Vishnu S/O Rajaram Devagirikar vs Parasu S/O Durgappa Kankanawadi
2023 Latest Caselaw 4984 Kant

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                                                      NC: 2023:KHC-K:5965
                                                       RSA No. 200072 of 2017




                            IN THE HIGH COURT OF KARNATAKA,

                                    KALABURAGI BENCH

                          DATED THIS THE 28TH DAY OF JULY, 2023

                                          BEFORE
                       THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA


                    REGULAR SECOND APPEAL NO. 200072 OF 2017 (DEC)
                   BETWEEN:

                   VISHNU S/O RAJARAM DEVAGIRIKAR,
                   AGE: 76 YEARS, OCC: BUSINESS,
                   R/O SHASTRI NAGAR,
                   VIJAYAPUR-586101.

                                                                 ...APPELLANT

                   (BY SRI D. P. AMBEKAR, ADVOCATE)

                   AND:

                   PARASU S/O DURGAPPA KANKANAWADI
                   AGE: 32 YEARS, OCC: AGRICULTURE,
Digitally signed
by SACHIN
                   R/O NEAR S.S. HIGH SCHOOL,
Location: HIGH     VIJAYAPUR-586101.
COURT OF
KARNATAKA
                                                               ...RESPONDENT

                   (BY SRI AMEETH KUMAR DESHPANDE, SR. ADVCOATE A/W
                    SRI AJAYKUMAR, ADVOCATE)
                        THIS RSA IS FILED U/S 100 OF R/W ORDER 42 RULE 1
                   OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
                   19.11.2016 PASSED IN R.A.NO.1/2016 ON THE FILE OF THE
                   PRINCIPAL DISTRICT JUDGE AT VIJAYAPURA ALLOWING THE
                   APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
                   DATED 19.12.2015, PASSED IN O.S.NO.38/2013 ON THE FILE
                   OF THE I ADDL. SENIOR CIVIL JUDGE AT VIJAYPUR AND
                   FURTHER DISMISS THE SUIT OF THE PLAINTIFF.
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                                    NC: 2023:KHC-K:5965
                                     RSA No. 200072 of 2017




     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
26.07.2023, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

1. Vishnu--the defendant, is in second appeal.

2. Parasu, the plaintiff, instituted a suit seeking a

declaration that he was the owner of the land bearing

Sy.No.1013/2 measuring 9 acres 20 guntas which is

situated at Mahalbagayat in Vijayapura.

3. He also sought a consequential decree of injunction

to restrain Vishnu--the defendant from causing obstruction

to his possession. He also, in the alternative, sought a

decree of possession, if the Court were to come to the

conclusion that he was not in possession.

4. It was his case that the land bearing Sy.No.69 of

Chandapur village originally measured 23 acres 38 guntas

and was owned by Shivappa S/o. Dhareppa Halahalli and

his son Dhareppa Halahalli. He stated that these two

people had sold an extent of 09 acres 20 guntas in favour

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of one Ramachandra S/o. Balwantrao Kannur for a sale

consideration of Rs.700/- under a registered sale deed.

5. He also stated that Ramachandra had, in turn, sold

the land measuring 9 acres 20 guntas in Sy.No.69/2 to

one Muttawwa under a registered sale deed dated

03.01.1942 for a sale consideration of Rs.1,700/-.

6. He stated that Muttawwa was his great-grand mother

and after her death, his grand-father/Yamanappa had

become the owner of the land. He stated that Yamanappa

had executed a registered gift deed in respect of this land,

in favour of his sister--Sundrawwa, who had died

issueless. He stated that Sundrawwa, during her lifetime,

had bequeathed the above-mentioned land in favour of his

father Durgappa Kankanawadi under a registered Will

dated 21.11.1949. It was stated that he had, therefore,

succeeded to the said property after the death of his

father and was the absolute owner.

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7. He also stated that Shivappa and his son had in fact

sold the remaining land in Sy.No.69 to one Sangappa

Basappa Bijjaragi under a registered sale deed dated

25.06.1930.

