- 1 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO.5514 OF 2011 BETWEEN: HULAGAPPA S/O. POMAPPA RATHOD, AGE: 58 YEARS, OCC. AGRICULTURE, R/O. GINIGERI VILLAGE, TQ AND DIST. KOPPAL-583231. …APPELLANT (BY SRI. RAJASHEKAR R. GUNJALLI, ADVOCATE) AND: VAIJANATH S/O. BASAPPA DIWATAR, AGE: 51 YEARS, OCC. AGRICULTURE, R/O. KOPPAL, TQ. AND DIST. KOPPAL-583231. …RESPONDENT (BY SRI. D.L. LADKHAN, ADVOCATE FOR C/R1) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT & DECREE PASSED BY THE LEARNED FAST TRACK COURT-I, KOPPAL IN R.A.NO.53/2010 DATED 21.03.2011 CONFIRMING JUDGMENT AND DECREE PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) AT KOPPAL IN O.S.NO.16/2008 DATED 08.10.2010 IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ARGUMENTS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.05 14:27:41 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) This appeal arises out of the divergent findings of the judgments of Senior Civil Judge, Koppal in O.S.No.16/2008 and the judgment of District Judge, Fast Track Court-1, Koppal in R.A.No.53/2010 dated 21.03.2011 whereby the First Appellate Court reversed the judgment of the Trial Court and granted the relief of refund of the earnest money paid under an agreement of sale. 2. Parties would be referred to as per the rank before the Trial Court for the sake of convenience. 3. The factual matrix that is relevant for the purpose of this appeal may be stated as below: i) Defendant No.1 was the owner in possession of the landed properties i.e. No.62 and 63/A/2 and he had purchased the same in the year 2007. The first defendant was in need of money for his legal necessity and therefore, he proposed to sell the suit schedule - 3 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 properties to the plaintiff and accordingly, the sale price was fixed at ₹41,000/- per acre and as such the total consideration agreed was ₹8,19,000/-. ii) The agreement was entered into between the plaintiff and defendant No.1 on 26.07.2007 and on the same day, defendant No.1 executed the agreement by receiving an advance amount of ₹3,21,000/-. It was agreed that the sale deed has to be executed within three months from 26.07.2007. iii) On 05.11.2007 the plaintiff was ready to get the stamp papers for purchase of the suit schedule property and approached defendant No. 1 and requested to execute the sale deed. But on one or the other pretext, he postponed the same. iv) Ultimately, the defendant stated that there was some problems to him to execute the sale deed and therefore, he requested some more time and accordingly, on 21.11.2007, another - 4 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 sum of ₹2,29,000/- was paid by the plaintiff to the defendant and an endorsement was made on the agreement of sale. The time to execute the sale deed was extended by another three months. v) The plaintiff approached defendant No.1 and requested him to perform his part of the agreement, but the defendant started to avoid the plaintiff and therefore, the plaintiff felt that the defendant is not ready to execute the sale deed and as such he filed suit for specific performance of the contract. Before filing the suit, a legal notice was also issued to defendant No.1 on 14.02.2008. vi) The plaintiff sought specific performance of the agreement of sale and in the alternative, sought the refund of the amount paid to the defendant. vii) During pendency of suit, the plaint was amended and it was stated that defendant No.1 joined hands with his brothers and - 5 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 relatives and had got filed O.S.No.8/2008 for partition and colluding with his brothers, a decree was obtained on 29.02.2008 with an intention to defeat the agreement of sale. 4. The first defendant appeared before the Trial Court and filed a written statement denying the agreement of sale dated 26.07.2007 and receipt of the earnest money of ₹3,21,000/-. He also denied that he had received an additional sum of ₹2,29,000/- on 21.11.2007 and had agreed to execute the sale deed within three months. He also denied that the plaintiff was ready and willing to perform his part of the contract. 5. He contended that the plaintiff and his brother are well known to the defendants and defendant No.1 used to take hand loan from the plaintiff and his brother who was an MLA. It is contended that hand loan of ₹1,00,000/- was obtained from the plaintiff’s brother and at that time, he had obtained signature of the first defendant on blank stamp paper of ₹2/-, which is for the purpose of security of the hand loan. Subsequently, the defendant has repaid the said loan and requested the plaintiff to return the stamp paper. But he had failed to do so. - 6 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 6. On the said stamp paper, the plaintiff has created an agreement of sale by taking advantage of the signature of defendant No.1 on blank stamp paper and as such the suit of the plaintiff is barred by limitation. It was contented that out of the two signatures appearing in the agreement of sale, he has not signed the first signature, but he is admitting the second signature. On these grounds, he sought for dismissal of the suit. 7. Defendant Nos.2 to 6 are the brother and other relatives of defendant No.1 and they also supported the contention of defendant No.1. They contended that they also had a share in the suit schedule property as it was ancestral joint family property and defendant No.1 had sold the lands in the name of defendant Nos.1 to 5. Therefore, defendant No.1 had no right, title or interest to sell the share belonging to the other defendants and as such the suit is frivolous and is liable to be dismissed. 