Karnataka High Court
Smt.Savithramma vs Sri.K.R.Sathyanarayana on 15 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1122, 2019 (4) AKR 321 (2020) 1 ICC 610, (2020) 1 ICC 610
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.S.A.No.445/2014
BETWEEN:
SMT.SAVITHRAMMA
W/O RAMALINGEGOWDA
AGED ABOUT 69 YEARS
R/O, No.129, KUMARAGERI
MYSORE - 570 002.
...APPELLANT
(BY SRI H C SHIVARAMU, ADVOCATE)
AND:
1. SRI K R SATHYANARAYANA
S/O K RAMAKRISHNARAJU
AGED ABOUT 47 YERS
R/AT. No.555, 4TH CROSS
DODDAVAKKALAGERI
MYSORE - 570 002.
2. SRI R DIVAKAR @ SOMANNA
S/O SRI D K RAMALINGEGOWDA
AGED ABOUT 47 YEARS
R/AT No.129, 2ND MAIN
KURUBAGERI, MYSORE - 570 002.
...RESPONDENTS
(BY SRI PRABHUGOUD B TUMBIGI, ADVOCATE
FOR R1,
SRI MAHESH R UPPIN, ADVOCATE FOR R2)
2
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 16.03.2012 PASSED IN
R.A.No.39/2009 ON THE FILE OF PRINCIPAL CIVIL JUDGE
(SR.DN.) AND JMFC, SRIRANGAPATNA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 25.10.2008 PASSED IN OS.No.163/2005 ON THE
FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC,
SRIRANGAPATNA.
THIS RSA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment decree dated 16-03-2012 passed in R.A.No.39/2009 by the Principal Civil Judge (Sr.Dn) and JMFC, Srirangapatna, wherein the appeal came to be dismissed and the judgment and decree dated 25-10-.2008 passed in OS.No.163/2005 by the learned Principal Civil Judge (Jr.Dn) and JMFC, was confirmed.
2. In order to avoid confusion and overlapping, the parties are referred in accordance with their rankings held by them before the trial court.
3. Originally, suit was filed by the plaintiff against the defendants in O.S.No.163/2005 before the 3 trial Court for cancellation of sale deed and for permanent injunction claiming to be the owner of the suit schedule property which is an agricultural land bearing Survey No.95 of Bonthagally Village measuring an extent of 32 guntas. She purchased the same on 26.11.1990 from one Chikkamma. The 2nd defendant is stated to be the son of the plaintiff and 1st defendant is the purchaser of the schedule property. She claims that fraud was played on her by the 1st defendant purchaser and her own son defendant No.2. She was made to sign on the document purported to be the registered sale deed, wherein the schedule property was conveyed by her in favour of 1st defendant. In this connection, 2nd defendant who is her own son cooperated with the 1st defendant in bringing up the registered sale deed of the schedule property whereby the plaintiff was divested off her ownership in a deceptive and cunning manner. She further claims that she had no notice or knowledge 4 of the contents of the documents which came to be claimed as sale deed.
4. The 1st defendant upon his appearance denied the allegations of the plaintiff and further claims that after due deliberation and after receiving the sale consideration, sale deed was executed in his favour by the plaintiff. Further 1st defendant vehemently denies that the plaintiff had no intention to execute the registered sale deed of the schedule property in favour of the 1st defendant. It is stated that, plaintiff and the 2nd defendant have sold the schedule property for a valuable consideration to counter the legal necessity. The document executed therein is a sale deed.
5. The learned trial Judge was accommodated with the oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to P10 on behalf of plaintiff and oral evidence of DW1 and documentary evidence of Exs.D1 to 3 on behalf of defendants.
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6. On the basis of the pleadings of the parties and on perusal of the materials on file, suit of the plaintiff came to be dismissed by the learned trial Judge on 25.10.2008. Aggrieved of the said judgment and decree by the learned trial Judge, plaintiff preferred an appeal before the Principal Civil Judge (Sr.Dn) and JMFC, Srirangapatna, in R.A.No39/2005.
7. The learned first Appellate Judge, after hearing the parties though his judgment dated 16-03-2012 passed in R.A.No.39/2005 dismissed the appeal and thereby confirmed the judgment and decree passed by the trial Judge. Aggrieved by the same, plaintiff/appellant is before this Court in this second appeal, under Section 100 of CPC.
8. While admitting the appeal on 16.06.2014, this Court framed the following substantial questions of law:
1. Whether the courts below erred in not putting the burden of proving the sale deed dated 30.7.2005 as a genuine document, on the first defendant?6
2. Whether the judgments of the courts below are perverse due to non consideration of the relevant facts and consideration of irrelevant facts and due to error of law?
