Karnataka High Court
Smt Kanyakumari vs Panpanna S/O Rachappa Urali on 20 September, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO. 5071/2013 (DEC & PI)
BETWEEN:
SMT. KANYAKUMARI
W/O. UMESH BHOOMARADDI
AGE : 52 YEARS
OCC : HOUSEHOLD WORK,
R/O GANESH COLONY, GADAG
GADAG DISTRICT-582101.
... APPELLANT
(BY SRI LAXMAN T MANTAGANI, ADVOCATE)
AND :
1. PAMPANNA S/O RACHAPPA URALI
AGE : 64 YEARS : OCC : AGRICULTURE
& SERVICE AT GADAG AND
ADVANI NOW RESIDING AT ADVANI
TQ. ADHONI, DIST. KARNOOL,
STATE ANDRAPRADESH-518301.
2. SMT.SUMANABAI
W/O CHANDRAKANT RAIKAR
AGE : MAJOR
OCC : HOUSE HOLD WORK
R/O : GADAG
GADAG DISTRICT-582101.
... RESPONDENTS
(BY SRI GODE NAGARAJ, ADVOCATE)
THIS APPEAL IS FILED U/SEC. 100 OF C.P.C. AGAINST
THE JUDGMENT AND DECREE DATED 18.10.2012 PASSED IN
R.A. NO.33/2012 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN.) & CJM, GADAG, ALLOWING THE APPEAL, FILED
AGAINST THE JUDGMENT DATED 21.04.2012 AND THE
DECREE PASSED IN O.S. NO.14/2008 ON THE FILE OF THE
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PRL. CIVIL JUDGE, GADAG, DISMISSING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.06.2017, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING : -
JUDGMENT
In the original suit No.14/2008 on the file of Prl. Civil Judge, Gadag, respondent No.1 of this appeal was the plaintiff, respondent No.2 was defendant No.1 and the appellant was defendant No.2.
2. The substance of the pleadings is as follows :
In respect of a residential plot bearing No.5 carved out in Sy. No.225 of Gadag, (hereinafter referred to as 'suit property') the plaintiff brought a suit seeking declaration that the sale deed dated 19.11.2002 executed by defendant No.1 in favour of defendant No.2 was illegal, void and not binding on him and his successors, and for consequential relief of permanent injunction retraining the defendants from causing obstruction to his possession. Alternatively, plaintiff :3: also sought for relief of possession in case the Court would come to conclusion that he was not in possession.
3. It is the plaintiff's case that on 21.11.1977, he purchased the suit property from defendant No.1 through a registered sale deed for consideration of Rs.2,500/-. Defendant No.1 handed over the possession of suit property to him and on the basis of the sale deed the plaintiff got his name mutated in the revenue records. Thus, he became the absolute owner being in possession of suit property. Plaintiff alleged that defendant No.1 colluded with the revenue authorities and got her name entered in the revenue records and subsequently she sold the suit property to defendant No.2 on 19.11.2002. Thus, defendants No.1 and 2 created a false sale deed by practising fraud on him and also the public office. Since the suit property had been sold to plaintiff on 21.11.1977, defendant No.1 had no saleable interest on 19.11.2002.
Corrected vide Court order dated 20.09.2017 Sd/-
SHKJ :4: Defendant No.2 did not acquire any kind of right or title over the suit property. But, defendants started interfering with his peaceful possession and enjoyment of suit property, and therefore, these circumstances compelled him to institute the suit.
