Karnataka High Court
Gangappa S/O Yallappa Tippayanoor vs Sabanna S/O Hanumantha Jokki on 19 December, 2023
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7313 OF 2010
(DEC/INJ)
BETWEEN:
1. GANGAPPA S/O YALLAPPA TIPPAYANOOR,
AGED: 54 YEARS, OCC: AGRICULTURE,
2. HANUMANTHA S/O YALLAPP TIPPAYYANOOR,
AGED: 52 YEARS, OCC: AGRICULTURE
3. RAMAYYA S/O YALLAPP TIPPAYYANOOR,
AGED: 50 YEARS, OCC: AGRICULTURE
4. SABAYYA S/O YALLAPP TIPPAYYANOOR,
AGED: 48 YEARS, OCC: AGRICULTURE
ALL R/O NAGALAPUR,
TQ & DIST: YADGIR-585201.
...APPELLANTS
(BY SHIVANAND V. PATIL, ADVOCATE)
AND:
SABANNA S/O HANUMANTHA JOKKI,
AGED: 63 YEARS, OCC: AGRICULTURE,
R/O: NAGALAPUR,
TQ & DIST: YADGIR-585201.
...RESPONDENT
(V/O DATED 15.03.2023 COURT NOTICE SERVED TO
RESPONDENT)
2
THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC,
PRAYING TO ALLOW THE ABOVE REGULAR SECOND APPEAL AND
SET ASIDE THE JUDGMENT AND DECREE DATED 20.04.2010
PASSED BY THE COURT OF CIVIL JUDGE (SR.DN.) AT YADGIR IN
R.A.NO.10/2000 AND CONSEQUENTLY BE PLEASED TO SET ASIDE
THE JUDGMENT AND DECREE DATED: 07.01.2010 PASSED BY
THE LEARNED CIVIL JUDGE (JR.DN.) AT YADGIRI IN O.S. NO.
40/2006, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR HEARING, HAVING BEEN
HEARD AND RESERVED ON 18.12.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The plaintiffs in O.S.No.40/2006 on the file of the learned
Civil Judge (Jr.Dn.) at Yadgir (hereinafter referred to as 'Trial
Court' for brevity) are impugning the judgment and decree dated
07.01.2010 dismissing the suit for declaration of their title, to
declare that the sale deed dated 06.02.1978 as null and void and
not binding on the plaintiffs and for permanent injunction,
restraining the defendant from interfering with the peaceful
possession and enjoyment of the plaintiffs, which was confirmed
in R.A.No.10/2009 vide judgment dated 20.04.2010 (hereinafter
referred to as 'First Appellate Court' for brevity).
2. For the sake of convenience, the parties are referred
to as per their ranking before the Trial Court.
3. Brief facts of the case are that plaintiff Nos.1 to 4
being the sons of Yallappa Tippayanoor have filed the suit
O.S.No.40/2006 against the defendant seeking the relief of
declaration that they are the absolute owners in possession of the
land bearing Survey No.135/AA measuring 3.10 acres situated at
Naglapur village, Yadgir taluka (hereinafter referred to as 'suit
property' for brevity), to declare that the sale deed dated
06.02.1978 as null and void, ineffective and not binding on the
plaintiffs and also for permanent injunction restraining the
defendant from interfering with their peaceful possession and
enjoyment of the suit property.
4. It is contended by the plaintiffs that they are the
brothers and sons of deceased Yallappa. The defendant is a
stranger to the family of the plaintiffs. It is contended that the
suit property was the exclusive property of Ramappa and Yallappa
and their names were entered in the record of rights. After the
death of Ramappa and Yallappa, the plaintiffs inherited the suit
property and are in exclusive possession and enjoyment of the
same.
