- 1 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1140 OF 2014 C/W REGULAR SECOND APPEAL NO. 1131 OF 2014 IN RSA No. 1140/2014 BETWEEN: SMT ZAREENABI W/O.MOHAMED ISMAIL, AGED ABOUT 43 YEARS, RESIDING AT VIJAYAPURA EXTENSION, 7TH CROSS, DILDAR STREET, CHIKKAMAGALUR. …APPELLANT (BY SRI. A. MADHUSUDHAN RAO, ADVOCATE) AND: 1. SMT CHANDRAMMA W/O. LATE PUTTASHETTY, AGED ABOUT 45 YEARS, 2. NANDINI D/O. LATE PUTTASHETTY, AGED ABOUT 24 YEARS, 3. SRI LOKESH S/O. LATE PUTTASHETTY, AGED ABOUT 24 YEARS, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 ALL ARE R/AT NAAGANAHALLI, HIREKOLALE POST, CHIKKAMAGALUR TALUK AND DIST. …RESPONDENTS (BY SRI. N R RAVIKUMAR, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 30.7.2014 PASSED IN R.A.NO.85/2013 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHIKKAMAGALORE, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 28.6.2013 PASSED IN OS.NO.84/2007 PASSED BY THE 2ND ADDL. CIVIL JUDGE & JMFC., CHIKKAMAGALUR. IN RSA NO. 1131/2014 BETWEEN: 1. SMT ZAREENABI W/O MOHAMED ISMAIL AGED ABOUT 43 YEARS 2. SRI MOHAMMED ISMAIL S/O AHAMMED BASHA AGED ABOUT 52 YEARS BOTH ARE R/A VIJAYAPURA EXTENSION 7TH CROSS, DILDAR STREET CHIKKAMAGALUR ...APPELLANTS (BY SRI. A. MADHUSUDHAN RAO, ADVOCATE) AND: 1. SMT CHANDRAMMA W/O LATE PUTTASHETTY AGED ABOUT 45 YEARS 2. NANDINI D/O LATE PUTTASHETTY, AGED ABOUT 24 YEARS - 3 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 3. SRI LOKESH S/O LATE PUTTASHETTY AGED ABOUT 24 YEARS ALL ARE R/A NAAGANAHALLI HIREKOLALE POST CHIKKAMAGALUR TALUK AND DIST. ...RESPONDENTS (BY SRI. RAVIKUMAR N R., ADVOCATE FOR C/R) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 30.7.2014 PASSED IN R.A.NO.84/2013 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE & JMFC., CHIKKAMAGALUR, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 28.6.2013 PASSED IN OS.NO.31/2010 ON THE FILE OF THE 2ND ADDL. CIVIL JUDGE & JMFC., CHIKKAMAGALUR. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT These Regular Second Appeals arise out of the common judgment dated 30.07.2014 passed in R.A.No.84/2013 and R.A.No.85/2013 by the of learned I Additional Senior Civil Judge, Chikmagalur, and the common judgment passed in O.S.No.84/2007 and - 4 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 O.S.No.31/2010 dated 28.06.2013 by the learned II Additional Civil Judge and JMFC, Chikmagalur. 2. For convenience, the parties are referred by their names. 3. Brief facts leading rise to the filing of these appeals, are as follows: In O.S.No. 84/2007:- Zareenabi was the plaintiff in O.S.No.84/2007, and Putta Shetty, Smt. Chandramma, Nandini and Lokesh were the defendants in O.S.No.84/2007. Smt. Chandramma, Nandini and Lokesh were the plaintiffs in O.S.No.31/2010 and Smt. Zareenabi, her husband, Mohamed Ismail, and Putta Shetty were the defendants in O.S.No.31/2010. The plaintiff filed a suit against the defendants for specific performance of the contract. 3.1. It is the case of the plaintiff that the defendants are the joint owners of the suit schedule property who purchased the same on 30.04.1992. The plaintiff agreed - 5 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 to purchase the suit schedule property for a consideration of Rs.3,05,000/- and the defendants executed a sale agreement on 23.12.2003, and received an advance sale consideration amount of Rs.80,000/- on the date of execution of the sale agreement, and received another Rs.32,000/- on the different dates. Thus, in all the plaintiff has paid Rs.1,12,000/-. The defendants agreed to execute the registered sale deed within 3 years from the date of execution of the sale agreement. It is contended that the plaintiff was/is always ready and willing to perform his part of a contract, but the defendants failed to perform their part of a contract. The plaintiff issued a legal notice on 21.08.2006, calling upon the defendants to receive the balance sale consideration amount, and execute the registered sale deed. The defendants untenably replied to the legal notice, stating that defendant No.1 has released the suit property in favour of defendants No.2 to 4 and it is contended that the defendants failed to perform their part of the contract. - 6 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 