Karnataka High Court
Smt B P Vyshali vs Smt Fija Khanam on 16 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1786 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1786 OF 2024
BETWEEN:
1. SMT. B.P.VYSHALI
W/O SRI. CHANDRASHEKHAR
AGED ABOUT 46 YEARS
R/AT NEAR TEMPLE
KANCHIBAGILUK, OLD TOWN
BHADRAVATHI TLAUK-577 301.
...APPELLANT
(BY SRI. VENKATESHA T.S., ADVOCATE)
AND:
1. SMT. FIJA KHANAM
D/O JAMEER AHMEDKHAN
W/O MOHAMMED SHAHID PASHA
Digitally signed AGED ABOUT 40 YEARS
by DEVIKA M
RESIDING AT OLD TOWN
Location: HIGH BHADRAVATHI-577 301.
COURT OF
KARNATAKA
2. SRI. SUBBA RAO
S/O LATE SHANKAR RAO
AGED ABOUT 51 YEARS
RESIDING AT KALIDAS
NAGARA EXTENSION
SUDDRUDHANGAR
2ND CROSS, 1ST FLOOR
BHADRAVATHI-577 301.
...RESPONDENTS
(BY SRI. KARTHIK S. TAYUR, ADVOCATE FOR C/R1)
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RSA No. 1786 of 2024
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.10.2024
PASSED IN R.A.NO.86/2023 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, BHADRAVATHI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 05.04.2023 PASSED IN O.S.NO.452/2012 ON THE FILE
OF THE PRL. CIVIL JUDGE AND JMFC, BHADRAVATHI.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for consideration of I.A.Nos.2/2024
and 3/2024 and I have heard learned counsel for the appellants
and learned counsel for the caveator-respondent.
2. This appeal is filed against the concurrent finding of
the Trial Court and the First Appellate Court. The suit is filed by
the plaintiff seeking the relief of declaration and possession and
the very claim of the plaintiff is that she is the absolute owner
of the property by virtue of the sale deed dated 08.10.2003
executed by the defendant No.1. But the defendant No.1
appeared and took the defence that sale deed dated
08.10.2003 executed was a nominal deed of sale and not acted
upon the same. The plaintiff took the contention that sale deed
executed by defendant No.1 in favour of defendant No.2 is null
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and void and not binding on her and sought for declaration and
possession and additional issue was also raised, in view of
defence taken by the defendant No.2, who is the appellant
herein, wherein he took the contention that sale deed of the
plaintiff is illegal, not acted upon and not binding on him and
suit is also barred by limitation.
3. The Trial Court also considered the evidence led
before the Trial Court in proving the case of the plaintiff i.e.,
P.Ws.1 and 2 and also Exs.P1 to P21 and evidence on behalf of
the defendants as D.W.1 and documents of Exs.D1 to D16. The
Trial Court having considered the material on record comes to
the conclusion that already there was a sale deed in favour of
the plaintiff in the year 2003 itself and though defendant No.1
took the defence that it was not acted upon and defendant
No.1 did not contest the matter, but the subsequent purchaser,
who has been arrayed as defendant No.2 led the evidence. The
Trial Court taking note of the material available on record,
comes to the conclusion that already there was a sale deed in
favour of the plaintiff and question of executing the sale deed in
favour of defendant No.2 by defendant No.1 does not arise,
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since defendant No.1 was not having any title to execute the
sale deed in favour of defendant No.2. Hence, answered the
issues in favour of the plaintiff and additional issue No.2 was
answered as 'negative', since the very appellant took the very
defence that it was not acted upon.
4. Being aggrieved by the said judgment and decree of
the Trial Court granting the relief in favour of the plaintiff, an
appeal is filed before the First Appellate Court in
R.A.No.86/2023. The First Appellate Court also having
considered the grounds urged in the appeal memo and also
both oral and documentary evidence placed on record,
formulated the point whether the judgment and decree of the
Trial Court requires interference of this Court and suffers from
its legality. On re-appreciation of both oral and documentary
evidence placed on record, the First Appellate Court comes to
the conclusion that when already there was a sale deed in
favaour of the plaintiff, also extracted the evidence available on
record and even extracted Sections 91 and 92 of the Evidence
Act and comes to the conclusion that oral evidence cannot be
relied upon when there is a documentary evidence available on
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record and documentary evidence excludes oral evidence of
defendant No.2. The First Appellate Court also taken note of
contention of the appellant herein that under Ex.P1, there is no
passing of consideration and delivery of possession and the
First Appellate Court considered that the same is against the
recitals in Ex.P1 which is a registered document and has
presumptive value as to the correctness of the contents of the
same. Hence, the very contention of defendant No.2 cannot be
accepted. The First Appellate Court also taken note of the fact
that even though when the defendant No.2 comes to know
about the sale made in favour of the plaintiff, the same is not
questioned and also taken note of the contention that there
was a compromise in O.S.No.27/2011 filed by the sisters of
defendant No.1, wherein sisters of defendant No.1 have got
ratified the sale of suit schedule property by defendant No.1 in
favour of defendant No.2. This aspect was also taken note of
and also taken note of the fact that question of ratifying the
same does not arise, when already there was a sale in favour of
the plaintiff, that too, by executing the document in the year
2003 itself.
