Karnataka High Court
Sri Papaiah @ Papanna Alias Bale Papanna vs Smt Parvathamma Since Deceased By Lrs ... on 3 February, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 960 OF 2011 (INJ)
C/W
R.S.A.NO.383 OF 2011 (INJ)
IN R.S.A.No.960/2011
BETWEEN:
SRI PAPAIAH ALIAS PAPANNA
ALIAS BALE PAPANNA,
S/O LATE RAMAIAH,
AGED ABOUT 60 YEARS,
R/AT BUDDIGERE VILLAGE,
CHANNARAYAPATNA HOBLI,
DEVANAHALLI TALUK.
...APPELLANT
(BY SRI. B.KRISHNEGOWDA, ADVOCATE)
AND:
SMT PARVATHAMMA,
SINCE DECEASED BY LRS
SRI SHASHIDHAR
S/O VENUGOPAL NAIDU,
AGED ABOUT 52 YEARS,
R/AT NO.1782, JUDICIAL LAYOUT,
G.K.V.K. POST, YELAHANKA,
BANGALORE -560 032.
...RESPONDENT
(BY SRI. B.MANJUNATH & ASSOCIATES FOR C/R)
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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGMENT & DECREE DATED 02.02.2011 PASSED IN
R.A.NO.298/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III BANGALORE RURAL
DISTRICT, BANGALORE, ALLOWING THE APPEAL AND
DISMISSING THE COUNTER CLAIM FILED AGAINST THE
JUDGMENT AND DECREE DATED:06.10.2009 PASSED IN
O.S.NO.164/2006 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND J.M.F.C. DEVANAHALLI.
IN R.S.A.NO.383/2011
BETWEEN:
SRI PAPAIAH ALIAS PAPANNA
ALIAS BALE PAPANNA,
S/O LATE RAMAIAH,
AGED ABOUT 60 YEARS,
R/AT BUDDIGERE VILLAGE,
CHANNARAYAPATNA HOBLI,
DEVANAHALLI TALUK-562 110.
...APPELLANT
(BY SRI. B.KRISHNE GOWDA, ADVOCATE FOR
SRI. C.RAGHAVENDRA, ADVOCATE)
AND:
SMT PARVATHAMMA,
SINCE DECEASED BY LRS
SRI SHASHIDHAR
S/O VENUGOPAL NAIDU,
AGED ABOUT 52 YEARS,
R/AT NO.1782, JUDICIAL LAYOUT,
G.K.V.K. POST, YELAHANKA,
BANGALORE -560 065.
...RESPONDENT
(BY SRI. B.MANJUNATH, ADVOCATE FOR C/R)
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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGMENT & DECREE DATED 02.02.2011 PASSED IN
R.A.NO.250/2009 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III BANGALORE RURAL
DISTRICT, BANGALORE, ALLOWING THE APPEAL FILED
AGAINST JUDGMENT AND DECREE DATED:06.10.2009
PASSED IN O.S.NO.164/2006 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) AND J.M.F.C. DEVANAHALLI.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 31.01.2023, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two captioned appeals are filed by defendant in O.S.No.164/2006 questioning the divergent findings of the Courts below wherein the appellate Court has allowed both the appeals filed by plaintiff thereby suit in O.S.No.164/2006 filed by plaintiff seeking declaration of title and injunction is decreed and counter claim filed by defendant seeking bare injunction against plaintiff is dismissed.
2. For the sake of convenience the parties are referred to as per their rank before the trial Court in O.S.No.164/2006.
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3. Plaintiff has instituted the suit in O.S.No.164/2006 seeking relief of declaration and injunction. Plaintiff is asserting title on the basis of the registered sale deed dated 3.2.2001 executed by defendant through GPA holder namely L.R. Poornima. Plaintiff also contended that pursuant to execution of registered sale deed, defendant also handed over all title documents including the sale deed dated 20.3.1968. The present suit is filed alleging that defendant and his supporters on 14.2.2001 tried to tress pass into the suit schedule property.
4. On receipt of summons, defendant tendered appearance and filed written statement. The defendant has seriously disputed the sale deed dated 3.2.2001. Defendant contended that he is poor and illiterate person and has availed hand loan of Rs.25,000/- from the original plaintiff Parvathamma. 5 The defendant claimed that the original plaintiff Parvathamma insisted for deposit of title deeds and therefore reposing confidence in her, he deposited title deeds while availing hand loan of Rs.25,000/-. Defendant further contended that as he was unable to repay the money within six months. The original plaintiff Parvathamma has taken undue advantage of title documents deposited with her and has concocted a GPA in her daughter-in-law's name and has got the property registered in her name. The defendant seriously disputed execution of GPA in favour of one L.R. Poornima and therefore, stated in the written statement that he is ready to repay the hand loan of Rs.25,000/- to the L.R's of deceased plaintiff. Defendant contended that the sale deed 3.2.2001 is not binding on him and sought for dismissal of the suit.
