Karnataka High Court
Baburao S/O Sangappa vs Shobhadevi And Ors on 20 February, 2024
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NC: 2024:KHC-K:1662
RSA No. 200237 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200237 OF 2021 (DEC)
BETWEEN:
BABURAO S/O SANGAPPA,
AGE: 80 YEARS,
OCC: AGRI AND PENSIONER,
R/O: DHANNURA-R,
TQ: BASAVAKALYAN,
NOW RESIDING AT C/O RAVI KOLAR,
NEAR T.V STATION, HUMNABAD RAOD,
KALABURAGI-565102
...APPELLANT
(BY SRI. CHETAN KALBURAGI, ADVOCATE)
AND:
Digitally
signed by 1. SMT.SHOBHADEVI
SACHIN
Location: W/O KASHAPPA CHANGOND,
HIGH
COURT OF AGE: 60 YEARS,
KARNATAKA
OCC: HOUSEHOLD,
2. KASHAPPA S/O LAXUMAN CHANGOND,
AGE: 65 YEARS,
OCC: GOVT. TEACHER AND AGRICULTURE,
3. ANAND S/O ARJUN DEVGOND,
AGE: 34 YEARS,
OCC: AGRICULTURE,
ALL ARE R/O VILLAGE DHANNURA (R),
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NC: 2024:KHC-K:1662
RSA No. 200237 of 2021
TQ: BASAVAKALYAN,
DIST: BIDAR-585327.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
02.11.2020 PASSED IN RA NO.1/2018 BY CIVIL JUDGE
(SR.DN.) AT BASAVAKALYAN CONFIRMING THE JUDGMENT
AND DECREE DATED 16.12.2017 PASSED IN O.S.NO.37/09 BY
THE LEARNED ADDL CIVIL JUDGE & JMFC AT BASAVAKALYAN.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, Appellant/plaintiff is assailing the
judgment and decree dated 02.11.2020 in R.A.No.1/2018
on the file of Senior Civil Judge, Basavakalyan, confirming
the judgment and decree dated 16.12.2017 in
O.S.No.37/2009 on the file of Addl. Civil Judge and JMFC,
Basavakalyan, dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, plaintiff is the
owner of the property in question and as he need of
financial assistance for the family, received `1,00,000/-
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from his friend and coaching Teacher of his daughter, one
Sri.Nagraj, Advocate. It is further stated in the plaint that,
it is agreed that a nominal sale-deed will be made in the
name of the wife of defendant No.2 and on the very same
day, a registered sale-deed was executed on 20.03.2003,
selling the schedule property in favour of defendant No.1
as a security of loan. It is the case of the plaintiff that, the
plaintiff has executed an agreement on the very same day
that on returning of the said aforementioned amount, the
sale-deed will be cancelled. However, the defendant No.1
has executed registered sale-deed in favour of defendant
No.3 on 30.05.2006 and it is the case of the plaintiff that
the father of the defendant No.3 colluded with defendant
Nos.1 and 2 and committed a fraud against the plaintiff.
Hence, the plaintiff filed O.S.No.37/2009 on the file of Trial
Court seeking relief of declaration that registered sale-
deed dated 20.03.2003 executed in favour of defendant
No.1 is void and accordingly, further sought for
redemption of mortgage in terms of the agreement.
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4. After service of notice, the defendants entered
appearance, however defendant Nos.1 and 3 have filed
written statement denying the averments made in the
plaint and accordingly sought for dismissal of the suit.
5. The Trial Court on the basis of the pleadings on
record framed the issues for its consideration.
6. In order to establish their case, plaintiff has
examined two witnesses as PW.1 and PW.2 and marked
nine documents as Ex.P.1 to Ex.P.9. Defendants have
examined two witnesses as DW.1 and DW.2 and marked
six documents as Ex.D1 to Ex.D6.
7. The Trial Court after considering the material on
record, vide judgment and decree dated 16.11.2017,
dismissed the suit of the plaintiff. Being aggrieved by the
same, the plaintiff has preferred appeal in R.A.No.1/2018
before the First Appellate Court and the appeal was
resisted by the defendants. The First Appellate Court after
considering the material on record, dismissed the appeal
by judgment and decree dated 02.12.2020 by confirming
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the judgment and decree passed in O.S.No.37/2009.
Feeling aggrieved by the same, the plaintiff/appellant has
preferred the present second appeal.
8. I have heard Sri Chetan Kalburgi, learned
counsel appearing for the appellant.
9. Sri Chetan Kalburgi, learned counsel appearing
for the appellant contended that both the Courts below
have not considered the fact that the plaintiff has executed
an agreement (Ex.P.9) to establish that the sale made in
favour of defendant No.1 is only a nominal sale and for the
purpose as to security towards money availed by the
plaintiff and therefore he contended that the finding
recorded by both the Courts below requires to be set-
aside.
10. Having heard the learned counsel appearing for
the appellant, it is forthcoming from the material on record
that the plaintiff has executed registered sale-deed dated
20.03.2003 in favour of defendant No.1 and averred that it
is only for the purpose of security of loan. It is to be noted
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that once a registered sale-deed has been made in favour
of defendant No.1 same cannot be nullified taking into
consideration the unregistered agreement produced at
Ex.P.9 without cogent evidence. I have also carefully
considered the finding recorded by both the Courts below
and same would fortify the fact that the registered sale-
deed was executed in favour of defendant No.1 during
2002 and after eight years, the plaintiff has filed suit
seeking declaration that the sale-deed dated 20.03.2003 is
nominal sale and such a contention cannot be accepted in
the circumstances of the case as the perusal of the
registered sale-deed produced at Ex.P.1 would indicate
that the plaintiff has sold the subject matter of the suit
land in favour of defendant No.1, after receiving
consideration and accordingly both the Courts below were
justified in negating the contention of the plaintiff.
Hence, I am of the view that no interference is called
for in this appeal and appeal is dismissed at the stage of
admission itself. It is also to be noted that as the appellant
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has not made out a case to frame substantial question of
law as required under Section 100 of Code of Civil
Procedure, appeal fails and is accordingly dismissed.
Sd/-
JUDGE
SN
