Karnataka High Court
P Govinda Raju vs Mahantha Gouda on 19 July, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
RSA No.459/2006 (DEC/INJ)
BETWEEN:
P. Govinda Raju deceased by LRs.
1. Smt. P.Savitri
W/o Late P.Govindaraju,
Age: 54 years,
Occ: Agriculture & Household,
2. Smt. P.Parvathi D/o P.Govindaraju
and W/o Suryanarayana Rao,
Age: 32 years,
Occ: Agriculture & Household,
3. Smt. Bujji @ Lakshmi
D/o Late P.Govindaraju
and W/o Venkata Reddy,
Age: 27 years,
Occ: Agriculture & Household,
4. Suryanarayana S/o Subba Rao,
Age: 43 years, Occ: Agriculture,
All are R/o Matur Camp Post, Uppaldoddi,
Tq: Sindhannor, Dist: Raichur-584 128.
... Appellants
(By Sri. P.S. Malipatil, Advocate)
2
AND:
1. Mahantha Gouda S/o Amaragouda,
Age: 56 years, Occ: Agriculture,
Now convicted under going
Sentence at Bellary Central Jail, Bellary.
2. Giregouda S/o Amaregouda Gouda,
Age: 48 years, Occ: Agriculture,
Now convicted under going
Sentence at Bellary Central Jail, Bellary.
3. P.Venkata Satyanarayana
S/o Late P.Govindaraju,
Age: 23 years,
(Where abouts no known)
... Respondents
(Sri. Shivanand Patil, Advocate for R1 & R2;
V/O dated 23.11.2015 notice to R3 is dispensed with)
This Regular Second Appeal is filed under Section 100 of
CPC, praying to set aside the judgment and decree dated
18.01.2006 passed in R.A.No.189/2004 by the learned Addl.
District Judge (FTC-III) Raichur and confirm the judgment and
decree dated 30.06.2003 passed in O.S.No.229/1990 of the
learned Prl. Civil Judge (Jr.Dn.) at Sindhanoor.
This appeal having been heard and Reserved on
27.06.2022 coming on for 'Pronouncement of Judgment' this
day, the Court delivered the following:-
JUDGMENT
The defendants have filed this regular second appeal under Section 100 of CPC, challenging the judgment and decree dated 18.01.2006 passed by the Additional District Judge (FTC-III), Raichur (hereinafter referred to as 'the First 3 Appellate Court' for brevity) in R.A.No.189/2004, whereby the First Appellate Court has allowed the R.A. by setting aside the judgment and decree dated 30.06.2003 passed by the Principal Civil Judge (Jr.Dn.) at Sindhanur (hereinafter referred to as 'the Trial Court' for brevity) in O.S.No.229/1990 and decreed the suit.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The suit schedule property is land bearing Sy.No.79 measuring 5 acres situated at Matur village of Sindhanur Taluk, which is shown in detail in the schedule. The plaintiffs had filed the suit for declaration and injunction against the defendants. It is the contention of the plaintiffs that they are full brothers interse and defendant No.3 is their mother. That, their father Amaregouda died prior to 1956 leaving behind plaintiffs and defendant No.3. That, defendant No.2 is the son-in-law of defendant No.1 and defendant Nos.1 and 2 are strangers to family of the plaintiffs and defendant No.3. That, the plaintiffs are the owners in possession of the 4 suit land bearing Sy.No.79 measuring 5 acres. The suit land is irrigated, which was purchased by the plaintiffs from one Smt. Chitrawwa W/o Yemanappa under an agreement of sale. In pursuance of agreement of sale, the plaintiffs came in possession of the suit property. That, Sy. No.79 totally measures 12 acres 9 guntas and the suit property is situated on the western portion and remaining portion is held by the owners. It is the contention of the plaintiffs that they have jointly got registered the sale deed of the suit property in the name of their mother i.e., defendant No.3 in the year 1985 and the suit property was purchased by the plaintiffs out of the joint family funds and nucleus. It is contended that the plaintiffs have purchased the suit property in the name of their mother in fiduciary capacity. In fact they are the exclusive owners in possession. It is also contended that the plaintiffs were involved in a murder case in S.C.No.22/1987 on the file of Sessions Court, Raichur during 1985 and in 1990, they got acquitted. It is further contended that during pendency of the said case, defendant No.1 got executed the impugned sale deed dated 30.10.1986 from defendant No.3 without any consideration. It is also contended that defendant No.1 was 5 staying in Matur Camp, which is nearer to the village Gadratagi and Bappur and no sale consideration whatsoever has been passed and no possession has been parted with. It is further asserted that defendant No.3 is totally incompetent to execute the impugned sale deed and defendant Nos.1 and 2 interfered in the peaceful possession and enjoyment of the suit schedule property. It is also asserted by the plaintiffs that, they came to know about the impugned sale deed after getting acquittal in S.C.No.22/1987 and immediately after securing the certified copy of the sale deed, they have got issued legal notice to defendant Nos.1 and 2 and said notice was duly served in the second week of July 1990, but defendant Nos.1 and 2 did not reply and interfered in the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and the sale deed casted a cloud on the title of the plaintiffs. Hence, they have filed a declaratory suit claiming that the sale deed is illegal, null and void and also sought for injunction against the defendants.
