IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1124/2015 (DEC-INJ) BETWEEN:
MR.K.M.PRABHU S/O. LATE K.M.MUNISWAMAPPA AGED ABOUT 53 YEARS R/AT NO.294 (352/65) RAMAYYANAGAR ROAD VISHVESHWARAPURAM BANGALORE- 560 004 … APPELLANT (BY SRI H.S.DWARAKANATH FOR SRI KRISHNA B.R., ADVOCATES) AND:
1. M/S.BURMA SHELL OIL STORAGE AND DISTRIBUTION COMPANY OF INDIA LIMITED A COMPANY INCORPORATED IN ENGLAND AND HAVING ITS BUSINESS PLACE AT NO.2-C, RESIDENCE ROAD BANGALORE- 560 001 REPRESENTED BY ITS AUTHORISED REPRESENTATIVE 2. SMT.B.RAJESHWARI W/O. LATE M.D.BABU AGED ABOUT 65 YEARS 3. SRI SRINIVASN S/O. LATE M.D.BABU AGED ABOUT 39 YEARS R2 AND R3 ARE R/AT NO.17-77, T-2 MULLAI APARTMENTS THIRUVALLUVAR NAGAR THIRUVANNAMAIYYAR CHENNAI- 41 TAMILNADU 4. SRI KRISHNA REDDY S/O. LATE B.H.OBAREDDY AGED ABOUT 38 YEARS R/AT AMMA NILAYA B.B.ROAD, AVATHI VILLAGE DEVANAHALLI TALUK BANGALORE RURAL DISTRICT 5. SRI ALVIN PINTO S/O. MR.BASIL PINTO AGED ABOUT 46 YEARS R/AT NO.127, 2ND CROSS AMARJYOTHI LAYOUT DOMLUR, BANGALORE- 560 071 …RESPONDENTS (BY SRI C.M.NAGABHUSHANA FOR SRI K.S.UDAY, ADVOCATES FOR R2 TO R5; NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 15.09.2015.
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 08.06.2015 PASSED BY THE SENIOR CIVIL JUDGE & JMFC, DODDABALLAPUR IN R.A.NO.21/2014 AND THE JUDGMENT AND DECREE DATED 28.07.2014 PASSED BY PRINCIPAL CIVIL JUDGE & JMFC, DODDABALLAPUR IN OS NO.453/2010.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the plaintiff arises out of judgment and decree dated 08.06.2015 passed by the Senior Civil Judge & J.M.F.C., Doddaballapura in RA No.21/2014.
2. By the impugned judgment and decree, the First Appellate Court has dismissed the appeal of the appellant and confirmed the judgment and decree dated 28.07.2014 passed by the Principal Civil Judge & J.M.F.C., Doddaballapura in O.S.No.453/2010.
3. By the said judgment and decree, the trial Court dismissed the suit of the appellant for declaration of his title to suit property and that sale deed dated 01.08.1972 executed in favour of husband of defendant No.2 does not bind him and for permanent injunction.
4. Appellant was plaintiff and respondent Nos.1 to 4 were defendants before the trial Court. For the purpose of convenience, parties will be referred to henceforth with their ranks before the trial Court.
5. Subject matter of the suit was land bearing Survey No.34 measuring 32 guntas situated at Muthur Village, Doddaballapura Taluk, Bangalore Rural District.
6. Case of plaintiff in brief was as follows:
Suit property belonged to defendant No.1 M/s.Burma Shell Oil Storage and Distribution Company of India Limited. One Venkataswamy Mudaliar as agent of defendant No.1 was in possession of the property. The property was auctioned during 1942-1943 for recovery of arrears of land revenue. One Hanumanthe Gowda purchased the property in auction and sale certificate was issued in his favour.
On 15.11.1943, said Hanumanthe Gowda sold the property to one Chinna Thimmaiah under a registered sale deed. Chinna Thimmaiah died issueless and intestate. Therefore, his brother R.N.Narayanappa and his family members inherited the property from Chinna Thimmaiah. Since then they were in possession and enjoyment of the property. R.N.Narayanappa and his family members sold the said property to the plaintiff under registered sale deed dated 09.10.1980 and since then plaintiff is in peaceful possession and enjoyment of the said property. Revenue entries were effected in name of plaintiff.
