Honnappa S/O Basappa Jambur vs Nagappa S/O Basappa Jambur
2022 Latest Caselaw 1026 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 24TH DAY OF JANUARY 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.100782/2018 (DEC)
BETWEEN

      HONNAPPA S/O BASAPPA JAMBUR
      DECEASED BY HIS LRS

1a. MALATESH S/O HONNAPPA JAMBAR,
    AGE:39 YEARS, OCC:AGRICULTURE
    R/O LINGAPUR, TQ:HIREKERUR
    DIST:HAVERI 581111

1b. ANNAPPASWAMY S/O HONNAPPA JAMBAR,
    AGE:32 YEARS, OCC:AGRICULTURE
    R/O LINGAPUR, TQ:HIREKERUR
    DIST:HAVERI 581111

1c.   RUDRESH S/O HONNAPPA JAMBAR,
      AGE:30 YEARS, OCC:AGRICULTURE
      R/O LINGAPUR, TQ:HIREKERUR
      DIST:HAVERI 581111

1d. AKKAMMA W/O RUDRAPPA BAGGARANE,
    AGE:47 YEARS, OCC: HOUSEHOLD WORK,
    R/O LINGAPUR, TQ:HIREKERUR
    DIST:HAVERI 581111

1e. SAVITA W/OBASAVANTHAPPA VAGGARANE,
    AGE:42 YEARS, OCC: HOUSEHOLD WORK,
    R/O LINGAPUR, TQ:HIREKERUR,
    DIST:HAVERI 581111

1f.   RATNA W/O PARASHURAM HAVERI,
      AGE:35 YEARS, OCC:HOUSEHOLD WORK,
                               2




      R/O YADAGOD, TQ: RATTIHALLI
      DIST:HAVERI 581111

                                                ... APPELLANT
(BY SRI.AVINASH BANAKAR, ADV.)

AND

1.    NAGAPPA S/O BASAPPA JAMBUR
      AGE:68 YEARS, OCC:AGRICULTURE
      R/O GABBUR COLONY, SHIKARIPUR
      TQ:SHIKARIPUR, DIST:SHIVAMOGGA 577427

2.    DANESHI @DANESH S/O NINGAPPA JAMBUR
      AGE 33 YEARS, OCC:AGRICULTURE
      R/O GABBUR COLONY, SHIKARIPUR
      TQ:SHIKARIPUR, DIST:SHIVAMOGGA 577427

3.    JAYAPPA S/O NINGAPPA JAMBUR
      AGE:31 YEARS, OCC:AGRICULTURE
      R/O GABBUR COLONY, SHIKARIPUR
      TQ:SHIKARIPUR, DIST:SHIVAMOGGA 577427

4.    HANUMAVVA W/O NINGAPPA JAMBUR
      AGE:58 YEARS, OCC:HOUSEHOLD WORK
      R/O GABBUR COLONY, SHIKARIPUR
      TQ:SHIKARIPUR, DIST:SHIVAMOGGA 577427

                                              ... RESPONDENTS
(BY SRI.RAJASHEKAR B.HALLI, ADV. FOR R1 TO R4)

      THIS APPEAL IS FILED UNDER 100 OF CPC, 1908, AGAINST
THE JUDGEMENT & DECREE DTD:1.9.2018 PASSED IN R.A.NO.5/2017
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HIREKERUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DTD:25.1.2017,
PASSED IN O.S.288/2010 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HIREKERUR,
DISMISSING THE SUIT FILED FOR DECLARATION AND PERMANENT
INJUNCTION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                      3




                              JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful plaintiffs questioning concurrent judgments of

the courts below who are refused to grant the relief of

declaration and consequential relief of injunction.

2. The appellant/plaintiff is asserting title over the

suit schedule property on the basis of relinquishment deed

executed by respondents/defendants as per Ex.P3 and

Ex.P4, which is a Hissa Tippni jointly executed by

appellant/plaintiff and respondents/defendants. The trial

court having assessed oral and documentary evidence has

answered issue Nos.1 to 5 in the negative by holding that

appellant/plaintiff has failed to prove his title over the suit

schedule property as per agreement to sell vide Ex.P3 and

that he has also failed to establish that respondent

No.1/defendant No.1 has relinquished his half share in the

suit schedule property having received a sum of

Rs.42,000/- from appellant/plaintiff.

3. The first appellate court on re-appreciation of

oral and documentary evidence has concurred with the

finding of the trial court and has also come to the

conclusion that remedy if any available to the

appellant/plaintiff is to file a suit for specific performance of

contract. The first appellate court was also of the view that

appellant/plaintiff cannot place any reliance on Ex.P4-Hissa

Tippni, which is an unregistered document and therefore,

the same is inadmissible in evidence. On these set of

reasoning, the first appellate court has proceeded to

dismiss the appeal and therefore, has confirmed the

judgment and decree of the trial court. It is against these

concurrent judgments and decree of the courts below, the

appellant/plaintiff is before this court.

