Karnataka High Court
Sri B C Naryanappa vs Smt Jyotsnaben Manohardas Valia on 31 October, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:44168
RFA No. 904 of 2006
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO.904 OF 2006 (DEC)
BETWEEN:
SRI B C NARYANAPPA
AGED ABOUT 67 YEARS
S/O LATE CHIKKAMUNISWAMAPPA
R/AT NO 142, 4TH CROSS
NAGAPPA BLOCK
SRIRAMPURAM, BANGALORE-560 021
SINCE DEAD BY HIS LRS.
1(a) SRI N.SURESH KUMAR
AGED ABOUT 34 YEARS
S/O LATE B.C.NARAYANAPPA
1(b) SRI N.SHIVA KUMAR
AGED ABOUT 29 YEARS
S/O LATE B.C.NARAYANAPPA
SINCE DEAD BY HIS LRS.
Digitally signed
by R 1(b)(i) SMT.N.SHEETAL
MANJUNATHA
W/O LATE SHIVAKUMAR
Location:
HIGH COURT AGED ABOUT 35 YEARS
OF
KARNATAKA 1(c) SMT.N.SAVITHRAMMA
AGED ABOUT 29 YEARS
S/O LATE B.C.NARAYANAPPA
1(d) SMT.N.RUKMINI
AGED ABOUT 31 YEARS
D/O LATE B.C.NARAYANAPPA
W/O MUNISWAMY
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RFA No. 904 of 2006
HC-KAR
1(e) SMT.N.HEMAVATHI
AGED ABOUT 40 YEARS
D/O LATE B.C.NARAYANAPPA
W/O MUNIYAPPA
1(f) SMT.LEELAVATHI
AGED ABOUT 32 YEARS
D/O LATE B.C.NARAYANAPPA
W/O ANANDA REDDY
1(g) SMT.SHARADAMMA
AGED ABOUT 70 YEARS
D/O LATE B.C.NARAYANAPPA
ALL ARE RESIDING IN NO.142
4TH MAIN, NAGAPPA BLOCK
SRIRAMPURAM
BANGALORE - 560 021
...APPELLANTS
[BY SRI HEMANTH KUMAR G M, ADVOCATE FOR A1(A TO F)
AND LRs OF A1(B);
SRI M.S.NARAYANA RAO, ADVOCATE FOR A1(G)]
AND:
1. SMT JYOTSNABEN MANOHARDAS VALIA
W/O LATE MANORDAS VALIA
R/AT NO 46, 4TH CROSS,
GANDHI NAGAR
BANGALORE-560 009
2. SRI C MANI
R/AT NO 116, 4TH CROSS
SAIBABA NAGAR, SRIRAMPURAM
BANGALORE--560 021
3. SRI RAJENDRA
RESIDING AT NO.68,
1ST CROSS, ROBERTSON BLOCK
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RFA No. 904 of 2006
HC-KAR
SRIRAMPURAM
BANGALORE-560 021
4. SRI YETHIRAJ
RESIDING AT NO.144,
NEW 37, 4TH CROSS
NAGAPPA BLOCK, SRIRAMPURAM
BANGALORE-560 021
5. SRI CHAKRAPANI
RESIDING AT NO.36, 5TH CROSS,
L N PURAM
SRIRAM PURAM
BANGALORE-560 021
6. SRI M BALASUBRAMANI
S/O MUNISWAMY
AGED ABOUT 30 YEARS
RESIDING AT NO.4212/6A, 1ST MAIN,
SUBRAMANYA NAGAR
MUNESHWARA TEMPLE STREET
BANGALORE
7. SRI RAKESH V. MEHATA
AGED ABOUT 37 YEARS
S/O VINODRAI O MEHTA
R/AT NO.218/B, 57TH CROSS,
4TH BLOCK, RAJAJINAGAR
BENGALURU - 560 010
8. SMT.GEETHA MANI
AGED ABOUT 55 YEARS
W/O C MANICHETTY
R/AT NO.152/A, 2ND CROSS,
ITI LAYOUT
NAYANDANAHALLI
BENGALURU- 560 039
...RESPONDENTS
(BY SRI. C G GOPALASWAMY, ADVOCATE FOR C/R2 TO R4 AND R6;
R5, R7 AND R8 ARE SERVED AND UNREPRESENTED;
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RFA No. 904 of 2006
HC-KAR
VIDE ORDER DATED 20.09.2010, APPEAL IS DISMISSED AS
AGAINST R1)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT
AND DECREE DATED 18.02.2006 PASSED IN O.S.No.2258/1990
ON THE FILE OF THE I ADDL.CITY CIVIL AND SESSIONS
JUDGE, BANGALORE (CCH.NO.2), DISMISSING THE SUIT FOR
DECLARATION, CANCELLATION OF SALE DEED AND FOR
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Hemant Kumar G.M., learned counsel for the appellants. None appears for the respondents.
2. Unsuccessful plaintiff in O.S.No.2258/1990, on the file of First Additional City Civil and Sessions Judge, Bangalore is the appellant in this appeal, challenging the dismissal of the suit.
3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under.
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4. In respect of the following immovable property (hereinafter referred to as 'suit property'), a suit came to be filed by the plaintiff with the following prayer:
"(1) Declaring the Sale-Deed dated 22-2.1963, executed by the Plaintiff, his mother and brothers, as nominal Sale not effecting the right, title of the Plaintiff in the Sites bearing Nos-, 37 and 37/1. situated in 4th Cross, Nagappa Block, Sriramapuramg Banga lore-560 021 and cancel the same.
(11). Consequently, Cancel the approved Plan bearing I.P-No.104/1989-90, dated 2.12.1989, valid upto 1.12.1991, granted by the Corporation of the City of Bangalore, in favour of the Defendant with respect to the Sites bearing No.37/1, situated at 4th Cross, Nagappa Block, Sriramapuram, Bangalore-21.
(111) Restrain the Defendant, her agents, Successors-in-
interest heirs, assigns from tresspassing on the sites bearing Nos.37 and 37/1, "situated in 4th Cross Nagappa Block, Sriramapuram, Bangalore-21 and from putting-up construction and from disturbing the Peaceful possession and enjoyment of the Plaintiff by issue of a Permanent injunction, and Declaring the plaintiff as lawful owner of suit schedule property become 37/1 (old No.142) situated in 4th cross, Nagappa block, Srirampuram, Bangalore-21.
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5. The plaint got amended and further prayers were added. Further prayers after the amendment read as under:
Wherefore, the plaintiff prays that this Hon'ble court be pleased to decree the suit ;
(i) Declaring the sale deed dated 22.2.1963, executed by the plaintiff, his mother and brothers, as nominal sale not affecting the right, title of the plaintiff in the site bearing Nos.37 and 37/1 situated in 4th Cross, Nagappa Block, Srirampuram, Bangalore-560 021, and cancel the same .
(ii) Consequently, cancel the approved plan bearing L.P.No.105/1989-90 dated 2.12.1989, valid upto 1.12.1991, granted by the Corporation of the City of Bangalore, in favour of the defendant with respect to the sites bearing No.37/1 situated at 4th Cross, Nagappa Block, Srirampuram, Bangalore-
560 021 :
(iii) Restrain the defendant, her agents, successors-in-interest, heirs, assigns, from trespassing on the sites bearing Nos.37 and 37/1 situated in 4th Cross, Nagappa Block, Srirampuram, Bangalore - 560 021 and from putting up construction and from disturbing the peaceful -7- NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR possession and enjoyment of the plaintiff by issue of a permanent injunction
(iv) Declare the plaintiff as lawful owner of suit schedule property bearing No.37/1 (old 142) situated in 4th Cross, Nagappa Block, Srirampuram, Bangalore -21,
(v) consequently, cancel the sale deed ;
(a) dated 5.2.1990 entered by the first defendant to second defendant ;
(b) dated 7.2.1990 entered by the first defendant to third defendant ;
(c) dated 12.12.1990 executed by the first defendant to the fourth defendant;
(d) sale deed executed by the first defendant to fifth defendant ;
(vi) Directing the defendants No.2 to 5 to deliver vacant possession of that portion of the suit schedule property which had been illegally occupied by them to the plaintiff;
(vii) pass a decree proliminary/final awarding a mesne profit to the plaintiff of Rs.2,000/- or as -8- NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR like sum which is desired after enquiry from the defendants and hold an enquiry to calculate exact mesne profits which the plaintiff is entitled to from 1.7.1990 when the defendant illegally began putting up construction till they deliver vacant possession of the suit schedule property and pass a final decree in terms of the result of the above said enquiry;
Schedule All that land and Sites bearing Nos.37 and 37/1 , (old No.142) situated in 4th Cross, Nagappa Block, Sriramapuram, Bangalore-560 021, bounded on the East by:- Footpath Road and Ditch;
West by:- Sites and houses belonging to the Plaintiff and his brothers;
North by:- 4th Cross Road of Nagappa Bloak; and South by: House bearing No.78 and Sites and other houses.
measuring East to West 109 Feet and North to South 65 Feet on the eastern side and 85 ft. on the western side."
