IN THE COURT OF II ADDL. SENIOR CIVIL JUDGE & ADDL.

MACT, BELGAUM. AT: BELGAUM .

PRESENT: [Link] [Link],

[Link], LL.B. (Spl).
II Addl. Senior Civil Judge &
Addl.
MACT, Belgaum.

[Link].52 of 2006
Dated this the 28 th day of February 2014

1) [Link] Nagappa Patil,

Age: 37 years, Occupation: Agriculture,
R/o: Devagiri, Tq & Dist: Belgaum.
..
.Plaintiff . (By [Link] – Advocate).

And:

1) [Link] W/o Balappa Patil,

Age: 63 years, Occupation: Household work,
R/o: Payati Oni, Khanapur, Dist: Belgaum.
2) [Link] Basavanni Patil,
Age: 55 years, Occupation: Business,
R/o: Pyati One, Khanapur, Dist: Belgaum.
3) [Link] S/o Balappa Patil,
Age: 46 years, Occupation: Business,
R/o: Pyati One, Khanapur, Dist: Belgaum.
4) [Link] S/o Balappa Patil,
Age: 44 years, Occupation: Business,
R/o: Pyati One, Khanapur, Dist: Belgaum.
5) [Link] S/o Balappa Patil,
Age: 41 years, Occupation: Business,
R/o: Pyati One, Khanapur, Dist: Belgaum.
..
.Defendant .
(For D.1. 3 to 5 by [Link] -Advocate),
([Link].2 was placed ex-parte.
 2

Date of filing suit : 31-11-2006.

Nature of the suit : For specific performance of
contract.
Date of recording evidence : 06-10-2010.
Date of Judgment pronounced : 28-02-2014.
Total duration : Year Months Day
07 03 00.

JUDGMENT:

This is a suit filed by the plaintiff against the defendants for

the relief of specific performance of contract and in alternative

for the refund of earnest money with interest at the rate of 18%

p.a. along with damages at Rs.50,000/-.

2. The facts of the present case in brief are as follows:

That, initially the plaintiff has filed the aforesaid suit only

as against the defendants.1 & 2 seeking the aforesaid reliefs.

The suit property comprises five agricultural lands of different

measurement totally measuring 3-acres 10-gunthas situated at

Kadoli village in Belgaum taluka. The defendant.1 is the absolute

owner to the extent of half share only in the aforesaid

agricultural lands. The remaining half portion is belonging to

defendant.2. Therefore, though the plaintiff has not claimed any

relief against defendant.2, he has been made as party to the suit

 3

to avoid technical complications. Being the absolute owner of

the half share in the aforesaid lands, the defendant.1 and her

children approached the plaintiff for the sale of half share. In the

presence of the elders of the villages, the sale talks were held

and finally the parties have agreed for the sale of half share of

defendant.1 in the aforesaid lands at the rate of Rs.75000/- per

acre. Hence, the defendant.1 has executed an agreement for

sale in favour of the plaintiff on 11-03-1996. The plaintiff has

been in possession of the suit property even from the date of his

father as the tenant even before execution of the suit agreement

for sale. Hence the plaintiff’s possession is continued even

pursuant to the suit agreement for sale referred to above. As an

earnest money, the plaintiff has paid Rs.51000/- to defendant.1

on the date of execution of agreement for sale. As per the suit

agreement for sale, the defendant.1 has agreed to bear all the

expenses to the extent of half share to convert the lands into the

raitawa, since the lands were Patilaki Vatan Lands. Further, it

was agreed between the plaintiff and defendant.1 to bear all the

registration expenses equally. At the time of agreement for sale,

defendant.1 had agreed to get the lands converted into the

raitawa and execute the sale deed in favour of the plaintiff. After

execution of agreement for sale, the plaintiff has also paid

remaining sale consideration amount in the presence of the

 4

elders as insisted by defendant.1. Thus, the plaintiff has paid

Rs.95000/- to defendant.1 towards the full and final

consideration of sale amount. Defendant.1 has also recovered

excess amount from the plaintiff on the pretext that she is in

need of money to spend for getting the lands converted into the

raitawa. Inspite of his part performance of the contract,

defendant.1 has failed to perform her part performance of the

contract namely conversion of the lands into the raitawa and to

execute the sale deed. The plaintiff went on requesting the

defendant.1 to perform her part of contract, however the

defendant.1 is postponing the same on one or the other pretext

stating that as soon as the lands are converted into the raitawa,

she will intimate the plaintiff and execute the sale deed in his

favour. Therefore, believing the words of the defendant.1, the

plaintiff all along was waiting for necessary orders from the

competent authority.

