Karnataka High Court
Sri.Siddaramaiah vs Siddagangamma (Dead) W/O K.H. ... on 11 September, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL NO.1438/2009
BETWEEN:
SRI. SIDDARAMAIAH
S/O HUCHAPPA
AGED ABOUT 64 YEARS
R/AT "SHIVAKUMARSWAMY
NILAYA", 6TH CROSS
OPP: GOVT. COLLEGE
SIDDAGANGA EXTENSION
NOW CALLED AS ASHOKNAGAR
TUMKUR-572101.
...APPELLANT
(BY SRI.S. NAGARAJA, ADVOCATE)
AND:
SIDDAGANGAMMA
(DEAD)
W/O K.H. SHIVALINGAIAH
1. SRI. SIDDESH
S/O LATE K.H. SHIVALINGAIAH
AGED ABOUT 31 YEARS
R/O KAGGERE VILLAGE
BELLAVI HOBLI
TUMKUR TALUK-572153.
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2. SMT. KUSUMA
W/O PRABANNA
D/O K.H. SHIVALINGAIAH
AGED ABOUT 38 YEARS
R/AT 'B' PALYA, SEETIKERE
VILLAGE, C.N. HALLI TALUK
PIN-572214
3. SMT. LATHA
W/O UMESH
D/O K.H. SHIVALINGAIAH
AGED ABOUT 36 YEARS
R/AT BELLAVI VILLAGE
TUMKUR TALUK-572153.
4. SMT. REKHA
D/O LATE K. H. SHIVALINGAIAH
AGED ABOUT 33 YEARS
R/AT KAGGERE VILLAGE
BELLAVI HOBLI
TUMKUR TALUK-572153.
...RESPONDENTS
(BY SRI.D.L. SURESH, ADVOCATE FOR C/R1-3)
THIS APPEAL IS FILED UNDER SECTION 100 OF
C.P.C. PRAYING AGAINST THE JUDGMENT & DECREE
DATED 05.10.2009 PASSED IN R.A.NO.136/2006 ON
THE FILE OF THE II ADDL. DISTRICT JUDGE, TUMKUR,
DISMISSING THE APPEAL AND FILED AAINST THE
JUDGMENT AND DECREE DATED 28.02.2006 PASSED
IN O.S.NO.199/1995 ON THE FILE OF THE PRL. CIVIL
JUDGE (SR. DN) AND CJM, TUMKUR.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Following substantial questions of law would arise for consideration:
(i) Whether Courts below were correct in holding that agreement of sale dated 30.01.1981-Ex.D-6 was compulsorily registerable document under Indian Registration Act, 1908 though Section 17-1A was inserted by Act 48 of 2001 w.e.f. 24.09.2001?
(ii) Whether Courts below were justified in decreeing the suit by discarding/ ignoring the defence raised by defendant pressing in to service Section 53A of the Transfer of Property Act, 1882?
2. Since this second appeal is of the year 2009 and records having been secured, learned Advocates appearing for parties namely, Sri. S. Nagaraja appearing for appellant and Sri.D.L.Suresh appearing for 4 respondents have been extensively heard on substantial questions of law formulated hereinabove and this appeal is disposed of by the following order.
Parties are referred to as per their rank in the trial Court.
BRIEF BACKGROUND OF THE CASE:
3. Sri.K.H.Shivalingaiah (original plaintiff) and Sri.Siddaramaiah (defendant/appellant) are uterine brothers. Plaintiffs filed a petition for eviction of defendant from property bearing No.6041-A/5104, 6th Cross, Siddaganga Extension (Ashoka Nagar), Tumkur morefully described in the plaint schedule (hereinafter referred to as suit schedule property for the sake of convenience) in HRC No.52/1989 under Section 21(1)(a) of Karnataka Rent Control Act, 1961, contending interalia that respondent/defendant is his tenant on a monthly rent of `500/- and her husband had expired on 10.07.1987. Subsequent to his demise respondent had not paid any rents and he is liable to pay arrears to the tune of `500/- and also contending that she would 5 require premises for her own use and occupation. Said petition was resisted to by the respondent i.e., appellant herein by filing detailed statement of objections denying the jural relationship and also contending that during the lifetime of plaintiff i.e., Sri.K.H.Shivalingaiah, he had executed an agreement of sale on 30.01.1981 in favour of defendant - Sri Siddaramaiah and had received a consideration of ` 90,000/- and agreed to receive balance consideration of `10,000/- at the time of execution of sale deed and as such defendant is in possession of suit schedule property in part performance of said agreement of sale.
