Venkataramanaiah vs Venkatappa on 19 December, 2011

[Cites 4, Cited by 0]

Karnataka High Court

Venkataramanaiah vs Venkatappa on 19 December, 2011

IN THE HIGH-COURT OF KARNATAKA AT BANGALORE

_ .'DATED THIS THE ZZND DAY or OCTOBER 1998

B 2 F oja E _ .
THE HON'BLE MR.JUsTIcE T.N.MVALLINAXAéAﬁ" 3 j

.R.S.A.NO.252/1996 C/w.

V §2EE22£.i (In R.s.A;N§):52/ié95)» ";u ""

A.    Adv.)

V.{ i;~

7'2}u%

Channamma V7 2a ; *.
W/o.Venkataramanaiah: if
aged : 55 years _ *»*'
R/o.Hutchammanapa1ya '
Hamlet oi Hebbur
Tumkur;Ta£uk   ;"
Tumkur*D1stpict _=_

no Appellant.

 .

VeHkat§ppaVb '
_ _ s/o.1atemThimmaiah
'_ major

.;Nh£a§ana
'fs/Q.Venkatappa
. major '

.Bbth are R/o.Hutchammanapalya

Hamlet of Hebbur--

x'<_ Tumkur Tq. & Dist.'

 4'

%/%

Venkataramanaiah  
S/o.1ate Thimmaiah
Major, 59 years
R/o.Hutchammanapa1ya _
Hamlet of Hebbur
Tumkur.Ta1uk & '
Tumkur District

Respondents.

(By Sri.K.Giridhar for R1)

"0020.-



K

OO'200"

Between : (In R.S.A.No.245/1996)'

1. evenkatarmenaiah
S/o;Thimmegowda.
age :V59 years

2. Smt;LChannamma
W/o,Sri. Venkataramanaiah
Age :.55 years

Both are residing in
Hutchammanapalya

Vﬂebbur Hobli

Tumkur Teluk & D1S£riet' 

../

(By Sri.VKa1im§11éeShaﬁiffg Adv.)A

.And ﬁfe'

'1;  véagéﬁapﬁaﬁaeya

W_ *5/d:mn1mmegow5a_ .5

"vmaJoﬁ' "ﬂ" "%

Rfomﬂutchammaaapalya e _ v

< jﬂebbur Hobli", ' '
u¢'VTumkur<Ta1uk*'
°_'&vDist:1ct}

"i eezg Si&da9an9appa-

. ~ S/o.Rangappa Betty
', age : 34 years'
VB/o.Hebbur
vTumkur Taluk

«[eeA& District'

.. Respondents.._

(Bf Sri. K,G1r1dhar forR1)

'OO3QD

_ 



00300

R.S.As. f11edAU/'s.1v"('V)5V 'd.'£; ;:£3 c'.-;,' H 
ﬁne judément and deéreé 5$ﬁé§E§2§Sfi993;p$§$éd 
in R«.A.No_.9'1'/99 and j,:f1-..3.A§ﬁo,9V4[€§£f' "ci§i""'thé %'
file of the Prl. Civiimgﬁdge, §umk§r,Ed;smissing
the apﬁeal andK§bnf£rm;ﬁ§gtﬁéaJudgmeﬁt'and Dedrée
passed by the Pg}; Mﬁh§iffg fﬁﬂkur, in D.S;No.
308/82:... 4a au_:ea :i1.:.é;.19s§~~_:':g_ng' 1}; :O.S.N»o.281/82
datgd'i;,§F$?} §gép¢¢ﬁi§é;y;W

   Tﬁ$§g?R;S%@é, cQming on for'0fders
£h;§'-- a;ay;,V £1j1e'T'  derive;-ed the
y foliowyﬁg g  b  E

JUDGMENT

'. 094.0 f 4Tnva: R.S.A. NO: 2s241995=s 22-1o-1993 ' , C/W ."x"z'r R.S.A. NO:

-Jeu D G M E N_;i;'""

The appellants sin é;$;a. No{V§4§}1§§5' (Venkatarasanaiah and 6st. Chehneﬁme)}fyse are the plaintiﬁf id '§;§:nQ: 251/193s ﬁn the file of she 9fi$c;@ei5'Munsiff, Tumkur, ﬁh;ch =sui§1 w;g_ Quéf fer redemption of mq;§§e§e¥ esd€,fe:Tp§ssession 6f the suit epn§p§§£y.:e%¢igf}sﬁ;ts was eismissedi F? """ ﬂthé?§r;5?'¢°ﬂ??' §55 the appeal pre- 'ferfed' egei@st Vs§éh. dismissai "was also dismﬁssed "b§ the first appellate Court. Hence. _ the 'p1éis£iffs are before this court in '" tEe "3F°ve "éééular Second Apﬁeal. ﬂ*f2;'i3; @ Tne 'appellant in n;s.A.No;'2s2/96 7 is the 5th defendant-(Channamme.'W/o. Ven- kaﬁeramanaiah, who was the 2nd eppe1lant/ efplaintiff ;n the other. appeal) i.e.. in