4. Defendant No.1 filed written statement denying to have executed a sale deed in favour of plaintiff on 21.11.1977. Her specific contention is that her husband was a goldsmith. Her husband had a flourishing business for some year till 1973, and thereafter, there was a gradual decrease in the business as number of goldsmithy shops came into existence. He had purchased agricultural land in Sy. No.225 in her name in the year 1970. Seeing the decreasing trend in business, her husband decided to get the land that he had purchased, converted for non-agricultural purpose. After getting conversion, he formed plots there and started selling the plots which stood in her name. The plaintiff came in contact with her husband in :5: connection with business transactions. When the financial position of her husband grew worse, he had to face lot of hardship and at that time he requested the plaintiff for monetary help. Thus, the plaintiff lent an amount of Rs.2,500/- to her husband. In connection with transaction, the plaintiff insisted on her husband to execute a document for security purpose, preferably a sale deed, and thus, there was no option but to execute a sale deed in favour of plaintiff on 21.11.1977. Defendant No.1, therefore, contends that the plaintiff did not acquire any kind of right and title of whatsoever nature in respect of suit property and that the possession of suit property was also not given to him. The sale deed was not acted upon. The plaintiff kept quiet for 30 years since its execution. He did not make any efforts to get his name entered in the revenue records and this shows that the sale deed was a nominal document. The Nil Encumbrance Certificate issued by Sub-Registrar Office shows that she did not execute sale deed in favour of the plaintiff. :6:
5. Defendant No.2 filed written statement denying all the plaint averments and contending very specifically that she is in possession of suit property having purchased the same from defendant No.1. Before purchasing suit property, she took out a public notice in a local Newspaper, 'Nagarika Kannada', inviting objections, if any, from anybody else for her purchase of suit property. Defendant No.1 sold the property to her to meet the requirement of her family necessity. The suit property is not at all described properly and it is not identifiable. She states that she is in possession of suit property by virtue of the sale deed executed in her favour by defendant No.1 and that she got a borewell dug there also. If at all plaintiff has any grievance, he has to claim compensation from defendant No.1.
6. The trial Court, after evaluation of evidence, dismissed the suit by its judgment dated 21.04.2012. Aggrieved by this judgment, plaintiff preferred an appeal, R.A. No.33/2012 to the Court of Prl. Senior Civil :7: Judge, Gadag, where the appeal was allowed, the judgment of the trial Court set aside and the suit decreed in favour of the plaintiff. Defendant No.2 was directed to deliver the possession of suit property within two months from the date of suit. Aggrieved by this judgment of the First Appellate Court, defendant No.2 is before this Court in second appeal.
7. This appeal was admitted on 19.02.2014 on the following substantial questions of law :
i) Whether the lower appellate Court has
committed a serious error in ignoring the
important aspect of limitation, more
particularly the suit of the plaintiff being filed 12 years after the alleged execution of the sale deed in his favour by defendant No.1?
ii) Whether the first appellate Court has committed a serious error in coming to the conclusion that the sale deed in question has been acted upon to be the source of title for the plaintiff, more particularly when the trial Court has held that the sale deed never been acted upon?
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iii) Whether the first appellate Court has committed a serious error in ignoring the material evidence placed on record and thus the judgment of the lower appellate Court is perverse?
8. Before answering these questions, it is necessary to refer to here how the trial Court and the First Appellate Court have dealt with the controversy. The first issue raised by the trial Court is with regard to the proof to be provided by the plaintiff for establishing his title over the suit property and the second issue relates to the specific defence taken by defendant No.1 that the document executed by her on 21.11.1977 was towards security for the loan availed by her.
9. If the entire reasonings given by the trial Court on these issues are perused, it can be said that the trial Court came to the conclusion that the sale deed dated 21.11.1977, Ex.P-7 was executed by defendant No.1 as a security document for the loan obtained by her from the plaintiff. To arrive at this conclusion, the trial Court has assigned the reasons that the plaintiff, who adduced evidence as P.W.1 admitted the possession of defendant No.2 over the suit :9: property and also that defendant No.1's husband sold the plots one after another owing to his poverty. It has also been held by the trial Court that if really the plaintiff had purchased the suit property, he would have taken possession of the same by getting the revenue records transferred to his name. The document that he has produced doesn't reveal as to in which year his name was entered there. Ex.P-1 shows that the plaintiff obtained document in the year 2007 and that Ex.P-2 shows the name of defendant No.2. Since the plaintiff's possession is not forthcoming, the trial Court came to the conclusion that the sale deed executed by defendant No.1 was just nominal and not acted upon, it was executed only for security purpose.
