Karnataka High Court
Motiram S/O Hemji Since Dead By Lrs vs Pundalik S/O Vithal on 13 July, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
RSA No.7261/2009
BETWEEN:
1. Motiram S/o Hemji
Since dead by LRs
A) Mitadlibai W/o Motiram
Age: 63 years, Occ: Agriculture
R/o Chennur Tanda
Tq.Chincholi, Dist. Gulbarga
B) Gemu S/o Motiram
Age: 43 years, Occ: Agriculture
R/o Chennur Tanda
Tq.Chincholi, Dist. Gulbarga
C) Jamkibai W/o Topu
Age: 38 years, Occ: Agriculture
R/o Chennur Tanda
Tq.Chincholi, Dist. Gulbarga
D) Junimibai W/o Pumu
Age: 43 years, Occ: Agriculture
R/o Ruplanaik Tanda
Gadilingdhalli, Tq. Chincholi
Dist. Gulbarga
2. Komla S/o Lachamu
Age: 52 years, Occ: Agriculture
R/o Gadilingadhalli Tanda
Tq.Chincholi
2
3. Shanker S/o Komla
Age: 39 years
Occ: Agriculture
R/o Gadilingadhalli Tanda
Tq.Chincholi ... Appellants
(By Sri. Manvendra Reddy, Advocate)
AND:
1. Pundalik S/o Vithal
Age: 37 years, Occ: Agriculture
2. Mallesha S/o Vithal
Age: 34 years, Occ: Agriculture
3. Vaijanath S/o Vithal
Age: 31 years, Occ: Agriculture
4. Rajappa S/o Vithal
Age: 30 years, Occ: Agriculture
5. Hanmantha S/o Vithal
Age: 28 years, Occ: Agriculture
6. Sanjaya S/o Vithal
Age: 26 years, Occ: Agriculture
7. Shanthappa S/o Vithal
Age: 24 years, Occ: Agriculture
8. Kamalabai W/o Vithal
Age: 56 years, Occ: Agriculture
All R/o Village Chennur
Tq.Chincholi, Dist. Gulbarga
... Respondents
(By Sri. S.B.Hangarki, Advocate for
Sri. B.D.Hangarki, Advocate for R1 to R8)
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This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure praying to allow the appeal and set
aside the impugned judgments and decrees passed in
R.A.No.68/2006 dated 05.09.2009 on the file of the Court of
the Civil Judge (Sr.Dn.) Chincholi and in O.S.No.09/1993 dated
28.09.2005 on the file of the Court of the Addl. Civil Judge
(Jr.Dn.) at Chincholi and dismiss the suit of the
plaintiffs/respondents in O.S.No.09/1993 with costs.
This appeal having been heard and reserved for judgment
on 27.06.2022, coming on for Pronouncement of Judgment
this day, the Court delivered the following:
JUDGMENT
This appeal is filed under Section 100 of CPC by the Legal Representatives of the original defendant No.1 and other defendants challenging the concurrent findings given by the Civil Judge (Jr.Dn.), Chincholi ('trial Court' for short) in OS No.9/1993 decreeing the suit filed by the plaintiff vide judgment and decree dated 28.09.2005 and the judgment and decree dated 05.09.2009 passed by the learned Civil Judge (Sr.Dn.), Chincholi in RA No.68/2006 ('First Appellate Court' for short) by confirming the judgment and decree passed by the trial Court.
2. For the sake of convenience parties herein are referred with the original ranks occupied by them before the Trial Court.
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3. The brief of facts leading to the case are that, the plaintiffs have sought for the relief of mandatory injunction against the defendants for rectification of the sale deed No.645/1977-78 dated 31.01.1978 by rectifying the extent of land as 6 acres 16 guntas in place of 12 acres in Para No.1 of the said sale deed and also sought for permanent injunction against the defendants.
