Karnataka High Court
Puttaswamygowda vs Kullegowda on 24 November, 2023
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NC: 2023:KHC:42552
RSA No. 1186 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1186 OF 2007
(DEC/INJ)
BETWEEN:
PUTTASWAMYGOWDA
S/O BOREGOWDA
AGED ABOUT 45 YEARS
R/OF BIDARAKATTE VILLAGE
BASARALU HOBLI
TALUK AND DISTRICT MANDYA - 571 401
...APPELLANT
(BY SRI. PRAVEEN KUMAR RAIKOTE, ADVOCATE)
AND:
KULLEGOWDA
Digitally signed SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
by R DEEPA
Location: High JAVAREGOWDA
Court of S/O LATE KULLEGOWDA
Karnataka SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1. JAYAMMA
W/O LATE JAVAREGOWDA,
SINCE DECEASED BY HER LR'S
2. HOBALEGOWDA
S/O LATE JAVAREGOWDA
MAJOR
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RSA No. 1186 of 2007
3. MAYANNA
S/O LATE JAVAREGOWDA
MAJOR
4. PUTEGOWDA
S/O LATE JAVAREGOWDA
5. DODDATHYAMMA
W/O PUTTASWAMYGOWDA
D/O LATE JAVAREGOWDA
MAJOR
R/AT BIDAAKATE VILLAGE
BASARAL HOBLI
MANDYA TALUK
6. PREMA
W/O KRISHNEGOWDA
D/O LATE JAVAREGOWDA
MAJOR
R/AT PANAKANAHALLI VILLAGE
KASABA HOBLI
MANDYA TALUK
7. MAYANNA
S/O LATE KULLEGOWDA
MAJOR
8. SIPPEGOWDA
S/O LATE KULLEGOWDA
MAJOR
9. CHANNAIAH
S/O LATE KULLEGOWDA
MAJOR
10. SRIANTHAIAH
S/O LATE KULLEGOWDA
MAJOR
11. KARIEGOWDA
SINCE DECEASED BY HIS LR'S
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RSA No. 1186 of 2007
11(1). RAVI
S/O THIMMEGOUDA
AGED ABOUT 25 YEARS
11(2). SRIDHAR
S/O THIMMEGOUDA
AGED ABOUT 22 YEARS
11(3). RAJASEKHAR
S/O THIMMEGOUDA
AGED ABOUT 20 YEARS
11(4). KAMALAMMA
D/O THIMMEGOUDA
AGED ABOUT 18 YEARS
SINCE DECEASED
ALL OF THEM ARE GRAND CHILDREN OF
DECEASED RESPONDENT No.11
AS HIS SON TIMMEGOUDA HAS PREDECEASED
RESPONDENT No.11
ALL ARE R/O HANCHAHALLI VILLAGE
KAREGOUDA HOBLI
MANDYA TALUK AND DISTRICT.
12. SIPPEGOWDA
S/O KARIGOWDA
SINCE DECEASED BY LR'S
12(1). DOLLAMMA
D/O SIPPEGOWDA
AGED ABOUT 45 YEARS
12(2). JARARAM
S/O SIPPEGOWDA
AGED ABOUT 40 YEARS
BOTH ARE R/O BIDDARAKATTE VILLAGE
BASARAL HOBLI
MANDYA TALUK AND DISTRICT.
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RSA No. 1186 of 2007
SL. No. 1 TO 4 AND 7 TO 10 ARE RESIDENTS OF
TANNIGERE VILLAGE, BASARAL HOBLI
MANDYA TALUK.
...RESPONDENTS
[V/O DATED 05/11/12 R2-R5 ARE LR'S OF DECEASED R1
SRI. H.B. CHANDRASHEKAR, ADVOCATE FOR R2-R4
R5, R6, R8, R9, R10, R12(1) & R12(2) SERVED AND
UNREPRESENTED
V/O DATED 23.06.2016 R- H/S
SRI. SRIDHAR C.K., ADVOCATE FOR R11(1-3)
V/O DATED 16.01.2013 R11(1-3) ARE TREATED AS LR'S OF
DECEASED R11(4)]
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 10.2.07 PASSED IN R.A.NO
199/04 ON THE FILE OF THE ADDL. DISTRICT JUDGE,
MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED 15.10.04 PASSED IN OS
84/95 ON THE FILE OF THE ADDL. CIVIL JUDGE, (SR.DN),
MANDYA, DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 10.02.2007, passed in R.A.No.199/2004 by the Addl. District Judge, Mandya, confirming the judgment and decree dated 15.10.2004, passed in O.S.No.84/1995 by the Addl. Civil Judge (Sr.Dn.), Mandya.