6. Plaintiff contended that he is the absolute owner of the site No.37, and 37/1, situated in 4th cross, Nagappa Block, Srirampuram, Bengaluru - 21. The said suit property situated adjacent to the residence of the plaintiff and he was using the -9- NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR same to tether the cows and for the purpose of manure pit. A small temple is also situated in one corner of the site.
7. It is further contented that suit property belonged to the father of the plaintiff Chikkumuniswamappa and was partitioned among the plaintiff, fourth son Anjanappa, fifth son Somashekara and mother of the plaintiff Chowdamma under registered partition deed dated 23.03.1964. Plaintiff got his share and mother of the plaintiff expired on 25.12.1979 and left her share in the property of the plaintiff. Similarly fifth son Somashekara expired on 18.01.1990 and he also left his share in the suit property to the plaintiff and as such, plaintiff became the absolute owner of the suit property.
8. It is further contented that in the year 1963 plaintiff was in need of money to meet his domestic problems and at that juncture, he approached the husband of the defendant for a hand loan in a sum of Rs.5,000/-.
9. Plaintiff also expressed to the husband of the defendant that he is ready to mortgage one of his sites as security. Plaintiff further contented that husband of the defendant agreed to advance sum of Rs.5,000/- and asked for
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR execution of a nominal sale deed by way of security of one of the sites belonging to the plaintiff.
10. He assured the plaintiff that he will not act upon the sale deed in any manner and treat it only as a security and he also agreed to re-convey the sites or cancel the nominal sale whenever the loan is discharged.
11. The plaintiff agreed for the said arrangement and executed a nominal sale deed on 22.02.1963 along with his mother and brothers and the same was also registered. Despite the execution of the sale deed, possession of the property remained with the plaintiff.
12. It is further contented that husband of the defendant during his lifetime did not act upon the said nominal sale deed in any manner and he did not ask the plaintiff to show the site which was subject matter of the said sale deed and did not demand for the possession of the site.
13. Husband of the defendant expired on 30.10.1982 and after his death, plaintiff approached the defendant and her children and explained about the loan transaction that was entered into by the plaintiff with the husband of the defendant
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR and demanded for re-conveying the property as the plaintiff was ready to discharge the loan amount with interest.
14. However, the defendant denied the same.
Therefore, the plaintiff filed the suit initially with the aforesaid prayer and later on plaint got amended and included the additional prayer.
15. Pursuant to the suit summons, defendant entered appearance and denied the plaint averments in toto and maintained that the sale deed executed by the plaintiff in the year 1963 was a valid and absolute sale deed and all other contentions that there was no possession handed over to the husband of the defendant etc., were denied.
16. Based on the rival contentions of the parties, learned trial Judge raised following issues.
1. Does the plaintiff prove the sale deed executed by him in favour of defendant's husband dated 22.2.1963 is nominal towards security of the loan dated of Rs.5,000/- taken by him from the 1st defendant's husband?
2. Does plaintiff prove defendants 2 to 5 having trespassed on the suit schedule Property and
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR having put up construction during the pendency of the suit?
3. Does plaintiff prove that he is the absolute owner of the suit schedule property and was in its actual possession as on the date of suit ?
4. Does plaintiff prove that the property mentioned in the sale deed executed by him in favour of 1st defendant's husband dt. 22.2.63 is different from the suit schedule property, as such the said sale deed do not affect his right over the suit schedule property?
5. Whether the suit is bared by limitation as contended by the defendant?
6. Whether the suit valuation and court fee paid thereon is improper and insufficient as contended by the defendant?
7. Is the plaintiff entitled for the reliefs sought for ?
8. What decree or Order ?"
17. In order to discharge the burden cast on the plaintiff, plaintiff got examined himself as P.W.1 and three more witnesses namely, G.N. Rangappa, S.M. Raju, Venkateshappa as P.W.2 to P.W.4. Plaintiff placed on record
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR certified copy of the partition deed, will, certified copy of the sale deed, certified copies of the four sale deeds, notice, reply, copy of the rejoinder, postal acknowledgment, extract of P.T., and endorsement issued by the survey office, photographs and negatives.
18. As against the evidence placed on record by the plaintiff, four witnesses were examined on behalf of the defendants namely, M. Balasubramani, C. Mani, M. Rajendran and P. Yathiraj at D.W.1 to D.W.4 and they placed on record as many as 75 documents which are exhibited and marked as Exs.D1 to D75.
19. Thereafter, learned trial judge heard the arguments of the parties and dismissed the suit of the plaintiff.
20. Being aggrieved by the same, the plaintiff has filed the present appeal on the following:
GROUNDS The trial Court erred in clubbing the issue Nos.1 to 3 and has adopted the discussion and reasoning on issue Nos.1 to 3 to decide the issue No.4; thereby virtually clubbing issue No. 1 to 4 together to decide those issues which has resulted in loose and
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR untenable reasoning and wrong application of both oral and documentary evidence on record which has resulted in illegality and miscarriage of justice. As per order XX rule 5 and order XIV rule 2 of the Code of Civil Procedure, 1908 the trial court should have discussed the issues No.1 to 4 separately and give it finds separately.
The trial court erred in answering the issue No.4 in the negative without taking into account the relevant pleadings and evidence on record. Hence, the judgment is illegal.
The trial court erred in coming to the conclusion (at page 18 para 7), that there is no pleading with regard to evidence lead by the Plaintiff to establish that the Plaintiff has not executed any sale deed with respect to the suit schedule property in favour of the husband of the first Defendant and he had executed the nominal sale deed Ex.P-3 in respect of the site No.279/2 and 279/3 of Lakshminarayanapura. Infact, the purport of the whole plaint is that the nominal sale deed Ex.P-3 is with respect to site No.279/2 and 279/3 of Lakshminarayanapura and not with respect to the suit schedule site. Particularly paragraphs 8 and 9 of the plaint deals with this aspect of the case. The trial court has over looked paragraph 8 and 9 of the plaint and has only read paragraph 5 of the plaint. Hence, the judgment and decree is illegal and liable to be set aside. The trial court erred in coming to the conclusion that the Plaintiff has not come with clean hands and that
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR there is something fishy in the theory of execution of nominal sale deed dated 22/02/1963 by the Plaintiff in favour of husband of the first Defendant (at page 20 of the judgment). The Plaintiff has stated what transpired between him and the husband of the first Defendant. The trial court do not say what is fishy about it. If simply call it fishy without taking into account the evidence lead by the Plaintiff and the important fact that there is no evidence on behalf of the Defendant on this aspect. Defendants No.2 to 6 say that they do not know anything about the transactions which happened prior to their purchase of site viz. after 1990 between Plaintiff and the husband of the first Defendant. The first Defendant do not enter the witness box to give evidence.
Hence, there is no evidence to show that the case of nominal sale deed executed by him is a false one or there is anything filing about it. The trial court has imported something to base its conclusion which is not on record; on the contrary the Plaintiff has lead evidence that the husband of the first Defendant did not take any action from the date of the nominal sale deed till his death and the first Defendant also did not take any action with regard to site No.279/2 and 279/3 Lakshminarayanapura till 1990. Hence, there was no action with respect to the property mentioned in the nominal sale deed Ex.P-3 for long period of nearly 30 years from 1963 to 1990. There is no explanation in the written statement of the Defendants and no evidence on this aspect. On the
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR contrary the Plaintiff says that husband of first Defendant had assured him while executing the nominal sale deed Ex.P-3 that he will not act upon the sale deed and he was not particular about the identity of the site and its title deeds mentioning in Ex.P-3. Infact the Defendants do not produce any precious title deeds pertaining to the sites mentioned in the nominal sale deed Ex.P-3. Similarly the Plaintiff has deposed regarding the price of the site in the year 1963 in Lakshminarayanapura, to show the nominal nature which has not been challenged at all, Hence, the whole evidence on record goes to support the case of the Plaintiff that the sale deed Ex.P-3 was only nominal.
