Karnataka High Court
Smt Puttalingamma vs Sri Dundegowda on 2 August, 2024
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RSA No. 1669 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.1669 OF 2015 (DEC/INJ)
BETWEEN:
1. SMT PUTTALINGAMMA,
W/O LATE KEMPEGOWDA,
AGED ABOUT 75 YEARS,
SINCE DEAD BY LRS,
WHOM IS APPELLANT NO.2
2. SMT KEMPAMMA,
D/O LATE KEMPEGOWDA,
AGED ABOUT 42 YEARS,
R/O K BELLUR, KASABA HOBLI,
MADDUR TALUK, MANDYA DISTRICT-571422.
...APPELLANTS
(BY SRI K V NARASIMHAN, ADVOCATE
Digitally signed V/O/DT: 21.04.2021 A2 IS TREATED AS LR OF DECEASED
by R DEEPA A1)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SRI DUNDEGOWDA,
S/O CHIKKAKARIGOWDA,
AGED ABOUT 70 YEARS,
R/O MATADADODDI, C A KERE HOBLI,
MADDUR TALUK, MANDYA DISTRICT-571401.
SRI CHANNEGOWDA @ MARIGUDI CHANNEGOWDA
DEAD BY HIS LRS
2. MAHADEVA,
S/O LATE CHANNEGOWDA
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RSA No. 1669 of 2015
@ MARIGUDI CHANNEGOWDA,
AGED ABOUT 54 YEARS,
3. KEMPARAJU,
S/O CHANNEGOWDA,
AGED ABOUT 39 YEARS,
RESPONDENT NO.2 AND 3 ARE
R/O K BELLUR, KASABA HOBLI,
MADDUR TALUK, MADYA DISTRICT-571422.
4. SRI G S PRAJWAL,
S/O SHANKAREGOWDA,
AGED ABOUT 19 YEARS,
5. SRI SHANKAREGOWDA ,
S/O SIDDEGOWDA,
AGED ABOUT 45 YEARS,
RESPONDENT NO.4 AND 5 ARE
R/O GURUDEVARAHALLI VILLAGE,
C A KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571401.
...RESPONDENTS
(BY SRI H C SHIVARAMU, ADVOCATE FOR R1-R5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST JUDGMENT AND DECREE DATED 4.08.2015 PASSED
IN RA NO.26/2014 ON THE FILE OF THE V ADDL. DISTRICT &
SESSIONS JUDGE, MANDYA DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED:
12.04.2014 PASSED IN ON NO.22/2024 ON THE FILE OF THE
SENIOR CIVIL JUDGE, MADDUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1669 of 2015
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgme and decree dated 04.08.2015,
passed in R.A.No.26/2014, by the V Additional District and
Sessions Judge, Mandya, confirming the judgment and
decree dated 12.04.2014, passed in O.S.No.22/2004 by
the Senior Civil Judge, Maddur.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court. The
appellants are the plaintiffs and respondents are the
defendants.
3. The brief facts leading rise to filing of this
appeal are as under:
Plaintiffs filed a suit for declaration, delivery of
possession and permanent injunction in respect of suit
schedule properties. It is the case of the plaintiffs that,
they are the absolute owners of the suit properties. One
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Kempegowda is the husband of plaintiff No.1 and father of
plaintiff No.2. Kempegowda did not have male issues. He
performed the marriage of his daughter to one
Ningegowda and kept them in his house after marriage.
In the year 1985, Kempegowda passed away. The
plaintiffs being the legal heirs of Kempegowda have
succeeded to the suit properties. The defendant No.1
started proclaiming that the revenue entries are standing
in his name and as such he is the owner of the suit
properties. The plaintiffs enquired about the entries in the
name of defendant No.1 and found that the defendant
No.1 by playing fraud on Kempegowda and plaintiff No.1,
got executed a registered sale deed dated 26.11.1984.
The said sale deed is sham, bogus, and fraudulent. It is
contended that no consideration amount was paid to
Kempegowda or plaintiff No.1. The said sale deed is not
binding on them. Hence, cause of action arose for the
plaintiffs to file the suit for declaration, possession and
permanent injunction.
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4. Defendant No.1 filed written statement
contending that the suit schedule properties have been
sold in favour of defendant No.1 by Kempegowda and
plaintiff No.1 to meet out the family, agricultural and
marriage expenses of plaintiff No.2. Item No.2 of the suit
schedule properties was sold in favour of defendant No.2
about 15-16 years back, item No.4 was sold in favour of
defendants No.3 to 5 under registered sale deed dated
15.10.2003. Thus, item Nos.2 and 4 of the suit schedule
properties are in possession and enjoyment of defendants
No.2, 3 and 4. The possession of plaintiffs over item No.1
of the suit schedule properties is merely permissive
possession. There is no cause of action to file the suit.
Hence on these grounds, sought for dismissal of the suit
against defendant No.1.
