Karnataka High Court
Smt A Geetha vs Smt Chowdamma on 17 March, 2020
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
REGULAR SECOND APPEAL No.234/2015
Between:
Smt. A. Geetha,
Aged about 55 years,
Wife of Sri M. Sriramareddy,
R/at Near Vijendraswamy,
New Town, Bethamangala,
Bangarpet Taluk,
Kolar District - 563 113. ... Appellant
(By Sri Puttige R. Ramesh, Advocate)
And:
Smt. Chowdamma,
Aged about 51 years,
W/o Sri R. Srinivas,
R/at Kallikuppa Village,
Bethamangala Hobli,
Bangarpet Taluk,
Kolar District - 563 113. ... Respondent
(By Sri K. Raghavendra Rao, Advocate)
This Regular Second Appeal is filed under Section 100
of the Code of Civil Procedure, 1908, against the judgment
and decree dated 17.12.2014 passed in R.A. No.158/2013
on the file of the Presiding Officer, Fast Track Court, KGF,
dismissing the appeal and confirming the judgment and
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decree dated 19.04.2013 passed in O.S. No.17/2004 on the
file of the Principal Senior Civil Judge, KGF and etc.
This Regular Second Appeal having been heard and
reserved on 19.12.2019 and coming on for pronouncement
of judgment, this day the Court, delivered the following:
JUDGMENT
The defendant has challenged the judgment and decree passed in O.S. No.17/2004, whereby suit filed by the plaintiff for declaration of title, delivery of possession and recovery of arrears of rent came to be decreed directing the defendant to deliver vacant possession of the schedule property within three months with a further direction for enquiry as regards mesne profits under Order XX Rule 12 of CPC.
2. The First Appellate court in R.A.No.158/2013 has dismissed the appeal while affirming the judgment of the trial court, which has been questioned in the present appeal.
3. The defendant is stated to have sold the suit schedule property to the plaintiff under registered sale 3 deed dated 23.09.2000 and the plaintiff had been put in possession of the said property. It is stated that the defendant had approached the plaintiff and requested the plaintiff to let out the schedule property for rent at Rs.4,500/- per month with an understanding that the defendant would vacate within a period of three years. Pursuant to the said understanding, Ex.P5-Rental agreement came to be executed. As the defendant is stated to have committed default in payment of arrears of rent, notice was got issued and eventually, suit came to be filed for declaration of plaintiff's title, delivery of vacant possession, recovery of arrears of rent and for enquiry into future mesne profits.
4. The defendant had filed his written statement denying the averments of the plaint and had asserted that as the defendant was in need of funds for legal necessity, the defendant had approached the plaintiff and had taken a hand loan of Rs.1,50,000/- 4 and had executed a nominal document by way of security on 23.09.2000 and that the plaintiff had executed a re-conveyance deed.
5. The defendant had further asserted that he was ready to pay an amount of Rs.1,50,000/- as referred to in the re-conveyance deed and the plaintiff was evading to re-convey the property in terms of the documents that are executed.
6. The plaintiff has led evidence through Chowdamma and got marked the Sale Deed at Ex.P1, Demand Register Extract-Ex.P2 and the Tax paid receipts-Ex.P3 and P4, Rental Agreement-Ex.P5, Legal Notice-Ex.P6, while the defendant has also led evidence and got marked the deed of re-conveyance at Ex.D1 along with other documents.
7. The trial court decreed the suit against which R.A.No.100/2010 came to be filed at the first 5 instance. The said appeal came to be allowed by setting aside the judgment passed in O.S.No.17/2004 and remanding the matter to the trial court for fresh disposal in accordance with law. The First Appellate Court had further directed framing of additional issues with a further direction to give opportunity to both the parties to adduce further evidence.
8. On remand, the trial court had framed additional issues and afforded an opportunity to the parties to lead evidence. It is however to be noted that the defendant did not appear before the trial court and did not adduce any evidence after remand. However, after arguments was advanced, the suit came to be decreed once again directing defendant to deliver vacant possession with an order for further enquiry as regards mesne profits under Order XX Rule 12 of CPC.