8. He stated that though he had become the absolute

owner, one Rajaram Devagirikar--father of the defendant

had managed to obtain a sale deed from Dhareppa

Shivappa Halahalli and his two sons--Dyavappa and

Shivappa, under a registered sale deed dated 07.02.1962.

It was stated that once the property has been sold way

back in the year 1933 by Shivappa Dhareppa Halahalli and

his son--Dhareppa, his son Dhareppa and his two sons

possessed no title to convey the property to Rajaram. He,

therefore, stated that under the sale deed executed in the

year 1962, the defendant's father--Rajaram had acquired

no title and consequently, the defendant--Vishnu had also

acquired no title.

9. It was stated that Dhareppa Shivappa Halahalli and

his sons, in collusion with the revenue authorities, had got

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their names entered on the premise that they had taken

possession of the land pursuant to an order passed in E.P.

No.16 of 1950 by the Civil Court in Vijayapur and this

entry was certified as M.E. No.3202. He stated that this

E.P. No.16 of 1950 was in no way concerned with the sit

land and consequently this M.E. No.3202 of Mahalbagayat

was fraudulent; and consequently, Dhareppa Shivappa

Halahalli and his two sons had not acquired any right, title

or interest in the said lands.

10. It was stated that the name of the defendant-Vishnu

had been entered in the revenue records on the basis of a

family partition said to have been entered into between

Rajaram and Vishnu, under which, the property was

allotted to the defendant-Vishnu's brother--Vasudev, and

subsequently, it had been changed to his name vide M.E.

No.13392.

11. It was also stated that Vishnu, on the strength of the

alleged sale deed dated 07.02.1962 executed by Dhareppa

Shivappa Halahalli and his two sons, had instituted a suit

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in O.S.No.249 of 2001 against his uncle Shekappa

Yamanappa Kankanawadi and others and the said suit had

been decreed and an appeal preferred against that, had

also been dismissed.

12. It was stated that even in those proceedings, the

Court had opined that the title of Vishnu was doubtful, but

he was in possession and his right to be in possession

could not be defeated, and hence, a decree of injunction

had been granted.

13. It was stated that since the vendors of the

defendant's father had no title at all, they could not have

conveyed any title in the name of Vishnu's father and

having regard to the fact that pursuant to the sale deed

executed by Shivappa Halahalli his father had acquired

title, this suit was required to be decreed.

14. Vishnu entered appearance and contested the suit by

filing a written statement. He denied the assertions of

Parasu but admitted that the land bearing Sy.No.69 of

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Chandapur village measuring 23 acres 38 guntas was

owned and possessed by Shivappa Dhareppa Halahalli and

his son--Dhareppa Shivappa Halahalli. He, however,

denied the assertion that 09 acres 20 guntas of this land

had been sold to Ramachandra Balwantrao Kannur and he

had, in turn, sold the said extent to Muttawwa--the

daughter of Hanamantappa Madar, on 03.01.1942. He also

stated that he did not know the name of the grandfather

of Parasu and called upon him to establish the said

assertions. He also denied that Yamanappa had gifted the

property to Sundrawwa and that Sundrawwa had in turn

had in turn bequeathed the property to Vishnu's father.

15. He stated that in the year 2001, he had filed a suit

against the relatives of Parasu, one Shekappa S/o.

Yamanappa Kankanawadi @ Madar (ii) Bhimshi

Yamanappa Madar @ Kankanawadi (iii) Ramesh

Yamanappa @ Kankanawadi and (iv) Kashibai W/o.

Yamanappa @ Kankanawadi and they defended the suit on

the same assertions that had been made in the plaint. He

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stated that the suit came to be decreed in his favour and

the aforementioned four persons had preferred an appeal,

which had also been dismissed, and it was, therefore,

clear that he was the owner of the property. He also

stated that in the said suit, it was observed that it was

open for the aforementioned four persons to establish the

title and to take possession, but they had instead

instigated Parasu to initiate the present suit.

