Karnataka High Court
Smt. Muneera Begum W/O Syed Idris Ali vs Smt. Nagamma W/O Pentappa & Ors on 9 February, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL No.7199/2013
CONNECTED WITH
REGULAR SECOND APPEAL No.7200/2013
REGULAR SECOND APPEAL No.7201/2013
REGULAR SECOND APPEAL No.7202/2013
RSA No.7199/2013:
Between:
Smt. Muneera Begum
W/o Syed Idris Ali,
Age: 68 years,
Occ: Agriculture,
R/o Chandapur, Tq: Chincholi,
Dist: Gulbarga - 585 305.
... Appellant
(By Sri S.B Hangarki, Advocate)
And:
1. Smt. Nagamma W/o Pentappa
Age: 61 years,
Occ: Household,
R/o Near Badi-Base Darga,
Darga Road, Chincholi,
Tq: Chincholi
Dist: Gulbarga - 585 307.
2
2. Pentappa S/o Mallappa Uppar
Since Deceased by L.R.
2a. Hanmantha S/o Pentappa
Age: 21 years,
Occ: Agriculture,
R/o Near Badi-Base Darga,
Darga Road, Chincholi,
Tq: Chincholi,
Dist: Gulbarga - 585 307.
3. Smt. Vidyavathi W/o Narsappa Ghali
Age: 40 years, Occ: Agriculture,
R/o Behind Badi Darga,
Ghaliwada, Chincholi,
Tq: Chincholi,
Dist: Gulbarga.
...Respondents
[By Sri Manvendra Reddy, Advocate for R1 & R2 (a);
Sri S.M. Patil, Advocate for R3]
This Regular Second Appeal is filed under Section 100
of CPC, against the judgment and decree dated 28.02.2013
passed in R.A.No.6/2012 on the file of the Senior Civil Judge
at Chincholi, wherein, the appeal was allowed & the
judgment and decree dated 07.01.2012 passed in
O.S.No.72/2007 on the file of the Prl. Civil Judge at
Chincholi was set aside.
RSA No.7200/2013:
Between:
Smt. Muneera Begum
W/o Syed Idris Ali,
Age: 68 years,
3
Occ: Agriculture,
R/o Chandapur, Tq: Chincholi,
Dist: Gulbarga - 585 305.
... Appellant
(By Sri S.B. Hangarki, Advocate)
And:
1. Smt. Nagamma W/o Pentappa
Age: 61 years,
Occ: Household,
R/o Near Badi-Base Darga,
Darga Road, Chincholi,
Tq: Chincholi
Dist: Gulbarga - 585 307.
2. Pentappa S/o Mallappa Uppar
Since Deceased by L.R.
2a. Hanmantha S/o Pentappa
Age: 21 years,
Occ: Agriculture,
R/o Near Badi-Base Darga,
Darga Road, Chincholi,
Tq: Chincholi,
Dist: Gulbarga - 585 307.
3. Smt. Vidyavathi W/o Narsappa Ghali
Age: 40 years,
Occ: Agriculture,
R/o Behind Badi Darga,
Ghaliwada, Chincholi,
Tq: Chincholi
Dist: Gulbarga - 585 307.
...Respondents
[By Sri Manvendra Reddy, Advocate for R1 & R2 (a);
Sri S.M. Patil, Advocate for R3]
4
This Regular Second Appeal is filed under Section 100
of CPC, against the judgment and decree dated 28.02.2013
passed in R.A.No.16/2012 on the file of the Senior Civil
Judge at Chincholi, wherein, the appeal was allowed and the
judgment and decree dated 07.01.2012 passed in
O.S.No.72/2007 on the file of the Prl. Civil Judge at
Chincholi was set aside.
RSA No.7201/2013:
Between:
Smt. Muneera Begum
W/o Syed Idris Ali,
Age: 68 years,
Occ: Agriculture,
R/o Chandapur, Tq: Chincholi,
Dist: Gulbarga - 585 305.
... Appellant
(By Sri S.B. Hangarki, Advocate)
And:
1. Smt. Nagamma W/o Pentappa
Age: 61 years,
Occ: Household,
R/o Near Badi-Base Darga,
Darga Road, Chincholi,
Tq: Chincholi
Dist: Gulbarga - 585 307.
2. Pentappa S/o Mallappa Uppar
Since Deceased by L.R.
2a. Hanmantha S/o Pentappa
Age: 21 years,
5
Occ: Agriculture,
R/o Near Badi-Base Darga,
Darga Road, Chincholi,
Tq: Chincholi,
Dist: Gulbarga - 585 307.
...Respondents
[By Sri Manvendra Reddy, Advocate for R1 & R2 (a)]
This Regular Second Appeal is filed under Section 100
of CPC, against the judgment and decree dated 28.02.2013
passed in R.A.No.19/2012 on the file of the Senior Civil
Judge at Chincholi, wherein, the appeal was allowed & the
judgment and decree dated 17.03.2004 passed in
O.S.No.2/2000 on the file of the Prl. Civil Judge (Jr.Dn.) at
Chincholi was set aside.
RSA No.7202/2013:
Between:
Smt. Muneera Begum
W/o Syed Idris Ali,
Age: 68 years,
Occ: Agriculture,
R/o Chandapur, Tq: Chincholi,
Dist: Gulbarga - 585 305.
... Appellant
(By Sri S.B. Hangarki, Advocate)
And:
1. Smt. Nagamma W/o Pentappa
Age: 61 years,
Occ: Household,
R/o Near Badi-Base Darga,
6
Darga Road, Chincholi,
Tq: Chincholi
Dist: Gulbarga - 585 307.
2. Pentappa S/o Mallappa Uppar
Since Deceased by L.R.
2a. Hanmantha S/o Pentappa
Age: 21 years,
Occ: Agriculture,
R/o Near Badi-Base Darga,
Darga Road, Chincholi,
Tq: Chincholi,
Dist: Gulbarga - 585 307.
3. Smt. Vidyavathi W/o Narsappa Ghali
Age: 40 years, Occ: Agriculture,
R/o Behind Badi Darga,
Ghaliwada, Chincholi,
Tq: Chincholi,
Dist: Gulbarga.
...Respondents
[By Sri Manvendra Reddy, Advocate for R1 & R2 (a);
Sri S.M. Patil, Advocate for R3]
This Regular Second Appeal is filed under Section 100
of CPC, against the judgment and decree dated 28.02.2013
passed in R.A.No.7/2012 on the file of the Senior Civil Judge
at Chincholi, wherein, the appeal was allowed & the
judgment and decree dated 17.03.2004 passed in
O.S.No.148/2007 on the file of the Prl. Civil Judge at
Chincholi was set aside.