The trial Court erred in coming to the conclusion that the pleading and evidence of the Plaintiff with respect to his contention in paragraph 8 of the plaint and his evidence at page 7 that the site No.37 and 37/1 (suit schedule site) are different from sites No.279/2 and 279/3 have to be disbelieved. The reasoning of the trial court in this aspect at p. 20 and 21 of the judgment is whole wrong contrary to evidence on record. It assumes many things which are not on record. It has confused itself between two sites while discussing this aspect of the case. The judgment says (at page 20 of judgment) that Plaintiff has deposed "I have stated that site Nos.37 and 37/1 are not in our possession in the plaint". The Plaintiff has not deposed like that while giving evidence or during his cross-examination. Infact the
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR trial court has assumed many things which are not supported by record which is dealt herein. The trial court's conclusion that the execution of the sale deed Ex.P-3 by the Plaintiff in favour of husband of the first Defendant with respect to site Nos.279/2 and 279/3 without knowing the name of the katha holder of the said sites leads to sheer fraudulent misrepresentation on the part of the Plaintiff with the intention to deceive the others and with such intention he has represented before the Defendants and made them to believe (which is also wrong) the same and part with a sum of Rs.5000/- makes the Plaintiff accountable for an action under both civil and criminal laws is wholly wrong not based on evidence. Infact it is no body's case. Even Defendants have not put forward that case. The Defendants have not done so even alternatively. It to make out a case where there is none. is an attempt a of.
The Plaintiff has categorically stated that he took loan of Rs.5000/- from husband of first Defendant and the said husband/ and he wanted a nominal sale any site of Plaintiff by way of security, He assured the Plaintiff that he will re-convey the same after the loan is repaid and he will not act upon the sale deed, The Plaintiff executed Ex.P.3 selling site No.279/2 nd 279/3 first Main, Lakshminarayanapura, wherein their family had formed sites in revenue lands. The Plaintiff further says that the husband of the first Defendant was not particular above sites or its
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR identity or its boundaries. This case of the Plaintiff has not been contradicted by the Defendants at all by producing any evidence or cross-examining the plaintiff PW-1. Infact nearly 30 long years of inactivity on the part of the first Defendant and her husband, first Defendant not giving evidence and total absence of previous document and connected papers with respect to sites No.279/2 and 279/3 in possession of 1st Defendant and her husband go to support the case of the Plaintiff rather than making the case of Plaintiff suspicious and fishy as concluded by the trial court. Infact, if there was any fraudulent misrepresentation and deceit the husband of the first Defendant late Manohar Das Valia who was a shrewd businessman would have definitely taken action against the Plaintiff and would not have kept quite for such a long period.
Further there is no evidence on record that the suit schedule sites bearing No.37 and 37/1 situated in 4th Cross, Nagappa Block are the sites which were seen by the said Manohar Das Valia in the year 1963. The said Manohar Das Valia who was well versed with the locality of Nagappa Block and Lakshminarayanapura would have immediately recognized the difference between the suit schedule sites situated in 4th Cross, Nagappa Block, and sites No.279/2 and 279/3 situated in lst Main, Lakshminarayanapura, which are the subject matter of nominal sale in Ex.P-3. He would have definitely demanded the Plaintiff to execute a rectification deed.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR The defence of the Defendants all along is that numbers 279/2 and 279/3 have been re-numbered as 37 and 37/1 by the Corporation. But, the two sites are situated the different localities which existed in 1963 and which exist even today viz. 4th Cross, Nagappa Block and 1st Main, Lakshminarayanapura. Infact, the Defendants clearly admit this. factin their crossexamination. The trial court erred in not taking into consideration these admissions by the Defendants.
The trial court erred in finding fault in the evidence of PW-2 (at page 26 of judgment) for not producing the ration card and other documents to show he was residing in Nagappa Block. The fact of residence of PW2 was in issue. It was not denied by the Defendants. He was only an attesting witness of the WILL.
The trial court erred in coming to the conclusion that PW-4 is not a reliable witness just because as he does not know who wrote below the LTM of Chowdamma stating it is the LTM of Chowdamma in kannada. The trial court is biased in appreciating the evidence of PW-4 as it assumes wrongly as follows; he denies the LTM belonging to Chowdamma ".Infact this is wholly wrong. In fact, PW-4 asserts that LTM mark in Ex.P.2 is belonging to Chowdamma. The trial court fails to take into consideration the admission of DW- 1 that he got the katha of the whole property changed during the pendency of the suit into his name; even though he had purchased
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR only a portion. This fact shows that Defendants No.2 to 4 tried all illegal means to give a fait accompli to this Hon'ble Court by manipulating the katha of the suit schedule property into their names by hook or crook.
The trial court has ignored that the DW-1 has blatantly gave false evidence to mislead the court. DW-1 admits in his chief examination that Manohar Das Valia husband of first Defendant purchased the property which bears the number 279/2 and 279/3 Lakshminarayanapura, Srirampura, Bangalore - 560
021. He also deposes that (at page 32 of the judgment)- at the time of changing the katha in the name of Manohar Das Madhavaji the then corporation of the City of Bangalore, has assigned door No.37 and 37/1 to the suit property". This is wholly wrong. In fact, katha was changed to Mariohar Das Valia's name with regard to property bearing No.279/2 and 279/3 of Lakshminarayanapura and not 37 and 37/1 of 4th Cross Nagappa Block. It is only subsequent events made after filing of the suit have been manipulated by the Defendants as 37 and 37/1, Infact DW-1 deposes to many other wrong facts which have been highlighted in his cross-examination. But, the trial court without considering these has accepted the evidence of DW-1 as gospel truth, which is wholly illegal. More over the point to be noted is that DW-1 never says that 1st Main, Lakshminarayanapura was also changed as 4th Cross, Nagappa Block.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR The trial court ignored the fact that DW-1 admits that, he does not know anything about the property purchased by him; prior to his purchase. He did not know the husband of the first. But, he deposes that Manohar Das Valia was in possession of the property mentioned in nominal sale deed 279/2 and 279/3 f 2nd Main, Lakshminarayanapura and the trial court accept it as gospel truth. Infact, the evidence of DW- 1 cannot be believed upon as he patently deposes to false hood as evident from his cross examination. The trial court erred in coming to the conclusion that the Plaintiff makes his stand clear that he has no dispute with regard to transaction between sixth Defendant and the husband of the first Defendant as per Ex.P-3. This is wholly wrong as the trial court attributes to the Plaintiff some thing which he has not admitted at all. More over sixth Defendant had no transaction with the husband of the first Defendant. The said suggestion was made to show that sixth Defendant did not purchase the suit schedule property at all.
The trial court erred in concluding that the Plaintiff has admitted the probable circumstances of allotting changed numbers by the municipal authorities like local bodies. Infact there is no such suggests at all by the Plaintiff to DW-1 that he has not produced any certificate regarding change of numbers from 279/2 and 279/3 to 37 / 1 and 37/2 of Nagappa Block.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR The trial court has erred in assuming that the Plaintiff suggestions to DW-1 during his crossexamination is with reference to the suit schedule property. Infact during appreciating the evidence the trial court has completely forgets and ignores the case of the Plaintiff that suit schedule property is different froT the property nominally sold under Ex.P-3. Hence, the judgment is liable to be set aside.
The conclusion of the trial court (at page 36 of the judgment) that because of suggestions by the Plaintiff to DW-1 that he has paid taxes it shows that the Plaintiff admits the possession of the DW-1 over the suit schedule property is wholly wrong. The suggestion was made in a different context. It is a clear case wrong appreciation of evidence of DW-1 and wrong reasoning on the part of the trial court. More over mere payment of tax to a property do not show the possession of that property by the person paying the tax. In this connection the trial court has ignored the admission of DW-1 that what he purchased was a vacant site and ignored the further suggestion that the Plaintiff has his house and manure pit and family temple in the suit schedule property.
