Karnataka High Court
Annapurna And Ors vs Hanamanth on 19 September, 2023
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NC: 2023:KHC-K:7495
RSA No. 200136 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200136 OF 2018 (INJ)
BETWEEN:
1. ANNAPURNA
W/O LATE SHRISHAILAYYA MATH
AGED ABOUT: 52 YEARS
OCC: SERVICE
2. SMT. SHASHIKALA
W/O RAJASHEKHAR HIREMATH
AGED ABOUT: 32 YEARS
OCC:HOUSEHOLD WORK
3. MAHANTESH
Digitally signed
by SHYAMALA S/O SHRISHAILYYA MATH
Location: AGED: 31 YEARS
HIGH COURT
OF OCC:NIL
KARNATAKA
ALL THE ABOVE APPELLANTS 1 TO 3
HEREIN ARE RESIDENTS OF ALAMATTI
TQ: B.BAGEWADI
NOW R/A HUNAGUND
BAGALKOT DISTRICT- 587118
...APPELLANTS
(BY SRI T.H. AVIN, ADVOCATE FOR
SRI SHAHNAWAZ M. MAMADAPUR, ADVOCATE)
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NC: 2023:KHC-K:7495
RSA No. 200136 of 2018
AND:
HANAMANTH
S/O MALLAPPA MADAR
AGED: 46 YEARS
OCC: AGRICULTURIST
R/O. RAMPUR
TQ: BAGALKOT
DIST: BAGALKOT-587207
...RESPONDENT
(BY SRI R. S LAGALI, ADVOCATE)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED
SENIOR CIVIL JUDGE AT BASAVANA BAGEWADI IN
O.S.NO.214/2011 (OLD O.S.NO.184/2009) DATED 18.02.2014
AND JUDGMENT AND DECREE PASSED BY THE LEARNED I
ADDL. DISTRICT JUDGE, VIJAYAPURA IN REGULAR APPEAL
NO.25/2014 DATED 25.01.2018 AND TO DECREE THE SUIT OF
THE APPELLANTS/PLAINTIFFS AS PRAYED FOR, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-K:7495
RSA No. 200136 of 2018
JUDGMENT
The present second appeal by the plaintiffs assailing the concurrent findings of the courts below, wherein, the suit of the plaintiffs for declaration seeking cancellation of sale deed dated 04.02.2008 executed by deceased Shrishailayya S/o Neelkanthayya Math, the husband of the plaintiff No.1 and father of plaintiff Nos.2 and 3 came to be dismissed by the courts below.
2. The parties are referred to as per their rank before the trial court for the sake of convenience.
3. Brief facts of the case are that, the plaintiffs filed suit for declaration seeking cancellation of sale deed dated 04.02.2008 executed by deceased Shrishailayya, the husband of the plaintiff No.1 and father of plaintiff Nos.2 and 3 in respect of the suit land bearing Sy.No.26/1 measuring 05 acres 20 guntas in favour of defendant No.1 and restraining defendant No.2 from mutating the name of defendant No.1 in the revenue records. It is the case of the plaintiffs that sale deed executed by deceased -4- NC: 2023:KHC-K:7495 RSA No. 200136 of 2018 Shrishailayya in favour of defendant No.1 was by obtaining fraud and the signature of the deceased Shrishailayya was taken in a drunken state of mind and the said sale deed has been obtained by fraud and misrepresentation.
4. The defendant No.1 resisted the claim of the plaintiffs, inter alia, contending that the suit schedule property is the exclusive property of Shrishailayya and further contended that the sale deed dated 04.02.2008 in respect of the suit schedule property to the extent of 02 acres 23 guntas was by receiving valuable consideration by deceased Shrishailayya and the possession of the suit land was handed over to defendant No.1 to the said extent. It is the contention of the defendant that plaintiffs had filed suit in OS No.51/2008 against the defendant and deceased Shrishailayya was also a party in the said suit, which suit came to be withdrawn and would contend that the present suit seeking to set aside the sale deed is not maintainable.
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NC: 2023:KHC-K:7495 RSA No. 200136 of 2018
5. The trial court on the basis of the pleadings, framed the following issues:
"1. Whether the plaintiffs prove that, the defendant No.1 during the life time of deceased Shrishailayya without giving any sale amount when he was in drunken state taken his LTM on sale deed in Sub-Registrar Office, B.Bagewadi on 04.02.2008 by executing a bogus sale deed?
2. Whether the defendant No.1 proves that he was purchased the suit property by giving a valuable consideration amount of Rs.1,63,000/- to the deceased Shrishailayya, he has executed a Sale dee?
3. Whether the plaintiffs prove that they are in possession of the suit property?
4. Whether the plaintiffs proves that the sale deed dated 04.02.2008 is a fake sale deed?
5. Whether the plaintiffs have made out the case as prayed by them?
6. In order to substantiate the claim of the plaintiffs, plaintiff No.1 examined herself as P.W. and got examined two witnesses as P.Ws.2 and 3 and got marked documents at Exs.P.1 to 9. On the other hand, defendant -6- NC: 2023:KHC-K:7495 RSA No. 200136 of 2018 No.1 is examined as D.W.1 and examined one witness as D.W.2 and got marked documents at Exs.D.1 to 5.
7. The trial court on the basis of the pleadings, oral and documentary evidence placed before it, held that the plaintiffs have failed to prove that the defendant No.1 has played fraud and got the sale deed executed before the Sub-Registrar by the deceased Shrishailayya and defendant No.1 has proved that he is the bona fide purchaser of the suit property and accordingly by the judgment and decree, dismissed the suit of the plaintiffs.
