Karnataka High Court
Ramesh Krishna Nayak vs Naryana Rama Nayak on 24 November, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2023:KHC-D:13873
RSA No. 763 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 763 OF 2005 (DEC)
BETWEEN:
RAMESH KRISHNA NAYAK,
AGED ABOUT 49 YEARS,
R/O. BELEKERI, ANKOLA TALUK,
NORTH CANARA DISTRICT,
ANKOLA-581314.
... APPELLANT
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
AND:
1. NARYANA RAMA NAYAK,
SINCE DECEASED BY HIS LR'S.
1A. BEERAMMA GOPAL NAYAK,
AGE. 60 YEARS, OCC. AGRICULTURE/HOUSEWIFE,
R/O. BEELEKERI, ANKOLA.
1B. SHANTARAM NARAYAN NAYAK,
Digitally signed
by
VIJAYALAKSHMI VIJAYALAKSHMI
AGE. 55 YEARS, OCC. AGRICULTURE,
M KANKUPPI M KANKUPPI
Date: 2023.12.07
11:56:56 +0530 R/O. KUNTAGAVI, NEERKOLLI, ANKOLA.
1C. PRAKASH NARAYAN NAYAK,
AGE. 50 YEARS, OCC. AGRICULTURE,
R/O. KUNTAGAVI, NEERKOLLI, ANKOLA.
1D. SAVITA TIMMANNA NAYAK,
AGE. 45 YEARS, OCC. HOUSEWIFE,
R/O. HILLUR VILLAGE, MEDEKATTI.
... RESPONDENTS
(BY SRI. ASHOK C. ANGADI, ADVOCATE FOR
SRI. HAREESH NAYAK, ADVOCATE FOR 1A-1D)
THIS RSA IS FILED U/S 100 CPC AGAINST THE JUDGMENT
AND DECREE DATED: 16.02.2005 PASSED IN RA.NO. 77/2001 ON
-2-
NC: 2023:KHC-D:13873
RSA No. 763 of 2005
THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.), KARWAR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED:23.7.2001 PASSED IN OS.NO.72/1997 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.), ANKOLA.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
ORDER
This appeal is filed praying to set-aside the judgment
and decree dated 16.02.2005 passed in R.A.No.77/2001
by learned Prl. Civil Judge (Sr.Dn) Karwar confirming the
order dated 23.07.2001 in O.S.No.72/1997 on the file of
learned Civil Judge (Jr.Dn) Ankola.
2. The appellant was defendant and respondent
was plaintiff in O.S.No.72/1997 on the file of learned Civil
Judge (Jr.Dn) Ankola.
3. The parties will be referred to as per their rank
in the Trial Court. The respondent-plaintiff died during the
pendency of this appeal and his legal heirs were brought
on record.
4. The plaintiff has filed a suit in O.S.No.72/1997
against the appellant-defendant seeking the relief of
NC: 2023:KHC-D:13873
declaration that he is the owner in possession of the suit
property since sale deed dated 19.06.1997 is void, illegal
and created and sought relief of injunction and delete the
name of appellant-defendant in the revenue records
pertaining to the suit property.
5. It is the case of the plaintiff that he is the
owner of the property bearing survey No.13/1ka, totally
measuring one acre and 20 guntas and out of that he is
the owner of the 20-1 1/3 guntas and out of that he has
sold only an extent of 10 guntas to the defendant but in a
sale deed the defendant fraudulently mentioned 20-1 1/3
instead of 10 guntas, as the plaintiff is ill-literate and aged
person, and his eyes and ears are not properly working.
The defendant in his written statement contended that he
entered into sale agreement in the year 1982 to purchase
the entire extent of 20-1 1/3 guntas from the plaintiff and
as there was condition not to alienate and he purchased
the same after completing 15 years by sale deed dated
19.06.1997 and he has already paid Rs.25,000/- to the
NC: 2023:KHC-D:13873
plaintiff. He contended that the said sale deed has been
executed and got mutated his name in the records of
rights. He contended that he is in possession of the entire
property and therefore, the plaintiff is not entitled for relief
of injunction and sought dismissal of suit.
6. Based on the said complaint, the trial Court has
framed the following issues:
"1. Whether the plaintiff proves that for the reasons stated
in Paras-3 and 4 of the plaint, he has sold only an area of 10
gunthas in the suit land tothe defendant and not the entire
area of the suit land of 20 gunthas 1 1/3 annas?