4. In response to the suit summons, defendant Nos.1 and 2 appeared through their counsel, while defendant No.3 6 though served, did not appear and was placed exparte. Defendant No.1 filed his written statement denying all the allegations and assertions made in the plaint. It is contended that the plaintiffs have suppressed the material facts and have not approached the Court with clean hands. It is contended that the plaintiffs have no locus standi to file the suit and they are not entitled to seek any declaratory relief in respect of the sale deed. It is also asserted that defendant No.3 is none than the mother of the plaintiffs and hence, this is a collusive suit and requires to be dismissed in limine. It is further contended that the plaintiffs are not the owners and possessors of the suit schedule property and they have not purchased it from Chatrawwa under the agreement of sale, which is not at all produced. It is contended that defendant No.3 was the exclusive owner in possession of the suit property and it is denied that the suit property was purchased out of the income of the joint family and got registered in the name of defendant No.3 by the plaintiffs. It is contended that defendant No.1 has purchased the suit property for valid consideration and he is in actual possession and enjoyment from the date of purchase. It is admitted that the plaintiffs 7 were involved in a murder case of one Pampanagouda of Gadratagi village and it is contended that though the Sessions Court has acquitted them, the appeal preferred by the State is pending before the High Court. It is contended that the plaintiffs were in custody and in order to meet the legal necessity, defendant No.3 has sold the suit land and has received the consideration by putting defendant No.1 in possession. It is also contended that the name of defendant No.1 was mutated and the plaintiffs have preferred R.R.T before the Tahsildar, who has passed the considered order for mutating the name of defendant No.1. It is contended that the entire suit is a collusive suit filed in order to have unlawful gain and hence, defendant No.1 has prayed for dismissal of the suit with costs. Defendant No.2 filed a memo adopting the written statement of defendant No.1.
5. On the basis of these pleadings, the Trial Court has framed the following 9 issues:
1. Whether plaintiffs prove that they have purchased the suit land out of joint family income and got the sale deed registered in the name of their mother defendant No.3?8
2. Whether plaintiffs prove that they are the owners of the suit land?
3. Whether plaintiff further proves that they are in lawful possession of the suit land on the date of the suit?
4. Whether plaintiffs further prove that the defendant No.3 was not competent to sell the suit land in favour of defendant No.1?
5. Whether plaintiffs further proves that the sale deed dated 30-10-1986 was without consideration?
6. Whether plaintiffs further prove that the sale deed dated 30-10-86 is null and void?
7. Whether plaintiffs further proves that the defendants interfered with their possession over the suit land?
8. Are plaintiffs entitled for relief of declaration and perpetual injunction sought for?
9. What order or decree?
6. To prove the case of the plaintiffs, plaintiff No.1 got examined himself as PW.1 and the vendor of defendant 9 No.3 was examined as PW.3 and her husband was examined as PW.2 and got marked 9 documents as Exs.P1 to P9, whereas defendant No.1 got examined himself as DW.1 and three witnesses were examined as DWs.2 to 4 and got marked ten documents as Exs.D1 to D10.
