Kumar, Raja and Shivalingaiah vs Ratnaiah Setty and Rangappa

N.K. Patil, J.—This is defendants'' appeal directed against the impugned judgment and decree dated 11th March 2005, passed in O.S. No. 106/97, by the Additional Civil Judge (Sr. D.N.), Tumkur decreeing the suit filed by respondents/plaintiffs with costs. For the sake of convenience, parties herein are referred as per their rank before this Court. Brief facts of the case as alleged in the plaint are that, one Mariyappa S/o. Gurunanjaiah, Kollarajahnapalya was the owner of suit property. He had agreed to sell the same to the respondents for a consideration of Rs. 4,00,000/- and executed an agreement dated 8th August 1993 and received an advance of Rs. 3,00,000/- and agreed to execute the registered sale deed on receipt of the remaining consideration of Rs. 1,00,000/- within one year from the date of agreement. He died on 26th February 1994 and thereby he could not execute the sale deed.

Be that as it may, deceased Mariyappa had executed a registered will in favour of his brother''s sons, who are appellants herein and bequeathed all his assets to them imposing an obligation to receive the balance of consideration under the agreement and execute the registered sale deed in favour of the respondents. But, in spite of repeated demands, appellants have not executed the document. Therefore, a suit was filed by the respondents.

it is the case of respondents that they were always ready and willing to perform their part of the contract. But the appellants did not execute the sale deed. Therefore, the cause of action for the suit arose on 8th August 1993, 8th August 1994 and therefore, he was constrained to file a suit for specific performance, seeking a direction to execute the agreement and the said suit was numbered as O.S. No. 106/1997 on the file of the Trial Court.

Upon service of notice to the defendants/appellants herein, they represented through an Advocate and filed their written statement, denying that Mariyappa was the owner of the schedule property and also denied that he had agreed to sell the suit property in favour of the respondents for consideration of Rs. 4,00,000/- on 8th August 1993 and executed the sale agreement. They also denied that Mariyappa had agreed to execute a registered sale deed on receipt of the balance consideration of Rs. l,00,000/- within one year from the date of agreement. Further, it is stated in the written statement that it is false to allege that said Mariyappa died on 26-02-1994 and the said Mariyappa had executed a registered will in favour of his brother''s sons who are appellants and bequeathed all his assets to them by imposing an obligation on them to receive the balance consideration under agreement and to execute a registered sale deed in favour of respondents. Therefore, there is no cause of action for the suit and the suit is barred by limitation and the court fee paid is also insufficient.

It is further stated in paragraph 9 of the written statement that the deceased Mariyappa was the owner of the suit schedule property and he is the appellants'' uncle and he was unmarried. The appellants have looked after their uncle with love and affection and due to this, the said Mariyappa executed a registered will in favour of the appellants by bequeathing the rights with respect to the suit property along with other properties. The respondents who are utter strangers and land grabbers are trying to create concocted story with the help of concocted documents are trying to grab the valuable land. Further, it is stated that the first respondent is in Revenue Department and he has invested huge amount in the land dealing in Tumkur Taluk and he being the Government servant ought to have taken permission for purchase of any revenue lands in his name. Second respondent being the employee in HMT has colluded with the 1st respondent and has concocted the document, i.e. Agreement. The consideration amount shown in the concocted document is a meager amount comparatively to the prevailing market value in the area. The thumb impression of the said document is also concocted and fabricated one and the same was not put by Mariyappa. The subject matter in the suit was in dispute in earlier suit, i.e. O.S. No. 833/1993 on the file of the Trial Court. In the said suit, one Nanjundappa had filed the suit for partition and separate possession against these appellants. Till the said suit is disposed off, the appellants will not get any absolute right over the suit property. The respondents also impleaded themselves in the said suit and have challenged the suit filed by the said Nanjundappa and accordingly prayed for dismissal of the suit filed by the respondents.

On the basis of the pleadings available on records, the Trial Court has framed the following issue for its consideration:

1] Whether the plaintiffs prove that Mariyappa, S/o. Gurunanjaiah of Kollarajahnapalya was owner of the suit property?

2] Whether plaintiffs prove that said Mariyappa has executed an agreement of sale dated 8/8/93 to sell the suit property in favour of plaintiffs for consideration of Rs. 4,00,000/- and received Rs. 3,00,000/-?

3] Whether plaintiffs proves that said Mariyappa had executed a will in favour of defendants bequeathing his assets and execute registered sale deed in pursuance of agreement?

4] Is there no cause of action?

5] Is the suit barred by limitation?

6] Is the suit not properly valued?

7] Is the court fee paid inadequate?

8] To what Order or Decree?

