Karnataka High Court
Smt Sarvamangalamma vs Smt Anusuya Bai on 7 January, 2020
Author: K.Natarajan
Bench: K. Natarajan
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR SECOND APPEAL No.1845 OF 2011 (DEC/INJ)
BETWEEN:
1. SMT. SARVAMANGALAMMA,
W/O. LATE SHIVARUDRAPPA,
AGED ABOUT 69 YEARS,
RESIDENT OF BEHIND HPBS,
BIRUR TOWN,
KADUR TALUK - 577 101.
2. SMT. INDIRAMMA,
W/O MAHESHWARAPPA,
AGED ABOUT 54 YEARS,
RESIDENT OF HOUSING BOARD,
CHIKMAGALUR - 577 101.
3. SMT. KATYAYANI,
W/O NAGANNA GOWDA,
AGED ABOUT 49 YEARS,
RESIDENT OF KALGUNDI,
KADUR TOWN,
KADUR TALUK - 577 101.
4. KUMARI SAVITHRI,
D/O. SHIVARUDRAPPA,
AGED ABOUT 44 YEARS,
HPBS, BIRUR TOWN,
KADUR TALUK - 577 101.
2
5. SMT. VANAJAKSHI,
W/O. BASAVARAJ,
AGED ABOUT 42 YEARS,
MARTHHALLI,
BANGALORE - 560 037.
6. SRI C.S. GIRISH.
S/O SHIVARUDRAPPA,
AGED ABOUT 40 YEARS,
HPBS, BIRUR TOWN,
KADUR TALUK - 577 101.
7. SRI C.S. HARISH,
S/O SHIVARUDRAPPA,
AGED ABOUT 36 YEARS,
HPBS, BIRUR TOWN,
KADUR TALUK - 577 101.
... APPELLANTS
(BY SRI UMASHANKAR M.N., ADVOCATE)
AND:
1. SMT. ANUSUYA BAI,
W/O. LATE K.T.RANGADAS,
AGED ABOUT 64 YEARS,
RESIDENT OF NEAR
VEERABHADRESHWARA TEMPLE,
OLD PETE, BIRUR TOWN,
KADUR TALUK - 577 101.
2. SRI VENKATESH,
S/O LATE K.T.RANGADAS,
AGED ABOUT 42 YEARS,
RESIDENT OF NEAR
VEERABHADRESHWARA TEMPLE,
3
OLD PETE, BIRUR TOWN,
KADUR TALUK - 577 101.
3. SMT. K.R. SHASHIKALA,
W/O. SATHYANARAYANA G.R.,
AGED ABOUT 44 YEARS,
UMESH BUILDING, 11TH CROSS,
1ST MAIN, SHIVAPURA,
BEHIND NTTF,
BANGALORE - 560 058.
4. SRI CHANNAPPA,
S/O LATE PANDITH BASAVALINGAPPA,
AGED ABOUT 70 YEARS,
RESIDENT OF BASAPPA BADAVANE,
BIRUR TOWN,
KADUR TALUK - 577 101.
... RESPONDENTS
(BY SRI PRASANNA B.R., ADVOCATE FOR R1-R3;
SRI S.P.KULKARNI, ADVOCATE FOR R4)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CIVIL PROCEDURE CODE, 1908,
AGAINST THE JUDGMENT AND DECREE DATED
10.06.2011 PASSED IN R.A.No.98/2009 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC., KADUR,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 09.11.2009 PASSED IN
O.S.No.315/2007 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JR.DN.) AND JMFC., KADUR.
THIS REGULAR SECOND APPEAL HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 19.12.2019 AND
COMING ON FOR PRONOUNCEMENT, THIS DAY THE
COURT PRONOUNCED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the appellants/plaintiffs assailing the judgment and decree passed by the Senior Civil Judge at Kadur Taluk, Chikmagalur District, (hereinafter referred to as the "first Appellate Court") in R.A.No.98/2009 dated 10.06.2011 for having allowed the appeal filed by the defendants/respondents and dismissing the suit of the plaintiffs by reversing the judgment and decree passed by the Principal Civil Judge (Jr.Dn.), Kadur, (hereinafter referred to as the "trial Court") in O.S.No.315/2007 dated 09.11.2009.
2. Heard the learned counsel for the appellants, learned counsel for respondent Nos.1 to 3 and learned counsel for respondent No.4.
