(Prayer: This RSA is filed under Section 100 of CPC against the judgment and decree dated 21.02.2006 passed in R.A..No.182/2000 on the file of the Prl. Civil Judge (Sr.Dn.) And CJM, Kolar, allowing the appeal and setting aside the judgment and decree dated 25.09.2000 passed in O.S.No.160/1995 on the file of the Addl. Civil judge (Jr.Dn.), Malur.
This RSA is filed under Section 100 of CPC against the judgment and decree dated 21.02.2006 passed in R.A.No.184/2000 on the file of the Prl. Civil Judge (Sr.Dn.) and CJM, Kolar, allowing the appeal and setting aside the judgment and decree dated 25.09.2000 passed in O.S.No.130/95 on the file of the Addl. Civil Judge (Jr.Dn.), Malur.)
1. Both these appeals have arisen out of a common judgment passed by the learned Prl. Civil Judge (Sr.Dn.) and CJM, Kolar, in R.A.Nos.182/2000 and 184/2000 vide common judgment dated 21.02.2006.
R.A.Nos.182/2000 and 184/2000 had arisen out of original suits bearing O.S.Nos.160/1995 and 130/1995 pending on the file of the Court of Addl. Civil Judge (Jr.Dn.), Malur.
2. O.S.No.160/1995 filed by this appellant- Shylesh Kumar, as plaintiff against the respondents herein for the relief of specific performance of the contract came to be decreed by the trial Court after contest. Suit filed by the respondents herein as plaintiff in O.S.No.130/1995 before the Court of Addl. Civil Judge (Jr.Dn.), Malur, for the relief of mandatory injunction came to be dismissed vide considered judgment. Against the said judgments and decrees, two separate appeals came to be filed under Section 96 of CPC before the Court of Prl. Civil Judge (Sr.Dn.) and CJM, at Kolar. Both the appeals have been allowed. The judgment and decree passed in O.S.No.160/1995 has been set aside and consequently suit is dismissed. Suit filed by the respondents herein as plaintiffs in O.S.No.130/1995 has been decreed directing the appellants herein to vacate and handover the vacant possession of the suit schedule property. It is these divergent judgments which are called in question on various grounds as set out in the appeals filed under Section 100 before this Court.
3. Respondents herein will be called as plaintiffs since their suit filed in O.S.No.130/1995 for the relief of mandatory injunction was earlier to the suit filed by the plaintiffs in O.S.No.160/1995. Appellants will be referred to as defendants.
4. Several grounds have been urged in the separate appeal memorandum filed under Section 100 CPC. During the pendency of the appeal in RSA No.1328/2006, an application has been filed under Order 41 Rule 27 of CPC dated 11.09.20014 to produce the photographs of the schedule property as additional evidence. The same is supported by an affidavit sworn to by the first appellant Shylesh Kumar.
5. The learned Counsel for the plaintiffs has vehemently opposed the said application orally contending that the application is not maintainable either in law or on facts, more particularly, when the events are subsequent to the disposal of the regular appeals by the learned First Appellate Judge. He has argued that even if it is accepted that the defendants have put up temporary structures for the use of children, the same cannot have any significance in the light of the main suit filed by the plaintiffs being allowed and the relief of specific performance sought for by the defendants being rejected.
6. Facts leadings to the filing of the present suits are as follows:
Land in Sy.No.77 of Malur Village, Malur taluk measures in all 5.09 acres. The land in question originally belonged to one M.A.Rajagopal, the deceased husband of the plaintiff-Smt.Radhamma. Out of the said extent of 5.09 acres, 8 guntas of land has been sold in favour of V.K.Srinivasamurthy, second defendant in O.S.No.130/1995 who is the father of the first defendant-Shylesh Kumar, through a registered sale deed dated 26.02.1992 for a sum of Rs.20,000/-. M.A.Rajagopal was stated to be in lawful possession of the remaining 5.01 acres of land as the absolute owner till his death and later on, plaintiffs being his legal representatives succeeded to the land measuring 5.01 acres. It is the case of the plaintiffs, as set out in the plaint filed in O.S.No.130/1995, the defendants chose to encroach a portion of land in Sy.No.77 by erecting stone slabs illegally with the help of their henchmen. Since they were trying to erect some more stone slabs, she had to file a suit for mandatory requesting the Court to direct the defendants to remove 32 stone slabs already erected by the defendants and to issue an order of injunction restraining the defendants from interfering with peaceful possession and enjoyment of the property. The said suit was filed on 08.02.1995.