4) Such being the state of affairs, in the month of January

2006, pursuant to the warrant issued by Court in a private

complaint filed before the criminal court, police had come to the

house of plaintiff and seized six bags of Paddy kept in his house.

The plaintiff has appeared before the criminal court and found

that the son of the defendant.1 had filed the said private

complaint on the false ground. Finally, the plaintiff got released

 5

the paddy in his favour and latter the said private complaint was

closed by way of filing of the B-Final report. Further, the

defendant.1 and her children without the notice of plaintiff have

obtained an ex-parte decree for permanent injunction against

him. After coming to know about this, the plaintiff approached

his advocate and got filed an appeal challenging the ex-parte

decree. In this way, the plaintiff came to know that the

defendant.1 is reluctant to perform her part of contract pursuant

to the suit agreement for sale. Hence, having no other go, the

plaintiff has filed the present suit seeking the aforesaid reliefs.

6) In response to the suit summons, defendant.1 appeared

and filed her written statement. However, defendant.2 did

appear before the court, hence he was placed ex-parte.

7) In her written statement, the defendant.1 has denied the

every allegation as false and frivolous. It is denied as false that

defendant.1 is the absolute owner of the lands referred to above

to the extent of half share only. According to defendant.1, the

suit lands are the ancestral properties devolved upon her and

her children. The defendant.1 is in joint possession of the suit

lands along with her children, hence the children of the

defendant.1 are also necessary parties to the suit. Hence, the

suit of the plaintiff is bad for non-joinder of the necessary parties.

 6

Further the defendant.1 has contended that she has been in

possession of the suit lands in the capacity of the absolute owner

even to the date of filing of the written statement, she is

cultivating the said lands personally with the help of hired

labours. Thus, she has denied that the plaintiff has been in

possession of the suit property from the date of his father earlier

as the tenant and latter by virtue of the suit agreement for sale.

It is denied that, defendant.1 and her children have agreed to

sell the suit property to the plaintiff at the rate of Rs.75000/- per

acre. It is also denied as false that pursuant to such sale talks,

defendant.1 has executed the suit agreement for sale in favour

of the plaintiff on the above date by accepting the advance sale

consideration amount of Rs.51,000/-. It is contended by the

defendant.1 that she was not competent to sell the said lands or

enter into any agreement for sale with anybody, since those

properties are the ancestral joint family properties. It is further

denied as false that, latter at her instance, the plaintiff has paid

entire sale consideration amount of Rs.95000/-. It is also denied

as false that the plaintiff has all along insisted the defendant.1 to

perform her part of the contract to get the lands into raitawa and

to execute the sale deed. It is contended that the alleged suit

agreement for sale is a created and fabricated documents. It is

also denied as false that behind the back of the plaintiff,

 7

defendant.1 and her children had obtained an ex-parte decree

for permanent injunction and the plaintiff has preferred an

appeal challenging the same. It is contended that the plaintiff

has not issued any legal notice asking defendant.1 to perform

her part of the contract, therefore the suit of the plaintiff is not

maintainable. The court fee paid by the plaintiff is not proper

and sufficient as per the law. The suit of the plaintiff is barred by

time. On these grounds, the defendant.1 has prayed for

dismissal of the suit with compensatory costs.

8) In view of the aforesaid pleadings of the written statement,

the plaintiff was constrained to get amend the plaint by way of

impeading the children of the defendant.1 as defendants.3 to 5.

After they have been made as parties, suit summons was issued

to defendants.3 to 5. Though, they have received the suit

summons, but they failed to appear before the court, hence

defendants.3 to 5 are placed ex-parte.

9) Based on the aforesaid pleadings of the parties, this Court

has framed the following issues for consideration:

1) Whether the plaintiff proves that the defendant-1

agreed to sell the suit property to plaintiff for a
consideration of Rs.95000/- and executed agreement
for sale on 11-03-1996?