3. The ranks of the parties before the trial Court is retained for the sake of convenience. 5
4. The case of the plaintiffs is that the plaintiffs filed a suit to declare that they are the absolute owners in possession of suit schedule property measuring 3 acres 29 guntas in Sy.No.13 at Hosahally Village, Birur Hobli, Kadur Taluk (hereinafter referred to as the "suit schedule property") contending that the suit schedule property is the ancestral property of the plaintiffs which was acquired by the husband of first plaintiff and father of other plaintiffs namely C.L.Shivarudrappa, in the year 1955. It is further alleged that late K.T.Rangadas and Pandith Basavalingappa have started an organization in the name of "Bhavasara Kshatriya Mandali, Birur" and the members were joined by contributing funds to the said Mandali. The husband of the first plaintiff approached K.T.Rangadas and Pandith Basavaligappa for hand loan of Rs.1,000/- and as a security, the suit schedule property has been pledged. However, at the request of Basavalingappa and 6 K.T.Rangadas, a nominal sale deed was executed on 05.07.1961. Though, the sale deed was executed, but the plaintiffs are in possession and enjoyment of the suit schedule property even after the death of C.L.Shivarudrappa. In the year 1995, the C.L.Shivarudrappa repaid the loan of Rs.1,000/- and Rs.2,000/- towards the interest and requested the said Mandali to execute the reconveyance deed to the plaintiffs, but they refused to do it. Hence, the cause of action arose on 17.09.2007 when defendant Nos.1 to 3 denied the title of the plaintiffs over the suit schedule property.
5. In pursuance to the notice, defendants appeared before the trial Court. Defendant No.4 filed the written statement by admitting the case of the plaintiffs and also admitted that the sale deed dated 05.07.1961 was a nominal sale deed and he has stated that he is 7 ready to execute the document in favour of the plaintiffs and prayed for decreeing the suit.
6. Defendant No.3 filed the written statement. Defendant Nos.1 and 2 adopted the same by filing a memo. Defendant No.3 denied the averments made in the plaint as false and also denied the starting of Mandali and also lending of Rs.1,000/- to C.L.Shivarudrappa as hand loan and also denied the fact that the sale deed is nominal one and also the repayment made in the year 1995. Further, it is contended that the suit is barred by limitation. Defendant Nos.1 to 3 are in possession of southern half portion of the suit schedule property and northern half portion is in possession of defendant No.4 and contended that the plaintiffs in collusion with defendant No.4 trying to dispossess defendant Nos.1 to 3 from 8 southern portion of the suit schedule property and prayed for dismissal of the suit.
7. On the basis of rival pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs prove that they are the absolute owners of suit schedule properties?
2. Whether the plaintiffs prove that the sale deed executed in favour of late Pandit Basavalingappa and K.T.Rangadas dated 5-7-
1961 is a nominal sale deed?
3. Whether the plaintiffs prove their lawful possession over the schedule properties as on the date of suit?
4. Whether the plaintiffs prove the alleged interference?
5. Whether the defendant No.3 proves that this Court has no pecuniary jurisdiction?
6. Whether the suit is barred by time?
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7. Whether the plaintiffs are entitled to relief claimed?
8. What order or decree?
8. To substantiate the contention, plaintiff No.6 examined himself as PW.1 and also examined three more witnesses as PWs.2 to 4 and got marked 18 documents as Exs.P.1 to P.18 and on behalf of the defendants, defendant No.1 was examined as D.W.1 and got marked 14 documents as Exs.D.1 to D.14. Defendant No.4 not led any evidence.
9. After considering the evidence on record, the trial Court answered issue Nos.1 to 4 and 7 in affirmative, issue Nos.5 and 6 in negative and finally decreed the suit by declaring that the plaintiffs are owners in possession and the sale deed dated 05.07.1961 is only a nominal sale deed. Assailing the same, the defendants filed an appeal before the first 10 Appellate Court in RA.No.98/2009, which came to be allowed and the suit of the plaintiffs has been dismissed. Assailing the same, the plaintiffs are before this Court by way of second appeal.
10. The learned counsel for the appellants has strenuously contended that the first Appellate Court has committed error in holding that the suit was barred by limitation even though the plaintiffs urged in the plaint that the cause of action arose in the month of September, 2007. The suit has been filed in the year 2007 itself. The trial Court after appreciating the evidence on record has rightly decreed the suit. The documents as well as the oral evidence given by the plaintiffs have not been appreciated by the first Appellate Court as required under Section 92 of the Indian Evidence Act, 1872. The evidence of the parties including P.W.3 who is the attesting witness and P.W.4 11 is the member of Mandali who has given evidence by admitting the receipt of repayment of loan by C.L.Shivarudrappa. Ex.P.9 is the acknowledgement issued by the Mandali for receiving the loan and the sale deed was only a nominal sale deed. Respondent No.4/defendant No.4 admitted the claim of the plaintiffs. Such being the case, the first Appellate Court committed error in dismissing the suit.