16. He contended that the land bearing Sy.No.1013/2

measuring 9 acres 20 guntas had been purchased by his

father Rajaram Gangaram Devagirikar under a registered

sale deed dated 07.02.1962 from Dhareppa Shivappa

Halahalli and his two sons--Dyavappa and Shivappa.

17. He submitted that he had become the owner of the

property on the strength of the partition effected by his

father and his brothers, and the suit property was mutated

in his name in M.E.No.6887. He stated that, initially, this

land had in fact been given to his brother Vasudev's share

in the partition of the year 1971 and thereafter, the

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partition was re-effected and the suit land had been given

to him vide M.R. No.13992 in the year 1994, and he was

in possession ever since.

18. He denied the assertion that his father--Rajaram

Gangaram Devagirikar had created a bogus sale deed and

had acquired no title. He stated that the sale deed

executed by his father was valid and was subsisting for the

past 41 years and at this point in time, the said sale deed

could not be challenged.

19. He submitted that his father's vendor--Dhareppa

Shivappa Halahalli and others had got their names entered

in the revenue records and this was also affirmed in the

earlier proceedings, and therefore, the same could not be

questioned once again.

20. The Trial Court, on consideration of the pleadings

and the evidence adduced before it, came to the

conclusion that Parasu had failed to prove that he was the

absolute owner of the suit property and that he was in

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actual and lawful possession of the suit property. It also

held that he had not proved the interference caused by the

defendant and found that the prayer made by him for

declaration was barred by limitation. The Trial Court,

accordingly, dismissed the suit.

21. In order to come to this conclusion, the Trial Court

noticed that though gift deed was dated 21.11.1949 was

stated to have been made by Yamanappa in favour of his

sister-Sundrawwa and the said Sundrawwa, in turn, had

executed a registered Will on the very same day

bequeathing the property in favour of Durgappa,

nevertheless, the documents in this regard indicated that

Sundrawwa was not the sister of Yamanappa, but was

actually his mother's sister. It also found that there was no

evidence of the gift being accepted and thus, the

execution of the Will on the very same day by Sundrawwa

in favour of Durgappa could not be valid. It took the view

that since Sundrawwa was not the owner as on the date of

the Will, the property continued to be the property of

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Yamanappa. It found that there was no mutation record in

favour of Yamanappa and also observed that Sundrawwa

was not the grand-mother of Durgappa but was the

maternal-aunt of Yamanappa, and consequently, Parasu--

Durgappa's son could not have succeeded to the property

on the death of Durgappa.

22. Parasu preferred an appeal. The Appellate Court, on

re-appreciation of the evidence, came to the conclusion

that the Trial Court had erred in coming to the conclusion

that Parasu had not proved his title and that there had

been no interference. The Appellate Court, accordingly,

allowed the appeal and proceeded to decree the suit. It

also found that Parasu was entitled to possession and

directed Vishnu--defendant to hand over possession within

three months.

23. In order to come to this conclusion, the Appellate

Court took note of the fact that under the Mutation bearing

No.3202 (Ex.P-4), it had been stated that Dhareppa

Shivappa Halahalli, had taken the possession from

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Yamanappa and others as per E.P. No.16 of 1950 and the

certified copy of E.P. No.16 of 1950, which was produced

as Ex.P-12, indicated therein that the decree holder was

one Bheemappa Rudrappa and the judgment debtor was

one Gangawwa and in those proceedings, there was

nothing to indicate that R.S. No.1013/2 was the decretal

property. It, therefore, came to the conclusion that the

mutation entry made on the basis of E.P. No.16 of 1950 in

respect of R.S.No.1013/2 could not enure to the benefit of

Vishnu's father's vendors and the said entry was illegal. It

consequently held that the sale by Dhareppa Shivappa

Halahalli and his two sons in favour of Vishnu's father

Rajaram Gangaram Devagirikar was of no consequence,

and they had acquired no title.