7. The Trial Court, after appreciating the oral and documentary evidence and after hearing the arguments has answered issue Nos.1 to 8 in the negative and ultimately dismissed the suit.
8. Being aggrieved by this judgment and decree of the Trial Court, the plaintiffs have filed an appeal before the First Appellate Court and the First Appellate Court, by its judgment dated 18.01.2006 has allowed the appeal and decreed the suit in its entirety holding that the suit schedule property is an ancestral property and there is a presumption that when there is a joint family, all the properties are joint family properties and no legal necessity is established by defendant No.1.
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9. Being aggrieved by this divergent opinion taken by the First Appellate Court, the legal heirs of deceased defendant No.1 and defendant No.2 have filed this appeal under Section 100 of CPC.
10. The learned counsel for the appellants/defendants would contend that admittedly the suit property was purchased by defendant No.3 and it was purchased under a registered sale deed dated 30.10.1986. It is further contended that the plaintiffs claimed that it is a joint family property, but no nucleus of the joint family is established and admittedly, when the sale deed was executed in the year 1986, the plaintiffs were in custody and their mother was in need of the amount. It is also asserted that the defence was that, there was an agreement of sale in 1970 with defendant No.3, but the same was not produced. It is also contended that no evidence is placed to prove that the joint family had got any income and the First Appellate Court only relying on a suggestion made to DW.1/defendant No.1 that the family of the plaintiffs owning 70 acres of land, for which he has pleaded ignorance, has drawn an inference that it is admitted. 11 He would contend that it is for the plaintiffs to prove the existence of the sufficient nucleus of the joint family, which is not properly appreciated by the First Appellate Court. It is also contended that there was a family necessity, as admittedly, the plaintiffs were in custody and the First Appellate Court has wrongly considered and presumed that defendant No.1 has admitted sufficient joint family nucleus, which is not at all forthcoming. It is also contended that defendant No.3 would have been the best witness and interestingly she has been placed exparte and the plaintiffs did not choose to examine their mother, though they all along assert that she is residing with them only. In that event, she could have been joined as a plaintiff, but she was shown to be defendant No.3, which disclose that it is a collusive suit. It is also contended that the plaintiffs all along claimed that their family possessed 13 acres of land, but during the cross- examination of DW.1, it is suggested that the family owns 70 acres of land, which is inconsistent stand. Learned counsel would also contend that the First Appellate Court has basically proceeded on wrong notion that plaintiffs and defendant No.3 possessed joint family property and got nucleus and the 12 property possessed by an individual person is a joint family property. He would also contend that admittedly, when the purchase was made by defendant No.1, the property was standing in the name of defendant No.3 and hence, he would contend that the First Appellate Court was wrong in decreeing the suit by allowing the regular appeal. Hence, he would seek for allowing the appeal and prayed for setting aside the judgment and decree passed by the First Appellate Court by confirming the judgment and decree passed by the Trial Court in O.S.No.229/1990.
11. Per contra, learned counsel for respondent Nos.1 and 2/plaintiffs would contend that defendant No.3 was not having any income and the land was purchased in the name of defendant No.3 in 1986. It is also contended that the plaintiffs are in possession of the suit land since long time and they were came in possession since 1970 under the agreement of sale and in this regard they placed reliance on the evidence of PWs.2 and 3. He would also contend that the legal notice was issued in 1990, but no reply was given and hence, the suit was filed. It is contended that with the aid of the joint family 13 nucleus, the property was purchased in the name of the mother of the plaintiffs and he would contend that alienation of the joint family property without the consent of other coparceners and without legal necessity, is bad under law. Learned counsel also contended that the land was also sold for meager value and defendant No.3 was not kartha of the family and alternatively, he contend that at the most defendant No.3 could have alienated her 1/3rd share and to that extent, the sale deed may be upheld, but as regards share of the plaintiffs it is bad under law. Hence, he would seek for dismissal of the appeal.
12. This Court, by order dated 16.02.2010 has framed the following two substantial questions of law:
"1. Whether the Lower Appellate Court is justified in reversing the judgment and decree passed by the Trial Court without meeting the reasoning given by it?