4. The suit schedule property is a land bearing Sy. No.81 of Chennur Village in Chincholi Taluk. Further the plaintiffs admit that, out of this property, Northern 10 acres belongs to defendants. It is the contention of the plaintiffs that originally the entire land measuring 36 acres 36 guntas was owned by Hussaini, son of Ramanna, who is the grandfather of plaintiffs 1 to 7 and father-in-law of plaintiff No.8; that after his death, it was succeeded by his only son Vittal ie., the father of plaintiffs No. 1 to 7 and husband of plaintiff No.8, who died about two months prior to filing of the suit. It is contended that during the drought period in 1972, the said Hussaini given Northern portion measuring 10 acres in Sy. No.81 to defendant No.1 for cultivation on batai basis. Subsequently, he sold-out 3 5 acres 24 guntas out of 10 acres to defendant No.1 for a consideration of Rs.2,000/- under registered sale deed dated 21.10.1974. After purchase, defendant No.1 continued to cultivate the rest of area measuring 6 acres 16 guntas on batai basis. After advent of the Karnataka Land Reforms Act, defendant No.1 with ill-will to grab the land of defendant No.1 filed Form No.7 pertaining to Sy. No.81 to the entire extent measuring 36 acres 36 gutnas. At that time, he was cultivating only 6 acres 16 guntas on bathai basis and at that time, he threatened Vittal of dispossessing him from the entire land in Sy. No.81 assuring him that, if he executes sale deed pertaining to rest of land measuring 6 acres 16 guntas cultivated by him on batai basis, he would give up his claim before the Land Tribunal. Therefore, under threat of losing the entire land, the Vittal began to act according to the instructions of defendant No.1 and in this regard, only both of them have made statement before the Land Tribunal. About 5 to 6 months after the statement before the Land Tribunal, defendant No.1 took Vittal and other two witnesses and got the sale deed prepared as per his instructions and he falsely as well as 6 fraudulently by mis-presenting the facts regarding extent of land, inserted 12 acres in the sale deed instead of 6 acres 16 guntas and no consideration was paid in respect of the entire land and that Vittal was not aware of the fact that defendant No.2 had joined the said sale with defendant No.1 as vendee. So the Vittal was under an impression that he has sold remaining 6 acres 16 guntas which was given to defendant No.1 on batai basis and with that impression, he signed the sale deed. That sale deed got executed to the extent of 12 acres, as a result of fraud, undue influence and misrepresentation by defendant No.1. Then except 10 acres of land on Northern portion, which was given to defendant No.1 on batai basis, rest of Sy. No. 81 was in possession of Hussaini and after his death it was in possession of Vittal and after the death of Vittal, the plaintiffs are in possession. About two years back prior to filing of the suit, when defendants had tried to interfere with possession of Vittal, the Vittal obtained copies of sale deed and was shocked to know that the sale deed was in respect of 12 acres of land in place of 6 acres 16 guntas. Later on, due to shock he died and before his death, he discloses this 7 fact of fraud to the plaintiffs. Hence, the plaintiffs have filed the said suit seeking relief of rectification of registered sale deed and also for permanent injunction.
5. After registration of the suit, the defendants appeared before the trial Court and filed their written statement and admitted that the entire Sy. No.81 measuring 36 acres 36 guntas was originally owned by Hussaini. They have also admitted that Hussaini executed the sale deed of 3 acres 24 guntas on 21.10.1074 in favour of defendant No.1. It is also admitted that Hussaini has given 10 acres out of land in Sy. No.81 measuring 36 acres 36 guntas to defendant No.1 on batai basis prior to 1974. According to defendants, after the death of Hussaini, his son Vittal sold out Northern Area of 12 acres out of remaining portion of 33 acres 12 guntas in favour of defendants No.1 & 2 under registered sale deed dated 30.01.1978 and after purchase of 3 acres 24 guntas under sale deed dated 21.10.1974, defendant No.1 continued to be in possession of the rest of area as a tenant. He claimed that, he applied for grant of occupancy rights for remaining land by submitting Form No.7 to the Land Tribunal and after enquiry, 8 the Land Tribunal has granted an area of 10 acres of the remaining portion, which is of Southern area located adjacent to the area purchased by defendants No.1 & 2 under registered sale deed dated 20.01.1979. Hence, defendants No.1 & 2 claim that, they became owners and possessors of area measuring 25 acres 24 guntas and the plaintiffs are owners and possessors to the extent of 11 acres 12 guntas. The defendants have also denied rest of allegations and sought for dismissal of the suit.