The trial court erred in coming to the conclusion that the Plaintiff has failed to elicit anything positive in the cross examination of DW-1 to show the collusion between the first Defendant and the sixth Defendant.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR The trial court erred in ignoring the clear admission by DW-2 that the 4th Cross, Nagappa Block and 1st Main Road, Lakshminarayanapura are two different localities. The trial court also ignores the clear admission of DW-2 that Nos.37/1 and 37/2 were given to 279/2 and 279/3 at the time of change of katha.
The trial court to notice that DW-2 in his failed cross examination has admits to the facts which viz. change of katha, payment of betterment charges, sanction of plan, not constructing as per plan, katha and electricity installation stand in the name of first Defendant even after construction etc. contradicts his deposition in his chief examination and hence his evidence is not trust worthy. Infact the admission in the cross examination completely damages the case of the Defendants and support the case of the Plaintiff. The trial court has grievously erred in brushing aside these contradictions and admission by DW-2 by saying that they do not go to the root of the case etc. (at page 44 of the judgment). The trial court erred in ignoring the submission of the Plaintiff that all the documents produced by DW-2 and DW-3 and DW-4 came into existence after filing of the case. Hence, they have been cooked up too show the number as 37 and 37/1 so as to defeat the case of the Plaintiff. The trial court ought to have rejected these documents. The say of the trial court that the Plaintiff do not dispute the change of katha in favour of the Defendants No.1 to 4 after they
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR purchased the property is wrong and illegal. Infact the trial court adopt double standards when it says "-
---- this evidence applies only to post purchase sequence like payment of betterment charges --". By this the trial court has ignored that the DW-2 has deposed to false hood in his chief examination and his evidence is not trust worthy.
The conclusion of the trial court (at page 45 of the judgment) that the said suggestions goes to show the non-resistance from the Plaintiff to the sale transaction between the first Defendant and DW-2 on the ground that it is a different property is misconceived and wrong appreciation of fact. This shows that trial court has failed to understand the case of the Plaintiff as set out in the amended plaint. The trial court has failed to see that all the documents produced by the Defendants No.2 to 4 are subsequent to filing of the case and concocted by them to suit their case. As such those documents do not go to show that suit schedule property and property mentioned in the nominal sale deed Ex.P-3 are one and the same.
The conclusion of the trial court that the defence of the third Defendant that he is in occupation of a portion of the suit schedule property has been established through the mouth of the Plaintiff himself by way of suggestion to DW-3 (at page 47 of the judgment shows) the trial court did not care to understand the case of the Plaintiff and it has not gone through the amended plaint at all. The
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR reasoning of the trial court is illegal and perverse. The Plaintiff after he was forcibly dispossessed by the Defendants got the plaint amended by including the subsequent events and additional reliefs for possession and mesne profits were added. To show that the Defendants No.2 to 4 in post haste put up the construction even without obtaining the plan and that too depending on a old plan obtained by the first Defendant. The Defendants No.2 to 4 have admitted that they have not obtained a separate plan and on the basis of the plan obtained by the first Defendant have put up construction in total violation of the said plan to defeat the rights of the Plaintiff. This admission infact supports the case of the Plaintiff and do not prove the case of the Defendants. The trial court erred in ignoring the admission DW-4 that (at page 47 of the judgment), 1st Main, Lakshminarayanapura and 4th Cross, Nagappa Block are separate extension and they exists even today. Infact this admission proves the case of the Plaintiff viz. that the suit schedule property is different from the property mentioned in the sale deed Ex.P-3. The trial court erred in ignoring the important contradictions in the evidence of DW-1 to DW-4 with regard to giving new numbers 37 and 37/1 to old numbers 279/2 and 279/3. Some say that the numbers were changed while changing the katha while others say a different version rendering their evidence not trust worthy.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR The trial court also erred in ignoring the fact that the documents produced by them in support of their case mostly a change of katha payment of tax etc. are all created documents created during the pendency of the suit.
The trial court has erred in ignoring the contradictory evidence given by DW-1 to DW-4 on the same point. Similarly the trial court has erred ignoring the contradictions in the evidence of DW-1 to DW-4 between the chief examination and their cross examination. These contradictions coupled with their deposition that they did not know husband of first Defendant and they have no knowledge of what transpired between the said husband of first Defendant and Plaintiffs and further fact that the first Defendant has not given any evidence and has failed to step into the witness box proves the case of the Plaintiff as there is no contra evidence to support the case of the Defendants.
The trial court failed to take into consideration while discussing the Plaintiff's (at page 50 to 52) of the judgment) the explanation giver by the Plaintiff why a nominal sale deed was Ex.P-3 executed. Plaintiff has explained that he was ready to give security to the loan taken by him. But the husband of the first Defendant Manohar Das Valia wanted a sale deed of any the sites belonging to the Plaintiff be executed. Further, Plaintiff has stated that he assured him that he will not act upon the sale deed and re-convey the sites after repayment. This evidence of Plaintiffs not
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR shaken in the cross-examination. The first Defendant has not cared to give evidence contradicting the above version. The other Defendants No.2 to 4 admit that they do not know anything about those transaction. In the face of thesc evidence and materials the conclusion of the trial court of the judgment) that analysis of evidence of Plaintiff leads to unexplained circumstances is wholly illegal. Plaintiff executed a sale deed nominally as the husband of the first Defendant insisted on it. That type of transaction are quite common among parties. To say that the understanding between the Plaintiff and the husband of the first Defendant could have been incorporated in Ex.P-3, sale deed itself as concluded by the trial court is an attempt by the trial court to introduce something which did not happen between the parties. In the first place if such conditions had been incorporated then it would not have been simple sale deed as required by the husband of the first Defendant herein. At that time, the Plaintiff wanted a loan, and he was not in a position to impose his condition. He has to agree for the condition laid down by the husband of the first Defendant. In addition, the husband of the first Defendant and the first Defendant did not do anything with the property mentioned in Ex.P3 also go to prove the version of the Plaintiff. The trial court has erred in ignoring those materials and erred in coming to the conclusion that the Plaintiff has not
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR explained why he executed a sale deed and not any other document.
The trial court erred in accepting the Defendant's arguments that the Plaintiff do not explain what happened to the property sold under the nominal sale deed Ex.P-3. Infact Plaintiff has deposed that once but twice under cross-examination that his brother Doddanna sold those sites to third parties. More over the trial court has confused itself while accepting the arguments of Defendants on the point that Plaintiff do not whisper as to what happened to the sites No.279/2 and 279/3. The reasoning given by it cannot be understood at all (as set out at pages 52 and 53 of the judgment). The trial court goes at tangent and discussed some other points. The trial court erred in accepting the arguments of the Defendants that no scrap of evidence is produced by the Plaintiff to show that the suit schedule property had No.37 and 37/1 and old No.142 (at page 53 of the judgment). Infact the Plaintiff had argued that the fact that the suit schedule property bearing No.37 and 37/1 had old No.142 was clearly set out in the plaint and plaint schedule. This fact was not denied by the Defendants at all, in their written statement. Further the first sentence in the evidence of Plaintiffs that he is the owner of the suit schedule property and its old No.142. This piece of evidence was not at all challenged in the cross- examination of the Plaintiff. Hence, it was argued that by applying the principal of "non traverse"
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR contained in order Viii rule 4 of the Code of Civil Procedure, viz. if an allegation the plaint is not specifically denied in the written statement that the allegation stands proved and Plaintiff need not produce any evidence to prove it. What is more in this case, there is evidence which is not at all challenged. The Plaintiff had also produced a decisions reported in AIR 1964 SC 538 and AIR 1985 Delhi 76 on this point. trial court do not deal with these arguments but in confused way says it accepts the arguments of the Defendant. Hence, the judgment is liable to be set aside.
