Sri K Ravi vs Smt Papamma
2025 Latest Caselaw 5932 Kant

Karnataka High Court

Sri K Ravi vs Smt Papamma on 27 May, 2025

                          -1-



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 27TH DAY OF MAY, 2025

                        BEFORE

          THE HON'BLE MR. JUSTICE M.I.ARUN

 REGULAR FIRST APPEAL NO.377 OF 2018 (DEC/INJ)

BETWEEN:

SRI K. RAVI
S/O LATE KUPPUSWAMY
AGED ABOUT 53 YEARS
R/AT NO.38
DR. SHANTHAKUMAR LAYOUT
2ND CROSS, NAGANNAPALYA
M.S. NAGAR POST
BANGALORE - 560 033.

                                           ... APPELLANT

(BY SRI S. RAJASHEKAR, ADVOCATE)

AND:

1.     SMT. PAPAMMA
       W/O. SRI GOPALAKRISHNA
       AGED ABOUT 58 YEARS
       R/AT NO.38, 1ST STREET
       2ND CROSS, DR. SHANTHAKUMAR LAYOUT
       2ND CROSS, NAGANNAPALYA
       M.S. NAGAR POST
       BANGALORE-560 033.


2.     SMT. GAYATHRI W/O.
       (SINCE DECEASED REP. BY HER LRS.)

2(a). KUM. AISWARYA
      D/O. LATE SHASHIKUMAR
                           -2-



       AGED ABOUT 12 YEARS
       MINOR REPRESENTED BY
       HER NATURAL GUARDIAN BY HER
       GRAND MOTHER SMT. PAPAMMA
       I.E., RESPONDENT NO.1.


3.     SRI V. SELVAM
       S/O. SRI VENUGOPALA REDDY
       AGED ABOUT 60 YEARS
       R/AT NO.22, "CRESCENT", C.
       MUNISWAMAPPA ROAD
       RAMA MURTHY PALYA
       BANGALORE - 560 033.
                                     ... RESPONDENTS

(BY SRI SHRIDHAR D. NAIK, ADVOCATE FOR R.1;
SRI SURESH P., ADVOCATE FOR R.2;
R.3: SERVED)

       THIS REGULAR FIRST APPEAL IS    FILED UNDER
SECTION 96 OF CPC., PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 02.01.2018, PASSED IN
O.S. NO.1620/2005, ON THE FILE OF III ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-25),
ETC.

       THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 29.04.2025 AND
COMING ON FOR PRONOUNCEMENT THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                             -3-




CORAM:     HON'BLE MR JUSTICE M.I.ARUN

                     CAV JUDGMENT

Aggrieved by the judgment and decree dated

02.01.2018 passed by III Additional City Civil and

Sessions Judge, Bengaluru in O.S.No.1620/2005,

defendant no.1 therein has preferred this appeal.

2. For the sake of convenience, the parties are

referred to as per their status before the trial court.

3. Plaintiff no.1 is the mother and plaintiff no.2 was

her son. He has died subsequent to filing of the

original suit and his wife was impleaded as plaintiff

no.2(a). It is further submitted that at the time of

filing of the present appeal, plaintiff no.2(a) has been

impleaded as respondent no.2 herein. She also died

during the course of the proceedings and her daughter

has been impleaded as respondent no.2(a) in the

present proceedings.

4. Plaintiffs were said to be the owners of the suit

schedule property. The same has been sold in favour

of defendant No.1 by virtue of a registered sale deed

dated 27.02.2002 for a valuable sale consideration of

Rs.1,80,000/-. It is the case of the plaintiffs that they

never intended to sell the suit schedule property. It is

submitted that they required money for their personal

needs and defendant No.2 who was a private financier

agreed to arrange for the same and it was agreed that

a sum of Rs.1,80,000/- would be paid to the plaintiffs

upon they executing a usufructuary mortgage deed in

respect of the suit schedule property and believing his

words, they had gone to the Sub-Registar's office and

by playing fraud on them, the defendants have got

executed a sale deed dated 27.02.2002 and the

plaintiffs were unaware as to execution of the same as

they don't know English, the language in which the sale

deed is drafted. It is further contended that defendant

no.2 has signed the document as a witness. It is also

submitted that the plaintiffs have received only a sum

of Rs.1,40,000/- by way of cash and the remaining

Rs.40,000/- was in fact taken by defendant No.2. On

the said grounds, the plaintiffs filed O.S.No.1620/2005

with the following prayers:

