Case Note & Summary
The appellant, Muktumhussain Mehaboob Sab Bapunavar, was the fourth defendant in a suit for specific performance of an agreement of sale filed by the respondents (plaintiffs) in O.S. No. 6/2013 before the Senior Civil Judge, Yellapur, sitting at Haliyal. The plaintiffs alleged that the defendants executed an agreement of sale dated 20.05.2007 in their favor for a total consideration of Rs. 1,20,000/-, and that they paid Rs. 1,00,000/- as advance and were ready and willing to perform their part. The defendants denied the agreement and contended that the plaintiffs were not ready and willing. The trial court decreed the suit on 10.03.2015, directing specific performance. The first appellate court (I Additional District and Sessions Judge, Uttara Kannada, Karwar, sitting at Sirsi) dismissed the appeal (R.A. No. 18/2015) on 21.11.2017, confirming the decree. The fourth defendant filed this second appeal under Section 100 of CPC. The High Court heard the appeal and reserved judgment on 11.07.2018, pronouncing it on 15.11.2018. The court found that the trial court and first appellate court had concurrently held that the agreement was proved by examining the attesting witness and that part performance was established. The High Court held that no substantial question of law arose, as the findings were based on evidence and not perverse. The appeal was dismissed, and the decree for specific performance was upheld.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The appellant-defendant challenged concurrent findings of fact in a suit for specific performance of agreement of sale. The High Court held that no substantial question of law arises as the findings are based on appreciation of evidence, including the testimony of the attesting witness and proof of part performance. The appeal was dismissed. (Paras 1-10) B) Contract Law - Specific Performance - Agreement of Sale - Part Performance - Indian Contract Act, 1872, Section 16 - The plaintiff-respondents sought specific performance of an agreement of sale dated 20.05.2007. The trial court decreed the suit, and the first appellate court confirmed it. The High Court upheld the concurrent findings, noting that the agreement was proved by the attesting witness and part performance was established. (Paras 2-10) C) Evidence Law - Attesting Witness - Proof of Execution - Indian Evidence Act, 1872, Section 68 - The attesting witness to the agreement of sale was examined and proved the execution. The High Court held that the concurrent findings of fact regarding the execution and part performance are binding in second appeal. (Paras 5-10)
Issue of Consideration
Whether the judgment and decree for specific performance of agreement of sale passed by the trial court and confirmed by the first appellate court suffer from any perversity or illegality warranting interference under Section 100 of CPC.
Final Decision
The second appeal is dismissed. The judgment and decree dated 21.11.2017 passed in R.A. No. 18/2015 by the I Additional District and Sessions Judge, Uttara Kannada, Karwar, sitting at Sirsi, confirming the judgment and decree dated 10.03.2015 passed in O.S. No. 6/2013 by the Senior Civil Judge, Yellapur, sitting at Haliyal, are confirmed.
Law Points
- Specific performance
- Agreement of sale
- Part performance
- Attesting witness
- Substantial question of law
- Section 100 CPC
- Concurrent findings of fact