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2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is defendant No.1; respondents 1 to 10 are the legal representatives of plaintiff; respondent No.11 is defendant No.2; respondent No.12 is defendant No.3.
3. The brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit for declaration of ownership in respect of the suit schedule property and permanent injunction restraining the defendants from interfering into the peaceful possession and enjoyment of the suit schedule property. It is contended that the suit schedule property is the ancestral property of the plaintiff. The plaintiff's father was the owner in possession of the suit schedule property. After his death, plaintiff became the owner in possession of the suit schedule property without any interference. Defendant No.1 has no right, title or interest over the suit schedule property and he was never in possession of the suit schedule property at any point of -6- NC: 2023:KHC:42552 RSA No. 1186 of 2007 time. It is submitted that when the father of the plaintiff was alive, a person by name Thimmaiah, S/o Gowdaiah and his wife Ningamma, D/o Boregowda were looking after the agricultural work in the family of the father of plaintiff.
In the year 1940, the aforesaid persons requested the father of the plaintiff to see that some lands were granted by the Government in their favour since they were not agriculturists and they had not acquired any agricultural lands. To show that they are agriculturists, nominally the father of the plaintiff executed registered gift deed dated 02.07.1940, in respect of the suit schedule property in the name of the aforesaid persons. The registered gift deed is nominal and it is not at all a gift deed and acted upon and possession was not delivered on the basis of the alleged gift deed. It is contended that the revenue records continued in the name of the plaintiff's father and after his demise, it was changed in the name of the plaintiff. The plaintiff was in possession and enjoyment of the suit schedule property. It is contended that defendant No.1 in collusion with defendants No.2 and 3 got changed the -7- NC: 2023:KHC:42552 RSA No. 1186 of 2007 revenue records of suit property into the name of one Thimmegowda, as if he is the son of Thimmaiah and Ningamma. It is further contended that the alleged Thimmegowda not at all existed, and defendant No.1 got the sale deed dated 01.12.1990, in respect of suit property as if it was executed by said Thimmegowda in favour of defendant No.1. Defendant No.1 on the alleged sale deed, tried to interfere into the peaceful possession and enjoyment of the suit schedule property and the defendant No.1 denied the title of the plaintiff. Hence cause of action arose for the plaintiff to file the suit for declaration of title and permanent injunction.
4. Defendant No.1 filed written statement denying the averments made in the plaint. It is contended that the father of the plaintiff had executed a registered gift deed in favour of Thimmaiah and his wife Ningamma and delivered possession of the suit schedule property and the said gift deed is registered on 02.07.1940. Since then, Thimmaiah and Ningamma became the owners in -8- NC: 2023:KHC:42552 RSA No. 1186 of 2007 possession and enjoyment of the suit schedule property and parties have acted upon the gift deed executed by the father of plaintiff in favour of Thimmaiah and Ningamma. After the death of Thimmaiah and Ningamma, their son Thimmegowda became the owner in possession and he executed a registered sale deed dated 01.12.1990, in favour of defendant No.1 and on the strength of the registered sale deed executed in favour of defendant No.1, khatha was changed in the name of defendant No.1. Plaintiff challenged the entries in the name of defendant No.1 before the Assistant Commissioner. The Assistant Commissioner dismissed the appeal filed by the plaintiff. The plaintiff aggrieved by the order passed by the Assistant Commissioner, preferred a revision before the Deputy Commissioner. The Deputy Commissioner dismissed the revision and confirmed the order passed by the Assistant Commissioner. The Assistant Commissioner directed the parties to approach the Civil Court. It is contended that the names of defendant No.1 is appearing in Col. No.9 and 12 of the RTC and it is contended that the -9- NC: 2023:KHC:42552 RSA No. 1186 of 2007 plaintiff has no right, title or interest and their right is also extinguished by law of limitation. Hence it is contended that defendant No.1 filed a suit for permanent injunction in O.S.No.698/1991. The said suit was decreed vide judgment dated 05.02.1992, and contended that defendant No.1 has established that he is in possession and enjoyment of the suit schedule property. It is contended that the suit filed by the plaintiff is not maintainable for non-joinder of necessary parties. On these grounds sought for dismissal of the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issues:
ISSUES
1) Whether the plaintiffs proves that they are the absolute owners of the suit schedule property and entitled for declaration?