"Wherefore, the plaintiffs pray that this Hon'ble court be pleased to pass a judgment and decree declaring:

(a) For declaration that the sale deed dated 27/02/2002 registered as Document No.14668/2001-02 in Book-I, Volume No.2363, at pages 56-58 in the office of the Sub-

Registrar, Krishnarajapuram, Bengaluru executed by the plaintiffs in favour of the defendant is voidable and the defendant did not acquire any interest under the sale deed;

(b) For cancellation of the sale deed dated 27.02.2002 registered as Document No.14668/2001-02 in Book-I, Volume No.2363, at pages 56-58 in the office of the Sub- Registrar, Krishnarajapuram, Bengaluru to the defendant to deliver possession of the portion of the schedule property to the plaintiffs and plaintiffs are ready to deposit Rs.1,80,000/-.

(bb) To direct the defendant no.1 and all other persons claiming under him to quit, vacate and deliver the vacant possession of the portions of the Schedule A premises in which they are in the unauthorized possession.

(c) Restraining the defendant from interfering, meddling, trespassing or dispossession the plaintiffs from the schedule property by an order of permanent injunction;

(d) Any other relief or reliefs as this Hon'ble court deems fit to grant in the circumstances of the case, in the interest of justice and equity."

5. Upon service of notice, defendant Nos.1 and 2

entered appearance before the trial court. However,

defendant No.1 alone has contested the suit and

defendant No.2 has not taken any interest in the same.

Defendant No.1 has denied all the allegations made by

the plaintiffs and has contended that what has been

executed in his favour is a sale deed. It is submitted

that the same has been voluntarily executed by the

plaintiffs and there was no fraud or misrepresentation

in execution of the same. It is further submitted that

the suit schedule property consists of four portions and

though the possession of the property was handed over

to defendant No.1 upon execution of the sale deed, the

plaintiffs requested some time to vacate one portion of

the suit schedule property and took permission of

defendant No.1 to stay in the property for some time.

As they did not vacate even after considerable time,

defendant No.1 took steps to have them vacated,

which has resulted in the plaintiffs filing a false case

against defendant No.1. It is further submitted that

the khatha has been changed in the name of defendant

No.1 and he has been paying the necessary taxes after

purchase of the property. On the said grounds, it is

prayed that the suit filed by the plaintiffs be dismissed.

6. Based on the pleadings, the trial court has framed

the following issues.

"ISSUES

1. Whether plaintiffs prove that they are the owners of the suit schedule property as alleged?

2. Whether plaintiffs prove that the defendant having approached them, they have executed mortgage deed in favour of the defendant in respect of plaint A schedule property, as alleged in para no.4 of the plaint?

3. Whether plaintiffs prove that the defendant played a fraud against them and misrepresenting and fraud created the mod into sale deed, as alleged?

4. Whether plaintiffs prove that the defendant is in possession of suit schedule A property, as a mortgagee only?

5. Whether defendant proves that he has purchased suit schedule property on 27.2.2002 for valuable consideration, as alleged in para No. 7 of W.S.?

6. Whether suit of the plaintiffs is properly valued and court fees paid is correct?

7. Whether suit of the plaintiffs is within time?

8. Whether plaintiffs are entitled to the reliefs sought for?

9. What order or decree?"

7. In order to prove the case, plaintiff No.1 got

examined herself as PW.1 and two other witnesses as

PWs.2 and 3 and got marked 138 documents as Exs.P1

to P138. Defendant No.1 got examined himself as

DW.1 and got marked 39 documents as Exs.D1 to D39.