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5. Defendant by way of counter claim denied the execution of registered sale deed in favour of deceased plaintiff and claimed to be in lawful possession and prayed for perpetual injunction.
6. Plaintiff and defendant to substantiate their respective claims let in oral and documentary evidence. The trial Court having assessed the pleadings of the parties and oral and documentary evidence answered Issue Nos.1 to 3 in the negative and issue Nos.4 to 6 in the affirmative. The trial Court while answering issue Nos.1 to 3 in the negative held that original plaintiff has failed to prove that she has purchased the property from defendant under registered sale deed dated 2.3.2001. While answering Issue No.2 in the negative, the trial Court held that the defendant has failed to prove alleged interference by the defendant and has consequently held that the 7 plaintiffs are not entitled for relief of declaration of title.
7. The trial Court taking note of the fact, that only one son of Parvathamma has come on record and other Class-I heirs have not joined, was of the view that the present suit is bad for non-joinder of necessary parties. The trial Court while examining the genuineness of GPA vide Ex.P3 was of the view that due execution of the GPA vide Ex.P3 is not proved. The trial Court drew adverse inference against plaintiff for having not examined the witnesses to the GPA. An adverse inference was also drawn by the trial Court against the plaintiff in not securing the forensic expert's report as defendant has claimed that he has signed on blank stamp papers and that he has signed the said GPA only on the first page and not on all the pages. The trial Court has also proceeded to doubt the transaction vide Ex.P2 on the premise that 8 though sale consideration was paid even in respect of survey No.77 which is not the subject matter of present suit, original plaintiff has not completed the transaction by obtaining registered sale deed in respect of Survey No.77. A specific finding is recorded by the trial Court that plaintiff for reasons best known to her had not secured sale deed in respect of Schedule 'B' and 'C' properties on the basis of the GPA vide Ex.P3 and therefore, held that plaintiff has not come to the Court with clean hands.
8. The trial Court has also recorded a finding that the alleged payment of sale consideration of Rs.94,000/- is not proved by the plaintiff while defendant has succeeded in proving that he had availed loan of Rs.25,000/- from the original plaintiff Parvathamma. Referring to all these significant details, the trial Court held that plaintiff has failed to prove that original plaintiff Parvathamma purchased 9 the suit schedule property from the defendant under the registered sale deed dated 3.2.2001 and that she is in lawful possession and enjoyment of the suit schedule property. The trial Court has also held that plaintiff has failed to prove the genuineness of Ex.P11 which is a consideration receipt and also GPA dated 1.11.1996 vide Ex.P3. Consequently, the suit filed by plaintiff in O.S.No.164/2006 was dismissed and counter claim was allowed granting perpetual injunction in favour of the defendant.
9. The appellate Court on re-appreciation of entire evidence on record however was not inclined to concur with the findings and conclusions arrived at by the trial Court. The appellate Court referring to original sale deed dated 3.2.2001 vide Ex.P2 was of the view that the registered sale deed in favour of plaintiff has gone unchallenged. The appellate Court was of the view that if the sale deed in favour of 10 plaintiff has gone unchallenged when defendant had an opportunity while setting up counter claim to question the registered sale deed and GPA, the defendant has waived off his right and has only sought perpetual injunction. It is in this background, the appellate Court was of the view that unless registered sale deed dated 3.2.2001 and the GPA based on which the sale deed is executed are set aside by the competent Court, the plaintiff cannot be non-suited. The appellate Court was of the view that the finding of the trial Court that plaintiff has failed to establish that she had purchased the schedule property under the registered sale deed and that Ex.P3 is concocted is palpably erroneous and suffers from perversity. Therefore, the appellate Court was of the view that the judgment and decree of the trial Court is not at all sustainable.
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10. Insofar as finding recorded on non-joinder of necessary parties, the appellate Court held that it was nobody's case and in absence of issue regarding the non-joinder of necessary parties, the finding of the trial Court that the suit is bad for non-joinder of necessary parties is not at all sustainable. It is on these set of reasonings, the appellate Court having taken a contrary view proceeded to reverse the decree rendered by the trial Court in O.S.No.164/2006 as well as on counter claim. Consequently, the plaintiff's suit for declaration and injunction was decreed and the defendant's counter claim seeking bare injunction was dismissed.
Feeling aggrieved by the said judgment and decree of the appellate Court, the present second appeals are preferred by the defendant.
