- 1 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 1625 OF 2022 (SP) BETWEEN: SMT. ASWATHAMMA, SINCE DEAD BY HER LRS., 1. SRI N. ASWATHANARAYANAPPA AGED ABOUT 71 YEARS S/O LATE CHIKKANARASAPPA 2. SRI. NARASIMHAPPA AGED ABOUT 70 YEARS S/O LATE CHIKKANARASAPPA 3. SRI. KRISHNAPPA AGED ABOUT 67 YEARS S/O LATE CHIKKANARASAPPA 4. SRI NAGARAJAPPA @ NAGAPPA AGED ABOUT 63 YEARS S/O LATE CHIKKANARASAPPA 5. SMT. THIMMAKKA AGED ABOUT 61 YEARS D/O LATE CHIKKANARASAPPA 6. SMT. GANGAMMA AGED ABOUT 59 YEARS D/O LATE CHIKKANARASAPPA Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 7. SRI. RAMAKRISHNA @ KRISHNAMURTHY D AGED ABOUT 55 YEARS S/O LATE CHIKKANARASAPPA 8. SMT. NARAYANAMMA AGED ABOUT 54 YEARS D/O LATE CHIKKANARASAPPA NOS 1 TO 8 ARE RESIDING AT D PALYA VILLAGE AND HOBLI, GOWRIBIDANUR TALUK, CHICKBALLAPURA DISTRICT - 562 101. …APPELLANTS (BY SRI. SUDHAKAR K, ADVOCATE) AND: 1. SMT. JAYALAKSHMAMMA AGED ABOUT 67 YEARS W/O LATE MUDDAPPA 2. SMT. CHAYADEVI AGED ABOUT 36 YEARS D/O LATE MUDDAPPA 3. SRI. NAGARAJ AGED ABOUT 65 YEARS S/O LATE MUDDAPPA ALL ARE RESIDING AT D PALYA VILLAGE AND HOBLI, GOWRIBIDANUR TALUK, CHICKBALLAPURA DISTRICT - 562 101. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 07.03.2022 - 3 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 PASSED IN RA.No.03/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GOWRIBIDANUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.12.2019 PASSED IN OS No.172/2009 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, GOWRIBIDANUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. The matter is listed for admission. 2. Heard the learned counsel for the appellant. 3. The second appeal is filed against the concurrent findings. The case of the plaintiff who is the appellant before this Court contended that one Muddappa who is the husband of the first defendant and father of the second and third defendants executed an agreement of sale dated 25.09.1989 agreeing to sell the suit schedule property for a valuable consideration of Rs.4,000/- and also contended - 4 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 that the entire sale consideration was paid on the very same day on the date of agreement of sale i.e., on 25.09.1989 and also he was put in possession of the property and he was enjoying the suit schedule property and also contends that the plaintiff was always ready and willing to perform his part of contract. It is contended that in view of execution of agreement, defendants were the legal heirs of Late Muddappa are bound to execute the sale deed. It is also contended that now the defendants are interfering with his possession and defendants appeared and filed written statement and denied all the agreement as well as the suit filed by the plaintiff is barred by limitation and approached the Court almost after ten years of the alleged agreement. 4. The Trial Court having considered the pleadings, framed the issues and allowed the parties to lead the evidence and the Trial Court having considered both oral and documentary evidence available on record, answered all the issues i.e., issues No.1 to 6 regarding - 5 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 very execution of agreement, delivery of possession, payment of sale consideration and also it is the obligation on the part of the defendants to execute the sale deed are answered 'negative' and additional issue No.1 also answered as 'affirmative' and coming to the conclusion that suit is barred by limitation since the alleged agreement is dated 25.09.1989 and dismissed the suit. While dismissing the suit, also taken note of the very contentions of respective parties and particularly taken note of suit agreement i.e., Ex.P5 having noticed that same was executed on 25.09.1989 and taken note of that stamp paper was issued from the treasury on 08.10.1989 and same was issued by the stamp vendor Nagaraj on 24.10.1989, but, agreement is prior to both the dates and also taken note on the face of the agreement of sale - Ex.P5 itself reflected that agreement of sale was executed before coming to existence of stamp before and answered the issue as 'negative' and come to the conclusion that there is no execution of such agreement by the husband - 6 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 and father of defendants and also taken note of that the suit was filed after lapse of 10 years and given reasons that the same is barred by limitation. 5. Being aggrieved by the said dismissal of the suit filed before the Trial Court and the Appellate Court also having considered the issues and additional issues as well as the grounds which have been urged before the Appellate Court, formulated the points whether the appellants have proved the very execution of the sale agreement by Muddappa and also the payment of entire sale consideration and delivery of possession and whether the judgment required inference. Appellate court also re- appreciated the material available on record, particularly, taken note of the document Ex.P5 is prepared on bond paper of Rs.8/- and also not taken the signature of Defendant No.3. Notice was issued to defendant No.1 in the year 2007 and also taken note of the evidence of PW1 to PW3 and particularly PW3 admitted regarding proving of the document, he categorically admit that he do not know - 7 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 when the said document was executed and also he do not know who have signed on the same and also in the cross examination of PW2 he admitted that Ex.P5 is not in his hand writing and stamp paper was brought by the husband of defendant No.1 on 25.09.1989, but the stamp papers are issued on subsequent dates. All these aspects also taken note of by the Appellate Court while re- appreciating the material on record and confirmed the judgment. 6. Being aggrieved by the concurrent findings, the present second appeal is filed before this Court. The main contention of the counsel is that the orders passed by both the courts in dismissing the suit and is erroneous and the reasoning of the First Appellate court is also not tenable and answering of the issue as 'negative' regarding passing of consideration and execution of sale agreement and disbelieving the Ex.P5 is erroneous and prayed to frame substantial question of law. - 8 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 7. Having heard the appellant's counsel and having assigned the reasons that the Trial Court particularly, in paragraph No.24 taken note of the date of the agreement as well as issuance of stamp paper by the treasury as well as by the stamp vendor and i.e., the date of treasury seal as 08.10.1989 and issuance by stamp vendor on 24.10.1989, but the alleged sale agreement is dated 25.09.1989 and PW2 deposes that the husband of first defendant i.e., Muddappa himself has brought the stamp paper on 25.09.1989 itself and also taken note of the evidence of PW3 who also categorically deposes that he do not know who had all signed the document and very execution of the document was doubtful as well as the very stamp paper issued in the month of October, but the alleged agreement came to be executed in the month of September itself and in a case of granting specific performance even though proved the agreement, even there is a lawful agreement, it is the duty cast upon the Court to exercise the discretion when granting the relief of - 9 - HC-KAR NC: 2025:KHC:25399 RSA No. 1625 of 2022 specific performance. In a case on hand, the very execution of document is doubtful as well as the material clearly discloses that Ex.P5 - suit agreement is a created agreement and both has been considered by the Trial Court as well as the Appellate Court. It is not a case for even exercising the discretion by the Trial Court as well as the Appellate Court and also no ground is made out to admit and to frame substantial questions of law before this Court and no grounds to admit and to frame substantial questions of law. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE SNC List No.: 1 Sl No.: 49 CT: BHK