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Judgment
V. Jagannathan, J.—Heard learned Counsel for the appellant finally in respect of the appeal preferred by the L.Rs of the 1st defendant calling in question the concurrent findings of the courts below.
Brief facts are that the 1st respondent plaintiff filed the suit for specific performance basing on the agreement of sale Ex.P1 dated 9.11.95 and it was the case of the plaintiff that the 1st defendant Smt. Siddaramakka agreed to sell the suit land for Rs. 55.000/- and received Rs. 40,000/- on the date of the agreement and agreed to receive the balance amount of Rs. 15,000/- at the time of execution of the sale deed. However, the 1st respondent did not live up to her promise and on the other hand, after fighting for the possession of her land right up to the Supreme Court where she finally succeeded, the 1st respondent plaintiff however sold the suit property to the 3rd defendant K.G. Srinivas by suppressing the aforesaid agreement and the said Srinivas sold some portion of it to the 4th defendant D.T. Ramanna. Therefore, the plaintiff made all of them as parties and sought for specific performance of agreement of sale.
The appellant herein viz., Siddaramakka contested the suit by taking up the stand that she did not execute the agreement of sale as per Ex.P1 and there was no necessity for her to receive Rs. 40,000/- from the plaintiff as she had taken legal aid to fight her case right up to the Apex Court.
Based on the said stand taken by the parties, the trial court framed as many as two issues and two additional issues. After evidence appreciation, learned trial judge decreed the suit of the respondent-plaintiff in part to the extent of refund of earnest money of Rs. 40,000/- with 6% interest.
The said judgment was questioned both by the plaintiff as well as by the 1st defendant preferring appeal before the lower appellate court. The learned Judge of the lower appellate court dismissed both the appeals by confirming the judgment of the trial court.
I have heard learned Counsel Sri. A.V. Gangadharappa for the appellants who was the 1st defendant before the trial court and his contention was that both the courts erred in relying on Ex.P1 and when the 1st defendant Siddaramakka had denied her thumb mark over the agreement of sale and as the contract itself was in the nature of wagering contract, the trial court could not have decreed the suit of the plaintiff in part and further submission made is that, when the possession was not with the appellant as she was fighting her case right up to the Supreme Court, question of appellant having agreed to sell the suit properly in favour of the 1st respondent plaintiff therefore did not arise. Both the courts have not properly appreciated the evidence on record and did not take into account the provisions of Sections 29 and 30 of the Indian Contract Act and as such interference is called for.
In the light of the aforesaid submissions made, I have examined the reasons given by both the courts below and I find that both the courts have concurred with regard to the agreement of sale having been entered into between the parties as per Ex.P1. Thumb mark of Siddaramakka was also marked as per Ex.P1 (a) and there was no objection raised by the defendant whatsoever. Apart from this, learned Judge of the trial court took note of the fact that the appellant Siddaramakka did not enter the witness box to dispute her thumb mark on Ex.P1. In the absence of Siddaramakka entering the witness box, the trial court accepted the evidence placed by the plaintiff as regards the execution of the agreement of sale as per Ex.P1. Therefore, the court declined to accept the defence taken by the 1st defendant and suit was decreed in part as mentioned earlier.
The lower appellate court went one step further in examining the thumb mark of Siddaramakka comparing LTM on Ex.P1 marked as per Ex.P1 (a) and that of legal notice as well as the written statement filed by Siddaramakka in the trial court and recorded a finding that the thumb impressions tally in ail the documents. The said finding being pure finding on facts, the lower appellate court has taken all the evidence for consideration and absence of Siddaramakka entering the witness box to dispute her thumb impression found on Ex.P1 as per Ex. P1 (a). Therefore, the lower appellate court had no difficulty in agreeing with the trial court on facts and also held that the trial court was justified in not granting the relief of specific performance, but confining the relief to refund of earnest amount. For all the above reasons, I do not see no substantial question of law being involved in this appeal.
The appeal is dismissed.