2) Whether the plaintiff proves that he was paid entire

sale consideration to the defendant.1?
 8

3) Whether the plaintiff proves that he was and is in

possession of the suit property?

4) Whether the plaintiff proves that he was ever ready

and willing to perform his part of the contract?

5) Whether the defendant proves that the suit is bad for

non-joinder of necessary parties?

6) Whether the plaintiff is entitled for damages? If so,

to what amount?

7) Whether the plaintiff is entitled for the relief of

specific performance of contract?

8) To what relief the parties are entitled for?

9) What order or decree?

10) The evidence of the plaintiff’s side comprises oral evidence

of the PW-1 to 5 and documentary evidence as per Ex.P.1 to

Ex.P.17. The evidence of the defendants’ side comprises oral

evidence of the defendant.3, however no documents are

produced on behalf of the defendants.

11) After closure of evidence of both the sides, I heard the

arguments of learned advocates for the parties and perused the

materials placed on record. Learned advocate for the

defendant.1 has submitted written argument which is made as

part of the records.

12) My findings to the above issues are as under:

[Link].1 : In the negative.

[Link].2 : In the negative.
[Link].3 : In the negative.
 9

[Link].4 : In the negative.

[Link].5 : Does not survive for consideration.
[Link].6 : In the negative.
[Link].7 : In the negative.
[Link].8 : The plaintiff is not entitled for any relief.
[Link].9: As per final order for the following:

REASONS

13) [Link].5: In their written statement, the

defendants.1, 3 to 5 have contended that the suit property is not

the sole property of defendant.1, but it is a joint family property

of defendant.1 and her children – the defendants.3 to 5.

Therefore, in view of the nature of the suit property, the children

of defendant.1 are also necessary party was the contention

raised by the defendants in their written statement. Looking to

this contention of the defendants, latter the plaintiff got

amended the plaint and added defendants.3 to 5 who are the

sons of defendant.1. For this reason, during the course of

argument, learned advocate for the defendants has fairly

conceded that in view of subsequent adding of defendants.3 to

5, the [Link].5 becomes reluctant, therefore it would not

survive for consideration. Thus, for this reason, in my opinion,

[Link].5 does not survive for consideration. Hence, I answer

[Link].5 accordingly.

14) Issue No.1 to 3: Since these issues are inter-related to

each other, hence they have been taken together for discussion
 10

for the sake of convenience to avoid repetition of the facts and

evidence.

15) It is the contention of plaintiff that he has been in

possession of the suit property from the time of his father as a

tenant. He was cultivating the suit property as tenant on behalf

of the defendant.1 and he was paying yearly rentals to

defendant.1. Therefore, it is his submission that even as on the

date of the suit, he is in possession of the suit property.

16) That on perusal of the record of rights pertaining to the suit

property which are produced and marked at Ex.P.2 to 10, it

becomes very clear that both in [Link].9 as well as

[Link].12 (2), it is shown as defendants.1 & 2 are the joint

owners and joint possession of the suit property. The plaintiff

has not produced any other documents in proof of his claim that

he has been in possession of the suit property from the date of

his father and he was cultivating the suit land as the tenant,

thereby he was paying rentals every year to the defendant.1.

Even the suit agreement for sale which is marked at Ex.P.1

contains a recital to the effect that the suit properties are under

the ownership and in possession of defendant.1. Hence, in order

to rebut these entries made in the R of R as well as Ex.P.1,

except his oral evidence and the oral evidence of the PW-2 to 5,
 11

the plaintiff has not produced any cogent evidence on record

indicating his possession over the suit property since the time of

his father. Hence, in my opinion, this case of the plaintiff cannot

be accepted in the absence of proper documentary evidence.

Hence, I am unable to accept the case of the plaintiff that he has

been in possession of the suit property as the tenant from the

date of his father.

