(BY SRI. MURALI N., ADV.) & Anr. v. AYYASAMY reported in AIR 2001 SC 2802, wherein it was held that & Anr.

(BY SRI. MURALI N., ADV.) AND:

#1. B R CHANDRASHKERAIAH S/O. RAMAIAH SHETTY, AGED ABOUT 56 YEARS, R/AT SRINIVASA NIALYA, NEAR DOOM LIGHT CIRCLE, KOLAR CITY, KOLAR-563101.

#2. B R DWARAKANATH S/O. RAMAIAH SHETTY, AGED ABOUT 54 YEARS, R/AT SRINIVASA NILAYA, NEAR DOOM LIGHT CIRCLE, KOLAR CITY, KOLAR-563101. …RESPONDENTS (BY SRI. DR M SUNIL SASTRY ADV. FOR R1 & R2) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 20.11.2014 PASSED IN R.A.NO.166/2012 ON THE FILE OF THE C/C III ADDL. SENIOR CIVIL JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 16.7.2012 PASSED IN OS.NO.648/2007 ON THE FILE OF THE I ADDL. CIVIL JUDGE & JMFC., KOLAR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 20.11.2014 passed in R.A.No.166/2012 by the learned III Additional Senior Civil Judge, Kolar, and the judgment and decree dated 16.07.2012 passed in O.S.No.648/2007 by the learned I Additional Civil Judge and JMFC, Kolar.

#2. For convenience, the parties are referred to, as per their ranking before the trial Court. The appellants were the legal representatives of the deceased plaintiff, and the respondents were the defendants.

#3. Brief facts, leading rise to filing of this appeal are as follows: The plaintiffs filed a suit for specific performance of contract against the defendants contending that the defendants are the absolute owners of the suit schedule - 4 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR property and agreed to sell the suit schedule property for consideration of Rs.1,12,000/- and the defendants received Rs.90,000/- from the plaintiffs and executed sale agreement dated 15.03.2007 and it was agreed that the same to be concluded within six months from the date of execution of the sale agreement. After lapse of six months, the plaintiffs requested the defendants to receive the balance sale consideration amount and execute a registered sale deed. It is contended that the plaintiffs were always ready and willing to perform their part of contract, however the defendants committed a breach of contract. Hence, a cause of action arose for the plaintiffs to file a suit for specific performance of a contract. Accordingly, prays to decree the suit.

3.1. Defendant No.1 filed a written statement denying the averments made in the plaint and also denied regarding the alleged sale transaction between the plaintiffs and the defendants. It is also denied that the defendants have received Rs.90,000/- towards earnest - 5 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR money. It is contended that the suit schedule property is the joint family property and they are holding the katha on behalf of the joint family. It is contended that the value of the suit schedule property is more than Rs.4,00,000/-. Hence, the plaintiffs created the sale agreement and filed the present suit. Accordingly, prays to dismiss the suit.

3.2. The Trial Court, based on the above said pleadings, framed the relevant issues.

3.3. The plaintiffs, to substantiate their case, original plaintiff was examined himself as PW1, examined three witnesses as PW.2 to PW.4, and marked 02 documents as Exs.P1 and P2. In rebuttal, defendant No.1 was examined as DW.1, defendant No.2 was examined as DW.2, examined two witnesses as DW.3 and DW.4, and marked 13 documents as Exs.D1 to D13. The trial Court, after recording the evidence, hearing both sides, and after assessing the verbal and documentary evidence, dismissed the suit with costs vide judgment dated 16.07.2012. - 6 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR

3.4. The legal representatives of the deceased plaintiff, aggrieved by the dismissal of the suit in O.S.No.648/2007, preferred an appeal in R.A.No.166/2012 on the file of the learned III Additional Senior Civil Judge, Kolar.

3.5. The First Appellate Court, after re-appreciating the entire evidence on record, dismissed the appeal with costs and confirmed the judgment and decree passed by the trial Court vide judgment 20.11.2014.