7. Defendants appeared before the Trial Court and filed detailed written statement. According to the defendants, they are in lawful possession of 12 guntas of land to the North of 8 guntas of land purchased from M.A.Rajagopal in the year 1992 and that they have been in possession of the same through an oral agreement. According to them, the total consideration was agreed for Rs.30,000/- and a sum of Rs.10,000/- was paid through cheque and another Rs.20,000/- was paid through another cheque.
8. According to the defendants, Rajagopal died just few days after executing a registered sale deed in respect of 8 guntas and his son Mukundakumarji, the second defendant in the another suit bearing O.S.No.160/1995 went on postponing to execute a regular sale deed on one pretext or the other. According to the defendants, there was cordiality between Srinivasamurthy and Rajagopal and that in view of the trust that Srinivasamurthy had in Rajagopal, he did not insist for executing any written agreement of sale.
9. Defendants are stated to be in possession of 12 guntas of land under part performance and that their possession is lawful one. Suit of the plaintiffs is stated to be false and fictitious. The said written statement was filed on 13.02.1995. They had requested the Court to dismiss the suit.
10. On the basis of the above pleadings, following issues came to be framed on 17.08.1998 in O.S.No.130/1995 :
1. Whether plaintiffs prove that they are in possession of suit schedule property to an extent of 5.01 acres?
2. Whether plaintiffs prove that defendant encroached plaintiff's land to an extent of 0.12 guntas illegally?
3. Whether defendant proves that plaintiff's husband was agreed to sell 12 guntas in addition to 0.08 guntas at the time sale deed dated 26-2-92 and received Rs.20,000/- as advance to sell remaining 0.12 guntas?
4. Whether defendant proves that plaintiff's husband has handed over the 0.8 guntas and also 12 guntas on 26-2-92 since then he is in possession of the same?
5. Whether plaintiff is entitled for Mandatory injunction?
6. What order or decree?
11. After the receipt of summons in O.S.No.130/1995 and after filing written statement on 13.02.1995, first defendant of original suit bearing O.S.No.130/1995, Shylesh Kumar the first appellant in these appeals chose to file a suit in O.S.No.160/1995 for the relief of specific performance of contract against Radhamma-the plaintiff in O.S.No.130/1995 and her son Mukundakumarji, in respect of 12 guntas of land.
12. The contents of the written statement filed in the original suit bearing O.S.No.130/1995 are reiterated in the plaint filed in O.S.No.160/1995. It is averred that 8 guntas of land has been purchased from M.A.Rajagopal on 26.2.1992 through a registered sale deed by paying a total consideration of Rs.20,000/- on the very same day in the presence of the witnesses who have affixed their signature to the sale deed. It is averred that it was orally agreed by M.A.Rajagopal to sell 12 guntas of land abutting 8 guntas of land already sold by him, at the rate of Rs.2,500/- per gunta in favour of Srinivasamurthy and at his instance, a sum of Rs.20,000/- was paid on 19.02.1992 by Srinivasamurthy, through a cheque and remaining balance of Rs.10,000/- was paid on 03.10.1992 through a cheque and the said cheques had been drawn on Corporation Bank, Bangalore Branch. These cheques were drawn in favour of Mukundakumarji, at the instructions of M.A.Rajagopal. Pursuant to the said oral contract, Shylesh Kumar, is stated to have been put in possession of 12 guntas.
13. It is further averred that the defendants had agreed to execute a regular sale deed whenever demanded by Shylesh Kumar, since Rajagopal was too old to come and execute a sale deed. It is further averred that a sum of Rs.30,000/- was received by Mukundakumarji, at the instance of Rajagopal.
