Karnataka High Court
Sharanawwa W/O Late Bheeman vs Gurubai W/O Hanmanthrao Tengli on 4 December, 2023
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RFA No. 200068 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR FIRST APPEAL NO.200068 OF 2015 (DEC/INJ)
BETWEEN:
SHARANAWWA W/O LATE BHEEMANNA
SINCE DECEASED BY LR'S.
1. RAMACHANDRA S/O LATE BHEEMSHA
AGED ABOUT 70 YEARS,
OCC: AGRICULTURE
R/O: TEGNOOR VILLAGE,
TQ DIS : KALABURAGI.
2. RANAMMA W/O SIDDAPPA
AGED ABOUT 75 YEARS,
OCC: HOUSEHOLD,
R/O: MAHAGAON,
Digitally signed TALUK & DIST: KALABURAGI.
by SHILPA R
TENIHALLI ...APPELLANTS
Location: HIGH
COURT OF (BY SRI ANANTH S. JAHAGIRDAR, ADV. FOR APPELLANT NO.2;
KARNATAKA
V/O DTD. 25.10.2023 APPEAL AGAINST A1 IS ABATED &
DISMISSED)
AND:
GURUBAI W/O HANMANTHRAO TENGLI
AGED ABOUT 70 YEARS,
(CAUSE TITLE OF THE JUDGMENT AND DECREE OF
THE TRAIL COURT DEFENDANT NO.1 IS SHOWN TO
HAVE BEEN DEAD SINCE DECEASED BY LRS)
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RFA No. 200068 of 2015
1. SHIVAKANTAMMA
W/O PARAMESHWAR
AGED ABOUT 50 YEARS,
OCC: HOUSEHOLD,
2. NIJALINGAPPA
S/O HANMANTHRAO TENGLI
AGED ABOUT 73 YEARS,
OCC: AGRICULTURE
3. GURULINGAPPA
S/O HANMANTHRAO TENGLI
AGED ABOUT 70 YEARS,
OCC: AGRICULTURE
4. SHAMBULINGA
S/O HANMANTHRAO TENGLI
AGED ABOUT 67 YEARS,
OCC: AGRICULTURE
ALL ARE KAPNOOR
TQ. & DIST: KALABURAGI-585107.
5. SHARNABASAPPA
S/O BASWANTHRAO BIRADAR
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE
R/O CHAKKARKATTA
NEAR HANUMAN TEMPLE,
GAZIPUR, KALABURAGI-585102.
6. BASAWARAJ
S/O NIMBENAPPA MUCHETTY
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE
R/O KAPNOOR,
TQ & DIST: KALABURAGI-585107.
7. CHANDRAKANT
S/O NIMBENAPPA MUCHETTY
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE,
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RFA No. 200068 of 2015
R/O KAPNOOR,
TQ & DIST: KALABURAGI-585107.
...RESPONDENTS
(BY SRI VIKRAM VIJAY KUMAR, ADV. FOR R1 TO R5;
SMT. MAYA T.R. ADV. FOR R6 & R7)
THIS RFA IS FILED U/S 96 OF CPC, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 08.07.2015 PASSED IN O.S. NO.30/2009 ON THE FILE
OF THE I ADDL. SENIOR CIVIL JUDGE, AT KALABURAGI, AND
TO PASS ANY OTHER APPROPRIATE ORDERS.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff filed the suit O.S.No.30/2009 on the file of
the learned I-Additional Senior Civil Judge at Kalaburagi
(hereinafter referred to as the 'Trial Court' for brevity) against
the defendants seeking declaration of his title over the schedule
property, to declare that various sale deeds referred to in the
plaint are null and void and the decree dated 11.10.1977
passed in O.S.No.434/1977 on the file of the Munsiff Court,
Kalaburagi is also null and void, for possession of the same
from defendant Nos.1 to 8 and for permanent injunction
restraining the defendants from further alienating the schedule
property.
