Karnataka High Court
Smt. Nanjamma vs Smt. Puttamma on 4 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:25320
RSA No. 1807 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1807 OF 2023 (DEC/INJ)
BETWEEN:
SMT. NANJAMMA
W/O LATE CHANDRANNA @ CHANDRAPPA
AGED ABOUT 95 YEARS
R/O HUNASEPALYA
SANGANAHALLI MAJARE
CHELUR HOBLI, GUBBI TALUK-572117
TUMAKURU DISTRICT
REP. BY SPA HOLDER
SMT. S C NATARAJU
Digitally signed
S/O CHANDRANNA @ CHANDRAPPA
by DEVIKA M AGED ABOUT 46 YEARS
Location: HIGH R/O HUNSEPALYA
COURT OF SANGANAHALLI MAJARE
KARNATAKA
CHELUR HOBLI
GUBBI TALUK 572117
TUMAKURU DISTRICT
...APPELLANT
(BY SRI V B SIDDARAMAIAH, ADVOCATE)
AND:
1. SMT. PUTTAMMA
W/O SHIVANNA
AGED ABOUT 51 YEARS
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NC: 2024:KHC:25320
RSA No. 1807 of 2023
2. SRI JAGADEESH
S/O LATE SHIVANNA
AGED ABOUT 44 YEARS
3. SMT. PUSHPALATHA
W/O JAGADEESH
AGED ABOUT 39 YEARS
ALL THE RESPONDENTS ABOVE ARE
R/AT MARASHETTIHALLI VILLAGE
KADABA HOBLI
GUBBIT TALUK - 572117
TUMAKURU DISTRICT
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 09.08.2023
PASSED IN R.A NO.92/2019 ON THE FILE OF ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, GUBBI AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned counsel appearing for the appellants.
2. The factual matrix of the case of the plaintiff before the Trial Court that the plaintiff's husband Chandranna has purchased 5 acres of land in Sy.No.48 of Sanganahalli village, Chelur hobli, Gubbi taluk under a -3- NC: 2024:KHC:25320 RSA No. 1807 of 2023 registered sale deed dated 21.08.19595 from one Rangappa. Since then, the plaintiff's husband was in physical possession and enjoyment of the same as a absolute owner and revenue records also changed in the name of the husband of the plaintiff. It is also case of the plaintiff that out of 5 acres of land, her husband sold 2 acres of land under a registered sale deed dated 07.06.1960 to one Shivanna that is the husband of defendant No.1. The said Chandranna retained 3 acres of land in his name that is the suit schedule property in the present case. The plaintiff's husband died on 27.05.2007 leaving behind his wife and children as legal heirs. After the death of Chandranna, the plaintiff and children continued with the possession and enjoyment of the suit schedule property as absolute owner. It is also the contention of the plaintiff that husband of defendant No.1 i.e., Shivanna by colluding with the revenue officials has created and concocted the revenue documents and transferred 5 acres of land in his name as per M.R.No.1/1988-89 instead of 2 acres. The defendants and -4- NC: 2024:KHC:25320 RSA No. 1807 of 2023 said Shivanna are only entitled for 2 acres of land under the sale deed dated 07.06.1960 and not to the entire extent of land. After the death of said Shivanna, his wife got mutated the land into her name on the basis of pavathi varasu to the extent of 5 acres instead of 2 acres under M.R.No.6/1989-90 dated 16.04.1990. Based on the wrong entries, the defendants divided the said land and thereby they have created and concocted partition. Accordingly, they have got mutated the same under M.R.No.22/2009-10 dated 30.04.2010. When they came to know about the fraudulent act and concocted revenue records, the plaintiff filed an appeal before the Assistant Commissioner contending that defendants are not having any right over the suit schedule property.
3. In pursuance of the suit summons, the defendants appeared and filed the written statement contending that the husband of defendant No.1 not only they purchased 2 acres of land vide sale deed dated 07.06.1960 from the husband of the plaintiff and -5- NC: 2024:KHC:25320 RSA No. 1807 of 2023 remaining land of 3 acres was also purchased vide sale deed dated 17.03.1969 from the husband of the plaintiff and possession also delivered to the total extent and consequently, M.R.No.1/1989-90 came into existence. Hence, the very claim made by the plaintiff is erroneous.
