Karnataka High Court
Fakhiravva W/O Hanumappa vs Sanneppa S/O Hanumappa on 19 November, 2024
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RSA No. 5123 of 2013
C/W RSA No. 5124 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 5123 OF 2013 (DEC/INJ)
C/W
RSA NO. 5124 OF 2013
IN RSA NO.5123/2013:
BETWEEN:
1. SMT. FAKHIRAVVA W/O. HANUMAPPA,
AGED ABOUT 58 YEARS, OCC. AGRICULTURIST,
2. MUTTAPPA S/O. HANUMAPPA,
AGED ABOUT 28 YEARS, OCC. AGRICULTURIST,
Digitally
signed by
VISHAL
VISHAL
NINGAPPA
NINGAPPA PATTIHAL
3. SHIVAPPA S/O. HANUMAPPA,
PATTIHAL Date:
2024.11.27
10:35:03
+0530
AGED ABOUT 26 YEARS, OCC. AGRICULTURIST,
4. YAMANOORAPPA S/O. HANUMAPPA,
AGED ABOUT 23 YEARS, OCC. AGRICULTURIST,
5. NAGAVVA D/O. HANUMAPPA,
AGED ABOUT 21 YEARS, OCC. AGRICULTURIST,
6. DEVAPPA S/O. HANUMAPPA,
AGED ABOUT 18 YEARS, OCC. AGRICULTURIST,
7. GANGAVVA D/O. HANUMAPPA,
AGED ABOUT 15 YEARS,
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RSA No. 5123 of 2013
C/W RSA No. 5124 of 2013
8. LAXMAVVA D/O. HANUMAPPA,
AGED ABOUT 13 YEARS,
9. YAMUNAVVA D/O. HANUMAPPA,
AGED ABOUT 11 YEARS,
10. AMBRESH S/O. HANUMAPPA,
AGED ABOUT 09 YEARS,
(APPELLANT NO. 7 TO 10 ARE MINORS
REPRESENTED BY THEIR NATURAL MOTHER
APPELLANT NO.1)
ALL ARE: R/O. BOMMASAGAR, TQ. GANGAVATHI.
...APPELLANTS
(BY SRI. ANNASAHAB SHALAGAR, ADVOCATE FOR
SMT. VEENA HEGDE)
AND:
SANNEPPA S/O. HANUMAPPA,
AGED ABOUT 60 YEARS, OCC. AGRICULTURE,
R/O. UPPALAPUR, TQ. KOPPAL,
AND BOMSAGAR VILLAGE IN
GANGAVATHI.
...RESPONDENT
(BY SRI. B. SHARANABASAWA, ADVOCATE FOR SOLE
RESPONDENT)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD:05.12.2012 PASSED IN
R.A.NO.14/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE, AT GANGAVATHI, DISMISSING THE APPEAL FILED
AGAINST THE JUDGEMENT AND DECREE DTD:23.04.2010
PASSED IN OS.NO.54/2006 ON THE FILE OF THE ADDL.
CIVIL JUDGE (JR.DN), GANGAVATHI, DISMISSING THE
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RSA No. 5123 of 2013
C/W RSA No. 5124 of 2013
SUIT FILED FOR DECLARATION BY CANCELLATION OF
SALE DEED ETC.,
IN RSA NO.5124/2013:
BETWEEN:
1. SMT. FAKHIRAVVA W/O. HANUMAPPA,
AGED ABOUT 58 YEARS, OCC. AGRICULTURIST,
2. MUTTAPPA S/O. HANUMAPPA,
AGED ABOUT 28 YEARS, OCC. AGRICULTURIST,
3. SHIVAPPA S/O. HANUMAPPA,
AGED ABOUT 26 YEARS, OCC. AGRICULTURIST,
4. YAMANOORAPPA S/O. HANUMAPPA,
AGED ABOUT 23 YEARS, OCC. AGRICULTURIST,
5. NAGAVVA D/O. HANUMAPPA,
AGED ABOUT 21 YEARS, OCC. AGRICULTURIST,
6. DEVAPPA S/O. HANUMAPPA,
AGED ABOUT 18 YEARS, OCC. AGRICULTURIST,
7. GANGAVVA D/O. HANUMAPPA,
AGED ABOUT 15 YEARS,
8. LAXMAVVA D/O. HANUMAPPA,
AGED ABOUT 13 YEARS,
9. YAMUNAVVA D/O. HANUMAPPA,
AGED ABOUT 11 YEARS,
10. AMBRESH S/O. HANUMAPPA,
AGED ABOUT 09 YEARS,
(APPELLANT NO.7 TO 10 ARE MINORS
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RSA No. 5123 of 2013
C/W RSA No. 5124 of 2013
REPRESENTED BY THEIR NATURAL MOTHER
APPELLANT NO.1)
ALL ARE: R/O. BOMMASAGAR,
TQ. GANGAVATHI-583231.
