Smt. Channamma vs Sri. Siddappa
2022 Latest Caselaw 13103 Kant

                        1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 17TH DAY OF NOVEMBER, 2022

                     BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

           R.S.A NO. 1024 OF 2015(RES)
BETWEEN:

SMT. CHANNAMMA
DEAD BY LRS.

1A). SRI.BORAIAH
S/O YARABOTHLA OBAIAH, AGED ABOUT 60 YEARS

1B). SRI.PALAIAH
S/O YARABOTHLA OBAIAH, AGED ABOUT 58 YEARS

1C). SRI.CHANNAPPA
S/O YARABOTHLA OBAIAH,AGED ABOUT 56 YEARS

1D). SRI.BORAIAH
S/O YARABOTHLA OBAIAH,AGED ABOUT 60 YEARS

1E). SRI.BASANNA
S/O YARABOTHLA OBAIAH,AGED ABOUT 50 YEARS

1F). SRI.THIPPESWAMY
S/O YARABOTHLA OBAIAH,AGED ABOUT 47 YEARS

ALL ARE RESIDING AT
BACHOBORANAHATTI, GONUR MAJURE
CHITRADURGA TALUK & DIST - 577501.
                                     ...APPELLANTS
(BY SRI.SIDDAPPA B M, ADVOCATE)
                          2

AND:

SRI. SIDDAPPA, DEAD BY LRS.

1A). SMT SIDDAMMA
DEAD BY LRS
RESPONDENT 1(B) TO 1(C) ARE
TREATED AS LRS OF R1(A).
AS PER THE ORDER DATED 07.12.2021.

1B). GOWRISH.S
S/O LATE SIDDAPPA, AGED ABOUT 48 YEARS

1C). THIPPESWAMY
S/O LATE SIDDAPPA, AGED ABOUT 42 YEARS

ALL ARE PERMANENTLY RESIDING AT
BOMMAKKANAHALLI, TURAVANUR HOBLI,
CHITRADURGA TALUK.

NOW RESIDING AT C/O ESHWARAPPA
EKANATHESHWARI NILAYA
NEAR KALIKADEVI TEMPLE,
BEHIND MAHARANI COLLEGE,
KAMANABAVI EXTENSION,
CHITRADURGA TOWN, CHITRADURGA-577501.
                                     ...RESPONDENTS
(BY SRI.G.MUNISWAMAPPA, ADVOCATE FOR R1(A-C);
V/O DTD: 07.12.2021 R1(B-C) ARE TREATED AS LRS OF
R1(A))

     THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DATED
17.03.2015 PASSED IN R.A. NO.42/2012 ON THE FILE OF
THE II ADDL. SENIOR CIVIL JUDGE AND J.M.F.C.,
CHITRADURGA,     DISMISSING     THE     APPEAL  AND
CONFIRMING THE JUDGMENT AND DECREE DATED
12.10.2012 PASSED IN O.S. NO.20/2002 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE & J.M.F.C., CHITRADURGA.
                               3

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 08.09.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                        JUDGMENT

The captioned second appeal is filed by the

unsuccessful defendant who has questioned

concurrent judgments and decrees of the Courts

below wherein both the Courts have declared plaintiff

as the owner of the suit schedule property and have

further declared that the sale deed dated 16.12.1989

is a fraudulent and a void document and

consequently, defendant is directed to deliver

possession of the suit schedule property in favour of

the plaintiff.

2. For the sake of convenience, the parties

are referred to as per their rank before the Trial Court.

