Basanna S/O Saibanna vs Narasamma
2022 Latest Caselaw 9704 Kant

                               1




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

       DATED THIS THE 27TH DAY OF JUNE 2022

                         BEFORE

  THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                RSA No.2042/2007 (DEC)

BETWEEN:

Basanna S/o Saibanna,
Aged about 69 years,
Occ: Private Service,
R/o Sulepeth, Tq: Chincholi,
Dist. Gulbarga-585 228.
                                                ... Appellant

(By Sri. Ameet Kumar Deshpande, Sr. Advocate for
    Sri. Ganesh S. Kalburgi, Advocate)

AND:

Narasamma D/o Gundappa Talwar,
Since deceased by LR.
Revansiddappa S/o Devappa,
Aged about 65 years,
Occ: Agriculture,
R/o Bibballi, Tq: Sedam,
Dist: Gulbarga-585 222.
                                             ... Respondent
(By Sri. Ravindra. I & Sri. Jagadish. S.M, Advocates)
                                   2



      This Regular Second Appeal is filed under Section
100 of CPC, praying to allow the appeal and to set aside
the judgment and decree dated 02.06.2007 in
R.A.No.8/2006 passed by the learned Civil Judge (Sr.Dn.),
Chinncholi, confirming the judgment and decree dated
30.11.2002 in O.S.No.142/1990 by the learned Civil Judge
(Jr.Dn.), Chincholi and to pass any appropriate order which
this Court deems fit in the circumstances of the case.

     This appeal having been heard and Reserved for
Judgment on 13.06.2022, coming on for pronouncement of
Judgment this day, the Court delivered the following:

                            JUDGMENT

This second appeal is filed by the defendant under

Section 100 of CPC, challenging the judgment and decree

passed by the Civil Judge (Jr.Dn.), Chincholi in

O.S.No.142/1990 dated 30.11.2002 and confirmed by the

Civil Judge (Sr.Dn.), Chincholi in R.A.No.08/2006 dated

02.06.2007.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Trial Court.

3. The brief factual matrix leading to the case are

that, the suit property is a house bearing No.3-79 and

3-80 situated in Sulepeth. The plaintiff's marriage took

place with one Tuljappa when she was young and within

one year of marriage, Tuljappa died and hence, she was

taken by her parents and she began to reside with her

parents. The plaintiff's parents died about 30 years back.

That, one Mallappa Talwar was paternal grand father of the

plaintiff, who had two sons through his wife Iramma

namely, Bandappa and Gundappa. The said Gundappa is

the father of the plaintiff. That, Bandappa had a wife by

name Hashamma. They died issueless. That, Bandappa

and his brother Gundappa were residing jointly. That, the

defendant is a distant relative of the plaintiff. The plaintiff

is an illiterate lady and she is the owner in possession of

the suit schedule property. That, the relatives of the

plaintiff's father used to quarrel with the plaintiff

threatening her to vacate the house and also threatened

her of initiating the proceedings. The plaintiff has

approached the defendant seeking his advise and the

defendant has secured her confidence and further, in order

to look after her problems, he asked her to execute a

general power of attorney in his favour. He took the

plaintiff to Chincholi and managed to secure the thumb

impression in the Tahsil compound on some stamp papers

giving an understanding that she was executing a power of

attorney. Subsequently, the defendant stopped paying rent

and when the plaintiff requested the defendant to pay the

rent, the defendant denied the payment of rent asserting

his title in pursuance of the sale deed. It is alleged that,

taking advantage of the good faith and illiteracy of the

plaintiff, the defendant has got executed the sale deed

under the guise of obtaining power of attorney and she has

not sold the suit property. Hence, she filed a suit for

declaration and injunction.

4. The defendant appeared and denied the claim

of the plaintiff. It is contended that the plaintiff's parents

were addicted to bad habits and defendant's father

Saibanna was looking after the parents of the plaintiff and

out of love and affection, the father of the plaintiff

Gundappa bequeathed suit property to Saibanna i.e., the

father of the defendant. It is further alleged that the

plaintiff had a questionable character, as she had extra

marital relationship and therefore, the parents of the

plaintiff never stayed with her, but they were under the

care and custody of the father of the defendant Saibanna.

Hence, it is contended that after the death of Gundappa

i.e., the father of the plaintiff, defendant's father Saibanna

became the owner in possession of the suit property and

after his death the defendant became the owner. Hence,

he has sought for dismissal of the suit.

5. On the basis of these pleadings, the Trial Court

has framed the following:

ISSUES

1) Whether the plaintiff proves that she is inherited the suit property from her parents?