24. The Appellate Court, thereafter, noticed that

Dhareppa Shivappa Halahalli along with his father had

already sold the suit property in favour of Ramachandra

Balwantrao Kannur in the year 1933 and he, therefore, did

not possess any title so as to convey the same to Rajaram

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Gangaram Devagirikar, nearly thirty years thereafter, in

the year 1962.

25. Being aggrieved by these divergent judgments, the

present second appeal has been preferred.

26. This second appeal was admitted to consider the

following substantial questions of law:

" (i) Whether first appellate Court was correct in decreeing the suit in O.S.No.38/2013 without considering the fact that suit O.S.No.249/2001 filed by the defendant herein had been decreed in his favour?

(ii) Whether the suit in O.S.No.38/2013 was hit by res judicata since defendant had filed a suit in O.S.No.249/2001 and had obtained judgment and decree in his favour? And, as such present suit was not maintainable?

(iii) Whether first appellate Court was justified in reversing the finding of the trial Court by decreeing the suit as a result of non-appreciation of available

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evidence or erroneous appreciation of evidence?"

27. During the pencency of this second appeal, Vishnu--

the defendant has filed three applications, one for

amendment of the written statement and two for

production of additional documents.

28. In I.A. No.2 of 2021, he seeks to produce four

documents, while in I.A. No.2 of 2022, he seeks to

produce seven documents. In a nutshell, all the

documents that are sought to be produced as additional

documents are documents in relation to E.P. No.16 of

1950 and also the proceedings, which led to the filing of

the execution i.e., the proceedings which had been

initiated under Bombay Agricultural Debtors' Relief Act,

1939 (for short 'the BADR Act').

29. These documents would indicate that Shivappa

Dhareppa Halahalli, after executing a sale deed on

10.07.1933 in favour of Ramachandra Kannur had invoked

the provisions of the BADR Act and had sought

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cancellation of the sale deed. The documents indicate that

the application filed by Shivappa and his son--Dhareppa

had invoked the BADR Act by making an application in the

year 1945 and the same had been numbered as

Application No.126 of 1945. The said application was, in

fact, allowed by order dated 23.03.1950 wherein it was

declared that the sale deed dated 10.07.1933 executed by

Shivappa Dhareppa Halahalli and his son--Dhareppa

Shivappa Halahalli in favour of Ramarao Balwantrao

Konnur was in the nature of a mortgage and not an out-

and-out sale, and it directed Yamanappa to deliver

possession of the land bearing Sy.No.69/2 measuring 09

acres 20 guntas and Sy.No.66 measuring 02 acres 15

guntas of Chandapur.

30. The order passed in an appeal that had been

preferred against the said order by Yamanappa S/o.

Muttawwa Madar, and Sundrawwa Hanamantappa Madar

and Ramarao Balwantrao Konnur, whereby they

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challenged the said order under the BADR Act

unsuccessfully, has also been produced.

31. In the affidavit filed in support of the said

application, they have stated that they were able to secure

the old records only recently and on going through the

same, they had realised that these documents were

essential since they establish that the lands stood reverted

with Dhareppa Shivappa Halahalli by virtue of the order

passed under the BADR Act, which had held that the sale

made by him in 1933 was not a sale but was only a

mortgage. It has been stated that the appellant was

unaware of these proceedings and was a stranger to the

family of Parasu, who were parties to the said proceedings

and therefore, they had no occasion to produce the same.

32. The BADR Act was an Act enacted for the purpose of

granting the relief to agriculturists who were indebted.

The Act of the year 1939 provided for constitution of a

Board to whom the agricultural debtors could make an

application for adjustment of debts and the Board had

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been empowered to adjudicate upon the debt and declare

that the transfer purported to be a sale was in the nature

of a mortgage.

33. This Act was repealed in the year 1947 and replaced

by the Bombay Agricultural Debtors Relief Act, 1947 and

under Section 54 of the 1947 Act, the proceedings which

were pending before the Board were to be continued and

disposed off by the Court established under the 1947 Act.

Accordingly, the proceedings which were pending before

the Court initiated under the 1939 Act were continued and

disposed off by the Courts contemplated under the 1947

Act.