2) Whether the plaintiffs proves that they are in lawful possession of suit schedule property on the date of suit?
3) Is the alleged interference true?
4) What order or decree?
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ADDITIONAL ISSUES
1) Whether plaintiff proves that gift deed dated 02.07.1940 was only nominal and not acted upon and it is void?
2) Whether first defendant proves that Thimmegowda is son of Thimma & Ningi?
3) Whether first defendant proves that Thimmegowda son of Thimma and Ningi has executed sale deed dated 01.12.1990?
6. Plaintiff died during the pendency of the suit. His legal representatives were brought on record. One of the legal representatives of plaintiff was examined as PW-1 and got examined 4 witnesses as PW-2 to PW-5 and got marked 7 documents as Exs.P1 to P7. Defendant No.1 examined himself as DW-1 and got examined one witnesses as DW-2 and got marked 26 documents as Exs.D1 to D26. The trial Court on assessment of the oral and documentary evidence of the parties, answered issue Nos.1 to 3 and additional issue No.1 in affirmative; additional issue Nos.2 and 3 in negative and consequently decreed the suit of the plaintiff with cost and declared that the plaintiff is the owner in possession of the suit schedule
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 property and restrained the defendants by way of permanent injunction from interfering into the peaceful possession and enjoyment of the legal representatives of the plaintiff over the suit schedule property.
7. Defendant No.1 aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.199/2004 before the Addl. District Judge, Mandya. The First Appellate Court, after hearing the parties, framed the following points for consideration:
1) Whether the trial Court has failed to appreciate the evidence on record in a proper perception?
2) Whether the appellants have made out the grounds to interfere in the impugned judgment and decree passed in O.S.No.84/94 dated 15.10.2004?
8. The First Appellate Court, on re-assessment of the oral and documentary evidence, answered point Nos.1 and 2 in negative and consequently dismissed the appeal filed by the defendant No.1 vide judgment dated 10.02.2007, confirming the judgment and decree passed
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 by the trial Court. The defendant No.1, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.
9. This court admitted the appeal on the following substantial question of law :
"Whether the gift deed dated 02.07.1940 could have been held as nominal and not acted upon, in the absence of any challenge to the same?"
10. Heard learned counsel for the parties.
11. Learned counsel for the defendant No.1 submits that father of the plaintiff executed a registered gift deed in favour of Thimmaiah and his wife Ningamma on 02.07.1940. Further, the father of the plaintiff delivered possession of the suit schedule property in favour of Thimmaiah and Ningamma. He submits that on the strength of the registered gift deed, Thimmaiah and Ningamma became the absolute owners of the suit schedule property. He submits that names of Thimmaiah and Ningamma are not appearing in the revenue records.
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 He further submits that though the registered gift deed was executed, but under Section 128 of the Karnataka Land Revenue Act, 1964, it is the duty of the registering authority to inform the revenue authorities about the rights acquired by Thimmaiah and Ningamma. Further, the plaintiff has not challenged the registered gift deed executed by his father in favour of Thimmaiah and Ningamma. He submits that the plaintiff has to establish his case independently, but cannot depend upon the weakness of the defendant's case. He submits that both the courts below considering the weakness of the defendants, have passed the impugned judgments. In support of his argument, he has relied on the judgment of the Hon'ble Apex Court in the case of T.K.MOHAMMED ABUBUCKER (D) THRO. LRS. & ORS. VS. P.S.M.AHAMED ABDUL KHADER & ORS., reported in AIR 2009 SC 2966 and on the judgment of this Court in the case of K. GOPALA REDDY & ORS. VS. SURYANARAYANA & ORS., reported in (2004) 1 KCCR 662. He further submits that the suit filed by the plaintiff is barred by limitation. The
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 trial Court has not framed the issue in regard to limitation. He submits that after the death of Thimmaiah and Ningamma, their son Thimmegowda has succeeded to the suit schedule property. He sold the said property in favour of defendant No.1 under registered sale deed dated 01.12.1990. Defendant No.1 became the absolute owner of the suit schedule property under the registered sale deed dated 01.12.1990, and the name of defendant No.1 was entered in the revenue records. Hence he submits that the courts below have committed an error in passing the impugned judgments. He further submits that the suit of the plaintiff for a mere declaration of title without challenging the registered gift deed dated 02.07.1940, is not maintainable. He submits that the parties have acted upon the registered gift deed executed by the father of plaintiff in favour of Thimmaiah and Ningamma. Hence on these grounds, he prays to allow the appeal.