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2. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the
suit O.S.No.30/2009 before the Trial Court against defendant
Nos.1 to 8 contending that she is the absolute owner of the
property bearing Sy.No.159 measuring 18.02 acres situated at
Kapanoor village, Kalaburagi taluk and district with the
boundaries mentioned therein (hereinafter referred to as the
'suit property' for brevity). It is contended by the plaintiff that
the suit property belongs to the plaintiff and she is the owner in
possession of the same. It was originally belonging to the
mother of the plaintiffs. During 1972 the plaintiffs left the
village and went to Mumbai to eke out her livelihood by
handing over the suit land to the defendants for cultivation.
About five years later the plaintiff came back to the village and
demanded the defendants for the yield they are getting from
the land. They have paid few thousands to the plaintiff from
1980 up to 1995.
4. It is contended that during October, 2008 when the
plaintiff approached defendant Nos.1 to 5 seeking to hand over
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the possession of the suit property, they flatly refused to do so
and started contending that they are the absolute owners in
possession of the suit property. In view of the same, the
plaintiff filed for revenue records and came to know that the
revenue records mutated in the name of the defendants, the
plaintiff had came to know that the daughter of defendant No.1
had filed the suit seeking specific performance of contract in
respect of suit property in O.S.No.434/1977 on the file of
learned Munsiff Court, Gulabarga and the said suit was came to
be decreed against the plaintiffs herein and that the plaintiff
and her son had agreed for selling the land in question on
12.06.1974.
5. It is contended that the suit O.S.No.434/1977 was
filed on 10.10.1977 and on the very next date, i.e., 11.10.1977
the consent written statement was said to have been filed by
present plaintiff and on the basis of the same, decree was came
to be passed for specific performance of contract. But the said
decree was never executed. Inspite of that the defendant No.2
executed two registered sale deeds in favour of defendant No.3
and 5 in respect of 6 acres of land each and remaining 6 acres
of land was mutated in the name of defendant No.4. None of
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these transactions are valid but they are all void not binding on
the plaintiff.
6. Plaintiff also contended that on verification, she
came to know that defendant No.4 sold few bits of land in
favour of defendant Nos.6 to 8 under different sale deeds dated
30.01.2009. Therefore, it is contended that defendants without
any right, title or interest proceeded to create the third party
interest under the registered sale deed and hence, prayed for
decreeing the suit.
7. Defendant Nos.2 to 5 have filed written statement
denying the contentions taken by the plaintiff. It is contended
that description of property is incorrect. It is denied that
plaintiff is the absolute owner in possession of the suit schedule
property and that the same was handed over to defendant
when she left to Mumbai. It is also denied that the property
was mutated in the names of defendant behind the back.
Defendants denied that any portion of the income derived from
suit property was ever given to plaintiff as pleaded.
8. It is contended that the plaintiff sold the suit claim
under an agreement for sale receiving entire consideration
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amount of Rs.2,800/-. When the plaintiff refused to execute
sale deed, defendant No.1 filed the suit seeking specific
performance of contract, which came to be decreed against the
plaintiff and despite was known to plaintiff and her son.
Defendant No.1 is missing since 02.04.2001. A missing
complaint is lodged in Rural Police Station Gulbarga in Crime
No.65/2001. Since whereabouts of defendant No.1 is not
known for more than 8 years, she presumed to be dead. Under
such circumstances, contention of the plaintiff that she had met
defendant No.1 cannot be believed. Since from the date of
compromise decree, passed in O.S.No.434/1977, defendant
No.2 is in possession and enjoyment of property. Later
defendant No.2 executed the sale deed in favour of defendant
Nos.3 and 5 on 09.10.2006 in respect of 6 acres of land each,
the remaining 6 acres mutated in the name of defendant No.4
and he sold the same in favour of defendant Nos.6 to 8 under
three different sale deeds dated 30.01.2009. Therefore, it is
contended that plaintiff is not having any right, title or interest
over the suit property and not entitled for any relief.
9. It is also contended that the plaintiff got mortgaged
the suit property in favour of one Malleshappa for her family
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necessities. After redeeming the mortgage, plaintiff sold the
same in favour of defendant No.2, who was the minor.
Defendant No.1 was natural mother of defendant No.2 entered
in to sale transaction. Entire sale consideration was already
paid by defendant No.1 during 1974. It is stated that the
mortgagee Malleshapa had filed form No.7 for occupancy right
in respect of suit schedule property. In the meanwhile,
mortgage was redeemed by the plaintiff and sold the same in
favour of defendant No.2. Therefore, it is stated that suit of the
plaintiff is to be dismissed with costs.
