- 1 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 1455 OF 2023 (SP) BETWEEN: 1. SRI. SIDDAPPA S/O. HULUGAPPA AGED ABOUT 61 YEARS R/O. DINDADAHALLI SHIKARIPURA TALUK-577 427. …APPELLANT (BY SRI. VARUN GOWDA, ADVOCATE) AND: 1. VENKATESHA S/O. RUDRAPPA BHOVI AGED ABOUT 65 YEARS R/O. CHINAKURULI VILLAGE PANDAVAPURA TALUK MANDYA DISTRICT-571 401. 2. R. KRISHNAPPA S/O. RUDRAPPA BHOVI AGED ABOUT 65 YEARS 3. MANJAPPA S/O. RUDRAPPA BHOVI AGED ABOUT 58 YEARS 4. R. RAJAPPA S/O. RUDRAPPA BHOVI AGED ABOUT 53 YEARS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 RESPONDENTS NO.2 TO 4 ALL R/O. ASHOKA NAGARA VILLAGE BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577 301. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.03.2023 PASSED IN R.A.NO.28/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SHIKARIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 26.04.2002 PASSED IN O.S.NO.31/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, SHIKARIPURA. 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. This matter is listed for admission. Heard the learned counsel for the appellant. 2. This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiff before the Trial Court while seeking the relief at the first instance for injunction and in the second instance, amending the plaint for specific performance specifically pleaded that the deceased Rudrappa son of Gurappa - 3 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 executed an agreement of sale dated 05.12.2000 in favour of the plaintiff in respect of the suit schedule property for total consideration amount of Rs.1,00,000/-. Further, it is the contention that the deceased Rudrappa had received Rs.75,000/- towards advance amount and also contention that he had agreed to sell northern portion of 2 acres out of the suit property for total consideration of Rs.85,000/- and on 16.06.2004, received the amount of Rs.40,000/- and also pleaded that he was always ready and willing to perform his part of contract. The defendants appeared and filed written statement disputing the very execution of document of sale agreement and receipt of the advance amount and also took the contention that the suit is barred by limitation. 3. The Trial Court having considered both oral and documentary evidence, comes to the conclusion that the evidence of P.W.1 not inspires the confidence of the Court and in paragraph No.20 taken note of the evidence of P.W.1 and also taken note of evidence of P.W.1 in - 4 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 paragraph No.21 with regard to the very execution of the document and also the witnesses who are present at the execution of the said document. The Trial Court also taken note of the admission on the part of P.W.2 and who says that only an amount of Rs.35,000/- was paid in his presence at the time of agreement and also he cannot say whether an amount of Rs.40,000/- was taken earlier and he has not aware of the same and also he cannot say whether the payment of Rs.40,000/- was mentioned in the agreement or not and apart from that the evidence of P.W.4 also taken note of with regard to the payment is concerned. Having considered the evidence of P.W.2 and P.W.3 coupled with the evidence of P.W.1 comes to the conclusion that the pleadings of the plaintiff is one thing and his admission is another and cross-examination of P.W.1 is also one thing, but, the recital in the agreement is contrary to the admission of P.W.2 and comes to the conclusion that the very execution of the agreement was not proved and dismissed the suit. - 5 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 4. Being aggrieved by the same, an appeal is filed before the Appellate Court. The Appellate Court also having considered the grounds which have been urged in the first appeal, formulated the point whether the Trial Court has misread the document and oral evidence and whether it comes to the wrong conclusion that plaintiff is not in possession of the suit schedule property as well as with regard to the execution of the document and whether it requires interference of this Court. Having re-assessed both oral and documentary evidence available on record, particularly case of the plaintiff is discussed in paragraph No.12 with regard to the payment of earnest money is concerned. In paragraph No.14 taken note of the admission on the part of P.W.1 that at the time of writing the document at Ex.P.1, possession was not given. Apart from that also taken note of evidence of other witnesses P.W.2 and P.W 3 having re-assessed the same and comes to the conclusion that the evidence of P.W.1, P.W.2 and P.W.3 are contrary to each other and the same was taken - 6 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 note of by the Trial Court and Trial Court not committed any error in appreciating both the oral and documentary evidence and confirmed judgment of the Trial Court. 5. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant before this Court is that the defendant though he has been examined as D.W.1 before the Court and he did not subject for cross-examination and with regard to the proving of the document of Ex.P.1-agreement is concerned, if he would have been subjected to cross examination and answer would have been elicited from the mouth of D.W.1. But, he was not subjected to cross- examination. The counsel would vehemently contend that the finding given by the Trial Court with regard to the readiness as required under Section 16(c) of the Specific Relief Act though he had placed evidence on record to prove the same, but committed an error in not exercising the discretion under Section 22 of the Specific Relief Act - 7 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 and hence, this Court has to admit and frame substantive question of law. 6. Having heard the appellant’s counsel and also on perusal of material available on record, particularly with regard to the very execution of agreement is concerned, the Trial Court taken note of evidence of P.W.1 and the same is extracted in paragraph No.20 with regard to the recital of the document of Ex.P.1 and also with regard to the payment of consideration is concerned and he says that an amount of Rs.75,000/- was given at a time and the evidence of P.W.2 is that he was present at the time of only payment of Rs.35,000/- and he was not aware of anything about the earlier payment of Rs.40,000/- and the same is also extracted in paragraph No.21 and comes to the conclusion that the very evidence of P.W.1, P.W.2 and P.W.3 and the same is contrary to the very recitals of Ex.P.1 and the contra evidence is available on record with regard to the very execution of document Ex.P.1 and the evidence of P.W.2 and P.W.3 is contrary to the evidence of - 8 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 P.W.1 and hence, taken note of that the evidence of P.W.1 to P.W.3 not inspires the confidence of the Court with regard to the execution of the same. When the same was also considered by the Appellate Court while appreciating the material available on record, particularly Appellate Court also taken note of while considering the point No.2 in paragraph No.14 as well as in paragraph No.17 with regard to the payment is concerned which is elicited from the mouth of P.W.1 and re-assessed both oral and documentary evidence exercising the power under Order 41 Rule 31 of CPC and so also with regard to the very Section 16(c) of the Specific Relief Act and unless the agreement is proved, question of invoking Section 16(c) and Section 20 doesn't arise. When such materials were considered by the Trial Court as well as by the First Appellate Court, I do not find any ground to admit and frame substantive question of law and both question of law and both question of fact are considered by the Trial - 9 - HC-KAR NC: 2025:KHC:48256 RSA No. 1455 of 2023 Court and First Appellate Court and hence, not a case to invoke Section 100 of CPC. 7. In view of the discussions made above, I pass the following: ORDER i) Second Appeal is dismissed. ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 31