11. The learned counsel for the appellants further contended that though the sale deed was executed in the year 1961, the possession has not been delivered to the defendants, which clearly go to show that the sale deed is only a nominal sale deed and it is further contended that Ex.P.18 - original sale deed is also within the custody of the plaintiffs and the same was produced by the plaintiffs during the course of evidence, which clearly go to show that the said sale 12 deed is a nominal sale deed. Apart from that, the mutation was not changed in the name of respondents/defendants and the name of C.L.Shivarudrappa was continued till 2000 and as per Section 133 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the "KLR Act") there is a legal presumption in favour of the plaintiffs and the same was ignored by the first Appellate Court. Therefore, prayed for setting aside the judgment and decree of the first Appellate Court and also prayed to confirm the judgment and decree of the trial Court.
12. Learned counsel for the appellants has relied upon the judgments of the Hon'ble Supreme Court in the cases of Patinhare Purayil Nabeesumma Vs. Miniyatan Zacharias and Another reported in AIR 2008 SC 1456, Shankarlal Ganulal Khandelwal Vs., Balmukund Surajmal Bharuka (deceased by 13 LRs) reported in AIR 1999 BOMBAY 260, Habeeb Khan and Others Vs., Valasula Devi and Others reported in AIR 1997 ANDHRA PRADESH 53, Smt. Bhimabai Mahadeo Kambekar (D) Th.LR Vs., Arthur Import and Export Company and Others in Civil Appeal No.1330/2019 decided on 31.01.2019.
13. Per contra, the learned counsel for defendant Nos.1 to 3 has countered the argument of learned counsel for appellants by supporting the judgment and decree of the first Appellate Court and contended that defendant Nos.1 to 3 are in possession and enjoyment of half portion i.e., 1 acre 34½ guntas of land on the southern portion. The same was purchased by the husband of first defendant and father of defendant Nos.2 and 3 along with one Pandith Basavalingappa and after the purchase, they divided the property equally and continued to be in possession. After the 14 death of K.T.Rangadas, the names of defendant Nos.1 to 3 recorded in the revenue records in the year 2003. Such being the case, the date of cause of action pleaded by the plaintiffs on 17.09.2007 cannot be acceptable. The sale deed dated 05.07.1961 as per Ex.P.16 was executed long back, but the names of defendants were not mutated immediately. But subsequently after the death of K.T.Rangadas, the names of defendant Nos.1 to 4 has been mutated in the year 2000 that itself is the denial of title of the plaintiffs. For filing of suit for declaration, the plaintiffs ought to have filed the suit within three years as per Article 58 of the Limitation Act, 1963. But the suit has been filed by the plaintiffs in the year 2007 after 46 years of the execution of sale deed and even if considered the denial of title by mutating the names of defendants in the revenue records in 2001-02 itself as per Ex.D2. As per Section 133 of the KLR Act, presumption is also in favour of the 15 respondents, therefore, the contention of the plaintiffs cannot be acceptable. Even as per Section 92 of the Indian Evidence Act, 1872, the oral evidence cannot be acceptable for excluding the written document, which was registered as per the law. Proviso (4) to Section 92 of the Indian Evidence Act, 1872, clearly defines exclusion of evidence of oral agreement. Therefore, the question of considering the oral evidence led by the plaintiffs does not require consideration. Hence, prayed for dismissing the appeal.
14. Learned counsel for respondent Nos.1 to 3 has relied upon the judgments of the Hon'ble Supreme Court in the cases of A.Abdul Rashid Khan (Dead) and Others Vs., P.A.K.A.Shahul Hamid and Others reported in (2000) 10 SCC 636, S.Saktivel (Dead) by LRs., Vs., M.Venugopal Pillai and Others reported in (2000) 7 SCC 104.
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15. The learned counsel for respondent No.4 has supported the arguments of learned counsel for the appellants and also contended that the provisions of Section 92 of the Indian Evidence Act, 1872, has not been touched by the first Appellate Court and not appreciated the oral evidence. Therefore, the findings of the first Appellate Court is required to be set aside and further it is contended that defendant No.4 has admitted the claim of the plaintiffs and ready to execute the reconveyance deed after the decree. Hence, prayed for allowing the appeal.
