IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.2137 of 2011 (DEC/INJ) BETWEEN A. KENCHAMMA, D/O NAGAPPA, AGED ABOUT 46 YEARS, OCC: AGRICULTURIST, RESIDENT OF UCHANGIDURGA VILLAGE, NOW AT GOVERHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 125.
... APPELLANT (BY SRI RAVI H.K., ADVOCATE for SRI H. KANTHA RAJA, ADVOCATE) AND 1. SYED MOHAMMED ANIF SAB, SINCE DEAD BY LR’s:
(a) SYED JAITHUMBI, W/O LATE SYED MOHAMMED ANIF SAB, AGED ABOUT 66 YEARS, HOUSEHOLD.
(b) SYED SUBHAN SAB, S/O LATE SYED MOHAMMED ANIF SAB, AGED ABOUT 46 YEARS, BUSINESSMAN.
(c) SYED ABDUL KALAM, S/O LATE SYED MOHAMMED ANIF SAB, AGED ABOUT 46 YEARS, (d) SYED ATHAULLA SAB, S/O LATE SYED MOHAMMED ANIF SAB, AGED ABOUT 41 YEARS, AGRICULTURIST.
(e) SYED SANAULLA SAB, S/O LATE SYED MOHAMMED ANIF SAB, AGED ABOUT 31 YEARS, TEACHER.
(f) SYED REYAZ SAB, S/O LATE SYED MOHAMMED ANIF SAB, AGED ABOUT 23 YEARS, AGRICULTURIST.
(g) SYED RIZWAN SAB, S/O LATE SYED MOHAMMED ANIF SAB, AGED ABOUT 21 YEARS, AGRICULTURIST.
THE RESPONDENTS ARE ALL:
RESIDENT OF UCHANGIDURGA VILLAGE, HARAPANAHALLI TALUK, DAVANGERE DISTRICT – 583 125.
… RESPONDENTS (BY SRI VIJAYKUMAR Y.H., ADVOCATE for R1 (a-g);
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 13.07.2011 PASSED IN R.A.No.29 of 2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARAPANAHALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.08.2010 PASSED IN O.S.No.84 of 2005 ON THE FILE OF THE CIVIL JUDGE, HARAPANAHALLI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both side, it is heard finally.
2. This second appeal is filed by the plaintiff assailing the judgment and decree dated 13.07.2011 passed in R.A. No.29/2010 by the Senior Civil Judge, Harapanahalli reversing the judgment and decree dated 11.08.2010 passed in O.S.No.84/2005 by the Civil Judge, Harapanahalli, Davanagere District.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the Trial Court is that the grandfather of the plaintiff namely, Bharamappa, who is popularly called as Uchangidurgada Kurubara Bharamappa (Bharamappa), had two children namely Gangamma and Nagappa. The plaintiff is the daughter of Nagappa. The father of the plaintiff got two daughters namely Kenchamma and Gangavva. The plaintiff’s sister Gangavva died during her minority. The parents of the plaintiff and the grand-parents are also no more. The suit schedule property is the ancestral property belonging to her grandfather Bharamappa measuring 5 acres 64 cents in Sy.No.13 C/1. That the mother of the plaintiff Gangavva and her grandmother Siddavva sold 3 acres of land out of 5 acres 64 cents in Sy.No.13 C/1 to Arasikere Gangavva wife of Durugappa of Uchangidurga Village under the registered sale deed dated 10.03.1970 and the plaintiff never alienated the remaining property measuring 2 acres 64 cents during their lifetime. The plaintiff became the absolute owner and in possession of the property by virtue of succession and also cultivation of land. The defendant, represented by his legal representatives, is the adjacent land owner and in possession of the suit schedule property. He filed a revenue appeal No.25/2004-05 before the Assistant Commissioner of Harapanahalli for setting aside mutation entry No.22/2002-03. In the said application, the defendant claimed that he had purchased the suit schedule property from late Bharamappa and the plaintiff also appeared before the Assistant Commissioner. The appeal was partly allowed and remanded to the Tahsildar for fresh enquiry. The defendant has no right, title over the suit schedule property and has trespassed into the suit schedule property and obstructing cultivation of the suit property by the plaintiff. Hence, the plaintiff filed the suit.
Pursuant to the notice, the defendant appeared through his counsel and filed written statement taking the contention that he had purchased the suit schedule property from one Bharamappa for a valuable consideration and the property was delivered to him and since then, he is in possession of the property from 40 to 50 years. Originally, Bharamappa sold 3 acres out of 5 acres 64 cents to Gangamma and the remaining portion has been sold to the defendant. The defendant and his father paid the land revenue to the government. One Arasikere Basavaraj S/o Bharamappa taking advantage of similar name of Bharamappa got his name entered in the revenue records alleging that he obtained the property through partition. The land measuring 5 acres 64 cents in the name of Kariyappa and Gangavva as per mutation No.22/2002-03 without any conveyance. The suit of the plaintiff is not maintainable on the ground of non-joinder of necessary parties and taking other contentions, prayed of dismissal of the suit.
