Karnataka High Court
Smt. Nora Menezes vs P. Nanjamma on 15 April, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2024:KHC:17069
RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 106 OF 2021 (DEC/INJ)
C/W
REGULAR FIRST APPEAL NO. 1539 OF 2013(INJ)
C/W
REGULAR FIRST APPEAL NO. 20 OF 2021(DEC/INJ)
IN R.F.A.No.106/2021
BETWEEN:
1. MRS R M FLAVIA
AGED ABOUT 65 YEARS
W/O RICHARDS SEQUIERA
R/AT NO.797 11TH A MAIN
HBR 1ST STAGE 4TH BLOCK
BENGALURU-560 043.
2. SRI GOVINDA RAJ T
AGED ABOUT 43 YEARS
Digitally signed by S/O TEEKARAM
LEELAVATHI S R
R/AT-NO. 3/1
Location: HIGH
COURT OF SANGAM CROSS ROAD
KARNATAKA BENGALURU-560 042.
3. MRS KRISHNA VENI
AGED ABOUT 58 YEARS
W/O SHIVARAMA ADIGA
R/AT-NO 89 GURUDATTA LAYOUT
NEAR DATTAHRAYA TEMPLE
BSK 3RD STAGE
BENGALURU-560 085.
4. SRI M SUBRAMANI
AGED ABOUT 65 YEARS
S/O M MARIAPPA
R/AT-NO.21 NETHAJI STREET
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
NEAR SHIVA TEMPLE UDAYA NAGAR
ZUARI NAGAR POST
BENGALURU-560 016.
5. SRI WILFRED ANTHONY NATHAN BABU HARRY
AGED ABOUT 70 YEARS
S/O HARRY
R/AT-NO.6 ANNS VILLA
8TH CROSS EGIPURA MAIN ROAD
BENGALURU-560 047.
...APPELLANTS
(BY SRI. S.D.N. PRASAD AND
SRI. M.N. UMESH., ADVOCATES)
AND:
1. SRI MANJU
AGED ABOUT 52 YEARS
S/O LATE MUNINARAYNAPPA
2. SMT SHASHIKALA
AGED ABOUT 47 YEARS
W/O LATE RAMESH
3. SRI M VENUGOPALA
AGED ABOUT 41 YEARS
S/O LATE MUNINARAYANAPPA
4. SMT M ANITHA
AGED ABOUT 39 YEARS
D/O LATE MUNINARAYANAPPA
5. SMT PARVATHAMMA
AGED ABOUT 66 YEARS
D/O LATE KURLAPPA
KOLAR DISTRICT-563 128.
6. SMT NAGARATHNAMMA
AGED ABOUT 41 YEARS
D/O LATE NARAYANAPPA
7. SMT KOMALAMMA
AGED ABOUT 39 YEARS
D/O LATE NARAYANAPPA
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
THE RESPONDENT NOS. 5 TO 7 ARE
R/AT THALAGAVARA, KAIVARA HOBLI
CHINTAMANI TALUK
KOLAR DISTRICT-563128.
8. SMT BABY BALAKRISHNAN
AGED ABOUT 57 YEARS
W/O BALAKRISHNAN
R/AT-NO.389 18TH A MAIN
6TH BLOCK KORAMANGALA
BENGALURU-560 049.
9. SRI L KUMAR
AGED ABOUT 49 YEARS
S/O NOT KNOWN TO APPELLANTS HEREIN
C/O MUNIRAJU
R/AT-BOMMENAHALLI, BUDIGERE ROAD
BENGALURU-560 049.
10. SRI SHIVASHANKARAPPA.M @ SHANKARAPPA
AGED ABOUT 52 YEARS
S/O NOT KNOWN TO THE APPELLANTS HEREIN
R/AT-RAMAMURTHY NAGAR MAIN ROAD
CANARA BANK BUILDING
BENGALURU-560 049.
11. MRS NORA MENEZES
AGED ABOUT 62 YEARS
W/O GILBERT MENEZES
R/AT-103/2 3RD B CROSS
DOCTORS LAYOUT KASTURINAGARA
BENGALURU-560 043.
12. MRS SELVI
AGED ABOUT 54 YEARS
W/O V MUNIYAPPA
R/AT-4 1ST MAIN ROAD, GANGA NAGAR
BENGALURU-560 032.
13. MR CHETHAN
AGED ABOUT NOT KNOWN
TO APPELLANTS HEREIN
S/O NOT KNOWN TO APPELLANTS HEREIN
R/AT-NEAR WATER TANK
HORAMAVU VILLAGE
HORAMAVU MAIN ROAD
BENGALURU-560 043.
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
14. SMT SUNITHA
AGED ABOUT 39 YEARS
D/O C NAGARAJ
R/AT RAGHAVENDRA NILAYA NO.113
2ND MAIN ROAD G CROSS
CHIKKA ABBAIAH REDDY LAYOUT
BALAJI ROAD NEAR
ST VINCENT PALLOTI CHURCH
BANASWADI, BENGALURU-560 043.
15. SMT N ANITHA D/O C NAGARAJA
AGED ABOUT 42 YEARS
R/AT-NO.133
2ND MAIN ROAD G CROSS
CHIKKA ABBAIAH REDDY LAYOUT
BALAJI ROAD NEAR
ST VINCENT PALLOTI CHURCH
BANASWADI
BENGALURU-560 043.
16. SRI R KOTESHWARAN
AGED ABOUT 66 YEARS
S/O NOT KNOWN TO THE
APPELLANTS HEREIN
R/AT-NO.26/1 2ND MAIN
SHAMANNA GOWDA LAYOUT
ULSOOR BENGALURU-560 008.
17. SRI SURESH KUMAR
AGED ABOUT 51 YEARS
S/O LATE V SRINIVASAN
R/AT-NO. 52 NEERAJA RESIDENCY
NO.16 OIL MILL ROAD
LINGARAJAPURAM
BENGLAURU-560 084.
18. SRI R VIJAYANANDAN S/O RAGANATHAN
AGED ABOUT 52 YEARS
R/AT-NO.35 N M R LAYOUT
UDAY NAGAR
BENGALURU-560 016.
19. MR BIJU JOHN S/O LATE V A JOHN
AGED ABOUT 56 YEARS
R/AT-MALLAIACKAL HOUSE
MANICKATH CROSS ROAD
KOCHI-682 106.
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
20. MRS MARY THOMAS
AGED ABOUT 74 YEARS
W/O P V THOMAS
R/AT-PULLUKARA HOUSE MAIN ROAD
IRIJALAKUDA MUKUNDAPURAMA TALUK
KERALA-680 125.
21. MRS.ANANDAVALLI BABU
W/O HARY WILFRES A.N.BABU,
CO OWNERS AGED 60 YEARS
NO.6 ANN VILLAS 12TH CROSS
EIJIPURA, VIVEK NAGARA POST OFFICE
BANGALORE - 560 047.
...RESPONDENTS
(BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI. K.M. PRAKASH., ADVOCATE FOR R-1 TO R-4
SRI. B.K. SAMPATH KUMAR., SENIOR COUNSEL APPEARING FOR
SRI. SURAJ SAMPATH., ADVOCATE FOR R-11 TO R-17 & R-19 TO R-20
R-5 TO R-18 & R-21 SERVED., VIDE ORDER R-5 CIRCULATE NOTICE
TO R-6, R-9, R-10, R-12 R-14 & R-17 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST
THE JUDGMENT AND DECREE DATED 08.12.2020 PASSED IN
O.S.NO.7568/2006 ON THE FILE OF THE XXIV ADDL. CITY CIVIL AND
SESSION JUDGE BANGALORE CITY, DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
IN R.F.A.No.1539/2013
BETWEEN:
1. SMT. NORA MENEZES,
W/O GILBERT MENEZES,
AGED ABOUT 55 YEARS,
RESIDEING AT 103/2
3RD B CROSS,
DOCTORS LAYOUT
KASTURI NAGAR
BANGALORE - 43.
2. SMT. SELVI
W/O V.MUNIYAPPA,
AGED ABOUT 44 YEARS
41ST MAIN ROAD,
GANGA NAGAR
BANGALORE - 560 032
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
3. MR.CHETAN,
S/O CHAMPALAL,
AGED ABOUT 33 YEARS,
# NO.101/2 RAILWAY GATE
NEAR WATER TANK
HORAMAVU VILLAGE
HORAMAVY MAIN ROAD,
BANGALORE - 560 043.
4. N.SUNITHA
D/O MR C.NAGARAJ
AGED ABPIT 29 YEARS
RESIDING AT
NO.724, 2ND MAIN 'B' CROSS,
8TH BLOCK, KORAMANALA LAYOUT,
5. MS.N.ANITHA
D/O MR C.NAGARAJ
AGED ABOUT 32 YEARS,
R/AT NO.70, 4TH CROSS,
NANJAREDDY COLONY,
MURUGEESHPALYA HAL POST,
BANGALORE - 560 017.
6. SMT. R.M.FLAVIA
W/O RICHARDS SEQUIERA
AGED ABOUT 57 YEARS
#NO.797 11TH 'A' MAIN
HBR 1ST STAGE 4TH BLOCK
BANGALORE - 560 043.
7. ANANDAVALLI BABY AND
W/O HARRY WILFRED A.N.BABU,
CO OWNERS
AGED ABOUT 64 YEARS
#NO.6, ANN'S VILLA
12TH CROSS, EJIPURA,
VIVEKANAGAR POST OFFICE
BANGALORE - 560 047.
8. R.KOTTESWARAN
AGED ABOUT 52 YEARS
#NO.26/1,2ND MAIN
SAI AMANNA GOWDA LAYOUT,
ULSOOR, BANGALORE - 56008
...APPELLANTS
(BY SRI. S.D.N. PRASAD., ADVOCATE)
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
AND:
1. P.NANJAMMA,
D/O LATE KURLAPPA,
W/O MUNIRAYAPPA,
AGED ABOUT 57 YEARS
2. M.MANJU
S/O MUNIRAYAPPA,
AGED ABOUT 39 YEARS,
3.. M.RAMESH,
S/O MUNIRAYAPPA,
AGED ABOUT 36 YEARS,
4. M.VENUGOPALA,
S/O MUNIRAYAPPA,
AGED ABOUT 34 YEARS,
5. M.ANITHA,
D/O MUNIRAYAPPA,
AGED ABOUT 29 YEARS,
RESPONDENT NO.2 TO 5 ARE
THE CHILDREN OF
SMT. P.NANJAMMA AND SRI. MUNIRAYAPPA,
ALL ARE RESIDING AT BEGUR VILLAGE,
SULIBELE HOBLI,
HOSKOTE TALUK,
BANGALORE RURAL DISTRICT,
6. PARVATHAMMA,
D/O LATE P.KURLAPPA,
W/O LATE NARAYANAPPA,
AGED ABOUT 34 YEARS,
7. NAGARATHNAMMA,
D/O LATE NARAYANAPPA,
AGED ABOUT 34 YEARS,
8. KOMALAMMA,
D/O LATE NARAYANAPPA,
AGED ABOUT 32 YEARS,
RESPONDENTS 6 TO 8 ARE RESIDING AT,
THALAGAVARE, KAIVARA HOBLI,
CHITHAMANI TALUK,
KOLAR DISTRICT,
-8-
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
9. BABY BALAKRISHNAN W/O BALAKRISHNAN,
AGED ABOUT 46 YEARS,
RESIDING AT NO.389, 18TH 'A' MAIN,
6TH BLOCK, KORAMANGALA,
BANGALORE - 560 047.
