Karnataka High Court
Smt Renuka vs Mallesh K H on 31 August, 2023
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NC: 2023:KHC:31309-DB
RFA No. 1493/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1493/2012 (PAR)
BETWEEN:
1. SMT RENUKA
W/O MAGANNA
AGE: 32 YEARS
R/O ADENAHALLI VILLAGE
BASAL POST
SHRAVANABELOGAL POST
CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 573 201
2. SMT RAJESHWARI
W/O BASANAGOUDA PATIL
AGE: 31 YEARS
R/O BUDHIHAL
SHIRAHATTI TALUK
GADAG DISTRICT - 582 101 ... APPELLANTS
Digitally signed
by PRABHU
KUMARA (BY SRI. B M HALASWAMY, ADVOCATE)
NAIKA
Location: High AND:
Court of
Karnataka
1. MALLESH K H
S/O LATE NINGAPPA
AGE: 28 YEARS
2. SMT VANAJAKSHI
W/O LATE CHANDRAPPA TOTAGAR
AGE: 30 YEARS
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NC: 2023:KHC:31309-DB
RFA No. 1493/2012
3. SMT DUGGAMMA
W/O LATE K HUCHAPPA
AGE: 80 YEARS
All are R/AT NO.1286/2A,
1ST MAIN, 9TH CROSS
WARD NO.5, 10TH DIVISION
VINOBHANAGAR
DAVANAGERE - 577 002 ...RESPONDENTS
(R1 & R2 IS HELD SUFFICIENT V/C/O DTD: 26.02.2015
AND 16.12.2019;
NOTICE TO R3 IS DISPENSED WITH V/C/O DTD:16.12.2019)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO SET ASIDE THE JUDGEMENT AND DECREE DATED 12.03.2012
PASSED IN O.S.NO.146/2011 ON THE FILE OF I ADDITIONAL
SENIOR CIVIL JUDGE, DAVANGERE, DISMISSING THE SUIT FILED
FOR REOPENING THE PARTITION AND FOR AWARDING THEIR 1/5TH
SHARE IN THE SCHEDULE PROPERTIES.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
K.S.MUDAGAL J, DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the dismissal of their suit, the plaintiffs in O.S.No.146/2011 on the file of I-Additional Senior Civil Judge, Davangere have preferred this appeal.
2. Appellants were plaintiff Nos.1 and 2 and the respondents were defendant Nos.1 to 3 before the trial Court. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
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3. The case of the plaintiffs in brief is as follows:
(a) Defendant No.3 is the wife of one K. Huchappa.
Huchappa had a son by name Ningappa. Nagamma was the wife of said Ningappa. Ningappa, Nagamma and Huchappa, predeceased Duggamma. Themselves and defendant No.2 are the daughters and defendant No.1 is son of Ningappa and Nagamma.
(b) That Huchappa was working as Checking Inspector in Davangere Municipality. Defendant No.3 had no income of her own. Huchappa purchased all the suit schedule properties in the name of Duggamma-defendant No.3. Plaintiffs and defendant No.2 were all married and residing in their matrimonial homes. Defendant No.2 after the death of her husband on 20.08.2010, returned to her parental house and has been residing with defendant No.1.
(c) Defendant No.1 taking undue advantage of the age and ignorance of defendant No.3, misrepresenting to her that he has to borrow loan for fencing Sy.No.215 and -4- NC: 2023:KHC:31309-DB RFA No. 1493/2012 for that purpose she has to execute loan document, got executed the registered partition deed dated 13.02.2008. Defendant No.3 was not aware of execution of partition deed till recently. Defendant No.1 to defraud the plaintiffs and defendant No.3 clandestinely obtained the partition deed dated 13.02.2008 from defendant No.3. Therefore, the said document does not bind them. As they were legal representatives of Ningappa, they were necessary parties to the said partition deed.
(d) Subsequently, defendant No.1 misrepresenting to plaintiffs and defendant No.2, again devising same strategy of requirement of execution of the documents to avail the Bank loan for development of land in Sy.No.215, got executed a registered document dated 05.12.2008 in the office of Sub-Registrar, Davanagere. One of the friends of first defendant by name Parasanna also induced them to execute the said document. They were not allowed to peruse the documents, only their signatures were obtained on the document in the Sub-Registrar's office. Plaintiff -5- NC: 2023:KHC:31309-DB RFA No. 1493/2012 No.2 and defendant No.2 do not know to read and write, they have learnt only to subscribe signatures. Plaintiffs and defendant No.2 subscribed their signatures trusting defendant No.1.
