H A VISWANATHA RAO vs. SRI H N SUBBANNA

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 20TH DAY OF NOVEMBER, 2012

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

R.F.A.NO.1062/2003

BETWEEN:

H.A. Viswanatha Rao S/o. G.H.Aswathanarayana Rao Aged 56 years, Residing at No.C.73, Officers’ Quarters BEML Nagar K.G.F-563 115

…Appellant

(By Sri.S.S.Naganand, Sr. Counsel for M/S Mrinalini Murthy, Associates, Advocate)

AND:

Sri.H.N. Subbanna S/o Narasimhamurthy Aged 68 years No. 613, Vidya Sadana IV Cross, BSK I Stage II Block, Bangalore-50

….Respondent

(By Sri.K.Suresh, Advocate)

This Regular First Appeal is filed under Section 96 of the C.P.C praying to set aside the judgment and decree dated 22.03.2003 passed in O.S.No.5494/1992 on the file of the 11th Addl. City Civil Judge, Bangalore (CCH-8), dismissing the suit for specific performance.

This Appeal coming on for Hearing this day, the Court delivered the following:

2 JUDGMENT

Unsuccessful plaintiff has questioned the correctness and legality of the judgment and decree passed by XI Addl. City Civil Judge, Bangalore in O.S.No.5494/1992 dated 22.03.2003 whereunder suit filed by plaintiff for specific performance of agreement to sell dated 09.08.1989 has been dismissed.

3 in the plaint schedule for a total consideration of `2,60,000/- and in this regard he had executed an agreement of sale in favour of the plaintiff on 09.08.1989 which agreement was registered before the jurisdictional Sub-Registrar’s Office on 11.08.1989. It was contended that on the date of execution of agreement, advance amount of `30,000/- was paid by plaintiff to defendant and balance sale consideration of `2,30,000/- was to be paid as under: (i) `80,000/- to be paid to Vijaya Bank, South End Circle Branch, Bangalore towards discharge of loan borrowed by defendant; (ii) `.1,09,000/- to be paid to one R.A.Prakash, Manager, B.E.L., Bangalore also towards discharge of loan borrowed by defendant.

4 as contemplated under Section 53-A of Transfer of Property Act and since then plaintiff has been in peaceful possession and enjoyment of suit schedule property.

5 Professor; he had taken a hand loan from plaintiff by executing necessary documents in favour of plaintiff agreeing to repay the same, but defendant failed to pay said amount inspite of repeated requests and demands and sought for reserving rights of the plaintiff to file a separate suit for recovery of the said amounts.

6 contract and has paid full consideration and when defendant did not come forward to execute sale deed, plaintiff got issued a legal notice on 06.08.1991 calling upon defendant to complete sale transaction by executing sale deed in favour of plaintiff. Defendant has neither replied nor complied with demand made and in view of illegal attempts made by defendant to dispose of suit schedule property to third parties with an intention to defeat plaintiff’s claim, suit in question was filed seeking specific performance of agreement of sale. It was contended that on 08.08.1991 defendant came near the suit schedule property with Goonda elements and attempted to illegally interfere with plaintiff’s peaceful possession and enjoyment of suit schedule property and plaintiff resisted the same due to intervention of neighbours and wellwishers. It is also contended that defendant has executed an undertaking on 09.04.1990 agreeing to execute sale deed in favour of plaintiff and inspite of it, he did not come forward and on these grounds plaintiff sought for a judgment and decree of

7 specific performance of the Agreement to sell dated 09.08.1989.

8 over and above `1,09,000/- agreed to be paid as per terms of the agreement.

9 make Fixed deposits at State Bank of India, J.C.Road Branch, Bangalore which was acceded to by them and by virtue of such deposits made said Swamiji raised loan in the Bank. It was contended that Swamiji did not involve himself in any of the monetary transaction but was dealing through his close associate like plaintiff and on account of absolute trust reposed by defendant, it came to be misused by Swamiji to the misfortune of defendant.

10 with stamps and defendant unhesitatingly affixed his signatures on them on account of the confidence reposed in Swamiji; it was further contended that Swamiji along with plaintiff cleared loan of `80,000/- due to Vijaya Bank, South End Circle Branch, Bangalore; at that time, Swamiji and plaintiff took signatures of defendant on four blank papers i.e., on two blank proforma forms of pronotes with two proforma forms of consideration receipts with stamps affixed and on two blank white papers with stamps affixed and took up a plea that said blank documents executed is not binding on the defendant it was specifically denied that a sum of `1,09,000/- was paid to Mr.R.A.Prakash on behalf of defendant; it was also denied that amount due by defendant to Canara Bank was paid by either Swamiji or through plaintiff and the Bank instituted the suit against defendant which came to be decreed and thereafter defendant cleared decretal amount by installments.

11 11. The defendant has pleaded in his written statement circumstances under which agreement of sale came into existence, namely:- (i) On 11.08.89 said swamiji and plaintiff asked the defendant to come to office of Sub- Registrar without any hesitation and at that point of time plaintiff and swamiji handed over alleged agreement of sale dated 09.08.89 and called upon defendant to sign the documents and after being convinced that it was agreement to sell being executed in favour of plaintiff, he informed them that property did not belong to him and it belonged to one Smt.B.S.Jayamma and she being absolute owner and therefore he would not affix his signature. However, plaintiff and swamiji prevailed over the defendant to execute the document contending that same would serve as security for due payment of loan of `1,20,000/-(Rupees One Lakh Twenty Thousand Only) due by this defendant and in view of the same he executed the said agreement and at that point of time defendant came to know that plaintiff was not in a position to advance loan of `1,20,000/- or in likesum.