Hence, a cause of action arose for the plaintiff to file a suit for specific performance of contract. Accordingly, prays to decree the suit. 3.2. Defendant No.2 filed a written statement contending that under the family arrangement the suit schedule property became the exclusive property of defendant No.2. It is denied that the defendants agreed to sell the suit schedule property for a consideration of Rs.3,05,000/- and accordingly, the plaintiff paid an advance sale consideration of Rs.1,12,000/- on different dates. It is contended that defendant No.2 is an illiterate person, and she cannot read and write. She knows only to sign her name in Kannada. It is contended that defendant No.1, colluding with the plaintiff and her husband, obtained her signatures and thumb impressions on some papers stating that it is a mortgage deed, and she came to know about the fraud played upon her when she received a legal notice from the plaintiff. It is denied that the plaintiff is in possession and enjoyment of the suit - 7 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 schedule property and doing business in it. It is contended that defendant No.2 is entitled to the possession of the premises. There is no cause of action shown in the plaint and the cause of action shown is false and imaginary. Hence, prays to dismiss the suit in O.S.No.84/2007. 3.3. In O.S.No.31/2010:- The plaintiffs filed a suit against the defendants for the relief of a declaration for a possession of the suit schedule property and also sought a permanent injunction. It is contended that plaintiff No.1 is the wife, and plaintiff Nos.2 and 3 are the children of defendant No.3. They became the owners of the suit schedule property by virtue of a deed of the family arrangement. The two residential rooms in the suit schedule property were let out to one Sri.Devaraju, who vacated the premises on 28.12.2003, using the situation, the husband of the plaintiff, and husband of defendant No.1 by colluding with each other, obtained the signature of the plaintiff on the blank papers, - 8 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 falsely representing it as a deed of mortgage, and the plaintiff came to know about the same when she received a legal notice dated 21.08.2006. It is contended that no agreement exists between the Plaintiff and defendants regarding the suit property. Hence, prays to decree the suit. 3.4. The defendants filed a written statement reiterating the plaint averments in O.S.No.84/2007 in the written statement, and accordingly prays to dismiss the suit. 3.5. The Trial Court, clubbed both the suits, and recorded the common evidence. Based on the above said pleadings, the trial Court framed the following issues and additional issues: Issues in O.S.No.84/2007: 1) Whether the plaintiff proves that, she is in possession of the suit schedule property by virtue of an agreement of sale deed dated 23.12.2013? - 9 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 2) Whether the plaintiff proves that the defendants are trying to dispossessing the plaintiff from the suit schedule property forcibly? 3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed? 4) What order or decree? Additional Issues: 1) Whether the plaintiff proves that defendant Nos.1 and 2 are executed the sale agreement dated 23.12.2003, agreeing to sell the suit property for consideration of Rs.3,05,000? 2) Whether the plaintiff further proves that he paid to the defendants advance consideration amount of Rs.1,12,000/- towards part performance of contract? 3) Whether the plaintiff further proves that he has always been ready and willing to perform his part of the contract? 4) Whether the plaintiff is entitled to the relief of specific performance of the contract? 5) In the alternative, whether the plaintiff is entitled to the refund of the advance - 10 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 amount as sought for in the alternative prayer? Issue in O.S.No.31/2010: 1) Whether the plaintiff proves that, she is the owner of the suit schedule property? 2) Whether the plaintiff proves that the defendant No.1 and 3 by playing fraud and misrepresenting obtained the signature of the plaintiff on agreement of sale, falsely representing it as a deed of mortgage? 