1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR SECOND APPEAL NO.1896/2023 (SP) BETWEEN: 1 . H.B.SHASHIKUMAR S/O LATE H.R. BASAPPA, AGED ABOUT 60 YEARS, AGRICULTURIST AND PRINCIPAL, SRI. SATHYA SAI ITI, R/O N.H.206, NIDHIGE AT POST, SHIVAMOGGA TALUK AND DISTRICT, SHIVAMOGGA. … APPELLANT (BY SRI. RAVI H.K., ADVOCATE) AND: MOHAMMED ADIL SINCE DEAD BY HIS LRS 1 . SMT. GULZAR BANU W/O LATE MOHAMMED ADIL AGED ABOUT 59 YEARS 2 . SMT. SHAMSHAD UNNISSA D/O LATE MOHAMMED ADIL AGED ABOUT 47 YEARS 3 . SMT. NISHAD PARVEEN D/O LATE MOHAMMED ADIL AGED ABOUT 45 YEARS R 2 4 . SMT. HASEENA BANU D/O LATE MOHAMMED ADIL AGED ABOUT 39 YEARS 5 . REHAMAN PASHA M., S/O LATE MOHAMMED ADIL AGED ABOUT 37 YEARS ALL ARE R/O PANCHAKALLAIAH STREET TARIKERE TOWN, TARIKERE TALUK CHIKKAMAGALURU DISTRICT-577228. … RESPONDENTS (BY SRI. G. LAKSHMEESH RAO, ADVOCATE FOR R1; SRI. R. VIJAYAKUMAR, ADVOCATE FOR R2 TO R5) THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.08.2023 PASSED IN R.A.NO.25/2020 ON THE FILE OF SENIOR CIVIL JUDGE AND PRINCIPAL, JMFC, TARIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.03.2020 PASSED IN O.S.NO.76/2013 ON THE FILE OF CIVIL JUDGE AND ADDITIONAL JMFC, TARIKERE. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.07.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 3 CORAM: HON'BLE MR JUSTICE H.P.SANDESH CAV JUDGMENT 1. Heard the learned counsel for the appellant and the learned counsel for the respondents. This second appeal is filed against the concurrent finding of granting of specific performance directing the appellant/defendant to execute the sale deed in respect of suit schedule property by receiving balance amount Rs.90,000/-. 2. The factual matrix of case of the plaintiff/respondent in O.S.No.76/2013 that defendant is the owner of the suit schedule property and he acquired the title to the schedule property under a family partition. The defendant intended to sell the suit schedule property to meet the family necessities and commitments and hence plaintiff agreed to purchase the suit schedule property for sale consideration of Rs.1,40,000/- and paid earnest money Rs.50,000/- on the date of agreement and balance amount 4 of Rs.90,000/- would be payable at the time of registration within 1 month from the date of durasth or after getting required survey sketch sale deed. It is contended that though the agreement stipulates the time as 3 months to perform the contract, the same commences from the date of obtaining survey sketch and time was not the essence of the contract. The defendant also agreed to receive lessor price if it is found that any lessor area after the survey. The defendant orally informed the plaintiff to get the property measured and hence, the plaintiff moved the application signed by the defendant on 05.10.2009. But, the defendant is making hurried attempts to get the property measured by some other person with an intention to sell the property to the different persons and hence he has issued the legal notice to the defendant on 13.09.2012 calling upon him to receive the balance amount. Inspite of service of notice, he gave untenable reply and hence he was forced to file a suit for the relief of specific performance. In response to the suit 5 summons, defendant appeared and filed written statement contending that he did not execute any sale agreement and he was in need of money and borrowed only Rs.25,000/- in January-2008 and he repaid the loan in the month of December-2008 and at the time of lending the amount, the defendant had given blank stamp papers with the signature in favour of plaintiff and the same was made use of as the sale agreement and hence, not entitled for the relief of specific performance. 3. 3. The Trial Court having considered the pleadings of plaintiff and defendant, framed the following: ISSUES 1) Whether the plaintiff proves that, on 07.08.2009, the defendant has executed a registered agreement of sale in respect of the suit schedule property by receiving part sale consideration as averred in para 4 of the plaint? 6 2) Whether the plaintiff proves that, he was and is always ready and willing to perform his part of contract? 3) Whether the defendant proves that, he had borrowed Rs.25,000/- from the plaintiff and for security purpose, the plaintiff has obtained signed blank stamp papers from him as averred in para 10 of the written statement? 4) Whether the defendant further proves that, the plaintiff has misused the signed blank stamp papers and has created the alleged agreement for sale as averred in the written statement? 5) Whether the plaintiff is entitled for the discretionary relief of specific performance of contract? 6) What order or decree? 4. The plaintiff in order to prove his case, got examined himself P.W.1 and got marked 6 documents as Ex.P.1 to Ex.P.6. On the other hand, defendant got himself 7 examined D.W.1 and produced 3 documents which are marked as Ex.D.1 to Ex.D.3. The Trial Court having considered both oral and documentary evidence, comes to the conclusion that there is a sale agreement and the very contention of the defendant that he had received only Rs.25,000/- was not proved and also not examined any of the witnesses and also comes to the conclusion that the plaintiff was always ready and willing to perform his part of contract and granted the relief for specific performance by answering Issue No.5 as affirmative and granted the relief as sought. 