These appeals coming on for admission this day, the
Court delivered the following:
7
JUDGMENT
Though these matters are listed for admission, by consent of learned Advocates appearing for the parties, these appeals are taken up for final disposal. For the purpose of convenience these second appeals which are filed against the judgment and decree of the appellate Court against corresponding judgment and decree of trial Court are crystallized herein below under the tabular column:
Trial Court Sl. Rank of party in RSA Nos. R.A. Nos. suit No. in No. trial Court O.S.No.
1. 7199/2013 6/2012 72/2007 1st defendant
2. 7200/2013 16/2012 72/2007 1st defendant
3. 7201/2013 19/2012 2/2000 Plaintiff
4. 7201/2013 7/2012 148/2007 3rd defendant
2. I have heard the arguments of Sri S.B. Hangarki, learned counsel appearing for the appellants, Sri Manvendra Reddy, learned counsel appearing for respondents 1 and 2(a) and Sri S.M. Patil, learned 8 counsel appearing for respondent No.3. Perused the judgments and decrees passed by the Courts below.
3. These appeals are admitted to adjudicate the following substantial questions of law:
(i) Whether the first appellate Court while adjudicating R.A.No.19/2012 was justified in entertaining the appeal filed after lapse of 8 years 3 days from the date of judgment and decree passed in O.S.No.2/2000 on 17.03.2004 on the ground that cause shown by the appellants for delay was sufficient cause though it was contended that such cause would not come within four corners of "sufficient cause" as indicated in Section 5 of the Limitation Act, 1963?
(ii) Whether the first appellate Court was justified in allowing the appeals in R.A.No.6/2012, R.A.No.16/2012, R.A. No.7/2012 and R.A.No.19/2012 by setting aside the judgments and 9 decrees passed by the Court below on the ground that deed/document dated 29.05.1984 (marked as Ex.P1 in O.S.No.2/2000) is an outcome of fraud and misrepresentation?
(iii) Whether the first appellate Court was justified in declaring that Smt. Vidyavati (plaintiff in O.S.No.148/ 2007) is the owner of 1 acre of land out of the suit land by virtue of sale deed dated 01.07.2003 (marked as Ex.D11 in O.S.No.148/2007) and said transaction was not hit by Section 52 of the Transfer of Property Act?
4. Parties are referred to as per their rank in O.S.No.72/2007 since both appellants and respondents in all these appeals have been arrayed as parties in the said suit. Facts in brief which has lead to the filing of these second appeals and which are necessary for adjudicating the substantial questions of law formulated herein above are as under.
10BRIEF BACKGROUND OF FACTS:
5. First defendant Smt. Munira Begum filed a suit in O.S.No.2/2000 for declaration and perpetual injunction against the plaintiffs (in O.S.No.72/2007) contending inter alia that plaintiffs 1 and 2 had executed a sale deed on 29.05.1984 in her favour and possession was also delivered pursuant to said sale deed and as such she has been exercising her right, title, interest and possession over the suit property measuring 5 acres 18 guntas bearing Sy.No.55/1 situated at Chincholi Village, Chincholi taluk, Gulbarga district. Said suit came to be decreed on 17.03.2004.
6. Plaintiffs 1 and 2 who were defendants 1 and 2 in O.S.No.2/2000 filed a suit in O.S.No.72/2007 against the first defendant (plaintiff in O.S.No.2/2000) and Smt. Vidyavati (second defendant) on 31.05.2007 for declaration and perpetual injunction seeking a declaration that judgment and decree passed in 11 O.S.No.2/2000 is null and void, for cancellation of the same and to declare that they are the owners of 5 acres 18 guntas of land situate at Chincholi village, Chincholi Taluk, Gulbarga District and for incidental reliefs namely, for correction of revenue entries and for perpetual injunction. Said suit came to be dismissed on 07.01.2012.
7. Second defendant (Smt. Vidyavati) in O.S.No.72/2007 who was not a party to suit O.S.No.2/2000 also filed a suit in O.S.No.148/2007 against the plaintiffs in O.S.No.72/2007 and plaintiff in O.S.No.2/2000 i.e., Smt. Muneera Begum for declaration, viz. to declare that judgment and decree passed in O.S.No.2/2000 is null and void, not binding on her to the extent of 1 acre of land purchased by her in Sy.No.55/1 under a registered sale deed dated 01.07.2003 and for correction of revenue records to her 12 name. Said suit also came to be dismissed after contest on 07.01.2012.
8. Plaintiffs in above suits being aggrieved by the judgment and decrees passed in O.S.No.72/2007 and O.S.No.148/2007 filed three appeals that is R.A.No.6/2012, R.A.No.16/2012 and R.A.No.7/2012. All these appeals after contest came to be allowed by judgment and decree dated 28.02.2013.
9. In the meanwhile, the plaintiffs in O.S.No.72/2007 filed first appeal in R.A.No.19/2012 challenging the judgment and decree passed in O.S.No.2/2000 dated 17.03.2004 contending inter alia that they were not served with the suit summons, they had not filed any written statement in the said suit and plaintiff had fabricated and had forged documents and played fraud on the defendants as well as on the Court. Since said appeal was belatedly presented, an application I.A.No.1 under Section 5 of the Limitation Act, 1963 came to be 13 filed seeking condonation of delay of 8 years 3 days in filing the said appeal. The first appellate Court by order dated 28.02.2013 passed on I.A.No.1 condoned the delay and by a separate judgment and decree of even date/28.02.2013 allowed the appeal R.A.No.19/2012 and set aside the judgment and decree passed by the trial Court.
10. As such, the original plaintiff in O.S.No.2/2000 who was the first defendant in O.S.No.72/2007 and third defendant in O.S.No.148/2007 has preferred these four second appeals namely RSA No.7199/2013, RSA No.7200/2013, RSA No.7201/2013 and RSA No.7202/2013. Insofar as RSA No.7201/2013 which relates to challenging the judgment and decree passed in R.A.No.19/2012 whereunder first appellate Court has set aside the judgment and decree passed in O.S.No.2/2000 by condoning the delay of 8 years 3 days.