4. Learned counsel for the appellant/plaintiff would

vehemently argue and contend before this court that

judgment and decree of the courts below in not declaring

the appellant/plaintiff as absolute owner is perverse and

contrary to clinching evidence on record vide Exs.P3 and

P4. Placing reliance on Ex.P3, he would submit to this court

that respondent No.1/defendant No.1 has relinquished his

share and accordingly executed agreement to sell as per

Ex.P3. The said transaction is followed by Ex.P4-Hissa

Tippni. He would submit to this court that respondent

No.1/defendant No.1 has not at all disputed his signature

on Ex.P3. Therefore, due execution of Ex.P4 is proved by

appellant/plaintiff. However, both the courts below have

concurrently erred in discarding Ex.P4 and therefore, he

would submit to this court that substantial question of law

would arise for consideration in the present case on hand.

5. Per contra, learned counsel for respondent

No.1/defendant No.1 repelling the contention canvassed by

the appellant/plaintiff would submit to this court that Ex.P4

is an unregistered document and therefore, both the courts

below have rightly discarded the said document. As such,

there is no error while examining Ex.P4 by the courts

below. He would further submit to this court that

appellant/plaintiff is claiming that respondent

No.1/defendant No.1 has relinquished his share as per

Ex.P3. However, the recitals in Ex.P3 do not indicate that

respondent No.1/defendant No.1 has relinquished his

share. On the contrary, it is an agreement between

appellant/plaintiff and respondent No.1/defendant No.1.

Therefore, remedy if any is to file appropriate suit seeking

enforcement of the said disputed agreement. On these set

of defences, he would submit to this court that no

substantial question of law arises for consideration in the

present case on hand. Therefore, he would request this

court to dismiss the appeal.

6. Heard the learned counsel for the appellants,

learned counsel for the respondents and perused the

judgments under challenge.

     7.    The        short    point     that     would     arise    for

consideration    is,    whether        the    appellant/plaintiff   has

acquired valid right and title on the basis of Exs.P3 and P4.

Admittedly, Ex.P3 is an agreement to sell wherein

respondent No.1/defendant No.1 has agreed to sell his half

share in the suit schedule property for a sum of

Rs.42,000/-. Ex.P4 is a Hissa Tippni, wherein there is

reference that entire sale consideration is received and

under the said document, respondent No.1/defendant No.1

has relinquished his share. These two documents are to be

examined in different context. If appellant/plaintiff is

placing reliance Ex.P3 by alleging that respondent No.1 has

agreed to sell his half share in the suit schedule property,

then remedy if any is to file a suit for specific performance

of contract and enforce the agreement as per Ex.P4.

Therefore, I am of the view that, under Ex.P3,

appellant/plaintiff would not acquire any valid right and

title. At the most, it is an enforceable contract and an

appropriate relief ought to have been sought by the

appellant/plaintiff to enforce Ex.P3, which is not done by

the appellant/plaintiff.

8. The second document needs to be examined by

this court is Ex.P4, which is a Hissa Tippni. Now this

document cannot be examined independently. This

document has to be read conjointly with Ex.P3. The recitals

in Ex.P4 indicate, in view of agreement executed by

respondent No.1/defendant No.1 in favour of

appellant/plaintiff agreed to sell his half share. Ex.P4-Hissa

Tippni is reduced into writing and the said document

indicates that respondent No.1/defendant No.1 has

relinquished his share. The question that would arise is,

whether Ex.P4 is admissible document or not. As per

Ex.P4, respondent No.1/defendant No.1 has agreed to

relinquish his share.

9. It is a trite law that, relinquishment cannot be

either by way of varadi or under an unregistered

document. A valid transfer of right and title would take

place only under an registered document, where the value

of the immovable property is more than Rs.100/-.

Therefore, even as per Ex.P4, the appellant/plaintiff would

not get any right and title. The present suit is filed for

declaration and for consequential relief of injunction.

Admittedly, agreement to sell vide Ex.P3 is dated

17.06.2000 which is subsequent to 1994 Amendment to

Stamp Act. Therefore, appellant/plaintiff cannot assert his

possession based on an unregistered agreement to sell.

Therefore, one more question would also arise, as to how

the appellant/plaintiff can maintain a suit for declaration

and for consequential relief of injunction, when there is no

partition as recognized under law. The present suit is hit by

Section 34 of the Specific Relief Act. No substantial

question of law arises for consideration in the present case

on hand.

The appeal is devoid of merits and is accordingly

dismissed.

Sd/-

JUDGE MBS/-