Karnataka High Court
Smt. Nanjamma vs Smt. Puttamma on 4 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:25320
RSA No. 1807 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1807 OF 2023 (DEC/INJ)
BETWEEN:
SMT. NANJAMMA
W/O LATE CHANDRANNA @ CHANDRAPPA
AGED ABOUT 95 YEARS
R/O HUNASEPALYA
SANGANAHALLI MAJARE
CHELUR HOBLI, GUBBI TALUK-572117
TUMAKURU DISTRICT
REP. BY SPA HOLDER
SMT. S C NATARAJU
Digitally signed
S/O CHANDRANNA @ CHANDRAPPA
by DEVIKA M AGED ABOUT 46 YEARS
Location: HIGH R/O HUNSEPALYA
COURT OF SANGANAHALLI MAJARE
KARNATAKA
CHELUR HOBLI
GUBBI TALUK 572117
TUMAKURU DISTRICT
...APPELLANT
(BY SRI V B SIDDARAMAIAH, ADVOCATE)
AND:
1. SMT. PUTTAMMA
W/O SHIVANNA
AGED ABOUT 51 YEARS
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RSA No. 1807 of 2023
2. SRI JAGADEESH
S/O LATE SHIVANNA
AGED ABOUT 44 YEARS
3. SMT. PUSHPALATHA
W/O JAGADEESH
AGED ABOUT 39 YEARS
ALL THE RESPONDENTS ABOVE ARE
R/AT MARASHETTIHALLI VILLAGE
KADABA HOBLI
GUBBIT TALUK - 572117
TUMAKURU DISTRICT
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 09.08.2023
PASSED IN R.A NO.92/2019 ON THE FILE OF ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, GUBBI AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the
learned counsel appearing for the appellants.
2. The factual matrix of the case of the plaintiff
before the Trial Court that the plaintiff's husband
Chandranna has purchased 5 acres of land in Sy.No.48 of
Sanganahalli village, Chelur hobli, Gubbi taluk under a
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registered sale deed dated 21.08.19595 from one
Rangappa. Since then, the plaintiff's husband was in
physical possession and enjoyment of the same as a
absolute owner and revenue records also changed in the
name of the husband of the plaintiff. It is also case of the
plaintiff that out of 5 acres of land, her husband sold 2
acres of land under a registered sale deed dated
07.06.1960 to one Shivanna that is the husband of
defendant No.1. The said Chandranna retained 3 acres of
land in his name that is the suit schedule property in the
present case. The plaintiff's husband died on 27.05.2007
leaving behind his wife and children as legal heirs. After
the death of Chandranna, the plaintiff and children
continued with the possession and enjoyment of the suit
schedule property as absolute owner. It is also the
contention of the plaintiff that husband of defendant No.1
i.e., Shivanna by colluding with the revenue officials has
created and concocted the revenue documents and
transferred 5 acres of land in his name as per
M.R.No.1/1988-89 instead of 2 acres. The defendants and
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said Shivanna are only entitled for 2 acres of land under
the sale deed dated 07.06.1960 and not to the entire
extent of land. After the death of said Shivanna, his wife
got mutated the land into her name on the basis of
pavathi varasu to the extent of 5 acres instead of 2 acres
under M.R.No.6/1989-90 dated 16.04.1990. Based on the
wrong entries, the defendants divided the said land and
thereby they have created and concocted partition.
Accordingly, they have got mutated the same under
M.R.No.22/2009-10 dated 30.04.2010. When they came to
know about the fraudulent act and concocted revenue
records, the plaintiff filed an appeal before the Assistant
Commissioner contending that defendants are not having
any right over the suit schedule property.
3. In pursuance of the suit summons, the
defendants appeared and filed the written statement
contending that the husband of defendant No.1 not only
they purchased 2 acres of land vide sale deed dated
07.06.1960 from the husband of the plaintiff and
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remaining land of 3 acres was also purchased vide sale
deed dated 17.03.1969 from the husband of the plaintiff
and possession also delivered to the total extent and
consequently, M.R.No.1/1989-90 came into existence.
Hence, the very claim made by the plaintiff is erroneous.