3) Whether the plaintiff is entitled for relief of declaration and possession as prayed for? 4) Whether the plaintiff entitled for relief as sought for? 5) What order or decree? 3.6. Defendant No.2 is a power of attorney holder of defendant No.1 in O.S.No.31/2010, who was examined as PW.1, i.e., Mohamed Ismail, and one witness was examined as PW.2, and marked 45 documents were marked as Exs.P1 to P45. Conversely, plaintiff No.1 in O.S.No.31/2010 was examined as DW.1, and 4 documents were marked as Exs.D1 to D4. The trial Court, after - 11 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 recording the evidence, hearing both sides and on assessing the verbal, and documentary evidence, answered issues in O.S.No.84/2007 as follows: Issue No.1, additional issues Nos.2, 3 and additional issue No.5 in the affirmative, issue Nos.2 and 3 and additional issue No.1 and 4 in the negative, and issue No.4 as per the final order. 3.7. The trial Court, answered issues in O.S.No.31/2010 as follows: Issue Nos.1 to 4 in the affirmative, and issue No.5 as per the final order. The suit in O.S.No.84/2007 was partly decreed and the suit of the plaintiff in O.S.No.31/2010 was decreed vide judgment dated 28.06.2013. It is ordered that the plaintiff in O.S.No.84/2007 is entitled to a refund of the advance amount of Rs.1,12,000/- with interest at 18% p.a. from the date of suit till realisation. It is ordered and decreed that the plaintiffs in O.S.No.31/2010 are declared as the owner of the suit schedule property. Defendant Nos.1 and 2 were directed to hand over the - 12 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 vacant possession of schedule property to the plaintiffs within two months from the date of the judgment. 3.8. Defendant Nos.1 and 2 in O.S.No.31/2010 aggrieved by the judgment and decree passed in O.S.No.31/2010, preferred an appeal in R.A.No.84/2013 and the plaintiff in O.S.No.84/2007, aggrieved by the judgment and decree passed in the said suit, preferred an appeal in R.A.No.85/2013 on the file of the learned I Additional Senior Civil Judge, Chikmagalur. 3.9. The First Appellate Court, clubbed both the appeals, and after hearing the learned counsel for the parties, framed the common points for consideration in both the appeals as follows: 1) Whether the finding given by the trial Court in O.S.No.84/2007 in holding that the plaintiff is not entitle for the relief of specific performance is against law, facts, evidence and probabilities of the case? 2) Whether the respondent Nos.2 to 4 made out the grounds to allow the cross- objections filed in R.A.No.84/2013? - 13 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 3) Whether the appellant has made out the sufficient and satisfactory grounds to allow the application filed under Order 41 Rule 27 of CPC in R.A.No.84/2013? 4) Whether the finding given by the learned trial judge in O.S.No.31/2010 declaring the plaintiffs therein as owners of the suit schedule property on the basis of the affidavit dated 07.05.1992 sworn to by the third defendant therein Sri. Puttaswamy is sustainable in law? 5) Whether the judgment and decree passed in O.S.No.31/2010 is against law, facts, evidence and probabilities of the case and whether it warrants an interference by this Court? 6) What order or decree? 3.10. The First Appellate Court, on re-assessing the verbal and documentary evidence, answered point Nos.1, 3 and 4 in the negative, point No.2 in the affirmative, point No.5 as partly affirmative, and point No.6 as per the final order. 3.11. The appeal filed by the appellant in R.A.No.85/2013 was dismissed with costs and the judgment and decree dated 28.06.2013 passed in - 14 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 O.S.No.84/2007 was confirmed insofar it relates to, dismissing the suit of the plaintiff claiming the relief of specific performance and the cross objections filed by the plaintiffs in O.S.No.31/2010 was allowed, and thereby the judgment and decree dated 28.06.2013 passed in O.S.No.84/2007 was set aside, insofar as it relates to the finding given by the learned trial judge holding that the plaintiff therein is entitled for the refund of advance amount of Rs.1,12,000/- from the date of suit till the date of realisation. The appeal filed by defendant Nos.1 and 2 in O.S.No.31/2010 was allowed in part. The judgment and decree passed in O.S.No.31/2010 dated 28.06.2013 on the file of the learned II Additional Civil Judge and JMFC, Chikmagalur, was set aside insofar it relates to the decreeing the suit of the plaintiffs declaring that the plaintiffs as the owners of the suit schedule property. 