10. Defendant Nos.6 to 8 filed written statement and
contended that they are bonafide purchasers of the suit
property from its earlier owner, without notice and for valid
consideration. Since then they are in possession and enjoyment
of the suit property and hence, plaintiff is not entitled for any
relief. Accordingly, prays for dismissal of suit.
11. On the basis of these pleadings following issues and
additional issues are framed.
1) Whether the plaintiff proves that, she is the owner in
possession of the suit land as described in the Plaint
Para No.3?
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2) Whether the plaintiff further proves that, the decree
passed in O.S. No. 434/1977 on the file of the Munsiff
Court, Gulbarga, dated 11.10.1977, is null and void?
3) Whether the plaintiff further proves that, the sale deed
executed by Shivakantamma in favour of
Nijalingapppa S/o Hanumanthraya Tengli under vide
document No. 6243/2006-07 dated 09.10.2006 is null
and void?
4) Whether the plaintiff further proves that the sale-deed
executed by Shivakantamma in favour of
Shambulingappa S/o Hanamantharaya Tengli of under
vide document No. 6245/2006-07 on dated
09.10.2006, is null and void?
5) Whether the plaintiff further proves that he is entitle
for the possession of the land bearing Sy. No. 159
measuring 18 acres 20 guntas situated at village
Kapanoor, from defendants No.1 to 5?
6) Whether the plaintiff further proves that the
defendants have ventured in to alienate the suit
property?
7) Whether the plaintiff further proves that he is entitle
for the reliefs of declaration and perpetual injunction
as sought for in the plaint?
8) Whether the suit of the Plaintiff is bad for non joinder
of necessary parties?
9) Whether the plaintiff is entitle for the reliefs as sought
for in the plaint?
10) What order or decree?
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Addl. Issues:
1) Whether defendant No.6 to 8 prove that they are
bonafide purchasers of suit property for value averred?
2) Whether they further prove that suit is barred by
limitation?
3) Whether plaintiff proves that sale deed executed by
defendant No.4 in favour of deft. No.6 to 8 dated
30.1.2009 is illegal, null and void without
consideration and not binding upon her and it being
nominal sale deed?
12. The Plaintiff examined herself as PW1 and got
examined PWs.2 and 3 and got marked Exs.P.1 to 19 in
support of her contention. Defendant Nos.2, 7, 8, 6 and 4 have
examined themselves as DWs.1 to DW.5 and got marked
Exs.D1 to 52 in support of their contention. The trial Court after
taking into consideration all these materials on record,
answered issue Nos.1 to 9 and additional Issue No.3 in the
Negative and Additional issue No.s.1 and 2 in the affirmative
and accordingly suit of the plaintiff was dismissed with costs.
Being aggrieved by the same, plaintiffs are before this Court.
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13. Heard Sri. Ananth S Jahagirdar, learned counsel for
appellant No.2, Sri.Vikram Vijay Kumar, learned counsel for
respondent Nos.1 to 5 and Smt. Maya T.R., learned counsel for
respondent Nos.6 and 7. The appeal preferred by appellant
No.1 was already abated and dismissed vide order dated
25.10.2023.
14. Learned counsel for the appellant contended that
the trial Court dismissed the suit of the plaintiff solely on the
ground that there was an earlier decree passed in OS
No.434/1977 on 11.10.1977. The plaintiff has categorically
pleaded in the plaint that the decree is null and void and the
same was passed on the basis of consent written statement
said to have been filed by the defendant in the said suit who is
the plaintiff in the present suit. The plaintiff had not appeared
nor filed written statement. Hence, decree passed on such
consent written statement is not binding on the plaintiff.
15. Learned counsel also contended that merely on the
ground that the decree was passed in O.S.No.434/1977, the
defendants cannot claim any right over the same. Admittedly,
defendants have not filed any execution petition nor sale deed
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was executed in their favour. Under such circumstances, the
trial Court committed an error in dismissing the suit of the
plaintiff. Hence, prays for allow the appeal in the interest of
justice.
