Karnataka High Court
Prakash S/O Ramlingappa Kotgyal vs Bichappa Since Deceased By Lrs Ors on 24 July, 2023
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NC: 2023:KHC-K:7255
RSA No. 7355 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO. 7355 OF 2011 (DEC)
BETWEEN:
PRAKASH
S/O RAMLINGAPPA KOTGYAL
AGED ABOUT 34 YEARS
OCC: AGRICULTURE
R/O VILLAGE MANHALLI
TQ. AND DIST. BIDAR-585401
...APPELLANT
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
BICHAPPA
SINCE DECEASED BY LRS
1. NIRMALA
W/O LATE BICHAPPA
Digitally signed
by LUCYGRACE AGED ABOUT51 YEARS
Location: HIGH OCC: HOUSEHOLD AND AGRICULTURE
COURT OF
KARNATAKA
2. SHEELAVATHI
D/O LATE BICHAPPA
W/O VENKATESH
AGED ABOUT 22 YEARS,
OCC: HOUSEHOLD
3. SANTOSH
S/O LATE BICHAPPA
AGED ABOUT 27 YEARS
OCC: PRIVATE SERVICE AND AGRICULTURE
4. PANDITH
S/O KATE BICHAPPA
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NC: 2023:KHC-K:7255
RSA No. 7355 of 2011
AGED ABOUT 25 YEARS,
OCC: STUDENT
5. ARUNA
D/O LATE BICHAPPA
AGE: 23 YEARS
OCC: STUDENT
ALL R/O VILLAGE MANHALLI
TQ. AND DIST. BIDARNOW
NOW RESIDING AT HYDERABAD-460001.
6. BASAPPA
S/O GURUPADAPPA JAMMA
OCC: PETTY BUSINESS
R/O VILLAGE MANHALLI
TALUK AND DIST.: BIDAR-585401.
...RESPONDENTS
(BY SRI. K.M. GHATE, ADVOCATE FOR RESPONDENT NOS.1 TO 5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 05.09.2011 PASSED IN R.A.
NO.164/2010 ON THE FILE OF THE PRESIDING OFFICER, F.T.C-I AT
BIDAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 23.02.2008 PASSED IN O.S. NO. 55/2001 ON
THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.) AT BIDAR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by defendant No.2 in O.S.No.55/2001, challenging the judgment and decree dated 05.09.2011 passed by the Presiding Officer Fast Track Court-I, Bidar, in R.A.No.164/2010 (henceforth referred as 'First -3- NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 Appellate Court'), by which it set aside the judgment and decree dated 23.02.2008 passed by the Additional Civil Judge (Jr.Dn), Bidar (henceforth referred as 'Trial Court') in OS.No.55/2001.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The Appellant herein was defendant No.2, while respondent Nos.1 to 5 are the legal representatives of the plaintiffs, where respondent No.6 was defendant No.2.
3. The suit in O.S.No.55/2001 was filed for declaration of title of the plaintiff in respect of the suit house and for recovery of possession as well as for consequential relief of perpetual injunction, restraining defendant No.2 from encumbering or transferring the suit house in favour of any person till the disposal of the suit.
4. The plaintiff claimed that he filed a suit for partition and separate possession of the agricultural land and a residential house in OS.No.120/1969 against his mother and his brothers. The suit was decreed in terms of a compromise, in terms of which, the plaintiff was allotted half extent in -4- NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 Sy.No.166 of Sindol Village and a portion of a residential house. The plaintiff claimed that he sold away the land allotted to his share in Sy.No.166 of Sindol Village but used to reside in the house allotted to his share. However, he shifted to Hyderabad to eke out his livelihood and maintain his family members. While, he was so residing temporarily at Hyderabad, he had permitted his portion of the house to be used by the other members. The plaintiff claimed that his father died somewhere during the year 1976-1977 and the plaintiffs' mother used to reside in the portion of the house allotted to his share. After her demise, the portion of the house allotted to the plaintiff was looked after by his younger brother Madeppa till the year 1984- 1985 and after his death, his wife Smt.Chandramma and her children used to reside in the house till she died. Thereafter, the plaintiff decided to occupy the house and in order to make some repairs, he visited the house in June 2000. However, he was objected by defendant No.2, who claimed that he had purchased the house from defendant No.1. The plaintiff tried to ascertain from defendant No.1, who did not answer the queries of the plaintiff. Thereafter, the plaintiff obtained a certified copy of the sale deed and called upon defendant No.1 to admit the -5- NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 mistake committed by him and also to admit the ownership of the plaintiff and handover the physical possession of the house. However, since the defendants failed to do so, he filed the present suit for declaration of his title to the suit property and for recovery of possession and for consequential injunction.