3.12. Further, it is ordered that the judgment and decree passed in O.S.No.31/2010 dated 28.06.2013 passed by the learned II Additional Civil Judge and JMFC, - 15 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 Chikmagalur, was partly confirmed insofar as it relates to directing defendant Nos.1 and 2 therein to handover the vacant possession of the suit schedule property. 3.13. The plaintiff in O.S.No.84/2007, aggrieved by the judgment and decree passed in R.A.No.85/2013 and judgment and decree passed in O.S.No.84/2007, filed a second appeal in RSA No.1140/2014 and defendant Nos.1 and 2 in O.S.No.31/2010, aggrieved by the judgment and decree passed in R.A.No.84/2013 and O.S.No.31/2010, preferred the second appeal in RSA No.1131/2014. 4. Heard the arguments of Sri. A. Madhusudhan Rao, the learned counsel for Zareenabi, and Mohammed Ismail, and Sri. Ravikumar N.R., the learned counsel for Chandramma, Nandini, and Lokesh. 5. Learned counsel for Zareenabi and Mohammed Ismail submits that the defendants agreed to sell the suit schedule property for a consideration of Rs.3,05,000/- and accordingly, the plaintiff paid Rs.1,12,000/- on the - 16 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 different dates, and accordingly, the defendants executed a sale agreement in favour of the plaintiff in 2003 i.e., 23.12.2003 and it was agreed that the balance consideration would be paid within 3 years from the date of execution of the sale agreement, and get the registered sale deed executed. He submits that the plaintiff in O.S.No.84/2007 to prove her readiness and willingness, issued a legal notice on 21.08.2006. He submits that the plaintiff has proved the execution of the sale agreement by the defendants, and in part performance of a contract, the defendants delivered the possession of the suit schedule property in favour of Smt. Zareenabi, and Mohammed Ismail. He submits that the first Appellate Court committed an error in recording its finding that the plaintiff has failed to prove the execution of the sale agreement, and also committed an error in setting aside the alternative relief of refund of earnest money granted by the trial Court. Hence, on these grounds, he prays to allow the appeal. - 17 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 6. Per contra, the learned counsel for Smt. Chandramma, Nandini and Lokesh submits that the defendants have denied the execution of the sale agreement and contended that Mohamed Ismail and Zareenabi, have taken the signature on some blank papers, falsely pretending it to be mortgage deed. He submits that in the sale agreement an advance sale consideration is shown as Rs.80,000/-, but during the course of cross-examination of PW.1, he has stated that he paid Rs.20,000/- on the date of execution of the sale agreement. He also submits that although the plaintiff had issued a legal notice on 21.08.2006, the plaintiff has not stated in the legal notice that the plaintiff had paid a sum of Rs.20,000/- on the date of execution of the sale agreement. He submits that Zareenabi has not entered the witness box. He submits that PW.1 did not depose in the examination-in-chief that he is an agent and he has personal knowledge about the alleged transaction between Zareenabi, and Chandramma and the others. - 18 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 6.1. To buttress his arguments, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of JANKI VASHDEO BHOJWANI & ANR VS. INDUSIND BANK LTD. & ORS reported in 2005(2) SCC 217. He submits that the evidence of PW.1 does not support the case of the plaintiff in O.S.No.84/2007 i.e., Zareenabi. Hence, he submits that the plaintiff must establish his case regarding the execution of an agreement of sale, but cannot depend upon the weakness of Chandramma and the others. Hence, the first Appellate Court was justified in passing the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal. 7. This court on 03.02.2015, admitted the appeal to consider the following substantial question of law : 1) Whether the judgment and decree of the courts below are erroneous in holding that the plaintiff has failed to prove the execution of agreement to sell notwithstanding the admission of DW.1? 