To substantiate the case of the respondents, PWs 1 and 2 were examined and Exs. P1 to P3 were marked and the further evidence of the respondents'' side was closed. The appellants did not choose to adduce any evidence in spite of providing opportunities. Thereby evidence of appellants'' side closed. The Trial Court, after hearing the learned counsel on both sides and after appreciation of the oral and documentary evidence available on file, answered issue Nos. 1, 2 and 3 in the ''affirmative'' and issue Nos. 4, 5, 6 and 7 in the ''Negative'' and issue No. 8 as per the final order, dismissing the suit of the respondents, by assigning reasons at paragraphs 9 to 15 Being aggrieved by the impugned judgment and decree passed by the Trial Court, the appellants herein felt necessitated to present this appeal.

The principal submission canvassed by Shri. Vigneshwara S. Shastri, learned counsel appearing for appellants at the outset is that, due to lack of co-ordination among the appellants themselves and lack of information about the pending proceedings, they could not adduce evidence nor cross examine the respondents, during trial before the Trial Court. He submits that, if they had been given an opportunity to adduce their evidence and cross examine the respondents, they would have defended their case and seen that the prayer sought for by the respondents is rejected at the threshold. Due to misunderstanding and difference of opinion among the appellants, there was no proper communication between the appellants and their counsel who represented them before the Trial Court. Meantime, the Trial Court concluded the proceedings and decreed the suit. The same cannot be sustained and is liable to be set aside, having regard to the alleged valuable rights of the suit scheduled property. Therefore, he submits that the appellants may be permitted to adduce their oral and documentary evidence and also cross examine the respondents, by imposing reasonable cost, to meet the ends of justice and if the appellants fail to make out a case, then the respondents are entitled to seek the relief. Therefore, he submits that the impugned judgment and decree passed by Trial Court is liable to be set aside and the matter be remanded to the Trial Court from the stage of cross examination of the respondents.

As against this, learned counsel appearing for respondents inter alia, contended and substantiated the impugned judgment and decree passed by the Trial Court stating that the same is after due consideration of the oral and documentary evidence available on file and in spite of providing sufficient opportunity, to adduce their evidence and to cross examine the respondents, they have not chosen to enter the witness box and adduce the evidence and therefore, the Trial Court is justified in decreeing the suit and hence, interference in the same is uncalled for.

After careful consideration of the submission of the learned counsel appearing for both the parties and after perusal of the impugned judgment and decree passed by Trial Court, it is manifest on the face of the same that, the appellants have in fact, represented through a counsel and the learned counsel has filed the detailed written statement But unfortunately, due to misunderstanding and difference of opinion among the appellants and due to lack of co-operation to assist the counsel who represented them, jointly, the counsel representing the appellants has failed to cross examine the respondents and adduce their evidence. This is not in dispute. There is some substance in the submission of the learned counsel appearing for appellants. The suit is filed for specific performance, to execute the sale deed, on the basis of the agreement executed by late Mariyappa.

It is the case of the appellants that deceased Mariyappa had executed a registered will in favour of the respondents. Therefore, if another opportunity is given to the appellants to adduce their evidence and cross examine the respondents, it will in no way affect the rights of the respondents for the reason that it is not in dispute that the appellants have not adduced their evidence nor cross examined the respondents.

Therefore, without expressing any opinion on the merits or demerits of appellants'' case, to safeguard the interest of both the parties, it would suffice for this Court if appropriate direction is issued to the Trial Court to reconsider the matter and dispose of the same, since expressing opinion one way or the other may affect the defence to be taken by both the parties. In the light of the discussion made above, the appeal filed by the appellants is allowed in part.

The impugned judgment and decree dated 11th March 2005, passed in O.S. No. 106/97, by the Additional Civil Judge (Sr. Dn.), Tumkur, is hereby set aside;

The matter stands remitted to Trial Court for reconsideration and to pass appropriate order, in accordance with law, and decide the same, after affording reasonable opportunity of hearing to the parties, personally or through their counsel, as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment;

The Trial Court is directed to permit the appellants to adduce their oral and documentary evidence to substantiate their case, subject to payment of costs of Rs. 30,000/-(Rupees Thirty Thousand Only) to the respondents, through their counsel, on or before 15-07-2013 and file a memo along with acknowledgement before the Trial Court, for having paid the said sum;

Further, it is not in dispute that as on date, the deceased plaintiff No. 1/Respondent No. 1 is dead and his Legal Representatives are on record and therefore, we direct the Trial Court to permit the appellants to cross examine the authorized legal representative of deceaseds Respondent No. 1

The appellants and Respondents are directed to appear before the jurisdictional Trial Court at 11:00 A.M., on 15-07-2013, to enable them to take further dates of hearing, as requested;

Registry is directed to refund the court fee, in accordance with law to appellant No. 3;.

Registry is also directed to return the entire original records to the Trial Court, forthwith.