- 1 - HC-KAR NC: 2025:KHC:43593 RSA No. 928 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 928 OF 2024 (SP) BETWEEN: D S SURESH, S/O LATE SHAMANNA, AGED ABOUT 47 YEARS, R/AT NO. BYRAWESHWARA NILAYA, NEAR HONDA CITY SHOWROOM B NARAYANAPURA, DOORVANI NAGAR, BANGALORE-560 016. …APPELLANT (BY SRI. VIJAYKUMAR PRAKASH., ADVOCATE) AND: 1. N NARAYANASWAMY, S/O NANJAPPA, AGED ABOUT 65 YEARS, 2. N MAMATHA, D/O N NARAYANASWAMY, AGED ABOUT 40 YEARS, 3. N SWETHA D/O N NARAYANASWAMY, AGED ABOUT 36 YEARS, 4. N NAGENDRA RPASAD, S/O N NARAYANASWAMY, AGED ABOUT 34 YEARS, 5. N ASHWINI, D/O N NARAYANASWAMY, Digitally signed by PADMASHREE SHEKHAR DESAI Location: High Court Of Karnatka - 2 - HC-KAR NC: 2025:KHC:43593 RSA No. 928 of 2024 AGED ABOUT 31YEARS, RESPONDENT NO.1 TO 5 ARE R/AT NO.651, OPP. REDDY CHOULTRY, MARUTHI LAYOUT, MALUR TOWN, MALUR TALUK, KOLAR DISTRICT-563 030, ALSO RESIDING AT BYRNAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT-563 030. 6. SUBRAMANI, S/O LATE MUNISWAMY, AGED ABOUT 70 YEARS, R/AT NO.128/3, GURAPPA LINE, MOTANAPALAYA, INDIRANAGAR, BANGALORE-560 038. …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.03.2024 PASSED IN RA NO.55/2017 ON THE FILE OF PRL. DISTRICT AND SESSIONS JUDGE, KOLAR., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 2.03.2017 PASSED IN OS NO.150/2014 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MALUR. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH - 3 - HC-KAR NC: 2025:KHC:43593 RSA No. 928 of 2024 ORAL JUDGMENT This second appeal is filed against the concurrent finding of both courts below. 2. The factual matrix of case of plaintiff while seeking the relief of specific performance before the trial court that the sale agreement was executed on 07.12.2013. On the date of sale agreement, an amount of Rs.5,00,000/- was paid as advance amount as against the consideration of Rs.8,40,000 in respect of the suit schedule property. He was always ready and willing to perform his part of contract. The defendant appeared and filed the written statement, denying the very execution of contract of the sale agreement. Defendant No.6 subsequent purchaser made as party to the proceedings and he appeared and filed written statement claiming that he is a bona fide purchaser. 3. The trial Court allowed the parties to lead evidence and plaintiff who filed suit for specific performance examined himself as PW1 and very execution of document is denied, but not examined any of the attesting witnesses of sale agreement. However, he relies upon the document at Ex.P1 to Ex.P18. On - 4 - HC-KAR NC: 2025:KHC:43593 RSA No. 928 of 2024 the other hand, defendant No.1 was examined as DW1 and he also marked the document at Exs.D1 to D12 and particularly he relies upon the document at Ex.D5 certified copy of agreement of sale and would contend that a blank signature was taken on the date of the transaction of Ex.D5 and made use of the same and filed the suit for specific performance. 4. The trial court having considered the material available on record, particularly proving of document when the specific denial was made, except leading the evidence of PW1, even not examined the attesting witnesses, even for payment of advance money, no document is placed before the court. Hence, comes to the conclusion that the very execution of document of sale agreement is not true and even ready and willingness is also answered as negative. 5. Being aggrieved by the dismissal of the suit for specific performance, an appeal is filed before the appellate court. The appellate court also, having considered the grounds urged before the appellate court and also considering oral and documentary evidence, framed the points for consideration as below; - 5 - HC-KAR NC: 2025:KHC:43593 RSA No. 928 of 2024 1) Whether the plaintiff had discharged his onus of proving Ex.P.1 before the trial Court? 2) Whether defendants No.1 to 5 had proved that Ex.P.1 sale agreement was created by the plaintiff when Ex.D.5 was executed in favour of his brother D.S.Dhananjaya? 3) Whether the plaintiff has been ready and willing to perform his part of contract? 4) Whether the plaintiff has proved that the judgment and decree of the trial Court is perverse, capricious and arbitrary and therefore, it requires interference by this Court? 5) What order? The appellate court also on re-appreciation answered point Nos.1, 3 and 4 as negative and answered the point No.2 as affirmative in coming to the conclusion that defendants have proved that Ex.P1, sale agreement was created by the plaintiff when Ex.D5 was executed in favour of his brother D.S.Dhananjaya and dismissed the appeal. Hence, the second appeal is filed before this court. 6. The main contention of learned counsel appearing to the appellant would vehemently contend that court's below - 6 - HC-KAR NC: 2025:KHC:43593 RSA No. 928 of 2024 have failed to appreciate the document of sale at Ex.P1, which has been executed by the respondent Nos.2 and 3 who are his daughters and has signed as a witness and also counsel would vehemently contend that approach of both the trial court as well as the appellate court is highly improbable. He further took different defense with regard to the very execution of agreement. Hence, this Court has to frame a substantive question of law, Whether both courts were right in holding that appellant herein has failed to prove the agreement of sale? 7. Having heard the appellant counsel and also considering the oral and documentary evidence available on records, the defendants appeared and filed the written statement denying of the document and also put forth the case that one more document was in existence at Ex.D5, at that juncture documents are obtained. When such specific defense was taken, the plaintiff ought to have examined the witnesses of the sale agreement with regard to the present transaction is concerned, but not examined any of the witnesses and apart from that even for having paid the advance amount of Rs.5,00,000/- as against Rs.8,40,000/- also nothing is placed - 7 - HC-KAR NC: 2025:KHC:43593 RSA No. 928 of 2024 on record. In case of specific performance, while granting the relief also, there must be a cogent evidence before the court for granting of specific performance and with regard to the proving of the agreement also, even not examined any of the witnesses before the Trial Court. Such being the case, based on only self serving evidence the court cannot come to other conclusion and both the Trial Court, as well as appellate court considered material on record particularly with regard to the very execution of document and the same is not established. Hence, I do not find any ground to admit and frame any substantive question of law and this Court can frame the substantive question of law, if any perversity is found in the appreciation of the evidence of the witnesses before the trial Court, as well as the first appellate court and the same is not found. Also with regard to the substantive question of law is concerned also, when the very agreement is not proved, question of framing any substantive question of law doesn't arise and not a case for invoking Section 100 of CPC. - 8 - HC-KAR NC: 2025:KHC:43593 RSA No. 928 of 2024 In view of the discussions made above, I pass the following order. This regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE AKV List No.: 1 Sl No.: 47