Karnataka High Court
Smt Uma Rani vs Sri Ningaiah @ Chikkanna on 1 December, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
R.S.A. NO.441 OF 2012 (INJ)
BETWEEN:
SMT.UMA RANI,
W/O C.Y.SHIVE GOWDA,
AGED ABOUT 43 YEARS,
R/AT NO.38, JCSTM-BLOCK,
ADICHUNCHANAGIRI ROAD,
KUVEMPU NAGAR,
MYSORE - 570 001,
REPRESENTED BY GPA HOLDER
SRI.C.Y.SHIVE GOWDA. ...APPELLANT
(BY SRI SIDDHARTHA H.M., ADVOCATE)
AND:
1. SRI NINGAIAH @ CHIKKANNA,
S/O KARININGE GOWDA,
AGED ABOUT 73 YEARS.
2. SRI SHIVALINGU,
S/O NINGAIAH @ CHIKKANNA,
AGED ABOUT 49 YEARS.
3. SRI SHIVARAJU,
S/O NINGAIAH @ CHIKKANNA,
AGED ABOUT 47 YEARS.
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4. SRI CHANDRU,
S/O NINGAIAH @ CHIKKANNA,
AGED ABOUT 44 YEARS.
ALL ARE R/AT NO.1/4,
1ST STAGE, 2ND CROSS,
E & F BLOCK, RAMAKRISHNA NAGARA,
MYSORE - 570 001. ... RESPONDENTS
(BY SRI P.NATARAJU, ADVOCATE FOR R2 TO R4)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 30.11.2011 PASSED BY THE DISTRICT
JUDGE AND SESSIONS FAST TRACK COURT-III, MYSORE
IN R.A.NO.1203/2010 AND CONFIRMING THE JUDGMENT
AND DECREE DATED 18.08.2009 PASSED BY THE
PRINCIPAL FIRST CIVIL JUDGE (JR.DN.), MYSORE IN
O.S.NO.923/2006.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Siddhartha H.M., learned counsel for appellant has appeared through video conferencing. Sri.P.Nataraju, learned counsel for respondent Nos.2 to 4 has appeared in-person.
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2. This is an appeal from the Court of Fast Track Court-III, Mysore confirming the judgment and decree passed by the Court of Principal First Civil Judge (Jr.Dn.), Mysore.
3. Appeal is posted for Admission after notice to respondents.
4. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the trial Court.
5. The short facts are these; Originally the suit schedule property owned by defendants and they had executed a sale deed on 13.09.1981 in favour of one - Smt.M.S.Sujatha and she in turn had sold the property in favour of plaintiff's husband one - C.Y.Shivegowda under a sale deed dated 10.6.2006 for valuable consideration of Rs.1,00,000/- and appears to have handed over the possession of the property. Thus, it is the contention that C.Y.Shivegowda is the absolute owner. It is stated by 4 plaintiff that her husband C.Y.Shivegowda executed a gift deed on 17.06.2006 in her favor.
It is averred that pursuant to the execution of the sale deed, the husband of plaintiff has obtained Katha of the property in his name in the records of the Mysore City Corporation, which has issued Katha in the name of husband of plaintiff - Sri.C.Y.Shivegowda. It is also stated that the Authority concerned collected the requisite taxes. Sri.C.Y.Shivegowda had also put up the sheds in the sites so purchased by him. It is stated that Shivegowda has executed a gift deed on 17.06.2006 in favour of plaintiff. Pursuant to execution of the gift deed, the possession of the property was also delivered in favour of plaintiff. Therefore, it is contended that plaintiff is in peaceful possession and enjoyment of the suit schedule property.
As matter stood thus, defendants having no manner of right, title and interest have tried to interfere with the peaceful possession and enjoyment of the plaintiff's suit 5 schedule property and she filed a suit for injunction before the trial Court.
After service of summons, defendant No.2 has filed written statement and defendant No.1, 3 and 4 have adopted the written statement of defendant No.2.