0.S.NO: 308/1982 which is a suit filed for%'Xnjunction respect of the suit pro- perties and _which suit was decreed by ;village. TumkurMTq. out,§ﬁ§ ﬂn7,ging'to Rangaiah, South-

the trial court and came to be con-

firmed by the first appellate Court. 'hence the. present appeal 'by alone.

the 5th de£enaa§tfgl=W

3. As the facts are ﬂcohmoni"ahd thghi

- properties are more.9t less Vcoﬁmen,,Ha} common judgment was grenderedaibf the trial court as we1i_wasfiFirst_appe1late"oodrt; 'consequehtl§, a ;c¢m¢ea _judgeept is deli- vered vby this é5utg_ 1§.poth¥ the appeals. The_.schedt1eS id ooth the Céﬁiti are worth- while_{tOa be thoted{l E ASchedulevin,Q:5,23l/82.j as could be seen fmmu_ the decree RSA;245/96} sy.No.§i/2;J4+25{gu5tas :

belonging" to Hehmru \ ef this 2/3 leaving 1/3 » '»(1-22) guntas en the nor-

"_therni3-03"bounded by . -west land of shumshuddin.

K West-land of plaintiff =in another mouls, and also land of Huchappa, North 1/3 and 1/2 belon-

the land of Defendant V"-Thimmaiah.

Schedule in 0.S.N0.3o8/82 as could he seems from the decree(RsA.gS2/96) 3 Aeres 3 guntas of land in Sy.No.9E/2, totally mea-

suring 4 acres 25 guntas,'i totally assessed at Rs.

4-48, dry; situate at »Hebbru village. Tnmkur Taluk boundaries for 3 acres 3 gs are on the East; lapd of Shamshuddin.

West; land of Hutchappa ' and 4th defendant in different survey No..

North; land of Rangaiah in the same Survey No. and South; land of iThimaiah and Venkata-

chalaiah AND \ \ I

4.' . From vthep above schedules, it wi1l*e be seen that Item¥1 is alone commoapa7p in respect of both the schedu1es._t§e@e§§»pfrW 2/3» of total" land 4 acreem 25 gontee;D§;e,,vHr= 3 acre; 3 guntas or lane in $Y§ﬁo,'§122,;u e_ﬂ The redemption _suit _is vinréspect of phie M ' one item alone. while rthe injunctioﬁfeﬁit . is in respect oi a1;mrtne'propert1es;ﬁ _S. V * so far as tﬁe,fecte' it Q,$.NO:281/82 is concerﬁeé;A it iie eeenevthet Sy.No. 91/2 ~measuripg 4 aé:es«;2s=gﬁ§£§s. situated in nehher_§1i1égg, iﬁmku£=ra1ﬁk was' origieally nbelong' e'to one Siddalingaiahg who' had threee soneC_hamelyV*Sio&aiiﬁgaiah,V Siddaiah and A chikkaeidoaieh; who inﬁerited the property 4;ef§§% ,the deatﬁ of their. father. one _of : jthe_eho§ex_three brothers sold the entire eexteet of éy;No. 91/2 to one Thimmaieh,p "whee 15> the 'father of Venkataramaneiah' pp(the first plaintiff in that suit), .When u x_ the 'power of one of the brother to sell the entire extent of property was ques- t1oned._ Thimmeiah filed a suit for parti-- tion in 0.s.ﬁo: 21/1949-so in the court of I \ Munsiff at Tumkur for partition and. separate possession of his 1/3rd shareis of his vendor(who had 1/3rd share is t§e*dLE* said 'property:. That suit dwas .§ecreeei"iii"' and in Execution case No, 130/1?S3):§.i Commissioher was .appointed «toe offset Vfﬂ »»e the. partition in termsﬂ of the degree; ﬁho:. divided the northern i}3rd "passion measu. ring 1_acre 22 gpntas "a§d Vdeliseied» posse- ssion on 26-3--195§tQ'¢§ﬁikkasioda_Lingaiah and Siddaiah.' the _otﬁer too isohs of ori-V ginal Preoositoft Sidoaiiooaisﬁi had mort- i gagedt tﬁeir Veneee iain seven: of two' perseaefg aéhikkasiddalingaiah had mortgae' ged = his oShsre*,§¢ ene H.P. Venkataiah SettY . on éeexo-1§4é;iwﬁi1e$ Siddaiah had mortgaged ' his; sﬁare 'to one Hosallaiah on 24-7-1949. *~§oth "the mort§ages_ were with possession. 'T'Later;"§angappa Setty. father of the. 2nd F_defehdant° got those mortgages assigned to ._n1d, done mortgage dated. 20-10-48 avzn-m;.49 cootained a condition that mortgagor could " p; redeem the same within 5 and 6 years res- ".i "pectively. This Rangappao Setty had attested the delivery, receipt dated. 26-3-1953 ( in Execution case No. 180/1953). The further contention of the*§ieih§_m2ef tiff/appellant was' that in §{S;§Q;":' 21/49-S0 there was ea a;r§c£i§net£§ﬁf_e;h mesne profits uh§er' §r§§r-;of3§;e.1:L The decree holder h£i1eq_ eh"a§pl§tat1on in the suit tehdi99§e.éh§§eree for mesne prorits_ ag§ihst@ exi; the ﬁertgagors,_ mprtgéeeéﬁ" egg _§$sigheee; In execu- ;<$v1:E:A_ thﬁeV._tIeﬁcr~eeV_ njvin Ex. NO: 876/1965, h; the' §£a§htif£$* were declared to be Vthe .pﬁ;§n;se§s of 2/3rd share in Sy. *C.v *N9. 91/2,mrAccording1y, the Court »_V1s§hea the sale Certificate hand also h'eeii§ery in Mis.142/66. Since northern 1/3rd Jwaﬁertion in S.N0.91/2 was delivered to Thi- mmappa, the father of the plaintiff, he gave it to b¢_of the same from the defehdants. .. 9 --