9. On 6.3.2019, one more substantial question of law is framed by this Court which is as under:
Whether the plaintiff proves that the sale deed was voidable at his option?
10. After hearing, the following additional substantial question of law is framed today, Whether the Civil Court is having jurisdiction to declare a sale deed as null and void in case of violation of Sections 79A and B of the Karnataka Land Reforms Act?
11. It is necessary to make mention that the application under Order 41 Rule 1 CPC filed by the appellant/plaintiff also came to be dismissed along with the main appeal. In the overall circumstances, basically, the sale deed dated 30.07.2005 alleged to have been executed by the plaintiff in favour of 1st defendant is 7 sought for cancellation alleging that the consent of the plaintiff was obtained by plying fraud on her.
12. Learned counsel for appellant/plaintiff would submit that plaintiff's own son who is 2nd defendant in collusion with the 1st defendant/purchaser has taken her to Sub Registrars office at Srirangapatna. The plaintiff alleged that she had no intention of selling the schedule property, but she has not given any complaint against defendants. Counsel for plaintiff further submits that 1st defendant is a Goldsmith and does not fall within the meaning of 'agriculturist' under the relevant provisions of Karnataka Land Reforms Act and hence, he bears disqualification to purchase the agricultural land. Thus, the sale deed executed in favour of 1st defendant is hit by the provisions of Sections 79A and 79B of the Karnataka Land Reforms Act.
13. Learned counsel for respondent submits that the plaintiff filed the suit in pursuance of her greed. 8 She was aware of the content, purpose and the intent of the parties in going for sale deed. He would further submit that the very versions of the plaintiff itself reveals that she is guilty of wrong representation. The plaintiff has executed the sale deed for consideration of Rs.48,000/-.
14. Under Section 10 of the Indian Contract Act, 1872, an agreement enforceable by law is a Contract. Thus, apart from offer and acceptance and existence of lawful consideration, legality of object, the legal formalities, free and genuine consent of the parties having contractual capacity and the related are also necessary. When the consent is obtained by exercising undue influence, coercion mistake, mis representation or fraud, it is said to be not a free and genuine consent and the contract is voidable at the option of the aggrieved party that is the substantial aspect.
15. Insofar as the present case is concerned, plaintiff claims that she was the victim of fraud and 9 deception by 1st defendant in furtherance of collusion with the 2nd defendant. Thus, the factual aspects of fraud and deception or mis- representation are supposed to be proved specifically to the satisfaction of the court. In this connection, order VI Rule 4 of CPC mandates to furnish all particulars and the said provision is as under:
"4. Particulars to be given where necessary -
(1) In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
KARNATAKA HIGH COURT AMENDMENT (2) In a suit for infringement of a patent, the plaintiff shall state in his plaint or annex thereto the particulars of the breaches relied upon and the defendant, if he disputes the validity of the patent, shall state in his written statement or annex thereto the particulars of the objections on which he relies in support of such invalidity; at the hearing of any such suit no evidence shall, except with the leave of the Court (to be given upon such terms as to the 10 Court may seem just), be admitted in proof of any alleged infringement or objections not raised in the particulars of breaches or objections respectively."
16. Thus the fraud exercised by the buyer will have to be specifically pleaded and evidence has to be adduced quoting all the circumstances that would inspires the confidence in the mind of the court to the effect that defendant played fraud. In the circumstances of the case, it is to be seen that 2nd defendant is none other than the son of the plaintiff. Further on the date of sale deed, it is stated that katha of the property was standing in the name of 2nd defendant who is the son of the plaintiff. Plaintiff attributes collusion of defendants 1 and 2 and consideration has not passed to her.
17. Insofar as sale deed is concerned, it is marked as Ex.P1 wherein the schedule property was said to have been sold by plaintiff to 1st defendant on 30.5.2005 and plaintiff claims to be in possession of the schedule property. However, it is the case of the 1st 11 defendant that the possession was handed over and sale consideration is Rs.48,000/-.
18. It is also stated that the plaintiff has gone on record by admitting that her husband also accompanied her to the Registrar's office to execute the sale deed. Under such circumstances, there was all the circumstances and opportunity for the plaintiff or her husband to prevent the execution of sale deed suppose it was hit by fraud.
19. At the cost of repetition, it is observed that fraud or coercion or misrepresentation was totally not possible by them, when she was accompanied by her husband and the son and however later has attributed to be bad for the plaintiff.
20. Plaintiff is not familiar with the circumstances, but she has gone on record contending that it was she who gave instruction to the appellant to file a case. One P.S.Jayaprakash is the scribe of the 12 document. He has been examined on behalf of plaintiff as PW2. During chief examination, he has stated that he is not a literate but a scribe. He states that 1st defendant took his signature to some document, but in his presence the suit transaction had not taken place. In his cross examination, he says that he has given evidence in 15 to 20 cases. He totally goes against the case of the defendants and says that he signed as a witness and states that no transaction was effected during his presence nor any payment was made.
