IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1525/2018 (DEC/INJ) BETWEEN:
SRI G.M.SURESHA S/O G.B.MAHESHWARAPPA AGED ABOUT 45 YEARS AGRICULTURIST R/AT SIRIGERE VILLAGE BHARAMASAGARA HOBLI CHITRADURGA TALUK & DISTRICT – 577 501 … APPELLANT (BY SRI SIDDAPPA B.M., ADV.) AND:
1. SMT.K.S.KAMALAMMA W/O LATE G.B.ONKARAPPA AGED ABOUT 58 YEARS 2. SHASHIKALA D/O LATE G.B.ONKARAPPA AGED ABOUT 38 YEARS BOTH ARE R/AT SIRIGERE VILLAGE BHARAMASAGARA HOBLI CHITRADURGA TALUK AND DISTRICT – 577 501 …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.06.2018 PASSED IN R.A.NO.70/2017 ON THE FILE OF THE 1ST ADDL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.10.2017 PASSED IN OS NO.89/2015 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This plaintiff’s second appeal arises out of the judgment and decree dated 20.6.2018 in Regular Appeal No.70/2017 passed by the 1st Additional District and Sessions Judge, Chitradurga.
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 24.10.2017 passed by the I Additional Senior Civil Judge at Chitradurga in O.S.No.89/2015 whereunder the present appellant’s suit for declaration of his title to the suit property and for permanent injunction was dismissed.
3. Appellant filed O.S.No.89/2015 against respondents Nos.1 and 2 before the Trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.
4. The subject matter of the suit was land bearing Sy.No.18/1A measuring 2.20 acres of Hosa Rangapura Village, Chitradurga Taluk.
5. Defendant No.1 is the wife and defendant No.2 is the daughter of one deceased G.B.Onkarappa. Plaintiff’s father G.B.Maheshwarappa and said G.B.Onkarappa were full brothers. G.B.Onkarappa was the owner of the suit land.
6. Plaintiff contended that G.B.Onkarappa relinquished his right in the suit property under Ex.P19 unregistered Release Deed dated 7.10.2014 in favour of his father and thereafter his father was in possession of the property as absolute owner. Plaintiff further alleged that in turn his father executed Ex.P18 registered gift deed dated 16.12.2014 in his favour and since then, he is exclusively enjoying the said property as absolute owner thereof.
7. The defendants denied the execution of the relinquishment deed by G.B.Onkarappa or the possession of plaintiff’s father. They contended that though by partition G.B.Onkarappa got the property, the revenue entries continued in the name of plaintiff’s father and taking undue advantage of that, plaintiff and his father have got up a release deed to grab their property.
They further contended that since plaintiff’s father did not possess any right or title over the suit property, he had no right to execute the gift deed. Therefore, plaintiff does not get any title.
8. On the basis of such pleadings, the Trial Court framed the following issues:
1. Whether the plaintiff proves that, husband of defendant No.1 and father of defendant No.2 namely Onkarappa by taking `1,82,000/- from G.B.Maheshwarappa the father of plaintiff has relinquished his right over suit schedule property in favour of father of plaintiff?
2. If so, whether he further proves that, his father has bequeathed the suit property in his favour under registered gift deed dated 16.12.2014 by delivering the possession in his favour?
3. If so, whether he further proves his absolute title and possession over the suit property?
4. Whether the plaintiff is entitled to the reliefs sought?
5. What order or decree?
9. In support of plaintiff’s case, he got examined himself as PW-1, his father as PW-2 and two other witnesses PWs-3 and 4 and got marked Exs.P1 to P20. Defendant No.1 was examined as DW-1 and Exs.D1 to D9 were marked on her behalf.
10. The trial court on hearing the parties dismissed the suit holding that the execution of Ex.P19 Release Deed is not proved and further since the said document is unregistered one and marked subject to the admissibility of the said document, that cannot be looked into even for collateral purposes. The trial court further held that the plaintiff failed to prove that his father was put in possession by Onkarappa.
11. Aggrieved by the said judgment, plaintiff filed R.A.No.70/2017 before the I Additional District and Sessions Judge, Chitradurga. The I Additional District and Sessions Court on hearing the parties dismissed the appeal by the impugned judgment and decree concurring with the reasonings and findings of the trial court.
12. The question before this court is whether the case involves substantial question of law to admit the appeal.
13. It was plaintiff’s own case that Onkarappa was the absolute owner of the property and he had acquired that in a partition between his father G.B.Maheshwarappa i.e., PW-2 and Onkarappa under Ex.P20 Partition Deed. Therefore, unless PW-
2 Maheshwarappa gets right into the property through Onkarappa, he will not be competent to transfer the same in turn to the plaintiff under Gift Deed Ex.P18 set up by him.
14. Admittedly, Ex.P19/Release deed was unregistered one. According to the plaintiff, Onkarappa receiving `1,82,000/- as a consideration relinquished his right under Ex.P19. Since the property transferred was immovable property, the value of which was more than `100/- i.e., `1,82,000/-, Section 17 of Registration Act makes the registration of such document compulsory. Consequently Section 49 of the Registration Act bars the Court receiving Ex.P.19 in evidence as that was unregistered one.
15. Section 49 of the Registration Act says that, only in suit for specific performance and in cases where document not required to be effected by registered instrument, such document can be looked into for collateral purpose. But in this case, Ex.P9/Release deed is not covered under any of those exceptions.
Under the circumstances, this case does not involve any substantial question of law to admit the appeal. Therefore, the appeal is dismissed.
In view of disposal of the appeal, I.A.No.1/2018 does not survive for consideration and disposed of accordingly.
Sd/- JUDGE KNM/-