Rahgaiah his elder son; the remaining 2/3rd 1;'; . '9 ° ' -.'_ ebe1ong1ngLpnd-being in pessession of the Egsﬁf gnee mortgagee, it_was being dﬁltivated bf 7} "_' the 1st defendant as'a tenent; thie:2/3rd1R--w'u share was attached on.11-7~1957.£orLthe degree_ for mesne profitsv and suEseqﬁe§tly,ﬂ~thedéttééf ched properties are'a91d end purcheacd by ate t, d p;aintiffs: it appears; dhhgapﬁé Sﬁtty had ob- tained a sale deed' aria: tﬁegattadhméht order was passed and eﬁhseduent1§;:§§e,2nd defendant soid_ the same ta éne ;sggge£eg§a§c:, the 2ndd' ntdefendedt éﬁd we3'e tenant adder the mortgagee-"

I aesigﬁee is néwyebdtiﬁuind din p@ssess1on' and a3eertsdﬂthe£dheV£e in ﬁbesession 'as a purcha- set; _ even i£'t§é eele had takeh place ih Mfavoﬁsdof ﬁaﬁggpgédsetty..sih¢e'the said sale. A!jﬁés.ef£e6ted' dﬁring the subsieteece of the ' Muettenﬁment drder. the said sale is hit by- tdsedtddﬁudé C.PrC.d and thereﬁore, it is void/ "lde$_ ed§{hst the claim endorsed tinder the uuattedﬁhent: the zed pla1ht1££Vdwae'added as '~:,4pa£§y becauee .de¢easedAtThimﬁappa_had execu- dted e registered will beqneathing the euit schedule' property in her favour. Therefore, the pleintiff/appeilant herein filed 0.S.N0:

281/1982 before the trial Cqurt seeking a decree for redemption of mortgages Ldeted. .20t;o--1948 and 24~7-1949 and alsd fer pqseessioh ' ooooo-9/"

6. The said suit was centested by the defendauts by filing a written stateﬁant}xin I the written statement tit was denied t§egEgiVh .S1dda1ingaiah hadt a son by name VSiddaiihga§ée iah 'as stated- in para-2 of the §Iaiut}*that_u' Rangappa Setty never attesteﬂ tug deliveryf W teceipt: there are no mortgates date§.§0§;64i§48 and 24-7-1949 and eeen if tﬁefe are eteﬁ ear:-'V §ages[ they are notxsuﬁeietiug auévheuce the plaintiffs haue ad tight tcwredeem. them: that Thimmappa had no£_pu£ehaeéd 2/3rd share' in S.Né§"ﬂit:_tan§"ebtained*weale_certificate and ue1;v§£y¥reéé;§t in 31;. 142/1955; the .1$t*defen5éat wee-net"cuitivat1ng the southetn 2/3rd peftieh.ih,S;No; 91/2: that southern 2/3rd portian in S;ﬁe;ﬂ9i/2 was net attached en ;'11§7§i95j fer the amounts due uudet' the eecree 'ett£br mesneﬂtfétits; .that the property was not it' eeidi ta late Thimmappa; it was further denied ﬁi*AtuetfRéu§appa Setty had taken a Sale deed in i'.reepétt of 2/3rd share in s;no. 91/2 subsequent, to attachment: and consequently; the sale is ﬂ,p°t hit by section-s4'c;P.c, that there is no will executed by late Thimmappai it favour of the 2nd plaintiff: _Thimappa had no right to bequeath the suit property; .it ieteencocted and fraudulent; the plaintiffs ﬁave no right i,to/redeemt the mortgages dated. 20410-1948' baoolo/9 / 1/ and 24-7+1949: tHat.the plaintiffs are no; ﬂentitled for possession}