12. Learned counsel for the plaintiff submits that though the father of the plaintiffs executed registered gift
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 deed in favour of Thimmaiah and Ningamma on 02.07.1940, the parties have not acted upon the same and even after the execution of registered gift deed, the name of plaintiff's father continued in the revenue records and further Thimmaiah and Ningamma had not acquired any right, title or interest over the suit schedule property. He further submits that defendant No.1 on the basis of the registered sale deed, submitted an application to the revenue authorities. The revenue authorities entered the name of defendant No.1 in the revenue records. But the plaintiff has challenged the entries in the name of defendant No.1. The revenue authorities directed the parties to approach the Civil Court. Accordingly, the plaintiff filed a suit for declaration. He submits that the plaintiff has proved that he is the absolute owner of the suit schedule property and the alleged registered gift deed executed by him in favour of Thimmaiah and Ningamma is a nominal one and it was not acted upon. Hence he submits that both the courts below were justified in
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 passing the impugned judgments and prays to dismiss the appeal.
13. Perused the records and considered the submissions of learned counsel for the parties.
14. SUBSTANTIAL QUESTION OF LAW : Plaintiff filed a suit for declaration of title and permanent injunction. During the pendency of the suit, plaintiff died. His legal representatives were brought on record. One of the legal representatives of the plaintiff was examined as PW-1. He has reiterated the plaint averments in his examination-in- chief and contended that the grandfather of PW-1 has executed a registered gift deed in favour of Thimmaiah and Ningamma and the parties have not acted upon the registered gift deed. After the death of Thimmaiah and Ningamma, the said property was transferred in the name of their son i.e., Thimmegowda. The said Thimmegowda had sold the suit schedule property in favour of defendant No.1 under registered sale deed. Further, the plaintiff is in possession of the suit schedule property and the
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 possession of the suit schedule property was never delivered under the registered gift deed and further the name of plaintiff was continued in the revenue records. The said Thimmegowda executed a registered sale deed in favour of defendant No.1. On the strength of the registered sale deed, defendant No.1 tried to interfere into the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The legal representatives of the plaintiff in support of their case, produced documents. Ex.P1 is the certified copy of the order passed by the Assistant Commissioner wherein the plaintiff aggrieved by the entries in the name of defendant No.1, preferred an appeal before the Assistant Commissioner. The Assistant Commissioner dismissed the appeal and directed the parties to approach the Civil Court. Exs.P2 to P5 are the RTC extracts in respect of the suit lands which stands in the name of Thimmegowda. Ex.P6 is the endorsement issued by the Mandal Panchayat. Ex.P7 is the endorsement.
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15. During the course of cross-examination, PW-1 admits that the father of the plaintiff had executed registered gift deed in favour of Thimmaiah and Ningamma. He admits that he has produced certified copy of the said registered gift deed. He admits that he has read over the contents of the registered gift deed. He denies that on the basis of the registered gift deed, the names of Thimmaiah and Ningamma was entered in the revenue records. He admits that Thimmaiah and Ningamma had a son by name Thimmegowda.
16. From the perusal of the cross-examination of PW-1, he has clearly admitted about the execution of registered gift deed by the father of plaintiff in favour of Thimmaiah and Ningamma and after the death of Thimmaiah and Ningamma, their son Thimmegowda had succeeded to the property and further in order to prove possession of the plaintiff over the suit schedule property, the plaintiff has examined 4 witnesses who have deposed
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 that the plaintiff is in possession of the suit schedule property.