4. Parties went to trial and learned trial Judge after evaluating the evidence both oral and documentary tendered by parties has categorically held that purported agreement of sale was not proved by the respondent. However, on the ground that there was a serious dispute with regard to jural relationship between parties and petitioner has failed to establish that respondent was a tenant under the agreement of 6 sale, trial Court rejected the eviction petition by observing that petitioner has to take steps to recover possession of suit schedule property in accordance with law. It is thereafter plaintiff instituted the suit in question i.e., O.S.No.199/1995 for declaring that plaintiffs have title to suit property and entitled for possession and sought for award of mesne profits. Defendant after service of suit summons appeared and filed written statement and denied the averments made in the plaint except to the extent expressly admitted thereunder.
5. On the basis of pleadings of parties, following issues came to be framed;
(i) Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
(ii) Whether defendant proves that
husband of the 1st plaintiff has
executed an agreement of sale in
favour of the defendant on 30.01.1981?
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(iii) Whether plaintiff is entitled for relief of declaration and possession of the suit schedule property?
(iv) What decree or order?
6. Parties went for trial and first plaintiff namely, sister-in-law of defendant got herself examined as P.W.1 and got marked Exs.P-1 to P-15. Though D.W.1 filed an affidavit in lieu of examination-in-chief and partly cross examined, did not tender himself for further cross-examination on the ground of ill-health and as such, evidence tendered by D.W.1 has been expunged by the learned trial Judge. After evaluating the entire evidence both oral and documentary by judgment dated 28.02.2006 suit came to be decreed as prayed for by granting three (3) months time to defendant to quit and handover vacant possession of suit premises to plaintiffs.
7. Being aggrieved by the judgment and decree passed in O.S.No.199/1995, defendant preferred an appeal in R.A.NO.136/2006. Lower Appellate Court 8 After securing the records from trial Court and considering the grounds urged in the appeal memorandum and on appreciation of entire evidence, formulated following points for its adjudication:
(i) Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
(ii) Whether defendant proves that
husband of the 1st plaintiff has
executed an agreement of sale in
favour of the defendant on 30.01.1981?
(iii) Whether plaintiff is entitled for relief of declaration and possession of the suit schedule property?
(iv) What decree or order?
8. The lower Appellate Court by its judgment and decree dated 5.10.2009 while dismissing the appeal filed by the defendant and confirming the judgment and decree of the trial Court, has taken note of the oral arguments advanced by the learned counsel for the appellant on the question of law namely with regard to the admissibility of document dated 28.8.1998 - Ex.P.8 to confirm the judgment of the trial Court. On the said 9 issue, trial Court had held that it is an unregistered document and it was compulsorily registerable. In other words, lower Appellate Court has held the said document is compulsorily registerable and was not admissible in evidence. Like wise, on the issue of defendant raising a plea of presumption by pressing applicability of Section 53 A of the Transfer of Property Act (for short 'TP Act') has held that a person like the defendant can protect his possession against the forcible dispossession and same cannot be used as a sword but as a shield. In the light of the aforesaid findings recorded by the lower Appellate Court and considering the grounds urged in the appeal memorandum, this Court formulated the substantial questions of law as noticed above.
RE: SUBSTANTIAL QUESTION OF LAW NO.(1):
9. At the outset, it requires to be noticed that the plaintiffs are none other than sister-in-law of the defendant. Before initiating eviction proceedings against the defendant by filing an eviction petition 10 under Section 21(1)(a) and 21(1)(h) of the Karnataka Rent Control Act in HRC No.52/1989, plaintiff got issued a legal notice to defendant on 15.5.1989 as per Ex.D.8. Same came to be replied by the defendant on 29.05.1989 and another reply was also issued on 29.6.1989 vide Exs. D.9 and D.10, respectively. In none of these reply notices, plea with regard to an agreement of sale dated 30.1.1981 Ex.D.6 said to have been executed by late Shivalingaiah came to be raised.