12 (ii) Suit schedule property was allotted by CITB in favour of defendant and he was inducted to possession of said property and a sale-cum-lease deed was executed in favour of defendant with a non alienation clause for a period from 14.05.1970 to 14.05.1980.

(iii) He constructed a dwelling house of 11 squares investing his self acquired funds and khatha was made over to his name and he was paying taxes to corporation.

(iv) Suit schedule property was sold on 25.02.1981 for a valuable consideration in favour of Smt.B.S.Jayamma under registered sale deed dated 25.02.1981 which is registered in the jurisdictional Sub-Registrar office and possession was delivered to Smt.B.S.Jayamma and ever since the date of sale she is in possession and enjoyment of the same. It was also contended that she has leased out a portion of suit schedule property.

(v) Defendant also learnt that said Smt.B.S.Jayamma for purchasing the suit schedule property has raised loan from Government of Mysore on security of suit schedule property and had executed a

13 mortgage deed and after repayment of loan borrowed mortgage came to be discharged.

14 pleadings of the parties, trial court framed following issues for its adjudication: 1. Whether the plaintiff proves that the defendant executed an agreement of registered sale on 09.08.1989? 2. Whether the plaintiff proves that the defendant executed acknowledgement on 09.04.1990 for having received entire sale consideration? 3. Whether the plaintiff proves that he is in possession of suit property? 4. Whether the defendant proves that the suit is time barred? 5. Whether the plaintiff ready and willing to get registered sale deed? 6. Whether the plaintiff entitled to a relief sought for? 7. Whether the plaintiff entitled to a permanent injunction as sought for? 8. What order or decree?

15 13. Plaintiff in order to substantiate his claim made in the plaint got himself examined as PW-1 and produced 23 documents and got them marked as Exhibits P-1 to P-23. Defendant got himself examined as DW-1 and produced 16 documents by getting them marked as Exhibits D-1 to D-16. On behalf of defendant, Smt.B.S.Jayamma was examined as DW-2. Trial Court on the basis of both oral and documentary evidence tendered by parties and after considering the arguments advanced by respective learned advocates appearing for the parties by its Judgment and Decree dated 22.03.2003 dismissed the suit without costs. It is this Judgment and Decree which has been assailed in the present appeal by the unsuccessful plaintiff.

FINDINGS RECORDED BY TRIAL COURT:

16 registered document. While analyzing the evidence available on record it has been held by Trial Court that plaintiff had not made any enquiry at the time of purchasing the property to ascertain as to what is the market value of sites adjoining the suit schedule property and plaintiff had also not made any enquiries with regard to value of suit schedule property in the office of Sub-Registrar; he had not obtained encumbrance certificate of suit schedule property; it also found that for the period from 1972 to 1992 plaintiff was residing at Hulagenahalli of Malur Taluk and after 1992 he was residing at KGF along with his family members and except the income from the salary he did not have any other income and as such he could not have entered into Agreement with defendant; it was also found by trial Court that Sri.K.Krishna Murthy (said to be Swamiji) was known to plaintiff from his childhood days since he was related to plaintiff; it also found that Exhibit P-9 namely the agreement to sell on the basis of which the suit in question for specific performance was filed was not signed by plaintiff but by

17 Sri.K.Krishna Murthy (Swamiji) as power of attorney holder and admittedly said power of attorney was not produced before the Trial Court; trial court has also found that plaintiff had not executed the agreement of sale dated 09.08.89 Exhibit P-9 and found that plaintiff was not present when Sri.Ramesh affixed his signature to the said document as also when Sri.K.Krishna Murthy signed the said document; trial Court on appreciation of evidence has held that plaintiff had not gone to the office of Sub-Registrar when Exhibit P-9 came to be executed and concluded he was not at all present on 09.08.99 when Exhibit P-9 came into existence; it has been held by Trial Court that defendant in support of the plea put forward in his written statement had examined Smt.B.S.Jayamma as DW-2 to whom the defendant is said to have sold the suit schedule property in the year 1981 itself and delivered possession to her and as such defendant had no right to sell suit schedule property either to plaintiff or any other person; it also disbelieved the evidence of plaintiff with regard to execution of Exhibit P-9 in view of

18 documents produced by plaintiff himself namely receipt dated 08.08.89 which came to be marked as Exhibit P- 10 whereunder the plaintiff claims to have paid `75,000/- to defendant and he in turn having executed a receipt for having received the said amount and held that in such an event the receipt of amount under Exhibit P-9 namely `30,000/- cannot be believed.

19 evidence tendered by defendant and found that defendant had executed an agreement on 19.05.1980 in favour of DW-2 Smt.B.S.Jayamma as per Exhibit D-2 and pursuant to said agreement a registered sale deed had been executed on 25.02.1981 and she had got katha of the property mutated to her name and she had been paying taxes in respect of suit schedule property and in view of said fact it held, defendant had lost right, title and interest in the suit schedule property and he could not have executed an agreement to sell in favour of plaintiff in the year 1989 i.e., 09.08.89 under Exhibit P-9 and in conclusion it held that documentary evidence produced by plaintiff was full of suspicion and no reliance can be placed on these documents i.e., Exhibits P-7 to P-11 and also held that there were certain loan transactions between plaintiff and one Sri.K.Krishna Murthy and in that connection Exhibits P-7 to P-11 have been got executed from defendant and later on those documents having been handed over to the plaintiff, suit in question had been filed on the basis of said documents; trial Court came to a conclusion that

20 oral and documentary evidence produced by plaintiff are not sufficient to prove the fact that defendant had agreed to sell the suit schedule property in favour of plaintiff and as such it held that there was no sale transaction between plaintiff and defendant and question of plaintiff’s readiness and willingness to get the sale deed executed in his favour does not arise; it was also found on appreciation of evidence that if the amount stated by the plaintiff is added it exceeds the amount mentioned in the agreement to sell and as such it accepted the version of defendant as trustworthy and also the version of DW-2 that suit schedule property had been purchased by her from the defendant DW-1 and answered issue No.1 in the negative i.e., plaintiff had failed to prove due execution of agreement of sale by defendant in his favour. Other issues being dependant on Issue No.1 namely issue Nos.2, 3, 5 and 6 were held in the negative i.e., against plaintiff and consequently dismissed the suit.