(e) In the month of August 2011, defendant No.1 started opposing the plaintiffs' visits to their parental house. On confronting him he revealed about the documents dated 13.02.2008 and 05.12.2008 and claimed that they have no right in the schedule properties. The document dated 05.12.2008 is purportedly a partition deed between the plaintiffs and defendant Nos.1 and 2. The said document is unilateral one. Though the said document recites that the plaintiffs and defendant No.2 have relinquished their rights in the properties by receiving Rs.5,00,000/- towards their share, there was no such transaction. Therefore, partition deed dated 13.12.2008 and 05.12.2008 do not bind them.
4. The plaintiffs prayed for the judgment and decree to reopen the registered partition deed dated -6- NC: 2023:KHC:31309-DB RFA No. 1493/2012 05.12.2008 between them and defendant Nos.1 and 2 and to grant decree for partition of their 1/5th share in the suit schedule properties. The subject matter of the suit are agricultural lands bearing Sy.No.214/3, 215/3, 216/2, Sy.No.87 and house properties bearing D.Nos.1171/1, 2, 3, D.No.1286/1B and a site bearing Sy.No.74/2.
5. Defendants despite service of summons did not appear before the trial Court and contest the matter. In support of claim of the plaintiffs, plaintiff No.1 was examined as PW.1 and on their behalf, Exs.P1 to P90 were marked.
6. The trial Court on hearing the plaintiffs, by the impugned judgment and order, dismissed the suit holding that
(i) The plaintiffs though claimed that the partition deed dated 13.02.2008 and 05.12.2008 were fraudulent one, did not seek any relief with regard to partition deed dated 13.02.2008.
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(ii) The plaintiffs have failed to prove that partition deed dated 05.12.2008 is fraudulent document.
(iii) The self serving testimony of PW.1 was not sufficient to disprove the registered documents.
7. Assailing the said judgment and order, the plaintiffs have preferred the above appeal. Pending this appeal, defendant No.3/respondent No.3 died.
8. Sri B.M.Halaswamy, learned Counsel for the appellants reiterating the grounds of the appeal submits that PW.1 in her deposition has asserted that defendant No.1 has played fraud on them and that was not controverted. The relationships between the parties were not disputed. The plaintiffs being the daughters of Ningappa, who in turn was the son of Huchappa, are entitled to their share in the schedule properties. The trial Court without appreciating uncontroverted evidence of the plaintiffs dismissed the suit which is erroneous and liable to be set aside.
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 Analysis:
9. Even in this appeal, despite service of notice, respondents did not appear. As already noted, defendant No.3/respondent No.3 was later reported dead. Generally the first appeal will be admitted for re-appreciation of the evidence. But even during such admission the Court has to examine maintainability of the plaintiffs' suit and whether the evidence adduced prima-facie shows the material to admit the appeal.
The plaintiffs claimed that Smt. Duggamma's husband had purchased the properties in her name out of his income. Therefore, firstly they had to prove that contention. Secondly, they claimed that defendant No.3 due to her age and illiteracy was depending on defendant No.1 and taking advantage of that, he played fraud on her and got executed the registered partition deed dated 13.02.2008. Therefore, they are required to prove the second aspect. Thirdly, they are required to prove that partition deed dated 05.12.2008 was executed by them -9- NC: 2023:KHC:31309-DB RFA No. 1493/2012 under fraud or misrepresentation. Most crucial aspect is whether the suit as brought by the plaintiffs/appellants was maintainable.
Reg. the acquisition of the properties by Huchappa in the name of defendant No.3 for the benefit of the family:
10. It is not the case of the plaintiffs that Huchappa had inherited any properties from his ancestors. They claimed that Huchappa was employed as Checking Inspector in Davanagere Municipality and he acquired the suit schedule properties in the name of defendant No.3-
Duggamma. Even assuming that he purchased the properties in the name of Duggamma they cannot be called as ancestral properties of Huchappa and consequently, the joint family properties of Huchappa and Ningappa.
