- 1 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 11 OF 2020 (SP) BETWEEN: SMT. M.N KANAKALASHMI D/O LATE M. NADAKEERAPPA, W/O T DASAPPA, AGED ABOUT 50 YEARS, SECRETARY, DAS VIDHYA SAMASTHE, BELAGUMBA - 572 104. …APPELLANT (BY SRI. SUYOG HERELE E, ADVOCATE) AND: SMT. VISHALAKSHI RAJU W/O G.S. SIDDAVEERAPPA, AGED ABOUT 70 YEARS, R/AT GANDHINAGAR, TUMKURU - 572 101. …RESPONDENT THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 26.08.2019 PASSED IN RA NO.83/2013 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.07.2013 PASSED IN OS NO 25/1993 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND CJM., AT TUMAKURU. Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. Suyog Herale, learned counsel for the appellant. 2. Unsuccessful plaintiff is the applellant challenging the dismissal of the suit in O.S. No.25/1993 seeking to enforce the agreement to sell said to have been executed by the respondent on 06.03.1991 in respect of landed property which is described as under (hereinafter referred to as 'suit property'): 1. Remaining extent in Sy.No.117, measuring 2.00 acres (including kharab) 2. Land bearing Sy.No.92 measuring 1.20 acres (The kharab totally 3.00 acres excluding kharab) Both dry situated at Belagumba Vilalge, Tumkur Tq, having the following common boundary: - 3 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 East by : Land of Doddahutchappa West by : Sy.No.93, North by : Tumkur-Belagunba Road and 2.00 acres sold to plaintiff South by : Govt.Land. 3. Plaintiff challenged the validity of the said dismissal of the suit in appeal in R.A.No.83/2013. Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties in detail and on re-appreciation of the factual aspects on the point of law, dismissed the appeal of the plaintiff and confirmed the dismissal of the suit. 4. Being aggrieved by same, present second appeal is filed factual. Factual matrix which are utmost necessary for disposal of the president appeal are as under: Plaintiff filed a suit for specific performance of an agreement to sell in respect of the schedule property. It is his case that on 06.03.1991, defendant said to have executed an agreement to sell the suit property at - 4 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 Rs.20,000/- per acre and received sum of Rs.10,000/- as advance sale consideration. 5. It is also his case that pursuant to the agreement to sell, plaintiff was put in possession of the suit property as part performance of the contract but failed to execute the sale deed despite repeated demands and as such the legal notice came to be issued on 28.01.1993. 6. Despite the issuance of legal notice, there was no compliance and as such suit came to be filed seeking specific enforcement of the agreement to sell. 7. Pursuant to the suit, defendant entered appearance and filed detail written statement denying the very agreement itself. Defendant also denied the receipt of advanced sale consideration in sum of Rs.10,000/- and also denied the plaintiff being put into the possession of the suit property as part performance of the contract. - 5 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 8. Defendant specifically denied the endorsement dated 10.04.1991 on the sale agreement. Defendant took a specific contention that defendant purchased the land measuring 2 acres in Sy.No.117. At that juncture, plaintiff had obtained several signatures on several stamp papers and he concocted the suit agreement by utilizing said signed blank stamp papers and short for dismissal of suit. 9. Based on the rival contentions of the parties, learned Trial Judge raised necessary issues and after hearing the arguments on both sides, dismissed the suit of the plaintiff. 10. Being aggrieved by the same, plaintiff filed an appeal before the District Court in R.A.No.83/2013. 11. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and noting that the agreement is not established by examining the plaintiff and no proper reasons are assigned for non examination of plaintiff and PW1 being - 6 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 the power of attorney holder of the original plaintiff was not able to depose before the Court as to the genuineness and execution of the suit agreement, dismissed the appeal of the plaintiff. 12. Being further aggrieved by same, present appeal is filed on following grounds: The impugned Judgment and decree passed by the learned courts below is arbitrary, biased, perverse and is contrary to law. Hence, the same is liable to be set aside. The Courts below has not appreciated the facts and materials and the rival contention of the Appellants in a proper manner, the court below has not framed proper issues. The same has resulted in miscarriage of justice. The learned court below has erred in answering majority of the issues commonly without properly drawing the conclusions and dismissing the suit and Appeal. The Learned Courts below have erred in not appreciating the admissions made by the Defendant in her evidence stating the signatures in the agreement entered between the Appellant and Respondent are of herself and her husband. This itself goes to show that, the Respondent had made a promise of Specific performance to the Appellant. The Respondent in her cross examination admits that, since the price of the land have escalated now she is not willing or ready to perform on her part in executing the sale deed in favour of the Appellant. - 7 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 Hence, from the above admission it is very clear that, the Respondent with intention and freewill had entered in to the agreement of sale as per Ex.4 and has performed in part by receiving advance amount. Hence, she is liable to perform in full and register the sale deed in favour of the Appellant by accepting the consideration as agreed by them. At the time of executing sale agreement the Respondent has considered an advance amount of Rs. 10,000/- and delivered the possession of the property to the Appellant and at the time of execution of sale deed on 10.04.1991 towards an extent of 2 acres, a shara was endorsed stating as and when the Appellant approaches with full balance consideration the Remaining extent of scheduled property will be registered. The Appellant has made several efforts in requesting her to complete the process as agreed between them and to perform as agreed by them in executing the sale deed. However by giving frivolous reasons the Respondent is trying to escape from performing her part. The Defendant has not produced any documents to show the same were false and she has not sought for examination of the signatures for any expert opinion as alleged by her the same were concocted. The Respondent is only trying to escape from performing the contract. The Respondent has not examined any witness to defend her case. She has not even examined her son who were present at the time of entering in to the agreement. This itself clearly shows the Respondent has not got any case and she is entitled to perform in full as agreed by her. The Appellant is running an educational institution and doing yeomen service to the society in the suit schedule property since several years. The - 8 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 