Karnataka High Court
Smt. Thasmeer Sulthan vs Sri. C. Venkatehappa on 6 September, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1210 OF 2022 (SP)
BETWEEN:
1. SMT. THASMEER SULTHAN
W/O RIYAZ
AGED 26 YEARS,
R/AT ADDI GODI B - BLOCK,
BENGALURU-560027
2. ASIF
S/O LATE HUSSAMAN BAIG,
AGED 25 YEARS,
3. SMT. JAIBUNNISSA
D/O LATE HUSSAMAN BAIG,
AGED 56 YEARS,
APPELLANTS 2 AND 3 ARE
R/AT NO.6TH BLOCK, NEW TOWN,
BETHAMANGALA HOBLI,
K.G.F.TALUK, KOLAR DISTRICT-563116
... APPELLANTS
(BY SRI.M.B.CHANDRACHOODA, ADVOCATE)
AND
SRI. C. VENKATEHAPPA
S/O LATE CHIKKA MARAPPA
2
AGED 69 YEARS,
R/AT NO.131, JAYANAGAR
D. K. HALLI MAIN ROAD,
BEML NAGAR POST, K G F
KOLAR DISTRICT-563115
...RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.07.2022 PASSED IN RA.NO.143/2021
ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS
JUDGE, KOLAR (SITTING AT KGF). DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 16.11.2021 PASSED IN MISC.NO.29/2019 ON THE
FILE OF THE PRL. CIVIL JUDGE AND ADDL. JMFC, K.G.F.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The captioned Second Appeal is filed by the 3rd party obstructers questioning the concurrent findings of the Courts below.
2. For the sake of convenience, the parties are referred to as per their rank before the Executing Court. [[
3. The respondent in Mis.No.29/2019 namely, C.Venkateshappa filed suit in O.S.No.393/2011 seeking 3 relief of specific performance of contract against JDRs and the said suit was partly decreed granting refund of earnest money. The respondent in miscellaneous proceedings preferred an appeal in R.A.No.95/2017 and the Appellate Court has reversed the findings and granted larger relief of specific performance which was confirmed by this Court in RSA.No.1901/2018. The respondent in miscellaneous proceedings initiated execution proceedings in Ex.No.171/2018. The petitioners asserting independent right under the gift deed dated 21.11.1997, resisted the execution proceedings. It is in this background, the executing court assigned the 3rd party application as Mis.No.29/2019.
[[
4. The 3rd party obstructer examined himself as P.W.1 and adduced documentary evidence vide Exs.P.1 to P.12. [
5. While the decree holder who was arrayed as respondent in miscellaneous proceedings let in rebuttal 4 evidence as R.W.1 by producing documentary evidence vide Exs.R.1 to R.3.
6. The Trial Court having verified the title of 3rd party obstructers has recorded a categorical finding that gift deed set up by the 3rd party obstructers is a concocted document and therefore, proceeded to reject the application filed under order 21 Rule 97 r/w section 151 of CPC.
7. Feeling aggrieved by the order of the executing court in Mis.No.29/2019, the 3rd party obstructers/petitioners preferred an appeal in R.A.No.143/2021. The Appellate Court having independently assessed oral and documentary evidence has also found that the gift deed dated 06.04.1999 is a concocted document. The Appellate Court found that the original owner namely, Husman Baig executed registered sale deed in favour of the original defendant in a specific performance suit namely Rehana Begum and therefore, the Appellate Court was of the view 5 that he had no occasion to gift the very same property in favour of his three daughters on the same day dated 06.04.1999. It is in this background, the Appellate Court was also not inclined to accept the alleged gift deed set up by 3rd party applicants consequently, appeal is dismissed. These concurrent findings are under challenge.
8. Heard learned counsel appearing for the petitioners in miscellaneous proceedings. I have given my anxious consideration to the judgments rendered by both the Courts below.
9. It is not in dispute that the suit property was originally owned by one Husman Baig. From the material on record it is forthcoming that the said Husman Baig sold the property in favour of one of his daughter namely, Rehana Begum under registered sale deed dated 06.04.1999. The said Rehana Begum has offered to sell the very same property to the respondent herein under agreement dated 27.10.2009. The said agreement was 6 subject matter of suit in O.S.No.393/2011. Though the Trial Court ordered for refund, the decree was reversed by the Appellate Court in R.A.No.95/2017 and Appellate Court was pleased to grant larger relief of specific performance of contract in favour of respondent. The said judgment and decree of the Appellate Court is confirmed by this Court in RSA No.1901/2018.
10. The 3rd party applicants are resisting the decree on the ground that their father had gifted the property on 21.11.1997. A true copy is furnished by the learned counsel appearing for the appellant before this court. Both the courts have held that this document is a concocted document and the 3rd party applicants have come up with this document only to negate the decree in favour of the plaintiff. Both the Courts have concurrently held that this document is a concocted document and the same cannot be considered.
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11. I have given my anxious consideration to this document. Prima facie, on perusal, it appears to be a concocted document. This document is alleged to have been executed on 21.11.1997, however, the advocate who has drafted this document has endorsed at the last page of the document that this was prepared on 06.04.1999. If the gift was drafted on 06.04.1999, both the Courts were justified in discarding this alleged gift deed dated 21.11.1997. If original owner Husman Baig has executed sale deed in favour of one of his daughter, then the gift deed dated 21.11.1997 which is drafted and prepared by the counsel on 06.04.1999 cannot be looked into. It is alleged gift deed was drafted by Advocate on 06.07.1999, then it is quite difficult to believe that donor gifted the property on 21.11.1997. Forged documents have immense societal impact and this Court cannot ignore the implication of permitting a party to make use of fraudulent documents. Both the Courts have rightly held that it is a concocted document. The material on record clearly indicates that 3rd party obstructers have not acquired any 8 right and title based on a concocted document titled as gift deed. These concurrent findings are based on the evidence on record.
Therefore, no substantial question of law would arise for consideration. Accordingly, the regular second appeal is dismissed.
In view of dismissal of second appeal, I.A.No.1/2022 does not survive for consideration and stands disposed of.
Sd/-
JUDGE HDK