17) Be that as it may, now let me consider the case of the

plaintiff regarding the execution of suit agreement for sale by the

defendant.1. It is needless to mention that the suit is one for the

relief of specific performance of the contract. The entire suit

rests upon this aspect of the matter. The plaintiff has contended

that since he was cultivating the suit property as a tenant from

the date of his father. As the defendant.1 and her children

shifted to Khanapur, they came forward to sell the suit property

i.e. half share of defendant.1 in the lands in favour of the

plaintiff. Hence, after negotiations, the sale consideration was

fixed at Rs.75000/- per acre in the presence of the elders of the

village. The pleadings of the plaint are very silent as to who

were those persons in whose presence the sale talks were held.

It is further case of the plaintiff that for the said reason only he

did not file [Link].7 seeking occupancy rights in respect of the

suit property. It is further case of the plaintiff that, after settling

 12

the terms of the sale, defendant.1 had executed suit agreement

for sale in his favour on 11-03-1996. On the date of agreement

for sale itself, he has paid Rs.51000/- to the defendant.1 as the

advance sale consideration amount. According to plaintiff, since

the lands were Patalki Vatan Lands, the defendant.1 had agreed

to convert those lands into the raitawa and thereafter only the

parties have to share the registration expenses equally to get

the sale deed registered. According to plaintiff, subsequently the

defendant.1 has also received remaining sale consideration

amount totally amounting to Rs.95000/- from him. It is worth to

note that in whose presence the said amount was paid and was it

paid in installments is not at all pleaded by the plaintiff in the

plaint. With this case, the plaintiff has come up with the suit

agreement for sale.

8) During the course of arguments, learned advocate for the

defendants has heavily attacked the suit agreement for sale

which is marked at Ex.P.1 on many counts. At the outset, it is his

submission that since Ex.P.1 is drafted on insufficient stamp

papers, therefore it is not admissible in evidence unless the

plaintiff pays the deficit stamp duty and penalty on the suit

agreement for sale. Looking to the fact that, it is already marked

at Ex.P.1, it is argued by learned advocate for the defendants

that mere marking of the document as exhibit does not dispense

 13

with its proof. In support of his submission, learned advocate for

the defendants has placed reliance on the following decisions:

(1) AIR – 2009 – Supreme Court – 1489

(Avinash Kumar Chauhan –V/s- Vijay Krishna Mishra).

(2) AIR – 1971 – Supreme Court – 1875 (Sait

Tarajee Khimchand & others –V/s- Yelamarti Satyam &
others).

(3) ILR – 2003 – Karnataka – 3716 (Krishna –

V/s- Sanjeev) and

(4) ILR – 2007 – Karnataka – 2807 ([Link]

Prasanna –V/s- [Link]).

9) Per contra learned advocate for the plaintiff would contend

that the matter of insufficiency of stamp duty to be payable on

Ex.P.1 is already considered by this Court by passing a separate

order on I.A. This court has held that the plaintiff need not

required to pay deficit stamp duty on Ex.P.1 document and

thereafter only the document is marked as exhibit in evidence.

In this behalf, learned advocate for the plaintiff has referred to

the order of this Court on [Link].4 dated 15-07-2010.

10) It is seen that at the earliest stage, the defendants have

filed an application at [Link].4 U/Section-33 & 34 of the

Karnataka Stamp Act seeking to impound the suit agreement for

sale on the ground that it is not properly stamped as well as it is

 14

not registered. This Court after hearing arguments of both the

sides and on perusal of the materials placed on record was

pleased to dismiss the application by its order dated 15-07-2010

with a conclusion that as the document is not evidencing the

handing over of possession of the suit property in favour of the

plaintiff, therefore the plaintiff need not required to pay the

stamp duty and penalty on Ex.P.1 document. It appears to me

that this order has become final and binding on the parties, since

defendants have not ventured to challenge the same. Thus, the

suit agreement for sale is marked as Ex.P.1, even overcoming

the objections raised by the defendants regarding its

admissibility under the Stamp Act.

11) As per Section-35 of the Karnataka Stamp Act, where an

instrument has been admitted in evidence such admission shall

not, except as provided in Section-58, be called in question at

any stage of the same suit or proceedings on the ground that the

instrument has not been duly stamped. Thus, it is clear that

unless the observation made by this Court was revived by the

Appellate Court as required U/Section-58 of the Karnataka Stamp

Act, the defendants cannot raise the same plea once again at

this stage of proceedings. Hence, I am unable to accept the

contention of defendants that Ex.P.1 is not having any legal

sanctity for want of stamp duty and penalty.