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5. Having taken note of the said fact into consideration
and also considering the admission on the part of P.W.1,
granted the relief of declaration and possession, since there
was already a sale deed and question of flow of title in favour
of the defendant No.2 in the subsequent sale deed does not
arise and confirmed the judgment of the Trial Court. Being
aggrieved by the judgment of both the Courts and there is a
concurrent finding, the Trial Court also taken note of material
on record. Learned counsel for the appellant would vehemently
contend that both the Courts have committed an error in
decreeing the suit and confirming the same believing the sale
deed of 08.02.2013 and did not consider the subsequent sale
deed of the year 2010. Learned counsel for the appellant would
vehemently contend that earlier sale deed dated 08.10.2003 is
against the public policy and both the Courts ought not to have
granted the decree. The very reasoning given by both the
Courts that second transfer in favour of defendant No.2 is not
sustainable. Hence, this Court has to admit the appeal and
frame substantial question of law.
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6. Per contra, learned counsel for the caveator-
respondent Nos.1 and 2 in his argument would vehemently
contend that both the Courts have taken note of earlier sale
deed of the year 2003 and question of executing one more sale
deed by defendant No.1 when he himself had the knowledge of
sale of property in favour of plaintiff and question of once again
executing the sale deed in favour of the defendant No.2 does
not arise. The Trial Court also taken note of other material
available on record and not committed any error and question
of flowing of title in favour of defendant No.2 does not arise, in
view of already there was a sale deed of the year 2003. When
such being the case, question of framing any substantial
question of law does not arise.
7. Having heard learned counsel for the appellant and
learned counsel for caveator-respondent Nos.1 and 2 and
having considered the material on record, it is not in dispute
that there was a sale deed in the year 2003 in favour of the
plaintiff and only contention was taken by the defendant No.1
that sale deed was not acted upon, but not placed any material
before the Court. The contention of defendant No.2 is also that
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said sale deed was not acted upon and the said sale deed was
illegal and in order to come to such a conclusion, no material is
placed on record and also earlier sale deed in favour of plaintiff
was not challenged, except contending that sale deed was not
legal. When such contention was taken and once the sale deed
was in existence and Trial Court taken note of material
available on record, question of selling the very same property
which was already sold in favour of the plaintiff in 2003 does
not arise. Even the First Appellate Court also taken note of
though such defence was taken, discussed in detail invoking
Sections 91 and 92 of the Evidence Act and comes to the
conclusion that documentary evidence excludes the oral
evidence of defendant No.2. When documentary evidence is
clear that sale was made in favour of the plaintiff in the year
2003 itself, the question of executing one more sale deed in
favour of defendant No.2 by the very same vendor i.e.,
defendant No.1 does not arise and title will not flow in favour of
the defendant No.2. Hence, remedy to defendant No.2 is other
than seeking the relief of declaration and possession and in the
absence of questioning the earlier sale deed executed in favour
of plaintiff No.3, question of granting any relief as contended by
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the defendants does not arise and only defence taken that
earlier sale deed is not acted upon and the same is illegal and
the sale consideration was also mentioned in the document and
recitals of the document of sale deed executed in favour of the
plaintiff was also taken note of in terms of Ex.P1 and also even
considered the document of Ex.P2 registered in favour of
defendant No.2 and having considered the material on record,
the very contention of defendant No.2, who is the appellant
herein that both the Courts have committed an error cannot be
accepted.
8. Having considered the question of fact and question
of law was considered by both the Courts with regard to the
registration of sale deed in favour of the plaintiff vide sale deed
dated 08.10.2003, subsequent sale deed dated 27.10.2010
does not convey any title in favour of the defendant No.2.
When such being the case, no substantial question of law arises
for consideration to be framed by this Court. The other
contention that the appellant is a bonafide purchaser also
cannot be accepted and the very sale deed was already in
existence in favour of the plaintiff, that too of the sale deed of
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the year 2003 and his subsequent sale deed is of the year 2010
and the contention of bonafide purchaser also cannot be
accepted, since already there was a sale deed and he ought to
have verified the documents before purchasing the property
subsequently and that has not been done. When such being the
case, the contention that he is a bondafide purchaser also
cannot be accepted.
9. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
