Karnataka High Court
Thimmappa vs Gurappa on 18 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.2545 OF 2018 (PAR)
BETWEEN:
THIMMAPPA,
S/O LATE BASAPPA,
AGED ABOUT 60 YEARS,
RESIDING AT HONNUR VILLAGE,
DAVANAGERE TALUK AND DISTRICT - 577 001.
... APPELLANT
(BY SRI.UDAYA SHANKAR RAI P, ADV.)
AND:
1. GURAPPA,
S/O THIMMAPPA,
AGED 57 YEARS,
RESIDING AT HONNUR VILLAGE, ANAODU HOBLI,
DAVANAGERE TALUK AND DISTRICT - 577 001.
2. GANESHMAL,
S/O MOTHILAL OSWAL,
AGED 53 YEARS,
OCC:BUSINESS,
NEELESH, JEWELLARY NO.C-42, KAIPETE,
DAVANAGERE - 577 001.
... RESPONDENTS
(BY SRI.RAVI G SABHAHIT, ADV., FOR R1;
R2 SERVED AND UNREPRESENTED)
2
THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
03.07.2018 PASSED IN RA NO.6/2017 ON THE FILE OF
THE I ADDL.SENIOR CIVIL JUDGE DAVANAGERE
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 11.11.2016 PASSED IN
OS NO.268/2008 ON THE FILE OF THE PRL. CIVIL JUDGE
AT DAVANAGERE.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by the plaintiff.
2. The plaintiff instituted a suit seeking for a declaration
that the registered sale deed that he had executed on
03.05.2005 in favour of defendant No.1 was only a
nominal sale deed and had been executed only for the
purpose of obtaining a loan.
3. A consequential relief was also sought for, to hold
that the subsequent registered agreement of sale deed
dated 25.01.2007 executed by defendant No.1 in favour of
defendant No.2 was null and void.
4. A prayer was also sought for a direction to defendant
No.1 to cancel the registered sale deed dated 03.05.2005
by receiving the borrowed amount of Rs.50,000/- with
interest as stipulated in the agreement dated 03.05.2005
by issuing a decree of mandatory injunction.
5. The facts as ascertained by both the Courts would
indicate that the plaintiff did execute a sale deed in favour
of defendant No.1 and he had thereby conveyed the suit
property.
6. Admittedly, it was his case, that defendant No.1 had
agreed to re-convey the property after receiving the
borrowed amount of Rs.50,000/- with interest. It is
therefore, clear that an agreement of re-conveyance was
set up by the plaintiff.
7. It may however be pertinent to state here that the
plaintiff did not chose to seek for enforcement of the
agreement of re-conveyance and on the other hand, he
only sought for cancellation of the sale deed executed by
him by issuance of a mandatory injunction against the
defendant.
8. Since, the plaintiff did not chose to enforce his
agreement of re-conveyance, it is obvious that he could
not seek for cancellation of the registered sale deed.
9. The fact that the execution of the sale deed was
admitted and a plea was set up that the property was to
be re-conveyed to the plaintiff on his repayment of the
borrowed sum of Rs.50,000/- with interest, by itself,
establishes that the sale deed was not a nominal sale deed
and therefore, could not be cancelled.
10. Undisputedly, the plaintiff did not produce the
original of the agreement of re-conveyance. Both the
Courts have recorded a finding of fact that this agreement
of re-conveyance has not been proved. It has been held
that though the witnesses to the said agreement of re-
conveyance were known to the plaintiff, none of them were
examined to establish that an agreement of re-conveyance
had in fact been executed.
11. I am therefore of the view that since, both the
Courts have concurrently recorded a finding of fact that
the agreement of re-conveyance had not been proved and
this finding essentially being a finding of fact, no question
of law, much less, a substantial question of law arises for
consideration in this appeal. Consequently, the second
appeal is dismissed.
Sd/-
JUDGE
GH