 15

12) Now let me consider whether, the plaintiff has proved

execution of the Ex.P.1 by defendant.1 as it is a settled law that

mere marking of document as exhibit does not dispense with its

proof.

13) In this behalf, let me examine the evidence of the plaintiff

and his witnesses in the light of suit agreement for sale which is

marked at Ex.P.1. In his chief-examination as PW-1, the plaintiff

has reiterated the stand taken by him in the plaint. According to

him after the sale negotiations in the presence of the elders,

defendant.1 agreed to sell the suit property at the rate of

Rs.75000/- per acre. The sale talks were held on 11-03-1996 and

on the same date the defendant.1 has executed the suit

agreement for sale after receiving Rs.51000/- as advance sale

consideration amount. He has identified the suit agreement for

sale which is marked as Ex.P.1 in the present suit. He has

identified the thumb impression said to be of defendant.1 on

Ex.P.1. He has also deposed to the effect that seven persons

have attested the said document as witnesses and out of them

one person is no more.

14) In the cross-examination of PW-1, it is elicited that he does

not know who has written Ex.P.1. According to him, he may be a

bond writer. He admits that the scribe of Ex.P.1 has not put his
 16

signature on the document. He has also admitted that nobody

has identified the thumb impression mark said to be of

defendant.1 on Ex.P.1. According to him, Ex.P.1 was written on

11-03-1996 in Maruti Galli. It is stated by the PW-1 that Baburao

Bharmappa Patil who is examined as PW-2 had invited the bond

writer. It is deposed by PW-1 that bond writer himself prepared

the agreement for sale. Latter he deposed that, PW-2 Baburao

Bharmappa Patil had given instructions to prepare Ex.P.1.

Further, the cross-examination of this witness indicates that the

value of the suit property was decided by the elders namely

Baburao Bharmappa Patil, Vaiju Channabasappa Patil, Iranna

Kadoli, and Basavanni Rama Patil. At the time of fixing the

market value, the elders did not verify the valuation of the

property as per the office of the Sub-Registrar. He denies a

suggestion as false that he has not paid Rs.51000/- to the

defendant.1 as advance sale consideration amount. He admits

that except mentioning the same in Ex.P.1, he has not obtained a

separate receipt from the defendant.1 in this behalf. He further

admits that he did not pay the balance amount within a year as

agreed. In his cross-examination dated 08-06-2011, the PW-1

has improves his earlier version stating that one Maruti

Anandache has written Ex.P.1. He admits that Maruti Anandache

 17

is not a professional bond writer. This is all evidence given by

the plaintiff with regard to the execution of Ex.P.1 document.

15) As has been deposed by the PW-1 that, at the time of

execution of the Ex.P.1, the elderly persons like, Baburao

Bharmappa Patil (PW), Vaiju Channabasappa Patil (PW-3),

Basavanni Rama Patil (PW-4) and Joma Shivagouda Patil (PW-5)

were present. Now let me consider what these witnesses are

going to say about the execution of Ex.P.1 by the defendant.1.

16) At the outset, it is pertinent to note that the

affidavit/evidence in lieu of chief-examination of PW-2 to 5 are

verbatim same. All the witnesses have stated that defendant.1

and her sons have agreed to sell half share of defendant.1 in the

suit property for Rs.75000/- per acre. In this behalf, defendant.1

has executed suit agreement for sale on 11-03-1996 in favour of

the plaintiff by receiving Rs.51000/- towards advance sale

consideration amount. Very surprisingly, all these witnesses

have stated that, later the plaintiff has paid Rs.35000/- on one

occasion and Rs.9000/- on the other. Thus, he has paid around

Rs.95000/-. This aspect is not pleaded by the plaintiff nor spoken

by him in his evidence.