10. GOVINDA RAJ.T
AGED ABOUT 36 YEARS
31/1 SANGAM CROSS ROAD,
BANGALORE - 560 042.
11. KRISHNA VENI W/O MR.SHIVARAM ADIGA,
AGED ABOUT 51 YEARS,
# NO, 89 GURUDATTA LAYOUT,
NEAR DATTATHARYA TEMPLE,
BSK 3RD STAGE,
BANGALORE - 85.
12. S.SAMBAMURTHY,
S/O S.SRIRAMULU NAIDU,
AGED ABOUT 72 YEARS,
R/A 20/5 (OLD NO), NEW NO.73,
2ND CROSS, HUTCHISON ROAD,
ST.THOMAS TOWN POST,
BANGALORE - 84.
...RESPONDENTS
(BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI. K.M. PRAKASH., ADVOCATE FOR R-1 TO R-4 & R-6 TO R-8
SRI. N. SRINIVASA MURTHY., ADVOCATE FOR R-5
R-9, R-10- SERVED)
THIS RFA IS FILED UNDER SECTION 96, R/W , O-41, RULE-1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED: 03.07.2013
PASSED IN O.S. 7241/2009 ON THE FILE OF 42ND ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
IN R.F.A.No.20/2021
BETWEEN:
1. MRS. NORA MENEZES
W/O GILBERT MENEZES
AGED ABOUT 63 YEARS
R/AT # 103/2 3RD 'B' CROSS
DOCTORS LAYOUT
KASTURI NAGAR
BANGALORE - 560 043.
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
2. MRS. SELVI
W/O V. MUNIYAPPA
AGED ABOUT 51 YEARS
R/AT 41ST MAIN ROAD
GANGA NAGAR
BANGALORE - 560 032.
3. MR. CHETHAN
AGED ABOUT 38 YEARS
R/AT # 101/2 RAILWAY TANK
NEAR WATER TANK
HORAMAVU VILLAGE
HORAMAVU MAIN ROAD
BANGALORE - 560 043.
4. SUNITHA
D/O MR. C. NAGARAJ
AGED ABOUT 39 YEARS
R/AT " RAGHAVENDRA NILAYA"
NO. 113, 2ND MAIN ROAD
'G' CROSS, CHIKKA ABBAIAH REDDY LAYOUT
BALAJI ROAD, NEAR ST. VINCENT PALLOTI CHURCH
BANASWADI, BENGALURU - 560 043.
5. N. ANITHA
D/O. MR.C. NAGARAJ
AGED ABOUT 41 YEARS
R/AT NO. 133, 2ND MAIN ROAD
'G' CROSS, CHIKKA ABBAIAH REDDY LAYOUT
BALAJI ROAD, NEAR ST. VINCENT PALLOTI CHURCH
BANASWADI
BENGALURU - 560 043.
6. MRS. ANANDAVALLI BABU
W/O HARRY WILFRED A.N. BABU
CO-OWNERS,
AGED ABOUT 71 YEARS
R/AT NO. 6, ANN'S VILLA
12TH CROSS, EJIPURA
VIVEK NAGARA POST OFFICE
BANGALORE - 560 047.
7. MR. R. KOTEESWARAN
AGED ABOUT 64 YEARS
R/AT NO. 26/1, 2ND MAIN
SHAMANNA GOWDA LAYOUT
ULSOOR, BANGALORE - 560 008.
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
8. MR. SURESH KUMAR
S/O LATE V. SRINIVASAN
AGED ABOUT 46 YEARS
R/AT NO. 52, NEERAJA RESIDENCY
NO.16, OIL MILL ROAD
LINGARAJAPURAM
BANGALORE - 560 084.
9. MR. BIJU JOHN
S/O LATE V.A. JOHN
AGED ABOUT 52 YEARS
R/AT MALLIACKAL HOUSE
MANICKATH CROS ROAD
KOCHI - 682 016.
10. MRS. MARY THOMAS
W/O DR. P.V. THOMAS
R/AT PULLUKARA HOUSE MAIN ROAD
IRIJALKUDA, MUKUNDAPURAM TALUK
KERALA - 680 733.
REPT BY HER P.A.HOLDER
MR. P. ANTOO.
...APPELLANTS
(BY SRI.B.K. SAMPATH KUMAR., SENIOR COUNSEL APPEARING FOR
SRI. SURAJ SAMPATH., ADVOCATE)
AND:
SMT. P. NANJAMMA,
D/O. SRI.KURLAPPA,
W/O. MUNINARAYANAPPA,
SINCE DEAD REP. BY HER LRS.
1. SRI. MANJU,
S/O. MUNIRAYAPPA,
AGED ABOUT 52 YEARS.
SRI. M.RAMESH,
S/O. MUNIRAYAPPA,
SINCE DEAD REP. BY HIS LRS.
2. SMT. SHSHIKALA,
W/O. LATE RAMESH,
AGED ABOUT 36 YEARS.
3. SRI. M. VENUGOPALA,
S/O. MUNIRAYAPPA,
SINCE DEAD.
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
4. SMT. M.ANITHA,
D/O. MUNIRAYAPPA,
AGED ABOUT 43 YEARS.
RESPONDENT NO.1 TO 4 ARE ALL
R/AT BEGUR VILLAGE,
SULIBELE HOBLI,
HOSKOTE TALUK,
BANGALORE RURAL DISTRICT - 560 060.
5. SMT. PARVATHAMMA,
AGED ABOUT 67 YEARS,
D/O. SRI KURLAPPA,
W/O. LATE NARAYANAPPA.
6. SMT. NAGARATHNAMMA
AGED ABOUT 42YEARS.
7. SMT. KOMALAMMA
AGED ABOUT 40 YEARS.
RESPONDENT NOS.6 AND 7 ARE
D/O. SMT. PARVATHAMMA AND
LATE NARAYANAPPA.
RESPONDENT NOS.5 TO 7 ARE ALL
R/AT THALAGAVARA,
KAIVARA HOBLI,
CHINTHAMANI TALUK,
KOLAR DISTRICT - 563 125.
8. SMT. BABY BALAKRISHNAN,
AGED ABOUT 58 YEARS,
W/O BALAKRISHNAN,
R/AT NO. 389, 18TH 'A' MAIN,
6TH BLOCK, KORAMANGALA,
BANGALORE - 560 049.
9. SRI. L. KUMAR,
AGED ABOUT 50 YEARS,
FATHERS NAME NOT KNOWN
TO THE PLAINTIFFS,
C/O. MUNIRAJU,
R/AT BOMMENAHALLI,
BUDIGERE ROAD,
BANGALORE - 560 049.
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
10. SRI. SHIVASHANKARAPPA M. @ SHANKARAPPA,
AGED ABOUT 52 YEARS,
FATHER'S NAME NOT KNOWN TO THE PLAINTIFFS,
R/AT RAMAMURTHY NAGARA MAIN ROAD,
CANARA BANK BUILDING,
BANGALORE - 560 049.
11. MRS. R.M. FLAVIA W/O. RICHARDS SEQUIERA,
AGED ABOUT 68 YEARS,
NO. 797, 11TH 'A' MAIN,
HBR 1ST STAGE, 4TH BLOCK,
BANGALORE - 560 043.
12. MR. GOVINDARAJ T,
AGED ABOUT 47 YEARS,
NO. 31/1 SANGAM CROSS ROAD,
BANGALORE - 560 042.
13. MR. KRISHNA VENI W/O. MR. SHIVARAM ADIGA,
AGED ABOUT 62 YEARS,
NO. 89, GURUDATTA LAYOUT,
NEAR DATTATHRAYA TEMPLE,
BSK 3RD STAGE,
BANGALORE - 560 085.
14. MR. R. VIJAYANANDAN,
S/O. RAGANATHAN,
AGED ABOUT 53 YEARS,
R/AT NO. 35, N.M.R. LAYOUT,
UDAY NAGAR,
BANGALORE - 560 016.
...RESPONDENTS
(BY SRI. ASHOK HARANAHALLI., SENIOR COUSEL FOR
SRI. K.M. PRAKASH., ADVOCATE FOR R-1 TO R-4, R-5, R-6, R-7
R-11, R-12, R-13 ARE SERVED
VIDE ORDER DATED: 31.03.2021, NOTICE TO R-8 TO R-10 D/W
VIDE ORDER DATED: 13.07.2022, NOTICE TO R-14 IS D/W)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI
RULE OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED:
08.12.2020 PASSED IN OS NO. 7568/2006 ON THE FILE OF THE XXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
DECREEING THE SUIT FOR DECLARATION AND PERMANENT
INJUNCTION.
THESE APPEALS ARE BEING HEARD AND RESERVED ON
23.01.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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RFA No. 106 of 2021
C/W RFA No. 1539 of 2013
RFA No. 20 of 2021
JUDGMENT
RFA No.106/2021 and 20/2021 arise out of the impugned judgment and decree dated 08.12.2020 passed in O.S.No.7568/2006 by the XXIV Additional City Civil and Sessions Judge, Bengaluru.
2. RFA No.1539/2013 is directed against the impugned judgment and decree dated 03.07.2013 passed in O.S.No.7241/2009 by the 42nd Additional City Civil and Sessions Judge, Bengaluru.
