IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE ll DAY OF AUGUST, 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM MSA No. 128 OF 2010 BETWEEN: T.M.UMASHANKAR, Sb MARALUSIDDAPPA, AGED ABOUT 60 YEARS, THIMMANAYAKANAHALU, NELAMANGALA TALUK - 562 123 BANGALORE RURAL DISTRICT APPELLANT (BY SRI B.RUDRAGOWDA, ADV.,) AND KEMPANNA, 5/0 MATAAIAH, AGED ABOUT 55 YEARS, R/A PALANAHALLI, SOLUR HOBLI, MGADI TALUK - 562 120 BANGALORE RURAL DISTRICT 2. PANDITHA LAKSHMINARASAPPA, SINCE DEAD BY HIS LEGAL HEIRS (a) DWARAKINATH, S/O PANDITHA LAKSHMINARASAPPA, AGED ABOUT 45 YEARS, R/A LAKKUR VILLAGE, SOMPURA POST, NELAMANGALA TALUK - 562 123 2 (b) SMTGEETHAMMA, W/O LATE PANDITHA LAKSHMINARASAPPA, WA NO.1178, ANJANAPPA STREET, T.DASARAHALU, BANGALORE - 560 057 (C) SMT.GAYATHRAMMA, W/O BHASKAR, AGED ABOUT 50 YEARS, D.NO.1178, T. DASARAHALU, MAHESHWARINAGAR, BANGALORE - 560 057 RESPONDENTS (BY SRI K S KRISHNAPPA, ADV., FOR Ri SRI KEMPANNA, ADV., FOR R2(a) & (c)) MSA FILED UNDER ORDER 43 RULE 1(u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:30.7.2010 PASSED IN R.A.NO.20/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, RAMANAGARA, ALLOWING THE APPEAL AND St i i iNG ASIDE THE JUDGMENT AND DECREE DATED 13.07.2005 PASSED IN O.S.NO113/1995 ON FILE OF THE PRL.CIVIL JUDGE (SR.DN) RAMANAGARAM, REMANDING THE MATTER TO THE TRIAL COURT TO PROCEED FURTHER. THIS APPEAL COMING ON FOR HEARING THIS DAY, ThE COURT MADE THE FOLLOWING: •.1 3 JUDGMENT Defendant No.2 is in appeal against the Judgment in R.A. No. 20/2007 dated 30-07-2010 on the file of the learned Judge, Fast Track Court, Ramanagara, questioning the order of remand of OS No.113/1995. 2. Heard the learned counsel Mr.Rudragowda for appellant and the learned counsel appearing for respondents. 3. The contextual facts are: The respondent No.1 — Kempanna, filed a suit in OS No.113/1995 seeking decree for specific performance of agreement of sale dated 05.02.1991 in his favour allegedly executed by one Panditha Lakshminarasappa. In support thereof he averred Panditha Lakshminarasappa was allotted land bearing Sy. No. 58 measuring 9 Acres 23 guntas and lands in Sy. No.83 measuring 0.23 guntas by Government by way of Inam. He approached the plaintiff — Kempanna to sell property for sale consideration of Rs.90,000/- which offer he accepted. He paid Rs.80,000/- towards part r 4 b payment of sale consideration and had to pay Rs.1O,000/- at the time of registration of sale deed. 4. In consideration of substantial part payment of sale consideration he was put in possession and since then he is enjoying the same, as a transferee in possession of the property in part performance of the agreement to sale. He further averred that the sale deed could not be executed as the lands were covered under the provisions of Inam Abolition Act, which required permission from the Government. 5. Several other averments were made by him to allege defendant No.1 - Panditha Lakshmlnarasappa had committed breach of the covenants and failed to sell property to him. It is also his case that he has constructed a residential building at his costs and Is living therein. On this basis he urged he is entitled to specific performance of the agreement dated 05.02.1991. 6. He further averred that defendant No.1 - Panditha Lakshminarasappa in contravention of the terms of agreement, he sold the property to defendant No.2 5 (appellant herein), which sale transaction is not binding on him. In the suit he brought Panditha Lakshminarasappa as defendant No.1 and the appellant — purchaser of the property as defendant No.2. 7. Appellant and defendant No.1 - Panditha Lakshmlnarasappa entered contest. Defendant No.1 - Panditha Lakshminarasappa refuted all allegations in the plaint, that he had executed an agreement of sale dated 05.02.1991 or received any amount from the plaintIff. He denied putting plaintiff in possession of the property as averred in the plaint. 8. Appellant who was defendant No.2 fell in line with the defence of the Defendant No.1 - Panditha Lakshmlnarasappa and supplemented contending he is the bonafide purchaser for value and therefore, transaction in his favour cannot be annulled. 9. Based on the material proposition the learned trial Judge framed the following Issues: I. Whether the plaintiff proves execution of agreement of Sale dated 5-02-1991 for 6 Rs.90,000/- by 1 defendant in respect of the suit schedule property? 