34. This production of additional evidence is rigorously

opposed by Parasu contending that these documents

cannot be taken into evidence since it is not in dispute that

these documents were available during trial and there was

absolutely no plea about the property being subjected to a

proceeding under the BADR Act in the written statement.

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35. Order XLI Rule 271 of the Code of Civil Procedure,

1908 primarily disentitles the parties to an appeal to

produce additional evidence. Under sub-rule (1), however,

three exceptions are carved out to this bar. The first bar

is when the subordinate court has refused to admit the

evidence which ought to have been admitted; the second

exception is that when the party seeking to produce the

additional evidence establishes that, despite due diligence,

such evidence was not within his knowledge or the same

could not be produced despite exercise of due diligence;

and the third exception is when the Appellate Court is of

the opinion that it requires any documents to be produced

27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 1[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

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so as to enable it to pronounce the judgment, or for any

other substantial cause.

36. Thus, the provisions under XLI Rule 27 of CPC, in so

far as a party to an appeal is concerned, permits the

production of evidence which were refused to be admitted

by the Trial Court or could not be produced despite due

diligence.

37. However, sub-rule (b) of Order XLI Rule 27 CPC (1)

confers power on the Appellate Court to allow production

of any document which is required to be produced so as to

enable it to pronounce judgment. This power of the

Appellate Court is more or less unfettered. If the Appellate

Court is of the view that some documents are essential for

it to pronounce judgment and if there is any other

substantial cause which justifies the production of

additional evidence, the same can be permitted to be

brought on record by the exercise of discretion of the

Appellate Court.

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38. The only requirement in such an event is that the

Appellate Court should record the reasons for its

admission. The Appellate Court, after recording the

reasons for admission of the additional evidence, is

empowered to either take such evidence directly or refer it

to the subordinate Court to take such evidence. The

further requirement is that whenever additional evidence

is allowed to be taken, the Appellate Court is required to

specify the points to which the evidence is to be confined

and record, in the proceedings, the points it so specifies.

39. Thus, fundamentally, if the Appellate Court is of the

view that the certain documents were essential to it to

produce its judgment or whenever it feels for a substantial

cause, it can allow the production of the additional

evidence.

40. In this case, on the filing of the application for

production of additional evidence, this Court passed an

order on 10.04.2023 stating that the applications filed for

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production of additional evidence under Order XLI Rule 27

CPC would be heard along with the main appeal.

41. In view of the said order, the following additional

questions of law have been framed at the time of hearing

and the learned counsel have been heard in the matter:

" (iv) Whether the appellant has made out a sufficient case for accepting the additional evidence and whether the additional evidence produced would be necessary to pronounce the judgment in this case?

(v) Whether the plaintiff would be entitled for a decree of declaration in the light of the proceedings that had been initiated under the Bombay Debt Relief Act, in which the sale deed dated 10.07.1933 executed in favour of Ramachandra Kannur was cancelled?"

42. The admitted facts of this case indicate that, on

10.07.1933, Shivappa Halahalli and his son Dhareppa

Halahalli sold an extent of 09 acre of 20 guntas of

Sy.No.69 to Ramachandra Kannur.

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43. The said Ramachandra Kannur, in turn, sold it to one

Muttawwa under a sale deed dated 03.01.1942 and on her

death, her son--Yamanappa, gifted the property to his

sister--Sundrawwa on 21.11.1949 and on the same day,

Sundrawwa is stated to have bequeathed the property to

Durgappa--the father of the plaintiff.

44. Thus, the entire genesis of the title in respect of the

suit property emanates from the sale deed dated

10.07.1933 executed by Shivappa and Dhareppa Halahalli

in favour of Ramachandra Kannur.

45. It is also the case of the defendant-Vishnu that the

very same property was sold under a registered sale deed

dated 07.02.1962 by Dhareppa Halahalli and his two sons,

in favour of his father--Rajaram Devagirikar. It is not in

dispute that the 1st vendor--Dhareppa Halahalli was in fact

one of the vendors in the sale deed dated 10.07.1933 i.e.,

he was the son of Shivappa Dhareppa Halahalli.

