Karnataka High Court
Khajamiyan S/O Abdul Gaffor Sab Ors vs Nagappa S/O Shankreppa Meke on 4 August, 2023
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NC: 2023:KHC-K:6183
RSA No. 7368 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7368 OF 2011 (DEC/INJ)
BETWEEN:
1. KHAJAMIYAN S/O ABDUL GAFFOR SABKHADEEM
AGE:40 YEARS
OCC: AGRIL.
R/O RAJESHWAR
TQ. B.KALYAN
2. RABBANI S/O ABDUL GAFFOR SAB
AGE:31 YEARS
OCC: AGRIL.
R/O: RAJESHWAR
TQ:B.KALYAN
Digitally signed
by SHILPA R 3. SUBANI S/O ABDUL GAFFOR SAB KHADEEM
TENIHALLI
AGE:29 YEARS
Location: HIGH
COURT OF OCC: AGRIL.
KARNATAKA
R/O : RAJESHWAR
TQ: B.KALYAN
4. KHASIMBEE
W/O ABDUL GAFFOR SAB KHADEEM
AGE:60 YEARS
OCC: HOUSEHOLD
R/O : RAJESHWAR
TQ: B.KALYAN
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NC: 2023:KHC-K:6183
RSA No. 7368 of 2011
5. MOHD. PASHAMIYAN
S/O MOHD KHADIM
AGE:MAJOR
OCC: AGRIL.
R/O : RAJESHWAR
TQ. B.KALYAN
...APPELLANTS
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
NAGAPPA S/O SHANKREPPA MEKE
AGE:MAJOR
OCC: WEAVER
R/O: RAJESHWAR
TQ: RAJESHWAR TQ. B. KALYAN DIED BY LRS;
1A) SRIDEVI W/O LATE NAGAPPA MEKE
AGED ABOUT 65 YEARS
OCC: WORKING AT KHANWADI
BHANDRA MARKET, BASAVAKALYAN
1B) SHANKAR MEKE S/O LATE NAGAPPA MEKE
AGED ABOUT: 45 YEARS
OCC: PRIVATE WORK
NOW WORKING AT SHIVA HOTEL
BHANDRA MARKET, BASAVAKALYAN
BOTH R/O R.R.NO.7921, TAJ COLONY
NEAR ATA GIRANI, BASAVAKALYAN-58327
...RESPONDENTS
(BY SRI. SACHIN M MAHAJAN, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO ALLOW
ABOVE REGULAR SECOND APPEAL AND SET ASIDE IMPUGNED
JUDGMENT AND DECREE DATED 03.08.2011 PASSED BY DIST.
JUDGE ADHOC & PRESIDING OFFICER, FAST TRACK COURT,
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NC: 2023:KHC-K:6183
RSA No. 7368 of 2011
BASAVAKALYAN IN RA NO.254/2010 AND DISMISS THE SUIT
OS NO.66/1997 DATED 09.10.2006 PASSED BY CIVIL JUDGE
(J.D.) AND JMFC AT BASAVAKALYAN FILED BY RESPONDENT,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal by the defendants feeling aggrieved by the judgment and decree dated 03.08.2011 in RA No.254/2010 on the file of District Judge, Adhoc and Fast Track at Basavakalyan reversing the judgment and decree dated 09.10.2006 in OS No.66/1997 on the file of Civil Judge (Jr.Dn.) and JMFC at Basavakalyan.
2. The following facts are not in dispute.
i) The respondent - plaintiff filed suit for declaration that the sale deed dated 26.07.1968 is null and void and not binding on the plaintiff and for possession of the suit house bearing No.16-161. -4-
NC: 2023:KHC-K:6183 RSA No. 7368 of 2011
ii) That the father of the plaintiff was in need of money in the year 1968 and had taken a loan of Rs.1,600/- from defendant No.1 and a mortgage agreement dated 17.04.1968 was executed between the plaintiff, his father and the defendant No.1.
iii) The possession of the property was to be re- delivered to the plaintiff and his father as per the mortgage agreement dated 17.04.1968, once the father of the plaintiff repays the amount of Rs.1,600/- to the defendant No.1.
iv) That the alleged sale deed dated 26.07.1968 is said to have been executed by the plaintiff and his father in favour of defendant No.1.
v) O.S.No.200/1989 was filed by the defendant No.1 for specific performance of contract in respect of an agreement of sale dated 31.05.1984 in respect of the residential house with open space -5- NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 bearing Panchayat No.6-161 measuring East- West 12 yards, North-South measuring 33 yards and for declaration that the sale deed dated 05.05.1986 regarding some portion of open space of the suit house measuring East-West 37 feet x 6 feet and North-South 28 feet x 8 feet is null and void.
vi) That O.S.No.37/1997 filed by one Abdul Saleem, the nephew of the defendant No.1 and in the said suit it is stated for the first time that a registered sale deed dated 26.07.1968 has been executed by the plaintiff and his father in favour of defendant No.1 and his elder brother by name Pasha Miyan and in light of the partition between the brothers, the portion of the property has fallen to the share of Abdul Saleem.
vii) O.S.No.200/1989 sought for specific performance of contract and declaration was dismissed for default.