10. The First Appellate Court re-appraised the evidence to take a contrary view. Although the First Appellate Court has also held that the plaintiff was not in possession of the suit property on the date of suit, the sale deed dated 21.11.1977 was an absolute sale deed and that the plaintiff did take action to get his name entered in the revenue records soon after obtaining the sale deed. Ex.P-1 is the RTC Extract, which contains the name of plaintiff. : 10 : Ex.P-5 is the Mutation Register Extract which shows that the name of plaintiff was entered in the Mutation Register in Entry No.14200 on the basis of the sale deed and this entry was certified on 13.11.1978. This is an undisputed document. It has also held with regard to Ex.P-6 that the Mutation Entry was certified on 14.08.2000 in the name of defendant No.2. So from 13.11.1978 till 14.08.2000, the mutation was in the name of plaintiff. Exs.P-1 and P-5 are genuine documents. On the basis of these entries, the First Appellate Court has drawn an inference that the defendant No.1 sold the suit property to plaintiff and that the latter acquired absolute rights over suit property on 21.11.1977 itself. The trial Court has also discussed the evidence as to how defendant No.1 could again sell the suit property to defendant No.2. The reasons given are that there took place an agitation for formation of separate Gadag district. In the riots that took place at that time, many Government Offices were set afire and at that time the records in the offices were burnt. The defendant No.1 took undue advantage of that situation to get her name entered in the revenue records again and thus sold the suit property to defendant No.2. It is clearly observed by the First Appellate Court that the trial : 11 : Court has not considered this material evidence. Then defendant No.1 who took up a specific plea that sale deed was nominal should have proved it. She did not enter the witness box at all, rather she got examined her son as D.W.1 by executing power of attorney in his favour. At the time when these transactions took place, D.W.1 was a minor and did not have personal knowledge about these transactions. The answers given by him in the cross-examination make it very clear that he had no knowledge, and therefore, his evidence could not be relied upon. Thus, the First Appellate Court came to the conclusion that defendant No.1 having sold the property to the plaintiff on 21.11.1977, did not have right and interest to execute another sale deed again in the year 2000 in favour of defendant No.2.
11. Now in the background of the findings given by both the Courts below, substantial questions of law No.2 and 3 can be answered first. The counsel for the appellant has argued that defendant No.2 verified the documents and made enquiry before purchasing the suit property. Ex.D-2 clearly shows Nil Encumbrance. Even she had taken publication in the Newspaper. The revenue records also did : 12 : not disclose the name of plaintiff. Therefore, defendant No.2 is the absolute owner of suit property on the strength of sale deed executed in her favour by defendant No.1. There is a clear finding of the trial Court and the First Appellate Court that defendant No.2 is in possession of suit property. This shows that the sale deed dated 21.11.1977 was not acted upon and that it was only a nominal sale deed. The trial Court appreciated the evidence properly to dismiss the suit. On the other hand, the First Appellate Court reversed the findings of the trial Court by adopting a wrong approach. For this reason, the judgment of the trial Court needs to be restored by reversing the judgment of the First Appellate Court.
12. The counsel for the respondent - plaintiff argued that it is the First Appellate Court which has appreciated the evidence properly. The trial Court's finding that the plaintiff is not in possession, and therefore, the sale deed dated 21.11.1977 was not acted upon, does not stand to any reason. The trial Court has lost sight of two important documents Exs.P-5 and P-17. It was an absolute sale deed. The plaintiff got his name mutated on the basis of the sale : 13 : deed dated 21.11.1977, as evidenced by Ex.P-5. Ex.P-17 shows very clearly the circumstances under which defendant No.1 was able to get her name once again entered in the revenue records. Ex.P-17 is the certified copy of compromise petition in a suit filed by one Siddalingappa against defendant No.1 and one Basavaraj. Taking undue advantage of the fact that the records in the Government Offices were destroyed during the riots that took place in connection with formation of separate Gadag district, defendant No.1 got her name re-entered. This is clearly revealed in Ex.P-17. It is not only in respect of the suit property, but also in respect of other plots of same Survey number that defendant No.1 executed sale deeds second time knowing very well that she had no right to execute the sale deeds. The trial Court has not at all appreciated this part of evidence. In fact, the First Appellate Court has properly appreciated the evidence. Therefore, there is no need to disturb the well reasoned judgment of the First Appellate Court.
