Karnataka High Court
Shetteppa vs Parappa on 28 August, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
-1-
NC: 2025:KHC-D:10843-DB
RFA No. 100477 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 28TH DAY OF AUGUST 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100477 OF 2019
(DEC/INJ-)
BETWEEN:
SHETTEPPA
S/O. YALLAPPA MANG @ GANGAPPAGOL,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. HANDIGUND, TQ: RAIBAG,
NOW AT GOLABHAVI, TQ: JAMKHANDI,
DIST: BAGALKOT-587 301.
...APPELLANTS
(BY SRI. PAVAN B. DODDATTI, ADVOCATE)
YASHAVANT
NARAYANKAR AND:
Digitally signed by
YASHAVANT
NARAYANKAR
Location: HIGH COURT
1. PARAPPA S/O. TAMMANNA KAMALADINNI,
OF KARNATAKA
DHARWAD BENCH
DHARWAD
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. GOLABHAVI, TQ: JAMKHANDI,
DIST: BAGALKOT-587 301.
2. SUMAN W/O. RAMESH RENAKI,
AGE: 52 YEARS, OCC: CLOTH MERCHANT,
R/O. TERDAL, TQ: JAMKHANDI,
DIST: BAGALKOT-587 301.
...RESPONDENTS
(BY SRI. B.V. KERUR & SRI. D.M. MALLI, ADVOCATES FOR R2;
NOTICE TO R1 IS SERVED)
-2-
NC: 2025:KHC-D:10843-DB
RFA No. 100477 of 2019
HC-KAR
THIS RFA IS FILED UNDER SECTION 96 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.07.2019
PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, BANAHATTI IN O.S.NO.41/2017 BY
DECREEING THE SUIT AND ALLOWING THIS APPEAL, IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal is filed by the unsuccessful plaintiff challenging the judgment dated 30.07.2019 passed in O.S.No.41/2017 (Old No.10/2013) on the file of Senior Civil Judge and JMFC, Banahatti1, whereby, the said suit for declaration and consequential relief of permanent injunction and other reliefs filed by the appellant/plaintiff against the respondents/defendants was dismissed by the Trial Court.
2. Briefly, the facts giving rise to the present appeal are as follows:
1Hereinafter referred to as the 'Trial Court' -3- NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR
3. The appellant/plaintiff filed the instant suit, inter alia, contending that he is the son of Yallappa and Putalawwa. It was contended that the Yallappa, the father of the plaintiff, was the son of Tangewwa Sheteppa Mang (the propositus), who had one more son, namely Yamanappa Mang, who died without leaving behind any legal heirs. It was contended that the defendants are strangers to the family of the plaintiff, and that the plaintiff was the owner in possession and enjoyment of the suit schedule properties, which had been purchased by his father. Upon the demise of his father on 06.03.1979, and subsequently his mother, Putalawwa, on 11.03.1998, the appellant/plaintiff became the absolute owner, in lawful and peaceful possession and enjoyment of the suit schedule properties. It was further contended that the appellant, belonging to a depressed class, was an innocent villager, illiterate and rustic person, not having worldly knowledge, and that he subsequently came to know that the defendants had created false and bogus documents viz., two Sale Deeds dated 28.07.1995 and 31.01.1996, fraudulently bifurcating to sell the suit schedule properties in two portions in favour of the predecessor of defendant No.2, who in turn sold the same to defendant No.1. As a result of which, the -4- NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR appellant/plaintiff was constrained to file the present suit for a declaration of title, injunction and other reliefs in relation to the suit schedule properties.
4. The respondent No.2/defendant No.2 filed a written statement disputing and denying various allegations and claim made by the plaintiff. It was contended that vide the two registered Sale Deeds dated 28.07.1995 and 31.01.1996, the appellant/plaintiff, who was the seller, had sold, transferred and conveyed the suit schedule properties absolutely in favour of the predecessor of defendant No.2, who had become the absolute owner of the suit schedule properties. It was contended that the appellant did not have title or possession over the suit schedule properties nor did he have any cause of action to file the present suit. It was further contended that no fraud had been pleaded by the respondents/defendants, as falsely alleged by the appellant, and the revenue records standing in the name of the respondents/defendants, were legal and valid. It was also contended that the suit was not maintainable in the absence of a prayer for cancellation of the registered Sale Deeds dated -5- NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR 28.07.1995 and 31.01.1996, and as such, the suit was liable to be dismissed.
5. It was also contended that, the appellant/plaintiff, who was a major aged about 25-26 years at the time of execution of the aforesaid Sale Deeds, has not filed the suit within the prescribed period of limitation and the suit was hopelessly barred by limitation and was liable to be dismissed, especially when a suit for declaration and injunction, without possession, was not maintainable in law. The defendant No.2 further contended that on the basis of the Sale deeds dated 28.07.1995 and 31.01.1996, executed in favour of predecessor of defendant No.2, the predecessor of defendant No.2 have sold portion of the suit schedule properties in favour of the defendant No.1. Under these circumstances, the defendant No.2 sought for dismissal of the suit.
6. Based on the pleadings of the parties, the Trial Court has framed the following:
-6-NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR ISSUES
1. Whether plaintiff proves he is the owners and possessor of suit schedule "B" properties?
2. Whether the plaintiff proves that, defendants are obstructing his peaceful enjoyment of suit property?
3. Whether the defendant No.2 proves that, his predecessor intile Suresh S/o Subhan Renake purchased southern portion of 11 acres 3 guntas out of R.S.No.58 measuring 22 acres 5 guntas of Golabnavi from the plaintiff under Regd. Sale deed dated: 28.07.1995?
4. Whether the defendant No.2 proves that suit is barred by law of limitation?
5. Whether the defendant No.2 proves as alleged in written statement para 23 and 24?
6. Whether the plaintiff is entitle for relief sought?
7. What order or decree?
7. The appellant/plaintiff examined himself as PW.1 and two witnesses as PW.2 and PW.3 and documentary evidence at Exs.P1 to Ex.P9 were marked on this behalf. The Special Power of Attorney holder of defendant No.2 examined himself as DW.1 -7- NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR and one witness as DW.2 and Exs.D1 to Ex.D17 were marked on this behalf.
8. After hearing the parties, the Trial Court answered all the issues against the appellant and in favour of the respondent No.2, and consequently proceeded to dismiss the suit by passing the impugned judgment and decree, which is assailed in the present appeal.
9. Heard the submissions of the learned counsel for the appellant and the learned counsel for respondent No.2. Perused the material available on record.
10. The following points that arise for consideration in the present appeal are:
i) Whether the Trial Court was justified in dismissing the suit filed by the appellant/plaintiff on the ground that he had failed to prove his title and possession over the suit schedule properties?
ii) Whether the Trial Court was justified in coming to the conclusion that appellant had failed to establish that the Sale Deeds dated 28.07.1995 and 31.01.1996 had been executed by him while he -8- NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR was still a minor, and therefore were invalid, inoperative, and did not create any right in the suit schedule properties in favour of the predecessor of respondent No.2?
iii) Whether the impugned judgment and decree passed by the Trial Court warrants interference in the present appeal?