2) Whether the first Appellate Court was justified in reversing the alternative relief granted by the trial Court? - 19 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 3) Whether the judgment and decree of the courts below are erroneous in relying upon an unregistered family arrangement by way of an affidavit pertaining to the schedule property? 4) Whether the first Appellate Court was justified in confirming the judgment and decree of the trial Court even after holding that the finding of the trial Court pertaining to family arrangement by way of affidavit is erroneous? 8. Perused the records, and considered the submissions of the learned counsel for the parties. 9. REG. SUBSTANTIAL QUESTIONS OF LAW NOS.1 AND 2: Substantial questions of law Nos. 1 and 2 are interlinked with each other and they are taken together for a common discussion to avoid the repetition of facts. Zareenabi filed a suit in O.S.No.84/2007 for the relief of specific performance of a contract and her power of attorney was examined as PW.1. The Power of Attorney holder filed the suit on behalf of Zareenabi, and he was - 20 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 examined as PW.1. He deposed that the defendants are the joint owners of the suit schedule property, and they agreed to sell the suit schedule property for a consideration of Rs.3,05,000/- and accordingly, on the date of the execution of a sale agreement, the plaintiff paid a sum of Rs.80,000/- and it was agreed that the balance consideration amount would be paid within 3 years from the date of execution of agreement of sale. The plaintiffs, thus, paid a sum of Rs.1,12,000/- on different dates towards the advance sale consideration amount. The defendants executed a sale agreement dated 23.12.2003 before the Notary. After the expiry of 3 years, the plaintiff requested the defendants namely, Chandramma and others to receive the balance sale consideration amount, and to execute the registered sale deed. Despite the oral request made by Zareenabi, and her power of attorney holder, the defendants Chandramma and others did not come forward to receive the balance sale consideration amount, and execute the registered sale deed. The - 21 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 plaintiff to show that she was/is always ready and willing to perform her part of contract, issued a legal notice on 21.08.2006. The defendants, Smt. Chandramma and others replied to the legal notice, denying the execution of a sale agreement as per Ex.P.1 and receipt of Rs1,12,000/- as an advance sale consideration amount. 10. The plaintiff, in O.S.No.84/2007 to prove the execution of the sale agreement, produced the documents. Ex.P1 is the sale agreement dated 23.12.2023, which discloses that the defendants agreed to sell the suit schedule property in favour of Smt. Zareenabi. Ex.P2 is the GPA executed by Smt. Zareenabi in favour of Mohammed Ismail, who is the husband of the plaintiff i.e., Zareenabi. Exs.P3 to P7 are electric bills which disclose that the plaintiff is in possession of the suit schedule property, and obtained an electric connection to the suit schedule property and consumed electricity, Exs.P8 to P12 are the receipts of electricity bills, Exs.P13 to 15 are the photos, Ex.P16 is the office copy of the legal notice issued - 22 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 by the plaintiff, to Chandramma and others calling upon them to receive the balance consideration amount, and execute the registered sale deed. Ex.17 is the RPAD cover, Ex.P18 is the certificate of posting. Ex.P19 is the reply notice, wherein the defendant replied to the legal notice issued by the plaintiff denying the execution of a sale agreement and receipt of Rs.1,12,000/- as an advance amount. Ex.P20 is the notice. Ex.P21 is the postal acknowledgement. Ex.P22 is the patta book. Ex.P23 and P24 are the land revenue receipts. Ex.P25 is the self- assessment. Ex.P26 is the tax paid receipt. Ex.P27 is the self-assessment for 2011-12, Exs.P28 to 30 are the electricity bills and receipts. Ex.P31 is the Bank passbook. Exs.P32 to P.36 are counterfoils of cheques. Exs.P37 to 41 are the cheques. Ex.P42 is the RTC. Exs.P43 to P44 are the rent agreement, and Ex.P45 is a copy of the register. 