 18

17) In the cross-examination of PW-2, it is elicited that Ex.P.1 is

written by one Maruti Anandache who is not a bond writer. It is

admitted by the PW-2 that Maruti Anandache has not signed

Ex.P.1 as a scribe. He has also admitted that the thumb

impression said to be of defendant.1 is not identified by

anybody. Interestingly, according to PW-2, the instructions to

prepare Ex.P.1 were given by the vendor and vendee which is

totally against the evidence of the PW-1 given in the cross-

examination. As noted above, in his evidence, the PW-1 has

consistently stated that PW-2 has given instructions to the bond

writer to prepare Ex.P.1. This evidence of the PW-1 falsifies by

the PW-2 himself. Further, it is stated by PW-2 that Ex.P.1 is

prepared in his shop at Maruti Galli. This aspect is not spoken by

the plaintiff in his evidence. Further, it is elicited in the cross-

examination of the PW-2 that Rs.35000/- was paid to the

defendant.1 at his home. Similarly, the balance of Rs.9000/- was

also paid to the defendant.1 at his home. This aspect is not

deposed by the PW-1. According to PW-2, Maruti Anandache is

alive. Inspite of this, he denies a suggestion as false that Ex.P.1

is a concocted document.

18) In the cross-examination of PW-3, it is elicited that he

cannot read and writ Kannada. It is in the evidence of the PW-3

that, PW-2 has given instructions to prepare Ex.P.1 document as

 19

it was prepared in the shop of PW-2 situated at Maruti Galli. He

clearly admits in the cross-examination that he do not know as to

when plaintiff has paid balance sale consideration amount to the

defendant.1. Inspite of this, he denies a suggestion as false that

Ex.P.1 is a concocted document.

19) In the cross-examination of the PW-4, it is elicited that

Ex.P.1 is prepared by one Maruti Devageri and he do not know

his surname. According to PW-4, Maruti is an agriculturist and

not a bond writer. He admits that Ex.P.1 does not contain the

signature of the scribe. Further, according to this witness, Ex.P.1

was prepared as per the instructions given by Subhash, the son

of defendant.1 who is defendant.3 in the instant suit. He pleads

ignorance regarding the date of payment of balance sale

consideration amount as deposed in the chief-examination and

the venue where the amounts were paid to the defendant.1.

Inspite of this evidence, this witness has shown his audacity to

deny a suggestion that Ex.P.1 is a concocted document.

20) In the cross-examination of PW-5, it is elicited from the

mouth of this witness that Ex.P.1 is written by one Maruti

Anandache and it is written as per the instructions given by PW-

2. He admits that he do not know where the plaintiff has paid

 20

balance sale consideration of Rs.35000/- and Rs.9000/- to

defendant.1 as stated in the chief-examination.

21) Thus, on a conjoint reading of the evidence of PW-1 to 5, it

becomes very clear that they are not sure who has written Ex.P.1

agreement for sale. They are not sure the venue where it was

written and who had given instructions to prepare Ex.P.1

document. Further, the cross-examination of these witnesses

clearly indicates that they do not know where the balance

amount was paid to the defendant.1 and whether any receipt is

taken in this behalf. It is an admitted fact that Maruti Anandache

is not a professional bond writer. Some of the witnesses have

stated that he is an agriculturist. It is impossible to expect the

agriculturist to write the bond containing the terms & conditions

of the sale. The witnesses have admitted that the said Maruti

Anandache is alive, but he has not been examined before this

Court. These are all the materials irregularities in the evidence

of the plaintiff and his witnesses regarding execution of the suit

agreement for sale – Ex.P.1.