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viii) O.S.No.37/1997 also came to be dismissed for default.
ix) Cause of action as mentioned in the plaint arose when the defendants tried to take permission from the village Panchayat for construction over the suit property in the year 1997.
3. Heard Sri Shivakumar Kalloor, learned counsel for the appellants and Sri Sachin M. Mahajan, learned counsel for the respondent on the substantial questions of law framed by this court on 23.02.2012, which reads as under:
"1. Whether the First Appellate court was justified in reversing the Judgment of the Trial Court without considering Ex.P.1 and relevant revenue records made pursuant thereto?
2. Whether the First Appellate Court was justified in entertaining the claim of plaintiff of plaintiff in a time barred suit?
3. What order?"-7-
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4. Learned counsel for the appellants would urge the following grounds:
i. That the initial burden of proving that the registered sale deed dated 26.07.1968 is a forged document was on the plaintiff and the plaintiff having not discharged the said burden, the first appellate court was not justified in holding that the burden is upon the defendants to show that the plaintiff and his father had executed a regular sale deed in favour of the defendant No.1 and decreeing the suit of the plaintiff for declaration and possession. ii. That granting of relief of possession in respect of an un-registered mortgage agreement is barred by time, since plaintiff has not bought the suit within limitation as prescribed under law.
iii. In the absence of any evidence adduced by the plaintiff to show the non-existence of the fact in -8- NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 relation to the forged document about execution of the sale deed dated 26.07.1968, the first appellate court was not justified in decreeing the suit of the plaintiff.
iv. That the suit in O.S.No.200/1989 was in respect of a small portion measuring 37 x 6 feet and the first appellate court on the wrong assumption that the suit schedule property in the present suit and the property in the said suit in O.S.No.200/1989 pertains to the same measurement has erroneously decreed the suit of the plaintiff.
v. The first appellate court has mislead itself with the proposition about the presumption in law regarding validity of 30 years old document which invariably establishes a right in favour of defendant No.1.
vi. Merely denying the document stating that it is a forged would not be sufficient for the plaintiff -9- NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 and he has to substantiate that sale deed executed is a forged document by placing sufficient materials either by way of evidence or by documents.
5. Per contra, the learned counsel for the respondent urged the following grounds:
i. That the specific averments as contemplated under Order VI Rule 4 of CPC is not applicable to the present facts, since the plaintiff is pleading that the document alleged to be a sale deed is a forged document.
ii. The initial burden is on the plaintiff to prove that the sale deed is forged and the plaintiff has led evidence and established the document to be forged. The plaintiff's having discharged the initial burden and the onus having shifted upon the defendant and the defendant has failed to
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 establish as to the necessity of executing the sale deed dated 26.07.1968.
iii. That Ex.P.1 and Ex.D1 are the alleged sale deed, the defendant is unable to explain as to how the property number in the sale deed is mentioned as 825, whereas in the mortgage agreement at Ex.P2 the property number is mentioned as 6-161, when both the documents are within the period of four months. iv. The mortgage agreement dated 17.04.1968 is not in dispute. Ex.D.8 is the receipt and Ex.D.8(a) is the translation copy for having received Rs.1,600/- as per the mortgage agreement dated 17.04.1968. As per the terms of the agreement, the amount of Rs.1,600/- was to be returned by the father of the plaintiff only in the year 1973, which is undisputed.
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 v. Ex.P.3 is a plaint in O.S.No.200/1989 wherein two prayers are sought mainly for execution of the agreement of sale pertaining to suit item No.6-161, measuring 12 yards and 33 yards, which invariably measures 36 x 99 feet and the plaint does not mention regarding execution of the alleged sale deed dated 24.07.1968. vi. Exs.P.5 to 8 are the documents to show that the document alleged sale deed dated 24.07.1968 is a forged document and the plaintiff having established the same, the first appellate court was justified in decreeing the suit. vii. That the suit of the plaintiff is rightly held by the first appellate court as not barred by limitation holding that the alleged sale deed is a forged document, limitation will not be computed from the date of the sale deed but from the date of the knowledge of the plaintiff, the plaintiff came to know about the alleged
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 sale deed only when suit OS No.36/1997 was filed by one Abdul Saleem.
6. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the entire material on record.