The trial court erred in reasoning that if schedule property bearing No.142 can be given a new number 37 and 37/ 1 as contended by the Plaintiff then it is possible to hold that property bearing No.279/2 and 279/3 can also be given new number 37 and 37/1 as contended by the Defendants (at page 53 of the judgment). This reasoning is wholly illegal and it is contrary to the facts in this case. In the first place the Plaintiff contends that the property bearing old No.142 situated in 4th Cross, Nagappa Block is given new Nos.37 and 37/1, again situated in 4th Cross, Nagappaa Block, with no change of locality. This contention of the plaintiff is not denied by the Defendant and hence stands proved. Whereas the Defendants contend that the property bearing No.279/2 and 279/2 situated in 1st Main, Lakshmi narayanapura is given new numbers 37 and 37/1 in 4th Cross, Nagappa Block. The location of the
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR property itself is changed and not mere numbers. Further the Plaintiff has specifically denied this allegation. Hence, it is incumbent on the part of the Defendants to prove the same by producing cogent evidence. They have failed to produce any evidence. The trial court comes to the conclusion that the property bearing No.279/2 and 279/3, 1st Main, Lakshminarayanapura, might have given the new numbers as 37 and 37/1, 4th Cross, Nagappa Block, by conjecture and surmises. Hence, the finding is wholly illegal and liable to be set aside. The trial court erred in accepting the contention of the Defendants that Ex.P-2 will shows that a cancellation document has been executed and Plaintiff has not produced that document. Infact Ex.P-2 do not mention any cancellation document at all. It is factual error. The trial court has committed a series of such factual errors on which it based its judgment. Hence, the judgment is liable to be set aside.
The trial court erred in coming to the conclusion that by amendment of plaint three items are rolled into plaint schedule property by making a mess in the Plaintif's case making the proceedings a multifarious suit. Infact this is another factual error committed by the trial court. Even the Defendants do not contend that the suit is bad for multifarious ness. The trial court again erred in coming to the conclusion that the Plaintiff has not established the existence of a property bearing No.279/2 and 279/3
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR of Lakshminarayana pura as claimed by him so as to dislodge the claim of the Defendants that property purchased by Manohar Das Valia itself is the property bearing No.37 and 37/1 he trial court conclusion is based on wrong understanding of the case, wrong understanding of the issues framed in the case as well wrong appreciation of facts and evidence in the case. The case is that Plaintiff is the owner of the suit schedule property which is 37 and 37/1, 4th Cross, Nagappa Block. The property sold under Ex.P-3 nominal sale deed is not the suit schedule property. It is the contention of the Defendants that, property under Ex.P-3 bearing No.279/2 and 279/3 Lakshminarayanapura, came to be given new numbers 37 and 37/1 4th Cross, Nagappa Block. Issues were framed even after recasting requiring the Plaintiff to prove that he is the absolute owner of the suit schedule property and whether Ex.P.3 is a nominal sale deed and particularly issue No.4 which runs as follows;
'Does the Plaintiff prove that the property mentioned in the sale deed executed by him in favour of the first Defendant husband dated 22/02/1963 is different from the suit schedule property as such the sale deed do not affect his right over the suit schedule property".
Hence, there is no issue casting the burden on the Plaintiff requiring him to show that property No.279/2 and 279/3, 1st Main,
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR Lakshminarayanapura, exists or not. Infact the original issues framed on 17/07/1993 rightly framed issue No.3 which reads as follows;
"3-Does the Defendants prove her absolute ownership and possession after purchase on 22/02/ 1963?" This issue was left out while recasting which is illegal.
The trial court failed to see that the Plaintiff has discharged the burden cast upon him by issue Nos. 1, 2, 3 and 4 by leading cogent both oral and documentary evidence as detailed herein. The trial court without even disclosing and without considering those evidence has held issue Nos.1, 2, 3 and 4 against the Plaintiff which is highly illegal. The admissions made by DW-1 to DW-4 in their cross-examination that 1st Main, Lakshminarayanapura, and 4th Cross, Nagappa Block are two different extensions and they exists even today clearly go to show that suit schedule property bearing No.37 and 37/ 1, 4th Cross, Nagappa Block, is different from property bearing No.279/2 and 279/3, 1st Main, Lakshminarayanapura. The DW-1 to DW-4 do not produce any resolution of the Corporation to show the change of numbers and change of locality. Infact such a change cannot be done without a resolution of the Corporation of the City of Bangalore, as per section 293 of the Karnataka Municipal Corporation Act. In addition to the oral evidence of DW-1 to DW-4 in their
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR crossexamination the Plaintiff produced City Survey Map Ex.P-14 voters list and endorsement of Department of City Survey and Settlement to show that the suit schedule property in 4th Cross, Nagappa Block and property in 2nd Main, Lakshminarayanapura as per refer to these documentary evidence and the legal requirement while negativing the issue No.4. Infact it has erred in clubbing the issue Nos.1 to 4 together and infact there is no separate discussion; issue No.4 which goes to the root of the matter which has rendered the judgment illegal. The trial court failed to see that these admissions of DW-1 to DW-4 in their cross- examination documentary evidence produced by the Plaintiff Ex.P-14 and others and absence of a resolution as required by section 293 of the Corporation Act clearly and emphatically dislodges (to use the word of trial court) the claim of the Defendants that property purchased by Manohar Das Valia itself is the property bearing No.37 and 37/1 which was changed from No.279/2 and 279/3. The trial court while coming to the illegal conclusion as stated above conveniently do not mention the respective extensions in which those properties are situated. It also does not consider how 2nd Main, Lakshminarayanapura can become 4th Cross Nagappa Block.
The trial court and infact the Defendants mainly depend on katha certificate and tax paid receipts to show the change of numbers. The trial court do not
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR consider the katha certificate in Manohar Das Valia name which mention property No.279/2 and 279/3, 1st Main, Lakshminarayanapura. DW-1 to DW-4 do not know the transactions before their purchase. So they do not know anything about the property purchased by the husband of first Defendant Manohar Das Valia. The said Manohar Das Valia has expired, so the only witness who could have substantiated the case of the Defendant to say which property was purchased by the said Manohar Das Valia is the first Defendant. She do not step into the witness box to give evidence. The Plaintiff has elicited hat the first Defendant and her children from whom Defendants No.2 to 6 purchased are in Bangalore and they are in good health. There is no explanation why they did not depose DW-1 who says in his cross-examination that he is going to examine the first Defendant has not done so. The best evidence available is withhold from the court by the Defendants. Hence, the trial court ought to have drawn the presumption that if first Defendant had been examined her evidence would have gone against the Defendants. Instead of doing so the trial court negatives all the issues No.1 to 4 which is highly illegal, opposed to law and contrary to evidence on record.