Defendant Nos.2 and 3 are wife and children of one M.D.Babu. They claim that M.D.Babu purchased the said property under the registered sale deed dated 01.08.1972 from defendant No.1. Defendant No.4 claimed to be the power of attorney holder of defendant No.2. Defendant Nos.2 to 4 are obstructing peaceful possession and enjoyment of the plaintiff. Defendant No.1 had no title to sell the property to M.D.Babu. Thus, the plaintiff sought declaration of title and that sale deed dated 01.08.1972 does not bind him and for injunction.
7. Defendant No.1 did not contest the suit.
Defendant No.4 the power of attorney holder of defendant No.2 filed written statement denying the claim of plaintiff and sale of property for recovery of arrears of land revenue due by defendant No.1. She denied the documents produced by plaintiff, title of the vendor of plaintiff and their possession. Consequently the possession of the plaintiff was also denied. Defendant No.2 contended that defendant No.1 was owner of the suit schedule property and M.D.Babu her predecessor in title purchased the property from defendant No.1 under registered sale deed dated 01.08.1972 and since then they are in exclusive possession and enjoyment of the said property. She contended that the suit is barred by time.
8. On the basis of such pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves his title over the suit schedule property as on the date of suit?
2. Whether the plaintiff proves his possession and enjoyment over the suit schedule property as on the date of suit?
3. Whether the plaintiff proves sale deed executed by defendant No.1 in favour of the husband of defendant No.2 dated 01.08.1972 is not binding on the plaintiff?
4. Whether the plaintiff prove the alleged interference by the defendant?
5. Whether the plaintiff is entitled for the reliefs as sought for?
6. What order or decree?
ADDL.ISSUE:
1. Whether the suit is barred by Limitation?
2. Whether the defendants prove that the suit is bad for mis-joinder and non-joinder of necessary parties?
9. Plaintiff was examined as PW.1 and got marked Ex.P1 to Ex.P44. On behalf of defendant Nos.2 to 4, defendant No.4 was examined as DW.1 and Ex.D1 to Ex.D25 were marked.
10. The trial Court after hearing the parties dismissed the suit on the following grounds.
i) Plaintiff did not produce the title deeds relied upon by him;
ii) Revenue records produced and relied upon by the plaintiff are not the documents of title and they do not confer any title on the plaintiff;
iii) There is variance in the pleadings and evidence of the plaintiff regarding mode of acquisition of property by his vendor;
iv) Relationship of plaintiff’s vendor with the original title holder is not proved;
v) Sale deed in favour of M.D.Babu was earlier in point of time;
vi) Vendor of plaintiff had no title to sell the property;
vii) If there was auction sale in 1941-1942, name of defendant No.1 would not have been reflected in Ex.D9 and Ex.D15 revenue records for the year 1969, 1972-1973 and 1963-1964.
11. So far as limitation, trial Court held that plaintiff claimed that he came to know about sale deed of M.D.Babu only in 2010 when defendant Nos.2 to 4 tried to obstruct his possession, therefore suit is in time.
However, having regard to finding on other issues, dismissed the suit of the plaintiff.
12. Plaintiff challenged the said judgment and decree before the Senior Civil Judge & J.M.F.C., Doddaballapura in RA No. 21/2014 as aforestated. The First Appellate Court concurred with the findings of the trial Court regarding possession and title. Regarding limitation, the First Appellate Court held that sale deed of M.D.Babu amounts to notice as per Section 3 of the Transfer of Property Act, 1882, suit was filed beyond three years of that sale deed. Therefore the suit is barred by time.
13. This Court after hearing both sides admitted the appeal to consider the following substantial questions of law:
1) Whether the Courts below erred in not taking note of Section 57 of the Indian Evidence Act while examining the claim of plaintiff’s predecessors in title having purchased the suit schedule property under alleged public auction for non payment of revenue?
2) Whether the Courts below have erroneously mis-interpreted the evidence available on record?
3) Whether the Courts below were justified in applying Section 48 of the Transfer of Property Act, 1882 insofar as the sale deed propounded by defendants not extending the same provision to the alleged sale or sale deeds propounded by plaintiff?
Additional substantial question of law: Whether the First Appellate Court was right in holding that suit is barred by time?