3. Plaintiff instituted a suit for possession.

Plaintiff also sought the relief of declaration claiming

that he is the absolute owner of the suit schedule

property. Plaintiff specifically contended that he has

acquired the property vide indenture of deed dated

20.10.1970. Plaintiff specifically pleaded that owing

to his health problems he was compelled to migrate to

Nannivala from Bommakkanahalli village. Plaintiff

claimed that suit land was given to the husband of

defendant who readily agreed to cultivate the land by

giving half share in the agriculture yield to the

plaintiff. Plaintiff further claimed that when defendant

was called upon to handover possession, she declined

on the premise that she is the owner of the suit

schedule property. Plaintiff immediately rushed to the

revenue office and on enquiry found that defendant

has concocted a fraudulent document styled as sale

deed dated 16.12.1989. Plaintiff alleged that this sale

deed is created by false personation and therefore,

questioned the sale deed to declare it as a void

document.

3(a) Defendant on receipt of summons tendered

appearance and stoutly denied the entire averments

made in the plaint. Though defendant admitted

plaintiff's title, however, claimed that after the death

of her husband she continued to cultivate the land in

question and therefore, she purchased the suit land

under registered sale deed dated 16.12.1989.

Therefore, she claimed to be the absolute owner and

prayed for dismissal of the suit. The defendant also

claimed that the suit is barred by limitation.

3(b) Plaintiff to substantiate his claim examined

himself as P.W.1 and examined one witness as P.W.2

and adduced documentary evidence vide Exs.P1 to

P10, while defendant led evidence through her GPA

who is examined as D.W.1 and adduced rebuttal

documentary evidence vide Exs.D1 to 9.

3(c) Pending consideration of the suit, plaintiff

filed an application seeking an expert's opinion in

regard to the disputed and admitted signatures found

on the alleged sale deed. The said application was

allowed and the matter was referred to handwriting

expert. The handwriting expert has submitted her

report which is marked at Exs.C1 to C6 and the

handwriting expert is examined as C.W.1. Defendant

has not chosen to cross examine the handwriting

expert and objections are filed to the report. The Trial

Court having assessed the oral and documentary

evidence as well as the report of the handwriting

expert has come to the conclusion that the alleged

sale deed set up by defendant vide Ex.D2 is a

fraudulent document and consequently, proceeded to

declare the said sale deed as void. The Trial Court

having examined the report of the Court

Commissioner and other clinching evidence led by

plaintiff has come to the conclusion that the sale deed

is a created document and therefore, referring to the

Commissioner's report, the Trial Court has come to

the conclusion that the sale deed is created by a false

personation and on these set of reasoning, the Trial

Court has proceeded to decree the suit.

3(d) Feeling aggrieved by the judgment and

decree of the Trial Court, the defendant preferred an

appeal before the Appellate Court. The Appellate

Court on re-appreciation of the oral and documentary

evidence has also concurred with the findings

recorded by the Trial Court insofar as the disputed

sale deed is concerned. The Appellate Court has also

taken note of the Commissioner's report and in

absence of serious contest by defendant, the Appellate

Court has also placed reliance on Commissioner's

report and found that the specimen thumb impression

and also the specimen signatures on comparison with

the disputed left thumb mark signatures were found to

be not identical. The Commissioner on comparison of

the specimen left hand thumb impression and the

admitted signatures with the disputed left thumb mark

signature has clearly opined that they are not made

by the same person. The commissioner has opined

that the disputed signatures are not identical to that

of specimen signatures. On thumb impression, the

expert has stated that they are made by different

thumbs of different persons. It is in this background,

the Appellate Court was also not inclined to interfere

with the judgment and decree of the Trial Court.

Consequently, the appeal is dismissed.

3(e) These concurrent judgments are under

challenge at the hands of the defendant herein.

4. This Court vide order dated 14.07.2016 has

formulated following substantial question of law:

"1. Were the Courts below justified in decreeing the suit of the plaintiff, when the plaintiff filed the suit for cancellation of the sale deed dated 16.12.1989 only on 25.08.2000 after lapse of 11 years in view of Article 59 of the Limitation Act?

2. Were the Courts below justified in decreeing the suit of the plaintiff shifting the entire burden on the defendant to prove the case?