4. Having considered the pleadings of the parties,
the Trial Court framed the Issues and allowed the parties
to lead their evidence. The Trial Court having considered
both oral and documentary evidence placed on record
comes to the conclusion that the plaintiff is not the
absolute owner of the suit schedule property since the
property was sold in favour of husband of defendant No.1
to the extent of 3 acres i.e., the remaining land as well as
2 acres of land. It is contention of the plaintiff that
fraudulently transfer was done and the said contention
also negatived. The Trial Court dismissed the suit of the
plaintiff in coming to the conclusion that the very
contention of the plaintiff that fraudulently got transferred
the property is not acceptable. Being aggrieved by the
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judgment and decree of the Trial Court, an appeal is filed
in R.A.No.92/2019 and the First Appellate Court also
having considered the grounds urged in the appeal
formulated the points and having reassessed the material
available on record and even taken note of the judgment
of the Apex Court reported in (2006 ) 5 SCC 353 in the
case of PREM SINGH AND OTHERS vs BIRBAL AND
OTHERS and extracted the observation with regard to the
presumption that a registered document is validly
executed. A registered document, therefore, prima facie
would be valid in law. The onus of proof, thus, would be
on a person who leads evidence to rebut the presumption.
In the instant case, respondent No.1 has not been able to
rebut the said presumption. Having reassessed the
material available on record in the light of the principles
laid down in the judgment of the Apex Court and
considering both oral and documentary evidence placed on
record the First Appellate Court confirmed the judgment
and decree of the Trial Court. Being aggrieved by the
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concurrent finding of both the Courts, the present appeal
is filed.
5. The main contention of the learned counsel
appearing for the appellant that the sale deeds which they
relied upon i.e., Ex.D1 and D2 are only certified copies and
the original is not produced before the Court and no
explanation is given for not producing the original
documents and hence, the Trial Court and the First
Appellate Court ought not to have accepted the said
documents with regard to the sale is concerned. Hence,
this Court has to admit the appeal and frame substantial
questions of law.
6. Having heard the learned counsel appearing for
the appellant and on perusal of the material available on
record, it discloses that no doubt, the original sale deed is
not produced but certified copy of the sale deed is
produced and marked as Ex.D1 and Ex.D2 is also in
respect of earlier sale deed of the year 1960 and
subsequent sale deed is of the year 1969. Admittedly, the
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husband of the plaintiff passed away in the year 2007 and
during his lifetime i.e., from 1969 to 2007, he did not
challenge the sale deed and only after the death of the
husband of plaintiff, the present suit is filed that too in the
year 2013 contending that fraudulently obtained the
document and even not pleaded with regard to the very
existence of subsequent sale deed. The defendants filed
the written statement contending that the remaining
property i.e., 3 acres was sold in the year 1969 itself by
the husband of the plaintiff in respect of husband of
defendant No.1 and an issue also framed stating that
whether the sale deed is fraudulent one and whether the
sale deed was executed by the husband of the plaintiff.
Having considered the material available on record the
Trial Court comes to the conclusion that fraud has not
been proved as alleged. Only there is an allegation of
fraud in getting transferred of 3 acres of land colluding
with the revenue officials by the husband of defendant
No.1 but the material found that there was a sale deed in
favour of the husband of defendant No.1 in the year 1969
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itself from the husband of plaintiff. I have already pointed
that during the lifetime of husband of the plaintiff, not
challenged the said sale deed of the year 1969 and after
the death of the husband of the plaintiff only, the said sale
was questioned that too in the year 2013 and all revenue
entries also changed from 1989 onwards. When such
being the case, very contention of the appellant counsel
that still they are in possession has not been accepted.
The First Appellate Court also having considered the
judgment of the Apex Court taken note of the fact that
there is a presumption in respect of registered document
and also taken note of Section 31 of the Specific Relief Act
which deals with the cancellation of written instrument by
the competent civil Court, if the plaintiff establishes the
ingredients contained under said Section and same has not
been done. Only sought for the relief of declaration.
When such being the material available on record, I do not
find any grounds to interfere with the finding of both the
Courts when the sale has not been proved as a fraudulent
one and same is also not questioned seeking the relief
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under Section 31 of the Specific Relief Act. Under such
circumstances, I do not find any ground to invoke Section
100 of CPC to frame the substantial questions of law while
admitting the appeal.
7. In view o the discussions made above, I pass
the following:
ORDER
The regular second appeal is dismissed.
Sd/-
JUDGE
SN
