K. Ganapathi Bhat v. K. Narayana Agasa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938** **SA.No. 627 of 1997 (G)** **-----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 04-03-1997 IN AS 107/1995 of SUB COURT, KASARAGOD.** **AGAINST THE JUDGMENT AND DECREE DATED 17-03-1995 IN OS 147/1990 of PRINCIPAL MUNSIFF, KASARAGOD.** **APPELLANT IN S.A. - APPELLANT IN THE LOWER APPELLATE COURT - PLAINTIFF IN SUIT:** **---------------------------------------------------------** **K.GANAPATHI BHAT, S/O. VENKATRAMANA BHAT, RESIDING AT KALANDOOR, BAYAR VILLAGE, KASARAGOD TALUK, P.O. BAYAR.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN** **RESPONDENT IN S.A. - RESPONDENT IN THE LOWER APPELLATE COURT - DEFENDANT IN SUIT: ---------------------------------------------------------** **K. NARAYANA AGASA, S/O. AMMU AGASA, RESIDING AT CHULLIKANA, BADIADKA VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. PERDALA.** **BY ADV. SRI.V.V.ASOKAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2017, ALONG WITH SA. 778/1997, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## K. HARILAL, J. -----------------------------------------------------S.A. Nos.627 & 778 of 1997 ------------------------------------------------------ **Dated this the 5[th] day of January, 2017** ## JUDGMENT Since these appeals arose out of a common judgment and decree, passed in A.S.Nos.106 & 107 of 1995 on the files of the Sub Court, Kasaragod, and the parties are common, these appeals are heard together and disposed of accordingly. 2. The aforesaid Appeal Suits were filed before the court below challenging the common judgment passed in O.S. No.147 of 1990 and O.S. No.109 of 1993 on the files of the Munsiff's Court, Kasaragod. The appellant herein was the plaintiff in both the suits. O.S. No.147/1990 was a suit for specific performance of agreement and O.S.No.109/1993 was a suit for prohibitory injunction filed by the plaintiff against the S.A. Nos.627 & 778 of 1997 -: 2 :- defendant during the pendency of O.S.No.147/1990. 3. According to the plaint averments in O.S.No.147/1990, the plaint 'A' schedule property, belongs to the defendant and he entered into Ext.A1 agreement for sale dated 24-05-1988 with the defendant for the purchase of plaint 'A' schedule property for a consideration of Rs.5,000/- and on the same day, an advance amount of Rs.2,000/- was paid to the defendant and he put him in possession of the property. As per the agreement, the sale deed would be executed on or before 30-06-1989 and the balance consideration was to be paid within that time. But, the defendant failed to execute the sale deed as per Ext.A1, despite the receipt of Ext.A2 notice, demanding execution of the sale deed. 4. The defendant contended that he didn't execute Ext.A1 agreement for sale and Ext.A1 is a concocted document created fraudulently by the plaintiff and he is in possession of 'A' schedule property. Both suits were tried jointly. S.A. Nos.627 & 778 of 1997 -: 3 :- 5. The evidence consists of the oral testimony of P.Ws.1 to 3, D.W.1 and Exts.A1 and A2 and B1 to B7. After evaluating the evidence, on record, the trial court dismissed the suit on a finding that the plaintiff failed to prove that Ext.A1 is an agreement for sale executed by the defendant and he is in possession of 'A' schedule property, pursuant to Ext.A1. 6. In appeal, the appellate court also reappreciated the evidence, on record, and confirmed the findings of the trial court and dismissed the appeal. Thus, the legality and propriety of the concurrent findings have come up before this Court for judicial scrutiny, in view of the questions of law raised in the Memorandum of Appeals. 7. First of all, being Second Appeals, this Court must remember the limited scope and extent of interference with the concurrent findings of the court below under Sec.100 of the CPC. According to Sec.100 of the CPC, an appeal shall lie in the High Court from every decree passed in appeal by any S.A. Nos.627 & 778 of 1997 -: 4 :- court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. The substantial question of law is a question of law which substantially affecting the right of the parties. In other words, the scope of interference is confined to the determination of the substantial question of law only. At this juncture, it is to be borne in mind that the Apex Court has well described the boundary within which the jurisdiction can be exercised under Sec.100 of the CPC by catena of decisions. In Raruha Singh v. Achal Singh and Others [AIR 1961 SC 1097], the Apex Court held that the High Court's jurisdiction in Second Appeal is confined to question of law only and if the appellate court recorded the definite findings, it is not open to the High Court to attempt to re-appreciate that evidence. In Guddappa Rai and others v. Narayana Rai and another [1999 (3) KLT SN 67), the Apex Court again held that concurrent findings of facts, how so far erroneous, cannot be disturbed by the High Court in S.A. Nos.627 & 778 of 1997 -: 5 :- exercise of power under Sec.100 of the CPC. In M.G. Hegde v. Vasude V. Hegde [(2000) 2 SCC 213], the Supreme Court held that in Second Appeal, the jurisdiction of the High Court is limited. 