16. The learned counsel for respondent No.4 in support of his argument has relied upon the judgments of the Hon'ble Supreme Court as well as the judgment of this Court in the cases of Kaliaperumal Vs. Rajagopal and Another reported in AIR 2009 SCC 2122, Syed Rasool and Others Vs., Mohammad Moulana 17 reported in AIR 1977 KAR 173, Smt.Gangabai Vs., Smt.Chhabubai reported in AIR 1982 SC 20, Hindu Public and Another etc., Vs., Rajdhani Puja Samithee and Others etc., reported in AIR 1999 SC
964.
17. Upon hearing the arguments of learned counsel for the respective parties, the substantial questions of law arise in this appeal are:
1. Whether the Lower Appellate Court is justified in ignoring the presumption of possession available in favour of the appellants under Section 133 of the Karnataka Land Revenue Act, 1964 as the name of Sri C.L.Shivarudrappa was continued in column 12 of the RTC Extract to establish his possession even after the execution of alleged sale deed 05/07/1961?
2. Whether the Lower Appellate Court was justified in accepting the alleged sale deed dated 05/07/1961 Ex.P.16/P.18 as 18 the complete sale transaction without ascertaining the real intention of the parties as contemplated under Section 92 of the Evidence Act, i.e., from the oral evidence adduced by the plaintiffs?
3. Whether the Lower Appellate Court is justified in holding that the suit was barred by time ignoring the fact that the plaintiffs have not questioned the alleged sale deed dated 05/07/1961 is void or whether the application of Article 58 & 59 of the Limitation Act, to the facts of the case is justified in law?
18. As regards the first substantial question of law, before answering the substantial question of law, it is worth to mention some admitted facts of the parties. It is an admitted fact that the husband of first plaintiff C.L.Shivarudrappa executed a sale deed in favour of one K.T.Rangadas who is the husband of defendant No.1 and Pandith Basavalingappa who is the father of defendant No.4. It is also an admitted fact that the sale 19 deed was executed on 05.07.1961 as per Ex.P.16 produced by the plaintiffs and subsequently at the end of trial, the plaintiffs produced the original sale deed- Ex.P.18. It is also an admitted fact that the revenue records in respect of suit schedule property was continued in the name of C.L.Shivarudrappa till 2001- 02 as per Ex.D2 and subsequently, the names of Pandith Basavalingappa and K.T.Rangadas were entered as per Exs.P.2 and P.3. As per Ex.P4 from the year 1968-69 till 1972-73, as per Ex.P.5 from the year 1978-79 till 1980-81, as per Ex.P.6 from the year 1981- 82 till 1985-86 and as per Ex.P.8 from the year 1973-74 till 76-77 the name of C.L.Shivarudrappa continued in RTCs. The learned counsel for the appellants has contended that the revenue entries continued to show the name of C.L.Shivarudrappa, which itself go to show that the sale deed in the year 1961 was only a nominal sale deed and the presumption under Section 133 of the 20 KLR Act is that the entries made in the revenue records are presumed to be true. Therefore, he has contended that after 1995 C.L.Shivarudrappa went missing and he was not heard for seven years and he was presumed to be dead as per Section 108 of the Indian Evidence Act, 1872. Of course, the defendants denied the same, but it is an admitted fact that C.L.Shivarudrappa found missing for more than seven years and the Court presumed that he was dead. On the other hand, the name of C.L.Shivarudrappa was discontinued from the year 1986-87 till 1990-91 as per Ex.P.7-RTC. In column No.9 of Ex.P.7 it is mentioned as Basavalingappa and K.T.Rangadas. No doubt, the name of C.L.Shivarudrappa was continued till 1985-86, but thereafter as per Ex.P.7 the revenue records has been changed in the names of Basavalingappa and K.T.Rangadas from 1986-87 onwards. After the death of K.T.Rangadas and Basavalingappa, the mutation entries 21 got transferred in the names of defendant Nos.1 to 4 as their legal heirs. Ex.D2 is RTC for the year 2001-02. Ex.D3 for the year 2000-01, Ex.D4 for the year 2002- 03, Ex.D5 for the year 2003-04, Ex.D6 for the year 2005-06, Ex.D7 for the year 2006-07 show the names of Basavalingappa and K.T.Rangadas as owners and cultivators. Ex.D8 is the Mutation Register Extract, wherein after the death of Basavalingappa and K.T.Rangadas, the names of respondent Nos.1 to 4 were jointly mutated. These facts are not disputed by the parties.