21 CONTENTIONS OF PLAINTIFF/APPELLANT:

22 has admitted the execution of acknowledgement by accepting the signatures found in these documents which came to be marked as Exhibits P-15(a) and P- 16(a). He would also contend that Exhibit P-16 would clearly establishes that defendant has executed the acknowledgements for having received the money from plaintiff and it would also demonstrate that entire consideration had been paid and finding of trial court on issue No.2 is contrary to evidence available on record.

16.1 He would also contend that Trial court misdirected itself in arriving at a negative conclusion regarding appellant’s willingness and readiness to obtain conveyance of suit schedule property in his favour which issue does not arise at all since plaintiff had paid the entire total consideration of `2,60,000/- to the defendant which was the agreed sale consideration under Exhibit P-9 and same having been acknowledged by defendant under Exhibits P-10 and P-11 it committed an error in not noticing that there was no

23 other obligation which was required to be performed on the part of plaintiff and all obligations required to be performed by the defendant for purchasing the suit schedule property under agreement of sale dated 09.08.89 having been performed by plaintiff nothing else remained and as such Judgment being silent on these undisputed facts is misconceived and erroneous and opposed to facts of the case and as such liable to be set aside.

16.2. He would further contend that one another ground which swayed in the mind of trial court to reject the relief sought for by plaintiff is on the ground that suit schedule property did not belong to plaintiff when he executed sale deed and it belonged to one Smt.B.S.Jayamma, by over looking the fact that though suit schedule property was sold by defendant in favour of said Smt.B.S.Jayamma on 19.05.1980 as per Exhibit D-2, khatha of suit schedule property had continued in the name of the defendant as on 18.05.1987 as per Exhibit P-2 and P-3 and the sale transaction relating to Exhibit D-2 not having been reflected in the

24 encumbrance certificate Exhibit P-3 furnished by respondent which relates to the period 01.04.1974 to 28.08.86 and on account of trial court failing to notice these facts and also the fact that defendant had created a equitable mortgage of suit schedule property in favour of Vijaya Bank by representing that suit schedule property as his absolute property.

16.3. He would contend that DW-2 Smt.B.S.Jayamma having signed the first agreement dated 09.06.89 Exhibit P-7 as a consenting witness and having appeared as a witness in the suit had acquiesced to transaction in question between plaintiff and defendant and said Smt.B.S.Jayamma, DW-2 is none other than wife of defendant and though it was denied by defendant the overwhelming evidence particularly possession certificate dated 14.01.1984 Exhibit P-23 issued by Jayanagara Co-operative Housing Society Limited would establish that DW-1 and DW-2 are husband and wife and as such he contends Trial Court ought to have held that alleged sale deed dated

25 25.02.1981 Exhibit D-3 executed by defendant in favour of Smt.B.S.Jayamma was executed only to defeat the right of plaintiff and said document was never intended to be acted upon either by her or DW-1.

16.4. He further contends that trial court committed a serious error in accepting the version of DW-2 that she has not signed the agreement Ex.P-9 as P-9(a) and defendant was not her husband. He contends that Exhibit D-2 agreement of sale dated 19.05.1980 executed by DW-1 in favour of DW-2 was created to defeat the rights of plaintiff and with oblique motive and contends trial Court erred in ignoring Exhibit P-23 confronted to DW-2 in her cross examination which is a possession certificate issued by Jayanagara Co-operative Housing Society in favour of DW-2, Smt.B.S.Jayamma which establishes the marital status of DW-2 and contents thereof would disclose that DW-2 was the wife of DW-1 and not considering this document in proper perspective has resulted in great injustice being caused to plaintiff and as such he seeks

26 for setting aside Judgment and Decree passed by Trial Court.

16.5. He would also submit that Exhibit P-23 when read with Exhibits P-1, P-7 to P-10 alongwith sale deed dated 25.02.1981 said to have been executed by defendant in favour of DW-2 it would make it manifestly clear that defendant’s plea that suit schedule property did not belong to him when he executed agreement of sale Exhibit P-9 in favour of plaintiff is a clear case of an attempt on the part of the defendant being as a ploy to defeat the right of the plaintiff.

16.6. He would also submit that trial court committed a serious error in coming to a conclusion that Exhibits P-1 to P-10 are suspicious and no reliance can be placed on them. Particularly when defendant himself has admitted execution of said document. On these grounds he seeks for allowing the appeal by decreeing the suit as prayer for before Trial court.

27 16.7. It is further contended that trial court erred in rejecting I.A.No.5 filed by plaintiff to implead Smt.B.S.Jayamma as a party/defendant to the suit and in view of the fact that Smt.B.S.Jayamma had purchased the suit schedule property who is none other than the wife of defendant, order of the trial court rejecting the application deserves to be set aside and prays for allowing the application.

