Sri. Mahesh S/O Dhondiram Gumte vs Sri. Chandrakanth S/O ...
2022 Latest Caselaw 9214 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 21ST DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                RSA No.200080/2020 (INJ)

BETWEEN:

Sri. Mahesh S/o Dondiram Gumte,
Age: 26 years, Occ: Private Service,
R/o Filter Bed Area,
Tq: & Dist: Kalaburagi-585 101.
                                             ... Appellant

(By Sri. Shravan Kumar Math, Advocate)

AND:

1.     Sri. Chandrakanth
       S/o Mallikarjunappa Biradar,
       Aged about 47 years, Occ: Business,
       R/o Filter Bed Area,
       Kalaburagi - 586 101.

       Kaviraj Belamagi
       Since deceased through
       His Legal representatives

2.     Smt. Viajayalaxmi
       W/o Late Kaviraj Belamagi,
       Age: 34 years, Occ: Blacksmith
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3.   Kum. Chetan S/o Kaviraj Belamgi,
     Age: 15 years, Occ: Student,
     Since minor represented by his
     natural Guardian Mother and
     respondent No.2 herein.

4.   Kum. Sachin S/o Kaviraj Belamgi,
     Age: 13 years, Occ: Student,
     Since minor represented by his
     natural Guardian Mother and
     respondent No.2 herein.

     All above respondent Nos.2 to 4 are
     R/o Bhavani Nagar,
     Munim Sangh, Kalaburagi-585 101.

5.   Bhavana Maisalagi,
     Age: 60 years,
     Occ: Controller of KSRTC Dept.
     R/o Bhavani Nagar, Munim Sangh,
     Kalaburagi-585 101.
                                            ... Respondents

                          ***

     This Regular Second Appeal is filed under Section
100 of CPC, praying to allow the appeal by setting aside
the judgment and decree dated 03.12.2019 passed in
R.A.No.82/2015 on the file of Prl. Senior Civil Judge,
Kalaburagi in confirming the judgment and decree dated
10.09.2015 passed in O.S.No.223/2003 on the file of
Prl. Civil Judge & JMFC at Kalaburagi and to pass any other
appropriate order which this Court may deem necessary in
the circumstances of the case.
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        This RSA coming on for admission this day, the Court
delivered the following:


                           JUDGMENT

This appeal is filed under Section 100 of the Code of

Civil Procedure, 1908 by the plaintiff against the

concurrent findings given by the Principal Civil Judge and

JMFC, Kalaburagi in O.S.No.223/2003 dated 10.09.2015

and the Principal Senior Civil Judge, Kalaburagi in

R.A.No.82/2015 dated 03.12.2019.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by the before

the Trial Court.

3. The brief factual matrix leading to the case are

that, the plaintiff has filed a suit for perpetual injunction

restraining the defendants and their men from interfering

with his peaceful possession and enjoyment over the suit

schedule property. The plaintiff claims to be the owner in

possession of the suit schedule property by virtue of

agreement of sale dated 11.02.2002 executed by

defendant No.1 for valid consideration amount. It is

asserted that defendant Nos.2 and 3 claiming to be the

purchasers of the suit schedule property are trying to

interfere and hence, he filed the suit for bare injunction.

4. In pursuance of suit summons, defendant

Nos.2 and 3 have appeared through their counsel and filed

their written statement disputing the claim of the plaintiff.

Defendant Nos.2 and 3 contended that they have

purchased the suit schedule property under the registered

sale deed and were put in possession of the suit schedule

property and they have disputed the alleged agreement of

sale said to have been executed by defendant No.1 in

favour of the plaintiff. Defendant No.1 did not appear and

contested the case. Hence, he was placed exparte.

Defendant No.4 was impleaded during the pendency of the

suit.

5. The Trial Court, after appreciating the oral and

documentary evidence, dismissed the suit of the plaintiff

holding that the plaintiff has failed to prove his lawful

possession over the schedule property as on the date of

the suit.

6. Being aggrieved by this judgment and decree

passed by the Trial Court in O.S.No.223/2003, the plaintiff

has filed regular appeal in R.A.No.82/2015. The First

Appellate Court, by judgment and decree dated

03.12.2019, dismissed the appeal by confirming the

judgment and decree passed by the Trial Court.

7. Against these concurrent findings, the plaintiff

has come up with this second appeal.

8. Heard the arguments advanced by the learned

counsel for the appellant.

9. The learned counsel for the appellant would

contend that the appellant/plaintiff was put in possession

of the suit schedule property under the agreement of sale.

However, it is to be noted here that the agreement of sale

does no confer any right, title or interest. The plaintiff

though asserts that there is a recitals of handing over the

possession in the agreement of sale, he has not filed any

suit for enforcing the said contract under the agreement of

sale. If at all the agreement of sale is coupled with

possession, then stamp duty equal to sale deed is required

to be paid. But, the learned counsel admits that no stamp

duty was paid. In that event, for admitting the agreement

of sale, stamp duty and penalty is required to be collected

and the document is required to be impounded. But, none

of these things were taken place and plaintiff has never

enforced his right under the agreement of sale.

10. On the contrary, in the plaint, plaintiff has

pleaded that he is the owner in possession of the suit

schedule property. But, it is evident that he is claming his

possession only on the basis of agreement of sale. On the

contrary, defendant Nos.2 and 3 have purchased the suit

schedule property and the sale deed is in their names.

The sale deed was never challenged. Further, the

observation of the Trial Court as well as the First Appellate

Court clearly disclose that Ex.P3 is relied by the plaintiff

claiming to be an agreement of sale, but both the Courts

below have observed that it is not an agreement of sale,

but it is an out and out sale. When Ex.P3 is an out and out

sale, then it becomes compulsory registerable document

and further stamp duty and penalty is required to be

collected. Hence, the said document needs to be

impounded to the State.

11. Both the Courts below consistently after

assessing the oral and documentary evidence have come

to a conclusion that the plaintiff has failed to prove his

lawful possession over the suit schedule property as on the

date of the suit. No illegality or infirmity is found with the

judgment and decree passed by the Trial Court and

confirmed by the First Appellate Court. No substantial

question of law is involved in the instant case so as to

entertain the second appeal. Under such circumstances,

the appeal is devoid of any merits and needs to be

dismissed.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

LG/msr