14CONTENTIONS OF LEARNED ADVOCATES:
11. It is the contention of Sri S.B. Hangarki, learned counsel appearing for the appellant that first appellate Court grossly erred in condoning such inordinate delay of 8 years 3 days that too without there being any sufficient cause shown and cause for delay in filing the appeal having not been explained decree passed by the appellate Court is liable to be set aside. It is also his contention that lower appellate Court erred in not considering the fact that first defendant though not entitled for relief of declaration of her title to the suit schedule property in O.S.No.2/2000 which was undisputedly based on an unregistered sale deed dated 29.05.1984, plaintiff was very much entitled to protect her possession by a decree of perpetual injunction against the defendants inasmuch as under the said document the plaintiffs had delivered possession of suit schedule property to the first defendant and there was 15 no material placed to establish that first defendant was dispossessed or in other words the plaintiffs had continued in possession even after sale deed dated 29.05.1984 was executed by them. He would also draw the attention of the Court to the written statement filed by defendants 1 and 2 in O.S.No.2/2000 whereunder the defendants therein have admitted possession of suit schedule property being with Smt. Muneera Begum and without considering this aspect first appellate Court could not have allowed the appeal and dismissed the suit that too solely on the ground that unregistered sale deed dated 29.05.1984 Ex.P1 was an inadmissible document.
12. He would elaborate his submission by contending that first appellate Court erred in not considering the fact that specific plea of defendants 1 and 2 in O.S.No.2/2000 was that they were not duly served with the suit summons and they had not engaged the 16 learned Advocate who had filed vakalathnama on their behalf was a question of fact and as to whether said plea is to be accepted or not had to be considered on the basis of evidence tendered by them in that regard. He would contend that least that was expected by them was to examine the bailiff who had served the suit summons and also the Advocate who purportedly filed vakalathnama on their behalf. He would also submit that even the records of O.S.No.2/2000 was not summoned by PW-1 to get those documents marked so as to enable the first appellate Court to arrive at a definite conclusion that defendants were not duly served or duly represented. He would further contend that when there is no dispute to the fact with regard to the thumb impression found on the vakalathnama as well as in the written statement, the only inference which the first appellate Court ought to have drawn is to hold that defendants therein were duly served and they had entered appearance through learned Advocate and had 17 filed their written statement. Hence, he contends that first appellate Court on surmises and conjectures could not have reversed the finding of fact arrived at by the trial Court.
13. Insofar as appeals RSA No.7199/2013, RSA No.7200/2013 and RSA No.7202/2013 are concerned, he would submit that judgment and decree passed by the trial Court was on proper appreciation of facts and there was no material evidence available on record to establish that judgment and decree obtained by plaintiff in O.S.No.2/2000 was an outcome of fraud or misrepresentation and evidence on record established that thumb impressions found in the written statement filed in O.S.No.2/2000 is that of the plaintiffs in O.S.No.72/2007 and as such the first appellate Court came to an erroneous conclusion that the decree passed in O.S.No.2/2000 was obtained fraudulently. He would also contend that first appellate Court failed to notice 18 that Smt. Vidyavathi i.e., plaintiff in O.S.No.148/2007 is a purchaser of land during the pendency of the suit that is O.S.No.2/2000 and as such said transaction was hit by Section 52 of Transfer of Property Act since transaction made during the pendency of the lis cannot be recognized in law. He would further contend that first appellate Court having observed that Smt. Muneera Begum had purchased the suit property in the year 1984 under an unregistered sale deed dated 29.05.1984 Ex.P1 it was not justified in arriving at a conclusion that decree obtained in O.S.No.2/2000 is a fraudulent decree and sale deed dated 29.05.1984 Ex.P-1 document was obtained for avoiding payment of registration fees with an intention to cause loss to the exchequer, when this was not the plea of the plaintiff in O.S.No.72/2007 at all. He would also submit that pursuant to judgment and decree passed in O.S.No.2/2000 on 17.03.2004 by competent Court revenue records of suit schedule property came to be 19 mutated to the name of Smt. Muneera Begum and as such first appellate Court could not have held the revenue entries had been erroneously made or that Smt. Muneera Begum was not in possession of the suit land.
14. He would also contend that perusal of the order sheet of O.S.No.2/2000 would disclose that suit came to be disposed of after four years form the date of its institution and this would clearly indicate that said suit came to be disposed of in the normal course and the allegation of defendants therein being in collusion with plaintiff or having misrepresented or fabricated the records cannot be accepted and order sheet speaks for itself about the manner in which the proceedings before the trial Court took place and as such first appellate Court was not justified in upsetting the finding of fact recorded by the trial Court in O.S.No.2/2000. On these grounds, he would pray that appeals be allowed by answering the substantial questions of law in favour of 20 the appellant. In support of his submission he has relied upon following judgments:
(a) ILR 2009 KAR 1534 (N. Basavaraj since deceased by his L.Rs. vs. B. Sridhar and others)
(b) AIR 2014 SC 1612 (Brijesh Kumar vs. State of Harayana)
15. Per contra, Sri Manvendra Reddy, learned counsel appearing for plaintiffs in O.S.No.72/2007 would support the judgment and decree passed by the first appellate Court in all these appeals and contends that records of O.S.No.2/2000 would clearly indicate as though written statement had been filed on 28.03.2000 based on which issues came to be framed by the trial Court and suit came to be disposed of, though defendants had been placed exparte and same was set aside by the Court below, only after an application under Order 9 Rule 7 CPC came to be filed on 24.01.2001 and as such the appellate Court having noticed these factual errors had condoned the delay in 21 filing the appeal and there is no error committed by the first appellate Court in that regard. Hence, he defends the judgment and decree passed by the first appellate Court in R.A.No.19/2012. Likewise defending the common judgment and decree passed in R.A.No.6/2012, R.A.No.7/2012 and R.A.No.16/2012, he would contend that first appellate Court having noticed that in the purported sale deed dated 29.05.1984 Ex.P1 survey number is indicated as 55 and other documents Exs.P2, P8 and P9 were disclosing different survey numbers and as such these suspicious circumstances surrounding the execution of the alleged sale deed Ex.P1 was held not to be believed and it was also of the view that said deed was hit by Section 17 of the Registration Act, 1908. He would also elaborate his submission by contending that written statement purported to have been filed by defendants 1 and 2 is an outcome of fraud and misrepresentation to the Court, inasmuch as defendant in O.S.No.2/2000 had 22 undisputedly been placed exparte way back on 25.01.2000 and exparte stay order came to be set aside after one year that is on 29.01.2001 and during this interregnum period defendants could not have filed written statement which was said to have been counter- signed by one Smt. Surekha B. Patil - Advocate who had not been entrusted with vakalathnama and the records of the trial Court also did not disclose of such vakalathnama having been executed in her favour by the defendants. On these grounds he would contend that judgment and decree passed in O.S.No.2/2000 is an outcome of fraud played on the Court below by first defendant in obtaining said judgment and decree and contends that fraud could also have been questioned in a collateral proceedings as had been done by the plaintiff and second defendant in the instant case (O.S.No.72/2007) by filing a separate suit i.e. O.S.No.72/2007 and O.S.No.148/2007 and in support 23 of his submission he would place reliance on the following judgments:
(a) (1994) 1 SCC 1 [S.P. Chengalvaraya Naidu (dead by LRs vs. Jagannath (dead) by LRs and others]
(b) 2004 SAR (Civil) 1(Ram Chandra Singh vs. Savitri Devi and others)
16. He would also submit that when plaintiffs in O.S.No.72/2007 filed the said suit for declaration to declare that judgment and decree passed in O.S.No.2/2000 is not binding and illegal, they were advised to file an appeal against said judgment and decree and as such to avoid any technical plea being raised, an appeal also came to be filed in R.A.No.19/2012 for setting aside the judgment and decree passed in O.S.No.2/2000 and cause shown for delay in filing the appeal has been rightly accepted by the first appellate Court and there is no error committed by it. Hence he prays for dismissal of the appeals filed by first defendant by answering the substantial 24 questions of law in favour of the plaintiffs in O.S.No.72/2007 and O.S.No.148/2007 and defendants 1 and 2 in O.S.No.2/2000.