Regarding Point Nos.(i), (ii) and (iii):
11. A perusal of the material on record will indicate that it is an undisputed fact that the two registered Sale Deeds dated 28.07.1995 and 31.01.1996 came into existence in favour of Suresh Renake brother of Ramesh Renake, who is none other than the husband of defendant No.2. In this context, the recitals in the aforesaid two Sale Deeds, marked as Exs.D15 and Ex.D16, indicate that the plaintiff was aged 25-26 years at the time of execution of the aforesaid Sale Deeds. It is pertinent to note that, despite having specifically contended that he was a minor at the time of execution of the said Sale Deeds, the appellant/plaintiff has not placed any legal or acceptable evidence to establish such a claim. On the other hand, the oral and documentary evidence on record would clearly establish that -9- NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR the appellant was major at the time of execution of Sale Deeds, and in the absence of any material whatsoever to indicate that the Sale Deeds obtained by the predecessor of defendant No.2 during the minority of the appellant/plaintiff, we are of the considered opinion that the Trial Court was fully justified in rejecting the said claim of the appellant that he was minor at the time of execution of the said Sale Deeds.
12. The appellant/plaintiff examined two witnesses as PW.2 and PW.3, whose evidence is also not sufficient to come to the conclusion that the appellant/plaintiff was a minor at the time of execution of the Sale Deeds. Under these circumstances, in the absence of any material to establish that the age of the appellant as recorded in the Sale Deeds was incorrect, we are of the view that there is no illegality or infirmity in the findings recorded by the Trial Court in this regard, warranting interference in the present appeal.
13. While arriving at the said conclusion, the Trial Court, held as under:
- 10 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR
9. Issue No.1 to 3 & Addl. Issue No.1: These four issues are inter connected in needs commons discussion to avoid repetition of facts hence the said issues are taken up together for my discussions.
The plaintiff has filed this suit against defendants for the relief of declaration that he is owner and possessor of the suit schedule 'B' properties and also consequential relief of permanent injunction restraining the defendants from obstructing or disturbing to the peaceful possession and enjoyment of the suit property.
10. It is specific contention of the plaintiff that the original suit land bearing R.S. No. 58 measuring 22A-05Gs of Golabhanvi village is the self acquired properties of his father Yallappa mother Tangewwa Mang purchased under Regd. sale deed dated 22/11/1949 (Vide M.E. No. 972). The father of the plaintiff died on 06/03/1979. Hence plaintiff became absolute owner. He further claimes that, on the date of death his father, plaintiff was minor. Hence his uncle Yamanappa S/o Shetteppa Mang was minor-guardian for plaintiff and plaintiff alone was the warasadar (Successor) to the suit property (Vide M.E. No. 1438). It is further case of plaintiff that, on 15/04/1995, the minor guardianship of his uncle Yamanappa Mang was deleted since plaintiff attained majority. (Vide M.E. No. 2403).In plaint para No. 6 that since from 1995, he was the absolute owner in lawful possession of land R.S. No. 58 then measuring 22A-05Gs of Golabhanvi village and also contended that predecessors in title of the defendants, have created false sale deeds (Two) on 31/01/1996 by dividing the suit land R.S. No. 58 in two parts, without the knowledge of the plaintiff. The defendants have got mutated their names in revenue records on the basis of false and bogus sale deeds. Hence defendants have committed froud upon plaintiff.
- 11 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR
11. On the other hand defendant No.2 specifically denied that plaintiff is the owner in possession of the suit lands on the date of suit. He was not in possession of the suit lands since 1995 more especially from the date of sale of suit properties on 28/07/1995 and 31/01/1996 under registered sale deeds in favour of Suresh S/o Subhan Renake, predecessor in title of defendant No. 2. The plaintiff himself is author and executants of the above said sale deeds. He was alone the owner of the suit lands and he was major i.e. 25 years old on the date of execution of the registered sale deeds. His age is shown as 25 years in the sale deeds his mother and uncles have attested witness to the sale deeds and also denied that, plaintiff was minor on the date of sale deeds dated 28/07/1995 and 31/01/1996 at the time of execution of sale deeds in favour of Suresh Subhan Renake, predecessor-in-title of defendant No. 2. This fact was not pleaded in the plaint. It is submitted that, apart from plaintiff, his mother Putalawwa and his uncle Yamanappa Shetteppa Mang were parties to the alleged sale deeds. They have put their signature on sale deeds as witness amongst others. Mother of the plaintiff died in the year 1998 and she never exercised her right, during her life time since she has consented for sale of the suit lands and signed as witness. Further submitted that, apart from it, plaintiff being the sale co- parcenor in the family. After the death of Yallappa (father of the plaintiff) the present plaintiff was alone the absolute owner by way of sole co-parcener and suit properties in the hands of plaintiff were his self acquired properties. (Hindu Law by Mulla) His father purchased the lands. Hence plaintiff is the absolute owner. The defendant No. 2 denied the allegations of plaintiff that, the defendants and their predecessor-in-title have played a froud upon plaintiff in respect of Regd. sale deeds dated 28/07/1995 and 31/01/1996. There is no proper legal and valid allegations in plaint in respect of froud as required under Or. 6
- 12 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR Rule 4 CPC. No particulars regarding, who, when, how and in what manner and for what purpose fraud has been practiced etc., are not forthcoming in the plaint. More bald allegations of fraud is not sufficient. It is specifically denied by the defendant No. 2 that, mutation entries in the record of rights of the suit lands have been entered without the knowledge and consent of plaintiff on the basis of Regd. sale deeds. Registration itself is the knowledge of plaintiff.
12. As per Issue No.1 & 2 and Addl. Issue No.1 the burden cost on the plaintiffs to prove that he is the owners and possessor of suit schedule "B" properties and defendants are obstructing his peaceful enjoyment of suit schedule property. As per Addl. Issue No.1 further proves that, defendants or their predecessor-in-title have played fraud upon the plaintiff in getting the execution of the sale deeds in respect of suit properties. On the other hand as per Issue No.3 is concerned the burden cost on the defendant No.2 proves that, his predecessor in-tile Suresh S/o Subhan Renake purchased southern portion of 11 acres 3 gutnas out of R.S.No. 58 measuring 22 acres 5 guntas of Golabnavi from the plaintiff under Regd. Sale deed dated : 28.07.1995.
13. In order to prove the case the plaintiff examined himself as PW-1. In his examination chief he reiterated the plaint averments. In support of his oral evidence he got marked 9 documents as Ex.P-1 to P-9. On perusal of the same Ex.P-1 RTC extract of land bearing R.S.No. 58/1 measuring 5 acre 00 guntas land situated at Golabhanvi village stands in the name of defendant No1 khata mutated MR No. 37/2010-11 under partition dated : 30.09.2010. Ex.P-2 is the RTC extract of land bearing R.S.No. 58/2 totally measuring 6 acre 2 guntas of land situated at Golabhanvi village stands in the name of Suman Ramesh Renake khata mutated MR.No.H5/2014-15 under pavati
- 13 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR warsa dated : 26.08.2014. Ex.P-3 is the RTC extract of land bearing R.S.No. 58/3 totally measuring 11 acres 3 guntas situated at Golabhanvi village stands in the name of Suman Ramesh Renake khata mutated MR No. H5-/2014-15 under pavati dated : 26.08.2014. Ex.P-4 is the certified copy ME NO. 754 which reveals that land bearing R.S.No.58 on 20.03.1956 Yallappa Shetteppa Mang in the year 1950-51 as per cultivation his name mutated as permanent cultivation. Ex.P-5 is the certified copy of ME No. 972 which reveals that on 02.05.1968 Parappa Balappa Shegunshi he has given Rs. 1500/- for consideration amount to Yallappa M/o Tangewwa Mang and purchased the land bearing R.S.No. 58 for that khata mutated in his name dated : 22.11.1968. Ex.P-5 is the certified copy of ME NO. 1438 which reveals that on 27.02.1981 Yallappa M/o Tangewwa Mang died on 06.03.1979 at Handigund village. After the death of Yallappa the plaintiff i.e. Shettepa being only one son and no other legal heirs as per varadi given under pavati warsa totally measuring 22 acres 5 guntas land mutated in the name of plaintiff i.e. Shetteppa at that time he was minor his uncle Yamanappa M/o Tangewwa Mang as a guardian for that as per varadi given khata mutated in the name of plaintiff. Ex.P-7 is the death certificate of Yallappa Shetteppa Gangappagol i.e. father of plaintiff died on 06.03.1979 at Handigund village. Ex.P-8 is the death certificate of Putalawwa W/o Yallappa Gangappagol she is none mother of plaintiff died on 11.03.1998 at Handigund village. Ex.P-9 is the birth certificate of plaintiff Shetteppa Yallappa Gangappagol which reveals that he was born on 15.07.1978.