2. Does the plaintiff further proves that the defendant by
taking undue advantage of illiteracy and old age and by way
of fraud and misrepresentation, the defendant got
transferred the whole area of the suit land of 20 gunthas 1/3
annas by way of registered sale-deed, dated,19-6-1997 in
his favour?
3. Whether the plaintiff further proves that the Sale-deed,
dated, 19-6-1997 in respect of the entire suit land in favour
of the defendant is null and void and same is not binding on
him?
4. Does the plaintiff further proves that he has been in
lawful possession and wahiwat of 10 gunthas and 1/3 annas
NC: 2023:KHC-D:13873
of the remaining portion of the suit land, as on the date of
the suit?
5. Whether the plaintiff proves alleged interference in his
remaining portion of the suit land by the defendant as
alleged?
6. Whether the defendant proves that since from the year,
1982, he has been in lawful possession and enjoyment of
the entire suit land as of right, continously, openly to the
knowledge of the plaintiff and that he has become the owner
of the same by way of adverse possession?
7. Whether the defendant further proves that the Court
feepaid on the plaint by the plaintiff is not proper and
correct?
8. Whether the defendant further proves that the valuation
of the suit property exceeds the pecuniary jurisdiction of this
Court and assuch, this Court has no jurisdiction to entertain
and try the present suit?
9. Whether the plaintiff is entitled for the equitable reliefs of
declaration and consequential relief of permanent injunction
and also for rectification of record of rights as prayed for in
the suit?
10. What Order or Decree?"
7. The plaintiff has been examined himself as
P.W.1 and got marked Exs.P.1 to 7. The defendant got
examined himself as DW.1 and got examined two
NC: 2023:KHC-D:13873
witnesses as DWs.2 to 3 and got marked at Ex.D1 to 3.
The commissioner was appointed during the course of the
trial and he gave report which is at Ex.C.1 and hand
sketch is at Ex.C.2. The trial Court after hearing the
arguments of both sides has answered the issue Nos.1 to
5 and 8 in the affirmative, issue Nos.6 and 7 in the
negative, issue No.9 partly in the affirmative and decreed
the suit. Aggrieved by the said judgment and decree
passed by the trial Court, the defendant has filed appeal in
R.A.No.77/2001, before the Principle District and Sessions
Judge Karwar, (first Appellate Court). The first appellate
Court, after hearing the arguments of both sides
formulated the points for consideration and dismissed the
appeal confirming the judgment and decree passed by the
trial Court. Aggrieved by the said judgment and decreed
passed by the trial Court and first appellant Court, the
defendant has filed the present appeal. The present appeal
came to be admitted to consider the following substantial
question of law:
NC: 2023:KHC-D:13873
"Whether the Courts below were justified in granting
declaration that what is sold under Ex.P.4 is only 10
guntas of land and not 20 guntas, when what is
mentioned in the sale deed is 20 guntas of land?".
8. Heard the learned counsel appearing for
appellant and learned counsel for the respondents.
9. Learned counsel for the appellant would
contended that the defendant has purchased the entire
extent of 20-1 1/3 from the plaintiff by registered sale
deed dated 19.07.1997 and in the same possession has
been delivered to the defendant. The plaintiff as on the
date of filing the suit was not in possession of the entire
extent of 20-1 1/3 guntas. The plaintiff has not sought for
possession but only sought for declaration and injunction.
The plaintiff is not in possession of suit property
measuring 10-1 1/3 guntas as on the date of suit.
Therefore, the suit of the plaintiff seeking declaration and
without seeking relief of possession is not maintainable.
He prayed to formulate an additional substantial question
of law in that regard. He further contended that the
NC: 2023:KHC-D:13873
Hon'ble Apex Court in the case of ANATHAULA
SUDHAAKAR VS. P BUCHI REDDY (DEAD) BY LRS
AND OTHERS reported in (2008) 4 SCC 594, held that
where the plaintiff is not in possession or not able to
establish possession, he has to file the suit for declaration,
possession and injunction. He contends that the plaintiff
has not sought relief of possession. Therefore, suit only for
declaration and injunction is not maintainable. He further
contends that as per Section 91 of the Indian Evidence
Act, it is sufficient to produce registered sale deed to
establish the purchase of the property by the defendant
and therefore, there is no need of evidence to prove the
terms of said sale deed. He contends that the plaintiff has
not denied the execution of the sale deed and its
registration. What the plaintiff has denied is that the
extent of land as mentioned in the sale deed. Plaintiff even
though pleaded that his eyes and ears are not working
properly but he has faced cross examination and read
documents and heard questions, it shows that his eyes
and ears are functioning properly. As the value of the
NC: 2023:KHC-D:13873
property is increased, the Plaintiff with a malafide motive,
to grab the property has filed the suit against the
defendant. The trial Court instead of casting the burden on
the plaintiff to establish fraud pleaded by him has asked
defendant to establish that he has purchased the extent of
property which is mentioned in the sale deed. The first
appellate Court did not reappreciate the evidence on
record. With this, he prayed to allow the appeal.