8. On the basis of the above contentions, the following issues were framed by the Trial Court. ISSUES - 7 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 “1) Whether the plaintiff proves that the defendant has agreed to sell the suit land bearing land Sy.No.62 and 63/a/2 for the consideration amount of Rs.8,19,000/- and received the earnest money of Rs.3,21,000/- and executed the agreement of sale as on 26/07/2007? 2) Whether the plaintiff further proves that on 21/11/2007 the defendant has received an amount of Rs.2,29,000/-and signed the agreement of sale dated 26/07/07? 3) Whether the plaintiff further proves that he was always ready and willing to perform his part of contract? 4) Whether the defendant proves that the suit property is the joint family property and his brother and mother are having a share in it? 5) Whether the defendant proves that he has taken hand loan of Rs.1,00,000/- and as a security of the said loan the brother of the plaintiff has obtained his signature on stamp of Rs.2/- and created agreement of sale in favour of the plaintiff? 6) Whether the plaintiff proves that he is entitled for the relief of specific performance of the contract? 7) What order or decree?” Additional Issues 1) Whether the defendant proves that the suit of the plaintiff is time barred? - 8 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 2) Whether the plaintiff proves that the decree in O.S.No.8/08 on the file of Civil Judge (Jr.Dn.), Koppal does not bind him?” 9. The plaintiff was examined as PW.1 and two witnesses were examined as PW.2 and PW.3. Ex.P.1 to Ex.P.32 were marked in evidence. Defendant No.1 was examined as DW.1 and four witnesses were examined as DW.2 to DW.5. Ex.D.1 to Ex.D.10 were marked. After hearing the arguments, the Trial Court held the issue Nos.1 to 4, 6 and additional issue No.1 in negative and rest of the issues in the affirmative and proceeded to dismiss the suit. 10. Being aggrieved by the same, the plaintiff preferred the appeal in R.A.No.53/2010. The First Appellate Court, after hearing the arguments by both the sides came to the conclusion that the judgment of the Trial Court is perverse and arbitrary and it had not properly assessed the evidence on record and held that the plaintiff had proved the Ex.P.1. It also held that in view of the partition entered into between Defendant No.1 and his relatives, the suit property is not available and as such, it ordered refund of the amount of ₹5,50,000/- to the plaintiff - 9 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 along with interest rate at 10% per annum from the date of suit till recovery of the entire amount. 11. Being aggrieved by the same, defendant No.1 is before this Court in appeal. Since no relief was sought against respondent Nos.2 to 6, they were not arrayed as the parties in this appeal. 12. This Court by order dated 15.09.2011 admitted the appeal by framing the following substantial question of law: "Whether the 1st appellate Court was right in concluding that there was an agreement to sell between the parties dated 26.07.2007 and thereby, granting an alternative relief to the respondent herein, by directing the appellant to pay a sum of Rs.5,55,000/- with interest at the rate of 10% from the date of the suit till recovery of the entire amount?" 13. The arguments by learned counsel appearing for the appellant and the learned counsel for the respondent were heard. - 10 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 14. The learned counsel for the appellant/defendant No.1 submits that the First Appellate Court has wrongly exercised its discretion in reversing the judgment of the Trial Court. It is contented that the First Appellate Court failed to appreciate the evidence in the proper perspective. It is pointed out that the Trial Court had expressed doubt about the Ex.P.1-agreement of sale and it had considered the testimony of DW.1 who had stated that only one of the signature on Ex.P.1 was admitted by him and the other one was not. The manner in which the Ex.P.1 was written was appreciated by the Trial Court and there was no reason for the First Appellate Court to reverse the said finding regarding proof of Ex.P1. It was contented that the various discrepancies that were pointed out was considered by the Trial Court and the First Appellate Court could not have replaced its own opinion to the one which was expressed by the Trial Court. He points out the discrepancies that were found regarding the Ex.P.1 and its execution. Therefore, he submits that the First Appellate Court had erred in reversing the opinion of the Trial Court regarding proof of Ex.P.1. In this regard he places reliance on the judgment by a division Bench of this Court in the case of - 11 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 Sri.S.R. Suresh and another vs. Sri.Rudrappa Kabbur and other1. 