordingly, the the
impugned judgment and dt3§l’e_e Court in
O.S.No.97/2001 is heifebyi,set¥éisidel».pTh’ev_.’stiitttfiof the plaintiff
is dismissed. The shall bear theirittjfivn costs.
Sd/*
IUDGE