14. It is averred that since he was put in possession of 12 guntas of land, he had no occasion to suspect the bonafides of the wife and son of Rajagopal and later on, they turned hostile and the hostility went to such an extent that they even chose to file a suit for mandatory injunction in O.S.No.130/1995. That is stated to be the cause of action for filing the suit for specific performance.
15. On 28.01.1995 first appellant-Shylesh Kumar's father Srinivasamurthy, is stated to have sent a letter to defendant No.2-Mukundakumarji, through his messenger and defendant No.2 is stated to have assured that he will not go back on his words and had requested for sometime to convince his mother to do the needful. The appellant-Shylesh Kumar is stated to be ready and willing to perform his part of the contract and to bear registration and stamp duty.
16. On 15.02.1995 Shylesh Kumar's father sent a telegram to the defendants to appear before the Sub- Registrar, Malur, on 16.02.1995 to execute a regular sale deed. Since they did not come and comply with his demand, he was forced to file a regular suit for specific performance on the next day i.e., on 17.02.1995.
17. Defendants in O.S.No.160/1995 have filed a detailed written statement denying all the material averments in regard to the alleged oral agreement of sale relating to 12 guntas of land and receipt of Rs.30,000/- as consideration towards the same. They have emphatically denied the oral agreement and the receipt of the consideration. According to them, a sum of Rs.20,000/ issued through a cheque was in regard to the sale of 8 guntas of land vide registered sale deed. It is further stated that first defendant-Shylesh Kumar and Mukundakumarji and his father i.e., Rajagopal were in cordial terms and Shylesh Kumar's father used to borrow loans from Mukundakumarji on number of occasions and used to repay the same through cash and also by cheques sometimes. Amount of Rs.10,000/- was received through cheque in the month of July and it was a postdated cheque drawn on Corporation Bank which was encashed on 03.10.1992.
18. The alleged story of oral sale is stated to be a conconcted one. According to him, Shylesh Kumar, has illegally put up stones slabs and therefore, the plaintiffs had to file a suit for the relief of mandatory injunction. With these pleadings, they had requested for dismissal of the suit.
19. Following issues came to be framed in O.S.No.160/1995 respectively:
1. Whether the plaintiff proves that there is a oral transaction taken place in between father of the plaintiff and defendants regarding selling of 12 guntas of land in suit Sy.No.?
2. Whether the plaintiff proves that as per the oral transaction defendants have received the consideration amount of Rs.30,000/- and put the plaintiff in possession of 12 guntas in addition to 8 guntas and plaintiff is in possession of the same?
3. Whether the plaintiff proves that inspite of receiving full consideration amount defendants are avoiding to execute the sale deed?
4. Whether defendants prove that defendants father and plaintiff's father were in good terms and they used to borrow amount each other, accordingly Rs.10,000/- was received by the plaintiff from the 2nd defendant for the repayment plaintiff issued post dated cheque for Rs.10,000/-?
5. Whether plaintiff is entitled for the relief as prayed ?
6. What order or decree?
20. Radhamma the plaintiff in O.S.No.130/1995 is examined as PW1, M.R.Govindaraju and Mukundakumarji, have been examined as PWs.2 and 3. RTC extract is marked as Ex.P1. First defendant Shylesh Kumar alone is examined as DW1 and has got marked 7 exhibits and ultimately issues 3 and 4 came to be answered in the affirmative, issues nos.1 and 2 in the negative and has answered issue No.5 as plaintiff is not entitled for the relief as prayed. Consequently relief of mandatory injunction came to be rejected by dismissing the suit vide judgment dated 25.09.2000.
21. Plaintiff Shylesh Kumar is examined as PW1 in O.S.No.160/1995. Two exhibits have been got marked. Defendants have been examined as DWs.1 and 2 respectively. Ultimately issues 1 to 3 came to be answered in the affirmative, issue No.4 in the negative. Ultimately suit came to be decreed holding that plaintiff was entitled for specific performance of contract vide judgment dated 25.09.2000.