14. On perusal of cross examination of PW-1 he admitted that he was residing at Golobhanvi village, and also submitted that he has never executed sale deed to his land to anybody and also not put his signature. The defendants have obstructed
- 14 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR his peaceful possession for the said reason he has filed this suit. Further he stated that his grandfather name is Shetteppa. He is having 22 acres 5 guntas land before he was born his grandfather Shetteppa died. The said Shetteppa from whom he has purchased he don't know. The Yallappa is his father and his father mother Tangewwa Mang is his grandmother. The suit property purchased in the name of his father. His father Yallappa died on 06.03.1979 is true. At the time of death of father he was 8-10 years. So on the date of sale deed plaintiff was major. The Yamanappa is his uncle the said Yamanappa died 25 years back his mother died and after that his uncle Yamanappa look after him is true. Further he admitted that after he attained majority 5-6 years the record stands in his name is true. But he stated that he has not educated he put his thumb impression. In Hunagund village his name voter, I.D. & Aadhar card is there. The said documents he has produced, Ex.P-9 is his birth certificate. It is obtained from Mudhol court, Mahalingapur at private hospital his mother gave birth to him, he was born at Mahalingapur. It is denied that he was not born at Mahalingapur so Ex.P-9 falsely produced. The said document for the suit purpose his Doddatti advocate obtained the said certificate as per information given by him the suit plaint written by the said advocate. But it is denied that in the suit his age shown as 38 years. To the said suit to support Ex.P-9 is created and got produced. Further he stated that in the suit Parappa Kamaladinni and Suman Ramesh Renake they have fraud to him and executed sale deed to others for that he has filed this suit. It is denied that 22 acres land out of which southern portion 11 acres 3 gunta land Suresh Subhan Renake on 28.07.1995 has purchased the said land for consideration amount of Rs. 1,40,000/- by paying him and also denied that as per sale deed land southern portion 11 acres 3 guntas land Suresh Subhan Renake name as per ME No. 2458 at Golbhanvi village
- 15 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR dairy entered. But he stated that he don't know but not specifically denied. It is denied that after 6 months again his family necessity on 31.01.1996 his northern portion 11 acres 2 guntas again sold to Suresh Subhan Renake. It is denied that ME No. 2499 at Golbhanvi village in record of right mutation entered. Further he denied that in sale deed dated : 28.07.1995 his age mentioned 28 years. So at the time of filing of this suit he was 38 years. It is denied that the above said to show the Ex.P-9 birth certificate created and produced before this court. Further he denied that in the year 1995 sale deed executed to the defendant after that they are in possession of the suit schedule property. It is denied that since in the year 1995 till today he was not in possession and also his name was not entered in record of right. Further he denied that since 1995 in record of rights his name deleted he has not challenged any competent court. He stated that he don't know. Further he denied the other contents.
15. The plaintiff to corroborate his evidence he got examined two witnesses as PW-2 & 3 who is Gangappa Halappa Biraj and Yashwanth Gangappagol as PW-3. They deposed the same as deposed by the PW-1.
16. But looked into the cross examination of PW-2 he admitted that he has not elderly mediated in Shetteppa family. But his mother when she was alive at that time he was mediate. Shetteppa mother died 20 years back. The plaintiff father died long back but which year he don't know. The plaintiff father for their father land came he has stated to his grandfather and father. Further he clearly admitted that he has not seen the sale deed. But plaintiff father in the year 1969 purchased the land told him. After the death of plaintiff father under pavati warsa as per vardi given his name was entered is true. But as per Ex.D-15 & 16 through sale deed suit schedule property sold to
- 16 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR Suresh Subhan Renake he don't know. It is denied that the said Suresh in the year 1995-96 sold to him after that plaintiff Shetteppa was not in possession of the suit schedule property. Further he clearly stated that he has not seen the suit schedule property records and also he don't know who was in possession of the suit property. Further he denied the other contents.
17. Further looked into the cross examination of PW-3 stated that he know the Gangappagol family. Putalawwa Yallappa Gangappagol is mother of Shetteppa. The said Tippawa is sister of Yallappa. Yamanappa is uncle of plaintiff. Kallappa Yamanappa Gangappagol is son of plaintiff uncle. The plaintiff mother name was Putalawwa. Basappa Girimallappa Hosapeti is residing at his place. The said person elderly mediate to the family know he was died and another Shivappa Ramappa Padi is also in his place. The said person is also died. The above said persons may be died 3-4 years back and further he stated that he and Shetteppa in between them no dispute. The suit land purchased by the Shetteppa father is true. Since from childhood Yallappa cultivated of Shetteppa land is true. The said Yallappa before he born in the year 1949 land purchased he don't know and also not seen sale deed documents land purchased by Yallappa. Further he clearly admitted that in his cross examination that on 22.11.1969 land purchased by the Yallappa written on which base question put to him. He stated that it was written as per information given by the Shetteppa. Further he stated that when he was born document is there, Shetteppa is not educated. He was 4-5 years younger to him. Further he stated that in respect of suit land whose name was entered he don't know. Ex.P-1 to P3 record of rights in cultivation column defendant Suman Subhash Renake name is there. Since then till today the defendants are in possession of the suit schedule
- 17 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR property. He simply denied but he has not specifically stated that who are in possession of the suit schedule property.