19. Apart from that, the admission made by defendant No.4 stating that the sale deed was a nominal sale deed and was ready to execute the reconveyance deed in favour of plaintiffs and during the pendency of the second appeal, the plaintiffs and respondent No.4 have filed a joint compromise application under Order 22 XXIII Rule 3 of Code of Civil Procedure, wherein respondent No.4 has agreed to waive his share of 50% of the land measuring 1 acre 34½ guntas in favour of the plaintiffs by executing reconveyance deed after the decree. The said compromise was accepted by this Court.
20. On the background of these admitted facts, now I proceed to discuss in respect of the first substantial question of law:
As per Section 133 of the KLR Act an entry in the revenue records shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Admittedly, the name of C.L.Shivarudrappa continued till 1986 as per Ex.P.6. However, from 1986 onwards the names of Basavalingappa and K.T.Rangadas were substituted in the revenue records as per Ex.P7 and their names continued as per Exs.D2 23 to D7 till the year 2007. Ex.D8-Mutation Register Extract shows that after the death of Basavalingappa and K.T.Rangadas, the names of defendant Nos.1 to 4 were entered. Therefore, in view of substituting the names of defendants from the year 1986 onwards, the presumption under Section 133 of the KLR Act is also available to the defendants. Apart from that, it is well settled by the Hon'ble Apex Court in the catena of decisions and in the recent judgment in the case of Smt.Bhimabai Mahadeo Kamekar (supra) has held that entering names in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. Therefore, even if the name of C.L.Shivarudrappa continued in the revenue records, subsequently from the year 1986 the names of K.T.Rangadas and Basavalingappa continued and extinguished the title of C.L.Shivarudrappa and denied the title of K.T.Rangadas and Basavalingappa. However, 24 the registered sale deed is only the sale deed derived title to the person. It is well settled law that the possession of vacant land always follows the title.
Therefore, even otherwise, the plaintiffs are continued to be in possession over the suit schedule property, after executing sale deed that itself cannot be a ground to accept that the plaintiffs are the owners of the suit schedule property in view of the judgment of Hon'ble Apex Court in Smt.Bhimabai Mahadeo Kamekar's case referred above. The presumption under Section 133 of the KLR Act is applicable to both the appellants as well as the respondents as the entries in the revenue records reflecting the names of defendants from 1985-86 onwards are presumed to be true. Therefore, on this ground, the judgment and decree of the first Appellate Court cannot be held as illegal, merely, the name of C.L.Shivarudrapa continued in the revenue records. That apart, the said C.L.Shivarudrappa not 25 chosen to challenge the said sale deed till 1996-97 until he goes missing or in 1995 when he repaid the alleged loan to the said Mandali. Therefore, the contention raised by the appellants cannot be acceptable for the reason that the presumption is available in favour of the plaintiffs though the possession continued as per entry in the revenue records till 1985-1986. Even if the plaintiffs are in actual physical possession of the suit schedule property, that is not a ground to declare that they are the owners of the suit schedule property.
Merely, respondent No.4 admitted the claim of the plaintiffs and entered into a compromise with the plaintiffs, that itself is not a ground to accept the contention of plaintiffs that the plaintiffs are the owners of the suit schedule property as learned counsel for respondent Nos.1 to 3 has rightly contended that respondent No.4 in his compromise application has stated that defendant No.4 was the absolute owner of 1 26 acre 34½ guntas of land and he is ready to execute the reconveyance deed. Respondent No.4 though agreed to execute the reconveyance deed in favour of the plaintiffs, but he himself asserted his right as absolute owner. Such being the case, the plaintiffs cannot be declared as owners of the suit schedule property. Accordingly, the first substantial question of law is answered against the plaintiffs and in favour of defendant Nos.1 to 3.
21. As regards the second substantial question of law, the First Appellate Court has held that the sale deed dated 05.06.1961 and Ex.P.16/P.18 have the complete sale transaction without ascertaining the real intention of the parties as per Section 92 of the Indian Evidence Act, 1872. Learned counsel for the appellants contended that the oral evidence of the plaintiffs adduced before the Trial court clearly reveal the real 27 intention of the parties in executing the nominal sale deed but not acted upon and the revenue entries continued in the name of the vendors. Therefore, it is contended that the First Appellate Court has not at all considered the oral evidence adduced by the parties. In support of the contention, learned counsel for the appellants relied upon the judgment in the case of Hindu Public (supra), wherein it has been held as under:
"19. It is in the evidence of witnesses examined on behalf of the 'Hindu Public' before the Assistant Commissioner that para (a) of the aims and objects was introduced along with para (b) so as to ensure that the request for grant of lease of this very land was not rejected by Government on the ground that land could not be leased exclusively for religious purposes. On this aspect, the Assistant Commissioner rejected the oral evidence as inadmissible as it contradicts the recitals in the deed of registration of the Society in view of Sections 91 and 92 of the Evidence Act. In out view, this is not correct in law. Oral evidence could be adduced to show 28 that the recitals in a deed were nominal or were not intended to be acted upon or that they were not meant to alter the existing state of affairs. Oral evidence could therefore be issued to show that the Society's main concern was the celebration of the Durga Puja festivals etc. and that other activities were subsidiary. Therefore, the Deputy Commissioner was right in relying on this part of the oral evidence."