(i) (1974) 3 SCC 425 – Laxminarayan and anr Vs Returning Officer and others

(ii) AIR 1951 SC 120 – Sarju Pershad Vs Raja Jwaleshwari Pratap Narain Singh and others

(iii) AIR1963 SC 1633 – Madmanchi Ramappa and anr Vs Muthaluru Bojjappa

to contend that Appellate court can interfere with a finding of fact when it is shown that trial court has overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion

28 of the Trial Court by contending DW-1 and DW-2 disputed their marital relationship and this had been established by the plaintiff by producing Exhibit P-23 which would clearly go to show that DW-2 is none other than the wife of DW-1 and as such trial court could not have eschewed the evidence of defendant and DW-2 alone to discard plaintiff’s evidence. He has also contended that to establish that sale deed dated 25.02.1981 executed by DW-1 in favour of DW-2 as per Exhibit D-3 was only a ploy to defeat the claim of plaintiff and they being husband and wife the judgment of Sarju Pershad referred to supra particularly paragraph 16 would be squarely applicable to the facts of the present case. He would also submit that by way of additional evidence an application has been filed which would establish the fact that DW-2 is the wife of DW-1 and to accept the authenticity of contents of said document he submits the Judgment of Madamanchi Ramappa and another referred to supra is squarely applicable particularly paragraph 9 onwards and as

29 such he prays for allowing the application for additional evidence also.

CONTENTIONS OF DEFENDANT/RESPONDENT:

30 all these documents consideration or advance is shown as `30,000/- and if `30,000/- had been paid on 09.06.89 there is no explanation as to why same `30,000/- is reflected in next document dated 30.06.1989 Exhibit P-8 and the inconsistency that has crept in again continued in Exhibit P-9 namely agreement of sale dated 09.08.1989 whereunder advance amount paid is shown as `30,000/-. As to whether said advance amount has been paid thrice or only once having not been explained either in pleadings or in the evidence. He contends the agreement to sell has been rightly held by trial court as not duly proved;

18.1. He contends that as on the date of execution of Exhibit P-7 original documents were in custody of Sri.R.A.Prakash who is signatory to Exhibit P-7 and as to how it came to be custody of defendant and thereafter to the custody of plaintiff is not explained; he would also submit that there are several corrections carried out in Exhibit P-8 and there are no signatures found in respect of these corrections and even otherwise if Exhibit P-9 is

31 considered as suit document in first page itself there is correction carried out which does not contain signature of parties and as such he submits that trial court was fully justified in coming to a conclusion it is surrounded with suspicion; he would submit that if really plaintiff had paid `75,000/- to the defendant and alleged to have been acknowledged by defendant under Exhibit P-10 nothing prevented the plaintiff to reflect the said consideration in Exhibit P-9 which came to be executed on 09.08.89 subsequent to Exhibit P-10; and he would also submit that if the entire amount of `1,47,585/- as reflected in Exhibit P-11 had been paid by plaintiff to Sri.R.A.Prakash on 09.08.89 itself then same should also have been reflected in Exhibit P-9 and same having not been reflected, evidence of plaintiff cannot be believed or accepted. On these grounds he submits that finding of trial court does not suffer from any infirmity.

18.2. He would also submit that sum total of amounts mentioned in Exhibits P-9, 10, 11 and 12 would be `3,05,046.75 and this amount does not reflect the actual consideration amount as reflected in Exhibit

32 P-9 and there was no reason for the plaintiff to have paid any excess amount to defendant than what is agreed to under Exhibit P-9 i.e., `2,60,000/- and as such he contends trial court was justified in coming to a conclusion that agreement of sale is surrounded with suspicion.

18.3. He would further draw the attention of the court to Exhibit P-15 which is dated 09.08.89 which reflects that plaintiff had received `2,50,000/- which is again dated 09.08.89 and if the entire amount had been paid on 09.08.89 as claimed by plaintiff nothing prevented the plaintiff to seek for specific performance of agreement to be enforced immediately or nothing prevented the plaintiff to reflect this amount in the agreement of sale dated 09.08.89 Exhibit P-9.

18.4. He would further contend that Exhibit P-16 reflects that as though entire sale consideration having been paid by plaintiff to defendant as on 15.11.89 and if it were to be so nothing prevented the plaintiff to seek specific performance of agreement of sale immediately

33 after 15.11.89 but he did not chose to do so and as such trial court did not accept the version of plaintiff regarding execution of Suit Agreement.

18.5. On the other hand he contends that defendant has been able to demonstrate before the Trial court that there were several financial transactions between Sri.K.Krishna Murthy (Swamiji) and defendant, and Plaintiff was only a name lender on behalf of said Swamiji and he submits that judgment and decree passed by trial court dismissing the suit does not suffer from any error either on facts or on law which calls for interference of this court and as such he seeks for dismissal of appeal. He would also draw the attention of court to demonstrate that plaintiff himself had admitted there were financial transactions between himself and defendant other than the dispute in question as admitted by plaintiff in paragraph 6 of the plaint and submits no where in the plaint it is stated by the plaintiff that defendant is not in possession of the suit property but on the contrary DW-2 has

34 categorically asserted that she is in possession of the property.

35 (i) Whether the Trial court was justified in dismissing the application filed by plaintiff to implead DW-2 as second defendant in the suit?

(ii) Whether application for additional evidence is required to be allowed and documents in question deserves to be received as additional evidence?

(iii) Whether Judgment and decree passed by Trial court dismissing the suit filed by plaintiff for specific performance of agreement to sell dated 09.08.1989 is required to be reversed, affirmed or modified? OR

Whether the judgment and decree passed by trial court suffers from any infirmities either on facts or in law and same is contrary to facts and records or contrary to evidence tendered by parties calling for interference?

(iv) What order?