11. The plaintiffs do not even say that along with defendants they constituted Joint Hindu Family. Their own case is that properties were being enjoyed by Duggamma, defendant No.1 playing fraud on her, got executed the
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 partition deed dated 13.02.2008. Whereas Duggamma during her lifetime did not claim that defendant No.1 got executed that document by playing fraud or misrepresentation on her. If any fraud or misrepresentation is played on a person, it is for that person to assert the same and a third party to document cannot make such claim.
12. It was contended that even assuming that they were exclusive properties of Duggamma, under Ex.P88 admitting them to be the joint family properties Duggamma got them partitioned along with defendant No.1, such admission binds her and defendant No.1. Even in that event, the burden was on the plaintiffs to show that as on the date of suit all those properties were standing in the name of plaintiffs and defendants.
13. Section 132 of the Karnataka Land Revenue Act, 1964 (for short 'KLR' Act) requires the plaintiffs to annex to the plaint, the records of rights or register of
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 mutation of the suit schedule properties, whenever a suit is filed relating to some land.
14. For the purpose of better appreciation Section 132 (1) and (2) of the KLR Act is reproduced as follows:
132. Certified copies of records to be annexed to plaint or application.--
(1) The plaintiff or applicant in every suit or application, as hereinafter defined relating to land situated in any area to which this Chapter applies, shall annex to the plaint or application, a certified copy of any entry in the Record of Rights or Register of Mutations relevant to such land.
(2) If the plaintiff or applicant fails so to do for any cause which the court deems sufficient, he shall produce such certified copy within a reasonable time to be fixed by the court and if such certified copy is not so annexed or produced, the plaint or application shall be rejected, but the rejection thereof shall not of its own force preclude the presentation of a fresh plaint in respect of the same cause of action or of a fresh application in respect of the same subject matter with a certified copy annexed.
15. In view of above said provision, the plaintiffs were required to produce the records of rights of suit schedule properties or mutation relevant to such lands.
(i) Item No.1 of suit schedule property was the land bearing Sy.No.214/3 of Kundwada village measuring 34 guntas. According to the appellants'
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 counsel, Ex.P11 is the RTC relating to the said land;
(ii) Item No.2 of the suit schedule property was land bearing Survey No.215/3 measuring 05 acres, whereas, Ex.P17 which is claimed to be the relevant RTC relates to Survey No.215/4 measuring 03 acres 2.08 guntas;
(iii) Item No.3 of the suit schedule property was land bearing Survey No.216/2 measuring 03 acres 27 guntas. Ex.P33 which is claimed to be the relevant RTC pertains to Survey No.216/8 measuring 02 acres 2.08 guntas.
(iv) Similarly, item No.4 of the suit schedule property was land bearing Survey No.87 measuring 1 acre 28 guntas. Ex.P82 which is produced as document relevant to the said property relates to Survey No.87/1.
(v) Item No.5 of the suit schedule property are the properties bearing Door No.1171/1,2 and 3 measuring 34 x 25 feet. Ex.P87 is produced as Assessment Register Extract relating to the said properties. But the said Assessment Register Extract relates to the year 2001-2002. It does not depict what was the position as on the date
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 of the suit or as on the date of the execution of the aforesaid two partition deeds.
(vi) Item No.6 of the suit schedule property was the residential building bearing door No.1286/1B measuring 10 x 34 feet. Ex.P84 which is produced as Assessment Register Extract for the said property relates to the year 2001-2002. What was the position from 2001-2002 to the date of filing i.e. 2011 is not forthcoming in that document.
(vii) Item No.7 of the suit schedule property was the Site bearing No.1 measuring 37 + 35/2 x 42 carved out of Survey No.74/2. Regarding the said property no Record of Rights or Assessment Register Extract were produced.
16. Learned counsel for the appellants relying on Ex.P90, the Mutation Register Extract submits that Section 132 of the KLR Act states, either Records of Rights may be produced or Mutation Register Extract can be produced, therefore, plaintiffs' case is not hit by Section 132 of the Karnataka Land Revenue Act. But the very same Section says that the Register of Mutation relevant to said lands shall be produced.