5. It is contended that Ramappa during his lifetime had
taken the loan, but he was a defaulter. Therefore, the Tahsildar ,
Yadgir passed an order on 01.08.1968 forfeiting the suit property
to the Government. Accordingly, the name of the Government of
Mysore was entered in the record of rights. It is further
contended hat on 02.2.1978 a sum of Rs.1,000/- was remitted in
the Treasury towards the said loan. Thereafter, Yallappa - the
father of the plaintiffs submitted an application on 3.11.1997
requesting the Tahsildar to delete the name of the Government of
Mysore and to enter his name in the revenue records. However,
in the mean time, the plaintiffs migrated to Bombay. They came
back and approached the Tahsildar again on 10.07.2003 and have
submitted another application to make necessary entries in the
record of rights. The Tahsildar Yadgir initiated the proceedings.
The revenue inspector visited the spot, held enquiry and
submitted the report to the Tahsildar. On the basis of the same,
the Tahsildar passed an order on 05.11.2003 to enter the names
of the plaintiffs in the record of rights in respect of the suit
property.
6. It is contended that the defendant, who had no right,
title or interest over the suit property preferred an appeal in
Appeal No.99/2005 before the Assistant Commissioner,
challenging the order of the Tahsildar dated 05.11.2003. The
defendant has alleged that he had purchased the suit property
from the father of the plaintiffs under the registered sale deed
dated 06.2.1978. Considering the said sale deed, the Assistant
Commissioner allowed the appeal on 15.07.2005. The plaintiffs
have challenged the same before the Deputy Commissioner in the
Appeal No.49/2005-06, which was pending while filing the suit.
7. It is contended that the father of the plaintiffs had
never executed any sale deed nor sold the suit property in favour
of the defendant. The consideration was not received from the
defendant nor the possession was handed over in his favour. It is
contended that the said sale deed is a spurious one and it is a got
up document. The name of the defendant was never mutated in
any revenue records. The so called sale deed had not seen the
light of day till it was produced before the Assistant
Commissioner. The plaintiffs came to know about the sale deed
only when it was produced before the Assistant Commissioner.
8. It is contended that the plaintiffs are the absolute
owners in actual possession of the suit property. They were
cultivating the land without any interference. However, the
defendant tried to interfere with the possession and enjoyment of
the plaintiffs and to damage the crop. Therefore, the plaintiffs
have filed the suit seeking declaration and for permanent
injunction as stated above.
9. The defendant has appeared before the Trial Court
and filed his written statement denying the contentions taken by
the plaintiffs. It is contended that the defendant is in actual
possession and enjoyment of the suit property since 06.02.1978,
when he purchased it from the father of the plaintiffs. Even
though the revenue records were not mutated in his name as
required under the Karnataka Land Revenue Act, the defendant
continued to be in possession of the suit property. The plaintiffs
filed an application before the Tahsildar taking advantage of the
fact that the name of their father appeared in the record of rights.
The order of the Tahsildar to enter the names of the plaintiffs in
the revenue records was challenged by the defendant before the
Assistant commissioner, which was came to be allowed after due
enquir. The plaintiffs have filed a false suit without possession of
the suit property. The suit is barred by limitation and therefore,
prayed for dismissal of the suit.
10. Based on the pleadings of the parties, the Trial Court
framed the following issues:
1. Whether the plaintiffs prove that the father of the
plaintiffs had not executed a sale deed in favour of the
defendant bearing document No.1388/1977-78 dtd.
06.02.1978 in respect of land bearing Sy.No.135/Aa
measuring 3 acres 10 guntas situated at Nagalapur
village?
2. Whether plaintiffs prove that the plaintiffs are the
owners of land bearing Sy.No.135/Aa measuring 3
acres 10 guntas situated at Nagalapur village?
3. Whether defendant proves that the suit of the
plaintiffs is barred by time?
4. Whether plaintiffs are entitled for the relief of
cancellation of sale deed and declaration and
consequential relief of injunction as prayed for?
5. What decree or order?
11. The plaintiffs examined PWs.1 and 2 and got marked
Exs.P1 to P18 in support of their contentions. The defendant
examined himself as DW.1 and got marked Ex.D1 to D13 in
support of his defence. The Trial Court after taking into
consideration all these materials on record, answered issue Nos.1,
2 and 4 in the affirmative, issue No.3 in the negative and
accordingly the suit of the plaintiffs was decreed as prayed for.