The trial court erred in relying on the documents katha certificate and tax paid receipts produced by the Defendants No.2 to 6. These documents are mere revenue entries in the Corporation records.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR These documents are all got up documents prepared after filing of the suit. The Defendants have paid tax for a particular number which has been accepted by the Corporation. That by itself do not go to show the change of numbers. More over law as per section 293 of the Karnataka Corporation Act requires a resolution by the Corporation itself to change the Municipal numbers of name of locality. A tax collector of the Corporation by mentioning the numbers in the receipt cannot change the numbers or locality. The primary evidence and the main evidence is the resolution of the Corporation to show change of numbers and change of locality. Hence, the trial court erred in concluding that the numbers and locality mentioned in Ex.P-3 was changed to the numbers and locality mentioned in the suit schedule. The trial court erred in not accepting the case of the Plaintiff that the suit property is different from the property sold in Ex.P-3 and physical possession of the said site was not given and Manohar Das Valia did not even check the title of the said site, on the ground that the Plaintiff do not contend that Ex.P-3 is a fabricated document. Plaintiff put forward the above facts in his pleadings as well as in his evidence to show that the sale deed is a nominal sale deed. In this connection the trial court failed to consider the fact that Manohar Das Valiaand first Defendant kept quict for 30 years and the first Defendant did not step into the box to give evidence.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR The trial court erred in coming to the conclusion that the Plaintiff was well aware of the rights accrued to Manohar Das Valia under Ex.P-3 in respect of a definite property and Plaintiff has failed to establish the existence of that property viz. 279/2 and 279/3 of Lakshminarayanapura (as stated in para 55 and 56 of the judgment). The trial court failed to see that the natural behavior of a person who has taken a loan is to try to return the loan execution of re- conveyance is secondary thing, that is why Plaintiff approached the first Defendant and her children offering to repay the loan. This part evidence of the Plaintiff is not challenged and first Defendant never entered into the witness box to contradict the same. In these circumstances the trial court ought to have accepted the Plaintiff's case rather casting aspiration on him without any basis. The trial court even once do not consider the behavior of the first Defendant not entering the witness box to give evidence, This shows the bias attitude in which the trial court has considered the whole evidence on record. The trial court again erred in finding fault with the Plaintiff that he has not established the existence of site No.279/2 and 279/3. Infact as stated supra the trial court failed to see that there is no issue casting the burden on the Plaintiff. Infact he has produced evidence both oral and documentary to show that the suit schedule property is different from property mentioned in Ex.P-3 as a specific issue was there. If there had been an issue on that respect the Plaintiff
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR would have lead evidence in that regard. Even otherwise he has produced City Survey Map, voters list to show that Lakshminarayanapura exist even today. He has also stated in his cross-examination that his brother Doddanna also sold the sites bearing No.279/2 and 279/3. Again the trial court erred in rejecting this piece of evidence on the ground that Plaintiff has failed to prove that his brother Doddanna sold the sites No.279/2 and 279/3. In the first place there was no issue, and secondly Defendant did not challenge this evidence of the Plaintiff. There is not even a suggestion to the effect that Plaintiff is telling false hood, when he says his brother sold the sites No.279/2 and 279/3. Hence, the Plaintiff did not produce any other evidence. Hence, the conclusion of the trial court is illegal. The conclusion as well as reasoning of the court to say that Ex.P.3 is not a nominal sale deed (at page 56 and 57 of the judgment) is wholly wrong and illegal. The trial court comes to the above conclusion on the ground that the Plaintiff has subsequently admitted that Defendants are in possession of the suit schedule property as the purchasers of the first Defendant and they have put up construction after obtaining the sanctioned plan, which is factually incorrect and illegal. In the first place the trial court assumes that the suit schedule property is the property mentioned in Ex.P-3. Infact its reasoning is riddled with confusion. The Plaintiff never admitted that Defendants are in possession of the suit
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR schedule property from the year 1964. The Plaintiff's case is that the Defendants forcibly tried to put up construction. He has produced photographs Ex.P-14 to P.16 to show the attempt by Defendants to put up construction. Those photographs have not been disputed or challenged in the cross examination of PW-1. Moreover, the Defendants No.2 to 6 have admitted that they did not obtain the sanction of plan. On the contrary they have admitted that even after construction the katha and electricity connection in the name of first Defendant. The Defendants have not explained this fact at all. Their own documents produced in the case prove. these facts. The trial court do not take these evidence into consideration at all. Hence, the conclusion of the trial court is highly illegal and unsustainable. The conclusion. of the trial court that the Plaintiff has failed to establish the WILL executed by his mother and brother as required under section 68 of the Evidence Act read with section 63 of the Indian Succession Act, is highly illegal and biased. It does not say how the WILL is not established. The section 68 and 63 of Evidence Act and Succession Act, requires that least one attesting witness has to be examined to prove the WILL. Plaintiff has examined two attesting witnesses of the WILL of his mother PW-2 and PW-4. Their evidence is not shaken in the cross-examination. The only ground of which the trial court says that WILL is not proved in that Ex.P-2 will mentions a document referring to Ex.P-3 has been
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR cancelled; but no such documents is produced to believe the genuineness of Ex.P-2. This is factually wrong as well as illegal. There is no such mention of any document in Ex.P-2. From where the trial court gets this information beats all imagination. Further assuming but not conceding that there is such a document mentioned in Ex.P-2, it is not legal requirement that document should be produced to prove a WILL. The law requires that Plaintiff should examine at least one attesting witness which has been done. Hence, the conclusion of the trial court is wholly illegal.
The trial court again erred in assuming that there is no whisper from either Plaintiff or PW-2 (wrongly mentioned for PW-3) as to the circumstances of executing the WILL in favour of Plaintiff excluding his legal heirs. PW-2 who is the son of Somashekar has clearly stated in his evidence that his father has told him that he has given the portion of suit schedule property as there was dispute regarding the same. PW-1 also deposes that his mother and brother gave portions of suit schedule property as he was looking after the affairs of the whole family. These evidence of PW-1 and PW-3 have not been challenged at 'all in the cross-examination. More over PW-3 would not have given evidence against his own interest. For all these reasons the conclusion of the trial court is highly illegal.
The trial court erred in holding that the Plaintiff has failed to prove his possession much less lawful
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR possession over the property on the date of the suit. To come to the above conclusion the trial reliefs on Ex.D-1 to D-75 most of which came into existence after filing of the suit. Many of them clearly showed that they are got up documents for the purpose of the suit. The trial court without discussing the import of the said document simply comes to the conclusion that the Defendants are in possession of the property. The trial court fails to take into consideration the amendment of plaint, production of photos Ex.P-14 to P-16 and failed to take into consideration that the Plaintiff has sought for declaration of title and possession after amending the relief column by paying additional court fee. This is another instance which go to show that the trial court has not read the amended plaint at all. For all these reasons the conclusion of the trial court is illegal and 'liable to be set aside.
The trial court erred in coming to the conclusion that unless and until the Plaintiff proves that Ex.P-3 is a nominal sale deed Ex.P-1 and Ex.P-2 gains no recognition in the eye of law and hence the genuineness of these documentary evidence need not be discussed. By this the trial court has presumed that the property involved in Ex.P-1, P-2 and P-3 are one and the same. This is contrary to evidence on record. More over the trial court failed to see that pertaining to these documents separate issues have been framed. By clubbing all these issues No.1 to 4, the trial court has committed the
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR fundamental mistakes due to which there is miscarriage of justice. The trial court ought to have discussed the pleading and evidence with regard to the relief of declaration of title and possession and if the Plaintiff has proved his title it ought to have answered that issue in favour of the Plaintiff. It is clear by its own statement above that the trial court has not considered the pleading and documentary evidence with regard to the title of the Plaintiff to the suit schedule property visa-vis fourth issue which regarding title of the Plaintiff to the suit schedule property, it has answered the issue No.4 in the negative (at page 59 and 66 of the judgment). This is highly illegal and liable to be set aside. The trial court erred in coming to the conclusion that the Plaintiff has failed to prove Ex.P-3 is a nominal sale deed. Infact the evidence of the Plaintiff has not been shaken at all. The first Defendant failed to, give any evidence in this regard. Defendants No.2 to 6 admittedly have no knowledge of these transaction. Hence, the trial court ought to have held that the Ex.P-3 is a nominal sale deed.
The trial court failed to appreciate that nominal nature of Ex.P.3 sale deed and the properties mentioned in Ex.P-3 and suit schedule properties are not one and the same are two different and independent aspect of the Plaintiff case. Though it admits the two aspects of the case has been stated by the Plaintiff (at page 56 of the judgment) and even though there are separate issue involving the
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR two aspects of the case. The trial court clubs everything discusses the evidence on record in a confuse and vague manner and comes to the wrong and illegal conclusion.
The trial court erred in coming to the conclusion that Manohar Das Valia and first Defendant are not parties to the document Ex.P-1 partition deed and Ex.P 42 WILL and hence it does not affect their interest under Ex.P.-3 nominal sale deed and hence the Plaintiff becoming absolute owner of the suit schedule property under Ex.P.1 and P-2 is of no significance. This is highly illegal. The trial court erred in coming to the conclusion that the pleading, evidence and arguments of Plaintiff with regard to the transaction under Ex.P-3 (at page 60 of the judgment) appears to be self-serving contention of the Plaintiff having no substance in it. This is contrary to evidence on record and liable to be set aside.