5. Defendant No.2 filed separate written
statement contending that he had purchased item No.2 of
the suit schedule properties from defendant No.1 under
registered sale deed dated 18.09.1987. Since from the
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date of purchase, the defendant No.2 is in possession of
item No.2 of the suit schedule properties. There is no
cause of action to file the suit in respect of item No.2 of
the suit schedule properties. Hence prayed to dismiss the
suit in so far as item No.2 is concerned.
6. Defendants No.3 to 5 filed written statement
contending that Kempegowda sold the suit schedule
properties in favour of defendant No.1 who in turn sold
item No.4 of the suit schedule properties in their favour
under registered sale deed dated 15.10.2003, and they
are the bona fide purchasers and in possession of item
No.4 of the suit schedule properties and denied the
averments and contentions made in the plaint and prayed
to dismiss the suit.
7. The Trial Court, on the basis of the above said
pleadings, framed the following issues and additional
issues:
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(1) Whether the plaintiffs prove their absolute
ownership and lawful possession over the
suit schedule property?
(2) Whether the plaintiffs prove that the
defendant No.1 played fraud and undue
influence upon 1st plaintiff and her husband
Kempegowda in getting the alleged sale
deed executed on 26.11.1984 registered in
1186/1984-85 and hence void and
inoperative?
(3) Whether the plaintiffs further prove that the
defendants unnecessarily causing
interference with their possession and
enjoyment of the suit schedule properties?
(4) Whether the suit of the plaintiff is hit by the
doctrine of estopped?
(5) To what reliefs the plaintiffs are entitled?
(6) What order or decree?
Additional Issues:
(1) Whether the defendants No.3 to 5 prove
that they are bona-fide purchasers for
valuable consideration of suit item No.4
property, eastern portion by defendant
No.3 and western portion by defendants
No.4 and 5 respectively from the 1st
defendant believing as lawful owner in
possession through registered sale deed
dated 15.10.2003 and ever since they are
in lawful possession of their portion?
(2) Whether the suit of the plaintiff is barred by
law of limitation?
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8. In order to prove the case of the plaintiffs, the
plaintiff No.2 examined herself as PW-1 and got examined
two witnesses as PW-2 & PW-3 and got marked 22
documents as Exs.P1 to P22. In rebuttal, defendant No.1
was examined as DW-1; defendant No.2 was examined as
DW-3; defendant No.3 was examined as DW-5; defendant
No.5 was examined as DW-6; one Eregowda was
examined as DW-2; and one Chikkasiddappa was
examined as DW-4 and got marked 25 documents as
Exs.D1 to D25. The trial Court after assessing the oral
and documentary evidence of the parties, answered issue
Nos.1 to 3 and 5 in negative; issue No.4, additional issue
No.1 and 2 in affirmative; and issue No.6 as per the final
order. The suit of the plaintiffs was dismissed with cost
vide judgment dated 12.04.2014.
9. The plaintiffs aggrieved by the judgment and
decree passed in O.S.No.22/2004, filed an appeal in
R.A.No.26/2014 on the file of learned V Additional District
& Sessions Judge, Mandya. The First Appellate Court,
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after hearing the parties, has framed the following points
for consideration:
(1) Whether the appeal deserves to be
allowed?
(2) What order?
10. The First Appellate Court, after hearing the
learned counsel for the parties and on re-assessing the
oral and documentary evidence, answered point No.1 in
the negative and point No.2 as per the final order and
consequently dismissed the appeal filed by the plaintiffs,
confirming the judgment and decree passed by the trial
Court. The plaintiffs, aggrieved by the impugned
judgments and decrees passed by the courts below, have
filed this regular second appeal.
11. Heard learned counsel for the parties.
12. Learned counsel for the plaintiffs submits that
Kempegowda was the owner of the suit schedule
properties and after his death, the plaintiffs have
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succeeded to the suit properties and are enjoying the
same. He submits that the defendant No.1 had taken a
defence that the plaintiffs are in permissive possession of
item No.1 of the suit schedule properties and the said fact
was not proved by defendant No.1. He submits that the
courts below have committed an error in passing the
impugned judgments in view of the admitted fact that the
plaintiffs are in possession of item No.1 of the suit
schedule properties. He further submits that Ex.P1 was
obtained by playing fraud on Kempegowda and plaintiff
No.1. Further, in order to buttress his argument, he has
placed reliance on the judgments of the Hon'ble Apex
Court in the case of KRISHNA MOHAN KUL & ORS. VS.
PRATIMA MAITY & ORS., AIR 2003 SC 4351; SUBHRA
MUKHERJEE & ANR. VS. BHARAT COKING COAL LTD. & ORS.,
AIR 2000 SC 1203; RAME GOWDA (D) BY LRS. VS. M.
VARADAPPA NAIDU (D) BY LRS. & ORS., AIR 2004 SC
4609; and judgment of this Court in the case of
KENCHAWWA VS. AMAGONDA, ILR 1988 KAR 1185. Hence
on these grounds, prays to allow the appeal.