5. Being aggrieved by the said judgment of specific performance, R.A.No.25/2020 is filed before the Appellate Court and Appellate Court having considered the grounds urged in the appeal memo, formulated the following points for consideration: 1) Whether the trial court is justified in coming to the conclusion that the plaintiff 8 successfully established execution of suit agreement? 2) Whether the trial court is justified in holding that the plaintiff is ever ready and willing to perform his part of contract? 3) Whether the trial court is justified in decreeing the suit for specific performance? 4) Whether the Judgment and decree of the trial court needs interference by this court? 5) What order? 6. Having re-assessed both oral and documentary evidence available on record, answered the point Nos.1 to 3 as affirmative and comes to the conclusion that it doesn’t requires any interference and confirmed the judgment of the Trial Court. 7. Being aggrieved by the concurrent finding, the present R.S.A is filed before this Court. This Court having considered the grounds urged in the appeal memo, 9 admitted the second appeal and framed the following substantive question of law: 1) Whether the defendant proves that the first Appellate Court has committed an error in confirming the judgment without re-appreciating the evidence placed on record i.e., evidence of DW.1? 2) Whether the defendant proves that the judgment and decree passed by the first Appellate Court is not in conformity under Order 41 Rule 31 of CPC? 8. The counsel appearing for the appellant/defendant would vehemently contend that that the land allegedly agreed to sell the property to an extent of 2 acres and sale consideration is fixed as Rs.1,40,000/- and the alleged agreement of sale is dated 07.08.2009 and earnest money of Rs.50,000/- taken specific defence that it was only a hand loan transaction and he had taken only Rs.25,000/- and also contend that though he relies upon 10 document Ex.P.4 and the said document is created document and the signature available in Ex.P.4 not belongs to the defendant and also contend that Court can compare the signature. 9. The counsel also would vehemently contend that in terms of the said argument, sale deed ought to have been executed after obtaining the durasth sketch. The counsel would submits that notice was issued after 3 years. The counsel would contend that the agreement is concocted and the stamp paper was used for agreement is 1 year 7 months old and also the stamp paper purchased at Tarikere. The counsel would vehemently contend that the document Ex.P.4 clearly discloses that signature available on the document is a forged signature on the application. The counsel would contend that it is the specific case that the defendant got the property through partition and defendant not having exclusive right to execute the sale agreement. The counsel would vehemently contend that 11 though the Trial Court assigned the reasons for granting the relief of specific performance and the same is not considered in a proper perspective. The counsel also would vehemently contend that the First Appellate Court not discussed the evidence available on record when the First Appellate Court ought to have examined both oral and documentary evidence as well as factual aspects and question of law and the same is not done. 10. The counsel would contend that the Apex Court in the judgment reported in (2018) 1 Supreme Court Cases 604 in case of C.Venkata Swamy V/s H.N.Shivanna(Dead) by Legal representative and another held while invoking Order 41 Rule 31 it is the duty of the First Appellate Court to adopt proper mode for disposal of the appeal and it is settled principle of law that a right to file first appeal against decree under Section 96 of the Civil Procedure Code is a valuable legal right of litigation, jurisdiction of First Appellate Court while hearing 12 first appeal is very wide like that of Trial Court and it is open to appellant to attack all findings of fact or/and of law in first appeal and to appreciate entire evidence and arrive at its own independent conclusion. Similarly, powers of First Appellate Court while deciding first appeal are indeed well defined by various judicial pronouncements of Supreme Court and are, therefore, no more res integra. 11. The counsel would vehemently contend that First Appellate Court committed an error and it is an admitted fact that durasth work was not done and also no cause of action to file a suit and in the absence of any durasth work, question of filing the suit doesn’t arise. The counsel would vehemently contend that the Appellate Court committed an error in appreciation of evidence. 12. The counsel in support of his arguments, he relied upon the judgment reported in 2009 SCC Online KAR 616 in case of Susheelamma and Ors V/s and brought to notice of this Court the discussion made in the 13 judgment in paragraph No.21. If the plaintiff has approached the Court for grant of the specific performance, he has to approach the Court with clean hands then only he is entitled for the relief of specific performance and also held that when the plaintiff has not approached the Court with clean hands and has meddled with the document and also if it comes to the Court that documents are created and also though he contend that he was ready and willing to perform part of the contract, Court has to take note of conduct of the parties also and brought to notice of discussion made in paragraph No.22 with regard to the ready and willingness and so also brought to notice of this Court when the defence was taken that document was obtained as a security and the same is discussed in the paragraph No.23 and Court has to note of the conduct of the plaintiff as he has not approached the Court with clean hands. 