Range Gowda vs B K Narayana Rao on 19 September, 2022
13. Though the learned counsel appearing for the
appellant contended about the Karnataka Registration Rules,
1972 and placed reliance on the judgments of the Hon'ble Apex
Court relating to Article 56 of the Limitation Act, however, the
said plea has not been raised before the trial Court as well as the
First Appellate Court and therefore, in view of the fact that the
said plea has not been raised before the courts below, appellant
cannot be permitted to raise the new plea in the second appeal.
Though the entire case of the plaintiff revolve around the undue
influence/fraud committed by defendant No.1, however,
considering the finding recorded by the trial Court with regard to
issues 4A and 4B, I am of the view that the plaintiff has not
proved the factual aspects on record with cogent evidence and
accordingly, the judgment and decree passed by the trial Court
is contrary to law and the said aspect has been rightly
considered by the First Appellate Court and arrived at a
conclusion that the there was no undue influence or fraud played
by the defendant No.1 against the plaintiff and the same
requires to be confirmed in this appeal. Though the learned
counsel appearing for the appellant placed reliance on the
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judgment in the case of ABDUL MITHALIF (supra) regarding
limitation, the same is not applicable to the facts on record, as
on perusal of the plaint, the knowledge of the plaintiff, as
narrated in the plaint, is inadequate and incomplete and
therefore, the First Appellate Court, having taken note of the
said fact, has rightly answered the point No.1 in the negative.
The First Appellate Court, on re-appreciation of the evidence as
required under Order XLI Rule 31 of Code of Civil Procedure, has
rightly come to the conclusion that the registered sale deeds
referred to above, were executed for the purpose of discharging
the debt of one H.M. Basappa and his son, and also for the
purpose of performance of marriage, so also, for family
necessities. A careful examination of evidence of DW3 and DW4
who are the attesting witnesses to the aforementioned sale
deeds, would indicate that the sale made by the plaintiff in
favour of the defendant No.1 is not a nominal one, but with an
intention to get consideration out of the sale of the items 1 and
2 of the schedule properties. It is an undisputed fact that the
plaintiff has signed the sale deeds in the presence of the
witnesses and it is not the case of the plaintiff that he denied the
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execution of the sale deed in favour of the defendant No.1 and in
that view of the matter, even if there is a minor discrepancy in
the evidence of the parties, the First Appellate Court could not
have answered point No.5 in negative holding that the finding
recorded by the trial Court requires interference. Though in the
pleadings and in the evidence, the plaintiff alleged fraud/undue
influence while execution of the aforementioned registered sale
deeds, however, the plaintiff has not proved the same with
cogent evidence as to how the registered sale deeds are
executed with an element of fraud/undue influence or are of
suspicious nature. That apart, the plaintiff himself admits that
he used to discuss with his children with regard to the family
affairs including the major transactions to be made with regard
to the family properties and in that view of the matter, the
contention raised by the plaintiff that the plaintiff was solely
depending upon the advice of the defendant No.1 cannot be
accepted, after having executed the registered sale deeds
referred to above and on this aspect also the finding recorded by
the First Appellate Court is just and proper, which does not call
for interference in this appeal. That apart, if at all the case of
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the plaintiff that the alleged two sale deeds are nominal and has
been obtained by the defendant No.1 fraudulently, the plaintiff
ought to have resorted to file complaint against the defendant
No.1 before the competent criminal Court alleging the element of
fraud or undue influence and the sale deeds have been obtained
illegally. In the absence of these aspects, I am of the opinion
that the plaintiff has not established his case in accordance with
law with cogent evidence to arrive at the conclusion that these
two Sale Deeds are nominal in nature.