- 1 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1112 OF 2024 (SP) BETWEEN: 1. SYED ALI S/O SYED BUDEN SAB AGED ABOUT 72 YEARS AGRICULTURIST R/AT 1ST CROSS PENSION MOHALLA CHIKKAMAGALUR TOWN-577101. CURRENTLY R/AT 5TH CROSS OPPOSITE ROSE PALACE NEHRU NAGARA CHIKKAMAGALURU-577101. …APPELLANT (BY SRI. VINAYAKA B. VISHNU BATTA, ADVOCATE) AND: 1. RAZIABI W/O LATE DASTHAGIRI SAB AGED ABOUT 69 YEARS 2. SABJAN SAB S/O LATE DASTHAGIRI SAB AGED ABOUT 49 YEARS 3. BABJAN LATE DASTHAGIRI SAB AGED ABOUT 46 YEARS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 4. MR. AMEERJAN LATE DASTHAGIRI SAB AGED ABOUT 44 YEARS 5. MR. PYAREJAN LATE DASTHAGIRI SAB AGED ABOUT 39 YEARS RESPONDENTS NO.1 TO 5 ALL ARE AGRICULTURISTS R/AT BIRUR TOWN, KADUR TOWN-577101. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.03.2024 PASSED IN R.A.NO.18/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE, KADUR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.03.2017 PASSED IN O.S.NO.420/2010 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, KADUR. 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. This second appeal is filed against the concurrent finding. 2. The factual matrix of case of the plaintiff before the Trial Court that the defendants along with Dasthagir Sab have agreed to sell the undivided interest in the suit - 3 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 schedule property in favour of the plaintiff for a sale consideration of Rs.72,000/- and have entered into an agreement of sale on 30.07.2008 and they have received the entire sale consideration on the very same day. But contention of the plaintiff that defendants have failed to execute the registered sale deed as agreed by them and he was always ready and willing to perform his part of contract. It is the case of the defendants that the plaintiff has forged the LTM of deceased Dasthagir Sab and concocted alleged agreement of sale. It is the contention of the defendants that deceased Dasthagiri Sab had no exclusive right to sell the scheduled property in favour of the plaintiff and hence, not entitled for the relief of specific performance. The Trial Court also having considered the alternative prayer, framed the issue that whether plaintiff is entitled to refund of advance amount of Rs.90,000/-. 3. The Trial Court having considered both oral and documentary evidence, comes to the conclusion that Issue No.1 to 3 are not proved and Issue No.4 is proved that the - 4 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 signature of the Dasthagir Sab was forged and answered other issues as negative, particularly in paragraph No.12, discussed with regard to the thumb impression of the Dasthagir Sab and also taken note of in paragraph No.13, considering the evidence of P.W.2 and P.W.3, who are the signatories to Ex.P.3. The P.W.2 in his cross-examination deposed that Ex.P.3 was executed near Taluk office before one Prasanna Advocate, a person who is on deathbed cannot be expected to come to Taluk office from Birur. Further, the P.W.1 admitted that said Dasthagir Sab was suffering from paralysis attack. The P.W.3 in his cross- examination states that he doesn't know the date of execution of the agreement of sale. By scrutinizing the entire evidence of P.W.1 to P.W.3 and documentary evidence, it is a clear case that on 30.07.2008, Dasthagir Sab died and on the very same day, he had executed agreement of sale by putting a thumb impression is doubtful and hence, not accepted the case of the plaintiff. Even taken note of the matter was referred to the expert - 5 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 with regard to Ex.P.3 who had submitted his report. The expert of the truth lab submitted his report opining that the left thumb impression which is alleged to be the thumb impression of Dasthagir Sab on Ex.P.3 are superimposed impressions and hence, they could not be compare with admitted thumb impression marked in Ex.P.1. Therefore, as per the opinion of the expert, the questioned thumb impression was superimposed impression which are normally put by the pressure of thumb. Hence, it is probable that the said thumb impressions which are uncertain are taken on Ex.P.3 by force. Hence, the expert could not give his opinion on the said thumb impression. Therefore, plaintiff failed to prove the agreement. There is a serious doubt regarding execution of said agreement of sale by the deceased Dasthgir Sab and Ex.D.1 revealed that on the very same day of agreement of sale, Dasthagir Sab died. Under all these doubtful circumstances, specific performance of contract cannot be granted and the very - 6 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 document which is clouded with suspicious circumstances and hence, not granted the relief of specific performance. 