17. In the light of the facts narrated herein above and contentions raised, I proceed to adjudicate the substantial questions of law formulated herein above.
RE. SUBSTANTIAL QUESTION OF LAW NO.(i):
18. Appeal in R.A.No.19/2012 came to be filed against the judgment and decree passed in O.S.No.2/2000 dated 17.03.2004. Said appeal came to be presented on 21.05.2012 and as on the date of presentation of said appeal there was delay of 8 years 3 days. Hence, an application under Section 5 of the Limitation Act came to be filed seeking condonation of said delay. The cause shown for delay as could be seen from the affidavit filed in support of the application reads as under:
"2. That summons were not served on me or my husband in that suit. As such we did not appear 25 before the trial court nor did we engage any advocate. We had also not filed any written statement admitting the claim of the plaintiff. We had not participated in the trial of that suit. However the said suit was decreed as prayed for. On 17.03.2004, we had no knowledge of the said judgment and decree for about more than three years from the date of decree.
3. That the respondent plaintiff came to the suit land with surveyor to measure it in the month of 2007. I asked the respondent why you had brought surveyor to the suit land. She replied that she has got decree from the Court against me and my husband on the basis of agreement for sale said to have been executed by me in her favour. In fact I had not executed any such deed. However I obtained certified copies of judgment and decree in OS No.2 of 2000 on 31.05.2007 I came to know about the contents of the decree after being read over and explained to me in Kannada language.
4. That immediately after arranging for money and my husband filed suit bearing OS No.72 of 2007 (Nagamma and another -vs-
Muneerabegum) in the Court of Civil Judge (Sr.Dn) at Chincholi (Trial Court) against the respondent 26 for declaration of ownership and injunction and correction of revenue records, in respect of suit land and decree in OS No.2 of 2000 was not binding on us, as advised by our counsel. Later on one Vidyavathi w/o Narsappa Ghali was added as defendant No.2 as I had sold an extent of one acre out of suit land to her through regd. Sale deed.
5. That we the appellants bonafidely believed that we could get reliefs prayed for in OS No.72 of 2007. Unfortunately that suit was dismissed on 07.01.2012. I sought second opinion from our counsel. He advised to prefer this appeal against the decree in OS 2 of 2000 itself. Thereupon I obtained certified copies of plaint, written statement and other records including judgment and decree in OS No.2 of 2000 on 6-3-2012 from Central records room Gulbarga attached to the District & Sessions Court Gulbarga. Thereafter I have filed this appeal with minimum delay caused due to strike of advocates.
6. That under these circumstances the delay from the date of presenting this appeal deserves to be condoned. I and my deceased husband and my son are illiterate poor persons. If the delay is not condoned we will be deprived of our valuable 27 immovable property without fault or little fault on our part. We have shown sufficient cause to condone the delay. Therefore our application for condonation of delay may be kindly allowed and appeal be heard on merits in the interest of justice. Hence this affidavit."
19. With the cause indicated hereinabove appellants sought for condonation of delay in filing R.A.No.19/2012. In support of the plea put forward in the affidavit filed in support of the application for condoantion of delay, applicant entered witness box. She reiterated her plea raised in the affidavit and in cross-examination she has pleaded her ignorance with regard to what transpired before the courts and she has volunteered to state that appeal in question has been filed belatedly after 4 to 5 years. In fact she has denied the suggestion put to her that though she was aware of all the proceedings she had not taken steps to file the appeal. Respondent therein for whatever reasons did not enter the witness box. The second appellant who is 28 son of the first appellant had entered the witness box and he has virtually repeated what his mother had stated on oath. In this background trial Court while considering the plea for condonation of delay has opined that the very decree itself is not sustainable as it is obtained by plaintiffs illegally with an intention to cheat public exchequer and such decree being void cannot be enforced in a Court of law. As such, it has held ground of delay in challenging such judgment and decree cannot be said to be time barred. In other words, it has tried to accept the cause shown for condoning the delay on the premise that fraud vitiates such decree.
20. In the background of contentions raised by the learned Advocates appearing for the parties this Court will have to examine as to whether cause shown by the appellants in R.A.No.19/2012 would constitute sufficient cause so as to accept the same and it would 29 fall within the definition of "sufficient cause" as occurring in Section 5 of the Limitation Act, 1963.
21. It is no doubt true that it is not the length of delay which requires to be considered by this Court while examining an application for condonation of delay but the cause shown, namely existence of sufficient cause which requires to be considered in such circumstance. No litigant would stand to benefit in approaching the Court belatedly. There are varied instances and circumstances of delay which would unfold in each case in approaching the Court belatedly by a litigant. As such, on the facts and circumstances obtained in each case it will have to be examined as to whether cause shown by the applicant would fall within the four corners of "sufficient cause". If the cause shown is sufficient, Court would condone such delay as otherwise not. When delay is inordinate and unexplained and reasons assigned in the affidavit supporting application 30 is fraught with vagueness or unbelievable, then courts would be slow in condoning the delay. On the ground of delay, larger relief to which a party may be entitled to cannot be deprived of such relief. At the same time, this Court cannot lose sight of the fact that it will disentitle an applicant to such relief, since delay defeats equity. When technicalities are pitted against substantial justice, then such technicalities even if any, will have to yield to substantial justice. The principles of sufficient cause is a condition precedent for exercise and discretionary power vested in Courts. What counts is not the length of delay but the sufficiency of cause and shortness of delay is one of the circumstances to be taken into account while exercising the discretion. The expression "sufficient cause" as indicated in Section 5 of the Limitation Act should therefore be considered with pragmatism and justice oriented approach rather than technical detection of sufficient cause demanding the applicant for explaining every year's delay or every 31 month's delay or every day's delay. It would be apt to note at this juncture the dicta laid down by the Apex Court in the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others reported in AIR 1987 SC 1353 whereunder the contours for consideration of an application for condonation of delay have been illustratively explained by the Apex Court in the authoritative judgment and it reads as under:
"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other 32 Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made.Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable 33 negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing- on-the-buck ethos, delay on its part is less 34 difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."
