Basavaraj S/O Revansiddappa Bada vs Shashikala W/O Panchakshari ...
2023 Latest Caselaw 1023 Kant

                         1



         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 18TH DAY OF JANUARY, 2023

                      BEFORE

       THE HON'BLE MR.JUSTICE C.M.POONACHA

           RSA No.200020/2017 (DEC-INJ)

BETWEEN:

BASAVARAJ S/O REVANSIDDAPPA BADA
AGE:57 YEARS, OCC:AGRICULTURE
R/O RATKAL TQ:CHINCHOLI
DIST:KALABURAGI.
                                       ...APPELLANT

(BY SRI.SHARANABASAPPA K BABSHETTY, ADVOCATE)

AND:

1.     SHASHIKALA W/O PANCHAKSHARI SHEELVANT
       AGE:52 YEARS, OCC:TEACHER
       R/O SHARAF BAZAR MAKTAMPUR,
       KALABURAGI-585101.

2.     MAHANAND W/O BASAVARAJ CHANDANKERI
       AGE:50 YEARS,OCC:HOUSE-HOLD
       R/O. KHADRI CHOCK ALAND ROAD,
       KALABRUAGI-585101.

3.     IRAMMA W/O VEERANNA
       AGE:48 YEARS, OCC:HOUSE-HOLD
       R/O. SHARAF ZAZAR NEAR SHANKARLING TEMPLE
       MAKTAMPUR, KALABRUAGI-585101.
                         2



4.   SUNANDA W/O CHANDRAKANT
     AGE:45 YEARS, OCC:HOUSE-HOLD
     R/O. KAMALAPUR
     TQ:& DIST:KALABURAGI-585101.

5.   GUNDAPPA S/O BASAVANAPPA SALGAR
     AGE:57 YEARS, OCC:BUSINESS
     R/O. SHAH BAZAR
     RQ:& DIST:KALABURAGI-585101.

6.   SANJU S/O GUNDAPPA SALGAR
     AGE:39 YEARS, OCC:BUSINESS
     R/O. SHAH BAZAR,GANDHIGUDI LAYOUT,
     KALABURAGI-585101.

7.   RAJSHREE D/O GUNDAPPA SALGAR
     AGE:27 YEARS, OCC:HOUSEHOLD
     R/O.KAMALAPUR
     TQ &DIST:KALABURAGI-585101.

8.   GEETA D/O GUNDAPPA SHEELVANT (SALGAR)
     AGE:25 YEARS, OCC:HOUSEHOLD
     R/O.KAMALAPUR
     TQ &DIST:KALABURAGI-585101.

9.   VEERANNA SANGAPPA SHEELVANT
     SINCE DIED BY HIS LRS

     KALAVATI D./O VEERANNA SHEELVANT
     AGE:33 YEARS, OCC:HOUSE-HOLD
     R/O. JANATHA LAYOUT
     BRAHMPUR, KALABURAGI-585101.

                                    .....RESPONDENTS

(BY SRI.GANESH S.KALABURGI, ADVOCATE)
                               3



       THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO
ALLOW THIS APPEAL AND SET ASDIE THE JUDGEMENT
AND DECREE DATED 04.10.2016 PASSED IN R.A. No.
100/2012 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE AT KALABURAGI AND ALSO THE JUDGEMENT AND
DECREE DATED 25.08.2012 PASSED IN O.S. NO 7/2010
ON THE FILE OF THE SENIOR CIVIL JUDGE AT CHINCHOLI.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 12.01.2023, COMING ON FOR PRONOUNCEMENT OF
'JUDGMENT'   THIS  DAY,  COURT   DELIVERED  THE
FOLLOWING:

                       JUDGMENT

The above second appeal is filed by the

defendant seeking to set aside the judgment and

decree dated 04.10.2016 passed in R.A.No.100/2012

by the Principal District Judge at Kalaburagi and also

the judgment and decree dated 25.08.2012 passed in

O.S.7/2010 passed by the Senior Civil Judge at

Chincholi.

2. The parties are referred to as per the rank

before the trial Court for the sake of convenience.

3. The plaintiffs filed suit in O.S.No.7/2010

seeking for the following reliefs;

"(i) declaration that they are the owner of suit

property;

(ii) declaration that the decree passed in

O.S.No.34/2004 dated 20.08.2004 is null and void

and not binding on the plaintiffs.