6. On the basis of the pleadings in the plaint, the trial Court has framed the following issues:-
i) Whether the plaintiffs prove that the defendants by playing fraud, mis-presentation and coercion got executed of 12 acres instead of 6 acres 16 guntas from the father of plaintiffs 1 to 7 and husband of plaintiff No.8 on 21.10.1978 and the same needs to be rectified?
ii) Whether the plaintiffs prove that the registered sale deed dated 21.10.1978 executed by the father of the plaintiff Nos. 1 to 7 and husband of plaintiff No.8 was without consideration?9
iii) Whether the plaintiffs further prove that the consideration amount mentioned in the sale deed is inadequate and incompatible?
iv) Whether the plaintiffs prove that the boundaries mentioned in the sale deed is the result of mutual mistakes of the parties to the deed?
v) Whether the plaintiffs prove that they are in lawful possession of the suit land on the date of suit and thereafter?
vi) Whether the plaintiffs prove that the defendants interfered into their lawful possession over the suit land?
vii) Whether the defendants prove that in all they purchased 15 acres 24 guntas of the land bearing Sy. No.81 and the Land Tribunal granted an area of 10 acres to them besides the above said land?
viii) Whether the defendants prove that the suit is time barred?
ix) Whether the defendants prove that the suit is not properly valued and the court fee paid on it is insufficient?
x) Whether the defendants prove that this Court has no pecuniary jurisdiction to try the suit?
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xi) Whether the defendants prove that they are
entitled to claim compensatory costs of
Rs.1,000/- each?
xii) To what relief the parties are entitled to?
xiii) What order or decree?
7. The plaintiff No.1 was examined as PW.1 and one witness was examined as PW.2 and Exs. P1 to P14 were marked. Defendant No.2 was examined as DW.1 and Exs.D1 to D.17 were marked.
8. The trial Court after appreciating the oral and documentary evidence and after hearing the arguments, answered Issue Nos. 1 to 6 in the affirmative, while issue Nos.
7 to 11 were answered in the negative and ultimately, the suit came to be decreed.
9. Being aggrieved by the said judgment and decree, the defendants have preferred an appeal in RA No.68/2006 on the file of the Civil Judge (Sr.Dn.) at Chincholi, and the learned Senior Civil Judge, after hearing the arguments and re- appreciating the oral and documentary evidence, has dismissed 11 the said appeal by confirming the judgment and decree passed by the trial Court.
10. Being aggrieved by the concurrent findings of both the courts below, the appellants/defendants have come up with this second appeal.
11. Heard the learned counsel appearing for the appellants/defendants and the learned counsel for the respondents/plaintiffs. Perused the records.
12. Learned counsel for the appellants contended that, the plaintiffs' father has not raised any issue of fraud during his lifetime and later after 15 years of his death, the suit is filed by his sons. He would also contend that there was no proper pleadings regarding fraud, as per the Order 6 Rule 4 of Civil Procedure Code, 1908 ('CPC' for short). He would also contend that plaintiffs' father died prior to the suit and from 1978 to 1993, their father kept mum. Further, as regards consideration, both the courts below so-muto raised an issue, which is not raised by the plaintiffs. He would also contend that the plaintiffs are required to prove the fraud and 12 misrepresentation played by defendant No.1, when the basic approach of the courts below is wrong as no details of fraud were pleaded. Hence, he would contend that both the courts below have erred in decreeing the suit and sought for allowing the appeal by dismissing the suit. He would also contend that the sale deed was acted upon and defendant No.2 was also a party to the sale deed, execution was admitted and the weakness of the defendants or laches on the part of the defendants will not help the plaintiffs in proving their case because they must succeed or fall on their own pleadings.
13. Per contra, learned counsel for respondents/ plaintiffs would support the judgment and decree passed by the trial Court. It is contended that, execution of the sale deed is not disputed, but, only the extent of land referred in the sale deed is not under dispute, and father of plaintiffs died two months prior to the suit. He would contend that as per Ex.P1 on 20.10.1974, only 3 acres 24 guntas of land was sold and under second sale deed on 30.01.1978, 6 acres 16 guntas was sold. It is asserted that Form No.7 was filed by defendant No.1 to the extent of entire land and by playing fraud and mis- 13 representation and using undue influence, the sale deed was got executed to the extent of 12 acres in place of 6 acres 16 guntas. He would also contend that the pleadings were covered under Order 6 Rule 4 of CPC and the evidence given by defendant No.1 before the Land Tribunal clarifies that he was in possession of only 10 acres and out of it, 3 acres 24 guntas was purchased and later on he purchased 6 acres 16 guntas as admitted before the Land Tribunal and he is in possession of only 10 acres, which was initially given on bathai basis. He would also contend that in order to over come the admission given before the Land Tribunal, the defendant No.1 did not enter into the witness box before the trial Court and as such, an adverse inference is required to be drawn against him. It is also contended that the limitation commences from the date of knowledge of fraud and it is two years prior to the suit and hence, the suit is well within time. He would invite the attention of the Court to statements at Exs.P3 and P4 given by defendant No.1 and deceased Vittal before the Land Tribunal, which completely clarifies the case of plaintiffs, including the fraud played on Vittal subsequently by defendant No.1. As 14 such, he would contend that both the courts below have appreciated oral and documentary evidence in detail and hence, he would support the judgment and decree and prayed for dismissal of the appeal.