14 13. The counsel in his argument would vehemently contend that with regard to ready and willingness also not properly appreciated the material on record though he claims that Ex.P.4 was given to Tahasildar in the year 2009 itself for getting the land surveyed by obtaining the signature of the defendant, but nothing is placed on record with regard to the ready and willingness is concerned. 14. The counsel also brought to notice of this Court the judgment reported in 2022 LiveLaw (SC) 588 in case of U.N.Krishnamurthy (Since deceased) thr. Lrs V/s A.M.Krishnamurthy and brought to notice of this Court paragraph Nos.34 and 35 wherein discussion was made there is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of specific performance and readiness is capacity to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff and also in paragraph No.35 it is held that First Appellate 15 Court is duty bound to examine whether there was continuous readiness and willingness on the part of the plaintiff to perform the contract and the same was discussed in the above read paragraphs in the judgment of K.S.Vidyanandam V/s Vairavan reported in (1997) 3 SCC 1, His Holiness Acharya Swami Ganesh Dassji V/s Sita Ram Thapar, Kalawati V/s Rakesh Kumar and Balraj Taneja V/s Sunil Madan and H.P.Pyarenjan V/s Dasappa. 15. The counsel also brought to notice of this Court the discussion made in paragraph No.18 regarding it is required to comply with the requirements of Order 41 Rule 31 of CPC and non-observance of this Court requirement leads to an infirmity in the judgment of the First Appellate Court. The counsel referring this discussion would contend that First Appellate Court not discussed in detail. The counsel also brought to notice of this Court paragraph No.46 wherein discussion was made with regard to settled 16 law that for relief of specific performance, plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of contract. 16. The counsel would vehemently contend that the Trial Court as well as the First Appellate Court not consider the evidence of the defendant and not discussed anything and that too particularly Appellate Court did not discuss anything about the evidence of D.W.1 and hence it requires interference and this Court has to answer substantive question of law as affirmative. 17. Per Contra, the counsel appearing for the respondents would vehemently contend that the Trial Court in detail had discussed case of the plaintiff and also the defendant and applied its judicious mind and passed the order. The counsel also brought to notice of this Court P.W.1 is principal and not an ordinary man and had the knowledge and categorically admits that while signing the document, he will go through the document and sign the 17 same. Though contend that Ex.P.4 signature is not belongs to him, but not sent the said document to hand writing expert since it is contended that the same is forged one. The counsel would vehemently contend that the Trial Court in detail discussed in paragraph Nos.16, 18, 21 and 23 with regard to limitation also. 18. The counsel would vehemently contend that Appellate Court did not consider the evidence and also not discussed anything and passed the order. The counsel in his argument would contend that no need to discuss extracting the evidence of the parties in the appeal, but the Court has to refer the same while passing the order. 19. The counsel in support of his argument, he relied upon the judgment reported in AIR 1967 Supreme Court 1124 in case of Girijanandini Devi and others V/s Bijendra Narain Choudary and Apex Court in paragraph No.12 held that when the Appellate Court agrees with view of Trial Court on evidence, it need not restate the effect of 18 evidence or reiterate the reasons given by Trial Court. The expression of general argument with reasons given by Court decision of which is under appeal would ordinarily suffice. But, only it requires application of judicious mind while appreciating both oral and documentary evidence. The counsel appearing for the respondent would contend that the said principle is also not disputed by the counsel appearing for the appellant and need not necessarily extract the evidence in detail. 20. Having heard the appellant’s counsel and also the counsel appearing for the respondents and also considering the substantive question of law framed by this Court, this Court has to re-analyze the material available on record. This Court while admitting the second appeal, framed the substantive question of law as whether the defendant proves that First Appellate Court has committed an error in confirming the judgment without re-appreciating the evidence placed on record that is evidence of D.W.1 and 19 also judgment and decree passed by the First Appellate Court is not in conformity under Order 41 Rule 31 of CPC and these two substantive questions of law were taken together for consideration since both are inter connected with regard to exercising powers by the Appellate Court as envisaged under Order 41 Rule 31 of CPC as well as re- appreciating the evidence on record. 