Karnataka High Court
Fakeera Naika Since Dead By His Lr vs Smt Gowramma on 4 April, 2024
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RSA No. 1516 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL No.1516 OF 2014 (INJ)
BETWEEN:
FAKEERA NAIKA
SINCE DEAD BY HIS LR
M N KRISHNA NAYAKA
S/O FAKEERA NAIKA
AGED ABOUT 70 YEARS
R/A KIREGOWDANAHALLI
GURUVARA HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT -572 101.
...APPELLANT
(BY SRI A SAMPATH, ADVOCATE)
AND:
1. SMT GOWRAMMA
AGED ABOUT 60 YEARS
Digitally W/O RAMANJINAYAKA
signed by R
MANJUNATHA
Location: 2. KRISHNA NAIKA
HIGH COURT
OF AGED ABOUT 50 YEARS
KARNATAKA
S/O SOMALA NAIKA
3. SHEVALA NAIKA
AGED ABOUT 70 YEARS
S/O SAKRA NAIKA
4. SEVYA NAIKA
S/O SAKKRA NAIKA
AGED ABOUT 72 YEARS
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RSA No. 1516 of 2014
ALL ARE RESIDENTS OF
KIREGOWDANAHALLI
PURAWARA HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT -572 101
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DTD 23.7.2014 PASSED
IN R.A.NO.21/2009 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DTD 15.1.2009
PASSED IN OS.NO.174/2001 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN), MADHUGIRI.
THIS RSA, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This Regular Second Appeal is filed by the
appellant, challenging the judgment and decree dated 23rd
July, 2014, passed in R.A.No.21/2009 by the Principal
Senior Civil Judge and JMFC., Madhugiri, confirming the
judgment and decree dated 15.01.2009, passed in
O.S.No.174/2001 by the Principal Civil Judge (Jr.Dn),
Madhugiri.
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2. For the sake of convenience, parties are
referred to as per their ranking before the Trial Court.
Appellant is the plaintiff. Respondents are the defendants.
3. Plaintiff filed a suit for permanent injunction
restraining the defendants from interfering with the
plaintiff's peaceful possession and enjoyment of the suit
schedule property.
4. Brief facts leading rise to filing of this appeal
are as under;
It is the case of the plaintiff that, the land bearing
Sy.No.44 of Badakanahalli village, Madhugiri Taluk was the
ancestral property of the plaintiff. Defendant No.1 was the
brother-in-law of the plaintiff. During the year 1967 there
was a severe draught and the plaintiff was badly in need
of money, therefore, the plaintiff barrowed hand loan of
Rs.400/- from the defendant No.1 and the defendant No.1
insisted the plaintiff to execute the nominal sale deed
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towards the security of the loan. The plaintiff executed a
registered sale deed in favour of defendant No.1. The
possession was not delivered as on the date of execution
of the registered sale deed. The plaintiff continued in
possession of the suit schedule property even after the
execution of registered sale deed in favour of defendant
No.1. It is contended that the defendants tried to
interfere with the possession of the plaintiff. The plaintiff
requested the defendants not to interfere into the peaceful
possession and enjoyment of the plaintiff over the suit
schedule property. The defendants did not heed to the
request made by the plaintiff. Hence, cause of action
arose for the plaintiff to file the suit for permanent
injunction.
5. The defendant Nos.1 and 2 filed written
statement. During the pendency of the suit, defendant
No.1 died leaving behind his legal representatives and his
legal representatives were brought on record as defendant
Nos.1 (a) to (c). Defendant No.1(a) filed additional
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written statement. Defendant No.1 (b) and (c) filed a
memo adopting the written statement filed by defendant
No.1 (a). In the written statement it is contended that the
plaintiff had executed a registered sale deed dated
05.07.1967 in favour of defendant No.1 and delivered the
possession of the suit schedule property in favour of
defendant No.1. It is contended that on the basis of the
registered sale deed dated 05.07.1967, the suit schedule
property was transferred to the defendant No.1 under
M.R.No.6/2001-02. RTC extract and khatha stands in the
name of defendant No.1 in respect of suit schedule
property. It is contended that, the plaintiff is not in
possession and enjoyment of the suit schedule property.
Hence, prayed to dismiss the suit.
6. The Trial Court on the basis of the pleadings of
the parties framed the issues.
7. The plaintiff in order to prove his case,
examined the power of attorney holder as P.W.1 and
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examined four witnesses as P.Ws.2 to 5 and got marked
45 documents as Exs.P.1 to P.45 and defendant No.1 (a)
was examined as D.W.1 and examined three witnesses as
D.Ws.2 to 4 and got marked 38 documents as Exs.D.1 to
D.38.
8. The Trial Court after assessing the oral and
documentary evidence, dismissed the suit with costs vide
judgment dated 15.01.2009. The plaintiff aggrieved by
the judgment and decree passed in O.S.No.174/2001,
preferred an appeal in R.A.No.21/2009 on the file of
Principal Senior Civil Judge and JMFC., Madhugiri.
9. The First Appellate Court after re-appreciating
the evidence on record, dismissed the appeal vide
judgment dated 23.07.2014 and confirmed the judgment
and decree passed by the Trial Court.
10. The plaintiff aggrieved by the judgments and
decree passed by the Courts below, has filed this regular
second appeal.
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11. Heard the learned counsel for the plaintiff.