4. Having considered the pleadings of the parties, the Trial Court framed the Issues and allowed the parties to lead their evidence. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the plaintiff is not the absolute owner of the suit schedule property since the property was sold in favour of husband of defendant No.1 to the extent of 3 acres i.e., the remaining land as well as 2 acres of land. It is contention of the plaintiff that fraudulently transfer was done and the said contention also negatived. The Trial Court dismissed the suit of the plaintiff in coming to the conclusion that the very contention of the plaintiff that fraudulently got transferred the property is not acceptable. Being aggrieved by the -6- NC: 2024:KHC:25320 RSA No. 1807 of 2023 judgment and decree of the Trial Court, an appeal is filed in R.A.No.92/2019 and the First Appellate Court also having considered the grounds urged in the appeal formulated the points and having reassessed the material available on record and even taken note of the judgment of the Apex Court reported in (2006 ) 5 SCC 353 in the case of PREM SINGH AND OTHERS vs BIRBAL AND OTHERS and extracted the observation with regard to the presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent No.1 has not been able to rebut the said presumption. Having reassessed the material available on record in the light of the principles laid down in the judgment of the Apex Court and considering both oral and documentary evidence placed on record the First Appellate Court confirmed the judgment and decree of the Trial Court. Being aggrieved by the -7- NC: 2024:KHC:25320 RSA No. 1807 of 2023 concurrent finding of both the Courts, the present appeal is filed.
5. The main contention of the learned counsel appearing for the appellant that the sale deeds which they relied upon i.e., Ex.D1 and D2 are only certified copies and the original is not produced before the Court and no explanation is given for not producing the original documents and hence, the Trial Court and the First Appellate Court ought not to have accepted the said documents with regard to the sale is concerned. Hence, this Court has to admit the appeal and frame substantial questions of law.
6. Having heard the learned counsel appearing for the appellant and on perusal of the material available on record, it discloses that no doubt, the original sale deed is not produced but certified copy of the sale deed is produced and marked as Ex.D1 and Ex.D2 is also in respect of earlier sale deed of the year 1960 and subsequent sale deed is of the year 1969. Admittedly, the -8- NC: 2024:KHC:25320 RSA No. 1807 of 2023 husband of the plaintiff passed away in the year 2007 and during his lifetime i.e., from 1969 to 2007, he did not challenge the sale deed and only after the death of the husband of plaintiff, the present suit is filed that too in the year 2013 contending that fraudulently obtained the document and even not pleaded with regard to the very existence of subsequent sale deed. The defendants filed the written statement contending that the remaining property i.e., 3 acres was sold in the year 1969 itself by the husband of the plaintiff in respect of husband of defendant No.1 and an issue also framed stating that whether the sale deed is fraudulent one and whether the sale deed was executed by the husband of the plaintiff. Having considered the material available on record the Trial Court comes to the conclusion that fraud has not been proved as alleged. Only there is an allegation of fraud in getting transferred of 3 acres of land colluding with the revenue officials by the husband of defendant No.1 but the material found that there was a sale deed in favour of the husband of defendant No.1 in the year 1969 -9- NC: 2024:KHC:25320 RSA No. 1807 of 2023 itself from the husband of plaintiff. I have already pointed that during the lifetime of husband of the plaintiff, not challenged the said sale deed of the year 1969 and after the death of the husband of the plaintiff only, the said sale was questioned that too in the year 2013 and all revenue entries also changed from 1989 onwards. When such being the case, very contention of the appellant counsel that still they are in possession has not been accepted. The First Appellate Court also having considered the judgment of the Apex Court taken note of the fact that there is a presumption in respect of registered document and also taken note of Section 31 of the Specific Relief Act which deals with the cancellation of written instrument by the competent civil Court, if the plaintiff establishes the ingredients contained under said Section and same has not been done. Only sought for the relief of declaration. When such being the material available on record, I do not find any grounds to interfere with the finding of both the Courts when the sale has not been proved as a fraudulent one and same is also not questioned seeking the relief
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NC: 2024:KHC:25320 RSA No. 1807 of 2023 under Section 31 of the Specific Relief Act. Under such circumstances, I do not find any ground to invoke Section 100 of CPC to frame the substantial questions of law while admitting the appeal.
7. In view o the discussions made above, I pass the following:
ORDER The regular second appeal is dismissed.
Sd/-
JUDGE SN