14. On the basis of the said rival contentions, this Court while admitting the appeal on 09.03.2010, has framed the following substantial questions of law for consideration:-
i) Whether the judgments and decrees passed by both the Courts are vitiated for not considering the relevant material on record?
ii) Whether the Courts below were justified
recording a finding that the sale deed was
executed by fraud, misrepresentation and
coercion?
iii) Whether the suit filed by the plaintiffs was barred
by statute inasmuch as the suit has been filed in the year 2000 when the alleged sale deed is of the year 1978?
15. Having heard the arguments and perusing the records, it is important to note here that the entire land bearing Sy. No.81 Chennur Village in Chincholi Taluk, was totally 15 measuring 36 acres 36 guntas and was originally owned by the family of the plaintiffs and one Hussaini son of Ramanna, was the owner of the said land. It is also an admitted fact that, in 1972, 10 acres of land on Northern Side was taken by defendant No.1 on bathai basis. It is also an admitted fact that Hussaini later on sold the land to an extent of 3 acres 24 guntas in favour of defendant No.1 under registered sale deed at Ex.P1. After the death of Hussaini, the remaining land measuring 33 acres 12 guntas was succeeded by plaintiffs.
16. It is the specific contention of the plaintiffs that, by an advent of the Karnataka Land Reforms Act, 1974, Defendant No.1 has filed Form No.7 in respect of entire extent of 36 acres 36 guntas of land, though he was in possession of only 10 acres of land, including the purchased land to extent of 3 acres 24 guntas. It is contended by the plaintiffs that, defendant No.1 threatened Vittal and gave assurance that in case he executes the sale deed to the extent of 6 acres 16 guntas in his favour, he would give-up his claim over rest of area and accordingly, by playing fraud and mis-representation, he took Vittal to the sub-Registrar's Office and got executed the 16 sale deed in respect of the land to the extent of 12 acres, though Vittal was given an understanding it was in respect of only 6 acres 16 guntas. As regards fraud and mis- representation, there is a specific pleading made in the plaint. On the contrary, the defendants claim that they have purchased 3 acres 24 guntas and 12 acres, and 10 acres is being cultivated as a tenant and as such, defendants No.1 & 2 are in possession of total extent of 25 acres 24 guntas of land, and this is the specific defence put-forward by the defendants.
17. Plaintiff No.1 was examined as PW.1 and he has reiterated the plaint averments. Though PW.1 was cross- examined at length, nothing was elicited so as to impeach his evidence. There is no serious dispute that 3 acres 24 guntas was initially sold in favour of defendant No.1 by Hussaini in 1974. It is also an undisputed fact that Hussaini has earlier in 1972 given 10 acres of land to defendant No.1 on bathai basis for cultivation. Now defendant No.1 is claiming title in respect of 25 acres 24 guntas.
