Case Note & Summary
The appellant, Chanabasanagouda, was the defendant in a suit for specific performance filed by the respondent, Umeshgouda (since deceased, represented by legal representatives). The suit was based on an alleged agreement of sale dated 20.05.1988, under which the defendant agreed to sell 2 acres 10 guntas of land in Shisuvinahalli village for Rs. 10,000. The plaintiff claimed to have paid Rs. 2,000 as advance and was ready to pay the balance. The defendant denied the agreement and contended that the plaintiff had taken forcible possession. The trial court decreed the suit, and the first appellate court confirmed the decree. In the second appeal, the High Court framed a substantial question of law regarding the proof of the agreement. The Court held that the plaintiff failed to examine any attesting witness to the agreement, which was required under Section 68 of the Evidence Act. The oral evidence of the plaintiff and his witnesses was unreliable and contradictory. The plaintiff also failed to prove his readiness and willingness to perform the contract. Consequently, the concurrent findings were set aside, and the appeal was allowed, dismissing the suit.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court in a second appeal can interfere only if there is a substantial question of law. Concurrent findings of fact based on appreciation of evidence cannot be disturbed unless perverse or based on no evidence. (Para 1)
B) Evidence Act - Proof of Documents - Attesting Witness - Section 68 Evidence Act - Where a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. Failure to examine an attesting witness renders the document not proved. (Paras 4-5)
C) Specific Relief Act - Specific Performance - Readiness and Willingness - Section 16(c) Specific Relief Act, 1963 - The plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract. Mere filing of a suit is not sufficient. (Para 6)
D) Contract Act - Agreement of Sale - Validity - Sections 54, 55 Transfer of Property Act, 1882 - An agreement of sale does not create any interest in immovable property. The burden is on the plaintiff to prove the agreement and its terms. (Para 3)
Issue of Consideration
Whether the judgment and decree of the courts below granting specific performance of an agreement of sale are perverse and liable to be set aside in a second appeal under Section 100 CPC.
Final Decision
The appeal is allowed. The judgment and decree dated 27.07.2007 passed in R.A.No.18/1992 by the Civil Judge (Sr.Dn.), Haveri, and the judgment and decree dated 02.04.1992 passed in O.S.No.298/1989 by the Civil Judge (Jr.Dn.), Savanur, are set aside. The suit of the plaintiff is dismissed. No order as to costs.
Law Points
- Specific performance
- burden of proof
- attesting witness
- Section 68 Evidence Act
- Section 16(c) Specific Relief Act
- readiness and willingness
- concurrent findings
- substantial question of law
Case Details
2014 LawText (KAR) (04) 6
Regular Second Appeal No. 2776/2007 (SP)
Sri. V. P. Kulkarni (for appellant), Sri. Sachin S. Magadum for Rajendra C. Desai (for respondents)
Chanabasanagouda S/o. Basanagouda Hiregoudar
Umeshgouda S/o. Mallanagouda Marigoudar (since deceased by LRs: Smt. Anasavva, Basanagouda, Gangadhar, Smt. Suma, Smt. Sudha)
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Nature of Litigation
Civil suit for specific performance of an agreement of sale of immovable property.
Remedy Sought
The plaintiff (respondent) sought specific performance of an agreement of sale dated 20.05.1988, directing the defendant (appellant) to execute a sale deed in respect of 2 acres 10 guntas of land in Shisuvinahalli village for a consideration of Rs. 10,000.
Filing Reason
The plaintiff alleged that the defendant agreed to sell the land and received Rs. 2,000 as advance, but later refused to execute the sale deed.
Previous Decisions
The trial court (Civil Judge (Jr.Dn.), Savanur) decreed the suit on 02.04.1992 in O.S.No.298/1989. The first appellate court (Civil Judge (Sr.Dn.), Haveri) dismissed the appeal (R.A.No.18/1992) on 27.07.2007, confirming the trial court's decree.
Issues
Whether the agreement of sale dated 20.05.1988 was duly proved in accordance with Section 68 of the Indian Evidence Act, 1872?
Whether the plaintiff proved his readiness and willingness to perform his part of the contract as required under Section 16(c) of the Specific Relief Act, 1963?
Submissions/Arguments
Appellant argued that the agreement of sale was not proved as no attesting witness was examined, and the oral evidence was unreliable. Also, the plaintiff failed to show readiness and willingness.
Respondent argued that the concurrent findings of fact should not be disturbed in second appeal, and the agreement was sufficiently proved through oral evidence.
Ratio Decidendi
In a suit for specific performance, the plaintiff must prove the agreement of sale by examining at least one attesting witness as required under Section 68 of the Evidence Act. Failure to do so renders the document not proved. Additionally, the plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract. Concurrent findings of fact can be interfered with in a second appeal if they are based on no evidence or are perverse.
Judgment Excerpts
Lone defendant Chanabasanagouda of an original Suit bearing O.S.No.298/1989 is before this Court challenging the judgment and decree passed against him for relief of specific performance.
The agreement of sale is said to have been attested by two witnesses. But none of them have been examined.
The plaintiff has not proved his readiness and willingness to perform his part of the contract.
Procedural History
The plaintiff filed O.S.No.298/1989 before the Civil Judge (Jr.Dn.), Savanur, which was decreed on 02.04.1992. The defendant appealed in R.A.No.18/1992 before the Civil Judge (Sr.Dn.), Haveri, which was dismissed on 27.07.2007. The defendant then filed the present second appeal under Section 100 CPC before the High Court of Karnataka, Dharwad Bench, which was allowed on 08.04.2014.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): 100
- Indian Evidence Act, 1872: 68
- Specific Relief Act, 1963: 16(c)
- Transfer of Property Act, 1882: 54, 55