18. The defendants in order to prove their defence the defendant No.2 son Shashikant S/o Ramesh Renake GPA holder of defendant No.2 examined himself as DW-1. In his examination chief he reiterated the written statement averments. In support of his oral evidence he got marked 17 documents as Ex.D-1 to D17. On perusal of the same Ex.D-1 is the GPA which reveals that the defendant NO.2 executed GPA in favour of DW-1 who is none son of defendant no.2. Ex.D-2 is the certified copy of record of right in respect of land bearing R.S.No. 58 in the year 1950 to 1963-64 reveals that the said land stands in the name of Parappa Balappa Shegunshi as lease given protected tenant earlier stands in the name of Yamanappa Annawwa Dalwai later Yallappa Shetteppa Mang as a protected tenant. Ex.D-3 is the certified copy of RTC extract of Golabhavi village land bearing R.s.No. 58 totally measuring 22 acres 5 guntas stands in the name Yamanappa Dalwai after that Parappa and Yallappa M/o Tangewwa Mang later under pavati warsa Shetteppa as a minor guardian his uncle Yamanappa M/o Tangewwa Mang name entered in column No.9 of RTC. After that Suresh Suban Renake name entered in the said RTC. After that Ramesh Suban Renake as per sale deed his name entered in the said land to the extent of 11 acres 3 guntas. Further the RTC shows that in the year 1976-77 the land bearing R.S.No. 58 totally measuring 22 acres 05 guntas out of which 11 acres 2 guntas stands in the name of Ramesh Suban Renake khata mutated under sale deed. Ex.D-4 is the certified copy of ME No. 1438 reveals that on 27.02.1981 Yallappa M/o Tangewwa Mang died on 06.03.1979 at Handigund village but only legal heirs of the deceased Yallappa is Shetteppa Yallappa Mang ie. present plaintiff as per vardi given under pavati warsa, the plaintiff
- 18 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR Shetteppa name entered in respect of land bearing R.S.No. 58 totally measuring 22 acres 5 guntas. Ex.D-5 is the certified copy of ME No. 403 which reveals that on 15.04.1995 the owner of land bearing R.S.No. 58 i.e. Shetteppa attained the majority for that his minor guardian name as per varadi given deleted and mutated the name of plaintiff is absolute owner. Ex.D-6 is the certified copy of ME No. 2458 which reveals that on 04.03.1996 land bearing R.S.No. 58 to the extent of 20 acres 5 guntas out of which 11 acres 3 guntas southern portion for consideration amount of Rs. 1,41,000/- paid by Suresh and purchased the said land on 31.01.1996 and as per varadi given khata mutated in his name. Ex.D-7 is the certified copy of ME No. 2499 which reveals that on 04.03.1996 land bearing R.S.No. 58 totally measuring 22 acres 5 guntas out of northern portion 11 acres 2 guntas purchased by the Suresh from Shetteppa and paid consideration amount of Rs. 1,41,000/- on 31.01.1996 so as per varadi given khata mutated in the name of Suresh.
19. Ex.D-8 is the certified copy of ME No. 3226 which reveals on 19.03.2001 the land bearing R.S.No. 49/3B and 58 owner Suresh and his brother Ramesh Subhan Renake they have got partitioned the family properties, in the said partition land bearing R.S.No. 49B measuring 1 acres 15 guntas western portion 27 guntas allotted to Suresh and land bearing R.S.No. 58 southern portion measuring 11 acres 2 guntas and 58 northern portion totally measuring 11 acres 3 gutnas and totally 22 guntas 5 acres land allotted to Ramesh and also land bearing R.S.No. 49/3 totally measuring 1 acre 15 guntas eastern portion 28 guntas land allotted to Ramesh who is none husband of defendant No.2. As per varadi given on 19.03.2001 khata muated in their name. Ex.D-9 is the MR No. 37/10-11 Ramesh has sold 5 acres land in R.S.No. 58 to Parappa as per sale deed Parappa name mutated. Ex.D-10 is the MR No. 367/2010-11
- 19 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR dated : 19.03.2011 the land bearing R.S.No. 58/1 measuring 5 acres, 58/2 measuring 6 acres 2 gutnas and 58/3 measuring 11 acres 3 guntas stands in the name of Ramesh. Ex.D-11 is the MR.H5/2014-15 the land bearing R.S.No. 49/4 measuring 27 guntas, 58/2 measuring 6 acres 2 guntas, 58/3 measuring 11 acres 3 guntas as per order dated : 26.08.2014 the said lands stands in the name of defendant No.2. Ex.D-12 is the RTC extract in respect of land bearing R.S.No. 58/1 measuring 5 acres stands in the name of Parappa Tamanna Kamaladinni. Ex.D-13 is the RTC extract in respect of land bearing R.S.No. 58/2 measuring 6 acres 2 guntas stands in the name of Suman Ramesh Renake. Ex.D-14 is the RTC extract in respect of land bearing R.S.No. 58/3 measuring 11 acres 3 guntas stands in the name of Suman Ramesh Renake. Ex.D-15 is the sale deed dated : 28.07.1995 which reveals that the plaintiff has executed sale deed in respect of land bearing R.S.No. 58 totally measuring 22 acres 5 guntas out of which southern portion 11 acres 3 guntas to Suresh Subash Renake. Ex.D-16 is the original sale deed dated : 31.01.1996 which reveals that Suresh Renake has purchased the land bearing R.S.No. 58 totally measuring 22 acres 5 guntas out of which northern portion 11 acres 2 guntas from Shetteppa who is plaintiff in this case. Ex.D-17 is the voter list which reveals that the present plaintiff Shetteppa age mentioned as 56 years.
20. On perusal of cross examination of DW-1 he stated that his mother is Sugar, B.P. patient to show that no document has been produced. But he admitted that the suit land originally belonging to plaintiff father is true. The said land plaintiff father purchased through registered sale deed is true. In the said sale deed record Yallappa name was entered. But he stated that Shetteppa executed registered sale deed to him. At the time of purchase of suit land by them Yamanppa name in record of
- 20 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR rights not there. The said Yallappa died in the year 1979 at that time his wife Putalabai was alive or not he was not remembers. Yallappa died in the year 1979 after that his wife and son Shetteppa i.e. plaintiff having legal heirs are there. But he stated that the plaintiff Shetteppa only the legal heir. The mother of plaintiff Putalawwa when she was died he don't know. After the death of Yallappa his son i.e. plaintiff Shetteppa name was entered in record he has seen. Ex.P-6 ME No. 1438 shown to him contents written is correct is true. But he denied that Ex.P6 ME No.1438 the contents written that Shetteppa minor guardian uncle Yamanappa mother Tangewwa Mang is written. The death certificate of Putalabai i.e. Ex.P-8 shown to him it reveals that on 11.03.1998 Putalabai died is true. Ex.D-5 dairy No. 2403 shown to the witness the said entry for which document got entered he don't know. The said dairy muted before the plaintiff was major and at that time he was 25 years age. Shetteppa attained the age of majority and he was age 25 years at the time of purchase of suit land Ex.D-5 mutation dairy he has seen. Further in Ex.P-9 birth certificate of Shetteppa shown to him. He stated that the said document is false. The said document is false question put him, but he has not challenged. But he denied that the said Ex.P-9 certificate false stated as created document. In Ex.D-15 & 16 in the year 1995- 96 before executing sale deed he was not present. But his uncle Suresh Renake purchased in his name and on that he has present. It is denied that the said Suresh was alive. In Ex.D-15 & 16 execution of sale deed at that time he was not present. For that he has no information about the said sale deed. But he stated that regarding said sale deed he got information from his uncle. Further he clearly admitted that Rjâ ¥ÀvæÀ ªÀiÁqÀĪÀ PÁ®PÉÌ ±ÉmÉÖ¥Àà£ÀÄ DeÁÕ¥Á®PÀ EzÀÝ §UÉÎ £ÀªÄÀ ä zÉÆqÀØ¥àÀ «ZÁgÀ ªÀiÁrgÀ§ºÀÄzÀÄ DzÀgÉ AiÀiÁªÀ zÁR¯É £ÉÆÃrgÀÄvÁÛgÉ CAvÁ £À£ÀUÉ UÉÆwÛ®.è The plaintiff has not
- 21 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR gone to the school, so no documents are there he don't know. Further he stated that in Ex.D-17 from voter list produced which document base it is entered he don't know. But he denied the other contents.