5. Based upon the rival pleadings, the trial Court framed the following issues;
“1) Whether plaintiff proves that she is the absolute owner of the suit property?
2) Whether plaintiff proves that she is in possession over the suit property?
3) Whether plaintiff further proves that alleged interference by the defendant as stated in the plaint?
4) Whether the plaintiff proves the suit schedule property boundaries shown in the plaint?
5) Whether the defendant proves that suit is bad for non-joinder of necessary parties?
6) Whether the defendant proves that suit is barred by law of limitation?
7) Whether the defendant proves that this Court has no pecuniary jurisdiction?
8) Whether plaintiff is entitled for the reliefs as prayed for?
9) What order or decree?”
6. To substantiate the contentions, the plaintiff got examined himself as PW.1 and two more witnesses as PWs.2 and 3 and got marked 10 documents as per Exs.P.1 to P.10 and the defendant got examined himself as DW.1 along with five more witnesses as DWs.2 to 6 and got marked 45 documents as per Exs.D.1 to D.45. After considering the evidence on record and on hearing the arguments, the trial court answered issued nos.1 to 4, 8 in the affirmative and issue Nos.5 to 7 in the negative and decreed the suit in favour of the plaintiff.
7. Assailing the judgment and decree passed by the Trial Court, the defendant preferred appeal before the First Appellate Court in RA No.29/2010. The First Appellate Court after hearing the arguments of the parties, formulated four points for its consideration, which are as under:
“ 1) Whether the L.Rs. of the defendants have established that the Judgment and decree of the trial Court is null and void on the ground that the trial Court had no pecuniary jurisdiction to try and dispose of the suit?
2) Whether the L.Rs. of the defendant have established that the Judgment and decree of the trial Court holding that the plaintiff is the absolute owner and in actual possession of the suit schedule property is capricious, perverse, arbitrary, illegal and against the materials evidence available on record and also well settled principles of law?
3) Whether I.As. III and IV filed under Order 41 Rule 27 r/w Sec. 151 of C.P.C. deserves to be allowed?
4) What order or decree?”
The First Appellate Court, answered point Nos.1 and 3 in the negative and point No.2 in the affirmative and allowed the appeal by setting aside the judgment and decree passed by the Trial Court ultimately dismissed the suit of the plaintiff. Assailing the judgment passed by the First Appellate Court reversing the judgment of the Trial Court, the plaintiff is before this Court in this second appeal.
8. Learned counsel for the plaintiff/appellant contended that the First Appellate Court committed error in reversing the judgment of the Trial Court and accepting the contention of the defendant that oral sale has been effected and he purchased the property from Bharamappa, which is against the provisions of Section 54 of the Transfer of Property Act, 1882 (for short ‘T.P. Act’) as well as non-consideration of the sale deed for having purchased the suit schedule property for Rs.650/-. Without registration of the sale deed, the sale is void. Apart from that there is no actual sale effected and the First Appellate Court committed error in disbelieving Ex.P.6, which clearly depicts that the Grandmother and mother of the plaintiff sold 3 acres of land to Arsikere Gangavva and retained the remaining 2 acres 64 cents of land on the eastern side of the property. This fact was ignored by the First Appellate Court and the First Appellate Court is wrong in dismissing the suit of the appellant in spite of production of the document, which is against the evidence on record.
9. Per contra, learned counsel for the respondents supports the judgment of the First Appellate Court.
10. On hearing the arguments of learned counsel for the parties, the substantial questions of law that arise for consideration of this Court are as follows:
“ 1) Whether the Lower Appellate Court is justified in law in allowing the appeal of the respondents despite respondents claiming suit schedule property without any valid title deed and possession over the same?
2) Whether the Lower Appellate Court is right in law in dismissing the suit of the appellant despite Exs.P.1 to P.10 and Ex.P.6 which clearly depicts the identification of appellant’s property?”
