Karnataka High Court
B.Raju @ Rajappa S/O Late Sanna Bhemayya vs Ivalla H.Namdev S/O Late I.Huligenna on 13 August, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
RSA No.7035/2011
Between:
B.Raju @ Rajappa S/o Late Sanna Bhemayya
Age: 33 years, Occ: Agriculture & Pastor
R/o Tuntapur Village, Tq. Raichur
Now residing at St. Mary's
Convent School, Station Road
Raichur
... Appellant
(By Smt.Hema L.Kulkarni, Advocate)
And:
Ivalla H.Namdev S/o Late I.Huligenna
Age: 58 years, Occ: Retd.Govt.Servant & Pastor
R/o H.No.169, 17th Ward
Ashirwad Mansion
IInd Cross, Sathyanarayanpet
Bellary, Dist. Bellary
... Respondent
(By Sri Sachin M. Mahajan, Advocate)
2
This Regular Second Appeal is filed under Section
100 of the CPC praying to allow the appeal and set aside
the judgment and decree dated 23.11.2010 passed in the
RA No.116/2009 by the Addl.Dist. Judge Raichur
confirming the judgment and decree dated on *24.10.2009
passed in O.S.No.328/2005 by dated Civil Judge (Sr.Dn.)
Raichur with costs.
This appeal coming on for Admission this day, the
Court delivered the following:-
JUDGMENT
This regular second appeal is filed by the plaintiff challenging the Judgment and Decree dated 24.10.2009 passed by the Addl. Civil Judge, (Sr.Dn.) at Raichur in O.S.No.328/2005 and concurring Judgment and Decree dated 23.11.2010 passed by the Addl. District Judge at Raichur in RA No.116/2009. Both the Courts below dismissed the suit filed by the plaintiff for declaration and injunction and cancellation of the sale deed dated 24.07.2003 executed by the plaintiff in favour of the defendant in respect of the suit schedule property. *Corrected vide chamber order dated 01.09.2020. 3
2. For the sake of convenience and easy understanding the parties shall henceforth be referred to as they were arrayed before the trial Court. This appeal is filed by the unsuccessful plaintiff.
3. The plaint filed in O.S.No.328/2005 would disclose that the plaintiff and defendant were pastors in two different Church. The plaintiff was the owner of the suit property. The plaintiff claimed that in the year 2003 the defendant disclosed his desire to construct a Church and an ashram to rehabilitate aged people at Raichur district and that he was in search of philanthropists who can donate land for the intended Church, Bible study house, hostel, old age home, hospital and ashram. The plaintiff alleged that the defendant disclosed that the Almighty had narrated this in the dream and had ordered the defendant to accomplish it. The plaintiff claimed that he was overwhelmed by the revelation. Further the plaintiff contended that defendant and one Ravindra Jaldar approached the plaintiff and reminded the plaintiff that he 4 had benevolently gifted some agricultural land to St. Anns Education Society and persuaded and induced the plaintiff to likewise donate the schedule property for the intended purpose of the defendant. The plaintiff claimed that the defendant had a guile intention when he made such a representation and that he knew very well that the document that the defendant would obtain from the plaintiff would not be a gift deed but a sale deed. The plaintiff further alleged that on 24.03.2007, the defendant approached the plaintiff with a document and requested the plaintiff to go over the office of the Sub Registrar for execution of the said document and represented that the document would be a gift deed. The plaintiff claimed that the defendant concealed the true nature of the document and got the same executed by playing fraud and that the plaintiff later found that the document was not a gift deed but a sale deed. This, the plaintiff claimed, came to his knowledge when a notice was issued by the Tahsildar for transfer of the revenue records in the name of the defendant. Further the plaintiff claimed that the witness to 5 the document was Ravindra Jaldar who was none other than the brother-in-law of the defendant who too had conspired in bringing about the fraudulent document. The plaintiff claimed that he had not received any consideration and therefore the said document is not a sale as defined under the Transfer of Property Act. Thus, the plaintiff sought for declaration of his title and consequent cancellation of the sale deed dated 24.07.2003 and rectify the revenue entries by annulling the order passed by the Assistant Commissioner.
4. The defendant filed his written statement contending that the plaintiff had voluntarily executed a deed of absolute sale on 24.07.2003 in favour of the defendant for valid consideration and that there was no misrepresentation, force or coercion. The defendant claimed that after the execution of the sale deed, the value of the properties in and around the suit properties grew tremendously and therefore, the plaintiff has filed a mischievous suit with an ulterior motive. Based on the 6 rival contentions, the trial Court framed the following issues:
1. Whether the plaintiff proves that he is the owner and possessor of the suit property?
2. Whether the plaintiff proves that the sale deed dated 24.07.2003 bearing document no.1471/2003-04 before the Sub-Registrar Office, Raichur is tainted?