9. The said judgment and decree came to be challenged once again in R.A.No.158/2013 which 6 affirmed the judgment and decree passed in O.S.No.17/2004.
10. As against the concurrent findings by the Court of first instance as well as by the First Appellate Court, present appeal has been filed.
11. During the course of the proceedings before the trial court the defendant had filed an application seeking permission to amend the written statement seeking for a counter-claim to enforce the contract dated 23.09.2000 for re-conveyance of the property in favour of the defendant. However, the said application came to be rejected as per the order dated 02.02.2009 on I.A.No.III and has attained finality for all practical purposes. It is to be noted that the Writ Petition No.19628/2009 filed challenging the order of the trial Court also was dismissed as having become infructuous.
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12. Contentions:
12.1 Learned counsel for the appellant who is the defendant before the trial court has contended that the issues framed by the trial court are improper. 12.2 The defendant contends that the plaintiff ought to have paid court fee on the market value of the property as per Section 24 of the Karnataka Court Fees and Suits Valuation Act and that aspect of the matter has to be taken note of even at the appellate stage.
That further, even after the amendment of the plaint, no additional court fee has been paid.
12.3 It is contended that the suit of the plaintiff was barred by limitation, that the defendant had a right to re-purchase the property under Ex.D1 and that the sale deed stated to have been executed by the defendant to the plaintiff was a nominal document.
812.4 The plaintiff on the other hand has contended that no substantial question of law arises and hence the question of entertaining the second appeal would not arise, the suit is to be decreed on the basis of admission insofar as the defendant has specifically admitted the execution of Ex.P1 in favour of the plaintiff. 12.5 It is submitted that Ex.P1 is clear and unambiguous and that there is a specific recital that the purchaser is entitled to enjoy the property absolutely, that Ex.P2 indicates that Katha has been made in the name of the plaintiff and exercise of right of ownership is evidenced by the tax paid receipts as per Ex.P3 and P4. That Ex.P5 is the rental agreement between the parties and the courts below have upheld the same. That Ex.D1 relied on by the defendant is an incomplete document, and that Ex.D1 cannot be construed to be a document executed as security as regards a loan in light of Section 58(c) of the Transfer of Property Act, 1882 9 ("T.P. Act", for short). That suit is not barred by limitation as the period of limitation is governed by Article 65 of the Limitation Act, 1963.
12.6 It is further submitted that the parties have gone to trial knowing fully well the case put forward by each other and hence the contentions relating to improper framing of issues should not vitiate the judgment that is passed.
13. Consideration of contentions:
13.1 Before dealing with the substantial questions of law that has been framed, it is to be noted that this court had directed the Registry to have re-look into the matter of valuation and sufficiency of court fee. 13.2 The Registry has furnished a report that the court fee that has been paid is sufficient. The Registry has taken note of the relief of eviction and declaration and made valuation as follows:-10
(a) Eviction:
Annual Rent
Rs.4,500 x 12 = Rs. 54,000/-
(b) Declaration:
Consideration in the
sale deed Ex.P1 = Rs. 79,000/-
Value of appeal = Rs.1,33,000/-
The report finds that the
Court fee payable = Rs.8,935/-
Court fee paid = Rs.10,965/-
13.3 Though the defendant has objected to valuation
made by the office, this court finds no reason to interfere with the report submitted by the office as regards the court fee and the same is accepted. Even otherwise, it cannot be stated that a substantial question of law has arisen on the basis of the contention raised relating to court fee. This is more so in the light of the application (I.A.-IV) filed seeking for direction to the plaintiff to pay the court fee on the market value has 11 been dismissed by a considered order dated 13.09.2012.