3. The brief facts giving rise to the above appeals are as under:
3.1 Respondent Nos.1 to 7 in RFA Nos.20/2021 and 106/2021 were the plaintiffs in the aforesaid O.S.No.7568/2006 instituted by them before the Trial Court. In the said suit, respondent Nos.8 to 10 were initially arrayed as the only defendant Nos.1 to 3. The said suit was instituted by respondent Nos.1 to 7-
plaintiffs for declaration that the registered sale deed dated 02.02.2005 executed by them in favour of respondent Nos.8 to 10- defendant Nos.1 to 3 was null and void and not binding upon them and for consequential declaration that the said plaintiffs were the
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 absolute owners of the suit schedule property and for permanent injunction restraining interference with their possession thereof and for other reliefs. The suit schedule property was described as portion of land bearing Sy.No.522 of Kalkere Village, K.R. Puram Hobli, erstwhile Bengaluru South Taluk, now Bengaluru East Taluk measuring 39 guntas as described in the schedule to the plaint.
3.2 As stated supra, in the first instance, it was only respondent Nos.8 to 10/defendant Nos.1 to 3 who were arrayed as defendants and they remained ex-parte and did not contest the suit. By judgment and decree dated 30.10.2008, the Trial Court decreed the suit ex-parte in favour of the plaintiffs against the defendants. Subsequently, the appellants in the present appeals preferred RFA No.142/2010 before this Court and sought for leave to prosecute the appeal inter alia contending that though they were the absolute owners in lawful and peaceful possession and enjoyment of the suit schedule property, over which the plaintiffs did not have any right, title, interest or possession, the appellants had not been arrayed as parties and sought for setting aside the said judgment and decree dated 30.10.2008 passed by the Trial Court.
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4. On 24.02.2010, this Court permitted the appellants and granted them leave to prosecute the appeal which culminated in a final judgment and decree dated 10.07.2012 under which, this Court set aside the judgment and decree passed by the Trial Court and remitted the matter back to the Trial Court with a direction to implead the appellants as additional defendants in the suit and providing them an opportunity to file their written statement and contest the suit and directing the Trial Court to re-consider the entire matter afresh, after framing appropriate issues and to proceed further in accordance with law. This Court also permitted the plaintiffs to seek amendment of the plaint, if deemed necessary. The said remand order passed by this Court in RFA No.142/2010 dated 10.07.2012 is as under:
"The instant appeal is by the persons who were not parties to O.S.No.7568/2006. However, since the judgment and decree dated 30.09.2008 (signed by the learned Judge as 30.10.2008) passed in O.S.No.7568/2006 would affect the interest of the appellants as per the case pleaded by them in this appeal, this Court by the order dated 24.02.2010 has allowed the application seeking leave to prosecute the instant appeal. It is in that context, the appellants are assailing the judgment and decree dated 30.09.2008.
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2. Heard the learned counsel appearing for the parties and perused the appeal papers.
3. The respondents have also filed their objections to the instant appeal, today before this Court and the same is taken on record.
4. At the outset, since it has been noticed that the appellants were not parties before the trial Court and they have been permitted to prosecute the instant appeal and also since it is noticed that the documents produced along with the appeal memo on which reliance has been placed have not been marked and proved in evidence, the said documents could only be considered prima facie and if it is found that the prima facie case putforth by the appellants claiming right to the property which was subject matter of the suit is acceptable to this Court in any event, an opportunity would have to be provided to the appellants to put forth their contentions before the Court below and in that regard, necessary orders needs to be passed. In that view, the details of the rival claims in depth is not adverted to except to notice as to whether the appellants have a prima facie case for remanding the matter for reconsideration.
5. Briefly, the facts in the instant suit in O.S.No.7568/2006 is that plaintiff Nos.1 and 6 therein claim to be the daughters of one Kurlappa. The other plaintiffs are the grand children. It is in that context the plaintiffs claim right to the property bearing Sy.No.522 measuring 39 guntas in Kalkere village, K.R.Puram Hobli, Bangalore East
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 Taluk, under late Kurlappa. In that context, on referring to the title of Kurlappa, they contend that the said Kurlappa having died intestate, the plaintiffs had acquired right to the suit property. In that regard, they had executed the registered sale deed dated 02.02.2005 in favour of the first defendant. However, the plaintiffs therein claiming right to the property and making allegations against the first defendant therein that the sale consideration had not been paid had sought for a declaration that the registered sale deed dated 02.02.2005 wherein the first defendant is claiming right is null and void and the plaintiffs be declared as absolute owners of the property.
6. The defendants did not choose to contest the suit. Accordingly, the Court below taking note of the contentions put forth by the plaintiffs has decreed the suit by its judgment dated 30.09.2008.
7. The appellants herein while assailing the said judgment would contend that the said suit was a collusive suit between the plaintiffs and the defendants. Though with regard to the said allegations, no opinion could be expressed at this juncture, the other materials produced on record, as already noticed, are documents which would have to be established in accordance with law. However, the order passed in a judicial proceedings in O.S.No.1150/2006 in any event can be adverted to in detail to arrive at a conclusion, whether the appellants should be provided opportunity to defend the suit. In this regard, it is noticed that one Smt M.V. Nagarathna had filed a suit against the defendants therein who are three among the
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 appellants in this appeal. In the said suit, Smt.M.V.Nagarathna had claimed right in respect of the very same property bearing Sy.No.522 of Kalkere village. In the said suit, the said Smt.M.V.Nagarathna had contended that she had purchased the property in question under a sale deed dated 02.12.2005 from Smt. Baby Balakrishna, who is none other than the first defendant in O.S.No.7568/2006. In that regard, the title of Smt. Baby Balakrishna was traced to the registered sale deed dated 02.02.2005 which is the very same sale deed regarding which the plaintiffs have raised a grievance in O.S.No.7568/2006.
8. In that context, when the Court below was considering the rival contentions in O.S.No.1150/2006, on taking note of the defence which had been put forth, the Court below has arrived at the conclusion that the plaintiff therein cannot claim title. On noticing certain transactions whereunder Kurlappa had sold the property, it was concluded that Kurlappa did not retain any property with him and as such Smt.Baby Balakrishna in any event could not have claimed to have purchased the property from the legal representatives of late Kurlappa, since they could not have inherited the non-existent property. These observations in my view would go to the root of the case inasmuch as the appellants herein have been contending that they purchased the property during the year 1994 from Smt.Siddamma. One such sale deed which is at Annexure- F to the appeal memo dated 25.12.1994 is in favour of the first appellant herein. The said Smt.Siddamma i.e., the
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 vendor of the appellants is stated to have purchased the property from Smt.A.Lakshmamma on 18.04.1974 and the said Smt.A.Lakshmamma had in turn purchased the property from Kurlappa on 12.02.1970. Therefore, the said transaction would indicate that the sale deeds under which the appellants claim title prima facie indicate that it was at an undisputed point as compared to the period during which the subsequent suits are instituted.
9. Hence, if the appellants herein are able to establish the sale transactions under which they have purchased the property neither Smt.Baby Balakrishna nor the plaintiffs in O.S.No.7568/2006 would have right to the property and the declaration granted in their favour would be detrimental to the interest of the appellants. Therefore, the defence to be put forth by the appellants in O.S.No.7568/2006 would be relevant to consider the genuineness of the claim put forth by the plaintiffs therein at the first instance. Since the appellants who are claiming right to the property under registered sale deeds were not impleaded in the said suit, their right has been jeoparadised. In that regard, though learned counsel for the respondents contended that the appellants have no right whatsoever to maintain the instant appeal, as noticed, this Court has already allowed the application and permitted the appellants to prosecute the appeal. Further the contention of the learned counsel for the respondent that the appellants herein are total strangers to the property cannot be accepted for the reason that the sale deeds prima facie indicate that they have purchased the property as far back
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 as in the year 1994 and in any event, they had successfully defended the suit in O.S.No.1150/2006 when a claim was made by Smt.M.V.Nagarathna contending to have purchased the property in question. In any event, these are aspects which would have to be considered by the Court below and therefore, at this juncture, I am of the opinion that the judgment dated 30/09/2008 passed in O.S.No.7568/2006 in its present form cannot be sustained.
10. Accordingly, the judgment and decree dated 30.09.2008 is set aside. The suit in O.S.No.7568/2006 is restored to file of the 24th Additional City Civil Judge, Bangalore City. The trial Court shall permit the appellants herein to come on record as defendant Nos.4 to 15. On restoration, the plaintiffs shall also have an opportunity of amending the plaint, if they deem it necessary. The appellants herein are granted the opportunity for filing their detailed written statement in the suit. Thereafter the trial Court shall frame appropriate issues and re-determine the suit in accordance with law.
11. Since the plaintiffs in the said suit are the respondent Nos.1 to 8 herein and the appellants herein would be impleaded as defendant Nos.4 to 15, they shall appear before the trial Court without further notice. For the said purpose, the first date of appearance is fixed as 10.09.2012 and they shall appear before the Court below on the said date. Insofar as respondent Nos.9 to 11 herein who are the defendant Nos.1 to 3 in the suit, fresh notice shall be issued.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 *The Appellant is entitled to refund of Court fee paid on the appeal.* The Appeal is allowed in part in the above terms. Parties to bear their own costs."
5. In pursuance of the aforesaid remand order, the appellants herein were arrayed as defendant Nos.4 to 17 to the suit and they filed their written statement and contested the suit. The plaintiffs filed an application I.A.No.18 under Order VI Rule 17 CPC seeking permission to amend the plaint and the same having been contested by the defendants, the Trial Court proceeded to reject I.A.No.18 vide order dated 26.09.2019. The said order having been challenged by the plaintiffs in W.P.No.50011/2019, this Court dismissed the said petition vide final order dated 22.10.2019 as under:
"Petitioners being the plaintiffs in a declaration suit in O.S.No.7568/2006 are invoking the writ jurisdiction of this Court for assailing the order dated 26.09.2019, a copy whereof is at Annexure-F, whereby their application under Order VI Rule 17 r/w Section 151 of Code of Civil Procedure, 1908 having been rejected by the learned XXIV Additional City Civil Judge, Bengaluru, has denied leave to amend the plaint. After service of notice, respondent Nos.4 to 10 and 12 have entered appearance through their counsel and resist the Writ Petition.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines to grant indulgence in the matter inasmuch as the amendment now sought for introducing the phoded Sy.No.522/1 is founded on the earlier judgment and decree that are already set at naught and suit is restored after remand.
3. Under the Proviso to Section 135, where there is a declaratory decree, the revenue entries need to be mutated to accord with the same; this phodi is thus relatable to the decree which is now set aside; however, the question of new number being entered to the pleadings in the suit does not arise, since the decree based on which this new number was entered to the Revenue Records itself is set aside and the entire matter is at large in the trial where it is open to the petitioners to urge about the identification/demarcation of the subject land on the basis of material on record.
4. The other ground for not granting indulgence in the matter is, that the subject application filed under Order VI Rule 17 is badly hit by the Proviso since the trial having been accomplished the matter is now posed for arguments. Due diligence too is wanting from the side of petitioners.