14. Before this Court, appellant filed IA No.1/2016 seeking leave to examine the witnesses and to produce the following documents:
1. Original letter dated 17.03.2016 issued by the Tahsildar Doddaballapura Taluk to the Appellant.
2. Certified copy of the order sheet in Darkhast files in No.262/1941-42 dated 24.09.1942 issued by the Tahsildar, Doddaballapura Taluk, Bangalore Rural District.
3. Certified copy of the proclamation and written notice of sale of the right of occupancy of unoccupied land under Rule 26 of Rules under the Mysore land revenue code in Appendix B (Form No.(2) issued by the Tahsildar, Doddaballapura Taluk, Bangalore rural District.
4. Certified copy of the Grant Certificate in Form No.1 issued in favour of Sri Hanumanthe Gowda with respect to the property bearing Survey No.34 of Muthur Village, Kasaba Hobli, Doddaballapura Taluk, issued by the Tahsildar Doddaballapura Taluk.
5. Certified copy of the preliminary record with respect to the property bearing Survey No.34 of Muthur Village, Kasaba Hobli, Doddaballapura Taluk, issued by the Tahsildar, Doddaballapura Taluk.
6. Certified copy of the record of rights Form No.5 issued by the Tahsildar, Doddaballapura Taluk.
7. Certified copy of Form No.6 index of land with respect to Survey No.34, Muthur Village, Kasaba Hobli, Doddaballapura Taluk, Bangalore Rural District, issued by the Tahsildar, Doddaballapura Taluk.
8. Certified copy of the Akar Bandh of the year 1941-42 with respect to the property bearing Survey No.34 of Muthur Village, Kasaba Hobli, Doddaballapura Taluk issued by the Tahsildar, Doddaballapura Taluk, Bangalore District.
9. Certified copy of the Mysore Settlement Register for the year 1942 with respect to the suit schedule property issued by the Tahsildar, Doddaballapura Taluk.
15. In the affidavit filed in support of the application, appellant contended that during pendency of the proceedings before the trial Court, he tried to secure the said documents under the Right to Information Act, 2005, but he could not secure those documents. He contended that on 17.03.2016, Tahsildhar/Public Information Officer furnished said documents and the said documents are necessary for adjudication of his right.
16. Respondents contested the said application denying the reasons stated for such belated production as well as genuineness of the said documents including endorsement on the documents allegedly issued by Public Information Officer.
17. Sri H.S.Dwarakanath, learned Counsel for the appellant submits that since plaintiff was not able to produce documents of title, his claim failed before both the Courts solely on the said ground. He further submits that non production of the document was for the reasons beyond plaintiff’s control as he could not get those documents despite applying for the same. He submits that since he is now able to secure those documents, he should not be thrown out of the Court only for belated production and non-production at the earlier stage. He submits that the matter may be remanded to the trial Court for receiving additional evidence and to examine the additional witnesses to serve the ends of justice.
18. Regarding Section 3 of the Transfer of Property Act, he submits that Section 3 of the Transfer of Property Act can be invoked only if there is nothing repugnant in the subject and context of the matter. He submits that in Ex.P19 encumbrance certificate the name of M.D.Babu and his sale deed were not appearing and that is repugnant to subject and context of the case. Therefore, he submits Section 3 of the Transfer of Property Act is not applicable.
19. In support of his contentions, he relied upon the following judgments:
1. Manmal Lunia v. R.Sudhakar and Ors MANU/KA/0105/2018 2. Vittal Shetty v. Lawrence D’Souza and Ors. MANU/KA/1604/2016 3. Dhiraj Singh (D) Tr. v. Haryana State MANU/SC/0778/2014 4. State of Bihar and Ors. v. Kameshwar Prasad Singh and Ors. MANU/SC/0358/2000 5. Collector, Land Acquisition, Anantnag and Ors. v. Katiji and Ors. MANU/SC/0460/1987 6. K.Venkataramiah v. A.Seetharama Reddy and Ors.