13. On perusing the entire judgments of both the Courts below, I am of the clear opinion that the First Appellate Court has appreciated the evidence threadbare by : 14 : applying the mind independently. It has also pointed out the errors committed by the trial Court while appreciating the evidence. The evidence on record clearly discloses that defendant No.1 made use of an opportunity of re- construction of documents in the Government Offices when the records maintained there were destroyed in the agitations that took place in connection with formation of Gadag district. Ex.P-17 gives a good account of how first defendant's name came to be re-entered in the revenue records. If the cross-examination of P.W.1 is perused, it becomes very clear that some positive suggestions have been given by the counsel for the defendants that defendant No.1 got her name entered in the revenue records once again after the Government gave a public announcement that the personal records in the Government Offices could be re- constructed by producing the documents available with them. Thus, it becomes very clear now as to how defendant No.1 was able to get her name entered once again in the revenue records. Having got her name re-entered, she executed the sale deeds even though she did not have any saleable interest which she had already lost by executing the sale deeds in favour of purchasers like the plaintiff. Virtually : 15 : defendant No.1 has played fraud. The trial Court has lost sight of the material evidence available in this regard. Therefore, I come to the conclusion that judgment of the First Appellate Court does not suffer from illegality. Just because plaintiff is not in possession of suit property, it does not mean that he lost his title and ownership interest. Defendant No.1 who took up a specific plea that the sale deed was nominal and not acted upon has failed to prove that aspect. Therefore, the sale deed dated 21.11.1977 is a good source of title to the plaintiff. This discussion answers questions No.2 and 3.
14. As regard question No.1, the argument of the appellants counsel is that the plaintiff should have filed suit within 12 years from 21.11.1977. The suit having been filed in the year 2008 was barred by time. The learned counsel for the respondent argued that the period of limitation cannot be reckoned from 21.11.1977. He argued that Ex.P-5 discloses that the plaintiff got his name mutated in the year 1978 on the basis of the sale deed, and therefore, it can be said that plaintiff was in possession till defendant No.1 executed the sale deed in favour of defendant No.2 on : 16 : 09.06.2000. If at all the plaintiff lost possession, it was only after 09.06.2000 and not before. Therefore, this suit was brought within 12 years.
15. The trial Court has given a finding that the suit should have been filed within 12 years from 21.11.1977. First Appellate Court has not accepted this finding and opined that suit is within time as the plaintiff lost his possession only after 09.06.2000. Again it has to be said that the finding of the trial Court is erroneous. The sale deed in favour of the plaintiff clearly discloses possession of the suit property having been handed over to him. In the year 1978 itself, he got his name entered in the revenue records as evidenced by Ex.P-1 and P-5. In fact, in the Encumbrance Certificate marked as Ex.P-9, there are two entries - one in relation to sale deed dated 21.11.1977 and the other in relation to sale deed dated 09.06.2000. If at all the plaintiff lost his possession, it should be only after 09.06.2000 and not before. It is not the case of defendant No.1 that she was in possession of the suit property even after execution of sale deed on 21.11.1977, nor has she produced any evidence in proof of her being in possession : 17 : before she executed sale deed in favour of defendant No.2. Therefore, the finding of First Appellate Court deserves to be upheld.
16. Even otherwise, it is not the case of defendants No.1 and 2 that they have been in possession of suit property adverse and hostile to the interest of the plaintiff. If Article 65 of the Limitation Act is to be applied, the suit has to be filed within 12 years from the day when possession of defendant becomes adverse to the plaintiff. In this case, defendants have not pleaded adverse possession. The defendant No.2 sets up independent title on the basis of the sale deed in her favour. Therefore, if adverse possession is not pleaded and proved, 12 years period of limitation is not at all applicable and the plaintiff who has lost possession can obtain his possession at any time based on title. If Article 64 of the Limitation Act emerges into picture, again the limitation period is 12 years and it is applicable in a case where the plaintiff sues to take back possession based on previous possession. So in this case the plaintiff was in possession till 09.06.2000. It does not mean that he lost his possession just because he was working elsewhere. The suit : 18 : filed based on previous possession in the year 2008 was well within time. Therefore, it is concluded that the trial Court committed an error in law in dismissing the suit on limitation also.
17. From the above discussion, it has to be concluded now that the appeal should fail and accordingly it is dismissed with cost. The judgment of the First Appellate Court is confirmed.
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JUDGE hnm