12. Being aggrieved by the same, the defendant has
preferred R.A.No.40/2008 before the First Appellate Court. The
First Appellate Court on re-appreciation of the materials on record,
came to the conclusion that the impugned judgment and decree
passed by the Trial Court is erroneous, perverse and is liable to be
interfered with. Accordingly, allowed the appeal by setting aside
the impugned judgment and decree passed by the Trial Court and
the matter was remitted back to the Trial Court to frame
additional issue to provide opportunities to both the parties and to
dispose of the same in accordance with law. While disposing of
R.A.No.40/2008, the First Appellate Court framed four additional
issues, which read as under:
1. Whether plaintiffs prove that the alleged sale deed of
1978 made in favour of the defendant is outcome of
forgery and fraud as alleged in the plaint?
2. Whether the plaintiffs prove their lawful possession
over the suit property on the date of suit?
3. Whether the plaintiffs prove the alleged interference
by defendant?
4. Is there any cause of action to file the suit?
13. The Trial Court on re-appreciation of the materials on
record, in the light of the additional issues framed by the First
Appellate Court, answered issue Nos.1, 2 and 4 and additional
Nos.1 to 4 in the negative, issue No.3 in the affirmative.
Accordingly, dismissed the suit of the plaintiffs.
14. Being aggrieved by the same, the plaintiffs have
preferred R.A.No.10/2009. The First Appellate Court on re-
appreciation of the materials on record again framed additional
issue No.2, which reads as under:
"Whether the defendant proves that the father
of the plaintiffs late Yallappa Tippayanoor has sold the
suit property in his (defendant) favour under the
registered sale deed dated 06.02.1978?"
15. In view of framing the additional issue, the matter was
again remitted back to the Trial Court directing it to record
additional evidence, if any, and to give its finding on the said
additional issue No.2. Accordingly, the Trial Court took up the
matter for re-consideration. It appears that the plaintiff examined
PW.3 and defendant examined DWs.2 to 4 in support of their
contentions. The Trial Court considered the materials on record
afresh and answered issue Nos.1 to 4 and additional issue Nos.1
to 4 in the negative and additional issue No.2 in the affirmative
and accordingly, suit of the plaintiffs was came to be dismissed.
The said finding was forwarded to the First Appellate Court in
R.A.No.10/2009, which was kept pending. The First Appellate
Court on re-appreciation of the materials on record, dismissed the
appeal confirming the impugned judgment and decree passed by
the Trial Court. Being aggrieved by the same, the plaintiffs are
before this Court.
16. Heard learned counsel Sri Shivanand Patil for the
appellants/plaintiffs. The respondent remained absent in spite of
service of notice.
17. Learned counsel for the appellants contended that
according to the defendant, the father of the plaintiffs executed
the registered sale deed in his favour on 06.02.1978, but, the said
sale deed was not acted upon and had not seen the light of the
day till it was produced before the Assistant Commissioner in the
year 2005. There is absolutely no reason as to why the sale deed
was not acted upon for a long period of 27 years i.e., from 1978
to 2005. Learned counsel further submitted that the revenue
records produced before the Court discloss that the names of
Ramappa and Yallappa were found in the record of rights at an
undisputed point of time. The revenue records discloses that for
the first time during October, 1968 names of Ramappa and
Yallappa were rounded off and the name of the Government of
Mysore appeared in column No.9. However, their names
continued to be found in column No.12. The revenue records for
the year 1968-69 discloses that there was arrears due to the
Government and therefore, the land in question was forfeited. Till
the year 1998-99 the name of Yallappa, the father of the plaintiffs
appeared in column No.12. It is the plaintiffs, who gave
representation and on enquiry the Tahsildar entered their names
in the records of rights as per M.R.No.126/2003-04. Thereafter
the defendant challenged it before the Assistant Commissioner
and came up with a contention that he had purchased the suit
property. The defendant was never in possession of the suit
property. The sale deed in question is not proved in accordance
with law. Even when execution of the sale deed is seriously
disputed, the defendant has not examined any of the attesting
witness, the Trial Court at the first instance had decreed the suit
of the plaintiffs, but, subsequently when the matter was remitted
back for fresh consideration, it dismissed the suit without any
basis. Even though the burden is casted on the defendant to
prove execution of the sale deed, the Trial Court and the First
Appellate Court mechanically proceeded to dismiss the suit by
holding that the defendant had proved execution of the sale deed
only on the strength of the presumption under Section 90 of
Indian Evidence Act, 1872 (for short 'the Act').