5. With the above observations, this Writ Petition is disposed off.
It is needless to mention that the Court below shall advert to all the revenue records placed on record after hearing the other side also.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 It is not necessary to reiterate earlier directions for early disposal of the suit."
6. The aforesaid order passed by this Court has attained finality and become conclusive and binding upon the plaintiffs.
7. As stated supra, the appellants contested the suit after remand and filed their written statement, pursuant to which, the Trial Court framed the following issues;
1. Whether plaintiffs prove that defendants 1 to 3 by playing fraud and coercing plaintiffs to execute the Registered sale deed dt.02.02.2005, which is registered in the name of 1" defendant as stated in para 16 of the plaint?
2. Whether plaintiffs further prove that registered sale deed dt. 02.02.2005 registered in the name of the 1"
defendant is null and void and the same is not binding on plaintiffs?
3. Whether plaintiffs further prove that they are the absolute owners of the plaint schedule property?
4. Whether plaintiffs further prove that they are in lawful possession of the plaint schedule property as on the date of suit?
5. Whether plaintiffs further prove the alleged interference of defendants?
6. Whether the 4th defendant proves that deceased Kurlappa or his legal heirs i.e., the present plaintiffs have no land in Sy.No.522 measuring 1 acre 18 guntas
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 as the same has already been sold in favour of Siddamma and Sheik Ali Sab?
7. Whether defendants Nos.4 to 10 and defendants Nos.12 and 14 prove that they have purchased their respective sites as stated in para 4 to 23 of the written statement?
8. Whether defendants 1 to 13 prove that plaintiffs and defendants 1 to 3 have colluded with each other to harass defendants and other purchasers as contended in para 2 of the written statement?
9. Whether 11th defendant further proves that he has purchased site No.19 from B.N.Gayathri with existing one sq. A.C sheet roof construction therein bearing Khata No.78/3 as per sale deed dated. 12.03.2004 as stated in para 8 of the written statement?
10. Whether the 13th defendant proves that he has purchased site No.14 Khata No.78/3 measuring 40 x 40 feet as per the registered sale deed dt. 21.12.1994 as contended in para 7 of the written statement?
11. Whether the defendant No.11 and 13 further prove that the suit is not properly valued and the court fee paid is insufficient?
12. Whether the 11th defendant further proves that the suit is bad for non-joinder of necessary parties?
13. What decree or order?
8. Both parties adduced oral and documentary evidence in support of their respective claims. On behalf of the plaintiffs, Plaintiff No.1, Nanjamma examined herself as PW.1 and one
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 witness PW.2, B.N. Nagaraja Rao was examined as PW.2 and documentary evidence at Exs.P-1 to P-24 were marked on their behalf. Appellant No.1 was examined as DW.1 and marked documentary evidence as Exs.D-1 to D-100 on their behalf.
9. After hearing both parties, the Trial Court proceeded to pass the impugned judgment and decree decreeing the said suit in O.S.No.7568/2006 in favour of respondent Nos.1 to 7/plaintiffs against the appellants/defendants and other defendants, who are before this Court by way of the present appeals in RFA Nos.20/2021 and 106/2021.
10. During the pendency of the aforesaid O.S.No.7568/2006, the appellants also instituted one more suit in O.S.No.7241/2009 against respondent Nos.1 to 7 (plaintiffs in O.S.No.7568/2006) as well as defendant Nos.1 to 3 in O.S.No.7568/2006 for permanent injunction and other reliefs in relation to the very same suit schedule property. As stated earlier, during the pendency of the said suit in O.S.No.7241/2009, the Trial Court had already decreed the suit filed by the plaintiffs in O.S.No.7568/2006 vide judgment and decree dated 30.10.2008 (prior to remand in RFA No.142/2010 referred to supra) and
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 consequently, the Trial Court proceeded to pass the impugned judgment and decree dated 03.07.2013 dismissing the suit fled by the appellants herein by placing reliance upon the said judgment and decree without noticing that the same had already been set aside by this Court in RFA No.142/2010 dated 10.07.2012. Aggrieved by the judgment and decree dated 03.07.2013 passed in O.S.No.7241/2009, appellants are before this Court by way of RFA No.1539/2013.
11. As stated supra, the parties to all the three appeals are one and the same and the common subject matter relates to the land bearing Sy.No.522 of Kalkere Village and as such, since common questions law and fact arise for consideration in all the three appeals, they are taken up together for disposal.
12. For the purpose of convenience, the parties are referred to by their respective ranks in O.S.No.7568/2006 before the Trial Court.
13. The plaintiffs filed the aforesaid suit interalia contending that they were the children and grand children of one Late Kurlappa, who acquired land bearing Sy.No.522 of Kalkere
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 Village measuring 2 acres 10 guntas vide order dated 13.02.1959 passed by the Special Deputy Commissioner for Inams Abolition, Bangalore District, Bangalore. The suit schedule property is a portion of the said land bearing Sy.No.522 measuring 39 Guntas. It was contended that the said Kurlappa died intestate on 05.02.1990 leaving behind the plaintiffs as his legal heirs and they became the owners in possession and enjoyment of the suit schedule property and got the khata mutated into the name of plaintiff No.1 vide M.R.No.35/2004 dated 14.10.2004.
14. Plaintiffs contended that defendant Nos.1 to 3 (respondent Nos.8 to 10 herein) approached the plaintiffs and requested them to sell the suit schedule property in their favour. It is contended that the plaintiffs are illiterates and they believed the representations of defendant Nos.1 to 3 that the total sale consideration would be Rs.45 Lakhs and that the balance sale consideration of Rs.43 lakhs would be paid to the plaintiffs on 02.02.2005 at the time of registration of the sale deed. It was also contended that the sale deed was drafted in English language and being illiterates, the plaintiffs could not read and understand its contents and despite repeated requests and demands, defendant
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 Nos.1 to 3 paid only Rs.1 Lakh towards balance sale consideration and handed over a post dated cheque dated 10.06.2005 for Rs.10,50,000/- with the assurance that the balance sum of Rs.42 Lakhs would be paid within one week and that the cheque was given by way of security in this regard.
15. Plaintiffs contended that in addition to the fact that the defendant Nos.1 to 3 did not pay the balance sale consideration of Rs.42 Lakhs to the plaintiffs, the aforesaid cheque for Rs.10,50,000/- was also dishonored with the shara "payment stopped". It was contended that the plaintiffs obtained a copy of the sale deed dated 02.02.2005 executed and registered by them in favour of defendant Nos.1 to 3 and were shocked to learn that the said sale deed stated that they had received the entire sale consideration of Rs.8,80,000/- from defendant Nos.1 to 3 towards sale of the suit schedule property in their favour, which was contrary to the total sum of Rs.45 Lakhs agreed to between the parties. It is further contended that defendant Nos.1 to 3 had coerced the plaintiffs to sign the sale deed dated 02.02.2005 and had obtained the same from the plaintiffs by practicing fraud and misrepresentation on them. It was therefore contended that the
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 said sale deed dated 02.02.2005 was null and void and not binding upon the plaintiffs, who were entitled to the reliefs sought for in the suit.
16. As stated supra, defendant Nos.1 to 3 remained exparte prior to and even after remand and did not contest the suit. The appellants/defendant Nos.4 to 17 filed their written statement specifically denying and disputing the alleged title and possession of the plaintiffs and late Kurlappa over the suit schedule property. It was contended that late Kurlappa was not the owner of 2 acres 10 guntas in Sy.No.522, but was the owner of only 1 acre 18 guntas of land in Sy.No.522. It was further contended that vide sale deed dated 12.02.1970, the aforesaid Kurlappa sold the entire extent of 1 acre 18 guntas in favour of one Smt. A. Lakshmamma. The said Smt. A. Lakshmamma sold 1 acre out of the total extent of 1 acre 18 guntas in favour of one Smt. Siddamma vide registered sale deed dated 18.04.1974. The said A. Lakshmamma also sold the remaining 18 guntas back to late Kurlappa vide registered sale deed dated 19.04.1974. Subsequently, the said late. Kurlappa sold the said 18 guntas in favour of one Sheikh Ali Sab vide registered sale deed dated 09.01.1975. It was therefore contended that out of
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 the total extent of 1 acre 18 guntas, the said late Kurlappa had not retained any portion of land, much less the suit schedule property measuring 39 guntas and consequently, the question of the plaintiffs succeeding to the suit schedule property or executing a sale deed dated 02.02.2005 in favour of defendant Nos.1 to 3 did not arise and the claim of the plaintiff deserved to be rejected.
17. The appellants/defendant Nos.4 to 17 also contended that the aforesaid Siddamma, who had purchased 1 acre of land in Sy.No.522 of Kalkere Village from Smt. A. Lakshmamma under the aforesaid sale deed dated 12.02.1970 also purchased the adjacent land bearing Sy.No.523 measuring 1 acre and formed a residential layout comprising of 36 residential sites. The appellants/defendant Nos.4 to 17 are purchasers of various sites in the said layout and are the absolute owners in lawful and peaceful possession and enjoyment of their respective sites and the claim of the plaintiff was liable to be rejected.
18. The appellants/defendants also contended that one, Smt. M.V. Nagarathna instituted a suit in O.S.No.1150/2006 against Mrs. Nora Menezes (appellant No.1), Sri. Koteshwaran and Sri. Govindaraj for permanent injunction in relation to the very
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 same suit schedule property interalia contending that she had purchased the property from Smt. Baby Balakrishnan and others (defendant Nos.1 to 3/respondent Nos.8 to 10 in O.S.No.7568/2006). The said suit was contested by appellant No.1, pursuant to which, the Trial Court vide judgment and decree dated 24.01.2008 dismissed the said O.S.No.1150/2006 by holding that the aforesaid late Kurlappa did not retain any portion of land in Sy.No.522 and consequently, the plaintiffs herein, who had executed the sale deed dated 02.02.2005 in favour of the aforesaid M.V. Nagarathna did not have any saleable/transferable right over the suit schedule property and as such, the claim of the aforesaid M.V. Nagarathna was rejected by the Trial Court, which dismissed the said suit. It was contended that the said judgment and decree passed in O.S.No.1150/2006 has attained finality and the finding recorded therein that late Kurlappa and the plaintiffs herein did not have any right over the suit schedule property clearly establishes that the claim of the plaintiffs in the present suit was also liable to be rejected. Under these circumstances, the appellants-defendant Nos.4 to 17 sought for dismissal of the suit.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021
19. During the pendency of the appeals, respondent Nos.1 to 7 have filed an application, I.A.No.1/2024 under Order 41 Rule 27 CPC for permission to adduce additional evidence by way of additional documents. The said application is opposed by the appellants, who have sought for dismissal of the application.