AIR 1963 SC 1526 7. Dhanalakshmi v. Srinivasan G.L. and Ors MANU/KA/3205/2016 8. Neuropsychiatry and Critical Care Hospital Private Limited v. The Authorised Officer, Bank of India MANU/KA/0998/2016 20. Per contra, Sri C.M.Nagabhushana, learned Counsel for respondent Nos. 2 to 5 submits that despite defendant Nos.2 to 4 denying the claim of plaintiff regarding purchase of the property in auction sale and subsequent sales, plaintiff did not choose to produce those documents. He submits that documents produced before this Court smack suspicion and they are not genuine documents. He submits that there was material variance between pleadings and evidence of the plaintiff which is fatal to his case. He submits since title deeds were not produced and title of the plaintiff was not proved by examining necessary witnesses, Courts below on question of fact concurrently held against the plaintiff and such findings of facts cannot be reversed in this second appeal.
21. Placing reliance on Section 3 of the Transfer of Property Act, Shri C.M.Nagabhushana, learned Counsel submits that registered sale deed dated 01.08.1972 amounts to notice of sale in favour of M.D.Babu and his title and therefore, First Appellate Court was right in holding that suit was barred by time.
22. Learned Counsel for respondents further submits that Ex.P19 produced by plaintiff is not reliable document because Ex.D7 encumbrance certificate secured by contesting defendants for the period upto 18.02.2010 shows the name of M.D.Babu and his sale deed.
23. Regarding additional evidence, he submits that application of the appellant does not satisfy any of the test of Order XLI Rule 27 of CPC, therefore, same shall be rejected.
24. In support of his contentions, he relies upon the following judgments:
1. M.C.Suresh v. Sri B.Srinivas Naik & Ors. ILR 2009 KAR 3897 2. M/s Eastern Equipment and Sales Ltd v. ING. Yash Kumar Khanna AIR 2008 SC 2360 3. Balai Chandra Hazra v. Shewdhari Jadav AIR 1978 SC 1062 4. Associated Hotels of India Ltd v. S.B.Sardar Ranjit Singh AIR 1968 SC 933 5. Ajay Singh (deceased by LRs.) and etc. v. Tikka Brijendra Singh and Ors. etc AIR 2007 Himachal Pradesh 52 6. N.Kamalam v. Ayyasamy (2001) 7 SCC 503 7. Kenchegowda v. Channaiya AIR 1953 Mysore 22 25. Out of the aforesaid four substantial questions of law, both the Counsel were more serious on substantial question of law No.2 viz., whether the courts below have erroneously misinterpreted the evidence available on record. Therefore, it is appropriate to consider that question first.
26. The plaintiff approached the Court seeking declaration of his title and that sale deed of M.D.Babu does not bind him and relief of permanent injunction. Only if plaintiff succeeded in establishing his title, the other reliefs were following that.
27. Both the parties admit that defendant No.1 was the original owner of suit schedule property. M.D.Babu has purchased the property from defendant No.1 under Ex.D2 on 1.8.1972. Plaintiff contends that, much before 1972 i.e. in 1942-43, the property was sold by the government in public auction to Hanumanthe Gowda for recovery of arrears of land revenue of the suit property.
28. He further contended that Hanumanthe Gowda sold the property to Chinna Thimmaiah on 15.11.1943 under the sale deed Ex.P11. According to the plaintiff, his vendor Narayanappa succeeded to the property as the legal representative of Chinna Thimmaiah and sold that to the plaintiff under Ex.P1 on 9.10.1980, therefore, defendant No.1 had no title to sell the property in 1972 to M.D.Babu.
29. Under such circumstances, burden was on the plaintiff to prove the following facts:
1. Defendant No.1 was in arrears of land revenue;
2. During 1942, government sold the suit property in public auction to Hanumanthe Gowda for recovery of land revenue, put him in possession and issued him said certificate;
3. Hanumanthe Gowda sold the property to Chikka Thimmaiah on 15.11.1943;
4. Narayanappa was the brother of Chikka Thimmaiah and acquired property from him.
30. Plaintiff admittedly did not produce any evidence in proof of defendant No.1 committing default in payment of land revenue or the sale of the property in public auction to Hanumanthe Gowda. To substantiate his contention, the plaintiff relied only on the recitals in certified copy of the sale deed dated 15.11.1943 purportedly executed by Hanumanthe Gowda in favour of Chikka Thimmaiah and certified copy of his own sale deed Ex.P1 allegedly executed by Narayanappa and Ex.P19 the Encumbrance Certificate dated 29.10.2010. Plaintiff did not even produce his own original sale deed and the title deed of his vendor and there was no explanation for non-production of the primary evidence.