3. Whether the plaintiff proves the interference of the defendant?
4. What order or decree?
5. Before the trial Court, the plaintiff was examined as PW.1 and a witness PW.2, who deposed that the plaintiff had approached him to donate the suit property in favour of Veershaiva Samaj which did not materialize. The plaintiff marked Exs.P1 to P8. The attesting witness to the document in question was examined as D1, who also held a power of attorney of the defendant and Dw.2 was a witness and they marked Exs.
D1 to D5.
7
6. The trial Court after considering the oral and documentary evidence, dismissed the suit.
7. The plaintiff challenged the aforesaid judgment and decree of the trial Court before the first appellate Court in R.A. No.116/2009. The first appellate Court secured the records of the trial Court, heard the parties, framed points for consideration and after an elaborate consideration of oral and documentary evidence, dismissed the appeal and confirmed the judgment and decree of the trial Court.
8. The plaintiff therefore has filed the present regular second appeal. This Court secured the records from the courts below.
9. Heard the counsel for the plaintiff/appellant and the defendant/respondent.
10. The plaintiff reiterated the averment of the plaint in his chief examination. In his cross-examination on 27.02.2008, the plaintiff disclosed that he studied up to 8 7th standard and was not knowing the English language, he deposed that he did not lodge any complaint before the police alleging fraud by the defendant. Further examination of the plaintiff was done on 19.11.2008 by which he marked Ex.P8 which was a letter allegedly written by the defendant and sent through his brother-in-law (DW.1) wherein the defendant had disclosed his vision to start a Bible College/School and an orphanage. However, the plaintiff admitted that he had not stated about this letter in the plaint. He admitted that there was no connection between Ex.P8 and the sale deed dated 24.07.2003 executed by the plaintiff. He also admitted that there was no date mentioned in Ex.P8. Curiously, plaintiff claimed that he had prior intention to gift the suit properties to one Veerendra Patil (PW.2) who was the President of Veershaiva Samaj, Raichur but that the same could not materialize. The cross-examination of PW.2 would clearly indicate that he was a planted witness and therefore his evidence was not creditworthy. The only documentary evidence that the plaintiff had placed is 9 Ex.P8. This document is drawn on a letter head of "Bellary Good Friday and Easter Festivals, 2001" of which the defendant was a Joint Secretary. This letter does not bear any date it also does not indicate as to how this letter reached the plaintiff as it was not addressed to the plaintiff. This letter only makes a mention that one I.H.Namdev had a vision to start a Bible college/school and an orphanage. In this letter, there is no mention of transaction between the plaintiff and the defendant. Assuming that this letter was available with the plaintiff and if in his contemplation this letter was the only document available to prove that the transaction in question was a gift deed and not a sale deed, he must have mentioned the same in the plaint and if it was not available with him he must have mentioned that it was lost. Strangely on the overleaf of this letter the addresses of the defendant is found.
11. DW.1 was the power of attorney holder of the defendant admitted that the signature of the defendant 10 was found on Ex.P.8. The DW.2 claimed that he was the person who arranged for preparation of the sale deed and also its execution. He deposed that the plaintiff had approached him for protection. He also deposed that the defendant had constructed a Church at Bellary where the plaintiff was preaching. DW.1 stated that he had paid a sum of Rs.2,55,000/- in cash to the plaintiff. DW.2 was a witness to the sale deed dated 24.07.2003 who confirmed that he had signed a document which was a sale deed but he deposed that he was not aware as to who had executed the sale deed in whose favour and at what cost.
12. When the plaintiff approached the Court claiming that he was defrauded by the defendant on a representation made by him that the document in question was a sale deed and not a gift deed, the onus is heavy on the plaintiff in view of Section 91 of the Indian Evidence Act. If the plaintiff was a pastor, wedded to the Christian faith, it is strange that the plaintiff had offered to gift the suit property to the Veershaiva Samaj. The only document 11 on which the plaintiff highly relied is Ex.P.8 which at any rate, cannot dilute a registered instrument. Except the above, the plaintiff could not place any material to cancel a registered document. The plaintiff though was successful in establishing such circumstances which indicated a plausible control of the plaintiff by the defendant but yet that itself is not sufficient to cancel the sale deed executed by him in favour of the defendant. A perusal of the sale deed in question (Ex.D2) is a document drawn in English and the strokes of the signature appearing on Ex.D2 can definitely be not by a person who is an illiterate and the signature was not in Kannada. Therefore, it cannot be accepted that the plaintiff had no knowledge of contents of Ex.D2. The Courts below have rightly considered the evidence on record and have aptly dismissed the suit and the first appeal. As no substantial question of law arises for consideration, this appeal is dismissed.
Sd/-
JUDGE VNR