7.. . lThé further contention of ﬁhﬁ d§£éﬁ¥Vi dants was that S.No, 91/2*imeasufes_ I ac£es;H 25 guntas: out of this. nérthérh i*aéﬁ§ ii gﬁﬁﬁ. tas %was allotted tn ?@imm&ppé,_th§ £ath§r3 X Vof the gist plaintiff éné the is: aefeﬁaane in a suit for ge§esa1;ﬁ§fti§i§n; th§"rémaining southern- 2/3rd péftioh-65 3§adr§Si was in posse- ssiqn and énj0y@éﬁ£>§f[Sid¢aliﬁ§$iah'5 Ego _ sonj7 gig, ﬁﬁgxkiisigdagghiaﬁdméiddaiah: Chikka- s1dd§iah'fﬁ§; gajﬁfing Eng ﬁbtthern half of th1s% 5-§3 #éf$§ H§§b ﬁdﬁtgéged 'the above portioﬁ to oné Hégalléiﬁh u§6af a gegistered mottgage deed dat,'.L 15<-4VV-'-J_._95.3" filotig with other property _1;i ' uﬁiﬁoiv91/3«ﬁ@§§§hfing-14Vgﬁﬁtas:' ﬁhe said V A ' 'V{ Chiﬁki$i§da1éh,subsequent;y sold £he_afofesa1dM ﬁgjpiéﬁéfﬂigﬁk to-one H. Rangappa--$etty subject . .4£o.tﬁéﬂa$ove\mbrtgage ﬁnder a registered deed I of sale daged._24-7ei959: the said Rangappa AAia$e££y.d1scharged» the mcrtgage ,am6ﬁnt and tdék V '§osgess1on of thé said 1anda;' thus Rangabpa se¢tyi=waé enjoying the said preperties in his own right and after his death. his ﬁon 'the . 2nd defendant was enjoying the same in his owni right} thereafter, the 2nd_defendan£ seld thef j; same to the 1st defendanﬁ under a registeﬁed 'loooolll/-

i..__Tpus the suit was resisted' by the defendants, ;. parties.

_deed of sale dated. 26-12-1981 and put him in possessien and since then. the 1st defeﬁé, dant is in possession and enjoyment o§_sthe:iz same_in his own right: the further cenueﬁe" déd' 1 ties 'of the defendants wss that Siddaiah ﬁes» ° the Owner in possession cg sgutherp half gape ? tion of 3-03 acres in southern 2/dédjgoktiosi of S.No. 91/2 and has m§rtgaged_ the sea; with»V possession to one Venkataeﬁaay/0. Hcseliaiah _ under a registered msttgage deed" dated. 15-4-53 aiohg with.$.No,e9L/31xmeasefiagiii guntas: the said Ve§#atahma_assigsed'~the said mortgage 'in favcu: at ﬁg Rasgappa.3ett§ ﬁnder the assi- gnment deed ¥dated;d13¥4a1§64; thus Rangappa .Setty-- caie is pesséssies of the said portion

-and the said Esngapﬁa setty gave actual posse- ssjen ute the 15: defendant and Rangaﬁpa Setty '-- ﬁad been is céhstructive pessessicncof the said V *idland};"e§ee1st defendant has been in possession 'jHfe£itﬁeesaid land continuously even after Range- dppa Betty leased out the same to the 2nd defendant.

8. The other suit is fer injunction in §E§.3-9E§S£.ﬁf9EE£E%§§° respect as the same subject matter j As already poiﬁt Vent. the redemption Vsuit was dismissed and the injunction 'suit was decreed and these secend appeals have been filed by the aggrieved ' 000012/'3 9, These two regular second appeals have been admitted don the follow1ng»quese9 tion of laws-

1. Whether the two courts below were ~r1ght in holding that thereﬁiswnor 'violation of the provisions of .§ » section-64 of C,P.¢. in the facts ,_f and circumstances yof the case?~"s =

2. Whether the two courts ,below were. right in construing the extent mene t1oned_1n the_sa1e certificate with-

-out :regard'to~:he7houndaries shown _ therein and thus ikejecting the said sale certificate ia the facts _and circumstances' oﬁ the case?t» 10.5 ._FrTherefQ$e}.theacrugﬁ~ of the problem is tﬁet tﬁﬁ sale certiﬁicate or that the sale' ofirmﬂ ithat'hasxtakeh"ﬁlece under ExaPg4 .i8Lb1ﬁd1n9t oh ﬁangappe Sattgi under whom Siddagangappa.

