Karnataka High Court
Gopal S/O. Bharmu Kundar vs Renuka Chandrakant on 6 November, 2023
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NC: 2023:KHC-D:12924
RSA No. 100002 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100002 OF 2014 (INJ)
BETWEEN:
SHRI. GOPAL S/O. BHARMU KUNDAR
AGE: 55 YEARS, OCC: BUSINESS
C/O. VINOD BHUVAN HOTEL
RAVIWAR PETH BELAGAVI
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
SHRI. SHRINIVAS BHAIRU @ BHIRMU KUNDAR
AGE: 65 YEARS, OCC: BUSINESS
C/O. VINOD BHUVAN HOTEL
RAVIWAR PETH, BELAGAVI-590001.
...APPELLANT
(BY SRI. ANAND ASHTEKAR, ADVOCATE)
AND:
Digitally
signed by 1. SMT. RENUKA CHANDRAKANT DHAMANEKAR
VISHAL
VISHAL NINGAPPA AGE: 61 YEARS, OCC: HOUSEHOLD
NINGAPPA PATTIHAL R/O. H NO. 30, SOMAWAR PETH
PATTIHAL Date: NEAR DATT TEMPLE
2023.11.10
11:23:21 TILAKWADI, DIST: BELAGAVI-590006.
+0530
2. SMT. SEEMA W/O. BALKRISHNA POTE
AGE: 52 YEARS, OCC: HOUSEHOLD
R/O. H NO. 526, GANESH CHOWK
KANGRALI B. K.-590010.
TALUKA AND DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R1 AND R2)
THIS REGULAR SECOND APPEAL IS FILED U/O. XLII RULE 1 R/W.
SEC. 100 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE DTD:
25.10.2013 PASSED IN R.A.NO. 88/2010 ON THE FILE OF THE PRL. SR.
CIVIL JUDGE BELAGAVI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT AND DECREE DTD: 07.06.2010 AND THE DECREE PASSED IN
O.S.NO. 470/2008 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND
JMFC., BELAGAVI, DECREEING THE SUIT FILED FOR PERMANENT
INJUNCTION.
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NC: 2023:KHC-D:12924
RSA No. 100002 of 2014
THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal by the defendant against the concurrent findings of facts of the Courts below, whereby, the suit filed by the plaintiffs seeking for permanent injunction was decreed.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. Suit for permanent injunction contending that the plaintiffs are in lawful possession of the agricultural land bearing R.S.No.191/A/1 measuring 13 guntas situated at Belagavi. It is contended by the plaintiffs that one Narayan Krishna Shippurkar was granted occupancy rights by the Land Tribunal vide order dated 09.11.1987 and he died leaving behind one son, namely, Yallappa and two daughters, namely, Renuka and Seema, who are the plaintiffs in the suit. It is contended that the defendant having no manner of right, title and interest over the suit schedule property, started leveling upon the suit property -3- NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 and has trying to put up construction and the cause of action arose for injunction when the defendant tried to interfere with the plaintiffs' peaceful possession and enjoyment of the suit property.
4. Pursuant to the suit summons, defendant appeared and filed written statement, inter alia, contending that the description of the suit property is not correct and denied that the father of the plaintiffs was the absolute and exclusive owner in possession of the agricultural land bearing R.S. No.191/A/1. It is contended that Maruthi Krishna Shippurkar, Narayana Krishna Shippurkar (father of the plaintiffs), Laxman Krishna Shippurkar, Irappa Ramappa Shippurkar, Amrut Rama Shippurkar and Vasu Rama Shippurkar along with the brother of the plaintiffs executed an agreement of sale for valuable consideration through their power of attorney in respect of the suit land in favour of the defendant, and his two brothers. It is contended by the defendant that the defendant and his brothers are in actual possession and -4- NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 enjoyment of the suit schedule property and he is a bonafide purchaser of the suit land for valuable consideration.
5. The Trial Court on the basis of the pleadings framed the following issues:
1. "Whether the Plaintiffs prove that they are the owners in actual possession and enjoyment of the suit schedule property as on the date of the suit?
2. Whether the Plaintiffs prove that Defendant has interfered with their peaceful possession and enjoyment of the suit property?
3. Whether the Defendant proves that he is a bonafide purchaser of the suit property for valuable consideration and he is in possession of the same since from the date of purchase?
4. Whether Plaintiffs are entitled for the Permanent Injunction as prayed?
5. What order or decree?"
6. In order to substantiate their claim, plaintiff No.2 examined herself as P.W.1 and got marked documents as Exs.P.1 to P.11. On the other hand, defendant examined himself as D.W.1 and got marked documents at Exs.D.1 to D.3.-5-
NC: 2023:KHC-D:12924 RSA No. 100002 of 2014
7. The Trial Court on the basis of the pleadings, oral and documentary evidence held that:
i) The plaintiffs proved that they are the owners in actual possession and enjoyment of the suit schedule property as on the date of the suit;
ii) The plaintiffs proved that the defendant has interfered with the peaceful possession and enjoyment of the suit schedule property;
iii) The defendant has failed to prove that he is a bonafide purchaser of the suit schedule property for valuable consideration and he is in possession since from the date of purchase.
And by judgment and decree, the Trial Court decreed the suit of the plaintiffs for permanent injunction, restraining the defendant or any other persons disturbing the peaceful possession, use and enjoyment of the plaintiffs in respect of the suit property.