22. At the same time the concept of liberal approach or substantial justice cannot be pressed into service to jettison the substantial question of law of limitation if on facts obtained in a given case it is found that there is no justification for condoning the delay. Then question 35 of entertaining appeal or application though belatedly filed would not arise. Thus, it can be safely concluded by holding that application for condonation of delay would depend on the circumstances of the case surrounding it, including the cause shown.
23. Keeping these salutary principles in mind when facts on hand are examined, it requires to be noticed at the outset that plaintiffs namely Smt. Nagamma, Sri Pentappa and Sri Hanamanth were all illiterate persons and they were not having any worldly knowledge. This fact is also not disputed by other side as could be seen from the records of both the courts. Trial Court records which was very heavily relied upon by the plaintiffs to contend that defendants in O.S.No.2/2000 were fully aware of the proceedings before trial Court as well as the defendants pleadings before first appellate including vakalathnama when perused would clearly disclose that defendants in O.S.No.2/2000 have affixed their left 36 thumb impressions - LTM's. This fact is highlighted for the limited purpose and simple reason that defendants 1 to 3 therein were illiterates and they did not even know how to affix their signatures which fact has also come in evidence. Husband of the first defendant was a money lender in the village. They were financially sound and well off and her brother was also a panchayat member. These facts when cumulatively considered, would indicate that first defendant and her family members were wielding considerable power in the village and the document which was sought to be propounded by plaintiffs in O.S.No.2/2000 to obtain a decree was also purportedly containing LTM of defendant Nos.1 and 2.
24. It is no doubt true, as rightly contended by Sri S.B. Hangarki, learned counsel appearing for appellants that first appellate Court ought to have examined as to whether the allegations or averments 37 made in the affidavit filed in support of the application for condonation of delay insofar as it relates to non- receipt of summons, non-execution of vakalathnama are all factors which were required to be proved by the plaintiffs and first appellate Court was also required to examine these facts while evaluating entire evidence. However, it did not undertake such an exercise. Merely because such exercise was not undertaken, whether the order of first appellate Court condoning delay is to be set aside is the moot question. As already observed herein above, first appellate Court on the sole ground that decree obtained by plaintiffs in O.S.No.2/2000 was held as a decree obtained by fraud and as such it was a nullity. On this ground it had condoned the delay.
25. In view of elaborate arguments having been addressed and substantial questions of law as noted herein above having been formulated, this Court has undertaken the exercise of discerning the evidence 38 available on record for purposes of answering the substantial questions of law. In the process, it is found that defendants were illiterate and not possessed with worldly knowledge as indicated and discussed herein above. It is because of this precise reason, though not stated in actual words by first appellate Court, delay came to be condoned by allowing application filed under Section 5 of the Limitation Act.
26. The purport and intent of the legislature in vesting Courts to condone delay on sufficient cause being shown is to ensure that meritorious case or a genuine claim is not thwarted on technicalities and as such in the circumstances as may be obtained in each case, discretionary power can be exercised to condone delay so as to ensure that there would not be any miscarriage in the administration of justice. As noticed herein above, cause for delay has been explained in paragraph Nos.2, 3 and 4 of the affidavit filed in support of the 39 application. In fact, very same appellants that is appellants in R.A.No.19/2012 had also filed suit in O.S.No.72/2007 for declaring the judgment and decree passed in O.S.No.2/2000 as null and void which suit came to be dismissed and they had pursued their grievance in R.A.No.6/2012. Filing of said appeal and its prosecution itself would have been sufficient without undertaking the exercise of filing an appeal against judgment and decree passed in O.S.2/2000. The innocence or ignorance of the litigant namely, appellants could be seen from the very tenor of the affidavit filed in support of the application for condonation of delay namely deponent has stated that though she had filed a suit in O.S.No.72/2007 and had been pursuing her grievance in R.A.No.6/2012, yet on the second opinion of learned Advocate she had preferred an appeal in R.A.No.19/2012. Thus, it would indicate that to avoid any technical plea being raised, defendants in O.S.No.2/2000 though had filed suit in 40 O.S.No.72/2007 for declaring judgment and decree passed in O.S.No.2/2000 to be null and void, had by way of abundant caution filed R.A.No.19/2012 belatedly and as such, first appellate Court which was also examining the claim of appellants in R.A.No.6/2012 simultaneously had heard the present R.A.No.19/2012 by condoning delay and accepting the cause shown by appellant to be sufficient cause.
27. For the reasons aforestated, this Court is of the considered view that there is no error committed by the first appellate Court in entertaining the appeal which was filed belatedly and cause shown by appellants would fall within the four corners of "sufficient cause"
as indicated in Section 5 of the Limitation Act, 1963.
28. Hence, substantial question of law No.(i) is answered in the affirmative i.e. against appellant in RSA No.7201/2013 and in favour of the respondents. 41 RE. SUBSTANTIAL QUESTION OF LAW Nos.(ii) AND (iii):
29. While discussing, analysing and adjudicating these two questions of law there is likelihood of facts and law overlapping with each other and as such these two substantial questions of law are taken up together and answered accordingly.