(iii) declaration that the sale deed dated

17.12.2007 registered as document No.1328/2009-10

in the office of the Sub-Registrar is null and void and

not binding on the plaintiffs;

(iv) perpetual injunction, possession and enjoyment

of the suit property."

4. It is the case of the Plaintiffs that late

Shivasharanappa and plaintiff No.9-Veeranna were

brothers. Plaintiff Nos.1 to 8 are the legal heirs of late

Shivasharanappa. That the late Shivasharanappa and

plaintiff No.9 purchased the suit property from its

previous owners vide a registered Sale Deed in the

year 1964-65 and from the said date they were the

absolute owners in possession and enjoyment of the

suit property and their names were entered in the

revenue records. That the said late Shivasharanappa

died on 06.03.2004. That the basis of the Sale Deed

dated 17.12.2007, on which the defendant is asserting

right, title and interest over the suit property was

executed in execution proceeding in E.P.No.14/2006

which is initiated for execution of the decree passed in

O.S.No.34/2004. That neither the late

Shivasharanappa nor the plaintiff No.9 was aware of

the proceedings of O.S.No.34/2004 and

E.P.No.14/2006. That the decree in O.S.No.34/2004

was obtained behind the back of late Shivasharanappa

and plaintiff No.9.

5. The plaintiffs have alleged fraud in the

manner in which O.S.No.34/2004 was conducted

resulting in the decree as well as the manner in which

the E.P.No.14/2006 was conducted. That the late

Shivasharanappa was not alive as on the date of the

decree in O.S.No.34/2004 and hence the decree

passed in the said suit is also a nullity. Hence, the said

suit was filed seeking for various relief's.

6. The defendant who is also the appellant

herein entered appearance in the said suit and filed

written statement contesting the case of the plaintiffs.

The defendant however admitted that late

Shivasharanappa and plaintiff No.9-Veeranna were

brothers and they were the absolute owners of the

suit property. However, the defendant denied that late

Shivasharanappa died on 06.03.2004. It is the case of

the defendant that late Shivasharanappa and plaintiff

No.9-Veeranna executed an agreement dated

15.03.1993 in favour of defendant and defendant filed

suit in O.S.No.34/2004 for specific performance of the

said agreement. That late Shivasharanappa and

plaintiff No.9-Veeranna were represented through a

counsel in the said suit and pursuant to the decree

passed in the said suit. That the defendant filed

E.P.No.14/2006 and in the said proceedings, in

execution of the decree, the Sale Deed dated

17.12.2007 executed by the Shirestedar of the Senior

Civil Judge Court, Chincholi on behalf of said late

Shivasharanappa and plaintiff No.9-Veeranna, the

defendant is the absolute owner in possession and

enjoyment of the suit property. Hence, he sought for

dismissal of the suit filed by the plaintiffs.

7. The Trial Court framed 11 issues and an

additional issue. The plaintiff No.1 got examined

herself as PW.1 and examined a witness as PW.2 and

marked documents as Exs.P1 to P13. The defendant

examined himself as DW.1 and examined a witness as

DW.2 and marked documents as Exs.D1 to D22. The

trial Court vide its judgment and decree dated

25.08.2012 decreed the suit filed by the plaintiffs.

8. Being aggrieved, the defendant filed appeal

in R.A.No.100/2012 before the First Appellate Court.

The plaintiffs entered appearance before the First

Appellate Court and contested the said proceedings.

The First Appellate Court by its judgment dated

14.10.2016 dismissed the appeal filed by the

defendant and confirmed the judgment and decree

passed by the trial Court. Being aggrieved, the

present second appeal is filed.

9. Learned counsel for the appellant

submitted that the Trial Court erred in relying upon

the death certificate of late Shivasharanappa produced

by the plaintiffs as Ex.P13 while disbelieving the death

certificate of the said late Shivasharanappa produced

by the defendant as Ex.D10. The learned counsel for

the appellant further contended that the advocate who

represented late Shivasharanappa and plaintiff No.9-

Veeranna was examined by the defendant as DW.2

before the trial Court and the evidence of DW.2 ought

to have been believed by the TRIAL Court. That the

agreement dated 15.03.1993 executed in favour of

the defendant was admitted by late Shivasharanappa

and plaintiff No.9-Veeranna in O.S.No.16/1998 and

defendant had produced and marked the relevant

documents pursuant to the said suit as Exs.D1 to D3.

That the Trial Court ought to have noticed the same

and dismissed the suit filed by the plaintiffs.