4. Being aggrieved by the said judgment, an appeal is filed before the Appellate Court and Appellate Court also having considered the grounds which have been urged in the appeal memo, formulated the point and considered both oral and documentary evidence and particularly taken note of evidence of P.W.1 and P.W.2 in paragraph Nos.20 to 22 and also taken note of evidence of D.W.1 in paragraph No.23 and also taken note of the property stands in the joint name to the extent of 2 acres 19 guntas as per Ex.P.2-RTC extract and Ex.P.3 is an agreement of sale and particularly taken note of the opinion of the expert in paragraph No.25 and also reasoning was given in paragraph No.26 that it creates doubt with regard to the very agreement is concerned. Hence, dismissed the appeal confirming the judgment of the Trial Court. - 7 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 5. Being aggrieved by the same, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant that both the Courts have committed an error with regard the fact that not only the Dasthgir Sab was executed the agreement and others have also executed the agreement and document was also confronted and accepted the signature and no discussion was made with regard to the said admission is concerned. Both the Courts ought to have taken note of the same and without proper appreciation, suit is dismissed and Appellate Court also affirmed the same. Hence, this Court has to take note of Trial Court committed an error in answering Issue No.1, 2 and 3 as negative without proper consideration and Appellate Court also not justified in confirming the same. The First Appellate Court failed to re-appreciate the materials on record. Both the Courts below have failed to consider the evidence on record and particularly consider the case of the appellants that there was a thumb - 8 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 impression which is not a conclusive and non disputing the signature of the respondents on the said agreement, when such being the case, ought not to have dismissed the suit. 6. Having heard the learned counsel for the appellant and it is also settled law that in a case of seeking the relief of specific performance, Court must be fully satisfied for granting the relief of specific performance. In the case on hand, where a document of sale agreement is disputed and also when the plaintiff relies upon the evidence of P.W.2 and P.W.3 and their evidence is also not credible and the same is discussed by the Trial Court in O.S.No.420/2010 and considering the material on record, particularly in paragraph Nos.12 to 14 not only taken note of the evidence of P.W.1 and P.W.2 and it is not the evidence of witnesses that the Dasthagir Sab had signed the document in their presence but, only evidence is that the defendant No.2 took the same and got the signature. But, the fact is that on the very same day, Dasthagir Sab passed away on the date of alleged sale agreement and - 9 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 hence, Court comes to the conclusion that the very execution of document is clouded with suspicion and apart from that taken note of the document or Ex.P.3 was referred to the handwriting expert and handwriting expert given the report that the opinion cannot be given since the same cannot be compared with admitted signature in Ex.P.1 since the signatures found on Ex.P.3 are superimposed impressions and hence, not accepted the case of the plaintiff. The First Appellate Court having re- assessed the discussion made by the Trial Court in paragraph No.12, 13 and 14 and also taken note of expert opinion particularly in paragraph No.20 to 24 discussed the evidence of P.W.1 to PW3 as well as the D.W.1 and particularly the document of Ex.P.3 and Ex.P.1 which was compared by the handwriting expert, the same is discussed in paragraph Nos.25 and 26. The First Appellate Court also exercised powers under Order 41 Rule 31 of CPC. When such being the case, I do not find any ground to admit and frame substantive question of law when the - 10 - HC-KAR NC: 2025:KHC:54188 RSA No. 1112 of 2024 very agreement is doubtful, question of even refunding the amount also does not arise since the very document itself is doubtful and the same is clouded with suspicious circumstances and the very owner of the property died on the very same day of the sale agreement 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.: 67