-»the ind'dereudaht claims to have purchased on "V 35-351955 "to an extent .5: 1/3rd share .or W d"~ Vgeﬁ mortgage, assigned in respect of 1/3rd ' share of Siddaiah, ' ;li. It is no doubt true that there lsr vdV. no attachment meotioned in execution procee- ding and _the approach hof the courts below is more or less presumptuous.. Though. they have considered Sect1ona65.cPC that has not teen correctly done; Under Sec. 65 which runs f as follower-_ 900.913/'_ I can "449- " Purchaser's titlezs where immovable t preperty is seld in executien of a e,e. .@ewr;udeenées and such saie has'beceme mt7e*t3i absalute, the property shall be5x ,L, Adeemeﬁ to have vested in the _ﬁu;--fﬂ. ¢haser_ frem the time when the pfeﬁ x perty .is sold and ﬁet item :the}-' time when the sale beeomeeeabse;nte;"nti~h The purchaeer's title heeemee ieémeiete and absolute and the hfeeuﬁetide ,thet there has been. a valid atteeh¢eet*héfQté t$§ sale teik place in ;,§§ufg§ehetient}}E§;thef.iin.as mueh a_s_ the 'c§;.eié1da1eh,' iemsuﬁeist ing there is he imgediment Eek gtehtihe the rededption inatesﬁeét;é§{that"ﬁ§rtgaee in whmeso~ever hanes"the'§tepeftie3«"maf be; e£@{_5 V oh¢e;the,pfoperty is hrought 'to i"tealiE.ih%a'court auctioﬁ, it is not open te 'fehyiéﬁettjieter to question' the attachment Aaendtceheeeuentlye the validity of the sale : on e reéappreeiation of evidence or any . n'i@pcehents.' .It ie.signi£icant to note that. 'ithe delivery receipts is signed, by Rangappai. Setty 'himself. »There£ere.' it is too' late ' for the person who claims under-Rangappa Vsetty 'to question the -said sale or attach- Vment. 0: the validity; of any sale in court i/of law which can be thrown cut at any-point of oooo14l."' ;. 15- time. In this case, the sale has taken place after the attachment 'and in the isl abasence of an attempt of going intQ,_sslhr' the doeument or oalling upon for the tf"h"

records. the Courts Ahelow_ are not jesuia ; fied in coming to the.con¢lusion F9r['r§i;é_x;~ sing presumption that'thereTis' no,attaoh-1 V ment at all. Relying ﬁpsn» certain sdoenﬁent :produced without ,seein§ stheVoriginal file, the Courts cannots come§ to ithegdifferent oono1usion.Ajespeciallf when sneither the attachmentéinor._the_Vsalesisaswgquestioned w1un1n'igh§j;£im§i"§:é;c:15ga; by law or any" suit? was *£i;§a sﬁestionings the same." 9 But graising oﬁ as*defenee. questioning the H sale fcannot"beoper@itted nor it is permi- g;1L1.e -in "

" l3»nﬂw' Its is also necessary to place "ssh récégaf that the delivery receipt fist £qgnak'£¢ have been attested by Rangappa aA.gsettyl Therefore,» it is notiopen. to the "wpartiee now at this stase to question the. validity of the sake. Once it is if ﬂ found 'that the sale is valid in the eye -16- time.' In this case, the sale has taken place after the attachment and in the absence of an attempt of going into the _' 'L document or calling upon fo: the records, * the courts below are not justified 1n_¢eg1n¢ ii"

to the conclusion or raieieo'presemption that 'there is no attgchoent ﬁt eii, ﬁﬂglyihﬁ epon certain docﬁeent ptodocedﬁeithoetieeeing the origihei fiio, the Eoette canhot.come to the 3119 when neitheh the ettecheeht not the sale was questioned within the time prescribed'by law op any shit ﬁae filed questioning the same,' ,w,_eﬁt feioing of 5 defence questioning the Ayp geig ﬁehhot be permitted nor it is pegmis-. psibleiihtiaw.

=1j; / It is also necessary to place on ;>,N"i,ﬁ Erecord that the delivery receipt is found

-,\ _ 11;' to have been attested by Rangaooa Setty,~~:itih§JW_ Therefore, it is not open to the partiesa is now at this stage to question the veLiéity°,¢£i,_? of the same. 0nce.1t is ﬁound that the seie 7;"

is valid in the eye of 1a§.§na there gas 5 mortgage which remeies to he else:/redeemed, the decree shall fg11§w,£§;;reae§ﬁ£1én of 'the mort9§§ea§¢c ,h, tux :iaU=*-r» _ 14.:i 1111 ":iI§f1§&£r§§*s§rmeii§; the V£1ndiﬁgs*reno§rse sj the Courts below cahnot bej;ntegf;gea"w1th in the second ii°*'eoﬁeei» "Bot Qﬁéa a blind mistake is found i¥Hi3oo'hiooeerois found on the judgment, which is agaiﬁst all cennons of law. certainly ' uigthe see has to be set aside and that is Vina; the finding of the courts below are to hibe set aside.' Therefore, the first question of_ ( 4 law is answered in favour of the appeilant. , _ .

1

- 13 -

Arguments pro and contra whether concurrent finding can be interfered withcfl by the High Court sitting in the eecond_epoeel;f:"V were eubmitted by either counsel. _~;»lWt".