2. Whether the Lower Appellate Court was justified in holding that the suit property is joint family property when there was no cogent evidence in support of the said claim?14
13. Having heard the arguments and perusing the records, it is evident that the suit schedule property was purchased in the name of defendant No.3. It is the contention of the plaintiffs that it is purchased out of the income of the joint family property. At the outset, the plaintiffs assert that the sale deed of 1986 was without consideration. But, defendant No.3 herself has nowhere asserted that she was not paid any consideration and any fraud or misrepresentation was played on her. Interestingly, the plaintiffs all along assert that defendant No.3 is residing with them even till today and in that event, if there was no consideration paid, nothing prevented them from examining defendant No.3 and she could have challenged the sale deed on the ground of fraud or misrepresentation, but that is not the case forthcoming. At the outset, admittedly, the suit property was purchased in the name of defendant No.3, which is not in dispute. Hence, it is the burden on the plaintiffs to establish that, it is purchased out of the income of the joint family, as they are asserting that it is a joint family property. To substantiate the said contention, they are required to prove that the joint family is having sufficient nucleus. Further, they are required to prove 15 that the joint family was having surplus income to acquire this property after all the expenses of the family were borne out.
14. The evidence of the defendants disclose that defendant No.3 is running a kirana shop in Gadratagi village and she is living separately. DW.3 is a relative of the plaintiffs and defendant No.3 and he has specifically stated that since many years the plaintiffs and defendant No.3 were residing separately, which shows that there is no existence of the joint family as alleged. Further, the evidence disclose that defendant No.3 was running a kirana shop and interestingly, defendant No.3 though alleged to be staying with the plaintiffs as per the case of the plaintiffs, she did not come forward to support the plaintiffs. The plaintiffs at one breath assert that it is a joint family property acquired with the aid of the joint family and at another breath they assert that no consideration has been passed. But, as regards consideration, defendant No.3 herself did not challenge this aspect.
15. The plaintiffs all along asserted that the suit property was purchased by them in 1970 under an agreement of sale by paying the consideration amount. At the first 16 instance, the agreement of sale does not confer any right, title or interest in favour of any person. Further, the agreement of sale itself is not produced by the plaintiffs to substantiate this contention. Further, the plaintiffs are relying on the evidence of PWs.2 and 3 in this regard. PW.3 is the vender of defendant No.3, while PW.2 is the husband of PW.3. Their evidence is consisting of lot of contradictions in this regard. PW.2 deposed that he has given two acres of land for cultivation to defendant No.2 on lease, whereas PW.3 deposed contrary. One witness asserts that lease was for two years and other witness asserts that lease was for three years. Further, their evidence disclose that they do not have good relationship with defendant No.2, who is the son-in-law of defendant No.1.
16. All along, a suggestion was made to DW.1 that the family owns 70 acres of land. For this suggestion, DW.1 has pleaded ignorance. Interestingly, the First Appellate Court treated it as an admission. The First Appellate Court ignored the fact that burden is on the plaintiffs to establish that the plaintiffs' family own 70 acres of land and it is not the burden on the defendants. On the contrary, the plaintiffs have 17 produced Ex.P8 to show that the family owns Sy.No.3:A. On perusal of Ex.P8, it is evident that this land is measuring only 6 acres 17 guntas. Absolutely, there is no other evidence to show that the family is owning other lands and/or this land is having sufficient income and there is any surplus income. When the plaintiffs assert that they have got sufficient joint family income, initial burden is on them to substantiate this contention and by mere production of ROR at Ex.P8, it cannot be presumed that joint family is having sufficient surplus nucleus to acquire the suit schedule property in the name of defendant No.3. Apart from that, plaintiffs all along asserted that there was an agreement of sale in 1970, but that agreement of sale was also not produced to show that the agreement of sale was in their name. The grounds shown for non-production of this agreement of sale cannot be accepted, as inconsistent evidence is led in this regard. Even if the agreement of sale was lost, none of the attesting witnesses, who said to have attested on the agreement of sale were examined by the plaintiffs. Hence, at no stretch of imagination an inference can be drawn that the plaintiffs have purchased the suit property in 1970 itself.