21. DW-2 who is son of Nagappa Holeppa Gunaki the said Nagappa was the bond writer when he was summoned to give evidence it is reported as Nagappa was died so in Ex.D-15 & 16 written by the Nagappa to identified his signature and document his son examined as DW-2. He admitted that on 28.07.1995 original sale deed shown to him the sale deed written by his father Nagappa and also deposed that on 28.07.1995 his father written the sale deed as a scribe. The scribe license No. 44 his father written and put his signature and his father died on 11.052007 and his father 42-44 years he has working as bond writer. In Ex.D-15 recital written by his father hand writing the said hand writing of his father he identified and also his father signature identified the said signature marked as Ex.D-15(a). Further another original sale deed on 31.011996 shown to him the said document is also written by his father Nagappa on 31.01.1996. The said document his father as a bond written he was written his licence No. 44. Further he deposed that he identified his father signature it is marked as Ex.D-16(a). The said witness cross examined by the plaintiff counsel he admitted that his father died on 11.05.2007. He stated that alongwith his father to written document he has not doing said work. In the present case who has filed suit to whom he don't know. In the present case who from whom suit filed he don't know. But he came to give evidence his father written the document. His father written the document for his hand writing he identified. In Ex.D-15 & 16 shown to him in every page his father signature not there. But his father put his signature in last
- 22 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR page. In Ex.D-16 written at that time he was not there. The said document he has know personal knowledge.
22. The plaintiff counsel in their written argument submitted that plaintiff has filed this suit against the Defendants for a relief of declaration and permanent injunction to declare that the Plaintiff is the owner and possessor of the suit property as stated in the Schedule-B of the Plaint under three different strips in R.S.No.58 of Gollbhavi village. The Plaintiff is claiming rights over the suit property as owner and in possession on the basis of a registered sale deed dated 22/11/1949 executed in favour of his father Yallappa s/o.Shetteppa Mang Gangappagol from shegunashi family. on the basis of registered sale deed name of said Yallappa came to duly certified as per M.E.No:972. The said Yallappa died on 06/03/1979 leaving behind him the plaintiff his son and his wife Putalawwa who died on 11/o3/1998. Further stated that on the date of alleged sale transaction plaintiff was minor his natural mother was the guardian. It is pleaded that earlier to Plaintiff, Plaintiff's father and thereafter he himself and his mother as a minor guardian of Plaintiff and from the date of attaining majority, Plaintiff is in physical possession and enjoyment of the suit property and no one are there in the possession and enjoyment of the suit property. mother was the guardian. The Defendants who are nowhere related either to the suit schedule property or to plaintiff have started obstructing the peaceful possession and enjoyment of the suit property. The Defendants are claiming rights over the suit schedule property on the basis of a false and bogus documents styled as sale deeds dated 28/07/1995 and dated 31/01/1996, which have been alleged to be executed by the present Plaintiff in favour of one Suresh S/o. Subhan Renake and in turn thereafter as partition between Suresh and his brother Ramesh whole suit property fallen to the share of
- 23 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR Ramesh as per M.E.3226, is the story built up by defendants. So also they have stated in their W.S. said Ramesh has sold 05 Acres Defendant No.1 on dated 06/08/2010, accordingly there was phodi division so Sy.No, 58/1 is standing in name of Defendant No.1 and Sy.No.58/2 and 3 stood in the name of Ramesh Renake and that Ramesh died on 30/06/2014 and his wife present Defendant No.2 got her name mutated by way of Succession. It is the case of Plaintiff that he born on 15/07/1978 as per the birth certificate produced by him which is marked as Ex.P9, which clarifies his age as he has attained the age of majority 2807/1995 and dated:31/01/1996 which have been relied by the Defendants under Ex.D15 and DI6 clearly establishes the fact that the Defendants by practicing fraud and undue influence colluding with the revenue authorities and scribe have got executed false and bogus, fraudulent sale deeds by a minor as on the date of execution of sale deeds, naturally presumption can be drawn that the said sale deeds have been obtained by practicing fraud. The basic document regarding proof of age of a person is the birth certificate which is relevant document issued by municipal corporation which has been held in: AIR 2010 SC 2933 (MANU/SC/0596/10), from our Hon'ble Supreme court which is not overruled. Further it is submitted that as on the date of execution of sale deeds dated 28/07/1995 and dated:31/01/1996, the Plaintiff was minor Article 59 of the Limitation Act will have no application and that the said transaction being void ab intio and When a transaction is void, as such suit can be filed at any time after getting the knowledge of creation of false and bogus sale deeds by playing fraud and undue influence, so the provisions of the Limitation Act i.e. Sec.59 are not attracted. On the contrary the provision of Sec-22 and 95 of the Act will attracted. So suit is in time which held in: 2004 8 SCC 706, From our Hon'ble Supreme Court and unreported ruling in RFA No.796/09 of our own High
- 24 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR court. Moreover the fraudulent misrepresentation was with respect to the contents and not the character of the document the transaction is void abitio. Therefore, the suit for setting aside the sale deed would be governed by Article 22 and 95 of the Limitation Act, 1908. Since the Article prescribes a period of limitation of 3 years from the time when the fraud became known to the party wronged, and the suit in the present case was filed within a few days after the Plaintiff came to know of the fraud which is on 14/07/2017, when the Defendants on 01/07/2017 started obstructing the physical possession and enjoyment of the suit property of Plaintiff. Which is held in : AIR 1968 SC 956 from Hon'ble Supreme court which is not overruled.