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46. Thus, both parties essentially claim that they derive

title from Shivappa Halahalli, his son Dhareppa Halahalli

and his two sons--Shivappa and Dyavappa Halahalli.

47. The documents that are now sought to be produced

relate to a proceeding that had been initiated by the

vendors--Shivappa Halahalli and Dhareppa Halahalli

against the purchasers--Ramarao Balwantrao Kannur,

Sundrawwa W/o. Hanumanthappa Madar and Yamanappa

S/o. Muttawwa Madar in respect of the sale they had made

on 10.7.1933. Thus, the evidence regarding this sale,

which was the subject matter of a proceeding under the

BADR Act, would be extremely crucial and necessary for

the complete and effective adjudication of the issues

involved in these proceedings. In other words, the

additional evidence would not only be necessary for this

Court to render its judgment but there is also a substantial

cause to examine the documents relating to the sale of the

property made on 10.7.1933.

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48. In these proceedings under the BADR Act, it has

been declared by the Court of the II Joint Civil Judge,

Bijapur on 23.03.1950 that the sale deed executed by

Dhareppa Shivappa Halahalli on 10.07.1933 in favour of

Ramarao Balwantrao Kannur was in the nature of a

mortgage and not an outright sale, and a direction has

been issued to Yamanappa--the son of Muttawwa to

deliver possession of the land back to Dhareppa Shivappa

Halahalli.

49. The argument of the learned counsel that these

documents cannot be admitted into evidence and an

opportunity should be given to the plaintiff to challenge

the said documents, cannot be accepted since these

documents are essentially proceedings of a Court of law in

which the conveyance of title, which is relied upon by

Parashu - the plaintiff, has been adjudicated and these

documents would, therefore, be absolutely essential to

consider the rights of both the parties. Since these

proceedings are relatable to a decision rendered by a

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Court of Law adjudicating on the rights of a party to a sale

under a special enactment, there is no question of

questioning or challenging the existence of these

documents.

50. Further, this Court is of the view that the additional

evidence is not only necessary for rendering its judgment

but is also required to be examined to since they go the

very root of the dispute between the parties. In fact, the

examination of these documents would also ensure that

complete justice would be rendered to the parties. The

objections to the production are, therefore, over-ruled and

the applications in I.A. No.2 of 2021 and 2 of 2022 are

required to be allowed and are, accordingly, allowed.

51. The documents that are sought to be produced are

tabulated below:

      Sl.                                                   Document
             Particulars of documents produced
      No.                                                   marked as

       1    Certified Copy of order dated 23.03.1950            Ex.D-13
            passed by the 2nd Joint Civil Judge,
            Bijapur, allowing the Case No: A-
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                                  RSA No. 200072 of 2017




    126/1945 under section 17 of the

Bombay Agricultural Debtors Relief Act,

2 Certified Copy of Letter dated 29/03/1950 Ex.D-14 of the Sub-Registrar, Bijapur, intimating that, the award has been registered A/w Typed copy.

3 Certified copy of order dated 16.04.1952 Ex.D-15 passed the Assistant Judge, Bijapur, dismissing appeal bearing No BADR Appeal No:53/1950.

4 Original permissions obtained by Rajaram Ex.D-16 Gangaram Devagirikar from the Office of Tahasildar, Vijaypur, on 19.12.1961 and the Typed copy.

5 Certified Copy of Order-sheet in Agril. Ex.D-17 Relief No 16/1950 A/w Typed Copy

6 Certified Copy of Execution Petition in Ex.D-18 Agril. Relief No 16/1950 A/w Typed Copy

7 Certified Copy of Possession Warrant A/w Ex.D-19 Typed Copy

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8 Certified Copy of Affidavit of DH A/w Ex.D-20 Typed Copy

9 Certified Copy of possession Panchnama Ex.D-21 A/w Typed Copy

10 Certified Copy of Possession Receipt Ex.D-22 issued by the DHr A/w Typed Copy

11 Certified Copy of Bailiff Report reporting Ex.D-23 handing over of possession to the DHr A/w Typed Copy

52. These documents indicate that they are the certified

copies of the proceedings initiated under the BDAR Act and

therefore, there is no legal impediment for admitting them

into evidence. Accordingly, they are admitted into

evidence and marked as Exs.D-13 to 23.