Defendant No.2 contended that suit is not maintainable either in law or on facts. He contended that plaintiff has created false documents to make unlawful gain and hence, the alleged documents does not create any possession nor right over the suit schedule property. He further contended that Sy.No.65/1A measuring 2 acres 5 guntas situated at Dattagalli village, Kasaba Hobli, Mysore Taluk, is the joint ancestral agricultural land, and revenue records also stands in the name of defendants. Therefore, he contended that they are in possession and enjoyment of the suit schedule property without anybody's interference and such being the case, plaintiff has created the documents behind their back and the same are not 6 binding on them. Accordingly, they prayed for dismissal of the suit.
On the basis of the pleadings, the trial Court framed the following issues:
"1. Whether the plaintiff proves that she is in possession and enjoyment of the suit schedule property?
2. Whether the plaintiff proves the alleged interference by the defendants?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What order or decree?"
To substantiate the case, plaintiff's General Power of Attorney Holder - Sri.C.Y.Shivegowda is examined as PW-1 and produced eight documents which were marked as Exs.P1 to P8. On behalf of defendants General Power of Attorney Holder one Kempanna S/o.Late Madappa is examined as DW-1. He also examined two witnesses by name Raviraja Urs S/o.Srikantaraje Urs and Mahesh 7 S/o.Madappa as DWs-2 and 3 and produced one document which is marked as Ex.D1.
On the trial of the action, the suit came to be dismissed the suit. On appeal, the First Appellate Court confirmed the judgment and decree of the trial Court. Hence, regular second appeal is filed under Section 100 of CPC.
6. Sri.Siddhartha H.M., learned counsel submitted that the judgment and decree of both the Courts below is un-sustainable in law and they are liable to be set aside. He submitted that both the Courts below have failed to appreciate the facts and circumstances and also evidence adduced by the plaintiff in an objective manner.
Next, he contended that Courts below have failed to consider the oral testimony of plaintiff which clearly establishes the exclusive possession of plaintiff over the suit schedule property. Though the sale deeds are un-registered documents, but the same are marked as 8 exhibits and since the suit being one for injunction, the trial Court as well as First Appellate Court ought not to have brush aside the said documents in its entirety which otherwise, can be looked into towards collateral purpose.
A further submission was made that plaintiff has produced Katha, Form No.9, tax paid receipts to show that the land bearing Sy.No.65/1A though was not converted for non-agricultural purpose, but has lost agricultural characteristics and entire area is developed as residential layout. Further, the RTC extracts produced by the respondents shows the name of respondents as Anubhavadars which is only basis for the Courts below to decline the relief claimed by the plaintiff.
It has been contended that both the Courts below have failed to consider the fact that the suit is one for bare injunction, wherein plaintiff is required to establish only his/her possession over the suit schedule property which has been done by producing relevant evidence. However, both the Courts below have dealt with the matter as if the 9 suit is one for declaration and the burden on plaintiff to prove her title over the suit schedule property.
Counsel submitted that by virtue of un-registered sale deeds and registered gift deed, plaintiff has proved her prima facie title and production of katha and tax paid receipt issued by the Mysore City Corporation. She has also established her lawful possession over the suit schedule property. Therefore, he submitted that both the Courts below are not justified in rejecting the claim as prayed for.
Lastly, learned counsel contended that findings recorded by the Courts below are erroneous and lacks judicial reasoning. Hence, he submitted that second appeal raises substantial question of law and accordingly, he prayed that the appeal may be admitted by framing substantial question of law.
7. Per contra, Sri.P.Nataraju, submitted that both the Courts below are justified in rejecting the claim of 10 plaintiff. He submitted that the suit is one for bare injunction. Plaintiff's husband appears to have purchased the property from one - Smt.M.S.Sujatha and the sale deed is not registered. Plaintiff has relied upon the unregistered sale deed to prove her ownership over the property.
A further submission was made that after the purchase of the property, plaintiff's husband appears to have executed a gift deed in her favor and she is claiming ownership over the suit property.
It has been contended that any immovable property can be lawfully transferred/conveyed only by a registered deed .
Hence, he submitted that the trial Court is justified in rejecting the claim on the ground that plaintiff has not established her ownership and unlawful possession over the property.
