IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2381/2008 BETWEEN:
1.SRI S V SEETHARAMAPPA S/O LATE VENKATAGIRIYAPPA AGED ABOUT 33 YEARS 2.SRI S V NARAYANASWAMY S/O LATE VENKATAGIRIYAPPA AGED ABOUT 43 YEARS 3.SRI VENKATESHAPPA S/O LATE MUNISWAMAPPA AGED ABOUT 63 YEARS '
ALL ARE RESIDING AT SHETTYMADAMANGALA VILLAGE SUGATUR HOBLI KOLAR TALUK – 563 101.
(BY SRI Y R SADASIVA REDDY SENIOR …APPELLANTS COUNSEL FOR LOKANATHA T V, ADVOCATE) AND:
1.SMT. VENKATAMMA W/O LATE KAIWARA NARAYANAPPA AGED ABOUT 88 YEARS 2.SRI N KRISHNAPPA S/O LATE KAIWARA NARAYANAPPA AGED ABOUT 58 YEARS 3.SRI NARAYANAPPA S/O LATE KAIWARA NARAYANAPPA AGED ABOUT 68 YEARS 4.SRI VENKATESHAPPA S/O LATE KAIWARA NARAYANAPPA AGED ABOUT 63 YEARS (APPELLANTS-2 TO 4 ARE RESIDING AT SHETTYMADAMANGALA VILLAGE, SUGATUR HOBLI KOLAR TALUK – 563 101) ... RESPONDENTS (BY SRI V VISWANATH, ADVOCATE FOR R1 SRI V VISHWANATH SHETTY, ADVOCATE FOR R2 R-3 & 4 ARE SERVED) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 3.11.08 PASSED IN R.A.No. 335/2007 ON THE FILE OF THE I ADDL. CIVIL JUDGE, (SR.DN), KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 24.11.07 PASSED IN OS 413/05 ON THE FILE OF THE PRL. CIVIL JUDGE, (JR.DN), KOLAR.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the judgment and decree dated 03.11.2008 passed by learned I Additional Civil Judge (Sr.Dn) at Kolar in R.A.No.335/2007 wherein, the judgment and decree passed by learned Principal Civil Judge (Jr.Dn) at Kolar, in O.S.No.413/2005 dated 24.11.2007 came to be set aside and in the result, the suit of the plaintiff came to be decreed with costs. Defendants are directed to deliver possession of the schedule property to the plaintiff within three months and in default plaintiff is directed to evict the defendants through due process of law. Against which, this appeal is preferred by the defendants 2, 3 and 4.
2. In order to avoid confusion and overlapping, the parties are addressed with reference to their status and ranking before the trial court.
3. Originally, suit was filed by one Venkatamma, seeking declaration of title over the suit property, consequential relief of mandatory injunction, and for recovery of possession before the trial Court in O.S.No.413/2005, claiming that she is the absolute owner in possession of the schedule property which is a vacant site situate at Shetty Madamangala Village, Sugatur Hobli, Kolar Taluk, bearing katha No.18, Khaneshumari No.139 measuring East to West 15 yards and North to South by 15 yards(45 ft. x 45 ft.) as her husband K.Narayanappa purchased the schedule property through an agreement dated 03.03.1961 from its vendor Sali Krishnappa and his vendor has delivered the possession of the scheduled property to her husband and thus, it is the self acquired property of her husband who died 40 years ago.
4. Further, plaintiff claims that she has made improvement on the schedule property heavy constructed stone roofed house in an area of 45 ft x 10 ft. She also has put up shop measuring East-West 15 feet and North-South 11 feet. Plaintiff claim that her title was denied on 20.9.2005. She was also dispossessed.
5. The defendants appeared through their counsel, 4th defendant filed written statement denying the material allegations made in the plaint. According to him, the suit property belong to defendants 2 to 4 and it is their ancestral property and they are residing in the same.
6. The learned trial Judge was accommodated with the oral evidence of PWs 1 and 2, DWs 1 to 3 and documentary evidence of Ex.P1 to P5 and Ex.D1 to D30. The suit came to be dismissed holding that plaintiff has failed to establish that she is the absolute owner in possession of the suit property and she was dispossessed by the defendants and that her claim for title over the schedule property on the basis of agreement that was said to be executed in favour of her husband was not tenable and she did not satisfy the requirement in order to establish the title over the immoveable property to get an order of injunction.
7. Later an appeal in R.A.No.335/2007 preferred by the plaintiff before the I Additional Civil Judge (Sr.Dn), Kolar, in R.A.No.335/2007 came to be allowed and suit was decreed in favour of the plaintiff as stated above. Against which, the present appeal came to be filed by the defendants 2, 3 and 4 before this court.