53. The documents produced along with the two

applications indicate that an application under the BADR

Act had been filed by Shivappa Dhareppa Halahalli, who

had sold the property to Ramarao Balwantrao Konnur

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challenging the sale as permitted under the Act, which was

enacted for giving relief to agriculturists who were victims

of onerous debts and the illegalities committed against

them by the Creditors.

54. The Civil Judge, in the proceedings under the BADR

Act, accepted the plea of the vendors of the sale deed

dated 10.07.1933 i.e., Shivappa and Dhareppa Hallali and

had declared that there was no conveyance, but the

transaction was, in essence, in the nature of a mortgage.

55. These proceedings were initiated not only against

Ramarao Balwantrao Konnur but also against Muttawwa,

who had purchased the property from Ramarao

Balwantrao Konnur and also against Yamanappa--her son.

The effect of this order, which was permissible under the

provisions of the BADR Act, is that the sale in favour of

Rama Rao Balwant Konnur stands extinguished and the

title remains with the vendors Shivappa and Dhareppa

Hallahalli. This would, therefore. render all the further

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transactions entered into by the purchasers and the

purchasers from them non est and void.

56. In fact, the above mentioned three persons had

challenged the order dated 23.03.1950 by which the

transaction was held to be in a nature of a mortgage, and

possession was ordered to be delivered in an appeal to the

Assistant Judge, Bijapur, in the BADR Appeal No.53 of

1950. The Appellate Court has considered the matter and

confirmed the order of the II Joint Civil Judge that the sale

deed dated 10.07.1933 executed in favour of Ramarao

Balwantrao Konnur was in the nature of a mortgage. Thus,

the persons who were claiming title from the purchaser

Ramarao Balwant Konnur, had unsuccessfully challenged

the orders regarding the sale and came to be bound by the

effect of the order. Consequentially, their rights also under

the subsequent transactions had been nullified.

57. These proceedings initiated under the provisions of

the BADR Act which empowered a declaration to be made

that the sale transaction was in essence a mortgage, is an

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order made in exercise of a power conferred under a

special statute and cannot, therefore, be ignored or

discarded.

58. A statutory provision, which enables a Court to

declare a sale to be only a mortgage, results in the entire

transaction of sale being nullified and being converted to a

mortgage. Thus, in the eye of law, there was no sale of

the suit property by Shivappa Dhareppa and Dhareppa

Shivappa Halahalli in favour of Ramarao Balwantrao

Konnur and consequently, the property remained with

Shivappa Dhareppa Halahalli and his son--Dhareppa.

59. The order passed under the BADR Act also indicates

that even when the appeal was pending, on the basis of

the order of the II Joint Civil Judge in Application No.126

of 1945, an Execution Petition had been filed in

Agricultural Relief No.16 of 1950.

60. This indicates that the proceedings were initiated by

Dhareppa Shivappa Halahalli against Muttawwa seeking to

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enforce the award passed in Application No.125 of 1945

i.e., the award by which the transaction was held to be a

mortgage and not an out-and-out sale and possession was

ordered to be redelivered.

61. The order-sheet dated 31.07.1950 indicates that the

possession was also delivered to Dhareppa Hallali and the

execution stood fully satisfied. It is on the basis of these

proceedings in Agricultural Relief No.16 of 1950 that

Dhareppa Shivappa Halahalli secured the possession back

and it is on the basis of these proceedings that the entries

have been made in the revenue records.