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18. It is also important to note here that defendant No.1 has also filed Form No.7 before the Land Tribunal claiming occupancy rights in respect of 36 acres 36 guntas i.e., the land in entire Sy. No.81. Very interestingly, as on the date of submission of Form No.7, he had already purchased 3 acres 24 guntas of land under registered sale deed at Ex.P1. In that event, if at all he was cultivating entire land, he could have submitted Form No.7 by excluding 3 acres 24 guntas. But, it is evident that, he has submitted Form No.7 in respect of entire extent of land in Sy. No.81, which clearly establish his intention in making vague claim. Both the sale deeds are marked at Exs. P1 and P2. Ex.P5 is the order of the Land Tribunal relating to 10 acres of land and enquiry was held before the Land Tribunal. The certified copy of the statements given by defendant No.1 before the Land Tribunal is produced at Ex.P3, wherein defendant No.1 has stated as under:-
"£Á£ÀÄ ¥ÀæªÀiÁtªÁV ºÉüÀĪÀÅzÉãÉAzÀgÉ, ZÀ£ÀÆßgÀ UÁæªÀÄzÀ ¸ÀªÉð £ÀA: 81 gÀ°è 36-36 JPÀgÉUÉ d«ÄäUÉ ¥sÁªÀÄð £ÀA: 7 vÀÄA©gÀÄvÉÛãÉ. DzÀgÉ EzÀgÀ°è 10 JPÀgÉ d«ÄãÀ£ÀÄß GvÀÛgÀ ¢QÌ£À°è ®PÀÄÌ£ÁAiÀÄPÀ d«ÄäUÉ ºÉÆA¢ 4000-00 gÀÆ UÉ Rjâü vÉUÉzÀÄPÉÆArzÉÝãÉ. EzÀgÀ°è 3-24 UÀÄAmÉ d«ÄãÀÄ FUÁUÀ¯É ¥ÀmÁÖ DVgÀÄvÀÛz.É EzÀgÉƼÀUÉ 6-16 d«ÄãÀÄ E£ÀÆß ¥ÀmÁÖ DVgÀĪÀÅ¢®è. £Á£ÀÄ F Rjâü vÉUÉzÀÄPÉÆAqÀ 10 JPÀgÉ d«ÄãÀ£ÀÄß PÀ¼ÉzÀ 10 ªÀµÀðUÀ½AzÀ ¸ÁUÀÄ ªÀiÁqÀÄvÁÛ §A¢zÉÝãÉ. EzÀ£ÀÄß 18 vÉUÉzÄÀ PÉÆAqÀÄ 5-6 ªÀµÀðUÀ¼ÁzÀªÀÅ F ¸ÀªÉð £ÀA§gÀzÀ°è £Á£ÀÄ ¸ÁUÀĪÀiÁqÀĪÀ d«ÄãÀÄ ºÉÆgÀvÀÄ¥Àr¹ G½zÀ d«ÄãÀÄ d«Ää£À ªÀiÁ°PÀgÀÄ ¸ÁUÀÄ ªÀiÁqÀÄvÁÛg.É UËqÀ ªÀÄvÀÄÛ ¥ÀlªÁjAiÀĪÀgÀÄ ¥sÁªÀÄð £ÀA: 7 vÀÄA©¹ £À£Àß ¸À» vÉUÉzÀÄPÉÆArgÀÄvÁÛgÉ d«ÄãÀÄ ªÀiÁ°PÀjUÉ JgÀqÀÄ JvÀÄÛUÀ½zÀÄÝ F ¸ÀªÉð £ÀA§gÀzÀ G½zÀ ¨sÁUÀªÀ£ÀÄß CªÀgÉ ¸ÁUÀÄ ªÀiÁqÀÄvÁÛg.É F ¸ÀªÉð £ÀA§gÀzÀ°è ¥ÀÆtð d«ÄãÀÄ ¸ÁUÀĪÀ½AiÀÄ°èz.É £Á£ÀÄ ¸À¨ï gÉf¸ÀÖgï D¦üù£À°è gÀf¸ÀÖç ªÀiÁr¹ PÉƼÀÄvî ÉÛãÉ. næ§Ä£À®¢AzÀ ¥ÀmÁÖ ªÀÄAdÆj ªÀiÁqÀĪÀ CªÀ±ÀåPÀvɬįÁ.è"
19. The said statement given by defendant No.1 before the Land Tribunal discloses that, he had submitted Form No.7 to the entire extent of 36 acres 36 guntas. But, he purchased 10 acres of land of Northern portion for a consideration of Rs.4,000/- and out of that, he had already got Patta in his name in respect of 3 acres 24 guntas and he has to get registered sale deed relating to remaining area of 6 acres 16 guntas. His cross-examination also clearly discloses that, except 10 acres, the rest of property is in possession of the owner-Vittal and the present plaintiffs. This admission completely demolished the entire defence raised by defendants. Further, in consonance with the statement given by defendant No.1, the father of plaintiffs ie., Vittal has also given similar statement as per Ex.P4. Both these statements clarify that 3 acres 24 guntas of land was sold out of 10 acres, given on 19 bathai basis and in respect of remaining 6 acres 16 guntas, the sale deed is required to be executed. The order of the Land Tribunal is also available at Ex.P5.