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17. Ex.P90 purports to be the extract of mutation entry No.180/2008-2009 that is effected on 05-12-2008. The reading of the said document shows that the same was effected based on the impugned partition deed dated 05-12-2008. The plaintiffs were required to produce the RTC's or the Mutation Register Extract to show that as on the date of the suit, those properties were standing in the name of the plaintiffs and the defendants.
18. The documents produced for the said lands, except for item Nos.1 and 4 show that, they neither related to the relevant year, i.e. 2011 - 2012 nor pertained to the said lands. Therefore, Exs.P17, P33, P87, P84 the RTCs, P90 the mutation register extract and Ex.P89 the partition deed cannot be called to be the sufficient compliance of Section 132 of the KLR Act.
19. In the plaint, it is contended that, plaintiff No.2 and defendant No.2 had learnt only to subscribe their signatures, they did not know to read and write. It is further contention of the plaintiffs that, at the time of the
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 registration of Ex.P89 dated 05-12-2008, they were not permitted to read the contents of the said document. It is their further contention that defendant No.1 represented to them that to borrow loan from the bank for the development of the properties they have to sign the said document. Thus, the document was obtained by fraud and misrepresentation.
20. The first plaintiff has subscribed her signature on the plaint as well as on her deposition in English. Plaintiffs were required to plead and prove the fraud and misrepresentation. Order VI Rule 4 CPC requires them to plead the particulars of such fraud and misrepresentation. In the plaint, plaintiffs do not plead whether defendant No.1 informed them how much loan had to be availed and from which bank etc. When a person alleges that he or she is the victim of fraud or misrepresentation, it is for him or her to enter witness box and depose about it. Plaintiff No.2 did not enter the witness box to speak about any such fraud or misrepresentation. Except the self serving testimony of PW1, there was nothing to show that
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 document Ex.P89 was registered without permitting them to read the said document or explaining the same. Even after the registration of the document, the plaintiffs have not filed any complaint to the Sub-Registrar or to any other authorities alleging such fraud or misrepresentation.
21. Section 114 Illustration (e) of the Evidence Act, states that the judicial and official acts have been presumed to be regularly performed. The self serving testimony of PW1 without any corroboration was not sufficient to rebut the said presumption. As rightly pointed out by the trial Court, though the plaintiffs assailed the partition deeds dated 05-12-2008 and 13-02-2008, they did not seek any relief with regard to Ex.P88-partition deed dated 13-02-2008. The plaintiffs were signatories to Ex.P89, the partition deed dated 05-12-2008, but did not seek any declaration with regard to the same or relief to set aside the same.
22. Learned counsel for the appellants submits that if the document in question is the outcome of the fraud, the
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 fraud vitiates everything and the plaintiffs need not seek declaration with regard to the document executed by them even if they are signatories to the said documents. In that regard he relies on the following judgments:
1. Ratnam Chettiar and Others v. S.M.Kuppuswami Chettiar and Others1;
2. Ningawwa v. Byrappa Shiddappa Hireknrabar and Others2'
3. Kenchawwa v. Amagonda3;
4. State of Maharashtra v. Pravin Jethalal Kamdar (dead) LRs4;
5. Ramathal & Others Vs. K Rajamani (Dead) through LRs and Another5; and
6. Iswar Bhai C. Patel alias Bachu Bhai Patel v.
Harihar Behera and Another.6
23. But the larger Bench of the Hon'ble Supreme Court in Deccan Paper Mills company Limited vs. Regency Mahavir 1 AIR 1976 SC 1 2 AIR 1968 SC 956 3 ILR 1988 KAR 1185 4 AIR 2000 SC 1099 5 Civil Appeal No. 8830/2012 6 AIR 1999 SC 1341
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 Properties and others7 referring to Section 31 of the Specific Relief Act, in para 19 of the judgment has held as follows:
"19.The Court then continued its discussion as follows:
(Muppudathi Pillai case, SCC Online Mad paras 13-16) "13....... The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument: (1) the instrument is void or voidable against the plaintiff;
(2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding; (3) in the circumstances of the case the court considers it proper to grant this relief of preventive justice. On the third aspect of the question the English and American authorities hold that where the documents is void on its face the court would not exercise its jurisdiction while it would if it were not so apparent. In India it is a matter entirely for the discretion of the court.