11. During the course of cross-examination of PW.1, it was suggested that Chandramma and others were - 23 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 not aware of the execution of a sale agreement and receipt of Rs.1,12,000/-. The said suggestion was denied by PW.1 and nothing has been elicited from the mouth of this witness to disbelieve the evidence of PW.1. The plaintiff in O.S.No.84/2007 to prove the execution of Ex.P1, examined scribe as PW.2 , who deposed that he is an advocate notary, and Zareenabi and Chandramma and others came to him on 23.12.2003. He deposed that Zareenabi, Chandramma and Nandini executed the sale agreement dated 23.12.2023, as per Ex.P1. He has notarised the sale agreement dated 23.12.2003, 10 years back. 12. During the course of cross-examination of PW1, it is admitted that amount of Rs.80,000/- was not paid on the date of execution of the sale agreement dated 23.12.2003 by way of cash, but he had paid Rs.20,000/- and further, the pleadings does not reflect the said fact. - 24 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 13. In rebuttal, Smt. Chandramma was examined as DW.1. She reiterated the written statement averments in O.S.No.84/2007 in the examination-in-chief, and denied the execution of the sale agreement dated 23.12.2003, receipt of Rs.1,12,000/-, and denied delivery of possession in part performance of a contract. Furthermore, to prove the defense, she produced 4 documents Ex.D1 is a copy of a notice. Ex.D2 is the written statement, Ex.D3 is the sale deed. Ex.D4 is the khata extract. 14. From the perusal of the entire evidence on record, it is the case of the plaintiff that Zareenabi i.e., the plaintiff Chandramma and others executed a sale agreement on 23.12.2003 and according to PW.1, the plaintiff has paid a sum of Rs.20,000/- towards advance sale consideration amount on the date of execution of a sale agreement, but from the perusal of the recital of Ex.P1, it discloses that the plaintiff paid a sum of Rs.80,000/- on the date of execution of a sale agreement. There is an inconsistency in the evidence of PW.1, and the - 25 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 contents of Ex.P1. Though PW.1, in the course of cross- examination, elicited that he has paid Rs.20,000/- on the date of the sale agreement, but there is a recital in the agreement of sale that Zareenabi paid Rs.80,000/-. Furthermore, the plaintiff has issued a legal notice to Chandramma and others on 21.08.2006 as per Ex.P16. 15. From the perusal of the contents of Ex.P16, it is not stated in the legal notice that on the date of execution of a sale agreement, the plaintiff in O.S.No.84/2007 has paid Rs.20,000/- and not Rs.80,000/-. A Legal notice is the foundation for a plaintiff to file a suit for specific performance of a contract. Further, PW.1 has not deposed in his evidence that he was present at the time of the sale transaction, and he has personal knowledge regarding the alleged transaction between Zareenabi and Chandramma, and the others. Though, the plaintiff is a Muslim and a pardanashin lady, the plaintiff ought to have examined herself through a Court Commissioner. Zareenabi has not made any attempt to lead evidence through the Court - 26 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 commissioner. In view of the law laid down by the Hon’ble Apex Court in the case of JANKI VASHDEO BHOJWANI (referred supra), it is held that a Power of Attorney holder can depose, and verify on oath before the Court, but he must have witnessed the transaction as an agent, and must have due knowledge about it. 16. Admittedly, one who is a Power of Attorney holder of Zareenabi has no knowledge regarding the sale transaction and he cannot be examined as an agent to Zareenabi. The defendant has raised a defence that Zareenabi and Mohammed Ismail have taken signatures on the blank papers