Case Note & Summary
The appellant, M/s. Jamnalal Bajaj Seva Trust, filed a Regular First Appeal under Section 96 of the CPC against the judgment and decree dated 30.04.2013 passed by the XL Additional City Civil and Sessions Judge, Bengaluru, in O.S. No. 1000/2005, dismissing the suit for specific performance. The appellant-plaintiff claimed that the original defendant Parameshwara (since deceased, represented by LRs) and defendant No.2 Narayana Rao Kurdekhar (since deceased, represented by LRs) had executed an agreement to sell dated 01.06.1990 in respect of suit schedule property, and that the plaintiff was ready and willing to perform its part. The trial court dismissed the suit holding that the plaintiff failed to prove the execution of the agreement, as no attesting witness or handwriting expert was examined, and the suit property was not properly identified. The first appellate court confirmed the findings. In the second appeal, the High Court held that the concurrent findings of fact were based on evidence and not perverse, and no substantial question of law arose. The appeal was dismissed with no order as to costs.
Headnote
A) Specific Performance - Agreement to Sell - Proof of Execution - Section 68 of the Indian Evidence Act, 1872 - The plaintiff must prove execution of the agreement by examining at least one attesting witness or by other evidence if attesting witnesses are dead or not available. In this case, the plaintiff failed to examine any attesting witness or a handwriting expert, and the trial court and first appellate court concurrently held that the agreement was not proved. Held, no interference warranted (Paras 1-10).
B) Civil Procedure - Second Appeal - Concurrent Findings of Fact - Section 100 of the Code of Civil Procedure, 1908 - The High Court in a second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The courts below found that the suit property was not identified and the agreement was not proved. Held, no substantial question of law arises (Paras 1-10).
Issue of Consideration
Whether the appellant-plaintiff is entitled to specific performance of the agreement to sell dated 01.06.1990, and whether the concurrent findings of fact by the courts below warrant interference under Section 100 CPC.
Final Decision
The appeal is dismissed. The judgment and decree dated 30.04.2013 passed by the XL Additional City Civil and Sessions Judge, Bengaluru, in O.S. No. 1000/2005, is confirmed. No order as to costs.
Law Points
- Specific performance
- burden of proof
- attesting witness
- Section 68 Evidence Act
- Section 73 Evidence Act
- concurrent findings of fact
- interference in second appeal
Case Details
2023 LawText (KAR) (09) 46
R.F.A NO. 656 OF 2013 (SP)
P.S. Dinesh Kumar, T.G. Shivashankare Gowda
Shri. Udaya Holla, Senior Advocate for Shri. P.N. Rajeswara, Advocate
M/s. Jamnalal Bajaj Seva Trust
Sri. Parameshwara (since dead by LRs) and others
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Nature of Litigation
Civil suit for specific performance of an agreement to sell immovable property.
Remedy Sought
Decree for specific performance of agreement to sell dated 01.06.1990 directing defendants to execute sale deed in favour of plaintiff.
Filing Reason
Plaintiff claimed defendants failed to execute sale deed despite receipt of part consideration.
Previous Decisions
Trial court dismissed suit; first appellate court confirmed dismissal.
Issues
Whether the agreement to sell dated 01.06.1990 was duly executed and proved as required under Section 68 of the Indian Evidence Act, 1872?
Whether the concurrent findings of fact by the courts below are perverse or based on no evidence, warranting interference under Section 100 CPC?
Submissions/Arguments
Appellant argued that the agreement was proved through oral evidence and that the courts below erred in not drawing adverse inference for non-production of the original agreement.
Respondents contended that the plaintiff failed to examine any attesting witness or handwriting expert, and the suit property was not identified, hence concurrent findings are correct.
Ratio Decidendi
In a suit for specific performance, the plaintiff must prove the execution of the agreement to sell by examining at least one attesting witness or by other evidence as per Section 68 of the Evidence Act. Concurrent findings of fact by the trial court and first appellate court that the agreement was not proved and the property was not identified are not perverse and do not give rise to a substantial question of law under Section 100 CPC.
Judgment Excerpts
The plaintiff has not examined any attesting witness to the agreement nor any handwriting expert. The trial court and the first appellate court have concurrently held that the agreement is not proved.
The suit property is not identified. The concurrent findings of fact are based on evidence and are not perverse. No substantial question of law arises.
Procedural History
The appellant-plaintiff filed O.S. No. 1000/2005 before the XL Additional City Civil and Sessions Judge, Bengaluru, seeking specific performance. The suit was dismissed on 30.04.2013. The plaintiff appealed to the High Court of Karnataka by way of R.F.A No. 656/2013, which was heard and dismissed on 13.09.2023.
Acts & Sections
- Indian Evidence Act, 1872: 68, 73
- Code of Civil Procedure, 1908: 100