3.6. The legal representatives of the deceased plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal.

#4. Heard the arguments of the learned counsel for the legal representatives of the deceased plaintiff.

#5. Learned counsel for the legal representatives of the deceased plaintiff submits that defendants agreed to - 7 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR sell the suit schedule property for consideration of Rs.1,12,000/- and accordingly, they received Rs.90,000/- towards advance sale consideration amount and it was agreed that the sale to be concluded within six months from the date of execution of the sale agreement. He submits that the plaintiff was/is ready and willing to perform his part of contract, however the defendants have committed a breach of contract. He submits that both the Courts below have not properly appreciated the entire evidence on record and committed an error in passing the impugned judgments. He submits that the impugned judgments passed by the Courts below are arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.

#6. Perused the records, and considered submissions of learned counsel representatives of the deceased plaintiff. - 8 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR

#7. The plaintiff to substantiate his case, examined himself as PW.1 and he reiterated the plaint averments in the examination-in-chief and produced the documents marked as Ex.P1, which is the sale agreement dated

15.03.2007 and Ex.P2 is the RTC extract. The plaintiff also examined the attesting witnesses to Ex.P1. The defendants have denied the execution of Ex.P1 and also denied their signature on Ex.P1. The plaintiff has not taken any steps to refer Ex.P1 to the handwriting expert, and there is a specific denial of signature on Ex.P1. The trial Court compared the admitted signature of the defendants and disputed signature on Ex.D1 under Section 73 of the Indian Evidence Act, 1963 and found that the signature found on Ex.P1 does not bear the signature of the defendants, and further the plaintiff to prove that he was/is ready and willing to perform his part of contract, has not issued any legal notice calling upon the defendants to receive the balance sale consideration amount and execute the registered sale deed. There is no compliance - 9 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR of Section 16(c) of the Specific Relief Act, 1963. Both the Courts below have concurrently recorded a finding of facts that the plaintiff has failed to prove the execution of Ex.P1 and readiness and willingness and rightly passed the impugned judgments. Hence, I do not find any error in the impugned judgments, and any substantial question of law that arises for consideration in this appeal.

#8. The plaintiffs filed I.A.No.1/2015 for production of additional evidence under Order 41 Rule 27 of CPC stating that both the Courts below have come to the conclusion that Ex.P1 is created, and the have value of the property at the time of the execution of the agreement is more than value mentioned in the document, and both the Courts below have relied on Ex.D13 and have come to the conclusion that the value of the schedule property is more than the that of value mentioned in Ex.P1.

#9. The legal heirs of the plaintiffs produced the Sub-Registrar valuation which discloses that the market - 10 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR value of the suit schedule property. The defendants have taken the specific defence in the written statement that the value of the property is more than mentioned in Ex.P1. The plaintiffs have not shown any sufficient cause for non- production of this proposed document before the First Appellate Court. The legal representations of the plaintiff have produced this document only to fill up the lacuna. In view of the proposition laid down by the Hon’ble Apex Court in the case of N. KAMALAM (DEAD) AND ANR. VS. AYYASAMY & ANR. reported in AIR 2001 SC 2802, wherein it was held that the application for the production of additional evidence cannot be allowed to fill up the lacuna and the said application therein was filed after lapse of more than four years from the date of passing an order by the First Appellate Court. The representatives of the deceased plaintiff has failed to fulfill the requirements of Order 41 Rule 27 of the CPC, I do not find any grounds to entertain I.A.No.1/2015. - 11 - NC: 2026:KHC:4595 RSA No. 371 of 2015 HC-KAR

#10. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the Courts below are hereby confirmed. iii. I.A.No.1/2015 is rejected. iv. No order as to the costs. v. Pending applications, if any, stand disposed off accordingly. Sd/- (ASHOK S.KINAGI) JUDGE SSB