10. Be that as it may. Sub-section 1A of Section 17 of the Registration Act came to be incorporated by Act 48 of 2001 with effect from 24.8.2001 whereunder the contract or agreement entered into for transfer of an immovable property was made compulsorily registerable for the purpose of Section 53A of TP Act. If such document/s is/are executed on or before commencement of the Registration and Other Related Laws (Amendment) Act, 2001 it would be compulsorily registerable as otherwise, it would have no effect for the purpose of Section 53A of the TP Act. In other words, 11 where a plea is sought to be put forth, Section 53A of TP Act is concerned, on the basis of an agreement of sale, then in such circumstances, the propounder of such document will have to necessarily establish that said document is duly registered in the event of such document having come to existence subsequent to 24.9.2001. However, if the said document has come into existence prior to incorporation of sub-section (1A) of Section 17 of TP Act i.e., prior to 24.08.2001, such plea though raised would be of no avail. However if such defence is not taken or the document is relied upon for the purpose of contending the existence of relationship of vender and vendee, then necessarily admissibility of such document will have to be examined dehors sub-
Section (1A) of Section 17. Section 17(1)(b) of the Registration Act, 1908 clearly mandates that where any non-testamentary instrument 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 then in such 12 circumstances the document is compulsorily registerable. There cannot be dispute to said proposition of law.
11. Thus from the above analysis of law, facts of present case will have to be examined. In order to stave off plaintiff's claim for possession of suit schedule property, defendant has pressed into service (1) agreement of sale dated 31.1.1981 - Ex.D.6 executed by husband of the first plaintiff; and (2) by virtue of said agreement of sale and in part performance of said sale agreement, defendant has been in possession of the suit schedule property. In so far as reliance placed on the said document by taking recourse or relying upon sub- section (1A) of Section 17 deserves to be accepted. In other words, defendants are right in contending that agreement of sale having been executed prior to sub- section (1A) of Section 17 came to be incorporated and as such it was not a compulsorily registerable document, consequently plea available under Section 53A of TP Act can be pressed into service by defendant. 13 In the light of aforestated discussion, this Court is of the considered view that a finding recorded by the first appellate court that agreement of sale dated 30.01.1981-Ex.D-6 was compulsorily registerable when the defendant has set up a plea under Section 53-A of the Transfer of Property Act, 1882, cannot be sustained. Hence, substantial question of law No.1 is answered in favour of appellant and against the respondent. RE-SUBSTANTIAL QUESTION OF LAW NO.2:
12. As noticed herein, in reply to the eviction notice which was caused by the plaintiff on 15.5.1989 as per Ex.D.8 which came to be replied by defendants as per Exs.D.9 and D.10, there is not even a whisper about execution of agreement of sale dated 30.1.1981.
For the first time when a suit for eviction came to be filed by the plaintiff in HRC.No.52/1989 such a plea was raised, Hence, burden was rightly cast on the defendant to prove execution of said agreement of sale which was held as not proved by the learned trial Court which adjudicated HRC.No.52/1989.
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13. It was observed by the learned Judge who adjudicated the HRC proceedings that defendant though claimed Rs.90,000/- had been paid to plaintiff, no material was placed to show that same had been paid either by way of Demand Draft or cheque and no material was produced to establish said fact. It is further elicited from DW.1 that he is not aware as to where stamp paper came to be purchased. It is pertinent to notice at this juncture that first plaintiff - Smt. Siddagangamma had got issued a legal notice to the defendant as per Ex.D-8. Same was replied by the defendant on 29.05.1989 - Ex.D-9 and 28.06.1989 - Ex.D-10, under which replies there is not even a whisper by the defendant with regard to the alleged agreement of sale dated 30.01.1981 executed by the husband of first plaintiff in his favour. When the plaintiffs have specifically denied the execution of sale dated 30.01.1981-Ex.D-6 it goes without showing that burden was on the defendant to prove the execution of said agreement and the execution of the same has not 15 been proved by the defendant by placing cogent evidence in that regard. In fact, D.W.1 has not tendered himself for cross-examination and as such, his evidence has remained as a plea without proof. None of the witnesses to the said document were examined by the defendant. Thus, both the Courts have rightly held that execution of Ex.D-6 is not proved. The documents produced are to be considered as for the purpose of whether there is any relationship of land lord and tenant.
