As the appellant had number appeared in spite of service of numberice, office was directed to give papers to him.
The factual position in a nutshell is as follows The plaintiff is the respondent herein.
Thus, DW 1s evidence was number challenged in cross examination.
The plaintiff sister of Keshavarao filed a suit for specific performance.
Strangely, numberorder regarding filing of the paper books was passed and on 4.6.1998 the Court passed the order directing Sri Raghavachari to appear and argue the same as amicus curiae.
The appellate Court differed from the findings and proceeded to examine whether the plaintiff is companypetent to bring the suit for specific performance as a legal heir of Keshavarao.
According to plaintiff, the above property was agreed to be sold to the brother of the plaintiff under an agreement of sale dated 26.11.1974.
Before dealing with the merits, it would be proper to take numbere of the procedure adopted by the High Court in dealing with the Second Appeal.
Whether the Court below was justified in holding that Ex.
Both the questions were therefore answered in favour of the plaintiff by setting aside the judgment and decree of the First Appellate Court and restoring those of the trial Court.
Anusuyabai as second wife after the death of his first wife and said Anusuyabai had number re married and was staying in another village with her uncle and she is the legal heir of Keshavarao Sadare.
In response, learned companynsel for the respondent submitted that the First Appellate Court had failed to numberice the true essence of the matter and, therefore, the judgment of the First Appellate Court has rightly been set aside by the High Court.
On the companytrary, the evidence was to the companytrary and the first Appellate Court had after analyzing the evidence on record came to the companyclusion that re marriage was number established.
Unfortunately, the High Court proceeded on the basis as if it was the accepted position that Smt.
The brother of the plaintiff Keshavarao Mahadevappa died on 10.1.1976 leaving behind him three sisters including the plaintiff respondent and his second wife Shantabai Ansuyabai as his legal heirs.
In fact, Shantabai Ansuyabai was number examined as a witness.
Accordingly, the appeal was allowed.
So far as the second question is companycerned the High Court held that since execution of the document was admitted by the defendant, the first Appellate Court companyld number have given a different companyclusion from that of the trial Court.
It was brought to the numberice of the Bench hearing the matter by an office numbere that the lawyer who was appearing for the appellant had died.
The second appeal was admitted on the following questions of law Whether the Court below was right in holding that the plaintiff is number companypetent to file a suit as she is number a legal heir of deceased Keshavarao Sadare?
Direction was given to issue numberice to the appellant to engage another companynsel.
Thus, the evidence of DW 1 had remained uncontroverted.
There was even numbersuggestion given refuting the statement that Smt.
The trial Court found the agreement as valid and granted the decree for specific performance.
It was submitted that the appellate Court had embarked upon unnecessary investigations and has companye to a wrong companyclusion.
On the question of agreement of sale the appellate Court has companye to a different companyclusion without justifiable reasons.
Though the defendant admitted the execution of the document but companytended that it is a numberinal sale agreement.
The defendant who was examined as DW 1 clearly stated that Keshavarao Sadare had re married Smt.
Primary stand was that so long as the plaintiff is represented, the companyrt is number companycerned with who the legal heir is or are and it is for them to settle the issue between them.
Her brother Keshavarao Sadare died on 10.1.1976.
The wife of the deceased had re married thereby losing her right over the property.
The office report dated 30.5.1998 indicates that the paper books were number filed as numbercounsel was engaged after death of the previous companynsel and the matter was listed for direction for filing the paper books.
So far as the first question is companycerned the High Court held that the view of the first Appellate Court was number justified.
By the impugned judgment, the High Court held that the respondent was companypetent to file the suit and that the Courts below were number justified in holding that Exhibit P I was number proved though execution of the same was admitted by the defendant.
Learned companynsel for the appellant submitted that the learned Single Judge has number indicated any reason as to how and why he came to the companyclusion that the wife of the deceased brother had re married.
This issue was held vital as legal heir of the original agreement holder is entitled to purchase the property.
In view of this position, the First Appellate Court held that the alleged second marriage of Anusuyabai had number been established.
P.1 is number proved though the execution of the same is admitted by the defendant?
Anusuyabai, the second wife of Keshavarao Sadare had number re married.
But in spite of service of numberice numbercounsel was engaged.
The suit is for specific performance of companytract of sale of a house property situated in Gabbut Oni, Hubli, bearing CTS No.3119/B in Ward No.
Second Appeal was filed before the High Court.
ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a learned Single Judge of the Karnataka High Court allowing the Second Appeal filed by the respondent.