20. I have heard Sri. B.K. Sampath Kumar, learned Senior counsel along with Sri. M.N. Umesh, learned counsel appearing for the appellants and Sri. Ashok Haranahalli, learned Senior counsel along with Sri. K.M. Prakash, learned counsel appearing for respondent Nos.1 to 7 and perused the material on record.
21. In addition to reiterating the various contentions urged in the appeals and referring to the material on record, learned Senior counsel and learned counsel for the appellants submitted that the impugned judgments and decrees passed by the Trial Court were illegal and contrary to law and facts and the same deserved to be set aside and the suit in O.S.No.7568/2006 filed by the plaintiffs was liable to be dismissed, while the suit in O.S.No.7241/2009 filed by the appellants deserves to be decreed in their favour. It was also submitted that there was no merit in the application, I.A.No.1/2024 filed by the plaintiffs/respondent Nos.1 to
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 7 under Order 41 Rule 27 CPC and the same was liable to be dismissed.
In support of their submissions, learned Senior counsel placed reliance upon the following decisions:
i. Dahiben v. Arvindbhai Kalyanji Bhanusali -
(2020) 7 SCC 366.
ii. Eureka Builders v. Gulabchand - (2018) 8 SCC
67. iii. Prahlad Pradhan v. Sonu Kumhar - (2019) 10 SCC 259.
iv. A. Subramanian v. R. Pannerselvam - (2021) 3 SCC 675.
22. Per contra, learned Senior counsel for the respondents would support the impugned judgments and decrees and submit that there is no merit in the appeals and that the same are liable to be dismissed. It is also submitted that I.A.1/2024 filed by the respondents for additional evidence deserves to be allowed.
23. The following points arise for consideration in the present appeals;
(i) Whether the Trial Court was justified in coming to the conclusion that the plaintiffs had proved that the sale deed dated 02.02.2005 executed by the plaintiffs in favour of defendant Nos.1
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 to 3 was liable to be declared as null and void and not binding upon the plaintiffs?
(ii) Whether the Trial Court was justified in coming to the conclusion that the plaintiffs had proved that they are the absolute owners in lawful and peaceful possession and enjoyment of the suit schedule property and that the appellants-defendant Nos.4 to 17 did not have title or possession over the suit schedule property?
(iii) Whether I.A.No.1 of 2024 filed by respondent Nos.1 to 7 under Order 41 Rule 27 CPC for permission to adduce additional evidence deserves to be allowed?
(iv) Whether the impugned judgments and decrees passed by the Trial Court warrant interference in the present appeals? Re. Point No.1:
24. A perusal of the material on record will indicate that it is the specific contention of the plaintiffs that they are the children and grand children of Late Kurlappa, who was the owner in possession and enjoyment of the suit schedule property, upon whose demise, the plaintiffs became the owners of the property. It is contended that the sale deed dated 02.02.2005 executed by the plaintiffs in favour of defendant Nos.1 to 3 was null and void for two
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 reasons viz., firstly, that defendant Nos.1 to 3 had not paid the entire sale consideration of Rs.45 Lakhs to the plaintiffs and had paid only Rs.2 Lakhs as on the date of the sale deed and secondly, the sale deed was vitiated, on account of coercion, fraud and misrepresentation played by the defendants upon the plaintiffs. In this context, a perusal of the impugned judgment and decree will indicate that the Trial Court has not recorded any finding as to how the sale deed was vitiated for the aforesaid two reasons and has proceeded to decree the suit without assigning cogent or valid reasons. It is well settled that non-payment of the entire sale consideration would not entail cancellation of a registered sale deed nor declaration that the sale deed is null and void as held by the Apex Court and this Court in various judgments including the judgment of the Apex Court in the case of Dahiben Vs. Aravindbhai Kalyanji Bhanusali - (2020) 7 SCC 326, wherein it was held as under:-
"Analysis and Findings
29. We have carefully perused the averments in the plaint read with the documents relied upon.
29.1. On a reading of the plaint and the documents relied upon, it is clear that the plaintiffs have admitted the execution of the registered sale deed dated 2-7-2009 in
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 favour of Defendant 1-Respondent 1 herein. Para (5) of the plaint reads as:
"(5) ... Thus, subject of the aforesaid terms the plaintiffs had executed sale deed selling the suit property to Opponent 1 vide sale deed dated 2-7-2009 bearing Sl.
No. 5158..."
29.2. The case made out in the plaint is that even though they had executed the registered sale deed dated 2-7-2009 for a sale consideration of Rs 1,74,02,000, an amount of only Rs 40,000 was paid to them. The remaining 31 cheques mentioned in the sale deed, which covered the balance amount of Rs 1,73,62,000 were alleged to be "bogus" or "false", and allegedly remained unpaid. We find the averments in the plaint completely contrary to the recitals in the sale deed dated 2-7-2009, which was admittedly executed by the plaintiffs in favour of Respondent 1. In the sale deed, the plaintiffs have expressly and unequivocally acknowledged that the entire sale consideration was "paid" by Defendant 1-Respondent 1 herein to the plaintiffs. 29.3. Clauses (3) and (4) of the sale deed are extracted hereinbelow for ready reference:
"Since the full amount of consideration of the sale as decided above, has since been paid by you, the vendees to we, the vendors of this sale deed, for which we the vendors of this sale deed acknowledge the same so, we or our descendants, guardian or legal heirs is to take any dispute or objection in future that such amount is not received, or is received less, and if we do so then, the same shall be void by this deed and, if any loss or damage occurs due to the same then, we the vendors of this sale deed and descendants, guardians, legal heirs of we, the vendors are liable to pay the same to you the vendees or your descendants, guardian, legal heirs and you can recover the same by court proceedings.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 (4) We the party of second part i.e. vendors of the sale deed since received full consideration on the above facts, the physical possession, occupancy of the land or the property mentioned in this sale deed has been handed over to you the vendee of this sale deed, and that has been occupied and taken in possession of the land or property mentioned in this sale deed by you the vendee of this sale deed by coming at the site and therefore, we the vendors of this sale deed have not to raise any dispute in the future that the possession of the land or the property has not been handed over to you. ..."
29.4. The sale deed records that the 36 cheques covering the entire sale consideration of Rs 1,74,02,000 were "paid" to the plaintiffs, during the period between 7-7- 2008 to 2-7-2009.
29.5. If the case made out in the plaint is to be believed, it would mean that almost 99% of the sale consideration i.e. Rs 1,73,62,000 allegedly remained unpaid throughout. It is, however, inconceivable that if the payments had remained unpaid, the plaintiffs would have remained completely silent for a period of over five-and-half years, without even issuing a legal notice for payment of the unpaid sale consideration, or instituting any proceeding for recovery of the amount, till the filing of the present suit in December 2014. 29.6. The plaintiffs have made out a case of alleged non- payment of a part of the sale consideration in the Plaint, and prayed for the relief of cancellation of the sale deed on this ground.
29.7. Section 54 of the Transfer of Property Act, 1882 provides as under:
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 "54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised."
The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part-paid and part- promised". Price thus constitutes an essential ingredient of the transaction of sale.
29.8. In Vidhyadhar v. Manikrao [Vidhyadhar v. Manikrao, (1999) 3 SCC 573] this Court held that the words "price paid or promised or part-paid and part-promised" indicates that actual payment of the whole of the price at the time of the execution of the sale deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The non- payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a "sale", the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.
29.9. In view of the law laid down by this Court, even if the averments of the plaintiffs are taken to be true, that the
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the sale deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered sale deed. We find that the suit filed by the plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order 7 Rule 11(a).
29.10. The plaintiffs have averred in the plaint that the period of limitation commenced on 21-11-2014, when they obtained a copy of the index of the sale deed dated 2-7- 2009, and discovered the alleged fraud committed by Defendant 1. The relevant extract from the plaint in this regard is set out hereinbelow:
"(7) ... Not only that but also, on obtaining the copy of the index of the sale deed of the acts committed by Opponents 1, 4, 5 and on obtaining the certified copy of the sale deed, we the plaintiffs could come to know on 21-11-2014 that, Opponent 1 had in collusion with Opponents 4, 5 mentioned the false cheques stated below in the so-called sale deed with intention to commit fraud and no any consents of we, the plaintiffs have also been obtained in that regard. The said cheques have not been received to we the plaintiffs or no any amounts of the said cheques have been credited in accounts of we the plaintiffs. Thus, the cheques which have been mentioned in the agreement caused to have been executed by Opponent 1, the false cheques have been mentioned of the said amounts. Not only that but also, the agricultural land under the suit had been sold by Opponent 1 to Opponent 2 Dillipbhai Gordhanbhai Sonani and Opponent 3, Laljibhai Gordhanbhai Sonani on 1-4-2013 for Rs 2,01,00,000 as if the said sale deed was having clear title deeds. On taking out the copy of the said sale deed with seal and signature on 21-11-
2014, it could come to the knowledge of we, the plaintiffs. We, the plaintiffs have not done any signature or witness on the said agreement. The said agreement is not binding to we, the plaintiffs. Since the said agreement is
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 since null, void and invalid as well as illegal, therefore, no court fee stamp duty is required to be paid by we, the plaintiffs on the said agreement and for that we, the plaintiffs rely upon the judgment of the Supreme Court in Suhrid Singh v. Randhir Singh [Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 : (2010) 4 SCC (Civ) 585] . ..."
29.11. The plea taken in the plaint that they learnt of the alleged fraud in 2014, on receipt of the index of the sale deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit. 29.12. On a reading of the plaint, it is clear that the cause of action arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth. 29.13. The conduct of the plaintiffs in not taking recourse to legal action for over a period of 5 and ½ years from the execution of the sale deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an afterthought. The plaintiffs apparently filed the suit after the property was further sold by Respondent 1 to Respondents 2 and 3, to cast a doubt on the title of Respondent 1 to the suit property." 24.1 In the instant case, in the light of the specific contention urged by the plaintiffs that the total consideration was fixed by both parties as Rs.45 Lakhs, out of which only Rs.2 Lakhs had been paid by defendant Nos.1 to 3 to the plaintiffs, the said
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 circumstance of non-payment of the entire sale consideration could not have been made the basis by the Trial Court to declare the sale deed as null and void and not binding upon the plaintiffs and consequently, the said findings recorded by the Trial Court deserve to be set aside.