... APPELLANTS
(BY SRI. ANNASAHAB SHALAGAR, ADVOCATE FOR
SMT. VEENA HEGDE)
AND:
BHEEMAPPA S/O. SANNEPPA,
AGED ABOUT 68 YEARS, OCC. AGRI.,
R/O. UPPALAPUR,
TQ. KOPPAL AND BOMMASAGAR,
TQ. GANGAVATHI-583231.
... RESPONDENT
(SOLE RESPONDENT IS DECEASED)
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD:05.12.2012 PASSED IN
R.A.NO.15/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE, AT GANGAVATHI, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGMENT DTD:24.04.2010 AND THE
DECREE PASSED IN O.S. NO.55/2006 ON THE FILE OF
THE PRL. CIVIL JUDGE, GANGAVATHI, DISMISSING THE
SUIT FILED FOR DECLARE THE REG. SALE DEED AS NULL
& VOID.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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RSA No. 5123 of 2013
C/W RSA No. 5124 of 2013
ORAL JUDGMENT
Both the appeals are taken up together as common
questions are involved in these appeals.
2. Plaintiff is before this Court in this regular
second appeals assailing the concurrent findings of facts
recorded by the Courts below, whereby, the suit seeking
for declaration to cancel the registered sale deed dated
09.01.2005, came to be dismissed by the Courts below.
3. Brief facts of the case are that;
Hanumantappa S/o. Kanakappa filed a suit seeking
for declaration to cancel the sale deed dated 09.01.2005
against Sanneppa S/o. Hanumappa in OS No.54/2006 and
seeking for similar relief against Bhimappa S/o. Sanneppa
OS No.55/2006 was filed.
4. Defendant in OS No.54/2006 is the father of
defendant in O.S No 55/2006, Bhimappa the son of
Sanneppa died during the pendency of the appeal, as the
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Bhimappa and Sanneppa together purchased the suit
property, Sanneppa represents the estate of Bhimappa,
bringing of the legal heirs in RSA No.5124/2013 would not
arise.
5. The case of the plaintiff is that the defendants
playing fraud on the plaintiff's father have got the sale
deed registered in their favor. That the mental and
physical condition of the father and was admitted in the
Hospital at the relevant point of time, the father of the
plaintiff was not well enough for him to understand the
transaction.
6. Pursuant to the notice issued by the trial Court,
the defendant in both the suit appeared and filed written
his statement inter alia denying the plaint averments. The
defendants denied the relationship of the plaintiff with that
of Kankappa, about allegation that Kanakappa was
physically and mentally unable to understand the
execution of the sale transaction. The defendant
specifically contended that Kanakappa has executed the
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registered sale deed dated 09.01.2005 in favor of
Sanneppa and Bhimappa S/o. Sanneppa.
7. The trial Court based on the pleadings framed
the following issues;
1. Whether the plaintiff proves that the sale
deed registered No.3509/2005-06 dated 01-09-
2005 is illegal, null and void, not operative and
binding on the plaintiff as stated in para No.8 of
the plaint?
2. Is the plaintiff entitled relief sought in the
plaint?