36 RE: POINT NO.1:

37 defendant himself had approached Vijaya Bank, South End Circle, Bangalore for borrowing Money and by depositing title deeds loan was borrowed by defendant suppressing the alleged sale deed dated 25.02.1981 executed by him in favour of his wife and since he was not able to discharge the loan borrowed by him he opted to dispose of the property in favour of plaintiff and in view of stand taken by defendant that the property had been sold by DW-1 in favour of DW-2 she is a necessary and proper party and as such application was filed to implead her as DW-2. Said application was opposed by defendant as well as proposed defendant by filing detailed statement of objections. Said application came to be rejected by trial court by order dated 15.02.2003. Infact in the objections filed by proposed defendant to the said application it was contended that defendant had agreed to sell the suit schedule property under a agreement of sale dated 19.05.1980 and thereafter defendant had executed a sale deed on 25.02.1981 and on those lines she had already deposed to the said effect and contended that she is neither a necessary or proper

38 party to the suit. It has been categorically recorded by trial court in its order dated 05.02.2003 while rejecting said application that even as on the date of said agreement the property had already been sold in favour of DW-2 and defendant was not at all the owner of suit schedule property which enabled him to enter into agreement of sale and has rejected the said application. Same grounds as urged before the trial Court in the application for impleading has been urged before this Court in the appeal memorandum in support of the prayer for impleading DW-2.

39 “It is relevant to note, suit is for specific performance of sale agreement dated 09.08.89 said to have been executed by defendant. Prior to the filing of the suit, a legal notice dated 06.08.1991 has been sent to defendant. In the said notice, there is no reference to the sale agreement dated 09.06.1989. Thereafter, the suit has been filed on 07.09.1992. In the plaint, there is no reference to Ex.P-7 i.e., the sale agreement dated 09.06.1989. It is stated, the proposed respondent has signed Ex.P-7 as a consenting witness. There is no reference to Ex.P-7 either in the plaint or legal notice. The claim is based on Ex.P-9 and not Ex.P-7. The proposed respondent is not a party to Ex.P-9 and has signed Ex.P-9 as a witness. PW-1 in his evidence has stated that he has not agreed for the terms of Ex.P-7. If that is so, the proposed respondent is not a necessary party to the proceedings and cannot be impleaded.

Accordingly I.A.No.I/2003 is hereby rejected”.

40 the contention of learned counsel for plaintiff. Admittedly suit schedule property claims to have purchased by DW-2 i.e., proposed defendant which was prior to the agreement of sale said to have been executed by defendant in favour of plaintiff. She has appeared before Trial court as a witness on behalf of DW-1 and she has been examined as DW-2. She has also been cross examined and evidence available on record would disclose that there is absolute denial of her signature found in Exhibit P-9 and she is also not a purchaser pendente lite and as such she is neither necessary nor proper party required to be impleaded in this appeal so as to pass a decree which can be factually implemented. In that view of the matter, I am of the considered view trial court was fully justified in dismissing the application filed by plaintiff to implead proposed defendant No.2 and there is no infirmity in the order dated 05.02.2003 passed by trial Court. Hence Point No.1 is answered against plaintiff/appellant.

41 RE: POINT NO.2:

42 Parties seeking to produce additional evidence with due diligence could not secure the same and it was not within his/or knowledge and it could not be produced when the decree appealed against was passed and (iii) it is required by Appellate court to pronounce judgment or for any other substantial cause. Admittedly first contingency does not exists in the instant case. Plaintiff/appellant has been able to demonstrate that said document was obtained subsequent to passing of decree namely after Judgment and decree appealed herein came to be passed on 22.03.2003 and document in question was furnished to plaintiff on 27.09.2003 as seen from the document itself. Thus, it would emerge that it was obtained subsequent to passing of decree. As to whether this document is required to be taken on record by way of additional evidence to enable this court to pronounce Judgment on the contentions raised by parties is the question which requires to be decided. By production of this document plaintiff wants to demonstrate two aspects namely (i) DW-2 is wife of DW- 1 (ii) decree that may be ultimately passed would

43 necessarily have to be binding on the proposed defendant namely DW-2. This court while answering point No.1 herein supra has held that finding recorded by trial court in dismissing I.A.No.5 and not accepting the prayer of plaintiff to implead Smt.B.S.Jayamma DW- 2 as second defendant/second respondent in the instant case is just and proper and does not call for interference. In that view of the matter the claim of plaintiff to produce this document by way of additional evidence would have no bearing on the issues or contentions to be adjudicated in the present appeal. In so far as entry found in said document is concerned by itself would not prove the contents of it to be true unless proved in accordance with law. Production of document is one aspect and proving the contents of said document is another aspect. As already noticed herein above the proposed defendant having been held is not a proper and necessary party to the proceedings question of receiving this document by way of additional evidence does not arise. Accordingly Point No.2 is answered against plaintiff/appellant and application

44 I.A.No.1/2012 for additional evidence is hereby rejected. The judgment in the case of Madamanchi Ramappa and anr Vs Muthaluru Bojjappa referred to supra pressed into service would be of no assistance to plaintiff is as much as in the said case certified copy of sale deed which came to be marked as Exhibit A-8 had been relied upon to decree the suit and in 2nd Appeal it was held that it could not have been received in evidence since it was not proved at all. This finding was held to be erroneous by Hon’ble Apex Court on the ground that said document being a certified copy of a Public document it need not have been proved. In the instant case this Court is farced with a situation to consider the claim for production of additional evidence and necessity thereof. When it has been held that either way it would not tilt the scale in favour of plaintiff question of considering the contents of said document would not arise. Hence, said judgment would not be of assistance to plaintiff.