24.2 The Trial Court also failed to consider and appreciate that the specific contention of the plaintiffs that a cheque for Rs.10,50,000/- had been handed over by defendant Nos.1 to 3 to them towards portion of the balance sale consideration had not been proved/established by them by producing any evidence in this regard; so also, in the light of the undisputed recitals contained in the sale deed dated 02.02.2005, which recites/states that the defendant Nos.1 to 3 had paid the entire sale consideration of Rs.8,80,000/- to the plaintiffs on that day before the Sub-Registrar, who had made the requisite endorsement in this regard on the sale deed, the said contention of the plaintiffs regarding non-receipt of the alleged entire sale consideration of Rs.45 Lakhs cannot be accepted; at any rate, in the absence of any pleadings as regards how oral evidence contrary to the recitals of the sale deed dated 02.02.2005 was permissible/admissible to be adduced by the plaintiffs in terms of Sections 91 and 92 of the Indian Evidence Act,
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 I am of the view that the said contention of the plaintiffs regarding non-payment of the entire sale consideration based on oral evidence is not only impermissible/unsustainable in law, but also cannot be accepted in the facts and circumstances of the instant case. Under these circumstances, I am of the view that the Trial Court clearly fell in error in coming to the conclusion that the sale deed dated 02.02.2005 was null and void and not binding upon the plaintiffs on the ground that the entire sale consideration of Rs.45 Lakhs had not been paid by defendant Nos.1 to 3 to them and consequently, the said finding recorded by the Trial Court deserves to be set aside.
24.3 The Trial Court also failed to consider and appreciate that having put forth a specific/specious plea that the sale deed dated 02.02.2005 was vitiated on account of non-payment of entire sale consideration, the plaintiffs were estopped from putting forth mutually inconsistent, contradictory and destructive pleas of coercion, fraud and misrepresentation, which are also inter-se mutually destructive to one another; in this regard, a perusal of the plaint will indicate that necessary/requisite material particulars and details as regards the alleged coercion, fraud and misrepresentation are conspicuously absent in the pleadings and
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 as such, in the absence of requisite/essential pleadings, the claim of the plaintiffs was liable to be rejected.
24.4 The Trial Court also failed to consider and appreciate that except the self-serving and interested testimony of PW.1, no other legal or acceptable evidence had been placed by the plaintiffs to establish the allegations of coercion, fraud and misrepresentation pleaded by them; PW.2, who was one of the witnesses to the sale deed at Ex.P-1 dated 02.02.2005 was examined by the plaintiffs in support of this contention; in this context, it is relevant to state that after remand by this Court in RFA No.142/2010 dated 10.07.2012, PW.1 was recalled at the instance of appellants/defendants and was cross examined by them, which was completed on 18.09.2015, pursuant to which, the matter was posted on 09.10.2015 for further evidence of the plaintiffs i.e., cross-examination of PW.2 by the appellants-defendants, who had obviously not cross examined him earlier before remand, since they were not originally arrayed as party/defendants to the suit. However, PW.2 remained absent on 09.10.2015 as well as on the next date of hearing i.e., 03.11.2015, as a result of which, his evidence was closed though a request for adjournment was made by the plaintiffs and the matter was adjourned to 26.11.2015 and
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 subsequently, no steps were taken by the plaintiffs to recall PW.2 and tender him for cross-examination by the appellants/defendants and instead the appellants adduced oral and documentary evidence on their behalf, pursuant to which, the Trial Court proceeded to pass the impugned judgment and decree. It is therefore clear that since PW.2 had not been tendered for cross- examination by the plaintiffs, his evidence was bound to be eschewed and discarded and absolutely no reliance can be placed on the evidence of PW.2 and consequently, the Trial Court clearly misdirected itself in placing reliance upon the evidence of PW.2 to uphold the claim of the plaintiffs, which deserves to be rejected on this ground also.
24.5 The Trial Court also failed to consider and appreciate the various discrepancies, admissions, inconsistencies and contradictions in the pleadings and evidence of the plaintiffs which clearly establishes that they had not proved that the sale deed dated 02.02.2005 executed by them in favour of defendants 1 to 3 was vitiated on account of coercion, fraud and misrepresentation and the impugned judgment and decree passed by the trial court deserves to be set aside on this score also; in other words, the material on record conclusively establishes that the registered sale
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 deed dated 02.02.2005 executed by the plaintiffs in favour of defendants 1 to 3 in respect of the suit schedule property was perfectly legal, valid, correct and proper document and the claim of the plaintiff in this regard was liable to be rejected.
24.6 The Trial Court also failed to consider and appreciate the well settled principle of law as enunciated by the Apex Court and this Court in various judgments including the case of Suhrid Singh vs. Randhir Singh - (2010)12 SCC 112, to the effect that the plaintiffs being executants / parties to the impugned sale deed dated 02.02.2005, it was incumbent upon them to seek cancellation of the sale deed by invoking Section 31 of the Specific Relief Act and the relief of declaration without seeking cancellation in relation to the sale deed was neither permissible / maintainable and the said issue / question strikes at the very maintainability of the suit which was liable to be dismissed in limine for want of appropriate prayers / reliefs for cancellation of the sale deed; viewed from this angle also, the suit for declaration simpliciter without seeking cancellation of the sale deed dated 02.02.2005 was not maintainable and the same was liable to be dismissed and failure on the part of the trial court to appreciate this has resulted in erroneous conclusion.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 24.7 The aforesaid facts and circumstances clearly establish that the trial court misdirected itself in upholding the claim of the plaintiffs and passing a decree in their favour declaring that the sale deed dated 02.02.2005 executed by them in favour of the defendants 1 to 3 was null and void and not binding upon the plaintiffs by improper and erroneous appreciation of the material on record and consequently, the impugned judgments and decrees deserve to be set aside.
Point No.1 is accordingly answered in favour of the appellants / defendants 4 to 17 and against plaintiffs / respondents 1 to 7 by holding that the plaintiffs had failed to prove that the sale deed dated 02.02.2005 executed by them in favour of defendant Nos.1 to 3 was null and void and not binding upon the plaintiffs in relation to the suit schedule property.
Re-Point No.2:-
25. A perusal of the material on record will indicate that it is the specific contention of the plaintiffs that the sale deed dated
02.02.2005 was null and void and not binding upon them and as such, they continued to remain the absolute owners in possession and enjoyment of the suit schedule property, despite execution of
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 the said sale deed. At the outset, it is necessary to state that while dealing with Point No.1 supra, I have already come to the conclusion that the said sale deed dated 02.02.2005 is a perfectly legal and valid document executed and registered in accordance with law and the challenge to the same is liable to be rejected and the impugned judgments and decrees passed by the trial court deserve to be set aside; so also, the plaintiffs have not placed any legal or acceptable evidence to establish that they are in lawful and peaceful possession and enjoyment of the suit schedule property; it follows there from that in the face of the valid and legal sale deed executed by the plaintiffs in favour of defendants 1 to 3 as stated hereinbefore, the plaintiffs cannot have any claim, much less, right, title, interest or possession over the suit schedule property and consequently, the claim of the plaintiffs is liable to be rejected and the impugned judgment and decree passed by the trial court declaring that the plaintiffs are the owners in possession and enjoyment of the suit schedule property deserves to be set aside.
25.1 A perusal of the material on record discloses that it is the specific contention of the plaintiffs that late Kurlappa owned and possessed 2 acres 10 guntas of land in Sy.No.522 having been granted the same vide order dated 13.02.1959 passed by the
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 Special Deputy Commissioner. It is also contended that the suit schedule property measuring 39 guntas is part and parcel of the aforesaid total extent of 2 acres 10 guntas and that upon the demise of Kurlappa in 1990, the plaintiffs succeeded to the suit schedule property. The said contention regarding ownership and possession of 2 acres 10 guntas in Sy.No.522 having been specifically disputed and denied by the appellants - defendants 4 to 17, it was incumbent upon the plaintiffs to establish / prove that the said late Kurlappa was indeed granted 2 acres 10 guntas; however, neither the said alleged grant order nor any other legal or acceptable evidence viz., revenue records, survey records etc., are produced by the plaintiffs to establish the said contention; in fact, a perusal of the said sale deed dated 02.02.2005 executed by plaintiffs in favour of defendants 1 to 3 also does not contain any recital to the effect that Kurlappa owned and possessed 2 acres 10 guntas in Sy.No.522 and that the suit schedule property measuring 39 guntas was part and parcel of the said extent of land. Under these circumstances, I am of the view that the trial court failed to appreciate that the plaintiffs had failed to establish their title and possession over the suit schedule property and that the claim of the plaintiffs was liable to be rejected.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 25.2 The trial court also failed to consider and appreciate that the material on record clearly establish that the total extent of land in Sy.No.522 was only 1 acre 18 guntas originally owned and possessed by Kurlappa which he sold by way of a registered sale deed dated 12.02.1970 under Ex.D6 in favour of Smt.Lakshmamma; the said Lakshmamma sold 1 acre in favour of Smt.Siddamma vide registered sale deed dated 18.04.1974, while the remaining 18 guntas was re-sold / re-conveyed by Smt.Lakshamma in favour of Kurlappa vide registered sale deed at Ex.D7 dated 19.04.1974; subsequently, even the said 18 guntas was sold by the said Kurlappa in favour of Sheikh Ali Sab vide registered sale deed dated 09.01.1975 produced as Ex.D17 before the trial court. The cumulative effect of all aforesaid sale deeds / sale transactions is sufficient to come to the conclusion that not only did Sy.No.522 comprise of only 1 acre 18 guntas, but also that Kurlappa had sold / alienated the entire extent in favour of Smt.Lakshmamma and Sheikh Ali Sab, pursuant to which, he did not retain any right, title, interest or possession over any portion of Sy.No.522, much less, the suit schedule property, as a result of which, the plaintiffs also did not acquire any right over the suit schedule property and their claim for declaration of title was liable
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 to be rejected and failure to appreciate this by the trial court has resulted in erroneous conclusion.
25.3 In the case of Eureka Builders vs. Gulab Chand - (2018) 8 SCC 67, it was held as under:-
"33. It is with these background facts of the case, we have to examine the question arising in these appeals as to whether the respondent-plaintiff was able to prove his subsisting title over the suit land on the date of filing of the suit and, if so, how, or in the alternative, whether the appellants (builder, firm and its partners) were able to prove the subsisting title of the original holders (three PATIL) over the suit land, if so, how.
34. In our considered opinion, the appellants have failed to substantiate the right, title and interest of the original holders (three Patil) in the suit land through whom they claim to derive interest in the suit land, whereas the respondent-plaintiff has been able to prove his subsisting right, title and interest in the suit land on the date of filing of the suit, out of which these appeals arise. The appellants, therefore, have no locus to claim any interest in the suit land.