The Apexi Court in-the case of Jaddieh Sindh v¢;"~ Nattu $inQh,rA.I.R. 1992 scfieo4," nae, nej§»W3§ followeﬁ' K i i "where the concurrent findings of fact are vitiated by nonrconeideration of relevant evidence on; by geeeentially wrong eoproachﬂ High "Court_ is not precludedv ffrom « recording V proper findin9e,Wl_NM u % m * '2 N Thee Apexe Court' in" the _oaee of Kochukakkade Aboobeckerhue._ ntahkasim, A I,R. (1996) 7 sec t_;3e9,,neid.thue+,fV :

_."where 'the trial court and the firetn .' appellate court have not considered ' relevant" documents in proper "perspective and effect of those documents on the righte of the partiee, the High Court is entitled to l,"*areconeider_ the evidence by 'drawing ._ inference'by the admitted documents." r.j+he dictum in Medan Lal ve. Met, eopi; AIR 1980 l,fﬂ:$CL1754 ie to the following effect:

on the queetion

- 19 -

"whether both the courts below'ignored . ithe weight of preponderating .andW" allowed their judgments to be influenced by inconsequential mattereir , the High Court would be juetifiedfin E . . reappreciating the evidence" and ,in". coming to its own =_indePendent' conclusions." T ~1< 1.' '-- .

In another decision of the Sunreme Cowrtireeorted in Major Singh vs. Rattan,$'in.Q'hiu"-I.L.F2t;'--.. @997, Kar. 2373, this court~naiss7.ne;1§-¢1 "The tria§r court . and" the' first appellate iQowrt_a_rejeCted . material eviderce,on 'flim$y'agroundeL High Court 'heel right 'to _ interfere on 'queetione of Facts in each caeee." The dictum in 'D}$}iHThimmappa ve. siddaramakkag 1§96 8 $CC 365, is to the Following effect: f_Vwhere jVthe ' first appellate court . *failed=to draw proper inference from a proved} facte and to apply law in "proper perspective, High Court in eecend 'appeal justified in drawing nV, proper inference from such 'proved 'Kfacte. It "being . not a case of appreciation of evidence, High Court'e A" ﬂ interference was proper,"

5 r {gs A -4133- On the other hand, it is contended for dtheu contra position, the following dicta arewrc1iéd,rV UF-'OT'! .

In Kondiba Dagadu Kadam vs. :E&8éQitribaio'Sooanx7d Guraj, 1999 snn (Civil) .623}, the {following proposition is relied upon. xi "Concurrent findings of fact; however, erroneous cannot be disturbed xby" the High Court_ in exercise of'ths'powers under Section {1QO~ CPC'=TinW. second vappealif f s ~ « a . ' The idictum tin rDnY§noba: Bhaurao_ Shemade vs. Marotibhaurao'MdrnoriVl§§§ SAR (Civil) 164, is to the following eftsctiii / "u;"The MHigh Court while exercising w. jurisdiction undert Scction§ I00 CPC agcould not interfere with pure findings » ,_ of facts reached by both the courts:

V below" on appreciation' on oral and docgmentary evidence."

inc dictum in $mt. Deokali vs.' Nand Kishore and

-_ "ad smother; 1996 AIR scw 2136, is as followst ae _ 21 _ "Concurrent finding _ of fact that 'execution of will wee duly proved. . .Examined by High Court would decline 7 to interfere with the eeme. Alleged» A euepicioue circumetancee were »aleQV'A"

,e><amined." < * The Apex Court in Ramanuja Neidu_ye. "Vgd:Kanniah, Neidu, (19%) 3 sec :a{9:aV._has_~§ a§'~.fo11ow'eiAVV ."It is fwell" settled that concurrent findings of fact of' trielv court and

-fireti appellate? _court=;=cannot be interferedfwitr by the High Court in exercieeﬁ of ~ite ajuriediction_ under 'Section 100 of Civil Procedure Code."

The cunutetiuedeftect of the above decision, d"in me opinien, is thet the Hioh Court is not Vaexpected to interfere with the concurrent finding §ni the 'dueetion of 'fact«and euch inference ie . pernieeibie only in cases where the courts' below V committed. errors" by nonwconsidering Arelevant *oreuidence or made erroneoue approach to the issue "w," involved. or where proper inference is not drawn hf for the proved facte and law ie not 'applied in d\e"~ 1 the proper perspective.

