This appeal is filed by the plaintiff in O.S.No.226/2003

challenging the decree and judgment passed by the Additional

Senior Civil Judge, Haveri in R.A.No.21/2009, reversing the

judgment passed by the trial court.

I refer the parties as per their rank before the trial

court.

3.

The plaintiff has filed suit for the relief of specific

performance of contract contending that defendant was

absolute owner of the suit property. He has executed

agreement of sale dated 03.03.2001, agreeing to sell the suit

property for Rs.49,500/- and received earnest money of

Rs.40,000/- from the plaintiff. The said agreement of sale was

executed in the presence of the witnesses. The plaintiff was/is

always ready and willing to perform his part of contract and the

defendant on one or the other reasons, went on postponing the

execution of the sale deed. Therefore, plaintiff called upon the

defendant to execute the sale deed and defendant has refused

to execute the same. With these reasons he has filed the suit

seeking relief of specific performance of contract, directing the

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defendant to execute the sale deed by receiving balance

amount of sale consideration.

4.

The defendant inter alia contended before the trial

court that he had not executed any agreement of sale and not

received earnest money from the plaintiff. Plaintiff was money

lender and defendant approached the plaintiff for hand loan of

Rs.5,000/-. He received the said amount from the plaintiff and

at that time, for the purpose of security, he signed a blank

stamp paper and later on, he paid Rs.5,000/- to the plaintiff.

The plaintiff behind the back of the defendant had created

alleged agreement of sale, by misusing the signature of the

defendant on the blank stamp paper. With these reasons

prayed to dismiss the suit.

5.

From the contentions of the parties, trial court had

framed following issues.

i)

Whether the plaintiffs prove that they are legitimate

legal heirs of deceased Gurunath?

ii)

Whether the plaintiffs prove that the defendant had

received Rs.40,000/- from the plaintiff No.1’s

husband and agreed to sell the suit property by

executing agreement of sale on 03.03.2001 before

panchas?

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iii)

Whether the defendant proves that the deceased

Gurunatha has obtained signature on blank stamp

papers as a security of loan?

iv)

Whether the defendant proves that even after

payment of loan, Gurunatha fails to return the

blank stamp papers signed by the defendant?

v)

Whether the plaintiff proves that always they are

ready and willing to perform their part of contract?

vi)

Whether the defendant proves that suit is not

maintainable due to non-joinder of necessary

parties?

vii)

Whether the plaintiffs prove that they are entitled

the relief sought for?

viii)

What order or decree?

6.

Plaintiff on her behalf examined P.Ws.1 to 5 and got

marked Exs.P1 to P8. Defendant has examined D.Ws.1 and 2

and has not produced any documentary evidence. The trial

court appreciating the pleadings and evidence by decree and

judgment 20.03.2009, decreed the suit and directed the

defendant to execute the sale deed after receiving balance

amount of sale consideration.

7.

The defendant being aggrieved by the said decree

and judgment filed R.A.No.21/2009 before the first appellate

court. The first appellate court re-appreciating the pleadings

and evidence of both the parties, reversed the said judgment,

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holding that plaintiff has utterly failed to establish execution of

the agreement of sale and payment of earnest money of

Rs.40,000/- towards sale consideration. The first appellate

court dismissed the suit by allowing the appeal by decree and

judgment dated 03.02.2010. The same is challenged in this

regular second appeal.

8.

This court after hearing the parties has admitted

the appeal to consider the following substantial question of law.

“Whether the first appellate Court has committed

a serious in upturning the well considered judgment by

ignoring material evidence on record more particularly

the