22. Against the said judgments separate regular appeals came to be filed before the Court of Prl. Civil Judge (Sr.Dn.) and CJM at Kolar. Both the appeals have been allowed and suit filed for the relief of specific performance has been dismissed. Suit for the relief of mandatory injunction has been decreed directing the appellants herein to handover the vacant possession of the suit schedule property by removing the stone slabs. It is these judgments which are called in question on various grounds as set out in the appeal memo filed under Section 100 CPC.
23. On 25.09.2007 this Court has framed the following common substantial question of law:
"Whether the Lower Appellate Court is justified in reversing the Judgment and Decree of the Trial Court and decreeing the suit?"
24. Learned Counsel for the appellants has submitted his arguments at length. Heard the learned Counsel for the respondents. He has also submitted his arguments at length.
25. It is argued before this Court by the learned Counsel for the appellants that in a civil case, evidence will have to be assessed on the touchstone of intrinsic probabilities and that the First Appellate Court has not properly analysed the evidence. It is argued that the scope of Section 100 CPC in a regular second appeal is not limited but it has large dimension. It is argued that High Court can interfere in second appeal, when finding of the First Appellate Court is not properly supported by evidence and that High Court cannot be precluded from reversing the judgment and decree of the lower appellate court, if there is perversity in the decision due to misappreciation of evidence. To this effect decision reported in 2014 SAR (Civil) 937 in the case of Easwari Vs. Parvathi and Ors has been relied upon.
26. It is further argued that the First Appellate Court could not have granted the relief of possession without prayer to that effect made by the respondents therein in their suit, more particularly, when the suit was only for the relief of mandatory injunction. In this regard, decision reported in 1974 ILR KAR 64 in the case of Pandiranath Vs. Ramachandra And Others is relied upon.
27. It is further argued that plaintiffs cannot base new cause of action on plea of defendants, unless he amends the plaint or files separate proceedings. Decision reported in (1991) 1 SCC 441 in the case of Om Prakash And Others Vs. Ram Kumar And Others is relied upon to contend that unless a plaint is amended seeking the relief of possession, the trial Court could not have granted the same.
28. Per contra the learned counsel Sri.Suresh S Lakre representing plaintiffs i.e., Mukundkumarji has vehemently argued that the oral agreement relied upon by Shylesh Kumar is not proved and that the factum of readiness ad willingness which is an important aspect in a suit filed for specific performance is not proved. It is argued that even if the defendants have any weakness in their case, the same cannot be taken advantage by the plaintiffs unless initial burden cast upon the plaintiffs is effectively proved. It is argued that the First Appellate Court has reassessed the entire evidence in right perspective assessing the same on the touch stone of intrinsic probabilities. It is argued that the First Appellate Court has assigned valid and cogent reasons to set aside the suit filed for relief of specific performance and allow the suit filed for relief of mandatory injunction. It is argued that as per Order 7 Rule 7 of CPC, Civil Court has got powers to mould relief and relief granted by the Trial Court in favour of plaintiffs in O.S.130/1995 is perfectly valid more particularly in the light of dismissal of the main suit filed for relief of specific performance. It is argued that no such substantial question of law arises for consideration and thus the judgments of the First Appellate Court has to be upheld.
29. The common substantial question of law is framed in respect of both these appeals. As rightly pointed out by the learned counsel Sri.Jagadeesh Mundargi, the evidence will have to be assessed on the touch stone of intrinsic probabilities and is not expected to be proved beyond reasonable doubt as is expected in criminal cases. There is no second opinion of the reiteration of the facts in the case of Eshwarapppa and others v. Parwatawwa and another reported in HCR 2014 Kant.649.