      2)    Whether the plaintiff proves that she is the
            owner and in possession of suit property




     except the possession of       Room-A shown
     in Plaint sketch?

3) Whether the plaintiff proves that the deft.

resides in the Room-A shown in the plaint sketch as tenant on monthly rent of Rs.5/- since about 6 years?

4) Whether the plaintiff proves that the defendant got executed the sale deed dated 17.7.1985 by practicing fraud and mis-representation, as contended by her?

5) Whether the defendant proves that the plaintiff's father Gundappa bequeathed all his property in favour of defendant's father Saibanna by duly executing a Will deed?

6) Whether the defendant proves that the plff. gave up her rights in suit property in his favour, in a settlement by obtaining Rs.4000/- from him and executed a sale deed dated 17.7.1985?

7) Whether the defendant proves that this is false and vexatious to the knowledge of plaintiff and therefore, he is entitled to get

compensatory costs of Rs.500/- from the plaintiff?

8) To what relief the parties are entitled?

9) What order or decree?

6. After recording the evidence and after hearing

the arguments, the Trial Court has answered issue Nos.1

to 4 in the affirmative and issue Nos.5 to 7 in the negative

and as such, decreed the suit of the plaintiff declaring the

plaintiff being the owner of the suit schedule property and

further it was declared that the sale deed dated

17.07.1985 registered in favour of the defendant is void

ab-initio and ordered to be cancelled.

7. Being aggrieved by this judgment and decree,

the defendant has filed an appeal in R.A.No.08/2006 on

the file of Senior Civil Judge, Chincholi and the learned

Senior Civil Judge, after appreciating the oral and

documentary evidence has dismissed the appeal by

confirming the judgment and decree passed by the Trial

Court.

8. Being aggrieved by these concurrent findings

of the Courts below, this second appeal is came to be filed.

9. The learned counsel for the appellant

contended that the suit came to be filed on 20.04.1990,

but the sale deed was executed on 17.07.1985 and the

suit is filed after three years and hence, suit is barred by

law of limitation. He would also contend that the plaintiff

has not entered into witness box and the power of

attorney of the plaintiff was examined on 21.08.1997 when

the plaintiff was alive and she died subsequently on

26.09.2003. He would further contend that the evidence

disclose that the plaintiff was taking care of herself and

hence, the power of attorney was not competent to give

the evidence regarding the facts within the special

knowledge of the plaintiff. He would further contend that

for non-examination of the plaintiff, adverse inference

ought to have been drawn and the plaintiff could have

been examined under commission also. He would further

assert that the plaintiff has pleaded fraud and

misrepresentation and no specific pleadings have been

made in this regard. He would further assert that though

the defendant has failed to prove his defence, but since

the defendant has approached this Court, the suit cannot

be decreed and when plaintiff has failed to prove, the suit

is required to be dismissed. He would contend that both

the Courts below have erred in decreeing the suit and

dismissing the appeal.

10. The learned counsel for the respondent was

absent all along. However, on 07.03.2022 he had made a

submission that respondent is no more. But, subsequently,

the appellant has filed an affidavit stating that he made an

enquiry and as per his information, the respondent is alive.

In this regard, he filed an affidavit of himself and his son.

However, in the affidavit, he did not specifically assert that

he had seen the respondent personally and only the

affidavit is filed stating that they got ascertained that

respondent is alive. Hence, the matter is proceeded with

in view of the submission on the part of the appellant.

11. This Court, while admitting the appeal has

framed the following substantial questions of law:

1) Whether the courts below were justified in ignoring the sale deed produced by the defendant in proof of the plaintiff having sold this suit property to the defendant?

2) Whether the suit of the plaintiff ought to have been dismissed on the ground of limitation?

12. Having heard the arguments and perusing the

records, it is evident to note here that the plaintiff has filed

a suit for declaration of her title over the suit schedule

property and she has also sought for cancellation of the

sale deed. There is no serious dispute of the fact that the

father of the plaintiff by name Gundappa was the exclusive

owner of the suit schedule property. It is also evident that

the plaintiff was the sole daughter of Gundappa. Hence,

quite naturally the property is inherited by the plaintiff,

which is also not under serious dispute.