11. With regard to substantial questions of law No.1, on perusal of the documents produced by the appellant/plaintiff and the evidence of plaintiff before the Trial Court, it is an admitted fact that Bharamappa, who is the grandfather of the plaintiff, was the owner of the property in Sy.No.13 C/1 measuring 5 acre 64 cents. The defendant also admitted in his written statement the ownership of Bharamappa in respect of the land in Sy.No.13 C/1 and on 10.03.1970, a portion of the property i.e. 3 acres was sold to one Gangavva under the sale deed Ex.P.6 and the said sale deed also not disputed by the defendant. He has also taken the same contention that the grandmother and mother of the plaintiff sold 3 acres of land to Gangavva and the plaintiff’s case is that the remaining portion of the land measuring 2 acres 64 cents on the eastern side was retained by them and after the death of the grandmother and mother of the plaintiff, she is in possession and enjoyment of the suit property as she is the only legal heir of Bharamappa and his daughters. He had purchased the remaining portion of the land by way of oral sale, but failed to produce any document to show that there was sale transaction held between himself and Bharamappa. Another contention of the defendant that he was in possession of the remaining portion of the property from 40-50 years cannot be acceptable. When a portion of the property measuring 3 acres in Sy.No.13 C/1 has been sold by the mother and grandmother of the plaintiff in the year 1970, the remaining portion of the property might have been sold by either the mother or the grandmother of the plaintiff must be subsequent to 1970. If the sale of the defendant was subsequent to 1970, the question of contending that the defendant was in possession of the remaining portion of the property for 40- 50 years by adverse possession cannot be accepted. The Trial Court appreciated the documentary evidence of the plaintiff produced before it, especially Ex.P.6, the sale deed executed by the mother and grandmother of the plaintiff on 10.03.1970. The boundaries in the sale deed clearly depicts that the mother and grandmother of the plaintiff retained the remaining 2 acres 64 cents of the land on the eastern side of the property which was sold to Gangavva. That apart, the contention of the defendant that he purchased the property by oral sale from Bharamappa cannot be acceptable. As already stated above, Bharamappa died long prior to the sale under Ex.P.6, which was sold on 10.03.1970. Therefore, the question of purchasing the property by the defendant from Bharamappa cannot be acceptable. That apart, the oral sale cannot be accepted as the defendant claimed that the property was purchased by him from Bharamappa for Rs.650/-.
12. As per Section 54 of the T.P. Act, the term ‘Sale’ is defined as under:
“ “Sale” defined – “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made-Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes places when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, or itself, create any interest in or charge on such property.”
13. On a bare reading of Section 54 of the T.P. Act, any sale transaction of immovable property for more than the value of Rs.100/-, the written document is necessary and as per Section 17 of the Registration Act 1908, the sale of property for more than Rs.100/- value, the registration is also compulsory. Such being the case, the First Appellate Court committed error by accepting the contention of the defendant that oral sale was effected and but no evidence is produced by him. The First Appellate Court is not correct in disbelieving the document of the plaintiff produced as per Exs.P.1 to P.10 and especially Ex.P.6, in respect of the sale deed executed in favour of Gangavva. The First Appellate Court totally ignored the law of the land in respect of T.P. Act as well as Registration Act and committed error in answering point No.3 in favour of the defendant by accepting the oral sale deed claimed by the defendant. Therefore, the judgment of the first appellate Court in respect of point no.3 requires to be set aside. Since there is no sale deed executed, no title passes through oral sale. In view of Ex.P.6, the property is retained by the mother and grandmother of the plaintiff. Such being the case, the question of transferring the property in favour of the defendant cannot be accepted and there is no legal right transferred to the defendant in respect of the suit schedule property claimed by him through oral sale. Hence, the First Appellate Court is not right in accepting the defendant’s contention and committed error in allowing the appeal. Accordingly, answered substantial question of law No.1 in favour of plaintiff and against the defendant.
14. The Substantial Question of Law No.2 involved in this appeal is that the document produced by the plaintiff has not been considered by the First Appellate Court. On perusal of the documents Exs.P.1 to P.5, P.8 and P.10- the revenue records not at all show the name of the defendant and whereas, the name of Bharamappa is depicted and the Tahsildar has also given an endorsement for referring the parties to approach the civil court for adjudicating the title in dispute. As held above, no title passes to defendant by oral sale and in view of the Section 54 of T.P. Act & Section 17 of Registration Act any sale of immovable property value for more than Rs.100/- without written instrument and registration is void and the question of claiming adverse possession by the defendant also not acceptable. The First Appellate Court committed error in rejecting the documents of the plaintiff and accepting the oral contention of the defendant.
15. In view of the above, I answer substantial question of law No.2 in favour of the plaintiff and against the defendant and hold that the judgment of the First Appellate Court requires to be set aside and the judgment and decree passed by the Trial Court is restored. Accordingly, I pass the following order.
The second appeal is allowed. The judgment and decree dated 13.07.2011 passed in R.A. No.29/2010 by the Senior Civil Judge, Harapanahalli is set aside and the judgment and decree dated 11.08.2010 in O.S.No.84/2005 passed by the Civil Judge, Harapanahalli, Davanagere District is restored.
In view of disposal of the appeal, I.A.No.1/2011 is also disposed of.
Sd/- JUDGE mv