21. Having considered the grounds which have been urged by both the counsels and also considering the material available on record, this Court has to examine whether the First Appellate Court committed an error in appreciating the evidence. It is the case of plaintiff that the defendant was in need of money in order to meet family necessity, he had executed agreement of sale as per Ex.P.1. It has to be noted that the sale agreement came into existence on 07.08.2009 and also dispute with regard to the signatures available on the document, though it is contended by the defendant that he did not execute the 20 sale agreement. But, his contention is that on the blank stamp paper, the plaintiff took the signature. 22. It is important to note that the specific contention of the defendant that he was in need of money he borrowed an amount of Rs.25,000/- in the month of January-2008. Having taken note of pleading of the parties, it is the case of the plaintiff that defendant agreed to sell the property on 07.08.2009 and the evidence of P.W.1 in the cross-examination is clear that he was having acquaintance with defendant from 7 to 8 years and also his case is that agreement came into existence in the house of the defendant and talks were held in his house and on very same day, discussion was made and at the time of the agreement, one Somanna was present and the said Somanna was not examined before the Court and ought to have examined the witness with regard to whether it was a loan transaction or sale transaction. But, Trial Court comes to the conclusion that defendant did not examine any 21 witnesses in respect of whether it was a loan transaction and fails to take note of the fact that burden is on the plaintiff to prove that it was a sale transaction and after he proves the same as sale transaction, then burden shifts on the defendant. But, an observation is made that defendant ought to have examined the witness and none of the witnesses have been examined. The very approach of the Trial Court is erroneous in coming to such a conclusion. 23. It is also important to note that when the said talks were held in the house of defendant at Shivamogga on the very same day, a stamp paper ought to have been purchased at Shivamogga but, the same was purchased at Tarikere and also on perusal of Ex.P.1, it is very clear that the stamp paper dated 18.01.2008, if transaction was taken place on Shivamogga on the very same day that is on 07.08.2009, what made the plaintiff to make use of the stamp paper dated 18.01.2008 and the same was purchased at Tarikere and the same has not been 22 considered by the Trial Court as well as the First Appellate Court. 24. It is also important to note that in the cross- examination, specific question was put to the plaintiff that he does money transaction. But, the plaintiff did not deny the same. But he admits that he does the same for small business of money lending. It is the specific case of the defendant that he does the money lending and hence he borrowed an amount of Rs.25,000/-. It is also important to note that when this admission was given by the defendant/plaintiff both Courts lost sight of discussing the same regarding money transaction is concerned. It is also the specific case of the defendant that he was in need of money in the month of January and he had approached the plaintiff and the stamp paper was purchased in the month of January 2008 which supports the case of the defendant and specific defence was also taken that he borrowed the money in the month of January. No doubt the counsel 23 appearing for the respondent brought to notice of this Court defendant is principal and also it is his case that signatures were taken on the blank stamp paper and Court cannot discard the evidence of defendant invariably by borrowing the money, they used to obtain the signature on the blank paper and at the same time, Court has to take note of there was no any cause of action to file the suit as contented by the appellant’s counsel. Having considered the Ex.P.1, it is very clear that one month time was fixed after obtaining the Durasth work i.e., survey sketch. But, admittedly P.W.1 categorically says that he did not obtain any durasth work. But, he contend that he only approached the Tahasildar after getting the signature of the defendant on 05.10.2009 and till filing of the suit that is 2012, durasth work was not done, almost for a period of 3 years and hence it is very clear in view of the clause mentioned in the agreement, filing of suit for the relief of the specific performance only 24 starts after obtaining the survey sketch and admittedly no such survey sketch was obtained. 25. 25. It is important to note that in paragraph No.7 of the plaint, the counsel appearing for the appellant brought to notice of this Court that the plaintiff with all intention of buying the schedule property made arrangements for getting property measured by spending huge sum of money and he made preparation of document for measurement but when such averment is made, but not obtained survey sketch, but only reason is given that defendant is making hurried attempts to get the property surveyed that is after 3 years of allegedly obtained the document on 05.10.2009 and having considered the signature available on Ex.P.1 as well as the acknowledgments available before the Court on Ex.P.5 and Ex.P.6 and also the signature available on Ex.P.4 and Ex.P.4 signature not appears as in Ex.P.1(b) and also as available in Ex.P.5 and Ex.P.6 and those