18. Learned counsel for the appellant placed reliance on
the decision on Banamali Behera and Others vs. Padmalabha
Misra1 to contend that even when a document is proved to be of
30 years old, the presumption under section 90 of the Act is only
AIR 1951 ORI 262
with regard to the signature and other part of the document and
the same is executed and attested by the persons referred to
therein, but, the presumption of law does not referred to the
correctness of its contents.
19. Learned counsel placed reliance on the decision of the
Hon'ble Apex Court in Union of India vs. Ibrahim Uddin and
Ors.2 in support of his contention that the presumption under
Section 90 of the Act cannot be relied on to prove the correctness
of the statement contained in the document and also to prove that
the same has been acted upon and that those facts are to be
proved independently even when the document is of 30 years old.
20. Learned counsel also placed reliance on the decision of
the Hon'ble Apex Court in the case of Om Prakash (dead)
through his legal representatives vs. Shanti Devi and
Others3 in support of his contention that the presumption under
Section 90 of the Act would not automatically receive a favourable
presumption since it only leaves discretion with the Court either to
2012 (6) SCALE 476
(2015) 4 SCC 601
raise the presumption or not, depending upon the facts and
circumstances of the case.
21. Learned counsel submitted that the First Appellate
Court at the first instance framed additional issues including the
first additional issue casting the burden on the plaintiffs to prove
that the sale deed of the year 1978 is the outcome of forgery and
fraud as alleged in the plaint. But, the defendant has never taken
such a contention of either forgery or fraud in the written
statement. Under such circumstances, the finding of the Trial
Court as well as the First Appellate Court is perverse, without any
basis and hence prays for allowing the appeal in the interest of
justice.
22. This Court vide order dated 10.08.2010 formulated
the following substantial question of law:
"1. Whether the presumption under Section 90 of
the Indian Evidence Act, 1872, can be pressed into
service in respect of a document which was less than 30
years old, even though it was a registered document,
but sought to be disputed by the appellants herein?
2. Whether the lower appellate Court could frame
additional issues, not emanating from the pleadings of
the party and when it did not also involve any legal
proposition, but was in relation to disputed facts?"
My answer to the above substantial question of law in the
'Negative' for the following:
REASONS
23. The admitted facts of the case are that the plaintiffs
are the sons of Yallappa, who was the owner of the suit property
and whose name was mentioned in the record of rights. It is the
contention of the defendant that said Yallappa sold the suit
property in his favour under the sale deed dated 06.02.1978
produced as per Ex.D1 and its translation is as per Ex.D1(a).
Even though it is a registered sale deed, the revenue records
were not mutated in the name of the defendant on the basis of
the same. Admittedly, the sale deed was never produced before
any authority and for the first time, it was produced before the
Assistant Commissioner, Yadgir in the appeal preferred by the
defendant against the plaintiffs in Appeal No.99/2005. The order
of the Assistant Commissioner produced by the defendant as per
Ex.D3 discloses that for the first time, the sale deed was produced
on 15.07.2005. Later, the original sale deed is produced before
the Trial Court and admitted in evidence on 17.07.2008. Now the
question arises as to whether presumption under Section 90 of
the Act would be available for the defendant to prove the sale
deed as the same was 30 years old document.
24. In the case of Banamali (supra), the coordinate
Bench of Orissa High Court considered a similar facts of the case
where certain documents were produced which were 30 years old.
