Karnataka High Court
Vijaykumar S/O Hanmanthappa ... vs Deepak S/O Baburao Bhople on 18 October, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200262/2014
C/W
RSA NO.200261/2014
RSA.NO.200262/2014
BETWEEN:
VIJAYKUMAR S/O HANMANTHAPPA
CHANSHETTY PATIL
AGED 44 YEARS, OCC: PUMP OPERATOR,
POST OFFICE AT BIDAR,
R/O NAVADGERI-BIDAR,
TQ. & DIST: BIDAR.
...APPELLANT
(BY SRI R.S. SIDHAPURKAR, ADVOCATE)
AND:
DEEPAK S/O BABURAO BHOPLE,
28 YEARS, OCC: STUDENT, R/O "DEEPAK NILAYA"
BASAVESHWAR CHOWK, NEAR BHAVANI RICE MILL,
VIDHYA NAGAR COLONY, BIDAR-585 401
...RESPONDENT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED
22.07.2014 PASSED IN R.A. No. 107/2012 ON THE FILE
OF THE ADDL. DISTRICT JUDGE AT BIDAR, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND
DECREE DATED 12.09.2012 PASSED IN O.S. NO.
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163/2004 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AT BIDAR.
RSA NO.200261/2014
BETWEEN:
VIJAYKUMAR S/O HANMANTHAPPA
CHANSHETTY PATIL
OCC: PUMP OPERATOR,
POST OFFICE AT BIDAR,
R/O NAVADGERI-BIDAR,
TQ. & DIST: BIDAR.
...APPELLANT
(BY SRI R.S. SIDHAPURKAR, ADVOCATE)
AND:
DEEPAK S/O BABURAO BHOPLE,
AGED ABOUT 28 YEARS,
OCC: EMPLOYEE (ENGINEER, BENGALURU)
R/O "DEEPAK NILAYA"
BASAVESHWAR CHOWK, NEAR BHAVANI
RICE MILL, VIDHYA NAGAR COLONY,
BIDAR-585401.
...RESPONDENT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED
22.07.2014 PASSED IN R.A. NO. 124/2013 ON THE FILE
OF THE ADDL. DISTRICT JUDGE AT BIDAR, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND
DECREE DATED 12.09.2012 PASSED IN O.S. NO.
163/2004 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AT BIDAR.
THESE RSAs COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeals are filed by plaintiff feeling aggrieved by the judgment and decree of the appellate Court wherein plaintiff's suit seeking relief of declaration that sale deed dated 26.2.2004 executed by plaintiff in favour of defendant as void ab initio is dismissed by allowing the appeal filed by the defendant.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The plaintiff has filed the present suit against his brother-in-law. Plaintiff claims that he is the absolute owner in possession of plot No.9 which is part and parcel of approved layout in Survey No.12/2 of Naubad village. It is the case of the plaintiff that he married one Ambika d/o.Baburao Bhopale on 8.5.2002 who is none other than the sister of defendant herein. Plaintiff alleges that defendant's father suppressed 4 that his daughter was suffering from Hepatic Encephalopathy disease. The plaintiff claims that inspite of best treatment given to his wife Ambika, she expired on 23.2.2004 at Prayavi Hospital. Plaintiff alleges that he was under deep shock. The plaintiff alleges that his father-in-law taking advantage that he was working in police department abducted plaintiff and on the next day took plaintiff to the office of the Sub-Registrar and giving threat forcibly secured a sale deed pertaining to plot No.9. Plaintiff alleges that defendant has no independent source of income and the market value of the plot was more than Rs.One lakh. Therefore, contended that the sale deed obtained by his father-in-law in the name of defendant is in absence of free will and consent and therefore, the present suit.
4. On receipt of summons, the defendant appeared and filed written statement and stoutly 5 denied the allegations made in the plaint. Defendant alleged that it was on account of gross negligence of plaintiff, his sister's health deteriorated. Plaintiff incurred heavy medical expenses and was compelled to sell the suit plot. Defendant has contended that plaintiff has voluntarily sold the suit plot for consideration of Rs.60,000/-. Defendant also claimed that possession was also handed over on the same day. On these set of grounds, sought for dismissal of the suit.