signatures are also different and all these materials were not considered 25 by the Trial Court as well as the First Appellate Court and ought to have invoked Section 73 of Evidence Act. No doubt the Trial Court discussed with regard to the ready and willingness is concerned. But, when the document was obtained in the year 2009 itself for getting surveyed the land, till 2012 not obtained except making the payment of 50,000/-, not made any additional payment from 2009 to 2012 and also the evidence of D.W.1 is very clear that he had approached the plaintiff for an amount of Rs.25,000/-, but his contention cannot be accepted, once he contended that document is concocted, he admitted the signature, Ex.P.1(a) and Ex.P.1(b), but it is important to note that he has not taken any action for having obtained the signature on the blank paper, but the fact is that an amount of Rs.50,000/- was paid under document Ex.P.1 and though he contend that he made the payment of Rs.25,000/- in the month of December itself no document is placed on the record for having repaid the amount. 26 26. Now, the question remains before this Court whether principles laid down in the judgments referred supra, no dispute with regard to the principles laid down in the judgments which have been referred by the appellant’s counsel and judgment of Apex Court reported in (2018) 1 Supreme Court Cases 604 aptly applicable to the case on hand. It is the duty of the First Appellate Court to re- appreciate the material available on record like the original Court and also make independent assessment and the same is not done. The Appellate Court ought to have considered all the materials which have been considered by this Court while exercising the Order 41 Rule 31 of CPC. It is also important to note that in judgment 2022, the Apex Court discussed with regard to the granting of relief of specific performance and discussed with regard to the scope of appeal in paragraph Nos.34 and 35 of the judgment in paragraph No.12 while discussing the case laws on the subject matter referring the judgments of the Apex Court 27 and the same is applicable with regard to the exercising of powers of the Appellate Court. 27. The counsel also relied upon the judgment of this Court referred Supra in a case of Susheelamma case wherein this Court dealt with issue in paragraph Nos.21, 22 and 23 for approaching the Court with clean hands and readiness and willingness and also when the defence was taken as security document, the same is also applicable to the case on hand having considered the admission on the part of P.W.1 as well as the document or stamp paper used 1 year 7 months old document. If that sale transaction taken place on the very same day in the house of the defendant as admitted, the same goes against the defendant. 28. No doubt counsel appearing for the respondents relied upon the judgment reported in AIR 1967 Supreme Court 1124 and brought to notice of this Court discussion made in paragraph No.12 and scope of the Appellate Court 28 is also discussed, need not necessarily to restate the effect of evidence or re-iterate the reasons given by Trial Court and expression of general agreement with reasons given by Court decision of which is under appeal would ordinarily suffice and no doubt Appellate Court discussed the same but not extracted the evidence, but ought to have been exercised the power as a original Court and the same is settled law and the same is being a statutory appeal and both question of fact and question of law should be considered by the Appellate court and the same has not been done. This Court taken note of admission as well as the material available on record. The defendants took the contention that it is a money transaction but, though he contend that he repaid the amount in december 2008 and not substantiated the same and hence, the Defendant is liable to repay the amount which he had taken though he contend that he had taken Rs.25,000/- but to substantiate the same, none of the witnesses have been examined and 29 the same is not proved. Hence, he is liable to return the amount. No doubt this Court need not go into the same in a second appeal. But, when there is a factual error and error on law and material placed on record was not considered in a proper perspective by both the Trial Court and the Appellate Court, this Court can consider the same and the substantive question of law framed by this Court whether the Appellate Court has committed an error in confirming the judgment without re-appreciating the evidence placed on record i.e., evidence of D.W.1 as well as the evidence of P.W.1 and relevant admissions were not taken note of by both the Courts and Appellate Court also committed an error in not exercising the powers conferred under Order 41 Rule 31 of CPC. Hence, I answer both the substantive question of law as affirmative that Appellate Court committed an error in exercising power under Order 41 Rule 31 of CPC as well as considering the evidence available on record. 30 29. In view of the discussions made above, I pass the following: ORDER i) The Second Appeal is allowed. ii) The impugned judgment of the Trial Court and Appellate Court is set-aside. iii) The plaintiff is not entitled for the relief of specific performance. However, the appellant/defendant is directed to refund the amount of Rs.50,000/- with interest of 12% from the date of sale agreement that is 07.08.2009. Sd/- (H.P. SANDESH) JUDGE RHS