15. Per contra, learned counsel appearing for respondent No.1 has contended that the First Appellate Court is justified in holding that the plaintiff had proved the Ex.P.1-agreement of sale. He points out that when one of the signature on Ex.P.1 is admitted by defendant No.1/appellant, there was no reason for him to deny the other signature. It is pointed out that the second signature on Ex.P.1 i.e., Ex.P.1B having been admitted, it refers to the earlier transaction on the same document and therefore, the Trial Court had erred in appreciating the same. He points out that the First Appellate Court is justified in ignoring the minor discrepancies and coming to the conclusion that the agreement had been proved and as such defendant No.1 was directed to refund the advance amount received by him along with interest. 16. The case of the plaintiff is that defendant No.1 was in need of money and therefore, he entered into an agreement of sale by receiving a sum of ₹3,21,000/- initially on 26.07.2007. 1 RFA No.649/2013 dated 23.10.2020 - 12 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 Thereafter, he received another sum of ₹2,29,000/- and an endorsement was made on Ex.P.1. 17. A perusal of Ex.P.1 would disclose that it is an agreement written on a single sheet of stamp paper. It is pertinent to note that the agreement of sale should have been executed on a stamp paper of the value as prescribed under the Karnataka Stamp Act. It seems a sum of ₹100/- was paid towards the deficit stamp duty and it has been admitted in evidence by the Trial Court and as such, no objection can be raised in respect of the agreement of sale. 18. A perusal would show that defendant No.1 admits the signature at Ex.P.1(b). But he does not admit the signature at Ex.P.1(a) which are one below the other. The first signature i.e., Ex.P.1(a) pertains to the transaction dated 26.07.2007. The defendant denies this signature but he admits the signature at Ex.P.1(b) which pertains to an endorsement dated 21.11.2007. It is relevant to note that the scribe has signed the said document on both the dates. No doubt, the endorsement could have been made on the back page of Ex.P1, but the endorsement is at the bottom in a clumsy manner as observed - 13 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 by the Trial Court. But however, it is relevant to note that a perusal of Ex.P.1(a) and Ex.P.1(b), the signatures of defendant No.1 would disclose that Ex.P.1(a) is with a shaky hand, but Ex.P.1(b) is with a firm hand. This Court opines that the opinion of the First Appellate Court in this regard appears to be correct and no fault can be found for its opinion exercised under Section 73 of the Evidence Act. 19. The judgment of the Trial Court highlights the following aspects: a) It opines in paragraph No.19 that the document appears to have been written adjusting the place of signature of defendant No.1 and support the contention of defendant No.1 that his signature was obtained on a blank paper. b) Denial of the signature of defendant No.1 at Ex.P.1(a) requires the plaintiff to prove it even though DW.1 had denied his signature on the written statement also. The inconsistency in the admissions made by - 14 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 PW.1 and PW.2 with regard to the place of negotiation shows that their testimony is not consistent. c) The sale consideration was fixed at ₹41,000/- per acre and for a total extent of land of 19 acres 19 guntas it was ₹8,19,000/- but it was written as ₹8,17,950/- in the agreement. d) Defendant No.1 had filed an application for identification of the land as per the land revenue rules to draw a sketch and later, defendant No.1 had not pressed the said application. This circumstance is not addressed by PW.1. e) There is inconsistency in the written statement and the Ex.P.24 document to the effect that Ex.P.24 was stated to have been signed by DW.1 without reading it. But there is no such mention in the written statement. Obviously this finding goes in favour of the plaintiff. f) The Trial Court observed that the plaintiff had paid the stamp duty for the sale deed to the - 15 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 tune of ₹49,580/- on 05.11.2007 and later had got it refunded from the sub-registrar, but the said Ex.P.30 cannot be related to the suit transaction. g) If at all a sale consideration of ₹5,50,000/- was paid, the plaintiff would have received the possession of the property. 20. By observing the above aspects, it declined to hold that the agreement is proved. 21. Per contra, the First Appellate Court in its judgment gives a thrust to the oral testimony of PW.2, PW.3 and the witnesses examined on behalf of the defendants. It analyses the testimony of PW.2 and PW.3 and holds that there is no major contradictions or inconsistencies that were brought out in the cross-examination. 