30. In the case of S.R.Balakrishnan and another v. Yakoob and Others reported in AIR 2001 KERALA 215, It is specifically reiterated that testimony of the interested witnesses in support of oral agreement cannot be relied upon. Convincing evidence must be placed on record to establish the terms of the oral agreement. In the present case, Shylesh Kumar, plaintiff in O.S.160/2005 alone has been examined as PW-1. In the plaint, the date of entering into oral agreement relating to property of 12 gunats of land as described in the schedule appended to plaint O.S.160/2005 is not forthcoming. What is averred in the plaint filed in O.S.160/2005 is that 5.09 acres of land absolutely belonged to M.A.Ragagopal, husband of defendant No.1 and father of defendant No.2 and out of 5.09 acres 20 guntas was negotiated for sale at Rs.2,500/- per gunta. Accordingly, 8 guntas of land was conveyed under registered sale deed dated 22.6.1992 and entire consideration of Rs.20,000/- was paid. It is further averred that present dispute relates to 12 guntas of land adjoining 8 guntas of land and 12 guntas and plaintiffs were put in possession as part performance of oral contract. To claim benefit of part performance, there must be a written agreement, but no written agreement is forthcoming. Exact date on which oral agreement entered was into in respect of 12 guntas is not forthcoming in the plaint. There is only reference of 8 guntas of land being purchased under sale deed dated 26.2.1992.
31. Admittedly a sum of Rs.20,000/- is stated to have been paid through cheque favouring Mukundakumarji on 19.2.1992 as partial consideration and remaining consideration of Rs.10,000/- was paid on 3.10.1992 through another cheque and both of these cheques were drawn on Corporation Bank, Bangalore. As already discussed, plaint is silent as to the date on which the oral agreement was entered into. If sale deed relating to 8 guntas of land in same survey number could come into existence on 26.2.1992, it is ununderstandable as to how Rs.20,000/- was paid on 19.2.1992 i.e., a week earlier to 26.2.1992 i.e., the date of sale deed.
32. Admittedly, Rajagopal was the original owner of the entire extent of land. After the agreement was entered with Rajagopal, it is ununderstandable as to how cheque was drawn in the name of Mukundakumarji i.e, defendant No.2 in O.S.160/1995. This aspect has been specifically taken into consideration by the First Appellate Court while reassessing the evidence and same cannot be found fault with. Apart from this, the learned Judge of the First Appellate Court has come to the conclusion that if really 12 guntas of land had been handed over pursuant to oral agreement, it would have found a place as one of the boundaries in the sale deed dated 26.2.1992 marked as Ex.D-6 in O.S.130/1995. In the boundaries mentioned in Ex.D-6 relating to 8 guntas of land sale deed in favour of Shylesh Kumar, Northern boundary would have been shown as 12 guntas in possession of Shylesh Kumar, but the Northern boundary in Ex.D-6 is shown as remaining land in Sy.No.77. In plaint pertaining to O.S. 160/1995, Southern boundary intended to be sold in favour of Shylesh Kumar is shown as 8 guntas of land with school building. This aspect of the matter has been considered by the First Appellate Court.
33. As already discussed, the evidence in civil cases has to be assessed on broad preponderance of probabilities. If really proposed sale of 12 guntas of land was probable, Southern boundary in O.S.160/1995 would have been shown as 12 guntas of land of the plaintiff. First Appellate Court has come to the conclusion that the Trial Court has ignored all these important facts while assessing the evidence.
34. The Trial Court has considered Ex.D-7 filed in O.S.130/1995, the letter dated 28.1.1195 addressed to Mukundakumarji by Srinivas Murthy, father of Shylesh Kumar. Mukundakumarji has replied that letter dated 28.1.1995 stated to have been addressed by Srinivas Murthy. It reads as follows:
"I can't forget the help you have done for us. You are the best person to decide the matter judiciously on my part. I request you to restrain your mother from using the profane and very very bad language. Please solve the matter once and for all.
I am losing the opportunity of meeting you personally because one of my in-laws is dead.
Kindly excuse me.
Thanking you, Yours affectionately Sd/-
V.K.Srinivas Murthy"
The reply sent from Mukundakumarji reads as follows:
"Respected Sir, I request you to clear the position in front of the temple by removing the stones and other things. I assure you that I will not go back on my words. But give me some time to convince my mother. Rest in person. Meet on 5th Feb at Bangalore. We hope for better future.
Sd/-"
35. This letter marked at Ex.D-7 dated 28.1.1995 does not even remotely suggest that letter had been written by Srinivas Murthy in connection with proposed oral agreement to sell 12 guntas of land in favour of his son and further discussion required in this regard. On the other hand, there is request by Mukundakumarji to Srinivas Murthy to remove stone slabs and other things. If this reference is taken, it can be definitely said that stone slabs have been fixed around 12 guntas of land and request was made to remove the same. This would probabalise that Shylesh Kumar had made an attempt to take possession by putting stone slabs.
36. As argued by Sri.Suresh S Lokre, learned counsel for the plaintiffs, Srinivas Murthy is stated to have entered into oral agreement with Rajagopal. Srinivas Murthy is not at all examined. Non- examination of any material witnesses gives rise to drawn adverse inference under Section 114(g) of Evidence Act against the plaintiff seeking equitable relief of specific performance. The author of the letter dated 28.1.1995 would have been the best person to explain the context of writing the letter dated 28.1.1995 and reply given thereby. It is in this regard, the decision of Balakrishna's case reported in AIR 2001 KERALA 215 assumes greater importance more particularly in the light of the fact that only interested witness Shylesh alone has been examined in respect of oral agreement. Therefore, the First Appellate Court has not attached much importance to his evidence.
37. What is argued before this Court by the learned Counsel representing Shylesh Kumar plaintiff in O.S.160/1995, the High Court has got powers to interfere with the judgment of the First Appellate Court if the said judgment appears to be perverse. Perversity or illegality can be interfered provided the material evidence placed on record is either ignored or misinterpreted.
38. Sri.Jagadeesh Mundargi, learned counsel has relied upon the judgment in the case of Easwari v. Parvathi and Ors. reported in 2014 SAR (Civil) 937 contending that if there is perversity or illegality in the decision of the First Appellate Court due to misappreciation of evidence, it is a good ground to interfere with the judgment. It is also true that the First Appellate Court, while reversing a considered judgment, has come to close quarters and assign its own reasons as to where the Trial Court has gone wrong. In the present case, the First Appellate Court has noticed some important facts ignored by the Trial Court.
39. What should be the approach of Court dealing with an oral agreement has been well dealt at length by the Hon'ble Apex Court in the case of Ouseph Varghese v. Joseph Aley and Others reported in 1992 (2) SCC 539. It has specifically held that burden of proving the oral agreement in a suit filed for specific performance is always heavy and it has to be satisfactorily proved. Plea of readiness and willingness must not only be satisfactorily pleaded but also satisfactorily proved by placing acceptable evidence. Readiness means financial capacity of the person intending to purchase the property right from the date of oral agreement upto the date of obtaining sale deed. Willingness is the eagerness to have the sale deed. Though both of these aspects are different, these aspects will have to be satisfactorily proved.
40. Shylesh Kumar who is examined as DW-1 in O.S.130/1995 specifically held that no notice was got issued prior to filing of suit. Admittedly, he chose to file a suit for specific performance only after suit was filed for mandatory injunction against him. He has been examined as PW-1 in the suit O.S.160/1995.
41. It is to be seen as to whether Shylesh Kumar and his father Srinivas Murthy had sufficient amount either on the date of disposal of the land or on the date of alleged oral agreement or subsequently. In page - 5 of his cross examination done on 2.3.2000, Mr.Shylesh has specifically deposed that because of financial difficulty 12 guntas of land could not be purchased on the date on which 8 guntas of land was purchased from Rajagopal. If he had no sufficient financial capacity on 26.2.1992 to purchase 12 guntas of land, reasonable inference that could be drawn is that he or his father had no capacity to pay the consideration. Aspect of readiness has not been effectively proved. If the defendants went on postponing the execution of the regular sale deed on one pretext or the other even after receiving the balance consideration of Rs.10,000/- in October 1992, it is not made known as to why demand was not made to execute the regular sale deed within a reasonable time.