17. In rebuttal, defendant No.1 was examined as DW-1 and he has reiterated the written statement averments in the examination-in-chief and produced documents. Ex.D1 is the copy of registered sale deed executed by Thimmegowda in favouar of defendant No.1; Ex.D2 is the certified copy of the registered gift deed executed by plaintiff's father in favour of Thimmaiah and Ningamma; Ex.D3 and D4 are the Record of Rights standing in the name of defendant No.1; Ex.D5 is the index of lands; Ex.D6 to D10 are the pahani extracts in respect of the suit land; Ex.D11 is the MR extract wherein on the basis of the registered sale deed, the property was mutated in the name of defendant No.1; Ex.D12 is the copy of mutation order; Ex.D13 is the order passed by the Assistant Commissioner; Ex.D14 to D21 are the RTC extracts; Ex.D22 is the kandayam receipt; Ex.D23 is the death certificate of Thimmegowda who died on
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 02.06.1993, i.e., vendor of defendant No.1; Ex.D24 and D25 are the copies of judgment and decree passed in O.S.No.698/1991 wherein defendant No.1 had filed a suit for permanent injunction against Ramegowda. The said suit was decreed holding that defendant No.1 herein is in peaceful possession and enjoyment of the suit schedule property and restrained the defendant therein from interfering into the peaceful possession and enjoyment of the defendant No.1 herein. Ex.D26 is the notice issued by the State Bank of India which discloses that the notice was issued to the defendant No.1 wherein defendant No.1 has availed loan from the State Bank of India.
18. From the perusal of the material available on record, it is clear that the father of the plaintiff has executed registered gift deed dated 02.07.1940, in favour of Thimmaiah and Ningamma. Though on the basis of the said registered gift deed, the names of Thimmaiah and Ningamma was not entered in the revenue records, but as per Section 128 of the Karnataka Land Revenue Act, if any
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 person acquires any right by way of succession, survivorship, gift, etc., the officer shall at once give a written acknowledgment of the receipt of the report to the person making it and further proviso to Sub-section (1) of Section 128 provides that a person acquiring any right by virtue of registered document shall be exempted from the obligation to report to the prescribed officer. In the instant case, admittedly, the father of the plaintiff executed registered gift deed in favour of Thimmaiah and Ningamma. It was the duty of the registering authority to intimate the prescribed officer about the registration of the document and admittedly in the instant case, registering authority had not intimated the acquisition of right by Thimmaiah and Ningamma to the prescribed officer. Further, the plaintiff has also not challenged the registered gift deed executed by father of plaintiff in favour of Thimmaiah and Ningamma. Further, it is the case of the plaintiff that the said gift deed is a nominal one and parties have not acted upon. Until and unless the plaintiff challenges the registered gift deed, plaintiff has no right to
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 claim ownership over the suit schedule property. Further, the plaintiff has not produced any records to show that the registered gift deed executed by the father of plaintiff in favour of Thimmaiah and Ningamma was a nominal one. There is no recital in the registered gift deed that it is a nominal one. After the death of donees, the donees' son had succeeded to the property and he sold the said land in favour of defendant No.1 on 01.12.1990. On the strength of the registered sale deed, the property was transferred in the name of defendant No.1. The plaintiff aggrieved by the entries in the name of defendant No.1 filed the appeal before the Assistant Commissioner. The Assistant Commissioner dismissed the appeal and directed the parties to approach the Civil Court. The plaintiff aggrieved by the order passed by the Assistant Commissioner preferred revision before the Deputy Commissioner. The Deputy Commissioner had affirmed the order passed by the Assistant Commissioner.
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19. From the perusal of the judgments and decrees passed by the courts below, the courts below have failed to consider the well established inference of law, i.e., the plaintiff must establish his case independently but cannot depend upon the weakness of the defendants. In the instant case, the trial Court placing reliance on the weakness of the defendants, decreed the suit of the plaintiff. The First Appellate Court on re-assessment of the evidence, has affirmed the judgment and decree passed by the trial Court without examining whether the registered gift deed dated 02.07.1940, was nominal and not acted upon and further failed to consider that the plaintiff has not challenged the registered gift deed dated 02.07.1940.
