Sukanya Shashidhara vs B S Muralidhara
2022 Latest Caselaw 5236 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23RD DAY OF MARCH, 2022

                            BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.F.A NO. 1008 OF 2005(DEC/INJ)

BETWEEN:

1. SUKANYA SHASHIDHARA
W/O LATE B S SHASHIDHARA
AGED ABOUT 43 YEARS

2. B S ABHIJITH
S/O LATE B S SHASHIDHARA,
AGED ABOUT 14 YEARS

3. B S SANDEEP
S/O LATE B S SHASHIDHARA,
AGED ABOUT 11 YEARS

APPELLANTS NO.2 & 3 ARE MINORS
REP BY THEIR NATURAL GUARDIAN & MOTHER
APPELLANT NO.1

ALL ARE RESIDING AT
R/A NO.40, OLD NO.9, C STREET
SECOND CROSS, FORT, BANGALORE-560 002
                                               ...APPELLANTS
(BY SRI.A.BALAKRISHNAN, ADVOCATE)

AND:

1. B S MURALIDHARA
S/O LATE B S SEETHARAMAIAH
SINCE DEAD BY LRs
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1(A). SMT.B.S.SHYLAJA,
W/O LATE B.S.MURALIDHARA,
AGED ABOUT 52 YEARS

1(B). SRI.B.M.BHAGHAV,
S/O LATE B.S.MURALIDHARA
AGED ABOUT 32 YEARS

1(C). SMT. B.M.DHAKSHATHA,
D/O LATE B.S.MURALIDHARA,
AGED ABOUT 22 YEARS
ALL ARE RESIDING AT NO.222, 12TH A MAIN,
8TH CROSS, NANDAVANA LAYOUT,
BUKKASAGARA VILLAGE,
BANNERGHATTA POST, BANGALORE-560083.

2. SMT. VASUNDARA
D/O LATE B S SEETHARAMAIAH
AGED ABOUT 45 YEARS

3. SMT. JANAKAMMA
W/O LATE B S SEETHARAMAIAH
AGED ABOUT 70 YEARS

ALL ARE R/A NO.40, OLD NO.9,
'C' STREET, II CROSS, FORT
BANGALORE-560 002

4. SMT. VIMALA @ VIMALLAMMA
W/O B S SUBRAMANYAM
AGED ABOUT 62 YEARS
RESIDING IN A PORTION OF PROPERTY
NO.40, OLD NO.9, 'C' STREET,
II CROSS, FORT, BANGALORE-560 002
                                           ...RESPONDENTS
(BY SRI.L M RAMAIAH GOWDA, ADVOCATE FOR R1(A TO C) AND
R2; R1 & R2 ARE TREATED AS LRs OF DEAD R3;
V/O DTD 29.11.2010 NOTICE TO R4 H/S)
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     THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT. 19.3.05 PASSED IN O.S.NO.5761/99 ON THE FILE
OF THE VIII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE,
CCH NO.15, DISMISSING THE SUIT FOR DECLARATION,
POSSESSION & PERMANENT INJUNCTION.

    THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.03.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

The captioned regular first appeal is filed by unsuccessful

plaintiffs questioning the judgment and decree dated

19.3.2005 passed in O.S.5761/1989 by the learned VIII

Additional City Civil Judge, Bengaluru.

2. For the sake of convenience, the parties are

referred to as per their rank before the Trial Court.

3. The facts leading to the case are as under:

(a)The original plaintiff namely B.S. Shashidhara filed a

suit seeking relief of declaration to declare him as absolute

owner of Schedule 'A' property and for consequential relief of

injunction. The plaintiff also challenged the sale deed dated

11.7.1972 executed by his father namely B.S. Seetharamaiah

in favour of one R. Lakshminarayana Shastry as null and void

and not binding on plaintiff. Plaintiff also sought relief of

possession of schedule 'B' property from defendant No.4 and

claimed mesne profits.

(b)The subject-matter of the suit is a portion of the

property bearing No.40(old No.9) totally measuring east-west

60 ft and north south 45 ft. The entire suit schedule property

bearing New No.40 (Old No.9) totally measures East-West 60ft

and North-South 45 ft. The suit schedule 'B" property which is

a portion of the above said property measures east-west 13ft

and north-south 45 ft. The plaintiff is seeking relief of

declaration that he is the owner of the suit schedule property.

It is specifically averred by the plaintiff that the suit schedule

properties are the joint family properties of plaintiff and

defendants 1 to 3 and claims that the joint family is in

peaceful possession and enjoyment of the same. Plaintiff has

specifically pleaded at Para 3 of the plaint that the property

bearing No.40 was the subject-matter of suit in O.S.79/1944-

45 and in that proceedings, the western portion fell to the

share of one B.K. Sundarao and Seetharamaiah who is the

father of the plaintiff herein. Plaintiff claims that after the

death of B.K. Sundarao, the father of plaintiff and defendants

1 to 3 continued to be in possession and enjoyment of western

portion. At para 5 of the plaint, plaintiff has specifically

pleaded that his father B.S. Seetharamaiah was of unsound

mind and he was taking treatment in the mental hospital and

when the unsoundness of mind was under control, he was

taking treatment in the house itself and therefore, on account

of his unsound mind was incapable of taking any decision

independently and therefore, the entire family responsibility

was on plaintiff and defendant No.1.

(c)At Para 6 of the plaint, the plaintiff has specifically

pleaded that plaintiff and defendants 1 to 3 never allowed

their father to do any work and he was totally under the

control of plaintiff and defendants 1 and 3. The plaintiff has

contended at Para 8 of the plaint that their grand father and

father let out some portion to the tenants and R.

Lakshminarayana Shastry was one such tenant. At para 9,

the plaintiff has specifically averred that without the consent

of plaintiff and defendants 1 to 3, his father executed a

mortgage deed in favour of one R. Lakshminarayana Shastry

in respect of portion of ancestral property measuring east-

west 13 ft and north-south 45 ft under registered mortgage

deed dated 26.5.1965. The plaintiff also claims that

possession was delivered to said Lakshminarayana Shastry.

Plaintiff has alleged that said Lakshminarayana Shastry taking

undue advantage of the mental illness of their father and with

an oblique motive to knock of the property and cause wrongful

loss obtained a deed of mortgage dated 26.5.1965 and the

second mortgage deed dated 31.1.1971 and consequently,

has secured a registered sale deed on 17.7.1972 in respect of

a portion of Schedule 'A' property. The plaintiff contends that

the sale deed executed by their father is void and illegal and

no legal sanctity can be attached to the said registered

document. On these set of pleadings, the plaintiff sought for

relief of declaration and consequential relief of injunction and

sought possession of schedule 'B' property from defendant

No.4.

(d)On receipt of summons, defendants 1 to 3 have

supported the case of plaintiff. Defendant No.4 who is the

sister of R. Lakshminarayana Shastry filed written statement

and stoutly denied the entire averments made in the plaint.

Defendant No.4 has seriously disputed the allegations in

regard to mental illness of father of plaintiff and defendants 1

and 2 and husband of defendant No.3. Defendant No.4

specifically contended in the written statement that father of

plaintiff and defendants 1 and 2 during his lifetime mortgaged

the property in favour of her brother R. Lakshminarayana

Shastry. It is specifically contended that father of plaintiff was

not in position to discharge and redeem the mortgage and was

compelled to execute the sale deed in favour of

R.Lakshminarayana Shastry for legal necessity to maintain

plaintiff and defendants 1 to 3. It is specifically pleaded that

plaintiff's father executed registered mortgage deed on

26.5.1965 and delivered possession to her brother

R.Lakshminarayana Shastry and was in a sound state of mind

and the said sale was for legal necessity. It is further

specifically contended at Para 5 of the written statement that

Seetharamaiah was working in Hindustan Aeronautical Limited

and was holding a responsible post and even as on the date of

his death, it is pleaded that said Seetharamaiah was in

service. Defendant No.4 specifically contended that the sale

deed is dated 17.7.1972 and the suit is filed after lapse of 27

years. She has specifically pleaded that she has succeeded to

the suit schedule property pursuant to the bequeath made by

her brother out of love and affection and subsequent to the

death of Lakshminarayana Shastry, she is in peaceful

possession and enjoyment without any obstruction.

(e) The trial Court based on the rival contentions, framed

the following issues:

"1. Whether the plaintiff proves that he is the absolute owner in possession of 'A' schedule property?

2. Whether the plaintiff proves that sale deed dated 17.7.1972 executed by Sri.B.S.Seetharamaiah in favour of R.Lakshminarayana Shastry is null and void and not binding on him?

3. Whether the plaintiff proves the alleged interference of the suit property?

4. Whether the defendant Nos.1 to 4 prove that 4th defendant is in possession of B schedule property after the death of Lakshminarayana Shastry?

5. Whether the plaintiff is entitled to declaration reliefs as prayed for?

6. Whether the plaintiff is entitled to permanent injunction as prayed for?

7. Whether the plaintiff is entitled for possession of B schedule property from 4th defendant as prayed for?

8. Whether the plaintiff is entitled to mesne profits from the date of suit till delivery of possession of B schedule property as prayed for?

9. What order?"

(f)The original plaintiff died during pendency of the suit

and his L.Rs were brought on record and plaintiff No.1 who is

the wife of original plaintiff lead her ocular evidence by

examining herself as PW.1 and relied on documents Exs.P1 to

56.

Defendant No.4 did not choose to contest the

proceedings by leading any ocular evidence and no documents

were produced.

(g)The Trial Court having examined the ocular and

documentary evidence and also the pleadings of the parties

held that plaintiff has failed to prove that his father

Seetharamaiah was mentally ill. The Trial Court was of the

view that the averments in regard to the mental illness of

original plaintiff's father is contrary to Exs.P2 and 3 which are

registered mortgage deeds and also the recitals in Ex.P4. The

Trial Court while negativing the contentions of plaintiff has

also recorded a finding that the sale deed is of the year 1972

and suit is filed in the year 1999 and therefore, has come to

the conclusion that the documents are more than 30 years old

and therefore, have got presumptive value which is not at all

rebutted by the plaintiff. The Trial Court has also come to the

conclusion that the plaintiff without questioning the mortgage

deeds cannot question the sale deed.

(h)On mental illness, the Trial Court having appreciated

the ocular and documentary evidence has held that except

bald averments in the plaint, no clinching evidence is adduced

to indicate that B.S. Seetharamaiah was of unsound mind and

was admitted in the hospital. The Trial Court was of the view

that no independent witness is examined. The Trial Court has

drawn an adverse inference against the plaintiff for having not

specifically denied in the examination-in-chief in regard to

specific allegations by defendant No.4 that B.S.Seetharamaiah

was employed in Hindustan Aeronautical Limited and was

holding a crucial post.

(i)The Trial Court having perused final decree drawn in

O.S.7823/80 as per Ex.P6, has come to the conclusion that if

original plaintiff K. Shashidara was allotted 4/13th share, the

original plaintiff cannot claim right and title in the suit

schedule 'A' property in excess of his 4/13th share which was

allotted to him by way of compromise in the above said suit.

On these set of reasoning, the Trial Court has proceeded to

dismiss the suit.

Hence, the present second appeal by the appellants who

are the legal representatives of the original plaintiff.

4. Learned counsel appearing for the plaintiff would

vehemently argue and contend before this Court that the

judgment and decree of the Trial Court suffers from serious

infirmities and therefore, warrant interference at the hands of

this Court. He would point out that deceased B.S.

Seetharamaiah was undergoing treatment in NIMHANS and

therefore, the sale deed executed by B.S.Seetharamaiah in

favour of R. Lakshminarayana Shastry is void and therefore,

not binding on plaintiff. To counter the conclusions and

reasonings of the Trial Court in regard to the mental illness of

B.S.Seetharamaiah, the learned counsel for the plaintiff would

place reliance on additional evidence produced before this

Court and would submit the same would clearly clinch the

issue and therefore, to do substantial justice he would request

this Court to take additional evidence on record.

Questioning the locus-standi of defendant No.4, he would

submit that defendant No.4 had filed a suit for declaration and

injunction on the basis of the Will executed by her brother R.

Lakshminarayana Shastry in O.S.3839/1985 and the said suit

was dismissed by the judgment and decree dated 30.5.2000

and therefore, would contend that she is not competent to

contest the present suit. By way of amendment, the plaintiff

has also sought for amendment in regard to the extent

mentioned in the schedule.

5. The learned counsel appearing for defendants 1 to

3 would however support the plaintiff. Defendant No.4 who is

the contesting party is served and unrepresented.

6. Heard the learned counsel for the appellant-plaintiff

and learned counsel for respondents-defendants 1 to 3.

7. The following points would arise for consideration:

"1.Whether the Trial Court was justified in holding that plaintiff has failed to establish that he is the absolute owner of schedule 'A' property?

2. Whether the Trial Court was justified in holding that the sale deed dated 17.7.1972 executed by B.S. Seetharamaiah in favour of Lakshminarayana Shastry is binding on plaintiff?

3. Whether the plaintiff has made out a case to take the additional evidence on record as sought in I.A.No.1/2005 and is entitled for amendment of plaint as sought in I.A.No.2/2005?"

8. Findings on Points 1 and 2:

(a)The plaintiff is asserting right and title over the

portion of the property bearing No.40 situated at C Street, 2nd

Cross, Fort, Bengaluru. It would be useful for this Court to

cull out schedule "A" which is as under:

"Portion of the property bearing No.40 (Old No.9) 'C' Street, Second Cross, Fort, Bangalore-2, measuring East to West 13 Feet and North to South 45 Feet, bounded on:-

East By : Property of Sri.B.S.Muralidhara (Formerly Property of Late B.K.Narasimha Sastry)

West by : Portion of the Property bearing No.40 (Old No.9) falledn to the share of Sri.B.S.Muralidhara

North by : Property of Sri. Sriramalu

South by : Property of Smt.Kannamma"

(b)It would be also useful for this Court to examine the

prayer sought for by the plaintiff in the present suit. The relief

sought by the plaintiff is as under:

"a). For a declaration that the plaintiff is the absolute owner of the suit 'A' schedule property.

b). For permanent injunction restraining the fourth defendant her agents workmen or persons claiming under her from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property.

c). For possession of the 'B' Schedule property, property from, the fourth defendant.

d). For a declaration that the sale deed dated 17.07.1972 executed by Sri. B.S.Seetharamaiah in

favour of R.Lakshminarayana Shastry is null and void and not binding on the plaintiff,

e). For mesne profits from the date of the suit till the date of delivery of possession of the 'B' schedule property by the fourth defendant to the plaintiff.

f). For costs of the suit and for such other relief or reliefs as this Hon'ble Court deems fit to grant to the plaintiff under the facts and circumstances of the case."

The plaintiff has not at all disputed the registered

mortgage deed executed by his father B.S. Seetharamaiah in

favour of Lakshminarayana Shastry under registered mortgage

deed dated 26.5.1965. The plaintiff is questioning the sale

deed executed by his father in favour of Lakshminarayana

Shastry on the ground that his father was of unsound mind

and was taking treatment in the mental hospital. The plaintiff

has also averred that when the mental illness was under

control, he was taking treating at home only. Plaintiff's specific

claim is that his father was incapable of taking any decision

and therefore, he was not allowed to do any work

independently. These allegations are countered by defendant

No.4 and a specific contention is taken at Paragraph 5 of the

written statement wherein defendant No.4 has specifically

contended that plaintiff's father was employed in HAL and that

he was holding a responsible post and even as on the date of

his death he was in service. Paragraph 5 of the written

statement would be relevant to decide the present case

between the parties and the same is culled out as under:

"5. In reply to para No.5 of the plaint all the averment are denied in toto and the plaintiff is to strict proff of the same. It is submitted that Sri. Seetharamaiah the father of the plaintiff who was of sound mind and he was working in H.A.L. and holding a responsible post and even on the date of death Seetharamaiah he was in service and obtained all the necessary benefits during his life time and also the defendant No.3 being the wife of Sri.Seetharamaiah was getting all the benefits of the deceased Seetharamaiah. It is submitted that the averments is totally false that the family responsibility was shoulder on the plaintiff since the father of the plaintiff till his death was in sound state of mind was disclosing the family responsibility by maintaining his wife and children. It is also denied that the B.K.Narasimha Shastry the uncle of the B.K.Seethraramaiah was looking after the entire family of the plaintiff and the plaintiff father Sri.Seetharamaiah who was all alone capacitated and also capable of maintaining his family members and as such the question of Sri.

B.K.Narasimha Shastry being maintained the plaintiffs family is highly unimaginable."

(c)These specific allegations at para 5 of the written

statement is not at all disputed by the plaintiff by filing

rejoinder to the said allegations. Though plaintiff is not cross-

examined by defendant No.4, it is more than trite that plaintiff

who has filed comprehensive suit seeking relief of declaration

of title has to prove his case by producing cogent and clinching

evidence. Though plaintiff has questioned the sale deed

executed by his father and is asserting right and title on the

basis of the compromise decree passed in O.S.7823/1980, this

Court has to examine as to whether the plaintiff is entitled for

declaration of his right over the Schedule 'A' property. The

plaintiff has in fact placed reliance on compromise decree

passed in OS.No.7823/1980. The said suit was filed by the

original plaintiff-B.S.Shashidhara seeking partition and

separate possession of his 4/13th share in the suit schedule

property. The said suit ended in compromise and as per the

compromise decree the original plaintiff-B.S.Shashidhara was

allotted eastern portion of Schedule 'A' which totally measures

13' 10" north-south and 45" east-west. The compromise

decree is produced at Ex.P6. From the sketch which is

annexed to the compromise decree, it is clearly evident that

original plaintiff- B.S.Shashidhara was allotted a portion of

schedule 'A' measuring east-west 32' and north-south

13'10". Schedule 'A" property totally measures east-west 32 ft

and north-south 45 ft. The remaining portion was in fact sold

by plaintiff's father B.S. Seetharamaiah in favour of R.

Lakshminarayana Shastry under the registered sale deed

dated 17.7.1972.

(d)The compromise decree passed in O.S.No.7823/1980

would clearly clinch the entire controversy between the

parties.

It would be useful for this Court to refer to the terms of

compromise recorded in O.S.No.7823/1980 as per Ex.P6. The

relevant portion reads as under:

"In terms of the compromise petition, it is ordered and decreed that-Out of the 'A' schedule

property, the plaintiff Sri. B.S.Shashidhara, be allotted 4/13th share towards his share, which measures East to West 32' and North to South 13'10'' which is demarcated as ABCD and coloured in PURPLE in the sketch annexed herewith.

(e) On perusal of cause title of O.S.No.7823/1980, this

Court would find that Lakshminarayana Sastry was arrayed as

defendant no.5 in the above said suit and after his death his

son L.V. Sharma was brought on record. The plaintiff is

claiming that the purchaser's son L.V. Sharma was party to

the suit and he has given up his rights in schedule 'A'

property. But on perusal of the final decree, it is clearly

evident that out of schedule 'A' property, the original plaintiff

B.S.Shashidhara was allotted 4/13th share and from para 5 of

the decree, it is clearly evident that the 'ABCD' portion which

is shown in purple colour was allotted to original plaintiff

B.S.Shashidhara. If the legal representative of defendant

no.5-Lakshminarayana Shastry had given up his share in the

schedule 'A' property, then there was no need to allot only a

portion in schedule 'A' property which is evident from Ex.P6.

Therefore, in terms of the compromise decree as per Ex.P6,

the plaintiff never questioned the sale deed executed by his

father in favour of Lakshminarayana Shastry. Therefore, the

contention of the plaintiff that in view of the compromise

arrived at in O.S.No.7823/1980, the legal heirs of

Lakshminarayana Shastry lost their right and title cannot be

acceded to. If original plaintiff-B.S.Shashidhar was only

allotted 4/13th share in schedule 'A' in 1980, he cannot

question sale deed dated 17.7.1972 in the present suit. If at

all the sale deed executed by plaintiff's father was not a

genuine transaction, nothing prevented the original plaintiff

B.S.Shashidhara to question the same in O.S.No.7823/1980.

By not including the portion which was subject-matter of sale

deed dated 17.7.1972, the plaintiff's family had waived off

their right if any and therefore, the present suit filed by

plaintiff seeking right and title over the remaining portion

which was the subject-matter of sale deed 17.7.1972 is not at

all maintainable and therefore, this Court is of the view that

the plaintiff is not entitled for the relief of declaration to the

remaining portion in schedule 'A'.

(f)The prayer sought in the plaint is quite deceptive and

a false claim is made by the plaintiffs. This Court is also of the

view that Lakshminarayana Shastry did not acquire right and

title on the suit schedule property only on the basis of the

registered sale deed 17.7.1972. The plaintiffs have not at all

disputed that B.S. Seetharamaiah had in fact mortgaged the

suit property in favour of L.N. Lakshminarayana Shastry under

registered mortgage deed dated 26.5.1965. At para 12 the

plaintiff has admitted in unequivocal terms that there was

second mortgage on 31.1.1971. It is also admitted by the

plaintiff that pursuant to the registered mortgage deed R.

Lakshminaraya Shastry was put in possession of the suit

schedule property. Therefore the present suit is also not

maintainable without questioning the registered mortgage

deed dated 26.5.1965 and second mortgage dated 31.1.1971.

If B.C. Seetharamaiah failed to seek redemption of mortgage

it was well within the authority of R. Lakshminarayana Shastry

to proceed against the mortgage property and therefore, the

registered sale deed dated 17.7.1972 executed by

Seetharamaiah would bind the plaintiff as well as present

appellants(L.Rs of original plaintiff) also.

For the foregoing reasons points, 1 and 2 are answered

in affirmative.

9. Regarding Point No.3:

(a)The plaintiff has filed an application in I.A.No.1/2005

under Order 41 Rule 27 of CPC seeking leave of the Court to

produce additional documents. Para 5 of the affidavit reads

as under:

"5. I submit that I was not aware of the fact that my father-in-law Sri.B.S.Seetharamaiah was admitted to the Mental Hospital, Bangalore for unsoundness of mind and that he was admitted to the hospital for his medical treatment as an in-patient and also as an out- patient in the month of June 1965 and he was admitted as in-patient for the period 16-08-1965 to 28-4-1966 and he was discharged on parole on 28- 04-1966 for quite some time."

(b)If the averments made at Para 5 are taken into

consideration, the plaintiff herself admits that B.S.

Seetharamaiah was discharged on parole on 28/4/1966. The

averments at para 5 also indicates that he was taking

treatment as an out-patient. The insanity defence is the legal

concept and not a clinical one. Merely because a person was

suffering from a mental disorder in itself would not be

sufficient to prove insanity. The burden was on the plaintiff to

prove the allegations relating to mental illness of B.S.

Seetharamaiah. It is a trite law that a person who claims and

alleges mental illness, the burden lies on such person to

specifically plead and prove the specific period during which

the person alleged was suffering with unsoundness of mind as

well as nature and extent of such unsoundness of mind.

Mental incapacity arising out of any reason deprives a person

not only of full understanding of transaction, but also the

awareness that he does not understand it. Though plaintiff

has pleaded in the plaint that B.S. Seetharamaiah on account

of mental illness was not allowed to do any work, the said

allegation is not at all corroborated by producing clinching

evidence. Defendant No.4 has specifically contended in the

written statement that B.S. Seetharamaiah was employed in

Hindustan Aeronautical Limited. This factual aspect is not at all

disputed by the plaintiff. It is a trite law that there is a

presumption in favour of sanity and the onus of proving

insanity is on the person who alleges the same.

(c)The additional documents which are sought to be

produced before this Court are documents relating to mental

illness of B.S.Seetharamaiah. The plaintiff claims that these

medical records were in fact produced in O.S.7823/1980. The

plaintiff claims that as the matter ended in compromise, these

medical records were not marked in the earlier suit. Though

these documents are sought to be produced however this

Court would find that the plaintiff has not sought amendment

of plaint. In the absence of specific pleadings relating to the

details of the mental illness and also the gravity of mental

illness, these additional documents are not at all necessary for

effective adjudication of the controversy between the parties.

In the preceding paragraph while dealing with points 1 and 2

this Court has taken note of the compromise decree passed in

O.S.No.7823/1980. The plaintiff has not at all challenged the

alienation as well as the mortgage by his father B.S.

Seetharamaiah in O.S.No.7823/1980. Therefore, the present

suit itself is not maintainable. The compromise decree is dated

6.1.1993 and the present suit is filed on 26.7.1999. The time

limit for questioning the sale deed as per Article 58 of the

Limitation Act is three years. Therefore, the time limit for

cancellation of sale deed being three years, any cancellation or

challenge to the sale deed has to be made within the specified

time. This Court is also of the view that the present suit

questioning the sale deed dated 17.7.1972 is also not

maintainable without questioning the registered mortgage

deed executed by B.S. Seetharamaiah in favour of

Lakshminarayana Shastry. It is in this background, this Court

is not inclined to admit the additional evidence. The additional

documents have no relevancy to the issue on hand. The true

test for admissibility of evidence is whether the appellate

Court is able to pronounce the judgment on the materials

before it without taking into consideration the additional

evidence sought to be adduced. Since the suit itself is not

maintainable, this Court is of the view that the additional

documents sought to be produced is neither crucial nor

relevant for proper disposal of the matter on hand. I am also

of the view that the additional documents sought to be

produced are also not at all necessary in the interest of

justice. The present suit filed by original plaintiff B.S.

Shashidara lacks bonafides and is filed with an oblique motive.

Having succeeded to a portion of schedule property in the

earlier suit bearing OS.No.7823/1980, a false claim is made

and a feeble attempt is made to challenge the sale deed which

is dated 17.7.1972 executed by his father B.S.

Seetharamaiah. Therefore, I am of the view that the additional

evidence is not at all necessary to decide the lis and

accordingly, the application in I.A.No.1/2005 is rejected.

Consequently, the amendment application filed in

I.A.No.2/2005 is also rejected for the reasons stated supra.

Accordingly, the point formulated is answered in the negative.

10. In view of the findings recorded by this Court on

points 1 and 2, this Court is of the view that the findings and

conclusions arrived at by the trial Court is in accordance with

law and therefore, the same does not suffer from any

infirmities. The Trial Court was justified in recording a

categorical finding that plaintiff having succeeded to half

portion in schedule 'A" property in O.S.No.7823/1980 as per

Ex.P6 cannot assert title in respect of remaining portion which

was not the subject-matter of the partition suit. The finding

recorded by the Trial Court on Issue No.1 is in accordance with

law. The Trial Court while answering Issue No.2 was justified

in recording the finding that the plaintiff has failed to prove

the sale deed dated 17.7.1972 executed by B.S.

Seetharamaiah in favour of brother of defendant No.4 is null

and void and not binding on him. In the absence of clinching

evidence to show that plaintiff's father was incompetent to

mortgage the suit schedule property and consequently execute

the sale deed, the Trial Court was justified in answering issue

No.2 in negative. Therefore, having examined the entire

material on record, the Trial Court was justified in recording a

categorical finding that the plaintiff is not entitled for the relief

of declaration in respect of schedule 'A" property. The Trial

Court has not at all committed any error in dismissing the suit.

No illegalities or infirmities are forthcoming in the judgment

under challenge.

In the result, the appeal is dismissed.

Sd/-

JUDGE

*alb/-