8. Learned Senior counsel Sri.Y.R.Sadasiva Reddy, for Sri.Lokanatha T.V. for appellants/defendants 2, 3 and 4 would submit that the parameters or the principles adopted by the learned first appellate Judge to decree the suit in favour of the plaintiff who is the respondent No.1 herein has no justification as the title is not confirmed on the basis of the sale agreement, Ex.P4. On perusal of Ex.P4 which is a sale agreement written in Kannada dated 03.03.1961, it is clear that schedule property is sold by Sali Krishnappa, son of Venkatappa for a cash consideration of Rs.200/- and received the total consideration under the agreement. The property was sold to one K.Narayanappa, son of Muniyappa aged 63 years. The plaintiff claims that she is the wife of said K.Narayanappa and inherited the property through him.
9. Learned counsel further submits that the schedule property is inherited by the defendants who have preferred the present appeal and the agreement on which the plaintiff relied does not have basis and it is executed under suspicious circumstance. Further contended that it has no validity as it does not consist ingredients of Sale as contemplated under Section 54 of the Transfer of Property Act.
10. Learned counsel for the plaintiff/1st respondent now dead represented by LRs would submit that the plaintiff has been in the actual possession and enjoyment of the suit property fulfilling all the requirement of valid title and has been in possession as well, as such defendants have no right, title, interest over the same and she has apprehended that her title and dispossession from the schedule property in the hands of the defendants.
11. The substantial question of law raised in this appeal on 27.08.2010 is as under:
“Whether the first Appellate Judge was right in deciding the case on an unregistered sale deed marked as Ex.P4?”
12. However, I have reframed the substantial questions of law on 12.3.2019 as under:
(i) Whether there could be a title on immovable property sans registered sale deed?
(ii) Whether Section 53-A of Transfer of Property Act is open against the persons other than sellers?
(iii) Whether sale agreement be subjected to payment of duty and penalty to cure the defect of Stamp Duty and Registration?
(iv) Whose responsibility is it to establish the identity of the property in a Civil Suit?
13. It is needless to say that the ingredients of Sale are set out in Section 54 of Transfer of Property Act, which also states the procedures of sale in respect of the sale transaction worth Rs.100 or more than Rs.100 of a immovable property had to effected by means of written document by paying notional stamp duty and also to be registered within the meaning of Indian Registration Act. Now, it is a first hitch to the plaintiff herself as she claims under the sale agreement of the schedule property said to have been executed in favour of her husband who is stated to have died 40 years earlier from the date of filing of the suit.
14. Insofar as sale agreement is concerned, it cannot have legal efficacy of conferring title on its holder of an immoveable property when the value of the property is Rs.100 or more than the said amount. In the instant case, the sale agreement is said to have been executed by one Sali Krishnappa in favour of her husband in the year 1961.
15. The next aspect is, it is written on the stamp paper of Rs.1.50 NP. Admittedly, an unregistered document. Even if the stamp duty is required to be paid the documents cannot be subjected to validity by accepting the duty and penalty as directed in respect of the instruments which are chargeable to duty and penalty. The instrument is to be compulsorily registerable and there is no provision of law for getting time validity to cure the defect by accepting an unregistered document by levying the duty and penalty.
16. Insofar as possession is concerned, plaintiff claim possession of the property having succeeded from her husband and sale agreement was executed by Sali Krishnappa son of Venkatappa. The relief under Section 53A of the Transfer of Property Act, is available against the seller and not against the third parties. It is whenever a contract which is written and signed, purchaser is put in possession or if he is already in possession he has the knowledge of the possession being transferred under the said agreement has done acts in furtherance of the contract and ready and willing to perform his part of duty is bestowed with the protection of his possession and makes sold out of bounds in respect of claiming schedule property because of non adhering to the legal stamp duty.
17. There is also dispute in respect of the identity of the property. In a suit, be it for specific performance or declaration of title and other suits whenever the identity of the property is disputed it would be the onus of the person asserting it to prove. In the overall circumstance of the case, the suit is silent as to in what capacity the plaintiff’s husband entered into the agreement and why it was not registered.
Moreover, the document does not contain any feature of a sale deed. Regard being had to the fact that the subject matter is immoveable property and value stated therein is Rs.200/-. Learned trial Judge has dismissed the suit by assigning sound reasons and the learned first appellate Judge has forgotten the basic principles and has allowed the appeal and decreed the suit by setting aside the judgment and decree passed by the trial Judge, which is liable to be set aside. Hence, the substantial questions of law raised in this appeal are answered accordingly.
18. In the result, the appeal is allowed.
The judgment and decree dated 03-11-2007 passed in RA No.335/2007 by the learned I Additional Civil Judge (Sr.Dn), Kolar, is set aside and the judgment and decree dated 24-11-2007 passed by the learned Principal Civil Judge (Jr.Dn), Kolar, is hereby confirmed. No orders as to costs.
tsn* Sd/- JUDGE