The First Appellate Court proceeded with an assumption that the
entries made in those documents must be correct as there is
presumption under Section 90 of the Act. Under such
circumstances, the Court held no such presumption need
necessarily attach to the old documents. The presumption of law
is with regard to the fact that the document was written and
attested by the person, who purported to have written or attested
them. The contents of the document are required to be proved
independently. Mere production of the document which is of 30
years old is not sufficient to prove the correctness of its contents.
25. In the case of Union of India (supra), the Hon'le
Apex Court considered its earlier decisions and held that the
alleged partition in the year 1819 among the ancestors of plaintiff,
even if had taken place, cannot be a proof of title of the plaintiff
over suit property as the pedigree has not been proved. It is also
held that the presumption under Section 90 of the Act in respect
of 30 years old document coming from proper custody relates to
the signature, execution and attestation of a document i.e., to its
genuineness but it does not give raise to presumption of
correctness of every statement contained in it. The Apex Court
also held that the contents of the document and that it was acted
upon will have to be proved like any other fact.
26. In the case of Om Prakash (supra), the Hon'ble Apex
Court dealt extensively with the requirement of Sections 68, 69
and 90 of the Act by referring to its earlier decisions and in
paragraph Nos.9 and 10, it is held as under:
"9. It appears that the registered Gift Deed
was sought to be proved/exhibited by the Defendant
himself. If this occurred prior to the Gift Deed
attaining the age of thirty years then Section 90 of the
Evidence Act, 1872 would not be of avail to the
Defendant, but if the Defendant's testimony came to
be tendered and recorded thirty years subsequent to
the execution of the Gift Deed, then the presumption
attached to Section 90 could be taken advantage of.
Lastly, it would logically follow that the contention of
the Appellant/Defendant that the relevant date for
computation of age in reverse should be the date of
the judgment of the Trial Court is clearly incorrect.
10. ....... We hasten to add that even if the
document purported or is proved to be thirty years
old, the appellant would not axiomatically receive a
favourable presumption, the Section 90 presumption
being a discretionary one."
(Emphasis supplied)
27. It is therefore the position of law on the subject is
very well settled. In the present case as stated above, the
original sale deed dated 06.02.1978 was tendered in evidence and
got marked as Ex.D1 on 17.07.2008, which was apparently after
30 years and therefore, the defendant can seek to invoke Section
90 of the Act. Now the question arises as to whether the
presumption under Section 90 of the Act is automatic and whether
it is rebuttable or irrebuttable presumption. Bare reading of
Section 90 of the Act makes it clear that raising of presumption is
discretionary one and thus it is a rebuttable presumption. This is
made clear by the Hon'ble Apex Court in the case of Om Prakash
(supra).
28. Section 90 of the Act deals with the presumption as to
the document, which is 30 years old and gives the discretion to
the Court that it may presume that the signature and every other
part of such document, which purports to be in the handwriting of
any particular person, is in that person's handwriting, and, in the
case of document executed or attested, that it was duly executed
and attested by the persons by whom it purports to be executed
and attested.
29. In the present case, the document in question at
Ex.D1 is the registered sale deed of the thirty years old. Now it is
to be considered as to whether the presumption under Section 90
of the Act will have to be drawn in the present case on the facts
and circumstances of the case and as to whether the party relying
on it is successful I proving the same in accordance with law.
30. The facts and circumstances of this case disclose that
initially the defendant had not examined any of the witness on his
behalf. Even after remanding, he examined DWs.2 to 4, but,
admittedly he has not examined any attesting witness to the sale
deed in question. It is pertinent to note that the plaintiffs have
examined PW.2 - Narsappa, who is said to be the attesting
witness to the sale deed - Ex.D1. This witness categorically
stated on oath that he never signed Ex.D1 as an attesting witness
nor Yallappa had executed the sale deed in his presence. He
states that Ex.D1 - sale deed is a bogus document created by the
defendant. This witness was cross-examined at length by the
learned counsel for the defendant. The witness had categorically
denied that Yallappa had executed Ex.D1 and he signed the
document as an attesting witness. Nothing has been elicited from
this witness to disbelieve his version.
