IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.903 OF 2013 C/W REGULAR SECOND APPEAL NO.904 OF 2013 IN RSA NO.903/2013 BETWEEN:
SMT. KAMALAMMA W/O LATE DEVEERAPPA, AGED ABOUT 67 YEARS, R/O SIDDLIPURA VILLAGE, SHIMOGA DISTRICT-577201.
(BY SRI UMESH MOOLIMANI, ADVOCATE FOR SRI S.V.PRAKASH, ADVOCATE) AND:
1. SMT. GIRJAMMA W/O LATE HALESHAPPA, AGED ABOUT 66 YEARS 2. T.P. MANU S/O LATE HALESHAPPA, AGED ABOUT 45 YEARS 3. T.P. VEERESH S/O LATE HALESHAPPA, AGED ABOUT 42 YEARS ...APPELLANT RESPONDENTS NO.1 TO 3 ARE RESIDENCE OF K.C.965, H.R.B.R. LAYOUT, 1ST BLOCK, KALYAN NAGAR, BANASWADI, BANGALORE - 560 043.
…RESPONDENTS (BY SRI C.M. DESAI, ADVOCATE FOR C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD: 24.1.2013 PASSED IN R.A.NO.30/2010 ON THE FILE OF THE ADDL.DISTRICT JUDGE, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 17.12.2009 PASSED IN OS.NO.155/2001 THE FILE OF THE I ADDL.CIVIL JUDGE(SR.DN) & CJM, SHIMOGA AND ETC., IN RSA NO.904/2013 BETWEEN:
SMT. KAMALAMMA W/O LATE DEVEERAPPA AGED ABOUT 67 YEARS R/O SIDDLIPURA VILLAGE SHIMOGA TALUK AND DISTRICT-577201 ...APPELLANT (BY SRI.UMESH MOOLIMANI, ADVOCATE FOR SRI.S.V.PRAKASH, ADVOCATE) AND:
1. SMT. GIRIJAMMA W/O LATE HALESHAPPA AGED ABOUT 66 YEARS 2. T.P. MANU S/O LATE HALESHAPPA AGED ABOUT 45 YEARS 3. T.P. VEERESH S/O LATE HALESHAPPA AGED ABOUT 42 YEARS RESPONDENTS NO.1 TO 3 ARE RESIDENCE OF K.C. 965 H.R.B.R. LAYOUT, 1ST BLOCK KALYAN NAGAR, BANASWADI BANGALORE-560 043 4. MANJAPPA S/O DEVEERAPPA AGED ABOUT 53 YEARS R/O SIDDLIPURA KASABA HOBLI KOTEGANGUR POST SHIMOGA TALUK AND DISTRICT-577201 5. LAKSHMI BAI W/O AJJOOJI RAO AGED ABOUT 73 YEARS R/O NKK ROAD NEAR VEERABHARESHWARA NILAYA SHIMOGA CITY-577201 6. SIDDOJI RAO S/O NOT KNOWN AGED MAJOR R/O SRIBHAVANI NILAYA OCCUPATION: MILK VENDOR AND MERCHANT MKK ROAD, SHIMOGA CITY-577201 …RESPONDENTS (BY SRI.C M DESAI, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD:24.1.2013 PASSED IN R.A.NO.32/2010 ON THE FILE OF THE ADDL.DISTRICT JUDGE, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 17.12.2009 PASSED IN OS.NO.261/2000 THE FILE OF THE I ADDL.CIVIL JUDGE (SR.DN) & CJM, SHIMOGA AND ETC., THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant has filed these two appeals questioning the judgment and decree of the Lower Appellate Court passed in Regular Appeal Nos.30/2010 and 32/2010 confirming the judgment and decree passed by the Trial Court in O.S.Nos.261/2000 and 155/2001.
2. For the sake of convenience, the parties are referred to as per their status before the Courts below.
3. The facts leading to the top noted cases are as follows:
The husband of respondent No.1 herein namely, Haleshappa filed suit for declaration of his title and for grant of permanent injunction in O.S.No.261/2000. The present appellant, who was arrayed as defendant No.1 in O.S.261/2000 also filed suit in O.S.No.155/2001 (old No.700/2000) for bare injunction. The deceased plaintiff in O.S.No.261/2000 asserting his title on the basis of registered sale deed dated 06.05.1959 executed by husband of appellant herein filed suit in O.S.No.261/2000 by specifically contending that he has acquired valid right and title pursuant to the registered sale deed dated 06.05.1959 executed by one Nanjappa Gowda. The deceased plaintiff namely Haleshappa also contended in the plaint that pursuant to execution of registered sale deed, possession was delivered and accordingly mutations were effected in revenue records. The plaintiff further contended that he has been enjoying the property as absolute owner since the date of execution of sale deed and he has been paying tax. He also averred in the plaint that he availed loan from Government and thereby contended in the plaint that the same is mentioned in the record of rights.
The plaintiff further specifically contended that there is no tenancy in respect of suit schedule property and there is no encumbrance relating to suit schedule property except the encumbrance with regard to purchase of property by the plaintiff. The plaintiff also contended in the plaint that the appellant/defendant and her children have no manner of right and title and would further contend that there is a mistake in mentioning about the name of the vendor of plaintiff in column No.12 of RTC. The plaintiff further averred in the plaint that though Nanjappa Gowda died in the year 1986, but his name continued in column No.12(2) of RTC and the said entry is illegal and has no evidentiary value in the eye of law. The plaintiff further averred in the plaint that though Nanjappa Gowda had sold the property in the year 1959, the appellant and her children have been trying to make false claim over the suit schedule property and since they tried to trespass into the suit schedule property, the plaintiff was compelled to file suit for declaration and injunction in O.S.No.261/2000.
4. On receipt of summons, the present appellant along with her children who were arrayed defendant Nos.2 and 3 respectively contested the proceedings by filing written statement. The appellant and her children admitted that Nanjappa Gowda has sold the suit land under the registered sale deed dated 06.05.1959. However, they would contend that though they have sold the suit land, possession was never delivered to the original plaintiff Haleshappa.
The suit filed by the present appellant for bare injunction in O.S.No.155/2001 was clubbed along with O.S.No.261/2000 and common evidence was recorded.
5. The Trial Court based on the rival contentions formulated the following issues:-
“1) Whether the plaintiff proves that he has been in possession and enjoyment of suit schedule property from the date of registered sale deed dated 06.05.1959?
2) Whether the defendant Nos.1 and 2 prove that even after the execution of the said sale deed, Nanjappa Gowda had not delivered the possession in favour of the plaintiff and he continued in possession and enjoyment of the property till his death and after his death, they themselves have been in physical possession and enjoyment of the same?
3) Whether the defendants 1 and 2 prove that the Court fee paid by the plaintiff is not sufficient and this court has no pecuniary jurisdiction to try the suit?
4) Whether the defendants prove that the description of the suit schedule property is not correct?
5) Whether the plaintiff is entitled for the relief of declaration and permanent injunction?
6) What Order or Decree?”
6. The plaintiff in support of his contention, examined himself as PW.1 and examined three independent witnesses as PWs.2, 3 and 4. To corroborate oral evidence, the plaintiff in O.S.No.261/2000 produced documentary evidence vide Exs.P-1 to P-18. The present appellant who is defendant No.1 examined three witnesses as DWs.1 to 3 and produced documents vide Exs.D-1 to D-15.
7. The Trial Court having examined the material on record, answered issue No.1 in the affirmative by holding that plaintiff is in possession and enjoyment over the suit schedule property from the date of registered sale deed dated 06.05.1959 and negatived issue No.2 and by answering issue No.5 in the affirmative, decreed the suit of respondents by holding that first respondent’s husband namely Haleshappa acquired valid right and title pursuant to registered sale deed dated 06.05.1959 executed by husband of appellant herein and consequently, granted injunction against the appellants and respondent Nos.4 to 6.
8. The appellant alone challenged the judgment and decree passed in O.S.No.261/2000 in R.A.No.32/2010, whereas defendant Nos.2 and 3 accepted the judgment and decree passed by the Trial Court in O.S.No.261/2000. R.A.No.30/2010 was filed by the appellant herein questioning the judgment and decree passed in O.S.No.155/2001. The Appellate Court on re-appreciation of evidence, did not find any ground for interference in the judgment and decree of the Trial Court and accordingly, dismissed both the appeals.