Hence, the aspect of court fee is not a matter regards which any substantial question of law has arisen. 13.4 Insofar as the contention of the plaintiff that sale deed as per Ex.P1 was executed by way of a registered sale deed, it must be noted that the defendant in the written statement has in fact admitted execution of the document on 23.09.2000, though sets up the defence that it was a nominal document executed for security towards the hand loan of Rs.1,50,000/-.
13.5 The further defence put forth by the defendants is that the re-conveyance deed was executed on the same day as per Ex.D1 which provided that on the payment of Rs.1,50,000/-, the plaintiff would execute the re-conveyance deed. The said re-conveyance deed is marked as Ex.D1. Once the defendant has admitted execution of a document on 23.09.2000, the burden 12 then rests on the defendant to prove that in fact, the document was a nominal and sham document as made out by the defendant. It ought to be noted that the evidence on record is not sufficient to accept the case as set out by the defendant. In fact, subsequent to the sale deed, it is to be noted that Ex.P2 is the demand register extract and Ex.P3, Ex.P4 are the tax paid receipts which would clearly indicate that the plaintiff has exercised right as a true owner under the sale deed at Ex.P1. Ex.P1 being a registered document and execution of which is admitted, the burden of the defendant as regarding proof of Ex.D1 as well as proof of the claim that Ex.P1 is a nominal and sham document not having been discharged, the contention of the defendant that is concurrently negatived by the trial as well Court of First Appeal regarding execution of Ex.P1 and disbelieving Ex.D1 does not call for interference in the present proceedings. 13 13.6 It is further to be noted that even if Ex.D1 was taken to be document executed by the plaintiff, the said document provided that the plaintiff would accept payment of Rs.1,50,000/- within five years and execute sale deed. Ex.D1 having been executed on 23.09.2000, though legal notice to enforce the same came to be issued on 7.2.2008, no action was taken to enforce the said agreement. In fact, I.A.No.3 came to be filed under Order VI Rule 17 C.P.C. seeking leave to amend the written statement by including a counter claim seeking for specific performance of the re-conveyance agreement dated 23.09.2000. The said application was rejected, as the same was filed at a belated stage after the commencement of evidence. The challenge to the said order by way of Writ Petition No.19628/2009 came to be dismissed as having become infructuous and hence in effect, the counter claim sought for has been rejected and the said order has reached finality. 14 13.7 Even in the present memorandum of appeal, there is only an observation that matter relating to amendment to include counter claim was not decided on merits. That by itself is not sufficient to seek a re-adjudication as regards to the validity of the order. If the same is sought to be challenged as per Section 105(1) of C.P.C. the error, defect or irregularity in the order must be set forth as a ground of objection in the memorandum of appeal. In the present case, the memorandum of appeal does not set out a challenge in terms of Section 105(1) of C.P.C. Accordingly, the question of seeking enforcement of Ex.D1 does not survive and is a closed issue which cannot be raked up in this second appeal.
13.8 There is yet another aspect that needs to be noted that under the proviso to Section 58(c) of the T.P. Act, it is clear that no transaction shall be deemed to be a mortgage unless the condition is embodied in the 15 document which effects the sale. In the present case, Ex.D1 contains the condition that on repayment of Rs.1,50,000/-, there would be re-conveyance by the plaintiff. In effect, the defendant is seeking to secure the advance of amount by the plaintiff by way of Ex.D1. Unless, the said condition was contained in Ex.P1 itself the case set forth in Ex.P1 cannot be accepted. 13.9 Hence, on the above aspect it can be said that no substantial question of law has been made out seeking for interference.
14. This Court after hearing the matter has framed the following substantial questions of law:
(i) Whether the judgment and decree of the trial Court at first instance and that of the First Appellate Court are liable to be interfered with in light of issues framed in improper manner and casting the burden of proof wrongly, being contrary to law?
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(ii) Whether the finding of both the Courts
regarding limitation is liable to be
interfered with?