20. Admittedly, the father of the plaintiff executed a registered gift deed on 02.07.1940. It is necessary to examine Sections 91 and 92 of the Indian Evidence Act, 1872 (for short 'the Act of 1872'). Under Section 91 of the Act of 1872, when a term of contract, or of a grant, or of
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or the secondary evidence subject to certain conditions. Under Section 92 of the Act of 1872, when a document has been properly executed as required under Section 91 of the Act of 1872, no evidence of any oral agreement or statements shall be admitted as between the parties for the purpose of contradicting or varying or subtracting from the terms subject to certain provisions as contained in Section 92 of the Act of 1872. It is open for the party to prove that the invalidity on the ground of fraud, want of due execution, want of capacity in any contradicting party or failure of consideration etc. But, these exceptions are not present in the instant case. The execution of the document is admitted by the plaintiffs as per Ex.D2 and the same was registered. It is not the case of the defendants that it was
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 vitiated by fraud or any other illegality. Therefore, even considering the matter under Sections 91 and 92 of the Act of 1872, no evidence contradicting the terms is admissible as it will not fall in any of the exceptions. From the perusal of Ex.D2, there is no recital in Ex.D2 that the registered gift deed is nominal and not acted upon. Further, in order to prove that Ex.D2 is a nominal one, the plaintiffs have not examined any attesting witnesses. The said aspect was not considered by the courts below.
21. Further, I would like to press the decision of the Hon'ble Apex Court in the case of RAMTI DEVI VS UNION OF INDIA reported in (1995)1 SCC 198, wherein the Hon'ble Apex Court held that there is prohibition under the Indian Evidence Act to adduce oral evidence to contradict terms of recital of the document and when the plaintiff is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the Court. Until the document is avoided or cancelled by proper declaration,
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 the duly registered document remains valid and binds the parties. At paragraph No.2, it is held as under:
"2.The question is whether the suit is within limitation. In the evidence, it was admitted that she had knowledge of the execution and registration of the sale deed on 29-1-1947. Initially a suit was filed in 1959 but was dismissed as withdrawn with liberty to file fresh suit. Admittedly, the present suit was filed on 30-7-1966. The question, therefore, is whether the suit is within limitation. Article 59 of the Schedule to the Limitation Act, 1963, relied on by the appellant herself, postulates that to cancel or set aside an instrument or decree or for the rescission of a contract, the limitation is three years and it begins to run when the plaintiff entitles to have the instrument or the decree cancelled or set aside or when the contract rescinded first became known to him. As seen, when the appellant had knowledge of it on 29-1-1949 itself the limitation began to run from that date and the three years' limitation has hopelessly been barred on the date when the suit was filed. It is contended by Shri VM.
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 Tarkunde, learned Senior Counsel for the appellant, that the counsel in the trial court was not right in relying upon Article 59. Article 113 is the relevant article. The limitation does not begin to run as the sale deed document is void as it was executed to stifle the prosecution. Since the appellant having been remained in possession, the only declaration that could be sought and obtained is that she is the owner and that the document does not bind the appellant. We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre- existing debts and it is a registered document. Apart from the prohibition under Section 92 of the Evidence Act to adduce oral evidence to contradict the terms of the recital therein, no issue in this behalf on the voidity of the sale deed or its binding nature was raised nor a finding recorded that the sale deed is void under Section 23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action had arisen on 29-1-1947, the date on which the sale deed was executed and registered and the suit was filed on 30-7-1966, the suit is hopelessly barred by limitation. The courts below, therefore, were right in dismissing the suit. The appeal is accordingly dismissed with costs."
22. Admittedly, in the instant case, as recorded above, the plaintiff has not challenged the registered gift deed dated 02.07.1940, executed by his father in favour of Thimmaiah and Ningamma and further, the plaintiff has filed a suit for declaration in the year 1995. The said aspect was not considered by the courts below and have proceeded to pass the impugned judgments and decrees. The judgments and decrees passed by the courts below
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NC: 2023:KHC:42552 RSA No. 1186 of 2007 are arbitrary and erroneous and same are liable to be set aside. In view of the above discussion, I answer substantial question of law in negative.
23. In view of the aforesaid facts and circumstances, I proceed to pass the following:
ORDER The appeal is allowed.
The judgments and decrees passed by the courts below are set aside.
Consequently, the suit of the plaintiff is dismissed.
No order as to the costs.
SD/-
JUDGE RD, SSB