30. As already noticed herein above, plaintiff in O.S.No.2/2000 who had obtained a judgment and decree in the said suit on 17.03.2004 had attempted to assert their title to the suit property bearing Sy.No.55/1 measuring 5 acres 18 guntas situated in Chincholi Village, Chincholi Taluk, Gulbarga District. She had very heavily relied upon unregistered sale deed dated 29.05.1984 which had been marked as Ex.P1 to contend that defendants 1 and 2 in said suit had executed said sale deed in her favour and had also delivered possession and for want of mutation entry in favour of first defendant therein, registration of sale 42 deed was deferred and subsequently on account of alleged interference with HER peaceful possession and enjoyment of suit schedule property and their attempt to dispossess plaintiff from the suit land, she filed said suit in question. An application under Order 39 Rules 1 and 2 of CPC also came to be filed in said suit seeking temporary injunction against defendants therein. Trial Court by order dated 25.01.2000 issued emergent notice and as could be seen from the entire order sheet of O.S.No.2/2000 there was no exparte ad interim order of temporary injunction or temporary injunction granted in favour of plaintiff during pendency of the suit. Be that as it may, plaintiff in the said suit had contended that defendants 1 and 2 therein had sold suit land in her favour for a sum of Rs.40,000/- by receiving said consideration amount in the presence of witnesses and had claimed being in lawful possession of suit schedule property from 29.05.1984 namely the date of execution of said deed. Records of O.S.No.2/2000 would disclose 43 that a written statement had been filed by defendants 1 and 2 therein on 28.03.2000. However, there is no entry with regard to such written statement having been filed and said fact has not been recorded in the order sheet of the trial Court. Said written statement available on record has been relied upon by the trial Court to decree the suit. Same is perused by this Court and it is found that it bears the signature of one Smt. Surekha B. Patil - Advocate who is said to have identified LTM's of defendants 1 and 2 found therein. Order sheet of trial Court would also disclose that both defendants came to be placed exparte on 25.01.2000 and an interlocutory application under Order 9 Rule 7 CPC came to be filed by one Sri Manik Rao R. Gulgunji - Advocate on 29.01.2001 on behalf of defendants 1 and 2 therein and on the same day exparte order came to be set aside and matter was posted for filing of written statement and objections to I.A.No.1. Subsequently, matter has been adjourned from time to time. It has 44 been recorded in the order sheet by the trial Court on 08.10.2001 that written statement is already filed and as such it has posted the matter for recording evidence of plaintiff. If written statement was already filed and matter was to be posted for examination-in-chief of PW- 1, then necessarily it means that issues were also framed. However, the records of the trial Court would disclose that issues came to be framed only on 17.07.2003 after a period of one year i.e. one year after the matter was posted for recording evidence of PW-1. Even according to plaintiff, application was filed under Order 9 Rule 7 CPC by defendants 1 and 2 for setting aside exparte order on 24.01.2001. Mystery relating to written statement already being available on record which is dated 28.03.2000 has remained unraveled or in other words it has remained still a mystery. This is one of the factor which swayed in the mind of first appellate Court to doubt about the manner and method in which proceedings before trial Court has proceeded 45 and to raise doubt about bonafides in the claim put forth by plaintiff.
31. Irrespective of the above narrated facts, first appellate Court has noticed that purported sale deed dated 29.05.1984 (marked as Ex.P-1 in O.S.No.2/2001) propounded by plaintiff is shrouded with mystery. Plaintiff contended in her suit O.S.No.2/2000 that defendants 1 and 2 therein were in dire need of money and as such they had agreed to sell the suit schedule property to her and on receipt of Rs.40,000/- defendants had executed said sale deed Ex.P-1. It was also contended by plaintiff that it was not registered since it was orally agreed between parties that defendants 1 and 2 would get the same registered at the convenience of plaintiff. Even if this contention is to be accepted for a moment and her plea is examined, the only conclusion which can be drawn is that said contention is false or unbelievable inasmuch as said 46 document Ex.P1 would disclose that a sum of Rs.40,000/- has been paid to the defendants on said date itself and said deed has been styled as sale deed (Rjâ ¥ÀvÀæ) though nomenclature of the document may indicate different meaning, it would be endeavor of the Court to ascertain as to what is the true intention of parties by looking at the contents of the document itself, and when so examined it would clearly indicate that it is purported to be a sale deed under which defendants are said to have sold the suit property to the plaintiff on said date by receiving a consideration of Rs.40,000/-. Three witnesses were examined by plaintiff namely PWs-2 to 4 to prove execution of said document. Before delving upon evidence of these witnesses it would be appropriate to discuss about the evidence of plaintiff who was examined in O.S.No.72/2007 as DW-1 by filing an affidavit in lieu of examination-in-chief on 02.11.2011. Plaintiff also relied upon receipt said to have been executed by defendants on the same date 47 which came to be marked as Ex.P2. It requires to be noticed that in sale deed Ex.P1 survey number is indicated as 55/1 and in Ex.P2 survey number is indicated as 58/1. Even if it is construed to be a typographical error or an error by inadvertence, further scrutiny of these two documents would indicate that plaintiff had pleaded that defendants had received said sum on the day they executed Ex.P1 and Ex.P2 receipt and delivered possession of suit schedule property and when same is read along with cross-examination of plaintiff which took place on 08.11.2011, it would disclose that entire case of plaintiff has to fall to the ground inasmuch as in her cross-examination dated 08.11.2011 she states that amount of Rs.40,000/- was made in staggered payments. In her own words it reads as under:
"£À£Àß UÀAqÀ ªÀÄÈvÀ¥ÀnÖzÁÝ£É. xxxxxxxxxxxx ¸Àj C®è. £Á£ÀÄ ªÉÆzÀ®Ä ªÁ¢UÉ 10 ¸Á«gÀ £ÀAvÀgÀ 5 ¸Á«gÀ ªÀÄvÀÄÛ 20 ¸Á«gÀ ªÀÄvÉƪ Û ÉÄä 5 ¸Á«gÀ »ÃUÉ MlÄÖ 40 ¸Á«gÀ 48 gÀÆ. ºÀt ¤ÃrzÉÝãÉ. F jÃwAiÀiÁV £Á£ÀÄ ¨ÉÃgÉ ¨ÉÃgÉ ¢£ÀzÀAzÀÄ ºÀt ¤ÃrzÀ §UÉÎ ¥Àv æ ÉåÃPÀ gÀ²Ã¢ ¥ÀqÉ¢®è DzÀgÉ 40 ¸Á«gÀ ªÀÄÄnÖzÀ £ÀAvÀgÀ MAzÀÄ gÀ²Ã¢ ¥ÀqÉ¢zÉÝãÉ. 10 ¸Á«gÀ PÉÆlÖ 5-6 wAUÀ¼À £ÀAvÀgÀ 5 ¸Á«gÀ PÉÆnÖzÉÝãÉ. EzÁzÀ 2 wAUÀ¼À°è 20 ¸Á«gÀ gÀÆ. ¤ÃrzÉÝãÉ. CzÁzÀ 1 wAUÀ¼° À è G½zÀ 5 ¸Á«gÀ gÀÆ PÉÆnÖzÉÝãÉ. £Á£ÀÄ ªÁ¢AiÀÄjUÉ F jÃw ºÀtÀ ¤Ãr®è CAzÀgÉ ¸Àj C®è. F jÃw £Á£ÀÄ ºÀt PÉÆmÁÖUÀ ±ÁªÀĸÀÄAzÀg,À £À¹ÃgÀ CºÀäzÀ ªÀÄvÀÄÛ QʵÀt¥Àà EzÀÝgÀÄ. CzÀg° À è ±ÁªÀĸÀÄAzÀgÀ M§âgÀÄ ªÀÄgÀtºÉÆA¢zÁÝgÉ."