42. What is argued before this Court is that defendants namely Radhamma and his son have not been able to prove the defence taken up by them in the suit filed for relief of specific performance. It is argued that defendants have failed to prove the plea of specific performance. Srinivas Murthy had availed loan of Rs.30,000/- and issued two cheques for Rs.20,000/- and Rs.10,000/- to repay the same.
43. Admittedly, suit filed for specific performance is the main suit and unless plaintiff on whom initial burden of proving agreement is effectively discharged, onus does not shift on the other side as per Sections 101 and 102 of Evidence Act. Weaknesses if any on the advisory cannot be taken advantage.
44. As per the facts in the case of Ouseph Varghese v. Joseph Aley and Others reported in 1992 (2) SCC 539, oral testimony adduced in respect of oral agreement was interested one. According to Hon'ble Apex Court the finding of the Trial Court that the plaintiff had failed to prove the terms of the agreement alone should have been sufficient to non-suit the plaintiff. In the present case, Shylesh alone is examined and his father is not examined. The date of oral agreement is neither pleaded nor proved. The terms of the oral contract with reference to time within which it was sought to be executed and time within which balance amount was to be paid are not forthcoming.
45. Even in cases of written agreements of sale, many a times relief of specific performance will not be granted even if agreement is proved. Whoever seeks equitable relief of specific performance, should come to the Court with clean hands that too within a reasonable time.
46. Admittedly, suit came to be filed almost 3 years after the alleged agreement of sale came into being. In a suit for specific performance, it is incumbent on the plaintiff not only to set out agreement on the basis of which he/she sues in all its details but also must plead that he/she has applied to the defendants specifically to perform agreement pleaded by him or her and that the defendant has not done so.
47. The First Appellate Court, which is the final Court of facts under Order 41 Rule 31 (a) of CPC, has framed proper points for consideration relating to both suits as found in paragraph 10 and they are as follows:
1. Whether the Shyleshkumar has established oral agreement of sale pertaining to 12 guntas of land alleged by him?
2. Whether the Smt. Radhamma and Mukundakumar have established lawful possession over suit property and also illegal putting up of stone slabs on disputed 12 guntas of land by Shyleshkumar and therefore the same are liable to be removed by mandatory injunction?
3. Whether the judgments and decrees of Trial Court are illegal and not based upon material on record?
4. What order?
48. It has discussed the entire evidence placed on record and reassessed the entire evidence on the touch stone of intrinsic probabilities. It is to be noticed that it is not Shylesh Kumar who paid consideration but it his father Srinivas Murthy, but the registered sale deed is in the favour of Shylesh. When the agreement itself is dated 26.2.1992, question of paying the amount of Rs.20,000/- through cheque dated 19.2.1992 would not have arisen. Therefore, First Appellate Court has considered this circumstance as most improbable in paragraph 17 of its judgment. Apart from this, the First Appellate Court has specifically held that father of Shylesh Kumar is the man behind the entire story and he has not been examined. Hence, interference has been drawn under Section 114(g) of Evidence Act.
49. The First Appellate Court has held that the Trial Court has blown out of proportion few minor contradictions appearing in the evidence of Radhamma and Mukundakumarji in respect of payment of loan by Mukundakumarji to the plaintiff. Admittedly, Radhamma was a housewife and therefore she has given little different version from that of her son.
50. Admittedly, Mukundakumarji was working at Tiptur a far off place from the disputed land. It appears that according to the First Appellate Court, Shylesh Kumar took advantage of this situation and was able to erect the stone slabs on the 12 guntas of land. Such stray act of encompassing the property belonging to another by fixing stone slabs will not cloth him with the right over the property more particularly under Section 53-A of Transfer of Property Act. If the Act of Shylesh Kumar of fixing stone slabs was not liked by Radhamma and her son Mukundakumarji, he would not have told Srinivas Murthy to remove the slabs in his letter dated 28.1.1995.