5. The defendant No.1 filed his written statement admitting the compromise entered in OS.No.120/1969. He claimed that a family settlement was arrived at subsequently between the four brothers during the year 1985 and at such settlement the house was allotted to the exclusive share of defendant No.1. Consequently, he claimed that the records of Panchayat were transferred to his name and that he was in lawful possession of the house as its owner. He further claimed that a decree passed in OS.No.120/1969 was defective, in as much as the plaintiff was a minor on the date of the decree. He also claimed that the plaintiff did not execute the decree for a period of more than 12 years and thus the decree was not acted upon. He claimed that the plaintiff never resided in the house, but left for Hyderabad in the year 1972 itself. He therefore, contended that he was entitled to convey the suit -6- NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 property and that he validly did so, by executing by way of conveyance in favor of defendant No.2.
6. Defendant No.2 filed his written statement contending that he was not aware of the suit filed in OS.No.120/1969. However, he contended that there was a family settlement between the plaintiff and his brothers in the year 1985 and the suit house was allotted to the exclusive share of defendantNo.1 and that his name appeared in the records of the Panchayat. He claimed that defendant No.1 was in actual and physical possession of the suit house as the absolute owner. He claimed that, being satisfied with the title and possession of defendant No.1, he purchased the suit house from defendant No.1 in terms of a sale deed dated 15.04.1993 and was placed in physical possession of the suit house. He claimed that he had constructed a RCC building and was residing thereon along with his family members. He claimed that the plaintiff had filed the suit for declaration of his title, to harass and extract money from defendant No.2. He also claimed that the suit was barred by the law of limitation as he had constructed the building long back, but the suit was filed -7- NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 only in the year 2001. Based on these rival contentions, the Trial Court framed the following issues:
1. "Whether the plaintiff proves that he is absolute owner of house bearing No.759 situated at Manhalli?
2. Whether the plaintiff proves that defendant no.1 sold suit house to defendant No.2, defendant No.1 without having valid title thereto?
3. Whether the plaintiff is entitled for vacant possession of suit house?
4. What order or decree?"
7. The plaintiff was examined as PW1 and he marked exhibits as P1 to P6. He also examined witness as PW2. The defendant No.2 was examined as DW1 and he marked documents as D1 to D9. He examined two witnesses as DW2 and DW3.
8. Based on oral and documentary evidence, the Trial Court dismissed the suit on the following grounds:
i. The decree passed in OS.No.120/1969 was a preliminary decree.-8-
NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 ii. After the preliminary decree a settlement was entered into between the plaintiff and his brothers in year 1985.
iii. The dimensions and measurements of the house allotted to the share of the plaintiff was not forthcoming in the compromise decree. iv. PW2 claimed the plaintiff is residing in the house and therefore the claim of plaintiff that he is not in possession of the house cannot be believed. v. When plaintiff failed to prove that he was the absolute owner of the house then the question of he having any title over it did not arise. vi. The plaintiff did not examine Smt.Chandramma, the wife of the brother Madeppa.
9. Being aggrieved by the dismissal of the suit, the plaintiff filed RA No.164/2010. The First Appellate Court secured the records of the Trial Court. Heard the counsel for the parties and framed the following points for consideration:
1. Whether the plaintiff has proved that he has become owner of the suit house by virtue of Compromise Decree in O.S.No.120/1969?-9-
NC: 2023:KHC-K:7255 RSA No. 7355 of 2011
2. Whether the defendants prove the family settlement in 1985 and allotment of the suit house to the share of defendant No.1 in the said settlement?
3. Whether the Compromise Decree in O.S.No.120/1969 is hit by Article-136 of Limitation Act and it is unexecutable decree?
4. Whether sale deed executed by defendant No.1 in favour of defendant No.2 in 1993 is not binding on the plaintiff?
5. Whether the plaintiff is entitled for the reliefs claimed?
6. Whether the appellant has made out any valid grounds for interference of this Court into the judgment and decree of the trial Court?
7. What order?
10. The First Appellate Court allowed the appeal and reversed the judgment and decree of the Trial Court on the following grounds.
i. The contents of the decree in O.S.No.120/1969 are clear regarding allotment of the share and therefore it finally decided the rights of the parties and thus was a final decree which was not challenged by any of the parties to the suit.
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NC: 2023:KHC-K:7255
RSA No. 7355 of 2011
ii. That the family settlement set up by defendant
No.1 in the year 1985 was not proved by
defendant No.1, as he did not lead any
evidence in support of the alleged family settlement.
iii. The evidence of DW1 and DW3 regarding family settlement was merely hearsay as they had not witnessed the family settlement. They also did not disclose the persons who were present at the family settlement.
iv. If the compromise decree in OS.No.120/1969 had to be overcome, it had to be only by way of a registered instrument and not by an oral claim.
v. The plaintiff was residing at Hyderabad and during his absence, defendant No.1 and his brothers got the name of their father and name of the plaintiff deleted from the panchayat records. It held that mere absence of entries in the panchayat records cannot invalidate the compromise decree.