45 RE: POINT NO.3:

46 However, in totality these two documents have been considered by the trial court while answering issue Nos.1, 2, 3 and 5. On the one hand plaintiff has contended under Exhibit P-9 defendant agreed to sell suit schedule property in his favour for a total consideration of `2,60,000/- and received an advance of `30,000/- on the date of execution of Exhibit P-9. On the other hand defendant has specifically contended that as on date of execution of agreement of sale Exhibit P-9 he did not have any subsisting right, title or interest over the property and he had already sold it in favour of DW-2 way back in the year 1982 itself i.e., under sale dated 25.02.1981 Exhibit D-3. Plaintiff being owner of immovable property is expected to have constructive notice of any pre existing encumbrance on the immovable property. Constructive notice would be of two facets (i) factual matrix i.e., as is existing at the property (ii) when there being registered document already in existence. In other words property being already encumbered. It is in this background section 3 of Transfer of Property Act have to be looked into which

47 mandates that a buyer is said to have constructive notice in the event of there being registered instrument already existing in respect of a property and but for his willful abstention from making enquiries he would have found about existing encumbrance. Purchaser cannot be held to be a purchaser for value without notice and take umbrage under clause (b) of section 19 of Specific Relief Act. In the instant case plaintiff has not signed the agreement of sale Exhibit P-9 but on the other hand it is signed by one Sri.K.Krishna Murthy (Swamiji) who has affixed his signature who claims to be power of attorney holder of plaintiff. Plaintiff and Sri.K.Krishna Murthy (Swamiji) are childhood friends and they are related to each other as admitted by PW-1 in his cross- examination dated 22.02.1999. At this juncture it would be appropriate to extract the relevant admission of PW-1 to notice the fact that he did not make any enquiry before purchasing the property as is expected of a prudent buyer. His admission in cross examination dated 27.01.1999 reads as under:

48 “I did not obtain the E.C. of the suit schedule property for the period of Jan 1980 till the Dec’ of 1989. I have not obtained the search report from the Sub-Registrar’s Office. I did not enquire with the City Survey Authority & the Corporation office to know, in whose name the schedule property stands. I have not enquired with the corporation to know, who is paying the taxes from March 1981.

I did not enquire after 1994 to know in whose name the katha of the schedule property stands after 1994. I have not enquired the adjoining owners in and around the suit schedule property to know who is the owner of the said property”.

49 as Exhibit D-3. Infact defendant claims in his written statement to have categorically informed the plaintiff as well as Sri.K.Krishna Murthy (Swamiji) about existing encumbrance over the suit schedule property even as on the date of execution of Exhibit P-9 and has contended that at their behest and insistence of Sri.K.Krishna Murthy and plaintiff agreement of sale came to be executed by way of security to the amounts advanced by Sri.K.Krishna Murthy though he was not the owner of suit schedule property. This plea of the defendant is reiterated in his evidence and same has remained uncontroverted.

50 behalf of appellant wherein he contends that defendant himself had furnished encumbrance certificate and as there was no necessity for the plaintiff to make any enquiries. If this version is to be accepted then I do not find any good ground to reject the version of defendant also wherein he also contends that on the date of execution of agreement of sale Exhibit P-9 he had brought to the notice of plaintiff about the prior existing encumbrance over the suit schedule property. Even otherwise no prudent buyer would venture to purchase the property without making enquiry regarding title of the property and this is what is expected of a prudent buyer. In the instant case plaintiff himself admits that he did not make enquiry, he did not obtain E.C, he did not obtain search report from the office of Sub- Registrar. This clearly goes to show that plaintiff did not make any enquiry to ascertain as to whether there is prior encumbrance on the suit schedule property and but for his abstention to make such enquiry plaintiff would have known that DW-2 is the owner of suit schedule property and she having purchased it from

51 DW-1 under registered sale deed dated 25.02.1981 Exhibit D-3.

52 `60,000/- and not `30,000/-. They are shown as though they are two different agreements. As to why these two agreements came into existence as there is no pleading to that effect. Further, Ex.P-7 does not reflect that possession has been delivered under the said agreement. On the other hand, it states that possession will be handed over on the execution of sale agreement. Though name of purchaser is reflected as that of plaintiff, admittedly, it is not signed by plaintiff. It has been signed by one Mr.R.A.Prakash who also happens to be a witness and has acted in dual capacity and he has also affixed his signature both as a witness and as a purchaser. Said Mr.R.A.Prakash has not been examined. In paragraph 2 of the said agreement, there is a correction made to the word “Administrators” to which initials have been made. However, blanks which have been filled up in paragraph 3 of the very same document have not been countersigned with initials as has been done in previous paragraph. It is also to be noticed that there is signature in Ex.P.7 as Ex.P-7(b) which is shown to be of one Smt.B.S.Jayamma and

53 name typed below the signature, a correction has been carried out to initial ‘B’ which has been countersigned. Thus, counter signature found in this document is selective and not regular. A person who has identified Smt.B.Jayamma is one Sri S.A.Sridhar Murthy, Advocate. Admittedly, he has not entered witness box. He has not spoken to about contents of Ex.P-7.

54 30. Now looking at Ex.P-9 namely registered agreement to sell dated 09.08.1989, following would emerge: i. Said agreement contains signature of defendant alone. ii. It does not contain the signature of plaintiff. iii. At page 1, there is hand writing sentence which reads “represented by Sri K Krishnamurthy as General Power of Attorney Holder”. This is not counter signed by either defendant or the power of attorney holder. iv. Whereas, all other corrections made in the same document is counter signed namely at page No.3 and page No.4. v. Power of attorney holder who is signed as purchaser in the place of plaintiff has not entered witness box. vi. Second witness who has signed the said agreement is not examined.