13. Very interestingly, it is to be noted here that

the defendant is not asserting title over the suit schedule

property in pursuance of the sale deed said to have been

executed by the plaintiff. On the contrary, the defendant

is asserting the title over the suit schedule property

through his father on the ground that Gundappa

bequeathed the suit schedule property in favour of his

father Saibanna, since his father attended the parents of

the plaintiff and out of love and affection, the Will deed

was executed. The defendant further contended that the

plaintiff has deserted her husband Tuljappa and had illegal

intimacy with one Yenkappa and therefore, she was not

residing with her parents. According to the defendant, his

father was taking care of the parents of the plaintiff and

out of this love and affection, the bequeath was made. It

is also important to note here that the defendant never

disputed the title of the plaintiff over the suit schedule

property, as admittedly the plaintiff was the sole

heir/daughter of Gundappa i.e., her parents. Hence,

naturally the plaintiff inherited the suit schedule property

and if there is a bequeath, the succession will be as per

testamentary succession by deviating from natural

succession.

14. The plaintiff has specifically asserted that her

relatives used to threaten her of initiating proceedings

demanding the schedule property and the defendant was a

tenant under the plaintiff. She contended that he has

obtained her trust and under the guise of protecting her

interest, he has requested her to execute a GPA and under

the guise of executing the GPA, the sale deed was got

executed. It is important to note here that the plaintiff is

an illiterate lady and put thumb on the sale deed. No

doubt, the sale deed is not a compulsory attestable

document, but who has attested the thumb of the plaintiff

is required to be examined to prove the execution of the

sale deed by the plaintiff.

15. Though the defendant has put forward the

defence of bequeath in favour of his father and acquisition

of the property through his father, the Will deed said to

have been executed by Gundappa was not at all produced

before the Court. However, it is important to note here

that the defendant never asserted his title in pursuance of

the sale deed said to have been executed by the plaintiff

dated 17.07.1985. According to the defendant, after the

death of the father of the plaintiff Gundappa, his father

Saibanna became the owner of the suit schedule property

and after his death, he succeeded the suit schedule

property.

16. It is the contention of the defendant that after

the death of plaintiff's parents, she picked up quarrel with

him and claimed share in the suit schedule property and it

was settled in the Panchayat that plaintiff has to receive

Rs.4,000/- from the defendant and execute a

relinquishment deed. But, admittedly no relinquishment

deed was executed and on perusal of the sale deed, no

such recitals were also forthcoming. If at all there was a

panchayat, there should have been some reference in the

sale deed. No doubt, the plaintiff has got examined the

GPA holder as PW.1 on her behalf. The learned counsel for

the appellant has attacked on this evidence by placing

reliance on the decisions of the Hon'ble Apex Court

reported in AIR 2017 (NOC) 835 (KAR.) in the case of

A. C. Nagaveni and others v. Akkamma and others

and (2005) 2 SCC 217 in the case of Janki Vashdeo

Bhojwani and another vs. Indusind Bank Ltd. and

others and argued that the power of attorney cannot

depose regarding personal information within the

knowledge of the plaintiff. There is no dispute regarding

the proposition of law laid down in the above cited

decisions. The power of attorney cannot step into the

shoes of the executant regarding facts within the special

knowledge and he can depose only in respect of acts done

by the power of attorney in exercise of the power granted.

It is also contended that no attempt was made to examine

the plaintiff on commission.

17. The learned counsel for the appellant has also

invited the attention of the Court to the cross-examination

of PW.2, wherein it is elicited that the plaintiff was

attending her work. But, merely because the plaintiff was

able to attend her household work, it cannot be presumed

that she is capable of giving evidence. Very interestingly,

PW.2, who is an attesting witness to the sale deed had

deposed against the defendant. Further, when there was a

bequeath in favour of the defendant, what was the need

for getting executed the sale deed is not explained by the

defendant. Though the defendant pleads regarding

panchayat, he did not state as to when exactly the

panchayat was held and when the amount was paid. As

observed above, the defendant is not at all asserting his

title on the basis of the sale deed, but all along he is

asserting his title through his father, who claims to be the

beneficiary under the Will deed. But, as observed above,

the Will deed itself is not produced by the defendant.

Hence, when the defendant is laying claim of title on the

basis of the Will deed in favour of his father and not

produced the said Will itself, an adverse inference is

required to be drawn against him.

18. Apart from that, when the defendant claims

that the plaintiff has executed a sale deed, he should be

found in possession of the original sale deed. But, very

interestingly the sale deed was produced by the plaintiff

and there is no explanation from the defendant as to how

the plaintiff secured the possession of the original sale

deed which ought to have been in his possession. Hence,

from the conduct of the defendant in not pressing his title

on the basis of the sale deed and non-production of the

sale deed and considering the hostility of the attesting

witness, it is evident that the plaintiff has established that

the sale deed is void and got executed by playing fraud

and misrepresentation. Though the plaintiff was not

personally examined, but the circumstances itself establish

that the sale deed was obtained by playing fraud on the

plaintiff by misusing her illiteracy.