22. In another judgment in the case of Syed Rasool and others vs. Mohammad Moulana reported in AIR 1977 KAR 173, wherein it has been held as under:
"3. A reading of the plaint shows that the plaintiff's case was that the sale deed executed by Saiduddin was a nominal one and was not intended to be effective by the parties to it. It was not their case that the sale deed was avoidable instrument. In the circumstances, the courts below were in error in holding that it was necessary for the plaintiffs to seek the relief of cancellation of the sale deed. They were further in error in thinking that no oral evidence could 29 be adduced by the plaintiffs to show that the document was a nominal one. When the document in question is a void one, the question of seeking its cancellation would not arise at all. It is only when a document is a voidable one that is valid until it is declared as void, the question of seeking its cancellation would arise. Section 92 of the Indian Evidence Act precludes a party from adducing oral evidence for the purpose of contradicting, varying, adding to, or subtracting from the terms of a contract or grant. In order to attract the provision of S. 92 there should be a contract in existence. When a party pleads that there was no contract at all or that an instrument which had been brought into existence earlier was only a sham one not intended, to be acted upon, it would be open to him to establish by oral evidence that there was no intention on the part of the parties to bring into existence a contract or an effective document. The Courts below while disposing of the case before them, failed to notice the above distinction. The order passed by the trial court rejecting the plaint and the judgment passed by the lower appellate court are, therefore, liable to be set aside. They are, accordingly, set aside. The suit is remitted to the trial court with a 30 direction to dispose it of afresh after recording the evidence to be adduced by the parties. The trial court shall if necessary after hearing the parties re-cast the issues framed in the suit.
4. The institution fee paid on the memorandum of appeal shall be refunded to the appellants. No costs."
23. Per contra, learned counsel for respondent Nos.1 to 3 contended that the said cases were not applicable to the case on hand. As per the proviso (4) to Section 92 of Indian Evidence Act, the oral evidence cannot exclude the written document except the oral agreement. In support of his case, he has relied upon the judgment of the Hon'ble Supreme Court in the case of Abdul Rasid Khan (dead) and others (supra) at para- 4, which is as under:
"4. At the outset, we may consider the case of the appellants, as contained in the additional written statement that it was understood between the parties that the plaintiff would obtain the 31 signatures of respondents 2 and 3 and that the sale deed would be executed as one composite sale deed of the entire property. On the contrary, the case of respondent 1 is that the appellants undertook to get the signatures of their sisters. They are all plea and contentions which are not borne out from the agreement and sale. These are pleas by both the parties beyond the said written agreement. The law in this regard is well settled, in view of Section 92 of the Indian Evidence Act; where any contract is required by law to be reduced in writing, then no oral evidence or understanding to the contrary or what is apart from the said contract would be admissible in law. It is not in dispute in the present case, the agreement of sale was reduced to writing which was for an immovable property. Hence, these pleas, both of the appellants and respondent 1, as aforesaid being beyond the written agreement of sale cannot be taken into consideration."
24. In another judgment in the case Saktivel (dead) by LRs. (supra), it has been held at para 6 and 7 as under:
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"6. In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral, in such situations it is always open to the parties to the contract to modify its terms and even substitute by a new oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let into prove that the earlier contract or agreement has been modified or substituted by a new oral agreement. Where under law a contract or disposition is required to be in writing and the same has been reduced to writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or 33 substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant/appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant, is allowed to be substantiated by parol evidence, it would mean re-writing of Ext.A-1 and, therefore, no parol evidence is permissible.
7. In view of the aforesaid legal position on interpretation of proviso (4) to Section 92 we have to examine as to whether settlement deed Ext.A-1 was required to be in writing under the law or not. It is not disputed that by settlement deed Ext.A-1, which is a disposition,Muthuswamy Pillai passed 34 on right to property to all his sons who acquired right in the property. Where there is such conferment of title to the property, law requires it be in writing for its efficacy and effectiveness. A document becomes effective by reason of the fact that it is in writing. Once under law a document is required to be in writing parties to such a document cannot be permitted to let in parol evidence to substantiate any subsequent arrangement which has effect of modifying earlier written document. If such parol evidence is permitted it would divest the rights of other parties to the written document.