2. Whether the plaintiff proves payment of advance of Rs.80,000/- towards sale consideration? 3. Whether the plaintiff proves delivery of possession of suit schedule property in pursuance of the agreement of Sale? 4. Whether the plaintiff proves that he was always ready and willing to perform his part of the contract? 5. Whether the plaintiff is entitled for the specific performance claimed? 6. What decree or order? 10. In the enquiry that ensued plaintiff tendered evidence as PW1 and examined PW2-Venkatesh, PW3- Shivakumar and PW4-Rajanna as attesting witnesses to Ex.P1, while the legal heirs of Defendant No.1 - Panditha Lakshminarasappa did not tender any ocular evidence. But, appellant contested the suit and tendered evidence as DW2. Handwriting Expert Mr.C.Ashwathappa was examined as DW1. On behalf of the plaintiff 16 documents were 1” 7 produced which Indude alleged agreement of sale at Ex.P1 and other revenue records. On behalf of the defendants 20 documents are marked. 11. From the factual matrix it is evident the plaintiff based his claim In respect of schedule premises tracing transaction of sale on the basis of Ex.P1 — alleged agreement. As such contention was denied by the Defendant No.1 - Panditha Lakshmlnarasappa, he had burden to prove execution of Exhibit P1. The dispute Is about genulnity of Ex.P1. Therefore, the burden was on the plaintiff to establish Ex.P1 was executed by defendant No.1 to establish the sale transactIon. The plaintiff through his evidence as PW1 brought in Ex.P1 and got marked the signature appearing therein to be that of deceased Defendant No.1 - Panditha Lakshminarasappa. He paraded PW2-Venkatesh, PW3-Shivakumar and PW4-Rajanna as attesting witness to the said document, but did not examine the scribe. 12. The learned trial Judge analyzing the evidence disbelieved their version, that of Ex.PI. was executed by deceased Defendant No.1 - Panditha Lakshminarasappa. It •1 V S noticed in their evidence, they did not speak that the signature appearing at Ex.P1(a) and (b) to be that of Defendant No.1 - Panditha Lakshminarasappa. Similarly, they merely deposed Ex.P1 was an agreement executed by Defendant No.1 - Panditha Lakshminarasappa. Relevant finding of the trial court at Para-9 to 12 of the impugned Judgment. 13. The finding recorded by the trial court It Is seen learned trial Judge has held plaintiff had failed to establish the signature appearing in Ex.P1 was that of the defendant No.1. In this regard It Is further notIced the learned trial Judge has examined the Commissioner’s Report, which was an expert opinion regarding authenticity of the Ex.P1 — Agreement. It is not in dispute that Hand Writing Expert (Commissioner) had tendered evIdence before the trial court that signature appearing in Ex.P1 did not match with the admitted signature of defendant No.1. In other words, the Commissioner has given negative report, consequently the burden was shifted on the plaintiff to establish the signature appearing In Ex.P1 was that of the defendant No.1, as Is required In law. V.. 9 14. Besides the learned trial Judge has also taken into consideration several other factors particularly with regard to limitation. The agreement in question is said to have been executed on 05.02.1991 but the suit was filed in the year 1995 beyond the period of three years prescribed for seeking enforcement of agreement for specific performance. It is also evident from the finding of the trial court that there was no restriction imposed on defendant No.1 from alienating the property as has been urged by the plaintiff. Considering all these factors the trial court had dismissed the suit, against which the plaintiff was in appeal In RA No.20/2007. 15. The learned appellate Judge has allowed the appeal but as could be seen without examining or re appreciating the evidence on record. It has set aside the finding recorded by the trial court and remanded the case for denova consideration on mere opinion that admitted signature of the Defendant No.1 of the year 1991 was not used for comparing the disputed signature. I0 16. The learned counsel for appellant Mr. B.Rudra Gowda has rightly drawn my attention to the reasonings assigned by the appellate court In para-15 and 16 of the impugned judgment. The learned appellate Judge while examining the finding recorded by the trial court, in para-15 and 17 of its judgment opined that in view of Commissioner’s (Hand Writing Expert) evidence that age factor Is one of the consIderation while examining the disputed signatures with the admitted signature on the same year. The learned appellate Judge has found fault with the Commissioner in comparing signature on the alleged agreement of the year 1991 with the signature of the defendant No.1 In the year 1995. In other words, he was of the opinion that alleged signature of the defendant No.1 wIth Ex.P1 should have been compared with the admitted signature of the defendant No.1 as in the year 1991 and not later. 