falsely representing it to be a mortgage deed. When the defendants raise a defence regarding the fraud, the burden is on the defendants to prove that Zareenabi and her husband, PW.1, committed a fraud on Chandramma and others. Chandramma, except examining herself as DW.1, she has not cross-examined any witnesses to prove that Zareenabi and Mohammed Ismail have played a fraud, and got executed Ex.P1. - 27 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 17. Though, Ex.P1 bears the signature of the defendants, the defendants have not denied the signatures on Ex.P1. The defendants contend that it is a mortgage deed, and not a sale agreement. The evidence of the defendants regarding the very terms and conditions of the instrument, is inadmissible in evidence as per Section 92 of the Indian Evidence Act, 1872. Though, the trial Court has recorded a finding that Zareenabi has failed to prove the execution of the sale agreement dated 23.12.2008, additional issue No.3 in O.S.No.84/2007 is that Zareenabi has proved that she was/is always ready, and willing to perform her part of a contract. Admittedly, the trial Court, instead of answering additional issue No.1 affirmatively, due to oversight, it has been answered in the negative, and the trial Court decreed the suit of Zareenabi in part, and granted an alternative relief of refund of Rs. 1,12,000/- with 18% interest from the date of suit, till the realisation of the amount. - 28 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 18. The first Appellate Court, without re-appreciating the entire evidence on record, has held that the plaintiff has failed to prove the execution of the sale agreement. Chandramma and others have admitted the signature on Ex.P1. Furthermore, the first Appellate Court failed to consider Section 92 of the Indian Evidence Act, 1872, and committed an error in recording its finding that Zareenabi had failed to prove the execution of a sale agreement as per Ex.P1. Although, DW.1 has admitted the signature on Ex.P1, it is for DW.1 to explain under what circumstances signatures were obtained on Ex.P1. Chandramma has not examined any attesting witnesses to Ex.P1, and raised the ground that Zareenabi and Ismail played a fraud on Chandramma, got executed Ex.P1. 19. Further, Chandramma and others have not lodged a complaint against Zareenabi, and also her husband, since she has made an allegation against her husband stating that her husband colluding with Puttashetty and Zareenabi, i.e., the plaintiff got created - 29 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 Ex.P1. When the defendants made allegations against her Puttashetty, Zareenabi, and PW.1, i.e., Mohamed Ismail, Chandramma ought to have lodged the complaint. Chandramma and others have not taken any steps to lodge the complaint. The said aspect was not adequately considered by the first Appellate Court, which committed an error in dismissing the suit in its entirety. Although, the plaintiff has proved the execution of a registered sale agreement dated 23.12.2003, the trial Court exercising a judicial discretion, decreed the suit in part, and ordered to a refund of the advance sale consideration of Rs.1,12,000/- with interest @ 18% p.a. from the date of the suit, till its realisation. 20. The first Appellate Court has not correctly re- appreciated the entire evidence on record and came to the wrong conclusion that Zareenabi has failed to prove the execution of a sale agreement. Thus, the judgment and decree passed by the first Appellate Court is erroneous in holding that the plaintiff in O.S.No.84/2007 has failed to - 30 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 prove the execution of an agreement to sale, notwithstanding the admission of DW.1 and also reversed the alternative relief granted by the trial Court. In view of the above discussion, I answer the substantial questions of law Nos. 1 in the affirmative and 2 in the negative. 21. REG. SUBSTANTIAL QUESTION OF LAW NO.3: Although, Chandramma and others filed a suit for declaration, possession and permanent injunction regarding suit schedule property, the plaintiff in O.S.No.84/2007 issued a legal notice on 21.08.2006 to show that the plaintiff was/is ready and willing to perform her part of a contract. When the sale agreement was executed on 23.12.2003, Zareenabi ought to have got executed a registered sale deed within time, so there was no necessity for Zareenabi to wait for a period of 3 years from the date of execution of the sale agreement. From the conduct of the parties, it is evident that it is not a sale transaction but rather a loan transaction between Zareenabi and Chandramma and others. As Chandramma - 31 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 and others have taken the defence that it is a mortgage deed, from the admission of Chandramma and others, it discloses that there was some monetary transaction between Zareenabi, Chandramma and others. In view of the above discussion, Substantial question of law No.3 does not arise for consideration. 22. REG. SUBSTANTIAL QUESTION OF LAW NO.4: Admittedly, there is no dispute regarding the ownership of Chandramma and others over the suit schedule property, and Smt. Zareenabi claims to be in possession of the suit schedule property in part performance of the contract. As this Court has already held that the plaintiff Zareenabi is not entitled to a specific performance of a contract, as, the plaintiff i.e., Zareenabi has failed to prove that she was/is always ready and willing to perform her part of a contract. 23. Zareenabi is not entitled to protect her possession under Section 53A of the Transfer of Property - 32 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 Act, as Zareenabi has not fulfilled the requirements of Section 16(c) of the Specific Relief Act and Section 53A of the Transfer of Property Act. Furthermore, Zareenabi has herself filed a suit for specific performance of a contract against Chandramma and others, directing them to execute the registered sale deed in favour of Zareenabi. The admission of Zareenabi in suit O.S.No.84/2007 is sufficient to hold that Zareenabi has admitted the ownership of Chandramma and others over the suit property. Furthermore, Chandramma and others have not produced the documents to demonstrate that there was a family arrangement between the family members, and that they have filed an affidavit. Although, Chandramma and others have not produced any documents to establish the ownership of the suit schedule property, however, Zareenabi has filed a suit for specific performance of a contract in O.S.No.84/2007 admitting their ownership over the suit schedule property and seeking a direction to Chandramma and others to execute the registered sale - 33 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 deed, that itself is sufficient to grant a decree sought by Chandramma and others. The courts below have rightly passed the impugned judgments. In view of the above discussion, I answer the substantial question of law No.4 in the affirmative. 24. In view of the above discussion, I proceed to pass the following order: ORDER i. The Regular Second Appeal No.1140/2014 is allowed. ii. The judgment and decree passed in R.A.No.85/2013 dated 30.07.2014 on the file of the learned I Additional Senior Civil Judge, Chikmagaluru is set aside. A decree passed in O.S.No.84/2007 by the trial Court is modified. iii. The plaintiff, Zareenabi is entitled to a refund of the amount of Rs.1,12,000/- with - 34 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 interest @ 12% p.a. from the date of suit till the realisation of the amount. iv. Regular Second Appeal No.1131/2014 is dismissed. v. The judgment and decree passed by the trial Court is confirmed. However, Zareenabi i.e., defendant No.1 in O.S.No.31/2010 is granted 3 months time to vacate, and hand over the possession of the suit schedule property. vi. The defendants, Chandramma and others are directed to deposit an amount of Rs.1,12,000/- with interest @ 12% p.a. from the date of suit till realisation within a period of 3 months from today. vii. The defendants in O.S.No.31/2010 i.e., Zareenabi, are directed to vacate and hand over the possession of the suit schedule property to the plaintiff in O.S.No.31/2010, - 35 - HC-KAR NC: 2025:KHC:24773 RSA No. 1140 of 2014 C/W RSA No. 1131 of 2014 failing which, the plaintiff is at liberty to vacate the defendants by due process of law. Sd/- (ASHOK S.KINAGI) JUDGE SKS List No.: 1 Sl No.: 5