PUTTAIAH Vs. E.T. ESHWARA GOWDA

JUDGEMENT

(1.) 1st defendant in O.S. No. 545 of 2010 having suffered a judgment and decree dated 25-6-2012 of the I Additional Civil Judge and Judicial Magistrate First Class, Shivamogga, directing specific performance of the agreement of sale dated 23-7-2007, directed the plaintiff to deposit the balance sale consideration of Rs. 25,000/- within 45 days and to put the plaintiff in possession of the property within 60 days, preferred R.A. No. 101 of 2012 whence the II Additional Senior Civil Judge, Shivamogga, by judgment and decree dated 27-8-2013, on reappreciation of the evidence both oral and documentary, confirmed the judgment and decree of the Trial Court and dismissed the appeal. Hence this second appeal. Learned Counsel for the appellants does not dispute the fact that the 1st appellant along with his son 2nd defendant jointly executed the agreement of sale dated 23-7-2007 registered it in the office of the Sub-Registrar, Shivamogga, and acknowledged receipt of Rs. 50,000/- while agreeing to receive the balance sale consideration of Rs. 25,000/- on execution of the deed of conveyance of the suit schedule property. It is also not in dispute that the 2nd defendant though served with notice of the suit, remained absent and unrepresented hence was placed ex parte. Yet another fact not in dispute is except for the self-serving testimony of 1st defendant, examined as D.W. 1, there is no titer of evidence to establish the plea, in defence, that the 1st defendant borrowed a hand loan of Rs. 25,000/- from the plaintiff and agreed to repay the same within twelve months with interest at 2% per month and that the plaintiff took his signature on the stamp paper before the Sub-Registrar at Shivamogga on 23-7-2007 and created documents of wrongful debt.

(2.) The Trial Court, having appreciated the evidence both oral and documentary and regard being had to the agreement of sale-Ex. P. 1 and the oral testimony of the plaintiff and the scribe examined as P.W. 2, held that the sale agreement was proved and regard being had to Section 20 of the Specific Relief Act, 1963 over exercise of discretion in the matter of grant of specific performance of the agreement of sale, decreed the suit.

(3.) The Lower Appellate Court, on reappreciation of the evidence, both oral and documentary, concurred with the reasons, findings and conclusions arrived at by the Trial Court to dismiss the appeal.