17. On this basis the learned appellate Judge held the Commissioner’s Report was not acceptable. Ultimate conclusion of the Appellate Court for setting aside the • • I’ II judgment of the trial court was found In para-16, which Is as follows: ‘On evaluating the findings of the judgment wherein, in para-14 & 15 of the judgment so also from the proceedings of the case It appears that, as a matter of fact the plaintiff has not filed the memo of instructions and so also the court Commissioner has not compared the admitted signatures of the year 1991. Thus, it is necessary to give such an opportunity for the plaintiff to file memo of instructions on his behalf and then for the court Commissioner to compare the admitted signatures of the year 1991 to that of the disputed signatures on Ex.P1 so also the disputed signatures on the affidavit under Ex.P2 for the reasons, Ex.P2 is also a part and parcel of Ex.P1 but, for the reason best known the signatures on the affidavit at Ex.P2(a) had not been taken note of. Under the circumstances of the case, the judgment of the trial court appears to be arbitrary, capricious and warranted for interference. Hence, I answer this point in affirmative.’ It Is quite evident from the judgment of the Appellate Court that Appellate Court has failed to exercise jurisdiction conferred on It under Rule 24 and 25 of Order 41 of CPC. 18. The learned counsel Mr. Rudra Gowda for appellant sought cltatlonai support from the decision of the Hon’bie Supreme Court in the case of PATEL SURESHBHAI )ASHBHAI vs PATEL SATABHAI MATHURBHAI reported in Li 12 (1983)3 SCC 294, wherein the Apex Court with reference to Order 41 Rule 23 and 23-A of CPC held, ‘where sufficient material evidence on record court could decide the matter and give adequate directions instead of remanding the case for trial court or Tribunal for retrial. 19. In the instant case, as could be seen from the evidence on record both sides have lead sufficient evidence. Plaintiff has placed evidence to support Ex.P1 — Agreement, allegedly executed by the defendant No.1 and defendant No.1 on his part has through Commissioner and through his ocular testimony had shown that signature on Ex.P1 was not his signature. The defendant No.1 had also brought material to show that land in question was allotted to him by the Government without any riders and there was no restriction for sale of the property. Defendant No.1 has also brought out through his evidence that he had not put the plaintiff In possession of the property in question. 20. The evidence on record was sufficient to decide not only the validity or the genuineness of Ex.P1 but also to decide whether the suit filed by plaintiff beyond three years ‘3 could be entertained. Evidence on record was sufficient to decide the question on limitation as also other factors. The learned trial Judge has considered evidence on record and found that plaintiff had failed to establish the Ex.P1 agreement was executed by defendant No.1 and suit claim was also barred by time. Appellate Court instead of re appreciating such evidence in the light of the finding recorded by the trial court has taken into consideration the Commissioner’s Report. It is clear case whether the Appellate Court has failed to exercise jurisdiction conferred on it. As first Appellate Court Is final court on facts, Appellate Court could not have avoided re-appreciating the entire evidence. 21. I am satisfied the Appellate Court has failed to exercise the jurisdiction conferred on it under Rule 24 and 25 of Order 41 of CPC and has instead resorted to remand the case on insufficient grounds. 22. In the result the Appellate Court judgment could hardly be sustained. Consequently, judgment of the Appellate Court is set aside. Appeal is remanded back to ‘4 U the Appellate Court with direction to hear the parties on merits and take a final decision. Sd/ VK JUDGE