IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.476 OF 2006 BETWEEN:
1. BYLAMMA W/O MUDDAPPA AGED ABOUT 47 YEARS RESIDENT OF BHANGAR PALYA AMARPUR MANDAL MADAKASIRE TALUK ANANTHAPURA DISTRICT ANDHRA PRADESH STATE 2. HANUMAKKA W/O HANUMANTHAPPA MAJOR RESIDENT OF RANGANHALLY VILLAGE HIRIYUR TALUK CHITRADURGA DISTRICT … APPELLANTS (BY SRI. B.M.SIDDAPPA, ADVOCATE) AND:
1. ANKAPPA SINCE DEAD BY LRS.
1(a) RATHNAMMA W/O LATE ANJINAPPA AGED ABOUT 47 YEARS DODDACHELLUR VILLAGE PARASHURAMAPURA HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT 1(b) BHEEMANNA S/O ANJINAPPA AGED ABOUT 25 YEARS DODDACHELLUR VILLAGE PARASHURAMAPURA HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT 2. HANUMANTHAPPA S/O BHIMAPPA AGED ABOUT 60 YEARS R1(a), R1(b) & R2 ARE RESIDENT OF DODDACHELLUR VILLAGE PARASHURAMAPURA HOBLI CHALLAKERE TALUK CHITHRADURGA DISTRICT 3. MALLAMMA DEAD BY HER LRS APPELLANT NOS.1 AND 2 4. BYLAMMA W/O SIDDALINGAPPA D/O BHIMAPPA MAJOR RESIDENT OF DODDA CHELLUR VILLAGE PARASHURAMAPURA HOBLI CHALLAKERE TALUK CHITHRADURGA DISTRICT 5. GOWRAMMA SINCE DEAD BY LR 5(a) GIRIYAPPA S/O THIMMANNA AGED ABOUT 50 YEARS R/AT BETUR VILLAGE HOLALKERE TALUK CHITRADURGA DISTRICT 6. PUJARI DASAPPA S/O DASAPPA MAJOR RESIDENT OF KOTE BANDCE PAVAGADA TALUK TUMKUR DISTRICT ... RESPONDENTS (BY SRI B.S.RAGHUPRASAD, ADV. FOR R2; SRI B.L.NAGESH & H.S.SATISH KUMAR, ADVS. FOR R4 AND R6;
V/O. DATED 04.11.2008 A1 & A2 ARE TREATED AS LRS OF DECEASED R3; V/O. DATED 11.02.2016, R1(a), R1(b)& R5(a) - SERVED THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED:5.11.2005 PASSED IN R.A.NO.289/2002 (OLD 44/2002) ON THE FILE OF THE CIVIL JUDGE (SR.DN) CHALLAKERE AND REVERSING THE JUDGMENT AND DECREE DATED 25.01.2002 PASSED IN O.S.NO.1980/1994 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) CHALLAKERE AND ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of plaintiffs arises out of the Judgment and decree dated 05.11.2005 in R.A.No.289/2002 (old No.44/2002) passed by the Civil Judge Senior Division, Challakere. By the impugned judgment, the First Appellate Court allowed the appeal of defendant Nos.1 and 2 and reversed the trial Court’s Judgment and decree and dismissed the plaintiffs suit for partition and separate possession of their 1/3rd share in the suit properties.
2. Appellants were the plaintiff Nos.2 and 3, respondent No.3 was plaintiff No.1, respondent Nos.1, 2 and 4 to 6 were defendants before the trial Court. The parties will be referred to henceforth with their ranks before the trial Court.
3. Plaintiff No.1 is the wife and plaintiff Nos.2 and 3 are the daughters of one Sannappa. Sannappa had two brothers by name Hanumanthappa and Bhimappa. The father of the said three brothers was one Ankappanavara Siddappa. The first son Hanumanthappa pre-deceased Siddappa. Sannappa died about 25 years prior to 1994 namely the year of the filing of the suit. Second son Bhimappa died in the year 1975. Defendant Nos.1 to 5 were the sons and daughters of Bhimappa.
4. The suit schedule property namely land bearing Sy.No.101 of Dodda Chellur village of Challakere Taluk, measuring 57 acres 23 guntas was the ancestral property of Siddappa.
5. Plaintiffs filed O.S.No.1980/1994 claiming that there was no partition amongst the sons of Siddappa. They further contended that Hanumanthappa had a son by name Siddappa, but his whereabouts were not known and without giving the share of the plaintiffs, the defendants have got up registered partition deed dated 27.12.1984 and on the same day, defendant Nos.1 and 2 sold 10 acres to defendant No.3 and on 23.09.1985 defendant No.2 sold 5 acres to defendant No.6. Plaintiffs claimed that those partition deed and sale deeds do not bind them and sought decree for partition and separate possession of 1/3rd share in the suit schedule property and for setting aside the said partition deed and sale deed.
6. The defendants contested the suit contending that after the death of Sannappa, the plaintiffs sold their 1/3rd share in the suit schedule property to Bhimappa, the father of defendant Nos.1 to 5 on 22.08.1966. They further contended that thereafter, about 38 years back Bhimappa and Hanumanthappa effected the partition and Siddappa, the son of Hanumanthappa also sold his share to Bhimappa, therefore, the plaintiffs are not entitled for any partition.
7. The plaintiffs filed rejoinder to the written statement denying the execution of the sale deed dated 22.08.1966 and contended that, if at all any such document is there that was concocted and fraudulent one.
8. On the basis of such pleadings, the Trial Court framed the following issues:
“1) Whether the plaintiffs prove that the suit schedule property is joint family property of themselves and defendants and they were in joint possession of the same alongwith defendants?
2) Whether defendants prove that all the three sons of Ankappanavar Siddappa got divided their properties of joint family about 38 years ago and were enjoying their respective shares separately as contended in their written statement?
3) Whether defendants prove that plaintiffs 1 to 3 had sold 1/3 share of land measuring 19 acres out of suit sh.No.which was allotted to Sannappa, to Bheemappa the father of defendants 1 and 2 on 22.8.1966 under sale deed as contended in their written statement?
4) Whether defendants prove that Siddappa S/o Hanumanthappa has sold the land which was allotted to the share of his father Hanumanthappa on 9-12-1958 under registered sale deed as contended in their written statement?
5) Whether the suit of plaintiffs is bad for non-joinder of necessary parties?
6) Whether plaintiffs are entitled to partition and separate possession of their 1/3 share in the suit property?
7) Whether the partition deed dated:21-12-84 binds the share of the plaintiffs?
8) Whether plaintiffs are entitled to the relief prayed for?
9) Whether plaintiffs are entitled to mesne profits?
10) What decree or order?”
9. The parties adduced evidence. During the course of evidence, the defendants tried to get the sale deed dated 22.08.1966 relied upon by them admitted in the evidence. However, the Trial Court declined to admit the said document on the ground that, that was not admissible in evidence for want of registration. The Trial Court after hearing the parties held that the partition set up by the defendants and the alleged sale of the share of Sannappa by the plaintiffs were not proved. Hence, decreed the suit.
10. The defendants challenged the said judgment and decree in R.A.No.289/2002 (old No.44/2002) before the Senior Civil Judge, Challakere. In that appeal, the defendants filed an application under Order 41 Rule 27 of CPC to receive the sale deed dated 22.08.1966 in evidence. The First Appellate Court on hearing the parties, by the impugned judgment and decree allowed the application under Order 41 Rule 27 of CPC to receive the sale deed in evidence, so also allowed the appeal and dismissed the suit on the following grounds:
i) The sale deed dated 22.08.1966 can be admitted in evidence for collateral purpose of ascertaining the nature of the possession of the parties;
ii) The evidence on record shows that the plaintiffs left Dodda Chellur village and they were not in joint possession of the suit properties along with defendants, therefore, the suit was barred by time.
iii) In view of the sale of their share under the document dated 22.08.1966, the plaintiffs cannot maintain the suit for partition.
iv) The finding of the Trial Court that the defendants have failed to prove the prior partition between the sons of Siddappa was confirmed.
