DYAVAMMA Vs. Y.R. SWAMY

JUDGEMENT

(1.) THIS appeal is by the appellant/plaintiff being aggrieved by the judgment and order dated 22.4.2006 passed in R.A. No. 179/2004 (Old No. 34/2000) by the Fast Track Court -I and Additional District Judge, Hassan allowing the appeal filed by the defendants/respondents herein by reversing judgment and decree dated 31.8.1998 passed by the Principal Civil Judge (Jr. Dn.) and Court of JMFC -II, Hassan, in O.S. No. 48/1986 decreeing the suit.

(2.) THE appellant herein contended that the judgment and order of the appellate Court is opposed to all cannons of law, facts and circumstances of the case and liable to be set aside. The judgment and order are arbitrary and capricious and without appreciating the materials on record, the first appellate court has passed the said order. It has failed to appreciate the reasoning given by the trial court while decreeing the suit. It has come to the conclusion that the signature found in Ex. P. 1(d) is the signature of late Thimmegowda -defendant No. 2. When that being the case, the execution of Ex. P. 1 is proved and hence, the order of the first appellate court is perverse and vexatious. The first appellate court has failed to consider the settled principle that the document as a whole is to be read and not in piece meal and erred in passing the impugned order. It has further failed to appreciate the wordings found in Ex. P.1 and this vital aspect has not been considered by the said court while passing the impugned order. The first appellate court has failed to appreciate the evidence of P.W. 3 -scribe who has explained the reasons of scoring and writing found in Ex. P.1. It has erred in giving much reliance on the scoring of the document Ex. P.1 without reading the document as a whole. The Court below has erred to see that P.W. 1 is a village gullible lady and failed to take into consideration this aspect while passing the impugned order. The order of the first appellate court is full of surmise. The court below has erred in misinterpreting Ex. P.1 as the same is executed without consideration. This aspect has not been considered by the first appellate court. The court below has erred in coming to the conclusion that writing/over writing found in Ex. P.1 are material alterations which affect the right, title and interest of the defendants. But the said fact will not come within the definition of materials alteration. The court below by wrongly relying upon the decisions which are not applicable to the case on hand has erred in passing the impugned order. The court below has erred in wrongly interpreting sections 2(h) and 10 of the Indian Contract ACT. Hence, the judgment and order of the first appellate court are liable to be reversed.

(3.) ON the basis of the pleadings of the parties, the trial court has framed the following issues: