Karnataka High Court
Shri. Mahadevappa Santram Pawar vs Shri. Balappa Mallappa Patil on 12 March, 2013
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12 T H DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
R.S.A. No.6106 OF 2010
BETWEEN:
SHRI.MAHADEVAPPA SANTRAM PAWAR
SINCE DECEASED BY HIS LR'S
1. SMT.GANGABAI
W/O MAHADEVAPPA
PAWR, AGE: 63 YEARS
OCC: HOUSEHOLD WORK
R/O GURUWAR PETH
GOKAK
TQ:GOKAK DIST: BELGAUM
PIN - 591 307.
2. SHRI.SUBASH
S/O MADEVAPPA PAWAR
AGE: 40 YEARS
OCC: BUSINESS
R/O GURUWAR PETH
GOKAK
TQ: GOKAK
DIST: BELGAUM
PIN - 591 307
3. SHRI.ARUN
S/OMAHADEVAPPA PAWAR
AGE: 44 YEARS
OCC: BUSINESS
R/O GURUWAR PETH
GOKAK
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PIN - 591 307
TQ: GOKAK, DIST: BELGAUM
4. SMT.REKHA
W/O HANUMANTH
KAMATAGI
AGE: 42 YEARS
OCC: HOUSEHOLD WORK
R/O GURUWAR PETH
GOKAK
TQ:GOKAK, DIST:BELGAUM
PIN - 591 307
5. SMT.JAYASHREE
W/O VINAYAK SOLANKI
AGE: 40 YEARS
OCC: HOUSEHOLD WORK
R/O ATHANI, TQ:ATHANI
DIST: BELGAUM
PIN - 591 304.
6. SHRI.RAJU
S/O MADEVAPPA PAWAR
AGE: 38 YEARS
OCC: BUSINESS,
R/O GURUWAR PETH
GOKAK
TQ:GOKAK, DIST: BELGAUM
PIN - 591 307. ...APPELLANTS
[BY SRI.MAHANTESH R PATIL & SRI.S.S.PATIL,
ADVS.]
AND
1. SHRI.BALAPPA MALLAPPA PATIL
AGE: 50 YEARS
OCC: AGRICULTURE
R/OGULGADDI, TQ: GOKAK
THROUGH HIS P.A.HOLDER
SHRI.MOHAN RAMCHANDRA DULLOLI
AGE: 30 YEARS, R/O FULGADDI
TQ:GOKAK, DIST:BELGAUM
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PIN - 591 307 ...RESPONDENT
[BY SRI.HEMALATHA & SRI.R.M.KULKARNI,
ADVS.]
*****
THIS RSA IS FILED UNDER SECTION 100 CPC
AGAINST THE JUDGMENT AND DECREE DATED
8.10.2010 PASSED IN RESPONDENT-
ACCUSED.NO.24/2003 ON THE FILE OF THE IV
ADDL. DISTRICT JUDGE, BELGAUM, DISMISSING
THE APPEAL, FILED AGAINST THE JUDGMENT
DTD: 07.03.2003 AND THE DECREE PASSED IN
O.S.NO.57/1994 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) GOKAK, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
J U D G M E N T
This second appeal is by the legal representatives of the defendant in O.S.No.57/1994 on the file of Civil Judge (Sr.Dn.), Gokak against concurrent judgment of the courts below decreeing the suit of the respondent-plaintiff for the relief of partition and separate possession of his ½ share in the suit schedule property.
2. The respondent-plaintiff filed suit inter alia contending that the suit property viz., agricultural :4: land measuring 1 acre in Sy.No.142/1+2+3+4+5+6/2 out of the total extent of 2 acres 29 guntas situated in Gokak Town was jointly purchased by him and the original defendant under a registered sale deed dated 16.8.1976 for a consideration of Rs.15,000/- from its previous owner Mastansab Nawab and his brothers and since the date of the sale deed, he along with the first defendant has been in joint possession and enjoyment of the said property. Subsequent to the sale deed his name as well as the name of first defendant was entered in the revenue records under mutation entry No.8289. Thereafter, on the joint application filed by him and the first defendant the land was converted into non-agricultural purpose. However, subsequently, the relationship between him and the defendant strained as a result, the defendant started acting against his (plaintiff's) the interest. Therefore, the plaintiff demanded the defendant to effect partition and delivery of his ½ share in the property. However, the defendant refused to do so.
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The original defendant appeared before the trial Court and filed his written statement in ter al ia contending that the suit property was purchased by him alone and at the time of the purchase since he was running short of money, he requested the plaintiff to advance loan of Rs.7,500/- and accordingly, the plaintiff lent money of Rs.7,500/-, but insisted that as security for the repayment of the money his name also should be shown in the sale deed as one of the purchasers and accordingly, the name of the plaintiff was also added as one of the purchaser and subsequently he repaid the loan amount of Rs.7,500/-, for which the plaintiff executed documents relinquishing his rights over the property, as such, the plaintiff has no subsisting right over the property. Therefore, the suit for partition is not maintainable.
The Trial Court on the basis of the pleadings of the parties framed several issues and the parties led evidence. On consideration of the oral and documentary evidence, the trial Court decreed the :6: suit by answering all the material issues in favour of the plaintiff. The Trial Court negatived the contention of the defendant that the plaintiff had lent a sum of Rs.7,500/- to the defendant and that the name of the plaintiff was shown in the sale deed as one of the purchasers only by way of security for the repayment of the said loan amount. The Trial Court further held that the circumstances brought out in the evidence clearly establishes that the plaintiff paid Rs.7,500/- as part of his share of the sale consideration for purchase of the property and therefore, he has acquired right to an extent of ½ share in the suit schedule property. With regard to the defence of the defendant about the plaintiff executing Exs.D1 and D2 acknowledging the receipt of loan amount of Rs.7,500/- and relinquishing his right, the trial Court held that the report of the hand writing expert on the documents Exs.D1 & D2 as also other evidence on record proves that Exs.D1 & D2 have not been executed by the plaintiff. In addition, the Trial Court also held that assuming for the purpose of arguments that Exs.D1 & D2 are :7: signed by the plaintiff, since Ex.D1 claiming to be a relinquishment deed is not registered, the plaintiff cannot be said to have relinquished his right in the suit schedule property in favour of the defendant. In that view of the matter, the trial Court decreed the suit of the plaintiff holding that the plaintiff is entitled for ½ share in the suit schedule property by dividing the same by metes and bounds. Aggrieved by the said judgement and decree, the sole defendant filed appeal before the District Court, Belgaum in R.A.No.34/03. During the pendency of the said appeal, the sole defendant died. Thereafter, his wife and children came on record as LRs and continued the appeal. The Appellate Court on re-appreciation of the oral and documentary evidence, by the judgment under appeal concurred with the findings recorded by the trial Court on material issues. By referring to the oral evidence of the defendant with regard to the loan transaction, the Appellate Court noticed that the evidence of the defendant in this regard is contrary to his pleadings inasmuch as according to his pleadings he had :8: borrowed loan of Rs.7,500/- from the plaintiff, whereas, according to his oral evidence, he said to have borrowed a sum of Rs.7,500/- from one Ramachandra Kulwali at the time of the purchase of the property and that he repaid the loan to the said Ramachandra Kulwali. In these circumstances, the Appellate Court held that if the money was borrowed from one Ramachandra Kulwali and later it was repaid to the said Ramachandra, question of plaintiff executing any document as per Exs.D1 and D2 does not arise. The Appellate Court also concurred with finding of the Trial Court as to the genuineness of Exs.D1 & D2 in the light of the opinion of the hand writing expert. In that view of the matter, the Appellate Court dismissed the appeal and affirmed the judgment and decree of the Trial Court. It is against the concurrent judgment of the Courts below, the legal representatives of the defendant are before this Court.
I have heard the learned counsel appearing for the appellants and perused the judgments under :9: appeal as well as the records secured from the Trial Court.
Having heard the learned counsel and on perusal of the records, I am of the considered opinion tat no question of law much less substantial question of law arise for consideration in this appeal. Admittedly, as per the apparent tenor of the sale deed-Ex.P2, the plaintiff is one of the purchaser along with original defendant. It is also established by documentary evidence that subsequent to the sale deed the names of both the plaintiff and the original defendant were entered in the Revenue Records in respect of the land in question and thereafter, both of them jointly filed application before the concerned authorities for conversion of the agricultural land to non- agricultural purposes. Even according to the original defendant the plaintiff had paid Rs.7,500/- as part of the consideration. The total consideration under Ex.P2 was Rs.15,000/-. This shows that the plaintiff had paid 50% of the sale : 10 : consideration under Ex.P2. The only defence, as noticed supra, put forth by the original defendant was that it was only a loan transaction between him and the plaintiff and that as a measure of security for the repayment of the said loan amount, the name of the plaintiff was added as one of the purchaser and subsequently, the loan amount was repaid by him, therefore, the plaintiff executed a receipt as per Ex.D2 and a letter Ex.D1 relinquishing his rights over the property.
As could be seen from the oral evidence of the defendant examined as DW1, it is clear that the original defendant had given a complete go by to his defence during his evidence, since, in his oral evidence he came out with a different story that he borrowed the loan of Rs.7,500/- from Ramachandra Kulwali at the time of purchase of the property and that loan amount was utilized for the purchase of the property and subsequently he repaid the said amount to the said Ramachandra Kulwali. Thus, what has been pleaded is not proved and what has : 11 : been asserted in the evidence has not been pleaded. If really, the defendant had borrowed amount of Rs.7,500/- from Ramachandra Kulwali at the time of purchase of the property and subsequently the said amount was repaid to him, there was no occasion for joining the plaintiff as one of the purchaser in the sale deed as a measure of security. It is not the contention of the original defendant that on the insistence of Ramachandra Kulwali the name of the plaintiff was added as one of the purchaser. If the loan transaction was between Ramachandra Kulwali and the original defendant, there was no occasion for the plaintiff to execute Exs.D1 and D2. The signatures found at Exs.D1 & D2 on the revenue stamp have been subjected to the examination by hand writing expert. Those signatures have been compared with the admitted signature of the plaintiff and the hand writing expert has submitted his opinion that the person who has signed the admitted signatures has not subscribed the signatures found in Exs.D1 & D2. In other words according to the opinion of the expert : 12 : the signatures found on Exs.D1 & D2 are not that of the plaintiff. No doubt, the report of the expert is in the nature of opinion evidence. However, the circumstance brought out on record, more so, in the light of the oral evidence of DW1, the opinion of the hand writing expert with regard to the genuineness of Exs.D1 and D2 gains corroboration. Therefore, the Court below is justified in law in not placing reliance on Exs.D1 and D2. In addition to the above, it is well-settled law that a rights in an immovable property could be relinquished only by means of a registered documents. Admittedly, Ex.D1 is not a registered document. Therefore, no reliance could be placed on Ex.D1 as a document relinquishing the right of the plaintiff in the suit schedule property. In that view of the matter also the Courts below are justified in holding that the original defendant has failed to prove his defence. On the other hand the plaintiff has proved that he along with defendant No.1 jointly purchased the suit schedule property and therefore, he is entitled for ½ share in the suit schedule property. In this : 13 : view of the matter, the judgments under appeal do not suffer from any illegality or irregularity and that no question of law much less substantial question of law arises for consideration in this appeal. Therefore, appeal is dismissed.
SD/-
JUDGE SS/-