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17. On the contrary, admittedly, DW.3 is a relative of the plaintiffs and defendant No.3 and he has deposed that defendant No.3 was residing separately and she was running a kirana shop. Admittedly, the plaintiffs were in judicial custody in a murder case of one Pampanagouda and when they were in custody, defendant No.3 has alienated the suit schedule property standing in her name. She has not alienated any property standing in the name of her children i.e., the plaintiffs and the legal necessity can be easily inferred. The family lands were not able to be cultivated, as the plaintiffs themselves were in custody and there was no income to the family. Hence, the legal necessity can also be inferred because of this aspect. Further, the evidence also disclose that defendant No.3 had independent income. Even in Ex.P1, there is no reference that there was any earlier agreement pertaining to suit property in favour of the plaintiffs. If there was any agreement, the said recital ought to have been found in Ex.P1, but that is also not forthcoming.
18. The ground of non-payment of consideration cannot be accepted, as Ex.P1/D1 is a registered sale deed and 19 there is an endorsement by the Sub-Registrar, before whom there was an acknowledgement of receipt of consideration. There is also no evidence as to how the plaintiffs got cultivated the suit land or other family land when they were in custody and quite naturally during the custody only, their mother i.e., defendant No.3 was making attempts to get them enlarged on bail and this itself establish the legal necessity.
19. The learned counsel for the respondents/plaintiffs has placed reliance on a decision of the Hon'ble Apex Court reported in (2004) 11 SCC 320 (P.S. Sairam and another v. P.S. Rama Rao Pissey and others) and argued that insofar as immovable property in the name of individual member of joint family, there would be a presumption that the same belongs to joint family and said presumption is not applicable to the business. There is no dispute regarding the proposition of law laid down in the said case, but before drawing that presumption, the plaintiffs are required to prove that the joint family had a surplus nucleus to acquire this property, which is missing in the instant case. 20
20. In this regard, the learned counsel for the appellants has placed reliance on a decision of the Hon'ble Apex Court in Civil Appeal No.7037/2021 (Beereddy Dasaratharami Reddy vs. V. Manjunath and another), dated 13.12.2021, wherein it is observed that once the factum of existence of legal necessity stood proved, no coparcener has a right to challenge the sale made by the karta of his family. Admittedly, in the instant case, the legal necessity can be easily presumed with the fact that the plaintiffs were in custody when the sale deed was executed by defendant No.3 in favour of defendant No.1.
21. The learned counsel for the appellants has further placed reliance on a decision of the Division Bench of this Court reported in AIR 2006 KARNATAKA 68 (Smt. Radhamma and Ors. etc v. H.N. Muddukrishna and Ors. etc), wherein the Division Bench of this Court in paragraph Nos.29 and 30 has clearly observed that, initially the burden is on the plaintiffs to establish that adequate nucleus was available for acquisition of the property. It is further observed that this again depends on the nature and the extent of the 21 nucleus and when the details regarding availability of joint family funds and the nucleus are absent, question of shifting the burden to the defendants does not arise. The said principles are directly applicable to the facts and circumstances of the case in hand, as in the instant case, the plaintiffs have failed to establish that the joint family was having any sufficient surplus nucleus.
22. A similar view is again taken by the Hon'ble Apex Court in a decision reported in AIR 2003 SC 3800 (D.S. Lakshmaiah and another v. L. Balasubramanyam and another) in para 17, wherein it is held that when the respondents having failed to discharge the initial burden of establishing that there is any nucleus in the form of any income whatsoever from Item No.2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item No.1 property was joint family property.
23. This view is again reiterated by the Division Bench of this Court in (2000) 4 KCCR 2609 (Shri Ramesh Srinivasa Jannu Vs. Sri. Srinivas Vittoba Jannu since 22 deceased by LRs. and Ors.), wherein the Division Bench of this Court has held as under:
"Existence of a joint family does not in itself give rise to any presumption that the property held by any member of the family is joint. The burden to prove that any item of property is joint rests on the person making such an assertion. Where however it is established that the joint family possesses some property, which from its nature and relative value may have formed the nucleus, from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of any such joint family nucleus."
24. This was again elaborately discussed in para No.9, of the said judgment, wherein it is held that it is not just the existence of a nucleus but its sufficiency for the acquisition of the disputed property that has to be established before a presumption that the acquisition was made with the help of the nucleus can possibly arise. But, no such evidence is led by the plaintiffs in the instant case.