35. It is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 other interest, which he himself does not possess in the tangible property.
36. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer.
37. In such eventuality and subject to any terms and conditions, if agreed between the parties, a buyer will have a right to claim refund of sale consideration from his seller, which he paid for purchase of the property under the law of contract. The reason is that the contract to purchase has failed and, therefore, the parties have to be restored back to their original positions, which existed at the time of execution of the contract."
25.4 The said judgment was followed by the Apex Court in its subsequent judgment in the case of Prahlad Pradhan v. Sonu Kumar - (2019) 10 SCC 259, wherein, it was held as under:-
5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. [Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191 : (2019) 2 SCC (Civ) 21; Narasamma v. State of Karnataka, (2009) 5 SCC 591 : (2009) 2 SCC (Civ) 582; Balwant Singh v. Daulat Singh, (1997) 7 SCC 137; Sawarni v. Inder Kaur, (1996) 6 SCC 223] As a consequence, merely because Mangal Kumhar's name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property.
6. The appellants have failed to adduce any evidence whatsoever, apart from the Survey Settlement of 1964 to establish that the suit property was the self-acquired property of Mangal Kumhar.
7. Since Mangal Kumhar did not have an exclusive right, title or interest in the suit property, his widow Etwari Kumharin was not legally competent to sell the suit property to the appellants, purporting to be the sole owner of the property. Reliance is placed on Eureka Builders v. Gulabchand [Eureka Builders v. Gulabchand, (2018) 8 SCC 67 : (2018) 4 SCC (Civ) 9] wherein this Court held : (SCC pp. 75-76, paras 35-36) "35. It is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.
36. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer."
8. It is pertinent to record that the other legal heirs of Mangal Kumhar i.e. his two daughters viz. Phuljhari and Babi, were not parties to the execution of the sale deed dated 22-10-1973. Etwari Kumharin was not entitled to execute the sale deed in question as the sole owner of the suit property. The two daughters of Mangal Kumhar were joined as pro forma defendants in the suit filed by the respondents herein. Summons were duly served upon the pro forma defendants. The pro forma defendants filed a common written statement wherein they have fully supported the case of the respondent-plaintiffs herein, and have prayed that the claims of the Plaintiffs are true, and that the suit is liable to be decreed. The said averments have been duly considered by both the trial court and the first appellate court, while decreeing the suit in favour of the respondent-plaintiffs herein.
9. The courts below have clearly held that the suit property was not the separate or self-acquired property of Mangal Kumhar. Furthermore, Etwari Kumharin had no exclusive right to execute the sale deed dated 22-10-1973 in favour of the appellants. The said sale deed is not legal or binding upon the respondent-plaintiffs herein and the pro forma defendants."
25.5 The trial court committed an error in failing to appreciate that the plaintiffs had not adduced any legal or
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 acceptable evidence to establish their alleged possession and enjoyment over the suit schedule property; in this context, it is relevant to state that nothing is produced to show that the revenue records, survey records etc., in relation to the suit schedule property stood in the name of Kurlappa during his life time; so also, even after the demise of Kurlappa in 1990, plaintiffs have not produced any material to establish their alleged possession and enjoyment over the suit schedule property; in this regard, except an attempt to get the khata changed to their names just prior to institution of the suit, the plaintiffs failed to place any material to substantiate their possession and enjoyment over the suit schedule property. On the other hand, the unimpeached, uncontroverted and unchallenged evidence of the appellants is sufficient to come to the conclusion that the claim of the plaintiffs was liable to be rejected. Under these circumstances also, the impugned judgments and decrees passed by the trial court deserves to be set aside.
25.6 A perusal of the impugned judgments and decrees will indicate that the trial court has upheld the claim of the plaintiffs and rejected the claim of the defendants by pointing out non-existent discrepancies in the pleadings and evidence of the defendants; in this context, the trial court failed to appreciate the well settled
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 principle of law that it is for the plaintiffs to prove his claim on his own by standing on their own legs and in a suit for declaration and possession, it was impermissible in law to rely upon the weaknesses of the defence put forth by the defendants without independently establishing their title and possession; as stated supra, the plaintiffs having failed to establish their alleged title and possession over the suit schedule property, the trial court clearly fell in error in decreeing the suit without appreciating the material on record and the impugned judgments and decrees deserve to be quashed.
25.7 In the case of A.Subramanian vs. R.Pannerselvam (supra), the Apex Court held as under:-
"21. In the suit in that case, stand was taken by the respondent that the suit be treated under Section 6 of the Specific Relief Act, 1963. This Court repelled the above submission. In para 9, the plea of the respondent based on Section 6 was rejected by this Court by making the following observation : (Nagar Palika case [Nagar Palika v. Jagat Singh, (1995) 3 SCC 426] , SCC p. 432) "9. We fail to appreciate as to how the principle of Section 6 of the Specific Relief Act, 1963 can be applied in the facts and circumstances of the present case. The respondent, who was the plaintiff, never alleged that he had been dispossessed by the appellant Municipal Committee. On the other hand, he claimed to be the owner of the land in question and asserted that he was in possession over the same. He sought for permanent
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 injunction restraining the appellant from interfering with his possession. Both the parties led evidences in support of their respective claims including on the question of title."
22. In the present case, the possession of the plaintiff was upheld by the High Court on two main reasons. Firstly, the defendant of the suit, Subramanian had earlier filed a suit for recovery of possession and declaration for the same property against Ghani Sahib who was manager of the property which suit was dismissed and recovery of possession having been rejected, the defendant cannot even make a plea to be in possession and secondly, the defendant in his cross-examination himself admitted that the plaintiff after purchase had demolished the construction. The High Court in para 13 of its judgment has extracted the relevant excerpts from the statement of DW 1's deposition during cross-examination. In para 13 of the judgment, after quoting from deposition of DW 1, the High Court held : (R. Pannerselvam case [R. Pannerselvam v. A. Subramanian, 2009 SCC OnLine Mad 835] , SCC OnLine Mad) "13. ... A bare perusal of those excerpts would clearly display as to how DW 1 (D-1) went to the extent of half- heartedly admitting partly the reality and denied the rest of the truth, without having any responsibility to speak truth. For the purpose of achieving success in the litigative battle, by hook or crook, D-1 went to the extent of pleading before this Court quite antithetical to the judgments and decrees in OS No. 524 of 1987 and in AS No. 297 of 1994 (Exts. A-3, A-5, A-6 and A-7) that the previous suit was not for recovery of possession of the suit property. But, those judgments and decrees would clearly indicate that the earlier suit was filed by D-1 and his three children for declaration and recovery of possession of the entire property including the suit property. In the said previous suit, the first defendant and his legal heirs contended that they derived title from their original propositus Rangarajulu Naidu and obtained the
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 suit property under a power deed and they failed in both the courts. As such, that is much more than sufficient to hold that the defendants are not in possession of the suit property herein."
23. The High Court was also right in its view that it is a common principle of law that even trespasser, who is in established possession of the property could obtain injunction. However, the matter would be different, if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief. The High Court has rightly observed that a bare perusal of the plaint would demonstrate that the plaintiff has not narrated anything about the title dispute obviously because of the fact that in the previous litigation, DW 1 failed to obtain any relief. The High Court has rightly observed that the principle that the plaintiff cannot seek for a bare permanent injunction without seeking a prayer for declaration is not applicable to the facts of the present case.
24. We may also refer to judgment of this Court in Nair Service Society Ltd. v. K.C. Alexander [Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165] , where a three-Judge Bench of this Court presided by Hidayatullah, J. has reiterated the principle that possession is good against all but the true owner. The principle enumerated in judgment of Judicial Committee in Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] , was noticed in para 17 to the following effect : (Nair Service Society Ltd. case [Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165] , AIR pp. 1173-174)
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 "17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] , to discover if the principle that possession is good against all but the true owner has in any way been departed from. Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] reaffirmed the principle by stating quite clearly : (AC p. 79).
'It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.'"
25. In para 22 of the judgment, the Bench approved the dictum in Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] .
25.8 In the impugned judgments and decrees, the trial court has placed / given undue importance to certain alleged discrepancies in the identity of the suit schedule property; in this regard, it is pertinent to note that there was absolutely no dispute between the parties in relation to identity or location of the suit schedule property; in fact, the appellants had placed sufficient material in the form of evidence of DW-1 and documentary evidence at Exs.D1 to D100, all of which, cumulatively established
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 that Smt.Siddamma who had purchased 1 acre in Sy.No.522 vide sale deed dated 18.04.1974 had also purchased the adjacent land in Sy.No.523 measuring 1 acre and had formed a residential layout comprising of sites which had been purchased by the appellants who had become the absolute owners in lawful and peaceful possession and enjoyment of the suit schedule property. It is also relevant to state that neither in their pleadings nor evidence did the plaintiffs dispute the identity or location of either the suit schedule property or the portions thereof purchased by the appellants. Under these circumstances, I am of the view that the trial court clearly misdirected itself in upholding the claim of the plaintiffs and rejecting the claim of the appellants by placing reliance on extraneous considerations and based on surmises and conjectures warranting interference by this Court in the present appeals.
25.9 The trial court also erred in failing to appreciate that it is well settled that a suit for bare declaration without seeking appropriate consequential relief of possession was neither maintainable nor permissible under Section 34 of the Specific Relief Act; as stated supra, the plaintiffs having failed to prove their possession and enjoyment of the suit schedule property, it was incumbent upon them to seek the consequential relief of
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 possession as required under Section 34 of the Specific Relief Act and in the absence of such a consequential relief / prayer, the present suit in O.S.No.7568/2006 was not maintainable and was liable to be dismissed on this ground alone.
25.10 The trial court also failed to appreciate that one Smt.M.V.Nagarathna claiming to be a purchaser from defendants 1 to 3 had instituted a suit in O.S.No.1150/2006 against appellant No.1 for permanent injunction claiming under a sale deed dated 02.12.2005 alleged to have been executed in her favour by them;
the said suit having been contested by the appellant No.1 came to be dismissed, in which, the trial court came to the categorical conclusion that Kurlappa did not retain any portion of land in Sy.No.522 and consequently neither his heirs, the plaintiffs herein nor the purchasers, the defendants 1 to 3 herein who had executed the said sale deed dated 02.12.2005 in favour of Smt.M.V.Nagarathna had any right, title, interest or possession over the suit schedule property, as a result of which, the said suit was dismissed by the trial court vide judgment and decree dated 24.01.2008, which has attained finality and on this ground also, the claim of the plaintiffs was liable to be rejected.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 25.11 The trial court also failed to appreciate that the appellant No.1 had preferred W.P.No.61342/2016 before this Court against the plaintiffs herein arising out of an interim order passed in the present O.S.No.7568/2006 and the said writ petition was disposed of vide final order dated 19.07.2019 by placing reliance upon the aforesaid judgment and decree passed in O.S.No.1150/2006 dated 24.01.2008 by holding as under:-
"Petitioner being the defendant no.4 in the suit for declaration & possession filed by the contesting respondents herein in O.S.No.7568/2006 is invoking writ jurisdiction of this Court for assailing the order dated 28.10.2016, a copy whereof is at Annexure-A, whereby the learned VI Addl. City Civil Judge, Bengaluru having entertained the plaintiffs application in I.A. No.7 has directed notice to the persons sought to be impleaded as defendants thereby. The respondents after service of notice having entered appearance through their counsel, resist the writ petition.