31. The defendant examined himself as DW.1 and
reiterated his contention as taken in the written statement.
During cross-examination, the witness admitted that the attesting
witness Hanamanth Kotageri is still alive. But in spite of that, the
defendant has not chosen to examine the said witness. Even
though examination of the attesting witness to prove the sale
deed is not mandatory under law, looking into the facts of the
case when the plaintiffs have examined one of the attesting
witness to Ex.D1 who categorically denied the execution of the
sale deed as per Ex.D1 by Yallapa and also denied that he
attested the sale deed as a witness, the burden shifts on the
defendant to substantiate his contention. Since the presumption
under Section 90 of the Act is a rebuttable presumption, the
plaintiffs have made an attempt and they are successful in
rebutting the same by examining PW.2. It is not the contention of
the defendant that PW.2 was not the attesting witness named in
Ex.D1, but, it was someone else. It is specifically suggested to
PW.2 that it was he who signed Ex.D1 as an attesting witness,
but, such suggestion was denied by the witness.
32. The defendant examined one Sabayya as DW.2. He
only speaks about the possession of the suit property by the
defendant. He states that he was not present when the defendant
purchased the suit property. DW.3 is Hanmayya. This witness
states that he was also not present when the sale deed was
executed.
33. DW.4 is Zahur Anwar - the deed writer and states that
it was he who written Ex.D1. During cross- examination, the
witness pleads his ignorance about the person who gave
information to write the sale deed. He also pleads ignorance
about the name of the vendor and the attesting witnesses. The
witness further states that no talks were held in his presence
before execution of the sale deed. The witness states that he is
not a licenced deed writer. Since the witness categorically
pleaded his ignorance about the details of the vendor and the
attesting witnesses to the document and also the details of the
person who gave information to draft the sale deed, no much
importance could be given to his evidence.
34. It is not the contention of the defendant that the
attesting witnesses to the sale deed are not alive. DWs.1 and 2
categorically admit that the attesting witnesses the sale deed -
Ex.D1 are alive. One of the attesting witnesses is examined by
the plaintiff as PW.2. Under such circumstances, the defendant
could have made an attempt to examine the other attesting
witnesses to probabilise his contention. There is absolutely no
reason as to why the defendant has not made any effort to
examine the other attesting witness.
35. Ex.P2 is the record of rights in respect of the suit
property. In column Nos.9 and 12, names of Ramappa and
Yallappa are mentioned for the year 1963-64 till 1966-67. Ex.P3
is similar record of rights for the year 1968-69 till 1972-73. The
names of Ramappa and Yallappa were came to be rounded off to
substitute the name of Government of Mysore as per entry dated
03.10.1968 and the reason mentioned is Thakavi. However, the
names of Ramappa and Yallappa continued in column No.12 as
cultivators. Ex.P4 is the RTC for the period 1973-74 till 1978-79
and similar entry continued in the record of rights. But, in column
No.12, there is an endorsement regarding Thakavi baki, which
refers to dues to the Government from the land owner.
Therefore, it is clear that in column No.11, there is a reference to
Thakavi dated 03.10.1968, which means that the amount was due
to the Government of Mysore from the owner Yallappa and
therefore, his name along with name of his brother Ramappa was
came to be rounded off and it was substituted with the name of
the Government of Mysore. However, in column No.12, the name
of Yallappa continued even in Ex.P5 - record of rights for the year
1978-79 to 1982-1983. Ex.P6 is the record of rights for the year
1984-85 till 1987-88, where there is reference to the name of
Yallappa. Similarly in Ex.P7 for the year 1988-89 till 1992-93.