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13. Per contra, learned counsel for the defendants
submits that Kempegowda was the absolute owner of the
suit schedule properties. Kempegowda and plaintiff No.1
jointly sold the suit schedule properties in favour of
defendants under different registered sale deeds and
Kempegowda and plaintiff No.1 put the defendants in
possession of the respective properties. Hence, plaintiff
No.1 is estopped from challenging the registered sale
deeds. He further submits that the parties have acted
upon the registered sale deeds. The plaintiffs filed the suit
only with an intention to harass the defendants and to
extract money from the defendants. He submits that the
courts below have rightly passed the impugned
judgments. The judgments and decree passed by the
courts below are just and proper and does not call for any
interference. Hence on these grounds prays to dismiss the
appeal.
14. Perused the records and considered the
submissions of learned counsel for the parties.
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15. In order to prove the case of the plaintiffs,
plaintiff No.2 was examined as PW-1 and she has
reiterated the plaint averments in the examination-in-
chief. It is elicited in the course of cross-examination that
the defendant No.1 purchased the suit schedule properties
from Kempegowda under registered sale deed as per
Ex.P1. Ex.P1 is the certified copy of Ex.D1. From the
perusal of Ex.P1, it is clear that item Nos.1 to 4 of the suit
schedule properties have been sold by Kempegowda and
his wife - plaintiff No.1, and plaintiff No.2 has signed as a
witness to Ex.P1 and the signature of plaintiff No.2 was
taken in the sale deed as she being the daughter of
plaintiff No.1 and deceased Kempegowda. Plaintiffs
examined Sri. B. T. Puttegowda as PW-2 who has deposed
that he has signed as a Panchayat Member and defendant
agreed to re-transfer the house to the plaintiffs. Plaintiffs
also examined one Thimmegowda as PW-3. He has
deposed that defendant No.1 agreed to re-transfer the
house to the plaintiffs. In the course of cross-
examination, it was elicited that he agreed to purchase
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item No.1 from defendant No.1. Thereafter defendant
No.1 sold the said property in favour of defendant No.4.
16. The evidence of PW-3 cannot be believed solely
on the ground that he had agreed to purchase item No.1
of the suit schedule properties from defendant No.1 and
defendant No.1 did not sell item No.1 of the suit schedule
properties to PW-3. Hence, PW-3 due to ill will has
deposed against the defendants.
17. Though the plaintiffs have pleaded that the said
sale deed was obtained by defendant No.1 by fraud, the
said fraud has not been proved by the plaintiffs. In order
to consider the case on hand, it is necessary to examine
Order VI Rule 4 of CPC which reads as under:
"Particulars to be given where
necessary. - In all cases in which the party
pleading relies on any misrepresentation, fraud,
breach of trust, willful default or undue
influence, and in all other cases in which
particularly may be necessary beyond such as
exemplified in the forms aforesaid, particulars
(with date and items if necessary) shall be
stated in the pleading."
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18. From the perusal of the plaint, the plaintiffs
have nowhere stated the particulars of fraud. On the
contrary, the plaintiffs and Kempegowda had been to the
Sub-Registrar office and executed registered sale deed in
favour of defendant No.1 as per Ex.P1. Ex.P1 was
executed on 26.11.1984, and the present suit was filed on
29.03.2004. Article 56 of the Limitation Act, 1963,
provides that, to declare the forgery of an instrument
issued or registered, the period of limitation is three years
from when the issue or registration becomes known to the
plaintiff. Admittedly, plaintiff No.1 and Kempegowda
jointly executed registered sale deed in favour of
defendant No.1 in the year 26.11.1984, and plaintiff No.2
has signed as an attesting witness to Ex.P1. The plaintiffs
had the knowledge regarding the execution of Ex.P1 on
26.11.1984, itself. The plaintiffs have not challenged the
registered sale deed within 3 years from the date of
knowledge. Hence, the suit filed by the plaintiffs is barred
by limitation. Both the courts below have concurrently
recorded a finding of fact that the plaintiffs have failed to
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prove that they are the absolute owners and in lawful
possession and further failed to prove that the defendant
No.1 played fraud and undue influence upon the plaintiff
No.1 and her husband Kempegowda in getting registered
the sale deed executed on 26.11.1984, and also held that
the plaintiffs have failed to prove the alleged interference
by the defendants. The trial Court was justified in
dismissing the suit. The first Appellate Court on re-
assessment of the oral and documentary evidence, has
rightly dismissed the appeal holding that the suit filed by
the plaintiffs is barred by limitation. There is no dispute in
regard to the ratio laid down in the judgments relied upon
by the learned counsel for the plaintiffs. I have perused
the said judgments. The said judgments are not
applicable to the present case on hand. I do not find any
error in the impugned judgments and I do not find any
substantial question of law that arise for consideration in
this appeal. I concur with the impugned judgments
passed by the courts below.
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19. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is dismissed.
No order as to the costs.
SD/-
(ASHOK S. KINAGI)
JUDGE
RD