11. This Court vide order dated 23.2.2015 in RSA.No.383/2011 and on 13.1.2017 in 12 RSA.No.960/2011 respectively has admitted the appeals on following substantial question of law: IN RSA.383/2011
"Whether the judgment and decree of the First Appellate Court is perverse in holding that Exs.P2 and P3 convey valid title to the plaintiff?IN RSA.No.960/2011
"Whether the judgment and decree of the First Appellate Court in holding that Exs.P2 and P3 would convey the valid title to the plaintiff is sustainable in law?"
12. Heard the learned counsel for defendant and the learned counsel for plaintiff.
13. Plaintiff is asserting title on the basis of the registered sale deed dated 3.2.2001 for sale consideration of Rs.94,000/- through GPA. Therefore, the entire basis and foundation in asserting title over 13 property is based on the registered sale deed dated 3.2.2001. While defendant though has denied the execution of sale deed in favour of plaintiff has admittedly not challenged the sale deed and the GPA. It is a trite law that where title is transferred under registered sale deed, then the transferee acquires valid right and title. Therefore, it was incumbent on the part of the defendant to question the GPA and registered sale deed in favour of plaintiff. Moment the registered sale deed is executed, the property forthwith stood transferred in favour of plaintiff including all interest that defendant possessed prior to transfer under registered sale deed dated 3.2.2001.
14. Merely because the defendant is denying execution of GPA and consequent registered sale deed in favour of plaintiff, that in itself, will not create cloud over plaintiff's title. If defendant had chosen to question the sale deed and GPA, then the vesting of 14 title in favour of plaintiff based on registered sale deed dated 3.2.2001 would have been subject to the challenge made by defendant, if any. On the contrary, the defendant has chosen to file only a bare suit for injunction.
15. Plaintiff in O.S.No.164/2006 has instituted a comprehensive suit seeking relief of declaration and injunction. The suit is instituted on 16.2.2001. Therefore, as on 16.2.2001, plaintiff asserted title based on registered sale deed dated 3.2.2001. Therefore, if defendant is questioning GPA and sale deed, then he ought to have brought a suit seeking relief of declaration questioning GPA and consequent sale deed based on GPA. Unless the sale deed in favour of plaintiff is set aside by competent Court, defendant cannot resist the title suit initiated by plaintiff. The registered sale deed based on GPA is not a void ab initio document. Defendant at para 4 of the 15 written statement has contended that GPA is a concocted document. When a theory of concoction is set up by a party, the burden lies on the party alleging fraud and concoction. When a title document like a sale deed is affecting a transferor/owner, he has to bring in a suit seeking either cancellation of transaction or has to seek a relief of declaration that the sale deed is not binding. Therefore, this Court is of the view that the defendant ought to have filed the suit questioning the sale deed and the GPA within three years of the knowledge of the fact that the transaction which according to the defendant is void or voidable. Therefore, defendant was bound to challenge the GPA dated 1.11.1996 vide Ex.P3 and consequent sale deed dated 3.2.2001 vide Ex.P2 by seeking appropriate relief of declaration. It is a trite law that a registered sale deed is a valid document unless it is declared void by the Court. The tenor of 16 defence raised by the defendant indicates that the sale deed in favour of plaintiff is a voidable document. Therefore, in case of a voidable instrument, there must be a judicial avoidance or cancellation of the instrument by way of a full fledged adjudication by a competent civil Court. Though parties are litigating since 2006, till this date the defendant has not chosen to question the GPA and the sale deed. Mere denial of GPA in itself is not sufficient. Therefore, it was incumbent on the part of the defendant to institute a proper suit and challenge the GPA. The defendant by mere denial cannot assert that it is a non-existent document.
16. In the light of the foregoing discussions made supra, I am of the view that the judgment and decree rendered by the Court of first instance in O.S.No.164/2006 and also counter claim suffers from serious perversity. There is no proper appreciation of 17 evidence by the trial Court. Lot of discussions has gone into in regard to the oral evidence let in by both the parties when the actual lis should have been decided based on title documents. Once defendant sets up a plea that GPA is a concocted document, it was incumbent on the defendant to question the GPA and consequent sale deed by filing a separate suit. Appellate Court has rightly reversed the findings of the Courts below. Referring to title document, appellate Court was of the view that plaintiff under registered sale deed dated 3.2.2001 has acquired title. Appellate Court also held that the recitals in the registered sale deed vide Ex.P2 indicates that defendant has parted with possession. It is in this background, the appellate Court held that unless the sale deed and GPA are set aside or declared as null and void, plaintiff cannot be non-suited. 18
17. In the light of the discussions made supra, the substantial question of law framed by this Court in both the appeals is answered in negative and against the defendant.
18. Accordingly, I pass the following:
ORDER The second appeals are dismissed.
Sd/-
JUDGE *alb/-