However, the name of Yallappa is now being referred to as
Mallappa. The explanation given by learned counsel for the
appellant that while writing the name of Yallappa gradually it was
referred to as Mallappa appears to be reasonable by looking at the
entries made therein. Similar entries were found in Ex.P8 for the
year 1993-94 till 1997-98. Ex.P9 is for the year 1998-99 till
1999-2000. However, for the first time, in the year 1999-2000,
the name of the Government of Karnataka appeared both in
column Nos.9 and 12. The subsequent RTC's at Exs.P10 to P12
continued with the name of the Government of Karnataka both in
column Nos.9 and 12.
36. As per Ex.P13, the record of rights for the year 2003-
04, the names of the plaintiffs appeared both in column Nos.9 and
12 as per M.R.No.126/2003-04, which can be referred to the
order passed by the Tahsildar for mutating their names after
deleting the name of Government of Karnataka.
37. These entries supports the contention taken by the
plaintiffs that the name of the Government of Mysore was entered
by deleting the name of Yallappa as there was due to the
Government and subsequently as per the order of the Tahsildar
dated 06.01.2004 in M.R.No126/2003-04 names of the plaintiffs
entered in the record of rights as owners in possession of the suit
property. It is only as per Ex.P15 for the year 2005-06, the name
of the defendant came to be entered in column No.9 as per
M.E.No.9/2007-08 dated 27.08.2007 obviously, on the basis of
the order of the Assistant Commissioner in Appeal No.99/2005.
38. It is relevant to refer to Ex.P17 - Form 'L' issued by
the Village Accountant of Naglapur village, where, there is a
reference to the suit property along with several other properties.
It is stated that Ramappa was the defaulter in paying the arrears
to the Government and as per the order of the Tahsildar by
deleting his name, the name of Government of Mysore was
ordered to be entered. Therefore, objections were called for by
the Village Accountant to enter the name of the Government of
Mysore in the revenue records.
39. All the above documents fully support the contention
of the plaintiffs. Even though the defendant is having original sale
deed in his favour as per Ex.D1, there is no reasonable
explanation as to why the said sale deed was never acted upon till
2005 when it was first produced before the Assistant
Commissioner in Appeal No.99/2005 and why the name of
defendant was not entered in any of the revenue records. Even
when the names of Ramappa and Yallappa were came to be
deleted by substituting the name of the Government of Mysore
and subsequently Government of Karnataka, the names of the
plaintiffs were came to be entered as per the order of the
Tahsildar. The defendant after getting the sale deed as per Ex.D1
dated 06.02.1978 was never bothered even when the name of his
vender continued in the revenue records, when objections were
called for to enter the name of the Government of Mysore and
then Government of Karnataka in column Nos.9 and 12 of RTC's.
He has not raised any concern even when the name of State
Government was came to be entered in the revenue records. For
about 27 years, defendant had not acted on the said document.
40. It is pertinent to note that in the revenue records at
column No.12 continuously name of Yallappa the father of the
plaintiffs was appearing till the year 1998-99. In the absence of
any explanation for the sale deed - Ex.D1, which has not seen the
light of day till 2005 and in the absence of examining any material
witness to speak about due execution of the sale deed - Ex.D1, I
am of the opinion that the presumption under Section 90 of the
Act cannot be drawn mechanically as the same was rebutted by
the plaintiffs by examining PW.2, who is admittedly one of the
attesting witness to the sale deed and its contents. When the
presumption under Section 90 of the Act is taken away, the
defendant has not made any serious effort to prove due execution
of the sale deed. When the defendant failed to prove due
execution of the sale deed, his defence fails and the contention of
the plaintiffs will have to be accepted as there are sufficient
support from the oral and documentary evidence, to accept their
contentions.
41. The First Appellate Court in R.A.No.40/2008 framed
the additional issues as referred to above. Additional issue No.2 is
to the effect that as to whether the plaintiffs prove that the
alleged sale deed dated 06.02.1978 made in favour of the
defendant is out of forgery and fraud as alleged in the plaint.