11. Challenging the said judgment and decree, the plaintiffs have preferred the above appeal. This Court admitted the appeal to consider the following substantial question of law:
“Whether the Lower Appellate Court was justified in setting aside the judgment and decree of the Trial Court, on the basis of unregistered sale deed dated 22.08.1966, that too after receiving the same as additional evidence in appeal ? ”
12. As already noticed, the defendants do not dispute the relationship between them, the plaintiffs and Hanumanthappa. They did not even dispute that the suit schedule property was their ancestral property/joint family property. Their only defence was that the plaintiffs sold their 1/3rd share to Bhimappa under the sale deed dated 22.08.1966. Admittedly, the said sale deed was unregistered one.
13. The First Appellate Court confirmed the finding of the Trial Court that the defendants have failed to prove the partition set up by them, between their father Bhimappa and his brothers Sannappa and Hanumanthappa. Defendants have not filed any cross objections in this appeal against such finding. Therefore, that finding has attained finality.
14. Therefore, the only question that remained for consideration for this Court was whether the First Appellate Court was right in receiving the unregistered sale deed dated 22.08.1966 as additional evidence and reversing the judgment and decree of the Trial Court and dismissing the suit based on such sale deed.
15. The law that governs the admissibility of the unregistered sale deed is Section 49 of the Registration Act,1908 (for short ‘the Act’) which reads as follows:
“49. Effect of non-registration of documents required to be registered.- No document required by section 17 [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) …….
(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 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.”
16. The First Appellate Court though does not refer to Section 49 says that the said sale deed could be received in evidence for the collateral purpose. Apparently, such observation of the First Appellate Court is with reference to proviso to Section 49. Under the proviso to Section 49 what is permitted to be received is only agreement of sale in a suit for specific performance. The document on hand does not fall under that category.
17. The second part of the proviso permits receipt of unregistered document to prove a collateral transaction which is not required to be effected by registered instrument. As per the defendants themselves prior to the said sale deed there was no partition. It was their case that plaintiffs sold their undivided interest under the sale deed dated 22-8- 1966. So they were required to prove the sale transaction itself. Such sale transaction or possession of the property based on such transaction was not exempted from registration nor that was collateral transaction. Therefore, the document does not fall in the second part of the proviso to Section 49 of the Act also. The First Appellate Court has totally misread the proviso to Section 49 of the Act in applying that to the unregistered sale deed in the case and in receiving that in evidence.
18. On receiving such document in evidence, despite the plaintiffs denying the execution of the document and alleging that the document was forged one, the Appellate Court did not give any opportunity to them to meet the said document. It is also to be noted that Section 107 of the Code of Civil Procedure imposes the duty on the First Appellate Court first to consider the appeal on merits and then if it finds that the evidence adduced is inadequate, to proceed to receive the additional evidence sought to be adduced and then give opportunity to the parties and proceed to decide the appeal on merits. The First Appellate Court failed to discharge its function as required under Section 107 of CPC and Order 41 Rule 27 of CPC.
19. For the aforesaid reasons the lower appellate court was not justified in receiving the unregistered partition deed dated 22.08.1966 as additional evidence and reversing the judgment and decree of the trial court on that basis. The substantial question of law is answered accordingly. The appeal is allowed.
The impugned judgment and decree dated 05.11.2005 in R.A.No.289/2002 (old No.44/2002) passed by the Civil Judge (Senior Division), Challakere is hereby set aside. The judgment and decree dated 25.01.2002 passed by the Additional Civil Judge (Junior Division), Challakere in O.S.No.1980/1994 is hereby restored.
Draw decree accordingly.
Sd/- JUDGE KG