8. Based on the pleadings and the evidence let in,

the trial court has answered the aforementioned issues

as follows:

"Issue No.1 - In the affirmative Issue No.2 - In the affirmative Issue No.3 - In the affirmative

Issue No.4 - In the affirmative Issue No.5 - In the negative Issue No.6 - In the negative Issue No.7 - In the affirmative Issue No.8 - In the affirmative Issue No.9 - As per final order for the following"

The trial court has passed the following:

"ORDER

Suit is decreed with costs.

It is declared that the impugned sale deed dt.27.2.2002 is null and void and not binding on the plaintiffs. The defendant no.1 is directed to quit, vacate and hand over the vacant possession of the schedule A property within three months from the date of this judgement.

The defendants are permanently restrained from interfering in the plaintiffs' lawful possession and enjoyment of the remaining portion of the schedule property excluding the A schedule property.

The plaintiffs shall pay the deficit court fee of Rs.20,655/- and office to prepare the decree only on payment of said fee."

Aggrieved by the same, the present appeal is filed by

defendant No.1.

9. During the pendency of the appeal, an impleading

applicant by way of I.A.No.1/2025 has sought to

- 10 -

implead himself in the proceedings to participate in the

proceedings and assist the Court on the ground that

plaintiff No.1 has sought to alienate the suit schedule

property in his favour. As the appeal is being allowed

in favour of defendant No.1 and also the impleading

applicant would be a subsequent purchaser from

plaintiff No.1, and hence, he would not acquire any

right over the suit schedule property, the application-

I.A.No.1/2025 is hereby dismissed.

10. The trial court based on the evidence let in has

believed the version of the plaintiffs that a fraud was

played against them in executing the sale deed and

what they intended to do so was only to execute a

mortgage deed for the amount received and on the

said ground has decreed the suit.

11. The question that arises for consideration in the

instant appeal is as under:

- 11 -

Whether the trial court has properly

appreciated the evidence to come to the

conclusion that it has arrived at?

12. The burden of proof lies on the plaintiffs to

establish the facts alleged by them. PW.1-plaintiff No.1

has reiterated her averments made in the plaint in her

examination-in-chief. Ex.P1 is an agreement of sale

executed by the vendor of plaintiff No.1 in her favour

on 25.07.1996. The plaintiffs have sought to rely on

the said document to show that the consideration for

the site in the year 1996 was Rs.3,80,000/- which was

much more than Rs.1,80,000/- mentioned in the sale

deed said to have been executed in favour of defendant

No.1 on 27.02.2002 for the same property.

13. Defendant No.1 has countered the same by

stating that in order to save the stamp duty the

consideration amount has been shown at lowest in the

sale deed. In his evidence, he has stated that the

- 12 -

actual amount of Rs.5,70,000/- for execution of the

sale deed was paid to the plaintiffs.

14. PW.1 in her cross examination has admitted that

the property consists of four portions and defendant

No.1 is in possession of two portions and one Jayaraj is

in possession in respect of one portion and that she is

in possession of one portion. She has further stated

that she has not paid the property taxes since 2001,

though she has sought to justify the same by stating

that she is a poor person. She has also admitted that

the said Jayaraj is paying rents to defendant No.1 for

the portion of the property which is under his

occupation and that she has not taken any action

regarding payment of rents. She has also admitted

that defendant No.1 got issued a legal notice dated

03.02.2005 to the plaintiffs calling upon them to vacate

the portion of the property which is in their possession.

She has stated that she is not aware as to whether she

has replied to the said notice or not. Admittedly, the

- 13 -

suit has been filed subsequent to the said notice. She

has also stated that it may be true that khatha and

corporation records in respect of the property stand in

the name of defendant No.1. She has further stated

that in the year 2005 she came to know about

execution of the sale deed instead of the mortgage

deed and immediately she has filed the suit. She has

also stated that she is not paying electricity and water

bills in respect of three portions of the property and she

is paying the same only in respect of one portion which

is in her possession.