12. Learned counsel for the plaintiff submits that,
the plaintiff is in continuous possession of the suit
schedule property, after the execution of the registered
sale deed and the plaintiff is in continuous, uninterrupted,
without any obstruction, is in possession of the suit
schedule property for more than 12 years and the plaintiff
acquired the title over the suit schedule property by way
of adverse possession. Hence, he submits that the Courts
below have committed an error in passing the impugned
judgments. Hence, on these grounds, he prays to allow
the appeal.
13. Perused the records. Considered the
submissions of the learned counsel for the plaintiff.
14. It is not in dispute that the property was owned
and possessed by the plaintiff. Plaintiff has executed a
registered sale deed in favour of defendant No.1 on
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05.07.1967 and also delivered the possession of the suit
schedule property in favour of defendant No.1. The
plaintiff in order to substantiate his case, he has been
examined himself as P.W.1 and he has reiterated the
plaint averments in examination-in-chief and produced
the documents Exs.P.1 to P.45 and also examined the
witnesses in order to prove his possession over the
schedule property. In rebuttal, defendant No.1 (a)
examined herself as D.W.1 and in order to prove that the
plaintiff executed a registered sale deed in favour of
defendant No.1, the defendant has produced the certified
copy of registered sale deed executed by plaintiff in favour
of defendant No.1 and the said deed is marked as Ex.D.2
and also produced the revenue records which discloses
that the defendant No.1 is in possession of the suit
schedule property. On perusal of Ex.D.2 it discloses that
there is a recital regarding plaintiff has delivered the
possession of the suit schedule property in favour of
defendant No.1 at the time of execution of the registered
sale deed.
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15. The plaintiff has not sought the relief of
cancellation of the registered sale deed executed by him in
favour of defendant No.1. Until and unless the sale deed
is not set aside, the plaintiff has no right to claim title over
the suit schedule property and further there is a recital in
the registered sale deed regarding delivery of possession
of the suit schedule property in favour of defendant No.1.
However, the plaintiff has led evidence to establish that
the plaintiff has not delivered the possession of the suit
schedule property in favour of defendant No.1 under
Ex.D.2. In order to consider the case in hand, it is
necessary to consider Section 92 of the Evidence Act,
which reads as under:
"92. Exclusion of evidence of oral agreement.--When
the terms of any such contract, grant or other disposition of
property, or any matter required by law to be reduced to the
form of a document, have been proved according to the last
section, no evidence of any oral agreement or statement shall
be admitted, as between the parties to any such instrument
or their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting from, its
terms:
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Proviso (1).--Any fact may be proved which would
invalidate any document, or which would entitle any person to
any decree or order relating thereto; such as fraud,
intimidation, illegality, want of due execution, want of
capacity in any contracting party, [want or failure] of
consideration, or mistake in fact or law.
Proviso (2).--The existence of any separate oral
agreement as to any matter on which a document is silent,
and which is not inconsistent with its terms, may be proved.
In considering whether or not this proviso applies, the Court
shall have regard to the degree of formality of the document.
Proviso (3).--The existence of any separate oral
agreement, constituting a condition precedent to the
attaching of any obligation under any such contract, grant or
disposition of property, may be proved.
Proviso (4).--The existence of any distinct subsequent oral
agreement to rescind or modify any such contract, grant or
disposition of property, may be proved, except in cases in
which such contract, grant or disposition of property is by law
required to be in writing, or has been registered according to
the law in force for the time being as to the registration of
documents.
Proviso (5).--Any usage or custom by which incidents not
expressly mentioned in any contract are usually annexed to
contracts of that description may be proved:
Provided that the annexing of such incident would not be
repugnant to, or inconsistent with, the express terms of the
contract.
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Proviso (6).--Any fact may be proved which shows in what
manner the language of a document is related to existing
facts."
16. Section 92 of the Indian Evidence Act, provides
that as to adducing to evidence vary terms of written
contract, intent of the parties and nature of transaction to
be gathered from the documents itself, no evidence of any
oral agreement or statement can be admitted as between
the parties to such a document, for the purpose of
contradicting or modifying its terms. As could be seen
from the records there is a recital in Exs.D.2 regarding
delivery of possession. Any amount of oral evidence lead
by the plaintiff in order to contradict the terms of
agreement is inadmissible in evidence as per Section 92 of
the Indian Evidence Act.
17. The Trial Court considering the entire material
on record was justified in holding that the plaintiff has
failed to establish that the plaintiff is in possession and
enjoyment of the suit schedule property and also failed to
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establish interference by the defendants. The First
Appellate Court on re-appreciating the material evidence
on record was justified in confirming the judgment and
decree passed by the Trial Court. Both the Courts below
have concurrently recorded the finding of facts against the
plaintiff holding that the plaintiff is not in possession of the
suit schedule property. Admittedly, the suit is for
permanent injunction. In a suit for injunction, the Court is
required to consider the possession as on the date of filing
of suit and interference as recorded above, the plaintiff
has failed to establish his possession over the suit
schedule property.
18. Both the Courts below were justified in passing
the impugned judgments. Hence, I do not find any
substantial questions of law that arises for consideration
and any error in the impugned judgments.
19. Accordingly, I proceed to pass the following:
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ORDER
Appeal is dismissed.
Impugned Judgments and Decree passed by the
Courts below are hereby confirmed.
No order as to costs.
Sd/-
JUDGE
MR
