Karnataka High Court
Sri. Naganath S/O Yamanappa Jiral vs Smt. Boodamma W/O Hampanna Kawali on 7 August, 2023
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NC: 2023:KHC-K:6219
RSA No. 200420 of 2014
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200420 OF 2014 (DEC/INJ)
BETWEEN:
SRI. NAGANATH
S/O YAMANAPPA JIRAL,
AGED ABOUT :61 YEARS,
OCC: PVT. EMPLOYEE,
R/O GOBBUR VILLAGE,
TQ: DEODURGA
DIST: RAICHUR - 584101.
...APPELLANT
(BY SMT. REKHA PATIL, ADVOCATE FOR
SRI. G.G. CHAGASHETTY, ADVOCATE)
Digitally signed
by SHILPA R AND:
TENIHALLI
Location: HIGH 1. SMT. BOODAMMA
COURT OF
KARNATAKA W/O :HAMPANNA KAWALI,
AGED ABOUT:54 YEARS,
OCC: AGRI,
R/O GABBUR VILLAGE,
TQ: DEODURGA DIST: RAICHUR.
2. MALLAPPA S/O HAMPANNA KAWALI,
AGED ABOUT: MAJOR,
OCC: AGRICULTURE,
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NC: 2023:KHC-K:6219
RSA No. 200420 of 2014
3. GANESH S/O HAMPANNA KAWLI,
AGED ABOUT: MAJOR,
OCC: AGRICULTURE,
ALL ARE R/O GABBUR VILLAGE,
TQ: DEODURGA,
DIST: RAICHUR - 584 101.
...RESPONDENTS
(BY SRI. SACHIN M. MAHAJAN, ADVOCATE)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO
ALLOW THIS REGULAR SECOND APPEAL AND TO SET ASIDE
THE JUDGMENT AND DECREE DATED 08.08.2014 PASSED
BY THE LEARNED ADDL. SENIOR CIVIL JUDGE RAICHUR
(ITINEARY COURT AT DEVADURGA) IN R.A.NO.71/2013,
DISMISSING THE APPEAL AND CONFIRMING THE ORDER
DATED 17.09.2013 PASSED BY THE LEARNED CIVIL JUDGE
DEVADURGA IN O.S.NO.10/2010, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal by the plaintiff on concurrent findings, assailing the judgment and decree dated 08.08.2014 in R.A. No.71/2013 on the file of the Additional Senior Civil Judge, Raichur, (Itinerary Court at Devadurga) confirming the judgment and decree -3- NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 dated 17.09.2013 in O.S. No.10/2010 on the file of the Civil Judge and JMFC, Devadurga.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. The appellant/plaintiff filed a suit for declaration that he is the absolute owner of the suit schedule property under the unregistered sale deed dated 11.04.1978, declaring that the judgment and decree passed in O.S. No.48/1996 is not binding on the plaintiff for permanent injunction. The defendants/ respondents contested the suit by filing written statement contending that the father of defendant Nos.2 to 3 was in possession as an absolute owner of the suit schedule property and on his death, the present defendants are in possession and enjoyment of the suit schedule property as absolute owners. -4-
NC: 2023:KHC-K:6219 RSA No. 200420 of 2014
4. The Trial Court on the basis of the pleadings, framed the following issues:
"1. Whether the plaintiff proves that, he became absolute owner of suit property by virtue of unregistered agreement of sale?
2. Whether the plaintiff further proves that he is in actual possession of the suit property as on the date of suit as contended in plaint para no.3 and 4?
3. Whether the plaintiff proves the alleged interference of the defendants?
4. Whether plaintiff is entitled to the relief's sought in this suit?"
5. In order to substantiate case, the plaintiff examined himself as PW.1 and two witnesses as PW.2 and PW.3 and got marked documents at Exs.P.1 to P.16. On the other hand, defendant No.1 examined herself as DW.1 and two other witnesses as DW.2 and DW.3 and got marked documents at Exs.D.1 to D.6.
6. The Trial Court on the basis of the pleadings, evidence and material on record held that: -5-
NC: 2023:KHC-K:6219 RSA No. 200420 of 2014
a) The plaintiff has failed to prove that he is the absolute owner of the suit schedule property by virtue of unregistered agreement of sale;
b) The plaintiff has failed to prove the actual possession of the suit schedule property;
c) The plaintiff has failed to prove the alleged interference by the defendants.