The trial court again discusses separate and independent issues in a confused way and vaguely (at page 60 of the judgment). In the beginning of paragraph 72 at page 60 it stats with evidence of PW-3. Suddenly it goes to paragraph 13 and 14 of the written argument of Plaintiff and possession. It takes out single sentence, out of context and says that it shows the absence of possession of Plaintiff on the date of argument and as well as on the date suit. The Plaintiff has produced the photos Ex.P-14 to P- 16 to show his dispossess and starting of
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR construction by the Defendants No.2 to 4. The trial court has failed to consider these documentary evidence without considering the pleading as in the amended plaint and evidence it has vaguely stated that there is no convincing material on record to believe the allegation of his dispossession from the suit schedule property after the suit. Infact the first Defendant never entered the witness box to say that she was in possession continuously from 1963 after the purchase. The specific issue in this regard framed initially on 17/07/1993 was illegally left out while re- casting the issues on 05/02/2000. The other Defendants do not know anything about this aspect. In face of these evidence as well as absence of evidence the conclusion of the trial court is illegal. The trial court erred in holding that the admission of DW-4 about existence of Lakshminarayanapura, 1Ist Main Road, itself is not sufficient to hold that the suit schedule property is not the property that was sold under Ex.P-3. The trial court seems to forget that it is handling a civil suit and not a criminal case; when it talks of Plaintiff is bound to establish the positive action which positive act it does not say and again "-
- it is he who has to prove the said circumstances with all possible available credible and cogent material instead of lurking here and there and getting a stray sentence in the evidence of DW-3 and 4 ---" (at page 61 and 62 of the judgment. Infect it is not a stray sentence in the evidence of DW-1 and DW-4; but whole of cross examination clearly goes to
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR prove the Plaintiff's case. Infact. DW-2 contradicts his own chief examination and DW-3 say that he has not filed any written statement at all in the case. The remark of the trial court is most uncharitable to the say the least. Infact it is most uncharitable became it purposefully do not consider the documentary evidence produced by the Plaintiff The City Survey Map, City Survey P.T. sheet, voters list, endorsement issued by the City Survey Department Ex.P-13 to P- 16 have not been even referred to by the trial court and it talks of "lurking here and there". The trial court forgets to consider the amended plaint and the reliefs prayed for and the and yet talks of possible, available, credible and cogent material first Defendant has not cared to enter the witness box to give evidence The trial court fails to consider that any change in door number and Corporation and the Plaintiff evidence that there is no such resolution change in name of locality has to be done by a resolution of the which is not challenged. The Defendants do not produce any resolution of the Corporation and the trial court says that the Plaintiff has not produced any positive evidence. The observation of the trial court that the Plaintiff has not been successful in getting even a single admission rom any of DWs. 1 to 4 in their cross-examination that the property bearing No.37 and 37/1 is not the property bearing No.279/2 and 279/3 shows lack of proper appreciation of the cross-examination by the trial court. Does the trial court expect Defendants
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR admit straight away that the two properties are different. In a civil case the conclusion has to be arrived at after proper appreciation of all the evidence on record and. after considering the circumstantial evidence and probabilities of the case. The trial court has singularly failed in this endeavour. Let alone circumstantial evidence and probabilities of the case it has failed to consider and properly appreciate the direct evidence produced by the Plaintiff as set out supra.
The trial court erred in coming to the conclusion that Ex.P-3 is not a nominal sale deed on the ground that there is a recital about how the property is Ex.P-3 originated. The trial court has completely misunderstood the meaning of nominal sale deed. The trial court expects that in a nominal sale deed there will be no conscious involvement of parties and there will be no recital about how the vendor got the property sold etc. Infact in a nominal sale deed all the characteristics of a proper sale deed will be there but parties by an understanding will not act upon the sale deed. In this case the Plaintiff has categorically has stated that he had taken a loan and had promised to repay it and the husband of first Defendant had promised that he will not act upon the sale deed. The only person who have rebutted this evidence in the first Defendant; she does snot give any evidence and all other Defendants clearly admit that they had Dos about the transactions which took place prior to their purchase. The trial court turns a
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR blind eye towards all these evidence apart from other evidence like lapse of 30 years etc. and comes to the conclusion that the Plaintiff has failed to prove that Ex.P.3 is a nominal sale deed. The conclusion of the trial court is arbitrary and illegal. The trial court erred in coming to the conclusion that he boundaries given o he suit schedule property tallies with the boundaries given to the property in Ex.-3. For the above reasons, the conclusion of the trial court that the plaint schedule property itself is the property sold under Ex.P-3 in favour of Manohar Das Valia is wholly illegal and it is not based on any evidence.
The trial court grievously erred in taking judicial notice of changes being taken place in allotting the property numbers and katha numbers as the administrative function of the local bodies: This conclusion is highly illegal as the same is contrary to section 293 of the Karnataka Municipal Corporation Act. The trial court conveniently over looks the fact that the extension in which suit schedule land is situated in 4th Cross, Nagappa Block and the property in Ex.P-3 nominal sale deed is situated in 1st Main, Lakshminarayanapura. How can extension themselves can be changed is not explained by the Defendants and the trial court conveniently over looks it. But, the fact that the two properties are situated in two different extension cannot be away by the trial court. The trial court relies on the contention of the Plaintiff that numbers 142 being
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR changed to 37 and 37/1 to buttress its reasoning. But the trial court forgets that in the Plaintiffs case property No.142 even after becoming 37 and 37/1 is situated in 4th Cross; Nagappa Block itself, This fact is admitted by the Defendants. Whereas in the Defendants case it is complete change of extension itself from 1st Main, Lakshminarayanapura, to 4th Cross, Nagappa Block. It is admitted in evidence that the distance between the two is about 3 to 4 kms. Further Plaintiff do not admit the case of Defendants. As such the conclusion of the trial court is highly illegal and arbitrary.
The trial court erred in relying on the receipts and katha extracts to come to the conclusion that property No.279/2 and 279/3, 1st Main, Lakshminarayanapura is changed to 37 and 37/1 of 4th Cross, Nagappa Block. In fact Ex.D-3 to Ex.D-24 do not consistently speak suit property was earlier bearing No.279/2 and 279/3. Most of the documents are created by the Defendants after filing of the suit for the purpose of suit. Infact this is clear from those documents itself. More over the receipt will be issued as per the payment made by the Defendants; receipts cannot be the basis for tile or identity of the property.
The trial court erred in coming to the conclusion that the Plaintiff has failed to prove that Defendants No.2 to 6 have trespassed on the suit property (as at page 66 of judgment). It has failed to take into consideration evidence on record as well as
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR admission made by the Defendants No.2 to 6 themselves. Defendant No. 1 do not enter the box to give evidence. There is no evidence that she was in physical possession of the suit schedule property after 1963 when Ex.P-3 was executed without any evidence in this regard, how can the trial court come to the conclusion that Defendants No.2 to 6 were in possession of the suit schedule property is beyond imagination especially as Defendants No.3 to 6 are subsequent purchasers during the pendency of the suit. The trial court has failed to consider the photos produced by the Ex.P-14 to P-16 which was produced immediately after filing of the suit. The trial court erred in answering fourth issue in the negative without separate consideration of pleadings and evidence on that issue. It has erred grievously in clubbing the issues No.1 to 4 resulting in miscarriage of justice.
The trial court erred in coming to the conclusion that the suit is barred by limitation. The trial court erred in stating that the and Article 59 of the Limitation Act, appears only "as a logical but not explanation given by the Plaintiff that the case is governed by Act. 65 the Plaintiff had came to know in the year 1982 itself that the a practical one". The trial court erred in coming to the conclusion that the Plaintiff had came to know in the year 1982 itself that the first Defendant and her children had refused to re- convey the property. There is no evidence at all to come to this conclusion Defendant No. 1 does not
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR give any evidence. There is no evidence; Defendant No.1 or Manohar Das Valia was in possession of the suit schedule property from 22/02/1963 the date of Ex.P.3. In the absence of pleadings by le Defendant except for a bald statement the trial court has assumed every thing and has come to the conclusion that the suit is barred by limitation. After amendment the suit is one for declaration of title and possession. Hence, it is governed by Article 65 and not Article 58 of the Limitation Act. Hence, the limitation begins to run from the date when possession of the Defendants becomes adverse to the Plaintiff. The Defendants have not pleaded and produced evidence to show their possession became adverse to the Plaintiff. The other relief In cancelation of sale deed is governed by Article 59 of the Limitation Act Hence, the conclusion of the trial court is illegal and liable to be set aside. The trial court erred in not considering and giving its finding on the issue of payment of mesne profits claimed by the Plaintiff, The Plaintiff has pleaded the same in his plaint. He has given evidence and Defendants have cross-examined the Plaintiff on this aspect. But the trial court is silent in this regard which is illegal.