We are, therefore, of the view that the subsequent oral arrangement set up by the defendant-appellant cannot be proved by the parol evidence. Such a evidence is not admissible in evidence."
25. In view of the judgment of the Hon'ble Court in Abdul Rasid Khan (dead) and others (supra) and Saktivel case (supra), the oral evidence cannot exclude the written registered document by the parties. Here in this case, Ex.P.1 is the registered sale deed 05.07.1961 and during the life time of Shivarudrappa, he never 35 chose to file any suit for declaration to declare the said sale deed as nominal sale deed . Even the suit came to be filed after the death of the joint purchasers namely, Rangadas and Basalingappa. All these three original vendors and purchasers died prior to filing of the suit by the legal heirs of the Shivarudrappa. Therefore, the plaintiffs being the legal heirs of Shivarudrappa are parties to the sale deed and the defendant No.4 also not parties to the sale deed at the time of execution of the sale deed in the year 1961. Such being the case, they cannot set up a oral evidence to prove that the sale deed of 1961 was only a nominal sale deed. Therefore, the oral evidence led by the plaintiffs under section 92 of the Indian Evidence Act cannot be acceptable. Section 92 of the Indian Evidence Act excludes the evidence of oral agreement and when the original parties are not present while filing of the suit, the oral evidence of the legal heirs is not sufficient to prove the original 36 registered sale deed to be declared as nominal. Proviso (4) to Section 92 clearly excludes the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or dispossession of the property may be proved except cases in which such contract, grant or dispossession of property by law is required to be in writing, or has been registered according to the law in force for the time being as to the registration of the documents. Here in this case, Ex.P.18 is a registered sale deed registered under the Indian Registration Act, 1908. Therefore, the oral agreement is said to be set up by the parties to the sale deed as it was only a nominal sale deed cannot be said to be proved as nominal sale deed in the absence of evidence of original parties to the sale deed. Therefore, learned counsel for respondent Nos.1 to 3 rightly contended that the oral evidence is not useful to the plaintiffs case. In view of the judgment of the Hon'ble Supreme Court and 37 Proviso (4) to Section 92 of the Indian evidence Act, the oral evidence of the plaintiffs is not sufficient to prove Ex.P.18, the sale deed as nominal sale deed. Therefore, the First Appellate Court though not specifically took up Section 92 of the Indian Evidence Act, but held that the sale deed cannot be a nominal sale deed but it was an absolute sale deed apart from considering the limitation point. Hence, I answer the second question of law in favour of the defendant and against the plaintiff.
26. As regards the third substantial of law regarding the limitation, admittedly the sale deed dated 05.07.1961 has been challenged by the plaintiffs to declare the said sale deed as a nominal one by filing the suit in the year 2007 i.e. on 19.12.2007, after 46 years of the execution of the sale deed. But the plaintiffs set up the case that the cause of action arose only on 17.09.2007 when defendant Nos.1 to 3 denied the title 38 of the plaintiffs and contended that the suit was within the time. Learned counsel for the appellants strenuously contended that the suit is filed for not to declare the sale deed as null and void which requires suit to be filed within three years as per Articles 58 and 59 of the Limitation Act. It is contended to declare the sale deed as nominal. Therefore, the Limitation Act would not attract. On the other hand, learned counsel for respondent Nos.1 to 3 contended that for filing of any suit for declaration, three years period is prescribed as per Articles 58 and 59 of the Limitation Act. For the convenience, Articles 58 and 59 are extracted as under:
" 58. To obtain any other Three When the right to sue declaration. years first accrues.