3. What order or decree?
8. In order to substantiate their claim, the plaintiff
examined himself as PW.1 and 5 witnesses as PW.2 to
PW.6 and marked documents at Ex.P.1 to Ex.P.17. On the
other hand, the defendant examined himself as DW.1 and
3 witnesses as DW.2 to DW.4 and marked documents at
Ex.D.1 to Ex.D.23.
9. The trial Court based on the pleadings, oral and
documentary evidence arrived at a conclusion that;
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i) The plaintiff has failed to prove that the sale
deed registered on 09.01.2005 is null and void and
not binding on the plaintiff.
10. By the judgment and decree, the trial Court
dismissed the suit. Aggrieved, the plaintiff preferred an
appeal before the First Appellate Court. The First Appellate
Court while appreciating the entire oral and documentary
evidence affirmed the judgment and decree of the trial
Court. Aggrieved, the plaintiff is before this Court in this
regular second appeal.
11. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondent and perused the materials on record.
12. The undisputed fact is that the father of the
plaintiff has executed a registered sale deed in favor of the
defendant i.e., Sanneppa and Bhimappa S/o. Sanneppa on
09.01.2005. According to the plaintiff, the mental
condition of his father Kanakappa was not sound enough
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to execute a registered sale deed. The burden was on the
plaintiff to prove that as on the date of the execution of
the sale deed, the health condition of his father was not
stable and he was under treatment, the plaintiff marked
document at Ex.P.10 and the certificate issued by one
Dr.Gurumurthy was examined as PW.2. Ex.P.10 is a
medical certificate to certify that Kanakappa was under the
treatment for right sided Hemiplegic stroke due to which
he became mentally retarded from 25.08.2005 to
10.09.2005 and he was mentally disabled. Ex.P.10 reads
as under;
"This is to certify that Sri.Kanakappa Sl/o.
Sangappa (Sanneppa) Aged about 78 years R/o.
Bommasagar thanda Tq.Gangavati was under my
care and treatment for Rt Sided Demiplegic stroke
and # of famous bone and Finally he has become
mentally Retarded case from 25-8-05 To 10-9-05.
then I have advised to take Treatment & Rest for
Two months."
13. Dr.Gurumurthy deposed that the Kanakappa
was under his treatment from 25.08.2005 to 10.09.2005.
The cross-examination of PW.2 is to the effect that the
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clinic of PW.2 is not equipped with sufficient facility for a
critical element of Kanakappa to be hospitalized for a
period of 15 days, which creates a doubt in the mind of
the trial Court to disbelieve the evidence of PW.2 and
Ex.P.10. The certificate is issued by a private practitioner,
whose certificate is not sufficient to establish the mental
disability at the time of execution of the sale deed, nor it
is supported by any medical prescriptions. The Doctor's
certificate is not enough to declare plaintiff's father was
not capable of understanding at the time of execution of
the sale deed. The medical certificate cannot be a
conclusive proof if not supported by comprehensive
evidence including witness testimonies.
14. The certificate produced by the plaintiff at
Ex.P.10 was rightly disbelieved by the trial Court. The
evidence of PW.2 in support of the Ex.P.10 is not enough
to arrive at a conclusion and to accept the plea that the
father of the plaintiff was mentally ill and he was not in a
capacity to execute the sale deed and fraud has been
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played by the defendant. The plaintiff failed to establish
the plea of mental illness of the deceased Kanakappa,
which has been rightly assessed by the trial Court and
arrived at a conclusion that the plaintiff is not entitled for
declaration.
15. The First Appellate Court being the last fact
finding Court has appreciated the entire oral and
documentary evidence and held that the plaintiff has failed
to prove about any fraud committed on the father of the
plaintiff and that he was suffering from any mental
disorder.
16. The findings of facts recorded by the Courts
below, this Court is of the considered view that the same
does not warrant any interference under Section 100 CPC
and no substantial question of law arises for consideration.
Accordingly, this Court pass the following:
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ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgments of the Courts below stands
confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
PJ/ Ct-PA