The trial court has committed many factual errors during the course of its judgment which have material bearings on the conclusion arrived at by the trial court. Hence, the judgment is illegal and liable to be set aside.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR The Plaintiff had originally valued the plaint reliefs at Rs.5000/- as the relief contain in the plaint, for cancellation of nominal sale deed subsequently the plaint was amended and reliefs of declaration of title and possession was added. Hence, a fresh valuation slip was filed valuing the plaint relief at Rs.1,97,000/- and court fee of Rs.13475/- was paid on the plaint. The Plaintiff / appellant is paying the same court fee of Rs.13475/- on this memorandum of appeal as per section 43 of the Karnataka Court Fees and Suit Valuation Act."
21. Learned counsel for the appellant, Sri Hemanth Kumar G.M., reiterating the grounds urged in the appeal memorandum, vehemently contended that learned trial Judge failed to note the probative value of the documents that is placed on record on behalf of the plaintiff and also failed to appreciate the oral testimony of the plaintiff and his witnesses in appreciating the case of the plaintiff, resulting in miscarriage of justice and sought for allowing the appeal.
22. On behalf of the respondents none present.
23. In the light of the arguments put forth on behalf of the plaintiff, this Court perused the material on record meticulously.
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24. Following points would arise from the material on record and the arguments that is put forth on behalf of the plaintiff/appellant:
(i) Whether the plaintiff is successful in establishing that the sale deed executed by him vide Ex.P3 in favour of the husband of the defendant is a nominal sale deed and the same was a security document for the loan amount of Rs.5,000/-
barrowed by the plaintiff?
(ii) Whether the plaintiff further establish that defendant Nos.2 to 5 have trespassed into the suit property and illegally carried out the construction during the pendency of the suit?
(iii) Whether the plaintiff would establish that he being the absolute owner of the suit property and was in actual possession of the suit property and thus, dismissal of the suit has resulted in miscarriage of justice?
(iv) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
(v) What order?
25. Regarding Point Nos.1 to 4: Since these
points are interconnected with each other, same are taken together for common discussion.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR
26. In the case on hand, evidence of P.W.1 is nothing but reiteration of the plaint averments.
27. P.W.1 further stated that the suit property has fallen to the share by virtue of the partition among his father, brothers and mother. Plaintiff also deposed that mother and one of the brothers having expired, the entire property belonged to him and he had borrowed sum of Rs.5,000/- from the husband of the defendant in the year 1963 and as a security document he had executed Ex.P3 sale deed.
28. In his cross examination, he admits that the sale deed was executed by himself, his mother and brother.
29. Anjanappa is another brother of P.W.1 who is no more and he has answered that Anjanappa might have also signed the sale deed executed in favour of the husband of the defendant No.1.
30. He further admits that Nagesha, Seena, Meenakshi, Pramila are the legal heirs of Anjanappa and wife of Anjanappa is also alive. He has answered that his mother died in the year 1979 and Anjanappa predeceased his mother. He has specifically answered that property bequeathed by his mother is
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR adjacent to his house and towards the east which measures 60 feet x 65 feet.
31. He also admits that Will executed by Somashekara was in the custody of the son of Somashekara.
32. In his further cross examination he also admits that as per Ex.P1, there is no partition at all. He admits that suit site bearing Nos.37 and 37/1 are different from the site bearing No.279/2 and 279/3. He admits that suit property from the beginning bears the number as 37 and 37/1.
33. He further admits that in the division of the properties, property bearing No.279/2 and 279/3 of Lakshminarayanpura are not included. He also admitted that as on the date of sale, to establish that the suit site was valued more than Rs.20,000/- there is no document.
34. P.W.2 is a witness examined on behalf of the plaintiff and he has stated that Chowdamma executed a Will and he is an attesting witness.
35. In his cross-examination he admits that he has studied upto VI Standard and except signing in English, he does not know how to read and write English. He also admits that he
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR is not aware of Venteshappa. He further admits that Cheluavaiah and Venteshappa have also signed the Will.
36. Narayanappa is examined as P.W.3, who has stated that plaintiff is his grand uncle and he has further stated that plaintiff inherited the suit property. He has further deposed that 12th portion of his father had been given to his grand uncle Narayanappa through a Will.
37. In his cross examination, he admits that plaintiff had no transaction with defendant No.1's husband.
38. He has stated that there is an injustice caused to the plaintiff. He further admits that he is not aware of the property bearing Nos.279/2 and 279/3 of Lakshminanpura and Srirampuram.
39. As against the evidence of the plaintiff, defendant No.6 is examined as D.W.1 who is the purchaser of the suit property.
40. C.Mani is the second defendant who is also purchaser of one of the items of the suit properties is examined as D.W.2.
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR
41. M. Rajendra is examined as D.W.3 who has stated that he is the owner of the property bearing number 37/16, 4thcross, Nagappa block, Srirampuram, Bengaluru which is one of the items of the suit property.
42. Yethiraj is examined as D.W.4 who is defendant No.4 and purchaser of yet another item of the suit property.
43. Evidence of the defendants and the cross examination of D.W.1 to D.W.4 did not advance the case of the plaintiff in establishing the fact that the sale deed marked at Ex.P3 is a nominal sale deed.
44. Likewise, except the oral testimony of P.W.1, there is no material on record to show that he had actually borrowed sum of Rs.5,000/- from the husband of defendant No.1 and he executed Ex.P3 as a nominal sale deed and security document for the said hand loan.
45. It is pertinent to note that it is not only the plaintiff who is a signatory to Ex.P3, but also his mother and two other brothers were signatories to Ex.P3.
46. What made the mother of the plaintiff and two brothers of the plaintiff to keep quiet till the death of the
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR husband of defendant No.1 in not challenging the validity of Ex.P3 is a question that remains unanswered.
47. Further, since one of the brothers namely Anjanappa had also share in the suit property as per plaint documents. He has joined the sale transaction along with the plaintiff and mother of the plaintiff and yet another brother of the plaintiff and non-impleading the legal representatives of Anjanappa as party to the suit is not explained by the plaintiff.
48. Further, even after the amendment to the plaint, there is no proper pleading as to what made the plaintiff to wait from 1963 to 1990 to challenge the validity of Ex.P3.
49. Further, In the examination in chief also, there is no proper explanation by the plaintiff as to what made him to keep it from 1963 to 1990, especially when defendant has specifically pleaded that suit is barred by limitation.
50. Admittedly, when there is a sale deed, the contents of the sale deed makes it clear that the property was sold absolutely to the husband of defendant No.1 and only after the death of the husband of defendant No.1, the suit came to be filed shows that somehow the plaintiff wanted to avoid a sale
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NC: 2025:KHC:44168 RFA No. 904 of 2006 HC-KAR deed which is properly executed by him in favour of the husband of the defendant No.1.
51. Further, there were several transactions after the husband of defendant No.1 purchased the suit property and they are all registered documents.
52. When once there is a registered document and construction of the buildings has taken place in the suit property, the claim of the plaintiff that he continued in the possession of the suit property even after examination of Ex.P3 cannot be countenanced in law.
53. None of the witnesses examined on behalf of the plaintiff nor any other material evidence is placed on record to establish continuous possession over the suit property even after execution of Ex.P3 by the plaintiff and other executants of Ex.P.3.
54. These aspects of the matter when viewed cumulatively, when the plaintiff is seeking a declaration that Ex.P3 is a nominal sale deed and thus, he is the owner of the suit property cannot be countenanced in law.
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55. Taking note of these aspects of the matter, irrespective of the minor admissions given by D.W.1 to D.W.4 in the cross examination, did not improve the case of the plaintiff to any extent, much less in declaring that he continues to be the owner of the suit property.
56. Further, there are sub numbers given to the suit property and two other properties are also involved which are not subject matter of the partition deed.
57. Plaintiff including those properties also by way of an amendment to the plaint, is not only resulted in claiming the property for which the plaintiff has no right, title or interest, but can be termed as an unjust harassment to the defendants.
58. Under such circumstances, when the plaintiff has failed to prove the title over the suit property and not able to place any material on record which would be sufficient enough to hold that Ex.P3 is a nominal sale deed, this Court is of the considered opinion that dismissal of the suit by the trial Court in the impugned judgment is just and proper which requires no interference even after re-appreciation of the material facts and the position of law.
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59. Accordingly, point Nos.1 to 3 are answered in the Negative and point No.4 is answered in the affirmative.
60. Regarding point No.5: In view of the finding of this Court on point Nos.1 to 4, following order is passed ORDER
(i) Regular First Appeal is meritless and hereby dismissed.
(ii) No order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
MR