Appellant has constructed canteen and building providing facilities and amenities to the students. The trial Court has erred in holding that Ex.P4 cannot be exhibited in evidence as the same is suffering from want of registration by virtue of contents mentioned therein to the effect of alleged delivery of possession. The Learned Courts below have erred in holding that, the evidence of PW2 and Pw3 is not sufficient enough of passing of part of sale consideration on 10.04.1991 is concerned. The same has resulted in miscarriage of justice. The Learned Court below have erred in holding that the sale agreement EXp4 is also very much hit by not only section 80 of the Land Reforms Act and also that of section 23 of the Indian Contract Act. It is submitted that, mere slight contradiction on a part of the witnesses cannot be a fatal to the case of the Appellant. The Learned Courts below have failed to appreciate the same, which has resulted in miscarriage of justice. In view of the settled principles of law laid down by the Hon'ble Apex Court in several cases and on- going through the impugned judgement of the trail court, it is beyond doubt that the fist appellate court has not properly considered material on records and the Order passed by the learned Appellate court is without application of mind. In this view of the matter the judgement under Appeal is cryptic and none of the relevant aspects of the matter have been noticed except making vague affirmative observations to the trial court judgement, the first appellate Court has decided the Appeal in an unsatisfactory manner. The impugned judgement of the first appellate court falls short of consideration, without going to the merits of the claim of both the parties, the impugned judgment of the lower Appellate court may be set aside. - 9 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 13. In the appeal, following substantial questions of law are also raised : 1. Whether the Judgement and Decree of court below and lower appellate court are perverse and contrary to settled principles of law for wrong appreciation of facts and law? 2. Whether Courts below concurrently erred in rejecting the evidence of the Appellants herein? 3. Whether the lower courts below is justified dismissing the suit and first Appeal without appreciating the admissions made by the Respondents in examination? 4. Whether the First Appellate Court has assigned proper reasons in confirming or upholding the findings of the trial Court? 5. Whether the Learned Courts below have properly appreciated the materials and evidence placed on record by the Appellant? 14. Sri. Suyog Herale, learned counsel for the appellant contended that both the Courts have not properly appreciated the material evidence on record and wrongly dismissed the suit of the plaintiff holding that Ex.P4 - suit agreement having not been established resulting in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. - 10 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 15. He would further contend that it is the defendant has taken the contention that suit agreement is a concocted agreement having subscribed her signature on blank document was required to establish the same. 16. It is his further contention that examination of power of attorney holder who is none other than the husband of the plaintiff was sufficient compliance in establishing the case of the plaintiff and thus sought for admitting the appeal. 17. This Court bestowed its' best attention to the contentions urged on behalf of the appellant and substantial questions of law raised in the appeal. 18. On such consideration of the material on record, it is pertinent to note that even though husband of the plaintiff is examined which can be treated as a curable defect as a spouse is a competent witness under Section 120 of the Indian Evidence Act. Execution of the suit agreement need to be proved by placing cogent evidence - 11 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 on record. Mere deposing before the Court that defendant has signed on Ex.P4 would not be proof of proper execution of the document. 19. It is settled principles of law and requires no emphasis that admission of the signature by a party on a document would not be sufficient enough to establish the proof of proper execution of the document. 20. In the light of the above settled principle, the arguments put forward on behalf of the appellant that the defendant having admitted the signature and has taken a contention that at the time of sale of the property, in Sy.No.117, he had subscribed her signature on number of papers which has been used by the plaintiff to concoct suit agreement would not be sufficient enough to shift the burden about the genuineness of Ex.P4 on to the defendant. 21. Plaintiff being the propounder of Ex.P4, is required to establish that Ex.P4 is the genuine document. - 12 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 Further, it is highly unimaginable that PW1 who is the husband of the plaintiff could not have been treated as a witness in the Ex.P4 itself. 22. Further payment of sale consideration and advance sale consideration and letting the plaintiff in the suit property as part performance of the contract cannot be countenanced in law in the absence of any proper proof thereof. 23. Furthermore, since there was a bar to sell the suit property to a non agriculturist under provisions of Karnataka Land Reforms Act, the very agreement could not have been entered into by the parties. These aspects of the matter has been taken note of by the learned trial Judge while dismissing the suit of the plaintiff. 24. Before the First Appellate Court, the learned Judge re-appreciated the factual aspects and also the legal aspects and took into consideration the principles of law enunciated by the Hon'ble Apex Court in the case of MMS - 13 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 Investments, Madhurai Vs Veerappa reported in AIR 2000 SC 2663 and Savithramma vs. Doctor MP Soma Prasad reported in (2010) 4 KCCR held that when the suit agreement itself is not established, question of readiness and willingness could not have been taken into consideration. 25. Further, the learned Judge in the First Appellate Court also noted that there is an amendment to the Registration Act vide Section 17 (1)(A) of the registration Act with effect from 24.09.2001, whereby the party cannot take the advantage of the part performance of the contract unless the agreement to sell is registered. 26. Therefore, none of the contentions urged on behalf of the plaintiff merited for consideration of the appeal on merits before the First Appellate Court and therefore rightly rejected the appeal. 27. In the light of above factual and legal aspects, this Court is of the considered opinion that the substantial - 14 - HC-KAR NC: 2025:KHC:31362 RSA No. 11 of 2020 questions of law raised in the appeal memorandum referred supra do not merit for further consideration as such the appeal need to be dismissed without even admitting the same and notice to the other side. 28. Hence, the following Order: ORDER The Regular Second Appeal is dismissed. SD/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 28 CT: BHK