Mallikarjun Ishwarappa Utagi and Others vs Appasaheb Laxman Gadennavar

S.N. Satyanarayana, J.—Defendant Nos. 1 and 2 in O.S. No. 61/2001 on the file of Prl. Civil Judge (Sr. Dn.), Gokak, have come up in this appeal impugning the concurrent findings of both the Courts below in decreeing the suit of plaintiff in O.S. No. 61/2001 filed for the relief of specific performance.

Admittedly the suit property is land bearing Sy. No. 154/2/3 measuring to an extent of 2 acres 19 guntas situated at Awaradi village, Gokak Taluk. The case of the plaintiff is that the suit property was agreed to be purchased by him for valuable consideration of Rs. 1,50,000/- under an agreement of sale dated 27.02.1998. On the same day it is stated that he has paid a sum of Rs. 1,00,000/- as advance sale consideration and he agreed to get the sale deed registered in his favour within three years from the said date after payment of balance sale consideration of Rs. 50,000/-. It is the case of the plaintiff that he was ready and willing to pay the balance sale consideration to get the sale deed of suit land registered in his favour. However, defendant Nos. 1 and 2 did not come forward to receive the balance sale consideration and execute the sale deed. Hence, suit for specific performance was filed in which defendants filed written statement taking defence that the agreement of sale dated 27.02.1998 is not an agreement for sale of the suit property. It is only a document to provide security for the loan of Rs. 1,00,000/- which is received by them. They have also taken a contention in the written statement that on the very same day an agreement was entered into between the plaintiff and defendant Nos. 1 and 2 wherein plaintiff had agreed to receive an amount of Rs. 1,00,000/- and surrender the right to purchase the property under the agreement of sale dated 27.02.1998. Thereby indicating that the transaction is one of loan and not a transaction with serious intention to sell the property.

However, it is seen that the said agreement dated 27.02.1998 for reconveyance is not produced before the Court below and no evidence is also led by the defendants which has resulted in the suit of the plaintiff being decreed by judgment and decree dated 17.11.2007 and confirmed by the lower appellate Court in R.A. No. 117/2008 by its judgment dated 02.07.2014. As against the concurrent findings of both the Courts below this second appeal is filed. Along with the appeal for the first time the reconveyance agreement dated 27.02.1998 is produced as additional document.

Heard the counsel for the appellants as well as the counsel for the respondent-plaintiff in the Court below. It is seen that though the defendant Nos. 1 and 2 have taken defence in the original suit that there was an agreement between themselves and plaintiff for treating the alleged sale transaction as loan transaction, in which plaintiff agreed to receive advance sale consideration as loan with interest and to give up his right to seek specific performance under the agreement of sale. The same was not properly explained in the Court below by producing the said document. The appellant also tried to impress upon this Court that, inspite of 2/3rd sale consideration being paid possession was not handed over and in addition to that, for conclusion of the sale transaction three years time was stipulated, which itself would indicate that it was a loan transaction.

However, this Court notice that all these things are stated for the first time at the stage of second appeal instead of adducing evidence in support of their defence in the original suit. Though the grounds which are urged appears to be just and proper for reconsideration of the judgment, unless the reconveyance agreement dated 27.02.1998 is produced and proper evidence is recorded on that, the same cannot be accepted.

In that view of the matter, this Court feel in the interest of justice, judgment of both the Courts is required to be set aside and the matter required to be remanded for fresh consideration reserving liberty to the appellant herein to produce the document which is now sought to be produced in this Court as evidence in support of his defence in the court below and also to lead evidence thereon.

With such observation this appeal filed by defendant Nos. 1 and 2 in O.S. No. 61/2001 is allowed. Judgment and decree dated 17.11.2007 in O.S. No. 61/2001 and judgment dated 02.07.2014 in R.A. No. 117/2008 respectively on the file of PH. Civil Judge (Sr. Dn.), Gokak and Fast Track Court and Addl. District Court, Gokak, are set aside and matter is remanded to the Court of Prl. Civil Judge (Sr. Dn.) Court at Gokak.

It is further ordered that the remanded matter shall be called in the Prl. Civil Judge (Sr. Dn.), Gokak on 23.03.2015. Learned Civil Judge (Sr. Dn.), Gokak shall give opportunity to the defendants to produce the said document and also to lead evidence with reference to their defence in the original suit and also of this document and give sufficient opportunity to the plaintiff to cross-examine them and thereafter dispose of the matter within 12 months from the said date.

It is also made clear that parties are not entitled for further notice either from this Court or from the Court of Prl. Civil Judge (Sr. Dn.), Gokak. They shall appear before the said Court on 23.03.2015 without waiting for further notice.

While sending the lower Court records, registry is directed to send the original documents produced in this appeal along with I.A. No. 2/2015 to enable the parties to get the same marked in the remanded matter.