31. A Company becoming defaulter in payment of arrears of land revenue and sale of its property for that is a serious matter. But absolutely no evidence was adduced to prove such default on the part of the first respondent. Except the plaintiff, no one at least the vendor of the property was examined.
32. Plaintiff produced Ex.P37 and Ex.P38 Communications allegedly issued by the Appellate Authority under the Right to Information Act/Assistant Commissioner, Doddaballapura Sub-Division, to the Public Information Officer/Tahsildar, Doddaballapura, transferring his application for information to the Tahsildar, Doddaballapura and directing Tahsildar, Doddaballapura to issue such information. Though the genuineness of Exs.P37 and P38 was disputed, the authorities who allegedly issued Exs.P37 and P38 were not examined to prove those documents. The plaintiff did not examine either the Sub-Registrar, Doddaballapura or anybody from the respondent- Company to prove that the Company was in arrears of land revenue and the property was sold in public auction to Hanumanthe Gowda.
33. Under such circumstances, the courts below were justified in holding that the plaintiff has failed to prove his title. To fill up that lacuna, before this Court, the plaintiff has filed I.A.No.2/2016 as aforesaid to produce the aforementioned nine documents and to examine witnesses. In that application, plaintiff does not even mention which of the witnesses he wants to examine.
34. Production of additional evidence in appellate court is governed by Order XLI Rule 27 CPC, which reads as follows:
“27. Production of additional evidence in Appellate Court.―(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
35. Learned Counsel for the appellant relying on Exs.P37 and P38 submits that though plaintiff applied for the copies of the documents, the concerned authorities did not issue them and that is fortified by those documents.
36. His other contention is that, if production of documents is not permitted, that leads to injustice to the plaintiff, which amounts to ‘substantial cause’ as mentioned in Order XLI Rule 27 Clause 1(aa) and (b) CPC. According to him, those documents are required to enable this Court to pronounce the judgment.
37. Though both side rely on innumerable judgments of this Court and the Hon’ble Supreme Court referred to above, the ratio of those judgments is the same. Producing additional evidence at the appellate stage is not a matter of right. Party seeking to lead such evidence has to prove that despite due diligence, it could not produce such evidence and such evidence is required for the Court to pronounce the judgment or there is any other substantial cause to permit producing such evidence.
38. So far as due diligence, the plaintiff had produced Exs.P37 and P38 before the trial court itself to contend that he applied for the copies of relevant documents, but they were not furnished. In fact, Exs.P37 and P38 do not spell which of the documents were applied. The title deeds of the properties are supposed to be with the parties, who acquired the title under those documents or the persons, who purchased the property from such title holders. The plaintiff has no explanation as to why he did not possess or produce his own original sale deed, sale deed of Chinna Thimmaiah or Hanumanthe Gowda.
39. Ex.P11 the sale deed said to be executed by Hanumanthe Gowda in favour of Chinna Thimmaiah states that he has handed over the title deed to the purchaser. In turn, recital in Ex.P1 states that all the records pertaining to the suit property are delivered to the plaintiff. Plaintiff at random states that he lost the documents. He does not state when he lost them and what action he took to trace them.
40. At least he did not summon the Sub- Registrar, Doddaballapura to speak about the auction sale in favour of Hanumanthe Gowda or further sales in favour of Chinna Thammaiah or the plaintiff. He did not even make such application before the first appellate court. After six years, for the first time before this Court, he comes up with such application. Therefore, plaintiff’s case is not covered under Order XLI Rule 27(1)(aa) CPC.
41. Then the question is whether those records are required to this Court to pronounce the judgment. Even assuming that the property was sold in favour of Hanumanthe Gowda, in turn to Chinna Thimmaiah, the plaintiff does not claim the title through Chinna Thimmaiah. In the plaint he says that Chinna Thimmaiah died issueless and Narayanappa, the brother of Chinna Thimmaiah acquired the property as his Class-II heir. Whereas his own sale deed Ex.P1 says that Chinna Thimmaiah had wife and children and the property was the joint family property of Chinna Thimmaiah and Narayanappa and that Narayanappa acquired the property in a partition between the brothers.