23. Further argued that as per Section 68 of the Evidence Act mandates that a document which requires registration and compulsory attestation when the execution of the document is denied by the executor, the examination of attesting witnesses to prove the execution is compulsory and mandatory. When execution of sale deeds are denied by Pw.1 plaintiff, the defendants ought to examine attesting witnesses to Ex.D15 and D16 even though documents are registered, as prudent man. Even though in whose favour Ex. D15 and D16 alleged to have executed by plaintiff is alive and some of the attesting witnesses are alive, those have been not examined by defendants. Even the defendants not taken any strained to come in witness box and given evidence in proof of their case. In fact it is necessary as held in: 2005 (2) KCCR 821 (MANU/KA/0636/2004), AIR 1973 Bom 242. Further the son of scribe writer DW.2 is examined before the Court who has clearly admitted that at the last page of the sale deeds, the signature of his father is present but there is no seal affixed on the said page, which clarified his none presence at that time and which
- 25 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR in itself is sufficient to establish the fact that the sale deeds are not genuine and legal documents and are not prepared in his presence and that they are obtained by playing fraud and undue influence by taking disadvantage of illiteracy and innocence of poor plaintiff so as to grab valuable suit property with a meager amount. In proof of issue No.1,2 and 6 the plaintiff in proof of plaint contents, he reiterated the same in his chief examination affidavit under Pw.1, and proved the same by producing and exhibiting M.E No.754 and 972 under Ex.P4 and P5. The plaintiff also given oral evidence by producing and marking the death and birth extracts of his father mother and himself under Ex.P7 to P9, which are basic document in proof of death and birth of particular person. The plaintiff also produced Ex.P6 which clarifies under M.E No.1438 that there is no base to certify the age of plaintiff, by showing name of uncle of plaintiff even though plaintiff's mother was alive who is natural guardian So this Exhibit is not having evidencery value, if this is R/W Ex.D5 i.e. M.E.No.2403. These two documents are not based on any basic documents known under the evidence act. Except the denial of the chief examination of affidavit, the counsel of defendant not taken any strain. Nowhere in the cross examination PW.1 not at admitted the possession and ownership of defendants and their predecessor. Except the contents of Ex.P1 to P3 no independent documents have been confronted to Pw.1 to corroborate Ex.P1 to P3. Except Ex.D15 and D16, which are seriously disputed and denied documents by PW.1. Much reliance has been made with regards to the entries in R.T.C's from 1996- 97 and onwards and not prior to. The defendant counsel tried to show the possession of defendant in the suit property by crossing Pw.1 that defendants have spent lakhs together money for developing suit land, digging bore well for growing sugar cane. Same has been denied by PW.1, no independent documents to corroborate the said contention are
- 26 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR produced. On the contrary by denying contents of Ex.D15 and D16, the plaintiff successfully proved that his possession after the death of his father and mother is continued. So the entries of name of defendants in the R.T.C's of suit property are not having presumptive value under Section.133 f KLR Act as those are rebutted. It is the case of the plaintiff that he is in possession of the suit property by way of varsa, these defendants have started illegal obstruction to the peaceful possession and enjoyment of the suit property by creating false bogus documents. Pw.2 and 3 also stated the same fact. The defendants not taken any strain to disprove the same. The entries in R.T.C's of suit property clarifies clear obstruction, relying on which the plaintiff approached this Hon'ble court. In denial of issue No.3 the plaintiff totally dined the contention of Ex. D15 and D16. It is the bounden duty of defendants to prove these two documents by the mode provided under registration Act and Indian Evidence Act as stated above. The basic document to prove the age of plaintiff on the date of execution Ex. D15 and 16 is the document at Ex.P9. There is no any ontrary document to disprove Ex. P9, So Ex. P9 is having evidencery value U/s.35 of Indian Evidence Act, Much has been made in the cross examination of PW-1 that Ex. P9 is the creation during the pendency of this suit. When the Ex.P9 is not challenged before proper forum, It has presumptive value under eye of law. So it is to be presumed to be true until contrary proved. As the defendants not at all produced any of the disproving documents of Ex.P9. If this Hon'ble court admitted the contents of Ex.P9 defendants will have no case at all. At none of occasion the defendants proved the contents of Ex.D15 and 16 by getting and examining the vendee and attesting witnesses to said documents, which is mandatory under the provisions of Indian Evidence Act. The plaintiff is going to highlight the contents of section.68 of Indian Evidence Act. If a
- 27 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR document is required by law to be attested, it shall not be used as evidence until one attesting witness at list has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to process of the court and capable of giving evidence.
24. On the other hand defendant No.2 counsel in their written argument submitted that the plaintiff has produced record of rights of suit schedule-"B" properties for the years 2016-17 dated 28/06/2017 as Exhibits P-1 to P-3. These documents shown that, both in column of ownership and column of cultivators, the name of defendants No. 1 and 2 are appearing to the extent of their title. The defendant No. 2 has produced Record of rights of Schedule-"B" property from the year 1964 to 2000-01 at Ex-D3, on perusal of there RTC records, from the year 1996 on wards, the name of predecessor in title, Suresh Subhan Renake appears as owner and kabjedar and cultivator of the suit lands. The original sale deeds produced by defendant No. 2 at Ex-D 15 and D-16 it is seen that, plaintiff himself has sold the suit lands under Registered sale deeds dated 28/07/1995 nd 31/01/1996 in favour of Suresh Subhan Renake for valuable consideration and handed over the possession of suit lands in favour of Suresh Subhan Renake. Since then defendants and their predecessor in title are in lawful, actual, physical possession of the suit schedule-"B" properties till the date of suit. The fact of sale transaction have been mutated in the record of rights in favour of Suresh Subhan Renake and defendants No. 1 & 2 vide M.E. No. 2498, 2499 and 3226 of Golabhanvi village at Exhibits D-6 to D-8. On perusal of these Revenue records it is cristal clear that, since from 1995 to 2017 nearly more than 22 years continuously the names of the defendants and their predecessor in title are in lawful possession having legal and valid title in respect suit schedule
- 28 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR properties. Land revenue records from the date of sale deed till today raise the presumption of title in favour of defendants. Apart, on perusal of sale deeds, plaintiff (Shetteppa) himself has admitted before sub-registrar regarding execution of the sale deeds and sub-registrar endorsed the same in the sale deeds. It was identified by witnesses. The plaintiff, being executants of the sale deeds admits regarding receipt of consideration. On the face of such admissions of execution, and appearance before sub-registrar and admitting execution by himself and it is certainly not open to the plaintiff to sue after a period of 22 years. Hence plaintiff is stopped to deny the execution of legal sale deeds. It is further submitted that, as per provisions of Or. 6 Rule 4 of C.P.C. mandates that, in every cases, when the plaintiff alleges, froud, mis-representation, or undue influence etc., it requires that, necessary particulars are to be supplied in plaint, so that, opposite party can meet the points. Bald and general allegations cannot be taken in consideration. Material particulars such as, when, now, who in what manner and for what purpose fraud is practiced and who colluded with whom in what manner must be pleaded and proved. In the instant case no such particular are pleaded and proved. No independent witness have been examined by plaintiff to prove fraud, only self and imaginary allegations are not sufficient. The defendant counsel relied on :
ILR 1999 Karnataka Short Note No. 5AIR 1996 S.C. 1441 dyadhar V/s Manikrao and others, ILR 1989 Karnataka 425 K. Mariyappa V/s K.T. Siddaling Shetty The said decisions are clearly applicable to the facts and circumstances of the case.
The plaintiff with malafide intention to mislead the Hon'ble Court, during the pendency of the suit proceedings, has tried to create a false evidence through Exhibit P-9, birth certificate of
- 29 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR plaintiff in order to show that, plaintiff Shetteppa was minor on the date of execution of Registered sale deeds on 28/07/1995 and 31/01/1996.
25. I have perused the oral and documentary evidence adduced by the plaintiff and defendants and written argument submitted by respective counsel. The plaintiff has filed this suit for declaration and permanent injunction against defendant No.1 & 2. It is specific contention of the plaintiff that he is the owner in possession of suit schedule-"B" properties. The plaintiff has contended that original suit land bearing R.S. No. 58 measuring 22A-05Gs of Golabhanvi village is the self acquired properties of his father Yallappa mother Tangewwa Mang purchased under Regd. sale deed dated 22.11.1949 and he died on 06/03/1979. After his death at the time plaintiff was minor and he was only son of his father. It is further case of the plaintiff that on 15/04/1995 his minor guardianship of his uncle Yamanappa Mang was deleted since he was attained majority. After the death of his father he was the absolute owner of suit schedule property. The defendants have created the sale deed dated : 15.04.1995 and 31.01.1996 in respect of land bearing R.S. No. 58. The defendants have got mutated their names in revenue records on the basis of false and bogus sale deeds and they have committed fraud upon plaintiff. The said fact recently came to know that the defendants have obstructed his possession over the suit lands, that defendants have got mutated their names behind his back without his knowledge, on the basis of false sales deeds and he denied the title of plaintiff on 01/07/2017. In this regard on perusal of Ex.D-15 & 16 original sale deeds produced by the defendant reveals that at the time of execution of sale deed on 28.07.1995 and 31.01.1996 the age of plaintiff mentioned that 25 years and another sale deed age of the plaintiff mentioned that 25 years.