10. Per contra, learned counsel for the

respondents justified the concurrent findings recorded

by the trial Court and First Appellate Court and

submitted that the second appeal filed by the

defendant is liable to be dismissed.

11. I have considered the submissions made by

both the learned counsel and perused the material

available on record. The question that arise for

consideration is;

"Whether the appellant has made out a case for admission of the above second appeal by demonstrating that a substantial question of law arises for consideration having regard to the concurrent finding recorded by both the Courts below?"

12. It is undisputed that late Shivasharanappa

and plaintiff No.9-Veeranna were the absolute owners

of the suit property. It is the case of the defendant

that he had entered into an agreement dated

15.3.1993 to purchase the suit properties and had

filed suit in O.S.No.34/2004 for specific performance

of the said agreement. That the suit in

O.S.No.34/2004 was decreed and in execution of

which in E.P.No.14/2006 the Sale Deed dated

17.12.2007 was executed in favour of defendant and

hence the defendant claims title to the suit properties

by virtue of the said Sale Deed dated 17.12.2007.

13. The plaintiffs have alleged fraud in the

manner in which the suit in O.S.No.34/2004 has been

prosecuted resulting in decreeing the suit and have

pleaded details of the said fraud. The Trial Court vide

its judgment and decree after a detailed appreciation

of the oral and documentary evidence available on

record has recorded the following findings:

(i) That the death certificate of late

Shivasharanappa produced by the defendant as

Ex.D10 is suspicious and death certificate of late

Shivasharanappa produced by the plaintiffs as Ex.P13

is more reliable by noticing the following aspects.

(a) That the death certificate of late

Shivasharanappa produced by the plaintiffs at

Ex.P13 discloses the date of death as

06.03.2004 and the same is issued on

26.03.2004. Whereas the death certificate of late

Shivasharanappa produced by the defendant as

Ex.D10 discloses that the date of death is

21.12.2009 and discloses that date of death was

registered on 07.09.2010. That Ex.P13 was

issued much prior to the date of suit at an

undisputed point of time, whereas Ex.D10 was

issued subsequent to filing of the suit in

O.S.No.7/2010;

(b) That the defendant has not pleaded the date of

death in the written statement;

(c) That Ex.P13 having been issued much prior to

Ex.D10 at an undisputed point of time

presumption under Section 114 of the Indian

Evidence Act, is available that officials acts have

been performed regularly which presumption is

not available for Ex.D10.

(ii) The following events were noticed regarding

the manner of conduct of O.S.No.34/2004;

   (a)     The suit was filed on 18.03.2004 on which

           date   the   suit   summons       was     issued    to

defendant Nos.1 and 2 and the case was

posted to 21.03.2004;

   (b)     On 21.03.2004, although the order sheet

           discloses    that    the   suit   summons          was

           unserved     on     defendant     Nos.1     and     2,

           however      an     advocate      Sri.P.H.Satalkar,

and the matter was posted for objections to

IA.No.I and written statement on

15.04.2004;

(c) On 15.04.2004, the defendant was absent

and hence written statement and objections

to IA.No.I was taken as nil and status quo

order was granted till disposal of the suit;

(d) On 20.08.2004, the suit was decreed.

(iii) From the evidence of the advocate who

was examined as DW.2 it was noticed that despite

the suit summons not having been served the late

Shivasharanappa and plaintiff No.9-Veeranna were

stated to have been approached the advocate. That

the advocate did not file written statement since he

was informed by late Shivasharanappa and plaintiff

No.9-Veeranna that the matter was compromised,

however no compromise petition was filed. That no

memo withdrawing the vakalathnama was filed

despite late Shivasharanappa and plaintiff No.9-

Veeranna not having contacted the advocate

subsequently and that the advocate did not appear

in the said proceedings in O.S.No.34/2004 after

filing the vakalathnama. Hence, the trial Court

recorded a categorical finding that DW.2 might

have colluded with the defendant to help him get a

decree in the suit in O.S.No.34/2004.

(iv) That the notices issued to late

Shivasharanappa and plaintiff No.9-Veeranna in the

execution petition in E.P.No.14/2006 were also not

served and they were served through paper

publication.

(v) That the defendant has played fraud on the

Court and obtained a decree in his favour and

subsequently obtained a registered Sale Deed in his

favour in respect of the suit property illegally.

