(Prayer: This RSA is filed under Section 100 of CPC, against the judgment and decree dated 24.10.2024 passed in R.A.No.5130/2019 on the file of II Additional District and Sessions Judge, Ramanagara, sit at Kanakapura, dismissing the appeal and confirming the judgment and decree dated 29.06.2017 passed in O.S.No.260/2008 on the file of Ii Additional Civil Judge and JMFC at Kanakapura.)

Oral Judgment

1. This matter is listed for admission. Heard the learned counsel for the appellants.

2. This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiff while seeking the relief of specific performance before the Trial Court, it is contended that there was a sale agreement and agreed to sell the property to the tune of Rs.1,10,000/-, out of that, an amount of Rs.80,000/- was paid to Maraiah and defendant Nos.7 and 8 and also contend that sale deed came into existence on 18.12.2006 and he was always ready and willing to perform his part of contract. The defendant Nos.1 to 6 and defendant No.9 have appeared. The defendant No.7 and 8 failed to appear and they are placed ex-parte. The defendant No.9 adopted the written statement of defendant No.1 to 6. They categorically denied the execution of the agreement of sale by Maraiah and defendant Nos.7 and 8 contending that land measuring 2 acres 1 gunta in suit survey number being the ancestral property was acquired by defendant No.9 in a family arrangement on execution of a deed of consent dated 17.10.2007 by his father, mother and brothers. The defendant No.9 is the absolute owner of the land in suit survey number. As the plaintiff interfered and tried to cut and remove the standing crops and dispossess him from the said land. The defendant No.9 filed suit against him in O.S.No.309/2009 for the relief of permanent injunction. According to defendant Nos.1 to 6 and 9, the agreement of sale is concocted and created by the plaintiff in collusion with defendant Nos.7 and 8.

3. The Trial Court considering the pleadings of the plaintiffs and defendants, allowed the parties to lead evidence and also answered the Issue No.1 and 2 as affirmative in coming to the conclusion that sale agreement was executed. However, while dealing with the Issue No.4 is concerned and the same is in respect of ready and willingness to perform his part of contract is concerned and taken note of perusal of Ex.P.2 and also noticed that it is apparent that the last sentence in the second page is deleted by using whitener, from the whitener on the seal of the notary, it is clear that the said recital was deleted after the notary affixed his seal, neither the parties to the agreement have put their initials near the said correction, nor the notary has made note of it. Hence, comes to the conclusion that the said deletion is subsequent to the notarizing of the said agreement and even taken note of admission on the part of P.W.1 wherein also P.W.1 categorically says that plaintiff has not taken any action against the defendants Nos.7 and 8 regarding the alleged correction and hence, answered the Issue No.4 as negative regarding readiness and willingness, so also in respect of Issue No.3 is concerned, partly allowed regarding making of payment is concerned to the tune of Rs.60,000/- to Maraiah. Hence, comes to the conclusion that not a case for granting the relief of specific performance and order to refund the amount of Rs.60,000/- to the plaintiff. From 18.12.2006, the said finding is silent before the First Appellate Court.

4. The Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the judgment and decree of the Trial Court is not sustainable under law and the First Appellate Court having re-assessed both oral and documentary evidence available on record, taken note of admission on the part of P.W.1 in the cross-examination with regard to deletion of the contents of the document Ex.P.2 in paragraph No.77 and discussed that P.W.1 admitted the question putforth by the counsel for the defendant No.9 that Ex.P.2 at page No.2 deleted some words and also deposes his explanation to that effect that when it tendered for before the notary, last lines were not deleted and extracted the same and taken note of the conduct of the plaintiff is also played vital role in getting discretionary relief of specific performance that has been discussed in paragraph No.78 and also taken note of in view of payment is concerned, the Trial Court also considered the said fact since payment of Rs.60,000/- was paid and hence, Trial Court rightly ordered to refund of the amount and confirmed the order.

5. Being aggrieved by the concurrent finding, present second appeal is filed before this Court. The main contention of the counsel appearing for the appellants that when the Trial Court comes to the conclusion that agreement is proved by answering Issue No.1 and 2, ought to have granted the relief of specific performance and also counsel would vehemently contend that denying the relief of specific performance inspite of proving the agreement of sale Ex.P.2. When the plaintiff is ready to perform the part of contract to pay the balance sale consideration amount and proved Section 16(c) of the Specific Relief Act ought not to have dismissed the suit for Specific Performance and hence, this Court has to admit and frame substantive question of law.

6. Having heard the learned counsel for the appellants and also on perusal of the pleadings and though denied the very execution of the agreement, but Trial Court comes to the conclusion that agreement was executed and rightly answered the Issue No.1 and 2, but, while declining to grant the relief of specific performance is concerned, the Trial Court discussed in detail regarding deletion of the words in page No.2 of the agreement and the same is discussed in paragraph Nos.18 and 19 and comes to the conclusion in paragraph No.20 that the said deletion and correction is subsequent to the notarizing of the said agreement and hence, declined to grant the relief of specific performance. The First Appellate Court having re-assessed both oral and documentary evidence on record, particularly taken note of the answer elicited from the mouth of P.W.2 that is in paragraph No.77 and 78 with regard to the deletion and the same is subsequent to notarizing of the said agreement. There is no any counter signature for deletion also and hence, comes to the conclusion that even if there is an agreement and Court has to take note of the conduct of the parties, particularly in paragraph No.78, as per the settled principles of law, the conduct of the plaintiff also plays vital role in getting discretionary relief for Specific Performance of contract. Hence, taking into note of the correction in Ex.P.2, particularly deletion and the same is subsequent to the notarizing of the document and admission of P.W.1 is also very clear that the said corrections are made subsequent to the notarizing of the document and hence, rightly comes to the conclusion that not a case to grant the relief of specific performance. However, with regard to the refund of amount is concerned, passed an order to refund the amount. Both the Courts failed to award any interest amount and hence, it is a case to award 6% p.a interest and since there is no dispute with regard to the payment of amount of Rs.60,000/-. Hence, the appellant is entitled for interest at the rate of 6% p.a, from the date of agreement, except this, not a case for admitting and framing substantive question of law to grant the relief of specific performance. Accordingly, the second appeal is disposed of.

7. In view of disposal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.