- 30 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR The said sale deeds are standing in the names of defendants since 1995 till the date of filing of the suit in the year 2017 for more than 22 years. But the plaintiff has contended that he has not executed sale deed. The said sale deed got created by the defendant collude with scribe and attesting witness. Further to show he was minor at the time of execution of sale deed the plaintiff has produced Ex.P-9 the birth certificate issued by the Mudhol Court. The said document is not conclusive proof. Further on perusal of Ex.D-15 plaintiff uncle Yamanappa was put his thumb impression. The plaintiff himself executed the said sale deed before Sub-Registrar office. Now he submitted that he has not executed these sale deeds. But he has challenged himself because he is author of the said document which is executed on 28.07.1995 & 31.01.1996. On perusal of Ex.D-16 which reveals that land bearing R.S.No. 58 totally measuring 22 acres out of which northern portion 11 acre 23 guntas executed by the plaintiff himself in favour Suresh Renake on perusal of the attesting witness to the said sale deed plaintiff mother put thumb impression as Putalabai and his uncle is also put thumb impression and if plaintiff mother got share in respect of suit schedule property. As on the date of execution he really objected to execute sale deed in favour of Suresh. But she has never objected before sub registrar at the time of execution of sale deed the plaintiff was minor so the contention taken by the fraud created by the defendants colluding scribe hold no water. The defendant No.2 has denied allegation of plaintiff that his predecessor have played a fraud upon plaintiff in respect of Regd. sale deeds dated 28/07/1995 and 31/01/1996 since from the date of sale deed the plaintiff and his mother not in possession of suit schedule property. The plaintiff in plaint he has not specifically pleaded that U/Or. 6 Rule 4 CPC no particulars regarding, who, when, how and in what manner and for what purpose fraud has been created are
- 31 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR not forthcoming in the plaint and only he has made bald allegations of fraud is not sufficient. So to corroborate his evidence he has not examined any of the witnesses.
27. The plaintiff counsel at the time of argument he has contended that sale deed execute seriously challenged by the plaintiff the burden shift on the defendant to prove that the said sale deed executed is genuine and valid but they have not examined as per Sec. 68 of Evidence Act. If the attesting witness died in the said sale deed some other attesting witness are not examined by the defendant to prove the said sale deed. But on perusal of Ex.D-15 & 16 produced by the defendants clearly reveals that as on the date of execution of sale deed the plaintiff was major if he was minor his mother have got right she definitely objected to execute sale deeds. The Ex.P-9 i.e. birth certificate issued by JMFC Mudhol court on 25/10/2018 and Registered on 25/10/2018 only. It is issued by JMFC Mudhol U/sec. 8 of Karnataka Rules 13(3) of Birth and Deaths Registration rules. At the time of issuance of said document proper rules and procedures are followed to show plaintiff has not produced any enquiry documents and also not examined concerned officials who has issued the birth certificate as per order and direction of Mudhol court. The plaintiff has suppress fraud upon the court. At the time of obtaining birth certificate the plaintiff has not furnished the details of persons who are affected by the entry of birth certificate and also not produced Voter I.D., Aadhar Card sale deeds in respect of age. The plaintiff himself suppression of material fact before the Mudhol court and obtaining the Ex.P-9. Moreover the birth certificate is not conclusive proof to rely on the said document. But in this case at the time of filing of the suit plaintiff has not produced the birth certificate after completion of cross examination for him later he sought time to produced birth certificate after that
- 32 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR recalling him to lead further chief, then he produced the Ex.P-9. It shows that as on the date of execution of sale deed he was major. He was appear before Sub-Register if plaintiff was minor sub register was not permitted to execute sale deed. So birth certificate Ex.P-9 produced subsequent document and it is not conclusive proof of consideration. Hence it is ignored.
28. The documents produced by the defendants clearly reveals that after the Registration of sale deeds, the names of Suresh Subhan Renake has been mutated under M.E. No. 2458 & 2499 on 04/03/1996 under Ex.D-6 and D-7 respectively. These mutations have been final and conclusive proof of title and possession for the last 25 years or more and submitted that on perusal of original sale deeds Ex-D-15 and D-16, the plaintiff himself is the executants of these sale deed and there is endorsement by sub-Registrar executed of the document is created. The witnesses have identified the execution of the plaintiff. So U/Sec. 67 and 68 of Evidence Act sale deed is not document which does not requires examination of attestation. During the course of argument the defendant counsel relied upon ILR 1999 Karn. Short note No. 5 & AIR 1996 SC page 761. The said decisions are clearly applicable to the present facts and circumstances of the case. So the sale deed executed by the plaintiff dated : 28/07/1995 is legal and valid and it is binding on plaintiff and he himself is author of this sale deed and also birth certificate produced by the plaintiff as Ex.P-9 not conclusive proof to consider and it is no evidencary value in the eyes of law. No rights are created under this act by mere registration of birth and deaths will not help the plaintiff. So the material available on records and the oral and documentary evidence adduced by the respective parties the profounder probability in favour of defendant. The plaintiff has failed to prove as on the date of suit he is the owner and possessor of
- 33 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR the suit schedule "B" properties and defendants are obstructing his peaceful enjoyment of suit property and also the plaintiff further failed to proves that, defendants or their predecessor-in- title have played fraud upon the plaintiff in getting the execution of the sale deeds in respect of suit properties. On the other hand the defendant No.2 proves that, his predecessor in-title Suresh S/o Subhan Renake purchased southern portion of 11 acres 3 gutnas out of R.S.No. 58 measuring 22 acres 5 guntas of Golabnavi from the plaintiff under Regd. Sale deed dated :
28.07.1995. Accordingly I answered Issue No.1, 2 & Addl. Issue No.1 in the Negative and Issue No.3 in the Affirmative.
29. Issue No. 4: As per issue No.4 the burden cost on the defendant No.2 proves that suit is barred by law of limitation.
The defendants have produced Ex.D-15 & 16 on perusal of the same reveals that as on the date of execution of sale deed plaintiff was major his mother also put thumb impression as attesting witness to the Ex.D-16 and his uncle also attesting to witness to the Ex.D16 hence the minor guardian when the plaintiff attained majority it was discharged as per Ex.D-7 produced by the defendant No.2 said ME No. 2403 not challenged by the plaintiff. The plaintiff himself admitted in plaint para No.6 that on 06.03.1979 the said Yallappa died due to his old age leaving behind him and his mother Putalawwa. The said Putalawwa died on 11.03.1998 leaving behind her son i.e. present plaintiff as only her legal heir. As plaintiff was the minor, after the death of his father naturally the name of plaintiff got appeared in the RTC of the suit property under the guardianship of his uncle Yamanappa Mang under M.E No:
1438. So, when the present plaintiff attained majority his name came to be independently appeared in the RTC of the suit properties under M.E No: 2403 same has been duly certified. To corroborate said plaintiff himself produced Ex.P-6 ME No. 1438
- 34 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR and Ex.D-4 and also on perusal of Ex.D-5 i.e. ME No. 2403 produced by the defendant No.2 clearly reveals that on 15.04.1995 land bearing R.S.No. 58 owner Shetteppa his minor guardian uncle Yamanappa Mang is there. The said Shetteppa attained the age of majority his guardian his name is deleted as per varadi given ME No. 2403 mutated. So as per Sec. 58 of Evidence Act admitted fact need not be proved. The said Ex.D-5 not challenged by the plaintiff before competent court. The sale deed produced by the defendant plaintiff being party to the said sale deed it is got constructive judicial notice of execution of sale deed under ExD15 and D-16. Hence his knowledge starts from the date of execution of sale deeds. The plaintiff after lapse of 22 to 24 years, he has challenged the said sale deed without signature cancellation of the deed. So plaintiff cannot file suit for declaration that, sale deeds void and not binding on him. As per Article 56 and 59 of limitation Act, he has filed suit within 3 years from the date of execution of sale deed. Hence I am of the opinion that the suit filed by the plaintiff barred by law of limitation. Accordingly, I answered Issue No.4 in the Affirmative.