3. Were the Courts below justified in decreeing the suit of the plaintiff ignoring the material documents Exs.D1 to D9?

4. Were the Courts below justified in decreeing the suit of the plaintiff in the facts and circumstances of the case?"

5. Heard the learned counsel for the

defendant and learned counsel appearing for plaintiff.

6. The material on record clearly indicates

that defendant is not disputing the title of plaintiff.

There are serious allegations against defendant that

the sale deed is obtained by false personation and it is

a fraudulent document and therefore, plaintiff claims

that defendant has not acquired any right over the

suit schedule property. For reasons best known to

defendant she has not chosen to step into the witness

box while she has examined her son as D.W.1. It is

further found from the materials that defendant for

reasons best known to her has not chosen to cross-

examine the hand writing expert who is examined as

C.W.1. On the contrary, plaintiff has made all

possible efforts to substantiate his claim. He has also

taken pains to examine the Sub-Registrar of

Chitradurga Taluka who is examined as P.W.2. By

examining the Sub-Registrar, plaintiff has made all

possible efforts to secure the original register

containing the signatures and thumb impressions of

the seller and buyer maintained in the office. Based on

these original documents, the plaintiff has also taken

pains to seek handwriting expert's opinion and the

admitted specimen of thumb impression with the

disputed thumb impression and the admitted and

disputed signatures found on the alleged sale deed

were sent to handwriting expert's opinion.

7. The Commissioner's report would virtually

clinch the entire controversy between the parties. The

relevant portion of the opinion of the hand writing

expert relating to the comparison of thumb impression

and also disputed signatures with that of admitted

signatures would be relevant and the same are culled

out as under:

"I have carefully examined the specimen left thumb impressions of Siddappa and is marked as Al & A2.

I have also carefully examined the disputed impressions in the thumb impression register Vol.No.430-449 in Ex.P10(a) is marked as Q1 & impression in the sale deed dated 16.12.80 Ex.D2 marked as Q2.

I have taken photographs of the specimen & disputed impressions. Enlarged photographs with C.D are herewith enclosed.

For the purpose of comparison specimen impression A1 is taken by me.

I have compared the impressions Q1,Q2 with that of the specimen impression A1.

On comparison the pattern of the disputed impression Q1,Q2 are being whorl type.

specimen impression A1 is being loop type.

The trend and flow of the ridges are circular in the disputed impression Q1 & Q2.

In the specimen impression the ridges bends in the center and slopes towards left side.

The basic pattern are different in the Q1 & Q2. with that of A1

For the above said reasons, I am of the opinion that the disputed impressions are not identical to that of specimen impression and are made by different thumbs of different person.

Sd/-

(C.V.Jayadevi) EXPERT.

I have also carefully examined the specimen signatures of Siddappa and marked as S1,S2,S3 & S4

I have compared the specimen signatures S1 to S4 inter se.

I have also carefully examined the disputed signatures in Ex.10(a) and marked as D1 & disputed signature in the sale deed dated 16.12.1989 Ex. D2 and marked as D2.

I have taken photographs of the disputed and specimen signatures. Enlarged photographs with C.D are here with enclosed.

I have compared the disputed signatures with that of the specimen signatures.

1) On comparison disputed signatures differs from that of the specimen signatures.

2) The pictorial appearance of disputed signatures differs from that of the specimen signatures.

3) The disputed signatures shows superior skill than the specimen signatures.

4) The construction and formation of the letters in the disputed signatures differs from that of the specimen signatures.

5) There is smoothness and directness in the disputed signatures but not so in the specimen signatures.

6) There is clear cut formation of the stroke in the disputed signatures but not so in the specimen signatures.

7) The line quality is medium in the disputed signatures but not so in the specimen signatures.

8) In the disputed signatures speed is medium but slow in the specimen signatures.

9) In the disputed signatures the pen hold is not stiff but it is so in the specimen signatures.

10)In the disputed signatures individualized characteristic differs from that of the specimen signatures.

11)There are calligraphic differences in the disputed signatures with that of the specimen signatures.

12) In the letter '¹' the upper stroke ends with hook in the disputed signatures but circle in the specimen signatures.

13) The letter 'zÀ'Ý upper ending stroke is curve in the disputed signatures but upwards in the specimen signatures.

14) In the letter '¥Àà' the upper circle is above the center stroke in the disputed signatures but towards left side in the specimen signatures.

For the above said reasons, I am of the opinion that the disputed signatures are not made by the person who made the specimen signatures.

Sd/-

(C.V.Jayadevi) EXPERT."

8. If the hand writing expert's report is

meticulously examined which is culled out supra, it is

clearly evident that the expert has clearly opined that

the specimen left thumb impression of Siddappa when

compared with the disputed impressions, they are not

identical to that of specimen impression and are made

by different thumbs of different persons. Similar

opinion is also given insofar as signatures found on

the disputed sale deed. The expert having

meticulously compared the signatures has also found

that the disputed signatures are not made by the

person who has made the specimen signature.

9. Therefore, this Court is of the view that

the plaintiff has discharged his initial burden and

substantiated his claim that the sale deed is created

by false personation. To counter this evidence, there

is absolutely no evidence let in. Apart from lack of

rebuttal evidence, this Court is unable to understand

as to what compelled defendant in not cross-

examining the commissioner. Coupled with these

significant details, the defendant for the reasons best

known to her has not chosen to mount the witness

box and therefore, an adverse inference has to be

drawn against defendant. This is precisely what the

Courts below have done. Both the Courts placing

reliance on the legal evidence let in by plaintiff and in

absence of rebuttal evidence have come to the

conclusion that the sale deed dated 16.12.1989 is an

act of false personation and therefore, it is a void

document. It is a trite law that allegations of fraud

must be substantially proved by a party making the

same. But that does not mean that every puzzling

artifice or contrivance resorted to by the opposite

party should be unravelled.

10. The conduct of the defendant is also found

to be very grossly unfair as stated supra. She has

consciously not stepped into the witness box and she

has conducted her case through her power of attorney

who is none other than her son. Having suffered

decree at the hands of the Trial Court, she then chose

to prosecute the appeal before the Appellate Court by

filing the appeal in her individual capacity before the

Appellate Court. Even the second appeal is filed by

her in her individual capacity. Had she entered the

witness box, the truth would have come out. The

evidence adduced by the plaintiff coupled with the

Court Commissioner-handwriting expert's opinion in

the present case on hand, would clearly establish that

plaintiff has succeeded in substantiating his claim that

the sale deed was on account of act of false

personation.

11. Both the Courts have concurrently held

that plaintiff's suit seeking relief of declaration is not

barred by limitation, more particularly, Article 59 of

the Limitation Act, 1963. In case of instruments,

voidable on the ground of fraud, it is the fact of fraud

that entitles the plaintiff to get the instruments

cancelled or set aside on such facts which exists on

the date of the instrument; but the plaintiff may

become aware of such facts at a later date. In such

cases, under Limitation Act, time runs only from the

date when the plaintiff becomes aware of the fraud.

In the present case on hand, the allegations relating

to fraud and misrepresentation is found to be clear,

definite and specific and it is accompanied by

particulars which are sufficient enough to constitute

fraud of which both the Courts have concurrently

taken notice of. The allegations of fraud in the

present case are substantially proved by the plaintiff.

As discussed supra, wherein the handwriting experts

report which is part of record clearly establishes that

LTM and specimen signatures of plaintiff on the

disputed document are totally different and are not

identical. Therefore, the concurrent findings recorded

by the Courts below that suit is well within time

referring to the knowledge of fraud on the part of the

plaintiff is based on record. Such findings recorded by

both the Courts below in regard to limitation does not

warrant any interference at the hands of this Court.

12. These concurrent findings recorded by the

Courts below does not indicate any serious infirmities

or illegalities. No substantial question of law arises for

consideration.

13. Accordingly, the second appeal is

dismissed.

Sd/-

JUDGE

*alb/-