42. First of all, the plaintiff did not adduce any evidence to prove that Narayanappa was the brother of Chinna Thimmaiah. There is material variance between the pleading of the plaintiff and the evidence he adduced regarding the mode of acquisition of the property by Narayanappa. Unless Narayanappa’s title to the property is proved, the additional evidence now sought to be produced in no way advances the case of the plaintiff.
43. The Hon’ble Supreme Court in Union of India –vs- Ibrahim Uddin & Another 2013 AIR SCW 2752 while interpreting the meaning of the words “substantial cause” as prescribed in Order XLI Rule 27 Sub-rule 1(b) CPC held as follows:
“29. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realize the importance of a document does not constitute a “substantial cause” within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
30. The words “for any other substantial cause” must be read with the word “requires” in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.”
(Emphasis supplied) 44. Therefore, the case of the plaintiff does not even fall under Order XLI Rule 27 Clause 1(b) CPC namely, requirement of the court to pronounce the judgment or any other substantial cause. Therefore, I.A.No.2/2016 is liable to be dismissed.
45. If I.A.No.2/2016 is dismissed, there will be no evidence in proof of title of the plaintiff. Therefore, it cannot be said that the courts below have erroneously misinterpreted the evidence available on record. Hence, substantial question of law No.2 has to be answered in the negative.
46. Both Counsel submit that there was no document on record to attract Section 57 of the Indian Evidence Act. The question of taking judicial notice as per Section 57 of the Evidence Act arises only if there is any document as contemplated under Section 57(1) to (13) of the Evidence Act. To invoke Section 57(6), no document containing seal of any authority was produced before the court. Therefore, before the courts below, there was no fact requiring them to take judicial notice as per Section 57 of the Evidence Act.
47. With regard to Section 48 of the Transfer of Property Act, perusal of the said Section shows that if sale is by one and the same person, that Section applies. In this case, plaintiff claims that his predecessor purchased the property in public auction and the defendants purchased from its original owner i.e., defendant No.1. Therefore, Section 48 is inapplicable. Hence, the trial court was not justified in invoking Section 48 of the Transfer of Property Act.
48. Regarding limitation, the sale deed of M.D.Babu through whom defendant Nos.2 and 3 claimed was of the year 1972. Plaintiff claims to have purchased the property in 1980. Though the plaintiff claims that the property was sold in 1942-43, Ex.D9 shows that from 1969 to 1973, the name of first defendant was appearing in the RTC.
49. Relevant provision of Section 3 of the Transfer of Property Act reads as follows:
“3. Interpretation clause.
...............................
Explanation I.―Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated.”
50. Having regard to Explanation (i) of Section 3 of the Transfer of Property Act, 1882, the sale in favour of M.D.Babu in 1972 under registered instrument amounts to notice to the persons acquiring the same subsequently.
51. Learned Counsel for the appellant referring to the wordings of Section 3 of the T.P.Act that “unless there is something repugnant in the subject or context” and Ex.P19 submits that in Ex.P19 the Encumbrance Certificate, the sale in favour of M.D.Babu was not reflected, therefore, Ex.P19 amounts to repugnancy to Section 3 of the Transfer of Property Act.
52. Defendant Nos.2 to 4 disputed genuineness of Ex.P19. As against that, they produced Ex.D7 Encumbrance Certificate issued on 18.2.2010. Column Nos.5 and 6 of Ex.D7 depicts sale deed executed by defendant No.1 in favour of M.D.Babu. At the cost of repetition, it has to be said that plaintiff did not choose to examine the Sub-Registrar, Doddaballapura or to summon the documents from the said office to prove his contention on Ex.P19.
53. Further Section 3 of the T.P.Act refers to the situation of notice to a subsequent purchaser. The sale deed Ex.P1 is executed on 9.10.1980 whereas Ex.P19 shows that it was secured on 29.10.2010. Therefore, it cannot be said that Ex.P19 is repugnant to Section 3 or it operates to the benefit of the plaintiff or excludes him from the operation of Section 3 of the T.P.Act.
54. In the light of the above discussion, this Court does not find it necessary to refer to the other judgments relied upon by both side. The First Appellate Court was right in holding that the suit is barred by time.
55. For the aforesaid reasons, the substantial questions of law referred to above are answered against the appellant. Consequently, the appeal and I.A.No.2/2018 are dismissed.
Sd/- JUDGE KSR/KNM/-