(Emphasis supplied by me)
32. Plaintiffs in the suit in O.S.No.72/2007 as well as in the grounds urged in R.A.No.19/2012 filed by them had contended that husband of plaintiff namely the husband of Smt. Muneera Begum was a leader in the village and he was carrying on money lending business and they had also contended that he had promised them to secure loan for purchase of buffaloes and this fact is also admitted by Smt. Muneera Begum in her 49 cross-examination dated 08.11.2011 and her admission reads as under:
"£À£U À É ¥ÉAl¥Àà£À ¥ÀjZÀAiÀÄ EgÀÄvÀÛz.É xxxxxxxxxxxx CAzÀgÉ ¸Àj C®è. £À£Àß UÀAqÀ Hj£À °ÃqÀgï PÉ®¸À ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸Àj. £À£Àß UÀAqÀ ªÁ¢ ªÀÄvÀÄÛ CªÀ¼À UÀAqÀ£À¤UÀ zÁªÁ D¹ÛAiÀÄ ªÉÄÃ¯É ¸Á® PÉÆr¸ÀĪÀÅzÁV CªÀgÀ É ÀÄPÉÆArzÁÝgÉ."
ºÉ§ânÖ£À UÀÄgÀÄvÀÄ vÉUz (Emphasis supplied by me)
33. Thus, when the evidence of plaintiff in O.S.No.2/2000 and the evidence of defendant in O.S.No.72/2007 are read conjointly, the only conclusion which requires to be drawn is that the document Ex.P1 purported sale deed cannot be accepted as having been executed by the defendants in O.S.No.2/2000.
34. It is also not in dispute that plaintiff based on said sale deed Ex.P-1 not only claimed right, title and interest over the suit property but also claimed possession over suit property. In fact in the suit in 50 O.S.No.2/2000 the first issue which came to be framed by the trial Court was:
"Whether the plaintiff proves that he has entered into an agreement with defendants for sale of suit property on 29.05.1984 and he is in possession and enjoyment of suit property?"
35. This issue was answered in the affirmative and said judgment and decree passed in O.S.No.2/2000 was subject matter in R.A.No.19/2012 which appeal also came to be disposed of along with other appeals by first appellate Court. As such, first appellate Court had the benefit of evaluating entire evidence available on record namely the evidence that was tendered by plaintiff in O.S.No.2/2000 as well as evidence tendered by both the parties in O.S.No.72/2007 and O.S.No.148/2007. The purported sale deed Ex.P-1 which was relied upon by plaintiff has been held by the first appellate Court as an inadmissible document. Section 17 (1) (b) of the Registration Act, 1908 mandate that a document would 51 be compulsorily registered if it purports 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. The document Ex.P1 was undisputedly not registered. A holistic reading of plaint in O.S.No.2/2000 would not indicate as to why plaintiff did not choose to seek for enforcement of said agreement even it were to be accepted that said deed is to be treated as an agreement of sale. However, this Court would not enter into said arena inasmuch as neither there is pleading nor there is evidence to said effect and as such, valiant attempt made by Sri S.B. Hangarki learned counsel for appellant to contend that said document atleast can be treated as an agreement to sell so as to protect possession of the plaintiff/ purchaser is not examined. Same is left at it. 52
36. As noticed herein above, sale deed Ex.P1 was required to be proved by its propounder. One who relies upon a document and seeks for grant of a decree in his favour, then burden is on such person to prove the same. In the instant case as noticed herein above, O.S.No.2/2000 came to be decreed on 17.03.2004 and same was very heavily relied upon by the plaintiff by relying upon Ex.P1. Thus, burden was cast very heavily on the plaintiff and plaintiff was required to discharge said burden. Though an attempt has been made to examine three witnesses in O.S.No.2/2000 to prove said document their evidence was not eschewed by first appellate Court inasmuch as it was not tested in the cross-examination and nothing prevented plaintiff in O.S.No.2/2000 to yet again examine these witnesses in O.S.No.72/2007 or O.S.No.148/2007 in the suits filed by defendants 1 and 2 of O.S.No.2/2000 seeking declaration that decree passed in O.S.No.2/2000 is null, void and illegal. In fact, perusal of their evidence (PW-1 53 examined in O.S.No.2/2000) would also indicate that they have stated that defendants after receiving the consideration amount had put their thumb impression in Ex.P1. The deposition of PWs-2, 3 and 4 are similar and identical. Their evidence even otherwise cannot be accepted for the simple reason that plaintiff herself has demolished their evidence by admitting in her cross- examination dated 08.11.2011 (already extracted herein above) that amounts were paid to her vendors on different dates though recital in Ex.P-1 reflects it was paid on a single day. In fact she has said that after she paid the first installment of Rs.10,000/-, second installment of Rs.5,000/- was paid after a lapse of 5 to 6 months and after two months thereafter Rs.20,000/- was paid and after one month from second installment she paid a sum of Rs.5,000/-. Thus, the inconsistency in the evidence of plaintiff as well as PWs-2 to 4 is writ large which cannot go unnoticed. Though first appellate Court has not discussed this evidence succinctly or in 54 detail, in view of appeal having been admitted and substantial questions of law Nos.(ii) and (iii) having been formulated, this Court has gone into said aspect to ascertain as to whether there has been erroneous appreciation of evidence or non-appreciation of available evidence which would also be a question of law. It is in this background the evidence of parties have been scrutinized by this Court while answering these two questions. In the process, it is noticed by this Court that purported sale deed Ex.P1 has not been proved by plaintiff as having been executed by defendants 1 and 2. Simple way in which plaintiff could have got those documents proved was to ask for an appointment of handwriting expert by invoking Order 26 Rule 9 CPC inasmuch as according to plaintiff thumb impressions found in the written statement, vakalathnama and suit summons of O.S.No.2/2000 was that of defendants 1 and 2 therein and so also the thumb impressions found on Ex.P1 as well as undisputed thumb impressions of 55 defendants found in the pleadings of O.S.No.72/2007. If these three had been compared by an expert and an opinion was available on record to the effect that all the thumb impressions are one and the same, plaintiff would have been correct or would have been justified in either relying upon Ex.P1 or asserting her possession based on Ex.P1. For reasons best known, this exercise was not undertaken by the plaintiff. On the other hand, defendants in O.S.No.2/2000 who are also plaintiffs in O.S.No.72/2007 have consistently contended that the thumb impression found in Ex.P-1 is not theirs' and fraud has been played by Smt. Muneera Begum on Court. There cannot be any dispute to the proposition that fraud vitiates all transactions as held by the Hon'ble Apex Court in the case of Ram Chandra Singh Vs. Savitri Devi and others reported in 2004 SAR (Civil)
1. Fraud and injustice never dwell together. It has been held by the Hon'ble Apex Court therein to the following effect:
56
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud."