15. In re. Question No.(i) -
It has been argued that Courts have not framed issues in appropriate manner including placing of burden of proof on relevant party and accordingly the proceedings are vitiated and ought to be remanded for fresh consideration. Reliance has been placed on the judgment of the Apex Court in the case of Ramrameshwari Devi and Others v. Nirmala Devi and others reported in (2011) 8 SCC 249.
Learned counsel for the plaintiff has however contended that if parties have gone to trial and are aware of the case put forward by each other, the question of the trial being vitiated would not arise. It is further contended that there is no effective participation by the defendant before the Court of first instance, as 17 the defendant has not led any evidence after remand. In fact, the trial Court has noted that though the case was posted for defendant's evidence from 19.03.2012, the defendant has remained absent. It must also be noted that though PW1 was further examined on 04.02.2013, the cross-examination of PW1 was taken as nil. Further, as the defendant remained absent and did not subject himself for cross-examination, the examination-in-chief of the defendant has been taken as nil as per the order dated 08.04.2013.
In light of the above, the contention of the defendant has to be addressed appropriately.
While no doubt, the framing of issues is required to be given due importance as noted in the judgments relied upon by the plaintiff, in the present case, a perusal of the issues would indicate that the points in controversy have indeed been addressed in the issues that are framed. There may have been some lapses 18 such as the one relating to framing of additional issue No.5 framed on 27.06.2011 as pointed out by the learned counsel for the defendant, where burden has been cast on the plaintiff to prove that the value of the suit property was more than Rs.10.00 lakhs, though clearly such burden ought to have been imposed on the defendant. However, such lapse by itself does not in any way materially affect the adjudication that is made.
While Issue No.5 referred to supra has a bearing with respect to valuation and court fee, the said aspect of the matter has been addressed as per the discussion supra. No doubt the burden of proof would always be on the defendant to prove that the valuation made by the plaintiff was improper. In fact, the defendant has made efforts to put forth the case as regards valuation and it cannot be held that the lapse in casting the burden of proof as regards valuation has the effect of vitiating the proceedings. This is more so in light of this 19 Court having accepted the report of the Registry that the valuation made is proper.
In Ramrameshwari Devi's case (supra), the Apex Court has emphasized that due care, caution, diligence and attention must be bestowed while framing of issues. In the case of Nandihalli Patil Akkihalappa and Another v. Neelakantana Goudra Channdana Gouda reported in 1994 (1) K.L.J. 34, this Court by perusing the issues framed by the trial Court had observed that non-framing of an issue with respect to an important contention would have an implication on the proceedings and the duty to frame proper issues was one conferred on the court by Order XIV of C.P.C.
This Court is in complete agreement with the proposition of law laid down in the above judgments referred to by the counsel for the plaintiff, but the question for examination is as to whether in the facts of 20 the present case the issues framed do reveal the exact controversy in issue and as to whether the parties have gone to trial knowing the case put forth by each other.
A perusal of the issues would reveal that the questions in controversy that have been set forth relate to letting out of building on rental basis [issue No.1, additional issue Nos.1 and 3)] establishment of jural relationship between the landlord and tenant (issue No.4). Issue has been framed as regards the contention that sale deed dated 23.09.2000 was a nominal document and in pursuance of the said document re- conveyance deed was executed (issue No.5). Proof of sale deed dated 23.09.2000 (additional issue No.2 framed on 27.06.2011). Point of limitation (additional issue No.2 framed on 23.01.2012).
The controversy on hand relates to the assertion of the plaintiff that the defendant had executed a sale deed as per Ex.P1 and that the defendant had subsequently 21 continued in possession as a tenant. In light of the defendant not having vacated and handed over vacant possession, the plaintiff has filed the present suit.
The defendant on the other hand, has set up a defence that the plaintiff had executed Ex.D1 which is an agreement for re-conveyance and had provided that plaintiff would re-convey the property on receipt of a sum of Rs.1,50,000/- within a period of five years.
Insofar as the above factual matrix, plaintiff has filed a suit for recovery of possession and the defendant has putforth the defence as above stated. As pointed above, the issues framed does encapsulate the points for controversy, though issues could have been more pointed and sharp. It can safely be said that the parties have participated in the trial knowing the case of each other.