22. The testimony of PW.2 corroborates the testimony of PW.1 and the documentary evidence. 23. PW.3 is the scribe of Ex.P.1 and he has identified his signatures on Ex.P.1. When PW.2 and PW.3 have identified the - 16 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 signatures of defendant No.1 on Ex.P.1, there is no room to contend that the agreement was written on a blank stamp paper which was got signed from defendant No.1. 24. In paragraph No.17, the First Appellate Court compares the signature Ex.P.1(a) and Ex.P.1(b) and comes to a conclusion that they are similar and identical. Therefore, it disagrees with the view of the learned counsel for defendant No.1 and the opinion of the Trial Court. 25. Regarding the discrepancy of the sale consideration amount as to whether it is ₹8,19,000/- or ₹8,17,950/-, it opines that PW.1 has explained the same in his testimony that defendant No.1 had demanded a sale consideration amount and to make it a round figure. 26. It holds that the testimony of PW.1 to PW.3 when examined cumulatively, the discrepancies pointed out by the Trial Court are minor variations and they cannot be termed as the one which go to the root of the case. It also considers the contention of defendant No.1 that he had received a hand loan from the brother of the plaintiff to the tune of ₹1,00,000/- and - 17 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 comes to the conclusion that the said contention cannot be accepted. It holds that the testimony of DW.1 and DW.2 would not clinchingly establish this aspect. 27. It also considers the view taken by the Trial Court in respect of Ex.P.24 and holds that the plaintiff's signing a blank paper is not convincing. Therefore, it holds that the testimony of defendant No.1 and his witnesses does not inspire confidence to hold that defendant No.1 had not signed the agreement of sale as per Ex.P.1. 28. When this Court examines the above aspects in the light of the evidence available on record, it appears that the agreement was signed by the attesting witnesses and defendant No.1 in the year 2007. The attesting witnesses and the scribe who are examined as PW.2 and PW.3 deposed before the Trial Court in August-2010. Obviously, after lapse of about three years, there are bound to be variations and this aspect was considered by the First Appellate Court in detail. The reason as to why the variations may occur was appreciated by the First Appellate Court. - 18 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 29. It is pertinent to note that the Trial Court appears to have gone on the basis of the documents which are available. It did not dwell much in respect of the oral testimony that was placed on record. Therefore, on a careful perusal of the impugned judgments, it appears that the First Appellate Court has considered the evidence in the proper perspective. When the defendant No.1 had admitted that he had received a hand load of ₹1,00,000/- from the brother of the plaintiff and he had given a blank document to him, it gains importance. The fact that the said loan amount was refunded to the brother of the plaintiff has not been established fully. When the loan transaction has been stated, the contention that one of the signature in Ex.P.1 is an admitted signature and another one is not admitted by the defendant No.1 appears to be as afterthought. Therefore, the opinion of the First Appellate Court seems to be on the basis of documents as well as the oral testimony. 30. In that view of the matter, the view of the First Appellate Court that Ex.P.1 had been proved by the plaintiff by examining one of the attesting witnesses as PW.2 and the scribe as PW.3 has a sound reasoning. Thus, the approach of the First - 19 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 Appellate Court in appreciating the evidence on record cannot be found fault with. Obviously, the Trial Court had laid much thrust on the documents and their appearance rather than the testimony of the PW.2 and PW.3. 31. The judgment of the division Bench of this Court in the case of Sri.S.R. Suresh and another (supra) would not come to the aid of the appellant in any way. In the said judgment, it was held that in proving the signature of the executant on an agreement, the procedure which is known to law was not adopted and it was not sent for any forensic expert for examination. In the case on hand, the parties have not resorted to such procedure, but the testimony of PW.2 and PW.3 is not dented in any way by the cross-examination. Moreover, the said judgment was in the backdrop of the facts and circumstances available in the said case and as such, it cannot be held that it lays down any ratio. 32. In view of the aforesaid reasons, the substantial question of law framed by this Court is answered in the affirmative. Hence, the appeal is bereft of any merits. Hence, following: - 20 - HC-KAR NC: 2025:KHC-D:14735 RSA No. 5514 of 2011 ORDER i) The appeal is dismissed. ii) The judgment of the First Appellate Court in R.A.No.53/2010 is hereby confirmed. iii) No order as to cost. iv) All interlocutory applications stand disposed off. SD/- (C M JOSHI) JUDGE SSP CT:PA List No.: 1 Sl No.: 36