37. It is no doubt true that defendant in O.S.No.2/2000 had pleaded that thumb impressions found on suit summons as well as written statement was not their and as such burden was cast on them. In the event of defendants 1 and 2 therein had pursued their grievance by only filing an appeal that is pursuing their grievance with regard to legality of judgment and decree passed in O.S.No.2/2000 by filing 57 R.A.No.19/2012, the issue would have been entirely different. They did not stop at it. In order to ensure that they are not meted out with injustice, they also filed a suit in O.S.No.72/2007 for declaring the judgment and decree passed in O.S.No.2/2000 as null and void and in the said suit they raised similar plea. During the pendency of the suit in O.S.No.2/2000 said defendants sold 1 acre of suit land under a registered sale deed dated 01.07.2003 in favour of Smt. Vidyavathi and as such she also filed a suit O.S.No.148/2007 for declaring judgment and decree passed in O.S.No.2/2000 as null and void and not binding on her. She also contended that sale deed dated 29.05.1984 Ex.P-1 is an outcome of fraud and it does not contain the thumb impressions of defendants (in O.S.No.2/2000). Plaintiff in O.S.No.2/2000 who tendered her evidence in these two suits that is O.S.No.72/2007 and O.S.No.148/2007 had virtually reiterated her contentions raised or plea put forward in 58 O.S.No.2/2000. In fact plaintiff in O.S.No.148/2007 had also raised a plea that decree passed in O.S.No.2/2000 dated 17.03.2004 is not binding on her and she is a bonafide purchaser for value without notice of earlier sale deed or agreement dated 29.05.1984 Ex.P1 and as such said decree is not binding on her. Thus, it was incumbent upon defendant in O.S.No.148/2007 that is Smt. Muneera Begum to prove that suit document on which she relied upon i.e. Ex.P1 was duly executed in her favour because said document formed the basis or foundation for her to lay claim over suit property. This exercise was also not undertaken by her as noticed herein above. Thus, the initial burden cast on plaintiff to prove execution of Ex.P1 was not proved and even otherwise her own admissions in the cross-examination would clearly disclose that her plea regarding execution of Ex.P1 had remained as a plea without proof. Thus, for both the reasons namely that document Ex.P1 was not duly proved and it was 59 shrouded with mystery and said document is inadmissible in evidence, as it was hit by Section 17(1)
(b) of the Registration Act, 1908, substantial question of law Nos.(ii) and (iii) are answered in the affirmative i.e. against appellant and in favour of respondents.
38. Incidentally a plea came to be raised by Sri S.B. Hangarki, learned counsel appearing for plaintiff (in O.S.No.2/2000) to contend that even if plea with regard to sale deed Ex.P-1 is not accepted, there cannot be any dispute with regard to possession of plaintiff over suit property since same had been admitted by defendants and as such her prayer for perpetual injunction was still maintainable and trial Court ought to have granted the same. Said contention is to be brushed, though looks attractive and same cannot be accepted inasmuch as the very document on which she relied upon has been disbelieved by first appellate Court and confirmed by this Court. When no right flows from said document any 60 plea raised based on said document cannot be accepted. Even otherwise the documents produced by defendants (in O.S.No.2/2000) which was marked as Ex.P4 to P8 in O.S.No.72/2007 connected with O.S.No.148/2007 would clearly disclose that the suit schedule property is in occupation of defendants and a presumption arises under Section 132 of the Karnataka Land Revenue Act that since entries found in the revenue records would be in favour of a person whose name is found and said presumption has not been rebutted by Smt. Muneera Begum.
39. Yet another contention regarding adverse possession which has been raised by plaintiff (in O.S.No.2/2000) cannot be accepted in view of the law laid down by Hon'ble Apex Court in the case of Gurudwara Sahib vs. Gram Panchayat Village Sirthala reported in 2014 (1) SCC 669 that plaintiff's suit for declaration to declare that he has perfected his title by 61 way of adverse possession would not be maintainable, would squarely apply to the facts of present case.
40. Sri S.B. Hangarki, learned counsel appearing for plaintiff has also contended that sale deed dated 01.07.2003 marked as Ex.D11 executed by defendants in O.S.No.2/2000 in favour of Smt. Vidyavathi who is plaintiff in O.S.No.148/2007 is hit by Section 52 of the Transfer of Property Act since it was sold during the course of suit O.S.No.2/2000, said plea cannot be accepted and the transaction in question cannot be held as void or hit by Section 52 of the Transfer of Property Act for two reasons: firstly, the purchaser Smt. Vidyavati is a bonafide purchaser for value without notice. Plaintiff in O.S.No.2/2000 has not filed any suit seeking enforcement of agreement or deed dated 29.05.1984 Ex.P1 in a Court of law so as to accept her plea that a buyer should have been aware of the agreement in her favour on the principle of "buyers 62 beware". Secondly, said document was not registered so as to bind third parties since it would be constructive notice to a buyer. The document on which plaintiff relied upon viz., Ex.P-1 itself having been held as not proved and purchaser having obtained the sale deed from defendants which was duly registered, it cannot be held that Section 52 of the Transfer of Property Act was attracted to said transaction.
41. For the reasons aforestated, I proceed to pass the following:
ORDER
(a) RSA No.7199/2013, RSA No.7200/2013, RSA No.7201/ 2013, RSA No.7202/2013 are hereby dismissed.
(b) Judgment and decree passed in R.A.No.6/2012, R.A.No.16/2012, R.A.No. 7/2012 and R.A.No.19/2012 by the Civil Judge (Senior Division), Chincholi are hereby affirmed.63
(c) No order as to costs.
Registry to transmit the records back to the jurisdictional Courts forthwith.
Sd/-
JUDGE swk