14. The First Appellate Court upon re-

appreciation of the material available on record has

recorded the following findings:

(i) That the death certificate at Ex.P13 of late

Shivasharanappa was recorded after 23 days of the

date of death. The death of late Shivasharanappa was

on 26.03.2004 and Ex.D10 came into existence on

07.09.2010. That the Corporation has no power or

authority to register the death of late

Shivasharanappa for the second time and hence

Ex.D10 is concocted document created by the

defendant in collusion with the Corporation

authorities;

(ii) That the advocate DW.2 admitted that at the

time of execution of vakalath of late Shivasharanappa

and plaintiff No.9-Veeranna, no suit summons or

plaint copy was furnished by them;

(iii) The report of the bailiff at Ex.D10 discloses that

the suit summons to late Shivasharanappa and

plaintiff No.9-veeranna in O.S.No.34/2004 was not at

all served upon them;

(iv) That late Shivasharanappa died on 03.03.2004

and hence the question of late Shivasharanappa

executing a vakalath authorizing DW.2 to represent

him on 29.03.2009 does arise;

(v) That DW.2-advocate colluded with defendant

and concocted the vakalath at Ex.P11 in the name of

late Shivasharanappa who was dead as on that date;

(vi) That DW.2 has deposed that within four days of

him being engaged, both late Shivasharanappa and

plaintiff No.9-veeranna instructed him not to file

written statement as they have compromised the suit.

However no compromise was filed in the said suit.

(vii) That the decree obtained in the suit is a nullity

in the eye of law in view of the fact that same was

obtained against the dead person late

Shivasharanappa;

(viii) That under Order 21 Rule 34 of CPC, the

executing Court ought to have sent a copy of the draft

sale deed to the judgment debtors before execution of

the same through the Court Commissioner and hence

the sale deed executed through the Court

Commissioner is without compliance of Order 21 Rule

34 of CPC;

(ix) That the sale deed registered against a dead

person does not create any right title or interest in

favour of the executant;

(x) That the execution of the agreement admitted

in O.S.No.16/1998 demonstrate receipt of part

consideration amount which itself discloses that failure

to perform the entire contract;

(xi) That the due performance or otherwise of the

agreement of sale which was the subject mater of

O.S.No.16/1998 cannot be decided in O.S.NO.7/2010

or R.A.No.100/2012;

(xii) That the decree in O.S.No.34/2004 is obtained

against a dead person by playing fraud and is null and

void and not binding on the plaintiffs.

15. The contention of the learned counsel for

the appellant that the finding of the Trial Court that

subsequent death certificate at Ex.D10 is concocted, is

without any basis is liable to rejected in as much as

the Trial Court has recorded a detailed finding upon

appreciation of the entire material on record which

discloses that Ex.D10 was issued only after filing of

the suit and date of death as Ex.D10 was not even

pleaded in the written statement and hence Ex.D10

could not be considered. Further the contention of the

appellant that to prove the death certificate at Ex.p13

no officer was examined and hence ought not have

been relied is also liable to be rejected, since the Trial

Court, upon noticing that Ex.P13 was issued at an

undisputed point of time has noticed that the

presumption available under Section 114 of the Indian

Evidence Act, is applicable to Ex.P13 which is not

available to Ex.D10. The said aspects having been

considered in detail by the Trial Court and also

adequately re-appreciated by the First Appellate

Court, no ground is made out by the appellant that

substantial question of law arises viz-a-viz the said

finding.

16. The contention of the appellant that the

advocate having been examined as DW.2, his

testimony ought to have been believed is also liable to

rejected since his testimony has been considered in

detail by the Trial Court and re-appreciated by the

First Appellate Court while recording the categorical

finding that DW.2 has colluded with the defendant.

The appellant has not been able to demonstrate any

material which warrants interference with the said

finding recorded by both the Courts.

17. The contention that the agreement

executed in favour of the appellant has been admitted

in the earlier suit in O.S.No.16/1998 has also been

considered by the First Appellate Court, wherein it has

been rightly held that the question regarding due

performance of the agreement of sale is outside the

scope of adjudication in O.S.No.7/2010 and the said

contention put-forth by the appellant is also liable to

be rejected.

18. The appellant has failed to demonstrate

that a substantial question of law arises for

consideration to interfere with the concurrent findings

recorded by both Trial Court and First Appellate Court.

19. In view of the aforementioned, the appeal

is dismissed in the stage of admission itself.

SD/-

JUDGE

msr