Therefore, submitted that the trial Court is justified in rejecting the claim on the ground that plaintiff has not 11 established her ownership and lawful possession over the suit schedule property. On appeal, the Appellate Court re-appreciated the evidence on record and has rightly confirmed the judgment and decree of the trial Court. Accordingly, he submitted that the second appeal does not involve any substantial question of law and prayed for dismissal of the appeal
8. Heard the contentions urged on behalf of respective parties. The facts have been sufficiently stated. This is a simple suit for injunction.
As could be seen from the nature of lis between the parties, the suit is for bare injunction based on possession as on the date of suit. The right to injunction is based on prima facie right.
In the present case, certain facts are undisputed. Defendants were the owners of the land bearing Sy.No.65/1A measuring 2-05 acres. They formed sites in the said land. They have executed a sale deed in favor of 12 one - Smt.M.S.Sujatha vide sale deed dated 13.09.1981 (Ex-P3). The said Smt.Sujatha in turn executed a sale deed in favor of the husband of plaintiff on 10.06.2006 (ExP-8) and alleged to have handed over the possession of the suit schedule property. Thereafter, Sri.C.Y.Shivegowda appears to have executed a registered gift deed on 17.06.2006 in favor of plaintiff - Smt.Umarani. It is pertinent to note that both the sale deeds are unregistered.
The trial Court has considered the oral and documentary evidence on record and found that the documents produced by plaintiff i.e., the sale deeds dated 13.09.1981, 10.06.2006 are unregistered deeds and plaintiff's husband cannot derive title by virtue of unregistered sale deed. On appeal, the First Appellate Court while re-appreciating the evidence on record held that the sale deed are unregistered and hence, plaintiff has failed to establish that she is the owner in possession of the property as on the date of the suit.
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In this Court, plaintiff adhered to the contention that she is the absolute owner in possession of the suit property. She has also relied upon the gift deed which is said to have been executed by her husband on 17.06.2006.
While arguing the case, learned counsel vehemently urged that by virtue of un-registered sale deeds and registered gift deed, plaintiff has proved prima facie ownership over the suit schedule property.
I find myself unable to accept the said contention. The law is well settled in this regard. There are only two modes of transfer by sale (1) registered instruments;(2) delivery of possession.
It is perhaps well to observe that immovable property can be lawfully transferred/conveyed only by a registered deed of conveyance. Where the deed is not registered, there is no transfer, and property does not pass.
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The legal position has been explained by the Apex Court in SURAJ LAMP & INDUSTRIES PVT. LTD., VS STATE OF HARYANA reported in AIR 2012 SC 206 that transfer of an immovable property can be validly made only by a registered sale deed. It has also been held that the Courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
As already observed above, the right to injunction is based on prima facie right. Coming to the facts of the present case, admittedly the sale deeds (Ex P-3 and P -8) are unregistered sale deeds, hence, they do not convey any title.
Having regard to the facts and circumstances of the case, the trial Court is justified in rejecting the claim of the plaintiff. The First Appellate Court on re-appreciation of 15 the evidence on record has confirmed the judgment and decree of the trial Court.
It is relevant to note that the documentary evidence of ownership, like a sale deed, cannot be ignored. The documents produced by plaintiff would show that has no sufficient interest to maintain an action. On the basis of material proof, the trial Court held that plaintiff has failed to establish that she is in lawful possession of the suit as on the date of the suit. Learned Judge of the Appellate Court has examined the evidence on record and reappraised it and confirmed the judgment and decree of the trial Court. I am satisfied it has been appreciated in the correct perspective.
It is perhaps well to observe here that after 1976 amendment, the scope of Section 100 of CPC has been drastically curtailed and narrowed down. The High Court would have jurisdiction of interfering under Section 100 of CPC, only in a case where substantial question of law is involved and those questions have been clearly formulated 16 in the Memorandum of appeal. But, the present second appeal does not involve any substantial questions of law.
I find no good grounds to interfere with the judgment and decree of the Courts below.
9. In the result, I find no merit in this appeal and accordingly it is dismissed at the stage of admission.
In view of the dismissal of the main appeal, I.A.No.1/2012 does not survive for consideration and accordingly, the same is disposed of.
Sd/-
JUDGE VMB