7. The trial court dismissed the suit holding that the plaintiff has failed to prove that the sale deed executed at Ex.D.1 by the plaintiff and his father in favour of defendant No.1 is a forged sale and the relief sought by the plaintiff for declaration and possession was rejected holding that the plaintiff has failed to prove the ownership over the suit schedule property.
8. The first appellate court reversed the judgment and decree of the trial court and held that the plaintiff has proved that he is the owner of the suit schedule property and directed the defendant to hand over possession of the suit schedule property after receiving the mortgage
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 amount from the plaintiff with interest at the rate of 18% p.a. from the date of suit till the date of actual realisation.
9. Firstly, taking into consideration the submissions made by the learned counsel for the parties, the relevant sections and the act which needs to be considered is the Indian Evidence Act, 1872 and relevant Sections 101 and 102 of the Indian Evidence Act, 1872, which reads as under:
"101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
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10. It is settled law that burden of proof lies on the person who would fail if no evidence at all were given on either side. Applying the said test laid down in Section 102 of the Indian Evidence Act, the initial burden is on the plaintiff of proving the non-existence of facts necessary to prove that the sale deed dated 26.07.1968 was forged, since the sale deed 26.07.1968 was a registered document and presumption would normally be about its genuineness and it was upon the plaintiff to prove to the effect by leading sufficient evidence that the sale deed was a forged document. In light of the same, the material evidence placed by the plaintiff needs to be considered by this court to come to a conclusion whether the plaintiff has established that the sale deed dated 26.07.1968 is a forged document.
i. The first document that needs to be looked into is the mortgage agreement which is marked as Ex.P.2 dated 17.04.1968 which states that the plaintiff and his father were in need of money
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 and they had obtained a sum of Rs.1,600/- from defendant No.1 by executing a receipt and with a promise to pay the amount by end of the year 1973 and in the light of this, the possession of the house bearing municipal No.6-161 was handed over to defendant No.1, and the alleged sale deed is executed within four months, unexplained part is necessity to execute the alleged sale deed when the promise to pay the amount as per Ex.P.2 was only in the year 1973.
ii. Ex.P.1 - certified copy of Sale deed and Ex.D.1
- sale deed executed on 26.07.1968, wherein the description of the property differs from the number shown in Ex.P.2, which is invariably within a period of four months.
iii. The next document that needs to be looked into is O.S.No.200/1989 filed by the defendant No.1 seeking for specific performance of contract of
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 sale and for declaration that the registered sale deed dated 05.05.1986 is null and void. The relevant portion of the prayer in O.S.No.200/1989 is as under:
"(i) That the defendants No.1 and 2 may be directed to execute the registered sale-
deed of the suit house with open space bearing No.6-161 measuring 12-yards x 33- yards situated at village Rajeshwar as per the boundaries mentioned in the subject matter by receiving the balance consideration amount of Rs.16,000/- in favour of the plaintiff.
(ii) The registered sale-deed bearing registered document No.322/1986 of dated 5-5-1986 of No.6-161 measuring East-West:
371' x 6" and North-South:28' x 8" situated at village Rajeshwar Taluka Basvakalyan, Dist.Bidar be declared as null and void.
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(iii) That any other relief to which plaintiff is legally and equitably is entitled be awarded."
11. The averments made in the plaint is evident from paragraph Nos.3 and 4 which read as under:
"3. That the father of the defendant No.1 namely Shankerappa has obtained an amount of Rs.1,600/- (Rupees sixteen hundred only) from the plaintiff and in lieu of that amount he has executed a bond as a security of the suit house on 17-4-1968 on the condition that the father of the defendant No.1, has to pay back the amount to the plaintiff till the end of the year 1973. And thereafter Shankerappa died without paying the amount to the plaintiff.
4. That after the death of Shankerappa his son Nagappa succeeded to the entire property of his father Shankerappa. Then Nagappa and his wife defendant No.2 due to their legal and family and shastric necessity has sold the suit house with open space in favour of plaintiff for the consideration of Rs.18,001/- and admitting the possession of the plaintiff over the suit house received Rs.2001/- from plaintiff as an earnest money and executed the deed
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 by the defendant No.1 and 2, in favour of plaintiff on dated 31-5-1984. Promising to execute the registered sale deed after receiving the balance consideration amount of Rs.16,000/-. The defendant No.1 and 2 after the sale of the suit property in favour of the plaintiff has left village Rajeshwar and settled at proper Basvakalyan, Tq.Basavakalyan, Dist. Bidar"
12. In the suit in O.S.No.200/1989, there is not a single whisper about the execution of the alleged sale deed dated 26.07.1968 in favour of defendant No.1. A perusal of the prayer would make it more evident that the defendant No.1 is seeking for specific performance of contract in respect of suit house bearing No.6-161 with open space measuring 12 yards x 33 yards. Though the contention of the defendant is that it is in respect of the remaining portion of the land, the said contention would not be acceptable for the reason that the measurement of the property is mentioned as 12 yards x 33 yards which is invariably means 36' x 99' which forms the whole of the part of Sy.No.6-161 of the land. The defendant No.1 has
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 not mentioned in the said suit that a sale deed is executed in his favour and he seeking for execution of a agreement of sale for the remaining part.
13. The Trial Court on an assumption that P.W.1 has not produced any documentary evidence to show that the sale deed is a forged document has dismissed the suit of the plaintiff, without considering that in respect of the forged document, the plaintiff can only plead and lead evidence but cannot produce evidence, circumstances enabling the plaintiff to show that the said document is forged needs to be established. From the pleadings in O.S.No.200/1989 it can be clearly gathered that there was no execution of the sale deed as on the said date and it is for the first time when the nephew of defendant No1 filed suit OS No.37/1997, the alleged sale deed dated 26.07.1968 was mentioned. The plaintiff discharged his initial burden of proving the non-existence of fact by examining himself as P.W.1 by placing material at Ex.P.1 to P9 to show that the alleged sale deed was a forged
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 document having been discharged, the onus to prove the existence of sale deed dated 26.07.1968 was on the defendant. The defendant examined himself and his son as D.W.1 and 2, has examined D.W.3 - the scribe, the defendants have not examined the attesting witness to the sale deed nor examined the scribe to the effect of identifying the signature of the plaintiff and his father on Ex.D.1. The evidence placed by the plaintiff goes against the defendants more particularly the Ex.P.3 the plain in O.S.No.200/1989 where the plaint discloses that the father of the plaintiff had received Rs.1,600/- from the defendants and mortgage agreement was executed, and the fact remains that the said plaint does not disclose about the sale deed in favour of the defendants, if a right by way of sale deed was accrued in favour of defendant No.1 the said fact would have been mentioned in the plaint in O.S. No.200/1989, in the absence of the same it can be fairly held that the defendant has failed to prove about the existence of the said document.
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14. The learned counsel for the defendant would contend the presumption as to the document being 30 years old to be valid under Section 90 of the Indian Evidence Act, Section 90 of the Indian Evidence Act reads as under:
"90. Presumption as to documents thirty years old.--Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."
15. The wordings as narrated under the said Section is that "the Court may presume the presumption in favour of a 30 years document". However, there is a rebuttal for presumption and the plaintiff had led sufficient evidence to show and disprove the same with regard to
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 the sale deed dated 26.07.1968 asserting that the same was not executed by the plaintiff or his father and contended that the said document is a forged document by establishing the same before the Court and the said aspect has been rightly considered by the First Appellate Court. The initial burden to prove the non-existence of facts to show that the sale deed dated 26.07.1968 was a forged document has been discharged by the plaintiff by showing a strong preponderance of probability in his favour as also by his unrebutted testimony, the onus to prove the execution of the sale deed was on defendant No.1 and the defendant has failed to prove the execution of the sale deed.
16. Regarding the question of limitation it would be appropriate to state that the plaintiff is seeking for declaration that the sale deed dated 26.07.1968 is a forged document and the possession sought by the plaintiff is also in light of holding that the document alleged sale deed dated 26.07.1968 is a forged document.
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 The suit of the plaintiff is not barred by limitation since the suit has been filed within three years from the date of acquiring the knowledge about the alleged sale deed which was disclosed in the suit OS.No.37/1997.
17. A perusal of the mortgage agreement would make it evident that the amount Rs.1,600/- was to be repaid in the year 1973 and on such repayment, the possession of the suit schedule property ought to be delivered. Since the mortgage agreement is not been disputed by either of the parties and the plaintiff having not paid the said amount, the question of seeking possession would not have been arose as rightly contended by the learned counsel for the plaintiff.
18. Thus, the first Appellate Court, taking into consideration the entire material on record held that the cause of action arose in the year 1997 and the present suit by the plaintiff is not barred by limitation.
19. For the reasons stated above, the substantial question of law is answered in favour of the plaintiff
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NC: 2023:KHC-K:6183 RSA No. 7368 of 2011 holding that the first Appellate Court was justified in reversing the judgment and decree of the Trial Court and suit of the plaintiff is not barred by limitation and that the burden to prove the existence of the fact to show that the sale deed is a forged document has been discharged by the respondent/plaintiff by placing material on record and the manner in which the first Appellate Court has re- appreciated the entire facts and material on record, this Court is of the considered view that the same does not call for any interference. Accordingly, this Court pass the following:
ORDER i. The Regular Second Appeal filed by the defendants is hereby dismissed. ii. The judgment and decree of the first Appellate Court stands confirmed.
Sd/-
JUDGE BL/RSP List No.: 1 Sl No.:55