51. Suffice to state that plaintiff Shylesh Kumar has failed to prove the mandatory aspects of readiness and willingness as contemplated under Section 16(c) of Specific Relief Act, 1963. Inability of Radhamma and her son to prove the alleged loaning of Rs.30,000/- to Srinivas Murthy, cannot be blown out of proportion to grant relief of specific performance. Even otherwise Ex.P-2 account extract of SB account of Srinivas Murthy would discloses that he paid Rs.10,000/- through cheque to Mukundakumarji. First Appellate Court being final Court of facts has adopted right approach to the real state of affairs by reassessing the entire evidence in right perspective.
52. What is argued before this Court is that First Appellate Court could not have granted relief of possession when relief of possession is not sought for in the suit filed in O.S.130/1995. It is further argued that unless plaint was amended suitably to include relief of possession, suit filed for relief of mandatory injunction could not have been converted into suit for possession. In this regard, decision in the case of Om Prakash and Others v. Ram Kumar and Others reported in (1991) 1 SCC 441 is relied upon. It is further argued that in a suit for declaration and injunction, relief of possession cannot be granted unless it is asked for when plaintiff is found to be in possession. The decision in the case of Pandarinath v. Ramachandra and Others reported in 1974 ILR KAR 664 is also relied upon.
53. In the present case, no document is made available to show that 12 guntas of land was actually handed over to Shylesh Kumar or his father. Mr.Mukundakumarji has admitted that Shylesh Kumar has put up stone slabs in some space in Sy.No.77. Just because he has put stone slabs, it cannot be considered that Shylesh Kumar is in lawful possession of the same. Relief of mandatory injunction had to be sought for removing those stone slabs so as to make 12 guntas of land vacant and part and parcel of remaining land in Sy.No.77. A Division Bench of this Court in the case of Smt.Neelawwa v. Smt.Shivawwa reported in AIR 1989 KAR 45 has specifically held that under Order 7 Rule 7 of CPC reliefs can be moulded. This assumes more importance in the light of dismissal of the suit for the relief of specific performance which is the main suit and therefore, moulding of relief under Order 7 Rule 7 of CPC in the present case and thereby directing Shylesh Kumar to hand over the vacant possession of the 12 guntas of land cannot be found fault with.
54. In the light of very main relief of specific performance is refused, Shylesh Kumar cannot be in possession of the same by putting stone slabs so as to make it part and parcel of school area. In the light of open space being encroached by putting up stone slabs, mandatory injunction had to be sought. If those stone slabs are removed pursuant to mandatory injunction then the space becomes open space and question of possession need not be sought. Therefore, the direction to hand over the possession is nothing but to clear the temporary stone slabs fixed around the suit schedule property.
55. Viewed from any angle, the First Appellate Court has assessed the entire evidence in right perspective and has rightly dismissed the suit for relief of specific performance and has rightly chosen to direct Shylesh Kumar to hand over vacant possession of 12 guntas of land by removing stone slabs and temporary structure put up thereon. No perversity or illegality is found in the approach adopted by the First Appellate Court. Hence, the question of law framed on 25.9.2007 is answered in the affirmative in both these appeals.
56. In so far as pleading for adducing additional evidence under Order 41 Rule 27 of CPC is concerned, Shylesh Kumar has not placed any acceptable material. He wants to impress upon the Court about the latest development of the suit schedule property. He has produced photographs that temporary auditorium has been erected in the suit schedule property and same is being used by the school. Admittedly, photographs disclose that the auditorium so put up is a temporary structure put up of late. Photographs disclose something about the developments in the suit schedule property after appeals were disposed of by the First Appellate Court. No case has been made out to permit the appellant to adduce additional evidence. Hence, the application filed seeking to adduce additional evidence is to be dismissed. Consequently, appeals filed under Section 96 of CPC are liable to be dismissed.
ORDER
I.A. filed under Order 41 Rule 27 of CPC is dismissed.
The appeals filed under Section 96 of CPC challenging the judgments and decrees dated 21.2.2006 passed by the First Appellate Court in R.A.Nos.182/2000 and 184/2000 pending on the file of Court of Principal Civil Judge (Sr.Dn.) and CJM, Kolar, are dismissed with cost.