22) Let me have a little reference to the other documents relief

upon by the plaintiff in support of his case. Ex.P.11 is the

certified copy of B-Final Report in [Link].113/2006. It is

relied upon by the plaintiff to indicate his possession over the

 21

suit property as the tenant and latter pursuant to the agreement

for sale at Ex.P.1. Though there is a reference to the possession

of the plaintiff over the suit property, but it is not clear what is

the nature of his possession over the suit property. In my

opinion, the contents of Ex.P.11 are the very weak piece of

evidence regarding the possession of the plaintiff over the suit

property on the face of documentary evidence at Ex.P.2 to 10

and the recitals of in Ex.P.1, which indicate the possession of the

defendants.1 & 2 over the suit property. Ex.P.12 is the certified

copy of the order of the JMFC Court, Belgaum in

[Link].1207/2005. It is needless to mention that pursuant to the

complaint filed by the present defendant.3 in [Link].1207/2005,

the case was registered and search warrant was issued against

the plaintiff and few paddy bags were recovered from the

plaintiff which got released in his favour only on the premise that

they have been seized from the possession of the accused who is

present plaintiff. It has no bearance on the factum of execution

of Ex.P.1 by the defendant.1 in favour of the plaintiff. Ex.P.13 is

the certified copy of Paddy Bags Seizure Mahazer. As noted

above, this is also not having any bearance on the facts of the

present case. Likewise, the contents of Ex.P.14 which is a

certified copy of petition filed U/Section-457 of Cr.P.C. has also

no role to pay regarding the proof of Ex.P.1. Ex.P.15 is the

 22

certified copy of affidavit of defendant.3. In the said affidavit, he

has sworn to the effect that the plaintiff had committed theft of

paddy bags from the land and it goes against the case of the

plaintiff. Lastly, the plaintiff has relied upon Ex.P.17 said to be a

letter dated 09-02-1994 written by the present defendant.3. This

document is relief upon for two purposes. The first is to prove

that the plaintiff was cultivating the land as a tenant and was

paying yearly rentals to the defendant.1 and secondly for

comparison of signatures of defendant.3 said to be appearing on

Ex.P.1. In my opinion, it is not clear, whether this letter was sent

through the post or by hand through some body. The

defendant.3 has flatly denied the contents of Ex.P.17 and also his

signature appearing over the same and marked as Ex.P.17 (a). It

is pertinent to mention that the signatures of the defendant.3

said to be appearing on Ex.P.1 in the first & second page is

marked at Ex.P.1 (f) and in the last page his signature is marked

as Ex.P.1 (b). These signatures are in English whereas Ex.P.17

(a) is in Kannada. This creates a doubt in the mind of the Court,

whether Ex.P.17 (a) is the signature of defendant.3 or Ex.P.1 (b)

& (f) are the signatures of the defendant.3. No admitted

signatures of defendant.3 are produced in this case to compare

the disputed signatures with the admitted signatures. At this

stage, it is relevant to mention that an argument is canvassed by

 23

learned advocate for the plaintiff that U/Section-73 of the Indian

Evidence Act, this Court has ample power to compare the

disputed signatures with that of admitted signature of the party

to arrive at a conclusion. In this behalf, an application was filed

by the plaintiff seeking expert opinion which was rejected by this

Court and the same was upheld by the Hon’ble High Court of

Karnataka.

23) In the instant case, the executant of Ex.P.1 is the

defendant.1. She has not put her signature, but Ex.P.1 appears

LTM said to be of defendant.1. As discussed above, no body has

identified the said LTM including the plaintiff in the document.

No other document containing admitted thumb impression of

defendant.1 is produced. Hence, I do not find the provisions of

Section-73 of the Indian Evidence Act has no role to play in the

present case. The question of invoking the power under the said

provisions would only arise when there are documents

containing disputed signatures and admitted signatures. But in

the instant suit, except documents containing disputed

signatures, no other documents containing admitted signatures

are produced. This is also one of the serious lacunas in the case

of the plaintiff.
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24) In the form of rebuttal evidence, the defendants have lead

the oral evidence of defendant.3 only. No documentary

evidences are produced on their behalf. In his chief-examination

as DW-1, the defendant.3 has reiterated the stand taken by the

defendants in their written statement. He has denied the

execution of Ex.P.1 document and receipt of sale consideration

amount. He has been cross-examined at length by learned

advocate for the plaintiff, but unfortunately nothing worth

material is elicited from the mouth of this witness to indicate that

he is deposing falsely only to avoid the execution of the

registered sale deed. In page.15 of the cross-examination, he

has admitted that there is no enmity between himself and PW-2

to 5. That itself is not sufficient to believe the evidence of PW-2

to 5 as they contain many discrepancies. In page.17 of the

cross-examination, a suggestion is made to the effect that the

names of the defendants.1 & 2 have been jointly mentioned at

Ex.P.2 to 6 RTC Extracts. Thus, it is clear, the name of the

plaintiff nowhere find place in the revenue records. Thus, I am of

the opinion that the case of the plaintiff regarding execution of

the suit agreement for sale and receipt of full sale consideration

amount is very doubtful, as it is not supported by proper and

cogent evidence on record. Even regarding possession also, as

discussed above except the oral testimony of the PW-1 to 5 and

 25

contents of Ex.P.11, no other documents are placed on record

which inspires confidence on the court to hold that the plaintiff

has been in possession of the suit property.

