PRATAP LAKSHMAN MUCHANDI Vs. SHAMLAL UDDAVADAS WADHWA

JUDGEMENT

(1.) Both the Civil Appeals arise against the order passed by the Karnataka High Court in RFA Nos.290 & 311 of 1993 dated 17.12.1999. Therefore, both the appeals are disposed of by a common order.

(2.) The brief facts which are necessary for the disposal of these appeals are that a suit was filed on the basis of an agreement to sell dated 24.4.1982 for a consideration of Rs.1,20,000/- for property, namely, open space with some dilapidated room bearing CTS No.4094/1B/2 admeasuring 472 square yards, College Road, Belgaum. The agreement was executed by the first defendant as the "Kartha" of Hindu joint family along with other defendant Nos.2 to 4. A sum of Rs.10,000/- was paid as advance and the agreement was to be concluded within six months. As the defendants did not execute the sale deed within the stipulated time, a suit was filed by the plaintiff after giving notice dated 10.5.1983 for enforcement of the agreement to sell. The defendant Nos.1 to 5 also filed a suit being O.S.No.236 of 1982 for injunction against defendant Nos.6 to 15 and took a plea that because of the pendency of their suit, they could not execute the sale deed and they would execute the sale deed after decree in their favour was passed. The plaintiff suspected their movements and, therefore, he filed the present suit. Defendant Nos.1 to 3 filed a common written statement admitting the joint Hindu family consisting of defendant Nos.1 to 4. But they denied that the 1st defendant was the Kartha of the family. They admitted that the suit property was an ancestral property and they were the absolute owners. They also denied the agreement to sell and receipt of the advance. They further took a plea that they agreed to sell the property for a sum of Rs.1,70,000/- at the first instance and the deed of the agreement was typed and signed by the parties and the earnest money in sum of Rs.10,000/- was paid and they were willing to sell the property for a sum of Rs.1,70,000/- and as the plaintiff did not pay the balance sum, therefore, the sale deed could not be executed. The defendant No.4 was a minor when the suit was instituted, but became major during the pendency of the suit and he denied that the defendant No.1 was his natural guardian. The defendant No.5 also claimed 1/5th share in the property. The defendant No.1 died during the pendency of the suit and his other daughter was brought on record as defendant No.1(a). She also filed a written statement denying the agreement of sale. Defendant No.6 contended that there was no collusion between the defendant Nos. 6 to 15 and defendant Nos.1 to 4. They also contended that the agreement cannot be enforced as against them as defendant Nos.1 to 5 were never in possession of the suit property. Defendant Nos.6 to 15 claimed the ownership by way of adverse possession and claimed to be in such exclusive possession from the year 1957 onwards with the knowledge of defendant Nos.1 to 5. Therefore, it was contended that the agreement of sale was not enforceable because of the laches on the part of the plaintiff. On the basis of these pleadings, nine issues were framed and then three more additional issues were framed. The Trial Court after analyzing the evidence decreed the suit and directed the defendant Nos. 1(a) to 5 to execute the sale deed in favour of plaintiff by receiving the balance consideration of Rs.1,10,000/- and hand over possession, at the same time, a decree was passed evicting the defendant Nos.6 to 15 from the premises in question. The Trial Court further directed defendant Nos.6 to 15 to hand over the possession to the plaintiff. Aggrieved against this judgment and decree passed by the Trial Court, two appeals were preferred before the High Court. Both the appeals were taken up together. The grievance of defendant Nos. 1 to 5 was that the agreement of sale was not proved and appeal by another batch of persons who were directed to be evicted from the premises in question and to hand over the possession, was filed, i.e. Appeal No.311 of 1883 and Appeal No.290 of 1993. Both these appeals were tagged together.

(3.) The High Court again reviewed the evidence and while hearing the appeals, it felt that document executed by P.W.1 contained some corrections or erasure. Consequently, the document was sent for the expert opinion and after receipt of the report of the Assistant Director (questioned document), Forensic Science Laboratory, Bangalore, evidence of erasure was found and subsequent typing of figures of Rs.1,20,000/- was detected. Both the parties were directed to file their objection to the report of the Handwriting Expert. The High Court framed following two questions, viz.;