10. Per contra learned counsel for the plaintiff
would contend that plaintiff is aged person and ill-literate
and the defendant by playing fraud mentioned total extent
of 20-1 1/3 guntas in the sale deed in the place of 10
guntas. The plaintiff immediately coming to know the
same within 4 months of the sale deed has filed suit
seeking declaration that he is owner in possession of the
suit property measuring 10-1 1/3 guntas. The defendant
and his witnesses failed to establish that the plaintiff has
executed the sale deed to the entire extent of 20-1 1/3
guntas. He contends that the trial Court and first appellate
- 10 -
NC: 2023:KHC-D:13873
court have rightly appreciated the evidence on record and
rightly decreed the suit. With this, he prayed to dismiss
the appeal.
11. Considering the contentions raised by the
learned counsel for the appellant/defendant, additional
substantial question of law requires to be framed. The said
additional substantial question of law reads as under:
" Whether the suit filed that the plaintiff seeking
relief of declaration and injunction without seeking
possession is maintainable"?.
12. Heard further arguments on the said additional
substantial question of law.
13. The defendant has purchased 20-1 1/3 guntas
of land under sale deed dated 19.06.1997-Ex.D.1. The
said sale deed has been executed by plaintiff in favour of
the defendant. On perusal of the said sale deed-Ex.D.1,
the possession of the property purchased under it has
been delivered to the purchaser. The defendant in his
pleading has stated that he is in possession of the entire
- 11 -
NC: 2023:KHC-D:13873
extent of 20-1 1/3 guntas of land by virtue of said sale
deed-Ex.D.1. The plaintiff has sought for relief of
declaration of title to the extent of 10-1 1/3 guntas and
injunction in respect of the suit property. Under sale deed-
Ex.D.1, the possession of the entire extent of land
measuring 20-1 1/3 guntas has been delivered by the
plaintiff to the defendant. The plaintiff in plaint averments
has not asserted that even after the sale deed, he is in
possession of the property measuring 10-1 1/3 guntas of
land. The Possession of the entire land has been delivered
to the defendant by registered sale deed-Ex.D.1.
Defendant by virtue of said sale deed-Ex.D.1, is in
possession of the 20-1 1/3 guntas of land. The plaintiff has
only sought for declaration and an injunction in respect of
10-1 1/3 guntas of land. Plaintiff was not in possession of
any extent of property in suit survey number. Plaintiff
ought to have sought for possession of the 10-1 1/3 of
guntas of land from the defendant. The suit seeking
declaration and injunction without the relief of possession
is not maintainable, in view of the decision of the Hon'ble
- 12 -
NC: 2023:KHC-D:13873
Apex Court in case of ANATHAULA SUDHAAKAR VS. P
BUCHI REDDY (supra). The Hon'ble Apex Court has held
in para 13.3 as under:
"13.3) Where the plaintiff is in possession, but his
title to the property is in dispute, or under a cloud,
or where the defendant asserts title thereto and
there is also a threat of dispossession from
defendant, the plaintiff will have to sue for
declaration of title and the consequential relief of
injunction. Where the title of plaintiff is under a
cloud or in dispute and he is not in possession or not
able to establish possession, necessarily the plaintiff
will have to file a suit for declaration, possession
and injunction".
14. In view of the same, suit of the plaintiff filed for
relief of declaration and injunction without relief of
declaration is not maintainable. Additional substantial
question of law is answered accordingly.