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The Apex Court in the case of Kannan (dead) by LRs and others v. V.S. Pandurangam (dead) by LRs and others reported in (2007) 15 SCC 157 has clearly held that the omission to frame issue would not vitiate the trial where parties went to trial knowing fully well the rival claims and have led evidence in support of their contentions (see paras 10 and 11). So also in the case of Sayeda Akhtar v. Abdul Ahad reported in AIR 2003 SC 2985, the Apex Court has reiterated the legal position that if the parties were aware and have led evidence, the question of interference by the appellate Court would not arise.
As noted above, the parties were aware of the stand of each other and had participated in the trial by leading evidence and accordingly, no ground is made out for interference with the findings of the trial Court on the ground that the issues not having been worded properly and have caused prejudice requiring 23 interference with the judgments of the trial and first appellate Court.
Accordingly, the finding on the substantial question of law No.(i) is to be held in the negative in light of the discussion as made above.
16. In re. Question No.(ii).-
The defendant has contended that there is no finding as regards the aspect of limitation. It is further contended that the suit initially was a suit for possession and subsequently by way of an amendment, the declaratory relief was sought for by placing reliance on the sale deed dated 23.09.2000. The same was permitted by way of order dated 11.11.2011. It is contended that the amendment does not relate back to the date of the suit and accordingly the suit for declaration ought to be filed in terms of Article 58 and the period of time prescribed under Article 65 would not be applicable.
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The plaintiff on the other hand has contended that the substantive relief that was claimed in the suit was one for recovery of possession based on title and the plaintiff is seeking for relief on the basis of the absolute sale deed executed by the defendant as per Ex.P1 and if that were to be so, the period of limitation prescribed would be as that which is governed under Article 65 of the Limitation Act, i.e. twelve years when the possession of the defendant becomes adverse to that of the plaintiff.
It is further contended that the defendant has not established his plea of adverse possession and hence the suit is brought within time. It is contended that sale deed Ex.P1 is executed on 23.09.2000 and the amendment application came to be allowed permitting seeking of declaration by order dated 11.11.2011 which would still be within the period of limitation.
A perusal of the impugned judgment would reveal that though there is a reference to the judgments on the 25 point of limitation, the finding with respect to the said aspect does not come out very clearly. However, from the answer to additional issue No.2 framed on 23.01.2012, the finding is in the negative to the effect that the suit is not barred by limitation. The Appellate Court has also referred to the judgment in the case of Indira v. Arumugam and Another reported in AIR 1999 SC 1549 relied upon by the plaintiff in support of the contention that the plaintiff cannot be non-suited unless defendant proves adverse possession for prescriptive period and accordingly upholds the judgment of the trial Court. So, in effect, both the courts indeed have recorded a finding on the point of limitation, though the said findings could have been supported by reasons. Nevertheless, the facts as made out are that the plaintiff is seeking for recovery of possession on the basis of Ex.P1. The effort to introduce counter claim having been rejected and noting that the sale deed was on 23.09.2000 and the suit itself 26 was filed in the year 2004 and the amendment was also permitted in the year 2011, clearly, the defendant not having perfected his title by adverse possession within such time, the defendant cannot non-suit the plaintiff. The judgment in the case of Indira (supra) would be directly applicable to the facts of the present case.
At this point of time, remanding the matter for fresh consideration on this point would not be necessary in light of the admitted pleadings and position of law as is applicable.
Accordingly, it can be held that the findings of the trial Court and Appellate Court in the form of conclusion on additional No.2 framed on 23.01.2012 does not require any interference. In light of the above, the substantial question of law No.(ii) is answered in the negative.
17. In light of the findings on the substantial question Nos.1(i) and (ii) the judgments of Court of first 27 instance as well as Appellate Court are affirmed and the appeal is dismissed.
Sd/-
JUDGE NP