55 His evidence was crucial and material evidence. For reasons best known he has not been examined. When plaintiff knows him from childhood days and is his relative as to why plaintiff did not choose to examine him remains unanswered and creates cloud over the alleged transaction. Infact, plaintiff in paragraph 6 of the plaint admits that there are financial transaction between himself and defendant. He has also admitted in his cross examination dated 23.06.1999 that he has not affixed his signature to Ex.P-7. It is also admitted by plaintiff that on the day Ex.P-7 was executed, `31,000/- was not paid to defendant. Plaintiff pleads his ignorance about who drafted and typed the document. A reading of the cross examination dated 23.06.1999 in its entirety and by re-appreciating the same, it would clearly go to show that he was not present on the day Ex.P-7 came into existence. P.W.1 also admits that pages 1 to 3 of Ex.P-9 is not signed by his power of attorney holder K Krishna Murthy. In fact, he admits that when execution of Ex.P-9 took place, he was not present. Further , in the cross examination

56 dated 14.10.1999 he also admits that prior to agreement – Ex.P-9, no amount towards sale consideration was paid to defendant either by him or by Krishna Murthy. In such as event what happened to the advance amount paid by plaintiff to defendant under Agreement dated 09.06.1989 -Ex.P.7 or agreement dated 30.06.1989 Ex.P-8 has remained unexplained. Even in the cross examination of even date, he admits that when Ex.P-9 was executed he was not present. He also admits that Ex.P-11 and Ex.P-15 are of the same date which means, he was not present even on the date of execution of documents Ex.P-11 and Ex.P-15. Plaintiff and Krishna Murthy are related to each other. In cross examination dated 22.02.1999, P.W.1 has admitted to the following effect: “I had no other income during 1989. K.Krishna Murthy is residing at V.Kota in Andhra Pradesh. I have visited him there several times. I do not know whether he is managing one Ashrama by name ‘Amaravanam”. I know him since my birth, i.e., from childhood. He is related to me and he is elder to me. So I respect him. I have trust, affection and revenue towards him. It is true to suggest that defendant and Aryaprakash also respect him.”

57 (Emphasis supplied by me)

58 (ii). The said letter or acknowledgement or receipt is dated 08.08.1989 which came to be marked as Ex.P-10. If on 08.08.1989 plaintiff has paid a sum of `75,000/- to defendant, in the subsequent documents, consideration would not have been shown as `.30,000/-. (iii). Further, on 09.08.1989 a sum of `1,47,585/- is said to have been paid by plaintiff on behalf of defendant to Mr.R.A.Prakash. If it were to be so said amount would also have found a place in Ex.P-9.

59 09.08.1999, has been registered on 11.08.1989 i.e., two days after the execution. If the amount of `75,000/- had been paid on 09.08.1989, it would have necessarily found a place in Ex.P-9 by carrying out necessary corrections in Ex.P-9 by inserting a sum of `75,000/- as advance instead of `30,000/-. That has not been done. Further, Ex.P-10 even according to the plaintiff, is in the hand writing of defendant and P.W.1 himself admits contents of the said document. When the contents of the said document is not disputed, it is too late in the day to contend that date mentioned therein is a typographical error. On that count also, contention of learned senior counsel appearing for the appellant cannot be accepted. 34. Further, even according to the plaintiff, a sum of `1,47,585/- is said to have been paid by plaintiff to Mr.R.A.Prakash on 09.08.1989 and to evidence this fact, P.W.1 had produced a receipt dated 09.08.1989 marked as Ex.P-11. The contention that it was paid subsequent to execution of agreement of sale i.e., in the evening is to be brushed aside for two reasons: (1)

60 beneficiary or recipient of money Mr.R.A.Prakash under Ex.P-11 has not been examined in the instant case and this document has not been executed in favour P.W.1 when document Ex.P-9 was presented for registration it was 4.20 p.m and as such the version of P.W.1 amount under Ex.P-10 & Ex.P-11 was paid in the evening does not hold water in as much as there is no plea in this regard and it is only an attempt to improvise his version stage by stage. In fact, defendant has specifically stated that amount was not paid to Mr.R.A.Prakash to discharge his alleged liability. Thus, heavy burden cast on the plaintiff to prove that a sum of `1,47,585/- was paid has not been established. In fact, in the agreement dated 09.08.1989 Ex.P-9 at clause 6, it is stated that balance sale consideration would be paid as under: Advance paid to the Seller

- Rs.30,000/- Amount to be paid to Vijaya Bank, South End Circle Branch, Bangalore towards loan Standing in the name of the Seller - Rs.80,000/-

Amount to be paid to Canara Bank, Chickpet Branch, Bangalore towards loan standing in the name of Seller - Rs.30,000/-

Amount due to Mr.R.A.Prakash, Manager B.E.L., Bangalore

- Rs.1,09,000/- -------------------- Rs.2,49,000/- Balance of sale consideration to be paid to the seller by the buyer at the time of execution of sale deed in the presence of sub-Registrar

- Rs. 11,000/- --------------------- Total sale consideration

- Rs.2,60,000/- --------------------

62 36. Yet another factor which requires to be noticed at this juncture is that P.W.1 – plaintiff claims to have paid consideration agreed to under the sale agreement Ex.P-9 by relying upon several documents in particular, Exhibits.P-9, P-10, P-11 and P-12 and claims that on the dates mentioned therein, amounts have been paid to defendant. The particulars thereof are as under: Exhibits Particulars Amount Ex.P-9 Agreement of sale dated 09.08.1989 Rs.30,000/- Ex.P-10 Letter/receipt dated 08.08.1999 Rs.45,000/- Ex.P-11 Receipt executed by Mr.R.A.Prakash on 09.08.1999 in favour of plaintiff in settlement of defendant’s dues Rs.1,47,585/- Ex.P-12 Amount said to have been paid to Vijaya Bank by defendant Rs.82,461.75

Total Rs.3,05,046.75

63 When the sale consideration reflected in the sale deed is Rs.2,61,000/-, by no stretch of imagination, it can be accepted that plaintiff would have paid in excess of what has been agreed to under the agreement of sale Ex.P-9. This overwhelming evidence available on record coupled with admission of the plaintiff in Para 6 of the plaint that there were certain other financial transactions between the parties namely plaintiff and defendant, conclusion arrived at by the trial Court to dismiss the suit of plaintiff for specific performance cannot be construed as one suffering from any infirmities either on facts or on law which calls for interference.