- 9.2.---

The above decision" that emerges that_ Ain case=.tﬁe*&§6gment' of the Courts be1ow7srj are based upon wrong notion_ of 1aw;~andit5i the finding is rendered on facts ia§1¢nf"

are not 'available on record «and»mofet V or less presumptuous._ this1Cbﬂrt4sitt1§§ﬂ_i7T in the second appea1< can eeftainlj"}g9M.'§ iinto the question and Voorrect'«and resti- fy. the mistake 'done? ﬂy gne* trial Court. 'The basic principles_ of law 7that has been "iiés-'unas;s>x:£;;o:i by coui::_ube1o§v is that "ones 5tae_*sa;e ais»_oontifned and the sale _ée§ti£ieate"Sis'lisseed_and it Vis ' foilowsa" by the oeiivety 'of possession, the reaopeningleofftheﬁsaid proceeding is not open. to "any.courtf in view of Section-55 .f5£:¢;P9°-"i"<H.¢ .....

i.i1S. i3Ti:$§slﬁasstasgutheisseoond 'question '= the provision of 0rder--\Z} kis'feonoerned, when 'no claim petition is u'n,ifi1eo to question the sale, except under and Rule--5V or any_ other 'provisions of CPC or 'on the gronnd of fraud, 'the Court sale cannot be set aside at all. The first mistake eommitted by the Coﬁrt belowt is <4 the followingv finding?-

4 'F 235- " V It 'is more 30, compared to__ column No. 13, vwhich. is meant gar. particular regarding. affecting" ﬂex satiefaction of decree, orﬁere=faf1~"

etc.' ,does not mention Hany_attach4'fui= » ment ordered. As ~such; tnere is,; ' no attachment, ordered} at ganyoe_fe__"' stage in the proceeding pertainingai°gH to o.s.No. 21'/4x9-so-.. " ax.P._.3Vw.i.Vv£.um.~.her mentions the Qeliverf _of peeeession and receipt gobtained' on'03--Q4-1957. This p:eeumnb1y.lre£ers to .the delivery fand=§oseeéeion of 1/3rd share gof"the*p1aintiffu of that iéanit and not anj*other extent of . NI' .

,/ 'gAc¢0rdi?g#lto»the_Courts' below. there is no mention cf any "attachnent in eo1umn--13, VoVconéeqnentliK it mast be' ﬁeemed that there "5. is. no attachment at all. Tnis view of ,the;C@urt below is prima facie wrong and A"thie'finding 'sought to be rendered after', _a'period of nearly twentyfive' yeare.

"_lt is 'seen admittedly, the original records have not ibeen produced. Theg mere non mention of an attachment in the 'said register .ﬂoes not mean that 4 there was no attachment at all. I 5 ~_ 4h---2.z+.-

16. ' ion the other hand. the approach by the appellate judge 'is that the attach§f4l, genté must have, beenV before the Ju§§meet;3;ix resttieting 'the Vfurther_ alienatioh till ~i the disposal \of the case," Normally? $??§:*t attachment is ordered befcrei the jqag@eh{ﬁgT7f ahd the "attachment decgee ihasj beeh passed, the question of again iattachine 'the pee- 'party when nthelﬁropéttﬁ' gag _broeeht to sale' does not a£iee'fat5 el1Qfhi9nee iti T is seen _that_ theiﬁi it? was 'ettachmenti before .jeggﬁ§a:; a§n;ea;ia§p§§£: consequen-_ tiall? "By the trial (coﬁitihiTﬁ§n{ﬁieectioneéiwiCPC' automatically coee. to plaf; _Anf" alienation eade after sqch--attachmepti_ieE'eertainly not" valid the evé i~ail7Q"Tcf_=:Ih 'fact,' the sale certificate 4"1sseea, under Ex.P,4 is' clear and date? hgofie that the Court auction purchasef li.V:Venkataramana1ah' has» been declared 'as outchaser on" a public auction held on 10-01-1966. The relevant portion of the 4 said certificate reads' as follows:--

/ T' ' ' ' ~ .

H' 2x5- ' " 'This is .to certify that Veﬁkata- ' .ramana1ah s/b. Decreeholder has' ".

been declared the purchaser at a7,ia saleé by public auction on tﬁe"1ath1;"

ﬁroperty in executien of détteefzn, = day of January 1966 of the S9hedule"-- 'this suit and that said sate has heed _T duly confitmed bi the Court *en."

2nd day of Matty 1966." V *""

18. In fact fan attempt' ieé beiag wade to confuse the ieenalityrrelﬁiag upon the bounda;iee;. Ttei ﬁere'fﬁ¢9i description of the =eéaedeie"t§gee_ adtingllify the sale eegtifitateg'tﬁhieﬁ:{§§§fsettled law and that ';gae_le§e;leeked_tpY.the Court below. The A eugden 'else: heeﬁheen wrqng1y* placed on :_thei"plaiptit£tldit ie also settled lag _ii.t§at_the'pe£aon who alleges" aay fraud ' ﬁes ate_ prove his case. xIn the present '9dt date, Qwﬁen the defendant gqaestioned tee _ 'ﬁacteﬁi of attachment, it is. for him '"te prove that there is no attachment "at A "2, all. In. my qpinion. even the defendants are estopped for claimingi against the validity of the sale, as the delivery note iwas attested by %Rangappa Setty,