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25. Further, the Full Bench of the Hon'ble Apex Court in AIR 1969 SC 1076 (Mudigowda Gowdappa Sankh and others v. Ramchandra Revgowda Sankh (dead) by legal representatives and another) has held that there is no presumption of joint property or ancestral property and possession of nucleus is essential and in para No.6, this fact was again in detail discussed and held that mere existence of property is not a ground to come to a conclusion of existence of nucleus and it is required to be established.
26. The learned counsel for the appellants further placed reliance on a decision of this Court reported in 2007 SCC OnLine KAR 597 (Smt. Revamma and Another v. Basha Saab and Another), wherein this Court has observed as under:
"Civil law - Partition - Self-acquired property - Presumption that joint family continues to be joint until proved contrary - No presumption of possession of joint property - Nucleus - Sufficient surplus income from joint family property after daily necessities for acquisitions will prove nucleus - Burden shifts on who alleges self-acquisition - Self- acquisitions proved since property purchased out of own income from business."24
27. In para No.11 of the said judgment, this Court has again in detail discussed this aspect and held that there must be surplus income after meeting the daily necessities, which could be termed as a nucleus for purchase of the joint family property.
28. Admittedly, in the instant case, except production of Ex.P8, the plaintiffs have not led any piece of evidence to show that property was having any surplus income to acquire the suit schedule property in the name of defendant No.3. On the contrary, the evidence on record establish that defendant No.3 was having independent income from her kirana shop. Apart from that, it is also established that there was a legal necessity, as the plaintiffs themselves were in custody. Under these circumstances, under no stretch of imagination it can be held that the suit schedule property is a joint family property and acquired with the aid of the joint family. Even otherwise, legal necessity is also established.
29. The First Appellate Court on assumptions and presumptions has reversed the judgment and decree of the Trial Court and the Trial Court has elaborately and in detail 25 discussed all these aspects and thereby passed a just decision. The First Appellate Court only on the basis of certain suggestions made to DW.1 which are pleaded ignorance by DW.1 has assumed that joint family has sufficient income. Even the First Appellate Court has failed to consider the legal necessity in view of the judicial custody of the plaintiffs themselves. The First Appellate Court unnecessarily harped on certain aspects which were not at all canvassed in the appeal and negative burden was casted on the defendants. Apart from that, Exs.D2 and D3 disclose that defendant No.1 after purchasing the suit schedule property on 30.10.1986, moved an application and the same was objected and as such, the Revenue Inspector by order dated 23.01.1987 has referred the matter to the Tahsildar. The Tahsildar, by his order dated 19.04.1988 has directed to mutate the name of defendant No.1. These Ex.D2 and D3 clearly disclose that prior to 1987 itself, plaintiff No.1 has the knowledge of sale deed and he has filed objection statement. He was also represented by an Advocate before the Tahsildar. But, when the sale deed was within the knowledge of the plaintiffs prior to 23.01.1987, the suit ought to have been filed within three years, but 26 admittedly the suit came to be filed on 24.07.1990. Hence, even on this point the suit is clearly barred by law of limitation and the First Appellate Court has not even considered this aspect also. The First Appellate Court without proper application of mind has reversed the judgment and decree passed by the Trial Court and it is not justified in reversing the judgment and decree of the Trial Court and further the First Appellate Court has erred in holding that the suit schedule property is joint family property in the absence of any material evidence. As such, both the substantial questions of law are answered in favour of the appellants/defendants in the Negative and as such the judgment and decree passed by the First Appellate Court in R.A.No.189/2004 needs to be set aside by restoring the judgment and decree passed by the Trial Court in O.S.No.229/1990. Hence, the appeal needs to be allowed. Accordingly, I proceed to pass the following:
ORDER i. The appeal is allowed with costs.
ii. The judgment and decree passed by the Addl.
District Judge (FTC-III), Raichur in 27 R.A.No.189/2004 is set aside. Consequently, the judgment and decree passed by the Prl. Civil Judge (Jr.Dn.), Sindhanur in O.S.No.229/1990 stands restored.
Sd/-
JUDGE