19. Apart from that, all along the contention of the

defendant is that, as per the verdict of the panchayat, the

plaintiff has relinquished her right by receiving Rs.4,000/-.

But, the recitals of the sale deed speak a different version.

Further, in the plaint, there is no pleading regarding

conveying the panchayat. The other material evidence is

that, the plaintiff has paid the tax even in 1996. If at all

the property was sold in 1985, there was no need for the

plaintiff to pay the tax of the schedule property and this is

not explained by the defendant also. This clearly disclose

that the defendant never asserted his title over the

schedule property. No doubt, the defendant is in

possession of portion of the suit schedule property, but he

has failed to establish his title over the schedule property.

In view of the facts and circumstances, though the plaintiff

was not personally examined to prove the fraud and

misrepresentation, but the evidence on record, the

circumstances and the conduct of the defendant in not

pursuing the title on the basis of the sale deed and

production of the sale deed from the custody of the

plaintiff as well as payment of tax of the suit property by

the plaintiff clearly establish that the sale deed was

obtained by playing fraud and misrepresentation. Both the

Courts below have appreciated the oral and documentary

evidence in this regard in detail and have rightly held that

the sale deed was obtained by fraud and

misrepresentation. This finding of both the Courts below

does not call for any interference.

20. The learned counsel for the appellant further

placed reliance on a decision of the Hon'ble Apex Court

reported in AIR 1976 SC 744 (Udhav Singh v. Madhav

Rao Scindia) and contended that a pleading has to be

read as a whole to ascertain its true import and it is not

permissible to cull out a sentence or a passage and to read

it out of the context, in isolation. There is no dispute

regarding this proposition of law. But, it is to be noted here

that it is the defendant, who is all along taking inconsistent

defences. No doubt, the defendant is at liberty to take

contrary and inconsistent defence, but when he is

asserting title under bequeath in favour of his father and

not asserting his title under the disputed sale deed, the

principles enunciated in the said decision will not assist the

defendant/appellant in any way, as the facts and

circumstances are entirely different.

21. The learned counsel would further contend that

since the sale deed is registered, it reinforces valid

execution and in this context, he placed reliance on a

decision of the Honb'le Apex Court reported in 2019 (2)

ALJ 230 (Jamila Begum (D) Thr. L.Rs. v. Shami

Mohd. (D) Thr. L.Rs. and another). There is no dispute

regarding the said proposition of law. But, when the

evidence clearly disclose that the sale deed was obtained

by fraud and misrepresentation, the principles enunciated

in the said decision will not come to the aid of the

defendant/appellant in any way.

22. The learned counsel for the appellant further

contended that there is no specific pleading as per Order

VI Rule 4 of CPC regarding fraud and misrepresentation.

But, the plaint pleadings clearly disclose that the plaintiff

has pleaded as to how the fraud was played on her in

getting the sale deed executed. Hence, the said argument

holds no water.

23. He would further contend that the sale deed

was executed in the year 1985 and the suit was filed in the

year 1990 and the sale deed was not challenged within

three years from the date of execution and hence, the suit

is hit by Article 59 of the Limitation Act, 1963. But, Article

59 clarifies that the limitation commences from the date of

knowledge. In the instant case, the plaintiff specifically

asserted that when the defendant has refused to pay the

rent, then only she got knowledge regarding the alleged

fraud being played in getting executed the sale deed.

Apart from that, this defence was never raised before the

Trial Court or the First Appellate Court and for the first

time it is raised in this second appeal. However, even on

perusing the records and considering the pleadings, this

defence holds no water, as the suit is within time from the

date of knowledge of the fraud.

24. The learned counsel for the appellant further

contended that under Section 114 of CPC, an adverse

inference is required to be drawn and he invites the

attention of the Court to illustration (f) and (g), but the

same is also applicable to the defendant, as he has also

failed to produce the will on which all along his entire case

is based.

25. It is further important to note here that though

the learned counsel for the respondent made a statement

regarding death of the respondent, the appellant and his

son have filed a simple affidavit stating that as per their

information, respondent is alive and they never assert that

they have seen the respondent. This conduct on the part of

the appellant also creates doubt regarding the approach of

the appellant. The defendant has failed to make out any

case for interference with the judgment and decree passed

by both the Courts below. The Courts below were justified

in holding that the sale deed is obtained by fraud and

misrepresentation. The limitation issue also does not

survive for consideration in view of specific pleadings made

by the plaintiff.

26. Considering these facts and circumstances, the

first substantial question is answered in the affirmative and

the second substantial question is answered in the

negative. Hence, the appeal being devoid of any merits

needs to be dismissed. Accordingly, the appeal stands

dismissed.

Sd/-

JUDGE LG