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NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 vi. That the children of Madeppa and Gundappa were alive and the defendants did not make any effort to examine them in support of the alleged settlement in year 1985.
vii. The suit was not barred by law of limitation, as the share of the plaintiff was demarcated in a sketch appended to the compromise petition and therefore a decree in O.S.No.120/1969 had attained finality. That defendant No.2 was unable to demonstrate that the suit was barred by law of limitation.
11. Being aggrieved by the said judgment and decree passed by the First Appellate Court, defendantNo.2 has filed this Appeal.
12. This Appeal was admitted to consider the following substantial questions of law:
1. Whether the Appellate Court is justified in holding that, for Ex.P4, provisions of Limitation Act cannot be made applicable?
2. Whether Ex.P4 is a compulsorily registerable document and in the absence of its registration, can it be acted upon?
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NC: 2023:KHC-K:7255 RSA No. 7355 of 2011
13. Learned counsel for defendant No.2 contended that the compromise decree at Ex.P4 was not registered in accordance with law and therefore, inadmissible in evidence. Hence, he contended that the plaintiff could not have pursued the suit against the defendants for the relief of declaration of title and for consequential relief's. He also contended that the plaintiff did not initiate a proceeding to a draw a decree as the compromise decree was merely preliminary in nature.
14. Per contra, the learned counsel for the plaintiff contended that, once a decree has attained finality in as much as the portions to which the parties are entitled to are identified and a sketch is appended to the compromise petition, then the decree is final in nature as nothing else remains to be done. He contended that possession of the property that was fell to the share of the plaintiff was also delivered to him. Therefore, there was no need to execute the decree. He contended that the fact that the defendants claimed that there was a settlement in year 1985 between the plaintiff and his brothers, in terms of which, the entire house fell to the share of the defendant No.1, demonstrates beyond doubt that the plaintiff was the full and absolute owner of the suit house. He therefore, contends that
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NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 so long as the plaintiff was the owner of the suit house, he was entitled to recover possession of the same. In so far as the contention that the compromise decree was not registered and therefore was not enforceable, the learned counsel contended that there is no limitation prescribed for getting the document registered and even otherwise, since the question concerns the title of plaintiff to the suit house, the compromise decree could be looked into for collateral purposes.
15. I have considered the submissions made by the learned counsel for the parties as well as the learned counsel for defendant No.2. I have also perused the records of the Trial Court as well as its judgment of the Appellate Court.
16. The fact that the plaintiff was allotted the suit house in terms of the compromise petition Ex.P4, is not much in dispute as the defendant Nos.1 and 2 admit the same but claimed that there was a subsequent settlement in year 1985 in terms of which the suit house was relinquished in favour of defendant No.1. However, defendant No.1 who had conveyed the suit house to defendant No.2 on this premise, did not enter the witness box to prove the said contention. Defendant No.2
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NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 was examined as DW1 and his father was examined as DW3 who was not privy to the alleged family settlement in the year 1985. None of the persons who participated in the alleged family settlement were examined before the Trial Court. There is no acceptable evidence on record in proof of the alleged family settlement. Therefore, it can be easily said that the plaintiff had proved his title to the suit house and his title continued uninhibited. He was therefore entitled to a declaration of title to the suit house. As regards the claim for recovery of possession, defendant No.2 claimed that he had constructed RCC building long back while the plaintiff had filed the suit only in the year 2001, which was belated but no evidence in this regard was furnished by defendant No.2 and thus the question of suit being barred by law of limitation did not arise. In so far as the second substantial question of law is concerned, undoubtedly Ex.P4 was a compulsorily registrable document under Section 17 of the Registration Act, 1908. However, when the question of title of the plaintiff had to be answered, the recitals made in the compromise petition at Ex.P4 could be looked into for collateral purposes and mere non registration of the document did not disentitle the plaintiff from
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NC: 2023:KHC-K:7255 RSA No. 7355 of 2011 filing the suit for declaration of his title to the suit property. Even otherwise, the plaintiff is entitled to take steps for getting the documents registered through the process of the Court and no limitation thereof is prescribed under the Limitation Act.
In that view of the matter, this appeal is dismissed. However, liberty is reserved to defendant No.2 to proceed against defendant No.1, to recover the possession of the property which fell to the share of defendant No.1 as per the compromise decree at Ex.P4.
Sd/-
JUDGE PK List No.: 1 Sl No.: 64