8. Aggrieved by the same, the plaintiffs preferred appeal before the first appellate court. The first appellate court on re-appreciation and re-analyzing the entire oral and documentary evidence placed before it dismissed the appeal. Aggrieved by which, the present appeal by the plaintiffs.
9. Heard Sri T.H. Avin for Smt. Shanawaz M. Mamadapur, learned counsel appearing for the plaintiffs -7- NC: 2023:KHC-K:7495 RSA No. 200136 of 2018 and Sri R.S. Lagali, learned counsel appearing for the respondent - defendant No.1 and perused the material placed on record.
10. The learned counsel appearing for the appellant would contend that the suit schedule property is the ancestral joint family property of the plaintiffs and deceased Shrishailayya Math, the husband of the plaintiff No.1 and father of plaintiff Nos.2 and 3 and this being the factual aspect, the courts below misread the material evidence placed before the courts and have wrongly come to the conclusion that the suit property is the absolute property of deceased Shrishailayya. The learned counsel for the appellant would contend that the suit schedule property has been obtained by defendant No.1 by playing fraud since the deceased Shrishailayya was addicted to bad vices and his thumb impression was forcibly taken. It is also contended that deceased Shrishailayya was a B.A. graduate and he used to sign the documents, therefore the question of putting thumb impression on the sale deed -8- NC: 2023:KHC-K:7495 RSA No. 200136 of 2018 is only by way of misrepresentation, coercion and undue influence and as such, sought to contend that the reasoning arrived by the Courts below on facts is erroneous and there arises substantial question of law in this appeal.
11. Per contra, learned counsel for the respondent would justify the impugned judgments and decrees of the court below and would contend that no substantial question of law arises to be interfered with as the courts below on finding of facts have rightly come to the conclusion that the suit schedule property is the absolute property of deceased Shrishailayya and sale of the suit property by deceased Shrishailayya in favour of defendant No.1 is not by playing fraud or by any coercion. Learned counsel would contend that there arises no substantial question of law for consideration in this appeal.
12. This court has carefully considered the rival contentions urged by the learned counsel for the parties -9- NC: 2023:KHC-K:7495 RSA No. 200136 of 2018 and perused the judgments and decrees of the courts below and the material placed before this court.
13. The fact that O.S.No.51/2008 was filed by the plaintiffs for partition and separate possession against Shrishailayya and defendant No.1, deceased Shrishailayya was a B.A. graduate and he used to sign in English language is not in dispute. The plaintiffs averred that the suit schedule property is the ancestral joint family property of Shrishailayya, but in order to prove that the suit schedule property is the ancestral joint family property, no material is placed before the Court. On the contrary, the evidence of PWs.1 to 3 and their categorical admission that the suit schedule property was the absolute property of Shrishailayya, the trial Court and the first appellate Court have arrived at the conclusion that the suit schedule property is the self-acquired property of deceased Shrishailayya. It is the contention of the plaintiff that the sale deed at Ex.D.1, wherein, LTM of deceased Shrishailayya finds place which is obtained by fraud and
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NC: 2023:KHC-K:7495 RSA No. 200136 of 2018 contended that deceased Shrishailayya was a B.A. graduate and would sign in English language, obtaining of LTM on Ex.D-1 according to the plaintiffs is that it would evidence that the LTM of deceased Shrishailayya was obtained by playing fraud. At this stage, it is material to note that PW.2 brother of plaintiff No.1 has categorically admitted that during the said period of execution of the sale deed, the husband of the plaintiff No.1 was suffering from paralysis and in view of the said fact he had put his LTM on Ex.D.1. The categorical admission of PW.2 finds place at para No.13 of the judgment of the trial Court. The trial Court taking note of the categorical admission of PW.2 arrived at conclusion that the LTM of deceased Shrishailayya on Ex.D.1 is in view of the fact that the deceased Shrishailayya was attacked by paralysis and he was unable to put his signature on the said document and the contention of the plaintiffs that the sale deed was obtained by playing fraud and misrepresentation was unaccepted by the trial court.
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NC: 2023:KHC-K:7495 RSA No. 200136 of 2018
14. The first appellate court being the last fact finding court has re-appreciated the entire oral and documentary evidence placed before it and has concurred with the judgment and decree of the trial court and has re- appreciated the evidence of P.W.2, who has admitted about the attack of paralysis and that deceased Shrishailayya was not putting signatures thereafter and that the sale deed executed by deceased Shrishailayya in favour of defendant No.1 was by playing fraud was disbelieved by the first appellate court. The first appellate court at paras 20 and 22 of its judgment has re- appreciated the entire materials placed before it and has come to the categorical finding that the suit schedule property was the absolute property of deceased Shrishailayya and the plaintiffs are estopped from challenging the sale deed as the plaintiffs have failed to prove that the sale deed was obtained by fraud, undue influence and misrepresentation or by any coercion. The courts below on facts have come to the conclusion that the plaintiffs are not entitled for the reliefs sought for.
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NC: 2023:KHC-K:7495 RSA No. 200136 of 2018
15. The manner in which the trial court and the first appellate court considered the entire oral and documentary evidence placed before it, this court is of the considered view that same does not call for any interference and there arises no substantial question of law for consideration to be dealt with under Section 100 CPC. Hence, this court pass the following:
ORDER
i) The regular second appeal filed by the plaintiffs is hereby dismissed.
ii) The impugned judgments and decrees of the courts below stand confirmed.
iii) No order as to costs.
Sd/-
JUDGE
BL
List No.: 1 Sl No.: 43
Ct:NS