Hence, in view of the discussion made above, I answer

[Link].1 to 3 in the negative.

25) [Link].4: This issue is with regard to the readiness

and willingness on the part of the plaintiff to perform his part of

the contract. While discussing [Link].1 to 3, I have held that

the plaintiff at the outset has failed to prove the very execution

of suit agreement for sale at Ex.P.1, therefore no question of his

readiness and willingness would arise. Hence, no detail

discussion is required with regard to this issue as it would not

have any significance in the absence of proof of execution of the

Ex.P.1 document. Therefore, I am of the opinion that the plaintiff

has failed to prove his readiness and willingness to prove his part

of contract. Accordingly, I answer [Link].4 in the negative.

26) [Link].6 to 8: Since these issues are inter-

related to each other, hence they have been taken together for

discussion for the sake of convenience to avoid repetition of the

facts and evidence.

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27) The plaintiff has claimed the relief of specific performance

of contract pursuant to the suit agreement for sale at Ex.P.1. He

has also claimed the relief of damages from the defendants.

While discussing [Link].1 to 3, I have clearly held that the

plaintiff at the threshold has failed to prove the very execution of

Ex.P.1 by the defendant.1 and also payment of sale

consideration amount. When the very execution itself is not

proved, then the question of entitlement of the plaintiff for the

relief of specific performance of contract and damages would not

arise at all. During the course of arguments, learned advocate

for the plaintiff has placed reliance on the following decisions to

contend that it is a fit case where the relief of specific

performance of contract can be granted in favour of the plaintiff.

They are; (1) 2002 (7) – Supreme – 591 (Ram Niwas Gupta –

V/s- Mumtaz Hasan & others) and (2) 1998 (4) Kar.L.J. 211

([Link] –V/s- Lingappa Reddy). There can be no dispute

about the preposition of law laid down in the aforesaid decisions.

However, in the instant case, it is held that the plaintiff has failed

to prove the very execution of the suit agreement for sale and

receipt of earnest money by the defendant. Hence, in the

presence of proof of suit document, in my opinion, the plaintiff

cannot claim any relief much less the relief of specific

 27

performance of contract and also the relief of damages. Hence, I

answer [Link].6 to 8 are in the negative.

27) Learned advocate for the defendants has also argued

regarding the point of limitation, but no issue is framed with

regard to the point of limitation in this case. Hence, I am unable

to give any findings on the limitation aspect. Hence, the

argument of learned advocate for the defendants with regard to

the aspect of limitation and counter submission made by learned

advocate for the plaintiff are not placed on record.

28) [Link].9: In view of the reasons and discussion

made above, I proceed to pass the following:

ORDER

Suit of the plaintiff is hereby dismissed. No

order to costs.

(Dictated to the Stenographer, transcribed by him and corrected by

me and then pronounced in the Open Court on this the 28th day of February
2014).

(Venkatesh R. Hulgi),
II Addl. Senior Civil Judge,
Belgaum.
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ANNEXURE

Witness examined for plaintiff:

PW.1 : [Link] Nagappa Patil.

PW.2 : [Link] Bharamappa Patil.
PW3 : [Link] Chanabasappa Patil.
PW.4 : [Link] Rama Patil,
PW.5 : [Link] Shivangouda Patil.

Witness examined for defendants:

DW.1 : [Link] Balappa Patil.

Documents exhibited for plaintiff:

Ex.P.1. Agreement of sale deed.
P.1 (a)
to P.1 (f). Signatures of witnesses.
Ex.P.2
to P.10. Record of Rights.
Ex.P.11. Charge sheet.
Ex.P.12. Order sheet in [Link].1207/2005.
Ex.P.13. Recovery Panchanama.
Ex.P.14. Application U/Sec.457 of Cr.P.C.
Ex.P.15. Affidavit.
Ex.P.16. Vakalat.
P.16 (a) Signature.
Ex.P.17. Original letter written by [Link].3.
P.17 (a) Signature.

Documents exhibited for defendants: Nil.

II [Link] Judge,

Belgaum.
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