Even after reading the plaint carefully I could not find such
contention taken by the plaintiffs that the sale deed in question is
the outcome of either fraud or forgery. I could not find any
support for the First Appellate Court in R.A.No.40/2008 to frame
such additional issue. Ofcourse, the order of remand by the First
Appellate Court in that appeal was not challenged by the plaintiffs.
However, the subsequent development discloses that the plaintiffs
have requested for framing an additional issue, which is as per
additional issue No.2 placing burden on the defendant to prove
that the father of the plaintiffs - Yallappa had sold the suit
property in favour of the defendant under the sale deed dated
06.2.1978. The Trial Court proceeded to answer all other issues
and additional issues in the negative and answered this additional
issue No.2 in the affirmative by discussing the same along with
issue No.2. The Court has given its entire focus to the effect that
the document is 30 years old and there is a presumption in favour
of the defendant. A categorical finding was recorded by the Trial
Court that as per Ex.D1, the title of the suit property was
transferred in favour of the defendant as the same is registered
and 30 years old document.
42. The Court referring to the evidence of PW.2 states
that there is an admission on the part of PW.2 about due
execution of the sale deed by the father of the plaintiffs in favour
of the plaintiffs. But, in the evidence of PW.2, there is no such
admission on the part of PW.2 regarding execution of the sale
deed, but he categorically stated that no such sale deed was
executed nor he has signed as an attesting witness. Under such
circumstances, the Trial Court has committed an error in
answering additional issue No.2 in the affirmative to dismiss the
suit of the plaintiffs.
43. The First Appellate Court after remanding the matter
twice reconsidered the materials on record and observed that the
plaintiffs contended that the sale deed is not for legal or family
necessity and therefore, the same is not binding on them. The
First Appellate Court again committed an error in appreciating the
contentions of the plaintiffs as no such contention was raised by
the plaintiffs regarding Ex.D1, but, on the other hand, it is the
specific contention of the plaintiffs that the sale deed in question
is spurious document, which was got up and concocted by the
defendant.
44. The First Appellate Court also placed reliance on the
evidence of DWs.1 and 4 in proof of Ex.D1. It has not considered
the fact that the defendant has not chosen to examine the
attesting witness, whom he categorically admitted that he was
alive. The First Appellate Court also placed reliance on the
presumption under Section 90 of the Act to form an opinion that
the sale deed is proved.
45. In view of the discussion held above and on analysis
of the findings of the Trial Court and the First Appellate Court, I
am of the opinion that the presumption under Section 90 of the
Indian Evidence Act could not have pressed into service by the
Courts below as the sole basis to dismiss the suit of the plaintiffs,
that too when the plaintiffs have rebutted the said presumption of
law by producing oral and documentary evidence. Regarding
substantial question of law No.2, the First Appellate Court has
committed an error in framing additional issue No.2, when the
matter was first time remanded back to the Trial Court without
there being any pleading to that effect in the plaint. Therefore, I
answer substantial questions of law in favour of the appellants
and against the respondent and proceed to pass the following:
ORDER
a) The appeal is allowed with costs.
b) The impugned judgment and decree dated
07.01.2010 passed in O.S.No.40/2006 on the file
of the learned Civil Judge (Jr.Dn.) at Yadgiri and
the judgment and decree dated 20.04.2010,
passed in R.A.No.10/2009 on the file of the
learned Civil Judge (Sr.Dn.) at Yadgir, confirming
the same, are set aside.
c) Accordingly, the suit of the plaintiffs in
O.S.No.40/2006 before the Trial Court is decreed.
i) It is declared that the plaintiffs are the
absolute owners in possession of the suit
property.
ii) It is also declared that the sale deed dated
06.02.1978 marked as Ex.D1 is null and
void and not binding on the plaintiffs.
iii) The defendant is restrained by a decree of
perpetual injunction, restraining him or
anybody on his behalf from interfering with
the peaceful possession and enjoyment of
the plaintiffs over the suit property.
d) Office is directed to draw the decree accordingly
Registry is directed to send back the Trial Court and the
First Appellate Court records along with copy of this judgment and
decree.
Sd/-
JUDGE
SRT
CT-VD