59. To cancel or set Three When the facts aside an instrument or years entitling the decree or for the plaintiff to have the rescission of a contract. instrument or decree cancelled or set aside or the contract rescinded first become known to him."39
27. On a bare reading of the Limitation Act it is clear that for any declaration, three years period is prescribed from the date of right to sue first accrues. Here in this case, the plaintiffs set up the claim and cause of action arose on 17.09.2007 and produced Ex.P.2, the RTC for the year 2006-2007 onwards and the names of these respondents entered in the revenue records. Exs.P.4 to P.6 and P.8 were produced by them to show the names of Shivarudrappa, the husband of plaintiff No.1 till 1985-86. Whereas Ex.P.7 produced by the plaintiffs shows that the names of Basalingappa and Rangadas were entered as per RR 235 in the year 1986 itself. Exs.D.2 to D.7 produced by the defendants goes to show that from the year 2000-2001, the names Basalingappa and Rangadas were entered in the revenue record and in 2006 ie. on 14.12.2006 as per Ex.D.8, the names of legal heirs of Rangadas have been entered. These documents clearly show that the 40 respondents already came on the revenue record by inserting their names as per the law in the year 1986 itself based upon the sale deed. Such being the case, the contention taken by the plaintiffs that the cause of action arose on 17.09.2007 cannot be acceptable on the other hand the defendants have already interfered with the title of the plaintiffs by obtaining sale deed in the year 1961 and entered their names in the year 1986 itself. The suit ought to have been filed within three years either from the date of execution of the sale deed or from the date of their knowledge. It is an admitted fact that the original sale deed is within the custody of plaintiffs' family. It was produced only during the trial not at the time of filing the suit. Even otherwise, as per the evidence of PW.4 and Ex.P.9, Shivarudrappa is said to have repaid loan of Rs.1,000/- and Rs.2,000/- towards interest to the said Mandali in the year 1995. Such being the case, if Shivarudrappa repaid the loan 41 holding that the sale deed was nominal one, he could have filed the suit during his life time and atleast three years from 1995, but the suit is not filed within the time. Therefore, filing the suit in the year 2007 is barred by limitation. Apart from that there is no evidence produced before the Trial Court to show that the said Rs.1,000/- paid to the Shivarudrappa as loan by the Mandali. There is no document obtained or terms and conditions entered into between the parties for borrowing loan of Rs.1,000/- by Shivarudrappa from the Rangadas and Basalingappa. If at all the contention of the plaintiffs is believed to be true, there is no membership document of the Shivarudrappa produced to show that he was the member of the Mandali. The Accounts Register of the Mandali has been produced to show that the Mandali has paid Rs.1,000/- as loan to Shivarudrappa. Apart from that, if the loan amount is paid by the Mandali, the question of executing the sale 42 deed in favour of individual names of Rangadas and Basalingappa does not arise. The sale deed ought to have been executed in the name of Mandali or Trust. But on perusal of the contents of Ex.P.1, it reveals that it is a absolute sale deed executed by Shivarudrappa in favour of Rangadas and Basalingappa by selling the suit schedule property in the year 1961. If the sale deed is a nominal sale deed, the said Shivarudrappa might not have kept quiet till 1995 after making repayment of loan of Rs.3,000/- or till his death or till he went missing without filing the suit. Therefore, the First Appellate Court after considering the evidence on record and the documents has rightly held that the suit is barred by limitation and rightly set aside the judgment and decree passed by the Trial Court. The First Appellate Court also relied upon the judgment of the Hon'ble Supreme Court in the case of M.S.Susheelamma (since dead) by her L.Rs vs. M.R.Shivakumar and others reported in 43 2010 (2) KLJ 195 and in the case of Prem singh and others vs. Birbal and others reported in 2006 SAR (Civil) 457 and held that the suit is barred by limitation. Therefore, the contention raised by the plaintiffs and defendant No.4 that the suit is not barred by limitation cannot be acceptable. On the other hand, the suit is barred by limitation.
28. The judgments relied upon by the appellants counsel stated-above were all on the point of limitation based upon the oral evidence and the documents. Even in those cases, original parties were alive while filing the suit by taking contention of oral agreement behind the back of registered document and those suits were filed within the time. The limitation point was not discussed by the Hon'ble Supreme Court in those cases. Therefore, the judgments relied upon by appellants counsel are not helpful to the appellants' case. 44 Accordingly, I answer the third substantial question of law against the plaintiffs and in favour of the defendants/respondent Nos.1 to 3.
29. In view of the above findings to the substantial questions of law Nos.1 to 3, the judgment of the First Appellate Court cannot be held as illegal and it does not call for interference by this Court.
30. Accordingly, the Regular Second Appeal filed by the plaintiffs is partly allowed as against defendant No.4/respondent No.4 and appeal is dismissed as against defendants No.1 to 3/respondent No.1 to 3 in respect of 50% of land in Sy.No.13 measuring 1 acre 34 guntas in the southern side claimed by the plaintiffs.
31. Further in view of the compromise held between appellants and respondent No.4, the judgment of the First Appellate Court requires to be modified and 45 decreed the suit partly in favour of the plaintiffs/appellants in terms of the compromise, the defendant/respondent No.4 is required to execute reconveyance deed in favour of the plaintiffs in respect of 1 acre 34 ½ guntas on the northern side of the suit schedule property.
Draw-up the decree accordingly.
SD/-
JUDGE PB/MV