14. The question that has to be considered depends on the first and second conditions set out above. As the principle is one of potential mischief, by the document remaining outstanding, it stands to reason the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the 7 (2021) 4 SCC 786
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 instrument is voidable by or void against him. The second aspect of the matter emphasises that principle. For there can be no apprehension if a mere third party asserting a hostile title creates a document. Thus relief under Section 39 would be granted only in respect of an instrument likely to affect the title of the plainitiff and not of an instrument executed by a stranger to that title.
15. Let us take an example of a trespasser purporting to convey the property in his own right and not in the right of the owner. In such a case a mere cancellation of the document would not remove the cloud occasioned by the assertion of a hostile title, as such a document even if cancelled would not remove the assertion of the hostile title. In that case it would be the title that has got to be judicially adjudicated and declared, and a mere cancellation of an instrument would not achieve the object. Section 42 of the Specific Relief Act would apply to such a case. The remedy under Section 39 is to remove a cloud upon the title, by removing a potential danger but it does not envisage am adjudication between competing titles. That can relate only to instruments executed or purported to be executed by a party or by any person who can bind him in certain circumstances. It is only in such cases that it can be said there is a cloud on his title and an apprehension that if the instrument is left outstanding it may be a source of danger. Such
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 cases may arise in the following circumstances: A party executing the document, or a principal in respect of a document executed by his agent, or a minor in respect of a document executed by his guardian de jure or de facto, a reversioner in respect of a document executed by the holder of the anterior limited estate, a real owner in respect of a document executed by the benamidar, etc. This right has also been recognised in respect of forged instruments which could be cancelled by a party on whose behalf it is purported to be executed. In all these cases there is no question of a document by a stranger to the title. The title is the same. But in the case of a person asserting hostile title, the source or claim of title is different. It cannot be said to be void against the plaintiff as the term void or voidable implies that but for the vitiating factor it would be binding on him, that is , he was a party to the contract.
16. There is one other reason for this conclusion. Section 39 empowers the court after adjudicating the instrument to be void to order the instrument to be delivered up and cancelled. If the sale deed is or purported to have been executed by a party, the instrument on cancellation could be directed to be delivered over to the plaintiff. If on the other hand such an instrument is executed by a trespasser or a person claiming adversely to the plaintiff it is not
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 possible to conceive the instrument being delivered over not to the executant but his rival, the plaintiff."
(Emphasis supplied) From the above paragraphs, it becomes clear that, where an instrument executed by a party if not annulled is likely to seriously injure his rights or casts cloud on his/her title, in such cases the declaration with regard to the annulment of the document needs to be sought.
24. In para 31 of the same judgment, relying on the earlier judgment of the Hon'ble Supreme Court in Suhrid Singh Vs Randhir Singh8, it was held as follows:
"31. Also, in an instructive judgment of this court in Suhrid Singh v. Randhir Singh, in the context of the Court Fees Act, 1870 this Court held: (SCC p. 114, para 7) "7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of 8 2010 (12) SCC 112
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C.Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17 (iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."
(Emphasis supplied)
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 Thus, it becomes clear that where the executant of the deed wants it to be annulled, he has to seek cancellation of the deed.
25. In para 32 of the judgment in Deccan Paper Mill's case referred to supra, it was held that when it comes to the cancellation of deed by an executant to the document, such person has to seek the cancellation of the document as per Section 31 of the Specific Relief Act.
26. The reading of the above said judgment along with Sections 31 and 34 of the Specific Reliefs Act shows that even if a party contends that the document is the outcome of the fraud, he himself cannot assume that the document is null and void, but he has to seek declaration to nullify the said document.
27. In the light of the aforesaid larger Bench judgment and having regard to the fact that the plaintiffs were signatories to the Ex.P89, they were required to seek the relief of declaration/cancellation with regard to Ex.P89. In the light of the said larger Bench judgment, the other
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NC: 2023:KHC:31309-DB RFA No. 1493/2012 judgments relied upon by the learned counsel for the appellants cannot be justifiably applied to the facts of the present case. For the aforesaid reasons it is not a fit case to admit. Hence the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE PKN/tsn* List No.: 1 Sl No.: 7