8. Aggrieved by the same, the defendant preferred the regular appeal before the First Appellate Court. -6-
NC: 2023:KHC-D:12924 RSA No. 100002 of 2014
9. The First Appellate Court re-appreciated and reassessed the entire oral and documentary evidence independently and concurred with the judgment and decree of the Trial Court. Aggrieved by the concurrent findings of facts of the Courts below, the present second appeal by the defendant.
10. Heard Sri. Anand Ashtekar, learned counsel appearing for the appellant and Sri. Santosh B. Rawoot, learned counsel for the respondents.
11. Learned counsel for the appellant would contend that the Courts below have failed to consider the categorical admission of P.W.1, who categorically stated that the plaintiffs were not residing in the suit property, however, make a frequent visit to the suit property. Learned counsel would contend that the execution of the agreement of sale itself has been denied by P.W.1 and also pleaded ignorance of agreement of sale and on this aspect, the Courts below have lost sight of the same. -7-
NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 Learned counsel for the appellant would contend that Ex.D.1-agreement of sale, which clearly evidences about the delivery of possession in favour of the appellant and would seek for protection of possession of the suit land invoking Section 53A of the Transfer of Property Act, 1882. Stating these grounds, learned counsel for the appellant would submit that the substantial questions of law arise in this appeal to be considered.
12. Per contra, learned counsel for the respondents would justify the judgment and decree of the Trial Court and the First Appellate Court and would contend that the concurrent findings of the Courts below do not call for any interference, more particularly when the defendant is claiming his right over the suit land by way of an agreement of sale, which is an unregistered document and not duly stamped and the same cannot be looked into for collateral purposes and no substantial question of law arises for consideration in this appeal and sought for dismissal of the appeal.
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014
13. This Court has carefully considered the rival contentions urged by the learned counsel appearing for the parties and perused the material on record including the original records.
14. Undisputed facts are that, one Narayan Krishna Shippurkar, the father of the plaintiffs was the absolute and exclusive owner of the agricultural land bearing R.S. No.191/A/1 measuring 13 guntas situated at Belgavi. The defendant claims to have purchased the suit property from the father of the plaintiffs under the agreement of sale for valuable consideration. The defendant has set up possession on the ground of an agreement of sale and the agreement of sale is an unregistered document and not duly stamped, however, the same got marked as Ex.D.1. The defendant claims to be a bonafide purchaser of the suit land for valuable consideration from the brother of the plaintiffs and the father of the plaintiffs as per Ex.D.1, which is an agreement of sale. The material on record would evidence that the Trial Court, while holding that the -9- NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 plaintiffs were the owners in actual possession of the suit property, on issue No.1, has categorically taken into consideration the evidence of P.W.1 and the admission given by D.W.1 during his cross-examination. The learned counsel for the appellant impresses upon this Court about the admission given by P.W.1 in the cross-examination, the perusal of the evidence clearly evidences, that though she has stated that she is not residing in the house property, it cannot be assumed that the plaintiffs are not in possession over the suit schedule property as contended by the defendant. The sole reliance placed by the defendant is Ex.D.1 to contend that he is put in possession of the suit property, Ex.D.1 is not duly stamped. The said exhibit cannot be looked into even for collateral purposes to arrive at the conclusion that the defendant is in possession of the suit schedule property, leave apart the claim that defendants have title.
15. Section 17 of the Registration Act, 1908 reads as under:
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 "17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (l) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or [(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
[Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered."
(Emphasis supplied)
16. Section 49 of the Registration Act, 1908 reads as under:
"49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.]"
17. A perusal of the proviso (1A) of Sec. 17 would emphasize the necessity of the registration of the document any immoveable property for the purpose of section 53A of the transfer of property Act, 1882 and claiming possession on the basis of an unregistered agreement of sale, cannot have effect for the purposes of the said section 53A. The settled proposition of law is that when a person seeks an injunction, he has to prove his
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 possession, as on the date of the suit, the material on record clearly evidences that the plaintiffs' possession has been established by the materials, more particularly the evidence of P.W.1 and P.W.2 and the granting of occupancy rights in favour of the father of the plaintiffs as per Ex.P.1. A mere agreement of sale would not confer any right in favor of the defendant to arrive at the conclusion that he is a bona fide purchaser of the suit property for valuable consideration and his possession cannot be established as per Ex.D.1, which is an unregistered document.
18. The plaintiffs have established their possession and the interference by the defendant over the suit schedule property and the Trial Court has rightly arrived at the conclusion that the plaintiffs are entitled for the decree as could be seen from the findings of the Trial Court.
19. The First Appellate Court has reassessed and re-appreciated the entire oral and documentary evidence being the last fact finding Court and the manner in which
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NC: 2023:KHC-D:12924 RSA No. 100002 of 2014 the Courts below have taken into consideration the entire oral and documentary evidence, this Court is of the considered view that the concurrent findings of the facts of the Courts below does not call for any interference to be dealt with under Section 100 CPC and there is no perversity in the order passed by the Courts below, no substantial question of law arises for consideration in the present appeal. Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed.
(ii) The judgment & decree passed by the Courts below stands confirmed.
Sd/-
JUDGE MBM List No.: 1 Sl No.: 50