21. Here, it is necessary to make a cursory glance of Sections 79A and 79B of the Karnataka Land Reforms Act which are as under:
[79A. Acquisition of land by certain persons prohibited.--
(1) On and from the commencement of the 3 [the Karnataka Land Reforms (Amendment) Act, 1995]3 , no person who or a family or a joint family which has an assured annual income of not less than rupees 3 [two lakhs]3 from sources other than agricultural lands shall be entitled to acquire any land whether as land owner, landlord, tenant 13 or mortgagee with possession or otherwise or partly in one capacity and partly in another.
(2) For purposes of sub-section (1)-- (i) the aggregate income of all the members of a family or a joint family from sources other than agricultural land shall be deemed to be income of the family or joint family, as the case may be, from such sources; (ii) a person or a family or a joint family shall be deemed to have an assured annual income of not less than rupees 1 [two lakhs]1 from sources other than agricultural land on any day if such person or family or joint family had an average annual income of not less than rupees 1 [two lakhs]1 from such sources during a period of five consecutive years preceding such day.
Explanation.--A person who or a family or a joint family which has been assessed to income tax under the Income Tax Act, 1961 (Central Act 43 of 1961) on an yearly total income of not less than rupees 1 [two lakhs]1 for five consecutive years shall be deemed to have an average annual income of not less than rupees 1 [two lakhs]1 from sources other than agricultural lands.
(3) Every acquisition of land otherwise than by way of inheritance or bequest in contravention of this section shall be null and void.
(4) Where a person acquires land in contravention of sub-section (1) or acquires it by bequest or inheritence he shall, within ninety days from the date of acquisition, furnish to the Tahsildar having jurisdiction over the Taluk where the land acquired or the greater part of it is 14 situated a declaration containing the following particulars, namely:--
(i) particulars of all lands;
(ii) the average annual income of himself or the family;
(iii)such other particulars as may be prescribed.
(5) The Tahsildar shall, on receipt of the declaration under sub-section (4) and after such enquiry as may be prescribed send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that with effect from such date as may be specified in the notification, such land shall stand transferred to and vest in the State Government without further assurance free from all encumbrances. From the date specified in such notification the Deputy Commissioner may take possession of such land in such manner as may be prescribed.
(6) For the land vesting in the State Government under sub-section (5), where the acquisition of the land was by bequest or inheritance, an amount as specified in section 72 shall be paid and where the acquisition was otherwise than by bequest or inheritance, 1 [no amount]1 shall be paid.
79B. Prohibition of holding agricultural land by certain persons.--
(1) With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act,--
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(a) no person other than a person cultivating land personally shall be entitled to hold land; and
(b) it shall not be lawful for,-
(i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in subsection (7) of section 63, capable of holding property;
(ii) a company;
(iii) an association or other body of individuals not being a joint family, whether incorporated or not; or
(iv) a co-operative society other than a co- operative farm, to hold any land.
(2) Every such institution, society, trust, company, association, body or co-operative society,--
(a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and
(b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period.
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(3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner.
(4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid.
22. Both the provisions of law are clear regarding entitlement of non agriculturist from purchasing agricultural land as there was prohibition for such when the annual income from sources other than non agricultural lands shall not be more than prescribed limit of Rs.2,00,000/- p.a.. Both Sections must be complied. However, in case of violation of the provisions of Land Reforms Act on and from the commencement of the Karnataka Land Reforms (Amendment) Act, 1995, no person who or a family or a joint family which has an assured annual income of not less than rupees two 17 lakhs from sources other than agricultural lands shall be entitled to acquire any land and the 1st defendant did not did not satisfy the requirement of agriculturist. In such circumstances, sale deed is of no avail to purchaser and the land will be forfeited and that is the domain of the Revenue jurisdiction. The Civil Court cannot accept the same and has no authorization to declare the sale deed as void by virtue of violation of the said provision of law. In case of violation of the said Act, it is for the concerned Revenue Authorities to take action and not by the court.
23. In the circumstances of the case, document that was executed is Ex.P1-Sale Deed in the office of the Sub-Registrar at Srirangapatna. The plaintiff had more opportunity of agitating and complaining against the defendants, but that had not happened. The details or particular fraud or coercion are not brought before the Court. The conduct and the evidence of the plaintiff 18 does not inspires the confidence. Therefore, I do not find any infirmity or illegality or lack of application of mind in the judgment and decree passed by the courts below. Thus, the substantial questions of law are answered against the appellant. Hence, the appeal is devoid of merits and the same is dismissed.
Sd/-
JUDGE tsn*