SHEETAWWA Vs. HEMAREDDI

JUDGEMENT

(1.) HEARD the arguments of the learned Counsel for the appellant and carefully perused the relevant case papers including the impugned judgment passed by the Trial Court. The learned counsel for the respondent being absent and there being no representation on his behalf, he could not be heard in the matter. Even in the absence of the learned Counsel for the respondent, the learned Counsel for the appellant took me in detail through the pleadings, the evidence and the impugned judgment of the Trial Court.

(2.) THIS appeal by the defendant Smt. Sheetawwa is directed against the judgment and decree of the Trial Court dated 24. 1. 2000 whereby and where under the Trial Court has decreed the suit of the respondent-plaintiff with costs directing the appellant-defendant to execute the registered sale deed after receiving the remaining sale consideration amount and that if, the defendant fails to execute the registered sale deed, the plaintiff is at liberty to get the sale deed executed through the process of the Court by appointment of a Commissioner. By the impugned judgment, the trial Court found that the only question to be considered in the case is whether it is a sale agreement or it is a security for the loan and taking an overall view of the evidence, it has held that the transaction in question was a sale agreement and not a loan transaction as alleged by the appellant defendant. The Trial Court has further found that the respondent -plaintiff was ever ready and willing to perform his part of the contract, but, the appellant-defendant had tried to avoid the execution of the sale deed. Thus on the facts and in the circumstances of the case, the trial Court found that the respondent-plaintiff has proved that the appellant-defendant had entered into a agreement of sale with him. Having arrived at such finding it has held that there is no reason to reject the decree for specific performance in favour of the respondent-plaintiff. In this view of the matter the Trial Court has decreed the suit of the respondent-plaintiff. It is this judgment and decree, which is now sought to be challenged by the defendant by filing this appeal.

(3.) THE brief facts of the case as has been enumerated in the memorandum of appeal reads as under:r. S. No. 598/a2 measuring 2 acres 33 guntas and R. S. No. 598/b measuring 2 acres 28 guntas situated at Koliwad village, Hubli Taluk belong to the appellant. The respondent filed a suit in o. S No. 73/95 before the Trial Court for specific performance of an agreement to sell the suit lands under a document dated 14. 06. 1993 (Ex. P1) said to have been executed by the appellant. It was alleged in the plaint that the parties are close relatives and the appellant who was in need of money for the affairs of the family and she was unable to cultivate the lands from her village shelavadi, she agreed to sell those lands for a consideration of Rs 1,01,100/- and executed an agreement of sale on 14. 06. 1993 by accepting an earnest money of Rs. 40,000/ -. Further, it is stated that since the appellant failed to perform contract to executed the registration sale deed in spite of a notice, the respondent filed the suit for specific performance and for possession of the suit lands. The appellant resisted the claim of the respondent by filing her written statement wherein, she denied the allegations of the respondent and interalia contending that she never entered into an agreement of sale of the suit lands in favour of the respondent for a consideration of Rs. 1,01,100/- On the other hand, she had borrowed a loan of Rs. 40,000/- from the respondent to pay to her eldest son, who gave up his share in the family to purchase tractor at the time of taking his share in the family properties. But the respondent by taking undue advantage of his relationship and the ignorance of the illiterate women has fabricated this document as a contract for sale. In fact, she said that she never executed that document agreeing to sell her lands, but it was executed as a security to the loan advanced by the respondent. Hence, prayed for dismissal of the suit. On the basis of the pleadings of the parties, necessary issues were framed by the trial court. In the course of the trial, the respondent got himself examined as P. W. 1 besides examining two other witnesses P. Ws. 2 and 3 and the appellant also got herself examined as D. W, 1 besides examining one witness on her behalf as D. W. 2. Apart from the oral evidence, the parties have also produced certain documentary evidence as per Exs. P1 to P10. At the conclusion of the trial, the Trial Court on consideration of the entire evidence placed on record and after hearing the submission on both sides has decreed the suit of the respondent-plaintiff by its impugned judgment and decree. Hence, this appeal, by the defendant.