'Prima facie perverse' and 'error apparent on the face of the record' are not a mantra and cannot be employed to permit the High Court to do in Second Appeal what the law enjoins on it not to do. High Court erred in going into the evidence and then arriving at a different conclusion. In Commissioner, Hindu Religious and Charitable Endowment v. Shanmugham [2005 (2) KLT SN 31 (SC)] the Supreme Court held that in Second Appeal High Court has no jurisdiction to interfere with the finding of facts recorded by the first appellate court. In Laxmidevamma v. Ranganath [(2015) 4 SCC 264], the Supreme Court again cautioned the courts below that concurrent findings of facts cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In [AIR 2014 SC 1582], the Apex Court again reminded the courts S.A. Nos.627 & 778 of 1997 -: 6 :- below that an appeal shall lie to the High Court from the appellate decree, only if High Court is satisfied that the case involved a substantial question of law and the appeal shall be heard on the questions so formulated and the parties are allowed to argue on those questions only. Further, in Punjab State Power Corporation Ltd., v. Punjab State Electricity Regulatory Commission [AIR 2015 SC 1190], the Apex Court reiterated that the finding on facts based on evidence cannot be interfered with in the Second Appeal. In Lisamma Antony v. Karthyayani [2015 AIR SCW 2824], the Supreme Court again held that merely because on appreciation of evidence another view would have been taken it cannot be said that the High Court assumes jurisdiction by turning such question as a substantial question of law and the questions of law shown in the Memorandum, based on new plea without proper foundation, cannot be framed as substantial questions of law to be considered in the Second Appeal. Thus, the legal position fixing the S.A. Nos.627 & 778 of 1997 -: 7 :- boundary of the jurisdiction and power of this Court under Sec.100 of the CPC stands well settled by plethora of decisions of the Supreme Court. 8. With the above yardstick, let us examine the legality of the concurrent findings of the courts below. Going by the judgment passed by the trial court, it could be seen that both the courts below have rightly understood the matters in issue involved in the suits and the trial court properly framed the issues for trial under the pleadings and the appellate court reappreciated the findings of the trial court on the basis of the points rightly framed for consideration. Then the point to be considered is, whether the findings are legally sustainable and whether any substantial question of law arises for consideration in these appeals. 9. The concurrent findings of the courts below, as regards Ext.A1 agreement, is that the same is not a genuine agreement executed by the defendant and it is a concocted document on which no reliance can be S.A. Nos.627 & 778 of 1997 -: 8 :- placed. It is the specific case of the defendant that he has not executed Ext.A1 agreement for sale and the signature in the agreement for sale is not his signature. The learned Munsiff examined the signature in Ext.A1 with the admitted signatures of the defendant and on comparison, the learned Munsiff has come to the conclusion that the signatures in Ext.A1 are not that of the defendant, as they are different from the admitted signatures. The learned Munsiff is justified in comparing the signature by himself invoking the jurisdiction and power under Sec.73 of the Indian Evidence Act, in the absence of any initiative from the part of the plaintiff to prove the same, though the defendant denied the signature in Ext.A1. In appeal, the appellate court also examined the disputed signature and concurred with the findings of the trial court. So, there is no reason to interfere with the said concurrent finding. 10. The trial court has examined the oral evidence given by P.Ws.1 to 3, who are the plaintiff, S.A. Nos.627 & 778 of 1997 -: 9 :- scribe and attesting witness in Ext.A1. According to P.Ws.1 to 3, at the time of alleged execution of Ext.A1, they had seen the 'patta' and the scribe had written the agreement after seeing the 'patta'. But, it is pertinent to note that Ext.B6 'patta' itself had been issued only on 9-6-1988 and Ext.A1 agreement is dated 24-5-1988. Therefore, the courts below are justified in finding that the evidence of P.Ws.1 to 3 could not be relied on, for a moment. After evaluating the their oral testimony, the learned Munsiff has arrived at a finding that they are totally unbelievable and untrustworthy and their evidence cannot be relied upon. In appeal, the learned District Judge also re-appreciated the oral testimony of the aforesaid witnesses and concurred with the findings of the trial court that they are untrustworthy. The aforesaid concurrent finding shows that the plaintiff has miserably failed to prove the execution of Ext.A1 agreement, by the defendant. This Court is not inclined to re-appreciate the said evidence, in view of S.A. Nos.627 & 778 of 1997 -: 10 :- the limited jurisdiction of this Court, particularly when the plaintiff failed to point out any kind of perversity in the appreciation of evidence. 11. Ext.B1 is admittedly the agreement executed by the defendant in favour of one K.K. Abdulla on 23-5-1988, the previous day of Ext.A1. That agreement relates to the standing timber in the plaint 'A' schedule for a consideration of Rs.20,000/-. As rightly pointed out by the court below, it is unbelievable that on the next day, on 24-05-1988, the defendant entered into another agreement with the plaintiff for the sale of more than 2 Acres of property wherein the trees referred to in Ext.B5 stood, for a paltry sum of Rs.5,000/-. In short, the extremely meager consideration shown in Ext.A1 is the strong circumstance which would improbabilise the due execution of Ext.A1 agreement for sale. 12. Thus, as rightly held by the courts below the plaintiff has miserably failed to prove the execution of Ext.A1 agreement whereunder the plaintiff is claiming S.A. Nos.627 & 778 of 1997 -: 11 :- the right of specific performance. There is no illegality or impropriety in any of the findings; whereby the courts below rejected the reliefs sought for. No question of law arises for consideration, as the courts below have already answered all the legal issues in its correct legal perspective. In the above analysis, this Court finds that these Second Appeals are devoid of merits and liable to be dismissed. I do so. All pending Interlocutory Applications will stand closed. Sd/- - (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge