Karnataka High Court
Lingamma Dead By Lrs M C Shankare Gowda vs Honnegowda on 16 September, 2011
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
INTHE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THES THE 167! DAY OF SEPTEMBER, 201). --
THE HON BLE MR. JUSTICE L. NARAYVANA.S
wnid
ty, :
REGULAR SECOND APPEAL No, i
77 OF 2005
BETWEEN:
SM ULINGs
DEAD BY
_ M.C.SHANKARE GOWDA
AGED ABOUT 53 YEARS"
SON OF LATE THIMMEC
R SAT: NO. 7, POL ICE (3
ANAND RAO CIE .
3BANGALORE-580009,
Pere
5 ARE ERS.
NDHINAGAR,
2. SMT. SPETH)
AGED ABC
WIFE OF SR. i. NARAY, IAC
BYRAPATNA VILL AGE £, MALUR HOBLI,
| CHANNAPATNA TALUK.
» BANGALORE RU RAL DISTRICT 571505
Se
APPELLANTS
hte RA Ek
{BY SRLG. PAPE REDDY, ADVOCATE)
ee SOWDA,
AL OUT 70 YEARS,
SON OF KO VAGALLEGOWDA,
J
¥
SSE RSG SL ca COMTI ENC an
RESIDENT OF MATHIKERE VILLAGE,
SHETTIHALLY POST,
CHANNAPATNA TALK,
BANGALORE RURAL DISTRICT-37 1505
SREP MMEGOW DA
DEAD BY Ls oe
~
TT NAGARAJIU,
AGED ABOUT 65 YEARS,
SON OF LATE THIMMEGOWD
POCSEDING AT: NOUZAB, FCC "MAIN:
IV STAGE, TT BLOCK,
E
BASAVESHWARANAGAR,. |
BANGALORE-560 O79.
3. JAYARAMU, =
AGED ABOUT 5s
DON OF LATE ©
PRESENTLY WORK:
ASSISTA ANT SUBT
SRI M NG FOP. ALA REDDY FOR Rola -), ADVOCATES)
SY A oe
: 2 55.1 a; "ASSED ON RA NO. 3] /98 ON THE ¢ iL gE OF' HE ADDL.
CIVIL. od UBGE (SR.DN}, RAMAN AGARS iM, ALLOWING THE
"API 3 AY L AND SETTING ASIDE THE JUDGEMENT AND
DECREE DYT.11-08-1998 PASSED IN OC. S. NO. 99/90 ON THE
~ 4
SO ICUENe
8
PILE OF THE CIVIL JUDGE (WJR.DN) AND JMFC,
CHANN JAPATNA
THES APPEAL COMING ON FOR HEARING 20H us. DAY).
'THE COURT DETLIVE RED DTH POLLOWING:- _
JUDGMENT |
The plaintil' is the appellant tha en A girig, the judgment
- first appellate court. The suit OS
was filed by ¢
hhe> plainthf® for declaration,
possession, Mandatory injunction and mesné profits.
is her se
property for which her mother's side helped.
view of the tact that it The property is ner seli-acquired property,
-- the second defendant husband had no right to sell the
im view of the cispuie between the plaintiff and the
second defendant, she started living with her parents in
jowever, she was regularly visiting the suit
dovgind
edie
"another village.
oo
schedule property. The second defendant, her hi isband has
iret
sola the property to third defendant or
Ex.D3. The third defendant in turn sold the svt schedule
property to the first defendant for consideration of Fs. Be 000 /
by sale decd dated 21.3. 1980.
that since the plaintiff isthe absoelute..owmer of the suit
inci
om "
heat
ipnreau
rh
Raper
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a
on
Nae
peor
ved
oy
mt
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rm
ist
om.
ey
,
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team
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er)
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ome
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dosti, 'ca i "ped % foo, faa dct ie deo pone ae peal i oe YF a7 eau ie ine Sean?
bee ite "Pes JO, Seng baat pone in the property and thereh second and thi
4. The second defendant fled written statement and "A aaa ts Se contended that th e plaintiff had purchased the property on 6.5 . [957 anid: was in | possession till 1985. Due to some misu adersta nding "the plaintif left the house and started _ Yesi aid 1g in Cm ah mee vilage but the plaintiff visited the tant executed the sale enon gk Sane _ g Ps os a hie?
fural a aun oy Jovi os ie ponte, ns = seo SSS SS UE SSS SUSE IST OT EE EE PEE the third respondent for a nominal consideration and delivered ¢ ve 8 = as
5. The first defendant alse submitted that the sale deed executed by the -third respondent in iavour of the first defendant is a v voidabl & and.
for consiceration of Lhe amount and since irom the date cf the.
sale, he is put in possession an nd 'hence it is. Submitted to
6. On the basis of the pleecings by the respective espect of Khata No.G/ No.31/96 and. ihe same came to be allowed by setting aside gf the ord er passed PDy the trial court. The learned counsel for . the respondents. herein submits that this appeal to be dismissed fordhe reasons that the plaintiff who instituted the Sui hasmdt been examined. After her chief examination she remained absent and thereafter PW-2 the GPA holder has j E ¥ 4 SSRI prosecuted the case. It is on the basis of the judgment reported by the Hon'ble Supreme Court, the learned. counsel submitted that the GPA only can act on behalf of the principal:
£ ard he could not adduce evidence. Sec endly "the sale deed, execuled by the second defendant in tO first defendant is also ve oidable _-Plence Tis subeiitted that there is no infirmity in the regular appeal. Accordingly the appeal to be dismissed." rasion mace.by botn the p as wel as the gone fhe courts have not ssues. The first delendant who has "4, statement that he has perfected his tile ie is in possession from the date of sale deed. dated 23.10.1980. To that extent. the ropriate issue has not been framed by the trial court. The 'trial court also committed an error in not framing an issue Ea SSSA ss SE ee ES with relation to limitation. From the pleadings cl [ both the parties, it is undisputed thal the plaintiff property in the year 1957 and in view of t said property, she becomes absolute-.owner, "thi oreatte ia instituted suit to declare hersell as owner does rot arise, To. that extent, no proper isst 9, The first appellate. court also-ferrmulated point for the owner by answered in the affirriative and ihe sec cond point with regard é fo entitiement. and possession has been » j f hé - -- pteeeeered leese Was @ en 2 narnealy nth newered in all irmiative GL PSSLic NOS. 10 6 amen, Wi regar dto-mesne profit. and with regard to adverse possession of the de rendant CNG have been answered in the negative. 10>-In view-of the submissions made by the parties, the ints. that sirise for corisideration are:
/ "CSE RF NT FS TO See ue sf ee iD Whether the plaintiff has proved that she is entitled for declaration as owner of the suit schedule property?
Pee, .
ery Gf Whether the sui is Sled within the _ period 7 Henifation? . :
iii} Whether the defendant No.1 has- perfecte 2G title. by adverse possession? | | fiv) Whether the sale deed> made by. the defer idant No.2 to 3 and dele: 3 io defend: ant NOL} are void or voidark ll. In order fo-prove the case ol-the plaintiff, she has beer exalr ANT Uy ber.chief examination she has acl eee vo Fas:
oy he oa 'hs Fun & ae deposed that sive.-has. | purchased the property from one who is - brother of the second defendant. tikka Put tal an lhas succeeded ihe property in a partition second gk, jou * ene tng Ito & Tose deo a, between "hiniself, ana his brother thai : pureh ase of the suit property, she has been
7 put in possession. Since there was dispute in the family and hevrefore she-ieli the house and residing al Chikmagalur. In view of the obstruction caused by the first defendant, she filed the Su it, i
12. After completion of chief examination, PW-i remained absent and she has not subjected to -ct examination and ber evidence in the chief examd not alowed +t be contested Subsequently, it seems PW-2 who is the Gl DA ho nider. of 'the.
piaintif has entered the witness bex 'and dé pose a and "also he was sublected to cross- examinaio: 7 iS. The sale made | in 1 favour of t the
14. PW-S and 4 ate the independent witnesses. They ty of the plaintiff was purchased and she was in possession and they also deposed in respect of sale made i, fe avon wir Of the third defendant and subsequently . to the first defendant, Except this, their evidence is not of any. help to decide the issues involved in the case.
gc a a eee ae cd eS 10 -
19. On behalf of the defendants, DW-1 has. been oc examined who is deiendant No.i. He has deposed that in the year 1978 defendant No.2 sold the property i) - defecindarn No.3. Certifled copy of the sale deedhas been marked: as.
Ex.D3. Thereafter defendant No.3 obtained Heence: and hs id, ae.
toro, the year 1980 it was sold to-the | i¢fendant andthe same has Deen marked as Ex.05. fle lras:deposed that sale talks and took place in defendant Ne.2 'erie we about, th ic presen { 'transaction. Further the construstion was stayed by gra ction later on it Woe VaCdre in M A Ne. 26 / ; {85 'and-erder in C RP No. 4420/89 have been narke d as SERDE. D7 & DS. It is further deposed that since endant No.2 was in possession of the . property. In fis cross-examination, if is stated ihat prior to "purchase he enquired about the title of ine suit property and pli i } 5 it was. ic to deceased defendant No.2. The purcnased tne same from his ECC aGed Lae os er "
Gundation. The Hcence has been a rarked:¢ 4.FacTe4 and in ee sae re ee SEE "ERTIES ey DSSS SRS aS SSAASL SSAC se aaae brother. Except this, the plaintiff has not elicited Cag
-
fat a! ood ont Pest veel hn 'a es .
bene i pina anything from the defendant No.l. ae ms
16. DW-2 is an independent witness wi chief examination about the entire facts of the case. Jte has ¥ No.l who is in possession. DW-3. is alsovan | indepenc dent
17. The facta which ere undisputed are t is the owner of the property jy virtue ef the sale deed of the yer that she started residing in statement and to the written statement,
-in favour of third defendant Li defendant pul up construction o ts ets poo mn! an Saoat ee ms a ts ro no an oe wot ab .2
-5
Paane ' me i Pr b pos ee a a es oe he che property VO urof de fenda wet SS ..
ce
18. By virtue of the sale deed of the vear 1957. the plaintiff became the owner. The defendant NO.1 depos the sale talks took place in the premises of the p taunt 1 'his :
piece of evidence by the defendant No.1 ; has not been controverted by the plaintifl, se COM nelly, when 1 he Sit is, imistituted disputing the sale in levour of he 'defendant No.3, prove her aosolute it is the duty on the part of the plaintiff to right over the property. It: is "not fort fs coming from the ler she knew evidence of plain aie and ev 'idence of PW-2 the subsequent' salé by detency: anit MO.3 in favour of defendant » watt 1% i ieeunmvf and tat she was: u he owner tb construction put up by defendant No.3 3. His 'perliment to refer that the plaintiff who a was available for chief cxatnination and subsequently she 3 rn maine: i absent and net rendered herself for cross-
ped ce Sanit Tt is very important when a person instituted the
-suit;.to prove her case he/she must be available for cross-
"examination so that her version could be tested by the other ~ 43 -
= side. In the present case, the evidence of the plain tit Is. not tested by way of cross-cxamination. In [LR 2005. KAR 729, do ee ate pruned § at aud ood on ra vo :
on jpouin 'an Jamel, Kyat! ye a ts on oe seve * Me yowawe "
pov Nous! yey ie os, ed ae Seamed even RE sarge pha aoe a poms rot me sae af aap ined ox .
si peewee jen jou ei en ee pores ios me * Oe pret:
"Where a party to a suit does not appear in the witness box and seis his own -case on bat h, and does not olfer himself to be cross:
other side. a presumption. woul case set up by him is not cor
20. In the light "of the': fidgment referred above, the tely there was plaintiff has falled.to prove
21... ta BIN NY MILL LABOUR WELFARE HOUSE BLDG. cor IPL soc EPY OTD. vs., DOR MRUTHUNJAYA ARADHYA
-- (2008) (3). KCCR. 1692) Para-27), it has been held that "In dable agreement is one which is void or i the election of ome of the parties. However, it is vaiid, Hit is declared void by a competent Court of law, in a
-snanner known tolaw". Though the plaintiff Aled the suit for suisse amen OY, yg EN eclaration not chosen to challenge the sale made by her husband defendant No.2 or by her son defen dawnt. "N OS. Therctore, the said sale deeds are valid ull they are dec 'iared as void by a competent civil court. .in rardai of the said judgment it is further held that even the "uth in Law the void instrament is unenforceable. has ne value in-ine eye of law, void ab initic, the VOry pi ay sical existence OF BUG sh -e-giocument a may cause a cloud on the title of the part ye oF cause injury or one can pilav mischief. . The refare, . the: 'law provides fo = : ss . ner ee a cancellation of such-instrumeénts which are also non est, but which are in eXisvence as a fact physically ta get over the effect oF such snotumen "Once such an insimimeni is effect of informing at large that such a document PO poms ri oe Jone oo a if pe os 'eet gma em, we ag mg oy Nan
--
it
--
ry ost ty Xegistration of a document is a notice to q wall the s sutbserp went purchasers or encumbrances of the same "prope rty. The doctrine of constructive notice is attracted.
ot,
99. In view of the above discussion made by this Court.
; the judgment, the sale deeds executed by defendants 2&3.
are existing and since they are constructive notice to the plaintif and hence. t voidable documents. The plaintiif has for cross-examination. The evidence of PW-2 as it is re fer rree eariier, if riot an evidence whl Therelore, the points £ nd the appeal filed by the and in favour of fhe jecree of the em plaintiff stands dismissed.» oa lower appell ate court is confirr rec there. is a alle toa offer a verselt i fast the plaintiff RN Te TUN