20. Defendant No.1 is claiming 25 acres 24 guntas on the ground that he purchased 12 acres, 3 acres 24 guntas and 10 acres, he acquired through Land Tribunal. The order of the Land Tribunal produced at Ex.P5 speaks entirely a different story and for clear picture, it is re-produced hereunder:
"ORDER Case called. Appellant Present. The parties in their statements dated 12.8.1977 have stated that the land for which tenancy is claimed has already been purchased by the appellant.
As a tenant purchaser we grant occupancy rights in his favour for 10.00 acres. The compensation be set off against the premium.
Written by me on them pronounced in the open Tribunal today.
Sd/- 20.1.1979 Chairman Land Tribunal, Chincholi."20
21. This order clarifies that the tenant i.e., defendant No.1 being a purchaser has been granted occupancy rights to 10 acres and compensation is set off against the premium in view of the purchase of the said land. Hence, the Land Tribunal order clarifies that only occupancy rights were granted for 10 acres of land, which has been cultivated and purchased, but not in respect of other area. The statement of defendant No.1 as per Ex.P3 clarifies that the sale deed was in respect of 6 acres 16 guntas only, but not 12 acres as asserted by him now.
22. At the same time, it is also important to note here that, to explain all these aspects Defendant No.1 would have been the best witness. But, interestingly he did not enter into the witness box and defendant No.2 was examined. The plaint averments disclose that the allegations were made against defendant No.1 in respect of undue influence, fraud and mis- representation and defendant No.2 did not participate in any transactions. However, defendant No.1 did not enter into witness box and he thereby denied an opportunity to the plaintiffs to confront all these documents and it appears that in order to avoid cross-examination, he did not enter into the 21 witness box. Hence, his non-examination speaks lot of things and adverse inference is required to be drawn as against him. On the contrary, the evidence of defendant No.2 (DW.1) discloses that, he do not know anything and he went on giving answers that he do not know and he is not aware of anything. On perusal of Exs.P3 and P5 coupled with oral evidence and non-examination of Defendant No.1, clearly establish that, fraud, mis-representation as well as coercion was played by defendant No.1 while getting executed the sale deed. Apart from that, when Defendant No.1 has purchased 3 acres 24 guntas of land as per his own document, his submission of Form No.7 to the entire extent of land would clearly disclose his intention. Hence, the assertion made by the plaintiffs regarding fraud and misrepresentation is more probable and defendant No.1 has denied an opportunity to the plaintiffs to cross- examine him on this point, as he did not step into the witness box. The evidence of DW.1 clearly disclose that he is concealing the true aspects and went on denying everything including giving 10 acres of land taken on bathai basis. Apart from that, on the basis of Ex.P5, the occupancy certificate in 22 Form No.10 as per Ex.D16 came to be issued in favour of Defendant No.1 and thereafter the registered sale deed came to be executed. Further, it is also important to note here that, in 1974, 3 acres 24 guntas of land was purchased for Rs.2,000/- and very interestingly in 1978, 12 acres of land is shown to be purchased for Rs.3,500/-, which is highly impossible and unacceptable. No doubt, improper mention of consideration is not a ground, but it clearly disclose the intention of the parties. The pleadings regarding fraud, misrepresentation and coercion are in consonance with Order 6 Rule 4 of CPC.
23. Learned counsel for appellant has raised an issue regarding Vittal, the father of plaintiffs, not challenging the sale deed during his lifetime. But, it is the specific assertion that, he was not aware of the fact of fraud, misrepresentation and coercion played by defendant No.1 and only when there was an obstruction, he verified the sale deed and got knowledge. Both the Courts below have considered this aspect and issue No.8 in this regard was answered in detail. Further, from 1973 onwards for continuously several years the name of defendant 23 No.1 was entered in Column 12(2) of Records of Rights relating to 10 acres only. Even before the Land Tribunal under Ex.P3, defendant No.1 has admitted his possession over only 10 acres on Northern side and admits that the Southern remaining area of entire land of Sy. No.81 is in possession of the plaintiffs. There is no evidence as to when defendant No.1 came in possession of other area and the evidence in this regard is silent. Considering from the date of knowledge, the suit is well in time and hence the ground of limitation cannot be accepted.