64 suit schedule property in favour of D.W.2 way back on 25.02.1981 itself as per Ex.D-3 i.e., eight years prior to the alleged agreement of sale – Ex.P-9, on which plaintiff is seeking for specific performance. In fact, defendant has categorically contended in his written statement that at the time of execution of agreement itself, he had brought to the notice of plaintiff as well as Krishna Murthy (Swamiji) about property having already been sold to D.W.2 and defendant not possessing any subsisting right, title and interest to convey the property and inspite of it they insisted plaintiff to execute the same by way of security to the financial assistance extended by Krishna Murthy (Swamiji) in favour of defendant. Hence, assuming that D.Ws.1 and 2 are husband and wife, as contended by learned counsel for defendant, it would not have any bearing whatsoever insofar as claim of the plaintiff is concerned and it is to be noted that if the property had been conveyed during pendency of the suit, this issue would have arisen so as to bind the subsequent purchaser also. Hence,

65 contention raised by learned counsel for appellant- plaintiff in this regard stands rejected. 38. It is also to be further noticed that D.W.2 – Smt.B.S.Jayamma having purchased the property from D.W.1 on 25.02.1981 under Ex.D-3 has subsequently mortgaged the same as per Ex.D-4 for taking financial assistance from Government of Karnataka, and after having repaid the said amount, mortgage had been duly discharged as per Ex.D-5 and from the year 1994 onwards, khata of suit schedule property has continued in the name of D.W.2 and she has been paying taxes to Municipal Corporation and has been in possession and enjoyment of the same. As contended by P.W.1 if he was put in possession of suit schedule property way back in the year 1989, he would have definitely made all efforts to protect his possession and the very fact that he has not raised any plea with regard to possession in the pleadings or in the evidence itself suggests that P.W.1 was never in possession of suit schedule property.

66 39. The following judgment relied upon by learned Senior Counsel appearing for appellant is examined in the background of aforesaid discussion: LAXMINARAYAN & ANOTHER vs RETURNING OFFICER - 1974(3) SCC 425 “55. Section 116A of the Act provides for an appeal to this Court from an order of the High Court dismissing an election petition. The appeal lies both on issues of law and of facts. Section 116C applies the Code of Civil Procedure as nearly as possible. Hence the present appeal is in the nature of a first appeal from decree under that Code. The power of the appellate Court is very wide. It can reappraise the evidence and reverse the trial court's findings of fact. But like any other power it is not unconfined: it is subject to certain inherent limitations in relations to a conclusion of fact. While the trial court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanours the appellate Court is confined to their evidence on record. Accordingly "the view of the trial judge as to where credibility lies is entitled to great weight." (See Sara Veeraswami v. Talluri. However, the appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. (See Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh. This limitation on the power of the appellate court in a first appeal from decree, on principle will

67 also apply to an election appeal under section 116A. It has been so extended by this Court. Whether we should believe the witnesses or not involves how far we should enter into facts. "No doubt, an appeal before this Court under S. 116A is an appeal. . . on facts and law; still the practice of the courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Judge who hears the witnesses and watches their demeanour and judges of their credibility in the first instance. In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a reassessment of the evidence. He must show wherein the assessment has gone wrong”. (See Narbada Prasad v. Chhaganlal). It should also be borne in mind that in the instant case the High Court has held Dhote not guilty of the alleged corrupt which is a quasi-criminal charge. This Court should be slow to disagree with the finding of the High Court based on appreciation of evidence. (D. P. Mishra v. Kamal Narain Sharma). The appellants should put their case within the scope of this limited review; otherwise they should not succeed.”

68 been decreed. There cannot be any dispute with regard to the proposition of law laid down in the above judgment by the Hon’ble Apex Court. In the instant case, evidence on record depicts that case put forward by plaintiff is to be rejected or requires to be examined with utmost circumspection for the reasons already discussed hereinabove. Exhibits.P-7, P-8 and P-9 are fraught with suspicion more particularly, when P.W.1 himself admits that no consideration has flown on the date of execution of Ex.P-7 and Ex.P-8. If his version is to be accepted, other evidence tendered by P.W.1 also requires to be viewed with suspicion. Per contra, evidence tendered by defendant is that at the instance of Krishna Murthy who claimed to be a Swamiji and who had lent money to defendant this document or agreement Ex.P.9 came into existence, in all probabilities of the case deserves acceptance since said Krishna Murthy who is a close relative of P.W.1 did not enter witness box to deny this fact. Hence, principles laid down in the said judgment would not support the plaintiff in the instant case.

69 41. On re-appreciation of evidence as discussed herein above, this Court is of the view that judgment and decree passed by the trial Court is just and proper and does not call for interference whatsoever. Hence, point No.3 is to be answered against the plaintiff- appellant.

Re: Point No.4: Hence, for the reasons aforesaid, following order is passed: ORDER i. Appeal is hereby dismissed. ii. Judgment and decree passed in O.S.No.5494/1992 by the 11th Addl. City Civil Judge, Bangalore dated 22.03.2003 is hereby affirmed. iii. Parties to bear their respect costs in view of the fact that there has been several financial transactions between the parties. iv. Registry to draw the decree accordingly.

70 Ms.Mrunalini, a young Advocate of this Bar has assisted this Court with her erudite arguments and this Court places on record with appreciation her able assistance rendered to the Court to arrive at above conclusion.

Sd/-

JUDGE

*sp/SBN