30. Issue No.5 : The defendant in their written statement para 23 & 24 contended that during the life time of Ramesh Subhan Renake, has sold a portion of 5A-00G out the strips of land, out of 11A-02Gs in favour of defendant No. 1 under Registered sale deed dated 06/08/2010 and on the basis of sale deed the name of defendant No. 1 has been mutated under M.R. No. 37/2010- 11 of Golabhanvi village. It is final and conclusive. The defendant No. 1 is bonafide purchaser for value without notice. It is further submitted that, after sale of portion of 5A-00G in favour of defendant No. 1, there is a phodi-
division in the R.S. No. 58 of Golabhanvi village and as per phodi following numbers have been effected. R.S. No. 58/1
- 35 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR measuring 5A-00G Parappa Tammanna Kamaladinni. R.S. No. 58/2 measuring 6A-02Gs Ramesh Subhan Renake. R.S. No. 58/3 measuring 11A-03Gs Ramesh Subhan Renake. Certification of these entries are legal and valid and became final and conclusive and are binding on plaintiff. The plaintiff himself has sold entire property of R.S. No. 58 then measuring 22A-05Gs under two sale deeds dated 28/07/1995 and 31/01/1996 are legal and valid according to law. The Revenue entries for the in the record of rights produced by the defendant clearly reveals that last 22 years title of defendants shown. In this regard in written statement paras No. 23 and 24 the present suit Sy. No. 58/1, 58/2 and 58/3 have been mutated as per M.R. No. 37/2010-11 of Golabhanvi village. The Subash has purchased the suit land from the plaintiff under two sale deeds after that he has sold 5 acre land in favour of defendant No.1 in the years 2010 since from execution of sale deed the defendant No.1 was in possession of 5 acre land and defendant No.2 after the death of her husband the said property was inheritance by way of succession so she is absolute owner of suit land. On perusal of Ex.D-12 i.e. RTC land bearing R.S.No. 58/1 totally measuring 5 acres lands stands in the name of defendant No.1 i.e. Parappa khata mutated ME No. 37/2010-11, under partition dated : 30.09.2010. Further Ex.D- 13 shows that land bearing R.S.No. 58/2 at Golabhanvi village measuring 6 acres 2 guntas stands in the name of Suman Renake as per Ex.D-14 R.S.No. 58/3 measuring 11 acres 3 guntas stands in the name of Suman Renake khata muated under MR.H-5/2014-15 under pavati warsa dated : 26.08.2014. It shows that after the death of her husband the defendant No.2 name was entered in respect of land bearing R.S.No. 58/2, 28/3. The defendant No.2 has proved as alleged written statement para-22 & 23. Accordingly I answered issue No. 5 in the Affirmative.
- 36 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR
31. Issue No.6 : The plaintiff has filed this suit for declaration and injunction against the defendants. As per issue No.1 & 2 Addl. Issue No.1 are concerned the plaintiff has failed to prove that he is owner and possessor of suit schedule "B" properties and also alleged obstruction to his peaceful possession and enjoyment of the suit schedule property, and also failed to prove that defendants or their predecessor-in-title have played fraud upon the plaintiff in getting the execution of the sale deeds in respect of suit properties. Accordingly the plaintiff is not entitled for any relief as sought. Accordingly I answered Issue No.6 in the Negative.
32. Issue No. 7 : In view of my findings Issue No. 1 to 6, I proceed to pass the following;
ORDER The suit of the plaintiff is hereby dismissed. No order as to costs.
Draw decree accordingly.
14. As can be seen from the impugned judgment and decree, the Trial Court has taken note of the fact that the appellant was a major, aged about 25-26 years at the time of execution of the Sale Deeds dated 28.07.1995 and 31.01.1996.
In the absence of any prayer for cancellation of the said Sale Deeds, as mandatorily required under Section 31 of the Specific Relief Act, 1963, the suit for declaration and injunction simpliciter, without seeking such cancellation, was not
- 37 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR maintainable and was liable to be dismissed on this ground also, especially when the appellant/plaintiff was a party to the said Sale Deeds, having executed them as a vendor. Under this circumstances also, the Trial Court was fully justified in rejecting the claim of the appellant/plaintiff and upholding the claim of the respondents/defendants.
15. The Trial Court has also taken note of the fact that the Sale Deeds dated 28.07.1995 and 31.01.1996 (Ex.D15 and Ex.D16) were executed in the years 1995 and 1996 respectively, whereas the present suit was filed on 21.07.2017, after lapse of more than 21-22 years from the date of execution of the said Sale Deeds. In this context, it is relevant to note that Article 59 of the Indian Limitation Act, 19632, prescribes a period of three years from the date on which the facts entitling the appellant/plaintiff to have the instrument or decree cancelled or set aside, or contract rescinded, first became known to him. A perusal of the plaint allegations in this regard indicates that there are absolutely no material particulars and details as to when the appellant/plaintiff became aware of the Sale Deeds executed by 2 Hereinafter referred to as the 'Limitation Act'
- 38 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR him in favour of the predecessor of defendant No.2. On the contrary, apart from merely stating that he was an innocent villager, who was illiterate and rustic person with no worldly knowledge, the plaint is conspicuously silent as to the date, year or time when the appellant came to know about the said Sale Deeds.
16. Under these circumstances, the Trial Court was fully justified in holding that the suit of the plaintiff having not been filed within a prescribed period of 3 years as contemplated under Article 59 of the Limitation Act, was hopelessly barred by limitation, and consequently proceeded to dismiss the suit on this ground.
17. Upon reconsideration, revaluation and reappreciation of the entire material on record, we are of the considered opinion that the Trial Court was fully justified in rejecting the claim for title and injunction sought for by the appellant/plaintiff and upholding the reasons put forth by the defendants/respondents by passing the impugned judgment and decree, which cannot be said to suffer from any illegality or infirmity nor can be said to be perverse or capricious, warranting interference by this Court in
- 39 -
NC: 2025:KHC-D:10843-DB RFA No. 100477 of 2019 HC-KAR the present appeal. The point Nos.(i), (ii) and (iii) formulated above are accordingly answered against the appellants.
18. There is no merit found in the present appeal and accordingly, the present appeal is dismissed.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE Sd/-
(C.M. POONACHA) JUDGE PMP CT-MCK List No.: 1 Sl No.: 23