Sri. E. Hanumappa vs T.S.Chandrasekhara Reddy

Manjunath, J.—The unsuccessful plaintiff has preferred this appeal challenging the legality and correctness of the judgment and decree passed in O S No. 157/2000 dated 15.6.2005 passed by the Second Additional Civil Judge (Sr.Dn.) Bangalore Rural District. The appellant filed the suit for specific performance to enforce the agreement dated 31.12.1997 on the ground that the defendant being the owner of the plaint schedule property agreed to sell the same for a total consideration of Rs. 4.17,960/ and that the entire sale consideration was received on 31.12.1997 and he had agreed to execute the sale deed within a period of two months from 31.12.1997. It is also the ease of the plaintiff that he was put in possession of the property and though demanded to execute the sale deed by issuing legal notice dated 1.6.1998. the defendant failed to execute the sale deed. Hence the suit was filed for enforcing the contract. In the suit as an alternative relief, he sought for refund of the entire sale consideration paid by him with interest.

The defendant contested the case on the ground that he has not executed any agreement in favour of the plaintiff. It is also his case that he has not received any sale consideration from the plaintiff. According to him, the plaintiff was a friend of the defendant. The plaintiff by taking land of the defendant on lease was running brick and tile factory and since the plaintiff sustained loss in the aforesaid business, the lease deed was cancelled. Accordingly, advance was also paid to him by adjusting towards the supply of bricks. In the circumstances, he requests the court to dismiss the suit.

Based on the above pleadings, the following issues were framed by the court below:

(1) Whether the plaintiff proves that defendant has agreed to sell the suit land for Rs. 4,17,960/- on 31.12.1997 and defendant received the entire sale consideration from the plaintiff and executed the agreement of sale?

(2) Whether the plaintiff proves that on the date of agreement defendant put him in possession of the suit land since then he is in possession of the suit land?

(3) Whether the plaintiff proves that he has always ready and willing to perform his part of contract but the defendant is refuse to execute the sale deed as per the agreement?

(4) Whether the defendant proves that suit of plaintiff is barred by limitation?

(5) Whether the plaintiff proves that he is entitled for the relief of specific performance of contract as per the agreement dated 31.12.1997?

(6) Whether the plaintiff proves that alternative he is entitled to recover the earnest money with interest from the defendant as prayed in the plaint?

(7) What order or decree?

To prove their respective contention, the plaintiff was examined as PW-1. one Thippanna was examined as PW-2 and plaintiff relied upon Ex.P1 to P12 The defendant was examined as DW-1 and he relied upon Ex.D1 to D9. The trial court after considering the entire evidence held all issues in negative and ultimately suit of the plaintiff came to be dismissed. Challenging the legality and correctness of the judgment and decree of the court below, the present appeal is filed.

We have beard the counsel for the parties.

The learned counsel for the appellant contends that since the defendant has not disputed the payment of advance sale consideration of Rs. 1,76,000/- as security deposit at the time of taking the land of the defendant to run the brick factory and as the plaintiff has proved the execution of agreement by the defendant as per Ex.P1 by examining PW-2, as the defendant has already sold major portion of the property to two different persons, at least the court below should have decreed the suit for refund of the consideration paid by the plaintiff. According to him, the finding of the court below is erroneous and not based on proper appreciation of evidence. In the circumstances, he requests the court to re appreciate the evidence and direct the defendant to refund the entire sale consideration paid by the appellant, along with interest accrued thereon.

Per contra the learned counsel for the respondent submits that the plaintiff has failed to prove the execution of agreement and signatures found on Ex.P1 is not the signature of the defendant. According to him, the defendant has not executed any agreement of sale, as per Ex.P1. If really, the plaintiff had paid the entire sale consideration as per Ex.P1, there was no difficulty for the plaintiff to take the sale deed on the date of the agreement of sale. According to him, no reason is assigned for non execution of the sale deed when the plaintiff has paid the entire sale consideration as per Ex.P1.

He further contends that the plaintiff has issued a notice six months after Ex.P1 and suit is filed nearly two and half years after Ex.P1. According to him, if really, the sale consideration had been paid by the plaintiff, he would not have kept quiet without filing a suit for specific performance forthwith. He further contends that there is improvement from Ex.P1 to issuance of legal notice and further improvement is there in the plaint averments. He contends that Rs. 1,76,000/- which was paid as security deposit for taking the land on lease was adjusted and the lease deed has been canceled as could be seen from Ex.D1 and Ex.D2. In the circumstances, he requests the court to dismiss the appeal.

Having heard the counsel for the parties, the only point to be considered by this court in this appeal is:

Whether the plaintiff proves the agreement of sale dated 31.12.1997 and payment of Rs. 4,17,960/-?

It is not in dispute that the plaintiff by taking the land of the defendant on lease was running a brick factory As could be seen from Ex.D1, which document came to be cancelled. As per Ex.D2 the plaintiff had paid a sum of Rs. 1,76,000/- in order to supply bricks by the defendant to the plaintiff. Therefore, it is clear that Rs. 1,76,000/- was paid by the plaintiff as advance to supply bricks by the defendant. But the suit agreement has been cancelled. When the suit agreement has been cancelled, nothing is mentioned on the back of the document about the amount of Rs. 1,76,000/- to be treated as an advance sale consideration paid by the plaintiff. In the circumstances, if Ex.D2 has been cancelled the only inference that could be drawn is that the defendant has supplied bricks to the plaintiff and that the said agreement has been got cancelled.

When Ex.D2 has been cancelled, when original document has been returned by the plaintiff to the defendant, the inference that could be drawn by the court is that the said agreement has been satisfied. In the circumstances, it is difficult for any court to accept the contention of the plaintiff" that he has paid Rs. 1,76,000/- as an advance to supply the bricks and that there was a default in not supplying the brick by the defendant to the plaintiff and said amount has been treated as advance sale consideration towards the present transaction. It is unfortunate that either in Ex.P1 or in Ex.P2 legal notice or in the plaint, there is no specific averment in regard to the transactions that had transpired between the plaintiff and defendant as per Ex.D2. In the circumstances, the trial court is justified in holding that the plaintiff has failed to prove the payment of Rs. 1,76,000/- as advance sale consideration.

The next question would be, whether on 31.12.1997 the plaintiff had paid the remaining sale consideration to the defendant. No evidence is let in by the plaintiff to show that he had money with him and the same was paid in cash to the defendant. When the defendant is denying the very execution of the agreement as per Ex.P1, the burden is heavy on the plaintiff. The plaintiff has failed to discharge the same. In addition that, the conduct of the plaintiff in not obtaining the sale deed immediately when the entire sale consideration is said to have been made by him or at least to issue the legal notice within a month as per recitals of Ex.P1 and in filing the suit for specific performance after more than two years, would entertain a doubt to any court about the conduct of the plaintiff.

We have already compared the admitted and disputed signatures of the defendant. The signatures found in Ex.D1 & D2 which are not in dispute are not similar to the signatures found on Ex.P1. When we compare the admitted and disputed signatures of the defendant, we are of the view that signatures found on Ex.P1 cannot be that of the plaintiff. In the circumstances, we are of the view that the trial court is justified in dismissing the suit of the plaintiff.

Accordingly, we answer the point formulated by us in favour of the respondent and against the appellant. In the result, the appeal is dismissed. The parties to bear their own costs.