2. The learned counsel for the petitioner attacks the impugned order stating that the suit is of the year 2006; it is founded on fraud, duplicity and collusion; the trial of the suit having taken place, the case was posted for arguments; the subject application in I.A.No.7 has been belatedly filed on 02.09.2016; it is designed to protract the suit proceedings to the great prejudice of these petitioners; without adverting to all these facts
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 urged by the petitioner in his objections to I.A., the trial Court mindlessly has directed notice and therefore there is error apparent on the face of the record warranting indulgence of this Court.
3. Learned counsel for the petitioner also draws attention of the Court to the observations and findings made by Court in the earlier O.S.No.1150/2006 which have been reproduced in para 13 of his Written Statement, a copy whereof is at Annexure-E; this judgment and decree dismissing the same having attained finality prima facie shows that the respondent- plaintiff did not have any litigable interest in the property at all and that the persons sought to be impleaded now, have nothing to do with the suit; even this has not been adverted to by the court below while issuing notice on the impleading applicants constitutes yet another error apparent on the face of the record. Lastly, Mr.Shaik Ali Sab who is sought to be impleaded, is dead and gone long ago and despite urgement.
4. Learned counsel appearing for the contesting respondents per contra submits in justification of the impugned order contending that the order issuing notice on the impleading application is not amenable to challenge in the writ jurisdiction; the plaintiffs being dominus litis are entitled to add any person of their choice to the array of parties; the Court below would take decision on the said application after hearing the proposed defendants and also the petitioner herein; no fault can be laid at the threshold of the trial court
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 warranting indulgence of this Court. So contending, he seeks dismissal of the writ petition.
5. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the petition papers.
6. The respondent happens to be the plaintiffs in the suit in O.S.7568/2006; the said suit is for declaration & possession of the subject property; the issues having been framed, trial has been accomplished; at this stage the respondent plaintiffs have moved this application on 02.09.2016 seeking impleadment of one Smt.A.Lakshmamma, and another Sri Shaik Ali Sab who is dead and gone; so far as dead person is concerned even the question of issuing notice does not arise. The said application could not have been entertained after a decade of filing of the suit; the application even otherwise also does not merit consideration because it lacks the material particulars as to why and how these persons are the necessary or proper parties to the suit in terms of the parameters prescribed by the Apex Court in the case of RAZIA BEGUM VS. SAHEBADI ANWAR BEGUM AND OTHERS AIR 1958 SC 886.
7. The above apart, in O.S.No.1150/2006 filed by Smt.M.V.Nagarathna wherein the petitioner herein was one of the defendants, the Court after full-fledged trial dismissed the suit with the following observation:
"In this case, even though the plaintiff claims that her vendor Smt. Baby Balakrishana had purchased portion of the suit schedule property
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 from the legal representative of Koorlappa, the documentary evidence produced by the defendants clearly shows that Koorlappa had not retained any land in Sy. No. 522 of Kallakere Village. The plaintiff has produced Exhibit P-2 to show that Koorlappa had sold 1 acre 17 guntas of land in Sy. No. 522 to Smt. A. Lakshmamma under Sale Deed dated 12.02.1970. This fact is not disputed by the defendants. The defendants in their pleadings have contended that subsequent to the sale of 1 acre 18 guntas of land by Koorlappa to Smt. A. Lakshmamma, the said A. Lakshmamma sold back land measuring 18 guntas to Koorlappa under sale deed dated 19.04.1974. The defendants have produced certified copies of sale deed executed by A. Lakshmamma in favour of Koorlappa and the document is marked as Ex.D2 and the document shows that Koorlappa had purchased 18 guntas of land under a sale deed dated 19.04.1974 . The defendants have also contended that subsequent to purchase of 18 guntas of land at Kallikere village under sale deed dated 19.04.1974. Koorlappa again sold that land to Mr. Sheik Ali Sab under a registered sale deed dated 09.01.1975. The defendants have produced certified copy of the sale deed dated 19.04.1975 and the same is marked as Ex.D4. It is significant to note that the plaintiff has suppressed the fact that Koorlappa had sold 18 guntas of land to Mr. Sheik Ali Sab through sale deed dated 09.01.1975 after he repurchased that 18 guntas of land from Smt. A Lakshmamma. Therefore, the documentary evidence produced by the defendants clearly shows that Koorlappa was not left with any land in Survey No.522 of Kallikere village. In spit of that the documentary evidence produced by the plaintiff discloses that plaintiff's vendor had purchased land measuring 39 guntas form the legal representatives of Koorlappa under the sale deed dated 02.02.2005. As per Ex.P.4 since koorlappa had not retained any land in survey no.522 of kallikere village, his legal representative could not have sold land in that survey number to the plaintiff's vendor. Hence, the claim of plaintiff that her vendor had purchased land from the legal representatives of Koorlappa and subsequently she purchased that land from Smt. Baby Balakrishnan
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 and she was put in possession of that portion of land cannot be believed and accepted."
8. The plaintiffs are claiming their interest under one Mr.Koorlappa about whom the above observations of the court in the earlier suit relate; the said observations also mention about the said Shaik Ali Sab and Smt.A.Lakshmamma as well; even this has not been adverted to by the Court below though that has been specifically contended at para 13 of the Written Statement itself.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the court to hear and dispose of the suit expeditiously.
No costs."
25.12 The aforesaid order passed by this Court is yet another circumstance in favour of the appellants and which would militate against the claim of the plaintiffs which is liable to be rejected by setting aside the impugned judgments and decrees.
25.13 The aforesaid facts and circumstances clearly establish that the trial court misdirected itself in upholding the alleged title and possession of the plaintiffs and passing a decree in their favour by improper and erroneous appreciation of the material on record and consequently, the impugned judgments and decrees deserve to be set aside.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 Point No.2 is accordingly answered in favour of the appellants / defendants 4 to 17 and against plaintiffs / respondents 1 to 7 by holding that the plaintiffs had failed to prove that they were the absolute owners in lawful and peaceful possession and enjoyment of the suit schedule property.
Re-Point No.3:
26. During the pendency of the present appeals, the respondents have filed an application I.A.1/2024 under Order 41 Rule 27 CPC for permission to produce additional documents as under:-
1. Certified copy of the Inam Abolition Petition dated 01.12.1956.
2. Certified copy of the IL and RR.
3. Certified copy of the statement of K.S. Venkataramaiah and K.S. Rajaram dated 28.08.1958.
4. Certified copy of the report submitted by Special Tahsildar for Inam Abolition.
5. Copy of the RTC standing in the name of deceased respondent No.1, Smt. Nanjamma(10).
6. Copy of the RTC standing in the name of respondent No.4.
7. Copy of the MR standing in the name of respondent No.4.
26.1 The said application is opposed by the appellants.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 26.2 In the Affidavit filed in support of the said application, it is contended by the respondents - plaintiffs that the said documents established that late Kurlappa was granted land bearing Sy.No.522 measuring 2 acres 10 guntas; however, a perusal of the said documents is sufficient to come to the conclusion that the said claim of the plaintiffs is clearly belied / falsified by the very same documents which indicate that the said Kurlappa was not granted any portion of Sy.No.522; on the other hand, Kurlappa was the respondent in the said proceedings before the Special Amaldar of Inams Abolition and the claim of the applicants therein was rejected without any grant being made in favour of Kurlappa. It is therefore clear that the said documents at Sl.Nos. 1 to 4 of the list of documents supra, are neither necessary nor relevant / material for adjudication of the present appeals. So also, the remaining documents at Sl.Nos.5, 6 and 7 are mere revenue records being post litem documents which have come into existence after institution of the suit in the year 2006 and consequently, even these documents are neither necessary nor relevant / material for adjudication of the present appeals.
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 26.3 Under these circumstances, it is clear that neither valid nor sufficient ground has been made out by respondents 1 to 7 - plaintiffs for grant of permission to produce additional evidence as sought for in I.A.No.1/2024 and as such, the said application is liable to be rejected.
Point No.3 is also answered in favour of the appellants and against respondents 1 to 7 by holding that I.A.1/2024 is liable to be rejected.
Re-Point No.4:
27. While dealing with Point Nos.1 and 2, I have already come to the conclusion that the claim of the plaintiffs that the sale deed dated 02.02.2005 executed by them in favour of defendants 1 to 3 is null and void and not binding upon them as well as the claim of the plaintiffs that they are the absolute owners in possession and enjoyment of the suit schedule property are liable to be rejected. I have also come to the conclusion that the application for additional evidence, I.A.1/2024 filed by the plaintiffs is liable to be rejected. As stated earlier, the trial court has committed several grave and serious error of law and fact while upholding the claim of the plaintiffs and consequently, the impugned judgment and decree
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 passed in O.S.No.7568/2006 filed by the respondents 1 to 7 - plaintiffs against the appellants and other defendants deserve to be set aside and the said suit is liable to be dismissed. So also, the suit in O.S.No.7241/2009 filed by the appellants herein for permanent injunction in relation to the very same suit schedule property against the respondents 1 to 10 deserves to be decreed in favour of the appellants against the said respondents by setting aside the impugned judgment and decree also.
Point No.4 is accordingly answered in favour of the appellants and against respondents 1 to 7.
28. In the result, I pass the following:-
ORDER
(i) RFA No.106/2021 and RFA No.20/2021 are hereby allowed.
(ii) The impugned judgment and decree dated 08.12.2020 passed in O.S.No.7568/2006 is hereby set aside and the said suit is dismissed.
(iii) RFA No.1539/2013 is hereby allowed and the impugned judgment and decree dated 03.07.2013 passed in
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NC: 2024:KHC:17069 RFA No. 106 of 2021 C/W RFA No. 1539 of 2013 RFA No. 20 of 2021 O.S.No.7241/2009 is hereby set aside and the said suit is decreed in favour of the appellant - plaintiff.
Sd/-
JUDGE Srl.