24. Learned counsel for the appellants has placed reliance on a decision reported in AIR 2019 SC 1430 [Raghwendra Sharan Singh Vs. Ram, Prasanna Singh (Dead) by Lrs.]. But, the facts of the said case are entirely different and in the instant case, limitation period starts from the date of knowledge and as such the suit is well in time and hence, the principles enunciated in the above referred case cannot be made applicable to the facts and circumstances of the case in hand. Again on this point, he has placed reliance on another decision reported in (2020) 7 SCC 366 [Dahiben Vs. Arvindbhai Kalyanji Bhanusali ( Gajra) Dead through 24 Legal Representatives and others]. But, admittedly, in the instant case, right to sue was accrued from the date of knowledge of fraud and misrepresentation and hence, the principles enunciated in the above cited decision cannot not be made applicable to the facts and circumstances of the case in hand.
25. Learned counsel has further placed reliance on a decision reported in AIR 2021 SC 899 (AIROnline 2020 SC
854) [Rattan Singh and others Vs. Nirmal Gill and others etc. with Inder Pal Singh & Another Vs. Nirmal Gill and others] and argued that the plaintiffs have not examined any person having knowledge of fraud and misrepresentation. But, it is to be noted here that, the specific contention of the plaintiffs is that, they got knowledge from their father when he was on his death-bed and that too because of the shock and after getting knowledge of the fraud and misrepresentation played, within three years from the date of knowledge, the suit is filed and the evidence also clearly establish that fraud, misrepresentation and coercion was played on deceased Vittal and coupled with that, defendant No.1 himself abstained from 25 attending Court and avoided facing cross-examination. Hence, the principles enunciated in the above cited decision cannot be made applicable to the facts and circumstances of the case in hand.
26. Learned counsel for the appellants has further placed reliance on a decision reported in AIR Online 2019 Karnataka 1122 [Savithramma Vs. K.R. Sathyanarayana] and contended that, as per Order 6 Rule 4, the plaintiffs were required to plead details of fraud played and when the same is not pleaded, the suit is not maintainable. But, the facts and circumstances, of the said case are entirely different and in the present case, there is specific pleading in this regard in the plaint and that is again supported by the documentary evidence in the form of Exs.P3 to P5 coupled with the conduct of defendant No.1, as he did not enter into witness box to deny this aspect and hence, adverse inference is required to be drawn against him. As such, the appellants cannot take advantage of the principles enunciated in the above cited decision.
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27. The learned counsel further places reliance on a decision reported in ILR 1989 KAR 1507 (Vijaya Enterprises Vs. State of Karnataka] and argued that the particulars regarding fraud and misrepresentation are required to be pleaded. There is no dispute regarding the principles enunciated in the above said decision. But, in the instant case, the plaint discloses as to how the fraud and misrepresentation are played on Vittal, the father of plaintiffs and the same is also corroborated by Exs.P3 and P5. Hence, the principles enunciated in the above cited decision will not come to the aid of defendants in any way.
28. Learned Counsel also placed reliance on a decision reported in AIR 2014 SC 937 [Union of India Vs. Vasavi Co-op. Housing Society Ltd.] and argued that, onus to prove title is on the plaintiffs and the plaintiffs cannot succeed on the weakness of the defendants. Absolutely, there is no dispute regarding proposition of law laid down in the above cited decision. In the instant case, the evidence led by the plaintiffs coupled with Exs. P3 and P5 clearly establish fraud and misrepresentation played on their father-Mr. Vittal, by 27 defendant No.1 and conduct of defendant No.1 in abstaining from entering into the witness box in order to avoid cross- examination and hence, an adverse inference is required to be drawn against him. Hence, the said principles will not come to the aid of defendants in any way.
29. Looking to the facts and circumstances, it is evident that both the trial Court and First Appellate Court have appreciated the oral and documentary evidence in detail and have arrived at a just decision. The judgment and decree of both the Courts below are not vitiated and both the Courts below were justified in recording finding that the sale deed was got executed by playing fraud and misrepresentation as well as coercion. Hence, the 1st substantial question of law is answered in the negative and 2nd substantial question of law is answered in the affirmative in favour of plaintiffs/respondents herein. As regards the 3rd substantial question of law, both the courts below have consistently dealt with this matter and the evidence discloses that from the date of knowledge, the suit is filed well within time and hence, it is answered in the negative. 28
30. In the result, considering the facts and circumstances, the appeal is devoid of any merits and does not call for interference by this Court and as such, the appeal fails. Hence, I proceed to pass the following:-
ORDER The appeal stands dismissed with costs.
Sd/-
JUDGE KGR*