And by impugned judgment and decree, the Trial Court dismissed the suit of the plaintiff.
7. Aggrieved by the judgment and decree of the Trial Court, the plaintiff preferred regular appeal before the First Appellate Court. The First Appellate Court on re- appreciation of the material on record and on facts, confirmed the judgment and decree of the Trial Court. Aggrieved by which, the plaintiff is before this Court.
8. Heard Smt. Rekha S. Patil, learned counsel appearing for Sri. G.G. Chagashetti learned counsel for the appellant and Sri. Sachin M. Mahajan, learned -6- NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 counsel for the respondent and perused the entire material on record.
9. It is undisputed fact that the father of defendant Nos.2 and 3 and husband of defendant No.1 one Hampanna had filed a suit in O.S. No.48/1996 for permanent injunction against one Basawaraj, S/o Mallappa Badal and Shivappa, S/o Mallappa Badal and the said suit came to be decreed holding that the plaintiff is in possession of the suit schedule property and the defendants therein were restrained by way of injunction from interfering with the peaceful possession and enjoyment of the suit schedule property permanently. It is also not in dispute that the plaintiff is claiming ownership of the suit property by virtue of an unregistered sale deed dated 11.09.1978, according to the plaintiff, the father of the plaintiff has purchased the suit property through unregistered sale deed at Ex.P.1 duly executed by one Sharanappa S/o Budeppa and on death of the plaintiff's father, the plaintiff has -7- NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 been the absolute owner, in possession of the suit schedule property. The plaintiff, to establish that he is in possession of the suit schedule property, has produced tax paid receipts. The plaintiff contended that O.S. No.48/1996 is a collusive suit and the said judgment and decree is not binding upon the present plaintiff.
10. The Trial Court held that the document at Ex.P.1 is an agreement of sale and not a sale deed, since the recital states that whenever vendee calls upon the vendor to execute the sale deed, the vendor would come to the Sub-Registrar's office without any objections and would execute a registered sale deed. The Trial Court has also held that an unregistered sale deed cannot be witnessed as a valid title on the suit property and the plaintiff, having not made any efforts to get the sale deed registered since 1978 from the true owner, has miserably failed to prove the title and lawful possession over the suit property. The Appellate -8- NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 Court, on re-appreciation of the entire material on record and re-appreciating the evidence, held that Ex.P.1 is nothing but an agreement of sale, on perusal of recital of the said documents and the plaintiff, having not exercised his right over the suit property, has failed to prove that he is the owner in possession of the suit schedule property.
11. Section 17 of the Registration Act, 1908 reads as under:
"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether -9- NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted
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NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (l) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument
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NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding]; or
(vii) any grant of immovable property by [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
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NC: 2023:KHC-K:6219 RSA No. 200420 of 2014
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or [(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. [Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or
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NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered."
12. Section 49 of the Registration Act, 1908 reads as under:
"49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received
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NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.]"
13. A perusal of the above provisions would emphasize the necessity of the registration of the document and the plaintiff's claim title on basis of an unregistered sale deed, cannot create any valid title in the eye of law. The Courts below have held on facts that, Ex.P.1 does not create any right in favour of the plaintiff and the documents do not establish that the plaintiff is in possession of the suit schedule property, more particularly, in light of O.S. No.48/1996 being a decree of permanent injunction in favour of the defendants. The plaintiff has to establish his right over the suit schedule property based on the pleadings and evidence, having failed to establish the same, the Trial Court and the First Appellate Court were justified in dismissing the suit and the appeal. Therefore, this
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NC: 2023:KHC-K:6219 RSA No. 200420 of 2014 Court is of the considered view that the Courts below have not committed any error or infirmity in dismissing the suit and the manner in which the courts below have considered the materials and evidence on record, this Court is of the view that no substantial question of law arises for consideration. Accordingly, this court pass the following:
ORDER i. The regular second appeal is hereby dismissed.
ii. The judgments and decrees passed by the Trial Court as well the First Appellate Court stand confirmed.
Sd/-
JUDGE MBM List No.: 1 Sl No.: 40