14. It is in this background the learned trial Judge in a summary proceeding had observed that a finding cannot be regarded with agreement of sale propounded by the respondent and held in the absence of any positive evidence with regard to jural relationship of landlord and tenant, eviction petition cannot be allowed. Hence, learned trial Judge had not entertained the eviction petition and had dismissed the same as not maintainable.
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15. In that view of the matter, burden of proving agreement of sale dated 30.01.1981 - Ex.D-6 was on defendants. At this stage, it is appropriate to notice that relationship between the parties were strained. In other words, parties were not in good terms. In fact, plaintiff's husband who is none other than brother of defendant came to be murdered and defendant was the prime accused. In this background, it cannot be said that all was well within the family and there is no dispute about sale deed of suit schedule property being in favour of plaintiff's husband. In other words, when the relationship was strained between brothers, first plaintiff's husband executing an agreement of sale in favour of defendant creates lot of doubt. In other words, there was heavy burden on the defendant to prove execution of the said agreement of sale. Coupled with this fact, yet another glaring aspect which cannot go unnoticed is that on eviction notice being issued by the plaintiff to defendant by calling upon him to quit, vacate and hand over vacant possession of the suit property by legal notice dated 15.5.1989 which came to 17 be replied on 29.5.1989 and 28.6.1989 as per Exs.D.9 and D.10, respectively. Here is not even a whisper with regard to execution of said agreement of sale. If really such an agreement of sale had been executed by the husband of first plaintiff, nothing prevented the defendant in saying so in the reply notices. However, this was not done. It is only after the suit for ejectment was filed, such a plea came to be raised in the objection statement filed in the eviction proceedings.
16. However, learned counsel for the appellant - defendant has made an attempt to assail the judgment and decree passed by the trial Court as affirmed by the lower Appellate Court contending inter alia that evidence tendered in a collateral proceedings is but piece of evidence and one Sri Nanjundaiah who came to be examined as R.W.2 in HRC No. 52/1989 had clearly stated about execution of said agreement. Therefore, same being best piece of admission elicited, a presumption in its favour has to be drawn as contemplated under Section 80 of the Evidence Act 18 which has been completely ignored by the courts below and as such this Court is empowered to look into said evidence for the purposes of appreciation of said evidence whereunder he has categorically stated that plaintiff had executed said agreement of sale - Ex.D-6 in favour of defendant. Though at first blush said argument looks attractive, it requires to be rejected for the simple reason that deposition of Sri. K H Nanjundaiah (who was examined as R.W.2 in H.R.C.No.52/1989) cannot be eschewed, inasmuch as, he has not tendered himself for cross examination in full and as such, appellate court has rightly expunged his evidence or in other words, it has ignored said evidence available on record and rightly so. In fact, it would be appropriate to note at this juncture itself two applications were filed seeking for recalling said order expunging evidence of D.W.1 and to permit himself to tender for cross examination and same came to be rejected by trial Court and said order has reached finality. Explanation offered for not tendering himself for cross examination has not been rightly accepted by 19 the trial Court as well as by appellate Court and said finding of fact is based on sound appreciation of facts which do not call for interference. In this background, it has to be necessarily held that purported agreement of sale dated 30.01.1981 relied upon by the defendant to contend defendant would be entitled to defend their possession cannot be accepted; since (a) agreement of sale remained as a document without proof; (b) in none of the collateral proceedings, execution of agreement of sale - Ex.D-6 has been accepted; (c) plaintiffs have nowhere admitted execution of said agreement of sale by Sri Shivalingaiah in favour of defendant; (d) at the first available opportunity, defendant has not pleaded about existence of said agreement of sale. Apart from the above stated facts, defendant has utterly failed to establish, demonstrate or prove execution of the agreement of sale - Ex.D-6 by the husband of first plaintiff in favour of his brother - defendant.
17. It is further contended by Sri Nagaraj, learned Advocate appearing for appellant that though 20 defendant has lost his right to seek enforcement of performance of agreement of sale - Ex.D-6, his right to protect his possession over suit schedule property is not lost and has relied upon judgment of Full Bench of this Court in the case of NARASIMHASETTY VS.