5. Plaintiff to substantiate his claim examined himself as P.W.1 and one independent witness as P.W.2 and produced documentary evidence vide Exs.P1 to 48, while defendant examined himself as D.W.1, the father of defendant was examined as D.W.2 and two independent witnesses were examined as D.Ws.3 and 4 and got marked Exs.D1 to D13. 6
6. The trial Court on appreciation of oral and documentary evidence held that plaintiff has failed to prove that the sale deed was secured by defendant by use of force and undue influence. While examining Issue No.1, the trial Court also held that plaintiff has failed to prove that he and his elder brother were abducted by defendant's father on 24.2.2004. However, while dealing with issue Nos.2 and 3, the trial Court was of the view that since defendant's father who was serving in the Government department has not secured permission, the sale deed is held to be void ab initio. The sale deed is held to be void on the premise that the same is obtained by defendant's father without seeking prior permission from the prescribed authority. On these set of reasoning, the trial Court has decreed the suit thereby the sale deed dated 26.2.2004 is declared to be void ab initio and consequently, the sale deed is cancelled. 7
7. Defendant feeling aggrieved by the judgment and decree of the trial Court preferred an appeal in R.A.No.107/2012. The plaintiff also preferred an appeal feeling aggrieved by the finding of the trial Court on Issue No.1 in R.A.124/2013. The appellate Court having independently assessed the oral and documentary evidence however took a divergent view. Referring to the material on record, the appellate Court was of the view that the plaintiff incurred heavy debts and therefore, under compelling reasons sold the property in favour of defendant . The fact that he had incurred debts is not in dispute. The appellate Court placing reliance on Exs.P46 and 47 which were marked at the instance of the defendant by confronting in the cross-examination of plaintiff was of the view that the plaintiff has sold the plot for legal necessity.
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8. The appellate Court was also of the view that merely because defendant's father who was serving in police department has not secured permission that in itself would not render the sale deed as void ab initio. The appellate Court was of the view that non-intimation of acquisition of immovable property would at the most invite departmental enquiry against defendant's father and therefore, the trial Court was not justified in declaring the sale deed as void ab initio. The said conclusion is reversed by the appellate Court by allowing the appeal filed by the defendant in R.A.No.107/2012 while the appeal filed by the plaintiff in R.A.No.124/2013 was dismissed.
Feeling aggrieved by the same, these two captioned appeals are filed by the plaintiff questioning the judgment and decree passed in R.A.No.124/2013 and R.A.107/2012.
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9. Heard the learned counsel for the plaintiff and the learned counsel for the defendant .
10. The plaintiff has questioned the sale deed alleging that he was abducted by defendant's father and by using force and also by threatening the plaintiff, the sale deed was obtained by the defendant. The trial Court has recorded a categorical finding that plaintiff has failed to establish that sale deed was obtained by exercising undue influence and coercion as well as threat. The plea of abduction by defendant's father is negatived by the trial Court by answering issue No.1 in the negative.
11. The appellate Court having independently assessed the entire evidence on record has rightly come to the conclusion that the sale deed cannot be declared as void ab initio for want of previous sanction from the Government. Even if defendant's father has acquired the property in the name of his son without 10 securing permission, the sale deed cannot be declared as void ab initio and the same cannot be cancelled on the ground of threat and undue influence. The finding of the trial Court that defendant has not paid the sale consideration is perverse. Ex.D1 clearly has a covenant indicating that sale consideration of Rs.60,000/- is paid. Both the Courts have concurrently held that the allegation that plaintiff was kidnapped and was forced to sign the sale deed are not substantiated by the plaintiff. If the said allegations are not proved, then the covenants in the sale deed would bind the plaintiff and therefore, any evidence contrary to the recitals in the sale deed would be inadmissible in evidence as enumerated under Section 91 of Indian Evidence Act.
12. The second contention that defendant's father was serving in Police Department and he could not have purchased the plot without seeking 11 permission and therefore, the sale deed is a void document cannot be entertained. Non-intimation of acquisition of immovable property at the most amounts to technical lapse, but, that itself would not render the sale deed void. Such consequence is not contemplated under any Act. Therefore, the said contention also cannot be entertained.
13. Therefore, this Court is of the view that the judgment and decree rendered by the appellate Court is in accordance with law and does not suffer from any infirmities. No substantial question of law arises for consideration in these appeals.
Accordingly, the appeals are dismissed.
Sd/-
JUDGE *alb/-.