16. Per contra, learned counsel for respondent Nos.6
and 7 opposing the same submitted that these respondents
have purchased the portion of suit property under registered
sale deed by paying consideration amount. The suit of the
plaintiff is barred by limitation as the sale deed executed long
back. The plaintiff has not chosen to challenge the same. Since
the defendants are bonofide purchaser, the plaintiff is not
entitled for any relief against these respondents. Therefore,
prays for dismissal of the appeal.
17. In view of the rival contentions urged by learned
counsel for both the parties, the point that would arise for my
consideration is:
"Whether the judgment and decree passed
by the Trial Court suffers from any infirmities and
calls for interference by this Court?"
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My answer to the above point is in the 'Negative' for the
following:
REASONS
18. It is the specific contention of the plaintiff that she is
the absolute owner in possession of property. However, in later
para she contends that she handed over the possession of the
property in favour of defendant No.2 and shifted her residence
to Mumbai. Even after returning from Mumbai, defendant No.2
had not handed over the possession of the property. She was
paying some amount out of income generated from the land.
None of these facts were proved by the plaintiff except her
contention that she was owner of property at one point of time,
which is admitted by the defendants. It is the defence taken by
the defendants that daughter of defendant No.2 had entered
into an agreement of sale with plaintiff in respect of suit
property, where under defendant No.1 accepted the
consideration amount of Rs.2,800/-. When the plaintiff has not
executed the sale deed as agreed under the agreement for
sale, she has filed suit for specific performance of contract in
O.S.No.434/1977. Immediately after filing the suit, plaintiff
herein being the defendant came to file the consent written
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statement on 11.10.1977 and on the basis of the same, suit
was came to be decreed against the plaintiff herein.
19. Plaintiff admits passing of decree dated 11.10.1977
in O.S.No.434/1977. It is the specific contention of the plaintiff
that she never appeared in the said suit nor filed any consent
written statement. Therefore, decree passed by trial Court in
O.S.No.434/1977 is null and void not binding on the plaintiff.
Admittedly, plaintiff has never challenged the said consent
decree dated 11.10.1977 till today. Only declaration is sought
that the same is null and void. Even though it is contended that
daughter of defendant No.2 played fraud on the plaintiff and
got decreed in her favour nothing is placed on record to prove
the same. Even though PWs.2 and 3 are examined in support of
plaintiff, witnesses are not aware of decree passed against the
plaintiff. Under such circumstances, plaintiff has not proved her
contention that the decree dated 11.10.1977 passed in
O.S.434/1977 on the file of learned Munsiff Court, Gulbarga is
obtained by playing fraud and therefore the same is null and
void not binding on the plaintiff.
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20. When the plaintiff has not proved that the decree in
O.S.No.434/1977 passed against her for specific performance
of contract in respect of suit property, in favour of daughter of
defendant No.2 is null and void, the plaintiff cannot seek
declaration of her title over the suit property. When the plaintiff
is not entitled for declaration of title, the other reliefs claimed
by plaintiff i.e., regarding her possession of the property,
perpetual injunction against the defendants from alienating the
property or to declare that various sale deeds executed on
various dates in respect of schedule property are null and void.
Defendant Nos.2, 7, 8, 6 and 4 have examined themselves as
DWs1 to 5. They have also produced several documents which
are referred to by the trial Court while dismissing the suit.
21. I have gone through impugned judgment and
decree passed by the Trial Court. The Trial Court has
considered the oral and documentary evidence placed by the
Trial Court and assigned valid reasons for holding issue Nos.1
to 9 and Additional Issue No.3 in the negative and Additional
Issue Nos.1 and 2 in the Affirmative. The findings recorded by
the Trial Court is well reasoned and it do not call for
interference by this Court. Hence, I am of the opinion that
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appeal is liable to be dismissed. Accordingly, I answer the
above point in the 'Negative' and proceed to pass the following;
ORDER
(i) The Appeal is dismissed with costs.
(ii) The impugned judgment and decree
dated 08.07.2015 passed in O.S.No.30/2009 on the
file of the learned I Addl.Senior Civil Judge at
Kalaburagi is hereby confirmed.
Registry to send back the trial Court records along with a
copy of this judgment.
Sd/-
JUDGE
SWT/BH