62. A reading of the order-sheet indicates that the

proceedings were titled application Agricultural Relief

No.16 of 1950, whereas in the mutation proceedings, it

had been stated that the revenue entries were being

mutated on the basis of Ex.No.16 of 1950. In view of this

fact, the execution petition that had been filed before the

Trial Court, i.e., papers relating to Ex.No.16 of 1950 would

obviously be relatable to some other property and not the

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suit property. Had the revenue authorities had stated that

possession was being redelivered to Dhareppa Hallali

under Agricultural Relief No. 16 of 1950, this confusion

regarding the manner in which the names had been

entered in the revenue records would have been clarified.

The Appellate Court, by placing reliance on this error in

the Mutation proceedings in relation to the number of the

Execution petition filed pursuant to the order passed under

the BADR Act has been misled and has been forced to

come to the conclusion that there was no document to

establish that Dhareppa had secured title in E.P.No.16 of

1959.

63. However, the award that has been passed under

BADR Act, which has now been produced and also the

order passed in Appeal, confirms the fact that the sale

transaction was not only declared to be a mortgage and

the order-sheet of Agricultural Relief No.16 of 1950 along

with the receipts in which Shivappa Dhareppa Halahalli

had acknowledged the receipt of possession, clearly

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indicate that the entry was relatable to actually

Agricultural Relief No.16 of 1950 and not E.P. No.16 of

1950.

64. In this view of the matter, it will have to be held that

the first sale deed dated 10.07.1933 executed by

Shivappa Dhareppa Halahalli in favour of Ramarao

Balwantrao Konnur stood extinguished in the eye of law

and the title remained with Shivappa Dhareppa Halahalli.

As a consequence, the subsequent transactions between

Ramarao Balwant Kannur in favour of Muttawa in 1942,

the succession of her son Yamanappa to the property, the

gift of Yamannappa to his sister Sundarawwa in 1949 and

the immediate execution of a registered will by her in

1949 to Durgappa, the father of Parasu, would be of no

consequence.

65. It may also be noticed here that all these

transactions were made prior to the order passed under

the BADR Act on 23.03.1950 and all the persons who

claimed rights under these transactions were not only

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parties to the proceeding which culminated in the order

passed under the BADR Act, but they had also

unsuccessfully challenged the same in an appeal. This fact

would lead to the inescapable conclusion that they had

never acquired any rights under the above mentioned

transactions and the orders passed against them had

attained finality.

66. As a consequence, it will also have to be held that

the subsequent sale deed executed on 07.02.1962 by

Shivappa Dhareppa Halahalli and his two sons, who had

retained title to the suit property pursuant to the order

passed under the BADR Act, in favour of the father of the

defendant--Rajaram Devagirikar was a valid conveyance

of title, and consequently, the family of the father of

Vishnu did possess valid title.

67. The evidence on record also indicates a partition

amongst the family members of Vishnu, i.e., between his

father--Rajaram Devagirikar and his brother Vasudev.

Initially, the property had been allotted to Vasudev and

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subsequently, was allotted to Vishnu. As a consequence,

Vishnu possessed valid title over the said property.

68. In view of the fact that the genesis of title of Parasu

i.e., the title from Ramarao Balwantrao Konnur, stood

extinguished by the orders passed under the BADR Act, it

is clear that all the subsequent documents executed by

Ramarao Balwantrao Konnur, or Yamanappa or

Sundrawwa would be of no consequence. It is only if this

primary document conveyed title i.e., if the sale deed

dated 10.07.1933 subsists, can all the subsequent

transactions have any value. Since, the principal document

itself has been nullified under the BADR Act, it was clear

that no title was accrued in favour of Parasu's father

Durgappa and consequently, the suit will have to be

dismissed.

69. The Appellate Court, without having the benefit of

these documents, has been misled to render an erroneous

judgment to the effect that Dhareppa Hallali possessed no

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title to convey to Rajaram Devigirkar and this judgment is,

therefore, vitiated.

70. In the result, the substantial questions of law are

answered in favour of the appellant-defendant/Vishnu and

the suit is accordingly dismissed.

Sd/-

JUDGE

RK