9. The appellant being aggrieved by the judgment and decree dated 24.01.2013 passed by the Lower Appellate Court in R.A.No.32/2010 confirming the judgment and decree dated 17.12.2009 passed in O.S.No.261/2000 has filed the present regular second appeal in RSA.No.904/2013. The appellant has also filed RSA.No.903/2013 challenging the judgment and decree passed by the Lower Appellate Court in R.A.No.30/2010 dated 24.01.2013 confirming the judgment and decree dated 17.12.2009 passed in O.S.No.155/2001.
10. Learned counsel for the appellant would vehemently argue that the both the Courts below have erred in decreeing the suit filed by the respondent in O.S.No.261/2000. Learned counsel for the appellant would contend that though the sale deed was executed by the husband of appellant herein under registered sale deed dated 06.05.1959, however, possession was not delivered to Haleshappa. To buttress this argument, learned counsel for the appellant would request this Court to examine the entries made in the RTA extracts in column No.12(2) as per Exs.P-12, P-13 and D-1 to D-15.
11. Learned counsel for the appellant in support of these entries, would argue that even after execution of sale deed, the vendor Nanjappa Gowda continued to be in lawful possession of the suit land and hence, would argue that the suit for declaration filed in O.S.No.261/2000 seeking consequential relief of injunction is not at all maintainable as the purchaser was never put in possession in 1959.
Learned counsel for the appellant would also rely heavily on the oral evidence of DWs.2 and 3 to demonstrate that the appellant and her children are in possession over the suit land.
12. Having heard learned counsel appearing for the appellant and having examined the findings recorded by the courts below, this Court is of the view that the grounds raised in the appeal memo and also the substantial questions of law framed are not sustainable. On perusal of the record, it is clearly evident that the husband of appellant executed registered sale deed for valuable sale consideration on 06.05.1959. As per Ex.P-1, the recitals in the sale deed clearly indicate that the vendor Nanjappa Gowda parted with the possession on the same day i.e., on the date of execution of sale deed. Pursuant to execution of sale deed, the purchaser i.e., Haleshappa was duly mutated in the revenue records. On perusal of the records, it is evident that the original plaintiff in O.S.No.261/2000 has also paid tax which is evident from Exs.P-7 to P-9. Further on perusal of record of rights, it is also evident that plaintiff by exercising his right and title over the suit land, had mortgaged the suit land in favour of B.D.O., Shivamogga.
13. Both the Courts below having examined the evidence on record meticulously have recorded a categorical finding that the appellant cannot claim possession over the suit land and the oral evidence in the form of DWs.1 to 3 coupled with documentary evidence vide Exs.D-1 to D-15 is not at all admissible, since the said documents are contrary to the recitals in the registered sale deed dated 06.05.1959. The due execution of same is admitted by the appellant in unequivocal terms in the written statement. The recitals in the sale deed that possession was delivered binds the appellant and the respondent Nos.3 to 6 in RSA.No.904/2013 and hence, they are estopped from claiming possession over the suit land. The Appellate Court on re-appreciation has rightly recorded a finding that wherever the terms of contract or disposition are required by law to be reduced in the form of a document and the same is proved as per Section 92 of the Indian Evidence Act, then no evidence on any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms.
14. In the present case on hand, Section 92 of the Indian Evidence Act would come into play and accordingly, the appellant would be estopped from asserting her possessory right. The appellant asserting possessory right on the strength of oral evidence purports to contradict recitals in registered sale deed dated 06.05.1959 as per Ex.P-1 indicating delivery of possession. Since Sections 91 and 92 of Indian Evidence Act excludes oral evidence, the construction of a document cannot be varied by extraneous evidence more particularly when the execution of sale deed is in fact admitted. The Appellate Court while re-appreciating the entire evidence on record has also looked into the stray admissions ought to have been given by the plaintiff in cross-examination. The Appellate Court has recorded a categorical finding that the stray admission is not fatal to the case of the plaintiff in O.S.No.261/2000.
15. On meticulous reading of the entire oral evidence of the plaintiff in O.S.No.261/2000, it is clearly evident that plaintiff has stoutly denied the assertions and suggestions of the present appellant/defendant in regard to possession over the suit land. The judgment and decree of the courts below in decreeing the suit in O.S.No.261/2000 and consequently dismissing the suit filed by the appellant herein in O.S.No.155/2001 is based on sound principles of law and both the judgments do not suffer from any infirmities and perversities.
16. No substantial questions of law would arise in the present appeals. Accordingly, both the appeals stand dismissed.
Sd/- JUDGE CA