15. PW.2 is said to be a Secretary of one Mookambika

Mahila Sangha. She has deposed on behalf of the

plaintiffs and stated that it was agreed between the

plaintiffs and defendant No.1 that defendant No.1 shall

pay the plaintiffs a sum of Rs.1,80,000/- and a

mortgage deed shall be executed by the plaintiffs. She

has stated that she has not been a witness to execution

of the document and she does not know whether the

- 14 -

same was explained to the plaintiffs or not. In other

words, she does not know whether the contents of the

document (sale deed) was explained to the plaintiffs or

not.

16. PW.3 has also stated that she knows the plaintiffs

and the defendants and that it was agreed between the

plaintiffs and the defendants to pay Rs.1,80,000/- to

the plaintiffs by the defendants for which the plaintiffs

would execute a mortgage deed. But, he has stated

that no document was executed in his presence.

17. All other documents produced in the evidence by

the plaintiffs does not reflect anything upon the

transaction between the plaintiffs and defendant No.1.

18. Defendant No.1 on the other hand has reiterated

his averments made in the written statement in his

examination-in-chief. It is his specific contention that

the sale deed has been executed voluntarily by the

plaintiffs in his favour and there has been no

- 15 -

misrepresentation or fraud. His evidence has not been

impeached in the cross examination.

19. The admitted facts are that the registered sale

deed at Ex.P2, the original of which is marked as

Ex.D2, has been executed by the plaintiffs in favour of

defendant No.1 for a valuable consideration of

Rs.1,80,000/-, wherein the suit schedule property has

been conveyed in favour of defendant no.1. It is not

the case of the plaintiffs that the amount of

Rs.1,80,000/- is below the valuation of the Sub-

Registrar. The execution of the sale deed is not in

dispute.

20. The contention of the plaintiffs is that they were

made to execute the sale deed by playing fraud on

them making them to believe that they were executing

a mortgage deed. The burden of proving the same is on

the plaintiffs. Except making an averment in the plaint

as well as in the evidence let in, no other evidence is

- 16 -

adduced either documentary or circumstantial to show

that any fraud has been played on them. The sole

contention is that plaintiff No.1 did not understand

English and the sale deed has been executed in

English. Perusal of Ex.D2 shows the sale deed

executed by both plaintiff No.1 (mother) and plaintiff

No.2 (son) where plaintiff No.1 has signed in Kannada

and plantiff No.2 has signed the same in English. The

signature of plaintiff No.2 is not denied by plaintiff

No.1. The plaintiffs have not examined any of the

witnesses to the sale deed. It is also seen that the sale

deed is executed on 27.02.2002. Thereafter, two

portions of the suit schedule property is in the

possession of defendant No.1 and one portion is let out

to one Jayaraj who pays rent to defendant No.1 and

only one portion is with the plaintiffs. This is admitted

by them in their evidence. The case of defendant No.1

is that the plaintiffs requested to stay in a portion of

the property for some time before they found an

- 17 -

alternative accommodation and he permitted them to

do so, which is very much believable. It is also seen

that the plaintiff has subsequently executed several

documents in English and the plaint is also in English.

Further, the suit is filed only after defendant No.1

initiated action against the plaintiffs to have them

vacated from the suit schedule property. Under the

said circumstances, one has to conclude that the

execution of the sale deed in favour of defendant No.1

leads to a presumption that the same is valid in law

and the plaintiffs having failed to prove otherwise and

for that reason, the suit is liable to be dismissed.

21. Unfortunately, the trial court, though has framed

the issues properly, has in its judgment based on the

premise that the defendants have failed to prove their

case, has decreed the suit. This is erroneous. The

plaintiffs having failed to prove their case, the suit

ought to have been dismissed.

- 18 -

22. Hence, the following:

ORDER

(i) The appeal is allowed;

(ii) The judgment and decree dated 02.01.2018

passed by III Additional City Civil and Sessions

Judge, Bengaluru in O.S.No.1620/2005 is hereby

set aside;

(iii) O.S.No.1620/2005 on the file of III

Additional City Civil and Sessions Judge,

Bengaluru is dismissed;

(iv) Pending applications, if any, stand disposed

of.

SD/-

(M.I.ARUN) JUDGE

hkh.