15. Plaintiff has pleaded fraud on the part of the
defendant in mentioning the extent of the property in sale
deed dated 19.06.1997. The plaintiff has not denied the
- 13 -
NC: 2023:KHC-D:13873
execution of the sale deed-Ex.D.1 by him. He pleaded that
defendant has played fraud on him in mentioning the
extent of land in sale deed. The plaintiff claimed that as
the fraud was played on him the said sale deed dated
19.06.1997 to the extent of 10-1 1/3 is void, illegal and
created one. The plaintiff has not sought for any
rectification of the said sale deed as required under section
26 of the Specific Relief Act, which reads as under:
"26. When instrument may be rectified.--
(1) When, through fraud or a mutual mistake of the
parties, a contract or other instrument in writing
[not being the articles of association of a company
to which the Companies Act, 1956 (1 of 1956)
applies] does not express their real intention, then--
(a) either party or his representative in interest may
institute a suit to have the instrument rectified; or
(b) the plaintiff may, in any suit in which any right
arising under the instrument is in issue, claim in his
pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in
clause (b), may, in addition to any other defence
open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other
instrument is sought to be rectified under sub-
section (1), the court finds that the instrument,
through fraud or mistake, does not express the real
intention of the parties, the court may, in its
- 14 -
NC: 2023:KHC-D:13873
discretion, direct rectification of the instrument so as
to express that intention, so far as this can be done
without prejudice to rights acquired by third persons
in good faith and for value.
(3) A contract in writing may first be rectified, and
then if the party claiming rectification has so prayed
in his pleading and the court thinks fit, may be
specifically enforced.
(4) No relief for the rectification of an instrument
shall be granted to any party under this section
unless it has been specifically claimed: Provided that
where a party has not claimed any such relief in his
pleading, the court shall, at any stage of the
proceeding, allow him to amend the pleading on
such terms as may be just for including such claim."
16. As per the sub-section (1) of Section 26 of the
Specific Relief Act through fraud or a mutual mistake of
the parties, a contract or other instrument in writing does
not express the real intention, the parties may institute
suit to have instrument rectified. The plaintiff has not
sought any relief of rectification of the sale deed dated
19.06.1997. The suit without seeking such relief of
rectification of the sale deed or any declaration regarding
the contents of the said sale deed. The suit for the bare
- 15 -
NC: 2023:KHC-D:13873
relief of declaration and injunction against a registered
document i.e. sale deed is not tenable.
17. As the plaintiff has pleaded fraud by defendant
it is for him to establish the said fraud. The said sale deed
dated 19.06.1997 is the registered document and to
establish the contents of the said documents, the
defendant need not lead any evidence to prove the terms
of the said sale deed except producing the document itself
in view of Section 91 of the Indian Evidence Act, 1872.
The defendant has produced the sale deed at Ex.D.1. As
the defendant has produced documents itself there is no
need for him to give evidence to prove terms of the said
sale deed in view of Section 91 of the Indian Evidence Act.
The plaintiff who is disputing the extent of the land in said
sale deed, which is one of the terms of the sale deed, the
burden is on him to prove that the fraud has been played
on him in mentioning extent of the property in the said
sale deed.
- 16 -
NC: 2023:KHC-D:13873
18. The plaintiff in his plaint has stated that he is
ill-literate and his eyes and ears are not working properly.
He has not stated the said aspect in his evidence.
19. The trial Court and the first appellate Court on
reading the evidence of the witness to the sale deed, have
held that it is for the defendant to establish that contents
of the sale deed were read over to the plaintiff at the time
of registration of the document and the defendant has
failed to establish the same. The trial Court and the first
appellate Court erred in holding so since the burden of
proving the fraud is on the plaintiff.
20. The defendant has contended that he is in
possession of the property since 1982 and he has grown
trees. The said aspect has been established by the
Commissioner's report Ex.C-1 wherein it is shown that
some trees exist in the said property. It is not the case of
the plaintiff that he has grown the trees in the said
property.
- 17 -
NC: 2023:KHC-D:13873
21. Considering all these aspects, it is held that the
trial Court and the first appellate Court have erred in
granting the relief of declaration and injunction in respect
of 10-1 1/3 guntas of land even though the extent of
entire property measuring 20-1 1/3 guntas of land is
mentioned in the sale deed. Substantial question of law is
answered accordingly.
22. In the result, the following:
ORDER
The appeal is allowed.
The judgments and decrees passed by the trial Court
in O.S. No.72/1997 dated 23.07.2001 and the first
appellate Court in RA No.77/2001 dated 16.02.2005 are
set aside. The suit of the plaintiff in O.S. No.72/1997 is
dismissed.
Sd/-
JUDGE
AM, AC & KMV
CT:BCK