- \ 4 the father: of the 2nd defendant himself' /. * . A _ . V

-*2L6 --

in G.S.No: 281/1982 who got the mortgage_ in his favour} 'This "fact was not consiere, dered by both the Ccurts belowi and "has 7; » consideration of this fact is _ahTerrer~i apparent on the face of ree6rd,i This 2/are 3 share in Sy.No. 91/2 is rs1aimedL2§&,thefiW,:e defendants Venkatappae*andriNarayahaH§whgh} are plaintiffs .1n o.s;m¢, ;oa}1a§2 on the basis bf sale' deedj said stc,have heen _éxecuted by Raneaﬁpa settyK"ih favour of de£ehdant9é1,aad ﬁr i¥Thé: 1ihki that missing is that in: the eggs --s£ the Wtitle of the ' defehdahtsiiyehhataﬁpaeiahdV Narayana in I respeet" Qt theses progerty is not answered by the dourts helsﬁn excepting observing in paradraphuj 9f the Judgment. wherein the» h~§r:a1 Cohrt. find "H. Rangappa Setty was ".,mihi§9ssession 'of the said hortioh and he Vt9_ga§éiJthe mortgaged properties ts plaihtiffs A«land~ he' gave the constructive possession as fan assignee." In what manner. this. x iVm¢rtgaged properties were given to the eﬂdefendants-Venkatappa _and Narayan(who \are plaintiffs' in o.s.No: sea/1982) is not - explained.' Both the courts below _have not Vgf even. given the facts of the case that /1 77 I

-.. 2,1..-

as alleged in the plaint in 0.S.N0: 398/82.

19. Shile dealing with Issqé magi iajg o.s.No: 308/1982 which 'is to the eﬁfect '"

" Whether plaintiifsﬁvehhatappaia Nara; yana) are _1h lawful possession "

of the suit schedule properties?.'. 'the finding V05 theT trial Qourt "isi that ' Athere- is one isale_ deed ghhder which Rangappa Setty is said ge have heen sold the porti§hA}of the proﬁertjh tot defendahts-1 andrggl $ht7 as far has} the other properties :"ﬁhich?¥aere'jﬁortgacedh to Venkatappa, which dmortgeoei vasd assigned in favour of Rangappa rudder E#}P:l4; there is no link of that ~ i'particalar ﬁroperty having' beeh' sold to ﬁ.5the7ap1aihtiff is o.s.wo: 308/1982. Therev. h7 isaxé; "the question that they being in laéfui possession doesﬁ not arise rat all. 4'."Atleast' in respect of the property claimed "by the plaintiffs in 0.S.NO: 281/1982.'0 '

20. There is "an attachment' before jddgment and the property was brought to sale and sold "in a Court auction, in the 1 ¢ delivery note,: the vendor of the defendants. K' a*¢ rat éupfa;

._ mg -

' in D.S.NO: 281/1982 has attested the fi said delivery note. Therefore, it is oot"t¥'"

(gkaintiffs in ©;S;3@§Z§3)_ open to the defendants/wﬁo cI5Iﬁs -unaer_= "

that' attestor to question egﬁchj ooﬁrt» "

sale. especielly Vwhen their" feﬁdor "heeﬂ_'¢t not filed either o1eim_ ﬁetition ,or;te petition to set aside ;the= sale®_Uhieri9roe:-21 Ru1e~§9 or 'oraer¢21.,an1§géo. or etieaet on the ground Vof frao&,§ far took circums- tances} the Coﬁrt"*e§ienioeoﬁot ﬁe ignored nor.iit_iﬁeéeoﬁtﬁgaoioeiieetithis tie an error ioo@itteﬁ~Eﬁ&'the*oourt;be1ow, this Coﬁrt "sittioo it the «eecond appeal is com. peiieé: to tinterfer"_ﬁith such finding . rendefeo _b§_ the éoerts below, applying ' the; above_§rincip1es' of law' mentioned A%21.r':e?So fer as the other two »proper- tiee? are concerned, which are iteﬁ--2 & 3» A:iin«0.S;ﬁO: 308/1§82 «there ie no claim oade iity the plaintiff in o.$.No:-231/1982.' V Therefore. the finding' in respect of the Vother suit-i.e. O.S.N0: 308/1932 15' L modified, confining the injunction 'only "(a in respect of items-2 and 3 alone. ,/ , '- seq -

22.-- In the result, the appeal in R.S.A.NO: 252/1996 erisen out of 'O.$;1. No. 308/1982 is partly allbwed .mg¢:£§igge the decree of the. trial 'G§urttTtegt§e"el"A extent of items-2 and 3ma19ne;l""R;$,K;ﬁx', No. 245/1995 is a11oﬁed';aaa 3:he"£in§1pgse reedered 'by the ceurts lbeleﬁ' is ;set _ aside; the suit '£ﬂ{e§smuee{28i71eeii: ls decreed with qest, as rﬁreyed lf6r;t The time \for reéeeptlogigieefalxt months. 'ﬂIn}the_eifeeﬁstah¢ee7*"thereV shall ' be he pfder'»ae as costs;'

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Karnataka High Court

Venkataramanaiah vs Venkatappa on 19 December, 2011