PADMASETTY reported in ILR 1998 KAR 3230. There cannot be any dispute with regard to the said proposition at all. Section 53A of TP Act when pressed into service, conditions which are required to be fulfilled in the event of transferor attempting to dispossess the transferee are (a) there must be contract of transfer for consideration of an immovable property; (b) contract must be in writing signed by the transferor or by some one on his behalf ; (c) writing must be in such words from which terms necessary to construe the transfer can be ascertained; (d) transferee in part performance of the contract must have taken possession of the property or any part thereof; (e) transferee must have done some act in furtherance of such contract; and (f) transferee must have performed or be willing to perform his part of the contract.
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18. In this background, when the judgment relied upon by learned counsel for the appellant is perused, it would clearly disclose that in the said case, two pleas were raised namely, (1) with regard to there being a registered deed of mortgage/hypothecation dated 09.04.1973 by delivery of possession of the suit property pursuant to which agreement of sale dated 29.12.1973 having come into existence between the parties and full consideration having flown under the said document. In other words, there was no dispute between the parties with regard to agreement of sale transaction. It is in this background, defendant had pressed into service section 53A of the Act, which was negatived by the lower appellate Court had been reversed by this Court on reference to the Full Bench holding that right of transferee to defend his possession envisaged in Section 53 of TP Act is statutory in nature and it has not been subjected to any limitation either express or implied. As already observed herein above, there cannot be any dispute with regard to this 22 proposition of law. However, in the facts and circumstances of the present case, as noticed herein above and at the cost of repetition, it has to be held that very existence of agreement of sale is in serious doubt or dispute; same has been denied emphatically by the plaintiff; for the first time in the objection statement filed in H.R.C.No.52/1989, such a plea came to be raised by defendant; though defendant has replied to the eviction notice by reply notices - Exs.D-9 to D-10, yet did not raise any plea with regard to execution of agreement of sale by plaintiff in favour of defendant.
19. Yet another intriguing fact which cannot go unnoticed is that defendant having claimed to have been put in possession of suit schedule property by virtue of agreement of sale - Ex.D-6 which was stoutly denied by the plaintiff has not established or proved this fact. In other words, evidence tendered by the defendant has rightly not been accepted by both the Courts as already discussed herein above. In order to press Section 53A of T.P.Act into service, defendant has 23 not done any act in furtherance of alleged agreement of sale (though very execution of agreement is not admitted by the plaintiff). When defendant claims to have paid total consideration of Rs.90,000/- to the plaintiff, the least that was expected of the defendant was to prove the payment of said amount, which was not done. Hence, contention of learned Advocate appearing for the appellant cannot be accepted.
20. Hon'ble Apex Court in the case of FGP LTD., VS. SALEH HOOSEINI DOCTOR AND ANR., reported in 2009 AIR SCW 6026 has held that Section 53A of T.P.Act is based upon equitable doctrine of part performance and held that act or action relied upon as "evidencing part performance" must be of such nature and character that its existence would establish the contract and its implementation. It has been further held that crucial act or action must be of such character and has to be unequivocally referable to the contract as having been performed in performance of the contract or in other words, propounder of doctrine of part performance 24 is required to show that either he has performed or is willing to perform his part of the contract and in this background, when the facts on hand are examined, it leaves no manner of doubt in the mind of this court that no such act said to have been done by parties had been pleaded or there being any evidence available in this regard on record. In that view of the matter also, contention raised by the learned Advocate appearing for appellant cannot be accepted. Thus, it is to be necessarily held that Courts below had not ignored the defence raised by the defendant namely, plea with regard to application of Section 53-A of the TP Act and on appreciating the entire evidence, said plea has been rightly rejected by decreeing the suit. There is no error committed by the Courts below in this regard. Consequently, substantial question of law No.(2) formulated herein above is to be answered against appellant and in favour of respondent - plaintiff.
21. For the reasons aforestated, this court is of the considered view that substantial questions of law 25 No.(1) being answered in favour of appellant on merit, deserves to be dismissed or appeal fails on account of substantial question of law No.(2) answered against appellant.
Hence, I proceed to pass the following:
ORDER (1) Regular Second Appeal is hereby dismissed with costs.
(2) Judgment and decree passed by II Additional District Judge, Tumkur in R.A.No.136/2006 dated 05.10.2009 is hereby affirmed.
(3) Appellant shall pay to respondent costs of this appeal throughout.
SD/-
JUDGE DR/RS/SP